People v. Helms

COLORADO COURT OF APPEALS 2016COA90
Court of Appeals No. 14CA0862
Gilpin County District Court No. 13CR20
Honorable Philip J. McNulty, Judge
______________________________________________________________________________
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Scott Allen Helms,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE J. JONES
Lichtenstein and Dunn, JJ., concur
Announced June 16, 2016
Cynthia H. Coffman, Attorney General, Molly E. McNab, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Gregory Lansky, Alternate Defense Counsel, Aurora, Colorado, for Defendant-
Appellant
¶1 Defendant, Scott Allen Helms, appeals the district court’s
judgment of conviction entered on jury verdicts finding him guilty of
two counts of Internet sexual exploitation of a child. He also
appeals the revocation of his probation. We reverse defendant’s
conviction on one of the two counts, reverse the revocation of
defendant’s probation, and otherwise affirm. As matters of first
impression, we hold that the statute criminalizing Internet child
exploitation, section 18-3-405.4(1)(a), C.R.S. 2015, does not violate
the dormant Commerce Clause, is not unconstitutionally overbroad,
and does not violate a defendant’s right to due process.
I. Background
¶2 On February 1, 2013, defendant, then age forty-seven, started
a conversation in an Internet chat room with “Miranda.” “Miranda”
was actually Sergeant Troy Hendricks pretending to be a fourteen-
year-old girl.1 After “Miranda” moved the conversation to a private
chat, defendant asked her to take off her clothes and rub her
nipples. Defendant then asked “Miranda” if she had a younger
sister with her. “Miranda” responded that there were two other girls
1 Sergeant Hendricks was in Gilpin County, Colorado, during his
Internet and telephone communications with defendant.
1
who lived in her building, ages thirteen and twelve. Defendant
asked her to go get the other girls.
¶3 “Miranda” told defendant that “Lizzy” (also Sergeant
Hendricks) had come over and that she was twelve years old.
Defendant made the “girls” promise that they would not tell their
parents about their interaction with him. He then asked the “girls”
to take off each other’s clothes, to perform oral sex, and for
“Miranda” to insert an item into “Lizzy’s” vagina. Defendant asked
the “girls” to take photos of each other naked performing the
requested acts.
¶4 During this chat, defendant asked “Miranda” to video chat.
Sergeant Hendricks placed a piece of paper over his camera so that
defendant could not see him, and defendant assumed that
“Miranda’s” video camera did not work. Sergeant Hendricks was
able to capture a photo of defendant while defendant was trying to
video chat with the “girls.”
¶5 A few days later, on February 5, defendant started a second
chat conversation with “Miranda.” He asked “Miranda” to send him
the pictures that she had taken of herself and “Lizzy” during their
first chat conversation on February 1. Defendant told “Miranda”
2
that he loved her, wanted to “do [her],” and would buy her a plane
ticket to come visit him in Maine. He asked her if she was on birth
control. When she said yes, he told her to throw away the pills
because he wanted to impregnate her. Sergeant Hendricks gave
defendant “Miranda’s” cell phone number, saying that defendant
could text “Miranda.” Defendant sent “Miranda” a text message.
¶6 Sergeant Hendricks called defendant the next day using the
number from which “Miranda” had received a text message. The
call went to defendant’s voicemail. Defendant called Sergeant
Hendricks back later that day. When Sergeant Hendricks told
defendant that he had records of his conversations with “Miranda,”
including a picture of defendant, defendant admitted that he had
communicated with “Miranda” and had asked her to perform sexual
acts. Defendant said that he “[had] a problem” and was going to
counseling.
¶7 Sergeant Hendricks called defendant again the next day to talk
about the incident. Defendant told Sergeant Hendricks that he was
3
planning to fly “Miranda” out to visit him and hide her in a hotel.2
Defendant said that his wife would “kick [his] ass” if she were to
find out he had flown “Miranda” out to visit him.
¶8 The State initially charged defendant with eight counts of
Internet sexual exploitation of a child. See § 18-3-405.4(1)(a).
Ultimately, defendant faced only two counts. Count one charged
that defendant had violated the Internet child exploitation statute
by asking “Miranda” to “expose or touch [her] or another person’s
intimate parts while communicating with the defendant via a
computer network” on February 1, 2013. Count two charged the
same type of violation occurring on February 5, 2013. A jury
convicted defendant as charged, and the district court sentenced
him to ten years to life of supervised probation on each count, to
run concurrently.
¶9 The district court later revoked defendant’s probation when he
failed to register as a sex offender. The court resentenced
defendant to the custody of the Department of Corrections for an
indeterminate term of two years to life.
2 At this point, defendant still believed that “Miranda” was a real
fourteen-year-old girl.
4
II. Discussion
¶ 10 Defendant contends that we should reverse his convictions
because (1) section 18-3-405.4(1)(a) is unconstitutional for various
reasons; (2) the district court denied him a fair trial by admitting
“other bad act” evidence and the prosecutor engaged in misconduct
by referring to that evidence; (3) there is insufficient evidence to
support his convictions because he did not commit any criminal
acts in Colorado; (4) there is insufficient evidence to support his
conviction for count two because his alleged actions forming the
basis for count two — asking “Miranda” to send him the photos he
thought she had taken on February 1 — are not criminalized by the
Internet child exploitation statute; and (5) the district court should
have declared a mistrial when a witness mentioned another
investigation, violating the court’s prior ruling that the other
investigation should not be mentioned. Defendant also contends
that the district court erred by revoking his probation and
resentencing him without conforming to statutory requirements.
