         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
                                                               March 7, 2019

                                   2019COA30

No. 16CA0750, People v. Gonzales — Evidence — Requirement
of Authentication or Identification — Audio Recordings

     In a case involving the submission of a voicemail as evidence,

the division addresses the standards for authenticating an audio

recording under CRE 901 and declines to follow People v. Baca,

2015 COA 153, to the extent that it purports to establish an

exclusive rule for the authentication of a voice recording.

     The division concludes that CRE 901, which governs the

authentication of evidence in Colorado courts, requires a flexible,

factual inquiry to determine under the facts of each case whether a

reasonable jury could determine that the proffered evidence is what

its proponent claims. The division states that, in making this

determination, the trial court necessarily has broad discretion to

consider a variety of factors and circumstances and must consider
all relevant circumstances that bear on whether a recording is what

it purports to be.

     Applying this analysis, the division concludes that the trial

court did not abuse its discretion in admitting the contested

voicemail.

     The division also concludes that the trial court did not abuse

its discretion in admitting a photograph of the defendant’s bare

torso and arms that showed the defendant’s tattoos.
COLORADO COURT OF APPEALS                                      2019COA30


Court of Appeals No. 16CA0750
City and County of Denver District Court No. 15CR20002
Honorable Sheila A. Rappaport, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel J. Gonzales,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division I
                         Opinion by JUDGE BERGER
                               Tow, J., concurs
                        Taubman, J., specially concurs

                          Announced March 7, 2019


Philip J. Weiser, Attorney General, Melissa D. Allen, Assistant Attorney
General, Colleen R. Wort, Assistant Attorney General Fellow, Denver, Colorado,
for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Karen N. Taylor, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    This case addresses the standards for authenticating an audio

 recording under CRE 901. Defendant, Daniel J. Gonzales, appeals

 his convictions for first degree murder with intent and after

 deliberation, first degree felony murder, abuse of a corpse, stalking,

 arson, burglary, and aggravated robbery. He claims that the trial

 court did not comply with the authentication rules prescribed by a

 division of this court in People v. Baca, 2015 COA 153, when it

 admitted a voicemail purportedly left by Gonzales for his murder

 victim.

¶2    We reject Gonzales’s claim because, to the extent Baca

 purports to establish an exclusive rule for the authentication of a

 voice recording, we decline to follow it. We also conclude that when

 the flexible principles of authentication set forth in CRE 901 are

 applied, the voicemail was properly authenticated. Finally, we

 conclude that the trial court properly admitted a photograph

 depicting him shirtless, which exhibited two tattoos on his arms.

 Having rejected all of Gonzales’s claims on appeal, we affirm.

             I.    Relevant Facts and Procedural History

¶3    The evidence admitted at trial, particularly the full confession

 Gonzales made to the police, established the following facts.


                                   1
 Gonzales grew up down the street from the victim and from a young

 age was sexually attracted to the victim. When he was about

 eighteen, Gonzales and a friend broke into the victim’s house. The

 friend stole a TV and a VCR while Gonzales hunted for clues in the

 house that the victim was gay. Gonzales also stole some of the

 victim’s clothing.

¶4    Gonzales eventually moved away from the victim’s

 neighborhood, but his interest in the victim did not disappear.

 Years later, Gonzales returned to the victim’s house, breaking in

 through the back door. After gaining entry, Gonzales grabbed a

 large knife from the kitchen and waited a substantial period of time

 for the victim to return. When he did, Gonzales repeatedly stabbed

 him in the neck, killing him. Gonzales then sexually assaulted the

 victim’s dead body and attempted, unsuccessfully, to set the house

 on fire to destroy the evidence. Gonzales fled the scene with a

 credit card, debit card, and cash that he had taken from the

 victim’s wallet. He was arrested a short time later in Florida.

¶5    At trial, the prosecution presented a video recording of

 Gonzales’s confession, as well as other evidence. The jury convicted

 Gonzales of all charges, the court sentenced him to life in prison


                                   2
 without the possibility of parole plus forty-eight years, and he now

 appeals.

 II.   The Trial Court Did Not Abuse Its Discretion When It Admitted
                               the Voicemail

¶6     Gonzales first argues that the trial court erred in admitting a

 voicemail allegedly left by Gonzales for the victim because the

 prosecution did not properly authenticate the recording of the

 voicemail under the test set out in Baca, ¶ 30.

