People in the Interest of T.B , 2016 COA 151 ( 2016 )

COLORADO COURT OF APPEALS 2016COA151
Court of Appeals No. 14CA1142
La Plata County District Court No. 13JD15
Honorable Jeffrey R. Wilson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
In the Interest of T.B.,
Juvenile-Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE RICHMAN
Bernard, J., specially concurring
Fox, J., dissenting
Announced October 20, 2016
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Lord Law Firm, LLC, Kathleen A. Lord, Denver, Colorado, for Juvenile-
Appellant
¶1 Two teenage girls alleged that a teenage boy, the juvenile T.B.,
had raped them. During the investigation into those allegations,
the police discovered that the juvenile had used his cell phone to
solicit, to receive, and to store nude photographs of teenage girls.
The police identified and confirmed the ages of two of the girls
depicted in the photographs, E.H. and L.B.
¶2 The prosecution filed a delinquency petition that charged the
juvenile with sexual assault, kidnapping, third degree assault,
aggravated juvenile offender, and, based on the photographs of E.H.
and L.B., two counts of sexual exploitation of a child.
¶3 The trial court granted the juvenile’s request to sever the two
sexual exploitation counts from the rest of the counts. A jury
acquitted him of the sexual assault, kidnapping, third degree
assault, and aggravated juvenile offender counts.
¶4 The court then presided over a bench trial on the sexual
exploitation of a child counts. At the trial’s end, the court found
that the prosecution had proved, beyond a reasonable doubt, that
the juvenile had committed two counts of sexual exploitation of a
child, adjudicated the juvenile delinquent, sentenced him to two
1
concurrent two-year terms of sex offender probation, and required
him to register as a sex offender.
¶5 The juvenile appeals the court’s decision to adjudicate him
delinquent. We affirm.
I. Background
¶6 The juvenile met E.H. and L.B. at a Future Farmers of America
conference in September 2012. The juvenile and L.B. were then
fifteen years old, and E.H. was seventeen years old. After the
conference, the juvenile stayed in touch with both girls by telephone
and text messaging because they lived in different towns.
A. E.H.
¶7 E.H. testified during the trial that, in the fall of 2012, the
juvenile had texted her photographs of his erect penis. When E.H.
received them, “[she] deleted them” because she “didn’t want to
keep those on [her] phone.”
¶8 The juvenile repeatedly asked her to send him nude
photographs of herself. She said that “[t]he first time [she] told him
no. Then after that [she] was like well, maybe after a while, and
2
then just kind of like getting him off [her] case, and then finally
[she] just gave in.”
¶9 She sent him three nude photographs of herself. The police
later recovered these photographs from his cell phone. The
prosecution introduced them to the court during the bench trial.
¶ 10 E.H. added that the juvenile said that she “look[ed] good” in
these photographs. He asked for more. She declined because she
“was very ashamed of [herself.]” When her mother later found out
about these photographs, “it really crushed [E.H.] morally” because
E.H. had “always tried to be the best person [that she could] be.”
B. L.B.
¶ 11 L.B. testified at trial that, in the spring of 2013, the juvenile
had texted her a photo of his erect penis. He proceeded to send her
a series of texts asking her to send him nude pictures of herself.
She eventually texted him a photograph that showed her topless.
The police recovered this photograph from the juvenile’s cell phone,
and the prosecution introduced it to the court.
¶ 12 The juvenile continued to text photographs to L.B. of his erect
penis even after he had been arrested.
3
II. Sufficiency of the Evidence
¶ 13 The juvenile asserts that, for two reasons, the evidence is
insufficient to support his adjudication for sexual exploitation of a
child. First, he submits that the evidence did not show that the
photographs of E.H. and L.B. depicted “erotic nudity,” which is a
necessary component of the crime of sexual exploitation of a child.
Second, he contends that the statute prohibiting sexual exploitation
of a child does not forbid one teenager from possessing a nude
photograph of another teenager as long as both teenagers are over
the age of fourteen. We disagree with both contentions.
A. Standard of Review
¶ 14 The juvenile asserted at trial that (1) nude photos do not meet
the erotic nudity definition necessary to prove sexual exploitation of
a child; and (2) the chain of custody was insufficient to show that
the juvenile knew that he possessed the nude photographs of E.H.
and L.B. on his cell phone. So, he expressly preserved his first
sufficiency of the evidence contention — that under the sexual
exploitation statute the photographs of E.H. and L.B. did not depict
erotic nudity.
4
¶ 15 But the juvenile did not argue to the trial court that the sexual
exploitation statute did not apply at all to defendant’s conduct in
this case. Thus, his second argument was not expressly preserved.
¶ 16 The juvenile and the prosecution disagree about what
standard of review should apply to the juvenile’s second,
unpreserved, sufficiency of the evidence contention.
¶ 17 The prosecution argues that we should review this
unpreserved assertion only for plain error. See People v. McCoy,
2015 COA 76M, ¶ 70 (Webb, J., specially concurring) (cert. granted
October 3, 2016); People v. Lacallo, 2014 COA 78, ¶¶ 12, 30-31.
¶ 18 The juvenile asserts that we should apply “de novo” review.
See Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005) (whether the
record contains sufficient evidence to support conviction is reviewed
de novo); People v. Mantos, 250 P.3d 586, 589 (Colo. App. 2009)
(meaning of statute is a question of law subject to de novo review).
But the term “de novo” describes the standard by which we
determine whether an error occurred, and does not describe the test
we apply to determine whether an error requires reversal. Even if
plain error review applies, we determine whether an error occurred
5
by applying the de novo review per Dempsey. What the juvenile
apparently means by the use of this term is that if we conclude that
the evidence is insufficient we must vacate the conviction, and no
retrial occurs, in effect a form of “structural error.” See McCoy, ¶
30.
¶ 19 We recognize that there is disagreement on this court about
which of these standards of review should apply in these
circumstances. See McCoy, ¶ 68 (Webb, J., specially concurring)
(citing cases showing disagreement). We are persuaded by the
majority’s reasoning in McCoy, ¶¶ 5-36, and the reasoning of the
special concurrences in Lacallo, ¶¶ 59-73 (Román, J., concurring in
part and dissenting in part), and People v. Rediger, 2015 COA 26,
¶ 67 (Richman, J., specially concurring) (cert. granted Feb. 16,
2016), so we shall apply that reasoning in this case. See People v.
White, 179 P.3d 58, 60-61 (Colo. App. 2007) (one division of the
court of appeals is not obligated to follow the decision of another).
¶ 20 We review both contentions challenging the sufficiency of the
evidence in accord with the standards set forth in Dempsey, 117
P.3d at 807, to determine whether the court erred. In doing so, we
6
consider whether the relevant evidence, both direct and
circumstantial, when viewed as a whole and in the light most
favorable to the prosecution, was substantial and sufficient to
support a conclusion by a reasonable mind that the defendant was
guilty of the charge beyond a reasonable doubt. People v. Wentling,
2015 COA 172, ¶ 8; see also Clark v. People, 232 P.3d 1287, 1291
(Colo. 2010). If we decide the court erred, we will not consider
whether the error was obvious, or whether the error cast serious
doubt on the reliability of the judgment of conviction. Cf. Rediger, ¶
11.
B. The Sexual Exploitation of a Child Statute
¶ 21 The sexual exploitation of a child statute states, as relevant
here, that
(3) A person commits sexual exploitation of a
child if, for any purpose, he or she knowingly:
...
(b.5) Possesses or controls any sexually
exploitative material for any purpose . . . .
§ 18-6-403(3)(b.5), C.R.S. 2016.
7
¶ 22 “‘Sexually exploitative material’ means any photograph . . .
that depicts a child engaged in, participating in, observing, or being
used for explicit sexual conduct.” § 18-6-403(2)(j). In this context,
a child is “a person who is less than eighteen years of age.” § 18-6-
403(2)(a).
¶ 23 For the purposes of our analysis, the statutory definition of
“explicit sexual conduct” includes “erotic nudity.” § 18-6-403(2)(e).
