Jefferson County District Court No. 10CR2351. Honorable Stephen M. Munsinger, Judge.
John W. Suthers, Attorney General, Majid Yazdi, 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 WEBB. Plank[*], J., concurs. Gabriel, J., specially concurs.
[¶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.
[¶3] Heywood and a Jefferson County District Attorney's investigator were connected to an Internet chat room 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-message 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."  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 pic
Tina Gallagher (. . . 5:31:47 p.m.): k
. . .
Tina Gallagher (. . . 5:32:07 p.m.): tats me
armyjay23 (. . . 5:32:20 p.m.): body pic
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.): brb
armyjay23 (. . . 5:35:14 p.m.): i gtg
Tina Gallagher (. . . 5:35:34 p.m.): friend?
Tina Gallagher (. . . 5:35:41 ...