¶7     We review a trial court’s evidentiary rulings for an abuse of

 discretion. Davis v. People, 2013 CO 57, ¶ 13. A trial court abuses

 its discretion if its ruling is manifestly arbitrary, unreasonable, or

 unfair, or if its ruling is based on an erroneous view of the law.

 People v. Hard, 2014 COA 132, ¶ 22.

                  A.   Additional Factual Background

¶8     After the police completed their crime scene analysis, the

 victim’s sister went to the house to put the victim’s affairs in order.

 She found a microcassette audiotape along with documents related

 to an earlier burglary of the victim’s house. On the tape, a man

 says that he has the victim’s pajamas and jeans. He also says that

 he is going to return those items to the victim, but not the other



                                    3
  items that were stolen. The sister listened to the tape and,

  recognizing its value, gave it to the police.

¶9     At trial, one of the detectives who had interviewed Gonzales

  after his arrest testified that he had also watched the video of that

  interview and had compared Gonzales’s voice in the interview to the

  voice on the tape. The detective testified that the voice on the tape

  sounded like Gonzales’s voice. On that basis, the prosecutor

  argued that the tape recording had been properly authenticated.

  Gonzales objected to the admission of the tape recording of the

  voicemail on authentication grounds, but the trial court overruled

  the objection.

                               B.    Analysis

¶ 10   In Baca, a division of this court held that

             [i]f no witness with independent knowledge of
             the content of the [recording] can verify the
             accuracy of the recorded conversation, the
             proponent must instead present a witness who
             can verify the reliability of the recording
             process, by establishing the factors laid out in
             Alonzi: the competency of the recorder, the
             reliability of the recording system, the absence
             of any tampering with the recording, and the
             identification of the speakers.




                                      4
  Baca, ¶ 30 (citing Alonzi v. People, 198 Colo. 160, 163, 597 P.2d

  560, 562 (1979)). In so doing, the division appears to have

  established an exclusive rule, regardless of the factual

  circumstances presented, to authenticate an audio recording. 1

¶ 11    In devising its exclusive test for the authentication of an audio

  recording, the division relied on the Colorado Supreme Court’s

  Alonzi decision (and other authorities) that predated the supreme

  court’s adoption of the Colorado Rules of Evidence. Baca, ¶¶ 26-28,

  30.

¶ 12    The Attorney General argues that Baca was wrongly decided

  and is inconsistent with the language and underlying purpose of

  CRE 901. To the extent that Baca holds that the only way an audio




                         ———————————————————————
  1 In People in Interest of M.V., 2018 COA 163, a different division of
  this court relied, in part, on People v. Baca, 2015 COA 153, to
  determine whether a video recording was authentic.


                                     5
  recording can be authenticated is to meet one of the two

  alternatives stated in Baca, 2 we agree with the Attorney General.3

        1.   CRE 901 Does Not Prescribe Exclusive Tests for the
         Authentication of Evidence; Instead, CRE 901 Requires Trial
          Courts to Consider All the Circumstances Surrounding the
                                   Evidence

¶ 13   “The burden to authenticate ‘is not high — only a prima facie

  showing is required,’ and ‘a district court’s role is to serve as a

  gatekeeper in assessing whether the proponent has offered a

  satisfactory foundation from which the jury could reasonably find

  that the evidence is authentic.’” People v. Glover, 2015 COA 16,




                         ———————————————————————
  2 Even if Baca’s holding is tethered to its specific facts — a jailhouse
  telephone recording offered by a defendant in a criminal case — it
  may be too broad. As the present case well illustrates, there will be
  innumerable factual situations that are impossible to anticipate in
  which the Baca test may prove too rigid. We cannot exclude the
  possibility that there will exist some factual circumstances that
  would provide sufficient authentication of a jailhouse recording
  without meeting the requirements of Baca.
  3 Our holding creates a division split on this question. Unless and

  until the supreme court resolves the division conflict, the district
  courts may choose which of the conflicting decisions of the court of
  appeals to follow. See C.A.R. 35(e) (“Opinions designated for official
  publication must be followed as precedent by all lower court judges
  in the state of Colorado.”); see also People v. Valdez, 2014 COA 125,
  ¶ 27 (stating that when the law is unsettled, in this case because of
  a split among divisions of the court of appeals, the trial court’s
  alleged error with respect to the law cannot constitute plain error).

