v. Bott , 2019 COA 100 ( 2019 )

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
July 3, 2019
2019COA100
No. 15CA2149, People v. Bott — Criminal Law — Confessions —
Corpus Delicti Rule; Crimes — Sexual Exploitation of a Child;
Constitutional Law — Fifth Amendment — Double Jeopardy —
Multiplicity
In this criminal appeal, a division of the court of appeals
concludes that the corpus delicti rule, in effect when the defendant
allegedly committed the charged offenses, applies at trial because
the supreme court’s decision abandoning the rule does not apply
retroactively. The corpus delicti rule requires that the prosecution
present evidence independent of the defendant’s confession to
establish that a crime occurred.
The defendant was charged with sexually assaulting his
newborn daughter in 2004. At the 2015 trial, in addition to the
defendant’s admission made during sex offender treatment, the
prosecution presented evidence that defendant had frequently
changed his daughter’s diaper and that, in 2014, he possessed
child pornography. The division concludes that the evidence was
insufficient to satisfy the prosecution’s burden under the corpus
delicti rule and therefore vacates the defendant’s sexual assault on
a child convictions.
The division also interprets the sexual exploitation of a child
statute to determine the unit of prosecution for possession of child
pornography. Based on the plain language, the division concludes
that the unit of prosecution is the act of possession, not the
individual image. Accordingly, defendant committed a single
offense of possession of more than twenty images, and therefore
eleven of his sexual exploitation of a child convictions must be
vacated.
COLORADO COURT OF APPEALS 2019COA100
Court of Appeals No. 15CA2149
El Paso County District Court Nos. 14CR2153 & 15CR232
Honorable Linda Billings-Vela, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Joshua Christian Bott,
Defendant-Appellant.
JUDGMENT AND SENTENCE AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE HARRIS
Richman and Tow, JJ., concur
Announced July 3, 2019
Philip J. Weiser, Attorney General, William G. Kozeliski, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 In 2004, when defendant, Joshua Christian Bott, allegedly
molested his infant daughter, Colorado firmly adhered to the
“corpus delicti” rule. That rule requires the prosecution to present
evidence other than the defendant’s confession to prove that the
crime occurred. By the time of Bott’s trial in 2015, the Colorado
Supreme Court had abandoned the corpus delicti rule and replaced
it with a “trustworthiness” standard. See People v. LaRosa, 2013
CO 2, ¶¶ 31, 38.
¶2 At trial, the prosecution introduced Bott’s written confession,
prepared as part of his sex offender treatment, as well as hundreds
of images of child pornography recovered from his computer ten
years after the alleged molestation. The jury convicted Bott of five
counts of sexual assault on a child by one in a position of trust,
twelve counts of sexual exploitation of a child related to his
possession of child pornography, and three additional counts of
sexual exploitation related to his distribution of child pornography.
¶3 On appeal, Bott argues that the supreme court’s decision
abandoning the corpus delicti rule in favor of a trustworthiness
standard did not apply retroactively; therefore, the prosecution had
to present corroborating evidence that the crime occurred and
1
because it did not the evidence was insufficient to support his
sexual assault convictions. He also argues that, under the sexual
exploitation of a child statute, his single act of possession of
hundreds of images of child pornography constitutes one crime of
possession of more than twenty items of sexually exploitative
material.
¶4 We agree with both arguments. Accordingly, we vacate Bott’s
five convictions for sexual assault on a child and eleven of his
convictions for sexual exploitation of a child, and we remand for
resentencing.1
I. Background
¶5 In 2010, Bott was in sex offender treatment, a condition of the
probationary sentence imposed after he pleaded guilty to an
unrelated class 6 felony sex offense. At trial, Bott’s therapist
testified that, to remain in treatment, the client must progress to
the satisfaction of the treatment staff. The therapist did not believe
that Bott was making sufficient progress in the disclosure phase of
treatment because he had not admitted to sexually abusing his
1Bott does not appeal his conviction for the three counts of sexual
exploitation related to distribution of child pornography.
2
daughter — to the contrary, during the several years he had been in
treatment, Bott was “adamant that he did not sexually assault [his
daughter].”
¶6 In May 2010, the therapist notified Bott in writing that he was
not progressing and that if he failed to complete the disclosure
phase by October, he would be terminated from treatment and
referred to the court “for consequences,” which might include
incarceration. By July, Bott had completed a questionnaire in
which he admitted that during the six months after his daughter
was born in June 2004, he regularly “sexually abused [her] while
changing her diaper,” by “rubb[ing] [her] vulva and buttocks with
[his] fingers.” The therapist reported the admission to the police,
but they declined to file charges.
