People v. Raehal , 2017 Colo. App. LEXIS 199 ( 2017 )

COLORADO COURT OF APPEALS 2017COA18
Court of Appeals No. 15CA0414
Weld County District Court Nos. 12CR424 & 12CR506
Honorable Shannon D. Lyons, Judge
Honorable Todd L. Taylor, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Bradford Steven Raehal,
Defendant-Appellant.
JUDGMENT AFFIRMED, SENTENCED VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE HARRIS
Lichtenstein and Richman, JJ., concur
Announced February 23, 2017
Cynthia H. Coffman, Attorney General, Patricia R. Van Horn, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Krista A. Schelhaas, Alternate Defense Counsel, Littleton, Colorado, for
Defendant-Appellant
¶1 Bradford Steven Raehal was convicted of multiple sexual
offenses in connection with his sexual abuse of two boys, S.F. and
J.H. On appeal, he argues that the district court erred in granting
the prosecution’s joinder motion, denying his motion to suppress
evidence, and admitting unproven prior acts evidence under CRE
404(b).
¶2 We reject each of these contentions, and therefore affirm
Raehal’s convictions. However, Raehal also contends that the court
erroneously designated him a sexually violent predator without
making the necessary findings. We agree, and thus we vacate this
designation and remand for appropriate findings.
I. Background
¶3 Raehal was living in the basement of S.F.’s family home when
he was arrested for failing to register as a sex offender. Shortly
after the arrest, S.F. disclosed that Raehal had sexually assaulted
him on numerous occasions.
¶4 During a forensic interview, S.F. detailed the assaults and
reported that Raehal had taken nude pictures of him on a digital
camera. Police officers thereafter obtained and executed a search
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warrant for Raehal’s residence and seized the digital camera.
Forensic analysis of the camera recovered thirteen previously
deleted pictures of S.F. and Raehal engaged in sexual activity.
¶5 J.H., who also lived at S.F.’s house, initially denied that he
was sexually assaulted by Raehal, but he later reported three
separate incidents of sexual abuse. While the boys each reported
different types of sexual contact, both S.F. and J.H. alleged that
abuse occurred in Raehal’s semitrailer, that Raehal had provided
them with videogames, and that he initiated the contact by rubbing
lotion on their backs.
¶6 Raehal was initially charged in separate cases for the incidents
with S.F. (12CR424) and the incidents with J.H. (12CR506). The
prosecution moved to join the cases before trial, and the district
court granted the motion over defense counsel’s objection.
¶7 After a jury trial, Raehal was convicted of two counts of sexual
assault on a child by one in a position of trust (one for acts against
S.F. and one for acts against J.H.) and two counts of sexual assault
on a child as part of a pattern of abuse (one for acts against S.F.
and one for acts against J.H.). He was further convicted of two
2
counts of sexual exploitation of a child for the possession and
production of sexually exploitive material relating to the pictures
taken of S.F. In a separate proceeding, Raehal was adjudicated a
habitual sex offender against children. The district court
designated him a sexually violent predator and sentenced him to
112.5 years to life in the custody of the Department of Corrections.
II. Joinder
¶8 Raehal contends that the district court erred in joining the
cases alleging abuse of S.F. and J.H. While he admits that S.F.’s
testimony would have been admissible as CRE 404(b) evidence in
the case relating to J.H., he insists that the cases were improperly
joined because the explicit photographs depicting Raehal and S.F.
engaged in sexual acts would not have been admissible in J.H.’s
trial.
¶9 Although Raehal objected to the pretrial joinder of the cases,
the People contend that Raehal waived this claim because he did
not renew his objection during trial. See People v. Bondsteel, 2015
COA 165, ¶ 27 (cert. granted Oct. 31, 2016). We disagree, and
conclude that the claim was adequately preserved.
