People v. Mantos, No. 07CA2107.

• Decision Date: 29 October 2009
• Docket Number: No. 07CA2107.
• Citation: 250 P.3d 586
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee,v.John Louis MANTOS, Defendant–Appellant.
• Court: Colorado Court of Appeals

250 P.3d 586

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

v.John Louis MANTOS, Defendant–Appellant.

No. 07CA2107.

Colorado Court of Appeals, Div. I.

Aug. 6, 2009.Rehearing Denied Oct. 29, 2009.

OPINION TEXT STARTS HEREWest CodenotesLimited on Constitutional GroundsWest's C.R.S.A. § 18–6–403(3)(b) John W. Suthers, Attorney General, Rhonda L. White, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.Dean Neuwirth, P.C., Dean Neuwirth, Denver, Colorado; Kaufman & Levinson, LLC, Rick Levinson, Colorado Springs, Colorado, for Defendant–Appellant.Opinion by: Judge LICHTENSTEIN.

Defendant, John Louis Mantos, appeals the judgment of conviction entered on a jury verdict finding him guilty of felony sexual exploitation of a child. We vacate the judgment of conviction on this count and remand the case to the district court for entry of judgment of acquittal.

I. Introduction

This case concerns whether downloading and saving sexually exploitative material in a share-capable computer file constitutes the felony offense of sexual exploitation of a child, as defined in section 18–6–403(3)(b), C.R.S.2008. We conclude that it does not.

II. Facts

Defendant owns a computer printer repair business. His business shares office space with a separate business owned by his wife. In December 2004, defendant's stepdaughter, who was employed at his wife's business, was downloading music through a file sharing program installed on defendant's work computer. While using this program, she showed a coworker “some files with childrens' names and explaining sexual activities” that she had found on the computer. The coworker eventually contacted the police, who visited defendant at his business on July 18, 2005, and seized his computer.

During a forensic examination of defendant's computer hard drive, detectives discovered numerous digital picture and video files containing child pornography in the computer's Recycle Bin. Detectives also discovered a copy of “KAZAA Light,” a computer program used for computer-to-computer file sharing over the Internet (also known as peer-to-peer file sharing). Defendant later testified that he purchased this computer program online for the purpose of downloading music.

Defendant was charged with two felony counts of sexual exploitation of a child. The first count alleged that defendant, in violation of section 18–6–403(3)(b), “prepared, arranged for, published, produced, promoted, made, sold, financed, offered, exhibited, advertised, dealt in, or distributed any sexually exploitative material.” The second count alleged that defendant, in violation of section 18–6–403(3)(c), C.R.S.2008, possessed with intent to distribute sexually exploitative material. He was also charged with 151 misdemeanor counts of possession of sexually exploitative material, in violation of section 18–6–403(3)(b.5), C.R.S.2008.

At trial, the prosecution focused on defendant's alleged use of KAZAA Light to support its theory of conviction. One investigating detective testified that defendant's computer contained a folder named “My Shared” that had been automatically created by KAZAA Light. By default, anything saved within the My Shared folder is automatically set to “share” and can be seen by other computer users using KAZAA Light. Thus, if KAZAA Light user A wishes to share a file or even a group of files with KAZAA Light user B (where user B could be an anonymous user unknown to user A ), user A need simply place the file or files within his My Shared folder. User B may then use his copy of KAZAA Light to locate and download the file or files in user A's My Shared folder without further action by user A.

The detective then explained that a KAZAA Light user has the option of changing a setting on the My Shared folder to “not share” so that files within it cannot be downloaded or even seen by other KAZAA Light users. In addition to this “master toggle” that can preclude the visibility and sharing of all files residing within the My Shared folder, the detective testified that KAZAA Light also allows users to change the share setting of each individual file contained within the My Shared folder. Thus, a KAZAA Light user could prevent the sharing of all items contained within the My Shared folder by setting the master toggle to “not share,” or prevent the sharing of only a select group of files in the My Shared folder by setting the master toggle to “share,” but those individual files to “not share.”

There is no dispute that the master toggle on defendant's My Shared folder had been manually set to “not share,” while each individual file contained within was on the default “share” setting. The prosecution did not present any evidence that defendant had shared the contents of his My Shared folder with other KAZAA Light users, and one of the detectives testified on cross-examination that there was no way to tell whether the master toggle for defendant's My Shared folder had ever been set to anything but “not share.”

