22CA1084 Peo v Albritton 08-29-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1084

Jefferson County District Court No. 21CR1581

Honorable Lily W. Oeffler, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Phillip Marcus Albritton,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V

Opinion by JUDGE BERGER*

Brown and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 29, 2024

Philip J. Weiser, Attorney General, Lane Towery, Assistant Attorney General

Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John P. Finnegan, Deputy

State Public Defender, Denver, 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. 2024.

1

¶ 1 Defendant, Phillip Marcus Albritton, appeals his convictions

for attempted first degree assault, felony menacing, and third

degree assault. He challenges the search warrant for his cell phone

under the Fourth Amendment, jury unanimity, the admission of

records from his cell phone based on hearsay and confrontation,

and the admission of his Google searches as unfairly prejudicial

character evidence. We address and reject all of these claims and

therefore affirm.

I. Relevant Facts and Procedural History

¶ 2 Viewing the evidence presented at trial in the light most

favorable to the verdicts, the jury was entitled to find the following

facts.

¶ 3 Albritton and Anya Burk dated until late April 2021. Two

months later, on June 17, 2021, Burk went to a park with her

former boyfriend, Seamus Johnson. Burk did not tell Albritton that

she was going to the park with Johnson. But while Burk and

Johnson were there, Albritton drove into the park, made eye contact

with Burk and Johnson, and drove away. Burk told Johnson that

the driver was her ex-boyfriend. Johnson and Burk decided to go to

a different park.

2

¶ 4 While driving to the new park, Johnson received text messages

from an unknown number saying, “[Y]ou fucking cheating ass bitch

I swear to God I hate you. I’m sending my brother over there

Seamus,” and “[W]hy don’t you come back to the park and have a

conversation with me.” Johnson also received a voice call from the

same phone number, but he did not answer the phone.

¶ 5 Shortly after Johnson and Burk arrived at the second park,

Albritton sped into the parking lot, nearly hitting Johnson and

Burk. Albritton left his vehicle and charged Johnson, holding a

knife. Albritton followed Johnson, saying that he was going to “kill”

him. Johnson tripped, and Albritton caught up to him, putting him

in a headlock. Albritton held the knife up to Johnson’s neck, twice

saying “get down on the ground or else I will slit your throat.”

Johnson managed to get away.

¶ 6 Johnson then ran around to the trunk of his vehicle to grab a

rifle he had stored inside. Before Johnson could retrieve the gun,

Albritton grabbed an ice auger from Johnson’s trunk and threw it at

Johnson, missing him. Johnson was then able to get ahold of his

rifle and pointed it at Albritton, threatening him. Albritton then got

in his car and drove away.

3

¶ 7 The police were called and, about an hour later, located

Albritton and arrested him. Officers seized his phone at the time of

his arrest.

¶ 8 Albritton was charged with attempted first degree murder,

attempted first degree assault, felony menacing, and third degree

assault.

¶ 9 The jury acquitted Albritton of attempted murder but

convicted him of attempted first degree assault, menacing, third

degree assault, and other lesser charges. He was sentenced

accordingly.

II. Analysis

A. General Warrant

¶ 10 Albritton argues that the trial court reversibly erred by failing

to suppress evidence obtained from his phone. He contends that

the warrant was a “general” warrant that failed to establish

probable cause and thus violated the Fourth Amendment. He also

claims that the warrant was not sufficiently particular to meet

Fourth Amendment requirements.

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1. Additional Facts

¶ 11 The police obtained a search warrant to search Albritton’s

phone for the following:

• “Data which tends to show possession, dominion and

control over said equipment”;

• “Passwords, encryption keys, codes, and/or other devices or

information that may be necessary to access the device and

its contents”;

• “Date/time, language, and other settings preferences to

include wireless local area network setting(s), Bluetooth

settings to include device name(s), hotspot SSID (name),

and MAC address and connection dates and times to the

device”;

• “System and device usage files, logs, and databases utilized

to record device activities such as lock/unlock activities,

powering on/off cycles, installation and deletions records”;

• “Telephone contact lists, phone books, telephone logs, MMS

SMS message” from June 17, 2021;

• “Data contained in notes, reminders, documents, calendars

and/or other similar applications that relates to the

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planning and commission of the attempted 1st Degree

Murder that occurred on 06/17/21” from June 17, 2021;

• “Communications made, stored, sent, received or deleted

that relate to the planning and commission of the attempted

1st Degree Murder that occurred on 06/17/21” from June

17, 2021;

