     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                               March 8, 2018
                                2018COA28

No. 15CA0683, People v. Robles-Sierra — Constitutional Law —
Sixth Amendment — Speedy and Public Trial; Crimes — Sexual
Exploitation of a Child — Sexually Exploitative Material —
Publication — Distribution

     The division considers two issues of first impression in this

criminal case. First, the division considers whether the trial court

closed the courtroom in violation of defendant’s right to a public

trial when it allowed the prosecutor to show the jury portions of

exhibits containing video recordings and still images on a screen

that could not be seen by people in the courtroom gallery. The

division holds that this was not a closure of the courtroom.

     Second, the division considers the meanings of “publishes”

and “distributes” in the child exploitation statute, section 18-6-

403(3)(b), C.R.S. 2017. The division holds that defendant’s

downloading of sexually exploitative material to his computer using
peer-to-peer file sharing software, and his saving of that material in

sharable files or folders accessible by others using the same

software, constituted both publishing and distributing the material

within the meaning of the statute.
COLORADO COURT OF APPEALS                                       2018COA28


Court of Appeals No. 15CA0683
Boulder County District Court No. 13CR1277
Honorable Andrew R. Macdonald, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Fernando Robles-Sierra,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division IV
                         Opinion by JUDGE J. JONES
                      Hawthorne and Richman, JJ., concur

                          Announced March 8, 2018


Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Chelsea E. Mowrer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Fernando Robles-Sierra challenges his four convictions for

 sexual exploitation of a child on several grounds. One is that the

 district court “closed” the courtroom, in violation of his Sixth

 Amendment right to a public trial, by allowing the prosecutor to

 show portions of exhibits containing video recordings and still

 images of children to the jurors on a screen that couldn’t be seen by

 people in the courtroom gallery. This is the first time this issue has

 been presented to a Colorado appellate court. We hold that no

 closure occurred.

¶2    Also as a matter of first impression, we consider the meanings

 of “publishes” and “distributes” in the child sexual exploitation

 statute, section 18-6-403(3)(b), C.R.S. 2017, and conclude that

 when defendant downloaded sexually exploitative material to his

 computer using peer-to-peer file sharing software, and saved the

 material in sharable files or folders accessible by others also using

 such software, he both published and distributed the material.

¶3    Because we reject defendant’s other contentions as well, we

 affirm.




                                    1
                           I.   Background

¶4    Sheriff’s department detectives found over 600 files of child

 pornography — in both video recording and still image form — on

 various electronic devices defendant owned.1 In each instance,

 defendant had downloaded someone else’s file to his computer

 using ARES peer-to-peer file sharing software. See People v. Phipps,

 2016 COA 190M, ¶¶ 22-23 (describing how a similar software

 program — LimeWare — works); Stickle v. Commonwealth, 808

 S.E.2d 530, 532-34 (Va. Ct. App. 2017) (explaining how ARES

 works). He had done so in a way that made the new file on his

 computer downloadable by others using the same software; he

 hadn’t chosen the option of preventing downloads from

 automatically being saved in the sharable folder. As it turns out,

 other users had downloaded hundreds of defendant’s files.

¶5    The People charged defendant with four counts of sexual

 exploitation of a child, two each under subsections (3)(b) and

 (3)(b.5) of section 18-6-403. The first two alleged that on or

 between certain dates defendant knowingly prepared, arranged for,


 1These included a desktop computer, a laptop computer, an
 external (or portable) hard drive, and a flash (or thumb) drive.

                                   2
 published, produced, promoted, made, sold, financed, offered,

 exhibited, advertised, dealt in, or distributed sexually exploitative

 material. See § 18-6-403(3)(b). The last two alleged that between

 certain dates defendant knowingly possessed or controlled sexually

 exploitative material. See § 18-6-403(3)(b.5).

¶6    At trial, the prosecution’s theory on the charges under

 subsection (3)(b) was that defendant had published, offered, and

 distributed the sexually exploitative material by downloading it in a

 way that others, using the file sharing software, could download it

 from his computer files. The prosecution’s theory for the charges

 under subsection (3)(b.5) was more straightforward: defendant

 possessed the material by downloading it to his computers and by

 transferring files containing the material to a thumb drive.

