People v. Heywood

Decision Date14 August 2014
Docket NumberCourt of Appeals No. 11CA2165
PartiesThe PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Jason Jackson HEYWOOD, Defendant–Appellant.
CourtColorado Court of Appeals

John W. Suthers, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for PlaintiffAppellee.

Douglas K. Wilson, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for DefendantAppellant.

Opinion

Opinion by JUDGE WEBB

¶ 1 A jury convicted Jason Jackson Heywood of violating section 18–3–405.4(1)(b), C.R.S.2013, Internet sexual exploitation of a child. As relevant here, this statute applies if the actor knowingly importunes, invites, or entices another person, whom the actor knows or believes to be younger than fifteen years old, to view his intimate parts through a computer network. Resolving a novel question, we conclude that importuning, inviting, or enticing requires more than allowing such viewing to continue, after the actor comes to know or believe that the viewer is less than fifteen years old.

¶ 2 Here, the undisputed evidence proves at most only that Heywood, without any information about the viewer's age, invited a person to view a webcam stream of him masturbating, and then did not stop the stream until several minutes after the viewer had said that she was fourteen years old. Because this evidence was insufficient, we reverse the judgment of conviction and remand the case for entry of a judgment of acquittal.

I. Background

¶ 3 Heywood and a Jefferson County District Attorney's investigator were connected to an Internet chat room1 restricted to people at least eighteen years old. Heywood used the screen name “armyjay23.” Using two separate screen names, “tongue_kisser4” and Tina Gallagher,” the investigator masqueraded as two females. Tina Gallagher's chat room profile did not include her age.

¶ 4 Heywood initiated an instant-message2 conversation with Gallagher by saying, “hi.” Gallagher responded, “hi,” and then asked, “asl?”—which, according to the investigator and Heywood, requested Heywood's age, sex, and location. Before Heywood responded, he gave Gallagher access to his live webcam stream by sending her a “front view of [his] webcam” message, which asked, “Do you want to accept invitation from armyjay.”3 Gallagher accepted and began receiving a webcam stream that showed Heywood masturbating.

¶ 5 While the webcam streamed images to Gallagher's computer, their conversation continued as follows:

armyjay23 (... 5:29:40 p.m.): 29 male denver you?
Tina Gallagher (... 5:29:52 p.m.): 14 f lakewood here. u lik dtown denver?
Tina Gallagher (... 5:30:00 p.m.): ur huge!
armyjay23 (... 5:30:14 p.m.): and you shouldnt be watching\
Tina Gallagher (... 5:30:19 p.m.): u asked me
armyjay23 (... 5:30:48 p.m.): i didn't it invited everyone in the room
Tina Gallagher (... 5:31:05 p.m.): no it said u invited me to see
armyjay23 (... 5:31:20 p.m.): well ill turn it off you could be a cop
Tina Gallagher (... 5:31:27 p.m.): im not a fuckin cop
Tina Gallagher (... 5:31:36 p.m.): wat the fuck
armyjay23 (... 5:31:45 p.m.): show me a pic4
Tina Gallagher (... 5:31:47 p.m.): k
...
Tina Gallagher (... 5:32:07 p.m.): tats me
armyjay23 (... 5:32:20 p.m.): body pic5
Tina Gallagher (... 5:32:25 p.m.): k
...
Tina Gallagher (... 5:32:50 p.m.): teres another one
armyjay23 (... 5:33:13 p.m.): are you italian
Tina Gallagher (... 5:30:30 p.m.): yes
Tina Gallagher (... 5:33:34 p.m.): half
Tina Gallagher (... 5:34:19 p.m.): wat r u?
armyjay23 (... 5:34:24 p.m.): white
Tina Gallagher (... 5:34:39 p.m.): cool
Tina Gallagher ( ... 5:35:08 p.m.): brb6
armyjay23 (... 5:35:14 p.m.): i gtg7
Tina Gallagher (... 5:35:34 p.m.): friend?
Tina Gallagher (... 5:35:41 p.m.): ha
Tina Gallagher (... 5:35:44 p.m.): dont want to be my friend
armyjay23 (... 5:35:45 p.m.): nah youre to young hun
Tina Gallagher (... 5:35:50 p.m.): k wateve
Tina Gallagher (... 5:35:59 p.m.): bye
armyjay23 (... 5:36:06 p.m.): bye
...
armyjay23 (... 5:36:13 p.m.): hit me up when your 18 lol8
Tina Gallagher (... 5:36:21 p.m.): tats long ways way

¶ 6 Heywood admitted that he could have terminated Gallagher's access to the webcam stream at any time. But he did not do so until shortly after she wrote “brb,” over five minutes following her statement that she was fourteen years old. The webcam showed him masturbating that entire time.

