Opinion
Court of Appeals No. 20CA1326
03-09-2023
The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Tanecia QUILLEN, Defendant-Appellant.
Philip J. Weiser, Attorney General, Paul Koehler, First Assistant Attorney General, Hanna Bustillo, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Philip J. Weiser, Attorney General, Paul Koehler, First Assistant Attorney General, Hanna Bustillo, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE KUHN
¶ 1 Defendant, Tanecia Quillen, appeals her convictions on two counts of identity theft. In doing so, Quillen argues, among other things, that the trial court erred by admitting business records with an affidavit from a records custodian. Specifically, Quillen contends that the affidavit was insufficient to admit the records under CRE 803(6), the hearsay exception for records of regularly conducted activity (the business records hearsay exception), and CRE 902(11), the self-authentication rule.
¶ 2 Addressing an issue of apparent first impression in Colorado's appellate courts, we conclude that business records accompanied by a record custodian's affidavit are admissible under CRE 803(6) and 902(11).
¶ 3 We affirm the convictions, vacate the sentence, and remand for resentencing.
I. Background
¶ 4 One evening in October 2018, Lori Goodman was working at the hotel she managed when an employee reported finding a "pile of driver's licenses, [handwritten] notes [with credit card information], and Social Security cards" under a paper cutter in the communal employee office.
¶ 5 Goodman thought the handwriting in the notes matched that of Quillen, a night shift employee. At that point, Goodman called the police.
¶ 6 Police tried to contact every individual from the found identity documents, notes, and credit card information. One of those individuals, R.S., reported that his credit card had been used for Lyft rides that he didn't take. Lyft records then showed that R.S.’s credit card was connected to a Lyft account with Quillen's phone number and an email address matching her name. Additionally, this Lyft account showed rides to and from addresses associated with Quillen, including multiple rides to and from the hotel around the time of Quillen's shifts.
¶ 7 The People charged Quillen with four counts of identity theft and one count of possession of an identification document. The jury found Quillen guilty of two counts of identity theft (both as to R.S.) but acquitted her of the remaining charges. The trial court sentenced Quillen to four years of supervised probation.
¶ 8 On appeal, Quillen contends that her convictions should be reversed because the trial court erred by (1) admitting records from Lyft; (2) qualifying a detective as an expert; and (3) admitting Quillen's Division of Motor Vehicles (DMV) record. Quillen also contends that the trial court erred by sentencing her without first allowing her to speak and therefore asks us to vacate her sentence and remand the case for resentencing.
II. Lyft Records
¶ 9 Quillen first argues that the trial court erred by admitting the Lyft records. She contends that (1) the records weren't admissible under CRE 803(6), the business records hearsay exception, or CRE 902(11), the self-authentication rule; and (2) admission of the records violated her confrontation rights. We are unpersuaded.
A. Additional Facts
¶ 10 At trial, Detective Michael Allen, who responded to the hotel and investigated the case, testified. He described investigating the reportedly fraudulent Lyft charges on R.S.’s credit card.
¶ 11 More specifically, Detective Allen testified that the police obtained records it requested from Lyft showing the accounts associated with R.S.’s credit card and the rides taken using those Lyft accounts during a certain timeframe. The prosecution then sought to introduce the records Lyft produced, which included
(1) the following letter sent by email listing the associated accounts;
?
(2) an attached exhibit with the following table of information about the rides taken by "Account 4," including the pick-up and drop-off dates, times, and coordinates; and
? (3) the following signed and notarized declaration from Lyft's custodian of records.
?
¶ 12 Defense counsel objected, arguing that the records weren't admissible because they hadn't been properly authenticated and contained hearsay. Specifically, defense counsel argued that the records couldn't be self-authenticated or admitted under the business records hearsay exception because the custodian didn't certify that the table of ride information (as opposed to the information itself), was made "by [Lyft as a] regularly conducted activity as a regular practice." The trial court found that the "declaration [was] sufficient" and overruled the objection.
