People v. Robles-Sierra , 2018 COA 28 ( 2018 )

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.
SUMMARY
March 8, 2018
2018COA28
No. 15CA0683, People v. Robles-Sierra — Constitutional Law —
Sixth Amendment — Speedy and Public Trial; Crimes — Sexual
Exploitation of a Child — Sexually Exploitative Material —
Publication — Distribution
The division considers two issues of first impression in this
criminal case. First, the division considers whether the trial court
closed the courtroom in violation of defendant’s right to a public
trial when it allowed the prosecutor to show the jury portions of
exhibits containing video recordings and still images on a screen
that could not be seen by people in the courtroom gallery. The
division holds that this was not a closure of the courtroom.
Second, the division considers the meanings of “publishes”
and “distributes” in the child exploitation statute, section 18-6-
403(3)(b), C.R.S. 2017. The division holds that defendant’s
downloading of sexually exploitative material to his computer using
peer-to-peer file sharing software, and his saving of that material in
sharable files or folders accessible by others using the same
software, constituted both publishing and distributing the material
within the meaning of the statute.
COLORADO COURT OF APPEALS 2018COA28
Court of Appeals No. 15CA0683
Boulder County District Court No. 13CR1277
Honorable Andrew R. Macdonald, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Fernando Robles-Sierra,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE J. JONES
Hawthorne and Richman, JJ., concur
Announced March 8, 2018
Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Chelsea E. Mowrer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Fernando Robles-Sierra challenges his four convictions for
sexual exploitation of a child on several grounds. One is that the
district court “closed” the courtroom, in violation of his Sixth
Amendment right to a public trial, by allowing the prosecutor to
show portions of exhibits containing video recordings and still
images of children to the jurors on a screen that couldn’t be seen by
people in the courtroom gallery. This is the first time this issue has
been presented to a Colorado appellate court. We hold that no
closure occurred.
¶2 Also as a matter of first impression, we consider the meanings
of “publishes” and “distributes” in the child sexual exploitation
statute, section 18-6-403(3)(b), C.R.S. 2017, and conclude that
when defendant downloaded sexually exploitative material to his
computer using peer-to-peer file sharing software, and saved the
material in sharable files or folders accessible by others also using
such software, he both published and distributed the material.
¶3 Because we reject defendant’s other contentions as well, we
affirm.
1
I. Background
¶4 Sheriff’s department detectives found over 600 files of child
pornography — in both video recording and still image form — on
various electronic devices defendant owned.1 In each instance,
defendant had downloaded someone else’s file to his computer
using ARES peer-to-peer file sharing software. See People v. Phipps,
2016 COA 190M, ¶¶ 22-23 (describing how a similar software
program — LimeWare — works); Stickle v. Commonwealth, 808
S.E.2d 530, 532-34 (Va. Ct. App. 2017) (explaining how ARES
works). He had done so in a way that made the new file on his
computer downloadable by others using the same software; he
hadn’t chosen the option of preventing downloads from
automatically being saved in the sharable folder. As it turns out,
other users had downloaded hundreds of defendant’s files.
¶5 The People charged defendant with four counts of sexual
exploitation of a child, two each under subsections (3)(b) and
(3)(b.5) of section 18-6-403. The first two alleged that on or
between certain dates defendant knowingly prepared, arranged for,
1These included a desktop computer, a laptop computer, an
external (or portable) hard drive, and a flash (or thumb) drive.
2
published, produced, promoted, made, sold, financed, offered,
exhibited, advertised, dealt in, or distributed sexually exploitative
material. See § 18-6-403(3)(b). The last two alleged that between
certain dates defendant knowingly possessed or controlled sexually
exploitative material. See § 18-6-403(3)(b.5).
¶6 At trial, the prosecution’s theory on the charges under
subsection (3)(b) was that defendant had published, offered, and
distributed the sexually exploitative material by downloading it in a
way that others, using the file sharing software, could download it
from his computer files. The prosecution’s theory for the charges
under subsection (3)(b.5) was more straightforward: defendant
possessed the material by downloading it to his computers and by
transferring files containing the material to a thumb drive.
