The People of the State of Colorado, Plaintiff-Appellee, v. Steven Thomas Heisler, Defendant-Appellant.
Court of Appeals No. 16CA0104
COLORADO COURT OF APPEALS
Announced May 4, 2017
2017COA58
Honorable Paul A. King, Judge; Opinion by CHIEF JUDGE LOEB; Rothenberg* and Casebolt*, JJ., concur
Douglas County District Court No. 14CR754; Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee; Law Office of Daniel Kyser, L.L.C., Daniel H. Kyser, Englewood, Colorado, for Defendant-Appellant. *Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
JUDGMENT AND SENTENCE AFFIRMED
Division V
Opinion by CHIEF JUDGE LOEB
Rothenberg* and Casebolt*, JJ., concur
¶ 1 Defendant, Steven Thomas Heisler, appeals the judgment of conviction entered on a jury verdict finding him guilty of one count of harassment. Heisler also appeals his sentence. We affirm.
I. Background and Procedural History
¶ 2 The victim and Heisler began dating in 2010 and carried on their relationship for three years. After they broke up in 2013, they remained in touch. In March 2014, however, the victim told Heisler that she was beginning a new relationship and no longer wished to communicate with him.
¶ 3 Heisler ignored the victim‘s request and sent her numerous text messages and letters, although the victim remained relatively unresponsive to these communications. Eventually, in December 2014, Heisler traveled from Florida, where he lived, to Colorado to talk to the victim in person — uninvited and unannounced. When the victim saw Heisler outside of her home, she called the police. Heisler was arrested and charged with one count of felony stalking and one count of harassment. The charging instrument alleged that both charges were acts of “domestic violence.” After a jury trial, Heisler was acquitted of the stalking charge but was found guilty of harassment.
¶ 4 At Heisler‘s sentencing hearing, the trial court sentenced him to thirty days in county jail and three years of supervised probation, which Heisler could serve in Florida. Pursuant to applicable statutes, the trial court also found that his conduct underlying his conviction included an act of domestic violence. Therefore, the court ordered Heisler to complete mandatory domestic violence treatment as a condition of his probation.
¶ 5 Heisler now appeals.
II. Authentication of Text Messages
¶ 6 Heisler contends that the trial court erred by admitting into evidence the text messages he sent to the victim because they were not properly authenticated under
A. Applicable Law and Standard of Review
¶ 7 Before evidence may be admitted,
¶ 8 The showing required to authenticate text messages under
¶ 9 In Bernard, a division of this court concluded that an e-mail may be authenticated (1) through the testimony of a witness with personal knowledge that the e-mail is what it is claimed to be or (2) “through consideration of distinctive characteristics shown by an examination of [the] contents and substance” of the e-mail under the circumstances of the case. Bernard, ¶ 10 (citing
¶ 10 More recently, in Glover, a division of this court expanded the Bernard standard, concluding that printouts of a social networking site require two levels of authentication. Glover, ¶ 23; see also Bernard, ¶ 10.
¶ 11 First, the proponent must authenticate the printouts of a social networking site as actual depictions of the site. Glover, ¶ 23. This may be done through testimony from someone with personal knowledge of how the printouts were obtained, or through an examination of distinctive characteristics in the printouts’ content or substance. Id. at ¶¶ 23-24.
¶ 12 Second, the proponent must sufficiently authenticate the identity of the purported sender by showing that “the communications [sent through the social networking site] were made by [the] defendant.” Id. at ¶¶ 23, 28. As in Bernard, the Glover division concluded that the identity of the purported sender must be proved “beyond confirmation that the social networking account [was] registered to the party purporting to create [the] messages.” Glover, ¶ 30; see also Bernard, ¶ 10. However, a witness with personal knowledge who testifies to any combination of at least two of the following elements would sufficiently authenticate the identity of the purported sender: (1) the account was registered to the purported sender; (2) corroborative evidence showed that the account was used by the purported sender; (3) the substance of the communications was recognizable as being from the purported sender; (4) the sender “responded to an exchange in such a way as to indicate circumstantially that he or she was in fact the author of the communication“; and (5) any other confirming evidence under the circumstances. Glover, ¶¶ 30-34.
