v. Abad , 2021 COA 6 ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
January 28, 2021
2021COA6
No. 18CA0775, People v. Abad — Crimes — Sexual Exploitation
of a Child; Constitutional Law — Fifth Amendment — Double
Jeopardy — Multiplicity; Evidence — Authentication — Hearsay
The prosecution charged the defendant with nine different
counts of sexual exploitation of a child under section 18-6-
403(3)(b.5), C.R.S. 2020, based on his possession of photos found
in a Dropbox account and photos and videos found on two phones
that police recovered from his bedroom. On direct appeal, a
division of the court of appeals considers the defendant’s
contentions that the district court erred by (1) admitting
unauthenticated evidence from a Dropbox account and two cell
phones; (2) admitting hearsay testimony from two cell phone
extraction reports; and (3) entering multiplicitous convictions in
violation of double jeopardy.
The division finds no error as to issues one and two. As to
issue three, the division concludes that where the evidence adduced
at trial did not establish factually distinct acts of possession, the
defendant’s convictions are multiplicitous and violate double
jeopardy.
Consistent with People v. Bott, 2020 CO 86, the division
concludes that simultaneous possession of any number of sexually
exploitative items exceeding twenty constitutes a single offense.
Extending Bott, the division concludes that simultaneous
possession of more than one sexually exploitative video constitutes
a single offense. Finally, the division concludes that the fact that
the 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. Accordingly, the division merges the defendant’s
convictions and remands for resentencing.
COLORADO COURT OF APPEALS 2021COA6
Court of Appeals No. 18CA0775
Jefferson County District Court No. 16CR3216
Honorable Christopher C. Zenisek, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Zachariah Andrew Abad,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE BROWN
Dunn and Freyre, JJ., concur
Announced January 28, 2021
Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Meredith Rose, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury convicted defendant, Zachariah Andrew Abad, of nine
counts of sexual exploitation of a child. On appeal, he contends
that the district court erred by (1) admitting unauthenticated
evidence from a Dropbox account and two cell phones; (2) admitting
hearsay testimony from two cell phone extraction reports; and (3)
entering multiplicitous convictions in violation of double jeopardy.
¶2 In resolving Abad’s third contention, infra Part III, we must
apply the Colorado Supreme Court’s recent decision in People v.
Bott, 2020 CO 86 (Bott II), and decide two related matters of first
impression. Consistent with Bott II, we conclude that simultaneous
possession of more than twenty items of sexually exploitative
material constitutes a single offense under section 18-6-403(3)(b.5),
C.R.S. 2020. Extending the rationale of Bott II, we conclude that
simultaneous possession of multiple sexually exploitative videos
constitutes a single offense under section 18-6-403(3)(b.5). And we
conclude that 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.
1
¶3 Consequently, we conclude that Abad’s convictions are
multiplicitous and violate double jeopardy. Accordingly, we merge
his convictions and remand for resentencing, if necessary. We
otherwise affirm the judgment.
I. Factual Background
¶4 Investigator Kevin Donahue of the Jefferson County Sheriff’s
Office Crimes Against Children Unit received a cyber tip from the
National Center for Missing and Exploited Children (NCMEC) about
photographs uploaded to a Dropbox account. The NCMEC believed
the photographs were sexually exploitative images of children. The
NCMEC provided Donahue a Yahoo email address and a list of IP
addresses associated with the Dropbox account.
¶5 Based on this information, Donahue sent requests for
production of records to, among others, Dropbox, Comcast, and
Yahoo. In response, Yahoo produced subscriber information that
included a phone number. Donahue ran the phone number
through law enforcement databases and was able to link the
number to Abad and obtain his address.
¶6 Once Donahue learned that Abad lived in Arvada, he
transferred the case to the Arvada Police Department. The
2
information Donahue provided formed the basis for a search
warrant. During the search of Abad’s house, police officers seized
two cell phones from Abad’s bedroom — a Samsung Galaxy S-III
(the S-III) and a Samsung Galaxy S-IV (the S-IV). The police
downloaded the contents of the cell phones and found sexually
exploitative images and videos of children on each device.
¶7 The prosecution charged Abad with nine class 4 felony counts
of sexual exploitation of a child, based on his alleged possession of
the photos found in Dropbox and the photos and videos found on
the two phones. As detailed infra Part III.A, the jury convicted Abad
of eight class 4 felonies and one class 6 felony. The district court
sentenced him to six years each on the class 4 felonies and eighteen
months on the class 6 felony, all sentences to run concurrently.
II. Admissibility of Evidence
A. Standard of Review
¶8 We review all evidentiary rulings for an abuse of discretion.
People v. Glover, 2015 COA 16, ¶ 10. A trial court abuses its
discretion when its ruling is manifestly arbitrary, unreasonable, or
unfair, or if it misapplies the law. Campbell v. People, 2019 CO 66,
¶ 21; People v. Jefferson, 2017 CO 35, ¶ 25.
3
B. Dropbox Evidence
¶9 Abad contends that the district court erred by admitting the
images found in Dropbox because they were not properly
authenticated. We disagree.
1. Additional Factual Background
¶ 10 At trial, Donahue testified that after he received the cyber tip
from the NCMEC about a particular Dropbox account that might
contain sexually exploitative material, he sent a request for
production of records — “basically a search warrant for business
records” — to Dropbox “for the subscriber information and content
of that Dropbox account.” Dropbox responded with the subscriber
information for the account, which included Abad’s name, an email
address, and a list of IP addresses.1 Dropbox also sent a thumb
drive “that contained the contents of [the account].” Donahue
followed instructions to decrypt and view the thumb drive’s
contents. Then he copied the contents of the thumb drive onto a
disc.
1 The prosecution did not admit the Dropbox subscriber evidence
for the truth of the matter asserted but instead to explain
Donahue’s investigation.
4
¶ 11 When the prosecutor asked Donahue what he found on the
thumb drive, Abad’s attorney objected based on lack of
authentication. In response, the district court ruled that the
prosecutor could lay more foundation to show that the evidence was
what the prosecution purported it to be — “information returned
from Dropbox pursuant to [Donahue’s] investigation.”
¶ 12 Donahue then explained that he had reviewed the disc’s
contents before trial and they were “a fair and accurate
representation of what [he] received from Dropbox.” And he
testified that the files on the thumb drive and disc contained several
folders holding hundreds of images and videos of children engaged
in sexual acts with adults. The court admitted the disc of Dropbox
contents (People’s Exhibit 3) into evidence without objection from
Abad’s attorney.
