Opinion
Court of Appeals No. 21CA1542
03-23-2023
The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brendan Levi MORSE, Defendant-Appellant.
Philip J. Weiser, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Erik G. Fischer P.C., Erik G. Fischer, Ashleigh Bravo, Fort Collins, Colorado, for Defendant-Appellant
Philip J. Weiser, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Erik G. Fischer P.C., Erik G. Fischer, Ashleigh Bravo, Fort Collins, Colorado, for Defendant-Appellant
Opinion by JUDGE SCHOCK ¶ 1 Nearly forty years ago, the United States Supreme Court held that officers do not conduct a search within the meaning of the Fourth Amendment when they view what an independent private party has already uncovered and freely made available to them for their inspection. United States v. Jacobsen , 466 U.S. 109, 120, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). In recent decades, courts around the country have wrestled with how to apply this principle to searches of computers and other electronic devices, which implicate unique privacy concerns.
¶ 2 We need not decide all (or even most) of the many complicated questions surrounding the application of that doctrine in this case, but we answer the most basic one: if a private party acting lawfully and independently of the government discovers and views an electronic file on another person's device (or "cloud" account) and makes that file available to law enforcement, officers do not violate the Fourth Amendment by viewing that same file without a warrant.
¶ 3 That is what happened here. A private party discovered a video on the computer of the defendant, Brendan Levi Morse, which depicted an apparent sexual assault. She showed the video to law enforcement officers. Based on that video, Morse was charged with two counts of sexual assault and one count of invasion of privacy for sexual gratification. He moved to suppress the video.
¶ 4 Because the private party's actions did not implicate the Fourth Amendment, and because the prosecution did not seek to introduce any evidence that exceeded the scope of the private search, the district court correctly denied the motion to suppress.
¶ 5 We also reject Morse's other challenges to his conviction. We conclude that (1) the district court did not abuse its discretion in disallowing one topic of cross-examination or in admitting photos reflecting the file location of the video; (2) the evidence was sufficient to sustain Morse's conviction; and (3) Morse's challenge to the lack of a preliminary hearing on an amended count is moot.
¶ 6 We therefore affirm the judgment of conviction.
I. Background
¶ 7 Morse gave his girlfriend, A.A., permission to use his computer to play a game. While she was using the computer, she discovered a video of Morse having sex with her while she was unresponsive due to alcohol consumption. A.A. later said she did not remember the incident, did not consent to Morse having sex with her while she was passed out, and did not consent to Morse recording her. A.A. also discovered on Morse's Google account several other videos of women who were naked or having sex, apparently taken without the women's knowledge. A.A. showed the videos to a friend. They copied the video of A.A. to a USB drive and called the police.
¶ 8 Officer Adam Brunjes responded to the apartment, which A.A. shared with Morse. Morse was not home at the time. A.A. showed Officer Brunjes the video of Morse having sex with her while she was unresponsive. A short time later, a computer forensic analyst arrived to collect and preserve volatile data on the computer that would be lost when the computer was unplugged. He took photos of the computer setup, the computer screen, and the open computer windows. He also documented the programs that were running at the time. The officers then seized the computer and the USB drive until they could obtain a warrant to search both.
¶ 9 Later that evening, at the direction of Detective Kelsey Skaar, A.A. called Morse to confront him about the videos. Morse admitted to recording A.A. without her permission while she and Morse were having sex. He also admitted to recording other women without their consent. Morse made similar admissions to Detective Skaar in an interview the next day.
¶ 10 A few days later, Detective Skaar obtained a search warrant for Morse's computer, a hard drive, two USB drives (including the one containing the video of A.A.), and Morse's cell phone. Detective Skaar later got two more search warrants for Morse's Google account. But those Google warrants resulted in minimal additional information and none of the videos A.A. had previously discovered.
¶ 11 Morse was initially charged with sexual assault of a physically helpless victim, § 18-3-402(1)(h), C.R.S. 2022, and invasion of privacy for sexual gratification, § 18-3-405.6(1), (2)(a), C.R.S. 2022. The prosecution later added a charge of sexual assault of a victim incapable of appraising the nature of the victim's conduct, § 18-3-402(1)(b). All three charges were based on the video of Morse having sex with A.A. while she was unresponsive.