¶7    Defendant admitted that he’d downloaded and looked at the

 sexually exploitative material. But he said he didn’t know that by

 downloading the files he was distributing or possessing them. Put

 simply, his defense was that he hadn’t “knowingly” violated the law,

 based largely on his claimed ignorance of how ARES software

 works.

¶8    A jury found defendant guilty of all four charges.


                                    3
                              II.   Discussion

¶9     Defendant challenges all the convictions for two reasons: (1)

  the district court violated his constitutional right to a public trial by

  closing the courtroom during the presentation of parts of certain

  exhibits and (2) the district court erred by allowing the

  prosecution’s experts to testify to ultimate legal conclusions that

  were the jury’s sole prerogative to decide. He challenges his two

  convictions for publishing, offering, or distributing sexually

  exploitative material for two additional reasons: (3) the

  prosecution’s theories of publishing and distributing were “legally

  insufficient” and (4) the jury instruction defining “offer” had the

  effect of directing a verdict against him on these charges. We take

  up, and reject, these four challenges in turn.

               A.    The Court Didn’t Close the Courtroom

¶ 10   Two of the prosecution’s witnesses testified about videos and

  still images taken from defendant’s devices. The discs and thumb

  drive containing the videos and still images were introduced as

  exhibits. Over defense counsel’s objection, the prosecutor displayed

  the videos and still images using a screen that could be seen by the

  witnesses and the jurors, but not by anyone in the courtroom


                                      4
  gallery. Each witness described in open court the videos and still

  images, in quite graphic terms.

¶ 11     Defendant argues that the court violated his constitutional

  right to a public trial because denying members of the gallery the

  ability to see the videos and still images was a closing of the

  courtroom, and the court failed to determine whether closing the

  courtroom was proper under the factors articulated in Waller v.

  Georgia, 467 U.S. 39 (1984).

                  1.   Preservation and Standard of Review

¶ 12     The People concede, and we agree, that defendant preserved

  this issue for appellate review.

¶ 13     Defendant’s argument presents issues of law — namely,

  whether the court closed the courtroom and, if so, whether the

  court considered and articulated appropriate factors in doing so.

  We review such issues de novo. See People v. Hassen, 2015 CO 49,

  ¶ 5 (an appellate court reviews legal issues relating to courtroom

  closure de novo).2




  2   The facts relating to this issue are undisputed.

                                       5
                               2.   Analysis

¶ 14   The underlying premise of defendant’s argument is that the

  court’s refusal to allow the members of the gallery to see the

  showing of the videos and still images from the exhibits was a

  closure of the courtroom. But that premise doesn’t hold up, and so

  his entire argument collapses.

¶ 15   Of course, every defendant has a constitutional right to a

  public trial. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16.

  Excluding members of the public from the courtroom for all or a

  part of a trial — commonly referred to in this context as closing the

  courtroom — may infringe on that right. We say “may” because the

  public trial right isn’t absolute; it may yield to competing interests.

  Waller, 467 U.S. at 45; Hassen, ¶ 8. In determining whether the

  right must yield in a particular circumstance, the court must

  consider several factors. Waller, 467 U.S. at 48; Hassen, ¶ 9.

¶ 16   But for those factors to come into play — indeed, for the right

  to a public trial to be implicated at all — there must be some

  closure of the courtroom. And so we ask, “Does preventing

  members of the gallery from seeing something shown to witnesses

  and jurors constitute a closure?”


                                      6
¶ 17     Defendant argues that it does because the public trial right

  extends to the presentation of evidence. That argument proves too

  much. To be sure, that portion of a trial when evidence is

  presented should be open to the public. But it doesn’t follow that

  the right extends to the viewing of all exhibits by the public as those

  exhibits are introduced or discussed. Cf. State v. Russell, 357 P.3d

  38, 42-43 (Wash. 2015) (though jury selection, particularly voir

  dire, implicates the right to a public trial, the mere label of “jury

  selection” doesn’t mean the public trial right automatically is

  implicated; public trial right was not implicated by work sessions in

  which judge, the defendant, and counsel dealt with preliminary

  hardship issues raised by responses to juror questionnaires). After

  all, “spectators often are disadvantaged in viewing trial exhibits as

  they are offered and introduced.” State v. Schiefelbein, 230 S.W.3d

  88, 116 (Tenn. Crim. App. 2007) (rejecting argument that the

  defendant’s right to a public trial was violated when the court

  screened the media and the public from seeing videotapes of a child

  victim; no closure occurred).3



  3   To accept defendant’s position would, in effect, require counsel or

                                      7
¶ 18   The public trial right is concerned with the public’s presence

  during (or access to) the trial. So where no one is excluded from the

  courtroom, it simply isn’t implicated. See United States v.