¶ 13 On appeal, Quillen contends that the Lyft records weren't admissible under the business records hearsay exception and self-authentication rule because (1) the table was created two months after the rides were taken; (2) the email and table were sent in response to a criminal investigation and therefore weren't "part of a regularly conducted business activity" or "kept in the course of a regularly conducted business activity"; and (3) the custodian's declaration didn't state that the email and table were written or created at the time of the Lyft rides. Quillen also contends that her confrontation rights were violated by the admission of the Lyft letter, containing the paralegal's statements, and the chart of ride information in the attached exhibit.
B. Standard of Review
¶ 14 We review the trial court's evidentiary rulings for an abuse of discretion. See Zapata v. People , 2018 CO 82, ¶ 25, 428 P.3d 517. A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair, or if it misconstrues or misapplies the law. Id. We review preserved claims of error—including Quillen's claim that the table wasn't made or kept as part of a regularly conducted business activity—for harmless error. See People v. Rodriguez , 2018 CO 13, ¶22, 411 P.3d 669. Under this standard, "an erroneous evidentiary ruling does not require reversal unless the ruling affects the accused's substantial rights." Id. Quillen's other arguments on grounds first raised on appeal are unpreserved, and we review those contentions for plain error. Hagos v. People , 2012 CO 63, ¶ 15, 288 P.3d 116 ; see People v. Ujaama , 2012 COA 36, ¶ 37, 302 P.3d 296 ("An issue is unpreserved for review when ... an objection or request was made in the trial court, but on grounds different from those raised on appeal."). An error is plain where it is obvious and so affected the basic fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. People v. Penn , 2016 CO 32, ¶ 28, 379 P.3d 298. C. Business Records and Self-Authentication
¶ 15 Hearsay—a statement other than one made by the declarant while testifying that's offered to prove the truth of the matter asserted—is generally inadmissible. CRE 801(c) ; CRE 802. But hearsay may be admitted under one of the recognized exceptions to the hearsay rule. See CRE 803.
¶ 16 Under one such exception, CRE 803(6), business records are admissible if
(1) they were made at or near the time of the matters in the records;
(2) they were prepared by, or from information transmitted by, a person "with knowledge" of the matters recorded;
(3) the person who recorded the document did so as part of a regularly conducted business activity;
(4) it was the regular practice of that business activity to make such documents; and
(5) the documents were retained and kept in the course of a regularly conducted business activity.
CRE 803(6) ; People v. Flores-Lozano , 2016 COA 149, ¶ 13, 410 P.3d 684 (citing Schmutz v. Bolles , 800 P.2d 1307, 1312 (Colo. 1990) ).
¶ 17 Colorado courts regularly admit records under this hearsay exception with the testimony of a qualified witness establishing that the records meet the above-listed requirements. But these requirements can also be shown by a certification from a records custodian that complies with the self-authentication rule, CRE 902(11). See CRE 803(6). It appears that no published decision from Colorado's appellate courts has evaluated the sufficiency of such a certification.
¶ 18 Under CRE 902(11), a record is self-authenticating if it is
accompanied by an affidavit of its custodian or other qualified person, in a manner complying with any Colorado statute or rule prescribed by the Colorado Supreme Court, certifying that the record —
(a) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
(b) was kept in the course of the regularly conducted activity; and
(c) was made by the regularly conducted activity as a regular practice.
¶ 19 As discussed, Quillen argues that the Lyft records didn't meet the requirements to be admissible under the business records hearsay exception and that they weren't self-authenticating because (1) the table was created two months after the rides were taken; (2) the email and table were sent in response to a criminal investigation and therefore weren't "part of a regularly conducted business activity" or "kept in the course of a regularly conducted business activity"; and (3) the custodian's declaration didn't state that the email and table were written or created at the time of the Lyft rides. We disagree.
