People v. Boles, 10CA1264.

• Decision Date: 01 September 2011
• Docket Number: No. 10CA1264.,10CA1264.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Giel BOLES, Defendant–Appellant.
• Court: Colorado Court of Appeals

280 P.3d 55

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

v.Giel BOLES, Defendant–Appellant.

No. 10CA1264.

Colorado Court of Appeals.

Sept. 1, 2011.

John W. Suthers, Attorney General, Corelle M. Spettigue, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Bethart Law Firm, L.L.C., Andrew T. Bethart, Colorado Springs, Colorado, for Defendant–Appellant.

Opinion by Judge PLANK.^*

Defendant, Giel Boles, appeals the judgments of conviction entered on jury verdicts finding him guilty of criminal attempt to commit Internet sexual exploitation of a child, Internet luring of a child, and obscenity. Specifically, he contends that the Internet luring and obscenity statutes under which he was convicted are unconstitutional, and that there was insufficient evidence to sustain the criminal attempt conviction. We conclude that the challenged statutes are constitutional and that the evidence at trial was sufficient. Therefore, we affirm.

In December 2008, defendant, while online in an adult Internet chat room and using a screen name, initiated a conversation with an undercover detective posing as a fourteen-year-old girl named “Trista.” For over a month, defendant and “Trista” had numerous online, phone, and text conversations, the majority of which were sexual in nature.

Over the course of these conversations, defendant sent “Trista” a sexual joke with a pornographic image attached, and “Trista” told defendant her supposed age several times. In later conversations, defendant asked “Trista” if she wanted to meet him in person and they discussed how she would travel from her supposed home in Denver to Colorado Springs, where defendant lived.

By verifying Internet and phone records, the detective identified defendant as the person with whom she had been conversing, and he was ultimately charged with the above-mentioned offenses. Before trial, defendant moved to dismiss the Internet luring and obscenity charges on the grounds that the statutes defining the offenses were unconstitutional, for the same reasons he argues on appeal. After a hearing, the trial court denied the motions in two written orders.

At trial, the detective who posed as “Trista” testified in detail as to the content of her exchanges with defendant, and the online, text, and phone conversations were admitted into evidence.

Defendant testified that he thought his interaction with “Trista” was a “role-play,” that is, she was only pretending to be a fourteen-year-old girl but, in reality, was an adult. He also testified that he never wanted to meet her but, rather, those conversations were part of the role-play. Defendant also presented a witness, qualified as an expert in human sexual relations, who testified that, in his opinion, the transcripts of the conversations were consistent with “fantasy role play.”

I. Constitutionality of Internet Luring Statute

Defendant challenges the constitutionality of the Internet luring statute, section 18–3–306, C.R.S.2010¹, on several grounds. We conclude that the statute is constitutional.

An actor commits Internet luring of a child if

the actor knowingly communicates over a computer or computer network, telephone network, or data network or by a text message or instant message to a person who the actor knows or believes to be under fifteen years of age and, in that communication or in any subsequent communication by computer, computer network, telephone network, data network, text message, or instant message, describes explicit sexual conduct ..., and, in connection with 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.

§ 18–3–306(1).

“Explicit sexual conduct” is defined as “sexual intercourse, erotic fondling, erotic nudity, masturbation, sadomasochism, or sexual excitement.” § 18–6–403(2)(e), C.R.S.2010.

We review the constitutionality of statutes de novo. Hinojos–Mendoza v. People, 169 P.3d 662, 668 (Colo.2007). Because statutes are presumed to be constitutional, the party challenging the facial constitutionality of a statute has the burden of showing the statute is unconstitutional beyond a reasonable doubt. Id.

A. Overbreadth Challenge

Defendant first contends the Internet luring statute is facially overbroad and substantially chills constitutionally protected speech. We are not persuaded.

Generally, a facial challenge can succeed only if the complaining party shows that the statute is unconstitutional in all its applications. Dallman v. Ritter, 225 P.3d 610, 625 (Colo.2010). In a facial challenge asserting that a statute is unconstitutional under the First Amendment, however, a showing that the law is overbroad may be sufficient to invalidate its enforcement. Id.

