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People v. Robles-Sierra

Court of Appeals of Colorado, Fourth Division

March 8, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Fernando Robles-Sierra, Defendant-Appellant.

         Boulder County District Court No. 13CR1277 Honorable Andrew R. Macdonald, Judge

          Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Chelsea E. Mowrer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          J. JONES JUDGE

         ¶ 1 Fernando Robles-Sierra challenges his four convictions for sexual exploitation of a child on several grounds. One is that the district court "closed" the courtroom, in violation of his Sixth Amendment right to a public trial, by allowing the prosecutor to show portions of exhibits containing video recordings and still images of children to the jurors on a screen that couldn't be seen by people in the courtroom gallery. This is the first time this issue has been presented to a Colorado appellate court. We hold that no closure occurred.

         ¶ 2 Also as a matter of first impression, we consider the meanings of "publishes" and "distributes" in the child sexual exploitation statute, section 18-6-403(3)(b), C.R.S. 2017, and conclude that when defendant downloaded sexually exploitative material to his computer using peer-to-peer file sharing software, and saved the material in sharable files or folders accessible by others also using such software, he both published and distributed the material.

         ¶ 3 Because we reject defendant's other contentions as well, we affirm.

         I. Background

         ¶ 4 Sheriff's department detectives found over 600 files of child pornography - in both video recording and still image form - on various electronic devices defendant owned.[1] In each instance, defendant had downloaded someone else's file to his computer using ARES peer-to-peer file sharing software. See People v. Phipps, 2016 COA 190M, ¶¶ 22-23 (describing how a similar software program - LimeWare - works); Stickle v. Commonwealth, 808 S.E.2d 530, 532-34 (Va. Ct. App. 2017) (explaining how ARES works). He had done so in a way that made the new file on his computer downloadable by others using the same software; he hadn't chosen the option of preventing downloads from automatically being saved in the sharable folder. As it turns out, other users had downloaded hundreds of defendant's files.

         ¶ 5 The People charged defendant with four counts of sexual exploitation of a child, two each under subsections (3)(b) and (3)(b.5) of section 18-6-403. The first two alleged that on or between certain dates defendant knowingly prepared, arranged for, published, produced, promoted, made, sold, financed, offered, exhibited, advertised, dealt in, or distributed sexually exploitative material. See § 18-6-403(3)(b). The last two alleged that between certain dates defendant knowingly possessed or controlled sexually exploitative material. See § 18-6-403(3)(b.5).

         ¶ 6 At trial, the prosecution's theory on the charges under subsection (3)(b) was that defendant had published, offered, and distributed the sexually exploitative material by downloading it in a way that others, using the file sharing software, could download it from his computer files. The prosecution's theory for the charges under subsection (3)(b.5) was more straightforward: defendant possessed the material by downloading it to his computers and by transferring files containing the material to a thumb drive.

         ¶ 7 Defendant admitted that he'd downloaded and looked at the sexually exploitative material. But he said he didn't know that by downloading the files he was distributing or possessing them. Put simply, his defense was that he hadn't "knowingly" violated the law, based largely on his claimed ignorance of how ARES software works.

         ¶ 8 A jury found defendant guilty of all four charges.

         II. Discussion

         ¶ 9 Defendant challenges all the convictions for two reasons: (1) the district court violated his constitutional right to a public trial by closing the courtroom during the presentation of parts of certain exhibits and (2) the district court erred by allowing the prosecution's experts to testify to ultimate legal conclusions that were the jury's sole prerogative to decide. He challenges his two convictions for publishing, offering, or distributing sexually exploitative material for two additional reasons: (3) the prosecution's theories of publishing and distributing were "legally insufficient" and (4) the jury instruction defining "offer" had the effect of directing a verdict against him on these charges. We take up, and reject, these four challenges in turn.

         A. The Court Didn't Close the Courtroom

         ¶ 10 Two of the prosecution's witnesses testified about videos and still images taken from defendant's devices. The discs and thumb drive containing the videos and still images were introduced as exhibits. Over defense counsel's objection, the prosecutor displayed the videos and still images using a screen that could be seen by the witnesses and the jurors, but not by anyone in the courtroom gallery. Each witness described in open court the videos and still images, in quite graphic terms.

         ¶ 11 Defendant argues that the court violated his constitutional right to a public trial because denying members of the gallery the ability to see the videos and still images was a closing of the courtroom, and the court failed to determine whether closing the courtroom was proper under the factors articulated in Waller v. Georgia, 467 U.S. 39 (1984).

         1. Preservation and Standard of Review

         ¶ 12 The People concede, and we agree, that defendant preserved this issue for appellate review.

