     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
                                                          December 12, 2019
                               2019COA180

No. 16CA2168, People v. Meils — Crimes — Sexual Exploitation
of a Child — Sexually Exploitive Material; Constitutional Law —
Fifth Amendment — Double Jeopardy

     A division of the court of appeals considers whether section

18-6-403(3)(b)-(b.5), C.R.S. 2019, prescribes alternative means of

committing sexual exploitation of a child. The division concludes

that, because the legislature wrote the statute in the disjunctive,

listing a series of acts referencing the same subject, governed by a

common mens rea, it prescribes alternative ways of committing the

same offense. Thus, a defendant cannot be convicted of both

possession and creation of sexually exploitative materials for a

single incident.

     Additionally, the division rejects the defendant’s contention

that the trial court denied him his right to a complete defense by

excluding certain evidence supporting his alternate suspect theory.
It also rejects the defendant’s argument that the prosecutor

committed misconduct during closing arguments. Finally, the

division concludes that given the weight of the evidence against the

defendant, any error in admitting improper expert testimony in the

guise of lay witness testimony did not affect the outcome of the

trial.

         Accordingly, the division affirms the judgment in part, vacates

three of the four convictions, and remands to the trial court for a

correction of the mittimus.
COLORADO COURT OF APPEALS                                         2019COA180


Court of Appeals No. 16CA2168
Jefferson County District Court No. 14CR2865
Honorable Jeffrey R. Pilkington, Judge


The People of the State of Colorado,

Plaintiff-Appellee

v.

David Lee Meils,

Defendant-Appellant.


             JUDGMENT AFFIRMED IN PART, VACATED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                  Division I
                        Opinion by JUDGE TAUBMAN
                       Pawar and Davidson*, JJ., concur

                        Announced December 12, 2019


Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1    Defendant, David Lee Meils, appeals the judgment of

 conviction entered on a jury verdict finding him guilty of four

 counts of sexual exploitation of a child. He argues that the trial

 court erred in excluding alternate suspect evidence, allowing the

 prosecutor to commit misconduct during closing arguments, and

 permitting improper witness testimony. He further contends that

 his four convictions for sexual exploitation of a child violate his

 right to be free from double jeopardy. We affirm in part and vacate

 his convictions on counts 2, 3, and 4.

                             I. Background

¶2    On November 4, 2014, Meils’s wife, H.M., found on Meils work

 phone four photos of the naked victim — her ten-year-old daughter

 — and two videos of her undressing. The photos showed a time

 stamp of November 3, 2014, at 3:58 p.m., and the video showed a

 time stamp of November 4. H.M. testified that, based on the

 victim’s outfit, she knew the video was taken on November 3,

 despite its time stamps of November 4. Both the photos and the

 video appeared to have been taken from outside the master

 bathroom through a gap between the bathroom door and the floor.




                                    1
¶3    H.M. attempted to send the photos and videos to herself or

 take a picture of them with her phone to gather proof, fearing that

 they might be deleted. When her efforts failed, she woke up

 Autumn Stoffel, a friend living at the house. Stoffel took a photo of

 one of the photos, including its time stamp, on Meils’s phone. Both

 women then went to a hotel to call the police, leaving Meils’s phone

 at the house.

¶4    At trial, both women testified that they initially suspected that

 Meils’s thirteen-year-old son, D.M., had taken the pictures and

 videos. However, Stoffel stated that she had observed D.M. in the

 living room at the time shown on the time stamps. Aside from

 Stoffel, Meils was the only other person home at the time. Stoffel

 recalled hearing Meils tell the victim to “get in the shower,” seeing

 him come downstairs with laundry, and then seeing him run back

 upstairs.

¶5    Meils called H.M. while she was at the hotel and again while

 law enforcement officers were present at the hotel. Both times, she

 answered with the call on speaker phone. During the course of the

 calls, she asked him if “there was anything that would make [her]

 leave the house.” He responded, “About those pictures,” and “I’m


                                    2
 sorry.” He then proceeded to make inculpatory statements. He

 explained that H.M. had told him that the victim “was coming into

 puberty and it had made him curious.” He blamed H.M. because

 she mentioned that the victim’s “breasts were bigger than her own.”

