County District Court No. 12CR1808 Honorable David A.
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Jud
Lohnes, Deputy State Public Defender, Denver, Colorado, for
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
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 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
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
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. 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
Evidence That the Charged Images Are Sexually Exploitative
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. Because we agree with defendant's