People v. Interest of T.B.

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ADVANCE SHEET HEADNOTE
June 17, 2019

2019 CO 53

No. 17SC66, People In the Interest of T.B.—Juvenile Delinquency—Sexual
Exploitation of a Child Statute—Erotic Nudity.

In this case, the supreme court is asked to determine whether a juvenile can be

adjudicated delinquent under the sexual exploitation statute, section 18-6-403(3), C.R.S.

(2018), for possessing sexually explicit nude photos of two underage girls. A person

commits sexual exploitation of a child under section 18-6-403(3), if, as relevant here, he

or she knowingly “possesses or controls any sexually exploitative material for any

purpose.” § 18-6-403(3)(b.5). “Sexually exploitative material” includes any photograph

that depicts a child engaged in “explicit sexual conduct,” which includes “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).

The supreme court holds that section 18-6-403(3) need not be read to limit sexually

exploitative material to images that depict “an act or acts of sexual abuse” of a child. Such

a limitation is neither warranted by the plain language of the statute nor required to avoid
First Amendment concerns. The court additionally holds that section 18-6-403(3)

contained no exception for juvenile sexting behavior at the time of the conduct at issue.

The court further holds that the sexually explicit content of the nude photos and

the circumstances surrounding their creation here, including the juvenile’s repeated

requests for them, demonstrate they were made for his “overt sexual gratification.” Thus,

the trial court properly deemed the photos erotic nudity for purposes of the sexual

exploitation statute.

Accordingly, the supreme court affirms the judgment of the court of appeals

upholding the juvenile’s adjudication.
 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203

2019 CO 53

Supreme Court Case No. 17SC66
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 14CA1142

Respondent:

The People of the State of Colorado,

In the Interest of

Petitioner:

T.B.

Judgment Affirmed
en banc
June 17, 2019

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

JUSTICE MÁRQUEZ delivered the Opinion of the Court.
JUSTICE GABRIEL dissents, and JUSTICE HART joins in the dissent.
¶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 and texted nude selfies2 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.

1 “Sexting” is “the sending of sexually explicit messages or images by cell phone.”
Sexting, Merriam Webster (2019), available at https://perma.cc/88GT-HEUP.
2A “selfie” is “an image that includes oneself (often with another person or as part of a
group) and is taken by oneself using a digital camera especially for posting on social
networks.” Selfie, Merriam-Webster (2019), available at https://perma.cc/RTD2-D3EN.
3 We cite to the current statutes because the relevant provisions have remained
unchanged since 2012 except where noted in this opinion.

2
¶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

3
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.

4Under subsection (3)(b), a person commits sexual exploitation of a child if he knowingly
“[p]repares, arranges for, publishes, . . . produces, . . . makes, . . . or distributes . . . any
sexually exploitative material.” § 18-6-403(3)(b), C.R.S. (2018).

4
¶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 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

5 We granted certiorari review of the following issues:
1. [REFRAMED] Whether the court of appeals correctly applied de novo
review to the defendant’s unpreserved sufficiency of the evidence
challenge to his adjudication for sexual exploitation of a child.
2. [REFRAMED] Whether the court of appeals misconstrued
section 18-6-403(3)(b.5), C.R.S. (2012), in concluding that the evidence
was sufficient to support the juvenile defendant’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.

6
¶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.

6 This photograph of T.B. does not appear in the record. E.H. testified that she deleted
the photograph after receiving it, and L.B testified that she did not recall what she had
done with the photograph.

7
¶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.

8
¶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

9
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 (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 (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.

10
¶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

11
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 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

12
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, __P.3d__, 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 a Child Statute

¶26 A person commits sexual exploitation of a child, if, as relevant here, he or she

knowingly “possesses or controls any sexually exploitative material for any purpose.”

§ 18-6-403(3)(b.5).7 Before 2018, the statute did not contain the express exception for

7 Possession or control of sexually exploitative material is only one means of committing
sexual exploitation of a child. Under section 18-6-403(3), a person also commits sexual
exploitation of a child if he or she knowingly “causes, induces, entices, or permits a child
to engage in . . . explicit sexual conduct for the making of any sexually exploitative
material,” § 18-6-403(3)(a); “[p]repares, arranges for, publishes, . . . produces, . . . makes,
. . . or distributes . . . any sexually exploitative material,” § 18-6-403(3)(b); “[p]ossesses
with intent to deal in, sell, or distribute . . . any sexually exploitative material,”
§ 18-6-403(3)(c); or “[c]auses, induces, entices, or permits a child to engage in . . . explicit
sexual conduct for the purpose of producing a performance,” § 18-6-403(3)(d).

13
juvenile offenders now found in section 18-6-403(3.5) (providing that a juvenile’s conduct

that is limited to the elements of the civil infraction of exchange of a private image by a

juvenile under section 18-7-109(3) is not subject to prosecution under subsection (3)(b)

(making or distributing sexually exploitative material) or (3)(b.5) (possessing or

controlling such material)).

