COLORADO COURT OF APPEALS                                       2017COA41


Court of Appeals No. 14CA1030
Adams County District Court No. 13CR27
Honorable Thomas R. Ensor, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Anton Jose Valdez,

Defendant-Appellant.


                      JUDGMENT AND SENTENCE AFFIRMED

                                  Division III
                           Opinion by JUDGE WEBB
                         Bernard and Dunn, JJ., concur

                           Announced April 6, 2017


Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Stephen Arvin, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1     A jury convicted Anton Jose Valdez of first degree murder after

 deliberation and several other charges arising from the robbery of a

 jewelry store during which one of the two hooded robbers shot and

 killed the owner. Valdez did not testify but defended based on

 misidentification. On the first degree murder count, the trial court

 sentenced him to life imprisonment without the possibility of parole.

 On the aggravated robbery count, the court imposed a consecutive

 sentence of thirty-two years in the custody of the Department of

 Corrections. It imposed concurrent sentences on the other counts.

¶2     Valdez seeks a new trial based on rulings admitting DNA

 evidence from the crime scene and surveillance camera videos of

 the robbery in progress.

      As to the DNA evidence, he asserts that the match was derived

       from a sample unconstitutionally collected when he was

       arrested on an unrelated charge.

      As to one of the videos, he asserts that depiction of the owner’s

       dying moments was unfairly prejudicial, and as to all of the

       videos that the court should have restricted the jury’s

       replaying them during deliberations.

                                    1
 Alternatively, he challenges the trial court’s conclusion that the

 crime of violence statute required consecutive sentencing on the

 aggravated robbery count. The Attorney General concedes

 preservation of all issues.

¶3    Discerning no evidentiary errors, we affirm the judgment of

 conviction. Then addressing a novel question in Colorado, we

 further conclude that because affirmance means Valdez was

 lawfully sentenced to a life term without parole, his challenge to the

 consecutive sentence is moot.

    I. The Trial Court Did Not Err in Allowing the Prosecution to
   Present Evidence Linking DNA From the Crime Scene to a DNA
 Sample Previously Taken from Valdez in Connection with His Arrest
                     on a Felony Traffic Offense

¶4    In his suppression motion, Valdez argued that taking the DNA

 sample during his arrest for aggravated driving under restraint –

 habitual offender, § 42-2-206(1)(b)(II), C.R.S. 2016, constituted an

 unreasonable search and seizure under both the United States and

 Colorado Constitutions. According to Valdez, a constitutional

 violation occurred because aggravated driving under restraint “is

 not a serious offense” under Maryland v. King, 569 U.S. ___, ___,

 133 S. Ct. 1958, 1980 (2013). However, the motion conceded that
                                   2
 because Valdez had entered into a plea agreement and pleaded

 guilty to only misdemeanors, he was eligible for — but had failed to

 pursue — the DNA expungement procedures under section

 16-23-105, C.R.S. 2016. This section is part of Katie’s Law,

 §§ 16-23-101 to -105, C.R.S. 2016. In response, the prosecutor

 primarily asserted that the DNA collection was constitutional

 because Valdez had been arrested for a felony, as provided in

 Katie’s Law.

¶5    After hearing argument from counsel, the trial court denied

 the motion from the bench. The court found that Valdez’s motion

 was an improper “collateral attack on evidence obtained in another

 case . . . where that evidence was never sought to be suppressed”

 and “where [Valdez] had the opportunity to remove that DNA from

 the database, since he was not convicted of a felony.” Alternatively,

 it concluded that collection of Valdez’s DNA was constitutional

 because he “was, in fact, arrested for a serious matter . . . and it

 would, in fact, pass muster pursuant to [the] . . . King decision.”




                                    3
                         A. Collateral Estoppel

¶6    Although Valdez’s opening brief argues that the trial court

 erred in denying his motion as an improper “collateral attack,” the

 Attorney General does not defend the court’s ruling on this basis.

 Still, under the doctrine of constitutional avoidance, we address

 constitutional issues only if necessary. See Developmental

 Pathways v. Ritter, 178 P.3d 524, 535 (Colo. 2008) (stating that

 judicial restraint requires courts to avoid reaching constitutional

 questions in advance of the necessity of deciding them); People v.

 Lybarger, 700 P.2d 910, 915 (Colo. 1985) (“Axiomatic to the exercise

 of judicial authority is the principle that a court should not decide a

 constitutional issue unless and until such issue is actually raised

 by a party to the controversy and the necessity for such decision is

 clear and inescapable.”). And were we to agree with the trial court

 that Valdez was estopped from challenging collection of his DNA, we

 would never reach the constitutional question. So, we start with

 that aspect of the court’s ruling, but reject it as a misapplication of

 the law.




