Investigator Donahue received a cyber tip from the National Center for Missing and Exploited Children about photographs uploaded to a Dropbox account. Based on information obtained during Donahue’s investigation, police obtained a search warrant for defendant’s home, where they seized two cell phones containing sexually exploitative images and videos of children. A jury convicted defendant of eight class 4 felonies and one class 6 felony of sexual exploitation of a child.

On appeal, defendant contended that the district court erred by admitting the images found in Dropbox because they were not properly authenticated. Here, Donahue testified that he sent a records production request to Dropbox, which responded with the subscriber information for the account. It included defendant’s name, an email address, a list of IP addresses, and a thumb drive with the contents of the account. Donahue’s testimony was sufficient to authenticate the printed images as sexually exploitative images of children from the Dropbox account. Accordingly, the district court did not abuse its discretion by admitting the Dropbox images.

Defendant also argued that the district court erred by admitting certain evidence related to the cell phones. The district court did not abuse its discretion by allowing witness testimony about the data extraction reports of the cell phones or by admitting printed images from the phones as evidence.

Defendant further contended that his nine convictions were multiplicitous in violation of double jeopardy. Consistent with People v. Bott, 2020 CO 86, simultaneous possession of more than 20 sexually exploitative items constitutes a single offense, and by extension, simultaneous possession of more than one sexually exploitative video constitutes a single offense. Here, the fact that sexually exploitative material was found on three different electronic devices or storage sites, standing alone, does not establish factually distinct offenses justifying multiple convictions and punishments. Consequently, defendant’s convictions were multiplicitous and violate double jeopardy.

The convictions were merged and the case was remanded for resentencing, if necessary. The judgment was otherwise affirmed.

The Johnsons admitted their seriously ill adult daughter to Rowan Community (Rowan), a long-term care facility. As part of the admission process, Rowan’s social services director required the Johnsons to sign a stack documents, one of which was an arbitration agreement (the agreement). Either or both of the Johnsons signed the documents. The Johnsons’ daughter died less than two months later, and the Johnsons sued various entities connected to Rowan for wrongful death, among other causes of action. Rowan moved to compel arbitration based on the agreement. The district court denied the motion.

On interlocutory appeal, Rowan argued that the district court erred in declining to enforce the agreement. The Health Care Availability Act (HCAA) requires a health care provider to (1) give the patient a written copy of any arbitration agreement he or she signs and (2) itself sign the arbitration agreement. Here, Rowan did not provide the Johnsons with a written copy of the agreement, and no Rowan representative signed the agreement. Rowan did not substantially comply with the HCAA, and the agreement was unenforceable. Accordingly, the district court did not err.

            The order was affirmed.

Defend Colorado is a nonprofit organization that advocates for policies and regulations consistent with clean air legislation. The Colorado Department of Public Health and Environment (CDPHE) administers and enforces air quality control programs in Colorado. As part of its regulatory duties, CDPHE submits quarterly data of recorded levels of ozone at monitoring stations to the US Environmental Protection Agency (EPA). By May 1 of each year CDPHE must also submit to the EPA an air monitoring data certification letter certifying that its previous year’s data submissions were accurate and complete.

In February 2019, Defend Colorado petitioned the Colorado Air Quality Control Commission (Commission) to hold public hearings and issue a declaratory order requiring CDPHE to include supplemental information in its May 2019 certification intended to show the EPA that the recorded ozone levels in the Denver Metropolitan/North Front Range would have been lower, and would not have exceeded national ambient air quality standards for the 2015–17 period, if not for emissions from foreign countries and “exceptional” events such as forest fires. The Commission declined to decide the petition. Defend Colorado then brought a complaint in district court for declaratory and injunctive relief against the Commission and Governor Polis, asserting four claims for relief. The Commission and Governor Polis moved to dismiss, and the district court dismissed the petition.

            On appeal, Defend Colorado argued that the district court erred by dismissing its claims under CRCP 12(b)(1) for lack of standing. However, the certification is a ministerial function of CDPHE over which the Commission has no oversight authority. Because the Commission could not grant the relief sought in Defend Colorado’s petition, it suffered no injury to a legally protected interest and thus does not have standing to assert its first two claims. Accordingly, the district court did not err in dismissing these claims.

            Defend Colorado also argued that the district court erred by dismissing its third claim against the Governor and Commission and its fourth claim against the Governor for failure to state a claim on which relief can be granted. Defend Colorado asserted that the Governor improperly influenced the Commission in its decision to deny Defend Colorado’s petition. First, because the Commission has no oversight over the certification, no action taken by the Governor could have influenced it. Further, the complaint had no factual allegations to support its conclusory allegations. Therefore, the district court did not err in dismissing Defend Colorado’s third and fourth claims for relief because the substantive law does not support those claims.

            Defend Colorado also argued that the district court erred by dismissing its first, second, and third claims without first receiving and considering the entire certified administrative record. However, Defend Colorado provided no authority requiring a court to review the entire administrative record before deciding a threshold standing issue. Further, because the matter was resolved before an answer date was established, the record was not due under CRCP 106(1)(4)(III). Therefore, the district court did not err.

            The judgment was affirmed.

Pennington was serving time in Larimer County Community Corrections for two drug felonies. She left the facility in February 2020 and never returned. Pennington was later arrested and charged with escape, a class 3 felony. In the interim, the Prison Population Reduction and Management Act (PPRMA) became law. The PPRMA redefined felony escape so that the act of leaving and failing to return to a community corrections facility is no longer an escape and instead constitutes the new misdemeanor offense of unauthorized absence. After her arrest, Pennington moved to dismiss the felony escape charge and argued that she could only be charged with unauthorized absence. The district court denied the motion but ruled that the PPRMA applies retroactively and amended the escape charge to a charge of unauthorized absence.

            On appeal, the prosecution argued that the district court erred by applying the PPRMA retroactively. However, the PPRMA does not state that it only applies prospectively, and its changes are ameliorative in nature. Accordingly, the PPRMA applies retroactively, and the district court did not err.

            The prosecution also argued that the district court erred by amending Pennington’s charge because it violated the separation of powers between governmental entities. The district court infringed on the separation of powers when it sua sponte amended Pennington’s criminal

charge, and it therefore erred.

            The dismissal of the escape charge was affirmed. The amendment of the felony escape charge to one of unauthorized absence was reversed and the case was remanded for dismissal of the amended charge.