  Toschiaddi, No. NMCCA 200800044, 2009 WL 2151149, at *8-9 (N-

  M. Ct. Crim. App. July 16, 2009) (court didn’t close the courtroom

  by restricting visual access to screen showing images of child

  pornography taken from an exhibit; spectator access to the

  courtroom wasn’t limited); Schiefelbein, 230 S.W.3d at 114-16; see

  also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564-74

  (1980) (plurality opinion) (discussing the common law history and

  evolution of the public trial right in terms of public attendance);

  People v. Knapp, 495 N.Y.S.2d 985, 989 (N.Y. App. Div. 1985)

  (public trial right wasn’t implicated by holding trial at a church

  because public access wasn’t restricted); State v. Russell, 172 P.3d

  361, 362-64 (Wash. Ct. App. 2007) (prohibiting the press from

  photographing juvenile witnesses without their consent wasn’t a

  closure of the courtroom because no one was prevented from



  the court to distribute copies of documentary exhibits to members
  of the gallery. And it would require the bailiff to pass around other
  physical exhibits to members of the gallery. Historically speaking,
  however, neither happens.

                                     8
  entering or leaving the courtroom). See generally 6 Wayne R.

  LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal

  Procedure § 24.1(a), at 351 (4th ed. 2015) (“The defendant’s right to

  a public trial is adequately protected so long as there is free public

  access to the trial.”).

¶ 19   The district court didn’t exclude any member of the public

  during the presentation of the evidence. Anyone who cared to could

  come into the courtroom, see the presentation of evidence, hear the

  testimony of witnesses, and otherwise observe the goings on. In

  this way, the public could see that defendant was dealt with fairly

  and not unjustly condemned, the judge and attorneys were kept

  keenly aware of their sense of responsibility and the importance of

  their roles, and witnesses were encouraged to come forward and

  testify truthfully. See Waller, 467 U.S. at 46 (identifying these

  “aims and interests” as animating the public trial right).

¶ 20   In sum, because the court didn’t close the courtroom, there

  wasn’t any violation of defendant’s right to a public trial.




                                     9
              B.   The Experts’ Testimony Wasn’t Plain Error

¶ 21   Defendant next contends that the following testimony by the

  prosecution’s experts usurped the jury’s role to decide ultimate

  issues:

             Detective Shavin, a forensic computer expert, in

              answering the question whether he felt there was any

              need to look further after examining a computer and

              thumb drive, said, “I didn’t, no. After we looked at this, I

              felt like we had more than enough evidence that met the

              elements of the crime.”

             Detective Shavin also said, “If [ARES] is up and running

              on your computer and you have sharing enabled and you

              have files in any of your shared folders, you are now

              distributing those files. Those files are now available to

              others to download from your computer.”

             Detective Cronce, an expert in internet crimes against

              children, testified how an ARES user goes about

              downloading a file kept in another ARES user’s sharable

              files, showing the jury how he had downloaded files at

              issue in this case. At one point, Detective Cronce said


                                     10
  the software found a file of interest that “was being

  distributed” and “so it started the download.” He also

  said that ARES locates a file containing an image that

  likely “is being distributed somewhere else in the world.”

  And he answered “yes” to the prosecutor’s question

  whether once an ARES user has downloaded another

  user’s file (or a part of that file) “the other computer[]

  provide[s] you or distribute[s] to you that portion of the

  child porn?”