• “Photos and videos created, stored, sent, received or

deleted, or documents containing such photographs or

videos that relate to the planning and commission of

attempted 1st Degree Murder that occurred on 06/17/21”;

• “All electronic files, data, videos, and communications,

including related metadata and location data, stored, sent,

received or deleted from social media and third-party

applications located on the device that relate to the

planning and commission of the attempted 1st Degree

Murder that occurred on 06/17/21”;

• “Global position system (GPS) data and any other

geolocation data that relates to the planning and

commission of the attempted 1st Degree Murder that

occurred on 06/17/21” from June 17, 2021; and

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• “Records of internet activity that relates to the planning and

commission of the attempted 1st Degree Murder that

occurred on 06/17/21” from June 17, 2021.

¶ 12 Albritton moved to suppress most of the evidence obtained by

the warrant.

¶ 13 The trial court denied the suppression motion. It determined

that there was probable cause to search the phone because the

officers reasonably believed that Albritton was using his phone to

track and communicate with the victim on the day of the attack. It

also concluded that the warrant was limited to one date, June 17,

2021, thus satisfying the Fourth Amendment’s particularity

requirement.

2. Probable Cause

¶ 14 Albritton contends that the affidavit failed to establish

probable cause to search anything except Albritton’s text messages,

phone log, and Snapchat.

¶ 15 The Warrant Clause of the Fourth Amendment to the United

States Constitution protects people from unreasonable searches

and seizures. It states that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly

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describing the place to be searched, and the persons or things to be

seized.” U.S. Const. amend. IV. The Colorado Constitution

contains similar, though not identical, provisions in article II,

section 7, which states that “no warrant to search any place or seize

any person or things shall issue without describing the place to be

searched, or the person or thing to be seized, as near as may be.”

1

¶ 16 To establish probable cause, a warrant affidavit must “allege

facts sufficient to cause a reasonably cautious person to believe

that evidence of criminal activity” exists in the place to be searched.

People v. Omwanda, 2014 COA 128, ¶ 21. We review the totality of

circumstances to determine whether probable cause exists. People

v. Miller, 75 P.3d 1108, 1113 (Colo. 2003). “This analysis does not

lend itself to mathematical certainties or bright line rules; rather, it

involves a practical, common-sense determination whether a fair

1

Albritton does not make any separate argument under the

Colorado Constitution, so we limit our analysis to the Fourth

Amendment. People v. Lewis, 2017 COA 147, ¶ 12 n.2 (“Where, as

here, a defendant does not make a specific objection, with a

separate argument, under the state constitution, we must presume

the defendant’s objections are based on federal, not state,

constitutional grounds, and limit our review accordingly.”) (citation

omitted).

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probability exists that a search of a particular place will reveal

contraband or other evidence of criminal activity.” Id.

¶ 17 The totality of the circumstances described in the warrant

affidavit showed a fair probability that a search of the phone would

reveal “evidence of criminal activity” such as text messages, call

logs, internet searches, social media messages, and GPS data

related to Albritton’s tracking of Johnson and Burk. See Omwanda,

¶ 21.

¶ 18 As for the particular categories of data to be searched on the

cell phone, we reject Albritton’s (arguably conclusory) argument

that the warrant and affidavit did not adequately establish probable

cause. The categories to be searched were relevant to proving

Albritton’s possession and usage of the phone on the day of the

attack, as well as specific data stored on the phone that could be

relevant to the planning and commission of the crime.

¶ 19 We conclude that, based on the facts alleged in the affidavit

that Albritton used his phone in commission of the crime, there was

more than sufficient probable cause for the police to search the

phone for all the data categories listed in the affidavit. People v.

Kazmierski, 25 P.3d 1207, 1211 (Colo. 2001) (affidavit must supply

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a sufficient nexus between criminal activity, the things to be seized,

and the place to be searched).

3. Particularity

¶ 20 Next, Albritton argues that the court erred in determining that

the warrant satisfied the Fourth Amendment’s particularity

requirement.

a. Standard of Review and Legal Principles

¶ 21 A trial court’s suppression ruling presents a mixed question of

law and fact; thus, “[w]e accept the trial court’s findings of historic

fact if those findings are supported by competent evidence, but we

assess the legal significance of the facts de novo.” People v. Davis,

2019 CO 24, ¶ 14 (citation omitted).

¶ 22 A search conducted pursuant to a warrant is typically

reasonable. People v. Coke, 2020 CO 28, ¶ 34. However, so-called

“general warrants,” which permit “a general, exploratory rummaging

in a person’s belongings,” are prohibited. Id. (quoting Andresen v.