¶ 13 The prosecutor then offered twenty-three printed images
(People’s Exhibits 3-1 through 3-23) as evidence of the sexually
exploitative material from the Dropbox account. Donahue testified
that the printed images were “fair and accurate representations of
the materials [he] received from Dropbox.” Abad’s attorney objected
5
to their admission based on lack of authentication, but the court
overruled the objection and admitted them into evidence.
¶ 14 Later, the prosecution qualified Michael Roemer, a detective
with the Arvada Police Department, as an expert in Cellebrite
software, which the Arvada Police used to download information
from Abad’s cell phones. He testified that once a cell phone has
been downloaded and information from the phone has been
extracted, he is trained to look at the extracted information,
including images, text messages, and chats. He testified that some
of the sexually exploitative images extracted from the S-IV were the
same as those on the disc from Dropbox. He testified that some file
path names on the extraction report from the cell phones contained
the word “Dropbox.” And he testified that he viewed chats in the
extraction report that had been downloaded from a messaging app,
which involved Abad and several others, referenced viewing “nudes
of 12- to 17-year-old females,” discussed sharing images, and
included links to Dropbox posted into the chat.
2. Applicable Law
¶ 15 Authenticity is a condition precedent to admissibility. CRE
901(a). The condition “is satisfied by evidence sufficient to support
6
a finding that the matter in question is what its proponent claims.”
Id.; People v. N.T.B., 2019 COA 150, ¶ 16. The burden to
authenticate evidence is low — only a prima facie showing is
required. Gonzales v. People, 2020 CO 71, ¶ 27. “Once the
proponent meets this burden, the actual authenticity of the
evidence and the effect of any defects go to the weight of evidence
and not its admissibility.” N.T.B., ¶ 16.
¶ 16 Although CRE 901(b) sets forth nonexhaustive examples of
ways to authenticate evidence, it does not establish the nature or
quantity of proof required or prescribe any exclusive method for
authenticating evidence. Gonzales, ¶ 30; N.T.B., ¶ 17.
Because the rule’s plain language instructs
that a proponent need only provide sufficient
evidence to support a finding that the proffered
evidence is what the proponent claims, the
rule vests trial courts with broad discretion to
consider a variety of foundational
circumstances depending on the nature of the
proffered evidence.
Gonzales, ¶ 30; see also Colo. Citizens for Ethics in Gov’t v. Comm.
for Am. Dream, 187 P.3d 1207, 1213 (Colo. App. 2008) (“Whether a
proper foundation has been established is a matter within the
7
sound discretion of the trial court, whose decision will not be
disturbed absent a clear abuse of discretion.”).
3. The Dropbox Images Were Properly Authenticated
¶ 17 Electronic evidence may be authenticated in several different
ways under CRE 901, including through the testimony of a witness
with knowledge that the evidence is what it is claimed to be and
through circumstantial evidence. See People v. Hamilton, 2019 COA
101, ¶ 36; Glover, ¶ 25. Information from Dropbox and other
similar cloud-based storage providers, however, presents unique
challenges in that it lacks readily identifiable characteristics that
often make authentication under CRE 901 possible. N.T.B., ¶ 20.
“Specifically, files uploaded to remote servers are not necessarily
shared with other users, which forecloses the opportunity for a
recipient to authenticate them. And cloud storage providers may
not require detailed profiles of their users, which eliminates another
avenue to corroborate ownership of the account’s contents.” Id.¶ 18 Still, as noted, the standard for authentication is low.
Gonzales, ¶ 27. Once the proponent makes a prima facie showing,
the ultimate determination of whether the evidence is, in fact,
authentic rests with the jury. Id. at ¶ 43; accord N.T.B., ¶ 16.
8
¶ 19 At trial, the prosecution claimed that the printed images it
sought to introduce were sexually exploitative images of children
sent to Donahue by Dropbox. When it overruled Abad’s
authentication objection, the district court understood the evidence
being offered was “information returned from Dropbox pursuant to
[Donahue’s] investigation.”2
¶ 20 Donahue’s testimony was sufficient to authenticate the printed
images as sexually exploitative images of children from a Dropbox
account, which Dropbox sent to Donahue. First, Donahue testified
that he sent a request for production to Dropbox for subscriber
information and the content of the Dropbox account associated with
the NCMEC cyber tip. Then, he testified he received a thumb drive
from Dropbox and viewed its contents. Next, he testified that he
copied the contents of the thumb drive to a disc, that he viewed the
contents of the disc before trial, and that the contents of the disc
were a fair and accurate representation of what he received from
2 On appeal, the People contend that the images Donahue
authenticated at trial were “child pornography contained in a
Dropbox account associated with Abad.” (Emphasis added.) That
is not how the prosecution characterized the evidence at trial,
however, and our review is necessarily limited to the district court’s
ruling on the evidence as it was admitted.
9
Dropbox. The district court admitted into evidence the disc
containing the entire contents of the Dropbox account. Abad’s
attorney did not object. Finally, Donahue testified that the printed
images the prosecution sought to introduce were fair and accurate
representations of the materials he received from Dropbox.
¶ 21 Considering this evidence collectively, we conclude that the
district court did not err by finding that the printed images were
what the prosecution claimed they were — fair and accurate
representations of the materials Dropbox sent to Donahue. See
N.T.B., ¶ 18 (“[W]here a law enforcement investigator possesses
personal knowledge that proffered evidence was produced in
response to a search warrant, courts have allowed the investigator
to authenticate that evidence.”). Accordingly, the district court did
not abuse its discretion by admitting the Dropbox images.3
3 It is worth noting that whether the evidence was sufficient for the
jury to find beyond a reasonable doubt that Abad controlled the
Dropbox account or possessed images contained in it is a separate
question. Abad argues on appeal that there was insufficient
evidence to support a conclusion by a reasonable person that he
was guilty beyond a reasonable doubt as to the count associated
with Dropbox. See People v. Brassfield, 652 P.2d 588, 592 (Colo.
1982). But the premise underlying his argument is that the
Dropbox images should not have been admitted. He argues that we
10
C. Cell Phone Evidence
¶ 22 Abad contends that the district court erred by admitting
certain evidence related to the S-III and S-IV. Specifically, he
argues that (1) the cell phone extraction reports and the images and
videos from the phones were not properly authenticated and (2) the
extraction reports and witness testimony about the content of the
extraction reports were hearsay. We reject these contentions.