 Then, he said that making the videos “was retarded and the biggest

 mistake of [his] life,” and he did it out of “[s]heer curiosity and

 perversion.” H.M. asked how he did it, and he responded that he

 “put the phone outside the door.” He also threated to kill himself at

 one point during the call.

¶6    A short time later, law enforcement officers arrested Meils. He

 voluntarily surrendered his work and personal phones as well as an

 iPad. Though officers did not find the photos and videos when they

 initially looked at his phone, a forensic analyst later recovered from

 Meils’s work phone two videos and nineteen photographs of the

 victim undressing and getting in the shower — all captured between

 6:34 p.m. and 6:46 p.m. on October 2, 2014. (The police did not

 find images time stamped in November 2014.) The analysis also

 uncovered what appeared to be test images of the bathroom viewed

 from the gap between the door and the floor taken minutes before

 the photos and videos of the victim were taken.


                                     3
¶7     The district attorney charged Meils with four counts of sexual

  exploitation of a child and one count of invasion of privacy for

  sexual gratification — all with a date range of October 2, 2014 to

  November 5, 2014.

¶8     The defense’s theory of the case focused on an alternate

  suspect, accusing D.M. of taking the photos and videos of the

  victim. Support for the theory included evidence of D.M. hoarding

  women’s underwear, including the victim’s, and that on October 2

  he did not have access to his cell phone or computer (thus,

  suggesting that he had used his father’s phone). The prosecution

  emphasized the events of November 3, when D.M. was purportedly

  in the living room when the photos and videos were taken. It also

  highlighted Meils’s immediate confession and apology when

  confronted by H.M.

¶9     The jury convicted Meils of all five counts, and the trial court

  sentenced him to a total of ten years in the custody of the

  Department of Corrections.

                          II. Alternate Suspect

¶ 10   Meils contends that the trial court denied him his right to

  present a complete defense by excluding certain evidence


                                    4
  supporting his alternate suspect theory. We conclude that any

  error was harmless.

                          A. Standard of Review

¶ 11   We review a trial court’s evidentiary rulings for an abuse of

  discretion. People v. Elmarr, 2015 CO 53, ¶ 20, 351 P.3d 431, 437–

  38. A trial court abuses its discretion when its decision is

  manifestly arbitrary, unreasonable, or unfair, or based on a

  misapplication or misunderstanding of the law. Id. at ¶ 20, 351

  P.3d at 438.

¶ 12   However, we do not reverse unless there exists a reasonable

  probability that an error influenced the verdict or affected the

  fairness of the trial, contributing to the defendant’s conviction.

  Yusem v. People, 210 P.3d 458, 469 (Colo. 2009).

                            B. Applicable Law

¶ 13   In the case of an alternate suspect theory, evidence of another

  person’s motive or opportunity to commit the charged crime “is

  insufficient; a defendant must proffer something ‘more’ to establish

  the non-speculative connection.” Elmarr, ¶ 34, 351 P.3d at 441

  (discussing People v. Mulligan, 193 Colo. 509, 568 P.2d 449 (1977)).

  Thus, “the overarching relevance inquiry remains whether the


                                     5
  evidence, taken collectively, establishes a non-speculative

  connection between the alternate suspect and the charged crime.”

  Id. at ¶ 40, 351 P.3d at 441.

                    C. Relevant Facts and Analysis

¶ 14   Before trial, the defense sought to introduce evidence of D.M.’s

  preoccupation with sex that, when taken together with evidence

  heard by the jury that he hoarded the victim’s underwear and did

  not have his phone on October 2, suggested he was the perpetrator.

  The trial court, in a thorough, detailed order, denied introduction of

  the alternate suspect evidence because, in essence, the potential for

  prejudice or confusion of such evidence substantially outweighed

  any probative value.