¶27 The statute defines “sexually exploitative material” to include “any photograph

. . . that depicts a child engaged in, participating in, observing, or being used for explicit

sexual conduct.” § 18-6-403(2)(j). In turn, “explicit sexual conduct” includes, as relevant

here, “erotic nudity.” § 18-6-403(2)(e). “Erotic nudity” means:

the display of the human male or female genitals or pubic area, the undeveloped
or developing genitals or pubic area of the human male or female child, the
human breasts, or the undeveloped or developing breast area of the human
child, 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) (emphases added).

¶28 In sum, as relevant here, a photograph constitutes “erotic nudity” (and therefore

“sexually exploitative material”) under section 18-6-403 if it (1) displays the breasts or

pubic area of a child, (2) 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), (e), (j).

C. “Sexually Exploitative Material” under Section 18-6-403
Need Not Depict an Act of Sexual Abuse of a Child

¶29 T.B. contends that section 18-6-403 must be interpreted to limit “sexually

exploitative materials” to images that depict “an act or acts of sexual abuse of a child.”

14
He derives this limitation from section 18-6-403(1.5), one of two legislative declaration

provisions accompanying the statute.

¶30 The original legislative declaration, section 18-6-403(1), C.R.S. (2018), states that

“the sexual exploitation of children constitutes a wrongful invasion of the child’s right to

privacy and results in social, developmental, and emotional injury to the child[,]” and

that to protect children from sexual exploitation, “it is necessary to prohibit the

production of material which involves or is derived from such exploitation and to exclude

all such material from the channels of trade and commerce.”

¶31 In section 18-6-403(1.5), added in 1988, the General Assembly further declared that

“the mere possession or control of any sexually exploitative material results in continuing

victimization of our children” because “such material is a permanent record of an act or

acts of sexual abuse of child,” and that “each time such material is shown or viewed, the

child is harmed.” § 18-6-403(1.5) (emphasis added). Notably, this provision also states

that to stop both the “sexual exploitation and abuse” of children, it is necessary to ban the

possession of sexually exploitative materials. Id. (emphasis added). Finally, it declares

that the state has a compelling interest in outlawing the possession of such material in

order to “protect society as a whole” as well as “the privacy, health, and emotional

welfare of its children.” Id.

¶32 T.B. argues that the legislative declaration in section 18-6-403(1.5) narrows the

substantive elements of the statute. That is, under his reading, the possession of sexually

exploitative material under section 18-6-403(3)(b.5) must be limited to possession of

images that depict “an act or acts of sexual abuse of a child.” He contends that under this

15
interpretation, the evidence here was insufficient to support his adjudication for sexual

exploitation because the selfies of E.H. and L.B. do not depict acts of child sexual abuse.8

¶33 We reject T.B.’s reading of the statute. As set forth above, section 18-6-403(3)(b.5)

required the People to prove that T.B. knowingly possessed “sexually exploitative

material.” The statute defines “sexually exploitative material” to mean any photograph

that depicts a child engaged in “explicit sexual conduct,” a term that includes “erotic

nudity.” § 18-6-403(2)(e), (2)(j). “Erotic nudity” means the display of the pubic area or

the breasts of a child “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). Significantly, none

of these substantive or definitional provisions in the statute incorporate the phrase, “acts

of child sexual abuse,” and we decline to read such a limitation into them. Indeed, we

have previously held that language in the legislative declaration to the sexual exploitation

statute does not “alter the elements of the crime” of sexual exploitation of a child. People

v. Enea, 665 P.2d 1026, 1029 (Colo. 1983) (holding that proof of “social, developmental, or

emotional injury to the child” referenced in the legislative declaration is not an element

of the crime of sexual exploitation of a child). Although our decision in Enea construed

an earlier version of the statute, its reasoning still holds here. Consistent with that

decision, we hold that the additional legislative declaration in subsection (1.5) likewise

8T.B. does not attempt to define what constitutes “an act or acts of sexual abuse of a
child.”

16
does not narrow or otherwise modify the actual elements of the offense of sexual

exploitation of a child found in subsection (3) of the statute or its associated definitional

provisions in subsection (2). In short, based on the plain language of the statute, we

conclude that the unlawful possession of “sexually exploitative materials” under

section 18-6-403 does not require proof that the material depicts “an act or acts of sexual

abuse of a child.”

¶34 We also reject T.B.’s contention that his reading of section 18-6-403(3)(b.5) is

necessary to avoid constitutional infirmities. Specifically, he argues that

section 18-6-403(3)(b.5) must be construed to include a “sexual abuse” element to avoid

violating the First Amendment because the creation of teenage nude selfies is

constitutionally protected speech to the extent that the images are neither obscene nor the

product of abuse.9 However, “the canon of constitutional avoidance has no application

in the absence of statutory ambiguity.” United States v. Oakland Cannabis Buyers’ Co-op.,

532 U.S. 483, 484 (2001). Because the language of section 18-6-403(3)(b.5) is clear and

unambiguous, we need not resort to the canon of constitutional avoidance here. People v.