1. Additional Factual Background
¶ 23 During the search of Abad’s house, the police seized two cell
phones from Abad’s bedroom, the S-III and the S-IV. After the
phones were logged into evidence at the police station, Detective
Renee Beale, who was the lead detective on the case at the time,
downloaded the contents of the cell phones. Beale downloaded the
S-III on her own. Sergeant Amity Losey, who took over the
should “not consider inadmissible evidence in determining whether
sufficient evidence” supported his conviction. We disagree. See
People v. Hard, 2014 COA 132, ¶ 39 (“In assessing the sufficiency of
the evidence, we must consider all the evidence admitted at trial,
including the erroneously admitted evidence . . . .”). Nonetheless,
we have concluded that the Dropbox images were properly
authenticated, which is Abad’s only appellate challenge to their
admission. And Abad does not argue that the evidence was
insufficient if the Dropbox images are considered.
11
investigation after Beale retired for medical reasons, assisted Beale
in downloading the S-IV.
¶ 24 To download a cell phone, the police plug the phone into a
computer, and specialized computer software extracts all available
data from the phone and creates an extraction report. After
describing this standard download process, Losey testified —
without objection — that the police downloaded the data from
Abad’s phones in the same way they download data from phones in
“every other case.”
¶ 25 Then Roemer, the Cellebrite expert, explained that the Arvada
Police Department has been using the Cellebrite software to extract
data from phones since 2009. He explained that an extraction
report may contain, among other things, user information, phone
and chat logs, text and multimedia messages, emails, images,
videos, file path information, and dates that files were downloaded.
The software may also be able to extract information that has been
deleted from the phone.
¶ 26 Losey reviewed the complete extraction report for the S-III.
She testified that there were 22,418 total images on the S-III, which
included images of children engaging in sexual acts. She testified
12
about a video on the device titled “13 Y/O sex” and described its
contents. She also testified as to the names of other videos that
had been deleted from the phone. Abad’s attorney objected to
Losey’s testimony describing the content of the images and video
based on the “best evidence rule” and to the titles of the videos as
hearsay. The district court overruled the objections.
¶ 27 The prosecutor then moved to admit three pages of the S-III
extraction report (People’s Exhibit 2), which reflected when the
phone was downloaded, the serial number of the phone, the device
user name and photograph, and email addresses and user names
associated with the phone and various apps on the phone. Abad’s
attorney did not object.
¶ 28 The prosecutor also offered twenty-eight printed images
(People’s Exhibits 2-1 through 2-26, 2-28, and 2-29) as evidence of
the sexually exploitative material from the S-III. Losey testified that
the images were fair and accurate representations of photographs
she previously viewed in the complete extraction report for the S-III.
Abad’s attorney did not object.
¶ 29 Detective Kevin Westbrook assisted in executing the search
warrant at Abad’s residence and recovering Abad’s two cell phones.
13
He testified without objection that the phones were placed into
evidence at the Arvada Police Department and that they “were, in
fact, later downloaded.”
¶ 30 Westbrook also testified that he reviewed the complete
extraction report for the S-IV. He said the total number of images
on the two phones exceeded 74,000 and that approximately 9,000
images were identified as “child pornography.” He could not recall
how many sexually exploitative videos were on the phones but
testified that five videos from the S-IV were downloaded for use in
this case. Abad’s attorney objected on several grounds and the
objections were overruled.
¶ 31 The prosecutor offered twenty-two printed images (People’s
Exhibits 1-1 through 1-22) as evidence of the sexually exploitative
material from the S-IV. Westbrook testified that the images were
fair and accurate representations of images downloaded from the
S-IV that depicted children “engaged in graphic sexual acts with
either other children or with adults.” Abad’s attorney did not
object.
¶ 32 The prosecutor offered five discs each containing a sexually
exploitative video extracted from the S-IV (People’s Exhibits 1-23
14
through 1-27) and one disc containing a sexually exploitative video
extracted from the S-III (People’s Exhibit 2-30). Westbrook testified
that the videos were fair and accurate representations of the videos
downloaded from the S-III and S-IV. Abad’s attorney did not object.
¶ 33 The prosecutor moved to admit six pages of the S-IV extraction
report (People’s Exhibit 1), which reflected the make and model of
the phone, a Bluetooth device named “Zachariah Abad,” email
addresses and usernames associated with various accounts and
apps on the phone, and searched terms. Abad’s attorney did not
object.
¶ 34 Westbrook testified that the partial extraction report reflected
a YouTube search conducted on May 12, 2015, for “[IM] a
pedophile.” Losey and Roemer both testified that they saw this
same search on the same day during their reviews of the S-IV
extraction report.
¶ 35 Westbrook testified that the partial S-IV extraction report
reflected the username “Chocothunde” associated with the phone’s
KIK messaging app. Losey testified that she viewed a conversation
between Chocothunde and others through the KIK app on the S-IV
and confirmed specific statements made by Chocothunde and the
15
others engaged in the conversation. Abad’s attorney objected to
lack of authentication — specifically as to the identity of the users
— and to hearsay. The district court determined that the
prosecutor had laid a sufficient foundation that the phone belonged
to Abad and that the statements made by Chocthunde through the
app were Abad’s statements. The court ruled that statements by
other users were not being offered for their truth, but to provide
context for Abad’s statements.
¶ 36 Losey testified without further objection to other KIK app
communications she viewed in the S-III extraction report between
Abad and unknown users. Roemer likewise testified without
further objection to other KIK and Snapchat communications he
viewed in the S-IV extraction report between Abad and unknown
users.
¶ 37 Although he did not call any defense witnesses, Abad admitted
two exhibits into evidence during Roemer’s cross-examination.
First he offered Defense Exhibit B, a partial extraction report from
the S-III showing each of the still images admitted by the
prosecution (People’s Exhibits 2-1 through 2-26, 2-28, and 2-29)
and their associated file path information. Second, he offered
16
Defense Exhibit C, a partial extraction report from the S-IV showing
each of the still images admitted by the prosecution (People’s
Exhibits 1-1 through 1-22) and their associated file path
information.
2. Authenticity
¶ 38 Abad contends that the district court erred by admitting
witness testimony about the contents of the S-III and S-IV
extraction reports because the reports were not properly
authenticated. He also contends that the district court erred by
admitting the images and videos from the S-III and S-IV because
they were not properly authenticated. We find no reversible error.
a. Applicable Law
¶ 39 As noted, the authenticity requirement under CRE 901 is
satisfied by a prima facie showing that the matter in question is
what its proponent claims. Gonzales, ¶ 27; N.T.B., ¶ 16.
b. Preservation and Standard of Reversal
¶ 40 The People contend that Abad failed to preserve these
arguments by failing to object at trial. We agree.
