SUMMARY

JULY 9, 2020

2020COA106

No. 19CA0485, Bernache v. Brown — Vehicles and Traffic —

Records to Be Kept by Department — Admission of Records in 

Court; Evidence — Hearsay

In this proceeding, a division of the court of appeals considers 

whether section 42-2-121(2)(c)(II), C.R.S. 2019, allows automatic 

admission of a hearsay statement within a traffic accident report. 

The division concludes that the district court misinterpreted the 

statute when it admitted a witness’s hearsay statement contained 

in the report where the statement did not independently satisfy a 

hearsay exception. Because the division reverses the judgment and 

remands the case for new trial where a new jury will decide the 

matter, it does not consider the claim that a juror committed 

misconduct. 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2020COA106

Court of Appeals No. 19CA0485

El Paso County District Court No. 17CV31772

Honorable Chad Clayton Miller, Judge

Celena Esther Jean Bernache, 

Plaintiff-Appellant,

v.

Gary Brown,

Defendant-Appellee.

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division A

Opinion by JUDGE FOX

Bernard, CJ., and Berger, J., concur

Announced July 9, 2020

McDivitt Law Firm, P.C., David E. McDivitt, Edward Lomena, Colorado Springs, 

Colorado, for Plaintiff-Appellant

Park & Metz LLP, Randy S. Metz, Carbondale, Colorado, for Defendant-Appellee
1

¶ 1 In this car accident litigation, plaintiff Celena Esther Jean 

Bernache appeals a jury verdict in favor of defendant Gary Brown, 

arguing that the district court erroneously admitted a hearsay 

statement within a traffic accident report (the report). She also 

argues that a juror’s failure to disclose her relationship with a fact 

witness was misconduct. We conclude that the district court 

erroneously admitted the hearsay statement within the report, and 

the error was not harmless. So we reverse and remand the case for 

a new trial. Because Bernache’s juror misconduct claim will not

arise in the new trial, we do not consider it. 

I. Background

¶ 2 On November 5, 2015, Bernache was driving south on 

Highway 85 toward Fountain, Colorado, with her daughter and 

grandson. Brown, also driving south on Highway 85 and to the left 

of Bernache’s vehicle, hit the median and struck Bernache’s rear 

passenger door and wheel well. The parties dispute why Brown hit

the median. Brown, who has no independent recollection of the 

collision, insists he suffered a sudden medical emergency while 

Bernache alleges he fell asleep. 
2

¶ 3 Fountain Police Department Corporal Galen Steele did not 

witness the accident but later responded to the accident and spoke 

with an unidentified witness who said that, just before he struck 

the median, Brown had “‘[s]tiffen[ed] up’ and lean[ed] towards the

right like he was having a heart attack.” The witness left the scene 

before Steele could collect identifying information, but he included 

the witness’s statement in his report. 

¶ 4 Bernache filed this lawsuit on July 20, 2017, and later filed a 

motion in limine to exclude the unidentified witness’s statement 

within the accident report from the trial. Broadly interpreting

section 42-2-121(2)(c)(II), C.R.S. 2019 — which states, among other 

things, that official state records are statutory exceptions to 

Colorado’s hearsay rule, CRE 802 — the district court ruled that 

the report was admissible in its entirety. Relying on the pretrial 

ruling, Bernache stipulated during trial to the admission of the

report and did not renew her objection.

¶ 5 During jury selection, prospective juror F.L. disclosed knowing

Steele through her husband. However, she said that her husband’s 

relationship with Steele would not “color [her] thinking” about his 

testimony. F.L. was a juror during the trial.
3

¶ 6 After a two-day trial, the jury found in Brown’s favor. During 

a later discussion about the trial, F.L. allegedly told Bernache’s 

counsel that she gave Steele’s testimony considerable weight

because she knew how he thought and worked. Bernache now 

appeals.

II. Unidentified Witness Statement

¶ 7 Bernache first argues that the district court erred by admitting 

the unidentified witness’s statement. Specifically, Bernache argues 

that (1) the witness statement is hearsay and does not satisfy a 

hearsay exception; and (2) the district court misinterpreted section 

42-2-121(2)(c)(II) by ruling that the witness statement was 

admissible. We agree and remand the case for a new trial. 

