COLORADO COURT OF APPEALS                                         2017COA18


Court of Appeals No. 15CA0414
Weld County District Court Nos. 12CR424 & 12CR506
Honorable Shannon D. Lyons, Judge
Honorable Todd L. Taylor, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Bradford Steven Raehal,

Defendant-Appellant.


           JUDGMENT AFFIRMED, SENTENCED VACATED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                    Division VII
                            Opinion by JUDGE HARRIS
                      Lichtenstein and Richman, JJ., concur

                          Announced February 23, 2017


Cynthia H. Coffman, Attorney General, Patricia R. Van Horn, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Krista A. Schelhaas, Alternate Defense Counsel, Littleton, Colorado, for
Defendant-Appellant
¶1    Bradford Steven Raehal was convicted of multiple sexual

 offenses in connection with his sexual abuse of two boys, S.F. and

 J.H. On appeal, he argues that the district court erred in granting

 the prosecution’s joinder motion, denying his motion to suppress

 evidence, and admitting unproven prior acts evidence under CRE

 404(b).

¶2    We reject each of these contentions, and therefore affirm

 Raehal’s convictions. However, Raehal also contends that the court

 erroneously designated him a sexually violent predator without

 making the necessary findings. We agree, and thus we vacate this

 designation and remand for appropriate findings.

                           I.    Background

¶3    Raehal was living in the basement of S.F.’s family home when

 he was arrested for failing to register as a sex offender. Shortly

 after the arrest, S.F. disclosed that Raehal had sexually assaulted

 him on numerous occasions.

¶4    During a forensic interview, S.F. detailed the assaults and

 reported that Raehal had taken nude pictures of him on a digital

 camera. Police officers thereafter obtained and executed a search


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 warrant for Raehal’s residence and seized the digital camera.

 Forensic analysis of the camera recovered thirteen previously

 deleted pictures of S.F. and Raehal engaged in sexual activity.

¶5    J.H., who also lived at S.F.’s house, initially denied that he

 was sexually assaulted by Raehal, but he later reported three

 separate incidents of sexual abuse. While the boys each reported

 different types of sexual contact, both S.F. and J.H. alleged that

 abuse occurred in Raehal’s semitrailer, that Raehal had provided

 them with videogames, and that he initiated the contact by rubbing

 lotion on their backs.

¶6    Raehal was initially charged in separate cases for the incidents

 with S.F. (12CR424) and the incidents with J.H. (12CR506). The

 prosecution moved to join the cases before trial, and the district

 court granted the motion over defense counsel’s objection.

¶7    After a jury trial, Raehal was convicted of two counts of sexual

 assault on a child by one in a position of trust (one for acts against

 S.F. and one for acts against J.H.) and two counts of sexual assault

 on a child as part of a pattern of abuse (one for acts against S.F.

 and one for acts against J.H.). He was further convicted of two


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 counts of sexual exploitation of a child for the possession and

 production of sexually exploitive material relating to the pictures

 taken of S.F. In a separate proceeding, Raehal was adjudicated a

 habitual sex offender against children. The district court

 designated him a sexually violent predator and sentenced him to

 112.5 years to life in the custody of the Department of Corrections.

                                 II.   Joinder

¶8        Raehal contends that the district court erred in joining the

 cases alleging abuse of S.F. and J.H. While he admits that S.F.’s

 testimony would have been admissible as CRE 404(b) evidence in

 the case relating to J.H., he insists that the cases were improperly

 joined because the explicit photographs depicting Raehal and S.F.

 engaged in sexual acts would not have been admissible in J.H.’s

 trial.

¶9        Although Raehal objected to the pretrial joinder of the cases,

 the People contend that Raehal waived this claim because he did

 not renew his objection during trial. See People v. Bondsteel, 2015

 COA 165, ¶ 27 (cert. granted Oct. 31, 2016). We disagree, and

 conclude that the claim was adequately preserved.


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¶ 10    The division in Bondsteel held that an objection to joinder is

  unpreserved if not renewed at trial, id., but the division also

  acknowledged that its holding departed from nearly fifteen years of

  contrary precedent. See People v. Gross, 39 P.3d 1279, 1282 (Colo.