Maryland, 427 U.S. 463, 480 (1976)). To prevent general

exploratory searches, the Fourth Amendment requires “a ‘particular

description’ of the things to be seized.” Id. (quoting Andresen, 427

U.S. at 480).

10

¶ 23 In determining whether this requirement is met, “courts are

required to read warrants and the accompanying affidavits

[together] in a practical, common sense fashion.” People v.

Roccaforte, 919 P.2d 799, 804 (Colo. 1996).

¶ 24 An affidavit submitted in support of a warrant may cure a

warrant’s facial lack of particularity if (1) the deficient warrant

incorporated the curative affidavit by reference; (2) both documents

were presented to the issuing judge or magistrate; and (3) the

curative affidavit accompanied the warrant during the execution of

the search warrant. People v. Staton, 924 P.2d 127, 132 (Colo.

1996).

b. Discussion

¶ 25 Relying on Coke, Albritton argues that the warrant does not

contain a limiting principle and is thus invalid. He claims that the

language in the warrant limiting the search only to data that

“relates to” the June 17 incident is an insufficient limiting principle.

We disagree.

¶ 26 In Coke, ¶ 1, the defendant was charged with sexual assault

on a child. The police obtained a warrant to search the defendant’s

cell phone for all texts, videos, pictures, contact lists, phone

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records, and any data showing ownership or possession. Id. at

¶¶ 35, 38. The Colorado Supreme Court held that the warrant

violated “the particularity demanded by the Fourth

Amendment” because it contained “no particularity as to the alleged

victim or to the time period during which the assault allegedly

occurred” and essentially “authorized a general search” of the

defendant’s phone. Id. at ¶ 38.

¶ 27 Under Coke, broad searches may be sustained against

particularity challenges if they include certain limiting principles.

To be sufficiently particularized, warrants for the search of data on

cell phones must include specific limitations based on (1) the type

of alleged criminal activity; (2) the identity of the alleged victim; and

(3) if applicable, the timeframe within which the suspected crime

occurred. Id.; see also People v. Herrera, 2015 CO 60, ¶ 20.

¶ 28 The warrant here employed the limiting principles required by

Coke. The warrant limited multiple categories to a specific crime,

only allowing officers to search for data “related to the planning and

commission of the attempted 1st Degree Murder that occurred on

06/17/21.” Other categories were additionally limited to the

12

timeframe in which the suspected crime occurred, by including the

language “limited to date of 06/17/21.”

¶ 29 We observe that both the warrant and the accompanying

affidavit were comprehensive and meticulously drafted. Indeed, we

do not see how the police could have been more specific, and

Albritton offers no suggestions. These limiting principles

circumscribed the search for evidence of a particular crime (the

attempted murder against Johnson) committed on a particular day

(June 17, 2021). Therefore, the warrant was valid under Coke and

the Fourth Amendment.

¶ 30 Albritton also argues that the court erred in assuming that the

warrant was looking at only one date, June 17, 2021. He argues

that some of the categories were not limited to a date range. We

agree that some categories in the warrant do not contain an explicit

limitation to a date or crime. However, we must read the warrant

and accompanying affidavit in a practical commonsense fashion.

Roccaforte, 919 P.2d at 804.

¶ 31 The affidavit clearly states that

[t]he date range of the information requested

for the search warrant requested is limited to

only 06/17/21 (Mountain Standard Time) to

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determine if communication took place

regarding the attempted 1st Degree Murder.

[Albritton] is believed to have been sending

messages to the victim just prior to attempting

to stab the victim.

(Emphasis added.)

¶ 32 Thus, a commonsense reading of the warrant and

accompanying affidavit together clearly indicates that the warrant

was limited to June 17, 2021, the day the alleged crime occurred.

See Roccaforte, 919 P.2d at 804 (a warrant that permitted a search

for all records pertaining to a business, including electronically

stored data, satisfied the particularity requirement because the

supporting affidavit narrowed the search to business documents

pertaining to particular dates that were related to a particular

crime).