“Erotic nudity” means the display of the
human male or female genitals or pubic area,
the undeveloped or developing genitals or
pubic area of the human male or female child,
the human breasts, or the undeveloped or
developing breast area of the human child, for
the purpose of real or simulated overt sexual
gratification or stimulation of one or more of
the persons involved.
§ 18-6-403(2)(d).
C. Trial Court Findings
¶ 24 When the trial court adjudicated the juvenile delinquent at the
end of the bench trial, it made a series of factual findings:
 E.H. and L.B. were less than eighteen years old when they
took the photographs of themselves and texted them to the
juvenile.
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 The juvenile knew that E.H. and L.B. were under eighteen
years old.
 The juvenile knew that he had received the nude
photographs; indeed, he had complimented one of the girls
on her appearance.
 The juvenile possessed the nude photographs because they
were on his cell phone when the police examined it.
 There was an adequate chain of custody between the police
seizure of the cell phone and the copies of the photographs
of the girls that the prosecution introduced as evidence
partially because, during trial, the girls had identified the
copies as being the photographs that they had texted to the
juvenile.
 The juvenile repeatedly asked E.H. and L.B. for nude
photographs after he had sent them photographs of his
erect penis. The nude photographs of the girls were
therefore erotic nudity.
 The juvenile was guilty, beyond a reasonable doubt, of both
counts of sexual exploitation of a child.
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D. The First Sufficiency of the Evidence Contention
¶ 25 We first address the juvenile’s contention that the evidence
was insufficient to prove that he knew that he possessed
photographs depicting erotic nudity. We review the evidence de
novo in the light most favorable to the prosecution, and, after doing
so, we conclude that the evidence was sufficient. See Clark, 232
P.3d at 1291; Dempsey, 117 P.3d at 807.
1. Chain of Custody
¶ 26 The juvenile first contends that the chain of custody linking
his cell phone and the photographs of E.H. and L.B. admitted at
trial was insufficient. He argues the chain of custody was
insufficient because it did not show that the photographs were
accurate copies of the photographs that were on the juvenile’s
telephone. We are not persuaded.
¶ 27 E.H. and L.B. identified the trial photographs as copies of the
ones that they had taken of themselves and that they had texted to
the juvenile, using his cell phone number. E.H. also testified that
the juvenile had complimented her on her photographs.
¶ 28 The evidence showed that the police had searched the
juvenile’s cell phone. They had found the photographs of E.H. and
10
L.B., nude photographs of other girls, and photographs of the
juvenile’s erect penis. A digital forensic officer testified that the
data in the juvenile’s cell phone had not been tampered with and
that the photographs from E.H. and L.B. had been opened and
viewed.
¶ 29 Any purported deficiencies in the chain of custody, such as a
lack of clarity about which police officer had made the copies of the
photographs from the juvenile’s cell phone, went to the weight that
the trial court gave the photographs, not to their admissibility. See
People v. Moltrer, 893 P.2d 1331, 1335 (Colo. App. 1994).
¶ 30 We conclude that this evidence established, beyond a
reasonable doubt, that (1) the photographs the prosecution
introduced during the bench trial were the nude photographs that
E.H. and L.B. had texted to the juvenile; and (2) the defendant knew
what these photographs showed and who sent them. In other
words, we conclude that there was sufficient evidence to prove that
the juvenile knowingly possessed the nude photographs of E.H. and
L.B.
2. Erotic Nudity
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¶ 31 The juvenile asserts that the photographs did not contain
erotic nudity because E.H. and L.B. did not take them for their own
sexual satisfaction. This contention assumes that the reference to
“persons involved” in the definition of erotic nudity necessarily
means the people who are displayed in the photograph. We
disagree.
¶ 32 A photograph qualifies as “erotic nudity” if it meets two
conditions. First, as relevant here, the photograph must depict the
female genitals, pubic area, or breasts of a child. § 18-6-403(2)(d);
People v. Gagnon, 997 P.2d 1278, 1281-82 (Colo. App. 1999).
Second, the depiction in the photograph must be for the purpose of
real or simulated overt sexual gratification or stimulation of one or
more of the persons involved. § 18-6-403(2)(d); Gagnon, 997 P.2d at
1281-82.
¶ 33 The juvenile does not dispute that the photographs met the
first condition, so we turn to the second. When analyzing the
second condition, we consider whether (1) the focal point of the
visual depiction was on the child’s breasts, genitals, or pubic area;
(2) the setting of the visual depiction was sexually suggestive, such
12
as in a place or pose generally associated with sexual activity; (3)
the child was depicted in an unnatural pose, or in inappropriate
attire, considering the child’s age; (4) the child was fully or partially
clothed, or nude; (5) the visual depiction suggested sexual coyness
or a willingness to engage in sexual activity; and (6) the visual
depiction appeared to be intended or designed to elicit a sexual
response in the viewer. Gagnon, 997 P.2d at 1282.
¶ 34 The focal points of the photographs in this case were the nude
breasts of E.H. and L.B. and E.H.’s pubic area. There was sufficient
evidence to support the conclusion that the girls’ poses were
unnatural and suggestive: in one photograph, E.H. was standing in
front of a mirror when she took a photograph of her nude body
reflected in the mirror; in another photograph, L.B.’s shirt is pulled
down below her breasts, exposing them. The photographs
suggested a sexual coyness. And they appeared to be intended and
designed to elicit a sexual response from the juvenile. Some of the
text messages between the juvenile and L.B. further confirm the
conclusion that the juvenile requested pictures of her for the
purposes of sexual gratification and arousal. For example, some
13
referred to a “dirty pic” and a picture shortly after she showered.
Their text message discussions included references to intercourse,
like “I can probe u lol . . . Stick my d*** in u lol,” “wow no love u to
f*** u too,” and “We’re gunna f*** lol :).”
¶ 35 Our supreme court has rejected the juvenile’s contention that
the focus of the “overt sexual gratification” component of the
definition of erotic nudity could only be the persons depicted in the
photographs. Rather, “[t]he person (or persons) ‘involved’ are not
always depicted in the material” and “the sexual gratification of that
person need not be shown in the material.” People v. Batchelor, 800
P.2d 599, 604 (Colo. 1990). In other words, “if the sexual
gratification is of a person not in the material, the sexual
gratification of that person need not be shown in the material.” Id.
So, following the supreme court’s reasoning, we conclude that, in
this case, “the overt sexual gratification was of” the juvenile, who
repeatedly asked the girls for the photographs after sending them a
picture of his erect penis. Id.
¶ 36 We also disagree with the juvenile’s attempt to distinguish
Batchelor by pointing out that the defendant in that case was an
14
adult. The age of the defendant was not a factor in the analysis of
whether the sexual gratification element was met.
E. The Second Sufficiency of the Evidence Contention
¶ 37 The juvenile asserts for the first time on appeal that nude
photographs taken by teenagers of themselves with no adult
involvement cannot constitute “sexually exploitative materials”
because they do not record any act of sexual abuse of a child. He
further asserts that such photos are a constitutionally protected
form of speech because they express the teenager’s sexuality to the
extent that they are neither obscene nor the product of sexual
abuse. Finally, he suggests that “teen sexting” should only be
prosecuted under a different statute, and that statute was not
violated in this case.
1. Sexual Abuse of a Child
¶ 38 The juvenile argues that application of the statute to his
conduct is limited to “sexually exploitative materials” that record
“sexual abuse of a child.” He imports this limitation from the
legislative declaration to the statute, which states: “The general
assembly further finds and declares that the mere possession or
15
control of any sexually exploitative material results in continuing
victimization of our children by the fact that such material is a
permanent record of an act or acts of sexual abuse of a child . . . .”
§ 18-6-403(1.5) (emphasis added). According to the juvenile,
teenagers who photograph their own bodies do not sexually abuse
themselves, nor do they create a permanent record of any such
abuse. Thus, he argues the evidence in this case was insufficient to
support a conviction. We reject his argument for several reasons.