Flippo, 159 P.3d 100, 106 n.11 (Colo. 2007).10

9 In presenting his constitutional avoidance argument, T.B. makes clear that he does not
claim that section 18-6-403 is unconstitutional as applied to him.
10 In any event, we rejected a facial overbreadth challenge to this statute in People v.
Batchelor, 800 P.2d 599, 601–03 (Colo. 1990). We acknowledged in that case that depictions
of child nudity, without more, are constitutionally protected expression, id. at 601 (citing
New York v. Ferber, 458 U.S. 747, 765 n.18 (1982)), and that statutes prohibiting child
pornography must be sufficiently narrow to avoid criminalizing an intolerable range of
17
 D. Neither the Internet Luring Statute nor H.B. 17-1302
Requires a Different Outcome Here

¶35 Alternatively, T.B. claims that the General Assembly never intended

section 18-6-403 to apply to his conduct in this case. He points to section 18-3-405.4, C.R.S.

(2018) (the internet luring statute) to argue that the legislature must have implicitly

intended in section 18-6-403 to carve out an exception for juveniles engaged in sexting

behavior.

¶36 The internet luring statute criminalizes “knowing[ly] importun[ing], invit[ing],

or entic[ing] through [electronic] communication” “a person who the actor knows or

believes” to be under fifteen years old to expose or touch their own intimate parts or

observe the actor’s intimate parts. §18-3-405.4(1). Under this statute, the actor must be

at least four years older than the minor for internet luring to constitute a crime. Id.

¶37 T.B. argues that if the legislature recognized a close-in-age exception for juveniles

in the internet luring statute, then it must have implicitly intended to create a similar

exception in the sexual exploitation statute. We disagree. Section 18-6-403 contains no

language purporting to create a close-in-age exception for juveniles, despite multiple

amendments to the statute over the last twenty years. If anything, the comparative

protected expressive conduct, id. at 601–02 (citing Osborne v. Ohio, 495 U.S. 103, 112
(1990)). Importantly, we observed that the statute limits “erotic nudity” (as a form of
“explicit sexual conduct”) to the displays of a child’s breasts or pubic area that are made
“for the purpose of overt sexual gratification or stimulation of one or more of the persons
involved.” Id. at 602; § 18-6-403(2)(d). We therefore concluded that section 18-6-403 is
sufficiently limited to avoid concerns of facial overbreadth. Id. at 603.

18
absence of such language in the sexual exploitation statute compels us to conclude that

the legislature did not intend to establish any exception for a juvenile’s conduct under

this provision. See Turbyne v. People, 151 P.3d 563 (Colo. 2007) (“We do not add words to

the statute or subtract words from it.”).

¶38 The legislative declaration to the juvenile sexting bill, H.B. 17-1302, bolsters our

conclusion that section 18-6-403 contained no exception for a juvenile’s possession of

sexually exploitative material before the enactment of that bill. The legislature expressly

acknowledged that, under then-current law, “when a juvenile engages in sexting

behavior, usually the only available offense with which to charge that juvenile is sexual

exploitation of a child.” H.B. 17-1302, § 1(1)(a). Therefore—indeed, apparently for that

very reason—it was necessary to provide law enforcement with the ability to charge

lower-level offenses or civil infractions as well as to provide diversionary programs that

could more appropriately address juvenile sexting behavior. Id., § 1(1)(b), (2).

¶39 Section 18-7-109, the new provision created by H.B. 17-1302, implements a tiered

approach to a juvenile’s posting, possession, or exchange of sexually explicit images of

minors who are at least fourteen years old or less than four years younger than the

juvenile. Possessing a sexually explicit image of another teenager with the reasonable

belief that the depicted person either transmitted the image or agreed to its transmittal

(T.B.’s conduct here), now constitutes the civil infraction of “exchange of a private

19
image.”11 § 18-7-109(3). Possessing a sexually explicit image of another teenager without

that person’s permission is chargeable as a petty offense, § 18-7-109(2), C.R.S. (2018), but

is a class 2 misdemeanor if the juvenile has ten or more separate images depicting three

or more separate persons. § 18-7-109(5)(b). Posting a sexually explicit image of another

teenager without consent is a class 2 misdemeanor, § 18-7-109(5)(a), but becomes a class

1 misdemeanor if, for example, committed with intent to coerce, intimidate or otherwise

cause emotional distress to the depicted person, § 18-7-109(5)(a)(I).

¶40 Finally, H.B. 17-1302 added subsection (3.5) to section 18-6-403, which provides

that a juvenile’s conduct that is limited to the elements of the petty offense of possession

of a private image under section 18-7-109(2) or the civil infraction of exchange of a private

image under section 18-7-109(3) is “not subject to prosecution” for sexual exploitation of

a child under section 18-6-403(3)(b) (making or distributing sexually exploitative

material) or section 18-6-403(3)(b.5) (possessing or controlling sexually exploitative

material). This new language in section 18-6-403(3.5) further confirms our conclusion

11 T.B. does not suggest that section 18-7-109 should be applied retroactively to his
conduct. He also does not contend that the new statute gives rise to any equal protection
claim—nor could he. In the criminal law context, Colorado’s unique equal protection
doctrine applies “only when ‘the same conduct is proscribed in two statutes, and different
criminal sanctions apply.’” People v. Young, 859 P.2d 814, 816 (Colo. 1993). But T.B.’s
conduct was never proscribed by two different statutes at the same time. Finally, T.B.
does not challenge the statute on vagueness grounds, nor does he raise any claim of
selective enforcement. In fact, immediately before they testified at trial, both girls were
advised of their Fifth Amendment privilege against self-incrimination and warned that
they could be subject to prosecution under state or federal law for their possession of the
photo of T.B.’s erect penis.

