People v. Interest of T.B.
| Decision Date | 17 June 2019 |
| Docket Number | Supreme Court Case No. 17SC66 |
| Citation | 445 P.3d 1049 |
| Parties | The PEOPLE of the State of Colorado, Respondent IN the INTEREST OF T.B., Petitioner |
| Court | Colorado Supreme Court |
Attorneys for Respondent: Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado
Attorneys for Petitioner: Lord Law Firm, LLC, Kathleen A. Lord, Denver, Colorado
En Banc
¶1 Sexting,1 which includes the sending of sexually explicit digital images by cell phone, has become common in our society, especially among teenagers. Approximately one in four teenagers has received a "sext" and approximately one in seven has sent one. Sheri Madigan, et al., Prevalence of Multiple Forms of Sexting Behavior Among Youth: A Systemic Review and Meta-analysis , 172 JAMA Pediatrics 4, 327, 327 (2018); see also The National Campaign to Prevent Teen & Unplanned Pregnancy, Sex and Tech: Results from a Survey of Teens and Young Adults 1 (2008), available at https://perma.cc/E8PX-BEJD. In this case, a juvenile texted a picture of his erect penis to two underage girls and then repeatedly asked the girls to text him naked pictures of themselves. After initially resisting, both girls eventually complied and texted nude selfies2 to the juvenile. The juvenile kept these sexts on his cell phone, where they were discovered by law enforcement in 2013. The question here is whether the juvenile can be adjudicated delinquent for sexual exploitation of a child under section 18-6-403(3), C.R.S. (2018),3 for possessing these images.
¶2 Under section 18-6-403(3)(b.5), a person commits sexual exploitation of a child if he knowingly "possesses or controls" any "sexually exploitative material" for any purpose. "Sexually exploitative material" includes any photograph that depicts a child engaged in "explicit sexual conduct," which includes, as relevant here, "erotic nudity." § 18-6-403(2)(e), - (2)(j), C.R.S. (2018). The statute defines "erotic nudity" as "the display" of certain intimate body parts "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).
¶3 In response to growing public concern over teen sexting, the General Assembly enacted H.B. 17-1302, which took effect in January 2018. This bill created, among other lower-level offenses, the civil infraction of "exchange of a private image" by a juvenile. Under this new offense, a juvenile who knowingly possesses a sexually explicit image of another person who is at least fourteen years old or less than four years younger than the juvenile, and who reasonably believes the depicted person transmitted the image or otherwise agreed to its transmittal, commits a civil infraction punishable by a fine of up to $50 or participation in a program addressing the risks and consequences of such behavior. § 18-7-109(3)(b), - (5)(c), C.R.S. (2018). Notably, H.B. 17-1302 established that any juvenile whose behavior is limited to the elements of the civil infraction is not subject to prosecution for sexual exploitation of a child under section 18-6-403(3)(b)4 or - (3)(b.5). § 18-6-403(3.5), C.R.S. (2018).
¶4 But the acts at issue here predate these changes in the law.
¶5 In 2013, officers discovered four sexually explicit selfies on the cell phone of fifteen-year-old T.B. Three images depicted seventeen-year-old E.H. nude. The other image depicted fifteen-year-old L.B. topless, with a towel wrapped around her waist. Based on T.B.’s possession of these images, the prosecution filed a petition in delinquency charging him with two counts of possession of sexually exploitative material under section 18-6-403(3)(b.5) and naming E.H. and L.B. as victims. At a bench trial, T.B. argued that the prosecution failed to prove that he knowingly possessed erotic nudity for the purpose of the overt sexual gratification of a "person involved." § 18-6-403(2)(d). The court rejected this argument and adjudicated T.B. delinquent on both counts.
¶6 T.B. challenged his adjudication on appeal, repeating his contention that the photographs did not depict erotic nudity. In addition, he argued for the first time that to avoid First Amendment concerns, the sexual exploitation statute must be read to apply only to images depicting "acts of sexual abuse," and that under this proper reading, the evidence was insufficient to convict him. He also contended that the legislature did not intend section 18-6-403 to apply to juveniles.