¶7 In 2014, after Bott had been terminated from treatment,
incarcerated, and released from parole, police received information
that Bott’s computer was linked to the distribution of child
pornography. During a search of Bott’s home, police recovered a
memory card containing nearly 300 images of child pornography as
well as the questionnaire containing his written confession to
having sexually abused his infant daughter ten years earlier.
3
¶8 The People charged Bott with five counts of sexual assault on
a child, twelve counts of sexual exploitation of a child (each count
correlating to possession of more than twenty images of child
pornography), and another three counts of sexual exploitation of a
child (distribution of child pornography).
¶9 At various pretrial hearings, the prosecutor acknowledged that
the case was “based off of the treatment notes,” and that “the
information” it had about the case came from “Mr. Bott’s
statements.” The prosecutor candidly admitted that “there is very
little evidence and very little proof in this case.”
¶ 10 At trial, the prosecutor introduced (1) Bott’s written
confession; (2) the therapist’s testimony concerning the
circumstances surrounding the confession; (3) the ex-wife’s
testimony that Bott regularly changed their daughter’s diaper
during the relevant period; and (4) the images of child pornography
found on Bott’s computer in 2014. The jury convicted Bott of all
charges.
II. Sufficiency of the Evidence — Sexual Assault on a Child
¶ 11 Bott contends that the evidence was insufficient to support his
convictions for sexual assault on a child by one in a position of
4
trust because, under the corpus delicti rule, he could not be
convicted based on his confession alone and the prosecution did
not present corroborating evidence that the crime occurred.
¶ 12 Bott’s challenge to the sufficiency of the evidence raises two
questions. First, did the corpus delicti rule apply at Bott’s trial or
did the supreme court’s decision abandoning the rule apply
retroactively? And second, if the corpus delicti rule did apply, did
the prosecution present any corroborating evidence that the crime
occurred such that the evidence as a whole was sufficient to sustain
the convictions?
A. Preservation and Standard of Review
¶ 13 Before we can address the merits of Bott’s sufficiency claim,
we must determine whether, as the People contend, Bott has waived
appellate review of his claim, under either the doctrine of invited
error or general waiver principles.
1. Relevant Facts
¶ 14 The corpus delicti rule was first mentioned at the pretrial
conference. The prosecutor explained that she had “two pieces of
evidence that show that Mr. Bott was around [his daughter]. One,
his admission . . . [a]nd two, [the ex-wife’s] testimony.” She
5
intended to introduce photographs to “show and prove that Mr. Bott
was around [his daughter] at that age” and that “he did touch
[her].” The photographs were necessary, she argued, even though
“corpus delicti is dead in the state of Colorado now, so to speak.”
Neither defense counsel nor the court responded to the prosecutor’s
pronouncement.
¶ 15 At the close of the prosecution’s case, Bott moved for a
judgment of acquittal based on LaRosa. Defense counsel noted that
in LaRosa, the supreme court had abandoned the corpus delicti
rule and replaced it with the trustworthiness standard. She
explained that LaRosa involved similar facts but that the court had
not applied the trustworthiness standard to the facts in that case
because “there was an ex post facto issue with that specific
defendant.” Counsel then argued that the prosecution had failed to
demonstrate that Bott’s confession was trustworthy under LaRosa’s
new standard. The prosecutor reiterated that LaRosa “did away
with the corpus delicti rule.” She argued that the prosecution had
established the trustworthiness of the confession through the
ex-wife’s testimony that Bott changed the daughter’s diaper and the
6
introduction of the child pornography, which showed that Bott had
a sexual interest in young children.
¶ 16 The trial court denied the motion for a judgment of acquittal.
It acknowledged that the supreme court “didn’t apply their decision
[in LaRosa] retroactively”; nonetheless, the court determined that
the trustworthiness standard applied in this case and that the
standard was satisfied by evidence of Bott’s opportunity to commit
the crime and of his sexual interests.
2. Invited Error, Waiver, and Forfeiture
¶ 17 The People say that by failing to argue the applicability of the
corpus delicti rule, and instead focusing exclusively on the
trustworthiness standard, Bott is precluded from raising his
sufficiency of the evidence claim on appeal. We are not persuaded.
¶ 18 The doctrine of invited error prevents a party from complaining
on appeal of an error that he injected into the case. People v.
Rediger, 2018 CO 32, ¶ 34. Invited error is a narrow doctrine; it
applies to errors in trial strategy but not to errors based on
inadvertence or oversight. Id.; see also People v. Stewart, 55 P.3d
107, 119 (Colo. 2002).
