People v. Rowe

• Citation: 318 P.3d 57
• Decision Date: 19 July 2012
• Docket Number: No. 09CA0246.,09CA0246.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Christopher Lawrence ROWE, Defendant–Appellant.
• Court: Colorado Court of Appeals

318 P.3d 57

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

v.Christopher Lawrence ROWE, Defendant–Appellant.

No. 09CA0246.

Colorado Court of Appeals, Div. VII.

June 7, 2012.

Rehearing Denied July 19, 2012.

John W. Suthers, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Stephen C. Arvin, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge ROMÁN.

¶ 1 Defendant, Christopher Lawrence Rowe, appeals the judgment of conviction entered on a jury verdict finding him guilty of sexual exploitation of a child. We affirm.

I. Background

¶ 2 On December 11, 2006, defendant was completing his sex offender registration requirement when he asked a deputy sheriff whether the officers visited offenders' homes and, if so, whether the officers would look at his computer. Defendant stated, “[I]f there is [child pornography] on my PC, I didn't put it there.... I think my roommates have been jacking with my computer.”

¶ 3 Based on that statement, detectives went to defendant's home on December 26, 2006, to verify his address and also to request defendant's consent to search his computers. Defendant directed the detectives to the “My Documents” folder on his laptop where they located sexually explicit photographs of children. The detectives seized defendant's laptop, desktop computer, and other file storage media. A forensic examination of the computers revealed pictures and videos depicting child pornography.

¶ 4 Defendant was charged with one count of sexual exploitation of a child pursuant to section 18–6–403(3)(b), C.R.S.2011, and nine counts of sexual exploitation of a child (possession) pursuant to section 18–6–403(3)(b.5), C.R.S.2011. He was convicted on all counts and sentenced to six years in prison followed by eighteen months of sex offender probation.

¶ 5 Trial evidence established that defendant had two peer-to-peer file sharing programs on his computer. One program, LimeWire, used a “shared” folder to store files that could be accessed and downloaded by other LimeWire users. A detective qualified as a LimeWire expert testified that LimeWire is a peer-to-peer sharing program where files are not stored on a central server. Instead, individual LimeWire users utilize key-word searches to locate files found on other LimeWire users' computers. Each LimeWire user designates which folders and files can be searchable by other LimeWire users.

¶ 6 On appeal, defendant contends the evidence is insufficient to sustain his conviction under section 18–6–403(3)(b) because his actions were not proscribed by the conduct listed in the statute. He also claims error in statements made by the prosecutor in closing argument and other acts evidence admitted pursuant to CRE 404(b).

II. Sufficiency of the Evidence

¶ 7 Defendant contends the trial evidence was insufficient to prove that he committed sexual exploitation of a child. We conclude that sufficient evidence exists to prove defendant knowingly stored files containing sexually exploitative material in a shared folder on a peer-to-peer sharing network and that such conduct constitutes an offer of sexually exploitative material proscribed by section 18–6–403(3)(b).

¶ 8 We review questions relating to the sufficiency of the evidence de novo. Oram v. People, 255 P.3d 1032, 1038 (Colo.2011). In so doing, we consider “whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt.” Clark v. People, 232 P.3d 1287, 1291 (Colo.2010) (quoting People v. Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)). Evidence is sufficient if “a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Clark, 232 P.3d at 1291.

A. Offers

¶ 9 To determine whether the evidence is sufficient to support defendant's conviction, we first analyze, as a matter of first impression in Colorado, whether defendant's conduct of saving sexually exploitative material in a shared folder is proscribed by the term “offers” in the sexual exploitation statute, section 18–6–403(3)(b). We conclude that it is.

¶ 10 Statutory interpretation is a question of law that we review de novo. Bostelman v. People, 162 P.3d 686, 689 (Colo.2007). When interpreting a statute, our task is to determine and give effect to the legislature's intent by first examining the plain and ordinary meaning of the statutory language. People v. Madden, 111 P.3d 452, 457 (Colo.2005). We must read the words of a statute in context and construe them according to their common usage. § 2–4–101, C.R.S.2011. When the statutory language is clear and unambiguous, we apply the provision as written and do not engage in further statutory analysis. Bostelman, 162 P.3d at 690.