A. Preservation, Waiver, and Invited Error

¶ 8 Brown argues that Bernache failed to preserve her hearsay 

argument because she did not contemporaneously object to the 

court’s admission of the entire report at trial. Brown also argues 

that Bernache waived her right to appeal this issue because she 

stipulated to the report’s admission during trial, thereby inviting

any error by referencing the witness statement in her opening 

argument.
4

¶ 9 A court’s definitive ruling on a motion in limine preserves the 

issue for appeal. CRE 103(a); see also Uptain v. Huntington Lab, 

Inc., 723 P.2d 1322, 1330-31 (Colo. 1986) (pretrial ruling on a 

motion in limine sufficiently preserves an issue for appeal); People v. 

Mattas, 645 P.2d 254, 260 (Colo. 1982) (“Preservation of a 

defendant’s right to challenge a trial court’s evidentiary rulings 

requires a [pretrial] motion to suppress the evidence or an objection 

at trial to its introduction.”). A party abiding by the court’s order 

need not renew an objection at trial to preserve the issue for appeal. 

Bennett v. Greeley Gas Co., 969 P.2d 754, 758 (Colo. App. 1998).1 

¶ 10 Waiver is “the intentional relinquishment of a known right or 

privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (quoting Dep’t of 

Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)). To hold a 

 

1 But when a party violates the court’s pretrial order, common 

sense militates in favor of requiring a contemporaneous objection.

See People v. Dinapoli, 2015 COA 9, ¶ 22. In this situation, an 

objection does not merely revive an argument that the court has 

already rejected. Id. Instead, an objection serves to alert the trial 

court to the violation of the pretrial order and to the objecting 

party’s argument against the other party’s action. Id. Indeed, not 

requiring a contemporaneous objection would create an undesirable 

incentive: the party who received a favorable pretrial ruling could sit 

silently while the ruling was violated at trial and then, if the party 

received an adverse verdict, move for a new trial based on the error.

Id.
5

party waived objection to an error, a court must find some record 

evidence that the defendant intentionally relinquished a known 

right, Rediger, ¶ 39, indulging “every reasonable presumption 

against waiver” and examining the totality of the circumstances 

surrounding a party’s conduct (or lack thereof), People in Interest of 

A.V., 2018 COA 138M, ¶ 13 (quoting Rediger, ¶ 39).

¶ 11 The doctrine of invited error prevents a party from complaining 

on appeal of an error that he or she has invited or injected into the 

case. Rediger, ¶ 34. The doctrine applies in “situations where an 

error was caused by a party’s affirmative, strategic conduct and not 

by a party’s inaction or inadvertence.” People v. Garcia, 2018 COA 

180, ¶ 7. 

¶ 12 Here, the district court definitively ruled that the report —

including the hearsay from the unidentified witness — was 

admissible, and the court did not indicate it was willing to 

reconsider its ruling at trial. Because Bernache did not need to 

renew her objection to the witness statement to preserve it, she had 

nothing to gain by resisting the court’s admission of the statement 

at trial. The witness statement was a key component of Brown’s 

defense, and prudent trial strategy — knowing the court had 
6

approved the statement’s admission — favored Bernache addressing

the statement preventatively. Thus, under the totality of the 

circumstances, Bernache did not intentionally relinquish her right 

to appeal the court’s admission of the witness statement by 

stipulating to it at trial. Nor did she invite error by addressing the 

witness statement during opening argument. To hold otherwise 

would “undermine the benefits provided by the motion in limine 

procedure.” Uptain, 723 P.2d at 1330.

¶ 13 Accordingly, we conclude that the court’s ruling on Bernache’s 

pretrial motion in limine preserved her hearsay objection, and that 

Bernache did not waive her right to appeal or invite error during the 

trial. See id. at 1330-31; see also Rediger, ¶ 3. 

B. The Record Supports the Trial Court’s Finding that the 

Witness Statement Did Not Qualify as a Hearsay Exception 

under the Colorado Rules of Evidence

1. Applicable Law and Standard of Review

¶ 14 Hearsay is any “statement other than one made by the 

declarant while testifying at the trial or hearing, offered in evidence 

to prove the truth of the matter asserted.” CRE 801(c). CRE 802 

prohibits the admission of hearsay unless the statement meets a 

rule-based or statutory exception. When a statement — such as 
7

the report at issue here — contains multiple layers of hearsay, the 

trial court must analyze each layer separately to determine whether 

a recognized exception applies. CRE 805; People v. Phillips, 2012 

COA 176, ¶ 101. 

