SUMMARY

October 3, 2019

2019COA150

No. 18CA1613, People v. N.T.B. — Evidence — Admissibility —

Authentication — Hearsay — Machine-generated Records —

Hearsay Exceptions — Records of Regularly Conducted Activity

A division of the court of appeals addresses the admissibility of 

evidence from a cloud storage account. First, the division holds 

that an investigating detective could provide sufficient background 

to authenticate records produced in response to a search warrant 

served on the cloud storage and internet service providers under 

CRE 901. Second, the division agrees with the trial court that 

because these records include statements that constitute hearsay, 

and because the prosecution had not listed a custodian to provide 

necessary foundation under CRE 803(6), they were 

inadmissible. The division distinguishes cases dealing with the 

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.
admissibility of electronic communications, such as emails and 

Facebook postings.
COLORADO COURT OF APPEALS 2019COA150

Court of Appeals No. 18CA1613

El Paso County District Court No. 16CR4823

Honorable Robert L. Lowrey, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

N.T.B.,

Defendant-Appellee.

RULING APPROVED

Division III

Opinion by JUDGE WEBB

Dunn and Lipinsky, JJ., concur

Announced October 3, 2019

Daniel H. May, District Attorney, Oliver Robinson, Deputy District Attorney, 

Tanya A. Karimi, Deputy District Attorney, Colorado Springs, Colorado, for 

Plaintiff-Appellant

No Appearance for Defendant-Appellee
1

¶ 1 Evidence stored in an account on a remote cloud server raises 

novel questions of authentication and the business-records 

exception to the hearsay rule. The district attorney appeals the trial 

court’s pretrial order dismissing all charges against N.T.B.1 The 

court held that the prosecutor failed to present a witness to

authenticate records of the cloud storage custodian and internet 

service provider, which were necessary to link N.T.B. to sexually 

exploitative material stored in the cloud. And even if the 

prosecution could have authenticated these records, the court held 

that they contained inadmissible hearsay. Because the prosecutor

provided no basis for admitting them under the business-records 

exception, the trial court refused to admit them. We agree with the 

district attorney that the prosecutor proffered sufficient evidence of 

authenticity but reject his contention that the documents were not 

hearsay. Therefore, we approve the trial court’s ruling.

I. Background

¶ 2 Dropbox flagged a cloud-storage account that it suspected 

contained child pornography. The company provided the National 

 

1 N.T.B. has not entered an appearance in this court.
2

Center for Missing and Exploited Children with a video and an 

account identification number, an email address, account activity 

log, and internet protocol (IP) address tied to the upload.2 The 

Center forwarded this information to local police. 

¶ 3 The police served a search warrant on Dropbox, which 

produced everything stored in the account, and viewed the original 

video. They also viewed other videos that they believed contained 

sexually exploitative material, along with two still pictures of N.T.B., 

all of which were in the account.3 The police traced the IP address 

to Comcast, the internet service provider, which identified a 

physical address for the internet account in response to a search 

warrant. The account was owned by N.T.B.’s then-girlfriend and 

his roommate. 

 

2 People v. Garrison, 2017 COA 107, ¶¶ 23-29, ¶ 24 n.3, explains 

that an IP number is a unique address assigned to a computer 

connected to the internet, and how an IP address can be traced to a

residential address with information provided by an internet service 

provider. See also United States v. Miller, No. CV 16-47-DLB-CJS, 

2017 WL 2705963, at *1 (E.D. Ky. June 23, 2017) (explaining how 

cloud storage providers identify suspected child pornography 

through “hashing” technology and report their findings to the 

Center). 

3 The videos, photographs, and activity log are not in the appellate 

record.
3

¶ 4 Next, the police executed a search warrant on their shared

residence, where one detective interviewed N.T.B. He admitted to

owning a Dropbox account associated with his work email address, 

which was the email address that Dropbox had provided, and 

watching pornography that others shared with him over Snapchat.

But he did not confirm the account number.

