2021 COA 6
Colo. Ct. App.2021Background
- Investigators received an NCMEC cybertip identifying sexually exploitative images in a Dropbox account; Dropbox and Yahoo records led police to Zachariah Abad.
- Police executed a search warrant at Abad’s home and seized two cell phones (Samsung S‑III and S‑IV); forensic extractions recovered thousands of images and multiple videos, some overlapping with Dropbox content.
- Prosecutor charged Abad with nine counts of sexual exploitation of a child: six counts based on individual videos and three counts alleging possession of 21+ sexually exploitative images (one grouping from each of S‑III, S‑IV, and Dropbox).
- At trial the court admitted: (1) Dropbox contents authenticated by the investigating officer, (2) cell‑phone extraction reports and many images/videos after testimony from officers and a Cellebrite expert; hearsay and confrontation objections were overruled.
- The jury convicted on all nine counts (eight class 4 felonies, one class 6); the court imposed concurrent sentences. On appeal the court affirmed evidentiary rulings but held the multiple convictions were multiplicitous and ordered merger/remand for resentencing as necessary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authentication of Dropbox images | Dropbox produced subscriber/content and a thumb drive; officer authenticated disc and printed images as fair/accurate | Images were not properly authenticated as originating from Dropbox | Admission of Dropbox images was not an abuse of discretion; authentication threshold met |
| Authentication/hearsay for cell‑phone extraction reports and media | Officers and Cellebrite expert linked phones, extraction process, and file paths; extraction reports and machine‑generated tallies are admissible | Extraction reports and testimony were unauthenticated hearsay; confrontation violated | No reversible error: extraction reports sufficiently authenticated; machine‑generated content not hearsay; no confrontation violation |
| Multiplicity / double jeopardy | Each video and each >20‑item grouping on each device/count are separate offenses | Simultaneous possession across devices/items can be a single unit of prosecution; counts are multiplicitous absent factually distinct possession | Under Bott, possession of a video or possession of >20 items constitutes a single offense; simultaneous possession of multiple videos or multiple >20‑item groupings does not, by itself, justify multiple convictions absent evidence of factually distinct possession; convictions merged and remanded for resentencing |
Key Cases Cited
- People v. Bott, 2020 CO 86 (Colo. 2020) (unit of prosecution for possession: a video or possession of more than twenty qualifying items is a single offense)
- Woellhaf v. People, 105 P.3d 209 (Colo. 2005) (framework for assessing multiplicity and factual distinctness)
- Quintano v. People, 105 P.3d 585 (Colo. 2005) (factors for determining separate acts: time, location, volitional departures, intervening events)
- Davis v. Washington, 547 U.S. 813 (2006) (distinguishing testimonial hearsay for confrontation clause analysis)
- People v. Brassfield, 652 P.2d 588 (Colo. 1982) (reviewing sufficiency of evidence issues)
- United States v. Elliott, 937 F.3d 1310 (10th Cir. 2019) (reasonableness of treating multiple devices as separate punishable units)
- People v. Buckner, 228 P.3d 245 (Colo. App. 2009) (machine‑generated records are not hearsay)
- Armintrout v. People, 864 P.2d 576 (Colo. 1993) (practical effect of merging concurrent sentences on resentencing)