COLORADO COURT OF APPEALS                                        2016COA148


Court of Appeals No. 13CA0547
Jefferson County District Court No. 11CR3036
Honorable Christopher J. Munch, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Raymond Lee Ortega,

Defendant-Appellant.


                              JUDGMENT AFFIRMED

                                     Division V
                            Opinion by JUDGE ROMÁN
                      Lichtenstein and Sternberg*, JJ., concur

                           Announced October 20, 2016


Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Stephen C. Arvin, Deputy
State Public Defender, 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. 2016.
¶1    Defendant, Raymond Lee Ortega, appeals his conviction for

 aggravated robbery, as well as his adjudication as a habitual

 offender. We affirm.

                            I. Background

¶2    Two men, one wearing a stocking over his head and one

 unmasked, held up a fast-food restaurant. The unmasked man

 pointed a handgun at the employee behind the register and

 demanded money. He then shot the employee in the arm as the

 employee fled. When the two men were unable to open the register,

 they carried it off.

¶3    From the restaurant’s surveillance video, the police identified

 the unmasked man as David Maestas. The police also found a car

 belonging to Maestas’s wife, which they believed had been used

 during the robbery.

¶4    A search of the car turned up, among other things, a cell

 phone and a pair of jeans consistent with those worn by the

 masked man in the surveillance video. Analysis showed that

 defendant’s DNA was on the waistband and in the pockets of the

 jeans. The cell phone belonged to Maestas’s wife, but she testified

 that Maestas also used the phone and had taken it from her a


                                   1
 couple of weeks before the robbery. Phone records showed several

 calls in the days around the robbery from this cell phone to a

 number identified in the phone’s contact list as “Ray’s mom.”

¶5      A jury convicted defendant of aggravated robbery. After a

 separate trial, the court adjudicated defendant a habitual criminal.

¶6      Defendant appeals both his conviction for aggravated robbery

 and his adjudication as a habitual offender. He contends that

 (1) his right to confrontation under both the United States and

 Colorado Constitutions was violated by admission of the cell phone

 records and the custodian’s certification; (2) he was denied a fair

 trial because the prosecutor misstated the DNA evidence; and

 (3) during his habitual trial, his right to confrontation under the

 state constitution was violated by admission of sentencing and

 prison records.

     II. Defendant’s Confrontation Right Pertaining to Phone Records

¶7      Defendant contends that the admission of phone records

 violated his right to confrontation under both the United States and

 Colorado Constitutions. We disagree.

                     A. Admission of Phone Records




                                    2
¶8    The investigating detective testified that he requested from the

 phone company, Cricket, records pertaining to the phone number

 attached to the cell phone found in the car. The detective testified

 that he received a CD from Neustar, Inc. (Neustar), the company

 that kept Cricket’s records, with a declaration from the custodian of

 records attached. The detective testified, based on the records, that

 there had been a number of calls from the cell phone to a certain

 number three days before the robbery, as well as on the days before

 and after the robbery. The detective testified that the receiving

 number was labeled in the cell phone’s address book as “Ray’s

 mom,” and that when he called the number, the recorded message

 reported, in a female voice, that he had reached the Ortegas.

                   B. Federal Confrontation Clause

¶9    Under the United States Constitution, a criminal defendant

 “shall enjoy the right . . . to be confronted with the witnesses

 against him.” U.S. Const. amend. VI. In 2004, the Supreme Court

 explained that when a declarant does not testify at trial, testimonial

 statements are admissible “only where the declarant is unavailable,

 and only where the defendant has had a prior opportunity to cross-

 examine.” Crawford v. Washington, 541 U.S. 36, 59 (2004). The


                                    3
  Supreme Court later held that, under the Crawford formulation,

  nontestimonial hearsay does not implicate the Federal

  Confrontation Clause. See Michigan v. Bryant, 562 U.S. 344, 354-

  59, 378 (2011); People v. Phillips, 2012 COA 176, ¶ 75.