¶ 39 First, the plain language of the statute does not contain the
phrase “sexual abuse” in its definitions of “sexually exploitative
material,” “explicit sexual conduct,” or “erotic nudity.” See § 18-6-
403(2)(d), (e), (j). Because the statutory language is clear and
unambiguous, we apply the statute as written and need not engage
in further statutory analysis as urged by the juvenile. See
Bostelman v. People, 162 P.3d 686, 689 (Colo. 2007); People v.
Vecellio, 2012 COA 40, ¶ 14.
¶ 40 When a statute is ambiguous courts may consider the
legislative declaration or purpose. § 2-4-203, C.R.S. 2016. For
example, in People v. Renander, 151 P.3d 657 (Colo. App. 2006),
16
this court considered the legislative declaration at issue here to
determine whether each offending image could be a separate
chargeable offense. Id. at 661-62. But it did so only after finding
ambiguity in the term “any.” Id.
¶ 41 When a statute is unambiguous, courts generally apply the
plain and ordinary meaning of terms without examining the
legislative declaration. See Bostelman, 162 P.3d at 690; Stamp v.
Vail Corp., 172 P.3d 437, 442–43 (Colo. 2007).
¶ 42 In this case, because the statute is unambiguous, we do not
consider the legislative declaration. As set forth above, the
contested provisions are clear. The statute defines “sexually
exploitative material” as a series of visual materials that “depict[] a
child engaged in, participating in, observing, or being used for
explicit sexual conduct.” § 18-6-403(2)(j). It then defines the term
“explicit sexual conduct” to include, among other things, erotic
nudity. § 18-6-403(2)(e). It further defines “erotic nudity.” § 18-6-
403(2)(d). Because none of these definitions is ambiguous, we
apply their plain and ordinary meanings. Turbyne v. People, 151
P.3d 563, 567 (Colo. 2007) (If the statutory language is clear, we
17
apply the plain meaning and we do not add words to the statute.).
The plain and ordinary meaning of “sexually exploitative material”
does not require depictions of sexual abuse of a child. None of the
definitions contains such a requirement. The legislative declaration
cannot replace or amend the clear definitions of terms.
¶ 43 Second, even if we did consider the legislative declaration, the
outcome remains the same because the legislative declaration
cannot override a statute’s elements. “To effectuate the intent of
the legislature, a statute must be read and considered as a whole
and should be interpreted so as to give consistent, harmonious, and
sensible effect to all of its parts.” Stamp, 172 P.3d at 444. The
juvenile’s edit to the language would immunize behavior otherwise
criminalized under the statute. This is not consistency and
harmony; it is conflict. Such emendation also risks undermining
the legislative intent by excluding images deemed harmful to
children. The juvenile’s proposed revision also adds confusion by
introducing the new undefined term of “sexual abuse of a child.”
¶ 44 On this point, People v. Enea, 665 P.2d 1026 (Colo. 1983), is
instructive. There, the supreme court rejected an attempt, like the
18
juvenile’s here, to add an element to the sexual exploitation of a
child statute based on language in the legislative declaration. Id. at
1028-29. Though involving an earlier version of the declaration and
a different provision of the statute, the supreme court’s holding is
equally true here: “paragraph (1) is a statement of legislative
purpose. The prefatory language does not alter the elements of the
crime, which are set forth in paragraph (3).” Id. at 1029. Similarly,
here the “prefatory language” cannot alter the elements outlined in
paragraph (3)(b.5) or definitions in paragraphs 2(d), (e), and (j).
¶ 45 We thus reject the juvenile’s effort to import a sexual abuse of
a child component into the statutory elements.
2. Constitutionally Protected Speech
¶ 46 On appeal, the juvenile further argues that nude photographs
taken by teenagers of themselves are constitutionally protected
speech to the extent they are neither obscene nor the product of
sexual abuse. He argues that unless the statute is interpreted as
he suggests, it is unconstitutional as applied to him. We conclude
this argument is not properly before this court. He did not
challenge the constitutionality of the statute as applied to him
19
before the trial court. We will not assess constitutionality for the
first time on appeal. O’Quinn v. Baca, 250 P.3d 629, 630 (Colo.
App. 2010); see also People v. Greer, 262 P.3d 920, 936 (Colo. App.
2011) (J. Jones, J. concurring).
3. Teen Sexting
¶ 47 The juvenile also asserts a broader argument that the sexual
exploitation of a child statute does not cover “teen sexting.” This
term refers to teenagers sending sexually explicit messages or
images to one another by cell phone.
¶ 48 First, the juvenile uses the legislative declaration to argue the
statute targets only adult conduct. He contends there is a
meaningful difference between adult pedophiles possessing child
pornography and teenagers with nude photos of their boyfriends or
girlfriends. We disagree. The language of the statute covers
proscribed behavior committed by teenagers involving images of
other teenagers.
¶ 49 Under the statute’s plain meaning, the perpetrator’s age is
irrelevant. Notwithstanding the dissent’s valid contention that
juveniles do not possess the emotional capabilities of adults, the
20
statute does not exempt teenagers. Indeed, the Colorado criminal
code contains no general exception for the criminal responsibility of
teenagers. True, the Colorado juvenile code has special procedural
and sentencing rules for teenagers accused of criminal misconduct.
See §§ 19-2-104, -512, -517, -907, -908, C.R.S. 2016. But, even so,
it does not immunize teenagers from responsibility, or alter the
elements of crimes when committed by teenagers. In short, when it
comes to responsibility, teenagers are not a protected class. Absent
specific language in the statute, if a teenager’s behavior satisfies the
elements, a teenager is just as responsible as an adult.
¶ 50 In addition to covering perpetrators who are teenagers, the
statute also specifically addresses images of teenagers. “Sexually
exploitative material” includes visual material depicting a child in
certain circumstances. § 18-6-403(2)(j) & (3)(b.5). A child is a
person under the age of eighteen. § 18-6-403(2)(a). Most teenagers
fall within the statute’s definition of “child.”1 Nothing in the statute
1 Although the headers in the juvenile’s briefs argue the statute
does not criminalize “nude ‘selfies’ exchanged between teenagers
older than fourteen,” the juvenile never articulates a reason behind
this age cutoff. Our analysis does not turn on the earliest age of a
teenager.
21
distinguishes a person possessing or controlling the visual material
and the child depicted. Second, the juvenile makes a more
nuanced argument that the legislature intended to carve out
protection for the specific behavior of teen sexting. He relies on the
legislative history and text of a different statute — the Internet child
exploitation statute — which outlaws “importun[ing], invit[ing], or
entic[ing]” certain conduct through, among other means, text
messaging if “the actor knows or believes [the victim] to be under
fifteen years of age and at least four years younger than the actor.”
§ 18-3-405.4(1), C.R.S. 2016. The juvenile also notes that in 2009
the legislature amended both the Internet child exploitation statute
and the sexual exploitation of a child statute.
¶ 51 These are two different criminal statutes, and we do not read
the applicability of one to exclude the applicability of the other.
They ban different behavior, have different punishments, and
address different harms. Compare § 18-6-403(3)(b.5), with § 18-3-
405.4. Behavior may violate one, both, or neither of these statutes.
Generally, “[i]t is up to the prosecutor to determine which crimes to
charge when a person's conduct arguably violates more than one
22
statute.” People v. Clanton, 2015 COA 8, ¶10. A different statute’s
legislative history does not affect our interpretation of the child
exploitation statute. If anything, it is telling that the legislature did
not amend the sexual exploitation of a child statute to mirror the
age-focused language of the Internet child exploitation statute.
¶ 52 Although the issue of teen sexting may be a growing matter of
public concern, whether it should be illegal and, if so, under what
circumstances is a policy decision for the General Assembly. By
affirming this conviction we do not mean to encourage prosecution
of such offenses, and we urge prosecutors to continue to use
discretion as to such cases. But, the sexual exploitation of a child
act criminalizes teen sexting when it meets the enumerated
elements of the statute. These elements are clear and
unambiguous. Although the consequences for a convicted teenager
may be substantial, as pointed out in the dissent, when the
evidence satisfies the elements of the statute, we must apply the
statute as written.