¶ 5 The prosecution charged N.T.B. with three counts of sexual 

exploitation of a child under section 18-6-403(3)(b.5), C.R.S. 2019, 

based on his possession or control of pornographic videos in the

account. 

¶ 6 Before jury selection on the morning of trial, N.T.B. moved in 

limine to exclude all records obtained from Dropbox and Comcast, 

but not the videos. He argued that these documents were business 

records that contained hearsay, which would be admissible only if

authenticated under either CRE 803(6) or by a certification that 

complied with CRE 902(11). The prosecutor had neither endorsed a 

records custodian to testify concerning the requirements of 

CRE 803(6) nor provided an affidavit and notice under CRE 902(11). 

¶ 7 The prosecutor responded that the records could be 

authenticated under CRE 901(b)(1) and (4) based on testimony from 
4

the investigating detective and distinctive information that 

connected N.T.B. to the Dropbox account obtained through the 

search warrants. He asserted that the records were not hearsay 

because “[t]here [was] no declarant” and that N.T.B. had admitted 

to owning a Dropbox account associated with his work email 

address.

¶ 8 After hearing arguments from defense counsel and the 

prosecutor, which included a proffer of the investigating detective’s 

anticipated testimony, and taking a short recess to research the 

issue, the court ruled that the records would not be admissible at 

trial. It explained that “[t]here was no one to authenticate th[e] 

documents”; additionally, the court held that these documents were 

business records which contained hearsay.4 And because the 

 

4 At one point, the court indicated, “[The prosecutor] has posed the 

notion that you can authenticate documents otherwise under [CRE] 

901, specifically [Rule] 901(4). I suppose arguably that under [Rule] 

901(b)(4) to 901(b)(1), testimony that the matter is what it is 

claimed to be . . . . Authentication can be accomplished by 

sufficient evidence to show that something is what it purports to 

be . . . .” A bit later, in the court’s analysis of People v. Marciano, 

2014 COA 92M-2, which was “the closest opinion [the court] found 

to the issue raised” in this case, the trial court adopted the 

Marciano court’s business records rationale for exclusion. 
5

prosecutor had not endorsed a custodian to testify nor provided an 

affidavit and notice, the trial court would not admit them. 

¶ 9 The prosecutor conceded that without this evidence, the case 

could not be proven, and only twelve days remained before the 

speedy trial deadline would lapse. Then the court granted N.T.B.’s 

motion to dismiss and sealed the case. 

II. Jurisdiction and Standard of Review

¶ 10 Section 16-12-102(1), C.R.S. 2019, allows the prosecution to

appeal a “final order” in a criminal case “upon any question of law.” 

An order that dismisses one or more counts of a charging document 

before trial constitutes a final order. Id.; see also People v. 

Gabriesheski, 262 P.3d 653, 656-57 (Colo. 2011) (requiring appeals 

under section 16-12-102(1) to comply with the final judgment 

requirement of C.A.R. 1). And an evidentiary ruling may be 

appealed if the trial court made its ruling based on an allegedly 

erroneous interpretation of the law. People v. Welsh, 176 P.3d 781, 

791 (Colo. App. 2007); see also Gabriesheski, 262 P.3d at 658 (“[I]t 

is enough here that [the prosecution’s issues] posed questions of 

law and arose from decisions of a criminal court that had become 

final, within the contemplation of section 16-12-102(1) . . . .”). 
6

¶ 11 “Because we must always satisfy ourselves that we have 

jurisdiction to hear an appeal, we may raise jurisdictional defects 

sua sponte, regardless of whether the parties have raised the issue.” 

People v. S.X.G., 2012 CO 5, ¶ 9. We review questions of law de 

novo. See People v. Ross, 2019 COA 79, ¶¶ 2-10, 26.

¶ 12 The trial court held the Dropbox and Comcast records were 

business records that it could not admit without testimony or an 

affidavit from the custodians. See CRE 803(6), 902(11). The court 

made no findings of fact and did not weigh the evidence proffered by 

the prosecutor. Instead it relied entirely on its interpretation of the 

rules of evidence and relevant case law. So, while the district 

attorney is appealing an evidentiary ruling, that posture does not 

preclude appellate jurisdiction under section 16-12-102(1) when the 

question presented focuses on the proper application of the 

controlling legal standard. Welsh, 176 P.3d at 792; see People v. 