¶ 41 On appeal, Abad contends that the extraction reports were not
authenticated because the person who conducted the initial
17
download did not testify about it at trial. But he fails to identify any
part of the record where his attorney lodged a similar objection with
the district court. Losey, Westbrook, and Roemer testified at length
about the contents of the extraction reports. The only
“authentication” objection Abad’s attorney raised was when
Westbrook testified to the number of sexually exploitative images on
the two phones. And although defense counsel used the word
“authentication,” he did not state the basis for the authentication
objection or make any argument similar to the one he advances on
appeal.
¶ 42 Abad’s attorney also did not object when the prosecution
offered the partial extraction reports from the S-III and S-IV into
evidence; instead, counsel affirmatively stated, “No objection.”
Indeed, on appeal Abad clarifies that he “does not challenge the
pages of the reports admitted as Exhibits 1 and 2.” Abad’s attorney
also offered into evidence his own partial extraction reports
(Exhibits B and C), which were created from the same data
downloaded from the S-III and S-IV. Abad’s attorney likewise did
not object when the prosecutor offered into evidence the images and
18
videos from the S-III or S-IV; instead, counsel affirmatively stated,
“No objection.”
¶ 43 Because Abad failed to preserve these contentions, if we
determine that the district court abused its discretion, we review for
plain error. People v. Hagos, 2012 CO 63, ¶ 14 (“[W]e review all
other errors, constitutional and nonconstitutional, that were not
preserved by objection for plain error.”); People v. Devorss, 277 P.3d
829, 834-35 (Colo. App. 2011). A plain error is (1) obvious;
(2) substantial; and (3) undermines the fundamental fairness of the
trial itself so as to cast serious doubt on the reliability of the
judgment of conviction. Romero v. People, 2017 CO 37, ¶ 6 (citing
Hagos, ¶ 14). “To qualify as plain error, the error must be one that
‘is so clear-cut, so obvious,’ a trial judge should be able to avoid it
without benefit of objection.” Id. (citation omitted).
c. The Extraction Reports
¶ 44 Losey and Westbrook testified that the S-III and S-IV were
seized from Abad’s bedroom during the search of his home. They
testified that the data from the phones was downloaded by the
same process used by the Arvada Police in every other case
involving extraction of data from cell phones — the phone is
19
plugged into a computer that extracts all the available data from the
phone and creates a comprehensive extraction report. Roemer
testified the police use a software called Cellebrite to download the
data and create the extraction reports. Although Beale conducted
the download of the S-III, Losey and Westbrook both testified,
without objection, that they knew the S-III had been downloaded
and an extraction report prepared. Losey assisted Beale with the
download of the S-IV. And Losey, Westbrook, and Roemer testified
at length about the extraction reports without objection (with the
single exception noted above).
¶ 45 Given the minimal showing required by CRE 901, had the
complete extraction reports for the S-III and S-IV been offered into
evidence on this record, the district court would not have abused its
discretion by concluding that they were what the prosecution
claimed they were — data downloaded from the S-III and S-IV. See
CRE 901(a). Accordingly, on this same basis, we cannot conclude
that the district court abused its discretion by allowing witness
testimony about the extraction reports.
¶ 46 But even if we were to conclude that the district court abused
its discretion by not sua sponte rejecting witness testimony about
20
the extraction reports based on lack of authenticity, the error was
not plain because it was not obvious. For an error to be so obvious
that it qualifies as plain error, “the action challenged on appeal
ordinarily ‘must contravene (1) a clear statutory command; (2) a
well-settled legal principle; or (3) Colorado case law.’” Scott v.
People, 2017 CO 16, ¶ 16 (quoting People v. Pollard, 2013 COA
31M, ¶ 40).
¶ 47 Citing Hamilton, ¶¶ 36-39, Abad argues: “Someone had to be
able to tell the jury, ‘I did the download, I followed the proper
procedures, the machine that I used and its software were working
properly, and I know that these images and videos are accurate
replicas of what was stored on the phone.” But Hamilton does not
make the purported error obvious because Hamilton was
announced after Abad went to trial. See People v. Thompson, 2018
COA 83, ¶ 34 (“Because plain error requires that the error be
obvious and any legal principles be ‘well settled,’ we only consider
the status of the law at the time of trial.”) (citation omitted), aff’d on
other grounds, 2020 CO 72; People v. O’Connell, 134 P.3d 460, 465
(Colo. App. 2005) (“[W]e will use the status of law at the time of trial
in considering whether the trial court committed plain error.”). And
21
we do not find Hamilton persuasive here.4 See People v. Smoots,
2013 COA 152, ¶ 21 (“[W]e are not bound by the decisions of other
divisions of this court.”), aff’d sub nom. Reyna-Abarca v. People,
2017 CO 15. So we perceive no reversible error.
d. The Images and Videos
¶ 48 Having concluded that the extraction reports were properly
authenticated, we also dispose of Abad’s unpreserved challenge to
the authenticity of the images and videos from the S-III and S-IV.
¶ 49 Losey testified that the printed images offered as People’s
Exhibits 2-1 through 2-26, 2-28, and 2-29 were “fair and accurate”
representations of photographs she viewed on the “download report”
for the S-III. Westbrook testified that the printed images offered as
People’s Exhibits 1-1 through 1-22 were “fair and accurate
representations of the images that were downloaded from” the S-IV.
4 We do not find People v. Hamilton, 2019 COA 101, persuasive in
part because it establishes an inflexible set of requirements that
must be met to authenticate cell phone extraction reports, which
appears inconsistent with Gonzales v. People, 2020 CO 71, ¶ 39, in
which the Colorado Supreme Court recently rejected “adherence to
a rigid formula for authentication.” Instead, the supreme court
reminded us that the standard for authentication under CRE 901 is
“flexible” and “minimal — all that’s required is a prima facie
showing that the evidence is what its proponent claims.” Id. at
¶¶ 39, 42.
22
Westbrook also testified that the videos offered as People’s Exhibits
1-23 through 1-27 and 2-30 were “fair and accurate
representations of the videos that were downloaded from” the S-III
and S-IV.
¶ 50 We conclude that this evidence is sufficient to make a prima
facie showing that the images and videos are what the prosecution
claimed — images and videos downloaded from the S-III and S-IV.
See CRE 901(a); Gonzales, ¶ 27. We perceive no abuse of
discretion.