20
that a juvenile’s conduct was prosecutable under section 18-6-403(3)(b) or -(3)(b.5) before

the enactment of H.B. 17-1302, and that the statute contained no exception for a juvenile’s

possession of sexually exploitative material before the enactment of that bill.

¶41 In sum, T.B.’s claim that section 18-6-403 cannot be understood to apply to a

juvenile’s conduct is without merit. If anything, the legislative declaration to section 18-6-

403 makes clear that the statute is fundamentally concerned with the “privacy, health,

and emotional welfare of [the state’s] children,” § 18-6-403(1.5), and that the sexual

exploitation of children amounts to a “wrongful invasion of the child’s right to privacy,

and results in social, developmental, and emotional injury to the child,” § 18-6-403(1).

Nothing in the legislative declarations to section 18-6-403 suggests that such harms are

lessened or do not exist merely because the sexually exploitative material is made,

possessed, or distributed by a juvenile rather than an adult.

E. The Images Here Constituted “Erotic Nudity”

¶42 Next, T.B. argues that the evidence was insufficient to support his adjudication

because the images he possessed do not depict “erotic nudity.” Again, we disagree. As

discussed above, a photograph constitutes “erotic nudity” (and therefore “sexually

exploitative material”) under section 18-6-403 if it (1) displays the breasts or pubic area

of a child, (2) “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), (e), (j). T.B. does

not dispute that the images in his possession display the breasts or pubic area of a child.

Instead, he argues that the images do not qualify as erotic nudity because the displays

21
were not done for the purpose of the “overt sexual gratification” of a “person involved.”

We disagree.

1. The Images Were “For the Purpose of Real or
Simulated Overt Sexual Gratification or Stimulation”

¶43 In examining whether a photograph displaying the genitals, pubic area, or breasts

of a child is “for the purpose of real or simulated overt sexual gratification or

stimulation,” federal case law is instructive. Under federal child pornography law, a

visual depiction of a child’s anus, genitals, or pubic area constitutes “sexually explicit

conduct” when it is a “lascivious exhibition” of those body parts.

18 U.S.C. § 2256(2)(A)(v), -(8)(A). “Lascivious” is defined as “tending to excite lust.”

Lascivious, Black’s Law Dictionary (10th ed. 2014). The federal statute’s reference to

“lascivious” exhibitions is thus comparable to the language in section 18-6-403(2)(d), “for

the purpose of . . . sexual gratification.”

¶44 In United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), a federal court

articulated a non-exhaustive list of factors to assess whether an image of a minor is ”a

lascivious exhibition of the genitals or pubic area”: (1) whether the focal point of the

image is the child’s genitalia or pubic area; (2) whether the setting of the image is sexually

suggestive; (3) whether the child is depicted in an unnatural pose, or in inappropriate

attire, considering the child’s age; (4) whether the child is fully or partially clothed, or

nude; (5) whether the image suggests sexual coyness or a willingness to engage in sexual

activity; (6) whether the image is intended or designed to elicit a sexual response in the

viewer. Under the Dost approach, not all of these factors must be present for an image to

22
be considered lascivious; whether the image is lascivious must be based on the overall

content of the depiction, taking into account the age of the child. Id.

¶45 Many federal and state courts have adopted these factors or some version of

them,12 including a division of our court of appeals in Gagnon, 997 P.2d at 1282 (using the

Dost factors to assess whether a picture is for the purposes of real or overt sexual

gratification or stimulation of one or more of the persons involved). Here, the division

applied the Dost factors to assess whether the images possessed by T.B. were for the

purpose of the sexual gratification of a person involved. People In Interest of T.B., __ P.3d

at ¶¶ 32–33 (citing Gagnon, 997 P.2d at 1281–82)

¶46 We conclude that the Dost factors provide a useful general framework for

analyzing whether an image is the kind the General Assembly intended to encompass

within its definition of “erotic nudity” for purposes of the sexual exploitation of a child

