     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                          November 15, 2018

                               2018COA157

Nos. 15CA0342 & 15CA0531 Peo in Interest of A.C.E-D. —
Juvenile Court — Delinquency — Competency to Proceed

     A division of the court of appeals holds that the

then-applicable competency statute for juveniles, section

19-2-1301(2), C.R.S. 2015, is neither facially unconstitutional nor

unconstitutional as applied because it incorporated the definition of

“incompetent to proceed” for adults in criminal proceedings set out

in section 16-8.5-101(11), C.R.S. 2015.
COLORADO COURT OF APPEALS                                     2018COA157


Court of Appeals Nos. 15CA0342 & 15CA0531
Jefferson County District Court Nos. 13JD285 & 13JD424
Honorable Ann Gail Meinster, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of A.C.E-D.,

Juvenile-Appellant.


                               JUDGMENT AFFIRMED

                                   Division III
                           Opinion by JUDGE WEBB
                         Harris and Welling, JJ., concur

                         Announced November 15, 2018


Cynthia H. Coffman, Attorney General, Megan C. Rasband, Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee

Law Office of Diana M. Richett, Diana M. Richett, Lakewood, Colorado, for
Juvenile-Appellant
¶1    Is the previous iteration of the competency statute for

 juveniles, section 19-2-1301(2), C.R.S. 2015, facially

 unconstitutional or unconstitutional as applied because it

 incorporated the definition of “incompetent to proceed” for adults in

 criminal proceedings set out in section 16-8.5-101(11), C.R.S.

 2015? The juvenile, A.C.E-D., raised this novel question in seeking

 dismissal of the misdemeanor theft and harassment charges

 against him, asserting these statutes did not allow the court to

 consider A.C.E-D.’s age and maturity. The trial court rejected his

 constitutional arguments, found him competent to proceed, and

 convicted him of both charges, resulting in his adjudication and

 sentencing.

¶2    On appeal, A.C.E-D. challenges the adjudication on the same

 constitutional grounds. Alternatively, he asserts that the juvenile

 court abused its discretion in finding him competent. He also

 asserts evidentiary error in authenticating Facebook messages that

 supposedly constituted harassment and a one-year discrepancy

 between the dates of those messages as charged in the amended

 petition and as proven. The Attorney General concedes

 preservation of the constitutional and evidentiary contentions.


                                   1
¶3    We affirm.

                            I. Background

¶4    Following a complaint of shoplifting, police officers contacted

 A.C.E-D. He confessed, led them to the merchandise, and was

 charged with misdemeanor theft. In a separate case, A.C.E-D. was

 charged with misdemeanor harassment based on Facebook

 messages sent to his ex-girlfriend.

¶5    In both cases, A.C.E-D. pleaded guilty. But before sentencing,

 he moved to determine competency and later moved to withdraw his

 guilty pleas. Without addressing the pleas, the trial court ordered a

 competency evaluation. A psychologist evaluated A.C.E-D. and

 recorded his findings in a report. After receiving the psychologist’s

 report, the court made a preliminary finding of competency. Then

 A.C.E-D. requested a competency hearing.

¶6    Before that hearing was held, A.C.E-D. moved to dismiss the

 charges based on a facial constitutional challenge to the juvenile

 competency statute. The court denied the facial challenge. At the

 competency hearing, the court also rejected an as-applied challenge

 and found A.C.E-D. competent to proceed based on the

 psychologist’s testimony and his report.


                                   2
¶7    Still, the court allowed A.C.E-D. to withdraw his guilty pleas

 and conducted a bench trial. The court found A.C.E-D. guilty of the

 charges and adjudicated him a juvenile delinquent.

        II. The Juvenile Competency Statute Is Constitutional

                        A. Standard of Review

¶8    Constitutional challenges are reviewed de novo. Coffman v.

 Williamson, 2015 CO 35, ¶ 13. Because a statute is presumed

 constitutional, the party challenging it must prove

 unconstitutionality beyond a reasonable doubt. Anderson v. Colo.

