August 26, 2019

Colorado Court of Appeals: Defendant Clearly Violated Protection Order When He Was Found by Police at Victim’s Apartment Complex

The Colorado Court of Appeals issued its opinion in People v. Bernard, Jr. on Thursday, May 23, 2013.

Protection Order Violation—Authentication of E-Mails Under CRE 901.

Defendant appealed the judgment of conviction entered following a jury verdict finding him guilty of one count of violating a protection order. The Court of Appeals affirmed the judgment.

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 him to vacate victim’s home.

The victim testified that defendant called her on August 15 to wish her a happy birthday and arranged to pick up some of his clothing that she was to leave outside her door. He arrived early on August 16 and banged and knocked on her doors and windows. He 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. She called her mother and then the police.

Defendant testified that he and the victim had spent the entire day together on August 15 and that late that night, they had an argument. He testified that the following morning, he left to smoke a cigarette and then tried to get back into the apartment.

The responding police officers testified that when they arrived, they found defendant in a basement storage room in the victim’s apartment complex. He was arrested and charged with one count of intimidation of a witness and one count of violation of a protection order. He was acquitted of the witness intimidation charge but found guilty and convicted of violating a protection order.

On appeal, defendant argued it was error to admit an e-mail into evidence because it was not properly authenticated. The Court disagreed.

An e-mail was sent to the victim from defendant’s e-mail account on the morning she was scheduled to testify in defendant’s trial, stating, “I told you it wuz us r nobody u getting ready 2 make the biggest mistake my God have mercy on Ur soul rip [sic].” The e-mail was admitted into evidence.

The Court held 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 circumstances of the case.

The victim testified the e-mail was a true and accurate copy of the e-mail that defendant had sent to her. She testified as to the time she received it and that she recognized the e-mail address of the sender as one belonging to defendant. Defendant did not contest that the sending e-mail address belonged to him. Based on this testimony, there was no abuse of discretion in admitting it into evidence.

Defendant also argued that the prosecution failed to present evidence proving beyond a reasonable doubt that he was guilty of violating a protection order. The Court disagreed. The record clearly showed that defendant was informed of the contents of the protection order, and the testimony of witnesses and of defendant clearly established a violation of that order. The judgment was affirmed.

Summary and full case available here.

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