The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Bradford Steven RAEHAL, Defendant-Appellant.
Court of Appeals No. 15CA0414
Colorado Court of Appeals, Div. VII.
Announced February 23, 2017
Rehearing Denied April 13, 2017
2017 COA 18
Krista A. Schelhaas, Alternate Defense Counsel, Littleton, Colorado, for Defendant-Appellant
¶ 1 Bradford Steven Raehal was convicted of multiple sexual offenses in сonnection 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
¶ 2 We reject each of these contentions, and therefore affirm Raehal‘s convictions. However, Raehal also contends that the court erronеously 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
¶ 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 аcts 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 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, Raehаl 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
¶ 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, --- P.3d --- (cert. granted Oct. 31, 2016). We disagree, аnd conclude that the claim was adequately preserved.
¶ 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 tо 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.
¶ 12 We review a decision concerning the joinder of separate charges for an abuse of discretion. People v. Curtis, 2014 COA 100, ¶ 14, 350 P.3d 949. An abuse of discretion occurs whеn 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
¶ 14 Raehal concedes that, under
¶ 15 We disagree that the district court was required to separately analyze the photos under
¶ 16 Accordingly, we need only address Raehal‘s claim that the photographs were unduly prejudicial under
¶ 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
¶ 18 Even if we assume the court erred by failing to give a limiting instruction, any errоr did not affect the reliability of the judgment of conviction.
¶ 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 instruct-
¶ 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 expired. We reject both contentions and conclude that the district cоurt 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 computеr 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 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 camеras “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 locаtion 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 analysis occurred outside the statutory fourteen-day time frаme for executing the warrant. See
¶ 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 officеrs 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 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 nоt 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 camеra 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 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 seаrch 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 thоse 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 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 mеdia 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 evidenсe 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 preponderanсe of the evidence that the other act occurred and the defendant committed it.
¶ 34 Prior to trial, the prosecution moved to admit evidence, pursuant to
¶ 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 wаs 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 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 erroneоus information. Because Raehal does not otherwise challenge the admission of this evidence, we perceive no error.
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
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.