 Dep’t of Pers., 756 P.2d 969, 975 (Colo. 1988). A successful facial

 challenge must show that “the law is unconstitutional in all its

 applications.” Dallman v. Ritter, 225 P.3d 610, 625 (Colo. 2010)

 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).

¶9    An as-applied constitutional challenge succeeds if the statute

 is unconstitutional “under the circumstances in which the [plaintiff]

 has acted or proposes to act.” Developmental Pathways v. Ritter,

 178 P.3d 524, 534 (Colo. 2008) (quoting Sanger v. Dennis, 148 P.3d

 404, 410 (Colo. App. 2006)). Unlike a successful challenge to facial

 validity, the result of “holding a statute unconstitutional as applied




                                    3
  is to prevent its future application in a similar context, but not to

  render it utterly inoperative.” Id. (quoting Sanger, 148 P.3d at 410).

                                  B. Law

¶ 10   Under the Children’s Code, a juvenile “shall not be tried or

  sentenced if the juvenile is incompetent to proceed, as defined in

  section 16-8.5-101(11), C.R.S. . . . .” § 19-2-1301(2). Under that

  statute,

             “[i]ncompetent to proceed” means that, as a
             result of a mental disability or developmental
             disability, the defendant does not have
             sufficient present ability to consult with the
             defendant’s lawyer with a reasonable degree of
             rational understanding in order to assist in the
             defense, or that, as a result of a mental
             disability or developmental disability, the
             defendant does not have a rational and factual
             understanding of the criminal proceedings.

  § 16-8.5-101(11).

¶ 11   The party asserting the juvenile’s incompetence bears the

  burden of submitting evidence, and bears the burden of persuasion

  by a preponderance of the evidence. § 19-2-1302(2).




                                     4
                             C. Application

                           1. Facial Challenge

¶ 12   A.C.E-D. makes three arguments why section 19-2-1301(2) is

  facially invalid: using the adult incompetency standard for juveniles

  violates their right to due process; the statute’s requirement limiting

  juvenile incompetency to a finding of a mental or developmental

  disability is inconsistent with the test in Dusky v. United States, 362

  U.S. 402, 402 (1960); and the statute violates due process because

  it places the burdens of submitting evidence and persuasion on

  juveniles. We address, and reject, each argument in turn.

¶ 13   A.C.E-D. first argues that because the United States

  Constitution offers greater protections to juveniles in some

  circumstances, an incompetency standard that applies equally to

  both juveniles and adults is unconstitutional. But A.C.E-D. does

  not cite, nor are we aware of, any Supreme Court or Colorado

  authority requiring different competency standards for juveniles.

¶ 14   Instead, A.C.E-D. cites to Supreme Court cases applying the

  Eighth Amendment to juveniles. But these cases are uninformative

  because they did not address juveniles’ competency to stand trial.

  Rather, they addressed the constitutionality of executing a


                                    5
  defendant for a homicide committed as a juvenile or sentencing a

  juvenile to life in prison without the possibility of parole. See Miller

  v. Alabama, 567 U.S. 460, 479 (2012) (mandatory sentence of life

  without the possibility of parole); Roper v. Simmons, 543 U.S. 551,

  578 (2005) (death penalty).

¶ 15   In both cases, the Court recognized important differences

  between children and adults: children have a diminished sense of

  responsibility, are more vulnerable to peer pressure, and have

  greater prospects for reform. See Miller, 567 U.S. at 471-74; Roper,

  543 U.S. at 569-70. While these differences are reasons for sparing

  juveniles from the harshest of criminal punishments, they do not

  address juveniles’ ability to assist their attorneys or comprehend

  the meaning of an adjudication proceeding. A.C.E-D. admits as

  much in his reply brief, conceding that he is not suggesting the

  Eighth Amendment applies to juvenile competency evaluations.