¶7 Defendant admitted that he’d downloaded and looked at the
sexually exploitative material. But he said he didn’t know that by
downloading the files he was distributing or possessing them. Put
simply, his defense was that he hadn’t “knowingly” violated the law,
based largely on his claimed ignorance of how ARES software
works.
¶8 A jury found defendant guilty of all four charges.
3
II. Discussion
¶9 Defendant challenges all the convictions for two reasons: (1)
the district court violated his constitutional right to a public trial by
closing the courtroom during the presentation of parts of certain
exhibits and (2) the district court erred by allowing the
prosecution’s experts to testify to ultimate legal conclusions that
were the jury’s sole prerogative to decide. He challenges his two
convictions for publishing, offering, or distributing sexually
exploitative material for two additional reasons: (3) the
prosecution’s theories of publishing and distributing were “legally
insufficient” and (4) the jury instruction defining “offer” had the
effect of directing a verdict against him on these charges. We take
up, and reject, these four challenges in turn.
A. The Court Didn’t Close the Courtroom
¶ 10 Two of the prosecution’s witnesses testified about videos and
still images taken from defendant’s devices. The discs and thumb
drive containing the videos and still images were introduced as
exhibits. Over defense counsel’s objection, the prosecutor displayed
the videos and still images using a screen that could be seen by the
witnesses and the jurors, but not by anyone in the courtroom
4
gallery. Each witness described in open court the videos and still
images, in quite graphic terms.
¶ 11 Defendant argues that the court violated his constitutional
right to a public trial because denying members of the gallery the
ability to see the videos and still images was a closing of the
courtroom, and the court failed to determine whether closing the
courtroom was proper under the factors articulated in Waller v.
Georgia, 467 U.S. 39 (1984).
1. Preservation and Standard of Review
¶ 12 The People concede, and we agree, that defendant preserved
this issue for appellate review.
¶ 13 Defendant’s argument presents issues of law — namely,
whether the court closed the courtroom and, if so, whether the
court considered and articulated appropriate factors in doing so.
We review such issues de novo. See People v. Hassen, 2015 CO 49,
¶ 5 (an appellate court reviews legal issues relating to courtroom
closure de novo).2
2 The facts relating to this issue are undisputed.
5
2. Analysis
¶ 14 The underlying premise of defendant’s argument is that the
court’s refusal to allow the members of the gallery to see the
showing of the videos and still images from the exhibits was a
closure of the courtroom. But that premise doesn’t hold up, and so
his entire argument collapses.
¶ 15 Of course, every defendant has a constitutional right to a
public trial. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16.
Excluding members of the public from the courtroom for all or a
part of a trial — commonly referred to in this context as closing the
courtroom — may infringe on that right. We say “may” because the
public trial right isn’t absolute; it may yield to competing interests.
Waller, 467 U.S. at 45; Hassen, ¶ 8. In determining whether the
right must yield in a particular circumstance, the court must
consider several factors. Waller, 467 U.S. at 48; Hassen, ¶ 9.
¶ 16 But for those factors to come into play — indeed, for the right
to a public trial to be implicated at all — there must be some
closure of the courtroom. And so we ask, “Does preventing
members of the gallery from seeing something shown to witnesses
and jurors constitute a closure?”
6
¶ 17 Defendant argues that it does because the public trial right
extends to the presentation of evidence. That argument proves too
much. To be sure, that portion of a trial when evidence is
presented should be open to the public. But it doesn’t follow that
the right extends to the viewing of all exhibits by the public as those
exhibits are introduced or discussed. Cf. State v. Russell, 357 P.3d
38, 42-43 (Wash. 2015) (though jury selection, particularly voir
dire, implicates the right to a public trial, the mere label of “jury
selection” doesn’t mean the public trial right automatically is
implicated; public trial right was not implicated by work sessions in
which judge, the defendant, and counsel dealt with preliminary
hardship issues raised by responses to juror questionnaires). After
all, “spectators often are disadvantaged in viewing trial exhibits as
they are offered and introduced.” State v. Schiefelbein, 230 S.W.3d
88, 116 (Tenn. Crim. App. 2007) (rejecting argument that the
defendant’s right to a public trial was violated when the court
screened the media and the public from seeing videotapes of a child
victim; no closure occurred).3
3 To accept defendant’s position would, in effect, require counsel or
7
¶ 18 The public trial right is concerned with the public’s presence
during (or access to) the trial. So where no one is excluded from the
courtroom, it simply isn’t implicated. See United States v.