¶ 7 While the investigator was exchanging instant messages with Heywood as Gallagher, he also exchanged sexually graphic instant messages with him posing as tongue_kisser4, whom he identified as a twenty-two-year-old woman. In that role, the investigator arranged to meet Heywood. At the meeting, the investigator arrested him.

On appeal, Heywood primarily contends the evidence was insufficient. Because we agree and conclude that dismissal of the charge is required, we do not address any other contention.

II. Preservation and Standard of Review

¶ 9 Whether the record contains sufficient evidence to support a conviction is subject to de novo review. Dempsey v. People, 117 P.3d 800, 807 (Colo.2005). However, because Heywood did not raise sufficiency of the evidence below, we agree with the Attorney General that the judgment will be reversed only for plain error. See People v. Lacallo, 2014 COA 78, ¶ 11, 338 P.3d 442 (divided decision noting differing opinions among divisions of this court and majority holding that unpreserved sufficiency of the evidence challenges should be reversed only for plain error).9

¶ 10 Lacallo is more like this case than it is different. True, in Lacallo, interpreting a statutory element preceded “weighing of the probative strength of the evidence against the culpability element to which it relates.” People v. Madson, 638 P.2d 18, 26 (Colo.1981). Here, the conduct proscribed by section 18–3–405.4 is unambiguous (as more fully explained in Part IV infra ). But this difference impacts only the second step in plain error analysis—obviousness—not the rationale for limiting reversal for unpreserved insufficiency claims to plain error.

¶ 11 And, similar to Lacallo, where trial counsel raised a different sufficiency argument below but “did not expressly or even impliedly raise the issue now argued,” ¶ 6, here Heywood did not raise insufficiency until he appealed.10 For purposes of applying plain error review, no principle distinguishes between raising an entirely new sufficiency argument on appeal and raising sufficiency on appeal for the first time.

¶ 12 The Lacallo division articulated four reasons for applying plain error review: the broad wording of Crim. P. 52(b) ; the great weight of federal authority; significant, albeit less uniform, supporting authority in many states; and, most importantly, adhering to the policy of conserving judicial resources “by alerting the trial court to a particular issue in order to give the court an opportunity to correct any error.” Lacallo, ¶ 15 (internal quotation marks omitted).

¶ 13 Because the circumstances presented in this case do not diminish any of these reasons, we apply Lacallo 's plain error limitation here.11 See People v. Smoots, 2013 COA 152, ¶ 20, ––– P.3d ––––, 2013 WL 6126733 (We are not obligated to follow the precedent established by another division, even though we give such decisions considerable deference.”) (cert. granted on other grounds June 30, 2014).

¶ 14 Plain error occurs where an error is both “obvious and substantial” and “so undermined the fundamental fairness of the trial itself ... as to cast serious doubt on the reliability of the judgment of conviction.” People v. Miller, 113 P.3d 743, 750 (Colo.2005) (internal quotation marks omitted). An error may be obvious “if the trial court has erroneously applied statutory law.” People v. Zubiate, 2013 COA 69, ¶ 24, ––– P.3d ––––, 2013 WL 1909126.

¶ 15 When reviewing a challenge to the sufficiency of the evidence, a court considers whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a rational conclusion that the defendant is guilty of the crime charged beyond a reasonable doubt. People v. McGlotten, 166 P.3d 182, 188 (Colo.App.2007). This standard requires that the prosecution be given the benefit of every inference that may fairly be drawn from the evidence. People v. Vecellio, 2012 COA 40, ¶ 12, 292 P.3d 1004.

III. Law

¶ 16 As relevant here, section 18–3–405.4(1)(b) provides:

An actor commits internet sexual exploitation of a child if the actor knowingly importunes, invites, or entices through communication via a computer network ... 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 ... [o]bserve the actor's intimate parts via a computer network ... or instant message.

¶ 17 “Generally, in order to subject a person to criminal liability for a felony or serious misdemeanor, there must be a concurrence of an unlawful act (actus reus ) and a culpable mental state (mens rea ).” Hendershott v. People, 653 P.2d 385, 390 (Colo.1982). Thus, [w]hen a statute defining an offense prescribes as an element thereof a specified culpable mental state, that mental state is deemed to apply to every element of the offense unless an intent to limit its application clearly appears.” § 18–1–503(4), C.R.S.2013.

¶ 18 A person acts knowingly with respect to an element of an offense when the person is aware that his conduct is of such a nature or that such circumstances exist. § 18–1–501(6), C.R.S.2013. “The mental state of knowingly is a subjective rather than an objective standard and does not include a reasonable care standard.” Oram v. People, 255 P.3d 1032, 1038 (Colo.2011).

¶ 19 Some statutes protect victims based on age alone. See, e.g. , Gorman v. People, 19 P.3d 662, 667 (Colo.2000) (contributing to the delinquency of a minor statute does not require knowledge of age); People v. Davis, 935 P.2d 79, 86 (Colo.App.1996) (statute defining crime against...

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