7
¶ 19 As an initial matter, the prosecutor, not defense counsel, first
injected the error in this case. Even so, the People contend, Bott
“urged” the trial court to apply the trustworthiness standard and
that, under the invited error doctrine, he may not do “an
about-face” on appeal and argue that the corpus delicti standard
applies. That argument would have some force if Bott had “urged”
the trial court to apply one standard over the other as a matter of
trial strategy. But it seems clear to us that counsel construed
LaRosa to preclude reliance on the corpus delicti rule and to require
application of the trustworthiness standard. In any event, the trial
court was not led astray by counsel’s interpretation of LaRosa; it
independently considered the case, even referring to the language
concerning retroactivity.
¶ 20 The People’s waiver argument fares no better. Waiver is the
“intentional relinquishment of a known right or privilege.” Rediger,
¶ 39 (quoting Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo.
1984)). Thus, as a prerequisite to waiver, we must find that the
defendant (or his counsel) knew of the right before relinquishing it.
The record suggests the opposite: that “everyone involved,” see
People v. Tee, 2018 COA 84, ¶ 31, misunderstood the import or
8
scope of LaRosa’s retroactivity analysis. There is simply no
evidence that Bott “intended to relinquish his right to be tried” in
accordance with due process. Rediger, ¶ 42. Given that we must
“indulge every reasonable presumption against waiver,” id. at ¶ 39
(quoting People v. Curtis, 681 P.2d 504, 514 (Colo. 1984)), we
conclude that, under these circumstances, counsel did not
knowingly and intentionally waive any claim that the corpus delicti
rule applied. See People v. Ramirez, 2019 COA 16, ¶ 18 (where
counsel’s failure to address the error was “patently attributable to
neglect,” the instructional error was not waived).
¶ 21 We are not persuaded otherwise by the People’s citation to
People v. Murray, 2018 COA 102, and People v. Kessler, 2018 COA
60. In those cases, the divisions assumed that the defendants
knew of the error and so focused on the intentionality of the
defendants’ acquiescence. Murray, ¶¶ 43-44; Kessler, ¶¶ 37-38.
Tee is distinguishable on other grounds. There, the division
thoroughly analyzed the “knowing” component of waiver and
concluded that, while “everyone involved” in the case had correctly
assessed the relevant issue and the proper remedy, the defendant
9
had failed to seek any relief in the trial court and thus his claim
was waived. Id. at ¶¶ 31, 33, 35.
¶ 22 Still, when the defendant fails to timely assert a right, as Bott
did here, we ordinarily consider the claim forfeited and review the
claim for plain error. Rediger, ¶ 40. Bott’s claim involves the
sufficiency of the evidence to support the sexual assault
convictions, however, and we review sufficiency claims de novo.
McCoy v. People, 2019 CO 44, ¶ 34.
¶ 23 Thus, we review de novo whether the prosecution introduced
sufficient evidence under the applicable standard to support the
sexual assault convictions. If the evidence is insufficient, we must
vacate the convictions without conducting a plain error analysis.
Id. at ¶ 27.
B. Legal Background
¶ 24 Almost all courts adhere to a corroboration requirement that
prevents a defendant from being convicted of a crime based only on
his uncorroborated confession. LaRosa, ¶ 13. One such
corroboration requirement, known as the corpus delicti rule,
requires the prosecution to present independent evidence that the
crime occurred. Id. at ¶¶ 14-15. The other widely applied
10
corroboration requirement, known as the trustworthiness standard,
requires the prosecution to present independent evidence that the
confession itself is trustworthy. Id. at ¶ 21.
¶ 25 From 1872 until 2013, Colorado adhered to the corpus delicti
rule. Id. at ¶ 16. Under that rule, the prosecution must introduce
some corroborating evidence to establish (1) an injury that is
“penally proscribed — e.g., in an unlawful homicide, a person killed;
in larceny, certain property missing,” and (2) “unlawfulness of some
person’s conduct in causing that injury.” People v. Smith, 182 Colo.
31, 33, 510 P.2d 893, 894 (1973), abrogated by LaRosa, ¶ 41; see
also State v. Mauchley, 67 P.3d 477, 482 (Utah 2003) (corpus delicti
rule requires the prosecution to present corroborating evidence that
the injury or harm specified in the crime occurred and this injury or
harm was caused by someone’s criminal activity). The corpus
delicti rule was adopted in part to “reduce the possibility that a
person is convicted based on a confession to a crime that never
happened.” LaRosa, ¶ 17.
¶ 26 But the corpus delicti rule has some obvious disadvantages,
including its potential to obstruct justice in cases where, as in
LaRosa and as here, “the victim is too young to testify and no
11
tangible injury results from the alleged criminal act.” Id. at ¶ 27.
So in 2013, after carefully considering the benefits and costs of the
rule as well as the important role of stare decisis in our legal
system, the supreme court decided to abandon the corpus delicti
rule and to adopt the trustworthiness standard. Id. at ¶¶ 31, 38.