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¶ 10 The division in Bondsteel held that an objection to joinder is
unpreserved if not renewed at trial, id., but the division also
acknowledged that its holding departed from nearly fifteen years of
contrary precedent. See People v. Gross, 39 P.3d 1279, 1282 (Colo.
App. 2001) (requiring only a pretrial objection to preserve the issue).
Raehal’s trial preceded the Bondsteel decision. Accordingly, we
decline to impose its new rule on Raehal. See Bondsteel, ¶ 30
(recognizing that, “[t]o hold that the issue is waived, despite this
precedent, could be a retroactive application of a new rule, which
might implicate due process”).
¶ 11 A trial court may order two or more criminal complaints to be
tried together if the offenses could have been joined in a single
complaint. Crim. P. 13. Two or more offenses may be charged in
the same charging document if the offenses are of the same or
similar character or are based on two or more connected acts or
transactions or parts of a larger scheme or plan of action. Crim. P.
8(a)(2).
¶ 12 We review a decision concerning the joinder of separate
charges for an abuse of discretion. People v. Curtis, 2014 COA 100,
4
¶ 14. An abuse of discretion occurs when the joinder causes actual
prejudice as result of the jury’s inability to separate the facts and
legal theories applicable to each offense. Id. at ¶ 15; People v.
Gregg, 298 P.3d 983, 985-86 (Colo. App. 2011). There is no
prejudice where evidence of each offense would be admissible in
separate trials. Gregg, 298 P.3d at 986.
¶ 13 Pursuant to CRE 404(b), evidence of other crimes, wrongs, or
acts is inadmissible if its relevance depends on an inference that
the person has a bad character and acted in conformity with that
character. However, this evidence may be admissible for other
purposes. CRE 404(b); see also § 16-10-301(1), C.R.S. 2016
(permitting the prosecution to introduce evidence of other sexual
offenses for any purpose other than propensity because “such
evidence of other sexual acts is typically relevant and highly
probative”).
¶ 14 Raehal concedes that, under CRE 404(b), S.F.’s testimony
describing the sexual assaults would have been admissible in a
separate trial on the charges related to J.H., but he insists that the
photographs depicting the abuse would not have been admissible.
5
According to Raehal, the court should have conducted a separate
Rule 404(b) analysis with respect to the photographs and
determined that the sexual conduct shown in the photographs was
not sufficiently similar to the sexual conduct described by J.H. For
example, Raehal says, S.F. and J.H. both testified that Raehal
rubbed lotion on them as a prelude to sexual activity, but the
photos did not depict that particular conduct.
¶ 15 We disagree that the district court was required to separately
analyze the photos under CRE 404(b). Raehal does not allege that
the taking of the photographs was an independent prior bad act
under Rule 404(b). The photographs were admitted not to prove a
common scheme or plan but simply to corroborate S.F.’s testimony.
See People v. Roark, 643 P.2d 756, 762 (Colo. 1982) (“[P]hotographs
are admissible to depict graphically anything a witness may
describe in words.”); see also People v. Herrera, 2012 COA 13, ¶ 33.
When photographs are admitted for this purpose, the admissibility
test articulated in People v. Spoto, 795 P.2d 1314, 1318 (Colo.
1990), is inapplicable.
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¶ 16 Accordingly, we need only address Raehal’s claim that the
photographs were unduly prejudicial under CRE 403. Pursuant to
Rule 403, “evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.” CRE
403. Photographs are not inadmissible “merely because they
present vividly to the jurors the details of a shocking crime.” People
v. Villalobos, 159 P.3d 624, 630 (Colo. App. 2006) (quoting Martinez
v. People, 124 Colo. 170, 177, 235 P.2d 810, 814 (1951)). Nor are
they rendered inadmissible because these “grim details . . . might
shock or otherwise upset the trier of fact.” People v. Drake, 748
P.2d 1237, 1248 (Colo. 1988). Evidence is only unfairly prejudicial
if it has an undue tendency to suggest a decision on an improper
basis such as sympathy, hatred, contempt, retribution, or horror.