McLeod, 176 P.3d 75, 76 (Colo. 2008) (holding that a trial court’s 

interpretation of the rape-shield statute presented an appealable 

question of law under section 16-12-102(1)); see also People v. 

Medina, 25 P.3d 1216, 1223 (Colo. 2001) (whether a statement 

constitutes hearsay is a legal conclusion). 
7

¶ 13 In sum, we have jurisdiction to hear this appeal.

III. Law

¶ 14 Principles of relevancy, authenticity, and hearsay govern the 

admissibility of computer-generated records. People v. Huehn, 53 

P.3d 733, 736 (Colo. App. 2002). 

A. Relevancy

¶ 15 Only relevant evidence is admissible. CRE 402. Relevant 

evidence is evidence “having 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. 

B. Authenticity

¶ 16 Authenticity is also a threshold requirement for admissibility. 

People v. Baca, 2015 COA 153, ¶ 26. The proponent may satisfy 

this requirement by presenting extrinsic evidence to show that the 

proffered evidence is what the proponent claims it to be under 

CRE 901. Huehn, 53 P.3d at 736. The burden to authenticate 

presents a low bar; “only a prima facie showing is required[.]” 

People v. Glover, 2015 COA 16, ¶ 13 (quoting United States v. 

Hassan, 742 F.3d 104, 133 (4th Cir. 2014)). Once the proponent 
8

meets this burden, the actual authenticity of the evidence and the 

effect of any defects go to the weight of evidence and not its 

admissibility. CRE 104; see People v. Lesslie, 939 P.2d 443 (Colo. 

App. 1996). 

¶ 17 CRE 901 does not definitively establish the nature or quantity

of proof required to authenticate evidence. The trial court must 

make a fact-specific determination of whether the proof advanced is 

sufficient to support a finding that the item in question is what its 

proponent claims it to be. See Colo. Citizens for Ethics in Gov’t v. 

Comm. for Am. Dream, 187 P.3d 1207, 1213 (Colo. App. 2008) 

(“Whether a proper foundation has been established is a matter 

within the sound discretion of the trial court . . . .”). CRE 901(b) 

contains a nonexhaustive list of methods to authenticate by 

extrinsic evidence. The list includes testimony by a witness with 

personal knowledge of the proffered evidence. CRE 901(b)(1). 

¶ 18 As relevant here, where a law enforcement investigator 

possesses personal knowledge that proffered evidence was produced 

in response to a search warrant, courts have allowed the

investigator to authenticate that evidence. See, e.g., United States 

v. Whitaker, 127 F.3d 595, 601 (7th Cir. 1997) (holding that the
9

prosecution properly authenticated computer records seized during 

the execution of a search warrant through the testimony of the 

officer who retrieved them); United States v. Sliker, 751 F.2d 477, 

488 (2d Cir. 1984) (allowing an investigating officer to authenticate 

bank documents obtained through a search warrant); see also 

People v. Marciano, 2014 COA 92M-2, ¶ 28 (cases from other 

jurisdictions with similar rules of evidence are instructive for

interpreting Colorado Rules of Evidence). 

¶ 19 Proponents tend to rely on CRE 901 to authenticate electronic 

communications such as emails, texts, and messages sent through 

social media platforms like Facebook. See People v. Heisler, 2017 

COA 58, ¶¶ 15-23 (text messages); Glover, ¶¶ 21-34 (Facebook 

messages); People v. Bernard, 2013 COA 79, ¶¶ 7-13 (emails).