¶ 11 We agree with defendant that there is insufficient evidence to
support his conviction for count two and that the district court
5
erred in revoking his probation. We otherwise reject defendant’s
contentions.
A. Constitutionality of the Internet Child Exploitation Statute
¶ 12 The Internet child exploitation statute provides in relevant
part:
(1) An actor commits internet sexual
exploitation of a child if the actor knowingly
importunes, invites, or entices through
communication via a computer network or
system, telephone network, or data network or
by a text message or instant message, a person
whom the actor knows or believes to be under
fifteen years of age and at least four years
younger than the actor, to:
(a) Expose or touch the person’s own or
another person’s intimate parts while
communicating with the actor via a computer
network or system, telephone network, or data
network or by a text message or instant
message . . . .
§ 18-3-405.4(1)(a).
¶ 13 Defendant contends that the Internet child exploitation statute
is facially unconstitutional because it violates the so-called dormant
Commerce Clause of the United States Constitution, violates the
First Amendment because it is overly broad, and violates his
6
constitutional right to due process because it is vague.3 These
challenges fail.
1. Standard of Review
¶ 14 Defendant concedes that he did not preserve these
contentions. We will nevertheless consider them because the
factual record is sufficient to allow us to do so. See People v.
Houser, 2013 COA 11, ¶ 35; People v. Allman, 2012 COA 212, ¶ 16;
People v. Greer, 262 P.3d 920, 933-36 (Colo. App. 2011) (J. Jones,
J., specially concurring). We will do so, however, applying the plain
error standard of review. See Hagos v. People, 2012 CO 63, ¶ 14
(constitutional errors that were not preserved are reviewed for plain
error). Reversal for plain error is required only if (1) there was an
error; (2) that error was obvious; and (3) that error so undermined
the fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction. Id.
¶ 15 We review the constitutionality of a statute de novo. Hinojos-
Mendoza v. People, 169 P.3d 662, 668 (Colo. 2007). Because
statutes are presumed to be constitutional, the party challenging
3We do not read any of defendant’s arguments as as-applied
challenges to the constitutionality of the statute.
7
the facial constitutionality of a statute has the burden of showing
that the statute is unconstitutional beyond a reasonable doubt. Id.
2. Dormant Commerce Clause
¶ 16 Article I, Section 8, Clause 3 of the United States Constitution
(the Commerce Clause) authorizes Congress to “regulate Commerce
with foreign Nations, and among the several States.” Though the
Commerce Clause says nothing about the protection of interstate
commerce in the absence of any action by Congress, the Supreme
Court has held that it prohibits certain state actions that interfere
with interstate commerce. This application of the Commerce
Clause is referred to as the “dormant” Commerce Clause. Quill
Corp. v. North Dakota, 504 U.S. 298, 309 (1992).
¶ 17 “The negative or dormant implication of the Commerce Clause
prohibits state taxation or regulation that discriminates against or
unduly burdens interstate commerce and thereby ‘imped[es] free
private trade in the national marketplace.’” Gen. Motors Corp. v.
Tracy, 519 U.S. 278, 287 (1997) (alteration in original) (citations
omitted) (quoting in part Reeves, Inc. v. Stake, 447 U.S. 429, 437
(1980)). “The modern law of what has come to be called the
dormant Commerce Clause is driven by concern about ‘economic
8
protectionism — that is, regulatory measures designed to benefit in-
state economic interests by burdening out-of-state competitors.’”
Dep’t of Revenue v. Davis, 553 U.S. 328, 337-38 (2008) (quoting in
part New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273-74
(1988)).
¶ 18 Defendant argues that the Internet child exploitation statute
violates the dormant Commerce Clause because it regulates
communication occurring entirely outside of Colorado, the burdens
it places on interstate commerce outweigh any putative local
benefit, and it subjects interstate use of the Internet to inconsistent
regulation. We reject these arguments in turn.
¶ 19 Defendant is correct that a law which regulates commerce
occurring entirely outside a state’s boundaries violates the dormant
Commerce Clause. See, e.g., Healy v. Beer Inst., Inc., 491 U.S. 324,
336 (1989); Edgar v. MITE Corp., 457 U.S. 624, 641-43 (1982)
(plurality opinion). But he is not correct in asserting that section
18-3-405.4(1)(a) regulates such commerce. Though the Internet
child exploitation statute does not expressly include a territorial
limitation, such a limitation is implied by section 18-1-201, C.R.S.
2015. That statute provides that a person is subject to prosecution
9
in Colorado “for an offense which he commits . . . if,” as relevant
here, the person’s conduct “is committed either wholly or partly
within [Colorado].” § 18-1-201(1)(a). Thus, section 18-3-405.4(1)(a)
is limited to situations in which the criminal conduct occurs either
wholly or partially in Colorado. And we note that a defendant’s
conduct qualifies on that score if he sends a communication to
someone who is in Colorado. Cf. People v. Chase, 2013 COA 27,
¶¶ 11-26 (e-mail threats sent from Boston, which were opened by
the victims in Baltimore, could have caused the victims (Colorado
residents) to fear for their safety or others’ safety in Colorado).
