People v. Douglas

• Decision Date: 21 April 2016
• Citation: People v. Douglas, 411 P.3d 1026 (Colo. App. 2016)
• Docket Number: 14CA0012
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Joseph DOUGLAS, Defendant–Appellant.
• Court: Colorado Court of Appeals

411 P.3d 1026

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Joseph DOUGLAS, Defendant–Appellant.

Court of Appeals No. 14CA0012

Colorado Court of Appeals, Div. V.

April 21, 2016

Cynthia H. Coffman, Attorney General, Nicole D. Wiggins, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Karen Gerash, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE BERNARD

¶ 1 In our increasingly computerized world, attorneys often present video depictions of events at trial to explain how those events occurred.This appeal involves the question whether three video depictions were admissible in a criminal trial.To answer this question, we must decide whether the videos were "animations" or "simulations," which are two terms of art.

¶ 2 As a general matter, an animation is based on information that an expert has gathered and the opinions that the expert has reached based on that information.The animation then depicts the expert's opinion of how the event occurred.

¶ 3 A simulation is different.A computer program does the work of reaching the opinion based on the information, or it at least assists the expert in figuring out what his or her opinion should be.The simulation then depicts how the event actually occurred based wholly, or at least in part, on the computer's analysis.

¶ 4 At the end of the trial in this case, a jury convicted defendant, Joseph Douglas, of leaving the scene of an accident, failure to report an accident, and careless driving.He appeals the judgment of conviction and the trial court's order that required him to pay an insurer $37,717.28 in restitution.

¶ 5Defendant contends that the trial court should not have allowed the prosecution to show the jury three short video depictions of an automobile-bicycle collision.He asserts that they were simulations, and that the prosecution did not lay an adequate foundation to support the court's decision to admit them.We disagree because we conclude that the videos were animations and that the prosecution laid a sufficient foundation.

¶ 6We therefore affirm the judgment of conviction.We also affirm the trial court's restitution order.

I.Background and Procedural History

¶ 7 In August 2011, defendant was driving his car on a two-lane, rural road around dusk on a windy day.He took his eyes off the road for a few seconds to look at his radio.The passenger side of his car struck a bicyclist who was riding in the same direction on the side of the road.She flew through the air for a distance, and she landed in a ditch, which was filled with chest-high vegetation.

¶ 8 The collision and the resulting fall broke the bicyclist's leg and sprained her wrist.She managed to climb out of the ditch, and she then called for emergency assistance on her cell phone.

¶ 9Defendant drove away.He later claimed that he had not seen the bicyclist.He had felt the side of his car strike her, but, when he stopped to look around, he did not see her or her bicycle.So he assumed that his car had struck a deer.

¶ 10 As is relevant to this appeal, the prosecution charged defendant with leaving the scene of an accident, failure to report an accident, and careless driving resulting in injury.

¶ 11The prosecution informed defendant that it intended to introduce three video depictions of the collision at trial.A state trooper who was an accident reconstruction expert had prepared them.The depictions showed the collision from different angles.

¶ 12Defendant filed a motion to exclude the three videos.Relying on CRE 702andPeople v. Shreck,22 P.3d 68(Colo.2001), the motion asserted that the videos were simulations and that they were not admissible because they were based on (1)"unreliable analysis, unreliable data," and an "unreliable program"; and (2)"only partial[ly] self-reported data."Alternatively, defendant contended that even if the videos were animations, they were nonetheless inadmissible because they did not fairly and accurately depict the collision.

¶ 13The trial court held an evidentiary hearing.The prosecutor asserted that the videos were animations.Defense counsel responded that her "main concern" was that the facts depicted in the videos were in dispute.She said that the "problem is whether [the videos were] ... fair and accurate representation of what happened."(As we will explain below, part of the foundation for admitting animations is that they fairly and accurately depict an event.)She reiterated that she also thought that the videos were simulations.

¶ 14The prosecutor conceded that the videos "entail[ed] a fair amount of math and science."But, the prosecutor's argument continued, they were animations because they were based on the measurements that the trooper had taken at the scene of the collision, information that some witnesses had provided to him, and calculations that he had performed before he used a computer to create the videos.