¶ 13 We review a trial court‘s evidentiary rulings for an abuse of discretion. Davis v. People, 2013 CO 57, ¶ 13. A court abuses its discretion when its ruling is (1) based on an erroneous understanding or application of the law; or (2) manifestly arbitrary, unreasonable, or unfair. People v. Esparza-Treto, 282 P.3d 471, 480 (Colo. App. 2011).
B. Analysis
¶ 14 For the following reasons, we conclude that the text messages in this case were properly authenticated and, accordingly, we perceive no error by the trial court in admitting them into evidence.
¶ 15 In light of Glover and Bernard, we conclude that authentication of text messages has two components. First, a witness with personal knowledge must testify that printouts of text message(s) accurately reflect the content of the message(s). Second, a witness with personal knowledge must provide testimony establishing the identity of
¶ 16 Applying that test here, the record shows that, at trial, the prosecution introduced printouts of numerous text messages that Heisler had sent to the victim. The victim authenticated this evidence in the following ways:
- The victim testified that she recognized the pictures of the text messages and that they were a fair and accurate depiction of the texts she personally received.
- The victim testified that she recognized the phone number as Heisler‘s, and that she would use that number to communicate with him.
- The victim testified that she recognized the content of the text messages as being from Heisler.
¶ 17 Based on this testimony, the prosecution moved to admit the evidence. Defense counsel objected and requested voir dire.
¶ 18 During voir dire, the victim admitted that she had deleted the text messages she sent to Heisler in response. The defense then objected to admission of the printouts because they were not a “true and accurate depiction of the conversations” between the victim and Heisler. The trial court overruled this objection and admitted the texts into evidence.
¶ 19 As a threshold matter, we note that Heisler does not argue that the printouts of the text messages were not accurate representations of the text messages the victim received. Nor does he contest that he was the author of the text messages. Instead, Heisler contends that the text messages were not properly authenticated because the victim deleted her responses. We are not persuaded.
¶ 20 First, the record reflects that the prosecution presented sufficient evidence that (1) the printouts of the text messages accurately reflected the content of the messages the victim received and (2) Heisler authored the text messages. The victim testified that the printouts accurately reflected the texts she received, she recognized the number as being Heisler‘s and she would use that number to communicate with him, she recognized the content of the text messages as being from Heisler, and the content of the text messages included corroborative evidence that they came from Heisler. See Glover, ¶ 13 (noting that the proponent‘s burden to authenticate the evidence is not high).
¶ 21 Second, the record shows that the text messages were admitted as evidence of texts the victim received from Heisler, not as evidence of a conversation between the victim and Heisler. Therefore, because the victim‘s testimony was sufficient to support a finding that the text messages were from Heisler (which he did not dispute), we conclude that the printouts were properly authenticated.
¶ 22 To the extent that Heisler takes issue with the victim‘s deletion of her responses, that issue goes to the weight of the evidence, not its authenticity. Bernard, ¶ 12.
¶ 23 For these reasons, we discern no error by the trial court in concluding that the text message evidence was properly authenticated.
III. Facial Challenge to Domestic Violence Statute
¶ 24 Heisler also contends that the domestic violence sentencing statute,
¶ 25 The People argue that
¶ 26 For the reasons below, we agree with the People.
A. Applicable Law and Standard of Review
¶ 27 In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court announced the following rule:
The Sixth and Fourteenth Amendments to the United States Constitution require that any fact that increases the penalty for a crime beyond the statutory maximum, except the fact of a prior conviction, must be submitted to a jury and proven beyond a reasonable doubt.
People v. Montour, 157 P.3d 489, 495 (Colo. 2007). Under Apprendi, the Sixth Amendment “does not permit a defendant to be ‘expose[d] to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.‘” Ring v. Arizona, 536 U.S. 584, 588-89 (2002) (alteration in original) (quoting Apprendi, 530 U.S. at 483).