¶ 53 Accordingly, we conclude that sufficient evidence exists to
support the sexual exploitation convictions. The evidence
23
introduced at trial is sufficient to support the convictions, and the
juvenile’s statutory interpretation arguments are misplaced.
III. Right to a Jury Trial
¶ 54 The juvenile further contends that the court erroneously
denied his statutory right to a jury trial on the sexual exploitation of
a child counts after it severed them from the sexual assault,
kidnapping, third degree assault, and aggravated juvenile offender
counts. He asserts that the court’s decision to sever the counts
deprived him of his statutory right to a jury trial, and, alternatively,
that the court abused its discretion when it denied his request for a
jury trial. We disagree.
A. Law
¶ 55 As is pertinent to our analysis, section 19-2-107(1), C.R.S.
2016, states:
In any action in delinquency in which a
juvenile is alleged to be an aggravated juvenile
offender . . . the juvenile or the district
attorney may demand a trial by a jury of not
more than six persons except as provided in
section 19-2-601(3)(a), or the court, on its own
motion, may order such a jury to try any case
brought under this title . . . .
B. Effect of Severance
24
¶ 56 The juvenile asserts that the trial court’s decision to sever the
counts in this case from the sexual assault, kidnapping, third
degree assault, and aggravated juvenile offender counts deprived
him of his statutory right to a jury trial on the sexual exploitation
counts. Focusing on the word “action,” he asserts that all the
counts together constituted one action. He therefore adds that he
was entitled to a jury trial under section 19-2-107(1). We disagree.
¶ 57 The juvenile took a different position in the trial court. In his
motion for a jury trial on the sexual exploitation of a child counts,
he stated that the severed sexual exploitation counts constituted
“an action”:
While the action against [the juvenile] does not
allege either that he is an aggravated juvenile
offender or that he has committed a crime of
violence for these counts, the significance of
the fact that the General Assembly granted the
Court discretion, to order a large number of
delinquency cases to be tried to a jury, cannot
be overemphasized.
(Emphasis added.)
¶ 58 We therefore conclude that the juvenile waived the contention
that he now raises on appeal. See People v. Geisick, 2016 COA 113,
¶ 16 (holding when a party removes an issue from a court’s
25
consideration, the party has waived the issue and we may not
review it on appeal).
C. Abuse of Discretion
¶ 59 The juvenile also asserts that the trial court abused its
discretion when it denied his request for a jury trial. We are not
persuaded.
¶ 60 Section 19-2-107(1) provides juveniles with a statutory right to
a jury trial in certain circumstances, and it allows courts — in their
discretion — to empanel a jury in delinquency proceedings involving
felony offenses. People in Interest of A.B.-B., 215 P.3d 1205, 1207
(Colo. App. 2009).
¶ 61 We review a court’s ruling on a juvenile’s request for a jury
trial in a delinquency proceeding for an abuse of discretion. Id.
“Discretionary decisions will not be disturbed unless the court’s
action was manifestly arbitrary, unreasonable, or unfair.” Id. at
1209 (citation omitted). Under the abuse of discretion standard,
the test is not “whether we would have reached a different result
but, rather, whether the trial court’s decision fell within a range of
26
reasonable options.” People v. Rhea, 2014 COA 60, ¶ 58 (citation
omitted).
¶ 62 The trial court denied the juvenile’s motion for a jury trial
without making any factual findings. We nonetheless conclude that
the court did not abuse its discretion when it denied the motion
because its decision fell within a range of reasonable options. See
id.
¶ 63 Unlike the aggravated juvenile offender count, which a jury
resolved, the juvenile did not have a statutory right to a jury trial on
the sexual exploitation of a child counts. So, although the court did
not grant the juvenile the additional discretionary benefit of a jury
trial, it did not deprive him of any rights when it denied his request.
¶ 64 As the division observed in People in Interest of A.B.-B., 215
P.3d at 1209, “[i]t is true that, following trial, A.B.-B. was required
to register as a sex offender and he may suffer social stigma
because of this adjudication.” But the division added that such
consequences were “little different from those associated with many
prosecutions for abuses of young children.” Id. at 1210. Thus, the
division ultimately concluded that, despite these serious
27
consequences, the trial court did not abuse its discretion when it
denied A.B.-B.’s request for a jury trial. We think that the same
reasoning applies to this case.
IV. Selective Prosecution
¶ 65 The juvenile asserts that the trial court should have granted
his motion to dismiss the sexual exploitation of a child charges
because the prosecutor selectively prosecuted him. He asserts that
the prosecutor charged him because he was male. He asks that, at
a minimum, we remand the case to the trial court for further
proceedings on this issue. We disagree.
A. Law
¶ 66 A prosecutor has “wide discretion in determining who[m] to
prosecute for criminal activity and on what charge.” People v. Kurz,
847 P.2d 194, 196 (Colo. App. 1992) (citing People v. MacFarland,
189 Colo. 363, 540 P.2d 1073 (1975)); see also Colo. Const. art. VI,
§ 13. “In the ordinary case, so long as the prosecutor has probable
cause to believe that the accused committed an offense defined by
statute, the decision whether or not to prosecute, and what charge
to file or bring before a grand jury, generally rests entirely in his
28
discretion.” United States v. Armstrong, 517 U.S. 456, 464 (1996)
(citation omitted).
¶ 67 However, equal protection requires that a decision to
prosecute not be based on “an unjustifiable standard such as race,
religion, or other arbitrary classification.” Id. at 464-65 (citation
omitted); see also People v. Gallegos, 226 P.3d 1112, 1117 (Colo.
App. 2009). “A selective-prosecution claim is not a defense on the
merits to the criminal charge itself, but an independent assertion
that the prosecutor has brought the charge for reasons forbidden by
the Constitution.” Armstrong, 517 U.S. at 463.
¶ 68 The fact that some people escaped prosecution under a statute
is not a denial of equal protection unless the prosecutor’s selective
enforcement of the statute was intentional or purposeful. Kurz, 847
P.2d at 196-97. A defendant must show that the alleged selective
prosecution had a discriminatory effect and that it was motivated
by a discriminatory purpose. Id. at 197. “In order to dispel the
presumption that a prosecutor has not violated equal protection, a
criminal defendant must present clear evidence to the contrary.”
Armstrong, 517 U.S. at 465 (citation omitted).
29
B. Standard of Review
¶ 69 The parties disagree about what standard of review we should
use to resolve the juvenile’s selective prosecution contention. Citing
People v. Voth, 2013 CO 61, ¶ 15, and People v. Garcia, 169 P.3d
223, 226 (Colo. App. 2007), the juvenile contends that we should
review the trial court’s decision for abuse of discretion because
ruling on a motion to dismiss is within the trial court’s discretion.
¶ 70 The prosecution responds that we should follow the majority of
federal appellate courts that review such claims under the “clearly
erroneous standard.” See, e.g., United States v. Brantley, 803 F.3d
1265, 1270 (11th Cir. 2015) (applying the clearly erroneous
standard for factual findings and de novo standard for legal
conclusions); United States v. Taylor, 686 F.3d 182, 197 (3d Cir.
2012) (same).
¶ 71 We do not need to resolve this disagreement because we
conclude that, even if we apply an abuse of discretion standard to
the trial court’s decision, the court’s decision to deny the juvenile’s
motion was not manifestly arbitrary, unreasonable, or unfair. See
30
People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002). And we reach that
conclusion because the trial court found, based on facts in the
record, that the prosecution was not motivated by discriminatory
intent when it prosecuted the juvenile for the two counts of sexual
exploitation of a child.
C. Procedural History
¶ 72 After the jury acquitted the juvenile of the first four counts, he
filed a motion to dismiss the sexual exploitation of a child counts.
