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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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