¶ 28 In Blakely v. Washington, 542 U.S. 296, 306-12 (2004), the Supreme Court applied Apprendi and further held that, except for the fact of a prior conviction, facts supporting the increase of a sentence beyond the “statutory maximum” must be admitted by the defendant or tried to a jury and proved beyond a reasonable doubt, unless the defendant has specifically stipulated to judicial factfinding. See Lopez v. People, 113 P.3d 713, 720 (Colo. 2005).
¶ 29 In Alleyne, 570 U.S. at __, 133 S. Ct. at 2155, the Court extended Apprendi and held that, with certain exceptions not relevant here, any fact that increases a defendant‘s mandatory minimum sentence must also be found by a jury under the Sixth and Fourteenth Amendments.
¶ 30 Together, Apprendi, 530 U.S. at 490, and Alleyne, 570 U.S. at __, 133 S. Ct. at 2155, prohibit the legislature from requiring “judges to impose enhanced sentences based on constitutionally impermissible judicial fact-finding [under Blakely, 542 U.S. at 306-12]” that raises the floor or ceiling of the mandatory sentencing range. Lopez, 113 P.3d at 731.
¶ 31 Under Colorado law, a person is guilty of harassment where he or she directly communicates with a person by text message “in a manner intended to harass or threaten bodily injury or property damage.”
¶ 32 Under
When it appears to the satisfaction of the court that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, the court may grant the defendant probation for such period and upon such terms and conditions as it deems best.
The length of probation shall be subject to the discretion of the court and may exceed the maximum period of incarceration authorized for the classification of the offense of which the defendant is convicted but shall not exceed five years for any misdemeanor or petty offense.
¶ 33 As pertinent here,
[i]n addition to any sentence that is imposed upon a person for violation of any criminal law under this title, any person who is convicted of any crime, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3(1)[, C.R.S. 2016], shall be ordered to complete a treatment program and a treatment evaluation that conform with the standards adopted by the domestic violence offender management board as required by section 16-11.8-103(4), C.R.S. [2016].
¶ 34 “Domestic violence” includes any crime, “when used as a method of coercion, control, punishment, intimidation, or revenge [and] directed against a person with whom the actor is or has been involved in an intimate relationship.”
¶ 35 “‘A trial court has broad discretion over sentencing decisions.’ However, we review constitutional challenges to sentencing determinations de novo.” People v. Jaso, 2014 COA 131, ¶ 8 (citations omitted). Further, “[o]ut of respect to the legislative and executive branches, we begin with the presumption that a statute is constitutional.” Montour, 157 P.3d at 499.
¶ 36 “A statute is facially unconstitutional only if no conceivable set of circumstances exist under which it may be applied in a constitutionally permissible manner.” Id. Thus, “[t]he party challenging the facial constitutionality of a statute has the burden of showing the statute is unconstitutional beyond a reasonable doubt.” Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo. 2007).
B. Preservation
¶ 37 The People initially argue that Heisler failed to adequately preserve his constitutional contention. We disagree.
¶ 38 After the close of the evidence at trial, defense counsel requested a jury instruction on the domestic violence finding. Specifically, defense counsel stated:
DEFENSE: Your Honor, I would be asking that [a] special interrogatory be given. I think in a case like this, something like domestic violence is a factual decision. It‘s a decision to be decided from the facts. So I would ask the Court to give the jury . . . [a] domestic violence special interrogatory . . . [a]long with the definition of domestic violence.
¶ 39 It is clear from the record that the prosecution understood Heisler‘s objection to be based on the Sixth Amendment, because it objected to defense counsel‘s request and engaged in the following colloquy with the court:
PROSECUTION: . . . [W]hat triggers Apprendi [is] not what we have in this case. There is no greater sentence that the Court would be imposing. The Court could sentence the defendant to domestic violence treatment regardless of the jury finding. . . .
COURT: I want to make sure I understand your argument. You‘re saying that the domestic violence designation in this case . . . cannot increase the sentence beyond the prescribed statutory maximum in this matter; is that correct?
PROSECUTION: That is correct, Your Honor.
