Friday, September 30, 2016

“Computer Crime,” Batman and Nude Photographs

This post examines an opinion from the Colorado Court of Appeals:  People v. Galang, 2016 WL 2605652 (2016). The court begins the opinion by explaining that
[d]efendant, Ronino Reyes Galang, appeals the judgment of conviction entered on jury verdicts finding him guilty of extortion, criminal impersonation, stalking, and harassment. The People cross-appeal the trial court's judgment acquitting him of computer crime.
People v. Galang, supra.
The Court of Appeals begins the opinion, as courts usually do, by explaining how, and why, the prosecution arose:
In 2004, the female victim came to the United States from the Philippines. That same year, she and defendant met at work in California and developed a `very close’ friendship. In 2007, the victim moved to Colorado and got married while defendant stayed in California with his wife. Despite the distance, the victim visited defendant approximately every three months when she was in California to see family, and the two communicated via phone and e-mail about twice per week.

In June 2011, the victim began receiving e-mails from an unknown person using a Yahoo e-mail address identifying himself or herself as `Holycrap Imbatman’ (Batman). In the first e-mail, Batman (1) demanded the victim send photographs and videos of herself doing various sexual acts, including acts alone and with her then-boyfriend; (2) threatened to tell immigration officials that she had `married for papers’; and (3) threatened to tell her then-boyfriend that she was having sex with other men.

Suspecting that defendant's wife had sent this as well as other e-mails from Batman, the victim reported the e-mails to the Douglas County Sheriff's Office. A detective then assumed control of the victim's e-mail account, corresponded with Batman as if the detective were the victim, and concocted a sting operation to discover Batman's true identity. In his role as the victim, the detective forwarded defective CDs to the address supplied by Batman—defendant's address.

After informing the `victim’ that the CDs were broken or blank, Batman agreed, in lieu of the photos and videos, to meet her at a hotel in California and to bring (per the victim's request) champagne and Diet Mountain Dew. Defendant appeared at the designated time and hotel room, carrying an orange backpack and asking for the victim. Subsequently, the local police arrested defendant and recovered champagne and Diet Mountain Dew from the backpack.
People v. Galang, supra.
The opinion then explains that
[d]efendant was charged in the case. At trial, the People presented evidence of these facts, as well as evidence that (1) in 2010, the victim had refused defendant's requests to send him naked pictures of herself; and (2) according to a digital forensics and networking expert, the `Batman’ Yahoo e-mail account was created at the business where defendant worked.
People v. Galang, supra.
Next, the court goes on to explain what the outcome of the trial was:
Following the close of the People's evidence, the trial court granted defendant's request for a judgment of acquittal on the computer crime charge. With regard to the remaining charges, defendant neither testified nor presented any witnesses on his behalf. During closing argument, however, defense counsel denied the charges, asserting that, rather than defendant, it was defendant's wife who `ha[d] a motive to get revenge against her husband’ and `to humiliate [the victim]’ because defendant's wife `couldn't tolerate the fact that [defendant] was friends with [the victim].’

The jury found defendant guilty on four charges, and the trial court sentenced him to four years' probation, conditioned, in part, on his serving ninety days in jail.
People v. Galang, supra.
The Court of Appeals then took up the argument Galang made on appeal as to why his conviction should be reversed, i.e., that the trial court judge “erred in admitting evidence that the victim had refused his previous requests for pictures depicting her naked.” People v. Galang, supra. As a preface to its analysis of his argument, the court noted that it disagreed with it. People v. Galang, supra.
The Court of Appeals began its analysis of Galang’s argument by explaining that the
trial court denied defendant's motion in limine to exclude `statements from the alleged victim  . . . that [defendant] previously asked her to send him naked photos of herself.’ In doing so, the court found the evidence was admissible under a theory of res gestae because it `forms an integral and natural part of the crime and is relevant . . . for a number of different purposes including identification, motivation to allegedly contact the victim here in an unidentified manner given her refusal to send him nude photographs in the past,’ and defendant's `interest in the victim sexually or emotionally. . . .’