¶ 12 Morse moved to suppress the evidence from his computer and Google account, asserting that the officers’ viewing of such material was a warrantless search in violation of the Fourth Amendment. The district court denied the motion on four alternative grounds, concluding that (1) officers could search the computer under the private search doctrine; (2) officers could seize the computer under the plain view exception; (3) officers could search and seize the computer under the exigent circumstances exception; and (4) even if the search and seizure were not lawful, the evidence would be admissible under the independent source doctrine because the officers later obtained a warrant to search the computer.
¶ 13 The video of Morse having sex with A.A. was admitted at trial and played for the jury. But the district court excluded all evidence and testimony about explicit videos of other women. Thus, none of the other videos found on Morse's computer were admitted.
¶ 14 The jury found Morse guilty of sexual assault (victim incapable of appraising conduct) and invasion of privacy for sexual gratification. It found him not guilty of sexual assault (physically helpless victim).
II. Motion to Suppress
¶ 15 Morse first argues that the district court erred in denying his motion to suppress. As we note above, the district court denied the motion on four alternative grounds: (1) private search; (2) plain view; (3) exigent circumstances; and (4) independent source.
¶ 16 We conclude that the officers’ viewing of the video of A.A. did not exceed the scope of the private search, and even if it did, the evidence found on the computer and USB drive would be admissible under the independent source doctrine. We do not decide whether the search and seizure would also have been permitted under the plain view or exigent circumstances exceptions to the warrant requirement. See Moody v. People , 159 P.3d 611, 615 (Colo. 2007) ("[A]ppellate courts have the discretion to affirm decisions, particularly denial of suppression motions, on any basis for which there is a record sufficient to permit conclusions of law ....").
A. Standard of Review
¶ 17 A district court's ruling on a motion to suppress presents a mixed question of fact and law. People v. Munoz-Gutierrez , 2015 CO 9, ¶ 14, 342 P.3d 439. In reviewing that ruling, we defer to the district court's factual findings if they are supported by competent evidence in the record, but we review the legal effect of those facts de novo. People v. Ackerman , 2015 CO 27, ¶ 10, 346 P.3d 61. When the Fourth Amendment's protection against unreasonable searches and seizures is implicated, we examine the district court's legal conclusions under the totality of the circumstances. Id. Those legal conclusions are subject to reversal if the court applied an erroneous legal standard or if its factual findings do not support its conclusion of law. Id.
B. Private Search Doctrine
¶ 18 The Fourth Amendment prohibits unreasonable searches and seizures. Williams v. People , 2019 CO 108, ¶ 15, 455 P.3d 347. But that protection "applies only to governmental action, and not to independent searches by private citizens." People v. Brewer , 690 P.2d 860, 862 (Colo. 1984). The Fourth Amendment is "wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual’ " acting independently of the government. Jacobsen , 466 U.S. at 113, 104 S.Ct. 1652 (citation omitted); see also People v. Holmberg , 992 P.2d 705, 708 (Colo. App. 1999). And when the government later views what the private party has already discovered and "freely made available for [government] inspection," it "infringe[s] no legitimate expectation of privacy" and, therefore, is not a Fourth Amendment "search." Jacobsen , 466 U.S. at 119–20, 104 S.Ct. 1652.
Morse asserts that the search of his computer violated both the Fourth Amendment and its counterpart in the Colorado Constitution. Colo. Const. art. II, § 7. Because he does not draw any distinction between the federal and state constitutional protections, neither do we. See Exotic Coins, Inc. v. Beacom , 699 P.2d 930, 943 (Colo. 1985) (declining to reach a different result under the Colorado Constitution where party asserting violation did not suggest any different standard should be applied). Thus, although we refer to the Fourth Amendment, our analysis applies equally to Morse's arguments under the Colorado Constitution.
