People v. Jaeb

• Decision Date: 27 December 2018
• Docket Number: Court of Appeals No. 15CA2010
• Citation: 434 P.3d 785
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Mark Anthony JAEB, Defendant-Appellant.
• Court: Colorado Court of Appeals

434 P.3d 785

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

v.Mark Anthony JAEB, Defendant-Appellant.

Court of Appeals No. 15CA2010

Colorado Court of Appeals, Division V.

Announced December 27, 2018

Cynthia H. Coffman, Attorney General, Patrick A. Withers, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith K. Rose, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE RICHMAN

¶ 1 Defendant, Mark Anthony Jaeb, appeals his conviction of one count of theft of property under section 18-4-401(1)(b) and 2(g), C.R.S. 2018, in an amount between $5000 and $20,000 as a class 5 felony. He separately appeals the portion of the order directing restitution for damage to the stolen property in the amount of $289.05. Because we conclude that the trial court improperly admitted evidence of the value of the stolen property, we reverse his conviction for the class 5 felony and remand for entry of conviction on a lesser scheduled offense. But because the prosecution presented adequate proof that defendant’s conduct was the proximate cause of the damage to the property, we affirm the order of restitution.

I. Background

¶ 2 The evidence admitted at trial showed that defendant contracted to rent a U-Haul trailer for a period of twenty-four hours in December 2013, but did not return the trailer by the appointed time. About one month later, police discovered the U-Haul trailer, along with several other trailers, on a property that did not belong to defendant but that contained many of his belongings. The People then charged defendant with several theft crimes, though only the rental of the U-Haul trailer is relevant to this appeal.

¶ 3 At trial, the prosecution called U-Haul’s traffic control manager for Northern Colorado as its primary witness. She testified that she handled distribution contracts with U-Haul’s equipment reservation team and described U-Haul’s internal procedures in renting equipment. Through her testimony, the prosecution offered, with no objection, the twenty-four-hour contract between U-Haul and defendant, along with a description of the trailer he had rented. She testified the trailer was rented on or about December 29, 2013, and was not timely returned.

¶ 4 The prosecution also presented the witness with proposed Exhibit 9 as proof of the value of the stolen trailer. The document was a notarized affidavit apparently signed by a manager of the equipment recovery/records department at U-Haul International, who was not called to testify, attesting that the replacement cost of the trailer at issue was $6427 and its actual cash value was $6748. The document was signed July 1, 2015, approximately two months before defendant’s trial. A notation on the document below the signature lines indicated that the document was "requested by" the prosecution’s witness.

¶ 5 The witness described the document as "our total loss notice" and stated that that the document was kept in the ordinary course of business at U-Haul and that it was a kind of document she saw regularly and had access to. However, she noted it was more often kept "in our equipment recovery department."

¶ 6 Defense counsel objected to admission of the document on the grounds of hearsay, lack of personal knowledge, and authentication. After argument, the court found that the document had "been testified to," which "would make it admissible under 803(6)." The court also concluded that the document could be authenticated under CRE 901 with testimony from a witness. The exhibit was admitted, and defendant was ultimately convicted of one count of theft — $5000 to $20,000.

¶ 7 On appeal, defendant argues that the exhibit was inadmissible hearsay and was admitted in violation of his rights under the Confrontation Clauses. He also claims that because the exhibit was the only evidence for the value of the trailer, his conviction for theft — $5000 to $20,000 must be reversed for insufficient evidence.

II. Whether Admission of the Affidavit Was Proper

A. Preservation and Standard of Review

¶ 8 At trial, defense counsel objected to the admission of Exhibit 9 on grounds of hearsay, improper authentication, and the witness’s lack of personal knowledge. However, no objection was made concerning defendant’s rights under the Confrontation Clauses of either the Federal or Colorado Constitutions.

¶ 9 We review the preserved hearsay claim for an abuse of discretion under the harmless error standard, see People v. Smalley , 2015 COA 140, ¶ 79, 369 P.3d 737, but review the confrontation claim only for plain error, see People v. Vigil , 127 P.3d 916, 929 (Colo. 2006). "Plain error occurs only when an error so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the jury’s verdict." Domingo-Gomez v. People , 125 P.3d 1043, 1053 (Colo. 2005).