                                    4
¶7    To begin, one may wonder if the doctrine of collateral estoppel

 (also called issue preclusion) applies in criminal cases. It does. See

 generally People v. Smith, 938 P.2d 111, 113 (Colo. 1997).

¶8    Even so, the scope of this doctrine may be narrower in

 criminal cases. Deciding that a defendant is estopped from

 relitigating an issue in a second criminal proceeding depends on

 whether “the question was ‘distinctly put in issue and directly

 determined’ in the [prior] criminal prosecution.” Metros v. U.S. Dist.

 Court, 441 F.2d 313, 316 (10th Cir. 1970) (quoting Kauffman v.

 Moss, 420 F.2d 1270, 1274 (3d Cir. 1970)). Because in the traffic

 case Valdez failed to either move to suppress the DNA sample before

 pleading guilty or seek expungement based on his misdemeanor

 plea, the constitutional issue raised in this appeal was not

 determined. Compare Commonwealth v. Lunden, 35 N.E.3d 412,

 416 (Mass. App. Ct. 2015) (“In the [prior] case, the defendant did

 not move to suppress the blood evidence match, and therefore

 despite the defendant’s conviction the [prior] proceeding did not

 result in a final judgment on the merits . . . .”), with Sharp v. State,

 835 N.E.2d 1079, 1085 (Ind. Ct. App. 2005) (“[The defendant]


                                     5
  litigated the constitutionality of the taking of his DNA that was

  placed in the database in the prior case, and he presented that

  issue in the prior appeal. Hence, we can only conclude that [he]

  had the full and fair opportunity to litigate the issue he raises here,

  and the doctrine of collateral estoppel precludes him from

  relitigating the issue now.”).

¶9        Thus, because Valdez’s constitutional challenge cannot be

  avoided, we turn to it.

       B. Constitutionality of the DNA Collection in the Traffic Case

                       1. Standard of Review and Law

¶ 10      Suppression rulings normally present a mixed question of fact

  and law. See People v. Cisneros, 2014 COA 49, ¶ 56. But Valdez’s

  contention only raises an issue of law — he challenges the

  constitutionality of section 16-23-103, C.R.S. 2016, as applied to

  him. And “[w]e review the constitutionality of a statute, both

  facially and as applied, de novo.” People v. Lovato, 2014 COA 113,

  ¶ 12.

¶ 11      When reviewing a statute, we presume that it satisfies

  constitutional standards. People v. Baer, 973 P.2d 1225, 1230


                                      6
  (Colo. 1999). The party challenging a statute on constitutional

  grounds — whether as applied or facial — bears the burden of

  establishing the statute’s unconstitutionality beyond a reasonable

  doubt. Id.1

¶ 12   In King, 569 U.S. at ___, 133 S. Ct. at 1970, 1980, the

  Supreme Court upheld a Maryland DNA collection statute that

  required “all arrestees charged with serious crimes” to submit a

  buccal swab for DNA testing solely as a police booking procedure.

  The Court concluded:

            DNA identification of arrestees is a reasonable
            search that can be considered part of a routine
            booking procedure. When officers make an
            arrest supported by probable cause to hold for
            a serious offense and they bring the suspect to
            the station to be detained in custody, taking
            and analyzing a cheek swab of the arrestee’s
            DNA is, like fingerprinting and photographing,
            a legitimate police booking procedure that is
            reasonable under the Fourth Amendment.

  Id. at ___, 133 S. Ct. at 1980 (emphasis added).




  1In Tabor Foundation v. Regional Trans. Dist., 2016 COA 102, our
  supreme court has granted certiorari to consider this standard.
  16SC639, 2017 WL 280826 (Colo. Jan. 23, 2017).
                                    7
¶ 13   Like the Maryland statute, section 16-23-103(1)(a) requires

  that for “[e]very adult arrested on or after September 30, 2010, for a

  felony offense or for the investigation of a felony offense . . . [t]he

  arresting law enforcement agency shall collect the biological

  substance sample from the arrested person as part of the booking

  process.” (Emphasis added.) These samples are tested by the

  Colorado Bureau of Investigation (the CBI) and are filed in the state

  index system. § 16-23-104(2), C.R.S. 2016.

¶ 14   But unlike the Maryland statute, Katie’s Law does not impose

  an express seriousness requirement. The Attorney General seeks to

  fill this gap by arguing that every felony is serious.