He alleged that the prosecution was selectively prosecuting him
because he was male. During a hearing on the motion, the
prosecutor stated:
I want to be perfectly clear. The reason [the
juvenile] is being prosecuted for these sexually
[exploitative] images charges is because of the
other underlying charges with which he’s
facing. He’s alleged to have sexually assaulted
-- and is currently charged here and in New
Mexico with sexually assaulting two of
his classmates, and we have a [Rule] 404(b)
witness, his half-sister, who is also making
allegations that she was sexually assaulted,
and this is why we have selected [the juvenile]
for this particular prosecution.
[Defense counsel is] correct, we do not
prosecute most teenagers for possessing and
distributing sexually [exploitative] images
31
because there are a lot of kids out there
making incredibly stupid decisions to take
pictures of their genitalia and send them to
each other. This is a -- probably a larger
number of people than anybody in the
community cares to know about.
So as a policy, no, we typically do not
prosecute those cases based upon the sort of
short sighted and ignorant decisions that
teenagers can make. However, when people
that are in [the juvenile’s] situation find
themselves also, as the [prosecution is]
alleging, sexually assaulting his classmates, in
addition to possessing these images, yes, we
do think that’s worth prosecution and that’s
why we did it.
¶ 73 After the parties and the court discussed another case brought
against a juvenile male within that jurisdiction on similar charges,
defense counsel stated that the prosecution had added the charges
in this case because the juvenile had refused to enter a guilty plea
concerning the sexual assault, kidnapping, third degree assault,
and aggravated juvenile offender counts. The prosecutor responded
that
[o]ne, with respect to us filing it after the initial
charges, I want to refresh everyone’s
recollection here, that [the prosecution was]
making everybody aware that these were
possible charges that we were continuing to
investigate at the beginning of this case and
32
that we may upon the conclusion of that
investigation add those charges. So I guess I
sort of want to set it straight that it wasn’t
while we’re going to plead not guilty and these
charges get added, but I want to go back to the
fact that we have been discussing these
charges from the outset.
The vindictive prosecution, which was not
alleged in their motion but is apparently being
alleged now based upon our response, those
charges go directly to what it is he’s being
charged with. He’s being charged with sexual
assault. These are sexually related charges
with other teenage girls and they’re being
brought because we think [the juvenile’s]
behavior is dangerous and not for any
vindictive purpose.
¶ 74 The court then denied the juvenile’s selective prosecution
motion. It stated:
The case law is pretty clear that in order for
there to be a problem or a constitutional
problem with selective prosecution, that
selective prosecution has to be based upon an
unjustifiable standard such as race, religion or
other arbitrary classification, it has to have a
discriminatory effect, motivated by a
discriminatory purpose. . . .
In this case, it’s pretty clear that [the juvenile]
is not [a member of a] suspect classification,
[the juvenile is] a young white male, so I don’t
see that being a discriminatory purpose. The
[prosecutor] has explained that [the juvenile]
got charged with this because of the other
33
charges he is facing, and I do remember
somewhat, I assume it’s [a particular
prosecutor], but I do remember someone
talking about the potential additional charges
being filed. So at this time I’m going to deny
that motion and not dismiss the case because
of selective prosecution.
D. Analysis
¶ 75 The juvenile first asserts that the trial court erred when it
stated that he could not be a victim of selective prosecution because
he was a white male. We agree that this is a misstatement of the
law. See, e.g., United States v. Diaz, 961 F.2d 1417, 1420 (9th Cir.
1992) (“[C]ourts . . . have the authority to inquire into charging . . .
decisions to determine whether the prosecutor is abusing her
awesome power to favor or disfavor groups defined by their gender,
race, religion or similar characteristics.” (quoting United States v.
Redondo-Lemos, 955 F.2d 1296, 1301 (9th Cir. 1992))) (emphasis
added); cf. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
78 (1998) (“Title VII’s prohibition of discrimination ‘because of . . .
sex’ protects men as well as women.”) (citation omitted); People v.
Gandy, 878 P.2d 68, 70 (Colo. App. 1994) (gender discrimination
claim based on removal of male jurors was cognizable).
34
¶ 76 But, although the trial court made this legal mistake, we
nonetheless conclude that the court did not err when it denied the
juvenile’s selective prosecution motion because it made factual
findings that are supported by the record. The court found that (1)
the prosecutor decided to add the sexual exploitation of a child
counts because of the other, more serious charges that the juvenile
faced; and (2) a prosecutor gave notice to the court and to the
juvenile about the prospect of adding these counts as the
investigation unfolded, which eventually led the police to E.H. and
L.B. We conclude that the record supports these findings. See
People v. Gallegos, 251 P.3d 1056, 1062 (Colo. 2011).
¶ 77 In other words, the trial court found that the juvenile had not
established that the prosecution had acted with an impermissible
discriminatory purpose. See Kurz, 847 P.2d at 197. And we add
that our review of the record has not turned up any “clear evidence”
to the contrary. See Armstrong, 517 U.S. at 465.
V. Conclusion
¶ 78 The delinquency adjudication is affirmed.
JUDGE BERNARD specially concurs.
35
JUDGE FOX dissents.
36
JUDGE BERNARD, specially concurring.
¶ 79 I respectfully disagree with the majority’s analysis of the
second, unpreserved sufficiency-of-the-evidence contention in Parts
II.A and II.E of the majority opinion. I therefore specially concur
with those parts of the opinion. I concur without reservation in the
rest of it.
¶ 80 I am persuaded by the majority’s reasoning in People v.
Lacallo, 2014 COA 78, ¶¶ 12, 30-31, the majority’s reasoning in
People v. Rediger, 2015 COA 26, ¶¶ 10-14, and the reasoning of the
special concurrence in People v. McCoy, 2015 COA 76M, ¶ 70
(Webb, J., specially concurring). So I would apply that reasoning in
this case. As a result, I would review the juvenile’s second
sufficiency-of-the-evidence claim for plain error.
¶ 81 Plain error review involves three questions: whether there was
an error; if so, whether it was obvious; and, if so, whether the error
cast serious doubt on the reliability of the judgment of conviction.
Rediger, ¶ 11. “Where analyzing the evidence requires the
preliminary interpretation of a statute” that the defendant did not
raise in the trial court and that no Colorado court has decided, “the
37
initial focus is on obviousness.” Id. at ¶ 12. In this context, we do
not address the merits of a sufficiency-of-the-evidence claim if (1) it
would have been difficult to figure out the meaning of “operative
statutory terms” under existing Colorado law, id.; or (2) the
contention concerning those statutory terms did not “implicate a
‘well-settled legal principle that numerous courts elsewhere have
uniformly embraced,’” id. (quoting Lacallo, ¶ 31). But, even if other
courts have not consistently resolved the statutory interpretation
question in a particular way, a sufficiency-of-the-evidence error is
nonetheless obvious if the statute is unambiguous and its terms
have common and ordinary meanings. Id. at ¶ 13. And, if the error
is obvious, we must review the sufficiency of the evidence claim de
novo. Id.
¶ 82 To summarize, plain error analysis in the sufficiency-of-the-
evidence context will only reach a different result than de novo
review if three things happen: we have to interpret a statute before
we move on to analyzing the evidence in the context of that statute;
we have to interpret the statute because the defendant has urged
us to do so for the first time on appeal; and the defendant’s
38
proposed interpretation of the statute is not obvious. Id. at ¶ 14.
“Otherwise, whether or not review is for plain error, the analysis will
start — and usually end — with examining the sufficiency of the
evidence de novo.” Id.
¶ 83 Because the first step in the analysis of this sufficiency-of-the-
evidence contention is the interpretation of a statute that the
juvenile did not raise in the trial court, I first focus on the
obviousness prong of the plain error test. See id. at ¶ 12. I
conclude, for the following reasons, that the statutory interpretation
upon which the juvenile relies in making his sufficiency-of-the-
evidence contention was not obvious.