Toschiaddi, No. NMCCA 200800044, 2009 WL 2151149, at *8-9 (N-
M. Ct. Crim. App. July 16, 2009) (court didn’t close the courtroom
by restricting visual access to screen showing images of child
pornography taken from an exhibit; spectator access to the
courtroom wasn’t limited); Schiefelbein, 230 S.W.3d at 114-16; see
also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564-74
(1980) (plurality opinion) (discussing the common law history and
evolution of the public trial right in terms of public attendance);
People v. Knapp, 495 N.Y.S.2d 985, 989 (N.Y. App. Div. 1985)
(public trial right wasn’t implicated by holding trial at a church
because public access wasn’t restricted); State v. Russell, 172 P.3d
361, 362-64 (Wash. Ct. App. 2007) (prohibiting the press from
photographing juvenile witnesses without their consent wasn’t a
closure of the courtroom because no one was prevented from
the court to distribute copies of documentary exhibits to members
of the gallery. And it would require the bailiff to pass around other
physical exhibits to members of the gallery. Historically speaking,
however, neither happens.
8
entering or leaving the courtroom). See generally 6 Wayne R.
LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal
Procedure § 24.1(a), at 351 (4th ed. 2015) (“The defendant’s right to
a public trial is adequately protected so long as there is free public
access to the trial.”).
¶ 19 The district court didn’t exclude any member of the public
during the presentation of the evidence. Anyone who cared to could
come into the courtroom, see the presentation of evidence, hear the
testimony of witnesses, and otherwise observe the goings on. In
this way, the public could see that defendant was dealt with fairly
and not unjustly condemned, the judge and attorneys were kept
keenly aware of their sense of responsibility and the importance of
their roles, and witnesses were encouraged to come forward and
testify truthfully. See Waller, 467 U.S. at 46 (identifying these
“aims and interests” as animating the public trial right).
¶ 20 In sum, because the court didn’t close the courtroom, there
wasn’t any violation of defendant’s right to a public trial.
9
B. The Experts’ Testimony Wasn’t Plain Error
¶ 21 Defendant next contends that the following testimony by the
prosecution’s experts usurped the jury’s role to decide ultimate
issues:
 Detective Shavin, a forensic computer expert, in
answering the question whether he felt there was any
need to look further after examining a computer and
thumb drive, said, “I didn’t, no. After we looked at this, I
felt like we had more than enough evidence that met the
elements of the crime.”
 Detective Shavin also said, “If [ARES] is up and running
on your computer and you have sharing enabled and you
have files in any of your shared folders, you are now
distributing those files. Those files are now available to
others to download from your computer.”
 Detective Cronce, an expert in internet crimes against
children, testified how an ARES user goes about
downloading a file kept in another ARES user’s sharable
files, showing the jury how he had downloaded files at
issue in this case. At one point, Detective Cronce said
10
the software found a file of interest that “was being
distributed” and “so it started the download.” He also
said that ARES locates a file containing an image that
likely “is being distributed somewhere else in the world.”
And he answered “yes” to the prosecutor’s question
whether once an ARES user has downloaded another
user’s file (or a part of that file) “the other computer[]
provide[s] you or distribute[s] to you that portion of the
child porn?”