There is no reason to suspect that Colorado law enforcement
authorities would attempt to prosecute anyone under the statute for
conduct occurring entirely outside of Colorado, in derogation of
section 18-1-201.
¶ 20 In arguing that the statute violates the dormant Commerce
Clause because it regulates communications occurring entirely
outside of Colorado, defendant relies heavily on the Tenth Circuit’s
decision in American Civil Liberties Union v. Johnson, 194 F.3d 1149
10
(10th Cir. 1999). In Johnson, the court indicated, in dictum,4 that a
New Mexico statute criminalizing the dissemination of sexual
material to minors likely violated the Commerce Clause because it
attempted to regulate activity occurring wholly outside of New
Mexico’s borders. The Tenth Circuit relied on American Libraries
Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997), in which
the court held that a law similar to New Mexico’s violated the
Commerce Clause. But as the California Court of Appeal has
pointed out in refusing to follow American Libraries Association,
where prosecution is by historical practice and by statute limited to
conduct occurring at least partially within a state, there is no
reason to suppose that prosecution for wholly extraterritorial
conduct will occur, and therefore there is no Commerce Clause
violation. Hatch v. Superior Court, 94 Cal. Rptr. 2d 453, 472-73
(Cal. Ct. App. 2000); see also People v. Hsu, 99 Cal. Rptr. 2d 184,
191-92 (Cal. Ct. App. 2000). Thus, defendant’s extraterritorial
effect argument fails.
4 See Am. Civil Liberties Union v. Johnson, 194 F.3d 1149, 1160
(10th Cir. 1999) (“[a]lthough we need not reach [the Commerce
Clause] issue”).
11
¶ 21 Defendant’s argument that the Internet child exploitation
statute places an undue burden on interstate commerce also fails.5
Again, defendant relies primarily on American Libraries Association.
But the court in American Libraries Association pointed out that the
plaintiffs in that case had not challenged the portion of the statute
prohibiting “adults from luring children into sexual contact by
communicating with them via the Internet.” 969 F. Supp. at 179.
¶ 22 In People v. Foley, 731 N.E.2d 123 (N.Y. 2000), the court
rejected a dormant Commerce Clause challenge to just such a
luring statute, one which, similar to the statute at issue in this
case, prohibits a person from using Internet communication to
“importune[], invite[], or induce[] a minor to . . . engage in a sexual
5 It does not appear that defendant argues that the Internet child
exploitation statute discriminates against interstate commerce.
But, to the extent he intends to assert that the statute
discriminates against interstate commerce, we reject any such
notion. Discrimination in this context “means differential treatment
of in-state and out-of-state economic interests that benefits the
former and burdens the latter.” Ore. Waste Sys., Inc. v. Dep’t of
Envtl. Quality, 511 U.S. 93, 99 (1994); see, e.g., Chem. Waste Mgmt.,
Inc. v. Hunt, 504 U.S. 334, 342 (1992) (Alabama statute that
imposed a higher fee for disposal of hazardous waste from other
states than it imposed for disposal of waste from Alabama was
facially discriminatory). The Internet child exploitation statute
treats intrastate and interstate communications the same.
12
performance, obscene sexual performance, or sexual conduct” for
the benefit of the person. Id. at 127 (emphasis omitted) (quoting
N.Y. Penal Law § 235.22 (McKinney 2016)). The court reasoned
that in contrast to the statute at issue in American Libraries
Association, the statute before it does not discriminate against or
burden “any legitimate commerce.” Id. at 133. Rather, “it regulates
the conduct of individuals who intend to use the Internet to
endanger the welfare of children.” Id. at 132; see also id. at 133
(activity regulated by the statute “deserves no ‘economic’
protection”).
¶ 23 In People v. Boles, 280 P.3d 55 (Colo. App. 2011), a division of
this court applied the Foley court’s reasoning in rejecting a
defendant’s contention, premised on Johnson, that section 18-3-
306, C.R.S. 2015 (the Internet child luring statute), violates the
dormant Commerce Clause. The division held that the Internet
child luring statute does not discriminate against or unduly burden
interstate commerce because it only regulates the conduct of
persons who, through sexually explicit communications sent over
the Internet, seek to endanger the welfare of children. The “luring”
requirement of the offense distinguishes it from the statute
13
addressed in Johnson. Boles, 280 P.3d at 63; see § 18-3-306(1) (the
actor must persuade or invite the minor to meet the actor for any
purpose in connection with a communication describing explicit
sexual conduct). Echoing the Foley court, the Boles division said
that it could not “ascertain any legitimate commerce that would be
derived from these communications.” 280 P.3d at 63.
¶ 24 We agree with the reasoning of Foley and Boles and conclude
that it applies with equal force to the Internet child exploitation
statute. The statute requires that an actor “importune[], invite[], or
entice[]” a child to expose or touch his or her or another’s intimate
parts while communicating with the actor. § 18-3-405.4(1)
(emphasis added). It — like the statutes at issue in Foley and
Boles, and unlike the statutes challenged in Johnson and American
Libraries Association — contains an active element which obviates
any concern about regulation of legitimate interstate commerce.
See also Hatch, 94 Cal. Rptr. 2d at 471-72 (distinguishing American
Libraries Association on the grounds the California statute requires
proof of intent to seduce).