  App. 2001) (requiring only a pretrial objection to preserve the issue).

  Raehal’s trial preceded the Bondsteel decision. Accordingly, we

  decline to impose its new rule on Raehal. See Bondsteel, ¶ 30

  (recognizing that, “[t]o hold that the issue is waived, despite this

  precedent, could be a retroactive application of a new rule, which

  might implicate due process”).

¶ 11    A trial court may order two or more criminal complaints to be

  tried together if the offenses could have been joined in a single

  complaint. Crim. P. 13. Two or more offenses may be charged in

  the same charging document if the offenses are of the same or

  similar character or are based on two or more connected acts or

  transactions or parts of a larger scheme or plan of action. Crim. P.

  8(a)(2).

¶ 12    We review a decision concerning the joinder of separate

  charges for an abuse of discretion. People v. Curtis, 2014 COA 100,


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  ¶ 14. An abuse of discretion occurs when the joinder causes actual

  prejudice as result of the jury’s inability to separate the facts and

  legal theories applicable to each offense. Id. at ¶ 15; People v.

  Gregg, 298 P.3d 983, 985-86 (Colo. App. 2011). There is no

  prejudice where evidence of each offense would be admissible in

  separate trials. Gregg, 298 P.3d at 986.

¶ 13   Pursuant to CRE 404(b), evidence of other crimes, wrongs, or

  acts is inadmissible if its relevance depends on an inference that

  the person has a bad character and acted in conformity with that

  character. However, this evidence may be admissible for other

  purposes. CRE 404(b); see also § 16-10-301(1), C.R.S. 2016

  (permitting the prosecution to introduce evidence of other sexual

  offenses for any purpose other than propensity because “such

  evidence of other sexual acts is typically relevant and highly

  probative”).

¶ 14   Raehal concedes that, under CRE 404(b), S.F.’s testimony

  describing the sexual assaults would have been admissible in a

  separate trial on the charges related to J.H., but he insists that the

  photographs depicting the abuse would not have been admissible.


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  According to Raehal, the court should have conducted a separate

  Rule 404(b) analysis with respect to the photographs and

  determined that the sexual conduct shown in the photographs was

  not sufficiently similar to the sexual conduct described by J.H. For

  example, Raehal says, S.F. and J.H. both testified that Raehal

  rubbed lotion on them as a prelude to sexual activity, but the

  photos did not depict that particular conduct.

¶ 15   We disagree that the district court was required to separately

  analyze the photos under CRE 404(b). Raehal does not allege that

  the taking of the photographs was an independent prior bad act

  under Rule 404(b). The photographs were admitted not to prove a

  common scheme or plan but simply to corroborate S.F.’s testimony.

  See People v. Roark, 643 P.2d 756, 762 (Colo. 1982) (“[P]hotographs

  are admissible to depict graphically anything a witness may

  describe in words.”); see also People v. Herrera, 2012 COA 13, ¶ 33.

  When photographs are admitted for this purpose, the admissibility

  test articulated in People v. Spoto, 795 P.2d 1314, 1318 (Colo.

  1990), is inapplicable.




                                    6
¶ 16   Accordingly, we need only address Raehal’s claim that the

  photographs were unduly prejudicial under CRE 403. Pursuant to

  Rule 403, “evidence may be excluded if its probative value is

  substantially outweighed by the danger of unfair prejudice.” CRE

  403. Photographs are not inadmissible “merely because they

  present vividly to the jurors the details of a shocking crime.” People

  v. Villalobos, 159 P.3d 624, 630 (Colo. App. 2006) (quoting Martinez

  v. People, 124 Colo. 170, 177, 235 P.2d 810, 814 (1951)). Nor are

  they rendered inadmissible because these “grim details . . . might

  shock or otherwise upset the trier of fact.” People v. Drake, 748

  P.2d 1237, 1248 (Colo. 1988). Evidence is only unfairly prejudicial

  if it has an undue tendency to suggest a decision on an improper

  basis such as sympathy, hatred, contempt, retribution, or horror.