Quillen did not challenge the admissibility of the underlying data contained in the table at the trial court nor does she do so here.
¶ 20 In the declaration, the custodian identified himself as Lyft's custodian of records and certified that
(1) the records were true and accurate;
(2) the copies of the records were true copies, true originals, or a true summary of the information contained in Lyft's records;
(3) the information in the records was prepared by Lyft staff or persons acting under their control;
(4) the records were prepared in the ordinary course of business and performance of their duties; and
(5) the records were prepared at or near the time of the act, condition, or events.
¶ 21 This information tracked the language of CRE 803(6) and 902(11). We therefore don't agree with Quillen that the trial court abused its discretion by admitting the Lyft records under either rule. Indeed, under the analogous federal rules of evidence, Fed. R. Evid. 803(6) (the business records hearsay exception) and Fed. R. Evid. 902(11) (the self-authentication rule), federal courts regularly admit evidence like the Lyft records at issue here—i.e., business records accompanied by a record custodian's affidavit. See, e.g. , Flores-Lozano , ¶¶ 14–17 ; Willbern v. Bayview Loan Servicing, L.L.C. , 842 F. App'x 865, 867–68 (5th Cir. 2021) (finding business record admissible under the analogous federal rule where the affiant averred that she had personal knowledge of the business records, that the records were kept in the usual course of business, and that the business relied on the records); Moore v. Metro. Life Ins. Co. , No. 18-5325, 2019 WL 1499337, *6 (6th Cir. Jan. 3, 2019) (unpublished opinion) (same); United States v. Yeley-Davis , 632 F.3d 673, 678 (10th Cir. 2011) (same); United States v. Jimenez , 513 F.3d 62, 77 (3d Cir. 2008) (same).
¶ 22 We are unpersuaded by Quillen's contention that the records weren't admissible because the letter with the attached table and the custodian's certification were completed after the Lyft rides occurred (approximately one month later and one year later, respectively). Neither CRE 803(6) nor 902(11) requires that the records custodian's certification be made contemporaneously with the records or shortly thereafter. And we agree with other courts that have concluded that when data is compiled into a spreadsheet isn't the relevant timing question under CRE 803(6). Instead, the relevant question is when "the data from which [the spreadsheet] was compiled was generated." See Flores-Lozano , ¶ 15 ; United States v. Channon , 881 F.3d 806, 811 (10th Cir. 2018) (concluding that, under the analogous federal evidence rules, the transfer of data into spreadsheets for purposes of litigation doesn't render the business records exception inapplicable); United States v. Keck , 643 F.3d 789, 797 (10th Cir. 2011) ("In the context of electronically-stored data, the business record is the datum itself, not the format in which it is printed out for trial ....").
¶ 23 Here, the Lyft records custodian certified that "the information in the attached records was prepared ... at or near the time of the act, condition, or events." (Emphasis added.) Accordingly, we don't agree with Quillen that the trial court abused its discretion by admitting the Lyft records and relying on the certification to do so. Compare Flores-Lozano , ¶ 15 (requirements for CRE 803(6) met where, among other things, a witness testified that the sale date put into the sales spreadsheet was automatically generated), and United States v. Jenkins , 540 F. App'x 893, 900–01 (10th Cir. 2014) (business records were admissible where they were accompanied by an affidavit certifying that the records met the requirements of the federal versions of the business records hearsay exception and self-authentication rules), with People v. Jaeb , 2018 COA 179, ¶ 17, 434 P.3d 785 (affidavit appraising the value of a trailer for a theft case was not admissible under the business records exception because, although it contained the appraised value at the time of the theft, the appraisal was not created "at or near" the time of the theft but was instead made more than a year and a half later (quoting CRE 803(6) ).