                                      6
  ¶ 13 (quoting United States v. Hassan, 742 F.3d 104, 133 (4th Cir.

  2014)).

¶ 14   CRE 901, not common law decisions that predate the adoption

  of the Colorado Rules of Evidence, governs the authentication of

  evidence in Colorado courts. See People v. Ramirez, 155 P.3d 371,

  374-75 (Colo. 2007) (The Colorado Rules of Evidence “govern the

  admissibility of expert testimony”; prior to the adoption of these

  rules, “admissibility of expert testimony was governed by common

  law.”).

¶ 15   There is only one rule stated in CRE 901. “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 balance of CRE 901 is a series of “illustrations,” not

  black-letter rules. Subsection (b) explicitly states that the examples

  given are “[b]y way of illustration only, and not by way of

  limitation.”

¶ 16   Notably, one such illustration states that “[i]dentification of a

  voice, whether heard firsthand or through mechanical or electronic

  transmission or recording, by opinion based upon hearing the voice


                                     7
  at any time under circumstances connecting it with the alleged

  speaker” is consistent with the authentication requirements in CRE

  901(a). CRE 901(b)(5). In our view, this illustration does not

  establish that a voice recording can always be authenticated by a

  voice identification alone. 4 But this illustration, along with the

  others included in CRE 901(b), does demonstrate that the relevant

  considerations in authenticating a voice recording are not limited to

  those set out in Baca.

¶ 17   The Baca division relied heavily on a decision by the Colorado

  Supreme Court that predated the adoption of the Colorado Rules of

  Evidence. Baca, ¶¶ 26-27, 29 (citing Alonzi, 198 Colo. at 163, 597

  P.2d at 562). Alonzi, in turn, “note[d] with approval the test set out

  in United States v. Biggins, 551 F.2d 64 (5th Cir. 1977),” which is

  similar to the test established in Baca. 198 Colo. at 163, 597 P.2d

  at 562. But, in a portion of Biggins not quoted by the supreme

  court in Alonzi (and not noted by the Baca division), the Fifth

  Circuit also stated, “[i]f the trial judge independently determines



                       ———————————————————————
  4 As we read Baca, for purposes of its first alternate authentication

  method, the identification of a voice alone is insufficient to
  authenticate a recording.

                                     8
  that the recording accurately reproduces the auditory evidence,

  however, his discretion to admit the evidence is not to be sacrificed

  to a formalistic adherence to the standard we establish.” 551 F.2d

  at 67.

¶ 18   Moreover, there is a real question whether the portion of Alonzi

  relied on by the Baca division was dictum. As stated by the

  supreme court, the precise question presented in Alonzi was

  whether the proponent of an audio recording was required to prove

  a chain of custody. Alonzi, 198 Colo. at 163, 597 P.2d at 562. The

  supreme court held that a chain of custody was not always

  required. Id. Having definitively answered the question raised by

  the appellant, the court nevertheless addressed other matters not

  necessary to its decision. Id.

¶ 19   Even if the supreme court’s statements in Alonzi regarding the

  required methods to authenticate an electronic recording constitute

  a holding of the court, and not dictum, the source of authority for

  both Alonzi and the Colorado Rules of Evidence is the same — the

  Colorado Supreme Court. See Colo. Const. art. VI, § 21; Forma Sci.,

  Inc. v. BioSera, Inc., 960 P.2d 108, 116 (Colo. 1998) (“The Colorado

  Rules of Evidence were adopted under this court’s rule-making


                                    9
  powers articulated in the Colorado Constitution.”). When the

  Colorado Supreme Court exercises its constitutional authority and

  adopts a rule of procedure or evidence that conflicts with an earlier

  opinion of that court, the later precedent or rule controls, not the

  former. See Ramirez, 155 P.3d at 374-75.

¶ 20   Neither the language of CRE 901 nor its underlying purpose

  supports the prescription of two exclusive methods to authenticate

  a voice recording. As noted above, CRE 901 does not set forth any

  categorical or exclusive rules. To the contrary, the very structure of

  CRE 901 eschews such categorical rules. As a division of this court

  stated in Glover, ¶ 25 (quoting Tienda v. State, 358 S.W.3d 633, 639

  (Tex. Crim. App. 2012)), in the context of authenticating records

  from Facebook or another social networking website, “jurisdictions

  across the country have recognized that electronic evidence may be

  authenticated in a number of different ways consistent with Federal

  Rule 901 and its various state analogs.”