¶ 84 First, the juvenile’s contention has never been adopted by a
Colorado appellate court, and it does not “involve[] a well-settled
legal principle that numerous courts elsewhere have uniformly
embraced.” See Lacallo, ¶ 31. Indeed, the juvenile’s appellate briefs
do not cite one appellate decision from any court in the United
States that has adopted this contention.
¶ 85 Second, the juvenile’s contention is not based on a simple and
plain assertion that the sexual exploitation statute was
39
unambiguous and that its terms had common and ordinary
meanings, so a simple reading of the statute would have revealed
the error. See Rediger, ¶ 13. Instead, his contention has a lot of
moving parts, and some of them are complex.
¶ 86 The juvenile’s contention analyzes the language of sexual
exploitation of a child statute. It discusses the legislature’s intent.
It compares the sexual exploitation of a child statute to the
language and the legislative history of a different statute, section
18-3-405.4, C.R.S. 2015, which addresses Internet exploitation.
And, incorporating a constitutional contention, it asserts that “the
creation of the texted images in this case did not involve sexual
abuse of a child or criminal conduct,” so the juvenile’s possession of
the photographs “cannot be banned without violating First
Amendment guarantees.”
¶ 87 So, based on my conclusion that the putative error that the
juvenile identifies was not obvious, I would not address the merits
of this sufficiency-of-the-evidence contention. See Lacallo, ¶ 32.
40
JUDGE FOX, dissenting.
¶ 88 I am unable to join the majority opinion — namely Parts II.E.1
and II.E.3 — because, as I discuss below, our juvenile justice
system and the statute at issue, targeting sexual exploitation of
children, were never intended to reach imprudent or irresponsible
behavior by and among juveniles. Here, a seventeen-year old and a
fifteen-year old each voluntarily sent texts containing partially nude
photographs (or sexts) to their then-boyfriend, T.B., who was then
sixteen years old. The record does not show that T.B. forwarded or
shared those photographs. And, although both teen girls also
received sexts from T.B., they were not prosecuted.
I. The Juvenile Justice System’s Goals Are to Rehabilitate — Not
to Irreparably Brand — Juveniles
¶ 89 The General Assembly intended the Children’s Code to serve
the welfare of children and the best interest of society. § 19-1-
102(2), C.R.S. 2016. Thus, the General Assembly recognized that
juveniles who violate the law should be treated differently than
adults. It therefore created a separate statutory system within the
Children’s Code, Article II, to handle the treatment and sentencing
of juveniles who commit a delinquent act. § 19-2-102, C.R.S. 2016.
41
Article II of the Children’s Code focuses on the rehabilitation and
accountability of the juvenile delinquent while protecting public
safety. Id.; see also Bostelman v. People, 162 P.3d 686, 692 (Colo.
2007). Thus, the Children’s Code’s treatment of juveniles
adjudicated delinquents should contrast with the adult criminal
system, where the focus is on punishment, deterrence, and
retribution. Bostelman, 162 P.3d at 692; see also A.S. v. People,
2013 CO 63. The goal is to help make the juvenile a productive
member of society. See § 19-2-102(1); accord In re Application of
Gault, 387 U.S. 1, 15-16 (1967) (recognizing that the juvenile
system was developed in large part to facilitate the opportunity for
juveniles to reform and become productive citizens).1
¶ 90 It makes sense to treat juveniles differently. Indeed, even the
United States Supreme Court recognizes that “[i]nexperience [and]
less education . . . make the teenager less able to evaluate the
consequences of his or her conduct[.]” Thompson v. Oklahoma, 487
1 Colorado, one of the first states to create a juvenile court, has a
rich history in the juvenile justice realm. See Laoise King, Colorado
Juvenile Court History: The First Hundred Years, 32 Colo. Law. 63
(Apr. 2003) (noting that the creation and use of juvenile courts
allowed communities to recognize the humanity of children and
their entitlement to justice).
42
U.S. 815, 835 (1988) (plurality opinion). It is for that reason that
“juveniles are not trusted with the privileges and responsibilities of
an adult” and “why their irresponsible conduct is not as morally
reprehensible as that of an adult.” Id.
¶ 91 Not infrequently, courts have relied on research about
adolescent behavior and brain development to underscore the
importance of exercising discretion when prosecuting juveniles. In
Roper v. Simmons, the Supreme Court — highlighting the research
on adolescent behavior that supports the view that child offenders
are less culpable and more capable of reform than adults who
commit similar crimes — declared the juvenile death penalty
unconstitutional. 543 U.S. 551 (2005). In accepting the premise
that adolescent offenders are less culpable, the Court cited research
demonstrating that adolescents are generally more “impetuous”
than adults and are thus “overrepresented statistically in virtually
every category of reckless behavior.” Id. at 569 (citation omitted).
¶ 92 For similar reasons, the Supreme Court later held, in Graham
v. Florida, 560 U.S. 48, 68 (2010), mandatory life without parole
sentences for those under the age of eighteen to be
43
unconstitutional. The Court reasoned that juveniles are less
culpable than adults and, therefore, are less deserving of the most
severe punishments. Id. This presumption that juveniles are
generally less culpable than adults is based on previous and
ongoing “developments in psychology and brain science” which
“continue to show fundamental differences between juvenile and
adult minds” in, for instance, “parts of the brain involved in
behavior control.” Miller v. Alabama, 567 U.S. ___, ___, 132 S. Ct.
2455, 2464 (2012) (quoting Graham, 560 U.S. at 68). According to
the Supreme Court, “[a]s compared to adults, juveniles have a ‘lack
of maturity and an underdeveloped sense of responsibility.’”
Graham, 560 U.S. at 68 (quoting Roper, 543 U.S. at 569-70).
Juveniles “are more vulnerable or susceptible to negative influences
and outside pressures, including peer pressure,” id. (quoting Roper,
543 U.S. at 569-70), and “they have limited ‘contro[l] over their own
environment’ and lack the ability to extricate themselves from”
harmful settings, Miller, 567 U.S. at ___, 132 S. Ct. at 2464
(alteration in original) (quoting Roper, 543 U.S. at 569). Finally, “a
child’s character is not as ‘well formed’ as an adult’s . . . and his
44
actions [are] less likely to be ‘evidence of irretrievabl[e] deprav[ity].’”2
Id. (alteration in original) (quoting Roper, 543 U.S. at 570).
Accordingly, “[i]t is difficult even for expert psychologists to
differentiate between the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile offender
whose crime reflects irreparable corruption.” Graham, 560 U.S. at
68 (alteration in original) (quoting Roper, 543 U.S. at 573).
II. Protecting Children from Sexual Exploitation
¶ 93 In contrast with the rehabilitative goals of Colorado’s juvenile
justice system, child pornography laws are meant to prevent the
sexual abuse of children necessarily present in the making of child
pornography. See § 18-6-403(3)(b.5), C.R.S. 2016; see also People
v. White, 656 P.2d 690, 693 (Colo. 1983) (recognizing that the sex
offender laws’ primary purpose is to protect the public from proven
2 Even justices not finding categorical Constitutional violations in
these juvenile cases agree with this precept. See Graham v. Florida,
560 U.S. 48, 90 (2010) (Roberts, C.J., concurring in the judgment)
(“Roper’s conclusion that juveniles are typically less culpable than
adults has pertinence beyond capital cases.”); Roper v. Simmons,
543 U.S. 551, 599 (2005) (O’Connor, J., dissenting) (“It is beyond
cavil that juveniles as a class are generally less mature, less
responsible, and less fully formed than adults, and that these
differences bear on juveniles’ comparative moral culpability.”).
45
dangerous sex offenders). Sexting, in comparison, generally
involves teens taking pictures of themselves, usually for their
boyfriend or girlfriend, and without the exploitative circumstances
that accompany the production of conventional child pornography.