¶ 15 As is relevant to our analysis, a hearsay statement is 

admissible as a present sense impression under CRE 803(1), an 

excited utterance under CRE 803(2), or a public record or report as 

defined under CRE 803(8). A present sense impression is a 

statement describing an event made while the declarant was

perceiving the event. CRE 803(1). An excited utterance is a 

statement that “relat[es] to a startling event or condition [and is] 

made while the declarant was under the stress of excitement 

caused by the event or condition.” CRE 803(2).

¶ 16 CRE 803(8)(B) authorizes the admission of certain public 

records and reports, even though they are hearsay, unless the 

source of information or other circumstances indicate a lack of 

trustworthiness. This court has recognized that police reports are 

admissible under CRE 803(8). See, e.g., Kelln v. Colo. Dep’t of 

Revenue, 719 P.2d 358, 360 (Colo. App. 1986). But statements are 
8

not admissible under Rule 803(8) solely because they are contained 

in a police report. 

¶ 17 While the report itself may be admissible, statements made to 

the officer who prepared the report are inadmissible unless they 

independently meet a hearsay exception. CRE 805; Orth v. Bauer,

163 Colo. 136, 138-40, 429 P.2d 279, 281 (1967) (hearsay 

statements and conclusions of police officers in a police report are 

not entitled to preferred status and, thus, trial court acted properly 

in excluding such evidence); Michael v. John Hancock Mut. Life Ins. 

Co., 138 Colo. 450, 456, 334 P.2d 1090, 1094 (1959) (holding that a

report and its “findings, together with the affidavits, were not 

admissible and that their hearsay character was not improved by 

giving them the status of ‘official records’”); Leiting v. Mutha, 58 

P.3d 1049, 1053 (Colo. App. 2002) (excluding hearsay statements 

contained in the report of an administrative law judge (citing 

Parsons v. Honeywell, Inc., 929 F.2d 901, 907-08 (2d Cir. 1991))); 

Quintana v. City of Westminster, 56 P.3d 1193, 1198 (Colo. App. 

2002) (affirming exclusion of eyewitness statements attached to

police reports). 
9

¶ 18 Steele did not witness the accident. Aside from repeating the 

unidentified witness’s statement, the record discloses nothing about 

the circumstances under which the witness saw the accident or 

relayed the statement to Steele.

¶ 19 We review evidentiary rulings for an abuse of discretion. 

Murray v. Just In Case Bus. Lighthouse, LLC, 2016 CO 47M, ¶ 16. A 

trial court abuses its discretion if its ruling is manifestly arbitrary, 

unreasonable, or unfair, or the court bases its ruling on an 

erroneous view of the law or on a clearly erroneous assessment of 

the evidence. Front Range Res., LLC v. Colo. Ground Water Comm’n, 

2018 CO 25, ¶ 15.

2. Analysis

¶ 20 The witness told Steele that he saw Brown “‘[s]tiffen up’ and 

lean towards the right like he was having a heart attack.” Brown 

offered this statement at trial as evidence that he suffered a sudden 

medical emergency at the time of the accident. Hence, the witness 

statement is clearly an out-of-court statement offered for its truth. 

See CRE 801(c). 

¶ 21 Next, because the witness statement is hearsay within 

hearsay, we must consider if it qualifies as a hearsay exception 
10

independent of the fact that it appears in a police report. See CRE 

805; Orth, 163 Colo. at 138-40, 429 P.2d at 281; Michael, 138 Colo. 

at 456, 334 P.2d at 1094; Leiting, 58 P.3d at 1053. While the report 

contains no identifying information about the witness, one can infer 

that the witness spoke with Steele after the accident occurred. 

Without more foundation, we cannot conclude that the statement 

automatically qualifies as a present sense impression under CRE 

803(1). Further, while it is possible the witness was startled by 

what he had observed, this witness was not directly involved in the 

accident. Considering that the witness made the statement after 

the accident and that Steele recorded no other observations about 

the witness’s demeanor, there is simply not enough evidence in the 

record for us to conclude that the witness statement is an excited 

utterance under CRE 803(2).2 The district court’s in limine ruling 

recognized as much. 

