People v. Heisler, Court of Appeals No. 16CA0104

Docket NºCourt of Appeals No. 16CA0104
Citation488 P.3d 176
Case DateMay 04, 2017
CourtCourt of Appeals of Colorado

488 P.3d 176

The PEOPLE of the State of Colorado, Plaintiff–Appellee,
Steven Thomas HEISLER, Defendant–Appellant.

Court of Appeals No. 16CA0104

Colorado Court of Appeals, Division V.

Announced May 4, 2017

Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Law Office of Daniel Kyser, L.L.C., Daniel H. Kyser, Englewood, Colorado, for Defendant–Appellant


¶ 1 Defendant, Steven Thomas Heisler, appeals the judgment of conviction entered on a jury verdict finding him guilty of one count of harassment. Heisler also appeals his sentence. We affirm.

I. Background and Procedural History

¶ 2 The victim and Heisler began dating in 2010 and carried on their relationship for three years. After they broke up in 2013, they remained in touch. In March 2014, however, the victim told Heisler that she was beginning a new relationship and no longer wished to communicate with him.

¶ 3 Heisler ignored the victim's request and sent her numerous text messages and letters, although the victim remained relatively unresponsive to these communications. Eventually, in December 2014, Heisler traveled from Florida, where he lived, to Colorado to talk to the victim in person—uninvited and unannounced. When the victim saw Heisler outside of her home, she called the police. Heisler was arrested and charged with one count of felony stalking and one count of harassment. The charging instrument alleged that both charges were acts of "domestic violence." After a jury trial, Heisler was acquitted of the stalking charge but was found guilty of harassment.

¶ 4 At Heisler's sentencing hearing, the trial court sentenced him to thirty days in county jail and three years of supervised probation, which Heisler could serve in Florida. Pursuant to applicable statutes, the trial court also found that his conduct underlying his conviction included an act of domestic violence. Therefore, the court ordered Heisler to complete mandatory domestic violence treatment as a condition of his probation.

¶ 5 Heisler now appeals.

II. Authentication of Text Messages

¶ 6 Heisler contends that the trial court erred by admitting into evidence the text messages he sent to the victim because they were not properly authenticated under CRE 901(a). We disagree.

A. Applicable Law and Standard of Review

¶ 7 Before evidence may be admitted, CRE 901(a) requires that the evidence be sufficiently authenticated by the proponent. Authentication "is satisfied by evidence sufficient to support a finding that the [evidence] in question is what its proponent claims [it to

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be]." CRE 901(a) ; see also People v. Glover , 2015 COA 16, ¶ 12, 363 P.3d 736. "The burden to authenticate ‘is not high—only a prima facie showing is required....’ " Glover , ¶ 13 (quoting United States v. Hassan , 742 F.3d 104, 133 (4th Cir.2014) ).

¶ 8 The showing required to authenticate text messages under CRE 901(a) is a matter of first impression in Colorado. In setting this standard, we find the reasoning of the divisions in People v. Bernard , 2013 COA 79, ¶¶ 7-13, 305 P.3d 433, and Glover , ¶¶ 20-34, both of which concern the authentication of other forms of electronic communications, instructive.

¶ 9 In Bernard , a division of this court concluded that an e-mail may be authenticated (1) through the testimony of a witness with personal knowledge that the e-mail is what it is claimed to be or (2) "through consideration of distinctive characteristics shown by an examination of [the] contents and substance" of the e-mail under the circumstances of the case. Bernard , ¶ 10 (citing CRE 901(b)(1), (4)). The witness in Bernard testified that (1) a printout of the contested e-mail was a true and accurate copy of the message she had personally received from the purported sender; (2) she recognized the e-mail address as belonging to the purported sender; and (3) the contents of the e-mail indicated that it came from the purported sender. Id. at ¶ 11. In light of this testimony, the division concluded that the prosecution sufficiently authenticated the e-mail as being from the purported sender and, therefore, the trial court did not abuse its discretion in admitting it. Id. at ¶ 13.

¶ 10 More recently, in Glover , a division of this court expanded the Bernard standard, concluding that printouts of a social networking site require two levels of authentication. Glover , ¶ 23 ; see also Bernard , ¶ 10.