¶ 10   “Testimony” is “[a] solemn declaration or affirmation made for

  the purpose of establishing or proving some fact.” Crawford, 541
U.S. at 51 (alteration in original) (quoting 2 N. Webster, An

  American Dictionary of the English Language (1828)). “Testimonial

  statements” include

            ex parte in-court testimony or its functional
            equivalent — that is, material such as
            affidavits, custodial examinations, prior
            testimony that the defendant was unable to
            cross-examine, or similar pretrial statements
            that declarants would reasonably expect to be
            used prosecutorially; extrajudicial statements
            . . . contained in formalized testimonial
            materials, such as affidavits, depositions, prior
            testimony, or confessions; statements that
            were made under circumstances which would
            lead an objective witness reasonably to believe
            that the statement would be available for use
            at a later trial.

  Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009)

  (alteration in original) (quoting Crawford, 541 U.S. at 51-52). More

  concisely, where “a statement is not procured with a primary



                                    4
  purpose of creating an out-of-court substitute for trial testimony,”

  the Confrontation Clause is not implicated. Bryant, 562 U.S. at

  358-59.

¶ 11   According to defendant, the trial court erred by admitting the

  phone records in violation of his federal right to confrontation. He

  argues that (1) the phone records were testimonial and (2) the

  declaration of the custodian for the phone records was testimonial.

  We disagree with both arguments, concluding instead that the trial

  court correctly determined that the phone records and attestation

  were not testimonial and thus not subject to the Confrontation

  Clause.

¶ 12   In United States v. Yeley-Davis, 632 F.3d 673 (10th Cir. 2011),

  the Tenth Circuit considered and rejected similar arguments that

  both cell phone records (admitted pursuant to the business records

  hearsay exception) and a certification by the custodian of records

  were testimonial. The Tenth Circuit concluded that the phone

  records were not testimonial because they were kept in the course

  of the phone company’s regularly conducted business, rather than

  created simply for litigation. Id. at 679. As to the custodian’s

  certification of the phone records, the Tenth Circuit acknowledged


                                    5
  that the custodian “objectively could have foreseen that the

  certification and affidavit might be used in the investigation or

  prosecution of a crime.” Id. at 680. Nonetheless, that court held

  that certificates of authenticity, the purpose of which is merely to

  authenticate the phone records and not to establish or prove some

  fact at trial, are not testimonial. Id.

¶ 13   We are persuaded by the reasoning in Yeley-Davis and apply it

  in this case. Here, according to the declaration from the custodian

  of records, the records of defendant’s phone activity introduced in

  this case

              a) Were made at or near the time of the
              occurrence of the matters set forth in the
              records by, or from information transmitted by
              a person with knowledge of those matters;

              b) Were kept in the course of a regularly
              conducted business activity; and

              c) Were made by the regularly conducted
              activity as a regular practice.

  Because the records, made at or near the time of the phone activity,

  were made and kept as a regular practice in the course of Neustar’s

  regularly conducted business activity, and not for the purpose of

  establishing or proving some fact at trial, the phone records are not



                                      6
testimonial. See id.; United States v. Green, 396 F. App’x 573, 574-

75 (11th Cir. 2010) (“[B]ecause the [cell phone] records were

generated for the administration of Metro PCS’s business, and not

for the purpose of proving a fact at a criminal trial, they were non-

testimonial, and the district court did not violate [the defendant’s]

constitutional right [to confrontation] by admitting them into

evidence.”); People v. Marciano, 2014 COA 92M-2, ¶ 40 (bank

statements were not testimonial because “[w]hile duplicates of the

statements may have been obtained in the course of investigating

this case, the original statements were generated to facilitate the

administration of the defendant’s bank account”); see also

Melendez-Diaz, 557 U.S. at 324 (“Business and public records are

generally admissible absent confrontation not because they qualify

under an exception to the hearsay rules, but because — having

been created for the administration of an entity’s affairs and not for

the purpose of establishing or proving some fact at trial — they are

not testimonial.”); Crawford, 541 U.S. at 56 (“Most of the hearsay

exceptions covered statements that by their nature were not

testimonial — for example, business records . . . .”).1

1   Defendant also argues that the trial court erred by shifting the

                                    7
¶ 14   Melendez-Diaz, relied on by defendant, is distinguishable. The

  records there — certificates of analysis showing that substances

  seized by the police had been forensically determined to contain

  cocaine — were testimonial because they had been created for the

  sole purpose of providing evidence against the defendant. 557 U.S.