¶ 25 We also conclude, largely for the reasons articulated above,
that the benefit of protecting children from sexual exploitation via
14
the Internet is an important state interest that outweighs any de
minimis, incidental burden that enforcing the statute could have on
interstate commerce. See Hsu, 99 Cal. Rptr. 2d at 190-91 (states
have a compelling interest in protecting minors from sexual harm,
and it is difficult to conceive of any legitimate commerce that would
be burdened by penalizing the transmission of harmful sexual
material to minors in order to seduce them); Boles, 280 P.3d at 62-
63; Foley, 731 N.E.2d at 133 (“[i]ndeed, the conduct sought to be
sanctioned by [the Internet statute protecting minors] is of the sort
that deserves no ‘economic’ protection”); see also Pike v. Bruce
Church, Inc., 397 U.S. 137, 142 (1970) (if a statute
nondiscriminatorily regulates to serve a legitimate local interest, it
does not violate the Commerce Clause unless the burden on
interstate commerce is “clearly excessive in relation to the putative
local benefits”).
¶ 26 Lastly, we are not persuaded by defendant’s argument that the
nature of the Internet dictates that regulation of activity conducted
thereby be undertaken only at the national level. The Supreme
Court has never held that a state may not regulate activity that may
also be carried on in the other states or that is carried on between
15
itself and other states. And we are persuaded by the court’s
reasoning in Hatch that “[w]hile it may be true that Internet
communications routinely pass along interstate lines,” that fact
cannot “be employed . . . to insulate pedophiles from prosecution
simply by reason of their usage of modern technology.” 94 Cal.
Rptr. 2d at 471. Further, as noted, the activity proscribed by the
statute is not legitimate commerce entitled to the protection of the
Commerce Clause.
¶ 27 In sum, we conclude that section 18-3-405.4(1)(a) does not
violate the dormant Commerce Clause
3. First Amendment/Overbreadth
¶ 28 We also reject defendant’s contention that the Internet child
exploitation statute violates the First Amendment because it
burdens a substantial amount of protected speech and is therefore
overbroad.6
6 Defendant argues in a separate section of his opening brief that
the Internet child exploitation statute violates the First Amendment
because it is not narrowly tailored to achieve a compelling state
interest. But that argument is substantively the same as his
overbreadth argument — that the statute burdens a “substantial
amount of protected speech.” Thus, we do not address that
16
¶ 29 Generally, a facial challenge to a statute can succeed only if
the challenger can show that the law is unconstitutional in all of its
applications. Dallman v. Ritter, 225 P.3d 610, 625 (Colo. 2010).
However, a showing that a statute is overbroad may be sufficient to
support a facial challenge asserting that a statute is
unconstitutional under the First Amendment. Id. A statute is
unconstitutionally overbroad only if it punishes a substantial
amount of constitutionally protected speech. Boles, 280 P.3d at 59.
If a statute meets this description, we must invalidate it unless we
can supply a limiting construction or partial invalidation that
narrows the statute’s scope to constitutionally acceptable
applications. People v. Hickman, 988 P.2d 628, 635 (Colo. 1999).
“The criterion of ‘substantial overbreadth’ precludes a court from
invalidating a statute on its face simply because of the possibility,
however slight, that it might be applied in some unconstitutional
manner . . . .” People v. Baer, 973 P.2d 1225, 1231 (Colo. 1999).
¶ 30 The substantial overbreadth doctrine applies to constitutional
challenges to statutes that prohibit “pure speech” as well as
argument separately. See People v. Graves, 2016 CO 15, ¶ 23 (the
prohibition against overbreadth derives from the First Amendment).
17
“conduct plus speech.” Hickman, 988 P.2d at 635. If a statute may
apply to protected speech, but is not substantially overbroad, then
whatever overbreadth exists should be resolved on a case-by-case
basis. Id.
¶ 31 “Sexual expression which is indecent but not obscene is
protected by the First Amendment . . . .” Sable Commc’ns of Cal.,
Inc. v. FCC, 492 U.S. 115, 126 (1989). But a state may “regulate
the content of constitutionally protected speech in order to promote
a compelling interest if it chooses the least restrictive means to
further the articulated interest.” Id.
¶ 32 Colorado unquestionably has a compelling interest in
protecting children from persons who would seek to involve them in
harmful activity. Courts have held that statutes similar to the
Internet child exploitation statute further that compelling interest.
E.g., Hsu, 99 Cal. Rptr. 2d at 194; see also Boles, 280 P.3d at 59
(the defendant conceded such an interest with respect to the
Internet child luring statute). And defendant concedes that the
Internet child exploitation statute serves a compelling interest. So
the only question remaining is whether the statute is sufficiently
narrowly tailored. It is.
