People v. Flores-Lozano
2016 COA 149
| Colo. Ct. App. | 2016Background
- Flores-Lozano was a shift manager at a fast-food restaurant and had authority to apply discounts via the POS system tied to employee IDs.
- A loss-prevention director, using the chain’s business analytics and video systems, identified numerous transactions where Flores-Lozano discounted sales to a few cents and suspected theft.
- The director extracted POS transaction data covering ~7.5 months, copied selected transactions into a spreadsheet of about 4,400 suspect discounts, and totaled the suspected thefts at $23,320.01.
- The director confronted Flores-Lozano, who admitted to theft in 54 specific instances shown with video/photos and receipts; he then referred the matter to police.
- Flores-Lozano was charged with theft over $20,000; at trial the amount was contested. The jury convicted her of the lesser included offense: theft of $1,000–$20,000.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the spreadsheet was hearsay | It was admissible under the business-records exception (CRE 803(6)) because it compiled POS data kept in the ordinary course. | The spreadsheet was hearsay and inadmissible; it was prepared by the director for litigation and was a human-manipulated document. | Court: The spreadsheet was hearsay but admissible under CRE 803(6). |
| Whether spreadsheet met CRE 803(6) foundation (timeliness, maker, regular practice, custody) | POS data were automatically generated at the time of sale; director was a qualified custodian who regularly investigated and kept such records. | The director used professional judgment to select/sort data and created a document (not an automatic machine output), undermining reliability. | Court: Foundation satisfied — underlying data were generated in the ordinary course; director regularly prepared and retained such investigative spreadsheets. |
| Whether preparation for litigation rendered it inadmissible | The director’s role and regular practice showed the spreadsheet was not created solely for litigation. | Voir dire testimony suggested the spreadsheet was prepared for litigation, which would bar business-record treatment. | Court: Trial court properly credited other testimony and circumstances; document was not exclusively prepared for litigation. |
| Challenge to the spreadsheet’s extrapolation/accuracy | Spreadsheet accurately reflected POS data; any alleged extrapolation affects weight, not admissibility. | The director used a faulty extrapolation process to compute the aggregate theft amount. | Court: Extrapolation/weight is a jury issue; defendant did not contest that spreadsheet accurately reflected POS data for admissibility purposes. |
Key Cases Cited
- People v. Buckner, 228 P.3d 245 (Colo. App. 2009) (automatic machine-generated information may not be hearsay)
- Schmutz v. Bolles, 800 P.2d 1307 (Colo. 1990) (elements for business-records exception)
- People v. Stribel, 609 P.2d 113 (Colo. 1980) (records prepared for litigation lose business-record reliability)
- Palmer v. A.H. Robins Co., Inc., 684 P.2d 187 (Colo. 1984) (business-record admissibility criteria)
- United States v. Keck, 643 F.3d 789 (10th Cir. 2011) (computer data compilations admissible when underlying data were generated in ordinary course)
- U-Haul Int’l, Inc. v. Lumbermens Mut. Cas. Co., 576 F.3d 1040 (9th Cir. 2009) (database compilations admissible under Rule 803(6) if criteria met)
- Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627 (2d Cir. 1994) (printouts of electronic data admissible when database compiled in ordinary course)
- United States v. Nixon, 694 F.3d 623 (6th Cir. 2012) (manager-run queries producing spreadsheets admissible as business records)
- United States v. Fujii, 301 F.3d 535 (7th Cir. 2002) (computer-generated printouts made for trial can be admissible if underlying database compiled in ordinary course)
- United States v. Burgos-Montes, 786 F.3d 92 (1st Cir. 2015) (selected data pulled from ordinary-course records fall under business-records exception)
- Dutch v. United States, 997 A.2d 685 (D.C. 2010) (data format or printout for trial does not defeat business-record status)