The PEOPLE of the State of Colorado, Respondent In the Interest of T.B., Petitioner
Petition for Rehearing Denied August 19, 2019
Certiorari to the Colorado Court of Appeals, Court of Appeals
Case No. 14CA1142
for Respondent: Philip J. Weiser, Attorney General, Kevin E.
McReynolds, Assistant Attorney General, Denver, Colorado
for Petitioner: Lord Law Firm, LLC, Kathleen A. Lord, Denver,
Sexting, which includes the sending of sexually
explicit digital images by cell phone, has become common in
our society, especially among teenagers. Approximately one in
four teenagers has received a "sext" and
approximately one in seven has sent one. Sheri Madigan, et
al., Prevalence of Multiple Forms of Sexting Behavior
Among Youth: A Systemic Review and Meta-analysis, 172
JAMA Pediatrics 4, 327, 327 (2018); see also The
National Campaign to Prevent Teen & Unplanned Pregnancy,
Sex and Tech: Results from a Survey of Teens and Young
Adults 1 (2008), available at
https://perma.cc/E8PX-BEJD. In this case, a juvenile texted a
picture of his erect penis to two underage girls and then
repeatedly asked the girls to text him naked pictures of
themselves. After initially resisting, both girls eventually
and texted nude selfies to the juvenile. The juvenile kept
these sexts on his cell phone, where they were discovered by
law enforcement in 2013. The question here is whether the
juvenile can be adjudicated delinquent for sexual
exploitation of a child under section 18-6-403(3), C.R.S.
(2018), for possessing these images.
Under section 18-6-403(3)(b.5), a person commits sexual
exploitation of a child if he knowingly "possesses or
controls" any "sexually exploitative material"
for any purpose. "Sexually exploitative material"
includes any photograph that depicts a child engaged in
"explicit sexual conduct," which includes, as
relevant here, "erotic nudity." § 18-6-403(2)(e),
-(2)(j), C.R.S. (2018). The statute defines "erotic
nudity" as "the display" of certain intimate
body parts "for the purpose of real or simulated overt
sexual gratification or stimulation of one or more of the
persons involved." § 18-6-403(2)(d).
In response to growing public concern over teen sexting, the
General Assembly enacted H.B. 17-1302, which took effect in
January 2018. This bill created, among other lower-level
offenses, the civil infraction of "exchange of a private
image" by a juvenile. Under this new offense, a juvenile
who knowingly possesses a sexually explicit image of another
person who is at least fourteen years old or less than four
years younger than the juvenile, and who reasonably believes
the depicted person transmitted the image or otherwise agreed
to its transmittal, commits a civil infraction punishable by
a fine of up to $50 or participation in a program addressing
the risks and consequences of such behavior. §
18-7-109(3)(b), -(5)(c), C.R.S. (2018). Notably, H.B. 17-1302
established that any juvenile whose behavior is limited to
the elements of the civil infraction is not subject to
prosecution for sexual exploitation of a child under section
18-6-403(3)(b) or -(3)(b.5). § 18-6-403(3.5), C.R.S.
But the acts at issue here predate these changes in the law.
In 2013, officers discovered four sexually explicit selfies
on the cell phone of fifteen-year-old T.B. Three images
depicted seventeen-year-old E.H. nude. The other image
depicted fifteen-year-old L.B. topless, with a towel wrapped
around her waist. Based on T.B.s possession of these images,
the prosecution filed a petition in delinquency charging him
with two counts of possession of sexually exploitative
material under section 18-6-403(3)(b.5) and naming E.H. and
L.B. as victims. At a bench trial, T.B. argued that the
prosecution failed to prove that he knowingly possessed
erotic nudity for the purpose of the overt sexual
gratification of a "person involved." §
18-6-403(2)(d). The court rejected this argument and
adjudicated T.B. delinquent on both counts.
T.B. challenged his adjudication on appeal, repeating his
contention that the photographs did not depict erotic nudity.