¶ 24 Last, to the extent that Quillen argues that the court erred by admitting the portions of the Lyft letter that didn't list the account information, we conclude that any error was harmless. Those portions of the letter indicated only that Lyft was producing the records to a detective, in response to a court order, for the purposes of Quillen's criminal investigation. This evidence was cumulative of Detective Allen's testimony about the same information. See Williams v. People , 724 P.2d 1279, 1282 (Colo. 1986) (admission of letter was harmless because it was cumulative of witness's in-court testimony); People v. Caldwell , 43 P.3d 663, 668 (Colo. App. 2001) ("[I]f the evidence is merely cumulative and does not substantially influence the verdict or affect the fairness of the trial proceedings, any error in its admission is harmless." (citing People v. Fuller , 788 P.2d 741 (Colo. 1990) )). And we don't see, and Quillen doesn't explain, how this procedural information could have substantially influenced the verdict or the fundamental fairness of the trial. See Hagos , ¶ 12. We therefore see no basis for reversal.
D. Confrontation Clause
¶ 25 Quillen next contends that the trial court violated her Confrontation Clause rights by admitting the Lyft letter, containing the paralegal's statements, and the chart of ride information in the attached exhibit.
¶ 26 The Confrontation Clause guarantees an accused the right to confront witnesses against her. See U.S. Const. amend. VI ; Colo. Const. art. II, § 16 ; Nicholls v. People , 2017 CO 71, ¶ 19, 396 P.3d 675 ; see also Melendez-Diaz v. Massachusetts , 557 U.S. 305, 309, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) ; Crawford v. Washington , 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). But the right to confront a witness is limited to testimonial statements. Crawford , 541 U.S. at 51, 124 S.Ct. 1354 ; Nicholls , ¶ 30.
¶ 27 A statement is testimonial when, viewed objectively, it is made for the purpose of prosecuting a crime and is later used at trial as a substitute for live testimony. People v. McFee , 2016 COA 97, ¶ 34, 412 P.3d 848 ; People v. Hagos , 250 P.3d 596, 621 (Colo. App. 2009) ; see also Crawford , 541 U.S. at 51–52, 124 S.Ct. 1354 (providing examples of testimonial statements).
¶ 28 We review de novo whether the trial court violated the Confrontation Clause when admitting evidence. Bernal v. People , 44 P.3d 184, 198 (Colo. 2002). Because Quillen didn't raise this challenge in the trial court, we review this contention for plain error. Hagos , 2012 CO 63, ¶ 15, 288 P.3d 116.
¶ 29 According to Quillen, the Lyft paralegal "did not provide copies of pre-existing business records," but instead "searched for information concerning specific rides on specific dates, stated what she thought was relevant to the criminal investigation, and created a customized chart." Quillen argues that an objective witness would reasonably believe that the paralegal's statements would be available for use at a later trial. Thus, Quillen contends, the Lyft records were testimonial, and the trial court erred by admitting them. We are unpersuaded.
¶ 30 Lyft's records custodian certified that the "statements" Quillen challenges as testimonial—the Lyft account information and ride data—were prepared by Lyft staff or agents "in the ordinary course of business and performance of their duties." In other words, Lyft did not track data on its rides for the purpose of proving facts at trial. Thus, Lyft's data was not testimonial for the purposes of the Confrontation Clause. See Melendez-Diaz , 557 U.S. at 324, 129 S.Ct. 2527 (noting that business records are generally admissible without confrontation because they are created for the administration of an entity's affairs, not for the purposes of proving facts at trial); see also People v. Ortega , 2016 COA 148, ¶ 13, 405 P.3d 346 (records of the defendant's phone activity weren't testimonial because, as the records custodian certified, the information was kept as a regular practice in the course of the phone company's regularly conducted business activity, not to prove a fact at trial); United States v. Smith-Kilpatrick , 942 F.3d 734, 740 (6th Cir. 2019) (same for records of phone calls, wire transfers, hotel stays, and car rentals); United States v. Towns , 718 F.3d 404, 410–11 (5th Cir. 2013) (same for pharmacy purchase logs); Yeley-Davis , 632 F.3d at 679–80 (same for phone records); United States v. Green , 396 F. App'x 573, 574–75 (11th Cir. 2010) (same for phone records).