 Detective Cronce, in explaining his investigative process,

  said, “And once I determine that it’s a violation of 18-6-

  403, which is Sexual Exploitation of a Child by

  Distribution and Possession, I would go out and write

  service on this IP address, I would check with the

  American Registry for Internet Numbers, ARIN, and find

  out who the internet service provider is by putting that IP

  in.” He later testified that he contacted the internet

  service provider to determine, from the Internet Protocol

  (or IP) address associated with a file or files that he had




                          11
             downloaded, the location of that IP address (which

             turned out to be defendant’s street address).

                1.    Preservation and Standard of Review

¶ 22   Defense counsel didn’t object to any of the testimony

  defendant now challenges on appeal.

¶ 23   We review a district court’s decision allowing testimony for an

  abuse of discretion. See Nicholls v. People, 2017 CO 71, ¶¶ 14-17;

  People v. Jimenez, 217 P.3d 841, 866 (Colo. App. 2008) (expert

  testimony).4 Because defense counsel didn’t timely object, if we

  determine that the district court erred, we must then decide

  whether the error rises to the level of plain error. Hagos v. People,

  2012 CO 63, ¶ 14; People v. Rector, 248 P.3d 1196, 1202-03 (Colo.

  2011) (unpreserved claim that expert’s testimony usurped the jury’s

  role is reviewable only for plain error). An error is plain only if it

  was obvious and so undermined the fundamental fairness of the




  4 When, as in this case, no one objected to the testimony, and
  therefore the district court didn’t actually rule on its admissibility,
  it’s more accurate to frame the inquiry as whether the court
  would’ve abused its discretion in allowing the testimony if defense
  counsel had timely objected. See People v. Davis, 2017 COA 40,
  ¶ 12.

                                      12
  trial as to cast serious doubt on the reliability of the conviction.

  Hagos, ¶ 14.5

                               2.   Analysis

¶ 24   “Testimony in the form of an opinion or inference otherwise

  admissible is not objectionable because it embraces an ultimate

  issue to be decided by the trier of fact.” CRE 704. But a witness

  may not usurp the jury’s factfinding role. See Rector, 248 P.3d at

  1203; People v. Weeks, 2015 COA 77, ¶ 88.

¶ 25   There’s obvious tension between these principles. This tension

  often makes separating the admissible from the inadmissible

  difficult. Nonetheless, a line must be drawn. But where? To

  answer that question we ask (and answer) four more. First, was the

  testimony clarified on cross-examination? Second, did the

  testimony express an opinion of the applicable law or legal




  5 Defendant urges us to review the question whether the court erred
  (as distinguished from the question whether any error requires
  reversal) de novo because he challenges the testimony on
  constitutional grounds. “Only those errors ‘that specifically and
  directly offend a defendant’s constitutional rights are
  “constitutional” in nature.’” People v. Flockhart, 2013 CO 42, ¶ 20
  (quoting Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010)). It’s
  unclear whether the asserted error falls within that category. But
  even if we assume that it does, we reach the same conclusions.

                                     13
  standards, thereby usurping the court’s role? Third, did the court

  properly instruct the jury on the law and that the jury was free to

  accept or reject the testimony? And fourth, did the witness opine

  that the defendant committed the crime or that it was likely the

  defendant committed the crime? Rector, 248 P.3d at 1203; Weeks,

  ¶ 89.

¶ 26      Applying those factors to the challenged testimony, we

  conclude as follows:

              Detective Shavin’s testimony that he felt he had “more

                than enough evidence that met the elements of the

                crime,” and Detective Cronce’s testimony about what he

                would do if he determined that there was “a violation” of

                the child exploitation statute, and that he followed that

                process to locate the source of the IP address, were part

                of the detectives’ explanations of their respective

                investigations. So that testimony was likely

                permissible. Cf. People v. Robinson, 226 P.3d 1145,

                1150-52 (Colo. App. 2009) (informant’s statements to

                police officers were admissible for nonhearsay purpose




                                      14
              of showing why they investigated the matter as they

              did).

            The rest of the testimony comprised references to

              “distribution,” but it’s not entirely clear that the

              witnesses were using the term in the legal sense

              contemplated by section 18-6-403. And some of that

              testimony was in the context of explaining the way

              ARES works and the course of the investigation. In

              other words, considering the testimony in context, the

              witnesses weren’t opining directly that defendant

              distributed the files.6 And the court properly instructed

              the jury on the elements of the offenses and that the

              jurors could reject the experts’ testimony. For these

              reasons, we think that whether this testimony usurped

              the jury’s role is debatable.