In addition, he argued for the first time that to avoid First
Amendment concerns, the sexual exploitation statute must be
read to apply only to images depicting "acts of sexual
abuse," and that under this proper reading, the evidence
was insufficient to convict him. He also contended that the
legislature did not intend section 18-6-403 to apply to
In a published, split ruling, the court of appeals affirmed
T.B.s adjudication. People In Interest of T.B.,
2016 COA 151M, __ P.3d __. The majority concluded that T.B.
was a "person involved" for the purposes of the
statute, and that because the photographs he possessed were
created for the purposes of his sexual gratification,
sufficient evidence supported the trial courts finding that
contained erotic nudity. Id. at ¶¶ 30-35. Two judges
rejected T.B.s unpreserved statutory interpretation
argument, although for different reasons and applying
different standards of review. Id. at ¶¶ 36-45;
id. at ¶¶ 78-86 (Bernard, J., concurring). The third
dissented, reasoning that the General Assembly never intended
section 18-6-403 to reach consensual exchanges of images
between juveniles. Id. at ¶¶ 87-101 (Fox, J.,
We granted T.B.s petition for a writ of certiorari to
determine the proper standard of review for an unpreserved
sufficiency of the evidence claim and to review whether the
court of appeals misconstrued section 18-6-403(3)(b.5) in
holding the evidence was sufficient to support T.B.s
adjudication for sexual exploitation of a
We need not address the standard of review that applies to
T.B.s unpreserved sufficiency of the evidence claim because
we reject his contention that, to avoid First Amendment
concerns, section 18-6-403(3) must be read to limit sexually
exploitative material to images that depict "an act or
acts of sexual abuse of a child." We also reject T.B.s
arguments that the legislature must have implicitly intended
in section 18-6-403 to carve out an exception for juveniles
engaged in sexting behavior. We further hold that the
sexually explicit content of the photos and the circumstances
surrounding their creation, including T.B.s direct
solicitation of them, demonstrate they were made for the
purpose of T.B.s "overt sexual gratification."
Thus, sufficient evidence supports the trial courts
conclusion that the images constituted "erotic
nudity" (and therefore "sexually exploitative
material") for purposes of the sexual exploitation of a
child statute. Accordingly, we affirm the judgment of the
court of appeals upholding T.B.s adjudication.
I. Facts and Procedural History
In September 2012, fifteen-year-old T.B. met
seventeen-year-old E.H. and fifteen-year-old L.B. at a Future
Farmers of America conference. T.B., E.H., and L.B. all lived
in different towns. After the conference, T.B. stayed in
contact with both girls by phone and text message. Both E.H.
and L.B. considered themselves to be romantically involved
with T.B. at different points during their correspondence.
E.H. and L.B. testified that T.B. sent each of them a selfie
of his erect penis. Thereafter, T.B. repeatedly asked both
girls for sexually explicit pictures of themselves, badgering
them until they complied with his requests. In the fall of
2012, E.H. texted T.B. three nude photographs of herself. In
two of these photos, E.H. is curled up in a corner with her
knees drawn up against her body; the photos depict E.H.s
face and upper torso, including her bare breasts. The third
photo depicts E.H. standing near a bathroom shower, covering
her breasts with one arm and revealing the profile of her
nude body turned away at a slight angle. During the spring of
2013, L.B. texted T.B. one photograph of herself. In this
photo, taken in a bedroom mirror, L.B. appears topless, with
a towel wrapped around her waist. The focal point of the
photo is L.B.s breasts; her face is not revealed.
After T.B.s arrest on unrelated sexual assault charges in
March 2013, police seized T.B.s cell phone and discovered
the nude photographs of E.H. and L.B. The People filed a
petition in delinquency, charging T.B. with two counts of
sexual exploitation of a child under section
18-6-403(3)(b.5), C.R.S. (2012), and several other counts
related to the alleged sexual assault. The court granted
T.B.s request to sever the sexual exploitation counts, and a
jury ultimately acquitted T.B. of the other counts.
At his bench trial on the sexual exploitation charges, T.B.
argued that the state failed to prove that the images
depicted "erotic nudity" as required by section
18-6-403(3)(b.5). The court rejected this contention and
found that the prosecution had proven both counts of sexual
exploitation beyond a reasonable doubt. The court adjudicated
T.B. delinquent, sentenced him to concurrent, two-year terms
of juvenile sex offender probation, and required him to
register as a sex offender.