¶ 31 And we don't agree with Quillen that, by compiling the ride data into a spreadsheet, the paralegal transformed the nontestimonial business data into a testimonial statement. See Ortega , ¶ 15 ("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."); Keck , 643 F.3d at 796 (admission of spreadsheets didn't violate the defendant's confrontation rights, although the records custodian "cut and pasted [the] information" into the spreadsheets, because the underlying data was not testimonial).
¶ 32 Based on the foregoing, we conclude that the admission of the Lyft account information and ride data in the letter and attached exhibit didn't violate Quillen's confrontation rights.
III. Expert Testimony
¶ 33 Quillen next contends the trial court erred by qualifying Detective Allen as an expert. We see no basis for reversal. A. Additional Facts
¶ 34 Before trial, the prosecution endorsed Detective Allen as an expert in fraud examination. At the start of his testimony, Detective Allen described his relevant background, including his training at the police academy, bachelor's and master's degrees in accounting (with an emphasis in fraud examination and forensic accounting for the latter), certification as a fraud examiner, and professional experience investigating fraud. The prosecutor then moved to qualify Detective Allen as an expert.
¶ 35 After additional voir dire, defense counsel objected to the qualification, arguing, as relevant here, that Detective Allen wouldn't be testifying to anything that required expertise and the qualification would "just bolster[ ]" his credibility. The trial court overruled defense counsel's objection.
B. Analysis
¶ 36 On appeal, Quillen argues that the trial court erred by qualifying Detective Allen as an expert because "[t]he prosecution's case did not require expert testimony and [Detective] Allen gave none." Because defense counsel objected to the detective testifying as an expert, we review for harmless error and will reverse only if any error substantially influenced the verdict or affected the fairness of the trial. See Hagos , ¶ 12.
¶ 37 Even if the trial court did not need to qualify Detective Allen as an expert, we conclude that any error was harmless for several reasons.
¶ 38 First, the evidence supporting Quillen's identity theft conviction for improperly possessing and using R.S.’s credit card was strong. R.S. testified that his business credit card was used for Lyft rides that he didn't take and that he had never authorized someone else to use the card. Lyft's records showed that R.S.’s credit card was connected to an account with Quillen's email address and phone number, and that Lyft account was used for rides to and from addresses associated with Quillen. See Zapata , ¶ 66 (error in the admission of evidence was harmless where the evidence of the defendant's guilt was strong).
¶ 39 Second, even if Detective Allen was given an "unnecessary aura of expertise," the jury still acquitted Quillen of all of the charges against her except those related to R.S. The split verdict shows the jurors parsed the evidence and were not unduly swayed by any improper evidence. See Martin v. People , 738 P.2d 789, 795–96 (Colo. 1987) (observing that a split verdict supports a conclusion that an evidentiary error was harmless); People v. Larsen , 2017 CO 29, ¶ 16, 393 P.3d 543 (same).
¶ 40 Third, the jurors were instructed that they were "the sole judges of the credibility of each witness and the weight to be given to the witness's testimony." See People v. Lawrence , 2019 COA 84, ¶¶ 32–35, 487 P.3d 1066 (expert witness's improper testimony was harmless where, among other things, the "jurors were instructed that they did not have to accept the testimony of any expert"), aff'd , 2021 CO 28, 486 P.3d 269. And absent evidence to the contrary, we presume that jurors follow a court's instructions. See Galvan v. People , 2020 CO 82, ¶ 29, 476 P.3d 746.
¶ 41 Last, we note that Quillen doesn't cite to a single case, and we are aware of none, where reversible error was found based on a trial court qualifying a witness as an expert and (1) the defendant contends the witness didn't provide any expert testimony; (2) the witness could properly give lay witness testimony; and (3) the defendant doesn't identify any improper testimony given by the witness. Cf. People v. Murphy , 2021 CO 22, ¶¶ 30–34, 484 P.3d 678 (defendant arguing that officer's opinion testimony amounted to improper expert testimony).