¶ 22 Accordingly, the record supports the trial court’s conclusion, 

in its in limine ruling, that the witness statement did not qualify for 

 

2 While the district court ultimately admitted the witness statement 

under section 42-2-121(2)(c)(II), C.R.S. 2019, it first concluded that 

the statement did not qualify as a present sense impression or an 

excited utterance. This finding is not disputed on appeal.
11

a hearsay exception under the Colorado Rules of Evidence. See 

CRE 803(1)-(2); Leiting, 58 P.3d at 1053. And, as we explain below, 

the admissibility of police reports does not immunize other hearsay

within such reports. 

C. Section 42-2-121(2)(c)(II) Does Not Allow Admission of Hearsay 

Statements within Official Reports unless They Independently 

Qualify as Hearsay Exceptions

¶ 23 Given that the witness statement did not satisfy a hearsay 

exception under the Colorado Rules of Evidence, we now consider if 

the district court properly relied on section 42-2-121(2)(c)(II) to 

admit the statement. Brown argues that the plain language of 

section 42-2-121(2)(c)(II) allows the court to admit the full contents

of official reports, including hearsay statements. We disagree.

1. Standard of Review and Applicable Law

¶ 24 We review de novo questions of statutory interpretation. Hall 

v. Am. Standard Ins. Co. of Wis., 2012 COA 201, ¶ 19. “[W]hen the 

statutory language is clear and unambiguous, we need not look 

beyond its plain terms and must apply the statute as written.” Id.

(citing Kyle W. Larson Enters., Inc. v. Allstate Ins. Co., 2012 COA 

160M, ¶ 10). If statutory language is ambiguous or if the statute is 

silent on an issue that would be expected to be within its scope, we 
12

enlist tools of statutory interpretation to discern the legislature’s 

intent. In re Marriage of Alvis, 2019 COA 97, ¶ 9 (citing People v. 

Ray, 2018 COA 158, ¶ 16). “Those tools include legislative history, 

prior law, the consequences of a particular construction, and the 

goal of the statutory scheme.” Id. (citing In re Marriage of Ikeler, 

161 P.3d 663, 668 (Colo. 2007)). A statute is ambiguous if multiple 

reasonable interpretations are possible. Andrews v. Miller, 2019 

COA 185, ¶ 21 (citing Carrera v. People, 2019 CO 83, ¶ 18). 

¶ 25 “We must interpret the statute ‘to give consistent, harmonious, 

and sensible effect to all its parts.’” Alvis, ¶ 9 (quoting Ikeler, 161 

P.3d at 667). “A statutory interpretation leading to an illogical or 

absurd result will not be followed,” Frazier v. People, 90 P.3d 807, 

811 (Colo. 2004), and courts “avoid constructions that are at odds 

with the legislative scheme,” Bryant v. Cmty. Choice Credit Union, 

160 P.3d 266, 274 (Colo. App. 2007). 

¶ 26 We review evidentiary rulings in civil cases for harmless error. 

C.R.C.P. 61; Laura A. Newman, LLC v. Roberts, 2016 CO 9, ¶ 24. 

We will not disturb a judgment unless a court’s error affected the 

substantial rights of the parties. C.R.C.P. 61. An error affects the 

substantial rights of the parties if it “substantially influenced the 
13

outcome of the case or impaired the basic fairness of the trial itself.” 

Laura A. Newman, LLC, ¶ 24 (quoting Bly v. Story, 241 P.3d 529, 

535 (Colo. 2010)) (emphasis omitted). 

2. Analysis

¶ 27 Section 42-2-121(2)(c)(II) provides, in relevant part, as follows:

In any trial or hearing, all official records and 

documents of the state of Colorado . . . shall be 

admissible in all municipal, county, and 

district courts within the state of Colorado 

without further foundation, shall be statutory 

exceptions to rule 802 of the Colorado rules of 

evidence, and shall constitute prima facie 

proof of the information contained therein.

3

The statute has declared, since 1990, that official state reports are 

“statutory exceptions to rule 802.” 

¶ 28 The parties disagree whether this exception applies to hearsay 

within official state reports. Brown argues that the plain language 

of section 42-2-121(2)(c)(II) is clear on its face and allows blanket 

admission of official reports. 