B. Applicable Law

¶ 10 Hearsay is defined as any statement "other than one made by the declarant while testifying at the trial ... offered in evidence to prove the truth of the matter asserted." CRE 801(c). Such a statement is ordinarily inadmissible unless it falls under one of the enumerated exceptions to the hearsay rule. CRE 802.

¶ 11 One such exception is the business records exception. It provides that a hearsay document is admissible if (1) it was made at or near the time of the matters recorded in it; (2) it was prepared by, or from information transmitted by, a person with knowledge of the matters recorded; (3) the person who recorded the document did so as part of a regularly conducted business activity; (4) it was the regular practice of that business activity to make such documents; and (5) the document was retained and kept in the course of a regularly conducted business activity. CRE 803(6) ; see also People v. Flores-Lozano , 2016 COA 149 ¶ 13, 410 P.3d 684.

¶ 12 The People argue that another exception to the hearsay rule is found in section 18-4-414(2), C.R.S. 2018, which provides as follows:

For purposes of this part 4, in all cases where theft occurs, evidence of the value of the thing involved may be established through the sale price of other similar property and may include, but shall not be limited to, testimony regarding affixed labels and tags, signs, shelf tags, and notices tending to indicate the price of the thing involved. Hearsay evidence shall not be excluded in determining the value of the thing involved.

¶ 13 The Federal and Colorado Constitutions grant defendants the right to confront witnesses against them. U.S. Const. amend. VI ; Colo. Const. art. II, § 16. This right is violated where the prosecution introduces testimonial hearsay evidence, unless the declarant is unavailable and the defendant had the prior opportunity to cross-examine the declarant. Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). A statement is testimonial if it was made or created with the "primary purpose of creating an out-of-court substitute for trial testimony." People v. McFee , 2016 COA 97, ¶ 34, 412 P.3d 848 (quoting Ohio v. Clark , 576 U.S. ––––, ––––, 135 S.Ct. 2173, 2180, 192 L.Ed.2d 306 (2015) ).

C. Analysis

¶ 14 We first consider whether the affidavit was inadmissible hearsay that does not come within the business records exception. Second, we consider whether the affidavit, if inadmissible under the business records exception, is nonetheless admissible under the statute relied upon by the People, section 18-4-414. Because of our resolution of these two issues, we need not consider whether the affidavit, if admissible, was admitted in violation of defendant’s confrontation rights.

1. Business Records Exception

¶ 15 We conclude that this affidavit was not admissible as a business record under the hearsay exception. As an initial matter, we note that the affidavit is hearsay because it was not "made by the declarant while testifying at the trial" and yet was "offered in evidence to prove the truth of the matter asserted," namely the value of the U-Haul trailer. CRE 801(c).

¶ 16 The purpose of the business records exception is to allow the admission of documents that, although hearsay, were created under such circumstances as to indicate reliability. Thus, to be a business record, the document must be made "at or near the time" of the matters recorded in it. CRE 803(6). "[T]he trustworthiness of the business record is based upon its nature as a routine entry in the ordinary operations of the enterprise ...." People v. Stribel , 199 Colo. 377, 379, 609 P.2d 113, 115 (1980) ; see also Henderson v. Master Klean Janitorial, Inc. , 70 P.3d 612, 617 (Colo. App. 2003). The fact that a document was recorded as a matter of routine at or about the time the time an event occurred, and prior to litigation, makes it less vulnerable to a lack of reliability.

¶ 17 However, here, although the witness testified that the affidavit appraised the value of the trailer as of the time of the theft, the affidavit itself was created a year and half after the theft of the trailer, and two months before trial. Moreover, on its face the document reflects it was requested by the witness. Therefore, the affidavit was not created "at or near the time" of the events recorded in it, CRE 803(6), and lacks the inherent reliability we ascribe to true contemporaneous business records.

¶ 18 Finally, the testimony of the witness did not lay an adequate foundation for a business record as she did not testify, and the trial court did not find, that the document was prepared by, or from information transmitted by, a person with knowledge of the matters recorded; or that the person who recorded the document did so as part of a regularly conducted business activity; or that it was the regular practice of that business activity to make such documents.

2. Applicability of Section 18-4-414(2)

¶ 19 On appeal, the People, with commendable candor, do not argue that the document was admissible as a...