18
¶ 33 We will assume, without deciding, that the Internet child
exploitation statute applies to some protected speech. See Boles,
280 P.3d at 60 (holding that the Internet child luring statute
applies, on its face, to some protected speech because it is not
content neutral and arguably applies to conduct that is not
obscene).7 But defendant fails to show that it punishes a
substantial amount of constitutionally protected speech. It
prohibits only a very specific type of communication — enticing a
child to expose or touch his or her or another’s intimate parts while
communicating with the actor via a computer, telephone, or data
network. Like the Internet child luring statute at issue in Boles, the
Internet child exploitation statute applies to speech attempting to
influence a child to do something harmful. We are not persuaded
7 However, we note that the Internet child exploitation statute’s
prohibition is narrower than that of the statute at issue in Boles,
and it may prohibit only conduct which is obscene. Compare § 18-
3-405.4(1)(a), C.R.S. 2015 (prohibiting enticing of a child to touch
his or her own, or another’s, intimate parts via a proscribed
network), with § 18-3-306(1), C.R.S. 2015 (prohibiting
communicating with a child via a proscribed network, describing
explicit sexual conduct, and, in connection with that description,
inviting the child to meet for any purpose); see Miller v. California,
413 U.S. 15, 25 (1973) (states may regulate “[p]atently offensive
representations or descriptions of ultimate sexual acts” because
such communications are obscene).
19
by defendant’s argument that the statute is overbroad because it
fails to limit culpability for such communications to those made for
some additional prurient purpose.
¶ 34 Defendant attempts to provide “everyday” examples of
innocent hypothetical communications which, he says, the Internet
child exploitation statute could be viewed as criminalizing, such as
a parent discussing birth control with his child via text message, a
parent asking his child to change clothes, or an adult asking a
babysitter to change a child’s diaper. But we are not convinced that
such communications fall within a common sense understanding of
the scope of the statute. Moreover, the statute is limited to
enticements to convince a child to engage in certain activity “while
communicating with the actor.” The examples proffered by
defendant would not satisfy that element, and we are unconvinced
that a substantial amount of protected speech would. See New
York v. Ferber, 458 U.S. 747, 773 (1982) (a child pornography
statute was not overbroad because the legitimate reach of the
statute “dwarfs its arguably impermissible applications”).
20
¶ 35 Further, in the unlikely event any non-exploitative
communication is prosecuted under the statute, that could be
handled on a case-by-case basis. See Hickman, 988 P.2d at 635.
¶ 36 Thus, we conclude that the Internet child exploitation statute
is not overbroad and therefore does not violate the First
Amendment.
4. Due Process/Vagueness
¶ 37 We also reject defendant’s contention that the Internet child
exploitation statute is vague and thus violates his right to due
process of law.
¶ 38 Procedural due process requires that laws give fair notice of
the conduct prohibited and supply adequate standards to prevent
arbitrary and discriminatory enforcement. People v. Graves, 2016
CO 15, ¶ 17; Boles, 280 P.3d at 61. A law is void for vagueness if
its prohibitions are not clearly defined and it may reasonably be
susceptible of more than one interpretation by a person of common
intelligence. Graves, ¶ 17. A law is not unconstitutionally vague,
however, merely because it could have been drafted with greater
precision; rather, it is unconstitutionally vague only if no
understandable standard of conduct is specified at all. Id. at ¶ 18.
21
When assessing a vagueness challenge, we have a duty to construe
the statute in such a way that satisfies constitutional due process
requirements if a reasonable and practical construction of the
statute will achieve such a result. Id. at ¶ 20.
¶ 39 Defendant conclusorily contends that the Internet child
exploitation statute is vague because it fails to contain a
requirement of sexual gratification, or exceptions and defenses
found in other similar statutes, which, he says, encourages
arbitrary enforcement and gives law enforcement officials too much
discretion.8
¶ 40 The Internet child exploitation statute has three distinct
elements: (1) knowingly importuning, inviting, or enticing through
communication via a computer network or system, telephone
network, or data network or by text message or instant message; (2)
a person whom the actor knows or believes to be under fifteen years
old and at least four years younger than the actor; (3) to expose or
touch the person’s own or another’s intimate parts while
8 We need not address defendant’s lack of fair notice contention
relating to count two because of our disposition regarding the
sufficiency of the evidence supporting that count.
22
communicating with the actor via one of the identified systems or
networks. These elements are clear, and defendant offers no
specific argument or example explaining how the statute could be
susceptible of more than one interpretation. We therefore conclude
that the Internet child exploitation statute provides fair notice of
what conduct is prohibited; a person of ordinary intelligence would
understand its reach. See Hsu, 99 Cal. Rptr. 2d at 196-98; Boles,
280 P.3d at 62; Foley, 731 N.E.2d at 131 (a person of ordinary
intelligence would reasonably know what the words “importune,”
“invite,” and “induce” mean and would know what conduct the
Internet luring statute is meant to prevent).
B. “Other Bad Act” Evidence
¶ 41 Defendant contends that the district court erred by admitting
CRE 404(b) bad act evidence, specifically evidence of his intent to
fly “Miranda” to Maine to visit him and to have sex with her. He
also contends that the prosecutor engaged in misconduct by
referring to this evidence. We conclude that the contested evidence
was admissible and, thus, no error in its admission or prosecutorial
misconduct occurred.
23
1. Background
¶ 42 At trial, the prosecutor introduced defendant’s recorded
second phone conversation with Sergeant Hendricks, during which
defendant said that he was going to buy “Miranda” a plane ticket to
visit him in Maine and that he would hide her from his wife in a
hotel. The prosecutor referred to defendant’s statement during his
opening and closing arguments, saying that defendant was going to
buy “Miranda” a ticket to Maine, hide her in a hotel room, and have
sex with her.
¶ 43 At trial, defense counsel argued that defendant did not
actually believe that “Miranda” was fourteen years old but was an
adult who was role-playing, and that all of their communications
were part of the fantasy role-playing.
