22CA1028 Peo in Interest of TB 09-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1028

Weld County District Court No. 21JD42

Honorable Marcelo A. Kopcow, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of T.B.,

Juvenile-Appellant.

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division V

Opinion by JUDGE LUM

Brown and Berger*, JJ., concur

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

Announced September 5, 2024

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney

General, Denver, Colorado, for Petitioner-Appellee

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

State Public Defender, Denver, Colorado, for Juvenile-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.

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¶ 1 Juvenile T.B. appeals the district court’s order adopting the

magistrate’s judgment adjudicating T.B. delinquent of criminal

mischief. We reverse and remand for a new trial.

I. Background

¶ 2 One evening, surveillance video recorded two unidentified

teens spray-painting the side of a high school. An anonymous tip

made to the Safe2tell hotline led a school administrator to question

student C.H., who confessed to being one of the participants. C.H.

later pleaded guilty for his role. Another anonymous tip led Officer

Bradley Luebke to question T.B.’s parents about the vandalism.

T.B.’s parents denied T.B.’s involvement, but T.B. was eventually

charged for his participation in the crime.

¶ 3 At a bench trial before a magistrate, C.H. testified that T.B.

was the other participant in the spray-painting. In addition, Officer

Luebke testified about the Safe2tell tip that named T.B. as one of

the spray painters, and C.H. testified about a Snapchat message he

sent to T.B. encouraging T.B. not to talk to the police about the

spray-painting. A picture of the Snapchat message was admitted

into evidence.

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¶ 4 T.B. raised an alibi defense, testifying that he was home on the

night of the vandalism and asserting that C.H. had arbitrarily

named T.B. to avoid “snitching” on another gang member. T.B.’s

parents also testified that T.B. had been home that evening.

¶ 5 Ultimately, the magistrate ruled that C.H.’s testimony,

corroborated by the Safe2tell tip and the Snapchat message, proved

T.B. committed the vandalism. The magistrate adjudicated T.B.

delinquent as charged.

¶ 6 In a petition for review filed with the district court, T.B.

asserted, as relevant here, that the magistrate erred by considering

the Safe2tell tip for the truth of the matter asserted and shifting the

burden of proof to T.B. The district court adopted the magistrate’s

adjudication, concluding that any consideration of hearsay evidence

was harmless error and that the magistrate hadn’t shifted the

burden.

¶ 7 T.B. appeals. In addition to reraising the two contentions he

raised before the district court, he argues that the admission and

consideration of the Safe2tell tip violated his right to confront

witnesses against him. Because we conclude that the magistrate

reversibly erred by considering the Safe2tell tip for the truth of what

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it asserted, we need not address T.B.’s arguments related to the

confrontation clause or burden of proof.

II. Standards of Review

¶ 8 Our review of a district court’s decision on a petition for

magistrate review is “effectively a second layer of appellate review.”

People in Interest of B.D., 2019 COA 57, ¶ 12, rev’d on other

grounds, 2020 CO 87. Like the district court, “we must accept the

magistrate’s factual findings unless clearly erroneous.” Id.

However, we review de novo the district court’s and the magistrate’s

legal conclusions. In re Parental Responsibilities Concerning D.P.G.,

2020 COA 115, ¶ 15.

¶ 9 We review evidentiary rulings for an abuse of discretion.

People v. Brown, 2022 COA 19, ¶ 57. When the asserted error is

preserved by objection, we reverse if the error “substantially

influenced the verdict or affected the fairness of the trial

proceedings.” Hagos v. People, 2012 CO 63, ¶ 12 (quoting Tevlin v.

People, 715 P.2d 338, 342 (Colo. 1986)) (describing harmless error).

For unpreserved contentions, we will reverse only for plain error.

See People v. Ujaama, 2012 COA 36, ¶ 38. Plain error is an “error

that is both obvious and substantial and that so undermined the

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

reliability of the judgment of conviction.” Scott v. People, 2017 CO

16, ¶ 15.