¶ 21   We agree that CRE 901 contemplates a flexible, factual inquiry

  to determine under the facts of each case whether a reasonable jury

  could determine that the proffered evidence “is what its proponent

  claims.” Glover, ¶ 12. In making this determination, the trial court


                                    10
  necessarily has broad discretion to consider a variety of factors and

  circumstances.

¶ 22   In some cases, under some circumstances, particularly when

  there is a colorable claim that a recording has been altered, the

  factors discussed in Baca may be highly pertinent to the

  authenticity determination. In other cases, the factors identified by

  Baca may be inapplicable or unnecessary.

¶ 23   The deficiencies of such a categorical rule are illustrated by

  the facts in State v. Smith, 540 P.2d 424 (Wash. 1975). In that

  murder case, the victim took the precaution of carrying a tape

  recorder with him while keeping an appointment with the murderer.

  Id. at 426. During the victim’s autopsy, the authorities found the

  tape recording. Id. Despite the fact that the recording did not

  satisfy categorical common law rules for authentication similar to

  those adopted in Baca, the Washington Supreme Court held that

  the recording was admissible on the basis of scientific testimony

  and other evidence corroborating its accuracy and completeness.

  Id. at 429.

¶ 24   Or, take the hypothetical situation where a serial killer keeps

  an oral diary of his activities. After the killer’s arrest, the police find


                                      11
  the oral diary in his residence. No recording equipment is found in

  the house. A police detective who has interviewed the killer testifies

  that the voice on the tape is that of the defendant. As we read

  Baca, the diary would be inadmissible even though, under the

  circumstances, the recording would be highly probative and reliable

  evidence of the crimes.

¶ 25   Other courts, applying their versions of Fed. R. Evid. 901,

  have rejected the common law standards typified by Alonzi, Biggins,

  and Baca in favor of a more flexible approach.5 For example, the

  Michigan Supreme Court concluded that Michigan’s adoption of

  Fed. R. Evid. 901 abrogated the more specific common law

  reliability of recording process factors, in favor of a more flexible

  approach. People v. Berkey, 467 N.W.2d 6, 10-12 (Mich. 1991); see

  also Angleton v. State, 971 S.W.2d 65, 68-69 (Tex. Crim. App. 1998)

  (en banc) (same, applying Texas equivalent of CRE 901); State v.

                        ———————————————————————
  5 When the Colorado Supreme Court adopted the Colorado Rules of
  Evidence, CRE 901 was substantively identical to Fed. R. Evid. 901.
  Thus, interpretations of Fed. R. Evid. 901 are highly persuasive in
  our interpretation of CRE 901. See People v. Short, 2018 COA 47,
  ¶ 41. In 2011, many of the Federal Rules of Evidence were
  rewritten in more contemporary language, but no substantive
  changes were intended. Fed. R. Evid. 901 advisory committee’s
  note to 2011 amendments.

                                     12
  Jackson, 54 P.3d 739, 742-43 (Wash. Ct. App. 2002)

  (acknowledging reliability of recording process factors but holding

  that those factors are not the exclusive determinants of

  authenticity).

¶ 26   As the Eighth Circuit has observed, “[p]rivate use of recording

  equipment has become widespread,” and therefore specific factors

  relating to the reliability of the recording process “should be applied

  in a practical light to assure the reliability of the recorded material,”

  rather than in a “mechanical or wooden” manner. United States v.

  O’Connell, 841 F.2d 1408, 1420 (8th Cir. 1988). The same court

  noted that recordings discovered by the police should not “be

  subject to the same requirements [that courts] apply when a

  government agent or informant initiates a conversation knowing

  that it is to be recorded.” Id.; see also Angleton, 971 S.W.2d at 68

  (“[T]he government does not have to prove when, where, how, and

  by whom tape recordings were made, when those recordings were

  recovered from the defendant or an alleged co-defendant, were not

  created as a result of government involvement, were not tampered

  with, and the defendant is identified as a speaker on the tape.”).




                                     13
¶ 27   Similarly, authoritative treatises addressing Fed. R. Evid. 901

  have recognized that the rule establishes flexible procedures for

  determining the authenticity of an electronic recording. See, e.g., 8

  Michael H. Graham, Handbook of Federal Evidence § 901:5,

  Westlaw (8th ed. database updated Nov. 2018) (“The specific

  requirements for authentication of sound recordings vary depending

  upon the circumstances.”); 5 Christopher B. Mueller & Laird C.