¶7 In a published, split ruling, the court of appeals affirmed T.B.’s adjudication. People In Interest of T.B. , 2016 COA 151M, ––– P.3d ––––. The majority concluded that T.B. was a "person involved" for the purposes of the statute, and that because the photographs he possessed were created for the purposes of his sexual gratification, sufficient evidence supported the trial court’s finding that they contained erotic nudity. Id. at ¶¶ 30–35. Two judges rejected T.B.’s unpreserved statutory interpretation argument, although for different reasons and applying different standards of review. Id . at ¶¶ 36–45 ; id. at ¶¶ 78–86 (Bernard, J., concurring). The third dissented, reasoning that the General Assembly never intended section 18-6-403 to reach consensual exchanges of images between juveniles. Id. at ¶¶ 87–101 (Fox, J., dissenting).
¶8 We granted T.B.’s petition for a writ of certiorari to determine the proper standard of review for an unpreserved sufficiency of the evidence claim and to review whether the court of appeals misconstrued section 18-6-403(3)(b.5) in holding the evidence was sufficient to support T.B.’s adjudication for sexual exploitation of a child.5
¶9 We need not address the standard of review that applies to T.B.’s unpreserved sufficiency of the evidence claim because we reject his contention that, to avoid First Amendment concerns, section 18-6-403(3) must be read to limit sexually exploitative material to images that depict "an act or acts of sexual abuse of a child." We also reject T.B.’s arguments that the legislature must have implicitly intended in section 18-6-403 to carve out an exception for juveniles engaged in sexting behavior. We further hold that the sexually explicit content of the photos and the circumstances surrounding their creation, including T.B.’s direct solicitation of them, demonstrate they were made for the purpose of T.B.’s "overt sexual gratification." Thus, sufficient evidence supports the trial court’s conclusion that the images constituted "erotic nudity" (and therefore "sexually exploitative material") for purposes of the sexual exploitation of a child statute. Accordingly, we affirm the judgment of the court of appeals upholding T.B.’s adjudication.
¶10 In September 2012, fifteen-year-old T.B. met seventeen-year-old E.H. and fifteen-year-old L.B. at a Future Farmers of America conference. T.B., E.H., and L.B. all lived in different towns. After the conference, T.B. stayed in contact with both girls by phone and text message. Both E.H. and L.B. considered themselves to be romantically involved with T.B. at different points during their correspondence.
¶11 E.H. and L.B. testified that T.B. sent each of them a selfie of his erect penis.6 Thereafter, T.B. repeatedly asked both girls for sexually explicit pictures of themselves, badgering them until they complied with his requests. In the fall of 2012, E.H. texted T.B. three nude photographs of herself. In two of these photos, E.H. is curled up in a corner with her knees drawn up against her body; the photos depict E.H.’s face and upper torso, including her bare breasts. The third photo depicts E.H. standing near a bathroom shower, covering her breasts with one arm and revealing the profile of her nude body turned away at a slight angle. During the spring of 2013, L.B. texted T.B. one photograph of herself. In this photo, taken in a bedroom mirror, L.B. appears topless, with a towel wrapped around her waist. The focal point of the photo is L.B.’s breasts; her face is not revealed.
¶12 After T.B.’s arrest on unrelated sexual assault charges in March 2013, police seized T.B.’s cell phone and discovered the nude photographs of E.H. and L.B. The People filed a petition in delinquency, charging T.B. with two counts of sexual exploitation of a child under section 18-6-403(3)(b.5), C.R.S. (2012), and several other counts related to the alleged sexual assault. The court granted T.B.’s request to sever the sexual exploitation counts, and a jury ultimately acquitted T.B. of the other counts.
¶13 At his bench trial on the sexual exploitation charges, T.B. argued that the state failed to prove that the images depicted "erotic nudity" as required by section 18-6-403(3)(b.5). The court rejected this contention and found that the prosecution had proven both counts of sexual exploitation beyond a reasonable doubt. The court adjudicated T.B. delinquent, sentenced him to concurrent, two-year terms of juvenile sex offender probation, and required him to register as a sex offender.
¶14 T.B. appealed, reasserting that the evidence was insufficient to support his adjudication. First, he contended that the images did not depict erotic nudity. Second, relying on language in the legislative declaration to section 18-6-403, T.B. argued for the first time that the sexual exploitation statute must be interpreted to apply only to images that depict the sexual abuse of a child, and that under this interpretation, the evidence was insufficient to support his adjudication.
¶15 In a divided opinion, the court of appeals rejected both claims. People In Interest of T.B. , 2016 COA 151M, ––– P.3d ––––. The majority, applying factors adopted by another division of the court of appeals in People v. Gagnon , 997 P.2d 1278 (Colo. App. 1999), determined that sufficient evidence supported the trial court’s conclusion that the photographs of E.H. and L.B....
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