  at 323-24. Defendant argues that the records in this case were

  likewise created “under circumstances which would lead an

  objective witness reasonably to believe that the statement would be

  available for use at a later trial.” Id. at 310 (quoting Crawford, 541
U.S. at 52). He points to portions of the exhibit introduced at trial

  that indicated the documents from Neustar were prepared in

  response to the People’s subpoena. But, although the exhibit

  introduced at trial was prepared in response to the subpoena, the

  records themselves were created at or about the time of defendant’s

  phone activity, for Neustar’s business purposes. Compare Yeley-

  Davis, 632 F.3d at 679, and People v. Warrick, 284 P.3d 139, 144

  (Colo. App. 2011) (booking reports and mittimus admitted in trial



  burden to the defense to establish that the phone records were
  testimonial. The trial court did not rule, however, that defendant
  failed to establish that the records were testimonial; the trial court
  ruled that the phone records were not testimonial.

                                     8
  for possession of weapon by a previous offender were not

  testimonial because they were created for routine administrative

  purposes and not to establish a material fact at any future criminal

  proceeding), with Melendez-Diaz, 557 U.S. at 322-24, and Hinojos-

  Mendoza v. People, 169 P.3d 662, 667 (Colo. 2007) (lab report that

  identified the substance found in Hinojos-Mendoza’s vehicle to be

  cocaine was testimonial — it was prepared at the direction of the

  police, the sole purpose of the report was to analyze the substance

  in anticipation of criminal prosecution, and the report was

  introduced at trial to establish the elements of the charged offense).

¶ 15   Nor are we persuaded that the mere fact that the records were

  produced in a different format than they are kept in by the phone

  company transforms the records into testimonial statements. As

  the Tenth Circuit explained in United States v. Keck, “[i]n the

  context of electronically-stored data, the business record is the

  datum itself, not the format in which it is printed out for trial or

  other purposes.” 643 F.3d 789, 797 (10th Cir. 2011). The fact that

  the record custodian distilled the pertinent business records into

  the exhibit ultimately offered at trial does not alter the

  characterization of the underlying nontestimonial phone data. See


                                     9
  id. at 796 (concluding that the admission into evidence of a

  spreadsheet logging wire transactions was constitutionally

  permissible even if the custodian of records cut and pasted

  information to create the exhibits; “since the underlying wire-

  transfer data are not testimonial, the records custodian’s actions in

  preparing the exhibits do not constitute a Confrontation Clause

  violation”). This is not a case in which the business records were

  cherry-picked to support the prosecution’s case. Cf. People v.

  Flores-Lozano, 2016 COA 149, ¶¶ 11-12 (spreadsheet there “was not

  a simple regurgitation of electronically stored information” because

  “the loss prevention director applied his professional judgment to

  sort, include, and exclude electronically stored information for the

  precise purpose of creating a customized spreadsheet to determine

  if the defendant had stolen from the victim and, if so, in what

  amount”). The exhibit here contained all of the phone records for

  the particular phone number, from three days before the robbery to

  five weeks after the robbery.

¶ 16   Defendant further contends, however, that even if the phone

  records themselves are not testimonial, the declaration by the

  custodian of records is testimonial. Defendant reasons that the


                                    10
  declaration was certainly made under “circumstances which would

  lead an objective witness reasonably to believe that the statement

  would be available for use at a later trial.” Melendez-Diaz, 557 U.S.

  at 310 (quoting Crawford, 541 U.S. at 52), as the declaration states

  that it is in response to a subpoena.

