People v. Helms, Court of Appeals No. 14CA0862

• Docket Nº: Court of Appeals No. 14CA0862
• Citation: 396 P.3d 1133
• Case Date: June 16, 2016
• Court: Court of Appeals of Colorado

396 P.3d 1133

The PEOPLE of the State of Colorado, Plaintiff–Appellee,
v.
Scott Allen HELMS, Defendant–Appellant.

Court of Appeals No. 14CA0862

Colorado Court of Appeals, Div. III.

Announced June 16, 2016

396 P.3d 1138

Cynthia H. Coffman, Attorney General, Molly E. McNab, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Gregory Lansky, Alternate Defense Counsel, Aurora, Colorado, for Defendant–Appellant.

Opinion by JUDGE J. JONES

¶ 1 Defendant, Scott Allen Helms, appeals the district court's judgment of conviction entered on jury verdicts finding him guilty of two counts of Internet sexual exploitation of a child. He also appeals the revocation of his probation. We reverse defendant's conviction on one of the two counts, reverse the revocation of defendant's probation, and otherwise affirm. As matters of first impression, we hold that the statute criminalizing Internet child exploitation, section 18–3–405.4(1)(a), C.R.S. 2015, does not violate the dormant Commerce Clause, is not unconstitutionally overbroad, and does not violate a defendant's right to due process.

I. Background

¶ 2 On February 1, 2013, defendant, then age forty-seven, started a conversation in an Internet chat room with "Miranda." "Miranda" was actually Sergeant Troy Hendricks pretending to be a fourteen-year-old girl.¹ After "Miranda" moved the conversation to a private chat, defendant asked her to take off her clothes and rub her nipples. Defendant then asked "Miranda" if she had a younger sister with her. "Miranda" responded that there were two other girls who lived in her building, ages thirteen and twelve. Defendant asked her to go get the other girls.

¶ 3 "Miranda" told defendant that "Lizzy" (also Sergeant Hendricks) had come over and that she was twelve years old. Defendant made the "girls" promise that they would not tell their parents about their interaction with him. He then asked the "girls" to take off each other's clothes, to perform oral sex, and for "Miranda" to insert an item into "Lizzy's" vagina. Defendant asked the "girls" to take photos of each other naked performing the requested acts.

¶ 4 During this chat, defendant asked "Miranda" to video chat. Sergeant Hendricks placed a piece of paper over his camera so that defendant could not see him, and defendant assumed that "Miranda's" video camera did not work. Sergeant Hendricks was able to capture a photo of defendant while defendant was trying to video chat with the "girls."

¶ 5 A few days later, on February 5, defendant started a second chat conversation with "Miranda." He asked "Miranda" to send him the pictures that she had taken of herself and "Lizzy" during their first chat conversation on February 1. Defendant told "Miranda" that he loved her, wanted to "do [her]," and would buy her a plane ticket to come visit him in Maine. He asked her if she was on birth control. When she said yes, he told her to throw away the pills because he wanted to impregnate her. Sergeant Hendricks gave defendant "Miranda's" cell phone number, saying that defendant could text "Miranda." Defendant sent "Miranda" a text message.

¶ 6 Sergeant Hendricks called defendant the next day using the number from which "Miranda" had received a text message. The call went to defendant's voicemail. Defendant called Sergeant Hendricks back later that day. When Sergeant Hendricks told defendant that he had records of his conversations with "Miranda," including a picture of defendant, defendant admitted that he had communicated with "Miranda" and had asked her to perform sexual acts. Defendant said that he "[had] a problem" and was going to counseling.

¶ 7 Sergeant Hendricks called defendant again the next day to talk about the incident. Defendant told Sergeant Hendricks that he was planning to fly "Miranda" out to visit him and hide her in a hotel.² Defendant said that his wife would "kick [his] ass" if she were to find out he had flown "Miranda" out to visit him.