¶ 42 We therefore conclude that any error in qualifying Detective Allen as an expert didn't substantially influence the verdict or impair the trial's fairness.
IV. Division of Motor Vehicles Record
¶ 43 Quillen next argues that the trial court erred by admitting prior act evidence in her DMV record. We conclude Quillen waived this contention in the trial court. A. Additional Facts
¶ 44 At the start of Quillen's trial, the prosecutor informed the court that the People intended to introduce Quillen's "certified DMV record," which the prosecution had just received the previous day. Defense counsel objected to the admission of the record, arguing that it wasn't relevant, that it was unduly prejudicial because it showed Quillen's previous traffic convictions and revocations of her license, and the late disclosure of the record violated notice requirements.
¶ 45 The prosecutor responded that the record was "extremely relevant" because it showed Quillen's addresses, which matched the pick-up and drop-off addresses of the Lyft rides on R.S.’s credit card. "As far as the prior convictions," the prosecutor offered to redact them all, although the prosecution wanted to show that Quillen's license was suspended at the time of the Lyft rides to explain why she was using Lyft to get to and from work. However, defense counsel said he "object[ed] to any sort of modification [to the record] if it[ ] [came] in." Defense counsel argued that, if the record "comes in, it comes in as a whole."
¶ 46 The trial judge clarified defense counsel's position asking, "You don't want part of [the DMV record] without all of it, and you're objecting to it coming in as not relevant?" Defense counsel affirmed that he was objecting to the record "as not relevant as under the prejudicial and disclosing of other prior bad acts, of which was previously agreed upon that nothing of that nature was coming in by the prosecution." The trial court overruled the objection, concluding that the record was "relevant to show [Quillen's] addresses." But the court said that "[i]f there is a question of redacting anything that might be considered a prior bad act[,] then we can talk about that."
¶ 47 The prosecutor and defense counsel then discussed redacting the DMV record:
[Prosecutor]: [I]t's my understanding defense does not want to redact this document and would rather have a limiting instruction given to the jurors regarding the purposes of what this document is for, and that they're not to consider the previous convictions. My only concern with that ... is the previous record that was made regarding not wanting the prior convictions in. And so I just wanted to make sure that we're ... clear on what the record is from defense .... So my understanding is that [the defense] [is] no longer asking for it to be redacted because they don't ... want the jury to wonder about what the convictions were or what the reason behind the suspension is . [I]f that's correct then I'm fine with that .... But I would just ask that that be put on the record by [defense counsel], as well.
[Defense counsel:] Your Honor, that's correct .... [W]e had objections [to the admission of the record]. ... It's being admitted over our objections ... [s]o we'd ask that it come in in full with a limiting instruction. ...
(Emphasis added.)
¶ 48 The court then reiterated defense counsel's position:
So that the record is clear, the options were and what the Court had asked to have considered was whether or not redactions were going to be requested. Defense has made the decision not to seek redactions but instead to ask for a limiting instruction. Okay.
B. Applicable Law and Analysis
¶ 49 Quillen argues that the trial court erred by admitting the DMV record because it contained impermissible other act evidence—"that ... Quillen's license had been revoked and she had prior traffic violations"—and the prosecution failed to give proper notice of such evidence. The People contend that we shouldn't review this contention because Quillen waived it. Under these circumstances, we agree with the People.