¶ 17   We are again persuaded by the reasoning in Yeley-Davis,

  which followed several other circuits and concluded that a

  certification authenticating a business record is not testimonial

  simply by virtue of the certification itself being made in anticipation

  of litigation. 632 F.3d at 680. The court relied on United States v.

  Ellis, 460 F.3d 920, 927 (7th Cir. 2006), in which the Seventh

  Circuit explained that a written certification authenticating hospital

  records as kept in the ordinary course of the hospital’s business

  was nontestimonial because it was “too far removed from the

  ‘principal evil at which the Confrontation Clause was directed’ to be

  considered testimonial.” Id. (quoting Crawford, 541 U.S. at 50).

¶ 18   Here, as in Yeley-Davis, where the “purpose of the

  certifications . . . was merely to authenticate the cell phone

  records — and not to establish or prove some fact at trial,” 632 F.3d

  at 680, we agree with the Tenth Circuit that the certification is not


                                    11
testimonial. See also United States v. Brinson, 772 F.3d 1314, 1323

(10th Cir. 2014) (certificate authenticating debit card records which

did not “contain any ‘analysis’ that would constitute out-of-court

testimony” was simply a nontestimonial statement of authenticity);

United States v. Adefehinti, 510 F.3d 319, 327-28 (D.C. Cir. 2007)

(in trial related to scheme to secure mortgages at vastly inflated

values, admission of loan applications and other documents relied

on by banks in lending money pursuant to written certification of

custodian of records did not violate the defendants’ confrontation

rights); State v. Brooks, 56 A.3d 1245, 1252-55 (N.H. 2012)

(admission of various business records, including telephone

records, authenticated by written certifications from the records’

custodians did not violate the defendant’s confrontation rights

because the certificates themselves had minimal evidentiary value,

serving only as the foundation for the admission of substantive

evidence); State v. Doss, 754 N.W.2d 150, 161-65 (Wis. 2008)

(affidavits authenticating bank records were not testimonial; noting

that a number of federal appellate decisions addressed the issue

and concluded that similar affidavits and certifications are




                                  12
  nontestimonial). Because the certification is not testimonial, the

  Federal Confrontation Clause is not implicated.

                    C. Colorado Confrontation Clause

¶ 19   Defendant also argued in the trial court, and reasserts on

  appeal, that even if we conclude the phone records are

  nontestimonial, his right to confrontation under the Colorado

  Constitution was violated because the phone records were admitted

  without a showing that the custodian of records was unavailable.

  We disagree with defendant that his right to confrontation under

  the Colorado Constitution was violated.

¶ 20   The Colorado Confrontation Clause provides that a criminal

  defendant “shall have the right . . . to meet the witnesses against

  him face to face.” Colo. Const. art. II, § 16. “The purpose of this

  provision is ‘to prevent conviction by [e]x parte affidavits, to sift the

  conscience of the witness, and to test his recollection to see if his

  story is worthy of belief.’” Phillips, ¶ 79 (alteration in original)

  (quoting People v. Bastardo, 191 Colo. 521, 524, 554 P.2d 297, 300

  (1976)).

¶ 21   The People urge us to dispose of the analysis in People v.

  Dement, 661 P.2d 675 (Colo. 1983), abrogated in part on other


                                      13
grounds by People v. Fry, 92 P.3d 970, 976 (Colo. 2004), and

conform our analysis of state Confrontation Clause challenges to

the approach that the United States Supreme Court has laid out for

challenges under the Federal Confrontation Clause. In Phillips, a

division of this court explored the proper analysis of Confrontation

Clause challenges based on the state constitution. ¶ 81. The

division noted that although our supreme court adopted the United

States Supreme Court’s inquiry under the Federal Confrontation

Clause as to testimonial hearsay, it retained the test in Dement as

to nontestimonial hearsay. Id. (citing Compan v. People, 121 P.3d
876, 885 (Colo. 2005)). The Phillips division then noted that our

supreme court has not “directly considered whether, in light of our

supreme court’s congruent precedent, the recent clarification of

Crawford should affect our state Confrontation Clause analysis.”

