County District Court No. 13CR1277 Honorable Andrew R.
Cynthia H. Coffman, Attorney General, Erin K. Grundy,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Chelsea E.
Mowrer, Deputy State Public Defender, Denver, Colorado, for
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
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
3 Because we reject defendant's other contentions as
well, we affirm.
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. 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 §
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.
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.
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).
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
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,
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
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
20 In sum, because the court didn't close the courtroom,
there wasn't any violation of defendant's right to a
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 ...