The sexting at issue here entailed seventeen-year-old E.H. and
fifteen-year-old L.B., each voluntarily taking a photograph of
herself, and sending the photograph by text to another teen, T.B.;
these actions lack the exploitative element implicit in the laws
prohibiting child pornography. Texting, including sexting, is not
uncommon among today’s teens.3 To charge sexting between teens
3 The cell phone is the most direct and most widely used mode of
communication between young people. Seventy-one percent of
teens own a cell phone and seventy-six percent of teens have sent
text messages — in fact, of teens with cell phones, twenty-five
percent of teens aged twelve to fourteen text daily and fifty-one
percent of teens aged fifteen to seventeen text daily. See Amanda
Lenhart, Teens and Mobile Phones Over the Past 5 Years: Pew
Internet Looks Back 5, 8 (2009), available at
https://perma.cc/6W77-NDZL. A survey conducted on the topic of
sexting reported that twenty percent of the teens surveyed have
electronically sent or posted online a nude or semi-nude picture or
video of themselves. See The National Campaign to Prevent Teen &
Unplanned Pregnancy, Sex and Tech: Results from a Survey of Teens
and Young Adults 1 (2008), available at https://perma.cc/E8PX-
BEJD. Most teen sexting is sent between partners of a relationship
(i.e., between boyfriend and girlfriend), or to someone the sender is
interested in dating. Seventy-one percent of teen girls and sixty-
46
in these circumstances as child pornography, a prosecutor must
blatantly disregard the purpose and intent of the laws enacted to
protect children from the predators who would exploit them. See,
e.g., Bond v. United States, 572 U.S. ___, ___, 134 S. Ct. 2077,
2090-91 (2014) (condemning the attempt to prosecute a woman
who placed “irritating chemicals” on her husband’s mistress’ door
knob and mailbox under a statute criminalizing the possession and
use of “chemical weapons,” two actions the Court found to be
“worlds apart”). Consensual teen sexting is worlds apart from a
predator’s sexual exploitation of a child. Criminalizing the conduct
at issue here under the sexual exploitation statute — section 18–6–
403(3)(b.5) — turns a law that was intended to shield minors into a
sword used against their imprudent conduct. The expansive
interpretation given by the trial court, and affirmed here,4 could just
as easily have led to charges against the teen girls, the putative
seven percent of teen boys who have sexted say they sent this
content to a boyfriend or girlfriend. Id. at 2.
4 Like Judge Richman, I too would review T.B.’s challenges,
although I come to a different result than his. See People v. McCoy,
2015 COA 76M, ¶ 70 (Webb, J., specially concurring); People v.
Rediger, 2015 COA 26, ¶ 67 (Richman, J., specially concurring)
(cert. granted Feb. 16, 2016).
47
victims here. Surely that is not how the legislature intended section
18-6-403(3)(b.5) to be applied. See People v. Arapahoe Cty. Court,
74 P.3d 429, 430-31 (Colo. App. 2003) (applying the principle that
the court presumes that the General Assembly intended a just and
reasonable result — and thus avoids interpretations leading to
unjust or absurd results — before soundly rejecting a prosecution
argument that, pursuant to 18-6-403(3)(b.5), defense counsel could
not possess sexually explicit photographs needed to defend the
client); see also Stephen F. Smith, Jail for Juvenile Child
Pornographers?, 15 Va. J. Soc. Pol’y & L. 505, 525 (2008) (pointing
out that, in many states, minors can marry or engage in consensual
sex and arguing that, if the law considers a minor to be old enough
to engage in sex, the minor should be treated as if he or she is old
enough to document his or her sexual activity).
¶ 94 It is well established that a statute must set “minimal
guidelines to govern law enforcement” and avoid the potential for
discriminatory or arbitrary enforcement. City of Chicago v. Morales,
527 U.S. 41, 60 (1999) (citation omitted); Trail Ridge Ford, Inc. v.
Colo. Dealer Licensing Bd., 190 Colo. 82, 83-85, 543 P.2d 1245,
48
1246 (1975) (recognizing that where criminal or quasi-criminal
sanctions are to be imposed, the threat of arbitrary enforcement of
the law requires specificity). Given the incongruent application of
section 18-6-403(3)(b.5) here, I must conclude that sufficient
guidelines are not present. This lack of guidelines has led to a
discriminatory enforcement of the conduct of T.B. — and not E.H.
or L.B. — and an arbitrary enforcement of conduct that reasonable
people could conclude is imprudent, but is not sexually exploitative
such that the juvenile should be treated no differently than a
pedophile or a distributor of child pornography. See Arapahoe Cty.
Court, 74 P.3d at 430-31; see also Curtiss v. People, 2014 COA 107,
¶ 7 (rule of lenity requires courts to resolve ambiguities in the penal
code in favor of a defendant’s liberty interests). This statute could
be misused to prosecute juvenile males differently than juvenile
females, even where the juveniles may be similarly situated,
depending on which gender sends or receives more sexts. See The
National Campaign to Prevent Teen & Unplanned Pregnancy, Sex
and Tech: Results from a Survey of Teens and Young Adults 2
(2008), available at https://perma.cc/E8PX-BEJD. The male sext
49
recipient in this case faced charges, while the female producers and
distributors faced no legal consequences.
¶ 95 In 2009, the Colorado General Assembly amended two
statutes to address the sexting phenomenon. See Ch. 341, sec. 1,
§ 18-3-306, 2009 Colo. Sess. Laws 1792-93 (Internet luring of a
child); Ch. 341, sec. 1, § 13-21-1002, 2009 Colo. Sess. Laws 1792
(computer dissemination of indecent material to a child). These
amendments lend further support to the proposition that section
18-6-403(3)(b.5) was never intended to be used in the way it was
used against T.B. Instead, the legislature intended the 2009
amendments to address texting violations when appropriate.
¶ 96 Section 18-3-306 — the Internet luring of a child provision —
was altered as follows:
18-3-306. Internet luring of a child. (1) An
actor commits internet luring of a child if the
actor knowingly communicates a statement
over a computer or computer network,
telephone network, or data network or by text
message or instant message to a person who
the actor knows or believes is to be under
fifteen years of age describing and, in that
communication or in any subsequent
communication by computer, computer
network, telephone network, data network,
text message, or instant message, describes
50
explicit sexual conduct as defined in section
18-6-403(2)(e), and, in connection with the
communication that description, makes a
statement persuading or inviting the person to
meet the actor for any purpose, and the actor
is more than four years older than the person
or than the age the actor believes the person to
be.
Ch. 341, sec. 1, § 18-3-306, 2009 Colo. Sess. Laws 1792-93.
Although this provision covers sexting, it would not apply to fifteen-
year-old L.B or to seventeen-year-old E.H. Nor would it apply to
sixteen-year-old T.B., who was one year younger than E.H. and one
year older than L.B.
¶ 97 During the same legislative session, section 13-21-1002,
which imposes civil liability for disseminating indecent material to a
child, was modified as follows:
13-21-1002. Computer dissemination of
indecent material to a child—prohibition.
(1) A person commits computer dissemination
of indecent material to a child when: (a)
Knowing the character and content of the
communication which, in whole or in part,
depicts actual or simulated nudity, or sexual
conduct, as defined in section 19-1-103(97),
C.R.S., the person willfully uses a computer,
computer network, telephone network, data
network, or computer system allowing the
input, output, examination, or transfer of
computer data or computer programs from one
51
computer to another or a text-messaging or
instant-messaging system to initiate or engage
in such communication with a person he or
she believes to be a child[.]
Ch. 341, sec. 1, § 13-21-1002, 2009 Colo. Sess. Laws 1792.
Violations of section 13-21-1002, C.R.S. 2016, result in a civil
penalty “established pursuant to verdict or judgment.” § 13-21-
1003(1), C.R.S. 2016.
¶ 98 These legislative amendments suggest that, rather than
criminalizing sexting activity by and among teens, the legislature
most likely intended that civil penalties be imposed pursuant to
sections 13-21-1002 and 13-21-1003. See Lawrence G. Walters,
How to Fix the Sexting Problem: An Analysis of the Legal and Policy
Considerations for Sexting Legislation, 9 First Amend. L. Rev. 98,
121-22 (2010).
