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People v. Rodriguez.

2021 COA 38. No. 18CA0007. Criminal Law—Attempted First Degree Murder—First Degree Assault—Best Evidence Rule—Evidence—Sentence Enhancer—Pregnancy—Jury.

March 25, 2021

Defendant assaulted his pregnant girlfriend. During the assault, the victim was able to call 911, and a portion of the call was recorded. The 911 recording was admitted at trial, and the responding officer testified about the statements heard on it. A jury found defendant guilty of attempted first degree murder and first degree assault.

On appeal, defendant argued that the officer’s testimony as to the content of the recorded 911 call violated the best evidence rule. However, the original 911 recording was admitted into evidence, so the CRE 1002 originality requirement was satisfied, and the rule did not prevent further testimony regarding the content of the 911 recording. Further, even assuming the officer’s testimony constituted an unendorsed expert opinion in the guise of lay opinion testimony and the court erred in admitting it, any error in this regard was not plain.

Defendant also argued that the trial court erred by admitting evidence of the victim’s pregnancy. He contended that the pregnancy sentencing enhancer had to be determined by the court, not the jury, so evidence of the victim’s pregnancy had no probative value at trial. The fact of a victim’s pregnancy and the defendant’s knowledge of it must be found by a jury based on proof beyond a reasonable doubt. Here, evidence that the victim was 26 weeks pregnant at the time of the assault was highly probative and therefore admissible.

Defendant also contended that the court abused its discretion by allowing the prosecutor to comment during opening statement on the victim’s pregnancy and to refer to the police officer during opening and closing statements as a hero. The victim’s pregnancy was a fact the prosecutor intended to prove at trial, and the “hero” comments were brief and did not relate to a contested issue in the case. Moreover, the evidence of guilt was overwhelming. Therefore, the court did not abuse its discretion by allowing the comments.

The judgment was affirmed.

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

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