¶ 11 First, the proponent must authenticate the printouts of a social networking site as actual depictions of the site. Glover , ¶ 23. This may be done through testimony from someone with personal knowledge of how the printouts were obtained, or through an examination of distinctive characteristics in the printouts' content or substance. Id. at ¶¶ 23 -24.

¶ 12 Second, the proponent must sufficiently authenticate the identity of the purported sender by showing that "the communications [sent through the social networking site] were made by [the] defendant." Id. at ¶¶ 23, 28. As in Bernard , the Glover division concluded that the identity of the purported sender must be proved "beyond confirmation that the social networking account [was] registered to the party purporting to create [the] messages." Glover , ¶ 30 ; see also Bernard , ¶ 10. However, a witness with personal knowledge who testifies to any combination of at least two of the following elements would sufficiently authenticate the identity of the purported sender: (1) the account was registered to the purported sender; (2) corroborative evidence showed that the account was used by the purported sender; (3) the substance of the communications was recognizable as being from the purported sender; (4) the sender "responded to an exchange in such a way as to indicate circumstantially that he or she was in fact the author of the communication"; and (5) any other confirming evidence under the circumstances. Glover , ¶¶ 30-34.

¶ 13 We review a trial court's evidentiary rulings for an abuse of discretion. Davis v. People , 2013 CO 57, ¶ 13, 310 P.3d 58. A court abuses its discretion when its ruling is (1) based on an erroneous understanding or application of the law; or (2) manifestly arbitrary, unreasonable, or unfair. People v. Esparza-Treto , 282 P.3d 471, 480 (Colo.App.2011).

B. Analysis

¶ 14 For the following reasons, we conclude that the text messages in this case were properly authenticated and, accordingly, we perceive no error by the trial court in admitting them into evidence.

¶ 15 In light of Glover and Bernard , we conclude that authentication of text messages has two components. First, a witness with personal knowledge must testify that printouts of text message(s) accurately reflect the content of the message(s). Second, a witness with personal knowledge must provide testimony establishing the identity of

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the purported sender of the text message(s). Identity may be established through a combination of at least two of the following: (1) the phone number was assigned to or associated with the purported sender; (2) the substance of the text message(s) was recognizable as being from the purported sender; (3) the purported sender "responded to an exchange in such a way as to indicate circumstantially that he or she was in fact the author of the communication"; or (4) any other corroborative evidence under the circumstances. Glover , ¶¶ 30-34. Again, "[t]he burden to authenticate ‘is not high.’ " Id. at ¶ 13 (quoting Hassan , 742 F.3d at 133 ). If such evidence has been presented, authentication of the text messages has been established under CRE 901.

¶ 16 Applying that test here, the record shows that, at trial, the prosecution introduced printouts of numerous text messages that Heisler had sent to the victim. The victim authenticated this evidence in the following ways:

• The victim testified that she recognized the pictures of the text messages and that they were a fair and accurate depiction of the texts she personally received.

• The victim testified that she recognized the phone number as Heisler's, and that she would use that number to communicate with him.

• The victim testified that she recognized the content of the text messages as being from Heisler.

¶ 17 Based on this testimony, the prosecution moved to admit the evidence. Defense counsel objected and requested voir dire.

¶ 18 During voir dire, the victim admitted that she had deleted the text messages she sent to Heisler in response. The defense then objected to admission of the printouts because they were not a "true and accurate depiction of the conversations" between the victim and Heisler. The trial court overruled this objection and admitted the texts into evidence.

¶ 19 As a threshold matter, we note that Heisler does not argue that the printouts of the text messages were not accurate representations of the text messages the victim received. Nor does he contest that he was the author of the text messages. Instead, Heisler contends that the text messages were not properly authenticated because the victim deleted her responses. We are not persuaded.

¶ 20 First, the record reflects that the prosecution presented sufficient evidence that (1) the printouts of...

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  • People v. Tarr, 18CA0485
    • United States
    • Colorado Court of Appeals of Colorado
    • 24 Febrero 2022 make findings of fact and conclusions of law" on this issue, it is not preserved for our review. People v. Heisler, 2017 COA 58, ¶ 42, 488 P.3d 176, 183 (quoting People v. Melendez, 102 P.3d 315, 322 (Colo. 2004)). Thus, we must consider Tarr's legislative preclusion argument under the p......
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