COLORADO COURT OF APPEALS                                        2016COA126


Court of Appeals No. 14CA0401
Boulder County District Court No. 13CR854
Honorable Patrick D. Butler, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michelle Ann Hebert,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                   Division VII
                         Opinion by JUDGE MÁRQUEZ*
                       Lichtenstein and Miller, JJ., concur

                         Announced September 8, 2016


Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Patrick R. Henson, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2015.
¶1    Defendant, Michelle Ann Hebert, appeals the judgment of

 conviction entered on jury verdicts finding her guilty of theft from

 an at-risk adult and several tax offenses. Following our limited

 remand order directing the district court to make further findings

 about whether Hebert was entitled to appointed counsel at the time

 of trial, the district court made those findings. We now address all

 of Hebert’s appellate arguments and affirm her conviction.

                             I. Background

¶2    According to the prosecution’s evidence, Hebert convinced the

 victim, an elderly man, to give her many loans totaling several

 hundred thousand dollars and failed to pay back the loans. The

 victim contacted the police, and the People initially charged Hebert

 with theft from an at-risk adult.

¶3    Hebert was appointed counsel from the Office of the Public

 Defender. The same day that appointed counsel entered his

 appearance, the People moved to depose the victim pursuant to

 section 18-6.5-103.5, C.R.S. 2015 (allowing for depositions of

 at-risk adults in criminal cases). Because the victim’s health was

 failing, the People requested that he be deposed from his home via

 two-way video conference with both parties questioning him live

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 from the courtroom. Hebert’s appointed counsel objected, arguing,

 among other things, that (1) allowing the deposition to occur via

 two-way video conference would violate Hebert’s Sixth Amendment

 right to confront the victim face-to-face and (2) granting the motion

 would render his assistance to Hebert ineffective because he would

 not have enough time to prepare an effective cross-examination of

 the victim. The district court held a hearing and granted the

 motion, but ordered that the deposition not occur for another five

 weeks to give Hebert’s appointed counsel time to prepare.

¶4    Six weeks after the district court granted the motion, the

 victim was placed under oath and deposed at home via two-way

 video conference, with both sides asking him questions from the

 courtroom. Hebert was also present in the courtroom. The

 deposition was recorded, and, because the victim died before trial,

 the video recording was admitted at trial.

¶5    After the deposition but before trial, Hebert retained private

 counsel to represent her. However, shortly thereafter, the People

 charged Hebert with the additional tax-related offenses. Hebert’s

 counsel then moved to withdraw, and the court granted the motion.



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 Hebert requested appointed counsel, but the public defender’s office

 determined that she was ineligible for appointed counsel.

¶6    Hebert represented herself at trial. The jury found her guilty

 of all of the charged counts, and the district court entered a

 judgment of conviction and sentenced her accordingly. She

 appealed, arguing that the district court erred by (1) failing to make

 its own findings about whether she was eligible for appointed

 counsel after her private counsel withdrew and (2) admitting the

 recording of the victim’s deposition at trial. As noted, we remanded

 the case to the district court with directions to make its own

 findings about Hebert’s eligibility for substitute counsel, and we

 reserved addressing her argument about the deposition. Now that

 the court has made the necessary findings, we address both issues

 — Hebert’s eligibility for appointed counsel and the admission of the

 victim’s deposition.

            II. Hebert Was Ineligible for Appointed Counsel

¶7    Hebert argues that the district court erred by determining on

 remand that she was ineligible for appointed counsel. We disagree.

¶8    We review the court’s decision for an abuse of discretion. See

 People v. Schupper, 2014 COA 80M, ¶ 21.

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¶9     It is the defendant’s burden to prove indigency by a

  preponderance of the evidence. Id. at ¶ 34. When determining

  whether the defendant has met that burden, the district court

  should consider the defendant’s complete financial situation,

  including any secreted assets. Id. at ¶ 26.

¶ 10   On remand, Hebert submitted her public defender application

  and her 2012 joint tax return. The district court reviewed Hebert’s

  application for appointed counsel, dated November 2013, in which

  she stated that she had no income, three dependents, ten dollars in

  a savings account, $2500 in other assets, and was separating from

  her husband. The district court also reviewed her 2012 tax return,

  dated April 2013, which showed that Hebert and her husband filed

  a joint return and reported their total income as $76,051. Finally,

  the district court considered Hebert’s and her husband’s testimony

  at sentencing, which took place in January 2014. At that time, the

  district court asked Hebert’s husband how many times he and

  Hebert had separated. He replied that they had never been

  separated. Indeed, Hebert subsequently explained to the court that

  the only reason that she had indicated on her application for

  appointed counsel that she and her husband were separating was

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  so that she would qualify for appointed counsel. Considering all of

  this evidence, the district court determined that Hebert was

  ineligible for appointed counsel at the time of her November 2013

  application.

