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People v. Helms

Court of Appeals of Colorado, Third Division

June 16, 2016

The People of the State of Colorado, Plaintiff-Appellee,
Scott Allen Helms, Defendant-Appellant.

         Gilpin County District Court No. 13CR20 Honorable Philip J. McNulty, Judge

          Cynthia H. Coffman, Attorney General, Molly E. McNab, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Gregory Lansky, Alternate Defense Counsel, Aurora, Colorado, for Defendant-Appellant


          J. JONES JUDGE

         ¶ 1 Defendant, Scott Allen Helms, appeals the district court's judgment of conviction entered on jury verdicts finding him guilty of two counts of Internet sexual exploitation of a child. He also appeals the revocation of his probation. We reverse defendant's conviction on one of the two counts, reverse the revocation of defendant's probation, and otherwise affirm. As matters of first impression, we hold that the statute criminalizing Internet child exploitation, section 18-3-405.4(1)(a), C.R.S. 2015, does not violate the dormant Commerce Clause, is not unconstitutionally overbroad, and does not violate a defendant's right to due process.

         I. Background

         ¶ 2 On February 1, 2013, defendant, then age forty-seven, started a conversation in an Internet chat room with "Miranda." "Miranda" was actually Sergeant Troy Hendricks pretending to be a fourteen-year-old girl.[1] After "Miranda" moved the conversation to a private chat, defendant asked her to take off her clothes and rub her nipples. Defendant then asked "Miranda" if she had a younger sister with her. "Miranda" responded that there were two other girls who lived in her building, ages thirteen and twelve. Defendant asked her to go get the other girls.

         ¶ 3 "Miranda" told defendant that "Lizzy" (also Sergeant Hendricks) had come over and that she was twelve years old. Defendant made the "girls" promise that they would not tell their parents about their interaction with him. He then asked the "girls" to take off each other's clothes, to perform oral sex, and for "Miranda" to insert an item into "Lizzy's" vagina. Defendant asked the "girls" to take photos of each other naked performing the requested acts.

         ¶ 4 During this chat, defendant asked "Miranda" to video chat. Sergeant Hendricks placed a piece of paper over his camera so that defendant could not see him, and defendant assumed that "Miranda's" video camera did not work. Sergeant Hendricks was able to capture a photo of defendant while defendant was trying to video chat with the "girls."

         ¶ 5 A few days later, on February 5, defendant started a second chat conversation with "Miranda." He asked "Miranda" to send him the pictures that she had taken of herself and "Lizzy" during their first chat conversation on February 1. Defendant told "Miranda" that he loved her, wanted to "do [her], " and would buy her a plane ticket to come visit him in Maine. He asked her if she was on birth control. When she said yes, he told her to throw away the pills because he wanted to impregnate her. Sergeant Hendricks gave defendant "Miranda's" cell phone number, saying that defendant could text "Miranda." Defendant sent "Miranda" a text message.

         ¶ 6 Sergeant Hendricks called defendant the next day using the number from which "Miranda" had received a text message. The call went to defendant's voicemail. Defendant called Sergeant Hendricks back later that day. When Sergeant Hendricks told defendant that he had records of his conversations with "Miranda, " including a picture of defendant, defendant admitted that he had communicated with "Miranda" and had asked her to perform sexual acts. Defendant said that he "[had] a problem" and was going to counseling.

         ¶ 7 Sergeant Hendricks called defendant again the next day to talk about the incident. Defendant told Sergeant Hendricks that he was planning to fly "Miranda" out to visit him and hide her in a hotel.[2]Defendant said that his wife would "kick [his] ass" if she were to find out he had flown "Miranda" out to visit him.