3. Hearsay
¶ 51 Abad contends that the district court erred by admitting
hearsay testimony about the contents of the extraction reports,
which he contends included more hearsay. He further contends
that the admission of this hearsay evidence violated his
confrontation rights. We disagree.
a. Applicable Law
¶ 52 Hearsay is inadmissible except as provided by the Colorado
Rules of Evidence or other applicable statutes or rules. CRE 802;
People v. Buckner, 228 P.3d 245, 249 (Colo. App. 2009). Hearsay is
“a statement other than one made by the declarant while testifying
23
at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” CRE 801(c). A statement made by a party is not
hearsay if it is offered against that party. CRE 801(d)(2)(A). And
statements offered for other purposes — such as showing the
statement’s effect on the listener or to give context to a defendant’s
statements — are not offered for their truth and are not hearsay.
See Glover, ¶¶ 40-42; People v. Robinson, 226 P.3d 1145, 1151
(Colo. App. 2009).
b. The Extraction Reports Are Not Hearsay
¶ 53 Abad contends that the district court erred by admitting
testimony about the extraction reports, because the reports
themselves were hearsay. We disagree.
¶ 54 A declarant is “a person who makes a statement.” CRE
801(b). A “statement” is either “(1) an oral or written assertion or
(2) nonverbal conduct of a person, if it is intended by him to be
communicative.” CRE 801(a). Information automatically generated
by machines is not hearsay because no “person” or “declarant”
made a “statement” within the meaning of CRE 801. Buckner, 228
P.3d at 250.
24
¶ 55 Losey’s testimony established that the extraction reports were
produced automatically without human intervention. She testified
that to generate the extraction reports, “you plug the cell phone . . .
into a computer and it extracts the data and then . . . [i]t creates a
report of everything that’s on the phone.” (Emphasis added.) The
reports do not require any human input short of plugging the phone
into a machine.
¶ 56 Because the reports were automatically generated, the reports
themselves are not “statements” made by a “declarant,” and
therefore they are not hearsay. See id.5 We perceive no abuse of
discretion.
5 Abad again relies on Hamilton, in which the division concluded
that cell phone extraction reports and a detective’s testimony about
those reports were hearsay. Hamilton, ¶¶ 26, 30. The Hamilton
division started with the common premise that machine-generated
reports are not hearsay because “no ‘person’ or ‘declarant’ made a
communicative ‘statement’ within the meaning of CRE 801.” Id. at
¶ 24. It then explained that “[a] computer-generated record
constitutes hearsay, however, when its creation involves human
input or interpretation.” Id. at ¶ 26. The division concluded that
the extraction reports there were hearsay because the prosecution
did not establish that the reports were generated without human
input or interpretation. Id. at ¶ 21. Unlike Hamilton, we conclude
that there was sufficient evidence for the district court to conclude
that the extraction reports in this case were computer generated
without human input or interpretation.
25
c. Testimony About the Extraction Reports Is Not Hearsay
¶ 57 Abad contends that the district court erred by admitting
testimony about the extraction reports because that testimony
constituted hearsay within hearsay. We disagree.
¶ 58 As an initial matter, because we have concluded that the
extraction reports themselves are not hearsay, it follows that live
testimony about the reports is not hearsay. See CRE 801(c)
(“‘Hearsay’ is a statement other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.”) (emphasis added).
¶ 59 Still, when a statement contains multiple layers of hearsay, a
trial court must analyze each layer separately to determine whether
a recognized exception applies. Bernache v. Brown, 2020 COA 106,
¶ 14. Hearsay included within hearsay is not excluded under the
hearsay rule if each part of the combined statements conforms with
an exception to the hearsay rule. See CRE 805. So, even though
we have concluded that the extraction reports were not hearsay, the
reports may still contain inadmissible evidence and we must
analyze the statements within the reports separately to determine if
they are hearsay. See Bernache, ¶ 17.
26
¶ 60 Abad does not specifically identify the language in the
extraction reports to which the witnesses testified that he contends
is hearsay. He does, however, argue that certain categories of
information contained in the extraction reports are hearsay. We
address each category as best we can.
¶ 61 To the extent Abad contends that the names of the files
extracted from the S-III and S-IV were hearsay, we disagree. They
were offered for the nonhearsay purpose of showing that Abad knew
sexually exploitative content was on his phones.
¶ 62 To the extent Abad contends that testimony about the number
of images on the S-III and S-IV was hearsay, we disagree. A
computer-generated tally is not hearsay because there is no
declarant and there is no statement within the meaning of CRE
801. See Buckner, 228 P.3d at 250. And the witnesses’ personal
perceptions of the volume and type of images in the extraction
reports are not hearsay.
¶ 63 To the extent Abad contends that testimony about the
YouTube search “[IM] a pedophile” was hearsay, we also disagree.
First, the information was admitted without objection as part of
People’s Exhibit 1, the partial S-IV extraction report. Second, it was
27
not offered for its truth; regardless of the truth or falsity of the
statement, it was offered to show that the phone user knowingly
searched for that phrase. Third, the statement constituted a
nonhearsay statement by a party opponent. CRE 801(d)(2)(A). “To
admit a statement under this rule, the proponent must prove by a
preponderance of the evidence that it was the opposing party who
made the statement.” Glover, ¶ 40. This standard asks the court to
decide whether a contested fact is “more probable than its
nonexistence.” People v. Marx, 2019 COA 138, ¶ 49 (quoting People
v. Taylor, 618 P.2d 1127, 1135 (Colo. 1980)). We conclude the
evidence was sufficient to establish, by a preponderance of the
evidence, that Abad was the person who conducted the search.
¶ 64 To the extent Abad contends that the device user information
contained in People’s Exhibit 1, the partial S-IV extraction report,
was hearsay, we disagree. If such information could be considered
a statement, it would be a nonhearsay statement by a party
opponent because we conclude the evidence was sufficient to
establish by a preponderance of the evidence that Abad input his
name, email, and account information into the phone. See CRE
801(d)(2)(A); Glover, ¶ 13.
28
¶ 65 Finally, to the extent Abad contends that testimony about KIK
app messages was hearsay, we disagree. Roemer testified, without
objection, to the username associated with the various S-IV
messaging apps, which was reflected in People’s Exhibit 1, the
partial S-IV extraction report. For any statements made by the
usernames associated with Abad (e.g., Chocothunde), the
statements would be admissions by a party opponent, and not
hearsay. See CRE 801(d)(2)(A). We conclude the evidence was
sufficient to establish this fact by a preponderance of the evidence.