¶ 20 But unlike emails, texts, and social media messages, 

cloud-based files lack many of the readily identifiable 

characteristics that often make authentication under CRE 901

possible. Specifically, files uploaded to remote servers are not

necessarily shared with other users, which forecloses the 

opportunity for a recipient to authenticate them. And cloud storage 

providers may not require detailed profiles of their users, which 
10

eliminates another avenue to corroborate ownership of the 

account’s contents.5 See generally Lorraine v. Markel Am. Ins. Co., 

241 F.R.D. 534, 556-59 (D. Md. 2007) (discussing authentication 

issues for electronically stored information, and noting that “courts 

‘should . . . consider the accuracy and reliability of computerized 

evidence’ in ruling on its admissibility.”) (citation omitted).6

C. Hearsay

¶ 21 Authenticity does not guarantee admissibility. See People v. 

Morise, 859 P.2d 247, 250 (Colo. App. 1993) (“[T]he mere fact that a 

document is authentic does not mean that it is also competent 

evidence of the facts contained in that document.”); see also Fed. R. 

Evid. 901(b) advisory committee’s note to 1972 proposed rules 

 

5 Dropbox, for example, only requires a name, email address, and 

password to create a free account. See Dropbox, Create an Account, 

https://perma.cc/BX5T-S6KR. 6 See also Scott A. McDonald, Authenticating Digital Evidence from 

the Cloud, Army Law. 40, 48 (2014) (concerning cloud storage, in 

“the absence of an acknowledgement of authorship and authenticity 

from a party with relevant knowledge . . . counsel should consider 

gathering additional circumstantial evidence of authenticity to 

satisfy the requirements of [Rule] 901”); Scott Moss & Ann England, 

Evidentiary Foundation and ESI, in Colo. Bar. Ass’n CLE, 

Information Security & Document Management 2/20 (July 25, 

2018) (noting that presence on the internet does not suffice to 

establish authenticity; “the proponent must show that it came from 

the person or entity alleged to be the author or owner”).
11

(“[C]ompliance with requirements of authentication . . . by no 

means assures admission of an item into evidence, as other bars, 

hearsay for example, may remain[.]”). 

¶ 22 As relevant here, authentic evidence may be excluded on the 

basis that it is hearsay. See CRE 802. Hearsay “is a 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). Still, not all computer-generated records 

constitute hearsay. Even if a party introduces a 

computer-generated record to prove the truth of its contents, that 

record may not constitute hearsay if the computer created the 

record automatically without human input or interpretation. People 

v. Hamilton, 2019 COA 101, ¶¶ 24-26.

¶ 23 In contrast to the low threshold for authentication, under 

which a court allows the jury to weigh questionably authentic 

evidence, a hearsay objection presents a binary choice — courts 

must exclude hearsay unless its proponent satisfies an exception. 

Glover, ¶ 37. 

¶ 24 Our rules of evidence recognize exceptions to the general 

prohibition against admitting hearsay for certain inherently reliable 
12

out-of-court statements. See CRE 803. One such exception allows 

courts to admit business records that meet criteria intended to 

ensure trustworthiness. See Henderson v. Master Klean Janitorial, 

Inc., 70 P.3d 612, 617 (Colo. App. 2003) (“The business records 

exception is founded on a presumption of accuracy that exists 

because the information is reported by persons trained in the

importance of precision and checked for its correctness, and 

because of the accuracy demanded by the nature of the business.”). 

Hearsay subject to the business-records exception is

[a] . . . report, record, or data compilation, in 

any form, of acts [or] events . . . made at or 

near the time by, or from information 

transmitted by, a person with knowledge, if 

kept in the course of regularly conducted 

business activity, and if it was the regular 

practice of that business activity to make the 

. . . report, record, or data compilation . . . . 

CRE 803(6).

¶ 25 Examples of computer-generated records that have satisfied

the business-records exception include invoicing data from billing 

software, activity records of an automated teller machine (ATM), 

credit card statements, and checking account statements. State ex 

rel. Coffman v. Robert J. Hopp & Assocs., LLC, 2018 COA 69M, ¶ 74 
13

(invoicing data); Marciano, ¶¶ 24-31 (checking account statements); 

Huehn, 53 P.3d at 737-38 (ATM records); People v. Berger-Levy, 677 

P.2d 351, 351-52 (Colo. App. 1983) (credit card statements).