  Kirkpatrick, Federal Evidence § 9:14, Westlaw (4th ed. database

  updated July 2018) (“[M]ost courts refuse to be pinned down to the

  [common law] approach and favor greater flexibility in assessing

  authenticity of recorded evidence.”); 31 Charles A. Wright & Victor

  J. Gold, Federal Practice and Procedure § 7110, Westlaw (1st ed.

  database updated Nov. 2018) (“[I]n the case of telephone

  communications the trier of fact undoubtedly is familiar with the

  device and well aware of the potential for problems, thus alleviating

  the need for a detailed foundation.”). 6

                       ———————————————————————
  6 2 Kenneth S. Broun, McCormick on Evidence § 216 n.29, Westlaw
  (7th ed. database updated June 2016), describes strict rules similar
  to the ones adopted in Baca, but then refers to People v. Sangster, 8
  N.E.3d 1116 (Ill. App. Ct. 2014) “[f]or an example of a more relaxed
  foundation.” McCormick then contrasts the approach in Sangster
  with the approach in People v. Baca, 2015 COA 153.

                                     14
¶ 28   The Alonzi court was legitimately concerned about falsification

  of electronic recordings. See Alonzi, 198 Colo. at 163-64, 597 P.2d

  at 562. There is no question that the alteration of electronic

  recordings, whether audio or video, is more of a risk today than

  when Alonzi was decided in 1979. See Bruce E. Koenig & Douglas

  S. Lacey, Forensic Authentication of Digital Audio and Video Files, in

  Handbook of Digital Forensics of Multimedia Data and Devices 133

  (Anthony T. S. Ho & Shujun Li eds., 2015).

¶ 29   Developments in computer technology and software enable

  almost any owner of a personal computer with the necessary

  knowledge and software to falsely edit recordings. Id. But, the fact

  that the falsification of electronic recordings is always possible does

  not, in our view, justify restrictive rules of authentication that must

  be applied in every case when there is no colorable claim of

  alteration. See People v. Sangster, 8 N.E.3d 1116, 1127 (Ill. App.

  Ct. 2014) (“[N]either at trial nor before [the appellate court] did

  Sangster make a colorable claim that the recording was other than

  authentic or accurate.”).




                                     15
¶ 30   Thus, the trial court must consider all relevant circumstances

  that bear on whether a recording is what it purports to be. 7 When a

  plausible claim of falsification is made by a party opposing the

  introduction of a recording, the court may and usually should apply

  additional scrutiny (including, when appropriate, the Baca factors)

  to make the preliminary determination entrusted to the trial court:

  Could a reasonable jury determine that the thing offered into

  evidence is what it purports to be?

                            2.    Application

¶ 31   Applying this flexible approach of CRE 901 to the voicemail in

  this case, we conclude that the trial court properly made a

  preliminary finding that it was what it purported to be. There was

  no claim by Gonzales that the recording was falsified or

  manipulated in any way. The recording was found in the decedent’s

  house by his sister after the premises were released to her by the

  police. A police officer who interrogated Gonzales at length testified

  that Gonzales’s voice was heard on the voicemail. These

  uncontested facts were sufficient to support a CRE 901 finding that

                        ———————————————————————
  7 CRE 104 provides that in making preliminary determinations such

  as authenticity, the court is not bound by the rules of evidence.

                                    16
  the voicemail was what the prosecutor purported it to be — a

  voicemail left by Gonzales for the victim. The ultimate

  determinations of whether the voicemail was authentic and the

  weight, if any, to be given to it were exclusively for the jury to

  determine. See People in Interest of A.C.E-D., 2018 COA 157, ¶ 43;

  Glover, ¶ 13.

¶ 32   Accordingly, the trial court did not abuse its discretion in

  admitting the voicemail.

       III.   The Trial Court Correctly Admitted the Photograph of
                               Gonzales’s Tattoos

¶ 33   In his only other contention of error, Gonzales argues that the

  trial court abused its discretion in admitting a photograph showing

  Gonzales’s tattoos because it was both irrelevant and highly

  prejudicial. We disagree on both fronts.

¶ 34   All relevant evidence is admissible unless prohibited by

  constitution, statute, or court rule. CRE 402; Kaufman v. People,

  202 P.3d 542, 552 (Colo. 2009). Evidence is relevant if it makes the

  existence of any fact of consequence more or less probable. CRE

  401. But, even relevant evidence may be excluded “if its probative

  value is substantially outweighed by the danger of unfair prejudice.”