See Glover, ¶ 13. Any statements by other unknown individuals
engaging in a chat conversation with Abad were not offered for their
truth, but for the nonhearsay purpose of providing context for
Abad’s own statements. See Glover, ¶ 42 (“As to statements made
by others in the records, they were not hearsay because they were
admitted to give context to defendant’s statements.”); Robinson, 226
P.3d at 1151.
¶ 66 Accordingly, because the extraction reports were not hearsay,
and because none of the challenged evidence contained in the
extraction reports was hearsay, the district court did not abuse its
29
discretion by admitting witness testimony about the reports or their
content.
d. No Confrontation Clause Violation
¶ 67 Abad contends that the admission of hearsay evidence violated
his rights under the Federal and Colorado Confrontation Clauses.
We disagree.
¶ 68 Although the admission of testimonial hearsay implicates a
defendant’s confrontation rights under the Federal and Colorado
Constitutions, the admission of nonhearsay does not. Robinson,
226 P.3d at 1151; see also U.S. Const. amend. VI; Davis v.
Washington, 547 U.S. 813, 823 (2006) (admission of testimonial
hearsay violates federal confrontation rights); People v. Oliver, 745
P.2d 222, 226 (Colo. 1987) (“The sixth amendment right
of confrontation guaranteed by the United States Constitution is
applicable to the states through the fourteenth amendment.”);
People v. Isom, 140 P.3d 100, 103 (Colo. App. 2005) (no right of
confrontation exists when statements are not offered for their
truth). Because the district court did not admit hearsay evidence,
the Confrontation Clause does not apply.
30
III. Multiplicity
¶ 69 Finally, Abad contends that his nine convictions are
multiplicitous in violation of double jeopardy. We agree.
A. Additional Factual Background
¶ 70 The prosecution charged Abad with nine counts of sexual
exploitation of a child. Each count alleged that he possessed or
controlled either a video or more than twenty different items of
sexually exploitative material, “[o]n and before October 27, 2015,”
the day that the police executed the search warrant at Abad’s home.
¶ 71 Before trial, Abad moved to dismiss counts 2-9 as
multiplicitous. The prosecution responded by providing a bill of
particulars explaining that it charged six separate counts for six
separate videos — one video found on the S-III and five videos found
on the S-IV — and three separate counts for three groups of more
than twenty images — one group found in Dropbox, one group
found on the S-III, and one group found on the S-IV. It contended
that possession of each sexually exploitative video constituted a
separate crime and that possession of more than twenty sexually
exploitative images on each electronic device or storage site
(Dropbox, S-III, and S-IV) constituted a separate crime. The district
31
court denied the motion to dismiss, indicating it was not persuaded
that the prosecution was not permitted to charge the case as it had.
¶ 72 Jury Instruction 3, which identified the charges, simply
stated, “The defendant is charged with committing the crimes of
SEXUAL EXPLOITATION OF A CHILD (NINE COUNTS), in Jefferson
County, Colorado, on or before October 27, 2015.”
¶ 73 The jury received verdict forms for each count. The verdict
forms did not reference any dates associated with the individual
counts. The only information that distinguished one count from
another was (1) whether the count related to the S-III or the S-IV
and (2) whether the count related to a video or to a group of images.
The jury convicted Abad of nine counts as follows:
 Count 1: Sexual exploitation of a child (Samsung S-IV
Video – EX. 1-27). The jury found this item was a
moving image.
 Count 2: Sexual exploitation of a child (Samsung S-IV
Video – EX. 1-26). The jury found this item was a
moving image.
32
 Count 3: Sexual exploitation of a child (Samsung S-IV
Video – EX. 1-25). The jury found this item was a
moving image.
 Count 4: Sexual exploitation of a child (Samsung S-IV
Video – EX. 1-24). The jury found this item was a
moving image.
 Count 5: Sexual exploitation of a child (Samsung S-IV
Video – EX. 1-23). The jury found this item was a
moving image.
 Count 6: Sexual exploitation of a child (Samsung S-IV
Images – EX. 1, 1-1 to 1-22). The jury unanimously
found Abad “knowingly possessed the same 21 or more
items of sexually exploitative material, or that he
knowingly possessed all of the items alleged and at least
21 items were sexually exploitative.”
 Count 7: Sexual exploitation of a child (Samsung S-III
Video – EX. 2-30). The jury found this item was a
moving image.
 Count 8: Sexual exploitation of a child (Samsung S-III
Images – EX. 2, 2-1 to 2-26, 2-28, and 2-29). The jury
33
unanimously found Abad “knowingly possessed the
same 21 or more items of sexually exploitative material,
or that he knowingly possessed all of the items alleged
and at least 21 items were sexually exploitative.”
 Count 9: Sexual exploitation of a child (Dropbox Images
– EX. 3-1 to 3-23, 3-25). The jury did not unanimously
find that Abad “knowingly possessed the same 21 or
more items of sexually exploitative material.”
Accordingly, he was convicted of a class 6 felony rather
than a class 4 felony on this count.
B. Standard of Review and Applicable Law
¶ 74 We review de novo a preserved claim that multiplicitous
convictions violate a defendant’s constitutional protection against
double jeopardy. People v. Bott, 2019 COA 100, ¶ 57 (Bott I), aff’d,
2020 CO 86.
¶ 75 The Double Jeopardy Clauses of the United States and
Colorado Constitutions protect an accused against being twice
placed in jeopardy for the same crime. U.S. Const. amend. V; Colo.
Const. art. II, § 18; Bott II, ¶ 7; Woellhaf v. People, 105 P.3d 209,
214 (Colo. 2005). The Double Jeopardy Clauses protect not only
34
against a second trial for the same offense, but also against
multiple punishments for the same offense. Bott II, ¶ 7.
¶ 76 Multiplicity is the charging of multiple counts and the
imposition of multiple punishments for the same criminal conduct.
Woellhaf, 105 P.3d at 214; Quintano v. People, 105 P.3d 585, 589
(Colo. 2005) (“Multiplicity is the charging of the same offense in
several counts, culminating in multiple punishments.”).
Multiplicitous convictions violate the constitutional prohibition
against double jeopardy. Bott I, ¶ 58.
¶ 77 If a defendant is prosecuted for distinct offenses under the
same statute, we ascertain whether his double jeopardy rights were
violated by determining (1) whether the unit of prosecution
prescribed by the legislature permits the charging of multiple
offenses and (2) whether the evidence in support of each offense
justified the charging of multiple offenses and the imposition of
multiple sentences. Id. (citing Quintano, 105 P.3d at 590).
¶ 78 “Unit of prosecution” refers to the extent to which the relevant
statute permits the prosecution to separate the defendant’s conduct
into discrete acts for purposes of prosecuting multiple offenses.