People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002). While the
photographs are undoubtedly upsetting, given their probative value
in corroborating S.F.’s testimony and proving the sexual assault, we
cannot say that they are unduly inflammatory in the context of a
sexual assault on a child case. See People v. Dunlap, 975 P.2d 723,
747 (Colo. 1999) (Photos of entry wounds “were not particularly
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shocking in the context of a murder.”); People v. Guffie, 749 P.2d
976, 983 (Colo. App. 1987) (probative value outweighed prejudice of
graphic pictures of homicide victim, even though witness had
already testified to the contents of the photos).
¶ 17 Raehal also contends that the district court further erred by
failing to provide an instruction limiting the purposes for which the
jury could consider his conduct against S.F. in determining guilt as
to J.H. See § 16-10-301(4)(d). However, because defense counsel
did not request such an instruction when the evidence was
introduced, we analyze this issue under the plain error standard of
review. People v. Underwood, 53 P.3d 765, 771 (Colo. App. 2002).
Under plain error, we will reverse only if the error was obvious and
“undermined the fundamental fairness of the trial itself so as to
cast serious doubt on the reliability of the judgment of conviction.”
People v. Miller, 113 P.3d 743, 750 (Colo. 2005) (quoting People v.
Sepulveda 65 P.3d 1002, 1006 (Colo. 2003)).
¶ 18 Even if we assume the court erred by failing to give a limiting
instruction, any error did not affect the reliability of the judgment of
conviction.
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¶ 19 Although it did not provide a limiting instruction directing the
jury not to consider any evidence of other acts as propensity
evidence, the district court specifically instructed the jury that
“[e]ach count charges a separate and distinct offense and the
evidence and law applicable to each count should be considered
separately, uninfluenced by your decision as to any other count.”
We presume the jury followed this instruction, which similarly
limited the jury’s consideration of the evidence. See Curtis, ¶ 23.
¶ 20 In sum, because any error could not have cast serious doubt
on the reliability of the judgment of conviction,reversal is not
required.
III. Seizure and Subsequent Search of Digital Camera
¶ 21 Raehal further contends that the district court erred in
denying his motion to suppress the explicit photographs because
the digital camera on which they were discovered was outside the
scope of the search warrant. In the alternative, he asserts that even
if the camera was properly seized, it was illegally searched because
it was not analyzed until months later, long after the warrant had
9
expired. We reject both contentions and conclude that the district
court did not err in denying Raehal’s motion to suppress.
¶ 22 Appellate review of a ruling on a motion to suppress presents a
mixed issue of fact and law. People v. Pitts, 13 P.3d 1218, 1221-22
(Colo. 2000). While we will defer to a trial court’s findings of fact
that are supported in the record, the trial court’s legal conclusions
are subject to de novo review. Id. at 1222.
¶ 23 The search warrant specifically authorized the seizure of “any
and all computer systems and computer equipment,” “any and all
storage media,” and “any and all computer peripheral devices
attached or unattached to the computer to include but not limited
to . . . physical devices which serve to transmit or receive
information to and from the computer.” The warrant also
authorized the officers to look for and seize “images, video, or
drawings which portray child pornography.” In addition, the
warrant affidavit reported S.F.’s statement that the defendant had
taken digital pictures of him with a gray or silver digital camera.
¶ 24 In deciding whether items discovered during the execution of a
search warrant are within the scope of the warrant, police officers
10
are not obliged to interpret its terms narrowly. People v. Gall, 30
P.3d 145, 153 (Colo. 2001).
¶ 25 We agree with the district court that digital cameras “are
certainly physical devices that can transmit and receive information
from computers,” and, therefore, the digital camera seized from
Raehal’s residence was within the scope of the search warrant.