III. T.B.’s Section 18-6-403 Adjudication Irreparably Brands Him
as a Sex Offender, With all the Attendant Consequences
¶ 99 As a result of the court finding T.B. guilty of the two counts of
sexual exploitation of a child under section 18-6-403(3)(b.5) for the
photographs received from each teen girl, T.B.’s sentence includes
these restrictions (among others):
52
 T.B. was required to register as a sex offender (thereby
undermining the otherwise confidential nature of juvenile
proceedings).
 T.B. was required to submit to and pay a fee for DNA
testing.
 T.B. was required to actively participate in sex offender
evaluation and treatment.
 T.B. was required to submit, at his expense, to
psychological assessment and monitoring.
 T.B. was required to create a safety plan before attending a
school environment.
 T.B. was restricted from the use of any Internet service,
personal digital assistant devices, cell phones, and other
like devices.
 T.B. was restricted from dating without prior approval (and
if approved, was required to disclose the most private and
intimate details of that relationship).
 T.B. had to submit to vehicle and residence searches.
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 T.B. had to avoid overnight visits away from home without
prior authorization.
 T.B. was required to refrain from contact with any children
over the age of three without prior permission and was
required to remove himself from any situation involving
contact with children (even if incidental or accidental) and
report that contact.
 T.B. was restricted from going, absent prior approval, to
parks, playgrounds, recreation centers, arcades, and pools.
¶ 100 As evidenced by T.B.’s sentence, juvenile sexting adjudications
can have far-reaching adverse consequences for the juvenile,
especially where, as here, the juvenile is adjudicated delinquent for
an offense categorized as a sexual offense or an offense that would
require registration as a sex offender. Adjudications of delinquency
for sex-related offenses can preclude the juvenile from the following:
• Retaining custody of his or her minor child (if the juvenile is
already a parent, or becomes a parent while under court
supervision) if a dependency court finds that return of the
child to the parent presents safety or other concerns vis-a-
54
vis the child. See People in Interest of D.P., 160 P.3d 351,
353-54 (Colo. App. 2007).
• Obtaining approval as a foster or adoptive parent. See § 26-
6-104(7)(C), C.R.S. 2016 (“The state department shall not
issue a license to operate . . . a foster care home [or] a
residential child care facility . . . if the applicant . . ., an
affiliate of the applicant, a person employed by the
applicant, or a person who resides with the applicant . . .
has been convicted of . . . [a]ny offenses involving unlawful
sexual behavior [including those punishable under § 18-6-
403.]”).
• Pursuing certain occupations requiring working with
children, like jobs in education, child care, and law
enforcement. See 42 U.S.C. § 13041(c) (2012) (“Any
conviction for a sex crime [or] an offense involving a child
victim . . . may be ground for denying employment or for
dismissal of an employee in [child protective services, social
services, health and mental health care, child (day) care,
education, foster care, residential care, recreational or
55
rehabilitative programs, and detention, correctional, or
treatment services.]”); see also Dep’t of Educ. Reg. 301-37,
1 Code Colo. Regs. 301-37:2260.5-R15.00(2)(o) (providing
that violations of section 18-6-403(3)(b.5) and of similar
laws can lead to denial, suspension or revocation of a
teaching license); Dep’t of Educ. Reg. 301-37, 1 Code Colo.
Regs. 301-37:2260.5-R15.02(10).
• Returning to normalcy, as registration makes the juvenile’s
name, picture, and offense available to the public, including
classmates and the press.
• Pursuing higher education, obtaining employment, or
enlisting in the military. See Robert F. Shepard, Jr.,
Collateral Consequences of Juvenile Proceedings: Part II, 15
Crim. Just. 41 (Fall 2000).5
5 An increasing number of college and financial aid applications
inquire into juvenile adjudications, Robert F. Shepard, Jr.,
Collateral Consequences of Juvenile Proceedings: Part II, 15 Crim.
Just. 42 (Fall 2000), and certain drug offenses can make an
individual ineligible for financial aid. See Higher Education Act of
1965, 20 U.S.C. § 1091(r) (2012). While historically juvenile
adjudications have not been characterized as criminal convictions
in employment applications, many applications now include specific
references to juvenile adjudications. See Shepard, 15 Crim. Just.
56
• Exercising driving privileges in certain situations. Barbara
Fedders, Two Systems of Justice, and What One Lawyer Can
Do, 12 Whittier J. Child & Fam. Advoc. 25, 35 (2012); see
also §§ 42-2-125, -126, C.R.S. 2016. For juveniles who
reside in rural communities with limited public
transportation, the inability to drive may translate into an
inability to work.
• Having a clean slate in subsequent judicial matters. See
Michael Pinard, The Logistical and Ethical Difficulties of
Informing Juveniles about the Collateral Consequences of
Adjudications, 6 Nev. L. J. 1111, 1115 (2006). For example,
Colorado sentencing law permits calculations of a “prior
record score” to include juvenile adjudications of
delinquency. See People v. Perez-Hernandez, 2013 COA
160, ¶ 49.
at 42. Juvenile adjudications of delinquency may also preclude
eligibility for enlistment in the military. For example, based on the
United States Army’s classification system, juvenile delinquency
adjudications qualify as criminal offenses. Army Reg. 601-210, ¶ 4-
22(v) (Mar. 2013), available at https://perma.cc/U6FS-GFY5.
57
• Remaining in the United States, if the juvenile is not a
citizen. See, e.g., Serrato-Navarrette v. Holder, 601 F. App’x
734, 737 (10th Cir. 2015).
• Obtaining public housing, see generally Kristin Henning,
Eroding Confidentiality in Delinquency Proceedings: Should
Schools and Public Housing Authorities be Notified?, 79
N.Y.U. L. Rev. 520 (2004); Michael Pinard, The Logistical
and Ethical Difficulties of Informing Juveniles about the
Collateral Consequences of Adjudications, 6 Nev. L. J. 1111,
1114 (2006) (noting that housing authorities routinely
conduct background checks for adult applicants and may
“investigate whether any member of the family unit,
including a juvenile member, has been convicted of specific
disqualifying offenses”), and other public benefits, including
Temporary Assistance for Needy Families and food stamps,
see Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat.
2105, as amended by Balanced Budget Act of 1987, Pub. L.
No. 105-33, 111 Stat. 251.
58
¶ 101 On top of state-based restrictions, the Adam Walsh Child
Protection and Safety Act of 2006 specifically mandates that
juveniles be included in sex offender registries. See 42 U.S.C.
§ 16911(8) (2012). The Adam Walsh Act requires states to
“substantially implement” the Sex Offender Registration and
Notification Act (SORNA) requirements or risk forfeiting ten percent
of the funds normally received from the federal Omnibus Crime
Control and Safe Streets Act of 1968. 42 U.S.C. § 16925(a) (2012).
Certain SORNA classifications can result in registration for twenty-
five years to life, and require in-person “show-ups” two to three
times each year, while failing to register can subject the person to a
maximum term of imprisonment greater than one year. 42 U.S.C.
§§ 16913(e), 16915, 16916 (2012). If T.B. moves — for educational
or employment opportunities — he may be required to register as a
sex offender in other states pursuant to each state’s SORNA-
implementing legislation. See, e.g., Del. Code Ann. tit. 11,
§ 4120(e)(1) (West 2013) (requiring registration in Delaware for
violation of substantially similar sex offense laws in another state);
Ohio Rev. Code Ann. § 2950.01(12) (West 2016) (same); see also
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Nicole Marie Nigrelli, Comment, Sex Offender Registry: Is it
Attacking People That Were Not Meant to Be Part of the Law?, 4
Suffolk J. Trial & App. Advoc. 343, 345 & n.15 (1999) (noting that
all states have some form of child sex offender registration
requirements).
¶ 102 For all the foregoing reasons, I would reverse juvenile T.B.’s
adjudication — under section 18-6-403(3)(b.5) — based on receiving
sexts from his teenage girlfriends E.H. and L.B. Given this
disposition, I need not address the remaining contentions.
60