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People v. Quillen.

2023 COA 22. No. 20CA1326. Evidence—Hearsay Exceptions—CRE 803(6)—CRE 902(11)—Confrontation Clause—Expert Testimony—Allocution.

March 9, 2023

Goodman, a hotel manager, contacted police to investigate after multiple identity documents and handwritten notes were discovered in the hotel. Goodman thought the handwriting in the notes matched that of Quillen, a night shift employee. Police contacted individuals from the found identity documents, including R.S., who reported that his credit card had been used for Lyft rides that he didn’t take. Police obtained Lyft records connecting R.S.’s credit card to a Lyft account associated with Quillen’s phone number and email address, and this Lyft account showed rides to and from addresses associated with Quillen. Quillen was charged with four counts of identity theft and one count of possession of an identification document. The jury found Quillen guilty of two counts of identity theft as to R.S. but acquitted her of the remaining charges. The trial court sentenced Quillen to four years of supervised probation.

On appeal, Quillen argued that the trial court erred by admitting business records with an affidavit from a records custodian because the affidavit was insufficient to admit the records under CRE 803(6), the business records hearsay exception, and CRE 902(11), the self-authentication rule. The requirements of CRE 803(6) can be shown by a certification from a records custodian that complies with CRE 902(11). Under CRE 902(11), a record is self-authenticating if it contains an affidavit that the record (1) was made at or near the time of the occurrence of the matters and was created by a person with knowledge of those matters, (2) was kept in the course of regularly conducted activity, and (3) was made by the regularly conducted activity as a regular practice. Here, the signed and notarized declaration from Lyft’s records custodian complied with CRE 902(11). Further, to the extent that Quillen argued that the court erred by admitting the portions of the Lyft letter that didn’t list the account information, any error was harmless.

Quillen also contended that the trial court violated her Confrontation Clause rights by admitting Lyft account information and ride data records because they were testimonial. A statement is testimonial when, viewed objectively, it is made for purposes of prosecuting a crime and is later used at trial to substitute for live testimony. Here, Lyft’s records custodian certified that the “statements” Quillen challenged as testimonial were prepared by Lyft staff or agents in the ordinary course of business and performance of their duties. Accordingly, the data was not testimonial for Confrontation Clause purposes.

Quillen further argued that the trial court erred by qualifying Detective Allen as an expert because the prosecution’s case did not require expert testimony and Detective Allen gave none. Even if the trial court did not need to qualify Detective Allen as an expert, any error was harmless because (1) the evidence supporting Quillen’s identity theft conviction for improperly possessing and using R.S.’s credit card was strong, (2) the split verdict shows the jurors parsed the evidence and were not unduly persuaded by improper evidence, and (3) the jurors were instructed that they were the sole judges of witness credibility and the weight to be given to that testimony. Accordingly, any error in qualifying Detective Allen as an expert didn’t substantially influence the verdict or impair the trial’s fairness.

Quillen also asserted that the trial court erred by admitting her Division of Motor Vehicles record because it contained impermissible other act evidence under CRE 404(b) and the prosecution failed to give proper notice of such evidence. However, she waived this argument in the trial court.

Lastly, Quillen contended, and the People agreed, that the trial court erred by not giving her an opportunity to allocute at sentencing. Here, the record shows that the court did not clearly allow Quillen an opportunity to speak on her own behalf. Therefore, the court erred.

The sentence was vacated and the case was remanded for resentencing. The judgment of conviction was affirmed in all other regards.

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

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