¶ 26 Moreover, when executing a warrant, officers may search the
location, including any containers or “technological containers” at
that location that are reasonably likely to contain items described in
the warrant. Id. (upholding seizure of computer because it was
reasonably likely to serve as a “container” for writings). Here, the
officers were authorized to search for images of child pornography,
and the digital camera was reasonably likely to serve as a
“technological container” for these images, especially in light of the
victim’s statement, contained in the affidavit, that Raehal had taken
pictures of him with a digital camera. Accordingly, the camera was
properly seized pursuant to the warrant.
¶ 27 Raehal asserts, in the alternative, that even if the camera was
lawfully seized, it was unlawfully searched because the forensic
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analysis occurred outside the statutory fourteen-day time frame for
executing the warrant. See § 16-3-305(6), C.R.S. 2016; Crim. P.
41(d). According to his argument, because the original warrant had
expired before the camera was searched, unless the police obtained
a second warrant, the later analysis of the camera constituted an
unconstitutional warrantless search.
¶ 28 The warrant, though, was executed within the fourteen-day
deadline. The requirement that search warrants be executed
promptly prevents officers from conducting searches long after the
probable cause supporting the search has expired. See People v.
Russom, 107 P.3d 986, 991 (Colo. App. 2004); see also United
States v. Brewer, 588 F.3d 1165, 1173 (8th Cir. 2009). But in this
case, when the warrant was executed, the officers still had probable
cause to believe that the camera would be found in Raehal’s house
and that it would contain images of child pornography.
¶ 29 The officers were not required to conduct an analysis of the
digital camera at Raehal’s house. Typically, search warrants which
specifically authorize the seizure of technology contemplate the later
12
search of that media. See United States v. Gregoire, 638 F.3d 962,
967-68 (8th Cir. 2011).1
¶ 30 And a second warrant to search properly seized media is not
necessary where the evidence obtained in the search does not
exceed the probable cause articulated in the original warrant. See
United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012); see also
United States v. Grimmett, 439 F.3d 1263, 1268-69 (10th Cir. 2006).
Here, based on an affidavit establishing probable cause, the search
warrant expressly authorized the examination of any computer and
storage devices for images of child pornography. Because the
images could not have been altered or deleted once the camera was
seized, probable cause for the search did not dissipate in the
interval between the initial seizure of the camera and its
subsequent search. Brewer, 588 F.3d at 1173 (Because the
evidence at issue was “electronically-stored files in the custody of
1 We note the Federal Rules of Criminal Procedure analog to Crim.
P. 41(d) was amended in 2009 to state that, “[u]nless otherwise
specified, the warrant authorizes a later review of the media or
information consistent with the warrant. The time for executing the
warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or
on-site copying of the media or information, and not to any later
off-site copying or review.” Fed. R. Crim. P. 41(e)(2)(B).
13
law enforcement[,] . . . the several months’ delay in searching the
media did not alter the probable cause analysis.”); United States v.
Burgess, 576 F.3d 1078, 1097 (10th Cir. 2009) (“Probable cause to
search was unaffected by the delay and the reasons to search the
computer and hard drives did not dissipate during the month and a
half the items sat in an evidence locker.”); United States v. Syphers,
426 F.3d 461, 469 (1st Cir. 2005) (One-year delay in searching
computer after it was seized did not invalidate the search because
the delay did not “cause[] a lapse in probable cause.”).
¶ 31 The cases Raehal cites do not undercut this rule. In those
cases, a second warrant to search electronic media was required
because, while conducting the subsequent search of the media,
evidence of a different crime was inadvertently uncovered.
Generally, to continue to search for evidence of this second crime, a
second search warrant is required. See United States v. Carey, 172
F.3d 1268, 1270 (10th Cir. 1999) (the original warrant authorized a
search of the computer for evidence related to illegal drug sales;
when the officers found evidence of another crime — possession of
child pornography — another warrant was needed to search for this
14
evidence); Grimmett, 439 F.3d at 1268 (“[L]aw enforcement may not
expand the scope of a search beyond its original justification.”).
