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People v. Abad.

2021 COA 6. No. 18CA0775. Criminal Law—Sexual Exploitation of a Child—Authentication—Evidence—Hearsay—Constitutional Law—Double Jeopardy—Multiplicity.

January 28, 2021

Investigator Donahue received a cyber tip from the National Center for Missing and Exploited Children about photographs uploaded to a Dropbox account. Based on information obtained during Donahue’s investigation, police obtained a search warrant for defendant’s home, where they seized two cell phones containing sexually exploitative images and videos of children. A jury convicted defendant of eight class 4 felonies and one class 6 felony of sexual exploitation of a child.

On appeal, defendant contended that the district court erred by admitting the images found in Dropbox because they were not properly authenticated. Here, Donahue testified that he sent a records production request to Dropbox, which responded with the subscriber information for the account. It included defendant’s name, an email address, a list of IP addresses, and a thumb drive with the contents of the account. Donahue’s testimony was sufficient to authenticate the printed images as sexually exploitative images of children from the Dropbox account. Accordingly, the district court did not abuse its discretion by admitting the Dropbox images.

Defendant also argued that the district court erred by admitting certain evidence related to the cell phones. The district court did not abuse its discretion by allowing witness testimony about the data extraction reports of the cell phones or by admitting printed images from the phones as evidence.

Defendant further contended that his nine convictions were multiplicitous in violation of double jeopardy. Consistent with People v. Bott, 2020 CO 86, simultaneous possession of more than 20 sexually exploitative items constitutes a single offense, and by extension, simultaneous possession of more than one sexually exploitative video constitutes a single offense. Here, the fact that sexually exploitative material was found on three different electronic devices or storage sites, standing alone, does not establish factually distinct offenses justifying multiple convictions and punishments. Consequently, defendant’s convictions were multiplicitous and violate double jeopardy.

The convictions were merged and the case was remanded for resentencing, if necessary. The judgment was otherwise affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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