 Detective Cronce, in explaining his investigative process,
said, “And once I determine that it’s a violation of 18-6-
403, which is Sexual Exploitation of a Child by
Distribution and Possession, I would go out and write
service on this IP address, I would check with the
American Registry for Internet Numbers, ARIN, and find
out who the internet service provider is by putting that IP
in.” He later testified that he contacted the internet
service provider to determine, from the Internet Protocol
(or IP) address associated with a file or files that he had
11
downloaded, the location of that IP address (which
turned out to be defendant’s street address).
1. Preservation and Standard of Review
¶ 22 Defense counsel didn’t object to any of the testimony
defendant now challenges on appeal.
¶ 23 We review a district court’s decision allowing testimony for an
abuse of discretion. See Nicholls v. People, 2017 CO 71, ¶¶ 14-17;
People v. Jimenez, 217 P.3d 841, 866 (Colo. App. 2008) (expert
testimony).4 Because defense counsel didn’t timely object, if we
determine that the district court erred, we must then decide
whether the error rises to the level of plain error. Hagos v. People,
2012 CO 63, ¶ 14; People v. Rector, 248 P.3d 1196, 1202-03 (Colo.
2011) (unpreserved claim that expert’s testimony usurped the jury’s
role is reviewable only for plain error). An error is plain only if it
was obvious and so undermined the fundamental fairness of the
4 When, as in this case, no one objected to the testimony, and
therefore the district court didn’t actually rule on its admissibility,
it’s more accurate to frame the inquiry as whether the court
would’ve abused its discretion in allowing the testimony if defense
counsel had timely objected. See People v. Davis, 2017 COA 40,
¶ 12.
12
trial as to cast serious doubt on the reliability of the conviction.
Hagos, ¶ 14.5
2. Analysis
¶ 24 “Testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate
issue to be decided by the trier of fact.” CRE 704. But a witness
may not usurp the jury’s factfinding role. See Rector, 248 P.3d at
1203; People v. Weeks, 2015 COA 77, ¶ 88.
¶ 25 There’s obvious tension between these principles. This tension
often makes separating the admissible from the inadmissible
difficult. Nonetheless, a line must be drawn. But where? To
answer that question we ask (and answer) four more. First, was the
testimony clarified on cross-examination? Second, did the
testimony express an opinion of the applicable law or legal
5 Defendant urges us to review the question whether the court erred
(as distinguished from the question whether any error requires
reversal) de novo because he challenges the testimony on
constitutional grounds. “Only those errors ‘that specifically and
directly offend a defendant’s constitutional rights are
“constitutional” in nature.’” People v. Flockhart, 2013 CO 42, ¶ 20
(quoting Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010)). It’s
unclear whether the asserted error falls within that category. But
even if we assume that it does, we reach the same conclusions.
13
standards, thereby usurping the court’s role? Third, did the court
properly instruct the jury on the law and that the jury was free to
accept or reject the testimony? And fourth, did the witness opine
that the defendant committed the crime or that it was likely the
defendant committed the crime? Rector, 248 P.3d at 1203; Weeks,
¶ 89.
¶ 26 Applying those factors to the challenged testimony, we
conclude as follows:
 Detective Shavin’s testimony that he felt he had “more
than enough evidence that met the elements of the
crime,” and Detective Cronce’s testimony about what he
would do if he determined that there was “a violation” of
the child exploitation statute, and that he followed that
process to locate the source of the IP address, were part
of the detectives’ explanations of their respective
investigations. So that testimony was likely
permissible. Cf. People v. Robinson, 226 P.3d 1145,
1150-52 (Colo. App. 2009) (informant’s statements to
police officers were admissible for nonhearsay purpose
14
of showing why they investigated the matter as they
did).
 The rest of the testimony comprised references to
“distribution,” but it’s not entirely clear that the
witnesses were using the term in the legal sense
contemplated by section 18-6-403. And some of that
testimony was in the context of explaining the way
ARES works and the course of the investigation. In
other words, considering the testimony in context, the
witnesses weren’t opining directly that defendant
distributed the files.6 And the court properly instructed
the jury on the elements of the offenses and that the
jurors could reject the experts’ testimony. For these
reasons, we think that whether this testimony usurped
the jury’s role is debatable.