T.B. appealed, reasserting that the evidence was insufficient
to support his adjudication. First, he contended that the
images did not depict erotic nudity. Second, relying on
language in the legislative declaration to section 18-6-403,
T.B. argued for the first time that the sexual exploitation
statute must be interpreted to apply only to images that
depict the sexual abuse of a child, and that under this
interpretation, the evidence was insufficient to support his
In a divided opinion, the court of appeals rejected both
claims. People In Interest of T.B., 2016 COA 151M,
__ P.3d __. The majority, applying factors adopted by another
division of the court of appeals in People v.
Gagnon, 997 P.2d 1278 (Colo.App. 1999), determined that
sufficient evidence supported the trial courts conclusion
that the photographs of E.H. and L.B. constituted erotic
nudity. Id. at ¶¶ 30-35. The court observed that the
images focused on the girls breasts and E.H.s pubic area
and suggested a sexual coyness. Id. at ¶ 33.
Further, the court concluded, the images were created for the
overt sexual gratification of T.B., who repeatedly asked the
girls for the photos after sending them a picture of his
erect penis. Id. at ¶ 34.
As to T.B.s new sufficiency of the evidence claim grounded
in his argument that section 18-6-403(3)(b.5) applies only to
images that depict the sexual abuse of a child, the panel
split, producing three separate opinions. Judge Richman
reviewed the unpreserved claim de novo under the standards
set forth in Dempsey v. People, 117 P.3d 800, 807
(Colo. 2005) (reviewing the record de novo to determine
whether the evidence, viewed in the light most favorable to
the prosecution, was substantial and sufficient in both
quantity and quality to support the defendants guilt beyond
a reasonable doubt). Id. at ¶¶ 18-19. He rejected
T.B.s argument for two reasons. First, he reasoned that the
statute does not import the term "sexual abuse"
from the legislative declaration into the definitions of
"sexually exploitative material," "explicit
sexual conduct," or "erotic nudity."
Id. at ¶ 38 (citing § 18-6-403(2)(d), (e), (j)).
Because the statute is unambiguous, he concluded, it is
applied as written and the court need not engage in further
statutory analysis by considering the legislative
declaration. Id. at ¶¶ 38-41. Second, Judge Richman
reasoned, even if the court considered the legislative
declaration, T.B.s interpretation could not prevail because
a legislative declaration cannot override a statutes
elements. Id. at ¶¶ 42-43 (citing People v.
Enea, 665 P.2d 1026 (Colo. 1983)).
Judge Bernard specially concurred, applying plain error
review to T.B.s unpreserved sufficiency claim. Id.
at ¶ 79 (Bernard, J., concurring). He reasoned that T.B.s
new interpretation of section 18-6-403(3)(b.5) was not
obvious, and therefore declined to address it on the merits.
Id. at ¶¶ 82-86.
Judge Fox dissented. Like Judge Richman, she reviewed T.B.s
new sufficiency claim de novo, id. at ¶ 92 n.4 (Fox,
J., dissenting), but concluded that section 18-6-403 was not
intended to reach "imprudent or irresponsible behavior
by and among juveniles." Id. at ¶ 87. The
Childrens Code, Judge Fox reasoned, reflects the General
Assemblys intent to "treat juveniles differently"
and acknowledges that "[i]nexperience [and] less
education ... make the teenager less able to evaluate the
consequences of his or her conduct." Id. at ¶
89 (quoting Thompson v. Oklahoma, 487 U.S. 815, 835,
108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (plurality opinion)).
By contrast, she reasoned, the purpose of child pornography
laws is to "prevent the abuse of children necessarily
present in the making of child pornography."
Id. at ¶ 92. Given these differing purposes, Judge
Fox concluded that to charge teen sexting as sexual
exploitation of a child under section 18-6-403(3)(b.5),
"blatantly disregard[s] the
purpose and intent" of the statute. Id. at ¶
92. Additionally, Judge Fox concluded that section
18-6-403(3)(b.5) lacks "minimal guidelines" to
avoid discriminatory or arbitrary enforcement, pointing out
that the male recipient of the photos in this case faced
charges, whereas the female teens who produced the images and
sent them faced no legal consequences. Id. at ¶ 93
(quoting City of Chicago v. Morales, 527 U.S. 41,
60, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)).
Not long after the court of appeals issued its opinion in
this case, the General Assembly enacted H.B. 17-1302. This
bill sought to address juvenile sexting behavior through the
creation of new, lower-level offenses of posting and
possessing private images by a juvenile, and the civil
infraction of exchange of a private image by a juvenile. Ch.