¶ 29 Section 42-2-121 clearly allows a court to admit official state 

reports, even if the report itself is hearsay and does not qualify as a 

 

3 There is no dispute that the statute applies to police reports. The 

record shows that the police report was to be filed with the Division 

of Motor Vehicles in the Department of Revenue.
14

hearsay exception. But the statute does not explicitly address

whether hearsay statements within official state reports are

automatically admissible. Given its silence on that issue, the 

statute’s declaration that official state reports are statutory 

exemptions to CRE 802 is susceptible of multiple reasonable 

interpretations. See Andrews, ¶ 21. Thus, we must use tools of 

statutory construction to determine if the legislature intended 

section 41-2-121(2)(c)(II) to allow admission of hearsay within 

official reports. See Alvis, ¶ 9.

¶ 30 Bernache argues we should interpret section 42-2-121(2)(c)(II) 

as courts have interpreted CRE 803(8) and Fed. R. Evid. 803(8), the 

analogous federal rule. Colorado cases — before and after the 1990 

enactment of the statutory provision at issue — have repeatedly 

recognized that hearsay in a police report is inadmissible. See Orth, 

163 Colo. at 138-40, 429 P.2d at 281; Michael, 138 Colo. at 456, 

334 P.2d at 1094; Leiting, 58 P.3d at 1053; Quintana, 56 P.3d at 

1198; see also Schnabel v. Waters, 37 Colo. App. 498, 501-04, 549 

P.2d 795, 799-800 (1976) (affirming trial court’s exclusion of 

information in a police report); Polster v. Griff’s of Am., Inc., 34 Colo. 

App. 161, 165-66, 525 P.2d 1179, 1182 (1974) (police report 
15

properly excluded); Watson v. Watson, 507 P.2d 1122, 1126 (Colo. 

App. 1973) (not published pursuant to C.A.R. 35(f)) (factual 

information in investigative report of state agency not admitted 

unless based on personal knowledge). But see Lannon v. Taco Bell, 

Inc., 708 P.2d 1370, 1374 (Colo. App. 1985) (police reports could 

qualify as business records and admitting the same in a civil case, 

but without explaining why the hearsay therein was reliable). 

¶ 31 Focusing on the post-enactment cases, in Leiting, a division of 

this court held hearsay statements within public records are not 

automatically admissible under CRE 803(8).4 58 P.3d at 1053. And

in Quintana, 56 P.3d at 1198, a division of this court concluded that 

the trial court properly excluded eyewitness statements that were 

attached to police reports because those statements were hearsay. 

¶ 32 Brown’s proposed interpretation of section 42-2-121(2)(c)(II)

would create an exception for official state records and reports from 

the general rule that hearsay statements within public records are 

 

4 Similarly, in Parsons v. Honeywell, Inc., cited in Leiting v. Mutha, 

58 P.3d 1049, 1053 (Colo. App. 2002), the Second Circuit held that, 

while traffic reports are generally admissible under Fed. R. Evid.

803(8), hearsay statements within them are inadmissible unless 

they satisfy a hearsay exception. 929 F.2d 901, 907 (2d Cir. 1991).
16

inadmissible unless they independently qualify for a hearsay 

exception. See CRE 805; Leiting, 58 P.3d at 1053. To determine if 

the legislature intended section 42-2-121(2)(c)(II) to create such an 

exception for official state records, we look to the legislative history 

underlying section 42-2-121(2)(c)(II).

a. Legislative History of Section 42-2-121(2)(c)(II)

¶ 33 Section 42-2-121 is similar to section 42-2-118 as it existed 

before 1994. See Ch. 18, sec. 1, § 42-2-118(2)(c)(II), 1993 Colo. 

Sess. Laws 40. The General Assembly first addressed the 

admission of official state records in court in 1977, see Ch. 551,

sec. 1, § 42-2-118(2), 1977 Colo. Sess. Laws 1867, but did not add 

language addressing CRE 802 until 1990, see Ch. 298 sec. 6, § 42-

2-118(2)(c)(I), 1990 Colo. Sess. Laws 1780. In making that

amendment, the General Assembly did not address hearsay within 

official state records; however, it emphasized that the primary 

purpose of section 42-2-118(2)(c)(II) was to ensure that state 

personnel no longer had to appear before courts could admit official 

state records into evidence. See Hearings on H.B. 90-1272 before 

the H. Judiciary Comm., 57th Gen. Assemb., 2d Sess. (Feb. 13, 

1990); Hearings on H.B. 90-1272 before the S. Judiciary Comm., 
17

57th Gen. Assemb., 2d Sess. (Mar. 20, 1990); Hearings on H.B. 