III. Discussion

¶ 10 T.B. contends that the magistrate erroneously considered the

Safe2tell tip for the truth of what it asserted. He further asserts

this error is reversible under any standard because the magistrate

expressly relied on the tip in crediting C.H.’s testimony over T.B.’s.

We agree.

A. Additional Facts

¶ 11 The Safe2tell program allows students and others to

anonymously report “unsafe, potentially harmful, dangerous,

violent, or criminal activities in schools or the threat of those

activities.” § 24-31-606(2)(a), C.R.S. 2024. At trial, Officer Luebke

testified about two separate Safe2tell tips made about the spray-

painting incident.

¶ 12 Officer Luebke began testifying about the first Safe2tell tip by

saying, “So, the first Safe2[t]ell report I had received stated . . .

something along the line —” T.B. immediately objected to this

testimony as hearsay. The magistrate overruled the objection and

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admitted the testimony “for the effect upon listener, and to lay

context as to the investigation, not for the truth of the matter

asserted.”

¶ 13 Officer Luebke then continued, explaining that the first

Safe2tell tip named C.H. as the student who committed the

vandalism. He then testified about contacting the principal of the

high school and his review of the surveillance footage.

¶ 14 Next, Officer Luebke testified that he contacted T.B.’s family.

When then asked why he contacted T.B.’s parents, Officer Luebke

explained, “I knew to contact [C.H.] because he was listed in the

Safe2[t]ell in the tip . . . . And then, also in a Safe2[t]ell tip, that

would come, I believe it would come later on, it listed [T.B.] in the

tip as being somebody who was with [C.H.] . . . .”

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objection to this testimony.

¶ 15 Asked what he did with the information about T.B., Officer

Luebke said,

[I]nside the Safe2[t]ell system, when you are an

administrator you’re allowed to look at further

chat that’s in there. And, typically that chat is

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The tip didn’t name T.B. by his full name, but Officer Luebke was

able to identify T.B. as the person named by the tip by comparing

the tip with records from a school in the district.

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between law enforcement, the Safe2[t]ell

system, and maybe any administrators who

have access to look at it. Within that system,

the principal at [T.B.’s high school] said, that

[T.B.] —”

T.B. then objected on the grounds that “this is not in discovery.

[W]hatever is in this chat that was not provided to [the] [d]efense is

improper.” The magistrate overruled the objection because the

testimony was “relevant to the investigation, and what led [Officer

Luebke] to ultimately contact [T.B.] and his parents.”

¶ 16 After the close of evidence, the magistrate found that “[b]oth

sides have acknowledged that really, the only question at issue, is

whether the juvenile in this case, [T.B.], was the person who was

with [C.H.] that night.” Given the conflicting testimony of C.H.,

T.B., and T.B.’s parents, she also recognized that “what this comes

down to is, which witnesses [the court] is to believe.” She

acknowledged that there were “credibility issues with both [C.H.],

and with the witnesses that the defense presented.” When

evaluating witness credibility, the magistrate considered, among

other things, “how the testimony of each witness is either supported

or contradicted by the other evidence in the case.” The magistrate

found C.H.’s testimony credible because

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what [C.H.] has testified to is supported by the

other evidence that I have been presented,

specifically the fact that a second Safe2[t]ell

message named a person, [T.B.], as the person

who was with [C.H.]. And, the text messages,

or the Snapchat messages that were sent from

[C.H.] to [T.B.] discussing this incident. The

Defense’s theory is that [C.H.] randomly

accused [T.B.] in order to protect members of a

gang . . . . And, to get to that conclusion I

would have to find that the second Safe2[t]ell

report, as well as the Snapchat message, were

all part of some elaborate scheme that [C.H.]

carried out to essentially frame [T.B.].

¶ 17 In light of these findings, the magistrate adjudicated T.B.

delinquent.