  And in any event, the trial of an incompetent defendant involves the

  Due Process Clause of the Fourteenth Amendment. Pate v.

  Robinson, 383 U.S. 375, 378 (1966); accord People v. Zapotocky,

  869 P.2d 1234, 1237 (Colo. 1994). Unsurprisingly, A.C.E-D. next

  argues that the statute violates the due process rights of juveniles.


                                      6
¶ 16   In some circumstances, especially police interrogations and

  the waiver of certain rights, courts have considered youth and all its

  associated circumstances when deciding due process requirements.

  See, e.g., Gallegos v. Colorado, 370 U.S. 49, 55 (1962) (confessions

  to police); Haley v. Ohio, 332 U.S. 596, 600-01 (1948) (same); People

  in Interest of M.R.J., 633 P.2d 474, 476-77 (Colo. 1981) (same);

  People in Interest of J.F.C., 660 P.2d 7, 9 (Colo. App. 1982) (guilty

  pleas and waiver of right to trial). But A.C.E-D. does not explain

  why the factors that warrant special due process protections for

  juveniles under police interrogation or when waiving certain rights

  necessitate different competency standards for juveniles than for

  adults. Although juveniles may be more susceptible to police

  interrogation or an unwitting waiver of fundamental rights because

  of their age, inexperience, and intelligence, these factors do not

  necessarily show incapacity to assist counsel or to understand the

  nature of a juvenile adjudication. Indeed, the United States

  Supreme Court has held that juvenile adjudications do not need to

  conform with the due process requirements of a criminal trial. In re

  Application of Gault, 387 U.S. 1, 30 (1967). A juvenile adjudication,




                                     7
  instead, requires “fundamental fairness.” McKeiver v. Pennsylvania,

  403 U.S. 528, 543 (1971).

¶ 17   Colorado and other jurisdictions recognize that juveniles have

  a fundamental right not to be tried while incompetent. People in

  Interest of W.P., 2013 CO 11, ¶ 37; accord Matter of W.A.F., 573

  A.2d 1264, 1267 (D.C. 1990); In re K.G., 808 N.E.2d 631, 639 (Ind.

  2004). And some states have gone further to consider factors

  unique to juveniles when making a competency determination. See

  In re Carey, 615 N.W.2d 742, 747-48 (Mich. Ct. App. 2000); accord

  In re J.M., 769 A.2d 656, 662 (Vt. 2001). But both Carey and J.M.

  involved states that had no statutory juvenile competency test and

  neither court held that due process requires a juvenile-specific test.

  See Carey, 615 N.W.2d at 747; In re J.M., 769 A.2d at 664.

  A.C.E-D. cites no authority, nor are we aware of any, holding that

  due process requires a different competency test for juveniles.

¶ 18   In sum, A.C.E-D. argues that because the Constitution treats

  juveniles differently from adults in some other circumstances, then

  it must do so as to competency. But a juvenile adjudication need

  only be fundamentally fair. Merely showing that “youth matters”

  and that “children are fundamentally different than adults” is not


                                    8
  enough to show that using the same competency test for both

  juveniles and adults is fundamentally unfair. Thus, we reject

  A.C.E-D.’s argument.

¶ 19   A.C.E-D. next argues that section 19-2-1301(2) violates the

  Dusky standard. There, the Supreme Court held that, to be

  competent to stand trial, a defendant must have “sufficient present

  ability to consult with his lawyer with a reasonable degree of

  rational understanding,” and must have “a rational as well as

  factual understanding of the proceedings against him.” 362 U.S.

  402, 402 (1960) (citation omitted).

¶ 20   A.C.E-D. maintains that, based on the cross-reference to

  section 16-8.5-101(11), section 19-2-1301(2) is unconstitutional

  because it burdens the Dusky standard by also requiring a finding

  of either a mental or developmental disability for juvenile

  incompetency. Thus, A.C.E-D. continues, the statute would

  preclude a finding of incompetence for a juvenile who, despite not

  having a mental or developmental disability, is nevertheless

  incompetent under Dusky because of factors such as his age,

  cognitive ability, and cognitive development.




