Peo v. Barnes

25CA0832 Peo v Barnes 11-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0832
City and County of Denver District Court No. 24CR5533
Honorable Marie Avery Moses, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Russell K. Barnes,

Defendant-Appellee.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE GROVE
J. Jones and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 13, 2025

John Walsh, District Attorney, Jeff M. Van der Veer, Senior Deputy District
Attorney, Denver, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, Rebecca Landry, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellee
¶1 The District Attorney for the Second Judicial District appeals

the district court’s order sanctioning the prosecution for discovery

violations and ordering it to file an amended complaint against

defendant, Russell K. Barnes, that replaces the original charge of

felony vehicular eluding with the lesser included offense of

misdemeanor reckless driving.1 We reverse and remand the case

with instructions to reinstate the original complaint.

I. Background

¶2 We draw the following facts from the affidavit and application

for Barnes’s arrest warrant.

¶3 In August 2024, police saw a black Toyota 4Runner registered

to Barnes involved in a suspected drug deal. At the time, Barnes

1 The district court imposed two separate sanctions for the

purported discovery violation, which, as we discuss below, stemmed
from a police officer’s routine deletion of bodycam footage that had
no apparent exculpatory value: (1) the reduction of the vehicular
eluding charge to reckless driving and (2) a “curative jury
instruction” that would advise the jury that “the deletion of [the
video] creates a permissive inference that the missing footage would
have reflected misconduct by the officer.” Although we conclude
that the district court incorrectly found that the prosecution had
committed a discovery violation, the District Attorney only appeals
the first of these sanctions. The instructional issue can be resolved
on remand; we do not address it further because it is beyond the
scope of this appeal.

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had multiple outstanding felony warrants for drug offenses. After

two officers watched Barnes get out of and get back into the driver’s

seat and observed two additional parties inside the vehicle, they

turned on their lights to initiate a traffic stop. The driver of the

4Runner fled, speeding through at least two red lights and nearly

causing at least one collision. The police chose not to pursue.

¶4 Several days later, Officer Jeffrey Rickard found the 4Runner

abandoned during a routine patrol. It was under an overpass

where stolen vehicles were regularly dumped. The car was

unlocked with its windows down. Rickard ran the car’s license

plate and discovered an active “attempt to locate” related to the

prior vehicular eluding incident.

¶5 Rickard activated his body camera as he conducted a search

of the 4Runner. He searched the vehicle’s interior for contraband

and safety hazards — namely, guns, drugs, money, or bodies —

before having it towed. Rickard was not looking for other evidence

that may have identified the 4Runner’s owner or who had been

driving the car when it was abandoned.

¶6 Once finished, Rickard returned to the station and tagged his

body camera footage of the search as a “non-event” since he had

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“found nothing of evidentiary value” in the 4Runner. This

designation caused the video to be automatically deleted after thirty

days.

¶7 Barnes was later arrested and charged with felony vehicular

eluding. Barnes filed a motion to dismiss the charge, arguing that

the prosecution’s failure to preserve Rickard’s body camera footage

of the 4Runner’s search amounted to a violation of his due process

right to exculpatory evidence. Barnes asserted that the deleted

body camera footage was exculpatory because it could have yielded

information about “potential suspects, or alternate suspects” in the

vehicular eluding case.

¶8 The district court held an evidentiary hearing. Barnes urged

the court to find that Rickard’s intentional deletion of the body

camera footage — together with his failure to recall whether the

interior of the 4Runner contained any indications that someone else

may have been driving the vehicle before it was abandoned —

deprived him of exculpatory evidence and thus violated his due

process rights. In response, the prosecution argued that defense

counsel was “speculat[ing]” that the deleted video may have

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included exculpatory evidence and therefore did not establish a due

process violation.

¶9 After the evidentiary hearing, the district court found that the

deletion of the footage of Rickard’s search of the 4Runner violated

Barnes’s constitutional right to due process. It reasoned that the

government suppressed evidence when it deleted the footage and

that, even though Rickard did not act in bad faith, the footage’s

exculpatory nature was apparent, given that the identity of a

vehicle’s driver is a material element of a vehicular eluding charge.

The court also found that Barnes was unable to obtain comparable

evidence since Rickard testified that he was only looking for

contraband and did not recall if there was evidence of an alternative

driver or theft in the 4Runner. As relevant to this appeal, the court

sanctioned the prosecution by dismissing the felony vehicular

eluding charge and directing the prosecution to file an amended

complaint charging Barnes only with misdemeanor reckless driving.

The prosecution appeals that order.

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II. Due Process

¶ 10 The District Attorney contends that the district court erred by

imposing sanctions for the deletion of Rickard’s body camera

footage. We agree.

A. Standard of Review and Applicable Law

¶ 11 A district attorney is authorized to appeal any decision of the

district court in a criminal case upon any question of law. Huang v.

Cnty. Ct., 98 P.3d 924, 927 (Colo. App. 2004); § 16-12-102(1),

C.R.S. 2025; see also People v. Severin, 122 P.3d 1073, 1074 (Colo.

App. 2005) (an order reducing the level of a charge is in effect a

dismissal of the greater charge and is therefore appealable under

C.A.R. 4(b)); People v. Albaugh, 949 P.2d 115, 116 (Colo. App. 1997)

(an order dismissing an information is a final judgment and,

therefore, is appealable). We review the district court’s legal

conclusions de novo, including whether the state violated a

defendant’s due process rights. People v. Eason, 2022 COA 54,

¶ 40.