Bott II, ¶ 9; Quintano, 105 P.3d at 590. “It is the province of the
35
legislature to establish and define offenses by prescribing the
allowable unit of prosecution.” Woellhaf, 105 P.3d at 215; see also
Bott II, ¶ 8 (“Because any particular criminal proscription can be
violated more than once and often in more than one way, it is . . .
for the legislature to determine the breadth of the conduct it intends
to be punished as a single crime or single violation of its criminal
proscription.”).
¶ 79 To determine the unit of prosecution, we look exclusively to
the statute. Woellhaf, 105 P.3d at 215; People v. Arzabala, 2012
COA 99, ¶ 23. In construing a statute, we must discern and
effectuate the intent of the legislature based primarily on the plain
and ordinary meaning of the statutory language. Bott I, ¶ 61;
Arzabala, ¶ 23.
C. The Unit of Prosecution
¶ 80 To determine the unit of prosecution for sexual exploitation of
a child, we look to the text of the statute. Woellhaf, 105 P.3d at
215; Arzabala, ¶ 23. As relevant here, a person commits sexual
exploitation of a child if he “[p]ossesses or controls any sexually
exploitative material for any purpose.” § 18-6-403(3)(b.5). Sexually
exploitative material is statutorily defined to include “any” of a
36
number of specifically named and disjoined items depicting a child
involved in or observing explicit sexual conduct. § 18-6-403(2)(j);
Bott II, ¶ 13. “Sexual exploitation of a child by possession of
sexually exploitative material . . . is a class 4 felony if . . . [t]he
possession is of a video, recording or broadcast of moving visual
images, or motion picture or more than twenty different items
qualifying as sexually exploitative material.” § 18-6-403(5)(b)(II).
¶ 81 The Colorado Supreme Court recently considered the unit of
prosecution for sexual exploitation of a child by possession. See
Bott II, ¶¶ 13-16. It focused on subsection (5)(b), concerning
classification and punishment, which “expressly defines the scope
of a single commission of that offense in terms of the type or
number of different items qualifying as sexually exploitative
material possessed pursuant to subsection (3)(b.5).” Id. at ¶ 15.
In subparagraph (5)(b)(II), the legislature
specifies that possession pursuant to
subsection (3)(b.5) of a video, recording or
broadcast of moving visual images, or motion
picture, or more than twenty different items
qualifying as sexually exploitative material “is
a class 4 felony.” [§ 18-6-403(5)(b)(II)]
(emphasis added). . . .
. . . [I]n specifying that possession of more
than twenty qualifying items is a class 4
37
felony, the legislature has defined the unit of
prosecution in terms of the number of items
possessed for the crime of sexual exploitation
of a child by possession pursuant to
subsection (3)(b.5). Because the legislature
has itself determined that the possession of
qualifying items numbering greater than
twenty, without limitation, amounts to the
commission of a single felony, separate
convictions and punishment for the
simultaneous possession of qualifying items
exceeding twenty violates constitutional
protections against being punished twice for
the same offense.
Id. at ¶¶ 15-16.
¶ 82 Under the plain and unambiguous language of the statute,
Abad may be convicted and punished only once for the
simultaneous possession of more than twenty items qualifying as
sexually exploitative material. § 18-6-403(5)(b)(II); Bott II, ¶ 16. In
other words, that Abad possessed more than one set or grouping of
twenty-one sexually exploitative images does not, by itself, mean
that he committed more than one offense.
¶ 83 By the same rationale, Abad may be convicted and punished
only once for the simultaneous possession of more than one video.
Subparagraph (5)(b)(II) provides that possession of “a video . . . or
more than twenty different items qualifying as sexually exploitative
38
material” is a class 4 felony. § 18-6-403(5)(b)(II) (emphasis added).
Although “items” is not a defined term, “subparagraph (5)(b)(II)’s use
of the phrase ‘items qualifying as sexually exploitative material’ is a
clear and unmistakable reference to the list of disjoined items in
subsection (2)(j).” Bott II, ¶ 15. One of those disjoined items is
“any . . . video . . . that depicts a child engaged in, participating in,
observing, or being used for explicit sexual conduct.” § 18-6-
403(2)(j). Because such a video is an “item[] qualifying as sexually
exploitative material” under subsection (2)(j), the legislature chose
to punish possession of “a video” the same as possession of more
than twenty videos (or more than twenty other items qualifying as
sexually exploitative material).
¶ 84 Our task in construing this statute is to ascertain and give
effect to the intent of the legislature, not to second-guess its
judgment. Rowe v. People, 856 P.2d 486, 489 (Colo. 1993). This is
particularly true here as it is the exclusive province of the
legislature “to establish and define offenses by prescribing the
allowable unit of prosecution.” Woellhaf, 105 P.3d at 215. Based
on the plain language of the statute, the legislature did not intend
to create a separate offense or authorize a separate conviction and
39
punishment for possession of each sexually exploitative video;
rather, possession of a single video or simultaneous possession of
multiple videos, absent evidence that the videos were possessed in
factually distinct ways as we discuss next, constitutes a single class
4 felony offense.
D. Abad’s Convictions Must Merge
¶ 85 Having determined that the legislature defined the unit of
prosecution for the crime of sexual exploitation of a child by
possession pursuant to subsection (3)(b.5) in terms of the number
and type of sexually exploitative items possessed, see Bott II, ¶ 16,
we must next determine whether the evidence adduced at trial
established that Abad engaged in factually distinct acts of
possession that may be prosecuted separately. See Woellhaf, 105
P.3d at 218-19; Quintano, 105 P.3d at 591-92. If the counts cannot
be prosecuted separately, they must merge. See People v. Rhea,
2014 COA 60, ¶ 17 (“Merger has the same effect as vacating one of
the multiplicitous sentences.”).
¶ 86 Typically, the factors we consider when determining whether
conduct supporting the commission of a particular offense is
factually distinct from conduct supporting a second or subsequent
40
commission of the same offense include whether the acts were
separated by time or location, were the product of new volitional
departures or fresh impulse, or were separated by intervening
events. See Woellhaf, 105 P.3d at 218-19; Quintano, 105 P.3d at
591-92; see also Bott II, ¶ 14. But “possession” as a criminal act “is
clearly different in nature from other discrete, voluntary acts.” Bott
II, ¶ 14. Possession “continues until the possessor is divested of
control of the possessed item, [so] it is more in the nature of a
condition than a discrete act, or at least has more in common with
a course of conduct or a series of acts related along a continuum of
conduct.” Id. As a result, factors like temporal and spatial
proximity or the presence or absence of intervening events or
volitional departures are less applicable to offenses of possession.