¶ 15   The Colorado Supreme Court has not spoken to the

  constitutionality of Katie’s Law. In People v. Lancaster, 2015 COA

  93, ¶ 23, however, the division concluded that a DNA sample taken

  in violation of section 16-23-103(1)(a) — because the defendant had

  been arrested for only misdemeanor traffic offenses — did not

  violate the defendant’s constitutional privacy interests.

¶ 16   Of course, the division acknowledged that “[a] cheek swab to

  obtain a DNA sample is a search, and a search without a warrant


                                       8
  supported by probable cause is presumptively unreasonable unless

  it falls within one of the established exceptions to the warrant

  requirement.” Id. at ¶ 14. Then the division turned to one such

  exception — that for “special needs” — which “balance[s] the

  government’s special need against the individual’s asserted privacy

  interests.” Id. at ¶ 15 (quoting People v. Rossman, 140 P.3d 172,

  174 (Colo. App. 2006)).

¶ 17   In applying this exception, the division held that “the

  government’s interest in the DNA sample was not outweighed by

  [the defendant’s] privacy interests.” Id. at ¶ 23. It explained that

  after an arrest, “the intrusion into [the arrestee’s] privacy resulting

  from the buccal swabs was minimal and akin to booking procedures

  like the fingerprinting and photographing of a suspect.” Id. On this

  basis, the division concluded that “the trial court did not err in

  denying [the defendant’s] motion to suppress the DNA profile that

  was allegedly developed as a result of the prior warrantless

  collections of DNA evidence from him.” Id. at ¶ 25.




                                     9
¶ 18   Valdez cites no contrary Colorado authority, nor are we aware

  of any. We consider Lancaster well reasoned and apply it as

  follows.

                             2. Application

¶ 19   Valdez raises three constitutional arguments. We consider

  and reject each in turn.

¶ 20   First, Valdez argues that although he was arrested for

  aggravated driving, his DNA was “not taken pursuant to a serious

  offense as contemplated in [King].”

¶ 21   Lancaster, where the defendant was “only in custody for

  misdemeanor offenses,” id. at ¶ 26, rejected a similar argument. As

  the division explained, “[a]lthough in King, 133 S. Ct. at 1980, the

  Supreme Court concluded that it was constitutional to collect DNA

  from a suspect detained in custody for a ‘serious offense,’ the Court

  did not hold that it is unconstitutional to take DNA from arrestees

  under all other circumstances.” Id. Instead, “the magnitude of the

  state’s interest does not necessarily depend on the seriousness of

  the crime of arrest. As [King] observed, ‘people detained for minor

  offenses can turn out to be the most devious and dangerous


                                    10
  criminals.’” Id. (quoting Haskell v. Harris, 745 F.3d 1269, 1273 (9th

  Cir. 2014) (Smith, J., concurring in the judgment), in turn quoting

  King, 569 U.S. at ___, 133 S. Ct. at 1971).

¶ 22   Because, under Lancaster, Valdez’s proposed “serious felony”

  litmus test for constitutionality falls short, we decline to decide

  whether aggravated driving is such an offense or whether all

  felonies are serious.

¶ 23   Lancaster also rejected Valdez’s second argument — that

  unlike the Maryland statute in King, Katie’s Law “is clearly not

  designed to identify defendants in the manner of a booking

  procedure.” True enough, the legislative declaration in section

  16-23-102(1), C.R.S. 2016, refers to “preventing” and “solving”

  crimes. And these purposes are beyond the ambit of merely

  establishing an arrestee’s identity.

¶ 24   Even so, the division held that “[t]he statute at issue in King

  did not expressly say that identification was its sole governmental

  interest.” Lancaster, ¶ 27. It added, “[n]or did the Supreme Court

  say that identification is the only legitimate governmental interest

  served by collecting DNA samples.” Id. And section 16-23-102(1)(b)


                                     11
  recognizes that “[t]he analysis of DNA has been used numerous

  times in the exoneration of innocent individuals charged with or

  convicted of crimes.”

¶ 25   Valdez’s third argument — that collection of his DNA was

  unconstitutional because Katie’s Law “lacks adequate privacy

  provisions” — fares no better. Specifically, he asserts that under

  Katie’s Law, a person charged with a felony has the burden of

  requesting expungement of the DNA sample. In contrast, under the

  Maryland statute, DNA samples are destroyed if “criminal action

  begun against the individual . . . does not result in a conviction.”

  King, 569 U.S. at ___, 133 S. Ct. at 1967.