¶ 19 Thus, the lawfulness of government actions occurring after a private search "must be tested by the degree to which they exceeded the scope of the private search." Id. at 115, 104 S.Ct. 1652 ; see also United States v. Sparks , 806 F.3d 1323, 1334 (11th Cir. 2015) ("[A] warrantless law-enforcement search conducted after a private search violates the Fourth Amendment only to the extent to which it is broader than the scope of the previously occurring private search."), overruled on other grounds by United States v. Ross , 963 F.3d 1056 (11th Cir. 2020). The Fourth Amendment applies only if authorities "use information with respect to which the expectation of privacy has not already been frustrated." Jacobsen , 466 U.S. at 117, 104 S.Ct. 1652.
¶ 20 Several courts have considered how the private search doctrine applies in the unique context of searches of computers and other electronic devices. See United States v. Lichtenberger , 786 F.3d 478, 485 (6th Cir. 2015) (noting significant differences between searches of physical spaces and searches of electronic devices "due to the extensive privacy interests at stake" in modern electronic devices). Some courts have limited the scope of the government review, explicitly or implicitly, to the precise files viewed during the private search. Id. at 487–89 ; Sparks , 806 F.3d at 1336. Others have extended the doctrine to other files on the same device, at least when officers are "substantially certain" about those files’ contents. Rann v. Atchison , 689 F.3d 832, 837–38 (7th Cir. 2012) ; United States v. Runyan , 275 F.3d 449, 464–65 (5th Cir. 2001).
¶ 21 But to the extent these cases diverge at the outer edges of the doctrine, they converge at its core: officers do not violate the Fourth Amendment by viewing the same files that the independent private party previously viewed and made available to them. E.g. , Sparks , 806 F.3d at 1336 ("[T]he private party's earlier viewing of the same images and video insulated law enforcement's later, more thorough review ...."); Lichtenberger , 786 F.3d at 488 (considering whether the photos the officer viewed were "among the same photographs [the private party] had seen earlier"); United States v. Goodale , 738 F.3d 917, 921 (8th Cir. 2013) (holding that private search doctrine applied where "[n]o evidence suggests that the officers’ viewing went further than [the private party's] search"); United States v. Tosti , 733 F.3d 816, 822 (9th Cir. 2013) ("[S]crolling through the images [the private party] had already viewed was not a search ....").
As noted above, Morse gave A.A. permission to use his computer for purposes of playing a game. Although he did not specifically give her permission to view other files on his computer, he does not contend that she acted unlawfully in doing so. We do not consider a situation in which the private party obtains the file illegally.
¶ 22 This case does not require us to enter the discourse on the outer boundaries of the private search doctrine because it lies on the common ground. There is no dispute that, before law enforcement ever became involved, A.A. viewed the exact video she later showed Officer Brunjes. There is likewise no dispute that A.A. was not acting as a government agent when she did so. See People v. Pilkington , 156 P.3d 477, 480 (Colo. 2007). Thus, when Officer Brunjes later viewed that same video—and documented the file path to get there—he was not conducting a search within the meaning of the Fourth Amendment. Jacobsen , 466 U.S. at 120, 104 S.Ct. 1652.
¶ 23 Unlike Sparks and Lichtenberger , and like Goodale and Tosti , there was no indication that officers, before obtaining a warrant, viewed any files that A.A. had not. But even if they did, Morse points to no such evidence that was admitted at trial. See Jacobsen , 466 U.S. at 117, 104 S.Ct. 1652 (noting that the Fourth Amendment is implicated only if authorities "use" information beyond the scope of the private search). Instead, the only evidence at issue is the video that A.A. had independently viewed (and the photographs of its location). That video was properly admitted, regardless of whether the officers viewed other files that A.A. had not. See United States v. D'Andrea , 648 F.3d 1, 9 n.11 (1st Cir. 2011) ("[I]f the government search exceeded the scope of the [private] search, only that part of the evidence that was obtained by exceeding the scope of the private search falls outside the purview of the Jacobsen doctrine and is inadmissible."); Runyan , 275 F.3d at 464–65 (holding items within the scope of the private search were admissible, while items outside the scope were potentially subject to suppression); United States v. Bowman , 215 F.3d 951, 963 (9th Cir. 2000) (holding that viewing of film that exceeded scope of private search was "harmless error" where contents were not used against the defendant).
