Police seized two cell phones from defendant during a search incident to his arrest. Police subsequently obtained a warrant to search the phones and discovered an incriminating message that was sent via Facebook Messenger. Police then obtained a warrant for Facebook and orders for production of records to cell phone providers. Defendant moved to suppress the search warrant and the evidence seized under the warrant and orders. The trial court granted the motion.

Police later obtained another warrant and re-downloaded information from defendant’s phone. Defendant again moved to suppress the evidence. The trial court denied the motion on grounds that the second warrant to search the phones satisfied the independent source doctrine.  A jury convicted defendant of first degree murder (both after deliberation and felony murder), aggravated robbery, and related crimes. The trial court adjudicated him a habitual criminal and sentenced him accordingly.

On appeal, defendant contended that the trial court erroneously applied the independent source doctrine to allow the prosecution to circumvent the first suppression order. The independent source doctrine allows for the admission of unconstitutionally obtained evidence if the prosecution establishes that the evidence was also discovered by means independent of the illegality. This doctrine can apply to evidence seized under a valid warrant issued after the evidence was first discovered during execution of an invalid warrant if the prosecution shows that the second warrant was truly independent of information obtained from the initial search.  The record here supports the trial court’s findings that the second warrant was not based on facts learned in the unlawful search, and the officer’s decision to seek the second warrant was not motivated by information obtained during the unlawful search. Therefore, the trial court’s denial of the suppression motion was proper.

Defendant also argued that the prosecution failed to authenticate the Facebook evidence (including his apparent confession) and claimed the evidence was inadmissible hearsay. Here, the record includes evidence that the sending account belonged to defendant, messages referred to travel plans that only he knew, the “confession” message originated from a phone he owned, and only he had access to the phone when the message was sent. Therefore, the prosecution sufficiently authenticated the Facebook messages. Further, the content of the messages was not hearsay because it included defendant’s statements and other statements that provided context for defendant’s statements.

Defendant further argued that the trial court violated his constitutional rights to present evidence and to confront the prosecution’s evidence by excluding evidence he offered to impeach a witness’s credibility. However, defendant did not challenge the trial court’s ruling that the document he wished to admit was inadmissible hearsay, and he failed to demonstrate that any evidentiary error rose to the level of constitutional error. As a result, there was no constitutional violation.

Defendant further contended that the trial court erred by excluding a ledger that was admissible under the business records exception to the hearsay rule. The ledger was cumulative of other evidence, so there was no constitutional error.

Defendant next argued that the trial court reversibly erred by permitting the lead investigator to state her opinion that the motive for the murder was robbery. Here, the challenged statement was an isolated one in a lengthy trial that did not substantially influence the verdict or affect the fairness of the trial. Thus, the trial court did not err.

Defendant also alleged prosecutorial misconduct. The prosecutor’s rock-paper-scissors analogy in reference to the jury’s decision making process was not so prejudicial as to cast serious doubt on the reliability of the conviction.

Defendant also contended that the trial court erred by denying his motion for mistrial after a juror fainted while viewing autopsy photos of the victim. The record supports the trial court’s determination that the jury, including the juror who fainted, would not base its decision on sympathy toward the victim or prejudice against defendant. The trial court did not err in denying the motion for mistrial.

Lastly, defendant argued for the first time on appeal that Colorado’s habitual criminal statutes are unconstitutional on their face and as applied because they authorize a judge, rather than a jury, to make the factual findings necessary for a habitual criminal adjudication. This claim is foreclosed by Colorado Supreme Court precedent. Further, the alleged error was not obvious given the many cases rejecting this claim.

The judgment of conviction and sentence were affirmed.

During a large fight at a park, Vigil pointed a BB gun at the victim and threatened to shoot him. A police officer responding to the scene saw a person, later identified as defendant, walk away from the fight and put an object into a trash can. Another officer subsequently searched the trash can and found a BB gun. Vigil was arrested and pleaded guilty to menacing. Defendant was arrested and charged as an accessory to Vigil’s menacing. At trial, the court admitted evidence of Vigil’s plea agreement, and defendant was found guilty as charged.

On appeal, defendant contended that the trial court erred by permitting the People to use Vigil’s conviction as substantive evidence of defendant’s guilt during opening statement, the prosecution’s case-in-chief, and closing argument. The general rule barring the use of a codefendant’s guilty plea as substantive evidence of the defendant’s guilt does not apply, however, where the defendant is charged only with acting as an accessory to the codefendant’s offense. Thus, there was no error.

Defendant next contended that the trial court erred by denying repeated requests for a mistrial based on the prosecutor’s references to his refusal to talk to a police officer at the scene. Defendant was not under arrest or in custody when he told police he did not want to answer questions, and his pre-arrest silence could be used to impeach him. Further, the trial court sustained defense counsel’s objection to an investigating officer’s testimony about defendant’s silence, and defense counsel declined the trial court’s offer to further instruct the jury. Therefore, the trial court properly denied the motions for mistrial.