¶ 26   Valdez relies solely on People v. Buza, 180 Cal. Rptr. 3d 753,

  789 (Cal. Ct. App. 2014). There, the court held “[t]he fact that the

  [California] DNA Act does not provide for automatic expungement

  increases the weight of the arrestee’s privacy interest.” But this

  decision has been depublished because review has been granted by

  the California Supreme Court. People v. Buza, 342 P.3d 415 (Cal.

  2015).




                                    12
¶ 27   Further, in Haskell v. Harris, 745 F.3d at 1274, the

  concurrence in the judgment rejected the assertion “that

  California’s law is distinguishable from Maryland’s because

  California retains and uses DNA samples indefinitely even if a

  suspect is never charged or convicted.” Judge Smith explained that

  “the King Court did not view Maryland’s expungement procedures

  as important to the constitutionality of Maryland’s law.” Id. Nor

  did the King Court “suggest that post-collection expungement

  procedures would affect the constitutional inquiry.” Id. Instead,

  the Court framed the “Fourth Amendment search at issue” as “a

  buccal swab,” and explained “the ‘minor intrusion’ that this ‘brief’

  procedure represents is not affected at all by the availability of

  expungement procedures.” Id. (quoting King, 569 U.S. at ___, 133

  S. Ct. at 1980).

¶ 28   But even if expungement procedures are relevant to the

  constitutional inquiry, Katie’s Law does not place an onerous

  burden on an arrestee. See United States v. Mitchell, 652 F.3d 387,

  404 (3d Cir. 2011) (An “additional factor[] that contributed to the




                                     13
  reasonableness of the search” was that the DNA collection statute

  provided for expungement.).

¶ 29   For example, under section 16-23-104(2), “[i]f [the CBI] does

  not receive confirmation of a felony charge within a year after

  receiving the sample for testing, [it] shall destroy the biological

  sample and any results from the testing of the sample.” (Emphasis

  added.) Thus, the burden of ensuring that a DNA sample remains

  in the system after an arrest has been made falls on the district

  attorney.

¶ 30   Another example is that if charges are filed — but the arrestee

  is not convicted of a felony — the expungement process requires

  only minimal information from the arrestee along with a

  “declaration that, to the best of the person’s knowledge, he or she

  qualifies for expungement.” § 16-23-105(2)(e). The burden then

  shifts back to the district attorney to notify the CBI “that the person

  does not qualify for expungement and [give] the reasons that the

  person does not qualify.” § 16-23-105(4). If such notification is not

  received within ninety days, the CBI “shall destroy the biological

  substance.” Id.


                                     14
¶ 31     And once a request for expungement has been made, Katie’s

  Law requires that the CBI “send notification . . . to the person

  arrested or charged, either stating that [the CBI] has destroyed the

  biological substance sample and expunged the results of the testing

  of the sample or stating why [the CBI] has not destroyed the sample

  and expunged the test results.” § 16-23-105(5). Thus, the burden

  to follow up is not placed on the arrestee.

¶ 32     Finally, even if collection of Valdez’s DNA did not violate the

  United States Constitution, did the collection violate the Colorado

  constitution? Valdez says that it did. But we agree with Lancaster,

  ¶ 24, that the “state constitution provides the same, not greater,

  protection in this area than the Fourth Amendment.”

¶ 33     In the end, because Katie’s Law, as applied to Valdez, is

  constitutional, we conclude that the trial court did not err in

  denying his motion to suppress.

       II. The Trial Court Did Not Abuse Its Discretion in Admitting a
                Surveillance Video that Depicted the Shooting

¶ 34     Video from multiple cameras inside the store captured the

  robbery. Defense counsel moved in limine for “an order that the

  prosecution not be permitted to play for the jury the overhead
                                      15
  camera recording of the offense.” This recording depicted the victim

  lying on the floor bleeding from several bullet wounds, being shot

  the final time, and giving up his last breath, over a period of less

  than one minute. Citing CRE 403, counsel argued that the

  prejudicial effect of this recording exceeded any probative value

  because it “is extremely graphic and alarming, and will

  unnecessarily enflame the passions of the jury”; the victim’s death

  from gunshot wounds was undisputed; this video did not identify

  which of the robbers had been the shooter; and “[o]ther angles of

  video depict the entire event.”

¶ 35   In denying the motion, the trial court explained:

             It shows the crime. This is a murder case. It
             is not pleasant. I understand that. There is
             no way I can sanitize it. So I will deny the
             request as it relates to the videotape of the
             crime itself. It can be played in its entirety to
             the jury.

  All of the recordings were played for the jury during trial and, as

  discussed in the following section, replayed during deliberations.