¶ 11   Hebert argues on appeal that the district court abused its

  discretion by failing to credit her statement in her application that

  she was separating from her husband. She argues that because

  they were separating, she no longer had access to his income and

  was, in fact, indigent.

¶ 12   But it is the district court that determines the probative effect

  and weight of the evidence. Id. at ¶ 27. And in doing so here, the

  district court determined that regardless of Hebert’s representations

  in her application, Hebert’s and her husband’s testimony at

  sentencing constituted evidence that they had never separated. On

  this evidence, the district court determined that their combined

  income of $76,051 rendered Hebert ineligible for appointed counsel.

  We conclude that the district court’s findings were supported by the

  evidence, and we therefore perceive no abuse of discretion in its

  determination that Hebert was not indigent and did not qualify for

  appointed counsel.

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       III. Admission of Previously Recorded Two-Way Video Deposition

                                 A. Fair Trial

¶ 13      Hebert contends she was denied the right to a fair trial when

  the district court admitted the victim’s video deposition testimony

  without adequate time for defense counsel to prepare for the

  examination. We perceive no error in the court’s ruling.

¶ 14      In June 2013, Hebert’s counsel argued the People’s request to

  depose the victim was premature, he had not been given the

  opportunity to properly review discovery, and his preparation for

  the deposition would be ineffective.

¶ 15      The court ordered that the hearing be delayed until August

  2013 to give the defense sufficient time to prepare. The court

  conducted the deposition via two-way video conference on August 8,

  2013. Defendant was represented by counsel who cross-examined

  the victim.

¶ 16      In our view, providing additional time to prepare was a proper

  response to counsel’s concerns, and Hebert was not denied the

  right to a fair trial.




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                         B. Confrontation Right

¶ 17   Hebert also argues that admitting the video recording of the

  victim’s deposition violated her Sixth Amendment confrontation

  right because she was unable to confront the victim face-to-face at

  the deposition. She has asserted, in a perfunctory manner, a

  violation of her confrontation right under the Colorado Constitution,

  but has not developed any analysis or argument under the state

  constitutional standard either before the district court or on appeal.

  We will therefore not engage in an independent analysis of this

  assertion. See People v. Hill, 228 P.3d 171, 176-77 (Colo. App.

  2009) (declining to address conclusory assertion that defendant’s

  confrontation right was violated). Instead, we review the Sixth

  Amendment confrontation argument de novo, see People v. Merritt,

  2014 COA 124, ¶ 25, and disagree with Hebert.

¶ 18   The Sixth Amendment provides all criminal defendants with

  the right to confront witnesses who testify against them at trial.

  U.S. Const. amend. VI. The combined effect of the elements of

  confrontation — the physical presence of the witness, the testimony

  being given under oath, the defendant’s opportunity to

  cross-examine the witness, and the fact finder’s ability to observe

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  the witness’s demeanor — ensures compliance with the Sixth

  Amendment and that the admitted evidence is reliable. See

  Maryland v. Craig, 497 U.S. 836, 846 (1990). Ordinarily, the

  physical presence element of confrontation includes the right to a

  face-to-face meeting with prosecution witnesses when they testify.

  See id. at 844.

¶ 19   But the Supreme Court has made clear that a defendant’s

  right to confront witnesses face-to-face is not absolute. Id. In

  Craig, the Court addressed the constitutionality of receiving a child

  victim’s testimony via live video from a separate location in which

  the defendant was not present. Id. at 841-42. The Court explained

  that the Sixth Amendment “reflects a preference for face-to-face

  confrontation at trial . . . that must occasionally give way to

  considerations of public policy and the necessities of the case.” Id.

  at 849 (citations omitted). In these situations, the absence of a

  face-to-face confrontation at trial does not violate a defendant’s

  confrontation rights if the “denial of such confrontation is necessary

  to further an important public policy and . . . the reliability of the

  testimony is otherwise assured.” Id. at 850.



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¶ 20   The at-risk adult deposition statute provides that in “any case

  in which a defendant is charged with a crime against an at-risk

  adult . . . the prosecution may file a motion with the court at any

  time prior to commencement of the trial, for an order that a

  deposition be taken of the testimony of the victim . . . and that the

  deposition be recorded and preserved on video tape.”

  § 18-6.5-103.5(1). If the court grants the request and the

  deposition occurs, the court may admit the video at trial if “the

  court finds that the victim . . . is medically unavailable or otherwise

  unavailable within the meaning of rule 804(a) of the Colorado rules

  of evidence.” § 18-6.5-103.5(4). Hebert does not allege that taking

  or admitting the deposition of the victim here violated this statute.