¶ 27   But even if we assume all of the challenged testimony was

  improper, we conclude that any error fails the plain error test.


  6One of the statements was to the effect that a file is distributed
  when one user downloads it from another user’s file. As discussed
  below, that’s not the extent of the meaning of “distributes”
  contemplated by the statute.

                                     15
¶ 28   That the testimony about “distribution” may have been

  improper certainly wasn’t obvious. See People v. Dinapoli, 2015

  COA 9, ¶ 30 (“Generally, an error is obvious when the action

  challenged on appeal contravenes (1) a clear statutory command; (2)

  a well-settled legal principle; or (3) Colorado case law.”).

¶ 29   And none of the testimony undermines our confidence in the

  verdicts. This is so for two reasons. First, recall that defendant’s

  primary (and it appears only) defense was that he hadn’t knowingly

  distributed or possessed the files because he didn’t know how the

  ARES program worked. The experts didn’t testify at all about

  defendant’s state of mind. Second, the evidence that defendant

  distributed and possessed the files was overwhelming. See Martinez

  v. People, 2015 CO 16, ¶ 16 (an erroneous instruction on an

  element of an offense wasn’t plain error because the evidence

  proving that element was overwhelming).

¶ 30   In sum, we see no plain error relating to the experts’

  testimony.




                                     16
       C.    The Prosecution’s Theories of “Publishes” and “Distributes”
                               Were Legally Sufficient

¶ 31        Under section 18-6-403(3)(b), a person commits sexual

  exploitation of a child if he “knowingly . . . [p]repares, arranges for,

  publishes, including but not limited to publishing through digital or

  electronic means, produces, promotes, makes, sells, finances,

  offers, exhibits, advertises, deals in, or distributes, including but

  not limited to distributing through digital or electronic means, any

  sexually exploitative material.” The court instructed the jury on the

  elements of the offense, tracking the statutory language. The

  element describing the prohibited acts (preparing, arranging for,

  publishing, etc.) included all of the acts prohibited by the statute.

  As now relevant, the court didn’t instruct the jury on the meanings

  of “publishes” and “distributes.”

¶ 32        The prosecutor argued to the jury that defendant had

  published, offered, and distributed the videos and still images by

  using ARES to download them to a share-capable file. The jury

  returned general verdicts that didn’t indicate which of these

  theories it had agreed with (or whether it agreed with all of them).




                                       17
¶ 33   Defendant argues that the prosecution’s theories of

  publication and distribution were “legally insufficient” because the

  mere downloading of sexually exploitative material to a share-

  capable file isn’t publication or distribution, and because we don’t

  know if the jury convicted on either basis or some proper basis, the

  verdicts on the two subsection (3)(b) counts can’t stand. See Griffin

  v. United States, 502 U.S. 46, 59 (1991); People v. Dunaway, 88

  P.3d 619, 629 (Colo. 2004).

               1.    Preservation and Standard of Review

¶ 34   Defendant concedes, and we agree, that he didn’t preserve this

  issue for appellate review.

¶ 35   Defendant couches his argument in terms of whether the

  court properly instructed the jury: he says that given how the

  prosecutor argued publication and distribution, the court shouldn’t

  have included those theories in the elemental instruction. We see

  this as more of a challenge to the prosecutor’s statements in closing

  argument. (After all, the elemental instruction didn’t adopt the

  prosecutor’s statements.) But be that as it may, the questions

  central to resolving defendant’s contention are whether the

  prosecution’s theories of publication and distribution were legally


                                    18
  correct. Those are questions of law. It’s well established that we

  review questions of law, including those of statutory interpretation,

  de novo. Doubleday v. People, 2016 CO 3, ¶ 19.

¶ 36   Because defendant didn’t preserve this issue, we reverse only

  if any error is plain error. Hagos, ¶ 14.

                              2.    Analysis

                      a.    Meaning of “Publishes”

¶ 37   The statute doesn’t define “publishes.” So we look to that

  term’s plain meaning, considering, of course, the context in which

  the statute uses it. See Marshall v. People, 2013 CO 51, ¶ 21;

  Bostelman v. People, 162 P.3d 686, 690 (Colo. 2007).