12Federal courts that have adopted the Dost factors include United States v. Amirault, 173
F.3d 28, 32 (1st Cir. 1999); United States v. Rivera, 546 F.3d 245, 250 (2d Cir. 2008); United
States v. Villard, 885 F.2d 117, 122 (3d Cir. 1989); Sims v. Labowitz, 877 F.3d 171, 182 (4th
Cir. 2017) (overruled on other grounds); United States v. Carroll, 190 F.3d 290, 297 (5th Cir.
1999) (overruled on other grounds); United States v. Brown, 579 F.3d 672, 680 (6th Cir. 2009);
United States v. Horn, 187 F.3d 781, 789 (8th Cir. 1999); and United States v. Wolf, 890 F.2d
241, 247 (10th Cir. 1989). State courts that have also adopted some version of these factors
include Cummings v. State, 353 Ark. 618, 629 (2003); Illinois v. Lamborn, 708 N.E. 2d 350,
354–55 (1999); Purcell v. Kentucky, 149 S.W.3d 382, 392 (Ken. 2004); Massachusetts v. Rex,
469 Mass. 36, 44 (2014); Hood v. Mississippi, 17 So.3d 548, 555 (Miss. 2009); Nebraska v.
Smith, 292 Neb. 434, 463 (2016); New Hampshire v. Lopez, 162 N.H. 153, 156 (2011); New
Mexico v. Myers, 146 N.M. 128, 135 (2009); South Dakota v. Dubois, 2008 S.D. 15, ¶ 35 (2008);
and Utah v. Bagnes, 2014 UT 4, ¶ 42 (2014).

23
statute. Therefore, borrowing from the Dost factors, we hold that when assessing whether

a photograph displaying the genitals, pubic area, or breasts of a child was “for the

purpose of real or simulated overt sexual gratification or stimulation” under

section 18-6-403(2)(d), a reviewing court should examine whether the display appears to

be intended or designed to elicit a sexual response. In conducting this analysis, a court

should consider:

1) whether the focal point of the depiction is on the breasts, genitals, or pubic
area of the child;

2) whether the setting, pose, or attire depicted is sexually suggestive,
considering the age of the child; and

3) whether the depiction appears staged to suggest a willingness to engage in
sexual activity.

These factors are not exclusive, and a court may determine that an image is “for the

purpose of real or simulated overt sexual gratification or stimulation” under

section 18-6-403(2)(d) without satisfying all of the factors.

¶47 Applying these factors here, we conclude the photographs in this case were

intended or designed to elicit a sexual response. Two of the photographs of E.H. depict

her curled up, with her knees pulled in against her body and her breasts exposed. The

other photograph of E.H. depicts her nude profile, and the photograph appears to have

been taken in a bathroom mirror. The photograph of L.B. depicts her with a towel around

24
her torso, with her breasts exposed.13 The focal point of these photos is the girls’ breasts—

and in the profile photo of E.H., her pubic area. The girls’ poses all appear staged to be

sexually suggestive. All the photos suggest a willingness to engage in sexual activity.

Because the content of the photos reflect they were intended or designed to elicit a sexual

response, we conclude the displays of the girls’ breasts and E.H.’s pubic area were “for

the purpose of real or simulated overt sexual gratification or stimulation.”

2. T.B. Was a “Person Involved” for the Purposes of
Section 18-6-403(2)(d)

¶48 The statutory definition of erotic nudity further requires that the sexual

gratification or stimulation be of “one or more of the persons involved.” § 18-6-403(2)(d).

The question is whether T.B. qualifies as a “person involved” under this provision. We

conclude he does.

¶49 In People v. Batchelor, we recognized that a person “involved” for whose sexual

gratification the material is made need not be depicted in the material itself. 800 P.2d at

604. In that case, the defendant was charged with making sexually exploitative material

under section 18-6-403(3)(b) for posing his sleeping nine-year-old daughter in erotic

positions and taking several instant snapshots of her. Id. at 600, 604–05. The defendant

argued that because the child victim in the photograph was not in a condition of real or

13The court of appeals describes this photograph as depicting “L.B.’s shirt [being] pulled
down below her breasts, exposing them.” T.B., 2016 CA 151M, ¶ 33. However, neither
E.H. nor L.B. is wearing a shirt in any of the photographs.

25
simulated sexual gratification or stimulation, the photographs did not constitute erotic

nudity. Id. at 603. We disagreed, reasoning that the statute “simply does not require that

the ‘real or simulated overt sexual gratification or stimulation’ be depicted in the

material.” Id. at 604. Rather, the requisite overt sexual gratification “may be of any of the

persons involved in the activity” and that “[t]he person (or persons) ‘involved’ are not

always depicted in the material.” Id.

¶50 There, we considered the defendant to be a “person involved” because he was “the

maker of the photograph” and the photos were for his overt sexual gratification. Id. But

in reaching that conclusion, we did not construe the phrase “a person involved” in section

18-6-403(2)(d) as necessarily limited to persons who physically manipulate a child subject

or operate a camera. The provision contains no such express limitation. Further, we

relied not simply on the fact that the defendant operated the camera, but that he posed

his daughter in erotic positions. Id. at 605. In other words, the defendant was “involved”

in creating their erotic character, the purpose of which was his own sexual gratification.

Id.

¶51 Under our reasoning in Batchelor, there is no meaningful difference between a

defendant who physically manipulates a child into an erotic pose and photographs her

for the purpose of his own overt sexual gratification, and one who instead verbally

instructs that child to assume the same erotic pose and take a nude selfie for the same

purpose. In both situations, the defendant is “involved” in the creation of the resulting

erotic images for the purpose of the defendant’s sexual gratification.