¶ 26 Business records may contain statements made by third 

parties. Courts do not grant the same presumption of reliability to 

these statements because the third party does not have a duty to 

the business to report the information accurately. Henderson, 70 

P.3d at 617. Still, third-party statements contained in business 

records are admissible under the business-records exception when 

the third party’s information is provided as “part of a business 

relationship” between the business and third party, and evidence 

shows that the business “substantially relied” on the information. 

People in Interest of R.D.H., 944 P.2d 660, 665 (Colo. App. 1997). 

But in Glover, ¶ 21, a division of this court held that Facebook 

messages were not admissible as a third-party statement in a 

business record because “even though an arguable business 

relationship exists between Facebook and its users, there was no 

evidence presented that Facebook substantially relies for any 

business purpose on information contained in its users’ . . .

communications.” 
14

IV. Application

A. Relevancy

¶ 27 Although the videos are not in the record, the probable cause 

affidavit describes the sexually explicit content of six of them and 

observes that the females depicted appear to be between five and 

thirteen years old. Thus, the relevancy of the Dropbox and 

Comcast records that identify the account containing the videos 

and connect N.T.B. to that account could not be disputed. See

§ 18-6-403(3)(b.5) (proscribing possession of or control over 

sexually exploitive material “for any purpose”).

B. Authenticity

¶ 28 The district attorney asserts that the trial court “found the 

Dropbox records would not be admissible because there was no one 

to authenticate” them, but that it erred “in failing to consider the 

prosecution’s argument” about authentication. Whether the 

investigating officer’s testimony provided a sufficient foundation 

from which the jury could reasonably find that the Dropbox and 

Comcast records were what the prosecution purported —
15

documents generated by these entities — presents a close 

question.7

¶ 29 The scant record shows that the trial court analyzed the 

pertinent rules and acknowledged that the prosecution might have 

authenticated the Dropbox and Comcast records under either CRE

901 or CRE 902. Thus, contrary to the district attorney’s 

characterization, the trial court did consider the authentication 

argument.

¶ 30 Turning to the merits of the argument, we agree with the 

district attorney that the investigating officer’s proffered testimony 

sufficed to support a finding that the records were what the

prosecution asserted them to be, although we do so on different 

grounds than those argued by the district attorney on appeal. See 

Thyssenkrupp Safway, Inc. v. Hyland Hills Parks & Recreation Dist., 

271 P.3d 587, 589 (Colo. App. 2011) (An appellate court may affirm 

 

7 The district attorney’s brief focuses exclusively on the Dropbox 

records, but because the Comcast record provides a step in the link 

between N.T.B. and the sexually exploitive material stored on 

Dropbox, we include it in our analysis, which applies equally to the 

Comcast records.
16

a trial court’s ruling on “any grounds that are supported by the 

record.”). 

¶ 31 The district attorney’s brief leans heavily on the holding in 

Glover that Facebook messages may not be authenticated and 

admitted under CRE 803(6) or CRE 902 because they were not 

business records of Facebook. But the argument that “the Dropbox 

records . . . are similar to the Facebook entries” only goes so far. 

¶ 32 True, the pictures of N.T.B. and N.T.B.’s email address are 

arguably like Facebook messages insofar as they are all

user-generated. But N.T.B. specifically objected to “the written 

documents” — i.e., the account identification number, the account 

activity log, and the IP address used to make the uploads — which 

were generated by Dropbox and Comcast and not the account user. 

On this point, we distinguish the business records at issue here 

from the Facebook messages in Glover.

¶ 33 But recall that CRE 901 is a flexible standard. The type and 

quantity of evidence necessary to authenticate a particular piece of 

evidence will always depend on context. For electronically stored 

information that lacks an acknowledgement or other indicia of 

authorship, persuasive authority suggests that the prosecution 
17

should present evidence of accuracy and reliability to satisfy the 

requirements of CRE 901. See Lorraine, 241 F.R.D. at 558-59;

Scott A. McDonald, Authenticating Digital Evidence from the Cloud, 

Army Law. 40, 48 (2014).