¶ 38   The term “publish” has a variety of meanings. One dictionary

  includes the following:

           “to declare publicly: make generally known: DISCLOSE,

            CIRCULATE”;

           “to place before the public (as through a mass medium):

            DISSEMINATE”;

           “to produce for publication or allow to be issued for

            distribution or sale”; and

           “to reproduce for public consumption.”


                                    19
  Webster’s Third New International Dictionary 1837 (2002). Another

  defines it as “[t]o distribute copies (of a work) to the public.” Black’s

  Law Dictionary 1428 (10th ed. 2014). And yet another defines it as

  “[t]o prepare and issue (printed material) for public distribution or

  sale.” American Heritage Dictionary 1417 (4th ed. 2000).

¶ 39   We conclude that the term “publishes” as used in section 18-

  6-403(3)(b) includes within its ambit all these meanings, and

  perhaps more. Such a broad reading of the term is dictated by its

  context. In enacting the statute, the General Assembly declared

  that “to protect children from sexual exploitation it is necessary

  to . . . exclude all [sexually exploitative material depicting children]

  from the channels of trade and commerce,” and that even “the mere

  possession or control of any sexually exploitative material results in

  continuing victimization of our children.” § 18-6-403(1), (1.5). It

  therefore created three categories of prohibited acts involving those

  persons not dealing directly with children used to make sexually

  exploitative material — subsections (3)(b), (3)(b.5), and (3)(c).7




  7Subsections (3)(a) and (3)(d) proscribe causing, inducing, enticing,
  or permitting a child to engage in, or be used for, any explicit sexual

                                     20
  Subsections (3)(b.5) and (3)(c) prohibit possessing or controlling, or

  possessing or controlling with the intent to deal in, sell, or

  distribute, sexually explicit material, respectively. But, consistent

  with the General Assembly’s goals, subsection (3)(b) goes much

  further. It proscribes no fewer than thirteen different acts.

  Perusing that list leaves one with the unmistakable impression that

  the General Assembly sought to cut a wide swath: by using so many

  different (and sometimes overlapping) terms, the General Assembly

  plainly intended the statute to reach any use of sexually explicit

  material beyond mere possession or control that impacts or involves

  “the channels of trade and commerce.”

¶ 40   Reading “publishes” in this light, we conclude that defendant’s

  use of ARES peer-to-peer file sharing software to download sexually

  exploitative material onto share-capable files accessible to anyone

  in the ARES network constituted publishing that material.

  Defendant placed that material before the public, he allowed it to be

  issued for distribution, he reproduced it for public consumption, he




  conduct for the purposes of making sexually exploitative material or
  producing a performance.

                                     21
  distributed copies to the public,8 and he prepared and issued it for

  public consumption. And so the prosecution’s theory of “publishes”

  wasn’t legally insufficient.

                      b.    Meaning of “Distributes”

¶ 41   Again we’re confronted with determining the meaning of a

  term that the General Assembly hasn’t defined. So we return to the

  same principles set forth above: we consider the term’s plain

  meaning in context, and we construe it broadly to effectuate the

  General Assembly’s manifest intent.

¶ 42   Looking once more to various dictionaries, we see that

  “distribute” can mean

           “to divide among several or many: deal out: apportion

             esp. to members of a group or over a period of time,”

             Webster’s Third New International Dictionary 660;

           “DISPENSE,” id.;

           “to give out or deliver esp. to the members of a group,”

             id.;




  8As discussed below, defendant’s conduct also constituted
  distribution of sexually exploitative material.

                                    22
           “[t]o apportion; to divide among several[;] . . . [t]o deliver,”

            Black’s Law Dictionary 576; and

           “[t]o divide and dispense in portions,” American Heritage

            Dictionary 525.

¶ 43   These definitions are useful, but fortunately they’re not our

  only navigational tools. Other courts construing provisions similar

  to ours have held that downloading child pornography onto a share-

  capable file constitutes distributing that material. E.g., United

  States v. Carani, 492 F.3d 867, 875-76 (7th Cir. 2007) (construing

  U.S. Sentencing Guidelines Manual § 2G2.2(b)(3)(F) (U.S.

