The People of the State of Colorado, Plaintiff-Appellee, In the Interest of T.B., Juvenile-Appellant.
Plata County District Court No. 13JD15 Honorable Jeffrey R.
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds,
Assistant Attorney General, Denver, Colorado, for
Law Firm, LLC, Kathleen A. Lord, Denver, Colorado, for
1 Two teenage girls alleged that a teenage boy, the juvenile
T.B., had raped them. During the investigation into those
allegations, the police discovered that the juvenile had used
his cell phone to solicit, to receive, and to store nude
photographs of teenage girls. The police identified and
confirmed the ages of two of the girls depicted in the
photographs, E.H. and L.B.
2 The prosecution filed a delinquency petition that charged
the juvenile with sexual assault, kidnapping, third degree
assault, aggravated juvenile offender, and, based on the
photographs of E.H. and L.B., two counts of sexual
exploitation of a child.
3 The trial court granted the juvenile's request to sever
the two sexual exploitation counts from the rest of the
counts. A jury acquitted him of the sexual assault,
kidnapping, third degree assault, and aggravated juvenile
4 The court then presided over a bench trial on the sexual
exploitation of a child counts. At the trial's end, the
court found that the prosecution had proved, beyond a
reasonable doubt, that the juvenile had committed two counts
of sexual exploitation of a child, adjudicated the juvenile
delinquent, sentenced him to two concurrent two-year terms of
sex offender probation, and required him to register as a sex
5 The juvenile appeals the court's decision to adjudicate
him delinquent. We affirm.
6 The juvenile met E.H. and L.B. at a Future Farmers of
America conference in September 2012. The juvenile and L.B.
were then fifteen years old, and E.H. was seventeen years
old. After the conference, the juvenile stayed in touch with
both girls by telephone and text messaging because they lived
in different towns.
7 E.H. testified during the trial that, in the fall of 2012,
the juvenile had texted her photographs of his erect penis.
When E.H. received them, "[she] deleted them"
because she "didn't want to keep those on [her]
8 The juvenile repeatedly asked her to send him nude
photographs of herself. She said that "[t]he first time
[she] told him no. Then after that [she] was like well, maybe
after a while, and then just kind of like getting him off
[her] case, and then finally [she] just gave in."
9 She sent him three nude photographs of herself. The police
later recovered these photographs from his cell phone. The
prosecution introduced them to the court during the bench
10 E.H. added that the juvenile said that she "look[ed]
good" in these photographs. He asked for more. She
declined because she "was very ashamed of
[herself.]" When her mother later found out about these
photographs, "it really crushed [E.H.] morally"
because E.H. had "always tried to be the best person
[that she could] be."
11 L.B. testified at trial that, in the spring of 2013, the
juvenile had texted her a photo of his erect penis. He
proceeded to send her a series of texts asking her to send
him nude pictures of herself. She eventually texted him a
photograph that showed her topless. The police recovered this
photograph from the juvenile's cell phone, and the
prosecution introduced it to the court.
12 The juvenile continued to text photographs to L.B. of his
erect penis even after he had been arrested.
Sufficiency of the Evidence
13 The juvenile asserts that, for two reasons, the evidence
is insufficient to support his adjudication for sexual
exploitation of a child. First, he submits that the evidence
did not show that the photographs of E.H. and L.B. depicted
"erotic nudity, " which is a necessary component of
the crime of sexual exploitation of a child. Second, he
contends that the statute prohibiting sexual exploitation of
a child does not forbid one teenager from possessing a nude
photograph of another teenager as long as both teenagers are
over the age of fourteen. We disagree with both contentions.
Standard of Review
14 The juvenile asserted at trial that (1) nude photos do not
meet the erotic nudity definition necessary to prove sexual
exploitation of a child; and (2) the chain of custody was
insufficient to show that the juvenile knew that he possessed
the nude photographs of E.H. and L.B. on his cell phone. So,
he expressly preserved his first sufficiency of the evidence
contention - that under the sexual exploitation statute the
photographs of E.H. and L.B. did not depict erotic nudity.
15 But the juvenile did not argue to the trial court that the
sexual exploitation statute did not apply at all to
defendant's conduct in this case. Thus, his second
argument was not expressly preserved.
16 The juvenile and the prosecution disagree about what
standard of review should apply to the juvenile's second,
unpreserved, sufficiency of the evidence contention.
17 The prosecution argues that we should review this
unpreserved assertion only for plain error. See People v.
McCoy, 2015 COA 76M, ¶ 70 (Webb, J., specially
concurring) (cert. granted October 3, 2016);
People v. Lacallo, 2014 COA 78, ¶¶ 12,
18 The juvenile asserts that we should apply "de
novo" review. See Dempsey v. People, 117 P.3d
800, 807 (Colo. 2005) (whether the record contains sufficient
evidence to support conviction is reviewed de novo);
People v. Mantos, 250 P.3d 586, 589 (Colo.App. 2009)
(meaning of statute is a question of law subject to de novo
review). But the term "de novo" describes the
standard by which we determine whether an error occurred, and
does not describe the test we apply to determine whether an
error requires reversal. Even if plain error review applies,
we determine whether an error occurred by applying the de
novo review per Dempsey. What the juvenile
apparently means by the use of this term is that if we
conclude that the evidence is insufficient we must vacate the
conviction, and no retrial occurs, in effect a form of
"structural error." See McCoy, ¶ 30.