¶ 24 For similar reasons, we reject Morse's suggestion that officers exceeded the scope of the private search when they took steps to preserve data on the computer for subsequent review pursuant to a search warrant. Again, Morse has pointed to no evidence admitted at trial that was not within the scope of A.A.’s private search.
We also note that officers may, without a warrant, seize a computer in plain view if they have probable cause to associate it with criminal activity without conducting a further search. People v. Swietlicki , 2015 CO 67, ¶ 25, 361 P.3d 411. A.A.’s statement to officers that she had viewed a video on the computer, recorded without her consent, of Morse having sex with her while she was unresponsive, and Officer Brunjes's viewing of that video, almost certainly provided probable cause for the seizure of the computer. Given our conclusions above, we need not decide whether "sav[ing] and captur[ing]" the volatile data on that computer until a search warrant could be issued was a permissible seizure under Swietlicki .
¶ 25 Because officers could lawfully view the same video that A.A. had already viewed and made available to them, that video was admissible and the district court correctly denied the motion to suppress. We need not address whether officers might also have viewed the contents of the computer under the plain view or exigent circumstances exceptions to the warrant requirement.
C. Independent Source Doctrine
¶ 26 Because Morse fails to identify any evidence admitted at trial that exceeded the scope of A.A.’s private search, we could conclude our analysis there. But even if officers had exceeded the scope of the private search and found evidence as a result, any such evidence—including the video of A.A.—would have been admissible under the independent source doctrine as well.
¶ 27 The independent source doctrine allows for the admission of unconstitutionally obtained evidence "if the prosecution can establish that it was also discovered by means independent of the illegality." People v. Omwanda , 2014 COA 128, ¶ 18, 338 P.3d 1145 (citation omitted). A subsequent search warrant may constitute an independent source if (1) officers would have sought the warrant regardless of the original search; and (2) the supporting affidavit, redacted of all information obtained from the unlawful search, established probable cause. Id. at ¶ 20. To establish probable cause, the affidavit must allege facts "sufficient to cause a reasonably cautious person to believe that evidence of criminal activity is located at the place to be searched." Id. at ¶ 21.
¶ 28 The first prong of the test—whether officers would have sought a warrant even absent what they discovered during the earlier search—is a question of fact. People v. Dominguez-Castor , 2020 COA 1, ¶ 34, 469 P.3d 514. Thus, we will not disturb the district court's finding if it has record support. Id. The second prong of the test—whether the redacted affidavit establishes probable cause—is a question of law that we review de novo. Omwanda , ¶ 22.
¶ 29 Here, officers obtained a warrant for the computer and the USB drive containing the video of A.A. that was admitted at trial. Detective Skaar testified at the suppression hearing that she would have applied for a search warrant and proceeded with the investigation based on the statements of A.A. and her friend, even if Officer Brunjes had not viewed the video. The district court specifically cited Detective Skaar's testimony in finding that the information would have been legally obtained independently of the purported prior search of the computer. Because this finding has record support, we will not disturb it. See Dominguez-Castor , ¶ 34.
¶ 30 We also conclude that, even after redacting all information gleaned from officers’ review of the computer, the warrant affidavit established probable cause for the search warrant. After striking that information, the affidavit contains the following allegations:
• While using Morse's computer, A.A. discovered a video of Morse having sex with her while she was "passed out drunk" and "unresponsive the entire time."
• A.A. was able to identify the location of the incident.
• A.A. told Officer Brunjes that she did not give Morse permission to have sex with her while she was passed out, or to video-record her naked body.
• A.A. discovered other video files of Morse "peeping on females who were naked or having sex."
• In a phone call with A.A., Morse admitted to video-recording them having sex without A.A.’s permission and to recording other naked women without their consent.
• Morse used his computer to view these videos.
¶ 31 This information—none of which was obtained from officers’ purported search of the computer—established probable cause to believe that the computer (and the USB drive to which the video of A.A. had been copied) contained evidence of a crime.