         ¶ 8 The State initially charged defendant with eight counts of Internet sexual exploitation of a child. See § 18-3-405.4(1)(a). Ultimately, defendant faced only two counts. Count one charged that defendant had violated the Internet child exploitation statute by asking "Miranda" to "expose or touch [her] or another person's intimate parts while communicating with the defendant via a computer network" on February 1, 2013. Count two charged the same type of violation occurring on February 5, 2013. A jury convicted defendant as charged, and the district court sentenced him to ten years to life of supervised probation on each count, to run concurrently.

         ¶ 9 The district court later revoked defendant's probation when he failed to register as a sex offender. The court resentenced defendant to the custody of the Department of Corrections for an indeterminate term of two years to life.

         II. Discussion

         ¶ 10 Defendant contends that we should reverse his convictions because (1) section 18-3-405.4(1)(a) is unconstitutional for various reasons; (2) the district court denied him a fair trial by admitting "other bad act" evidence and the prosecutor engaged in misconduct by referring to that evidence; (3) there is insufficient evidence to support his convictions because he did not commit any criminal acts in Colorado; (4) there is insufficient evidence to support his conviction for count two because his alleged actions forming the basis for count two - asking "Miranda" to send him the photos he thought she had taken on February 1 - are not criminalized by the Internet child exploitation statute; and (5) the district court should have declared a mistrial when a witness mentioned another investigation, violating the court's prior ruling that the other investigation should not be mentioned. Defendant also contends that the district court erred by revoking his probation and resentencing him without conforming to statutory requirements.

         ¶ 11 We agree with defendant that there is insufficient evidence to support his conviction for count two and that the district court erred in revoking his probation. We otherwise reject defendant's contentions.

         A. Constitutionality of the Internet Child Exploitation Statute

         ¶ 12 The Internet child exploitation statute provides in relevant part:

(1) An actor commits internet sexual exploitation of a child if the actor knowingly importunes, invites, or entices through communication via a computer network or system, telephone network, or data network or by a text message 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:
(a) Expose or touch the person's own or another person's intimate parts while communicating with the actor via a computer network or system, telephone network, or data network or by a text message or instant message . . . .

§ 18-3-405.4(1)(a).

         ¶ 13 Defendant contends that the Internet child exploitation statute is facially unconstitutional because it violates the so-called dormant Commerce Clause of the United States Constitution, violates the First Amendment because it is overly broad, and violates his constitutional right to due process because it is vague.[3] These challenges fail.

         1. Standard of Review

         ¶ 14 Defendant concedes that he did not preserve these contentions. We will nevertheless consider them because the factual record is sufficient to allow us to do so. See People v. Houser, 2013 COA 11, ¶ 35; People v. Allman, 2012 COA 212, ¶ 16; People v. Greer, 262 P.3d 920, 933-36 (Colo.App. 2011) (J. Jones, J., specially concurring). We will do so, however, applying the plain error standard of review. See Hagos v. People, 2012 CO 63, ¶ 14 (constitutional errors that were not preserved are reviewed for plain error). Reversal for plain error is required only if (1) there was an error; (2) that error was obvious; and (3) that error so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. Id.

         ¶ 15 We review the constitutionality of a statute de novo. Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo. 2007). Because statutes are presumed to be constitutional, the party challenging the facial constitutionality of a statute has the burden of showing that the statute is unconstitutional beyond a reasonable doubt. Id.

         2. Dormant Commerce Clause

         ¶ 16 Article I, Section 8, Clause 3 of the United States Constitution (the Commerce Clause) authorizes Congress to "regulate Commerce with foreign Nations, and among the several States." Though the Commerce Clause says nothing about the protection of interstate commerce in the absence of any action by Congress, the Supreme Court has held that it prohibits certain state actions that interfere with interstate commerce. This application of the Commerce Clause is referred to as the "dormant" Commerce Clause. Quill Corp. v. North Dakota, 504 U.S. 298, 309 (1992).