390, sec. 1, 2017 Colo. Sess. Laws, codified at § 18-7-109,
C.R.S. (2018). The bill took effect January 1, 2018, and
applies to offenses committed on or after that date.
We granted T.B.s petition for a writ of certiorari to review
the court of appeals ruling affirming his adjudication for
sexual exploitation of a child.
T.B. argues that section 18-6-403(3)(b.5) does not apply to
the teenage texting of nude selfies at issue here. He
challenges the sufficiency of the evidence underlying his
adjudication on two grounds, only one of which was preserved
below. First, relying on language from the legislative
declaration in section 18-6-403(1.5), C.R.S. (2018), T.B.
argues that to qualify as "sexually exploitative
material," an image must depict the "sexual abuse
of a child." This claim was not preserved. Though T.B.
makes clear that he does not claim that the statute is
unconstitutional as applied to him, he nevertheless posits
that his narrowed interpretation of section 18-6-403 is
required to avoid First Amendment concerns. Second,
resurrecting the claim he did preserve below, T.B. argues
that the evidence is insufficient to support his adjudication
because the photographs in his possession did not contain
"erotic nudity," as defined in section
We need not address what standard of review governs T.B.s
unpreserved sufficiency claim because we reject his
contention that, to avoid First Amendment concerns, section
18-6-403(3) must be read to limit sexually exploitative
material to images that depict "an act or acts of sexual
abuse of a child." We conclude that the "sexual
abuse" language T.B. points to from the legislative
declaration does not modify the elements of the offense of
sexual exploitation of a child or its associated definitional
provisions, nor must we import such a limitation to avoid
facial overbreadth concerns. We also reject T.B.s contention
that the legislature must have implicitly intended to carve
out an exception in section 18-6-403 for a juveniles
possession of sexually exploitative materials, observing that
the recent statutory changes enacted in H.B. 17-1302 bolster
our conclusion that the law in effect at the time of T.B.s
conduct did not contemplate any such exception. We next
examine whether the photographs in T.B.s possession
constitute "erotic nudity" under section
18-6-403(2)(d) and conclude that they do. Because the
sexually explicit content of the photos and the circumstances
surrounding their creation, including T.B.s direct and
repeated solicitation of them, demonstrate they were made for
the purposes of T.B.s "overt sexual
gratification," we conclude the trial court properly
considered them erotic nudity for purposes of the sexual
exploitation statute. Accordingly, we affirm the judgment of
the court of appeals upholding T.B.s adjudication.
A. Standard of Review
We review questions of statutory interpretation de novo.
Finney v. People, 2014 CO 38, ¶ 12, 325 P.3d 1044,
1049. In interpreting a statute, we seek to "effectuate
the intent and purpose of the General Assembly."
People v. G.S., 2018 CO 31, ¶ 15, 416 P.3d 905, 909.
We read the statute as a whole, construing its provisions
consistently and in harmony with the overall statutory
design. Id., 416 P.3d at 910. To discern
the legislatures intent, we first look to the plain language
of a statutory provision. Id. Where the statutory
language is clear, we apply the
plain and ordinary meaning of a provision. Id.
When assessing a sufficiency of the evidence claim, we review
the record de novo to determine whether the evidence, when
viewed in the light most favorable to the prosecution, was
"substantial and sufficient" to support a
reasonable jurors conclusion of guilt beyond a reasonable
doubt. People v. Perez, 2016 CO 12, ¶ 9, 367 P.3d
695, 697 (quoting Dempsey, 117 P.3d at 807).
T.B.s new sufficiency of the evidence claim— grounded
in his interpretation of section 18-6-403(3)(b.5)— was
not preserved below. We recently held in McCoy v.
People, 2019 CO 44, ¶ 26, 442 P.3d 379, that sufficiency
of the evidence claims may be raised for the first time on
appeal and that appellate courts should review unpreserved
sufficiency claims de novo. Here, however, the standard of
review that applies to this claim makes no difference
because, as discussed below, we reject his interpretation of
the statute. In short, T.B.s sufficiency claim fails
regardless of whether it is reviewed de novo or under the
plain error standard.
B.Section 18-6-403: The Sexual
Exploitation of ...