People v. Bott, Supreme Court Case No. 19SC599

• Docket Nº: Supreme Court Case No. 19SC599
• Citation: 477 P.3d 137
• Case Date: December 14, 2020
• Court: Supreme Court of Colorado

477 P.3d 137

The PEOPLE of the State of Colorado, Petitioner,
v.
Joshua Christian BOTT, Respondent

Supreme Court Case No. 19SC599

Supreme Court of Colorado.

December 14, 2020

Attorneys for Petitioner: Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Megan A. Ring, Public Defender, Mark Evans, Deputy Public Defender, Denver, Colorado

En Banc

CHIEF JUSTICE COATS delivered the Opinion of the Court.

¶1 The People petitioned for review of the court of appeals’ judgment vacating eleven of Bott's twelve convictions for sexual exploitation of a child by possession of sexually exploitative material. See People v. Bott , 2019 COA 100, 479 P.3d 29 (Colo. App. 2019). In reliance on language from the statute's legislative declaration and court of appeals’ decisional law predating current amendments to the statute, the trial court denied Bott's motion to dismiss all but one of these exploitation counts as multiplicitous, finding that the legislature intended to permit conviction for each single incident of victimization. The court of appeals disagreed, finding instead that the applicable unit of prosecution was determined by the legislature when it chose to amend the statute to designate the act of possessing more than twenty different items qualifying as sexually exploitative material a class 4 felony. Accordingly, the court of appeals held Bott's conviction of multiple class 4 felonies for possessing separate items numbering multiple times greater than twenty violated his constitutional protection against being subjected to jeopardy more than once for the same crime.

¶2 Because the language of section 18-6-403, C.R.S. (2020), defining and proscribing the offense of sexual exploitation of a child, makes clear the legislature's intent that possession pursuant to subsection (3)(b.5) of any number of items exceeding twenty that qualify as sexually exploitative material constitutes a single offense, the judgment of the court of appeals is affirmed.

I.

¶3 Joshua Christian Bott was charged with five counts of sexual assault on a child, three counts of sexual exploitation of a child (distribution), and twelve counts of sexual exploitation of a child (possession of more than twenty items). He was convicted of all charges and was sentenced to terms of eight years to life on each count of sexual assault, to run consecutively; twelve years for distribution;

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and two years on each of the counts of possession, also to run consecutively.

¶4 As relevant to the issue before this court, evidence at trial indicated that during a search of the defendant's home, the police seized a memory card containing some 294 sexually exploitative images of children. The images depicted at least 250 different victims, including some infants. With regard to the charges of sexual exploitation of a child by possession of sexually exploitative material, the prosecution grouped the images into twelve separate bundles, each containing more than twenty images, and charged the defendant with the class 4 felony of possessing more than twenty different items qualifying as sexually exploitative material, as proscribed at section 18-6-403(3)(b.5) and (5)(b)(II), as to each bundle.

¶5 Both before and during trial, the defendant moved to dismiss eleven of the twelve charges on grounds that possession of more than twenty qualifying items constituted a single offense, for which he could not be convicted and punished more than once. The district court denied the motions, finding that the statute proscribed as a separate offense "each single incident of victimization." On appeal, the intermediate appellate court reversed the defendant's convictions for sexual assault on a child, for the separate reason that the prosecution failed to produce sufficient evidence of those charges. It also vacated eleven of the defendant's twelve convictions for possessing sexually exploitative materials, finding that the statute proscribes an act of possession, which was evidenced in this case by the defendant's possession of a memory card containing more than twenty qualifying items. The defendant did not appeal his convictions and sentences for sexual exploitation of a child (distribution).

¶6 We granted the People's petition for a writ of certiorari solely on the question whether the court of appeals erred in vacating eleven of the defendant's convictions for sexual exploitation of a child, as a violation of the constitutional bar to his being placed in jeopardy more than once for the same offense.

II.

¶7 The double jeopardy clauses of both the federal and state constitutions protect individuals not only from prosecution after either an acquittal or conviction of the same offense, but also from being subjected to multiple punishments for the same offense. See North Carolina v. Pearce , 395 U.S. 711, 717, 89 S.Ct. 2089, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith , 490 U.S. 794, 795, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). Although the Supreme Court has clarified this articulation of the constitutional protection—specifying that with respect to cumulative sentences imposed at a single proceeding, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended, Missouri v. Hunter, 459 U.S. 359, 366–69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) ; see Whalen v. United States , 445 U.S. 684, 691–92, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) ; see also Lewis v. People , 261 P.3d 480, 481 (Colo. 2011) (summarizing this court's jurisprudence acknowledging this clarification and accepting it as the correct interpretation of the state constitutional jeopardy provision as well)—it nevertheless remains the case that unless the General Assembly makes clear its intent to punish the same offense with more than one conviction and sentence, it is not constitutionally permitted to do so, see Hunter , 459 U.S. at 368–69, 103 S.Ct. 673 ; Boulies v. People , 770 P.2d 1274, 1278–79 (Colo. 1989).

¶8 Subject to constitutional limitations, it is, however, the prerogative of the legislature to define crimes and prescribe punishments. Sanabria v. United States , 437 U.S. 54, 69–70, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) ; Woellhaf v. People , 105 P.3d 209, 215–20 (Colo. 2005) ; Martinez v. People , 69 P.3d 1029, 1031 (Colo. 2003). Because any particular criminal proscription can be violated more than once and often in more than one way, it is similarly for the legislature to determine the breadth of the conduct it intends to be punished as a single crime or single violation of its criminal proscription. Although not specifically defining the term, the Supreme Court, in cases involving more than one violation

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of a single statute, has referred to "the offense which the legislature intended to create," as the "unit of prosecution." People v. Abiodun , 111 P.3d 462, 470 (Colo. 2005) ; see Ladner v. United States , 358 U.S. 169, 174–75, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958) ; Bell v. United States , 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955) ; see also Callanan v. United States , 364 U.S. 587, 597, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961) (unit of prosecution discerns whether conduct constitutes one or several violations of a single statutory provision); see generally Note, Twice in Jeopardy , 75 Yale L.J. 262, 313 (1965).

¶9 Further, the Court has expressly held that "once Congress has defined a statutory offense by its prescription of the ‘allowable unit of prosecution’ ... that prescription determines the scope of protection afforded by a prior conviction or acquittal." Sanabria...