19 We recognize that there is disagreement on this court
about which of these standards of review should apply in
these circumstances. See McCoy, ¶ 68 (Webb, J.,
specially concurring) (citing cases showing disagreement). We
are persuaded by the majority's reasoning in McCoy,
¶¶ 5-36, and the reasoning of the special
concurrences in Lacallo, ¶¶ 59-73 (Román, J,
concurring in part and dissenting in part), and People v.
Rediger, 2015 COA 26, ¶ 67 (Richman, J., specially
concurring) (cert. granted Feb. 16, 2016), so we
shall apply that reasoning in this case. See People v.
White, 179 P.3d 58, 60-61 (Colo.App. 2007) (one division
of the court of appeals is not obligated to follow the
decision of another).
20 We review both contentions challenging the sufficiency of
the evidence in accord with the standards set forth in
Dempsey, 117 P.3d at 807, to determine whether the
court erred. In doing so, we consider whether the relevant
evidence, both direct and circumstantial, when viewed as a
whole and in the light most favorable to the prosecution, was
substantial and sufficient to support a conclusion by a
reasonable mind that the defendant was guilty of the charge
beyond a reasonable doubt. People v. Wentling, 2015
COA 172, ¶ 8; see also Clark v. People, 232
P.3d 1287, 1291 (Colo. 2010). If we decide the court erred,
we will not consider whether the error was obvious, or
whether the error cast serious doubt on the reliability of
the judgment of conviction. Cf. Rediger, ¶ 11.
Sexual Exploitation of a Child Statute
21 The sexual exploitation of a child statute states, as
relevant here, that
(3) A person commits sexual exploitation of a child if, for
any purpose, he or she knowingly:
. . .
(b.5) Possesses or controls any sexually exploitative
material for any purpose . . . .
§ 18-6-403(3)(b.5), C.R.S. 2016.
22 "'Sexually exploitative material' means any
photograph . . . that depicts a child engaged in,
participating in, observing, or being used for explicit
sexual conduct." § 18-6-403(2)(j). In this context,
a child is "a person who is less than eighteen years of
age." § 18-6-403(2)(a).
23 For the purposes of our analysis, the statutory definition
of "explicit sexual conduct" includes "erotic
nudity." § 18-6-403(2)(e).
"Erotic nudity" means the display of the human male
or female genitals or pubic area, the undeveloped or
developing genitals or pubic area of the human male or female
child, the human breasts, or the undeveloped or developing
breast area of the human child, for the purpose of real or
simulated overt sexual gratification or stimulation of one or
more of the persons involved.
Trial Court Findings
24 When the trial court adjudicated the juvenile delinquent
at the end of the bench trial, it made a series of factual
â¢ E.H. and L.B. were less than eighteen years old when they
took the photographs of themselves and texted them to the
• The juvenile knew that E.H. and L.B. were under
eighteen years old.
• The juvenile knew that he had received the nude
photographs; indeed, he had complimented one of the girls on
• The juvenile possessed the nude photographs because
they were on his cell phone when the police examined it.
• There was an adequate chain of custody between the
police seizure of the cell phone and the copies of the
photographs of the girls that the prosecution introduced as
evidence partially because, during trial, the girls had
identified the copies as being the photographs that they had
texted to the juvenile.
• The juvenile repeatedly asked E.H. and L.B. for nude
photographs after he had sent them photographs of his erect
penis. The nude photographs of the girls were therefore
• The juvenile was guilty, beyond a reasonable doubt, of
both counts of sexual exploitation of a child.
First Sufficiency of the Evidence Contention
25 We first address the juvenile's contention that the
evidence was insufficient to prove that he knew that he
possessed photographs depicting erotic nudity. We review the
evidence de novo in the light most favorable to the
prosecution, and, after doing so, we conclude that the
evidence was sufficient. See Clark, 232 P.3d at
1291; Dempsey, 117 P.3d at 807.
Chain of Custody
26 The juvenile first contends that the chain of custody
linking his cell phone and the photographs of E.H. and L.B.
admitted at trial was insufficient. He argues the chain of
custody was insufficient because it did not show that the
photographs were accurate copies of the photographs that were
on the juvenile's telephone. We are not persuaded.
27 E.H. and L.B. identified the trial photographs as copies
of the ones that they had taken of themselves and that they
had texted to the juvenile, using his cell phone number. E.H.
also testified that the juvenile had complimented her on her
28 The evidence showed that the police had searched the
juvenile's cell phone. They had found the photographs of
E.H. And L.B., nude photographs of other girls, and
photographs of the juvenile's erect penis. A digital
forensic officer testified that the data in the
juvenile's cell phone had not been tampered with and that
the photographs from E.H. and L.B. had been opened and
29 Any purported deficiencies in the chain of custody, such
as a lack of clarity about which police officer had made the
copies of the photographs from the juvenile's cell phone,
went to the weight that the trial court gave the photographs,
not to ...