County District Court No. 13CR235 Honorable Paul A. King,
Cynthia H. Coffman, Attorney General, William G. Kozeliski,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Alan
Kratz, Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Ronald Laroy Lewis, appeals the judgment of
conviction entered on jury verdicts finding him guilty of
Internet sexual exploitation of a child and Internet luring
of a child. We affirm.
2 In response to Lewis's Craigslist advertisement
soliciting a "barely legal" for sexual acts,
Douglas County Sheriff's Detective Christine Brite
pretended to be a fourteen-year-old girl named "Kayla
Nelson." After exchanging sexually explicit messages via
computers, Brite forwarded to Lewis an image of what appeared
to be a teenage girl. Lewis inquired whether or not
"Kayla" was "legit, " sent
"Kayla" a sexually explicit photograph of himself,
and arranged to meet her.
3 Expecting to meet "Kayla" outside his residence
in Jefferson County, Lewis was instead arrested by police and
charged in Douglas County with Internet sexual exploitation
of a child and Internet luring of a child. Lewis's
defense at trial was that he did not really believe that the
person responding as "Kayla" was only fourteen
years old. A jury convicted him as charged.
4 On appeal, Lewis contends that (1) the trial court erred by
instructing the jury that the prosecution was not required to
prove that the offenses were committed, as charged, in
Douglas County; (2) the prosecution failed to present
substantial and sufficient evidence showing that the offense
was committed in Douglas County; (3) the trial court erred in
allowing the jury unsupervised access to the videotape of
Lewis' interrogation by the police following his arrest;
and (4) the prosecutor repeatedly made improper comments
implying guilt based upon Lewis's exercise of his
constitutional right to remain silent. We address - and
reject - each contention in turn.
Instructing the Jury on the Prosecution's Burden of Proof
with Respect to the County Where the Offenses Occurred
5 After the prosecution presented its case, the court
received a question from a juror which read: "What are
the jurisdictional roles in this case? A Douglas County
detective arresting a Jefferson County suspect and a
Littleton 'victim.'" With the parties'
agreement, the court did not answer the question.
6 After the close of all the evidence, defense counsel
asserted that the elemental instructions for the offenses
should include a requirement that the prosecution prove
beyond a reasonable doubt that the offenses were committed,
as charged, in Douglas County. Defense counsel's
assertion was premised on the view that proper venue is an
element of a crime. The trial court rejected counsel's
assertion, and, over his objection, instructed the jury, at
the prosecutor's request, that "proof of the county
in which the offense occurred shall not constitute an element
of any offense and need not be proven by the prosecution at
trial." The instruction's language was taken nearly
verbatim from section 18-1-202(11), C.R.S. 2017, and the
court noted that, under that statute, any issues pertaining
to the proper venue for trial had to be raised before trial
or they were waived.
Presentation and Preservation of Issues
7 Defense counsel objected to the court's instructions
because, in his view, they improperly lowered the
prosecution's burden of proof and therefore
"impede[d] Mr. Lewis's due process rights under the
state and federal constitutions." Lewis reasserts that
position on appeal. To succeed, however, he recognizes that
he also must contest the constitutionality of section
18-1-202(11), C.R.S. 2017.
8 "To preserve an issue for appeal, a defendant must
alert the trial court to the particular issue."
People v. Cordova, 293 P.3d 114, 120 (Colo.App.
2011). Here, when confronted by the trial court with section
18-1-202(11), defense counsel did not raise or challenge the
constitutionality of the statute. It is doubtful, then, that
counsel preserved such a challenge for appellate review.
Nonetheless, we will assume, for purposes of this appeal,
that he did so. We are willing to do so because Lewis's
constitutional claim in the trial court was inextricably
intertwined with the effect and validity of the statute on
which the trial court relied.
9 Lewis correctly points out that "[u]nder both the
United States and Colorado Constitutions, due process
requires the trial court to properly instruct the jury on
every element of the substantive offense with which the
defendant is charged so the jury may determine whether all
the elements have been established beyond a reasonable
doubt." People v. Pickering, 276 P.3d 553, 555
10 Lewis asserts that this was not done here, however,
because the court failed to recognize that proper venue was a
substantive element of the crimes charged.
11 In People v. Reed, 132 P.3d 347 (Colo. 2006), the
supreme court succinctly recounted how the issue of venue as