¶ 33 Further, even if the warrant itself was insufficient in any way,

we conclude that all three Staton factors exist here to cure any

deficiencies. First, the warrant explicitly says that it incorporates

the supporting affidavit. Staton, 924 P.2d at 132. Second, that

language, as well as the district court’s signature on the warrant

application and affidavit, indicates that the court had the affidavit

before it when it signed the warrant. Id. Third, the fact that the

14

warrant and supporting affidavit are contained in a single,

continuously paginated document indicates that the affidavit

accompanied the warrant when it was executed by the judicial

officer. Id. Indeed, the forensic analyst who generated the report

from the cell phone data testified that she selected the “limited date

from the search warrant.”

¶ 34 In sum, we conclude that even though some categories of the

search warrant did not contain an explicit limiting principle, the

supporting affidavit cured any deficiency, and the warrant therefore

met the Fourth Amendment’s particularity requirement. People v.

Terhorst, 2015 COA 110, ¶ 24 (“We may affirm a denial of a

suppression motion ‘on any basis for which there is a record

sufficient to permit conclusions of law, even though they may be on

grounds other than those relied upon by the trial court.’” (quoting

Moody v. People, 159 P.3d 611, 615 (Colo. 2007))). The court

correctly denied the motion to suppress.

B. Jury Unanimity and Variance

¶ 35 Next, Albritton contends that the trial court plainly erred in

not requiring the prosecution to elect or provide a modified

unanimity instruction because the prosecutor presented evidence of

15

multiple weapons that could have supported his assault and

menacing convictions. He argues that this created a prejudicial

variance that rendered the jury’s verdict for the assault and

menacing charges not unanimous. His arguments appear to

conflate the requirement of jury unanimity with the principles that

prohibit variances. Accordingly, we address both in turn.

1. Standard of Review

¶ 36 We agree with the parties that this claimed error was

unpreserved; therefore, we review any error under the plain error

standard and reverse only if the error is obvious and so undermined

the fundamental fairness of the trial as to cast serious doubt on the

reliability of the judgment of conviction. People v. Rediger, 2018 CO

32, ¶ 48.

2. Jury Unanimity

¶ 37 A jury’s verdict must be unanimous. § 16-10-108, C.R.S.

2024. “Unanimity means only that each juror agrees that each

element of the crime charged has been proved to that juror’s

satisfaction beyond a reasonable doubt.” People v. Linares-Guzman,

195 P.3d 1130, 1134 (Colo. App. 2008).

16

¶ 38 When the prosecution presents evidence of multiple discrete

acts, each one of which could constitute the offense charged, and

jurors are reasonably likely to disagree about which act the

defendant committed, the court must either require the prosecution

to elect a particular act or instruct the jury that it must agree that

the defendant committed the same act or acts or all of the acts.

People v. Archuleta, 2020 CO 63M, ¶¶ 21-22. But if the defendant

is charged with multiple criminal acts occurring in a single

transaction, neither an election of acts nor a modified unanimity

instruction is required. People v. Hines, 2021 COA 45, ¶ 50.

¶ 39 We review de novo whether a court erred by failing to require

an election or provide a unanimity instruction. People v. Wagner,

2018 COA 68, ¶ 38.

¶ 40 Albritton claims that the prosecution charged him with the

single transaction of assaulting and menacing Johnson with a knife

because the complaint specified that he committed both crimes “by

means of a deadly weapon, namely: knife.” But at trial, the

prosecution introduced evidence that Albritton attacked Johnson

with other weapons, including an ice auger and his hands. So, his

argument goes, the prosecution introduced evidence of multiple

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acts that the jury could have separately, and non-unanimously,

based the conviction on. To cure the possibility of a non-

unanimous verdict, he contends that the court should have either

required the prosecution to elect the knife as the deadly weapon, as

it did in the complaint, or give a modified unanimity instruction to

the jury.

¶ 41 We disagree with Albritton that three separate acts occurred —

the attack with the knife, throwing the ice auger, and the

chokehold. Instead, we conclude that these acts were part of a

single criminal transaction because they involved the same victim;

occurred in the same location; occurred within a short period of

time; and were part of a single, ongoing violent attack. See People

v. Hanson, 928 P.2d 776, 779-80 (Colo. App. 1996) (finding, in a

menacing case, that two separate confrontations with the same

victim, in the same location, within a short period of time, and

arising out of the same circumstances constituted a single

transaction). When the acts are part of a single transaction, no

election or special unanimity jury instruction is required. Hines,

¶ 50. Thus his jury unanimity argument fails.

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3. Simple Variance

¶ 42 Albritton also argues that the difference between the charging

document and the conviction created a prejudicial simple variance

requiring reversal of his convictions. We disagree.