2. Standard of Review and Applicable Law
¶ 44 Defendant’s counsel did not object to the admission of the
second phone call or the prosecutor’s argument referencing
defendant’s plan for “Miranda” at trial. Thus, defendant’s
24
contentions are unpreserved and we review them for plain error.
People v. Wentling, 2015 COA 172, ¶ 26.9
¶ 45 We review a district court’s evidentiary rulings for an abuse of
discretion. Yusem v. People, 210 P.3d 458, 463 (Colo. 2009); People
v. Munoz-Casteneda, 2012 COA 109, ¶ 7. A court abuses its
discretion if its decision is manifestly arbitrary, unreasonable, or
unfair, or based on a misapprehension of the law. See People v.
Chavez, 190 P.3d 760, 765 (Colo. App. 2007); see also People v.
Muniz, 190 P.3d 774, 781 (Colo. App. 2008).
¶ 46 All relevant evidence is admissible unless otherwise prohibited
by law. CRE 402. “‘Relevant evidence’ means evidence having any
tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than
it would be without the evidence.” CRE 401.
¶ 47 CRE 404(b) provides:
9 Although defendant contends that he preserved his objection to
the admission of the contested evidence by filing a request for
notice of CRE 404(b) evidence prior to trial, because we conclude
that this evidence is not CRE 404(b) evidence, any filing relating to
CRE 404(b) evidence would not apply. Even if it did, we would
review for plain error due to defendant’s failure to object to the
admission of the evidence as CRE 404(b) evidence at trial since the
district court had not ruled on the issue. See CRE 103(a)(2).
25
Other Crimes, Wrongs, or Acts. Evidence of
other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to
show that he acted in conformity therewith. It
may, however, be admissible for other
purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident, provided that upon request by the
accused, the prosecution in a criminal case
shall provide reasonable notice in advance of
trial, or during trial if the court excuses
pretrial notice on good cause shown, of the
general nature of any such evidence it intends
to introduce at trial.
3. Analysis
¶ 48 We are not persuaded that defendant’s statement to Sergeant
Hendricks in their second phone conversation constitutes CRE
404(b) evidence. It was not a part of an “other” crime or wrong and
was not admitted as evidence of defendant’s “bad character” as he
claims. Rather, defendant’s statement directly rebutted his defense
that he was fantasy role-playing. See, e.g., People v. Griffin, 224
P.3d 292, 297 (Colo. App. 2009) (the defendant’s notebook entries
were not CRE 404(b) evidence, but rather were admissible evidence
relevant to show her state of mind and to rebut her theory of
defense). Thus, defendant’s statements regarding his intent to meet
26
“Miranda” were admissible as relevant evidence, and the prosecutor
did not engage in misconduct by using the evidence against him.
¶ 49 We also are not persuaded that the evidence should have been
excluded on the grounds that it was overly prejudicial. Evidence is
not “unfairly prejudicial” merely because it damages the defendant’s
case. People v. Dist. Court, 785 P.2d 141, 147 (Colo. 1990).
C. Sufficiency of the Evidence
¶ 50 Defendant contends that the evidence was insufficient to
support his convictions. We disagree as to count one, but we agree
as to count two and reverse that conviction.
1. Standard of Review
¶ 51 We review the record de novo to determine whether the
evidence before the jury was sufficient in both quantity and quality
to sustain the defendant’s conviction. Clark v. People, 232 P.3d
1287, 1291 (Colo. 2010). To make this determination, we employ
the substantial evidence test. Id. We consider whether any rational
trier of fact might accept the evidence, taken as a whole and in the
light most favorable to the prosecution, as sufficient to support a
finding of the defendant’s guilt beyond a reasonable doubt. People
v. Sprouse, 983 P.2d 771, 777 (Colo. 1999). We must give the
27
prosecution the benefit of every reasonable inference that may be
fairly drawn from the evidence. Dempsey v. People, 117 P.3d 800,
807 (Colo. 2005); People v. Padilla, 113 P.3d 1260, 1261 (Colo. App.
2005).
2. Count One
¶ 52 Defendant contends that his conviction for count one is not
supported by sufficient evidence because the jury was instructed
that he must have committed the crime in Colorado to be guilty of
child exploitation.10 “This argument fails because the sufficiency of
evidence is measured ‘against the elements of the offense, not
against the jury instructions.’” People v. Vigil, 251 P.3d 442, 447
(Colo. App. 2010) (quoting in part United States v. Bomski, 125 F.3d
1115, 1118 (7th Cir. 1997)); see also United States v. Morton, 412
F.3d 901, 904 (8th Cir. 2005) (whether the jury was properly
instructed does not affect a review for sufficiency of the evidence).
The child exploitation statute does not require that the actor be in
Colorado at the time of the criminal communication; thus, we reject
10Defendant also makes this argument as to count two, but
because of our disposition on the sufficiency of the evidence for
count two we only address this argument in relation to count one.
28
defendant’s contention that the evidence is insufficient to support
the conviction for count one.11
3. Count Two
¶ 53 Defendant’s conviction for count two is based on his second
interaction with “Miranda” (via instant messaging), during which he
asked her to send the pictures that he thought she had taken of
herself and “Lizzie” during their first conversation four days earlier.