                     A. Standard of Review and Law

¶ 36   As with any evidence, whether to admit a video recording lies

  within the sound discretion of the trial court; absent an abuse of

                                     16
  discretion, its ruling on whether relevant video recordings were not

  unnecessarily gruesome must stand. CRE 403; People v. Villalobos,

  159 P.3d 624, 630 (Colo. App. 2006). “[A]n abuse of that discretion

  will be found only upon a showing that the ruling was manifestly

  arbitrary, unreasonable, or unfair.” People v. Rath, 44 P.3d 1033,

  1043 (Colo. 2002).

¶ 37    “Because the balance required by CRE 403 favors admission, a

  reviewing court must afford the evidence the maximum probative

  value attributable by a reasonable fact finder and the minimum

  unfair prejudice to be reasonably expected.” Id. Consistent with

  this preference for admission, evidence is not unfairly prejudicial

  merely because it damages the defendant’s case. People v. Dist.

  Court, 785 P.2d 141, 147 (Colo. 1990). And evidence is unfairly

  prejudicial only if it has an “undue tendency to suggest a decision

  on an improper basis, commonly but not necessarily an emotional

  one, such as sympathy, hatred, contempt, retribution, or horror.”

  Id.




                                    17
                               B. Analysis

¶ 38   Valdez argues that the “challenged video added nothing

  meaningful to . . . documentation of the event,” but it “surely

  shocked [jurors], likely triggering an emotional response and thirst

  for retribution for such a grisly killing.” He cites no authority, nor

  are we aware of any in Colorado, excluding as unfairly prejudicial a

  video recording of the charged crime in progress. Instead, he relies

  on cases such as People v. Ellis, 41 Colo. App. 271, 273, 589 P.2d

  494, 495 (1978), where the division held that the trial court had

  improperly admitted graphic photographs of a victim’s injuries,

  which did not “shed enough light on the question of accident to

  counteract the passion and prejudice which they must have

  generated.” His reliance is misplaced.

¶ 39   The recording from the overhead camera was not an ad hoc

  depiction of the consequences of a crime, such as autopsy

  photographs of a deceased victim or pictures of injuries to a victim

  who survived. Nor was it some sort of recreation. Rather, this

  recording showed the crime — as it was happening.




                                    18
¶ 40   So, how could this recording be unfairly prejudicial? We agree

  with those courts that have held similar recordings are not. See,

  e.g., Ivery v. State, 686 So. 2d 495, 519 (Ala. Crim. App. 1996) (“The

  videotape here is without question prejudicial; however, ‘while such

  direct evidence of a crime is certainly prejudicial to a defendant’s

  case, without more, it is not unfairly so.’”) (citation omitted);

  Johnson v. State, No. AP-77,030, 2015 WL 7354609, at *30 (Tex.

  Crim. App. Nov. 18, 2015) (unpublished opinion) (“Although the

  events captured by the surveillance videotape are disturbing, the

  videotape shows no more than how the offense transpired.”); cf.

  Bradley v. State, 533 S.E.2d 727, 731 (Ga. 2000) (“The trial court

  did not err in admitting a state trooper’s videotape of the victim in

  life on the side of the road shortly after she had been shot. The

  court properly determined that the videotape . . . accurately

  depicted the ongoing crime shortly after the shooting occurred.”).

¶ 41   In sum, we conclude that the trial court did not abuse its

  discretion by admitting the surveillance video from the overhead

  camera.




                                     19
    III. The Trial Court Did Not Abuse Its Discretion in Declining to
  Limit the Number of Times the Jurors Could Watch the Surveillance
   Videos or Imposing Other Restrictions on the Jury’s Consideration
                              of the Videos

¶ 42   During deliberations, the jurors indicated that they wanted to

  view the surveillance videos. Defense counsel requested that the

  jury “not be granted unfettered access” to the videos and should

  only be “allow[ed] to view each video once.” Counsel failed to ask

  that the jury be admonished not to favor one type of evidence over

  another. The court responded:

            I will not limit them to one time. I agree they
            are not to have unfettered access to them. We
            will have my clerk play them for them. The
            only people in the room will be the jurors and
            my clerk.

  The record does not indicate how much time the clerk spent with

  the jurors or how often they replayed the videos. Nor did Valdez

  ask the trial court to make such a record after the jury returned the

  verdict but before it was discharged.