At the close of the prosecution's evidence, defendant moved for judgment of acquittal on the ground that there was insufficient evidence for the jury to convict on count one, sexual exploitation of a child as defined in section 18–6–403(3)(b), because there was no evidence that defendant ever made the sexually exploitative material or that he distributed the material on his computer to any third party. The court submitted the count to the jury, finding that the terms “prepares” and “arranges for” in the statute could reasonably be understood to include “someone downloading these items

[of sexually exploitative

material] to completion, saving them so they're there for further use, and then allowing these potentially shared items to sit there.” The court concluded, “It's an issue of fact whether the jury believes that the particular activity claimed by the prosecution was a way of the defendant of procuring and/or arranging for the, the distribution of these items.” It distinguished the instant offense from the offense of possession with intent to distribute on the basis that the instant offense requires more than just the intent to distribute; it requires “that [the defendant] have prepared the item or arranged for the item to be distributed.”

At the close of all the evidence, defendant renewed his motion for acquittal on count one, again arguing that there was no evidence that he had committed any act listed in section 18–6–403(3)(b). The court denied defendant's motion.

In closing argument, the prosecutor told the jury she was not required to show that the material had actually been distributed. Rather, she said, the jury could convict defendant of sexual exploitation of a child under section 18–6–403(3)(b) because defendant had “prepared the list.” The prosecutor asserted that defendant was “reaching out to others saying, ‘I want this specific stuff and I want it downloaded so I can create my own collection, my own list. As soon as I hit go, someone else receives it so that he can advertise it.’ ” The prosecutor told the jury to find defendant guilty because “[he] prepared his list of child pornography and arranged to obtain his child pornography through KAZAA Light.”

The jury acquitted defendant of possession with intent to distribute sexually exploitative material, but found defendant guilty on the remaining misdemeanor counts. In this appeal, defendant challenges only his felony sexual exploitation of a child conviction under section 18–6–403(3)(b).

III. Discussion

Defendant contends that his conviction for felony sexual exploitation of a child was invalid. He asserts that the court misconstrued the meaning of the word “prepares” in section 18–6–403(3)(b) to encompass the conduct of possessing with the potential to distribute sexually exploitative material, and thereby submitted the case to the jury on an erroneous legal theory. He argues that because the evidence was insufficient to support a conviction under the proper interpretation of the statute, his conviction must be vacated. We agree.

A. Statutory Interpretation

The interpretation of a statute is a question of law and review is de novo. A.P.E. v. People, 20 P.3d 1179, 1182 (Colo.2001); Fendley v. People, 107 P.3d 1122, 1124 (Colo.App.2004). When interpreting a statute, an appellate court must give effect to the intent of the General Assembly, which is vested with the power to define criminal conduct and to establish the legal components of criminal liability. People v. Hoskay, 87 P.3d 194, 197–98 (Colo.App.2003). To determine the General Assembly's intent, we must look first to the plain language of the statute. See § 2–4–101, C.R.S.2008 (words and phrases shall be read in context and construed according to the rules of grammar and common usage); People v. Banks, 9 P.3d 1125, 1128 (Colo.2000). We read the statute as a whole “to give ‘consistent, harmonious and sensible effect to all of its parts,’ ” Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 593 (Colo.2005) (quoting Bd. of County Comm'rs v. Costilla County Conservancy Dist., 88 P.3d 1188, 1192 (Colo.2004)), in accordance with the presumption that the General Assembly intended the entire statute to be effective. See § 2–4–201(1)(b), C.R.S.2008.

In pertinent part, section 18–6–403(3) defines the offense of sexual exploitation of a child as follows:

A person commits sexual exploitation of a child if, for any purpose, he or she knowingly:

...

(b) Prepares, arranges for, publishes, including but not limited to publishing through digital or electronic means, produces, promotes, makes, sells, finances, offers, exhibits, advertises, deals in, or distributes, including but not limited to distributing through digital or electronic means, any sexually exploitative material.

(Emphasis added.)

Here, the General Assembly proscribed the act: prepares any sexually exploitative material. Under the plain language of the statute, “prepares” describes the act...