                                    9
¶ 21   But to show facial invalidity, A.C.E-D. must show that the

  statute is unconstitutional in all its applications. Dallman, 225

  P.3d at 625. So, just because the statute could allow a court to find

  some juveniles competent who would be incompetent under the

  two-part Dusky standard — for lack of a mental or developmental

  disability — that does not show facial invalidity. This is because

  the statute would also allow a court to find a juvenile having a

  mental or developmental disability incompetent to proceed under

  the two-part Dusky test. In other words, a court could apply the

  statute without running afoul of the Dusky test. Id. And because

  the statute could be applied constitutionally, A.C.E-D.’s facial

  invalidity argument falls short. Id.

¶ 22   Not easily deterred, A.C.E-D. points to some states holding

  that Dusky does not require a juvenile to have a mental or

  developmental disability to be incompetent. But these holdings

  were not on constitutional grounds. Rather, the cases held that

  existing juvenile competency statutes in those states did not require

  a finding of mental or developmental disability for a court to declare

  a juvenile incompetent. See, e.g., In re Hyrum H., 131 P.3d 1058,

  1062 (Ariz. Ct. App. 2006) (Arizona’s juvenile incompetency


                                    10
  definition does not require a finding of mental disease, defect, or

  disability); Timothy J. v. Superior Court, 58 Cal. Rptr. 3d 746, 755

  (Cal. Ct. App. 2007) (California’s juvenile incompetency statute does

  not require that the minor have a mental disorder or developmental

  disability before finding that he is incompetent to stand trial).

¶ 23   Because Colorado’s statute requires a finding of mental or

  developmental disability, decisions in other states that have

  adopted a more holistic approach to juvenile competency do not

  suggest that our approach is unconstitutional. Again, A.C.E-D.

  seems to admit as much in his reply brief, where he says that he is

  asking “for acknowledgement of a growing body of law that

  emphasizes that ‘youth matters’ and that ‘children are

  constitutionally different than adults.’” But A.C.E-D. makes a

  public policy argument better presented to the General Assembly.

  State Farm Mut. Auto. Ins. Co. v. Fisher, 2018 CO 39, ¶ 26.1

¶ 24   Finally, A.C.E-D. argues that section 19-2-1301(2) violates due

  process because it places the burden of submitting evidence, as well

  as the burden of persuasion, on juveniles. Like his due process


  1Indeed, by adopting section 19-2-103(9.5), C.R.S. 2018, the
  General Assembly has addressed A.C.E-D.’s concerns.

                                    11
  argument above, A.C.E-D. asserts that because the Constitution

  grants certain protections to juveniles but not to adults, then it

  must always grant juveniles greater protections. Again, A.C.E-D.

  cites no authority holding that placing the burden of evidence and

  persuasion on a juvenile in a competency hearing is

  unconstitutional.

¶ 25   To the contrary, other states have held that placing the burden

  on juveniles does not violate due process. See In re J.K., 873

  N.W.2d 289, 296 (Iowa Ct. App. 2015); State v. P.E.T., 344 P.3d 689,

  694 (Wash. Ct. App. 2015). We find these cases persuasive,

  especially in the absence of any contrary authority, and follow

  them.2

¶ 26   In the end, because A.C.E-D. failed to show that under no set

  of circumstances would the statute be constitutional, we affirm the

  trial court’s finding that the statute was not facially invalid.


  2 The Attorney General argues that because the statute allows the
  prosecution to raise the issue of a juvenile’s competency and
  placing the burden of evidence and persuasion on the prosecution
  would not violate due process, the statute is not facially invalid.
  This argument is unpersuasive because due process protects
  individuals, not the state, from “arbitrary governmental restrictions
  on property and liberty interests.” Watso v. Colo. Dep’t of Soc.
  Servs., 841 P.2d 299, 304 (Colo. 1992).