90-1272 before the S. Judiciary Comm., 57th Gen. Assemb., 2d 

Sess. (Mar. 21, 1990). The General Assembly also emphasized that 

parties could still challenge the contents of official reports. See, 

e.g., Hearings on H.B. 90-1272 before the S. Judiciary Comm., 57th 

Gen. Assemb., 2d Sess. (Mar. 20, 1990). 

¶ 34 Thus, it is apparent that the legislature never intended to 

exempt official state records from any challenge under the rules of 

evidence; rather, the legislature sought to exempt official state 

records from rules of evidence that would require state officials to 

appear in court.

¶ 35 With this background in mind, we conclude that section 42-2-

121(2)(c)(II) does not allow admission of hearsay statements within 

official state reports unless those statements independently satisfy 

a hearsay exception. The purpose of section 42-2-121(2)(c)(II) is to 

prevent state officials from having to appear in court, but even if an 

official appears and testifies to the facts contained in a report — as 

was the case here — that official cannot testify to the truth of 

statements made by others regarding matters the official did not 

personally observe. Westinghouse Elec. Corp. v. Dolly Madison 
18

Leasing & Furniture Corp., 326 N.E.2d 651, 657 (Ohio 1975). The 

testimony of a state official in court authenticating an official state 

record alone does not render a third-party hearsay statement 

admissible. Thus, we do not believe the legislature, in reducing the 

burden on public record custodians and other state officials,

intended to allow admission of otherwise inadmissible hearsay 

statements merely because they appear in an official state record. 

See Orth, 163 Colo. at 141, 429 P.2d at 282 (“[I]t is obvious that the 

mere writing down of hearsay does not remove the bar to its 

admission”).5

 

5 Orth v. Bauer, 163 Colo. 136, 141, 429 P.2d 279, 282 (1967), and 

Westinghouse Electric Corp. v. Dolly Madison Leasing & Furniture 

Corp., 326 N.E.2d 651, 657 (Ohio 1975), predate the adoption of the 

Federal (and Colorado) Rules of Evidence. However, the Federal 

Rules of Evidence, which the Colorado rules largely track, are 

“organic growths out of our common law, . . . and must be 

construed with that pedigree in mind.” United States v. Fryberg, 

854 F.3d 1126, 1132 (9th Cir. 2017) (citations omitted). Thus, we 

rely on these cases for their articulation of the principles that 

underlie statutory public records exceptions to rules against 

hearsay. Interestingly, the comments to Fed. R. Evid. 803(6) 

include the following explanation concerning the limited 

admissibility of police reports:

Sources of information presented no substantial 

problem with ordinary business records. All 

participants, including the observer or participant 

furnishing the information to be recorded, were 
19

¶ 36 Our interpretation of section 42-2-121(2)(c)(II) is consistent 

with the rationale behind the general rule against admitting 

hearsay: opponents cannot cross-examine the out-of-court speaker. 

See Nicholls v. People, 2017 CO 71, ¶ 15 (“[H]earsay statements are 

presumptively unreliable since the declarant is not present to 

explain the statement in context. . . . Moreover, since the declarant 

is not subjected to cross-examination, the truthfulness of the 

statement is questionable.” (quoting Blecha v. People, 962 P.2d 931, 

937 (Colo. 1998))); see also People v. Dist. Court, 719 P.2d 722, 727 

(Colo. 1986) (recognizing that parties to “civil litigation also have a 

 

acting routinely, under a duty of accuracy, with 

employer reliance on the result, or in short “in the 

regular course of business.” If, however, the 

supplier of the information does not act in the 

regular course, an essential link is broken; the 

assurance of accuracy does not extend to the 

information itself, and the fact that it may be 

recorded with scrupulous accuracy is of no avail. 

An illustration is the police report incorporating 

information obtained from a bystander: the officer 

qualifies as acting in the regular course but the 

informant does not. The leading case, Johnson v. 

Lutz, 253 N.Y. 124, 170 N.E. 517 (1930), held that a 

report thus prepared was inadmissible. Most of the 

authorities have agreed with the decision.