26
¶52 And for that matter, in today’s digital age, we discern no principled distinction

between a defendant who stands in the room with a minor, directing her to pose in erotic

positions for nude photographs for the defendant’s overt sexual gratification, and a

defendant who uses electronic media to solicit or orchestrate such photographs. A

defendant can be as intimately involved with the creation of images depicting erotic

nudity through a smartphone or computer as he is while standing in the room with the

child. Conversations can occur in real time or near-real time through text messages and

online chat services. And video and image services such as Facetime, Snapchat, and

Instagram Video Chat permit real-time visual and audio communication.

¶53 Here, ample evidence in the record establishes that the photographs were made

for the purpose of T.B.’s overt sexual gratification. E.H. and L.B. both testified that T.B.

sent them a photo of his erect penis. Soon after that, he pestered both girls for sexually

explicit pictures in response. T.B.’s personal involvement in soliciting the photos, his

repeated requests for them, and the sexual banter in the text messages accompanying

those requests demonstrate that T.B.’s “overt sexual gratification” was the whole point of

these text exchanges.14 Given the content of the photos and the context in which they

were created and sent to T.B., we conclude there was sufficient evidence that these nude

14We emphasize that T.B. was not prosecuted for merely asking the girls to send him nude
selfies. Our point is that T.B.’s solicitation of the photographs for his own sexual
gratification further demonstrates he was a “person involved” in their creation, which
goes to whether the images constituted “erotic nudity.”

27
images were “for the purpose of real or simulated overt sexual gratification or stimulation

of one or more of the persons involved” and thus constituted erotic nudity for purposes

of section 18-6-403(2)(d).

¶54 In sum, 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.” Thus,

we conclude that the evidence in the record, viewed in the light most favorable to the

prosecution, was substantial and sufficient to support the trial court’s conclusion that the

photos constituted erotic nudity for purposes of the sexual exploitation statute.

III. Conclusion

¶55 We are cognizant that our holding today may strike some as unfair, especially

given the recent changes in the law addressing juvenile sexting behavior. However, we

must apply the law in effect at the time of T.B.’s conduct. We hold that section 18-6-403(3)

need not be read to limit sexually exploitative material to images that depict “an act or

acts of sexual abuse of a child.” Such a limitation is neither warranted by the plain

language of the statute nor required to avoid First Amendment concerns. We further

hold that the sexually explicit content of the photos and the circumstances surrounding

their creation, including T.B.’s repeated requests for them, demonstrate they were made

for the purpose of T.B.’s “overt sexual gratification,” and the trial court therefore 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.

28
JUSTICE GABRIEL dissents, and JUSTICE HART joins in the dissent.

JUSTICE GABRIEL, dissenting.

¶56 In this juvenile delinquency proceeding, the juvenile and two teenage girls with

whom he had had relationships texted nude selfies to one another. Despite the facts that

sexting like this has become common in our society and that the juvenile and the girls

engaged in the same conduct, the prosecution charged the juvenile (but not the girls) with

conduct that, if committed by an adult, would amount to sexual exploitation of a child.

The juvenile was adjudicated a delinquent, and the majority today upholds his

adjudication, forever branding him as a sex offender, notwithstanding the fact that if the

same acts were committed today, the juvenile would be subject to nothing more than a

civil infraction. See § 18-7-109(3), C.R.S. (2018).

¶57 Unlike the majority, I do not believe that the prosecution established that the

juvenile committed sexual exploitation of a child. Moreover, I am concerned that the

majority’s construction of the sexual exploitation statute gives rise to a number of

constitutional infirmities.

¶58 Accordingly, I respectfully dissent.

I. Analysis

¶59 The majority has laid out the pertinent facts in this case. Accordingly, I begin by

setting forth our standard of review and the applicable rules of statutory construction. I

then proceed to discuss why, in my view, the juvenile has not committed sexual

exploitation of a child within the meaning of the version of section 18-6-403, C.R.S. (2017),

1
at issue here. I conclude by explaining why I believe the majority’s construction of that

statute creates constitutional problems.

A. Standard of Review and Principles of Statutory Construction

¶60 We review issues of statutory interpretation de novo. Doubleday v. People, 2016 CO

3, ¶ 19, 364 P.3d 193, 196. In construing a statute, our primary purpose is to ascertain and

give effect to the legislature’s intent. Id. To do so, we look first to the language of the

statute, giving its words and phrases their plain and ordinary meanings. Id. We read

statutory words and phrases in context, and we construe them according to the rules of

grammar and common usage. Id.

¶61 We must also endeavor to effectuate the purpose of the legislative scheme. In

doing so, we read that scheme as a whole, giving consistent, harmonious, and sensible

effect to all of its parts, and we must avoid constructions that would render any words or

phrases superfluous or lead to illogical or absurd results. Id. at ¶ 20, 364 P.3d at 196. If

the statute is unambiguous, then we need look no further. Id.

B. Section 18-6-403

¶62 Section 18-6-403(3)(b.5) provides that a person commits sexual exploitation of a

child if, as pertinent here, he or she knowingly “[p]ossesses or controls any sexually

exploitative material for any purpose.”