The trustworthiness standard “requires corroboration of the
confession itself rather than corroboration that a crime was
committed.” Mauchley, 67 P.3d at 488.
¶ 27 Having adopted a new corroboration rule, the court turned to
the issue of retroactivity. As a general matter, judicial decisions
apply retroactively. See Martin Marietta Corp. v. Lorenz, 823 P.2d
100, 111 (Colo. 1992). But when a decision alters a common law
doctrine of criminal law, and the alteration is unexpected and
indefensible by reference to the law in effect at the time of the
conduct at issue, retroactive application of the decision violates a
defendant’s rights under the Due Process Clause. LaRosa, ¶ 44;
see also Rogers v. Tennessee, 532 U.S. 451, 462 (2001). Thus, the
“key test in determining whether the due process clause precludes
the retrospective application of a judicial decision in a criminal case
is whether the decision was sufficiently foreseeable so that the
12
defendant had fair warning.” LaRosa, ¶ 44 (quoting Aue v. Diesslin,
798 P.2d 436, 441 (Colo. 1990)).2 The court concluded that
because Colorado had consistently applied the corpus delicti rule
for more than a century, abandonment of the rule was not
foreseeable, and therefore the defendant did not have fair warning.
Id. at ¶ 46. Under those circumstances, applying the
trustworthiness standard to the defendant would violate his due
process rights. Id.
C. Analysis
1. Does LaRosa’s New Trustworthiness Standard Apply
Retroactively to Bott?
¶ 28 The People acknowledge that the LaRosa court declined to
apply the trustworthiness standard retroactively. But they argue
that the court’s retroactivity ruling prohibits application of the new
trustworthiness standard only to trials, not to conduct, that
occurred before the change in the rule.
2“Retroactive” and “retrospective” can have different meanings
when referring to application of civil statutes, but frequently courts
use the terms interchangeably, see Ficarra v. Dep’t of Regulatory
Agencies, 849 P.2d 6, 11 (Colo. 1993), as the supreme court
appeared to do in People v. LaRosa, 2013 CO 2, ¶¶ 44, 45.
13
¶ 29 In determining whether a statute or rule operates
“retrospectively” so as to raise ex post facto or due process
concerns, the court must ask whether the new statute or rule
attaches new legal consequences to events completed before its
enactment. Landgraf v. USI Film Prods., 511 U.S. 244, 269 (1994).
The answer to that question depends on “the nature and extent of
the change in the law and the degree of connection between the
operation of the new rule and a relevant past event.” Id. at 270. As
we understand the People’s argument, they contend that because
the replacement of the corpus delicti rule with the trustworthiness
standard constituted a mere procedural change, operation of the
new rule had no connection to the defendant’s commission of the
underlying criminal conduct but only to his conduct at trial.
¶ 30 To be sure, not all judicial rule changes result in due process
violations. See Proctor v. Cockrell, 283 F.3d 726, 735 (5th Cir.
2002). “Rather only those ‘unexpected and indefensible’ judicial
changes of the type with which the Ex Post Facto Clause is
concerned violate the Due Process Clause.” Id.; see also Rogers,
532 U.S. at 456 (“[L]imitations on ex post facto judicial
decisionmaking are inherent in the notion of due process.”).
14
¶ 31 But what are the types of rules with which the Ex Post Facto
Clause and, by extension, the Due Process Clause, are concerned?
In Calder v. Bull, 3 Dall. 386, 390 (1798) (seriatim opinion), Justice
Samuel Chase identified them as follows:
1st. Every law that makes an action done
before the passing of the law, and which was
innocent when done, criminal; and punishes
such action. 2nd. Every law that aggravates a
crime, or makes it greater than it was, when
committed. 3rd. Every law that changes the
punishment, and inflicts a greater
punishment, than the law annexed to the
crime, when committed. 4th. Every law that
alters the legal rules of evidence, and receives
less, or different, testimony, than the law
required at the time of the commission of the
offence, in order to convict the offender.
¶ 32 The People are right that the Ex Post Facto Clause is not
concerned with mere procedural rules, which necessarily fall
outside Calder’s four categories. See Collins v. Youngblood, 497
U.S. 37, 46 (1990); see also State v. Jess, 184 P.3d 133, 160 (Haw.
2008) (“For a judicial decision to implicate due process concerns,
the change wrought upon the defendant’s interests must be
substantive, as opposed to procedural . . . .”).