                                     12
                        2. As-Applied Challenge

¶ 27   A.C.E-D. also mounts an as-applied challenge to the statute,

  arguing that the trial court’s application of the statute precluded

  him from being declared incompetent because he did not prove that

  he had a mental or developmental disability. To prevail, the record

  would have to show that A.C.E-D. presented evidence he was

  incompetent to proceed under Dusky, but the trial court still found

  him competent solely because he did not have a mental or

  developmental disability. See Developmental Pathways, 178 P.3d at

  534 (challenger must show how the statute was unconstitutional

  under the circumstances in which he acted). The record shows

  otherwise.

¶ 28   A.C.E-D. points to evidence that he had an IQ of 74, which

  indicates a borderline level of functioning, and that he scored in in

  the one percentile on his Vineland assessment.3 And the

  psychologist’s evaluation does declare A.C.E-D. competent because

  he does not have a mental or developmental disability. Still, other



  3 The psychologist who conducted the competency evaluation noted
  that a score of 74 could be an indication of a developmental
  disability.

                                    13
  information in the psychologist’s report and referenced in the trial

  court’s order shows that the statute was applied constitutionally.

¶ 29   The report makes several observations indicating competency:

  A.C.E-D. knew or learned the nature of the charges against him, he

  knew how he could assist his attorney, and he understood the

  adversarial nature of the proceedings. As well, the psychologist

  observed that when A.C.E-D. was less hostile and more cooperative,

  he gave better answers. The trial court found the evidence in the

  report sufficient to declare A.C.E-D. competent, especially

  considering A.C.E-D.’s failure to put forth his best effort in his

  competency evaluation.

¶ 30   In sum, because sufficient evidence in the record supports the

  trial court’s finding of competency under the Dusky standard,

  A.C.E-D. has not proven beyond a reasonable doubt that the trial

  court unconstitutionally applied the statute to him.

       III. The Trial Court Did Not Abuse Its Discretion in Finding
                      A.C.E-D. Competent to Proceed

                          A. Standard of Review

¶ 31   A.C.E-D.’s competence to proceed is a question of fact. People

  v. Palmer, 31 P.3d 863, 865 (Colo. 2001), superseded by statute as



                                     14
  stated in W.P., 2013 CO 11. The trial court’s decision is reviewed

  for an abuse of discretion. Id. at 865-66. An abuse of discretion

  occurs when the trial court’s “ruling is ‘manifestly arbitrary,

  unreasonable, or unfair,’ or where it is based on an erroneous view

  of the law.” People v. Elmarr, 2015 CO 53, ¶ 20 (citation omitted).

                                 B. Law

¶ 32   In a juvenile proceeding, if the court believes that it lacks

  enough information to make a finding of competency, it shall order

  a competency evaluation. § 19-2-1302(1), C.R.S. 2015. A licensed

  psychiatrist or psychologist with expertise in evaluating juveniles

  generally conducts the evaluation and must, at minimum, provide

  an opinion as to whether the juvenile is incompetent. Id.

                              C. Application

¶ 33   A.C.E-D. argues that he met his burden of proof during his

  competency hearing by presenting evidence of a learning disability,

  low IQ, an impaired capacity to acquire and retain verbal

  information, and a limited understanding of a juvenile adjudication

  and the roles of the various actors in it. But as discussed in Part II

  above, other evidence in the record suggests A.C.E-D. was

  competent. And the psychologist who conducted his competency


                                    15
  evaluation found A.C.E-D. competent to proceed. The trial court

  found the psychologist credible and that his report included

  sufficient information from which to declare A.C.E-D. competent.

¶ 34   Based on this conflicting evidence, we cannot say that the trial

  court was manifestly arbitrary, unreasonable, or unfair in finding

  the psychologist credible and using his report to find A.C.E-D.

  competent. See People v. Corichi, 18 P.3d 807, 812 (Colo. App.