¶ 27 But even if we assume all of the challenged testimony was
improper, we conclude that any error fails the plain error test.
6One of the statements was to the effect that a file is distributed
when one user downloads it from another user’s file. As discussed
below, that’s not the extent of the meaning of “distributes”
contemplated by the statute.
15
¶ 28 That the testimony about “distribution” may have been
improper certainly wasn’t obvious. See People v. Dinapoli, 2015
COA 9, ¶ 30 (“Generally, an error is obvious when the action
challenged on appeal contravenes (1) a clear statutory command; (2)
a well-settled legal principle; or (3) Colorado case law.”).
¶ 29 And none of the testimony undermines our confidence in the
verdicts. This is so for two reasons. First, recall that defendant’s
primary (and it appears only) defense was that he hadn’t knowingly
distributed or possessed the files because he didn’t know how the
ARES program worked. The experts didn’t testify at all about
defendant’s state of mind. Second, the evidence that defendant
distributed and possessed the files was overwhelming. See Martinez
v. People, 2015 CO 16, ¶ 16 (an erroneous instruction on an
element of an offense wasn’t plain error because the evidence
proving that element was overwhelming).
¶ 30 In sum, we see no plain error relating to the experts’
testimony.
16
C. The Prosecution’s Theories of “Publishes” and “Distributes”
Were Legally Sufficient
¶ 31 Under section 18-6-403(3)(b), a person commits sexual
exploitation of a child if he “knowingly . . . [p]repares, arranges for,
publishes, including but not limited to publishing through digital or
electronic means, produces, promotes, makes, sells, finances,
offers, exhibits, advertises, deals in, or distributes, including but
not limited to distributing through digital or electronic means, any
sexually exploitative material.” The court instructed the jury on the
elements of the offense, tracking the statutory language. The
element describing the prohibited acts (preparing, arranging for,
publishing, etc.) included all of the acts prohibited by the statute.
As now relevant, the court didn’t instruct the jury on the meanings
of “publishes” and “distributes.”
¶ 32 The prosecutor argued to the jury that defendant had
published, offered, and distributed the videos and still images by
using ARES to download them to a share-capable file. The jury
returned general verdicts that didn’t indicate which of these
theories it had agreed with (or whether it agreed with all of them).
17
¶ 33 Defendant argues that the prosecution’s theories of
publication and distribution were “legally insufficient” because the
mere downloading of sexually exploitative material to a share-
capable file isn’t publication or distribution, and because we don’t
know if the jury convicted on either basis or some proper basis, the
verdicts on the two subsection (3)(b) counts can’t stand. See Griffin
v. United States, 502 U.S. 46, 59 (1991); People v. Dunaway, 88
P.3d 619, 629 (Colo. 2004).
1. Preservation and Standard of Review
¶ 34 Defendant concedes, and we agree, that he didn’t preserve this
issue for appellate review.
¶ 35 Defendant couches his argument in terms of whether the
court properly instructed the jury: he says that given how the
prosecutor argued publication and distribution, the court shouldn’t
have included those theories in the elemental instruction. We see
this as more of a challenge to the prosecutor’s statements in closing
argument. (After all, the elemental instruction didn’t adopt the
prosecutor’s statements.) But be that as it may, the questions
central to resolving defendant’s contention are whether the
prosecution’s theories of publication and distribution were legally
18
correct. Those are questions of law. It’s well established that we
review questions of law, including those of statutory interpretation,
de novo. Doubleday v. People, 2016 CO 3, ¶ 19.
¶ 36 Because defendant didn’t preserve this issue, we reverse only
if any error is plain error. Hagos, ¶ 14.
2. Analysis
a. Meaning of “Publishes”
¶ 37 The statute doesn’t define “publishes.” So we look to that
term’s plain meaning, considering, of course, the context in which
the statute uses it. See Marshall v. People, 2013 CO 51, ¶ 21;
Bostelman v. People, 162 P.3d 686, 690 (Colo. 2007).
