People v. Henley

• Decision Date: 01 June 2017
• Docket Number: Court of Appeals No. 14CA0014
• Citation: 488 P.3d 195
• Court: Colorado Court of Appeals
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. David Allan HENLEY, Defendant-Appellant.

488 P.3d 195

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

v.David Allan HENLEY, Defendant-Appellant.

Court of Appeals No. 14CA0014

Colorado Court of Appeals, Division IV.

Announced June 1, 2017

Rehearing Denied June 29, 2017

Certiorari Dismissed September 5, 2017

Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE J. JONES

¶ 1 Defendant, David Allan Henley, appeals the district court's judgment of conviction entered on jury verdicts finding him guilty of twenty-two counts of sexual exploitation of a child (possession of materials) and one count of sexual exploitation of a child (possession of more than twenty items). He also appeals the district court's related habitual criminal adjudications. We vacate defendant's convictions and adjudications because there is insufficient evidence that the photographs on which the charges are based constitute "erotic nudity" so as to qualify as "sexually exploitative material" under the charging statute, section 18-6-403, C.R.S. 2016. In so concluding, we hold that images which, when viewed objectively, aren't "erotic nudity" don't become so merely because a particular person—one not involved in the creation or distribution of the images—looks at them for the purpose of personal sexual gratification.

I. Background

¶ 2 Defendant's community college classmate saw him looking at what appeared to be pictures of clothed children in "sexual" poses on his laptop computer during class. The classmate reported this to the teacher and to police.

¶ 3 A detective searched defendant's computer and found over ninety images that he thought were sexually exploitative. He also discovered that the computer had been used to search the Internet for "preteen girl pics" and "preteen sluts."

¶ 4 The People charged defendant with twenty-five counts of sexual exploitation of a child under section 18-6-403(3)(b.5) for twenty-five of the individual images (charged images), and one count of sexual exploitation of a child (possession of more than twenty items) under section 18-6-403(3)(b.5), (5)(b)(II).¹

¶ 5 The charged images show fully or partially naked children (sometimes accompanied by adults) talking to others, walking outside, standing outside, posing in costume, or participating in activities like body painting and playing games.

¶ 6 Before trial, defense counsel moved to prohibit the prosecutor from introducing the other images that the detective had found on defendant's computer (uncharged images), arguing that they could confuse the jury and were unduly prejudicial. (These images were of provocatively dressed children (posed suggestively) and naked adults.) The court asked the prosecutor why the uncharged images were relevant. The prosecutor responded that because the charged images were "nudist photographs" that "in and of themselves would not qualify as exploitative," the uncharged images were relevant to show that defendant looked at the charged images for his personal sexual gratification. He said defendant's purpose in looking at the charged images "makes them exploitative images."

¶ 7 The district court apparently agreed with the prosecutor. It said it would allow the prosecutor to introduce the uncharged images because "this does constitute res gestae," and the uncharged images would "provid[e] the context within which items are found." It concluded, "I find there would be potential relevance to show intent here."

¶ 8 During trial, the prosecutor introduced the charged and uncharged images into evidence. As well, defendant's classmate testified as to what he'd seen on defendant's computer, and the detective testified as to the images he'd found on defendant's computer and defendant's use of the search terms "preteen girl pics" and "preteen sluts."

¶ 9 In closing argument to the jury, the prosecutor focused on defendant's purpose in looking at the charged images, arguing that defendant's purpose was "sexual," as demonstrated by the Internet search terms and the uncharged images.² In addressing whether the charged images were "erotic nudity," the prosecutor acknowledged that "[y]ou [the jurors] are going to say to yourselves these are nudist camp photographs. Pictures of naked children. Doing things that are not sexual." But, he argued, "the evidence as a whole" showed that defendant "took otherwise innocent photographs and perverted them for his sexual gratification." Again, the prosecutor pointed to the Internet search terms and the uncharged images. The prosecutor summed up by saying that defendant "[w]as viewing [the charged images]" "[f]or a sexual purpose."

¶ 10 The jury acquitted defendant of three counts related to the individual charged images, but it convicted him of the remaining counts.