¶ 43 A variance occurs when the charge contained in the charging

instrument differs from the charge for which a defendant is

convicted. Campbell v. People, 2020 CO 49, ¶ 45. There are two

types of variances — a simple variance, which occurs when the

charging terms are unchanged, but the evidence proves facts

materially different from those alleged in the charging document,

and a constructive amendment, which changes an essential

element of the charged offense, thereby altering the substance of

the charging document. People v. Rice, 198 P.3d 1241, 1245 (Colo.

App. 2008). A constructive amendment may be per se reversible,

but a simple variance does not require reversal unless it prejudices

the defendant’s substantial rights. Id.

¶ 44 Initially, we do not see a material discrepancy between the

facts introduced at trial and those contained in the indictment, as

19

required for a simple variance.

2

that Albritton assaulted and menaced Johnson with a deadly

weapon — namely, a knife — and the evidence presented at trial

was entirely consistent with the charging document. The evidence

showed that Albritton chased Johnson with a knife in his hand and

held it up to Johnson’s throat while saying he would kill him.

¶ 45 But even if a simple variance occurred because the evidence

also showed that Albritton threw an ice auger at Johnson and put

Johnson in a chokehold, Albritton fails to demonstrate any

prejudice that would warrant reversal. Albritton does not argue

that he was deprived of notice or would have presented a different

defense if he had known that the prosecution would introduce

evidence of the other weapons. Id. at 1247. Therefore, even if there

was a simple variance, reversal is not appropriate.

2

Albritton argues that a simple variance occurred. He does not

claim that there was a constructive amendment of the charging

document, so we limit our analysis to a simple variance.

20

C. Cell Phone Records

¶ 46 Next, Albritton contends that the court admitted

unauthenticated hearsay evidence in violation of the rules of

evidence and the Confrontation Clause.

1. Background

¶ 47 After the warrant to search Albritton’s cell phone was issued,

the police retrieved the cell phone that had been seized from

Albritton and delivered it to the crime lab. A digital forensic analyst

with the Lakewood Police Department received a request from the

police to extract data from Albritton’s phone. The analyst obtained

the phone, placed it in a Faraday enclosure and then determined

that the forensic software owned by the crime lab was not

compatible with Albritton’s phone.

3

Following established

procedures, the analyst sent the device to Cellebrite, a private

vendor of computer services, to extract the data.

¶ 48 The analyst testified that, while she did not know Cellebrite’s

exact process for how they acquire data, the process was

“essentially the same” as her lab’s in that the phone is connected to

3

A Faraday enclosure is a device that prevents the transmission of

radio or other electronic signals from or to the phone.

21

a computer, the data is extracted and encrypted, and it is saved on

a thumb drive.

¶ 49 The analyst testified that she received the phone as well as a

thumb drive containing the extraction from Cellebrite. The

prosecution asked the analyst if she “reviewed” the extraction. She

replied that no, she did not “review” it. Rather, the extraction was

“imported into a Physical Analyzer,” another computer program

owned by the crime lab. The “limited date range from the search

warrant was selected, and a report was generated.”

¶ 50 The prosecution offered and the trial court admitted the

following evidence through the analyst without objection: a

spreadsheet reflecting Albritton’s app use and internet searches;

Albritton’s social media activity on June 17, 2021; and a report of

installed applications from June 17, 2021, showing that Albritton

purchased the app “TextNow.” The analyst read into evidence the

search history from Albritton’s phone, including Google searches of

“I’m already in hell” and “Seamus Johnson.”

¶ 51 On cross-examination, defense counsel asked the analyst

whether Cellebrite “generated the report” that she analyzed. She

clarified that no, Cellebrite did not “create the report,” but instead

22

Cellebrite created the “software or the tool that, then, was used to

parse out the data that was received from them to create the limited

report.”

¶ 52 Albritton contends that the admission of this evidence was

error because the reports were (1) not properly authenticated and

(2) constituted inadmissible hearsay.

2. Standard of Review

¶ 53 Albritton did not preserve his authentication or hearsay

objections; thus we review those claims only for plain error. See

People v. Allgier, 2018 COA 122, ¶ 30.

3. Authentication

¶ 54 Under CRE 901(a), evidence must be authenticated before it

may be admitted. “[T]he standard for authentication is minimal —

all that’s required is a prima facie showing that the evidence is what

its proponent claims.” Gonzales v. People, 2020 CO 71, ¶ 42.