Where, as here, the evidence uncovered on the media was within
the scope of the original search warrant, the original warrant is
sufficient to authorize the search. See Grimmett, 439 F.3d at 1268(distinguishing Carey and concluding that the original warrant
authorized the subsequent computer search because the evidence
uncovered was within the original justification for the search and
seizure of the computer).
IV. Factual Predicate for CRE 404(b) Evidence
¶ 32 At trial, pursuant to Rule 404(b), the prosecution presented
evidence of two previous incidents in which Raehal had sexually
assaulted minor boys. Raehal contends that this evidence was
improperly admitted because the prosecution’s offer of proof was
inaccurate. We are not persuaded.
¶ 33 Before a trial court may admit other acts evidence, it must
first determine whether the prosecution has established by a
preponderance of the evidence that the other act occurred and the
defendant committed it. § 16-10-301(4)(b); People v. Gallegos, 226
15
P.3d 1112, 1116 (Colo. App. 2009). This determination may be
made based on an offer of proof. § 16-10-301(4)(c).
¶ 34 Prior to trial, the prosecution moved to admit evidence,
pursuant to section 16-10-301 and Rule 404(b), that Raehal had
previously sexually assaulted two young boys. In the offer of proof,
the prosecution summarized the boys’ statements to police, which
alleged that Raehal had sexually assaulted them after inviting them
to his home to play video games. The detective’s reports were
attached to the offer of proof.
¶ 35 Shortly after the boys’ disclosures to the police, Raehal was
charged with two counts of sexual assault on a child and one count
of sexual assault on a child as part of a pattern of abuse. Raehal
was convicted of one count of sexual assault on a child, and a
mistrial was declared on the other two counts.2
¶ 36 In the motion to admit the Rule 404(b) evidence, the
prosecutor accurately stated that these acts “resulted in a
2 While the pattern of abuse count was dismissed by the court, the
second sexual assault on a child count was dismissed by the
prosecution after the victim’s mother stated that she did not want
to put her child through another trial.
16
conviction for Sexual Assault on a Child in Adams County case
95CR1806.” However, less accurately, she also averred that “[t]he
defendant has been convicted of the offenses set forth in the Offer of
Proof.”
¶ 37 Despite the imprecise nature of this second statement, the
court was not under any illusions that Raehal was convicted of both
counts of sexual assault on a child arising out of the offer of proof.
Rather, the court explicitly acknowledged that Raehal was only
convicted of one count arising from these allegations, but
nonetheless determined that the offer of proof was sufficient to find,
by a preponderance of the evidence, that all of the prior acts
occurred. See Kinney v. People, 187 P.3d 548, 554 (Colo. 2008)
(“Prior act evidence can be admitted even though the defendant was
acquitted of the criminal charges arising out of the act.”).
Accordingly, the district court’s determination that the prior acts
occurred was not based on erroneous information. Because Raehal
does not otherwise challenge the admission of this evidence, we
perceive no error.
17
V. Designation as a Sexually Violent Predator
¶ 38 Finally, Raehal contends, and the People concede, that the
district court erred by designating him a sexually violent predator
without first making specific findings of fact on the record.
¶ 39 Section 18-3-414.5(2), C.R.S. 2016, requires district courts to
make specific findings of fact regarding whether a defendant is a
sexually violent predator. See People v. Loyas, 259 P.3d 505, 512
(Colo. App. 2010); People v. Tuffo, 209 P.3d 1226, 1231 (Colo. App.
2009). But here, the district court did not make any findings on the
record on this issue. Accordingly, we must vacate Raehal’s sexually
violent predator designation and remand for further findings. See
Tuffo, 209 P.3d at 1231-32.
VI. Conclusion
¶ 40 The judgment of conviction is affirmed. We vacate the district
court’s determination that Raehal is a sexually violent predator, and
remand for further findings on this issue.
JUDGE LICHTENSTEIN and JUDGE RICHMAN concur.
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