¶ 15   Our review of the record as a whole leads us to conclude that

  overwhelming evidence supported Meils’s conviction. H.M. found

  the photos and videos on his phone, and Stoffel testified that Meils

  was upstairs and D.M. was downstairs during the November 3

  incident. Significantly, during H.M.’s two phone calls with Meils, he

  immediately confessed to taking the photos and videos, and he told

  H.M. how he had taken them, and made other inculpatory

  statements. Moreover, the jury heard evidence of D.M. hoarding


                                    6
  women’s underwear in his bedroom and not having access to his

  phone on October 2. Notably, none of the evidence excluded by the

  trial court related to any interaction between D.M. and the victim.

  Under these circumstances, we conclude that any error in denying

  admission of the proffered evidence of D.M.’s alleged sexual conduct

  did not substantially affect the outcome of the trial, and therefore

  any error in the trial court’s exclusion of some of the proffered

  alternate suspect evidence was harmless.

                      III. Prosecutorial Misconduct

¶ 16   Meils argues that the trial court erred by allowing the

  prosecutor to commit misconduct by misstating critical evidence

  and asking the jury to draw an inference based on the absence of

  evidence that had been excluded. We disagree.

                            A. Relevant Facts

¶ 17   During closing arguments, the prosecutor argued: “[I]n

  November of 2014, [D.M.] has his own phone. [D.M.] doesn’t need

  to borrow the defendant’s phone. He has his own phone in

  November. Interestingly, [H.M.] remembers that specifically on

  October 2nd, [D.M.]’s phone was taken away for that one day.”

  Defense counsel objected and argued at the bench that the


                                     7
  comment was barred by the court’s pretrial ruling to suppress

  discussion of the reason D.M. did not have his phone on October 2.

  He also voiced concern about the prosecutor’s implication that H.M.

  had fabricated that D.M.’s phone was confiscated that day. The

  court sustained the objection and issued a curative instruction

  stating that “the evidence in this case was that [D.M.] did not have

  access to a cell phone on October 2nd. The evidence was not that

  he had his cell phone taken away.”

¶ 18   During rebuttal, the prosecutor told the jury that “[H.M.]’s

  parental instincts were spot on November 4th of 2014 when she

  said, [Meils] did this, the defendant did this which is why she

  confronted him.” Defense counsel did not object.

¶ 19   The prosecutor also highlighted that, while H.M. remembered

  some details from October 2, she could not recall — or could only

  vaguely recall — others.

            [S]he doesn’t remember what time the
            defendant got home, where the defendant was,
            whether he was home for dinner, what phone
            she called him on, whether he had his work or
            cell phone with him, where his phones were.
            She doesn’t remember any of that. So there’s
            certain things she remembers. There’s certain
            things she doesn’t remember.



                                    8
  Again, defense counsel did not lodge an objection.

                         B. Standard of Review

¶ 20   We engage in a two-step analysis to review claims of

  prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

  (Colo. 2010). First, we determine whether the prosecutor’s conduct

  was improper based on the totality of the circumstances. Id.

  Second, we decide whether, under the proper standard of review,

  any misconduct warrants reversal. Id.

¶ 21   We review misconduct of nonconstitutional magnitude to

  which the defense objected at trial for harmless error. Id. at 1097.

  Under this standard, misconduct does not require reversal if there

  is no reasonable probability it contributed to the verdict. Crider v.

  People, 186 P.3d 39, 44 (Colo. 2008).

¶ 22   However, we review alleged misconduct not objected to at trial

  for plain error. Wend, 235 P.3d at 1097. Under this standard,

  reversal is warranted only when prosecutorial misconduct is

  “flagrantly, glaringly, or tremendously improper,” Domingo-Gomez v.

  People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila,

  944 P.2d 673, 676 (Colo. App. 1997)), and “so undermines the




                                     9
  fundamental fairness of the trial itself as to cast serious doubt on

  the reliability of the jury’s verdict.” Id.

                       C. Applicable Law and Analysis

¶ 23      We address each of the three alleged improper arguments in

  turn.

¶ 24      Generally, a curative instruction will remedy any prejudice

  caused by an improper argument. People v. Pesis, 189 Colo. 52,

  54-55, 536 P.2d 824, 826 (1975); People v. Mersman, 148 P.3d 199,

  203 (Colo. App. 2006). Here, the court remedied the first instance

  of alleged prosecutorial misconduct with a curative instruction. In

  so doing, the court informed the jury that it should not consider the

  prosecutor’s statement as evidence. Thus, in regard to the first

  alleged instance of misconduct, the court alleviated any improper

  argument.