Thus, the proponent of evidence is only required to offer “a

satisfactory foundation from which the jury could reasonably find

that the evidence is authentic.” Id. at ¶ 27 (quoting People v.

Glover, 2015 COA 16, ¶ 13).

23

¶ 55 Electronic evidence may be authenticated through the

testimony of a witness with knowledge that the evidence is what it

is claimed to be and through circumstantial evidence. People v.

Abad, 2021 COA 6, ¶ 17. Specifically, electronically generated

printouts may be authenticated through the testimony of a person

who has personal knowledge of how the printouts were generated

and that they are what they are claimed to be. People v. Hamilton,

2019 COA 101, ¶ 36.

¶ 56 In Abad, ¶¶ 22-47, a division of this court held that a trial

court had not abused its discretion — or, at the very least, had not

plainly erred — by admitting testimony about extraction reports,

similar to the ones here. In Abad, the prosecution offered evidence

from extraction reports of data extracted from two cell phones using

Cellebrite software. Id. at ¶¶ 23-37. The detective who performed

the extractions didn’t testify at trial, but a detective who assisted

with one of the two extractions testified that the police had

downloaded the data using the same process they used in every

other case, and another detective testified about the department’s

use of Cellebrite software for several years. Id. at ¶¶ 23-25, 44.

The Abad division concluded that, “[g]iven the minimal showing

24

required by CRE 901,” the testimony was sufficient for

authentication purposes. Id. at ¶ 45.

¶ 57 Like the Abad court, we conclude that the trial court’s

admission of the extraction reports and the analyst’s testimony

were not error. The analyst had personal knowledge of how the

reports were generated and how the extraction process generally

works at Cellebrite, and she testified as to what the electronically

generated printouts were and what they claimed to be. Thus, the

evidence was sufficiently authenticated to be presented to the jury.

See Hamilton, ¶ 36; see also People v. Sutherland, 683 P.2d 1192,

1197-98 (Colo. 1984) (in the absence of evidence suggesting a lack

of authenticity, the evidence proponent does not have to present

testimony from each person who handled the evidence).

¶ 58 In any event, any possible error was not plain under Hamilton.

In Hamilton, ¶ 9, a detective testified that the police department

personnel downloaded the contents of multiple phones and

generated reports reflecting the phones’ contents. At trial, the

prosecutor did not seek to introduce the reports into evidence or

call as witnesses the employees who examined the phones or

generated the reports. Id. Instead, the detective testified that,

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based on his review of the reports, neither phone contained text

messages between the defendant and victim. Id.

¶ 59 While Hamilton was binding on the trial court at the time of

the trial, it is distinguishable. Unlike in Hamilton, where the State

failed to call as a witness any employee who examined the phones

or generated the reports, the prosecution here presented testimony

from the analyst, who generated the reports using the extraction

data and who had personal knowledge of the extraction process.

Thus, even if any authentication error occurred, it would not have

been obvious under Hamilton.

4. Hearsay

¶ 60 Albritton next contends that the court erred in admitting the

reports because the prosecution did not establish that the “source

of the data was independent of human observation and reporting.”

Thus, he argues, the reports were inadmissible hearsay. Again, we

disagree.

¶ 61 Hearsay evidence is not admissible except as provided by the

Colorado Rules of Evidence or other rules or statutes. CRE 802.

Hearsay is “a statement other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the

26

truth of the matter asserted.” CRE 801(c). But a statement that is

offered for other purposes — such as to show the statement’s effect

on the listener or to give context to a defendant’s statements — is

not offered for its truth and therefore is not hearsay. Abad, ¶ 52.

¶ 62 Moreover, information automatically generated by machines is

not hearsay because no “declarant” made a “statement” within the

meaning of CRE 801. Id. at ¶ 54.

¶ 63 The division in Abad also concluded that the extraction

reports in that case were not hearsay because the detectives’

testimony established that the reports were “produced

automatically without human intervention.” Id. at ¶¶ 55-56.

Specifically, the witness testimony showed that “[t]he reports [did]

not require any human input short of plugging the phone into a

machine.” Id. at ¶ 55.

¶ 64 This case is distinguishable from the facts in Hamilton, where

the prosecution failed to offer evidence to show that the reports

were generated without human input or interpretation and were

thus hearsay. Abad, ¶ 56 n.5; see also Hamilton, ¶ 26.