  People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002). While the

  photographs are undoubtedly upsetting, given their probative value

  in corroborating S.F.’s testimony and proving the sexual assault, we

  cannot say that they are unduly inflammatory in the context of a

  sexual assault on a child case. See People v. Dunlap, 975 P.2d 723,

  747 (Colo. 1999) (Photos of entry wounds “were not particularly


                                    7
  shocking in the context of a murder.”); People v. Guffie, 749 P.2d

  976, 983 (Colo. App. 1987) (probative value outweighed prejudice of

  graphic pictures of homicide victim, even though witness had

  already testified to the contents of the photos).

¶ 17   Raehal also contends that the district court further erred by

  failing to provide an instruction limiting the purposes for which the

  jury could consider his conduct against S.F. in determining guilt as

  to J.H. See § 16-10-301(4)(d). However, because defense counsel

  did not request such an instruction when the evidence was

  introduced, we analyze this issue under the plain error standard of

  review. People v. Underwood, 53 P.3d 765, 771 (Colo. App. 2002).

  Under plain error, we will reverse only if the error was obvious and

  “undermined the fundamental fairness of the trial itself so as to

  cast serious doubt on the reliability of the judgment of conviction.”

  People v. Miller, 113 P.3d 743, 750 (Colo. 2005) (quoting People v.

  Sepulveda 65 P.3d 1002, 1006 (Colo. 2003)).

¶ 18   Even if we assume the court erred by failing to give a limiting

  instruction, any error did not affect the reliability of the judgment of

  conviction.


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¶ 19   Although it did not provide a limiting instruction directing the

  jury not to consider any evidence of other acts as propensity

  evidence, the district court specifically instructed the jury that

  “[e]ach count charges a separate and distinct offense and the

  evidence and law applicable to each count should be considered

  separately, uninfluenced by your decision as to any other count.”

  We presume the jury followed this instruction, which similarly

  limited the jury’s consideration of the evidence. See Curtis, ¶ 23.

¶ 20   In sum, because any error could not have cast serious doubt

  on the reliability of the judgment of conviction,reversal is not

  required.

        III.   Seizure and Subsequent Search of Digital Camera

¶ 21   Raehal further contends that the district court erred in

  denying his motion to suppress the explicit photographs because

  the digital camera on which they were discovered was outside the

  scope of the search warrant. In the alternative, he asserts that even

  if the camera was properly seized, it was illegally searched because

  it was not analyzed until months later, long after the warrant had




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  expired. We reject both contentions and conclude that the district

  court did not err in denying Raehal’s motion to suppress.

¶ 22   Appellate review of a ruling on a motion to suppress presents a

  mixed issue of fact and law. People v. Pitts, 13 P.3d 1218, 1221-22

  (Colo. 2000). While we will defer to a trial court’s findings of fact

  that are supported in the record, the trial court’s legal conclusions

  are subject to de novo review. Id. at 1222.

¶ 23   The search warrant specifically authorized the seizure of “any

  and all computer systems and computer equipment,” “any and all

  storage media,” and “any and all computer peripheral devices

  attached or unattached to the computer to include but not limited

  to . . . physical devices which serve to transmit or receive

  information to and from the computer.” The warrant also

  authorized the officers to look for and seize “images, video, or

  drawings which portray child pornography.” In addition, the

  warrant affidavit reported S.F.’s statement that the defendant had

  taken digital pictures of him with a gray or silver digital camera.

¶ 24   In deciding whether items discovered during the execution of a

  search warrant are within the scope of the warrant, police officers


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  are not obliged to interpret its terms narrowly. People v. Gall, 30

  P.3d 145, 153 (Colo. 2001).

¶ 25    We agree with the district court that digital cameras “are

  certainly physical devices that can transmit and receive information

  from computers,” and, therefore, the digital camera seized from

  Raehal’s residence was within the scope of the search warrant.