Nevertheless, a statute is unconstitutionally overbroad only if it includes within its proscriptions a substantial amount of constitutionally protected speech. 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.” Id. (quoting People v. Baer, 973 P.2d 1225, 1231 (Colo.1999)). If a statute meets this description, it must be invalidated unless the court can supply a limiting construction or partial invalidation that narrows the scope of the statute to constitutionally acceptable applications. Id.

Because defendant concedes that “Colorado has a compelling interest in protecting the physical and psychological well-being of minors,” our overbreadth analysis involves two questions: first, whether the statute encompasses constitutionally protected communications; and second, if the statute extends to such communications, whether it impacts a “substantial” amount of protected communication such that it is unconstitutional, or whether unconstitutional applications of it should be cured on a case-by-case basis. Hickman, 988 P.2d at 636.

Defendant primarily relies on Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), to argue that, for various reasons ², the luring statute regulates constitutionally protected speech. In Reno, the Supreme Court held that as applied to noncommercial speech, two provisions of the Communications Decency Act of 1996, as amended, 47 U.S.C. § 223(a) & (d), which prohibited the knowing transmission of obscene, indecent, or patently offensive messages, were overbroad because they “effectively suppresse[d] a large amount of speech that adults have a constitutional right to receive and to address to one another.” 521 U.S. at 874, 117 S.Ct. at 2346.

In answering the first question, we conclude that the statute encompasses constitutionally protected communication, for two reasons:

• The prohibition is not content neutral because it applies only if a communication describes “explicit sexual conduct.” See, e.g., Denver Publ'g Co. v. City of Aurora, 896 P.2d 306, 318 (Colo.1995) (“a presumption of constitutionality attaches to content-neutral legislation”).

• The definition of “explicit conduct,” while narrow, is broader than the definition of obscenity as an exception to constitutionally protected speech. See People v. Ford, 773 P.2d 1059, 1063 n. 2 (Colo.1989) (citing “[t]he three-part test articulated in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973)”).

Our conclusion is not altered by cases such as People v. Foley, 94 N.Y.2d 668, 709 N.Y.S.2d 467, 731 N.E.2d 123, 127 (2000), which rejected an overbreadth challenge to a New York statute that made it a crime to send communications depicting “actual or simulated nudity, sexual conduct or sado-masochistic abuse” to a minor and then, by means of that communication, “importune[ ], invite[ ] or induce[ ]” the minor to engage in sexual contact. N.Y. Penal Law § 235.22. The court explained that, unlike the statute in Reno, the New York law was “not directed at the mere transmission of certain types of communication over the Internet.” Foley, 709 N.Y.S.2d 467, 731 N.E.2d at 129. Rather, the luring aspect of the statute targeted “acts of communication ... not ... the content of one's views” and identified “forms of conduct which may provide a predicate for criminal liability.” Id.³

Here, because section 18–3–306(1) requires an actor, in connection with a description of explicit sexual conduct, to make a statement “persuading or inviting” the minor to meet, it does not authorize criminal charges based solely on speech. Cf. State v. Robins, 253 Wis.2d 298, 646 N.W.2d 287, 297 (2002) (“That an act of child enticement is initiated or carried out in part by means of language does not make the child enticement statute susceptible of First Amendment scrutiny.”). However, the statutes at issue in these cases require that the minor be “lured” to engage in unlawful conduct. In contrast, the luring element of section 18–3–306(1) is much broader: “to meet the actor for any purpose.” The Attorney General has not cited, nor are we aware of, any case upholding such a statute where the proscribed conduct begins with a communication protected by the First Amendment and does not include any conduct that is itself unlawful.

Nevertheless, in answering the second question, we further conclude that defendant has failed to show section 18–3–306(1) suppresses “a large amount of speech” subject to constitutional protection. Reno, 521 U.S. at 874, 117 S.Ct. at 2332. Because the statute at issue in Reno did not involve a luring element, the Supreme Court's analysis dealt only with the right to transmit obscene or indecent communications to any recipient under eighteen years of age. But in determiningwhether the impact of section 18–3–306(1) on speech is more than “slight,” Hickman, 988 P.2d at 635, we consider only those circumstances where...