¶ 25      Turning to the second argument, we first note that

  prosecutors enjoy broad discretion in crafting their closing

  arguments and may argue all reasonable inferences from the

  evidence in the record. Domingo-Gomez, 125 P.3d at 1048. “Given

  the wide latitude granted to the prosecutor in closing arguments,

  the trial court is best positioned to determine whether the


                                       10
  prosecutor’s conduct was improper considering contemporaneous

  circumstances.” People v. Sandoval, 2018 COA 156, ¶ 39,

  ___P.3d___, ___. Thus, “[p]rosecutorial misconduct in closing

  argument rarely constitutes plain error.” People v. Cevallos-Acosta,

  140 P.3d 116, 123 (Colo. App. 2005). Though H.M. admitted that

  she initially thought it was D.M. who took the photos and videos,

  she testified that, after learning that Stoffel saw D.M. in the living

  room when the photos and videos were taken, she felt that the only

  person who could have been responsible was Meils. Thus, the

  prosecutor did not mislead the jury. Instead, the prosecutor used

  the evidence to draw a reasonable inference to explain why H.M.

  confronted Meils. We perceive no error, much less plain error, in

  this statement.

¶ 26   Similarly, we analyze the third statement by the prosecutor

  under plain error review. Meils argues that H.M. did remember that

  Meils was late for dinner, that he got home around seven or eight

  o’clock, and where he was before that. He further asserts that H.M.

  testified that she “probably called him on his personal phone first,”

  and, in any event, nobody ever asked H.M. whether Meils had his

  work or cell phone with him or where the phones were at the time.


                                     11
¶ 27    H.M. testified that she did not remember exactly what time

  Meils arrived home that evening, but “probably . . . around 7:00 or

  maybe 8 . . . .” (Emphasis added.) Further, she said that she

  probably called him on his personal phone first and she had to call

  him to determine where he was at the time. The uncertainty in

  H.M.’s testimony suggests that she did not remember these details

  clearly; thus, the prosecutor’s arguments that she did not

  remember were not precisely based on the evidence presented at

  trial. Though H.M. testified that Meils was late for dinner, the

  People contend that the prosecutor saying that H.M. did not

  remember if he was home for dinner was not so obvious as to alert

  the trial judge of an error without Meils’s objection. Moreover,

  defense counsel addressed these statements in his closing

  arguments, pointing out that “[H.M.] told you she remembers that

  day well . . . .”

¶ 28    Therefore, after reviewing the record, we conclude that the

  prosecutor’s remarks, though inartful, did not constitute plain

  error.




                                    12
                           IV. Witness Testimony

¶ 29   Meils contends that the trial court erred in admitting expert

  testimony in the guise of lay witness testimony by Susan Scohy, an

  investigative technician, and unhelpful testimony by Detective Matt

  Clark. We conclude that any error was harmless.

                             A. Relevant Facts

¶ 30   Scohy recovered the two videos and nineteen photos from

  Meils’s iPhone and determined they were taken on October 2. At

  trial, she explained her training and experience in extracting this

  type of data. She also told the jury that to do so, she plugged the

  phone into her extracting device, accessed certain software, and

  generated a report. She further said that deleted data may

  sometimes be recovered, but that the use of a lot of data

  subsequent to deletion of the images may erase the images to make

  room for more storage. Defense counsel did not object to this

  testimony.

¶ 31   During cross-examination, defense counsel questioned Scohy

  about her lack of formal training concerning cell phone data

  extraction. Defense counsel also inquired about deleted data and

  how it is overwritten.


                                    13
¶ 32   The jury later asked Scohy multiple questions. The court

  rejected all but one: “Would a phone use up all of its data before

  overwriting any files, or would it overwrite deleted files before taking

  up new space?” Defense counsel objected, stating that it called for

  expert testimony, but the trial court overruled the objection

  “because those issues have been gone over in both direct and

  cross.”