Id. at ¶ 82 (citation omitted). The division then followed Compan

and considered a state Confrontation Clause issue involving

nontestimonial hearsay under the Dement test. See id. We, too,

apply Dement to evaluate whether admission of nontestimonial

hearsay violates the Colorado Confrontation Clause.




                                 14
¶ 22   In doing so, we disagree with defendant’s assertion that

  Dement necessarily requires a showing of unavailability to admit

  evidence in the absence of the declarant. Rather, in Dement, our

  supreme court explained that the unavailability requirement is

  subject to an exception when “the utility of trial confrontation [is

  very] remote.” Dement, 661 P.2d at 681 (alteration in original)

  (quoting Ohio v. Roberts, 448 U.S. 56, 65 n.7 (1980), abrogated by

  Crawford v. Washington, 541 U.S. 36 (2004)).

¶ 23   Another division of this court applied the Dement

  Confrontation Clause analysis and concluded that a price tag could

  be used as prima facie evidence of an item’s value in a theft trial

  without implicating the defendant’s confrontation right because the

  utility of cross-examination would be very remote. People v.

  Schmidt, 928 P.2d 805, 807-08 (Colo. App. 1996). The Schmidt

  division explained that, because customers do not ordinarily

  bargain over the price of retail goods, “if [the] defendant had asked

  any employee in the store, including the manager, what the price of

  a particular item was, he or she would have answered by checking

  the price tag on the item.” Id. at 807. The division acknowledged

  that there might be instances in which a price tag would not reflect


                                    15
  the true value of an item, but the division nonetheless concluded

  that the defendant’s right to confrontation was not violated. Id. at

  808.

¶ 24     We conclude that cross-examining the custodian of the phone

  records would be of limited utility in this case and that a showing of

  unavailability was not required. Like a store employee reporting the

  value on a price tag, the custodian of records here reported

  information already recorded and stored in Neustar’s records. See

  also People v. Gilmore, 97 P.3d 123, 131 (Colo. App. 2003)

  (Admission of a work order from a cable company, as well as a lay-

  away agreement for furniture and two related cash receipts, each

  containing the defendant’s name and the address at which cocaine

  and the defendant were found, did not violate the defendant’s

  confrontation right in a possession of controlled substance trial

  because “the documents do not assert that defendant had engaged

  in any conduct, criminal or otherwise, and there is no indication

  that self-interest or animus against defendant motivated the

  authors to make false statements about his address or that the

  documents may have been otherwise fraudulent,” and thus “[t]he

  test of cross-examination regarding these documents would be of


                                    16
  marginal utility.”). Thus, there is minimal practical benefit in

  applying “the crucible of cross-examination” against the custodian

  of records regarding the nontestimonial phone records. Crawford,
541 U.S. at 61. The mere possibility that a mistake may have been

  made in the records, just as a mistake may be made on a price tag,

  does not implicate defendant’s confrontation right. Schmidt, 928
P.2d at 808.

                          III. Closing Argument

¶ 25   Defendant next contends that during closing argument the

  prosecutor misstated the evidence regarding how DNA was or could

  have been deposited on the jeans.

                           A. Legal Standards

¶ 26   “[A] prosecutor’s closing argument should be based on the

  evidence in the record and all reasonable inferences to be drawn

  therefrom,” and “‘[t]he prosecutor should not intentionally misstate

  the evidence or mislead the jury as to the inferences it may draw.’”

  Martinez v. People, 244 P.3d 135, 140-41 (Colo. 2010) (quoting ABA

  Standards for Criminal Justice, Prosecution Function, and Defense

  Function § 3-5.8(a) (3d ed. 1993)).




                                    17
¶ 27   “[C]losing argument allows advocates to point to different

  pieces of evidence and explain their significance within the case.”

  Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005). In so

  doing, “a prosecutor has wide latitude in the language and

  presentation style used.” Id. We evaluate claims of improper

  argument “in the context of the argument as a whole and in light of

  the evidence before the jury.” People v. Samson, 2012 COA 167,

  ¶ 30. Further, “because arguments delivered in the heat of trial are

  not always perfectly scripted, reviewing courts accord prosecutors

  the benefit of the doubt when their remarks are ambiguous or

  simply inartful.” Id.

¶ 28   “Whether a prosecutor’s statements constitute misconduct is

  generally a matter left to the trial court’s discretion.” Domingo-

  Gomez, 125 P.3d at 1049. Thus, absent a showing of an abuse of

  discretion, we will not disturb the trial court’s ruling allowing such

  statements. People v. Strock, 252 P.3d 1148, 1152 (Colo. App.

  2010).

¶ 29   We turn to the context of the argument in light of the expert’s

  testimony.

                          B. Expert’s Testimony


                                    18
¶ 30   A laboratory agent with the Colorado Bureau of Investigation

  forensic crime laboratory testified for the prosecution as an expert

  in criminalistics and the subfields of serology and DNA analysis and

  identification. As pertinent here, the expert testified about the

  results of her analysis of the jeans for “contact or touch DNA.”

  Explaining “contact or touch DNA,” the expert testified that “[w]hat

  that is is an indication maybe of who has been wearing a garment

  or who has been touching a garment.”

¶ 31   The expert testified that (1) a swab from the waist area of the

  jeans and (2) a swab from the inside of the front pocket of the jeans

  both resulted in a DNA profile that was mixture, with defendant

  being the source of the major component of the DNA profile. When

  a DNA profile developed from a sample is a mixture, more than one

  individual’s DNA profile is present. In the mixture situation, there

  is sometimes a “main contributor” — an individual whose DNA is

  present in the sample at a much higher concentration than that of

  other potential contributors — and one or more minor contributors.

¶ 32   The prosecutor explored the mixture concept as it related to

  touch DNA by posing a hypothetical. He asked the expert whether

  it would be possible for him to pick up DNA from touching various


                                    19
  items around the room and then touching his collar, resulting in a

  DNA profile developed from the collar of his shirt then including

  both a major and minor component. The expert agreed this was

  possible because “DNA is pretty much everywhere,” and she

  explained that when someone touches an item, he or she may

  deposit a small amount of DNA and remove some DNA of people

  who previously touched that same item. But, she said, “If you’re

  talking about your mixture on your shirt, I would expect there -- I

  would expect there to be a major contributor, I would expect that

  major contributor to be you.”

¶ 33   The expert made clear during her testimony that, although it

  might provide certain clues, DNA analysis could not conclusively

  establish how DNA arrived on a piece of clothing.

                   C. Closing Argument in This Case

¶ 34   Defendant asserts that the prosecutor, contrary to the expert’s

  testimony, told the jury it was impossible that someone other than

  defendant had contact with the jeans. We disagree with this

  characterization of the prosecutor’s argument.

¶ 35   The court instructed the jury on defendant’s theory of defense

  in which he contended that “the presence of a mixture of DNA on


                                   20
the . . . jeans indicates that someone other than [defendant] also

came in contact with those areas of the jeans tested by the Colorado

Bureau of Investigations.” The prosecutor responded specifically to

that theory of defense instruction in closing, arguing:

          [That i]nstruction goes on to say that they
          further contend the presence of a mixture of
          DNA on the . . . jeans indicates that someone
          other than Raymond Ortega also came in
          contact with those areas of the jeans tested by
          CBI.

          Simply not the case. It’s essentially not the
          case at all. That says that what the mixture of
          DNA in the pockets and mixture of DNA on the
          waistband that what those jeans [shows] is
          that someone else came in contact with those
          jeans. They’d like you to believe that, but
          that’s not what the evidence means, and that’s
          not what the evidence shows.

          What the evidence shows is that the
          Defendant’s DNA is on the waist of those
          jeans, and his DNA is in the pocket of those
          jeans. . . . Both the waist of the jeans and the
          pockets of the jeans have a mixture, what they
          call a mixture of DNA, that is to such a slight
          degree at that time cannot be interpreted to
          say [whose] DNA is this, [whose] is that.