  2000) (trial court did not abuse its discretion in finding defendant

  competent to proceed despite evidence he experienced a brief

  delusional episode during trial).

   IV. The Trial Court Did Not Abuse Its Discretion in Admitting the
                          Facebook Messages

                       A. Additional Background

¶ 35   As of April 2013, the victim of the misdemeanor harassment

  charge and A.C.E-D. had been dating. They often communicated by

  messaging via Facebook. In mid-April, the victim attended the

  prom with her ex-boyfriend. A week later, she received messages

  from A.C.E-D.’s Facebook account (username AD) that she

  perceived as threatening. These messages were the sole evidence

  supporting the harassment charge.



                                      16
¶ 36   At trial, a detective testified that he had printed from the

  victim’s account a few of the almost 1000 Facebook messages

  exchanged between the victim and the AD account.

¶ 37   Then the prosecution called the victim. When she began

  testifying about Facebook messages exchanged with the AD account

  after the prom, A.C.E-D. objected for lack of authentication, citing

  out-of-state authority. The prosecutor asked for and received

  permission to develop further foundation.

¶ 38   The victim explained that she believed the messages had come

  from A.C.E-D. because of “incomplete spellings,” “the way he talks,”

  and private matters that would not be known to other people. She

  added that she had not altered any of the messages on her account.

  The trial court, noting “certain spelling patterns, modes of speaking

  and pet names,” allowed the printout of the messages to be

  admitted.

¶ 39   On cross-examination, the victim acknowledged having

  received a message from M, a friend of A.C.E-D. or his sister, on the

  AD account, although in the message M had identified herself.

  Also, the victim admitted having seen A.C.E-D. lend his phone to D,

  another friend, so that D could use the AD account. And she said


                                    17
  that she had not sent one of the messages shown on the print out

  as having come from her Facebook account.

¶ 40   T.M., another friend of A.C.E-D., testified for the defense that

  A.C.E-D. lent his phone to friends and left it lying around. T.M.

  had sometimes used A.C.E-D.’s phone to access his own Facebook

  account.

¶ 41   A.C.E-D. did not testify.

                         B. Standard of Review

¶ 42   A trial court’s admission of evidence is reviewed for an abuse

  of discretion. People v. Ibarra, 849 P.2d 33, 38 (Colo. 1993). An

  abuse of discretion occurs when the trial court’s “ruling is

  ‘manifestly arbitrary, unreasonable, or unfair,” or where it is based

  on an erroneous view of the law.” Elmarr, ¶ 20 (citation omitted).

                                   C. Law

¶ 43   The “requirement of authentication or identification as a

  condition precedent to admissibility is satisfied by evidence

  sufficient to support a finding that the matter in question is what

  its proponent claims.” CRE 901(a). “The burden to authenticate ‘is

  not high — only a prima facie showing is required.’” People v.

  Glover, 2015 COA 16, ¶ 13 (citations omitted). Once evidence has


                                     18
  been authenticated and admitted, the fact finder determines its

  weight. People v. Crespi, 155 P.3d 570, 574 (Colo. App. 2006).

¶ 44   Facebook messages are similar to emails and may be

  authenticated through “testimony of a witness with knowledge that

  a matter is what it is claimed to be,” or “through consideration of

  distinctive characteristics shown by an examination of their

  contents and substance in light of the circumstances of the case.”

  See Glover, ¶ 24 (citing CRE 901(b)(4)). Authenticating Facebook

  messages requires two showings: first, the party seeking admission

  must show that the records were those of Facebook and, second,

  that the communications recorded therein were made by the

  purported party. Id. at ¶ 23.

¶ 45   As to the first step, A.C.E-D. did not raise this issue below and

  does not argue it on appeal.

