County District Court No. 13CR20 Honorable Philip J. McNulty,
Cynthia H. Coffman, Attorney General, Molly E. McNab,
Assistant Attorney General, Denver, Colorado, for
Gregory Lansky, Alternate Defense Counsel, Aurora, Colorado,
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.
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. 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
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.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.
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.
Constitutionality of the Internet Child Exploitation Statute
12 The Internet child exploitation statute provides in
(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 . . . .
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. These challenges fail.
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
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.
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
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,
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.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'
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
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
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