¶ 34 In this case, the prosecution proffered such evidence. The 

prosecutor made an offer of proof that the investigating detective 

would testify that he caused search warrants to be issued and 

served on Dropbox and Comcast; these entities provided him with 

the records in response to the warrants; and N.T.B. acknowledged 

to the detective that he owned a Dropbox account tied to his work 

email address. So, the investigating detective had sufficient

personal knowledge indicating that the Dropbox and Comcast

records were authentic. See CRE 901(b)(1).

¶ 35 Even so, the court properly recognized that the prosecution 

must overcome the hearsay objection.

C. Hearsay

¶ 36 The Dropbox account identification number, activity log, and

associated IP address, as well as the Comcast records connecting 

the IP address to the physical address where N.T.B. resided, were

offered for the truth of the information. Through these records, 
18

Dropbox and Comcast asserted that these accounts existed, the 

Dropbox account was associated with N.T.B.’s email address, videos 

had been uploaded into that account at various times from a 

specific IP address, and the IP address was assigned to a Comcast

account at a residential street address. Simply put, what these 

records say provided essential links between N.T.B. and the videos

in the Dropbox account.

¶ 37 Recall, the district attorney asserts that these records do not 

constitute hearsay because “[t]here [was] no declarant.” To the 

extent the district attorney is arguing that Dropbox and Comcast 

created the records automatically without human input or 

interpretation, this argument falls short for two reasons. First, as 

indicated, the Dropbox and Comcast records were not included in 

the record on appeal. When material portions of the record are 

omitted, we presume that they support the trial court’s ruling. See 

People v. Duran, 2015 COA 141, ¶ 12. Second, and more 

importantly, the prosecutor’s proffer before the trial court did not 

identify any basis for concluding that the records had been 
19

generated automatically.8 Thus, the records provided by Dropbox 

and Comcast may have included human-generated input and 

interpretation. 

¶ 38 The district attorney argues that the trial court “misapplied 

the law” by holding that the Dropbox and Comcast records were 

business records “because they are content created by users, not 

the business” and because the substance of that content is not 

something upon which Dropbox “substantially relies.” But Dropbox

— not N.T.B. — generated the account identification number and

account activity log in which it recorded the IP address. Like bank 

and credit card statements in Marciano and Berger-Levy, these 

records were a compilation of data created in the regular course of 

Dropbox’s business. 

¶ 39 On this basis, the records at issue here can be distinguished 

from the Facebook messages in Glover. There, the court relied on 

the party-admission exception to overcome the defendant’s hearsay 

 

8 Consistent with People v. Hamilton, 2019 COA 101, this opinion 

does not preclude a party from offering evidence to show that 

computer records were generated automatically.
20

objection. By contrast, N.T.B. admitted only to owning a Dropbox 

account associated with his work email address.

¶ 40 So, the trial court correctly analogized the account number, 

activity log, and IP address to computer-generated account 

statements that other divisions have analyzed as business records 

in Robert J. Hopp & Assocs., Huehn, Berger-Levy, and Marciano. 

And without testimony or an affidavit from the custodians showing 

that the records were made in the regular course of business, 

inputted accurately within a reasonable amount of time, and 

transmitted by a reliable person with knowledge, the trial court 

properly excluded these records. 

¶ 41 The second part of the district attorney’s argument — that 

Dropbox and Comcast do not “substantially rely” on their records —

misapplies that legal test. This facet of the business record analysis 

applies only to information generated by a third-party. And of 

course, to maintain the integrity of numerous separate accounts, 

Dropbox and Comcast must rely on unique account numbers and 

IP addresses.

¶ 42 In the end, the trial court correctly held that the Dropbox and 

Comcast records contained inadmissible hearsay, essential to the 
21

prosecutor’s “possesses or controls” theory, which it could not 

admit without testimony from the records custodians or an 

affidavit.

V. Conclusion

¶ 43 We approve the trial court’s ruling.

JUDGE DUNN and JUDGE LIPINSKY concur.