People v. Batchelor, 89SA31

Decision Date13 November 1990
Docket NumberNo. 89SA31,89SA31
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David R. BATCHELOR, Defendant-Appellant.
CourtColorado Supreme Court

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Milton Hutchins, First Asst. Atty. Gen., and Timothy R. Twining, Asst. Atty. Gen., Appellate Section, Denver, for plaintiff-appellee.

Larry Dean Allen, Canon City, for defendant-appellant.

Justice MULLARKEY delivered the Opinion of the Court.

In July 1987, nine-year-old K.B. stayed overnight at the home of her father, the defendant David Batchelor. While K.B. was sleeping, Batchelor took several "instant" snapshots of K.B., nude from the waist down. The photographs were discovered in August, 1987, by Rosemary Luth, Batchelor's then-fiancee with whom he lived, and Jamie Lyons, K.B.'s mother and Batchelor's former wife. Luth and Lyons discovered the photographs of K.B. wrapped in cloth inside a small box in a locked closet, located downstairs in Batchelor's residence. When questioned about the origin of the photos, Batchelor told the police:

I just took the pictures. I don't know why. I just did. She was asleep, and I got the camera, pulled her panties down and took a picture, changed her position and took more photos.

According to the police report, Batchelor stated that he "had never touched his daughter sexually" and his daughter agreed. Batchelor was charged and convicted of one count of sexual exploitation of a child under section 18-6-403(3)(b), 8B C.R.S. (1986), on the theory that his photographs of K.B. depicted "erotic nudity" as defined in section 18-6-403(2)(d), 8B C.R.S. (1986). 1 He was sentenced to 60 days' incarceration

in county jail, together with four years' probation and a $5,000 fine. Batchelor appealed to this court, challenging the constitutionality of section 18-6-403(3)(b), and contending that there was not sufficient evidence to establish his guilt beyond a reasonable doubt with regard to the required mental state under the statute. We affirm the conviction.

I.

Batchelor argues that section 18-6-403(3)(b) is overbroad because it would criminalize constitutionally protected photographs, e.g., pictures which parents take of their young children in a wading pool or on a beach and the prototypical photographs of nude babies on a bearskin rug. Batchelor contends that section 18-6-403(3)(b), when used to prosecute for making materials depicting erotic nudity as defined by section 18-6-403(2)(d), is unconstitutionally overbroad, both on its face 2 and as applied to Batchelor in this case.

Statutes are not unconstitutional due to facial overbreadth unless the overbreadth is "not only real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973). See also Ferber, 458 U.S. at 772, 102 S.Ct. at 3363. Depictions of child nudity, without more, are constitutionally protected expression. Ferber, 458 U.S. at 765 n. 18, 102 S.Ct. at 3359 n. 18 (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 213, 95 S.Ct. 2268, 2274, 45 L.Ed.2d 125 (1975)). To defeat a challenge of substantial overbreadth,

the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed.... The category of "sexual conduct" proscribed must ... be suitably limited and described.

Id., 458 U.S. at 764, 102 S.Ct. at 3358. Thus, statutes prohibiting the production Section 18-6-403(2)(d) includes "erotic nudity" as explicit sexual conduct. The statute defines erotic nudity as follows:

or distribution of child pornography must sufficiently narrow the scope of their prohibitions to avoid "criminaliz[ing] an intolerable range of constitutionally protected conduct." Osborne v. Ohio, 495 U.S. 103, ----, 110 S.Ct. 1691, 1697, 109 L.Ed.2d 98 (1990). We find that section 18-6-403(3)(b) is not substantially overbroad.