¶ 40 Ultimately, the trial court denied Heisler‘s request, concluding that Apprendi, 530 U.S. at 490, and Blakely, 542 U.S. at 306-12, did not require the jury to determine whether the underlying conviction included an act of domestic violence.
¶ 41 Further, based on our review of the record, Heisler reasserted a Sixth Amendment argument at the sentencing hearing.
¶ 42 Although we recognize that Heisler did not precisely raise a facial Sixth Amendment challenge to
¶ 43 We conclude that “defense counsel offered the trial court an adequate opportunity to commence a sufficient inquiry into the [Sixth Amendment] violation” under Apprendi, 530 U.S. at 490, and its progeny. Melendez, 102 P.3d at 322. Therefore, this issue was properly preserved for our review. Id.
C. Analysis
¶ 44 We hold, as a matter of first impression in Colorado, that
¶ 45 For the reasons set forth below, we conclude that court-ordered domestic violence treatment, imposed pursuant to
¶ 46 To begin, we note that an essential prerequisite to the Sixth Amendment inquiry under Apprendi and Alleyne is that the sentence must be punitive in nature. See Alleyne, 570 U.S. at __, 133 S. Ct. at 2158-60; Blakely, 542 U.S. at 306-12; Apprendi, 530 U.S. at 490-95; see also Rowland, 207 P.3d at 895 (concluding that where a sentence is not punitive in nature, Apprendi is inapplicable); Stead, 66 P.3d at 123 (same). Although not argued by the parties, in our view, the seven-factor test set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), is the proper analytical framework for determining whether a sentence imposes a form of punishment. Based on our analysis of these factors below, we conclude that the prerequisite of punishment is not satisfied here.
¶ 47 In Mendoza-Martinez, the United States Supreme Court adopted a seven-factor test to determine whether a sentence is punitive in nature:
[1] [w]hether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment — retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be
connected is assignable for it, [7] and whether it appears excessive in relation to the alternative purpose assigned
are all relevant to the inquiry, and may often point in differing directions.
Id. (footnotes omitted). No one factor is controlling. Rowland, 207 P.3d at 893.
¶ 48 “Absent conclusive evidence of congressional intent as to the penal nature of a statute, [the Mendoza-Martinez] factors must be considered in relation to the statute on its face.” Mendoza-Martinez, 372 U.S. at 169. Because
1. No Affirmative Disability or Restraint
¶ 49 We first conclude that the domestic violence treatment program does not impose an “affirmative disability or restraint,” let alone restraint approaching “the infamous punishment of imprisonment.” In re Cardwell, 50 P.3d 897, 904 (Colo. 2002) (quoting Hudson v. United States, 522 U.S. 93, 104 (1997)). Specifically, domestic violence treatment “does not, on its face, restrict where an offender may live or work and does not alter either the length of [probation or] incarceration.” Rowland, 207 P.3d at 893; see also Stead, 66 P.3d at 121.
2. Not Historically Regarded as Punishment
¶ 50 We next conclude that domestic violence treatment, which prioritizes rehabilitation as well as victim and public safety, is not analogous to traditional forms of punishment.
¶ 51 The plain language of
¶ 52 Under
provide for the evaluation and recommend behavior management, monitoring, and treatment [of domestic violence offenders;] . . . [and] develop and implement methods of intervention for domestic violence offenders
that have as a priority the physical and psychological safety of victims and potential victims and that are appropriate to the needs of the particular offender, so long as there is no reduction in the level of safety of victims and potential victims.
be as flexible as possible so that the programs may be utilized by each offender to prevent the offender from harming victims and potential victims[;] . . . [and] shall be structured in such a manner that they provide a continuing monitoring process as well as a continuum of treatment programs for each offender as that offender proceeds through the criminal justice system.