B. Preservation

¶ 18 The parties dispute whether T.B. preserved his hearsay

objections for review. The district court found that the issue was

preserved because (1) T.B.’s objection to the first tip alerted the

magistrate to the hearsay issue; and (2) although T.B.’s objection to

the second tip was based on a discovery violation, the magistrate’s

ruling that the tip was “relevant to the investigation, and what led

[Officer Luebke] to ultimately contact [T.B.] and his parents”

indicated that the objection drew the magistrate’s attention to the

hearsay issue related to the second tip.

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¶ 19 We conclude T.B.’s hearsay objection wasn’t preserved. The

testimony was clear that there were two separate Safe2tell tips.

Officer Luebke’s discussion of each tip was separated by more than

a page of testimony. We don’t agree that T.B.’s objection to the first

tip was sufficient to preserve a hearsay objection to the second tip.

See People v. Walker, 2022 COA 15, ¶ 28 (“Where a claim of error is

not preserved by contemporaneous objection, we may reverse only if

plain error occurred.”). Moreover, when the officer testified that the

second tip named T.B., there was no objection at all. Only when

the officer began testifying about chat logs did the defense object

based on discovery violations. This isn’t merely an “imprecise”

objection; it is an entirely different objection than the one raised on

appeal. See Ujaama, ¶ 37 (“An issue is unpreserved for review

when . . . an objection or request was made in the trial court, but

on grounds different from those raised on appeal . . . .”).

¶ 20 Furthermore, we aren’t persuaded that the magistrate ruled on

the hearsay issue T.B. raises before us for two reasons. First, the

magistrate’s ruling was made about the chat log, not about T.B.

being named in the tip. And second, the ruling was expressly based

on relevance, not hearsay. Cf. People v. McFee, 2016 COA 97, ¶ 31

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(An issue is sufficiently preserved when “the trial court actually

rules on the claim raised on appeal.”).

¶ 21 Accordingly, we review T.B.’s hearsay contention for plain

error. See Ujaama, ¶ 38.

C. Applicable Law

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

while testifying at [a] trial or hearing, offered in evidence to prove

the truth of the matter asserted.” CRE 801(c); People v. Robinson,

226 P.3d 1145, 1151 (Colo. App. 2009). Hearsay statements are

generally inadmissible. Blecha v. People, 962 P.2d 931, 937 (Colo.

1998); CRE 802. However, a statement isn’t hearsay if admitted

solely to show its effect on the listener. People v. Phillips, 2012 COA

176, ¶ 107.

D. Analysis

1. Admission Versus Use

¶ 23 Initially, we agree with T.B.’s contention that to the extent the

Safe2tell tip was admitted for the truth of what it asserts (i.e., that

T.B. spray-painted the school), it is hearsay that doesn’t fall into a

recognized exception. The People don’t appear to dispute this

argument.

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¶ 24 The People contend that the tip was admitted (or could have

been admitted) not for the truth of what it asserts, but to show why

Officer Luebke contacted T.B.’s parents. We agree with this

argument, too. See id.

¶ 25 However, T.B. contends that, even if the Safe2tell tip was

admitted (or could have been admitted) for the proper purpose of

showing its effect on the listener, the magistrate nevertheless erred

by considering it evidence for the truth of what it asserted. In

response, the People argue that (1) the magistrate did not misuse

the Safe2tell tip; and (2) even if she did, the misuse of the tip

doesn’t invalidate its admission. We agree with T.B.

¶ 26 First, as the magistrate herself noted, the case turned on the

issue of witness credibility, and she believed C.H.’s testimony

because it was corroborated by the tip. There’s no way for the tip to

corroborate C.H.’s testimony unless the magistrate used it for the

truth of what it asserted. We aren’t persuaded otherwise by the

People’s argument that the magistrate used the tip “for its admitted

nonhearsay purpose to rebut T.B.’s theory of defense.” In support

of this argument, they cite the portion of the magistrate’s findings

in which the magistrate discredited T.B.’s theory of defense in part

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because she “would have to find that” C.H. planted the tip as part of

an “elaborate scheme” to “essentially frame [T.B.].” But T.B.’s

theory of defense was that C.H. testified falsely. There’s little

difference between crediting C.H.’s testimony because it was

corroborated by the Safe2tell tip and discrediting T.B.’s theory that

C.H. provided false testimony because of the existence of the same

tip. Either way, the truth of the tip matters. Accordingly, we

conclude that the magistrate used the evidence for improper

purposes.