¶ 32 Morse contends that, without the on-scene forensic review of the computer, officers would not have discovered Morse's email address, which was necessary to identify his Google account. Questionable as this proposition might be as a factual matter, given that the reporting witness was Morse's girlfriend, it does not matter. The email address was not necessary to establish probable cause to search the computer or the USB drive. To the extent the email address was necessary for the subsequent search warrant for Morse's Google account, the challenged images and videos did not come from that warrant. They came from the USB drive.
¶ 33 Thus, even if the officers had exceeded the scope of the private search in reviewing and preserving the computer data, the district court correctly concluded that the challenged evidence would nevertheless be admissible under the independent source doctrine.
III. Evidentiary Rulings
¶ 34 Morse challenges two evidentiary rulings the district court made at trial: (1) its limitation on cross-examination surrounding a text message exchange between Morse and A.A. regarding a prior sexual encounter, and (2) its admission of three photos showing the file path used to locate the video of the charged assault.
A. Additional Background
¶ 35 During cross-examination, defense counsel asked A.A. if she recalled Morse sending her a text message "about being concerned about a potential injury to [her] vagina." When A.A. said she did not, defense counsel attempted to refresh A.A.’s recollection with a copy of the text message. The prosecutor objected, asserting the text message was irrelevant. Defense counsel argued the message was relevant because it was inconsistent with A.A.’s prior testimony that she and Morse had "conversations in which she said that [having sex when A.A. was too intoxicated to remember] was not okay." The district court sustained the objection, finding that the text message was not a prior inconsistent statement.
¶ 36 Defense counsel continued by asking A.A. if there were times she did not remember having sex with Morse, but did not tell him the next morning that "what had happened the night before was not okay." A.A. acknowledged that there were times she "might have not said something." Defense counsel then asked A.A. if "in fact, [there were] times [she] sent laughing emojis in response." When she said she did not think she had done so, defense counsel again sought to refresh A.A.’s recollection with the same text message exchange. The district court again sustained a relevance objection.
¶ 37 Later at trial, defense counsel objected to the admission of three photographs depicting Morse's computer and the file location of the video of A.A as "highly prejudicial." Exhibits 7a and 7c are photos of the computer screen that incidentally include a background photo that "appears to be ... taken through blinds." Exhibit 7f is a list of files on the USB drive, including the video of A.A. Defense counsel argued that "a list of that many files collected is potentially irrelevant and highly prejudicial."
¶ 38 The district court overruled the objection to Exhibits 7a and 7c, finding that "there are blinds but you can't see anything behind the blinds, and I don't anticipate that we're going to have any testimony about that specifically." It overruled the objection to Exhibit 7f, provided there was no testimony about the other files.
B. Standard of Review and Applicable Law
¶ 39 A district court has broad discretion in determining the admissibility of evidence based on its relevance, probative value, and prejudicial impact. People v. Elmarr , 2015 CO 53, ¶ 20, 351 P.3d 431. We review evidentiary rulings for an abuse of discretion. Id. A district court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair, or when it misapplies the law. Id.
¶ 40 Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." CRE 401. Irrelevant evidence is inadmissible. CRE 402. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. CRE 403.
¶ 41 Under CRE 403, the district court has "broad discretion in balancing the probative value of the evidence against the danger of unfair prejudice." People v. Gibbens , 905 P.2d 604, 607 (Colo. 1995). We will not disturb that balance absent an abuse of that discretion. Id. Because CRE 403 strongly favors admissibility of relevant evidence, we afford the evidence its maximum reasonable probative value and minimum reasonable prejudicial effect. Id.
¶ 42 A defendant has a constitutional right to cross-examine witnesses. People v. Thurman , 787 P.2d 646, 651 (Colo. 1990). But a trial court has "wide latitude" to place reasonable limits on the nature and scope of that cross-examination. Merritt v. People , 842 P.2d 162, 166 (Colo. 1992). Ordinarily, we review a district court's limits on cross-examination, like other evidentiary rulings, for an abuse of discretion. People v. Margerum , 2018 COA 52, ¶ 30, 457 P.3d 675, aff'd on other grounds , 2019 CO 100, 454 P.3d 236.