¶ 12 The United States and Colorado Constitutions both guarantee

criminal defendants the right to due process of law. U.S. Const.

amend. XIV; Colo. Const. art. II, § 25. Due process requires the

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State to disclose to a criminal defendant favorable evidence that is

material either to guilt or punishment. California v. Trombetta, 467

U.S. 479, 485 (1984); People v. Braunthal, 31 P.3d 167, 172 (Colo.

2001).

¶ 13 To establish a due process violation for the prosecution’s

failure to preserve evidence, a defendant must prove that the

evidence was suppressed or destroyed by state action and that the

evidence was material. Braunthal, 31 P.3d at 172. The

government’s duty to preserve evidence is “limited to evidence that

might be expected to play a significant role in the suspect’s

defense.” Id. at 173 (quoting Trombetta, 467 U.S. at 488-89).

Therefore, the evidence “must both possess an exculpatory value

that was apparent before the evidence was destroyed, and be of

such a nature that the defendant would be unable to obtain

comparable evidence by other reasonably available means.” Id.

(quoting Trombetta, 467 U.S. at 489). Thus, under Colorado law, to

establish a due process violation for the prosecution’s failure to

preserve evidence, a defendant must prove that “(1) the evidence

was destroyed by state action; (2) the evidence possessed an

exculpatory value that was apparent before it was destroyed; and

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(3) the defendant was unable to obtain comparable evidence by

other reasonably available means.” Id.

¶ 14 “[W]hen evidence can be collected and preserved in the

performance of routine procedures by state agents, failure to do so

is tantamount to suppression of the evidence . . . .” People ex rel.

Gallagher v. Dist. Ct., 656 P.2d 1287, 1291 (Colo. 1983). Still, “the

prosecution’s duty to prevent the loss or destruction of evidence

that may be favorable to the defendant is not absolute.” Braunthal,

31 P.3d at 172. The defendant must establish all three parts of the

test to prove a due process violation. Id.

B. Analysis

¶ 15 The District Attorney contends that the district court erred by

finding that the deleted body camera footage constituted

exculpatory evidence. He maintains that the court relied on

outdated precedent in finding the footage was apparently

exculpatory and that Barnes did not carry his burden because the

footage’s evidentiary value was speculative.

¶ 16 Relying on the reasoning of People v. Holloway, 649 P.2d 318,

319 (Colo. 1982), the district court ruled that a “reasonable person”

would have appreciated the apparent exculpatory value of the body

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camera footage at the time of the search. But the Colorado

Supreme Court disavowed the “reasonable person” standard —

which stemmed from People v. Morgan, 606 P.2d 1296, 1299 (Colo.

1980) — in People v. Greathouse, 742 P.2d 334, 338-39 (Colo. 1987)

(holding that Morgan’s reasonable person standard was “unduly

expansive” and instead instructing courts to inquire if the claimed

evidence “possess[es] an exculpatory value that was apparent before

the evidence was destroyed, and [is] of such a nature that the

defendant would be unable to obtain comparable evidence by other

reasonably available means” (quoting Trombetta, 467 U.S. at 489)).2

The Greathouse court revised the standard to provide a more

“realistic way to evaluate a due process claim predicated on the

state’s duty to preserve evidence during the investigatory stage of a

case.” Id. at 338. Under Greathouse, the pivotal question is “the

state’s knowledge prior to the actual loss or destruction of the

evidence,” and not “conjectural possibilities developed months or

2 People v. Eason, 2022 COA 54, did not hold otherwise. To the
contrary, the Eason division articulated the current test for
establishing a due process violation, see id. ¶¶ 37-39, and
distinguished People v. Holloway, 649 P.2d 318, 319 (Colo. 1982),
without endorsing or applying the test outlined in that case. See
Eason, ¶ 50.

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years after the evidence is no longer available.” Id. Thus, for

evidence to be considered exculpatory, it must have had apparent

exculpatory value before it was lost or destroyed. People v. Scarlett,

985 P.2d 36, 39 (Colo. App. 1998).

¶ 17 Barnes argued, and the district court concluded, that the

deleted footage’s “apparent exculpatory value” lay in its

documentation of the 4Runner’s interior. The court reasoned that

video of Officer Rickard’s search, given where the vehicle was found,

might have captured an alternate suspect’s “driver’s license,”

“personal belongings,” or other evidence that the car was stolen or

had been driven by another during the alleged eluding incident.

But under the test outlined in Greathouse, speculation about what

exculpatory evidence the footage might have revealed is insufficient

to show its apparent exculpatory value. See Eason, ¶¶ 41-48

(inadvertent deletion of body camera footage documenting an

officer’s conversation with witnesses was not a due process violation

because the footage’s apparent exculpatory value was speculative);

People v. Wyman, 788 P.2d 1278, 1279 (Colo. 1990) (“The due

process clause of the fourteenth amendment does not invariably

require a state to preserve evidence . . . ‘of which no more can be

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said than [that] it would have been subjected to tests.’” (citation

omitted)); People v. Young, 2014 COA 169, ¶ 75 (when further DNA

testing of a piece of evidence may or may not have yielded usable

results, destruction of the evidence did not violate a defendant’s due

process rights). Thus, Barnes failed to show the deleted body

camera footage had apparent exculpatory value prior to its deletion.

¶ 18 Accordingly, because the district court applied the wrong test

for assessing a due process claim based on the destruction of

exculpatory evidence, and because Barnes’s argument that the

footage in question might have contained exculpatory evidence is

wholly speculative, the district court’s sanctions order cannot

stand.

III. Disposition

¶ 19 We reverse the district court’s order dismissing Barnes’s felony

vehicular eluding charge and remand the case for the court to

reinstate the felony vehicular eluding charge.

JUDGE J. JONES and JUDGE SCHUTZ concur.

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