         ¶ 17 "The negative or dormant implication of the Commerce Clause prohibits state taxation or regulation that discriminates against or unduly burdens interstate commerce and thereby 'imped[es] free private trade in the national marketplace.'" Gen. Motors Corp. v. Tracy, 519 U.S. 278, 287 (1997) (alteration in original) (citations omitted) (quoting in part Reeves, Inc. v. Stake, 447 U.S. 429, 437 (1980)). "The modern law of what has come to be called the dormant Commerce Clause is driven by concern about 'economic protectionism - that is, regulatory measures designed to benefit instate economic interests by burdening out-of-state competitors.'" Dep't of Revenue v. Davis, 553 U.S. 328, 337-38 (2008) (quoting in part New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273-74 (1988)).

         ¶ 18 Defendant argues that the Internet child exploitation statute violates the dormant Commerce Clause because it regulates communication occurring entirely outside of Colorado, the burdens it places on interstate commerce outweigh any putative local benefit, and it subjects interstate use of the Internet to inconsistent regulation. We reject these arguments in turn.

         ¶ 19 Defendant is correct that a law which regulates commerce occurring entirely outside a state's boundaries violates the dormant Commerce Clause. See, e.g., Healy v. Beer Inst., Inc., 491 U.S. 324, 336 (1989); Edgar v. MITE Corp., 457 U.S. 624, 641-43 (1982) (plurality opinion). But he is not correct in asserting that section 18-3-405.4(1)(a) regulates such commerce. Though the Internet child exploitation statute does not expressly include a territorial limitation, such a limitation is implied by section 18-1-201, C.R.S. 2015. That statute provides that a person is subject to prosecution in Colorado "for an offense which he commits . . . if, " as relevant here, the person's conduct "is committed either wholly or partly within [Colorado]." § 18-1-201(1)(a). Thus, section 18-3-405.4(1)(a) is limited to situations in which the criminal conduct occurs either wholly or partially in Colorado. And we note that a defendant's conduct qualifies on that score if he sends a communication to someone who is in Colorado. Cf. People v. Chase, 2013 COA 27, ¶¶ 11-26 (e-mail threats sent from Boston, which were opened by the victims in Baltimore, could have caused the victims (Colorado residents) to fear for their safety or others' safety in Colorado). There is no reason to suspect that Colorado law enforcement authorities would attempt to prosecute anyone under the statute for conduct occurring entirely outside of Colorado, in derogation of section 18-1-201.

         ¶ 20 In arguing that the statute violates the dormant Commerce Clause because it regulates communications occurring entirely outside of Colorado, defendant relies heavily on the Tenth Circuit's decision in American Civil Liberties Union v. Johnson, 194 F.3d 1149 (10th Cir. 1999). In Johnson, the court indicated, in dictum, [4] that a New Mexico statute criminalizing the dissemination of sexual material to minors likely violated the Commerce Clause because it attempted to regulate activity occurring wholly outside of New Mexico's borders. The Tenth Circuit relied on American Libraries Association v. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997), in which the court held that a law similar to New Mexico's violated the Commerce Clause. But as the California Court of Appeal has pointed out in refusing to follow American Libraries Association, where prosecution is by historical practice and by statute limited to conduct occurring at least partially within a state, there is no reason to suppose that prosecution for wholly extraterritorial conduct will occur, and therefore there is no Commerce Clause violation. Hatch v. Superior Court, 94 Cal.Rptr.2d 453, 472-73 (Cal.Ct.App. 2000); see also People v. Hsu, 99 Cal.Rptr.2d 184, 191-92 (Cal.Ct.App. 2000). Thus, defendant's extraterritorial effect argument fails.

         ¶ 21 Defendant's argument that the Internet child exploitation statute places an undue burden on interstate commerce also fails.[5]Again, defendant relies primarily on American Libraries Association. But the court in American Libraries Association pointed out that the plaintiffs in that case had not challenged the portion of the statute prohibiting "adults from luring children into sexual contact by communicating with them via the Internet." 969 F.Supp. at 179.