15
¶ 33 But contrary to the People’s assertion, the corpus delicti rule
is not merely procedural.3 The LaRosa court itself rejected that
argument, observing that it had always treated the corpus delicti
rule as a “‘substantive rule of law relating to the quantum of proof
necessary to sustain a conviction’ and not a rule affecting
admissibility.” LaRosa, ¶ 42 (quoting People v. Robson, 80 P.3d
912, 913-14 (Colo. App. 2003)).
¶ 34 To the extent we needed confirmation of the proper
characterization of a corroboration rule, Carmell v. Texas, 529 U.S.
513 (2000), provides it. The defendant in that case sexually
assaulted his stepdaughter when the law required corroboration of
a victim’s testimony to convict the offender unless the victim had
reported the crime within six months or was younger than fourteen.
Id. at 516-17. But by the time of trial, the statute had been
amended to permit conviction of certain offenses on the victim’s
testimony alone. Id. at 516-18. The question was whether the
amendment could be applied at trial for offenses committed before
3 At oral argument, the People appeared to concede that the corpus
delicti rule is substantive, not procedural, but did not acknowledge
the legal consequence of the distinction.
16
its enactment without violating the defendant’s constitutional
rights. Id. at 516. The answer turned on whether the rule fell
within one of the Calder categories. The Supreme Court concluded
that it did:
[The amended corroboration rule] is
unquestionably a law ‘that alters the legal
rules of evidence, and receives less, or
different, testimony, than the law required at
the time of the commission of the offence, in
order to convict the offender.’ Under the law in
effect at the time the acts were committed, the
prosecution’s case was legally insufficient and
petitioner was entitled to a judgment of
acquittal, unless the State could produce both
the victim’s testimony and corroborative
evidence. The amended law, however, changed
the quantum of evidence necessary to sustain
a conviction; under the new law, petitioner
could be (and was) convicted on the victim’s
testimony alone, without any corroborating
evidence. Under any commonsense
understanding of Calder’s fourth category, [the
amended rule] plainly fits.
Id. at 530.
¶ 35 Like the corroboration law at issue in Carmell, the corpus
delicti rule is a sufficiency of the evidence rule. “As such, it does
not merely ‘regulate the mode in which the facts constituting guilt
may be placed before the jury,’” but instead “governs the sufficiency
of those facts for meeting the burden of proof.” Id. at 545
17
(alterations omitted) (citation omitted). And, as our supreme court
recognized, prior to LaRosa, a person would not have had fair
warning of a change in the rule. LaRosa, ¶ 46. Thus, both
elements of a due process violation are present.
¶ 36 The People counter that Bott could not possibly have relied on
the corpus delicti rule in ordering his conduct, beyond devising
litigation strategy, and thus he was only entitled to fair warning of
the rule change before his trial. According to the People, Bott could
not have known at the time he allegedly abused his daughter or at
the time he confessed that no corroborating evidence would later
emerge. But as the People conceded at oral argument, if Bott had
falsely confessed to appease his treatment provider, he surely would
have known that there was no risk that police would ever uncover
corroborating evidence.
¶ 37 In any event, the Supreme Court considered and rejected that
argument in Carmell, see 529 U.S. at 534, because the Court’s
“concern with fair notice goes beyond actual reliance,” United States
v. Lata, 415 F.3d 107, 111 (1st Cir. 2005). As the Court explained,
even apart from any claim of reliance, “[t]here is plainly a
fundamental fairness interest” in “having the government abide by
18
the rules of law it establishes to govern the circumstances under
which it can deprive a person of his or her liberty or life.” Carmell,
529 U.S. at 533.
¶ 38 Finally, we have no disagreement with the People’s assertion
that “criminal conduct is not excused merely on the basis that the
defendant did not believe the state would be able to prove the crime
in court.” But we do not find this assertion helpful to our
retroactivity analysis. It seems obvious to us that the Supreme
Court was not “excusing” the defendant’s conduct in Carmell when
it determined that retroactive application of the state’s new
corroboration law would violate his constitutional rights.
¶ 39 For these reasons, we conclude, if it was not obvious from
LaRosa itself, that the trustworthiness standard cannot be applied
retroactively to defendants, like Bott, who committed the alleged
offense before the court adopted the new standard.
2. Did the Prosecution Present Corroborating Evidence
Establishing That the Crime Was Committed?
¶ 40 Under the corpus delicti rule, the prosecution had to present
corroborative evidence that a sexual assault occurred. LaRosa,
¶ 14. While the corroborative evidence “need only be slight,” id. at
19
 ¶ 15 (quoting Neighbors v. People, 168 Colo. 319, 322, 451 P.2d
264, 265 (1969)), “we must tread carefully when evaluating the
probative weight of evidence that might provide slight
corroboration” because some evidence might indicate guilt without
establishing the corpus delicti, Allen v. Commonwealth, 752 S.E.2d
856, 860 (Va. 2014).