On appeal, defendant contends that the trial court erred in admitting evidence of the requests because they (1) `w[ere] obviously not “contemporaneous” with the “offense charged’ because [they] occurred approximately one year before the charged offense[s]” and (2) `did not provide a background for the offense charged because [they] occurred under different circumstances and the prosecutor did not establish specific dates for the uncharged incident.’

Significantly, defendant did not contest the admissibility of the evidence on these grounds in the trial court. Consequently, reversal would not be warranted in the absence of plain error. See People v. Honeysette, 53 P.3d 714, 717 (Colorado Court of Appeals 2002) (applying the plain error standard of review where the claim of error on appeal was different from the objection at trial); cf. Udemba v. Nicoli, 237 F.3d 8, 14–15 (U.S. Court of Appeals for the 1st Circuit 2001) (`It is a bedrock rule that a party who unsuccessfully objects to the introduction of evidence on one ground cannot switch horses in midstream and raise an entirely new ground of objection on appeal without forfeiting the usual standard of review’).

Plain error is error that is obvious, substantial, and ‘so undermine[s] the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.’
People v. Osorio–Bahena, 2013 COA 55, ¶ 69, 312 P.3d 247 (Colorado Court of Appeals 2013).
People v. Galang, supra. The Court of Appeals also noted that, “[h]ere, we perceive no error, much less plain error.” People v. Galang, supra.
The opinion went on to explain that the
`Colorado Rules of Evidence strongly favor the admission of relevant evidence.’ People v. Brown, 2014 COA 155M-2, ¶ 22, 360 P.3d 167. `Res gestae is a theory of relevance which recognizes that certain evidence is relevant because of its unique relationship to the charged crime.’ People v. Greenlee, 200 P.3d 363, 368 (Colorado Supreme Court 2009).

The res gestae theory of relevance is based on the idea that `[c]riminal occurrences do not always take place on a sterile stage,’ and that where the events leading up to the crimes charged are part of the scenario that explains the setting in which the crimes occurred, “no error is committed by permitting the jury to view the criminal episode in the context in which it happened.’ People v. Lobato, 187 Colo. 285, 289–90, 530 P.2d 493, 496 (Colorado Supreme Court 1975); see People v. Quintana, 882 P.2d 1366, 1373 (Colorado Supreme Court 1994) (Res gestae evidence encompasses `[e]vidence of other offenses or acts that is not extrinsic to the offense charged, but rather, is part of the criminal episode or transaction with which the defendant is charged . . . to provide the fact-finder with a full and complete understanding of the events surrounding the crime and the context in which the charged crime occurred.’ Such evidence is generally ‘linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.’) (citations omitted).

Although several cases address res gestae evidence in terms of its contemporaneity to the charged events, see People v. Lehnert, 131 P.3d 1104 (Colorado Court of Appeals 2005), rev'd, 163 P.3d 1111 (Colo.2007); People v. Rollins,892 P.2d 866 (Colorado Supreme Court 1995), res gestae evidence `includes not just evidence of other acts that were substantially simultaneous in time and circumstance with the crime charged.’ People v. Gee, 2015 COA 151, ¶ 32, ––– P.3d ––––(quoting People v. Agado, 964 P.2d 565, 569 (Colorado Court of Appeals 1998) (Briggs, J., specially concurring), and citing several other cases). `[A]n act “somewhat remote in time’ from the charged crime nevertheless is res gestae if the two are ‘inextricably intertwined’ such that the former ‘forms an integral and natural part of an account of the crime.’” People v. Agado, supra (quoting People v. Fears, 962 P.2d 272, 280 (Colorado Court of Appeals 1997)).
People v. Galang, supra.
The court went on to outline its ruling on the res gestae issue:
[a]s a preliminary matter, we note that nothing in the record supports defendant's assertion that his requests occurred approximately one year before the charged crimes. The victim testified that defendant asked her for `naked pictures’ in 2010, not specifically July 2010. Additionally, despite defendant's claim that there was only one request in 2010, the victim's testimony suggests that defendant made more than one request for naked pictures:

`In the beginning he will joke around, like “Hey, maybe you can send me a naked picture.[”] ... And then after his wife gave birth to their first kid, it just changed everything. . . . He's in a dry spell because his wife won't sleep with him. . . . [T]hat's when he will ask me for naked pictures.’

