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People v. Henley

Court of Appeals of Colorado, Fourth Division

June 1, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
David Allan Henley, Defendant-Appellant.

         El Paso County District Court No. 12CR1808 Honorable David A. Gilbert, Judge

          Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, 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

          J. JONES JUDGE.

         ¶ 1 Defendant, David Allan Henley, appeals the district court's judgment of conviction entered on jury verdicts finding him guilty of twenty-two counts of sexual exploitation of a child (possession of materials) and one count of sexual exploitation of a child (possession of more than twenty items). He also appeals the district court's related habitual criminal adjudications. We vacate defendant's convictions and adjudications because there is insufficient evidence that the photographs on which the charges are based constitute "erotic nudity" so as to qualify as "sexually exploitative material" under the charging statute, section 18-6-403, C.R.S. 2016. In so concluding, we hold that images which, when viewed objectively, aren't "erotic nudity" don't become so merely because a particular person - one not involved in the creation or distribution of the images - looks at them for the purpose of personal sexual gratification.

         I. Background

         ¶ 2 Defendant's community college classmate saw him looking at what appeared to be pictures of clothed children in "sexual" poses on his laptop computer during class. The classmate reported this to the teacher and to police.

         ¶ 3 A detective searched defendant's computer and found over ninety images that he thought were sexually exploitative. He also discovered that the computer had been used to search the Internet for "preteen girl pics" and "preteen sluts."

         ¶ 4 The People charged defendant with twenty-five counts of sexual exploitation of a child under section 18-6-403(3)(b.5) for twenty-five of the individual images (charged images), and one count of sexual exploitation of a child (possession of more than twenty items) under section 18-6-403(3)(b.5), (5)(b)(II).[1]

         ¶ 5 The charged images show fully or partially naked children (sometimes accompanied by adults) talking to others, walking outside, standing outside, posing in costume, or participating in activities like body painting and playing games.

         ¶ 6 Before trial, defense counsel moved to prohibit the prosecutor from introducing the other images that the detective had found on defendant's computer (uncharged images), arguing that they could confuse the jury and were unduly prejudicial. (These images were of provocatively dressed children (posed suggestively) and naked adults.) The court asked the prosecutor why the uncharged images were relevant. The prosecutor responded that because the charged images were "nudist photographs" that "in and of themselves would not qualify as exploitative, " the uncharged images were relevant to show that defendant looked at the charged images for his personal sexual gratification. He said defendant's purpose in looking at the charged images "makes them exploitative images."

         ¶ 7 The district court apparently agreed with the prosecutor. It said it would allow the prosecutor to introduce the uncharged images because "this does constitute res gestae, " and the uncharged images would "provid[e] the context within which items are found." It concluded, "I find there would be potential relevance to show intent here."

         ¶ 8 During trial, the prosecutor introduced the charged and uncharged images into evidence. As well, defendant's classmate testified as to what he'd seen on defendant's computer, and the detective testified as to the images he'd found on defendant's computer and defendant's use of the search terms "preteen girl pics" and "preteen sluts."

         ¶ 9 In closing argument to the jury, the prosecutor focused on defendant's purpose in looking at the charged images, arguing that defendant's purpose was "sexual, " as demonstrated by the Internet search terms and the uncharged images.[2] In addressing whether the charged images were "erotic nudity, " the prosecutor acknowledged that "[y]ou [the jurors] are going to say to yourselves these are nudist camp photographs. Pictures of naked children. Doing things that are not sexual." But, he argued, "the evidence as a whole" showed that defendant "took otherwise innocent photographs and perverted them for his sexual gratification." Again, the prosecutor pointed to the Internet search terms and the uncharged images. The prosecutor summed up by saying that defendant "[w]as viewing [the charged images]" "[f]or a sexual purpose."

         ¶ 10 The jury acquitted defendant of three counts related to the individual charged images, but it convicted him of the remaining counts.

         II. The Evidence That the Charged Images Are Sexually Exploitative Was Insufficient

         ¶ 11 Defendant contends that we should vacate his convictions for two reasons: (1) there was insufficient evidence that the charged images are "sexually exploitative" as required to support a conviction under section 18-6-403(3) because they aren't "erotic nudity, " and (2) he didn't possess or control the images within the meaning of section 18-6-403(3) merely by looking at them online.[3] Because we agree with defendant's first ...


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