¶ 41 We review de novo whether the evidence is sufficient to
establish the corpus delicti of the crime. See State v. Pineda, 992
P.2d 525, 532 (Wash. Ct. App. 2000).
¶ 42 According to the People, the prosecution satisfied its burden
by introducing the following evidence to establish the corpus delicti
of a sexual assault: (1) the ex-wife’s testimony that Bott regularly
changed the daughter’s diaper in 2004 and (2) the numerous
images of child pornography downloaded by Bott in 2014.
¶ 43 That Bott changed his daughter’s diaper does not establish
that a crime occurred. See Smith, 182 Colo. at 33, 510 P.2d at 894
(under the corpus delicti rule, evidence must establish an injury
proscribed by a criminal law and unlawfulness of a person’s
conduct in causing the injury). The ex-wife did not say that she
had observed any inappropriate touching or other unusual act by
20
Bott during the diaper changes. (She did not, for example,
corroborate Bott’s statement that he had repeatedly rubbed the
baby’s vulva with his fingers.) Cf. State v. McMeans, 201 S.W.3d
117, 121 (Mo. Ct. App. 2006) (the defendant’s manner of touching
the child during a diaper change was evidence that she had
committed sexual abuse of the child). Nor did she testify that her
daughter exhibited any physical or emotional manifestation of
abuse. See id. at 119 (noting that witnesses testified that after the
defendant changed the child’s diaper, the child’s vaginal area “was
very red” and the child did not want anyone to change her and
“would fuss and fidget”). Rather, the ex-wife testified to facts that
are “just as consistent with non-commission of the offense as . . .
with its commission.” Allen, 752 S.E.2d at 860 (quoting Phillips v.
Commonwealth, 116 S.E.2d 282, 285 (Va. 1960)). Under those
circumstances, the “slight corroboration” necessary to establish the
corpus delicti “does not exist.” Id.
¶ 44 At most, the ex-wife’s testimony established Bott’s opportunity
to commit a crime. But “the mere opportunity to commit a criminal
act, standing alone, provides no proof” of the corpus delicti. State v.
Ray, 926 P.2d 904, 907 (Wash. 1996).
21
¶ 45 That leaves only the images of child pornography. In their
brief, the People repeatedly argue that the child pornography
“corroborated the defendant’s confession.” That may be true, and if
we were applying the trustworthiness standard, the outcome might
be different. But as we have explained, the corpus delicti rule
requires corroboration that a crime occurred, not corroboration of
the confession itself.
¶ 46 We do not see how the recovery of child pornography in 2014
supplies the necessary corroboration that Bott’s daughter was
sexually assaulted ten years earlier. According to the People, Bott’s
possession of the images necessarily transforms his earlier,
otherwise innocent conduct into sexual assault, thus establishing
that the crime of sexual assault on a child occurred and that the
daughter was the victim. But that is true only if every person who
has ever had (or will have in the future) an interest in child
pornography is also a child molester and, more specifically, a
molester of his own children. The prosecution did not present any
evidence to support that proposition, nor do the People cite any
supporting authority in their briefing.
22
¶ 47 At least two courts have rejected the proposition. In State v.
Delp, 178 P.3d 259 (Or. Ct. App. 2008), the defendant solicited a
purported fourteen-year-old girl (actually an FBI agent) for sex.
After tracing the computer to the defendant, agents obtained a
search warrant for his home and recovered a disk containing child
pornography. Id. at 260-61. The defendant later confessed to
performing sexual acts on his girlfriend’s one-year-old child. Id.
¶ 48 On appeal from his convictions for sodomy and sexual abuse,
the defendant argued that the prosecution had failed to satisfy its
burden under the state’s corpus delicti rule because it had not
introduced any corroborating evidence that the crimes had been
committed. Id. at 265. The state pointed to evidence that the
defendant had access to the child, child pornography was recovered
from his computer, he engaged in sexually explicit online
conversations, and a towel discovered in the girlfriend’s home
corroborated a detail in the confession. Id.
¶ 49 The appellate court reversed the convictions, concluding that
none of the evidence offered by the state “tends to demonstrate or
gives rise to an inference that the alleged victim was the subject of”
the charged offenses. Id. at 266. As the court explained,
23
no reasonable juror could infer from
defendant’s possession of child pornography,
his sexual interest in children, the existence of
a recently laundered pink towel, and
defendant’s opportunity to commit the crimes,
that the child was the victim of sodomy or
sexual abuse, whether those facts are
considered separately or together.
Id.