¶63 “Sexually exploitative material” is defined as “any photograph, motion picture,

video, recording or broadcast of moving visual images, print, negative, slide, or other

mechanically, electronically, chemically, or digitally reproduced visual material that

2
depicts a child engaged in, participating in, observing, or being used for explicit sexual

conduct.” § 18-6-403(2)(j).

¶64 “Explicit sexual conduct,” in turn, means “sexual intercourse, erotic fondling,

erotic nudity, masturbation, sadomasochism, or sexual excitement.” § 18-6-403(2)(e).

¶65 And, pertinent here, “erotic nudity” is defined as

the display of the human male or female genitals or pubic area, the
undeveloped or developing genitals or pubic area of the human male or
female child, the human breasts, or the undeveloped or developing breast
area of the human child, 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).
¶66 My difference of opinion with the majority principally stems from its definition of

the above-quoted phrase, “one or more of the persons involved.” Relying on our opinion

in People v. Batchelor, 800 P.2d 599 (Colo. 1990), the majority opines that the juvenile was

a “person involved” within the meaning of the above-quoted definition of “erotic

nudity.” Maj. op. ¶¶ 49–52. The majority then concludes that substantial and sufficient

evidence in the record supported the trial court’s conclusion that the photos constituted

erotic nudity for purposes of the sexual exploitation statute. Id. at ¶ 54. Because in my

view the majority’s conclusion is inconsistent with Batchelor and effectively reads the

phrase “of one or more of the persons involved” out of section 18-6-403(2)(d), I

respectfully disagree with that conclusion.

¶67 In Batchelor, 800 P.2d at 600, the defendant went into his sleeping nine-year-old

daughter’s bedroom, pulled her panties down, took a photo, and then changed her

position and took several more photos. He was charged and convicted of one count of

3
sexual exploitation of a child on the theory that his photographs depicted “erotic nudity”

within the meaning of section 18-6-403(2)(d).

¶68 The defendant challenged his conviction, arguing that in order for material to

constitute “erotic nudity,” the material must depict the person photographed in a

condition of real or simulated overt sexual gratification or stimulation. Id. at 603. We

disagreed. Id. As pertinent here, we observed that the statute does not require that the

“real or simulated overt sexual gratification or stimulation” be depicted in the material.

Id. at 604. We further stated that (1) the “involved” person or persons “are not always

depicted in the material” and (2) “if the sexual gratification is of a person not in the

material, the sexual gratification of that person need not be shown in the material.” Id.

We then concluded, on the facts there before us, that “the overt sexual gratification was

of [the defendant], the maker of the photograph.” Id. (emphasis added).

¶69 The majority sees no meaningful difference between the defendant’s conduct in

Batchelor and that of a person who verbally instructs a child to assume the same erotic

pose and take a nude selfie for the same purpose. Maj. op. ¶ 51. Nor does the majority

see a distinction between the defendant’s conduct in Batchelor and that of a defendant

who uses electronic media to solicit or orchestrate such photographs. Id. at ¶ 52. The

majority thus concludes that substantial and sufficient evidence supported the trial

court’s conclusion that the photos constituted “erotic nudity” within the meaning of

section 18-6-403(2)(d). Id. at ¶ 54. For several reasons, I disagree.

¶70 First, no evidence in this case supports the majority’s suggestion that the juvenile

here verbally instructed the girls involved to assume any particular erotic pose. Nor did

4
he in any way “orchestrate” the photos at issue. The evidence shows that he did no more

than request that the girls send him nude selfies.

¶71 Second, although the majority sees no material difference between the defendant’s

conduct in Batchelor and the juvenile’s conduct here, I believe that the actions are

distinguishable and that the difference is dispositive.

¶72 In my view, under any definition of “person involved,” one who stages and then

takes photographs of a child for his or her sexual gratification (i.e., one who is the

“maker” of a photograph) is “involved” in the display of the child’s body. See, e.g.,

Involve, Webster’s Third New International Dictionary (2002) (defining “involve,” in

pertinent part, to mean “to draw in as a participant”).

¶73 In contrast, under any potentially applicable definition of the term “involved,” I

do not believe that a juvenile who merely asks two girls who are not in his presence to

send him nude photographs of themselves can be said to be “involved” in the displays

of the girls’ bodies. See id. In those circumstances, the juvenile did not in any way “make”

the depictions, as the defendant did in Batchelor. Nor was he a participant in the

depictions. And he did not cause the depictions to be made or stage the depictions

against the girls’ will or without their consent. The girls took and sent the photographs,

and no one forced them to do so.

¶74 Finally, the majority’s ultimate conclusion that substantial and sufficient evidence

supported the juvenile’s adjudication here because “the sexually explicit content of the

photos and the circumstances surrounding their creation, including [the juvenile’s] direct

and repeated solicitation of them, demonstrate they were made for the purposes of the

5
juvenile’s ‘overt sexual gratification,’” maj. op. ¶ 54, indicates that the majority has

effectively read the phrase “of one or more of the persons involved” out of section

18-6-403(2)(d).