¶ 38 The term “publish” has a variety of meanings. One dictionary
includes the following:
 “to declare publicly: make generally known: DISCLOSE,
CIRCULATE”;
 “to place before the public (as through a mass medium):
DISSEMINATE”;
 “to produce for publication or allow to be issued for
distribution or sale”; and
 “to reproduce for public consumption.”
19
Webster’s Third New International Dictionary 1837 (2002). Another
defines it as “[t]o distribute copies (of a work) to the public.” Black’s
Law Dictionary 1428 (10th ed. 2014). And yet another defines it as
“[t]o prepare and issue (printed material) for public distribution or
sale.” American Heritage Dictionary 1417 (4th ed. 2000).
¶ 39 We conclude that the term “publishes” as used in section 18-
6-403(3)(b) includes within its ambit all these meanings, and
perhaps more. Such a broad reading of the term is dictated by its
context. In enacting the statute, the General Assembly declared
that “to protect children from sexual exploitation it is necessary
to . . . exclude all [sexually exploitative material depicting children]
from the channels of trade and commerce,” and that even “the mere
possession or control of any sexually exploitative material results in
continuing victimization of our children.” § 18-6-403(1), (1.5). It
therefore created three categories of prohibited acts involving those
persons not dealing directly with children used to make sexually
exploitative material — subsections (3)(b), (3)(b.5), and (3)(c).7
7Subsections (3)(a) and (3)(d) proscribe causing, inducing, enticing,
or permitting a child to engage in, or be used for, any explicit sexual
20
Subsections (3)(b.5) and (3)(c) prohibit possessing or controlling, or
possessing or controlling with the intent to deal in, sell, or
distribute, sexually explicit material, respectively. But, consistent
with the General Assembly’s goals, subsection (3)(b) goes much
further. It proscribes no fewer than thirteen different acts.
Perusing that list leaves one with the unmistakable impression that
the General Assembly sought to cut a wide swath: by using so many
different (and sometimes overlapping) terms, the General Assembly
plainly intended the statute to reach any use of sexually explicit
material beyond mere possession or control that impacts or involves
“the channels of trade and commerce.”
¶ 40 Reading “publishes” in this light, we conclude that defendant’s
use of ARES peer-to-peer file sharing software to download sexually
exploitative material onto share-capable files accessible to anyone
in the ARES network constituted publishing that material.
Defendant placed that material before the public, he allowed it to be
issued for distribution, he reproduced it for public consumption, he
conduct for the purposes of making sexually exploitative material or
producing a performance.
21
distributed copies to the public,8 and he prepared and issued it for
public consumption. And so the prosecution’s theory of “publishes”
wasn’t legally insufficient.
b. Meaning of “Distributes”
¶ 41 Again we’re confronted with determining the meaning of a
term that the General Assembly hasn’t defined. So we return to the
same principles set forth above: we consider the term’s plain
meaning in context, and we construe it broadly to effectuate the
General Assembly’s manifest intent.
¶ 42 Looking once more to various dictionaries, we see that
“distribute” can mean
 “to divide among several or many: deal out: apportion
esp. to members of a group or over a period of time,”
Webster’s Third New International Dictionary 660;
 “DISPENSE,” id.;
 “to give out or deliver esp. to the members of a group,”
id.;
8As discussed below, defendant’s conduct also constituted
distribution of sexually exploitative material.
22
 “[t]o apportion; to divide among several[;] . . . [t]o deliver,”
Black’s Law Dictionary 576; and
 “[t]o divide and dispense in portions,” American Heritage
Dictionary 525.
¶ 43 These definitions are useful, but fortunately they’re not our
only navigational tools. Other courts construing provisions similar
to ours have held that downloading child pornography onto a share-
capable file constitutes distributing that material. E.g., United
States v. Carani, 492 F.3d 867, 875-76 (7th Cir. 2007) (construing
U.S. Sentencing Guidelines Manual § 2G2.2(b)(3)(F) (U.S.