  Sentencing Comm’n 2006)); United States v. Griffin, 482 F.3d 1008,

  1011-12 (8th Cir. 2007) (construing U.S. Sentencing Guidelines

  Manual § 2G2.2(b)(2)(B) (U.S. Sentencing Comm’n 2003)); United

  States v. Shaffer, 472 F.3d 1219, 1223-24 (10th Cir. 2007)

  (construing 18 U.S.C. § 2252A(a)(2)) (2006); State v. Lyons, 9 A.3d

  596, 604-06 (N.J. Super. Ct. App. Div. 2010); cf. Wenger v. State,

  292 S.W.3d 191, 198-99 (Tex. App. 2009) (such conduct constituted

  “disseminating” child pornography).

¶ 44   Several of these cases expressly reject the same argument

  defendant makes in our case — that one can’t distribute sexually

                                     23
  exploitative material (a/k/a child pornography) without “actively

  transfer[ring] possession to another.” In Shaffer, for example,

  Judge (now Justice) Gorsuch used the following analogy to make

  the point:

               It is something akin to the owner of a self-
               serve gas station. The owner may not be
               present at the station, and there may be no
               attendant present at all. And neither the
               owner nor his or her agents may ever pump
               gas. But the owner has a roadside sign letting
               all passersby know that, if they choose, they
               can stop and fill their cars for themselves,
               paying at the pump by credit card. Just
               because the operation is self-serve, or in Mr.
               Shaffer’s parlance, passive, we do not doubt
               for a moment that the gas station owner is in
               the business of “distributing,” “delivering,”
               “transferring” or “dispersing” gasoline; the
               raison d’etre of owning a gas station is to do
               just that. So, too, a reasonable jury could find
               that Mr. Shaffer welcomed people to his
               computer and was quite happy to let them
               take child pornography from it.

  Shaffer, 472 F.3d at 1223-24.

¶ 45   Enough said. The prosecution’s theory of “distributes” passes

  muster.




                                      24
                             3.    Synthesis

¶ 46   Because all three of the prosecution’s legal theories of liability

  under subsection (3)(b) were viable,9 we aren’t faced with a situation

  like that in People v. Mantos, 250 P.3d 586 (Colo. App. 2009), where

  the prosecution relied on legally incorrect theories of “prepares” and

  “arranges for” under the same provision. It necessarily follows that

  there wasn’t any error.

       D.    The Instruction on “Offers” Doesn’t Require Reversal

¶ 47   The district court didn’t provide the jury with a definition of

  the meaning of “offers” in subsection (3)(b). But the court did give

  the jury an instruction that addressed the scope of the term as

  applied to the alleged facts of this case. That instruction said,

            The term “offers” in the context of sexually
            exploitative materials includes making sexually
            exploitative materials available or accessible to
            others. In the context of a peer-to-peer file
            sharing network, a defendant offers sexually
            exploitative material by knowingly leaving it in
            the share folder for other users to download.

  This language was taken from People v. Rowe, 2012 COA 90, ¶ 13.




  9 Defendant doesn’t challenge the prosecution’s legal theory of
  “offers.”

                                    25
¶ 48   Defendant argues that the instruction was improper because it

  goes beyond the plain and ordinary meaning of “offers” and because

  it had the effect of directing a verdict against him.

                1.   Preservation and Standard of Review

¶ 49   These arguments aren’t preserved. At the instruction

  conference, defense counsel objected that the draft instruction

  tendered by the prosecution didn’t include the word “knowingly”

  and objected to including the second sentence. But counsel didn’t

  say why the second sentence was problematic. Nor did counsel

  object that the instruction was unnecessary, that it was broader

  than the plain and ordinary meaning of “offers,” or that it directed a

  verdict.

¶ 50   We review the district court’s decision to give a particular jury

  instruction for an abuse of discretion. People v. Gonzales, 2017

  COA 62, ¶ 4; People v. Nerud, 2015 COA 27, ¶ 43. But we

  determine de novo whether an instruction accurately states the law,

  People v. McClelland, 2015 COA 1, ¶ 14, as we do whether an

  instruction directs a verdict, see State v. Green, 896 N.W.2d 770,

  775 (Iowa 2017) (“[W]hen a jury instruction implicates a

  constitutional right, our review is de novo.”).


