People ex rel. T.B.

          Petition for Rehearing Denied August 19, 2019

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          Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 14CA1142

         Attorneys for Respondent: Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado

         Attorneys for Petitioner: Lord Law Firm, LLC, Kathleen A. Lord, Denver, Colorado

         OPINION

         MÁRQUEZ, JUSTICE.

         [¶1] Sexting,^[1] 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 complied

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and texted nude selfies^[2] 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),^[3] for possessing these images.

         [¶2] 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).

         [¶3] 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)^[4] or -(3)(b.5). § 18-6-403(3.5), C.R.S. (2018).

         [¶4] But the acts at issue here predate these changes in the law.

         [¶5] 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.

         [¶6] 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 juveniles.

         [¶7] 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 court’s finding that they

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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., dissenting).

         [¶8] 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 child.^[5]

         [¶9] 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 court’s 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

         [¶10] 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.

         [¶11] E.H. and L.B. testified that T.B. sent each of them a selfie of his erect penis.^[6] 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.

         [¶12] 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.

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         [¶13] 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.

         [¶14] 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 adjudication.

         [¶15] 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 court’s 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.

         [¶16] 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 defendant’s 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 statute’s elements. Id. at ¶¶ 42-43 (citing People v. Enea, 665 P.2d 1026 (Colo. 1983)).

         [¶17] 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.

         [¶18] 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 Children’s Code, Judge Fox reasoned, reflects the General Assembly’s 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

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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)).

         [¶19] 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.

         [¶20] 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.

          II. Analysis

         [¶21] 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 18-6-403(2)(d).

         [¶22] 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 juvenile’s 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

         [¶23] 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 legislature’s intent, we first look to the plain language of a statutory provision. Id. Where the statutory language is clear, we apply the

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plain and ordinary meaning of a provision. Id.

         [¶24] 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 juror’s 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).

         [¶25] 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 ...