¶ 50 State v. Mesot, No. M200602599-CCA-R3-CD, 2008 WL
732151 (Tenn. Crim. App. Mar. 14, 2008), is also instructive. In
that case, the defendant’s wife discovered child pornography on the
couple’s computer and called the police. Id. at *1. When police
arrived, the defendant consented to a search of his computer but
informed the officers that he had “wiped” all the child pornography
from the hard drive. Nonetheless, a search uncovered five images
in a temporary file. Id. Defendant then confessed in writing to
having sexually abused his nineteen-month-old daughter. Id. at *2.
He later admitted to his wife that he had engaged in sexual conduct
with the child for six months. Id.
¶ 51 The defendant appealed his convictions for child rape,
contending that the state had failed to present evidence other than
his confession to establish the corpus delicti of the crimes. Id. at
24
 *3. The state argued that the fact of the crime was corroborated by
the defendant’s expressed interest in incest and child pornography
and the images of child pornography found on his computer. While
the court acknowledged that the corroboration of the corpus delicti
may be established solely by circumstantial evidence, it concluded
that the state had nonetheless failed to present sufficient
corroborating evidence of the crimes:
The court’s finding that the Appellant’s
“interest in child pornography” independently
corroborates the rape of the victim is
misplaced. We know of no authority which
holds that all persons who have an interest in
child pornography are also child rapists.
Thus, the finding that the Appellant had an
interest in child pornography neither “tends to
establish” nor compels the inference that the
Appellant committed the crime of rape of a
child.
Id. at *4.
¶ 52 We acknowledge that under section 16-10-301, C.R.S. 2018,
evidence of the defendant’s other “relevant” acts is generally
admissible in prosecutions of sexual offenses, including for the
purpose of proving the corpus delicti of a crime. But it does not
follow that any evidence offered pursuant to section 16-10-301 will
always be sufficient to prove the corpus delicti of a sexual offense.
25
Conversely, we do not mean to suggest that evidence offered under
the statute could never corroborate the corpus delicti of a crime.
¶ 53 We conclude only that, on this record, the evidence of Bott’s
possession of child pornography, ten years after the alleged offense,
even when considered together with the fact that he changed his
daughter’s diaper, was insufficient to prove the corpus delicti of
sexual assault on a child.
¶ 54 Accordingly, the evidence was insufficient to sustain Bott’s
convictions for sexual assault on a child by one in a position of
trust. The convictions must therefore be vacated. See LaRosa,
¶¶ 47-48.
III. Double Jeopardy
¶ 55 During the search of Bott’s home, police recovered a single
memory card containing 294 images of child pornography. The
sexual exploitation of a child statute makes the possession of child
pornography a class 5 felony, unless the person possesses more
than twenty images, in which case possession of the materials is a
class 4 felony. § 18-6-403(5)(b), C.R.S. 2018.
¶ 56 The prosecution charged Bott with twelve counts of possession
of more than twenty images of child pornography by dividing the
26
images from the memory card into separate counts. Bott contends
that the sexual exploitation of child statute treats as a single
offense the possession of more than twenty images of child
pornography. Thus, he argues, his twelve convictions and
sentences for possessing 294 images violates his rights under the
Double Jeopardy Clause. We agree.
A. Standard of Review
¶ 57 We review de novo a claim that multiplicitous convictions
violate a defendant’s constitutional protection against double
jeopardy. People v. Allman, 2017 COA 108, ¶ 12 (cert. granted on
other grounds Mar. 5, 2018).
B. Analysis
¶ 58 Multiplicity is the charging of the same offense in several
counts, culminating in multiple punishments. People v. McMinn,
2013 COA 94, ¶ 19. Multiplicitous convictions are prohibited
because they violate the constitutional prohibition against double
jeopardy. Id.
¶ 59 If a defendant is prosecuted for distinct offenses under the
same statute, as Bott was, we ascertain whether the defendant’s
double jeopardy rights were violated by determining (1) whether the
27
unit of prosecution prescribed by the legislature permits the
charging of multiple offenses and (2) whether the evidence in
support of each offense justified the charging of multiple offenses
and the imposition of multiple sentences. People v. Harris, 2016
COA 159, ¶ 40.
¶ 60 “Unit of prosecution” refers to the extent to which the relevant
statute permits the prosecution to separate the defendant’s conduct
into discrete acts for purposes of prosecuting multiple offenses.
Quintano v. People, 105 P.3d 585, 590 (Colo. 2005).
¶ 61 To determine the unit of prosecution, we look to the statute.
People v. Arzabala, 2012 COA 99, ¶ 23. In construing a statute, we
must discern and effectuate the intent of the legislature based
primarily on the plain and ordinary meaning of the statutory
language. Id.
¶ 62 Bott was charged with sexual exploitation of a child under
section 18-6-403(3)(b.5) and (5). Those statutory provisions provide
as follows:
(3) A person commits sexual exploitation of a
child if, for any purpose, he or she knowingly:
...