Fed. R. Evid. 803 advisory committee’s note to paragraph 6 

(emphasis added).
20

limited constitutional right to thoroughly cross-examine adverse 

witnesses”). 

¶ 37 The purpose of public and official record exceptions is “to 

admit the sundry sorts of public documents for which no serious 

controversy ordinarily arises about their truth.” United States v. 

Fryberg, 854 F.3d 1126, 1132 (9th Cir. 2017) (quoting United States 

v. Orellana-Blanco, 294 F.3d 1143, 1150 (9th Cir. 2002)). But, 

unlike official records generally, hearsay statements within official 

records are not necessarily trustworthy, and opponents should have 

the opportunity to test the accuracy of those statements through 

cross-examination. See Westinghouse, 326 N.E.2d at 657

(“[Hearsay statements are] not made competent by commitment to 

writing in an official report, since it remains evidence not subject to 

cross-examination and not based on first-hand knowledge.”).

¶ 38 Accordingly, we conclude that section 42-2-121(2)(c)(II) does 

not exempt official state records from the rules regarding hearsay 

within hearsay and that the district court erred by admitting the 
21

unidentified witness statement.6 See CRE 805; Orth, 163 Colo. at 

141, 429 P.2d at 282; Leiting, 58 P.3d at 1053.

b. The District Court’s Error Was Not Harmless

¶ 39 Having concluded that section 42-2-121(2)(c)(II) does not allow 

admission of hearsay within official state reports unless the

statements independently qualify as hearsay exceptions, we now 

consider whether the district court’s error was harmless. We 

conclude it was not.

¶ 40 Brown’s entire defense was that he suffered a sudden medical 

emergency during the accident, and the witness statement was the 

strongest evidence of his claimed medical emergency. While a 

neurologist testified as an expert about Brown’s possible medical 

emergency, the neurologist could not say what medical condition or 

event caused Brown to lose control of his vehicle. Moreover, Brown 

himself claimed he had no recollection of why or how the accident 

 

6 The inclusion of the unidentified witness statement does not 

render the entire report inadmissible; the district court could have 

required the parties to redact the witness statement and admitted 

the portions of the report that memorialized Steele’s personal 

observations. See, e.g., Leiting, 58 P.3d at 1052 (“[P]ortions of a 

record or report that set forth factual findings resulting from an 

investigation made pursuant to authority granted by law are 

admissible under CRE 803(8)(C).”).
22

occurred. Thus, the jury must have relied heavily — if not entirely 

— on Steele’s testimony and the unidentified witness statement in 

reaching its verdict. Indeed, a substantial number of the jurors’

questions centered on Brown’s condition. For example, one juror 

asked Steele, “[i]f the witness didn’t mention the medical 

emergency, would you have [reached] the same conclusion? Why? 

Did Mr. Brown mention a medical problem?” The question was 

posed with the parties’ agreement. Steele responded that he 

concluded Brown suffered a medical emergency because of the 

witness’s statement and that he did not recall Brown mentioning a 

medical problem. Another juror inquired: “If the witness said it

looked like a heart attack, which you thought was the cause of the

accident, why would you not follow up to check for a heart attack?”

7 

Steele responded that the medical team is responsible for evaluating 

an individual’s medical condition and that the police cannot force 

individuals involved in an accident to go to the hospital. These 

 

7 The jurors posed additional questions on this subject, some of 

which the parties agreed should not be posed to Steele. Even the 

questions that were not posed to Steele show that the witness’s 

statement about Brown was central to the jurors’ thought 

processes.
23

questions highlight the centrality of the hearsay statement to the 

case. 

¶ 41 Because the jury might have reached a different verdict had 

the court excluded the unidentified witness statement from the 

trial, the error here was not harmless. See Leiting, 58 P.3d at 1053 

(“[E]rror is not harmless if a different result might have been 

reached had the inadmissible evidence been excluded”); C.R.C.P. 

61; Laura A. Newman, LLC, ¶ 24. Accordingly, we remand the case 

for a new trial.

¶ 42 Given our disposition, we need not address Bernache’s juror 

misconduct claim.

III. Conclusion

¶ 43 The judgment is reversed, and the case is remanded for a new 

trial.

CHIEF JUDGE BERNARD and JUDGE BERGER concur.