Thus, the victim testified that defendant asked her for naked pictures at least twice in 2010—before and after defendant's wife gave birth to their child.’

Regardless of how many times defendant made such requests, incidents occurring some months or even a year before the charged crimes are not, in our view, necessarily too remote to qualify as res gestae evidence. See, e.g., People v. Miranda, 2014 COA 102, ¶¶ 52-54, ––– P.3d –––– (acts of grooming that occurred over the course of two years were not too remote, but rather showed the charged offenses did not occur `out of the blue’); People v. Thomeczek, 284 P.3d 110, 115 (Colorado Court of Appeals 2011) (evidence of an incident occurring three months before the charged crime was properly admitted as res gestae evidence despite the `temporal separation of the two events’); People v. Gladney, 250 P.3d 762, 768 (Colorado Court of Appeals 2010) (`[W]e have held that conduct occurring months ... before a charged crime may be admissible as res gestae evidence’); People v. Fears, supra (the defendant's participation in a robbery, which occurred approximately nine months before the charged crimes, was `somewhat remote in time’ but still `inextricably intertwined in such a way that’ it `was admissible as res gestae evidence” and “part of the criminal episode’).
People v. Galang, supra.
The Court of Appeals then took up Galang’s second argument on appeal, explaining that
[w]e also disagree with defendant's second argument that the requests fail the second part of our analysis because they occurred `under different circumstances.’ Our case law does not require that res gestae evidence be similar to the charged offenses in order to be admissible; rather, the evidence only must be `inextricably intertwined’ to `complete the description of the criminal episode for the jury.’ People v. Coney, 98 P.3d 930, 933 (Colorado Court of Appeals 2004) (admitting res gestae evidence of the defendant's drug arrests because they provided necessary background for the jury to consider in the defendant's murder trial); see also, e.g., People v. Fears, supra (evidence of robbery committed at a time and place different from the charged murders was admissible as res gestae to give the murders context).

Here, as the trial court noted, the requests show defendant's `interest in the victim sexually or emotionally’ and describe the relationship between defendant and the victim. Moreover, the evidence `forms an integral and natural part of the crime’ because it shows why defendant would `allegedly contact the victim here in an unidentified manner given her refusal to send him nude photographs in the past.’

Together, these considerations aided the jury in determining who would want nude photographs of the victim and why defendant would resort to hiding his identity behind a fictitious e-mail name to achieve his goal. Without this information, the jury would have been misled into believing the victim had received the e-mails out of the blue rather than after defendant had asked for such photographs from—and been refused by—her on at least two prior occasions.

For these reasons, defendant's prior requests for nude photographs of the victim fit the classic definition of res gestae: they were part of a scenario that explained the setting in which the crimes occurred and were necessary to provide the fact finder with a full and complete understanding of a possible motive on defendant's part for committing them. See People v. Agado, supra (evidence of a recent argument between the defendant and the victim was admissible as res gestae because it gave `a fuller understanding of the events surrounding the crime’); People v. Fears, supra (finding evidence was admissible as res gestae to show the charged crimes were not `simply random’).
People v. Galang, supra.
The Court of Appeals concluded its analysis of the res gestae evidence issue by explaining that
[t]o be sure, res gestae evidence is subject to exclusion under [Colorado Rule of Evidence] 403 if its probative value is substantially outweighed by the danger of unfair prejudice. See People v. Quintana, supra. `However, in assessing the admissibility of [res gestae] evidence on appeal, we must assume the maximum probative value of the evidence [at issue], and the minimum prejudice reasonably to be expected, and we must accord substantial deference to the trial court's decision on this issue.’ People v. Gladney, supra.

Viewed from this perspective, we cannot conclude that the risk of unfair prejudice substantially outweighed the probative value of the evidence. While evidence that defendant asked the victim for `naked photos’ may have had some prospect for unfair prejudice, it was also highly probative for explaining who would have created the e-mail account and gone to such great lengths to obtain the photos (and videos) by deception.

Accordingly, we perceive no error in the trial court's admission of the evidence challenged on appeal.
People v. Galang, supra. 

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