                    A. Standard of Review and Law

¶ 43   Trial courts have broad discretion to control the use of exhibits

  during jury deliberations. DeBella v. People, 233 P.3d 664, 666

  (Colo. 2010). When exercising this discretion, “the trial court’s

                                    20
  ultimate objective must be to assess whether the exhibit will aid the

  jury in its proper consideration of the case, and even if so, whether

  a party will nevertheless be unfairly prejudiced by the jury’s use of

  it.” Frasco v. People, 165 P.3d 701, 704-05 (Colo. 2007). But the

  court must also ensure that “evidence is not so selected, nor used

  in such a manner, that there is a likelihood of it being given undue

  weight or emphasis by the jury.” Id. at 703 (quoting Settle v. People,

  180 Colo. 262, 264, 504 P.2d 680, 680-81 (1972)).

                               B. Analysis

¶ 44   Relying on DeBella, Valdez contends the court improperly gave

  the jurors unfettered access to the videos by not imposing any

  restrictions. In DeBella, the supreme court held that the trial court

  had abused its discretion by leaving with the jury a TV monitor and

  the victim’s videotaped interview, then failing to supervise or restrict

  playback. 233 P.3d at 667.

¶ 45   To begin, unlike in DeBella, here the videos were played for the

  jurors only after their request. See People v. Smalley, 2015 COA

  140, ¶ 65 (“The court did not automatically provide the jury with

  access to the recordings, but waited until the jury requested


                                    21
  them.”). And the videos were played for the jury by a court

  employee. See DeBella, 233 P.3d at 669 (A court can “require that

  the video be viewed in open court or under the supervision of a

  bailiff.”). Thus, Valdez inaccurately describes the jury’s access as

  “unfettered.”

¶ 46   Still, and also unlike in DeBella, the court did not put any

  additional restrictions on viewing the videos — such as limiting the

  number of times the jury could watch them. Nor did the court

  “admonish the jury not to give the exhibit undue weight or

  emphasis.” Id.

¶ 47   But are such restrictions even necessary when video evidence

  is nontestimonial? See People v. Jefferson, 2014 COA 77M, ¶ 11,

  (“[A] trial court must ‘oversee with caution’ the jury’s use of exhibits

  of a testimonial character, including video recorded interviews of

  witnesses.”) (cert. granted Dec. 22, 2014). The Attorney General

  says “no,” arguing that DeBella involved only testimonial evidence

  and the surveillance videos were nontestimonial. See People v.

  Russom, 107 P.3d 986, 989 (Colo. App. 2004) (a recording is




                                     22
  nontestimonial if it depicts “the event itself rather than a narration

  thereof”).

¶ 48   The Attorney General is correct that several divisions of this

  court — all pre-DeBella — have distinguished between testimonial

  and nontestimonial evidence when upholding trial court decisions

  that allowed juries unlimited access to nontestimonial evidence.

  See Russom, 107 P.3d at 989 (“Jurors may have access during

  deliberations to nontestimonial recordings that depict the event

  itself rather than a narration thereof.”); People v. Aponte, 867 P.2d

  183, 188-89 (Colo. App. 1993) (“The videotape and its transcription

  do not constitute statements of witnesses testimonial in character

  as a narrative of events. Rather, they are tangible exhibits with

  verbal content which are non-testimonial in character because they

  depict the actual commission of the crime itself.”); see also People v.

  Blecha, 940 P.2d 1070, 1078 (Colo. App. 1996) (finding no grounds

  for a mistrial where jury had unsupervised access to a videotape

  that was nontestimonial, and was not shocking or inflammatory;

  “the videotape was similar in character to still photographs which

  jurors are normally permitted to review during deliberation”), aff’d,


                                    23
  962 P.2d 931 (Colo. 1998); cf. People v. Gingles, 2014 COA 163,

  ¶ 18 (allowing “unrestricted jury access during deliberations to a

  defendant’s voluntary and otherwise admissible confession”).2

¶ 49     Since DeBella, the supreme court has not addressed whether

  the same reasoning applies to nontestimonial evidence.3 But the

  significance of this distinction need not be resolved here. Even if

  the trial court should have imposed greater restrictions on the

  jury’s consideration of this nontestimonial evidence, for two

  reasons, the risk of undue emphasis was not so great as to show an

  abuse of discretion.

        First, Valdez never disputed the accuracy of what the videos

         portrayed. See DeBella, 233 P.3d at 668-69 (“[T]he




  2 These cases are consistent with the weight of authority in other
  jurisdictions. See Burkhart v. Commonwealth, 125 S.W.3d 848, 850
  (Ky. 2003) (“[N]umerous courts have allowed deliberating jurors to
  review audio and visual recordings of a non-testimonial character,
  often within the confines of the jury room.”) (collecting cases).
  3 In Rael v. People, No. 13SC903, 2014 WL 7330995, at *1 (Colo.