¶ 26   Moreover, when executing a warrant, officers may search the

  location, including any containers or “technological containers” at

  that location that are reasonably likely to contain items described in

  the warrant. Id. (upholding seizure of computer because it was

  reasonably likely to serve as a “container” for writings). Here, the

  officers were authorized to search for images of child pornography,

  and the digital camera was reasonably likely to serve as a

  “technological container” for these images, especially in light of the

  victim’s statement, contained in the affidavit, that Raehal had taken

  pictures of him with a digital camera. Accordingly, the camera was

  properly seized pursuant to the warrant.

¶ 27   Raehal asserts, in the alternative, that even if the camera was

  lawfully seized, it was unlawfully searched because the forensic


                                    11
  analysis occurred outside the statutory fourteen-day time frame for

  executing the warrant. See § 16-3-305(6), C.R.S. 2016; Crim. P.

  41(d). According to his argument, because the original warrant had

  expired before the camera was searched, unless the police obtained

  a second warrant, the later analysis of the camera constituted an

  unconstitutional warrantless search.

¶ 28   The warrant, though, was executed within the fourteen-day

  deadline. The requirement that search warrants be executed

  promptly prevents officers from conducting searches long after the

  probable cause supporting the search has expired. See People v.

  Russom, 107 P.3d 986, 991 (Colo. App. 2004); see also United

  States v. Brewer, 588 F.3d 1165, 1173 (8th Cir. 2009). But in this

  case, when the warrant was executed, the officers still had probable

  cause to believe that the camera would be found in Raehal’s house

  and that it would contain images of child pornography.

¶ 29   The officers were not required to conduct an analysis of the

  digital camera at Raehal’s house. Typically, search warrants which

  specifically authorize the seizure of technology contemplate the later




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  search of that media. See United States v. Gregoire, 638 F.3d 962,

  967-68 (8th Cir. 2011).1

¶ 30   And a second warrant to search properly seized media is not

  necessary where the evidence obtained in the search does not

  exceed the probable cause articulated in the original warrant. See

  United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012); see also

  United States v. Grimmett, 439 F.3d 1263, 1268-69 (10th Cir. 2006).

  Here, based on an affidavit establishing probable cause, the search

  warrant expressly authorized the examination of any computer and

  storage devices for images of child pornography. Because the

  images could not have been altered or deleted once the camera was

  seized, probable cause for the search did not dissipate in the

  interval between the initial seizure of the camera and its

  subsequent search. Brewer, 588 F.3d at 1173 (Because the

  evidence at issue was “electronically-stored files in the custody of



  1 We note the Federal Rules of Criminal Procedure analog to Crim.
  P. 41(d) was amended in 2009 to state that, “[u]nless otherwise
  specified, the warrant authorizes a later review of the media or
  information consistent with the warrant. The time for executing the
  warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or
  on-site copying of the media or information, and not to any later
  off-site copying or review.” Fed. R. Crim. P. 41(e)(2)(B).
                                    13
  law enforcement[,] . . . the several months’ delay in searching the

  media did not alter the probable cause analysis.”); United States v.

  Burgess, 576 F.3d 1078, 1097 (10th Cir. 2009) (“Probable cause to

  search was unaffected by the delay and the reasons to search the

  computer and hard drives did not dissipate during the month and a

  half the items sat in an evidence locker.”); United States v. Syphers,

  426 F.3d 461, 469 (1st Cir. 2005) (One-year delay in searching

  computer after it was seized did not invalidate the search because

  the delay did not “cause[] a lapse in probable cause.”).

¶ 31   The cases Raehal cites do not undercut this rule. In those

  cases, a second warrant to search electronic media was required

  because, while conducting the subsequent search of the media,

  evidence of a different crime was inadvertently uncovered.

  Generally, to continue to search for evidence of this second crime, a

  second search warrant is required. See United States v. Carey, 172

  F.3d 1268, 1270 (10th Cir. 1999) (the original warrant authorized a

  search of the computer for evidence related to illegal drug sales;

  when the officers found evidence of another crime — possession of

  child pornography — another warrant was needed to search for this


                                    14
  evidence); Grimmett, 439 F.3d at 1268 (“[L]aw enforcement may not

  expand the scope of a search beyond its original justification.”).