It is undisputed that during his second conversation with
“Miranda,” defendant did not ask her to expose or touch her own or
another person’s intimate parts, an essential element of the offense.
§ 18-3-405.4(1)(a). A request to send a picture taken previously is
not equivalent to such conduct. And asking a child to send a
photograph showing such conduct would not constitute an attempt
to persuade the child to engage in such conduct “while
communicating” with the actor, another essential element of the
offense. Id. Thus, we conclude that defendant’s conviction for
count two cannot be sustained by the evidence presented at trial.
11Defendant does not contend that the evidence failed to establish
the statutory elements of the offense.
29
D. Mistrial
¶ 54 Defendant contends that the district court erred by denying
his motion for a mistrial after a witness testified about an
inadmissible matter. We conclude that the district court did not
abuse its discretion.
1. Background
¶ 55 Defendant told Sergeant Hendricks that he had been
investigated for sexual assault of a child twenty-five years earlier.
Before trial, the prosecution told the court that it would not
introduce evidence of the prior investigation because it would be
unfairly prejudicial.
¶ 56 During defense counsel’s cross-examination of Sergeant
Hendricks at trial, the following exchange occurred after a
discussion of Sergeant Hendricks’s similar investigations:
Defense Counsel: In this particular case you
haven’t come across any real victims in this
time period.
Sergeant Hendricks: Any real victims of
[defendant]?
Defense Counsel: Correct.
Sergeant Hendricks: Actually during one of the
interviews he admitted to me that he did have
30
a sex assault on a child, twenty to twenty-five
years ago that (inaudible)
Defense Counsel: I’m talking in this time
period – was my question.
Sergeant Hendricks: I’m sorry. In your time
period?
Defense Counsel: This time period, yeah. You
talked to him February of 2013.
Sergeant Hendricks: So, are you asking me if
he had contact with any other children –
Defense Counsel: Was he contacting –
Sergeant Hendricks: At that exact same time –
Defense Counsel: Other children in February
of 2013?
Sergeant Hendricks: Oh, based on his Yahoo
emails and friends list, I did not find any other
children.
¶ 57 After the conclusion of Sergeant Hendricks’s testimony,
defense counsel requested a mistrial because Sergeant Hendricks
had testified to defendant’s prior bad act. The district court noted
that the evidence should have been excluded, and offered to give the
jury a curative instruction, but denied the motion for a mistrial.
Defense counsel declined the court’s offer of a curative instruction.
31
2. Standard of Review and Applicable Law
¶ 58 Because defendant preserved this issue by moving for a
mistrial, we review for nonconstitutional harmless error. Under
that standard, we reverse only if there was an error that had a
substantial and injurious effect or influence in determining the
jury’s verdict. Krutsinger v. People, 219 P.3d 1054, 1058 (Colo.
2009); People v. Wilson, 2013 COA 75, ¶ 24 (“An error is harmless if
a reviewing court can say with fair assurance that, in light of the
entire record, the error did not substantially influence the verdict or
impair the fairness of the trial.”).
¶ 59 We review a district court’s decision to deny a motion for a
mistrial for an abuse of discretion. People v. Marko, 2015 COA 139,
¶ 29. A mistrial is a drastic remedy, and we will not disturb the
district court’s decision absent a showing of a gross abuse of that
discretion and prejudice to the moving party. People v. Abbott, 690
P.2d 1263, 1269 (Colo. 1984). A mistrial is warranted only where
the prejudice caused cannot be remedied by other means. Id.
3. Analysis
¶ 60 In denying defendant’s counsel’s request for a mistrial, the
district court characterized the context of the question as “very
32
ambiguous” and the officer’s response as responsive to the
question. We cannot say that the district court, with its superior
opportunity to consider the issue, abused its discretion in so
characterizing the question and answer. Further, defendant does
not point to anything in the record indicating that Sergeant
Hendricks was purposefully trying to include defendant’s prior bad
act in his testimony. Rather, it appears he was simply answering
counsel’s question as he understood it. Also, it was defense
counsel, not the prosecutor, who elicited Sergeant Hendricks’s
statement. Defense counsel quickly clarified his question, got the
answer he wanted, and moved on.
¶ 61 Given the weight of the admissible evidence against defendant,
it is unlikely that the admission of this evidence was overly
prejudicial to defendant such that it substantially affected the
verdict. Further, the court offered defendant a curative instruction
to cure any prejudice that could have arisen. Under these
circumstances, although the evidence of defendant’s prior
investigation for sexual assault on a child was potentially
prejudicial, we perceive no abuse of discretion in the district court’s
decision to deny the request for a mistrial. See People v. Krueger,
33
2012 COA 80, ¶ 72 (district court did not abuse its discretion by
denying the defendant’s motion for a mistrial based on a witness
testifying to inadmissible evidence where the witness’s reference to
the inadmissible matter was brief and the court offered to give a
curative instruction, which defense counsel declined); People v.
Tillery, 231 P.3d 36, 43-44 (Colo. App. 2009) (district court’s denial
of mistrial was not an abuse of discretion where reference to
inadmissible evidence was brief, unembellished, promptly
suppressed, not repeated again before the jury, and the court gave
a curative instruction), aff’d sub nom. People v. Simon, 266 P.3d
1099 (Colo. 2011); People v. Shreck, 107 P.3d 1048, 1060 (Colo.