396 P.3d 1139

¶ 8 The State initially charged defendant with eight counts of Internet sexual exploitation of a child. See § 18–3–405.4(1)(a). Ultimately, defendant faced only two counts. Count one charged that defendant had violated the Internet child exploitation statute by asking "Miranda" to "expose or touch [her] or another person's intimate parts while communicating with the defendant via a computer network" on February 1, 2013. Count two charged the same type of violation occurring on February 5, 2013. A jury convicted defendant as charged, and the district court sentenced him to ten years to life of supervised probation on each count, to run concurrently.

¶ 9 The district court later revoked defendant's probation when he failed to register as a sex offender. The court resentenced defendant to the custody of the Department of Corrections for an indeterminate term of two years to life.

II. Discussion

¶ 10 Defendant contends that we should reverse his convictions because (1) section 18–3–405.4(1)(a) is unconstitutional for various reasons; (2) the district court denied him a fair trial by admitting "other bad act" evidence and the prosecutor engaged in misconduct by referring to that evidence; (3) there is insufficient evidence to support his convictions because he did not commit any criminal acts in Colorado; (4) there is insufficient evidence to support his conviction for count two because his alleged actions forming the basis for count two—asking "Miranda" to send him the photos he thought she had taken on February 1—are not criminalized by the Internet child exploitation statute; and (5) the district court should have declared a mistrial when a witness mentioned another investigation, violating the court's prior ruling that the other investigation should not be mentioned. Defendant also contends that the district court erred by revoking his probation and resentencing him without conforming to statutory requirements.

¶ 11 We agree with defendant that there is insufficient evidence to support his conviction for count two and that the district court erred in revoking his probation. We otherwise reject defendant's contentions.

A. Constitutionality of the Internet Child Exploitation Statute

¶ 12 The Internet child exploitation statute provides in relevant part:

(1) An actor commits internet sexual exploitation of a child if the actor knowingly importunes, invites, or entices through communication via a computer network or system, telephone network, or data network or by a text message or instant message, a person whom the actor knows or believes to be under fifteen years of age and at least four years younger than the actor, to:

(a) Expose or touch the person's own or another person's intimate parts while communicating with the actor via a computer network or system, telephone network, or data network or by a text message or instant message....

§ 18–3–405.4(1)(a).

¶ 13 Defendant contends that the Internet child exploitation statute is facially unconstitutional because it violates the so-called dormant Commerce Clause of the United States Constitution, violates the First Amendment because it is overly broad, and violates his constitutional right to due process because it is vague.³ These challenges fail.

1. Standard of Review

¶ 14 Defendant concedes that he did not preserve these contentions. We will nevertheless consider them because the factual record is sufficient to allow us to do so. See People v. Houser , 2013 COA 11, ¶ 35, 337 P.3d 1238 ; People v. Allman , 2012 COA 212, ¶ 16, 321 P.3d 557 ; People v. Greer , 262 P.3d 920, 933–36 (Colo. App. 2011) (J. Jones, J., specially concurring). We will do so, however, applying the plain error standard of review. See Hagos v. People , 2012 CO 63, ¶ 14, 288 P.3d 116

396 P.3d 1140

(constitutional errors that were not preserved are reviewed for plain error). Reversal for plain error is required only if (1) there was an error; (2) that error was obvious; and (3) that error so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. Id.

¶ 15 We review the constitutionality of a statute 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 that the statute is unconstitutional beyond a reasonable doubt. Id.

2. Dormant Commerce Clause

¶ 16 Article I, Section 8, Clause 3 of the United States Constitution (the Commerce Clause) authorizes Congress to "regulate Commerce with foreign Nations, and among the several States." Though the Commerce Clause says nothing about the protection of interstate commerce in the absence of any action by Congress, the Supreme Court has held that it prohibits certain state actions that interfere with interstate commerce. This application of the Commerce Clause is referred to as the "dormant" Commerce Clause. Quill Corp. v. North Dakota , 504 U.S. 298, 309, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992).

¶ 17 "The negative or dormant implication of the Commerce Clause prohibits state taxation or regulation that discriminates against or unduly burdens interstate commerce and thereby...