¶ 11 As pertinent here, “[a] person commits sexual exploitation of a child if, for any purpose, he or she knowingly ... [p]repares, arranges for, publishes, ... produces, promotes, makes, sells, finances, offers, exhibits, advertises, deals in, or distributes ... any sexually exploitative material.” § 18–6–403(3)(b).

¶ 12 The term “offer” is not defined by the statute. The commonly understood meaning of the term “offer” is “to make available or accessible” and “to present for acceptance or rejection.” Webster's Third New International Dictionary 1566 (2002). Another jurisdiction has analyzed “offer” in the context of peer-to-peer file sharing and defined the term as “the act by which one person makes known to another that he or she may have for the taking an item possessed by the offeror.” State v. Lyons, 417 N.J.Super. 251, 9 A.3d 596, 601 (N.J.Super.Ct.App.Div.2010).

¶ 13 Reading the plain language of the statute and construing the term “offer” according to its common usage, we hold that a defendant “offers” sexually exploitative material by making it available or accessible to others. In the context of a peer-to-peer file sharing network, a defendant offers sexually exploitative material by knowingly leaving it in the share folder for other users to download. See United States v. Sewell, 513 F.3d 820, 822 (8th Cir.2008) (“In the context of [a peer-to-peer sharing] program, placing a file in a shared folder with descriptive text is clearly an offer to distribute the file.”); see also United States v. Lewis, 554 F.3d 208, 211 (1st Cir.2009) (“any file a user downloads through LimeWire is automatically placed in that ‘Shared’ folder and is therefore offered by that user for further downloads by other users”).

¶ 14 Because the term “offers” is unambiguous, we need not resort to other aids of statutory construction, including the legislative declaration. See§ 2–4–203, C.R.S.2011; Bostelman, 162 P.3d at 690.

B. Application

¶ 15 Defendant concedes there was evidence that he knew both sexually exploitative material and LimeWire were present on the laptop. Trial evidence also supports the conclusion that he knew the sexually exploitative material was located in a folder available for others to download.

¶ 16 Defendant did not testify at trial. However, several of defendant's statements were admitted through detectives' testimony. One detective testified that when asked whether the officers should know anything about his computer, defendant responded that there was Anime and inappropriately named files that he shared in the “My Documents” folder. The detective also testified that defendant stated the files were placed on his computer either by LimeWire or by his ex-roommate. However, when initially asked whether other people had control of his computers, defendant responded that the only other person was his ex-roommate, who had been in custody for some time.

¶ 17 In a later phone conversation with a second detective, defendant inquired about the possibility of retrieving his property. The detective explained that he could not return any property containing sexually explicit material. Defendant responded that the questionable material was located on the laptop but the desktop computer was “clean.” This was significant because the shared images were located on defendant's laptop, and defendant's response demonstrated his knowledge of this fact.

¶ 18 In response to the prosecutor's questions regarding her investigation of defendant's ex-roommate, the detective testified to the strength of the case against defendant. She stated, “I already have [defendant] telling me that he not only knew those images were there, he directed [the other detective] exactly where those images were located on his file.” The detective also alluded to a statement defendant made about sanitizing his computer. She explained that if defendant removed the files through a sanitizing program, he would have directed the detectives to his trash bin rather than to the shared folder. From this testimony, the jury could reasonably infer that defendant knew illegal files were located in a folder accessible to other LimeWire users.

¶ 19 The detective also testified that the ex-roommate was not a viable suspect because he was in jail and did not have access to the laptop at the time the images were downloaded. Additionally, she testified that the wireless network was secured, meaning that a user located outside of the house could not have downloaded the images to defendant's computer.

¶ 20 Finally, the computer forensics detective testified regarding the names of the files. The file names included sexually explicit terminology, as well as young ages and terms to describe youth.

¶ 21 Under these circumstances, and viewed in the light most favorable to the prosecution, the evidence is sufficient to support a conclusion by a reasonable mind that defendant knew sexually exploitative material was available for other...