II. The Evidence That the Charged Images Are Sexually Exploitative Was Insufficient

¶ 11 Defendant contends that we should vacate his convictions for two reasons: (1) there was insufficient evidence that the charged images are "sexually exploitative" as required to support a conviction under section 18-6-403(3) because they aren't "erotic nudity," and (2) he didn't possess or control the images within the meaning of section 18-6-403(3) merely by looking at them online.³ Because we agree with defendant's first contention, and vacate his convictions and adjudications on that basis, we don't address his second.⁴

¶ 12 Under section 18-6-403(3)(b.5), "[a] person commits sexual exploitation of a child if, for any purpose, he or she knowingly ... [p]ossesses or controls any sexually exploitative material for any purpose." "Sexually exploitative material" is "any photograph ... that depicts a child engaged in, participating in, observing, or being used for explicit sexual conduct." § 18-6-403(2)(j). Explicit sexual conduct includes, as relevant in this case, "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).

¶ 13 So under the relevant statutory provisions, the charged images were "erotic nudity," and therefore "sexually exploitative material," if they (1) displayed genitals, pubic areas, or breasts of a child; (2) for the purpose of real or simulated sexual gratification of one or more of the persons involved. See § 18-6-403(2)(d), (e), (j) ; People in Interest of T.B. , 2016 COA 151M, ¶ 31, 452 P.3d 36 ; People v. Gagnon , 997 P.2d 1278, 1281 (Colo.App.1999).

¶ 14 It is undisputed that the charged images meet the first condition—they show physical areas of children described in section 18-6-403(2)(d). This case then turns on the second condition. Defendant and the People offer competing views of how this aspect of the statutory definition of "erotic nudity" should be construed. Defendant argues that whether an image is "for the purpose of real or simulated overt sexual gratification" must be determined objectively based on the content of the image itself, and that a viewer's purpose in looking at the image does not cause it to become "erotic nudity." The People respond that even if an image is, when viewed objectively, not sexually exploitative, it becomes so if the person looking at the image does so for personal sexual gratification. In other words, the People argue that an image is "for the purpose of real or simulated overt sexual gratification," even if it was not created or displayed for such a purpose, whenever the viewer's purpose in looking at the image is such gratification.

¶ 15 Though we don't agree with defendant's argument entirely, we conclude that on the key issue—whether the viewer's subjective purpose in looking at an image can transform an image that otherwise is not "erotic nudity" into one that is—defendant is correct.

A. Preservation and Standard of Review

¶ 16 Relying on People v. Lacallo , 2014 COA 78, 338 P.3d 442, and People v. McCoy , 2015 COA 76M, 444 P.3d 766 (Webb, J., specially concurring) (cert. granted Oct. 3, 2016), the People argue that this issue is not preserved because when defense counsel moved for a judgment of acquittal at trial, she didn't expressly articulate the statutory claim defendant now makes on appeal.⁵ But recall that the issue of the prosecution's theory had come up before trial. And in her opening statement, defense counsel argued to the jury that the charged images didn't meet the definition of sexually exploitative material because of what they do and do not show. In denying defendant's motion for a judgment of acquittal, the district court recognized that there was an issue whether the charged images meet that definition, ruling that "a reasonable juror could find that the images, in fact, meet the definition of sexually exploitative." For all these reasons, we conclude that the issue was sufficiently preserved. See People v. Syrie , 101 P.3d 219, 223 n.7 (Colo.2004) (an issue is preserved where the trial court has "adequate opportunity to make factual findings and legal conclusions on any issue that is later raised on appeal"); People v. McFee , 2016 COA 97, ¶ 31, 412 P.3d 848 ("Where, despite imprecision in the objection, the trial court actually rules on the claim raised on appeal, and makes findings of fact and conclusions of law, the claim is sufficiently preserved.").

¶ 17 We review the record de novo to determine if there was sufficient evidence to support the convictions. People v. Douglas , 2015 COA 155, ¶ 8, 412 P.3d 785. "In reviewing the sufficiency of the evidence, we determine whether the evidence, viewed as a whole and in the light most...