¶ 46   Regarding the second step, a central concern for courts is the

  ease with which someone can assume the identity of another on

  Facebook. Id. at ¶ 29 (citing Campbell v. State, 382 S.W.3d 545,

  550 (Tex. Ct. App. 2012)). Thus, “several jurisdictions have

  concluded that where a message is posted on a social networking

  website, additional corroborating evidence of authorship is required


                                    19
  beyond confirmation that the social networking account is

  registered to the party purporting to create those messages.” Id. at

  ¶ 30 (collecting cases). A.C.E-D. has cited several out-of-state cases

  holding that trial courts abused their discretion in admitting

  messages from social networking sites without additional

  corroboration as to the sender. See, e.g., State v. Eleck, 23 A.3d

  818, 824 (Conn. App. Ct. 2011) (messages could have been

  generated by anyone with access as they did not reflect distinct

  information only the purported author would know); Griffin v. State,

  19 A.3d 415, 424 (Md. 2011) (identifying the date of birth of the

  creator and her image on the site insufficient to authenticate a

  social media page); Commonwealth v. Williams, 926 N.E.2d 1162,

  1172-73 (Mass. 2010) (foundational testimony did not identify the

  person who actually sent the message, only that it came from the

  defendant’s account); Smith v. State, 136 So. 3d 424, 434-35 (Miss.

  2014) (witness did not testify as to how she knew the defendant had

  sent her the messages and the information in the messages was

  known to multiple people).

¶ 47   The Glover division also addressed authenticating the

  authorship of Facebook messages and recognized, among other


                                    20
  things, that witness testimony about making and receiving the

  Facebook messages at issue, the use of nicknames and other

  unique identifiers, as well as the witness’ belief that she was never

  talking to someone other than the defendant, are all relevant factors

  that a trial court may consider. Glover, ¶ 32; see also People v.

  Heisler, 2017 COA 58, ¶ 16 (text messages admissible where victim

  testified that pictures of text messages were a fair and accurate

  representation of the texts she received, she recognized the phone

  number and used it to communicate with the defendant, and she

  recognized the context of the text messages as being from the

  defendant).

                             D. Application

¶ 48   As indicated, the parties do not contest the first step. But

  A.C.E-D. does assert that the prosecution did not provide sufficient

  evidence to show that he wrote and sent the Facebook messages.

¶ 49   During the adjudication, the victim testified to distinct

  characteristics in the Facebook messages that identified A.C.E-D.

  as the likely author. The Glover division held that similar testimony

  was sufficient to authenticate Facebook messages. ¶¶ 29-33.

  However, unlike in Glover, A.C.E-D. presented evidence raising


                                    21
  doubt as to whether he had written the messages at issue. And he

  points to several cases from other states holding that

  authentication of social media messages requires more than a mere

  showing that the messages came from an account in the name of

  the sender and argues the prosecution failed to provide such

  evidence.

¶ 50   We decline to address A.C.E-D.’s out-of-state authority

  because Glover already requires additional evidence when

  authenticating Facebook messages. Id. at ¶¶ 29-33. Indeed, the

  division acknowledged the authentication problems inherent in

  Facebook messages but affirmed their admission after noting

  evidence in addition to the defendant’s name and image appearing

  on the page. Id. And because the prosecution presented similar

  evidence in this case, it met the heightened authentication standard

  for Facebook messages. A.C.E-D.’s contrary evidence goes to

  weighing the messages, Crespi, 155 P.3d at 574, the very argument

  he made in closing.

¶ 51   For these reasons, we conclude that the trial court did not

  abuse its discretion in admitting the messages.




                                   22
         V. A.C.E-D. Waived His Right to Appeal the Trial Court’s
       Amendment to the Information Charging Him with Harassment

                         A. Additional Background

¶ 52     The initial information charged A.C.E-D. with harassment that

  occurred on or about April 21, 2013. A.C.E-D. entered a guilty plea

  to the harassment charge but moved to withdraw it. On October

  16, 2014, the prosecution moved to amend the harassment count to

  include a date range between April 21 and April 22, 2014. The

  record does not explain the date discrepancy, and A.C.E-D. did not

  raise it. The trial court granted the motion.