¶ 50 "Waiver ... is ‘the intentional relinquishment of a known right or privilege.’ " People v. Rediger , 2018 CO 32, ¶ 39, 416 P.3d 893 (quoting Dep't of Health v. Donahue , 690 P.2d 243, 247 (Colo. 1984) ). We don't review arguments that are waived. People v. Johnson , 2021 COA 102, ¶ 49, 498 P.3d 157, aff'd on other grounds , 2023 CO 7, 524 P.3d 36. ¶ 51 Here, defense counsel was repeatedly offered redactions to the DMV record and counsel repeatedly said that he didn't want the record redacted. Indeed, both the court and the prosecutor asked defense counsel to confirm that the defense wasn't seeking redactions, and defense counsel told both that this was correct. In fact, defense counsel went further, explicitly saying that he wanted the record "to come in in full." See id. at ¶ 17 (concluding that defense counsel waived the defendant's right to appellate review of an issue where, among other things, it was apparent from the record that counsel knew of the error); People v. Forgette , 2023 CO 4, ¶ 34, 524 P.3d 1 (defense counsel waived objection to a sleeping juror where counsel was aware of the sleeping juror but didn't object or ask the court to address the issue); People v. Carter , 2021 COA 29, ¶ 30, 486 P.3d 473 (defense counsel waived objection to a jury instruction where she "expressly indicated that she had been through the instructions to determine which ones she ... objected to," and the court went through each instruction and the verdict forms with counsel).
¶ 52 Additionally, defense counsel indicated that he had a strategic reason for not seeking redactions; the prosecutor observed that defense counsel seemed not to want the redactions because he didn't "want the jury to wonder about what the convictions were or what the reason behind the suspension is," and defense counsel responded that "that[ ] [was] correct." See Stackhouse , ¶ 16 (concluding that defense counsel waived a contention of error in part because counsel could have had a strategic reason for not raising the issue before the trial court).
¶ 53 On this record, we conclude that Quillen waived her right to appellate review of this issue, and, therefore, we won't consider the merits of her contention. See Carter , ¶¶ 30–33 ; People in Interest of A.V. , 2018 COA 138M, ¶ 17, 446 P.3d 887 (holding that waiver occurred when defense counsel responded affirmatively to the prosecution's clarification of its understanding of the defendant's stipulation on causation); People v. Kessler , 2018 COA 60, ¶ 36, 436 P.3d 550 (determining that defense counsel waived challenge to results of breathalyzer test by agreeing that the results were admissible and that the delay in conducting the test affected only the weight of the evidence).
¶ 54 We aren't persuaded otherwise by Quillen's argument that defense counsel didn't waive the claim because counsel sought to exclude the evidence and "counsel [doesn't] waive an appellate claim by ‘trying to counteract, as best he could, whatever harm might result from the actions of the court.’ " (Citation omitted.) True, Quillen sought to exclude the entire DMV record, but the court overruled that objection, concluding that the addresses were relevant. And Quillen doesn't challenge that finding on appeal or argue that the addresses were inadmissible on any other ground. Instead, she argues only that the license revocation and other traffic offenses were unduly prejudicial and shouldn't have been admitted. Defense counsel waived any objection to that portion of the driving record when he explicitly said that he didn't want the prior traffic offenses redacted and instead wanted the document to come in as a whole.
V. Sentencing
¶ 55 Last, Quillen contends, and the People agree, that the trial court erred by not giving her an opportunity to allocute at sentencing. We also agree.
¶ 56 "[B]efore imposing [its] sentence, the court shall afford the defendant an opportunity to make a statement in his or her own behalf and to present any information in mitigation of punishment." § 16-11-102(5), C.R.S. 2022; see also Crim. P. 32(b)(1). The court must directly address the defendant or personally invite them to speak. See People v. Smalley , 2015 COA 140, ¶¶ 83–84, 369 P.3d 737.
¶ 57 Here, the record shows that the court did not clearly address Quillen or ask her to speak. We therefore vacate the sentence and remand for resentencing to allow Quillen an opportunity to speak on her own behalf.
VI. Conclusion
¶ 58 The sentence is vacated, and the judgment of conviction is affirmed in all other regards. The case is remanded to the trial court for resentencing.
JUDGE J. JONES and JUDGE TAUBMAN concur.
Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2022.