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The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ronald Huey BERNARD, Jr., Defendant-Appellant

Colorado Court of Appeals2013-05-23No. Court of Appeals No. 12CA0495
305 P.3d 4332013 COA 79

Summary

Holding. The judgment of conviction for violating a protection order is affirmed. The trial court did not abuse its discretion in admitting the email into evidence, and the prosecution presented sufficient evidence beyond a reasonable doubt that Bernard violated the protection order.

Ronald Huey Bernard, Jr. was convicted of violating a protection order after an August 2011 incident at his ex-partner's apartment. A mandatory protection order had been entered on August 11, 2011, prohibiting Bernard from contacting, harassing, or communicating with the victim. On August 15-16, Bernard called the victim, arrived at her apartment in the early morning hours, and knocked loudly on doors and windows while making threats. The victim called police, and Bernard was arrested in a basement storage room of the apartment complex.

Bernard appealed on two grounds. First, he challenged the admission of an email sent to the victim on the morning she was scheduled to testify, arguing it was improperly authenticated. Second, he contended the prosecution presented insufficient evidence of his guilt. The appellate court rejected both arguments. On the authentication issue, the court established a test allowing emails to be authenticated either through testimony confirming they are what they purport to be, or through examination of their contents and circumstances. The victim testified she received the email from Bernard's account and recognized it as his threatening message. On the sufficiency of evidence, the court found substantial proof that Bernard knew of the protection order's contents and violated it by contacting and attempting to enter the victim's home.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Authentication of emails under Colorado Rules of Evidence 901
  • Sufficiency of evidence for protection order violation
  • Knowledge of protection order contents through in-custody video advisement
  • Interpretation of 'contacts' and related conduct under protection order statute

Procedural posture

Bernard appealed his jury conviction for violating a protection order, challenging the admission of email evidence and the sufficiency of the prosecution's evidence.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Opinion by

Judge TERRY

{1 Defendant, Ronald Huey Bernard, Jr., appeals the judgment of conviction entered following a jury verdict finding him guilty of one count of violating a protection order. We affirm.

12 As an issue of first impression, we consider the requirements for proper authentication of e-mails under CRE 901. We conclude that e-mails may be authenticated (1) through testimony explaining that they are what they purport to be; or (2) through consideration of distinctive characteristics shown by an examination of their contents and substance in light of the cireumstances of the case.

I. Background

18 On August 11, 2011, a mandatory protection order was entered, naming defendant as the restrained party and the victim and her son as the protected parties The order restrained defendant from harassing, molesting, intimidating, contacting, or communicating with the victim, and ordered defendant to vacate the victims home. He was advised of the order and its contents during an in-custody video advisement with a magistrate.

T4 The victim testified that, on August 15, defendant called her to wish her a happy birthday and arranged to pick up some of his clothing that she planned to leave outside her door. He arrived at her apartment in the early hours of August 16 and banged and knocked on her doors and windows. The victim testified that it sounded as if he were trying to get in. During the incident defendant told her that if she showed up in court the next day, one of them would not be making it back, and that he would kill her if she called the police. The victim called her mother and then called the police.

15 Defendant testified that he was living with the victim on the days leading up to this incident, and they had spent the entire day together on August 15. He said that late that night and into the early morning of August 16, the two had an argument, after which he left to smoke a cigarette. When he had finished, he returned and attempted to get back into the apartment.

T6 The responding police officers testified that when they arrived, they found defendant in a basement storage room in the victims apartment complex. Defendant was arrested, and later charged with one count of intimidation of a witness and one count of violation of a protection order. quitted of the witness intimidation charge, but was found guilty and convicted of violating a protection order. He was ac-

IIL Discussion

A. Admission of E-Mail into Evidence

17 Defendant first argues that the trial court erred in admitting an e-mail into evidence because it was not properly authenticated. We disagree.

18 We review evidentiary rulings, including foundation and authentication rulings, for an abuse of discretion. People v. Ibarra, 849 P.2d 33, 38 (Colo.1993); People v. Huehn, 58 P.3d 733, 736 (Colo.App.2002). A trial court abuses its discretion if its ruling is manifestly arbitrary, unreasonable, or unfair. People v. Melillo, 25 P.3d 769, 773 (Colo.2001).

T9 On the morning that the victim was scheduled to testify in defendants trial, an email was sent to the victim from defendants e-mail account. It stated, I told you it wuz us r nobody u gettin ready 2 make the biggest mistake my God have mercy on Ur soul rip [sic]. The e-mail was admitted into evidence.