  Dec. 22, 2014) (unpublished order), the supreme court granted
  certiorari on “[w]hether the court of appeals erred in affirming the
  trial court’s decision to allow the jury unfettered and unsupervised
  access to . . . non-testimonial crime scene videos during
  deliberation.”
                                     24
         inconsistencies of the tape’s content with [the victim’s] trial

         testimony were central to the resolution of the case . . . .”).

        Second, the prosecution presented corroborating evidence

         identifying the shooter through still photographs developed

         from the videos, to which the jury had unrestricted access

         without objection from Valdez. See Jefferson, ¶ 18 (“The

         heightened danger that undue emphasis will be placed on

         detailed videotaped statements of victim-witnesses is

         exacerbated in cases like the present one, where minimal

         evidence corroborates the victim’s statements and

         testimony.”).

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

  abuse its discretion in declining to limit the number of times the

  jury could view the videos or in refusing to impose other restrictions

  on the jury’s consideration of them.

   IV. Because No Error Occurred, Valdez Is Not Entitled to Relief for
                          Cumulative Error

¶ 51     “To warrant reversal of a conviction based on cumulative error,

  ‘numerous errors [must] be committed, not merely alleged.’” People

  v. Thomas, 2014 COA 64, ¶ 61 (alteration in original) (quoting
                                      25
  People v. Whitman, 205 P.3d 371, 387 (Colo. App. 2007)). Because

  we have not discerned any errors, this contention does not warrant

  relief.

   V. Valdez’s Challenge to His Consecutive Sentence for Aggravated
                            Robbery Is Moot

¶ 52    The Attorney General contends that error, if any, in running

  the aggravated robbery sentence consecutively to Valdez’s life

  without the possibility of parole sentence is moot because a ruling

  could not have any practical effect on the length of his

  incarceration. Having affirmed Valdez’s convictions on all charges,

  including first degree murder, we conclude that the consecutive

  sentence issue is moot.

                     A. Standard of Review and Law

¶ 53    “We review de novo the legal question of whether a case is

  moot.” People in Interest of C.G., 2015 COA 106, ¶ 11 (cert. granted

  May 23, 2016).

¶ 54    As a “threshold jurisdictional matter,” we must determine

  whether the current appeal is moot “before proceeding to the merits

  of the case.” USAA v. Parker, 200 P.3d 350, 356 (Colo. 2009).

  “Mootness instructs courts not to grant relief that would have no
                                    26
  practical effect upon an actual and existing controversy.” Bd. of

  Dirs., Metro Wastewater Reclamation Dist. v. Nat’l Union Fire Ins. Co.

  of Pittsburgh, 105 P.3d 653, 656 (Colo. 2005).4

                              B. Application

¶ 55   Whether a life without the possibility of parole sentence moots

  an error in imposing a lesser sentence consecutively rather than

  concurrently has not been addressed in any Colorado appellate

  opinion.

¶ 56   Other jurisdictions support the Attorney General’s position on

  mootness. See, e.g., Minshew v. State, 975 So. 2d 395, 398 (Ala.

  Crim. App. 2007) (“To remand this case now to determine whether

  Minshew’s probationary term for his theft conviction in case no. CC-

  86-727 was illegally run consecutively to his other probationary

  terms would not change the fact that Minshew is serving a sentence

  of life imprisonment without the possibility of parole.”); State v.




  4Limited exceptions to mootness exist, such as a factual situation
  capable of repetition yet avoiding review or where recurring
  constitutional violation has been alleged. See, e.g., Comcast of
  Cal./Colo., L.L.C. v. Express Concrete, Inc., 196 P.3d 269, 275 (Colo.
  App. 2007). Because Valdez fails to raise any exceptions, we
  decline to address them.
                                     27
  Macy, 886 P.2d 1010, 1012 (Or. 1994) (“Currently, defendant is

  serving a term of imprisonment based on the matrix for concurrent

  life sentences. Therefore, as things now stand, defendant will serve

  a term of imprisonment under the same matrix that he would if this

  court were to hold that the trial court erred in imposing consecutive

  sentences.”); State v. Mathis, No. M2011-01096-CCA-R3CD, 2013

  WL 4774130, at *14 (Tenn. Crim. App. Sept. 5, 2013) (unpublished

  opinion) (“Having upheld Defendant Evans’s convictions for

  especially aggravated kidnapping, any issues regarding the length of

  his sentences for the aggravated burglary and aggravated robbery

  convictions are essentially moot as they are to be served

  concurrently with two sentences of life without the possibility of

  parole.”); cf. Berger v. Norris, No. 5:07CV00298JTR, 2009 WL

  4067260, at *3 (E.D. Ark. Nov. 19, 2009) (unpublished opinion)

  (“While Petitioner’s reduction in classification does affect his future

  accrual of good time credit, his consecutive life sentences make that

  entirely ‘theoretical injury’ a moot point.”).