¶ 27 Next, the People argue that the way evidence is used doesn’t

invalidate an otherwise proper admission. To get there, they rely on

Robinson, 226 P.3d at 1152-54. In Robinson, an informant’s

statements were introduced for “the nonhearsay purpose of showing

their effect on the listening officers.” Id. at 1152. Although the

division recognized “the danger that a jury might well misuse [the]

evidence . . . particularly when the substance of the statements

goes precisely to the issue that the government is required to

prove,” it concluded that the “risk presents an issue not of hearsay,

but of ‘legal’ relevance under CRE 403.” Id. After observing that

the defendant did not raise CRE 403 on appeal, it rejected the

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defendant’s hearsay challenge, noting, “[W]e fail to perceive how,

under these circumstances, a proper ruling admitting statements

for a nonhearsay purpose may be rendered erroneous by their

subsequent misuse.” Id. at 1153. Robinson also noted that the

defendant could have protected himself from the potential misuse of

the testimony by objecting to admissibility under CRE 403 or

obtaining an appropriate limiting instruction. Id. at 1154.

¶ 28 While we don’t disagree with Robinson, the division’s reasoning

is inapplicable under the circumstances of this case. Here, we don’t

have a mere possibility that a jury might have misused the Safe2tell

tip; rather, the magistrate’s findings make it clear that she did

misuse it. And while we would generally presume that the

magistrate disregarded any uses of the tip that were improper

under CRE 403, we can’t do that here because the magistrate

expressly accorded weight to the improper hearsay use in her

decision. See People v. Kriho, 996 P.2d 158, 172 (Colo. App. 1999).

Simply put, in a bench trial where the judge is the fact finder,

there’s no practical difference between admitting the evidence for an

improper purpose and explicitly using it for an improper purpose.

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2. Plain Error

¶ 29 We next conclude that the error was plain. Absent an

exception, admitting or using hearsay evidence plainly violates CRE

802, so the error is obvious. We reject the People’s reliance on

Robinson to support their argument to the contrary. As discussed

above, Robinson affirmed the admission of evidence for nonhearsay

purposes despite the theoretical possibility that a jury might misuse

it. 226 P.3d at 1152-53. However, Robinson cannot reasonably be

interpreted to stand for the proposition that, once evidence is

properly admitted, a judicial officer acting as the fact finder is free

to use the evidence for any purpose, including uses prohibited

under the rules.

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¶ 30 We next conclude that the error was substantial. The only

contested issue was identity, and C.H. was the only witness who

linked T.B. to the spray-painting. Witness credibility was therefore

the key question, with the magistrate noting, “[W]hat this comes

down to is, which witnesses [the court] is to believe.” The

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To be clear, the magistrate did not rely on People v. Robinson, 226

P.3d 1145 (Colo. App. 2009), when she referenced the tip in her

findings. We address this argument only because it was raised by

the People in their briefing.

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magistrate also observed that all witnesses, including C.H., had

credibility problems. Ultimately, she chose to believe C.H. because

two pieces of evidence corroborated his testimony: the Safe2tell tip

and the Snapchat message C.H. sent T.B. after being questioned by

police. In other words, the Safe2tell tip was one of only two pillars

propping up C.H.’s testimony. And even though the Snapchat

message remains undisturbed, it was authored by the very person

the magistrate struggled to believe — C.H. On this record, we

conclude that the error casts substantial doubt on the reliability of

the conviction. See Scott, ¶ 15.

IV. Disposition

¶ 31 We reverse the adjudication of delinquency and remand the

case for a new trial.

JUDGE BROWN and JUDGE BERGER concur.