¶ 33   The prosecution used this testimony to show that there were

  two incidents of sexual misconduct — on October 2 and November

  3.

¶ 34   Detective Clark was the lead investigator in the case. He

  testified that none of the photos found on Meils’s phone from

  October 2 matched those on Stoffel’s phone (the photos found by

  H.M. on November 4). He explained that, by looking at the photos

  side-by-side, he determined that they were different. Through his

  comparison, and a comparison of the videos found and those

  described by H.M., he concluded there must have been two separate

  incidents. Defense counsel did not object.




                                     14
                         B. Standard of Review

¶ 35   We review a trial court’s evidentiary rulings for an abuse of

  discretion. Elmarr, ¶ 20, 351 P.3d at 437-38. For preserved errors,

  the standard of reversal is nonconstitutional harmless error. People

  v. Stewart, 55 P.3d 107, 122 (Colo. 2002). However, unpreserved

  errors are reviewed for plain error, and therefore we reverse only if

  the error is obvious and substantial. Hagos v. People, 2012 CO 63,

  ¶ 14, 288 P.3d 116, 120.

                    C. Applicable Law and Analysis

¶ 36   Given that all images that Scohy testified about had already

  been admitted into evidence, we conclude that any error in

  admitting the testimony was harmless and not plain error. Meils’s

  argument hinges on his disagreement with the prosecution’s theory

  that the images were taken on two separate dates. Defense counsel

  emphasized during closing arguments: “It’s about whether David

  Meils took the photos and videos.” Meils alleges that he had an

  alibi on October 2 but not November 3; thus, without proof that

  images were taken on November 3, his convictions cannot stand.

  However, even without Detective Clark’s testimony, the jury had

  ample evidence from H.M.’s and Stoffel’s testimony and the photos


                                    15
  taken of Meils’s phone on Stoffel’s phone to find him guilty of sexual

  exploitation. Significantly, as noted, he twice admitted to having

  taken the photos and videos during his phone call with H.M.1

¶ 37   Accordingly, we conclude that any error in admitting

  testimony by Scohy or Detective Clark did not affect the outcome of

  the trial and was therefore harmless.

                           V. Double Jeopardy

¶ 38   Meils contends that his multiple convictions for sexual

  exploitation of a child violate his right to be free from double

  jeopardy because section 18-6-403(3), C.R.S. 2019, prescribes

  alternative methods of committing the same offense. Therefore, he

  argues they must merge, and we must vacate his convictions for

  counts 2, 3, and 4. We agree.




  1The jury was instructed that, to find Meils guilty of sexual
  exploitation in counts 2, 3, and 4, it must find that he knowingly
  possessed sexually exploitative material, for any purpose, on or
  between November 3 and November 5.

                                     16
                         A. Standard of Review

¶ 39   We review de novo a claim that multiplicitous convictions

  violate a defendant’s right to be free from double jeopardy. Lucero

  v. People, 2012 CO 7, ¶ 19, 272 P.3d 1063, 1065.

                    B. Applicable Law and Analysis

¶ 40   “Multiplicity is the charging of the same offense in several

  counts, culminating in multiple punishments.” People v. McMinn,

  2013 COA 94, ¶ 19, 412 P.3d 551, 557. Multiplicitous “convictions

  are prohibited because they violate the constitutional prohibition

  against double jeopardy.” Id.

¶ 41   First, we must identify the unit of prosecution.2 Id. at ¶ 20,

  412 P.3d at 558. The unit of prosecution determines whether a




  2Another division of our court recently addressed section 18-6-
  403(3)(b.5) and (5), C.R.S. 2019, to determine the unit of
  prosecution for sexual exploitation of a child. People v. Bott, 2019
  COA 100, ¶ 62, ___ P.3d ___, ___. The division concluded:
             Under the plain and unambiguous language of
             the statute, the unit of prosecution is an act of
             possession, not an individual image. The
             statute refers to the singular “possession” of
             sexually exploitative material and instructs
             that, if “[t]he possession” is of more than
             twenty images, the defendant may be punished
             more severely. § 18-6-403(5)(b)(II) . . . .