¶75 Specifically, the majority appears to read that provision to define “erotic nudity”

as

the display of the human male or female genitals or pubic area, the
undeveloped or developing genitals or pubic area of the human male or
female child, the human breasts, or the undeveloped or developing breast
area of the human child, for the purpose of real or simulated overt sexual
gratification or stimulation of one or more of the persons involved.
or
the display of the human male or female genitals or pubic area, the
undeveloped or developing genitals or pubic area of the human male or
female child, the human breasts, or the undeveloped or developing breast
area of the human child, for the purpose of real or simulated overt sexual
gratification or stimulation of one or more of the persons involved the
person who solicited the material.

¶76 We, however, are not at liberty to rewrite a statute, nor may we construe it so as

to render any of its terms meaningless. See Doubleday, ¶ 20, 364 P.3d at 196; see also

Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007) (“We do not add words to [a] statute or

subtract words from it.”). In my view, that is what the majority has done here.

¶77 For these reasons, I would conclude that the juvenile was not a “person involved”

in the depiction of the girls’ bodies here and that therefore the evidence against him was

legally insufficient to support his adjudication for sexual exploitation of a child.

6
 C. Constitutional Concerns

¶78 Although my analysis is based on the plain language of the sexual exploitation of

a child statute, I feel compelled to note that, unlike the majority’s construction, my

interpretation of the statute avoids constitutional infirmities. The majority’s broad

construction, in contrast, implicates overbreadth, vagueness, and equal protection

concerns, and I briefly explain why.

¶79 “The overbreadth doctrine addresses the concern that the scope of a law may be

so broad that it restricts speech protected by the First Amendment or has a chilling effect

on such constitutionally protected speech.” People v. Graves, 2016 CO 15, ¶ 12, 368 P.3d

317, 322.

¶80 In considering a facial challenge to a statute on the ground that it is overbroad,

courts first must determine “whether the enactment reaches a substantial amount of

constitutionally protected conduct. If it does not, then the overbreadth challenge must

fail.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982)

(footnote omitted).

¶81 Here, construing section 18-6-403 so broadly as to encompass a teenager’s request

that another teenager send a nude selfie strikes me as potentially implicating a juvenile’s

right to free speech. This is particularly true here, where the conduct did not involve any

sort of physical manipulation or compulsion but rather encompassed a group of

teenagers doing what teenagers often—albeit perhaps foolishly—do, namely, text nude

selfies to one other.

7
¶82 Similarly, I am concerned that the majority’s reading of “person involved” is so

broad as to render it meaningless, thereby creating a constitutional vagueness problem.

A criminal statute is unconstitutionally vague when it “fails to give ordinary people fair

notice of the conduct it punishes, or [is] so standardless that it invites arbitrary

enforcement.” Johnson v. United States, 135 S. Ct. 2551, 2556 (2015). Thus, the vagueness

doctrine requires that a criminal statute “be framed with sufficient clarity to alert all who

are subject to its sanctions to the nature of the proscribed behavior and to inform them of

permissible standards of conduct, that they may conduct themselves accordingly.”

People v. Randall, 711 P.2d 689, 691 (Colo. 1985).

¶83 Here, given the breadth of the majority’s construction of the phrase “person

involved,” I fear that those subject to the statute can no longer know what conduct the

statute will now be deemed to cover.

¶84 Finally, I am concerned that the majority’s construction of the statute creates equal

protection problems. Equal protection concerns are implicated when the prosecution

selectively enforces a statute based on a prohibited standard such as race, religion, or

some other arbitrary classification. See Dean v. People, 2016 CO 14, ¶ 14, 366 P.3d 593, 597.

In addition, “[w]here two statutes provide disparate penalties for similar criminal

conduct, equal protection guarantees are violated.” People v. Montoya, 582 P.2d 673, 675

(Colo. 1978).

¶85 Here, the juvenile and both of the girls who were involved engaged in the same

conduct, yet only the juvenile was charged. For me, this raises the specter of selective

enforcement of this statute based on gender. Moreover, I am troubled by the fact that,

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based solely on timing, a person in the juvenile’s position faces either an adjudication that

will brand him as a sex offender (and require him to register as such) or simply a civil

penalty. To me, this vast difference in consequences presents serious equal protection

concerns.

¶86 For these reasons, I would conclude that the prosecution has not established that

the juvenile committed sexual exploitation of a child.

II. Conclusion
¶87 I anticipate that when many read or learn of the majority’s opinion in this case,

they will be surprised by the result. Although to be sure, the proper application of the

law in a given case can sometimes produce a result that some would deem

counterintuitive, I do not believe that this should be such a case. In my view, under the

plain language of section 18-6-403, the acts of sexting that occurred here do not constitute

sexual exploitation of a child, and the juvenile should not be branded as a sex offender

for having participated in such foolish—albeit not uncommon—acts. Moreover, for the

reasons discussed above, I believe that the majority’s interpretation of the statute creates

constitutional infirmities that a proper (and narrower) construction would avoid.

¶88 For these reasons, I would reverse the judgment of the division below, and

therefore I respectfully dissent.

I am authorized to state that JUSTICE HART joins in this dissent.

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