Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People ex rel. T.B.

Court of Appeals of Colorado, Sixth Division

October 20, 2016

The People of the State of Colorado, Plaintiff-Appellee, In the Interest of T.B., Juvenile-Appellant.

         La Plata County District Court No. 13JD15 Honorable Jeffrey R. Wilson, Judge

         JUDGMENT AFFIRMED

          Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Lord Law Firm, LLC, Kathleen A. Lord, Denver, Colorado, for Juvenile-Appellant

          RICHMAN JUDGE

         ¶ 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 offender counts.

         ¶ 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 offender.

         ¶ 5 The juvenile appeals the court's decision to adjudicate him delinquent. We affirm.

         I. Background

         ¶ 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.

         A. E.H.

         ¶ 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] phone."

         ¶ 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 trial.

         ¶ 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."

         B. L.B.

         ¶ 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.

         II. 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.

         A. 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, 30-31.

         ¶ 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.

         B. The 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.

§ 18-6-403(2)(d).

         C. 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 findings:

• E.H. and L.B. were less than eighteen years old when they took the photographs of themselves and texted them to the juvenile.
• 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 her appearance.
• 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 erotic nudity.
• The juvenile was guilty, beyond a reasonable doubt, of both counts of sexual exploitation of a child.

          D. The 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.

         1. 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 photographs.

         ¶ 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 viewed.

         ¶ 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.