¶ 53 Lastly, “[i]f an intake evaluation conducted by an approved treatment program provider discloses that sentencing to a treatment program would be inappropriate” for the defendant, for any of the concerns outlined in
¶ 54 In our view, the rehabilitative nature of the domestic violence treatment program is clearly set forth in the statutory scheme. We further conclude that such treatment is not analogous to traditional forms of punishment. See, e.g., Rowland, 207 P.3d at 892. Indeed, domestic violence treatment is more akin to other sentences, imposed through judicial factfinding, that Colorado courts have concluded do not violate Apprendi or its progeny. Id. at 895 (concluding that the Sixth Amendment right to have certain facts found by a jury beyond a reasonable doubt does not apply to the sexually violent predator community notification requirement because such notification is not punitive); see also People v. Smith, 181 P.3d 324, 326-27 (Colo. App. 2007) (holding that the Sixth Amendment right to have certain facts found by a jury beyond a reasonable doubt does not apply to restitution orders because, inter alia, restitution is not punitive).
¶ 55 Other Colorado cases give further context to the nature of punishment. See Allen v. People, 2013 CO 44, ¶ 7 (concluding that a sexually violent predator determination is not punitive in nature); In re Cardwell, 50 P.3d at 904 (concluding that attorney regulation proceedings and sanctions are not punitive in nature, but are designed to protect public safety); People v. Milton, 732 P.2d 1199, 1203-04 (Colo. 1987) (holding that a forfeiture sanction is not punitive, but remedial, in nature); People In Interest of C.J.R., 2016 COA 133, ¶ 28 (noting that civil commitment for mental health treatment is not punitive in nature); Mayo v. People, 181 P.3d 1207, 1212 (Colo. App. 2008) (concluding that the sex offender registration requirement is not punitive in nature, but, rather, is designed to aid law enforcement officials and protect public safety); People v. Howell, 64 P.3d 894, 899 (Colo. App. 2002) (concluding that imposition of costs is not punitive, but remedial, in nature).2
¶ 56 Thus, we conclude that sentencing a defendant to domestic violence treatment is not a traditional form of punishment.
3. No Requirement of a Finding of Scienter
¶ 57 Under the plain language of
4. Deterrence and Retribution
¶ 58 The domestic violence treatment program does have a goal of deterrence, because such treatment is specifically designed to reduce the occurrence of future acts of domestic violence. See
5. Criminal Behavior
¶ 59 The behavior to which domestic violence treatment attaches is a crime. See
6. Alternative Purpose Rationally Connected to Domestic Violence Treatment
¶ 60 We further conclude that a finding of domestic violence is rationally connected to court-ordered rehabilitative treatment. See Stead, 66 P.3d at 122. The domestic violence statute is narrowly drawn, because it limits the treatment program to only those individuals who (1) have committed an act of domestic violence; (2) would benefit from such treatment; and (3) would not pose a risk to victims or potential victims. See id.; see also
¶ 61 Moreover, we discern no alternative, punitive purpose to the imposition of domestic violence treatment that undercuts its rehabilitative purpose. See Mendoza-Martinez, 372 U.S. at 168-69.
7. No Excessive Burden
¶ 62 Finally, we conclude that, to the extent the domestic violence treatment program imposes burdens on a defendant, they are not excessive. We recognize that the domestic violence treatment program “is not without [some] burdensome consequences to the [defendant],” in terms of cost and duration, but “[treatment] is primarily directed
¶ 63 In conclusion, the Mendoza-Martinez analysis indicates that court-ordered domestic violence treatment, based on a trial court‘s finding of domestic violence under
¶ 64 In sum, we perceive no error by the trial court in making a finding of domestic violence under the domestic violence statute. In light of our resolution of this issue, we further perceive no error in the court‘s denial of Heisler‘s request for a jury instruction under Blakely, 542 U.S. at 306-12, and we need not further consider that argument. See Club Matrix, LLC v. Nassi, 284 P.3d 93, 99 (Colo. App. 2011) (stating that we need not address additional arguments rendered moot by our ultimate disposition of an issue).
IV. Conclusion
¶ 65 The judgment and sentence are affirmed.
JUDGE ROTHENBERG and JUDGE CASEBOLT concur.
Notes
[d]irectly or indirectly initiates communication with a person or directs language toward another person, anonymously or otherwise, by telephone, telephone network, data network, text message, instant message, computer, computer network, computer system, or other interactive electronic medium in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, computer system, or other interactive electronic medium that is obscene.