110 Contrary to defendants argument, the e-mail was sufficiently authenticated. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. CRE 901(a); see also People v. Crespi, 155 P.3d 570, 574 (Colo.App.2006); Huehn, 53 P.3d at 736. We conclude that e-mails may be authenticated (1) through testimony explaining that they are what they purport to be, see-CRE 901(b)(1); or (2) through consideration of distinctive characteristics shown by an examination of their contents and substance in light of the cireumstances of the case, see-CRE 901(b)(d). See also United States v. Fluker, 698 F.3d 988, 999 (7th Cir.2012) (applying Fed.R.Evid. 901(b)(1) and (4), which are identical to CRE 901(b)(1) and (4), to emails); United States v. Siddiqui, 235 F.3d 1318, 1322 (lith Cir.2000) (applying Fed. R.Evid. 901(b)(4) to e-mails).

T11 When the victim was shown a hard copy of the e-mail, she testified that it was a true and accurate copy of the e-mail that defendant had sent to her. She stated that she received it at 1:02 a.m. on the morning of her testimony, and that she recognized the email address of the sender as one that belonged to defendant. She further testified that she understood the e-mail to be a threat that seared [her] a lot. Defendant did not contest that the sending e-mail address belonged to him. In addition, the contents of the e-mail indicated knowledge by the sender of defendants previous relationship with the victim, as well as knowledge that the victim was scheduled to testify later that day.

112 While the victim admitted that she had had access to defendants e-mail account in the past, any doubt about whether defendant had actually sent the e-mail went only to the weight of the evidence and not to its admissibility. See Crespi, 155 P.3d at 574.

1 13 We therefore conclude that the court did not abuse its discretion in admitting the e-mail into evidence.

B. Sufficiency of the Evidence

T 14 Defendant next argues that the prosecution failed to present sufficient evidence proving beyond a reasonable doubt that he was guilty of violating a protection order. We disagree.

1. Standard of Review

15 We review de novo whether the evidence was sufficient to support the convietion. Dempsey v. People, 117 P.3d 800, 807 (Colo.2005); People v. Randell, 2012 COA 108, ¶ 29, 297 P.3d 989.

T16 In assessing the sufficiency of the evidence, we must determine whether the evidence, both direct and cireunmstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a rational trier of fact that the defendant is guilty beyond a reasonable doubt. Dempsey, 117 P.3d at 807; People v. Davis, 2012 COA 56, ¶ 12, 296 P.3d 219. The prosecution is given the benefit of every reasonable inference that might fairly be drawn from the evidence. People v. Poe, 2012 COA 166, ¶ 14, - P.3d -, 2012 WL 4829493. And it is the fact finder, not the reviewing court, that determines the credibility of witnesses, weighs the evidence, and resolves conflicts, inconsistencies, and disputes in the evidence. Id.

2. Analysis

117 A person commits the crime of violation of a protection order if (1) he or she has been personally served with a protection order that identifies the person as a restrained person or has otherwise acquired from the court or law enforcement personnel actual knowledge of the contents of [the] protection order, and (2) he or she [clon-tacts, harasses, injures, intimidates, molests, threatens, or touches the protected person or protected property or violates any other provision of that protection order. § 18-6-808.5(1)(a), C.R.S.2012.

18 There is no dispute that a protection order was issued, which identified defendant as the restrained person and the victim and her son as the protected persons. The order prohibited defendant from harassing, molesting, intimidating, or contacting the victim, and ordered defendant to vacate and stay away from her home. The order bore a stamp saying, Defendant advised on the ree-ord. Defendant testified that he knew about the protection order and conceded that he was advised of its existence during a video conference with the court. He claims, however, that he was not informed of its specific provisions.

T 19 Contrary to defendants argument, the record shows that he was informed of the contents of the protection order through a video advisement from a magistrate while he was previously in custody. The trial court accepted the order into evidence at trial. The court also took judicial notice of the protection order and instructed the jury that defendant was advised of the mandatory protection order and was advised of the conditions set forth in that mandatory protection order.

120 Several witnesses also offered testimony showing that although the order was in place, defendant called the victim on August 15, went to her apartment in the early morning of August 16, knocked and banged on her windows and doors, and attempted to get into her apartment. He was arrested at the victims apartment complex after the victim called the police. Moreover, defendants own testimony-that he was living in the apartment with the victim at the time the incident took place and spent the entire day of August 15 with her-establishes that he violated the order.

421 We therefore conclude that sufficient and substantial evidence was presented to support the jurys conclusion that defendant was guilty beyond a reasonable doubt of violation of a protection order. See Dempsey, 117 P.3d at 807.

Judge ROMAN and Judge ROTHENBERG concur.