27

¶ 65 Here, the analyst presented testimony to establish that the

reports were generated without human input or interpretation. She

testified that

• the extraction process is done by connecting a phone to

software;

• she does not review the extraction, but rather imports the

extraction data into a Physical Analyzer;

• she selected a limited date range from the search

warrant, and the software generated a report; and

• Cellebrite does not create reports.

¶ 66 Thus, the reports here, like the ones in Abad, are not hearsay,

and the court did not err in admitting them.

¶ 67 Even if there was hearsay error in admitting the reports, given

the testimony of the analyst, the admission of the reports was a

close call and thus not obvious. This precludes a finding of plain

error.

¶ 68 Because we determine that the evidence was not hearsay, we

do not reach Albritton’s claim that the evidence violated his right to

confrontation. There cannot be a Confrontation Clause violation if

the offered evidence does not constitute hearsay. Because the

28

challenged testimony was not hearsay, the Confrontation Clause

challenge necessarily fails. Smith v. Arizona, 602 U.S. ___, ___, 144

S. Ct. 1785, 1801 (2024). And even if there were any Confrontation

Clause error, we find no plain error for the same reason that the

admission of the reports was not reversible based on a hearsay

violation.

D. Character Evidence

¶ 69 Lastly, Albritton contends that the trial court reversibly erred

in admitting unfairly prejudicial character evidence.

1. Additional Facts

¶ 70 On the day of the attack, Albritton made numerous Google

searches about serial killers and suicide assistance. He specifically

searched the name “Seamus Johnson” (the victim) followed by “I’m

going to hell” and “I’m already in hell” a few hours later.

¶ 71 Albritton sought to exclude the Google search history as

impermissible prior bad act evidence. The court excluded the serial

killers searches under CRE 403. It admitted, however, the “hell”

searches. It found that the evidence was not character evidence, so

it was presumptively admissible. It also concluded that the

searches were contemporaneous with the attack on Johnson and

29

occurred close in time to when Albritton searched “Seamus

Johnson.” It thus concluded that the searches were intrinsic to

proving the elements of the offense, because the searches indicated

a consciousness of guilt.

¶ 72 The prosecution offered testimony that Albritton made the

“hell” searches on the day of the incident. The prosecution

referenced the “hell” searches during closing argument to

demonstrate Albritton’s intent to commit attempted first degree

murder (of which Albritton was acquitted) and that he had a “guilty

conscience.”

¶ 73 On appeal, Albritton argues that the trial court erred by not

engaging in a CRE 404(b) and People v. Spoto, 795 P.2d 1314 (Colo.

1990), analysis before admitting the “hell” searches and that the

error was not harmless.

2. Standard of Review and Legal Principles

¶ 74 Albritton preserved the issue through his motion in limine.

Martinez v. People, 2015 CO 16, ¶ 14. “A court’s erroneous decision

to admit evidence of other acts under CRE 404(b) is subject to the

nonconstitutional harmless error standard.” People v. Brown, 2014

COA 130M, ¶ 6.

30

¶ 75 In light of Rojas v. People and the abolishment of the res

gestae doctrine in criminal cases, a trial court must first determine

if the evidence of uncharged misconduct is intrinsic or extrinsic to

the charged offense. 2022 CO 8, ¶ 52. Intrinsic acts are those (1)

that directly prove the charged offense or (2) that occurred

contemporaneously with the charged offense and facilitated the

commission of it. Id. Evidence of acts that are intrinsic to the

charged offense are exempt from CRE 404(b) because they are not

“other” crimes, wrongs, or acts. Id. Extrinsic evidence, however, if

suggestive of bad character, is admissible only as provided by CRE

404(b) and after a Spoto analysis. Id.

¶ 76 It is presently unclear whether consciousness of guilt evidence

is either intrinsic or extrinsic, or whether that categorization

depends on the particular facts. It is clear that consciousness of

guilt evidence is properly admitted under CRE 404(b). People v.

Medina, 51 P.3d 1006, 1013 (Colo. App. 2001), aff’d sub nom. Mata-

Medina v. People, 71 P.3d 973 (Colo. 2003).

¶ 77 Initially we agree with the trial court that the “hell” searches

were not evidence of a “crime, wrong, or act” under CRE 404(b) and

were thus presumptively admissible subject to relevance and CRE

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403. But to complete our analysis, we assume, without deciding,

that the “hell” searches were extrinsic evidence and consider

whether the searches are admissible under Spoto.