App. 2004) (a mistrial for a witness’s reference to inadmissible
evidence was not warranted where the reference was brief and the
district court offered a curative instruction).
E. Probation Revocation
¶ 62 Lastly, defendant contends that the district court’s revocation
of his probation must be reversed because the district court did not
adhere to the applicable statutory requirements. We agree.
34
1. Standard of Review
¶ 63 Because defendant did not preserve his contention, we review
it for plain error. Hagos, ¶ 14. To determine whether the district
court erred, we must construe the requirements of sections 16-11-
206(1), (2) and 18-1.3-1010(2)(a), (b), C.R.S. 2015, which we do de
novo. Romero v. People, 179 P.3d 984, 986 (Colo. 2007).
2. Section 16-11-206
¶ 64 Section 16-11-206(1), (2) provides:
(1) At the first appearance of the probationer in
court or at the commencement of the hearing,
whichever is first in time, the court shall
advise the probationer as provided in section
16-7-206 insofar as such matters are
applicable; except that there shall be no right
to a trial by jury in proceedings for revocation
of probation.
(2) At or prior to the commencement of the
hearing, the court shall advise the probationer
of the charges against him and the possible
penalties therefor and shall require the
probationer to plead guilty or not guilty.
¶ 65 The People filed a probation violation complaint against
defendant because he allegedly failed to register as a sex offender.
At the initial court date on defendant’s probation revocation,
defense counsel said that he had “gone over” defendant’s rights with
35
defendant and that defendant wanted a hearing on his probation
revocation. The district court did not advise defendant of the
charges against him and possible penalties he could face. At no
point did defendant expressly waive his right to an advisement.
¶ 66 Contrary to the People’s assertion, defense counsel’s brief,
vague statement that he had “gone over” defendant’s rights at the
initial court date three months earlier is not sufficient to establish
that defendant waived his right to be advised by the court through
counsel, or that he was advised of potential penalties before the
hearing. Cf. Finney v. People, 2014 CO 38, ¶¶ 18-19 (advisements
before a hearing were sufficient to satisfy the advisement
requirement where the defendant was advised of the potential
penalties six separate times before the hearing); see Craig v. People,
986 P.2d 951, 964 (Colo. 1999) (an advisement is sufficient if the
record as a whole shows that the defendant was given sufficient
notice of the possible penalties associated with a guilty plea). Thus,
the district court failed to adhere to section 16-11-206(2).
¶ 67 We conclude that the district court’s error is plain because the
statutory requirements were known to the court, and the failure to
advise defendant of the possible penalties substantially undermines
36
our confidence in the fairness of the probation proceeding. See
People v. Pollard, 2013 COA 31M, ¶ 40 (an error is obvious if it
contravenes a clear statutory command).
3. Section 18-1.3-1010
¶ 68 Section 18-1.3-1010(2)(a), (b) provides:
(a) A sex offender sentenced to probation
pursuant to section 18-1.3-1004(2) is subject
to arrest and revocation of probation as
provided in sections 16-11-205 and 16-11-
206, C.R.S. At any revocation proceeding, the
sex offender’s probation officer and the sex
offender’s treatment provider shall submit
recommendations concerning the level of
treatment and monitoring that should be
imposed as a condition of probation if
probation is not revoked or whether the sex
offender poses a sufficient threat to the
community that probation should be revoked.
The recommendations shall be based on the
criteria established by the management board
pursuant to section 18-1.3-1009. If the court
revokes the sex offender’s probation, the court
shall sentence the sex offender as provided
in section 18-1.3-1004, and the sex offender
shall be subject to the provisions of this part
10.
(b) At a revocation hearing held pursuant to
this subsection (2), the court shall consider the
recommendations of the probation officer and
the treatment provider, in addition to evidence
concerning any of the grounds for revocation of
probation specified in sections 16-11-205 and
16-11-206, C.R.S. If the court chooses not to
37
follow the recommendations made, it shall
make findings on the record in support of its
decision.
¶ 69 The People concede that the district court revoked defendant’s
probation without obtaining and considering treatment and
monitoring recommendations from defendant’s probation officer or
treatment provider as required by section 18-1.3-1010(2)(a), (b).
Because a court is deemed to know these statutory requirements,
the district court plainly erred by not adhering to section 18-1.3-
1010(2)(a), (b). See Pollard, ¶ 40.
¶ 70 The error was substantial. The statute requires that new
reports be written, that the district court consider them, and that
the district court make findings on the record to support its
decision if it departs from the recommendations in the reports.
§ 18-1.3-1010(2)(a), (b). None of that occurred. Contrary to the
People’s assertion, the fact that defendant’s probation was revoked
soon after his probation officer and treatment provider had provided
reports for his initial sentencing does not render the error
insubstantial. And in any event, there is no indication in the record
that the district court considered the earlier reports when revoking
defendant’s probation.
38
¶ 71 Therefore, we reverse the district court’s revocation of
defendant’s probation.
III. Conclusion
¶ 72 Defendant’s conviction for count two is reversed, and the case
is remanded to the district court to dismiss that count with
prejudice. The judgment is reversed as to the revocation of
defendant’s probation, and the case is remanded for further
proceedings on the probation revocation complaint. The judgment
is otherwise affirmed.
JUDGE LICHTENSTEIN and JUDGE DUNN concur.
39