In re People, Court of Appeals No. 14CA1142

• Docket Nº: Court of Appeals No. 14CA1142
• Citation: 452 P.3d 36
• Case Date: October 20, 2016
• Court: Court of Appeals of Colorado

452 P.3d 36

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

IN the INTEREST OF T.B., Juvenile–Appellant.

Court of Appeals No. 14CA1142

Colorado Court of Appeals, Division VI.

Announced October 20, 2016
As Modified on Denial of Rehearing December 29, 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

Opinion by JUDGE RICHMAN

¶ 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,

452 P.3d 39

sentenced him to two 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 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. When her mother later found out about these photographs, E.H. ‘‘was very ashamed of [herself]’’ and ‘‘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.

II. Sufficiency of the Evidence

¶ 12 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

¶ 13 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.

¶ 14 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.

¶ 15 The juvenile and the prosecution disagree about what standard of review should apply to the juvenile's second, unpreserved, sufficiency of the evidence contention.

¶ 16 The prosecution argues that we should review this unpreserved assertion only for plain error. See People v. McCoy , 2015 COA 76M, ¶ 70, 444 P.3d 766, 2015 WL 3776920 (Webb, J., specially concurring) (cert. granted October 3, 2016); People v. Lacallo , 2014 COA 78, ¶¶ 12, 30–31, 338 P.3d 442.

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¶ 17 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 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.

¶ 18 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, 411 P.3d 907, 2015 WL 1090041 (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).

¶ 19 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 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, 409 P.3d 411, 2015 WL 7769017 ; 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

¶ 20 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.

¶ 21 " ‘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).

¶ 22 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

¶ 23 When the trial court adjudicated the juvenile delinquent at the end of...