4

¶ 78 To be admissible under CRE 404(b), the evidence must meet

each of the four prongs detailed in Spoto. 795 P.2d at 1318. First,

the “hell” searches must relate to a material fact. Id. Second, they

must be logically relevant. Id. Third, their logical relevance must

be independent of the prohibited inference that Albritton acted in

accordance with his poor character. Id. And fourth, the searches’

relevance must not be substantially outweighed by their potential

prejudice in violation of CRE 403. Id.

3. Discussion

¶ 79 Regarding the first factor, the “hell” searches directly related to

the material facts concerning Albritton’s mental state and

consciousness of guilt at the time of the alleged crimes. The

4

Any error in admitting the evidence does not require reversal if the

evidence meets the foundational CRE 404(b) and Spoto

requirements. People v. Martinez, 36 P.3d 154, 158 (Colo. App.

2001); People v. Cousins, 181 P.3d 365, 370 (Colo. App. 2007) (“A

conviction will not be overturned on appeal when the trial court

employed an erroneous standard in analyzing the admissibility . . .

[if the] evidence [is] admissible, and the proper foundation [was] laid

for its admission.”).

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searches occurred a few hours after Albritton searched “Seamus

Johnson” but before he allegedly assaulted Johnson. A jury could

properly conclude that the searches indicate that Albritton

knowingly planned to harm Johnson, a fact obviously relevant to

the required mental states for at least some of the crimes alleged.

Thus, the evidence related to material facts concerning its

admissible purpose and met prong one of the Spoto test. See Yusem

v. People, 210 P.3d 458, 464 (Colo. 2009) (“[The first Spoto] prong

considers not the substance of the prior act evidence, but the fact

in the case for which the evidence is offered to prove.”).

¶ 80 Next, for similar reasons, the evidence was logically relevant to

key issues at trial and made the existence of these facts more

probable than without the evidence. The searches illustrated

Albritton’s consciousness of guilt and made it more likely that he

knowingly attacked and harmed Johnson.

¶ 81 Third, the evidence revealed Albritton’s consciousness of guilt

independent of impermissible character evidence. Even if the

search itself about going to hell suggested that he acted in

accordance with “bad character,” its relevance is independent of

that inference because the search is an indication of how he felt

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about the specific harm he was going to commit against Johnson.

See People v. Snyder, 874 P.2d 1076, 1080 (Colo. 1994) (“The third

prong of the Spoto test does not demand the absence of the

inference but merely requires that the proffered evidence be

logically relevant independent of that inference.”).

¶ 82 Finally, the relevance of the “hell” searches was not

substantially outweighed by its risk of unfair prejudice. “The

Colorado Rules of Evidence strongly favor the admission of

evidence, and the trial court has broad discretion in determining

the admissibility of evidence.” Medina, 51 P.3d at 1017. “Because

the balance required by CRE 403 favors admission, a reviewing

court must afford the evidence the maximum probative value

attributable by a reasonable fact finder and the minimum unfair

prejudice to be reasonably expected.” People v. Rath, 44 P.3d 1033,

1043 (Colo. 2002).

¶ 83 The searches were highly probative of Albritton’s

consciousness of guilt and his mental state at the time he attacked

Johnson. While all relevant evidence is prejudicial in an expansive

sense, there was no unfair prejudice. This evidence did not suggest

34

to the jury that Albritton was a bad person acting in conformity

with his propensity to do bad acts.

¶ 84 Because the evidence meets the foundational requirements of

CRE 404(b) and Spoto, any error that occurred by the trial court not

conducting this analysis does not merit reversal. See Cousins, 181

P.3d at 370. Because the evidence also meets the criteria for

admissibility under CRE 401 and 403, any error in the trial court’s

failure to conduct this analysis was harmless. Martinez, 36 P.3d at

158.

5

¶ 85 For similar reasons, even if we assume that the admission of

these searches was error, the failure to give a limiting instruction

was also harmless and does not justify reversal.

III. Disposition

¶ 86 The judgment of conviction is affirmed.

5

admission of the “hell” searches was harmless because that

evidence applied only to the first degree murder charge, of which

Albritton was acquitted. The required mental state for attempted

first degree assault (intent to cause serious bodily injury to another)

is similar, though not identical, to the required mental state for

attempted first degree murder (after deliberation and with intent to

cause death to another). Thus, the distinction offered by the

Attorney General does not withstand scrutiny.

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JUDGE BROWN and JUDGE LUM concur.