Defendant also argued that the prosecutor committed misconduct during closing argument by commenting on his lack of response to the investigating officer. However, the parties stipulated that defendant refused to give his name Thus, there was no plain error.

Alternatively, defendant argued that the aggregate impact of the trial court’s errors warrants reversal under the cumulative error doctrine. Because there was no error here, there can be no cumulative errors.

The judgment was affirmed.

Father’s parent-child legal relationship with the children was terminated after he failed to comply with his treatment plan. Father appealed and designated 32 hearing transcripts for the appeal. The juvenile court was not able to produce two of the transcripts, and the appellate court ordered father to file his opening brief without these transcripts.

On appeal, father contended that the Court of Appeals violated his due process rights when it ordered him to file his opening brief without access to the two transcripts. The appellate court has the discretion to limit the record on appeal to its material portions, and father did not demonstrate that the missing transcripts were material. The Court had ample information to determine father’s one claim on appeal.

Father also argued that the Court violated his due process rights when it ordered him to address the materiality of the missing transcripts in his opening brief. He asserted that the lack of these transcripts prevented his counsel from providing effective assistance on appeal and rendered the process fundamentally unfair. Here, the record was sufficiently complete; it included the case file, full transcripts of the termination hearing, and minute orders of the hearings that were not transcribed. Further, the juvenile court did not rely on the untranscribed hearings in its termination order, and father made no showing that the unavailability of the complete record resulted in deficient performance by his appellate counsel. Accordingly, father’s due process rights were not violated.

            Father also contended that the juvenile court reversibly erred when it found that there was no less drastic alternative to termination. The record supports the juvenile court’s findings that father did not comply with his treatment plan and was unfit, and after taking the children’s physical, mental, and emotional conditions and needs into account, there were no less drastic alternatives to termination.

The judgment was affirmed.

American Multi-Cinema, Inc. (AMC) generates revenue by exhibiting motion pictures and selling admission tickets to the public. AMC’s master licensing agreements (MLAs) authorize it to exhibit motion pictures for a licensing fee, and AMC then pays distributors a percentage of its admission sales. AMC paid the City of Aurora (City) a use tax on its MLA fees since it began operation. AMC applied for two refunds with the City for periods of time during which it used digital files, as opposed to 35-millimeter film reels, to exhibit motion pictures. The City and the City’s finance director denied AMC’s refund claims, and the district court upheld the City’s use tax.

On appeal, AMC argued that the district court erred by concluding that the true object of the MLAs was to obtain tangible personal property. AMC did not dispute that the data files are tangible personal property but argued that the true object of the MLAs is to obtain the nontaxable intangible rights to exhibit motion pictures. However, without the transfer of the actual film, the license to exhibit it would be valueless. Here, the true object of the licensing agreements is to obtain, for the designated timeframe, tangible personal property (the date files) that is inseparable from its intangible attributes.

 AMC also argued that it is exempt from the use tax because, even assuming that the true object of the MLAs is to obtain the tangible data files, the purpose of the MLAs is to acquire the data files for resale to its movie patrons. A theater’s exhibition of motion pictures is not a resale; AMC does not resell the digital files but exhibits motion pictures for profit. Thus, it is the final consumer and is not exempt from the City’s use tax.

The judgment was affirmed.

Father admitted that his child was dependent and neglected, and the juvenile court adopted a treatment plan for him. Father was later arrested on several offenses, and under a plea agreement was sentenced to six years in the custody of the Department of Corrections. Father’s parental rights were thereafter terminated.

On appeal, father contended that the juvenile court failed to comply with the Indian Child Welfare Act (ICWA). Here, father indicated that the child didn’t have any Indian heritage. The Montrose County Department of Health and Human Services (Department) communicated with the child’s maternal grandfather, who said he was a registered member of a Choctaw tribe. The Department then sent notices to the three federally recognized Choctaw tribes. Two of those tribes responded that grandfather wasn’t a member or eligible to be one, and the third tribe did not respond. The Department also sent information to the Bureau of Indian Affairs, but it responded that it couldn’t identify a tribe. Grandfather later clarified that he was enrolled in a federally unrecognized tribe. While the juvenile court’s inquiry and notice procedures were insufficient under the ICWA, the errors were harmless because grandfather’s claim to be a registered member of a Choctaw tribe was the sole basis for having reason to know that the child possibly had Indian heritage, and when grandfather clarified his enrollment in a federally unrecognized tribe, further notice wasn’t required.

Father also contended that his trial counsel rendered ineffective assistance. However, father did not allege with any specificity how counsel’s performance prejudiced him or what evidence counsel should have elicited that would have resulted in a different outcome to the proceeding. Thus, counsel’s conduct can’t be the basis for a valid ineffective assistance of counsel claim.

The judgment was affirmed.