  Where, as here, the evidence uncovered on the media was within

  the scope of the original search warrant, the original warrant is

  sufficient to authorize the search. See Grimmett, 439 F.3d at 1268

  (distinguishing Carey and concluding that the original warrant

  authorized the subsequent computer search because the evidence

  uncovered was within the original justification for the search and

  seizure of the computer).

            IV.   Factual Predicate for CRE 404(b) Evidence

¶ 32   At trial, pursuant to Rule 404(b), the prosecution presented

  evidence of two previous incidents in which Raehal had sexually

  assaulted minor boys. Raehal contends that this evidence was

  improperly admitted because the prosecution’s offer of proof was

  inaccurate. We are not persuaded.

¶ 33   Before a trial court may admit other acts evidence, it must

  first determine whether the prosecution has established by a

  preponderance of the evidence that the other act occurred and the

  defendant committed it. § 16-10-301(4)(b); People v. Gallegos, 226


                                    15
  P.3d 1112, 1116 (Colo. App. 2009). This determination may be

  made based on an offer of proof. § 16-10-301(4)(c).

¶ 34   Prior to trial, the prosecution moved to admit evidence,

  pursuant to section 16-10-301 and Rule 404(b), that Raehal had

  previously sexually assaulted two young boys. In the offer of proof,

  the prosecution summarized the boys’ statements to police, which

  alleged that Raehal had sexually assaulted them after inviting them

  to his home to play video games. The detective’s reports were

  attached to the offer of proof.

¶ 35   Shortly after the boys’ disclosures to the police, Raehal was

  charged with two counts of sexual assault on a child and one count

  of sexual assault on a child as part of a pattern of abuse. Raehal

  was convicted of one count of sexual assault on a child, and a

  mistrial was declared on the other two counts.2

¶ 36   In the motion to admit the Rule 404(b) evidence, the

  prosecutor accurately stated that these acts “resulted in a




  2 While the pattern of abuse count was dismissed by the court, the
  second sexual assault on a child count was dismissed by the
  prosecution after the victim’s mother stated that she did not want
  to put her child through another trial.
                                    16
  conviction for Sexual Assault on a Child in Adams County case

  95CR1806.” However, less accurately, she also averred that “[t]he

  defendant has been convicted of the offenses set forth in the Offer of

  Proof.”

¶ 37   Despite the imprecise nature of this second statement, the

  court was not under any illusions that Raehal was convicted of both

  counts of sexual assault on a child arising out of the offer of proof.

  Rather, the court explicitly acknowledged that Raehal was only

  convicted of one count arising from these allegations, but

  nonetheless determined that the offer of proof was sufficient to find,

  by a preponderance of the evidence, that all of the prior acts

  occurred. See Kinney v. People, 187 P.3d 548, 554 (Colo. 2008)

  (“Prior act evidence can be admitted even though the defendant was

  acquitted of the criminal charges arising out of the act.”).

  Accordingly, the district court’s determination that the prior acts

  occurred was not based on erroneous information. Because Raehal

  does not otherwise challenge the admission of this evidence, we

  perceive no error.




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            V.    Designation as a Sexually Violent Predator

¶ 38   Finally, Raehal contends, and the People concede, that the

  district court erred by designating him a sexually violent predator

  without first making specific findings of fact on the record.

¶ 39   Section 18-3-414.5(2), C.R.S. 2016, requires district courts to

  make specific findings of fact regarding whether a defendant is a

  sexually violent predator. See People v. Loyas, 259 P.3d 505, 512

  (Colo. App. 2010); People v. Tuffo, 209 P.3d 1226, 1231 (Colo. App.

  2009). But here, the district court did not make any findings on the

  record on this issue. Accordingly, we must vacate Raehal’s sexually

  violent predator designation and remand for further findings. See

  Tuffo, 209 P.3d at 1231-32.

                            VI.   Conclusion

¶ 40   The judgment of conviction is affirmed. We vacate the district

  court’s determination that Raehal is a sexually violent predator, and

  remand for further findings on this issue.

       JUDGE LICHTENSTEIN and JUDGE RICHMAN concur.




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