Sentencing Comm’n 2006)); United States v. Griffin, 482 F.3d 1008,
1011-12 (8th Cir. 2007) (construing U.S. Sentencing Guidelines
Manual § 2G2.2(b)(2)(B) (U.S. Sentencing Comm’n 2003)); United
States v. Shaffer, 472 F.3d 1219, 1223-24 (10th Cir. 2007)
(construing 18 U.S.C. § 2252A(a)(2)) (2006); State v. Lyons, 9 A.3d
596, 604-06 (N.J. Super. Ct. App. Div. 2010); cf. Wenger v. State,
292 S.W.3d 191, 198-99 (Tex. App. 2009) (such conduct constituted
“disseminating” child pornography).
¶ 44 Several of these cases expressly reject the same argument
defendant makes in our case — that one can’t distribute sexually
23
exploitative material (a/k/a child pornography) without “actively
transfer[ring] possession to another.” In Shaffer, for example,
Judge (now Justice) Gorsuch used the following analogy to make
the point:
It is something akin to the owner of a self-
serve gas station. The owner may not be
present at the station, and there may be no
attendant present at all. And neither the
owner nor his or her agents may ever pump
gas. But the owner has a roadside sign letting
all passersby know that, if they choose, they
can stop and fill their cars for themselves,
paying at the pump by credit card. Just
because the operation is self-serve, or in Mr.
Shaffer’s parlance, passive, we do not doubt
for a moment that the gas station owner is in
the business of “distributing,” “delivering,”
“transferring” or “dispersing” gasoline; the
raison d’etre of owning a gas station is to do
just that. So, too, a reasonable jury could find
that Mr. Shaffer welcomed people to his
computer and was quite happy to let them
take child pornography from it.
Shaffer, 472 F.3d at 1223-24.
¶ 45 Enough said. The prosecution’s theory of “distributes” passes
muster.
24
3. Synthesis
¶ 46 Because all three of the prosecution’s legal theories of liability
under subsection (3)(b) were viable,9 we aren’t faced with a situation
like that in People v. Mantos, 250 P.3d 586 (Colo. App. 2009), where
the prosecution relied on legally incorrect theories of “prepares” and
“arranges for” under the same provision. It necessarily follows that
there wasn’t any error.
D. The Instruction on “Offers” Doesn’t Require Reversal
¶ 47 The district court didn’t provide the jury with a definition of
the meaning of “offers” in subsection (3)(b). But the court did give
the jury an instruction that addressed the scope of the term as
applied to the alleged facts of this case. That instruction said,
The term “offers” in the context of sexually
exploitative materials includes making sexually
exploitative materials available or accessible to
others. In the context of a peer-to-peer file
sharing network, a defendant offers sexually
exploitative material by knowingly leaving it in
the share folder for other users to download.
This language was taken from People v. Rowe, 2012 COA 90, ¶ 13.
9 Defendant doesn’t challenge the prosecution’s legal theory of
“offers.”
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¶ 48 Defendant argues that the instruction was improper because it
goes beyond the plain and ordinary meaning of “offers” and because
it had the effect of directing a verdict against him.
1. Preservation and Standard of Review
¶ 49 These arguments aren’t preserved. At the instruction
conference, defense counsel objected that the draft instruction
tendered by the prosecution didn’t include the word “knowingly”
and objected to including the second sentence. But counsel didn’t
say why the second sentence was problematic. Nor did counsel
object that the instruction was unnecessary, that it was broader
than the plain and ordinary meaning of “offers,” or that it directed a
verdict.
¶ 50 We review the district court’s decision to give a particular jury
instruction for an abuse of discretion. People v. Gonzales, 2017
COA 62, ¶ 4; People v. Nerud, 2015 COA 27, ¶ 43. But we
determine de novo whether an instruction accurately states the law,
People v. McClelland, 2015 COA 1, ¶ 14, as we do whether an
instruction directs a verdict, see State v. Green, 896 N.W.2d 770,
775 (Iowa 2017) (“[W]hen a jury instruction implicates a
constitutional right, our review is de novo.”).