         ¶ 13 Defendant's argument presents issues of law - namely, whether the court closed the courtroom and, if so, whether the court considered and articulated appropriate factors in doing so. We review such issues de novo. See People v. Hassen, 2015 CO 49, ¶ 5 (an appellate court reviews legal issues relating to courtroom closure de novo).[2]

         2. Analysis

         ¶ 14 The underlying premise of defendant's argument is that the court's refusal to allow the members of the gallery to see the showing of the videos and still images from the exhibits was a closure of the courtroom. But that premise doesn't hold up, and so his entire argument collapses.

         ¶ 15 Of course, every defendant has a constitutional right to a public trial. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. Excluding members of the public from the courtroom for all or a part of a trial - commonly referred to in this context as closing the courtroom - may infringe on that right. We say "may" because the public trial right isn't absolute; it may yield to competing interests. Waller, 467 U.S. at 45; Hassen, ¶ 8. In determining whether the right must yield in a particular circumstance, the court must consider several factors. Waller, 467 U.S. at 48; Hassen, ¶ 9.

         ¶ 16 But for those factors to come into play - indeed, for the right to a public trial to be implicated at all - there must be some closure of the courtroom. And so we ask, "Does preventing members of the gallery from seeing something shown to witnesses and jurors constitute a closure?"

         ¶ 17 Defendant argues that it does because the public trial right extends to the presentation of evidence. That argument proves too much. To be sure, that portion of a trial when evidence is presented should be open to the public. But it doesn't follow that the right extends to the viewing of all exhibits by the public as those exhibits are introduced or discussed. Cf. State v. Russell, 357 P.3d 38, 42-43 (Wash. 2015) (though jury selection, particularly voir dire, implicates the right to a public trial, the mere label of "jury selection" doesn't mean the public trial right automatically is implicated; public trial right was not implicated by work sessions in which judge, the defendant, and counsel dealt with preliminary hardship issues raised by responses to juror questionnaires). After all, "spectators often are disadvantaged in viewing trial exhibits as they are offered and introduced." State v. Schiefelbein, 230 S.W.3d 88, 116 (Tenn. Crim. App. 2007) (rejecting argument that the defendant's right to a public trial was violated when the court screened the media and the public from seeing videotapes of a child victim; no closure occurred).[3]

         ¶ 18 The public trial right is concerned with the public's presence during (or access to) the trial. So where no one is excluded from the courtroom, it simply isn't implicated. See United States v. Toschiaddi, No. NMCCA 200800044, 2009 WL 2151149, at *8-9 (N-M. Ct. Crim. App. July 16, 2009) (court didn't close the courtroom by restricting visual access to screen showing images of child pornography taken from an exhibit; spectator access to the courtroom wasn't limited); Schiefelbein, 230 S.W.3d at 114-16; see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564-74 (1980) (plurality opinion) (discussing the common law history and evolution of the public trial right in terms of public attendance); People v. Knapp, 495 N.Y.S.2d 985, 989 (N.Y.App.Div. 1985) (public trial right wasn't implicated by holding trial at a church because public access wasn't restricted); State v. Russell, 172 P.3d 361, 362-64 (Wash.Ct.App. 2007) (prohibiting the press from photographing juvenile witnesses without their consent wasn't a closure of the courtroom because no one was prevented from entering or leaving the courtroom). See generally 6 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 24.1(a), at 351 (4th ed. 2015) ("The defendant's right to a public trial is adequately protected so long as there is free public access to the trial.").

         ¶ 19 The district court didn't exclude any member of the public during the presentation of the evidence. Anyone who cared to could come into the courtroom, see the presentation of evidence, hear the testimony of witnesses, and otherwise observe the goings on. In this way, the public could see that defendant was dealt with fairly and not unjustly condemned, the judge and attorneys were kept keenly aware of their sense of responsibility and the importance of their roles, and witnesses were encouraged to come forward and testify truthfully. See Waller, 467 U.S. at 46 (identifying these "aims and interests" as animating the public trial right).

         ¶ 20 In sum, because the court didn't close the courtroom, there wasn't any violation of defendant's right to a public trial.

         B. The Experts' Testimony Wasn't Plain Error

         ¶ 21 Defendant next contends that the following testimony by the prosecution's experts usurped the jury's role to decide ultimate issues:

• Detective Shavin, a forensic computer expert, in answering the question whether he felt there was any need to look further after examining a computer and thumb drive, said, "I didn't, no. After we looked at this, I felt like we had more than enough evidence that met the elements of the crime."
• Detective Shavin also said, "If [ARES] is up and running on your computer and you have sharing enabled and you have files in any of your shared folders, you are now distributing those files. Those files are now available to others to download from your computer."
• Detective Cronce, an expert in internet crimes against children, testified how an ARES user goes about downloading a file kept in another ARES user's sharable files, showing the jury how he had downloaded files at issue in this case. At one point, Detective Cronce said the software found a file of interest that "was being distributed" and "so it started the download." He also said that ARES locates a file containing an image that likely "is being distributed somewhere else in the world." And he answered "yes" to the prosecutor's question whether once an ARES user has downloaded another user's file (or a ...

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