¶ 21   We are aware of no Colorado appellate court opinion

  addressing the circumstances under which admitting a video

  recording of a deposition of an at-risk adult victim, conducted via a

  two-way video conference, would violate a defendant’s confrontation

  rights. However, other jurisdictions have examined live video

  conference testimony for confrontation violations under the analysis

  set out in Craig. See, e.g., Rivera v. State, 381 S.W.3d 710, 713

  (Tex. App. 2012). And our supreme court has held that the

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  confrontation concerns and analysis articulated in Craig apply

  equally to live video testimony and previously recorded video

  testimony. See Thomas v. People, 803 P.2d 144, 151 (Colo. 1990)

  (addressing confrontation right implications of previously recorded

  video testimony that was preserved pursuant to the statute allowing

  videotape depositions of child sexual assault victims, section

  18-3-413, C.R.S. 2015). Section 18-3-413 contains language

  similar to that in the at-risk adult statute.

¶ 22   We therefore apply Craig and Thomas to the circumstances of

  this case and conclude that admitting the video of the victim’s

  deposition did not violate Hebert’s confrontation rights because (1)

  the video conference procedure was necessary to protect the health

  of the victim and (2) the procedure ensured the reliability of the

  victim’s testimony.

¶ 23   Before ordering the deposition, the district court reviewed two

  letters and an affidavit from the victim’s doctor detailing his medical

  condition and the probable health effects of requiring him to testify

  in court or at home with Hebert physically present. The doctor

  wrote that the victim was currently in hospice care at home and his

  survival was measured in months. The doctor also wrote that

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  deposing the victim with Hebert physically present would cause a

  rise in the victim’s blood pressure that, given his frail heart

  condition, could be fatal. Based on this evidence, the district court

  found that the victim was physically unavailable and a two-way

  video conference deposition was necessary. Indeed, the victim’s

  health was so frail that he died in the four months between the

  deposition and trial. In light of this evidence, we agree with the

  district court’s finding that conducting the deposition without

  Hebert physically present was necessary to protect the victim’s

  health.

¶ 24   To the extent that the reliability of the victim’s testimony might

  be an issue, the victim gave his deposition testimony under oath

  and was subjected to contemporaneous cross-examination by

  Hebert’s counsel, and, because the video deposition was played at

  trial, the jury was able observe the victim’s demeanor while

  testifying. See Craig, 497 U.S. at 846. Moreover, when permitting

  the deposition, the district court stated that it would ensure that

  there would be nobody in the room with the victim who, out of the

  view of the parties and the camera, could signal to him about how

  to testify during the deposition. See Craig, 497 U.S. at 850; United

                                     11
  States v. Abu Ali, 528 F.3d 210, 242 (4th Cir. 2008) (the defendant’s

  confrontation rights were not violated by admission of previously

  recorded video of two-way videoconference depositions of foreign

  witnesses); see also Thomas, 803 P.2d at 151 (video of deposition of

  child sexual assault victim was reliable and therefore admissible

  when child was questioned (1) by one therapist approved by the

  prosecution and one therapist approved by the defense, (2) under

  oath, and (3) out of the defendant’s presence with the attorneys and

  the defendant communicating with the therapists by passing them

  notes).

¶ 25   We also note that the victim’s testimony was admissible under

  the Supreme Court’s confrontation analysis in Crawford v.

  Washington, 541 U.S. 36 (2004). In that case, the Court held that

  testimonial hearsay did not violate the Confrontation Clause as long

  as the declarant was unavailable and the defendant had a prior

  opportunity for cross-examination. Id. at 68. This appears to be a

  different confrontation standard than that articulated in Craig.

  Another division of this court has recognized the potential conflict

  between Craig and Crawford and has suggested that although the

  two opinions are not incompatible, the Crawford standard applies

                                    12
  to testimonial hearsay challenged under the federal confrontation

  right. See People v. Phillips, 2012 COA 176, ¶¶ 53-54, 78. We need

  not resolve any conflict that may exist between Craig’s and

  Crawford’s application to testimonial hearsay because, in addition

  to being admissible under Craig as discussed above, the victim’s

  testimony also satisfied both of Crawford’s requirements: the victim

  was deceased at the time of trial and Hebert had a full opportunity

  to cross-examine him during the deposition.

¶ 26   We therefore conclude that admitting the two-way video

  deposition did not violate Hebert’s Sixth Amendment confrontation

  rights.

                            IV. Conclusion

¶ 27   The judgment of conviction is affirmed.

       JUDGE LICHTENSTEIN and JUDGE MILLER concur.




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