C. Cross-Examination Regarding Text Messages
¶ 43 Morse first argues the district court abused its discretion in limiting the cross-examination of A.A. about the text messages because they were (1) relevant to A.A.’s capacity to appraise the nature of her conduct and Morse's knowledge thereof; (2) inconsistent with A.A.’s prior testimony; and (3) admissible as res gestae. We disagree.
To the extent Morse challenges the exclusion of the text messages themselves, they are not part of the record on appeal, and we are therefore unable to review them. People v. Ullery , 984 P.2d 586, 592 (Colo. 1999). Thus, we confine our review to the limitations on defense counsel's cross-examination of A.A. about the messages.
1. Relevance
¶ 44 Unlike most other evidence of a victim's sexual conduct, evidence of a victim's prior sexual conduct with the defendant is not presumed to be irrelevant. § 18-3-407(1)(a), C.R.S. 2022. But such evidence remains subject to the usual rules of evidence, including relevance. People v. Harris , 43 P.3d 221, 225 (Colo. 2002).
¶ 45 The district court did not abuse its discretion in finding that neither Morse's text message to A.A. about a potential injury to her vagina nor A.A.’s texting of laughing emojis on a different occasion was relevant to A.A.’s capacity to appraise the nature of her conduct during the charged assault. At most, the texts might have suggested the same thing had happened before, and A.A. did not protest. But A.A.’s past failure to protest to sex she did not remember, or even her willingness to joke about it, has no bearing on whether she was capable of appraising the nature of her conduct—not on the prior occasion, and certainly not on a different one.
¶ 46 Nor could that exchange make it more or less probable that Morse knew A.A. was incapable of appraising the nature of her conduct during the charged assault. Indeed, to the extent the text messages suggested the same thing had happened before, they might indicate Morse did know. But we need not decide that point. It is enough that the court reasonably exercised its discretion in concluding that a message with laughing emojis about a potential vaginal injury after a prior sexual encounter had no bearing on Morse's knowledge of A.A.’s state during the charged event.
2. Inconsistent Statement
¶ 47 Morse next argues that the questions about the text message exchange should have been permitted as a prior inconsistent statement, either for purposes of impeachment under CRE 613 or as substantive evidence under section 16-10-201, C.R.S. 2022. Although defense counsel did not specify at trial which of these grounds he was relying on, we can assume that his argument that the statements are "essentially inconsistent statements" was sufficient to preserve both, because we conclude there was no error.
¶ 48 First, all evidence must meet the threshold standard of relevance, Ford v. Bd. of Cnty. Comm'rs , 677 P.2d 358, 361 (Colo. App. 1983), and we have already concluded this evidence did not.
¶ 49 We also agree with the district court that the statements referenced in the cross-examination questions were not inconsistent with A.A.’s testimony. The first—Morse's text about a potential injury to A.A.’s vagina—was not a statement by A.A. at all. The second—the laughing emojis—was not inconsistent.
¶ 50 Morse argues that the second text was inconsistent with A.A.’s testimony that she told him it was "not okay" for them to have sex when she was too intoxicated to remember. But laughing emojis sent in response to a text message from Morse about a potential injury to A.A.’s vagina do not contradict that statement. Even if the implication was that A.A. sent the text after a sexual encounter she did not remember, that would not contradict her testimony that she had also told Morse such encounters were not okay.
3. Res Gestae
¶ 51 Morse's final argument is that the cross-examination should have been admitted as res gestae. But the res gestae doctrine has been abolished in criminal cases in Colorado. Rojas v. People , 2022 CO 8, ¶ 41, 504 P.3d 296. Although Rojas was decided after Morse's trial, judicial decisions generally apply retroactively to cases on direct appeal. Lopez v. People , 113 P.3d 713, 716 (Colo. 2005). And indeed, the supreme court applied its holding in Rojas to the prior trial in that case. Rojas , ¶¶ 53-56. In any event, even under the now-defunct res gestae doctrine, evidence had to be relevant. People v. Daley , 2021 COA 85, ¶ 122, 496 P.3d 458. As we explain above, this evidence was not.