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¶ 51 Because defense counsel didn’t preserve the argument that the
instruction improperly expanded the meaning of offer beyond its
plain meaning, if we agree with the argument we will reverse only if
the error was plain. Hagos, ¶ 14. This means not only that the
error must have been obvious, but also that the record must reveal
a reasonable possibility that it contributed to the convictions.
People v. Miller, 113 P.3d 743, 750 (Colo. 2005); People v. Hoggard,
2017 COA 88, ¶ 34.
¶ 52 Defendant’s argument that the instruction directed a verdict,
however, is a different kettle of fish. Though defendant didn’t
preserve this argument, he argues that an error of this nature is
structural — that is, the error requires reversal in all
circumstances. The People counter that plain error review applies.
We needn’t resolve this dispute because we conclude that the
instruction didn’t direct a verdict.10
10Though the federal courts review even unpreserved structural
errors for plain error, Colorado hasn’t adopted that approach. See
People v. Kadell, 2017 COA 124, ¶ 56 n.10 (J. Jones, J., concurring
in part and dissenting in part).
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2. Analysis
a. Beyond Plain Meaning
¶ 53 Defendant seems to argue that the court shouldn’t have
“defined” “offers” in this way because the term has a plain and
ordinary meaning — “‘to make available or accessible’ and ‘to
present for acceptance or rejection.’” Rowe, ¶ 12 (quoting Webster’s
Third New International Dictionary 1566). But we see no error.
¶ 54 Though it’s true that “offers” has a commonly understood
meaning, and that the instruction the court gave wasn’t required,
that doesn’t mean the court abused its discretion by giving it.
Likewise, though the better practice may have been not to give the
instruction (because using excerpts from opinions in instructions
“is generally an unwise practice,” Evans v. People, 706 P.2d 795,
800 (Colo. 1985)), it doesn’t follow that the court necessarily erred
by giving it.
¶ 55 To the extent defendant argues that the instruction somehow
broadened the commonly understood meaning of “offers,” we
disagree. The instruction was an accurate statement of the law,
taken from Rowe, ¶ 13, a case remarkably similar to this one. The
instruction didn’t so much “define” “offers” as set forth a factual
28
circumstance that would fit within the plain and ordinary meaning
of “offers.”
¶ 56 In any event, any error in this regard wasn’t plain. Defendant
doesn’t argue now, and didn’t argue at trial, that his conduct fell
outside the commonly understood meaning of “offers” (it obviously
did). As noted, his defense was that he hadn’t knowingly offered the
sexually exploitative material. The instruction expressly included
that elemental requirement, as did the elemental instruction for the
offense. Therefore, we see no reasonable possibility that the
instruction contributed to the convictions under subsection (3)(b).
b. Directing a Verdict
¶ 57 Defendant argues that the instruction “told the jury that [his]
alleged conduct satisfied the ‘offer’ element, thereby directing a
verdict against” him. We don’t read the instruction that way.
¶ 58 The instruction described a factual circumstance that would
constitute an offer. But it didn’t tell the jury that any of the facts
included in the description had been proved, nor did it in any way
remove from the jury its obligation to decide whether the
prosecution had proved the elements of the offense. The fact there
was evidence from which the jury could have found the factual
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circumstance existed doesn’t mean the instruction directed a
verdict. Were defendant’s position correct, even an ordinary
definitional instruction could be viewed as “directing a verdict” if
evidence would support a finding that the definition was satisfied.
¶ 59 The case on which defendant primarily relies — People v.
Bertrand, 2014 COA 142 — is different. In that case, an instruction
erroneously explained the meaning of an element in a way that
relieved the jury of the responsibility of determining an essential
element of the offense. Id. at ¶¶ 18-20. The instruction before us
didn’t do that.
III. Conclusion
¶ 60 The judgment is affirmed.
JUDGE HAWTHORNE and JUDGE RICHMAN concur.
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