         ¶ 22 In People v. Foley, 731 N.E.2d 123 (N.Y. 2000), the court rejected a dormant Commerce Clause challenge to just such a luring statute, one which, similar to the statute at issue in this case, prohibits a person from using Internet communication to "importune[], invite[], or induce[] a minor to . . . engage in a sexual performance, obscene sexual performance, or sexual conduct" for the benefit of the person. Id. at 127 (emphasis omitted) (quoting N.Y. Penal Law § 235.22 (McKinney 2016)). The court reasoned that in contrast to the statute at issue in American Libraries Association, the statute before it does not discriminate against or burden "any legitimate commerce." Id. at 133. Rather, "it regulates the conduct of individuals who intend to use the Internet to endanger the welfare of children." Id. at 132; see also id. at 133 (activity regulated by the statute "deserves no 'economic' protection").

         ¶ 23 In People v. Boles, 280 P.3d 55 (Colo.App. 2011), a division of this court applied the Foley court's reasoning in rejecting a defendant's contention, premised on Johnson, that section 18-3-306, C.R.S. 2015 (the Internet child luring statute), violates the dormant Commerce Clause. The division held that the Internet child luring statute does not discriminate against or unduly burden interstate commerce because it only regulates the conduct of persons who, through sexually explicit communications sent over the Internet, seek to endanger the welfare of children. The "luring" requirement of the offense distinguishes it from the statute addressed in Johnson. Boles, 280 P.3d at 63; see § 18-3-306(1) (the actor must persuade or invite the minor to meet the actor for any purpose in connection with a communication describing explicit sexual conduct). Echoing the Foley court, the Boles division said that it could not "ascertain any legitimate commerce that would be derived from these communications." 280 P.3d at 63.

         ¶ 24 We agree with the reasoning of Foley and Boles and conclude that it applies with equal force to the Internet child exploitation statute. The statute requires that an actor "importune[], invite[], or entice[]" a child to expose or touch his or her or another's intimate parts while communicating with the actor. § 18-3-405.4(1) (emphasis added). It - like the statutes at issue in Foley and Boles, and unlike the statutes challenged in Johnson and American Libraries Association - contains an active element which obviates any concern about regulation of legitimate interstate commerce. See also Hatch, 94 Cal.Rptr.2d at 471-72 (distinguishing American Libraries Association on the grounds the California statute requires proof of intent to seduce).

         ¶ 25 We also conclude, largely for the reasons articulated above, that the benefit of protecting children from sexual exploitation via the Internet is an important state interest that outweighs any de minimis, incidental burden that enforcing the statute could have on interstate commerce. See Hsu, 99 Cal.Rptr.2d at 190-91 (states have a compelling interest in protecting minors from sexual harm, and it is difficult to conceive of any legitimate commerce that would be burdened by penalizing the transmission of harmful sexual material to minors in order to seduce them); Boles, 280 P.3d at 62-63; Foley, 731 N.E.2d at 133 ("[i]ndeed, the conduct sought to be sanctioned by [the Internet statute protecting minors] is of the sort that deserves no 'economic' protection"); see also Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) (if a statute nondiscriminatorily regulates to serve a legitimate local interest, it does not violate the Commerce Clause unless the burden on interstate commerce is "clearly excessive in relation to the putative local benefits").

         ¶ 26 Lastly, we are not persuaded by defendant's argument that the nature of the Internet dictates that regulation of activity conducted thereby be undertaken only at the national level. The Supreme Court has never held that a state may not regulate activity that may also be carried on in the other states or that is carried on between itself and other states. And we are persuaded by the court's reasoning in Hatch that "[w]hile it may be true that Internet communications routinely pass along interstate lines, " that fact cannot "be employed . . . to insulate pedophiles from prosecution simply by reason of their usage of modern technology." 94 Cal.Rptr.2d at 471. Further, as noted, the activity proscribed by the statute is not legitimate commerce entitled to the protection of the Commerce Clause.

         ¶ 27 In sum, we conclude that section 18-3-405.4(1)(a) does not ...

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