                                     26
¶ 51   Because defense counsel didn’t preserve the argument that the

  instruction improperly expanded the meaning of offer beyond its

  plain meaning, if we agree with the argument we will reverse only if

  the error was plain. Hagos, ¶ 14. This means not only that the

  error must have been obvious, but also that the record must reveal

  a reasonable possibility that it contributed to the convictions.

  People v. Miller, 113 P.3d 743, 750 (Colo. 2005); People v. Hoggard,

  2017 COA 88, ¶ 34.

¶ 52   Defendant’s argument that the instruction directed a verdict,

  however, is a different kettle of fish. Though defendant didn’t

  preserve this argument, he argues that an error of this nature is

  structural — that is, the error requires reversal in all

  circumstances. The People counter that plain error review applies.

  We needn’t resolve this dispute because we conclude that the

  instruction didn’t direct a verdict.10




  10Though the federal courts review even unpreserved structural
  errors for plain error, Colorado hasn’t adopted that approach. See
  People v. Kadell, 2017 COA 124, ¶ 56 n.10 (J. Jones, J., concurring
  in part and dissenting in part).

                                     27
                              2.    Analysis

                       a.   Beyond Plain Meaning

¶ 53   Defendant seems to argue that the court shouldn’t have

  “defined” “offers” in this way because the term has a plain and

  ordinary meaning — “‘to make available or accessible’ and ‘to

  present for acceptance or rejection.’” Rowe, ¶ 12 (quoting Webster’s

  Third New International Dictionary 1566). But we see no error.

¶ 54   Though it’s true that “offers” has a commonly understood

  meaning, and that the instruction the court gave wasn’t required,

  that doesn’t mean the court abused its discretion by giving it.

  Likewise, though the better practice may have been not to give the

  instruction (because using excerpts from opinions in instructions

  “is generally an unwise practice,” Evans v. People, 706 P.2d 795,

  800 (Colo. 1985)), it doesn’t follow that the court necessarily erred

  by giving it.

¶ 55   To the extent defendant argues that the instruction somehow

  broadened the commonly understood meaning of “offers,” we

  disagree. The instruction was an accurate statement of the law,

  taken from Rowe, ¶ 13, a case remarkably similar to this one. The

  instruction didn’t so much “define” “offers” as set forth a factual


                                    28
  circumstance that would fit within the plain and ordinary meaning

  of “offers.”

¶ 56    In any event, any error in this regard wasn’t plain. Defendant

  doesn’t argue now, and didn’t argue at trial, that his conduct fell

  outside the commonly understood meaning of “offers” (it obviously

  did). As noted, his defense was that he hadn’t knowingly offered the

  sexually exploitative material. The instruction expressly included

  that elemental requirement, as did the elemental instruction for the

  offense. Therefore, we see no reasonable possibility that the

  instruction contributed to the convictions under subsection (3)(b).

                         b.    Directing a Verdict

¶ 57    Defendant argues that the instruction “told the jury that [his]

  alleged conduct satisfied the ‘offer’ element, thereby directing a

  verdict against” him. We don’t read the instruction that way.

¶ 58    The instruction described a factual circumstance that would

  constitute an offer. But it didn’t tell the jury that any of the facts

  included in the description had been proved, nor did it in any way

  remove from the jury its obligation to decide whether the

  prosecution had proved the elements of the offense. The fact there

  was evidence from which the jury could have found the factual


                                     29
  circumstance existed doesn’t mean the instruction directed a

  verdict. Were defendant’s position correct, even an ordinary

  definitional instruction could be viewed as “directing a verdict” if

  evidence would support a finding that the definition was satisfied.

¶ 59   The case on which defendant primarily relies — People v.

  Bertrand, 2014 COA 142 — is different. In that case, an instruction

  erroneously explained the meaning of an element in a way that

  relieved the jury of the responsibility of determining an essential

  element of the offense. Id. at ¶¶ 18-20. The instruction before us

  didn’t do that.

                             III.   Conclusion

¶ 60   The judgment is affirmed.

       JUDGE HAWTHORNE and JUDGE RICHMAN concur.




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