          . . . The mixture that’s in the pocket, and the
          mixture that’s on the waist band means that
          somebody else’s DNA came in contact with
          those jeans.

          But it absolutely does not mean that somebody
          else came in contact with the jeans. Sounds

                                  21
            like a small description, right? But think
            about it like this: [the expert] talked about the
            fact if you’re touching an item, you’re picking
            up DNA from that item. . . .

            The jeans that are there have touch DNA that
            was found as far as a mixture of DNA, that is
            absolutely consistent with picking up DNA
            from other items and putting it in your
            pockets.

            . . . I can’t stand here and tell you with
            certainty, I can’t tell you where the DNA came
            from, the mixture.

            What I can tell you is it’s of a such a slight
            degree it’s absolutely consistent with picking
            up DNA from any other items and putting
            them into the jeans for a long period of time.

            What cannot be said is that the presence of the
            mixture indicates that someone other than
            Raymond Ortega also came into contact with
            those jeans.

  (Emphasis added.)

¶ 36   Defense counsel objected on the basis that the prosecutor

  misstated the evidence, and the court overruled the objection,

  noting that this was argument.

¶ 37   The prosecutor then added, “They can’t say it. They can’t say

  that the DNA came from somebody else, the postman came into

  contact with the jeans.”




                                   22
¶ 38   Thus, as we read the closing argument, the prosecutor

  responded to the theory of defense — that the DNA evidence

  indicated that someone else also came into contact with the jeans

  possibly worn in the robbery — by arguing, consistent with the

  expert’s testimony, that the evidence simply indicated that someone

  else’s DNA came into contact with the jeans. The People’s further

  argument that the result was “absolutely consistent with picking up

  DNA from any other items and putting them into the jeans” was

  reasonably based on the expert’s testimony about touch DNA

  hypotheticals.

¶ 39   Although the prosecutor might have more artfully worded his

  argument, we read his statements as permissibly arguing that

  (1) the DNA evidence did not establish that someone other than

  defendant had contact with the jeans and (2) the more likely

  scenario was that defendant had picked up a small amount of

  someone else’s DNA and deposited it on the jeans. See Sampson,

  ¶ 30. And importantly, the prosecutor reiterated in closing that he

  could not tell the jury with certainty, based on the DNA evidence,

  where the DNA on the jeans came from.




                                   23
¶ 40   Accordingly, we discern no abuse of discretion in the trial

  court’s determination that the argument was permissible.

                         IV. Cumulative Error

¶ 41   Because we discern no error in the trial court’s rulings

  admitting the cell phone records into evidence and determining the

  prosecutor’s argument was permissible, there was no cumulative

  error. See People v. Marin, 686 P.2d 1351, 1357 (Colo. App. 1983).

       V. Admission of Documentary Evidence in Habitual Trial

¶ 42   Finally, defendant contends that he was denied his right to

  confrontation under the Colorado Confrontation Clause because the

  trial court erroneously concluded that sentencing and prison

  records could be admitted into evidence without a showing of

  unavailability of “the judges or their clerks who may have created,

  signed, or processed the various mitts and the other various court

  documents.”

¶ 43   In short, defendant again asserts that the Colorado

  Confrontation Clause demands a showing that a declarant is

  unavailable before nontestimonial hearsay can be admitted without

  the declarant’s testimony. As we explained in Part II.C, under

  Dement, the prosecution need not produce a declarant nor prove


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  him or her unavailable where the utility of trial confrontation is

  remote. As with the phone records, we conclude that the

  sentencing and prison records fall into this category. Indeed,

  defendant argues that unavailability must be shown but offers no

  argument as to what helpful information might be revealed by

  cross-examination of the judges or clerks who recorded and

  reported defendant’s previous convictions.

                             VI. Conclusion

¶ 44   The judgment is affirmed.

       JUDGE LICHTENSTEIN and JUDGE STERNBERG concur.




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