¶ 53     After A.C.E-D.’s adjudication, he moved for a new trial raising,

  for the first time, the date range in the amended information. He

  contended that the trial court erred in failing to dismiss the case

  when all the evidence presented against him showed that the

  alleged harassment took place on or between April 21 and 22, 2013,

  and not on or between April 21 and 22, 2014. The trial court

  denied the motion and amended the date to 2013 under Crim. P.

  36.




                                     23
¶ 54      The Attorney General argues that A.C.E-D. waived his right to

  appeal because of his delay in objecting to the date amendment.

  We agree.

                                  B. Waiver

¶ 55      Waiver is the “intentional relinquishment of a known right or

  privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (citation omitted).

  When a party waives a right or privilege, the waiver precludes

  appellate review. Id. A waiver may be express or implied. Id. at

  ¶ 42.

¶ 56      An appellate court “presume[s] that attorneys know the

  applicable rules of procedure.” Hinojos-Mendoza v. People, 169 P.3d

  662, 670 (Colo. 2007). “Objections based on defects in the form of

  the summons or complaint must be raised by motion before trial”

  and failure to do so constitutes a waiver. People v. Dickinson, 197

  Colo. 338, 339, 592 P.2d 807, 808 (1979). This rule ensures that

  litigation is “determined on the merits and not on the basis of

  technical rules.” Id.

¶ 57      An amendment is one of form if it does not add an essential

  element of the offense and “the original information provided notice

  such that the defendant was adequately advised of the charges


                                      24
  against him.” People v. Washam, 2018 CO 19, ¶¶ 18, 26. As well,

  an amendment to the date of the charge is one of form so long as

  “the time or date of commission of the offense is not a material

  element of the charged crime.” People v. James, 40 P.3d 36, 48

  (Colo. App. 2001).

                              C. Application

¶ 58   A.C.E-D. argues that the amendment to the date is one of

  substance because it charged an impossible date. He relies on

  authority that “[a] crime cannot be charged in futuro and an

  indictment or information that purports to do so in legal effect

  charges nothing and is without efficacy.” Rowse v. Dist. Court, 180

  Colo. 44, 47, 502 P.2d 422, 424 (1972). But, this case is

  inapplicable because the information was amended in October 2014

  and alleged a past date range, April 21-22, 2014.

¶ 59   A.C.E-D. makes no other arguments that the amendment was

  one of substance. Importantly, he does not maintain that the time

  or date is a material element of his harassment charge; nor does the

  statute suggest that it is. See § 18-9-111(1)(e), C.R.S. 2018 (listing

  elements of harassment). Thus, we conclude that the amendment

  did not add an essential element of the offense.


                                    25
¶ 60   The amendment at issue could also be one of substance if the

  original information did not provide A.C.E-D. with adequate notice

  of the charges against him. Washam, ¶ 26. A.C.E-D. does not

  argue that he lacked adequate notice of the charges against him.

¶ 61   Because the amendment to the offense date did not add an

  essential element to the crime or prejudice A.C.E-D.’s defense, we

  hold that the amendment to the information was one of form. So,

  to preserve the issue, A.C.E-D. needed to object prior to the start of

  trial. Dickinson, 197 Colo. at 339, 592 P.2d at 808.

¶ 62   During his adjudication, A.C.E-D. defended himself on the

  merits: he cross-examined witnesses, called witnesses of his own,

  and challenged the evidence admitted against him. Only after he

  lost on the merits did A.C.E-D. challenge his adjudication on the

  inadequacy of the information. Our supreme court has rejected

  such a trial strategy. Id.

¶ 63   Therefore, A.C.E-D. waived his challenge.

                               IV. Conclusion

¶ 64   We affirm A.C.E-D.’s adjudication as to both the theft and the

  harassment charges.

       JUDGE HARRIS and JUDGE WELLING concur.


                                     26