¶ 57   Valdez cites no directly contrary authority. Instead, he points

  out that two divisions of this court have addressed consecutive


                                      28
  sentencing errors in cases where a controlling sentence of life

  without the possibility of parole has been imposed. But these cases

  are distinguishable because here, rather than conceding error, the

  Attorney General raises mootness. See People v. Phillips, 2012 COA

  176, ¶ 172 (“The People concede that when the evidence will

  support no reasonable inference other than that multiple

  convictions were based on identical evidence, the trial court is

  required to impose concurrent sentences for those convictions.”);

  People v. Holloway, 973 P.2d 721, 726 (Colo. App. 1998) (“The

  People concede[d]” the error.). As well, neither division addressed

  mootness. And in any event, “we are not obligated to follow other

  divisions of this court.” Sandstrom v. Solen, 2016 COA 29, ¶ 29.

¶ 58   Alternatively, Valdez argues that the issue is not moot because

  “circumstances might arise under which [his] life sentence is

  reduced.” True enough, our supreme court did just this for certain

  juvenile offenders in People v. Tate, 2015 CO 42, ¶ 51. But Tate did

  not involve mootness. Valdez does not cite authority, nor have we

  found any in Colorado, holding that speculation about an as yet




                                    29
  unheralded change in the law — that would have retrospective

  application — should be considered as an exception to mootness.

¶ 59   At least one other state has rejected this argument. In

  Quiroga v. Commissioner of Correction, 87 A.3d 1171 (Conn. App.

  Ct. 2014), the defendant argued that his deportation did not moot

  his criminal appeal because Congress might change the criteria for

  readmission. Disagreeing, the court explained, “[w]e conclude that

  the possibility that Congress may, at some point in the future,

  amend federal immigration law so as to permit the petitioner’s

  reentry into the country despite his narcotics convictions is pure

  conjecture.” Id. at 1176; see also Allende v. Shultz, 845 F.2d 1111,

  1121 (1st Cir. 1988) (then circuit judge Breyer, J., concurring)

  (“But, I do not see how this court can find (constitutionally

  speaking) a genuine ‘controversy’ premised on the fact that present

  law may change.”).

¶ 60   In Colorado “[c]ourts should refuse to consider uncertain or

  contingent future matters that suppose speculative injury that may

  never occur.” Bd. of Dirs., Metro Wastewater Reclamation Dist., 105

  P.3d at 656; see also Air Pollution Control Comm’n of Colo. Dep’t of


                                    30
  Health v. Colo.-Ute Elec. Ass’n, 672 P.2d 993, 997 (Colo. 1983) (“We

  consider it unnecessary and inappropriate to address a question

  having only speculative future utility.”). And recognizing such an

  exception to mootness would be problematic because, despite stare

  decisis, the law can always change. See Creacy v. Indus. Comm’n,

  148 Colo. 429, 433, 366 P.2d 384, 386 (1961) (“The rule of stare

  decisis is not a doctrine of mortmain; it does not exclude room for

  growth in the law and the courts are not without power to depart

  from a prior ruling, or to overrule it, where sound reasons exist and

  where the general interests will suffer less by such departure than

  from a strict adherence.”). Yet, “[e]xceptions should not swallow the

  rule.” A.S. v. People, 2013 CO 63, ¶ 27.

¶ 61   Of course, Valdez could obtain certiorari review. But if our

  supreme court set aside his first degree murder conviction — and

  along with it the life without the possibility of parole sentence — yet

  affirmed the remaining convictions, the aggravated robbery

  sentence would control. In this event, Valdez would have to serve

  that sentence, irrespective of whether it had originally been imposed

  consecutively or concurrently. The same would be true if Valdez


                                    31
  succeeded in collaterally attacking his first degree murder

  conviction.

¶ 62   Given all this, we conclude that error, if any, in imposing the

  aggravated robbery sentence consecutively to the life without parole

  sentence is moot.

                             VI. Conclusion

¶ 63   The judgment and sentence are affirmed.

       JUDGE BERNARD and JUDGE DUNN concur.




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