D. Photos of Morse's Computer
¶ 52 Morse does not challenge the relevance of the photos of his computer described above. But he argues that the district court abused its discretion in not excluding those photos under CRE 403 because their probative value was substantially outweighed by the danger of unfair prejudice. We are not persuaded.
¶ 53 As the prosecutor argued below, and as Morse acknowledges on appeal, the photos were probative of where the video was located—namely, on Morse's computer and, more specifically, on the USB drive that was connected to the computer. Together, the photos showed the file path for the video from Morse's desktop (Exhibit 7a), to his Google account where the video was discovered (Exhibit 7c), to the USB drive where the video was saved (Exhibit 7f).
¶ 54 Such proof was necessary to establish that the video of the illegal activity—the central piece of evidence at trial—came from Morse's computer. That a witness could have testified that the video was saved to the USB drive does not render the photos inadmissible for that purpose. People v. Dobson , 847 P.2d 176, 180 (Colo. App. 1992) ("Photographs are relevant and admissible to show any matter which a witness could describe in words.").
¶ 55 Moreover, having viewed the photos, we agree with the district court that the risk of unfair prejudice was low—particularly when we afford them "the minimum unfair prejudice to be reasonably expected." Gibbens , 905 P.2d at 607. Morse argues that Exhibits 7a and 7c depict "something through slightly open blinds of a window." But even if the jury could identify the photo as "slightly open blinds"—which is not at all apparent—the only way that could be prejudicial is if the jury learned of Morse's prior voyeuristic activities. The district court, however, excluded all such evidence. Without that context, a jury would have no reason to connect these ambiguous photos to any impropriety. The district court found—and we agree—that "you can't see anything behind the blinds."
¶ 56 Morse argues that Exhibit 7f—the photo of the list of files on the USB drive—was unfairly prejudicial because the jury could have inferred that the other videos listed in the photo were also inappropriate. But nothing in the photo itself would support such an inference. The file names consist of dates and apparently random numbers that give no indication of their content. And the district court precluded any testimony about those other files.
¶ 57 For the same reasons, we disagree with Morse that the admission of the photos was inconsistent with the district court's pretrial order excluding all evidence or testimony pertaining to explicit videos of others. Reasonably viewed, and in light of the limited purpose for which they were offered, the challenged photos were not evidence of explicit videos of others—particularly in the absence of any testimony or other evidence suggesting they were.
¶ 58 Thus, giving the photos their maximum reasonable probative value and their minimum reasonable prejudicial effect, id. , the district court did not abuse its discretion in concluding that the latter did not substantially outweigh the former.
IV. Sufficiency of the Evidence
¶ 59 Morse next argues that the evidence was insufficient to support his conviction for sexual assault (victim incapable of appraising conduct) under section 18-3-402(1)(b). Specifically, he argues that the evidence was insufficient to prove beyond a reasonable doubt that (1) A.A. was incapable of appraising the nature of her conduct, and (2) Morse knew she was so incapable. We disagree, especially in light of the video evidence of the assault.
¶ 60 We review the record de novo to determine whether the evidence was "sufficient in both quantity and quality" to sustain Morse's conviction. McCoy v. People , 2019 CO 44, ¶ 63, 442 P.3d 379. In doing so, we view the evidence as a whole and in the light most favorable to the prosecution to determine if the evidence is "substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt." McDonald v. People , 2021 CO 64, ¶ 64, 494 P.3d 1123 (citation omitted). In applying this test, we give the prosecution the benefit of every reasonable inference to be drawn from the evidence. Id.
¶ 61 As relevant here, a person commits sexual assault if that person (1) knowingly inflicts sexual intrusion or sexual penetration on a victim and (2) knows that the victim is incapable of appraising the nature of the victim's conduct. § 18-3-402(1)(b). We conclude that the video of the assault, as reflected in witness testimony about that video, was sufficient "both in quantity and quality" to sustain Morse's conviction under this statute. McDonald , ¶ 64.