¶ 15The trial court decided that the videos were animations and that it would allow the jury to watch them at trial.The court also found that (1)they were relevant because they would provide the jury with visual depictions of the collision and because they showed the relative positions of the car and the bicycle on the road; (2)they were fair and accurate depictions of the collision; (3) any discrepancies between the videos and other evidence went to their weight, not to their admissibility; and (4) the probative value of the videos was not substantially outweighed by any prejudice that defendant might suffer if the jury watched them.

¶ 16 When the prosecutor showed the videos at trial, the court gave the jury a limiting instruction.The instruction stated that the videos represented the trooper's opinion about how the collision had occurred.The court also limited the jury to watching the videos twice: once during the trooper's testimony and once during the jury's deliberations.

II.The Videos Were Animations

¶ 17Defendant asserts that the videos were simulations and that they were scientific evidence.The prosecution therefore had to show that they were admissible under the test found in CRE 702andShreck,22 P.3d at 82–83.

¶ 18 Alternatively, defendant contends that even if the videos were animations, the court should not have admitted them because they did not meet the necessary foundational requirements.

¶ 19We disagree with both of these contentions.

A.Standard of Review

¶ 20We review a trial court's evidentiary rulings for abuse of discretion.People v. Ibarra,849 P.2d 33, 38(Colo.1993).We will not reverse an evidentiary ruling unless the decision was manifestly arbitrary, unreasonable, or unfair, or if it was based on an erroneous understanding or application of the law.Salazar v. Kubic,2015 COA 148, ¶ 6, ––– P.3d ––––.

B.Animations v. Simulations

1.Legal Principles

¶ 21 As is pertinent to this appeal, computer-generated video depictions of events fall into two categories: animations and simulations.People v. Cauley,32 P.3d 602, 606–07(Colo.App.2001);seeLorraine v. Markel Am. Ins. Co.,241 F.R.D. 534, 559(D.Md.2007).There are different foundational elements for the admission of videos based on the category in which they belong.

¶ 22 On the one hand, courts view animations as demonstrative evidence.Cauley,32 P.3d at 607.The proponent of an animation must (1) authenticate it; (2) show that it is relevant; (3) show that it is a "fair and accurate representation of the evidence to which it relates"; and (4) show that its probative value is not substantially outweighed by the danger of unfair prejudice.Id.

¶ 23 On the other hand, courts consider simulations to be scientific evidence.Id.;seeLorraine,241 F.R.D. at 560.Simulations are offered as substantive, not demonstrative, evidence.Bullock v. Daimler Trucks N. Am., LLC,819 F.Supp.2d 1172, 1176(D.Colo.2011);Lorraine,241 F.R.D. at 560;Tull v. Fed. Express Corp.,197 P.3d 495, 499(Okla.Civ.App.2008).A simulation depends on the proper application of scientific principles, so its admissibility hinges on whether it meets the foundational requirements of scientific evidence.Cauley,32 P.3d at 606–07.

¶ 24 There are some similarities between animations and simulations.They can both require someone to input data into a computer program.SeeBullock,819 F.Supp.2d at 1175–1177(data input not determinative of categorization as simulation or animation);State v. Tollardo,134 N.M. 430, 77 P.3d 1023, 1028(Ct.App.2003)(same).They can both depict recreations of events.Cauley,32 P.3d at 607;see generallyClark v. Cantrell,339 S.C. 369, 529 S.E.2d 528(2000).They can both use scientific principles to recreate those events.See, e.g.,Pino v. Gauthier,633 So.2d 638, 652(La. Ct. App.1993)(considering simulation created by inputting vehicle weight, speed, road conditions, and braking data into a specialized computer);Clark,529 S.E.2d at 537(stating that accident recreation animation must correctly show distance, terrain, relative speed, path of travel, and surroundings).

¶ 25 But, based on the preceding discussion, there are clear differences that distinguish animations and simulations.We introduce our discussion of those differences, which we explain in more detail below, by providing the reader with the following chart.

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2.Differences

¶ 26 There are two questions that highlight the primary differences between animations and simulations.

(1) Who, or what, is the source of the opinion?

(2) How does the proponent of the depiction intend to use it at trial?

a. Source of the Opinion

¶ 27 On the one hand, an animation "simply illustrates an opinion or reconstruction which an expert witness has already devised through the expert's own independent computation and analyses."Commonwealth v. Serge,58 Pa. D. & C.4th 52, 70(Ct. Com. Pl. LackawannaCty., Pa.2001).An animation does not generate the expert's opinion, and it does not...