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(b.5) Possesses or controls any sexually
exploitative material for any purpose, except
that this subsection (3)(b.5) does not apply to
[enumerated persons].
....
(5)(b) Sexual exploitation of a child by
possession of sexually exploitative material . . .
is a class 5 felony; except that said offense is a
class 4 felony if:
(I) It is a second or subsequent offense; or
(II) The possession is of . . . more than twenty
different items qualifying as sexually
exploitative material.
Id.
¶ 63 Under the plain and unambiguous language of the statute, the
unit of prosecution is an act of possession, not an individual image.
The statute refers to the singular “possession” of sexually
exploitative material and instructs that, if “[t]he possession” is of
more than twenty images, the defendant may be punished more
severely. § 18-6-403(5)(b)(II); see State v. Liberty, 370 S.W.3d 537,
552-53 (Mo. 2012) (construing substantially similar statute to mean
that “possession of 20 or more proscribed images constitutes a
single unit of prosecution”); see also United States v. Polouizzi, 564
F.3d 142, 154-55 (2d Cir. 2009) (The unit of prosecution under a
29
statute prohibiting the possession of “1 or more books, magazines
. . . or other matter” containing child pornography is the act of
possession, not “each ‘matter’” containing an image.).
¶ 64 Citing People v. Renander, 151 P.3d 657 (Colo. App. 2006), the
People contend that a division of this court “faced the precise
question presented in this case and held that each image of
exploitative material may be charged as a separate offense.” But
Renander interpreted an earlier version of the statute that did not
include the critical language contained in the current iteration of
subsection (5)(b). And when a statute is amended, it is presumed
that the legislature intended to change the law. Robles v. People,
811 P.2d 804, 806 (Colo. 1991).
¶ 65 The Renander division analyzed the 2005 version of the
statute, which contained the following language:
The sexual exploitation of a child is a class 3
felony; except that sexual exploitation of a
child by possession of sexually exploitative
material pursuant to paragraph (b.5) of
subsection (3) of this section is a class 1
misdemeanor, but a second or subsequent
offense by such possession is a class 4 felony.
§ 18-6-403(5), C.R.S. 2005.
30
¶ 66 Because the statute did not clearly define the allowable unit of
prosecution, the division looked to the term “any sexually
exploitative material” in subsection (3)(b.5) and concluded that each
discrete item of sexually exploitative material constituted an
allowable unit of prosecution. 151 P.3d at 661-62. The division’s
analysis does not apply to the new version of the statute, however,
which clearly delineates the unit of prosecution as each act of
possession.
¶ 67 The People contend that construing the statute in this way will
lead to absurd results because a person who possesses twenty-one
images will face the same consequences as a person who possesses
21,000 images. Even assuming that our construction of the statute
gives rise to “undesirable results,” the “legislature must determine
the remedy. Courts may not rewrite statutes to improve them.”
People v. Butler, 2017 COA 117, ¶ 35 (quoting Dep’t of Transp. v.
City of Idaho Springs, 192 P.3d 490, 494 (Colo. App. 2008)).
¶ 68 And we disagree that our construction of the statute would
impermissibly constrain prosecutors’ discretionary charging
decisions. Prosecutors may continue to make charging decisions at
31
their discretion, limited only by the statutory unit of prosecution
and the prohibition against double jeopardy.
¶ 69 Under the applicable unit of prosecution, Bott’s possession of
the memory card containing 294 images subjected him to only one
conviction under section 18-6-403(3)(b.5), C.R.S. 2018. The
multiplicitous convictions therefore violated Bott’s rights under the
Double Jeopardy Clause. Accordingly, we vacate eleven of Bott’s
convictions and remand for resentencing. See People v. Johnson,
2016 COA 15, ¶ 25 (“In multicount cases, judges typically craft
sentences on the various counts as part of an overall sentencing
scheme, but when a count is vacated and that scheme unravels,
they should have the discretion to reevaluate the underlying facts
and sentences on the remaining counts.”).4
IV. Conclusion
¶ 70 Bott’s convictions for sexual assault on a child by one in a
position of trust and eleven of his convictions for sexual exploitation
of a child (possession of child pornography) are vacated. One
4 Because we remand for resentencing, we do not address Bott’s
final contention that the mittimus must be corrected to reflect the
court’s oral sentence on the sexual exploitation of a child counts.
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conviction of sexual exploitation of a child (possession of child
pornography) and the three convictions of sexual exploitation of a
child (distribution of child pornography) are affirmed. The case is
remanded to the district court for resentencing.
JUDGE RICHMAN and JUDGE TOW concur.
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