                                     17
  CRE 403. Evidence is unfairly prejudicial if it has “some undue

  tendency to suggest a decision on an improper basis, commonly an

  emotional basis, such as bias, sympathy, hatred, contempt,

  retribution, or horror.” People v. Cardenas, 2014 COA 35, ¶ 52

  (quoting People v. Fasy, 813 P.2d 797, 800 (Colo. App. 1991)).

¶ 35   The photograph at issue shows Gonzales shirtless with two

  tattoos on his inner forearms clearly visible. The tattoo on one arm

  says “CHUBBY,” and the tattoo on the other says “CHASER.” No

  other tattoos are visible in the photograph.

¶ 36   “Evidence of a defendant’s tattoos may be relevant to that

  defendant’s intent and motive.” Id. at ¶ 51. The photograph was

  relevant to prove Gonzales’s motive. Gonzales said during his police

  interview that he was attracted to heavyset men. The photograph

  corroborates that statement and supports the prosecution’s theory

  that Gonzales targeted the victim because his body type was

  consistent with Gonzales’s preferred body type.

¶ 37   Gonzales argues that the photograph was highly prejudicial

  because from it the jury could have inferred that Gonzales chased

  chubby men with the intention of doing them harm, rather than

  because he was sexually attracted to them. But once relevance is


                                    18
  established, the inferences drawn from that evidence are solely for

  the jury to draw, not an appellate court. See People v. Summit, 132

  P.3d 320, 324 (Colo. 2006). Under CRE 403, an appellate court

  assumes the maximum probative value of relevant evidence and the

  minimum prejudicial value. People v. Gibbens, 905 P.2d 604, 607

  (Colo. 1995). Applying that rule here, the trial court acted well

  within its discretion in admitting the photograph. Gonzales

  admitted both that he was he was attracted to larger men and that

  he killed a person who fit that physical description. On these facts,

  the jury was entitled to consider the probative value of the tattoos. 8

                             IV.   Conclusion

¶ 38   The judgment of conviction is affirmed.

       JUDGE TOW concurs.

       JUDGE TAUBMAN specially concurs.




                       ———————————————————————
  8 Gonzales also claims that it was unnecessary for the jury to see
  his bare torso. But Gonzales does not explain, and we cannot
  discern, how the image of his bare torso might incite such “bias,
  sympathy, hatred, contempt, retribution, or horror” that it would
  render the admission of this evidence improper or prejudicial.
  People v. Cardenas, 2014 COA 35, ¶ 52 (quoting People v. Fasy, 813
  P.2d 797, 800 (Colo. App. 1991)).

                                    19
       JUDGE TAUBMAN, specially concurring.

¶ 39   Although the majority declines to follow People v. Baca, 2015

  COA 153, 378 P.3d 780, “to the extent Baca purports to establish

  an exclusive rule for the authentication of a voice recording,” I do

  not share that interpretation. Supra ¶ 2. As a member of the Baca

  division, I agreed with its analysis, and I still do. I also agree with

  much of the majority’s analysis in this case and its conclusion that

  the microcassette recording that appeared to have the voice of

  defendant, Daniel J. Gonzales, was properly admitted.

¶ 40   While some language in Baca suggests that the division

  intended to establish an exclusive rule for the authentication of

  voice recordings, the Baca division acknowledged that CRE 901(a)

  sets forth a broad standard for the authentication of evidence,

  including voice recordings. In Baca, the division held that to

  authenticate a voice recording, a witness had to show independent

  knowledge of the content of a telephone call or an ability to verify

  the accuracy of the recording process. That test was especially

  appropriate under the facts in that case, which involved the

  admissibility of a telephone conversation between a jail inmate and

  his mother. In those circumstances, undoubtedly, many inmates


                                     20
  made telephone calls, thereby making it necessary to ensure the

  identity of the callers to authenticate the phone conversation.

¶ 41   Here, in contrast, the court was concerned with the

  admissibility of a microcassette recording found by the victim’s

  sister in the victim’s home. In that situation, there was a reduced

  likelihood of improper authentication of Gonzales’s voice.

¶ 42   Accordingly, because I agree that the results in both Baca and

  this case were correct, I specially concur.




                                    21