¶ 62 As described by witnesses at trial, the video showed Morse having sex with A.A. while she was unresponsive. A.A.’s friend, who also viewed the video, testified that A.A. did not appear to move and did not react at all until the final forty-five seconds of the ten-minute encounter, when she made "little squeaky sounds" that she typically makes when she is passed out. The friend also testified that A.A.’s behavior in the video was consistent with how she behaves when she is "blacked out." A.A. confirmed that she did not move or make any noise until the last minute of the video. She also testified that she never agreed to have sex with Morse while she was unconscious. The video itself was played for the jury.
¶ 63 This evidence was sufficient for a reasonable jury to find beyond a reasonable doubt both that (1) A.A. was not capable of appraising the nature of her conduct, and (2) Morse knew that. To put it mildly, it is a reasonable inference to conclude that someone who is unresponsive is not capable of appraising the nature of their conduct, and that a person having sex with them is so aware.
¶ 64 Morse argues that the jury's acquittal on the charge of sexual assault upon a physically helpless victim, § 18-3-402(1)(h), suggests that the jury's finding of guilt was based on A.A.’s consumption of alcohol alone. But needless to say, there is a chasm of gradations between being physically helpless and merely having consumed alcohol. And the evidence here went far beyond A.A.’s consumption of alcohol alone. So did the jury verdict. By convicting Morse of sexual assault, the jury found that A.A. had reached a state such that she was incapable of appraising the nature of her conduct.
¶ 65 Nor is the acquittal on the "physically helpless victim" count (subsection (1)(h)) inconsistent with the guilty verdict on the "incapable of appraising conduct" count (subsection (1)(b)). It is true that "physically helpless" means "unconscious, asleep, or otherwise unable to indicate willingness to act." § 18-3-401(3), C.R.S. 2022. But evidence that a victim is "partially asleep" may support a conviction under subsection (1)(b), while falling short under subsection (1)(h). Platt v. People , 201 P.3d 545, 548 (Colo. 2009). In addition, subsection (1)(h) requires the prosecution to separately prove the victim did not consent, while subsection (1)(b) does not—a critical distinction here, where defense counsel argued in closing that A.A. had consented. Id. at 549–50.
¶ 66 Thus, while the two statutes are not mutually exclusive, neither do they completely overlap. Id. at 548. Whatever the jury's rationale, it could have reasonably concluded that A.A. was "incapable of appraising the nature of [her] conduct," § 18-3-402(1)(b), even if not "physically helpless," § 18-3-402(1)(h).
V. Preliminary Hearing
¶ 67 Morse's final argument is that the district court erred by not affording him a preliminary hearing when the prosecution amended the complaint and information to add the charge for sexual assault of a victim incapable of appraising the nature of their conduct.
¶ 68 This claim is moot. The purpose of a preliminary hearing is to determine whether there is probable cause to believe the defendant committed the charged crime. People v. Gillis , 2020 COA 68, ¶ 21, 471 P.3d 1197. Thus, once a defendant has been convicted at trial, any error in the denial of a preliminary hearing is moot because the defendant has been proved guilty beyond a reasonable doubt. Id. at ¶ 23 ; Kuypers v. Dist. Ct. , 188 Colo. 332, 335, 534 P.2d 1204, 1206 (1975) ("Resolution of [probable cause] questions must be made prior to trial in order to avoid the anomalous situation where a defendant may be found guilty at trial, and then attempt to have the conviction reversed for a preliminary hearing on probable cause.").
¶ 69 Morse did not request a preliminary hearing on the amended count in the district court. Nor did he seek appellate review of the district court's failure to hold a preliminary hearing via the proper procedure of a petition to the supreme court under C.A.R. 21. See Gillis , ¶ 23. He therefore "failed to pursue the only remed[ies] available to him." Id. at ¶ 24. "It is too late for [Morse] to challenge whether there was probable cause to support the [sexual assault (victim incapable of appraising conduct)] charge after a jury found beyond a reasonable doubt that he committed the offense." Id.
¶ 70 Because the issue is moot, we do not reach the merits of Morse's claim that he was denied his right to a preliminary hearing.
VI. Disposition
¶ 71 The judgment is affirmed.
JUDGE FOX and JUDGE LIPINSKY concur.