                                    17
  defendant’s conduct can be divided into discrete acts for purposes

  of multiple offenses. Quintano v. People, 105 P.3d 585, 590 (Colo.

  2005). Once we determine the unit of prosecution, we must

  address whether the evidence supporting each offense justified

  multiple charges. People v. Abiodun, 111 P.3d 462, 467-68 (Colo.

  2005).

¶ 42   To respond to Meils’s argument, we must consider whether the

  statute prescribes alternative means of committing the same offense

  under Abiodun. See People v. Friend, 2014 COA 123M, ¶¶ 71–

  72, 431 P.3d 614, 629, aff’d in part and rev’d in part, 2018 CO 90,

  429 P.3d 1191. As relevant here, the statute reads:

            (3) A person commits sexual exploitation of a
            child if, for any purpose, he or she knowingly:

            ....

            (b) Prepares, 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



  Id. at ¶ 63, ___ P.3d at ___. In so doing, it determined that the
  defendant’s “possession of the memory card containing 294 images
  subjected him to only one conviction under section 18-6-
  403(3)(b.5), C.R.S. 2018.” Id. at ¶ 69, ___ P.3d at 12. We need not
  address Bott in the circumstances presented here.

                                   18
            limited to distributing through digital or
            electronic means, any sexually exploitative
            material; or

            (b.5) Possesses or controls any sexually
            exploitative material for any purpose . . . .

  § 18-6-403, C.R.S. 2019 (emphasis added).

¶ 43   “[B]y joining alternatives disjunctively in a single provision of

  the criminal code, the legislature intended to describe alternate

  ways of committing a single crime rather than to create separate

  offenses.” Abiodun, 111 P.3d at 467; see also Schneider v. People,

  2016 CO 70, ¶ 13, 382 P.3d 835, 839; Woellhaf v. People, 105 P.3d

  209, 217 (Colo. 2005). Therefore, we conclude that, because

  section 18-6-403(3) is written in the disjunctive, constructed as a

  series of acts referencing the same subject — sexually exploitative

  materials — and governed by a common mens rea, it prescribes

  alternative ways of committing the same offense. Id. at 466.

¶ 44   Meils was convicted of four counts of sexual exploitation of a

  child under section 18-6-403(3). The date range for all counts was

  October 1, 2014 to November 5, 2014. Notably, there is no

  indication that the prosecution intended to demonstrate that count

  1 occurred at a different time than counts 2, 3, and 4. See

  Quintano, 105 P.3d at 592 (stating that the court must “look to all

                                    19
  the evidence introduced at trial to determine whether the evidence

  on which the jury relied for conviction was sufficient to support

  distinct and separate offenses”). In Quintano, the supreme court

  determined that, because “the defendant’s conduct was separate in

  temporal proximity and constituted a new volitional departure in

  his course of conduct,” the evidence supported five separate

  offenses. Id. Here, neither party argued that the multiple charges

  resulted from discrete offenses committed at different times.

  Rather, the only temporal element focused on by the parties was

  whether all of the offenses occurred on the November date — when

  Meils did not have an alibi — or in October, when Meils had an

  alibi. Thus, Meils cannot be convicted of both creating and

  possessing sexually exploitative material.

¶ 45   As the People note, multiplicitous convictions must merge, and

  in so doing, we must maximize the effect of the jury verdicts. See

  People v. Glover, 893 P.2d 1311, 1314-15 (Colo. 1995); see also

  Friend, ¶¶ 71-72, 431 P.3d at 629 (maximizing the effect of the jury

  verdict by merging convictions that carried different penalties into

  the most serious offense). Thus, counts 2, 3, and 4 (class 4




                                    20
  felonies) must merge into count 1 (a class 3 felony) because it is the

  most serious of the charges.

                             VI. Conclusion

¶ 46   Accordingly, the judgment is affirmed as to count 1, the

  convictions on counts 2, 3, and 4 are vacated, and we remand to

  the trial court for correction of the mittimus.

       JUDGE PAWAR and JUDGE DAVIDSON concur.




                                    21