"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 female breasts, or the undeveloped or developing breast area of the human female 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), 8B C.R.S. (1986). Under the tests articulated in Ferber and Osborne, the mere "display" of a child's undeveloped, developing or developed genitals, pubic area, or female breasts, without more, constitutes protected expression. Limiting the prohibition of such "displays" to material made "for the purpose of overt sexual gratification or stimulation of one or more of the persons involved," however, simultaneously targets child pornography, which is not protected speech, see, e.g., Ferber, 458 U.S. at 764, 102 S.Ct. at 3358, and reduces the possibility that the statute will be used to prohibit protected speech. So limited, the statute does not reach constitutionally protected materials depicting nude children for family, educational, medical, artistic or other legitimate purposes. Moreover, to the extent such constitutionally protected works may come within the reach of the statute, "we seriously doubt ... that these arguably impermissible applications of the statute [will] amount to more than a tiny fraction of the materials within the statute's reach." Ferber, 458 U.S. at 773, 102 S.Ct. at 3363. 3

Batchelor also argues that an element of scienter is essential to the "erotic nudity" section of the statute to distinguish between materials protected by the First Amendment and the child pornography the statute seeks to combat. Batchelor is correct in arguing that an element of scienter is required for section 18-6-403(3)(b) to be constitutional. See Ferber, 458 U.S. at 747, 102 S.Ct. at 3348. Batchelor is incorrect, however, in arguing that section 18-6-403(3)(b) does not contain an element of scienter. The statutory elements of the crime are as follows:

A person commits sexual exploitation of a child if, for any purpose, he knowingly ... makes ... any photograph ... which depicts a child being used for ... the display of the human ... female genitals or pubic area [or] the undeveloped or developing genitals or pubic area of the human female 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), (2)(e), (2)(j), (3)(b), 8B C.R.S. (1986) (emphasis added). "Knowingly" is the degree of culpability required to violate section 18-6-403(3)(b) and the scienter requirement laid down in Ferber therefore is satisfied. 4 In addition the statute requires that the conduct be done for the purpose of sexual gratification. Under Section 18-6-403(3)(b) also is not overbroad as applied to Batchelor in this case. The photographs Batchelor took were not taken for family, educational, artistic or any other legitimate purpose. The trial court specifically found that the photographs were taken for no reason other than Batchelor's sexual gratification. The photographs in this case therefore constitute child pornography. Child pornography is not protected speech. Section 18-6-403(3)(b) therefore is not overbroad as applied to Batchelor.

these circumstances, the statute is not substantially overbroad.

II.

Batchelor also challenges that section 18-6-403(3)(b), when used to prosecute for making materials depicting erotic nudity as defined by section 18-6-403(2)(d), is unconstitutionally vague, both facially and as applied to him. We uphold the constitutionality of the statute.

Laws must provide fair warning of their prohibitions to avoid trapping the innocent. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1971). Thus, a criminal statute may be unconstitutionally vague when people "of common intelligence must necessarily guess at its meaning." See, e.g., People v. Weeks, 197 Colo. at 178, 591 P.2d at 94 (citing Connally v. General Construction Company, 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)). A penal statute also must articulate definite and precise standards capable of fair application by those who must apply them to avoid arbitrary and discriminatory enforcement. People v. Norman, 703 P.2d 1261, 1266 (Colo.1985) (citations omitted); Grayned, 408 U.S. at 108, 92 S.Ct. at 2298. Statutes confronting First Amendment freedoms must be specific enough not to inhibit the exercise of those freedoms. Grayned, 408 U.S. at 109, 92 S.Ct. at 2299 (citations omitted).

Section 18-6-403(3)(b) contains sufficiently particularized standards so that it is not unconstitutionally vague. The section defining erotic nudity limits its scope to depictions "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), 8B C.R.S. (1986). Thus, only those depictions of nudity taken for the purpose of sexual gratification or stimulation are proscribed by the statute. This limitation on the scope of section 18-6-403(3)(b) provides citizens with a specific warning of what conduct is prohibited and ensures protection from arbitrary or discriminatory enforcement of the statute. Police, prosecutors, judges and juries do not have discretion under this statute to charge or convict a defendant for making photographs depicting nudity for any purpose other than sexual gratification or stimulation. This limitation also avoids inhibiting freedom of expression. Photographs taken for family, artistic, or any other legitimate purpose are not proscribed by the statute. The statute only proscribes materials that are not constitutionally protected. 5

III.

Batchelor also argues that in order for material to constitute "erotic nudity" as prohibited by the statute, the material must depict the person...

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