Id.
Rather, the intended scope of a single offense
of possession is typically determined by
considerations involving the nature of the
thing or quantity of things simultaneously
possessed, how or where or when they were
acquired or controlled, the length of time they
have been possessed, or the purpose or
intended use for which they were possessed.
Id.
41
¶ 87 The People contend that Abad was properly convicted of six
separate offenses based on possession of six videos and three
separate offenses based on possession of groups of more than
twenty images found on three separate electronic devices or storage
sites — the S-III, the S-IV, and Dropbox. We have already
concluded that, absent some evidence that Abad’s possession of
each video or group of more than twenty images was factually
distinct, his simultaneous possession of the six videos and more
than sixty images constitutes a single offense of sexual exploitation
of a child by possession. See § 18-6-403(3)(b.5); see also Bott II,
¶ 16
¶ 88 Although the People argue that each of the videos is “factually
distinct,” they focus on the unit of prosecution rather than on any
distinct conduct by Abad that would support additional or
subsequent commissions of the same offense. It was their position
at trial, and it remains their position on appeal, that each video
possessed constitutes a separate and distinct offense. But because
of how the legislature has defined the unit of prosecution, the mere
fact that Abad simultaneously possessed more than one video
cannot, by itself, justify more than one conviction and punishment.
42
And the People do not identify any facts adduced at trial to
establish “how or where or when,” Bott II, ¶ 14, Abad had acquired
or controlled any one of the videos. Nor do they point us to
evidence that Abad possessed any one of the videos for a different
length of time or for a different purpose than any of the others. See
id.
¶ 89 For the three counts based on possessing more than twenty
images, the People argue that the three separate electronic devices
or storage sites (two phones and a Dropbox account) equate to three
separate “locations.” See Quintano, 105 P.3d at 592. Because the
sexually exploitative material was found in three different locations,
the People argue, Abad engaged in three distinct acts of possession
that may be prosecuted separately.6
¶ 90 While location is a relevant factor in determining whether
distinct offenses have been committed, the “location” contemplated
6 To be sure, the supreme court’s recent decision in People v. Bott,
2020 CO 86, left open the question we must answer now. The
sexually exploitative items on which Bott’s conviction and
punishment were based were all found on a single memory card.
Id. at ¶ 19. The court did not decide whether images saved on
multiple electronic devices or storage sites could establish factually
distinct possession offenses. Id.
43
by Woellhaf and Quintano is a physical location. See Woellhaf, 105
P.3d at 218-19; Quintano, 105 P.3d at 591-92. Indeed, changing
physical locations may allow a defendant an opportunity to pause
and reflect on his actions, after which further criminal conduct
more clearly constitutes a new volitional departure subject to
additional punishment. See Woellhaf, 105 P.3d at 218-19;
Quintano, 105 P.3d at 591-92.
¶ 91 But as noted in Bott II, ¶ 14, the typical factors we consider
when determining whether conduct is sufficiently factually distinct
to support multiple commissions of the same offense do not readily
apply to crimes of possession. And we are not convinced that two
phones and a Dropbox account, standing alone, evidence Abad’s
possession of sexually exploitative material in factually distinct
ways — particularly when the two phones were recovered from one
physical location (Abad’s bedroom), the Dropbox account is cloud-
based, there was evidence that some images found in Dropbox were
the same images found on the S-IV, and there was no evidence that
the images found on the S-III were entirely different than the images
found on the S-IV.
44
¶ 92 The People did not argue at trial and have not identified on
appeal any other facts establishing distinct acts of possession by
Abad. Without prejudging the significance of such evidence, the
People do not contend that Abad acquired or controlled any of the
images or groups of images on a different date or at a different time
or from a different source than any of the other images or groups of
images. And they do not point us to evidence that Abad possessed
any of the images or groups of images for a different length of time
or for a different purpose than any of the others. Bott II, ¶ 14.
Without more, we cannot conclude on this record that the evidence
justified the charging of multiple offenses and the imposition of
multiple sentences. See id.; Friend v. People, 2018 CO 90, ¶ 23
(concluding the prosecution proved only a single crime in part
because “the information did not allege specific facts supporting”
five different counts and “although before us the People have
attempted to assign specific facts to particular counts, the
prosecution did not try the case that way”); People v. Abiodun, 111
P.3d 462, 471 (Colo. 2005) (noting that when determining whether a
defendant’s acts constitute factually distinct offenses, we look to
how the offenses were charged and to the evidence at trial); People
45
v. Meils, 2019 COA 180, ¶ 44 (merging four counts of sexual
exploitation of a child where there was “no indication that the
prosecution intended to demonstrate that count 1 occurred at a
different time than counts 2, 3, and 4”).
¶ 93 We also agree with Abad that it would be illogical to conclude
that possession of twenty-one images on each of three different
storage devices found in the same physical location may be
prosecuted as three separate class 4 felony offenses while
possession of sixty-three images (or 294 images, as in Bott II, ¶ 4)
on a single device must be prosecuted as a single class 4 felony
offense. See United States v. Elliott, 937 F.3d 1310, 1315 (10th Cir.
2019) (“It seems implausible that Congress could have intended to
punish an individual who possesses five images of child
pornography on five different devices five times more severely as an
individual who possesses the same five images on one device.”).
¶ 94 Because the evidence adduced at trial does not establish
factually distinct acts of possession, we conclude that Abad’s
convictions must merge and the case must be remanded for
resentencing, if necessary. See Bott I, ¶ 69 (vacating multiplicitous
convictions and remanding for resentencing); People v. Johnson,
46
2016 COA 15, ¶ 25 (“In multicount cases, judges typically craft
sentences on the various counts as part of an overall sentencing
scheme, but when a count is vacated and that scheme unravels,
they should have the discretion to reevaluate the underlying facts
and sentences on the remaining counts.”).
IV. Conclusion
¶ 95 We remand to the district court to merge Abad’s convictions on
counts 2-9 into his conviction on count 1, to amend the mittimus to
reflect the merger, and for resentencing, if necessary.7 We
otherwise affirm the judgment.
JUDGE DUNN and JUDGE FREYRE concur.
7 Where the original sentences for counts that are merged were
concurrent with the remaining count, there may be no need for
resentencing since the length of the initial sentence remains the
same after merger. See, e.g., Armintrout v. People, 864 P.2d 576,
578, 582 (Colo. 1993).
47