COLORADO COURT OF APPEALS                                      2016COA151


Court of Appeals No. 14CA1142
La Plata County District Court No. 13JD15
Honorable Jeffrey R. Wilson, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

In the Interest of T.B.,

Juvenile-Appellant.


                               JUDGMENT AFFIRMED

                                     Division VI
                            Opinion by JUDGE RICHMAN
                           Bernard, J., specially concurring
                                 Fox, J., dissenting

                            Announced October 20, 2016


Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Lord Law Firm, LLC, Kathleen A. Lord, Denver, Colorado, for Juvenile-
Appellant
¶1    Two teenage girls alleged that a teenage boy, the juvenile T.B.,

 had raped them. During the investigation into those allegations,

 the police discovered that the juvenile had used his cell phone to

 solicit, to receive, and to store nude photographs of teenage girls.

 The police identified and confirmed the ages of two of the girls

 depicted in the photographs, E.H. and L.B.

¶2    The prosecution filed a delinquency petition that charged the

 juvenile with sexual assault, kidnapping, third degree assault,

 aggravated juvenile offender, and, based on the photographs of E.H.

 and L.B., two counts of sexual exploitation of a child.

¶3    The trial court granted the juvenile’s request to sever the two

 sexual exploitation counts from the rest of the counts. A jury

 acquitted him of the sexual assault, kidnapping, third degree

 assault, and aggravated juvenile offender counts.

¶4    The court then presided over a bench trial on the sexual

 exploitation of a child counts. At the trial’s end, the court found

 that the prosecution had proved, beyond a reasonable doubt, that

 the juvenile had committed two counts of sexual exploitation of a

 child, adjudicated the juvenile delinquent, sentenced him to two


                                    1
 concurrent two-year terms of sex offender probation, and required

 him to register as a sex offender.

¶5    The juvenile appeals the court’s decision to adjudicate him

 delinquent. We affirm.

                           I.    Background

¶6    The juvenile met E.H. and L.B. at a Future Farmers of America

 conference in September 2012. The juvenile and L.B. were then

 fifteen years old, and E.H. was seventeen years old. After the

 conference, the juvenile stayed in touch with both girls by telephone

 and text messaging because they lived in different towns.

                                A.    E.H.

¶7    E.H. testified during the trial that, in the fall of 2012, the

 juvenile had texted her photographs of his erect penis. When E.H.

 received them, “[she] deleted them” because she “didn’t want to

 keep those on [her] phone.”

¶8    The juvenile repeatedly asked her to send him nude

 photographs of herself. She said that “[t]he first time [she] told him

 no. Then after that [she] was like well, maybe after a while, and




                                      2
  then just kind of like getting him off [her] case, and then finally

  [she] just gave in.”

¶9     She sent him three nude photographs of herself. The police

  later recovered these photographs from his cell phone. The

  prosecution introduced them to the court during the bench trial.

¶ 10   E.H. added that the juvenile said that she “look[ed] good” in

  these photographs. He asked for more. She declined because she

  “was very ashamed of [herself.]” When her mother later found out

  about these photographs, “it really crushed [E.H.] morally” because

  E.H. had “always tried to be the best person [that she could] be.”

                                 B.       L.B.

¶ 11   L.B. testified at trial that, in the spring of 2013, the juvenile

  had texted her a photo of his erect penis. He proceeded to send her

  a series of texts asking her to send him nude pictures of herself.

  She eventually texted him a photograph that showed her topless.

  The police recovered this photograph from the juvenile’s cell phone,

  and the prosecution introduced it to the court.

¶ 12   The juvenile continued to text photographs to L.B. of his erect

  penis even after he had been arrested.


                                      3
                    II.    Sufficiency of the Evidence

¶ 13   The juvenile asserts that, for two reasons, the evidence is

  insufficient to support his adjudication for sexual exploitation of a

  child. First, he submits that the evidence did not show that the

  photographs of E.H. and L.B. depicted “erotic nudity,” which is a

  necessary component of the crime of sexual exploitation of a child.

  Second, he contends that the statute prohibiting sexual exploitation

  of a child does not forbid one teenager from possessing a nude

  photograph of another teenager as long as both teenagers are over

  the age of fourteen. We disagree with both contentions.

                          A.   Standard of Review

¶ 14   The juvenile asserted at trial that (1) nude photos do not meet

  the erotic nudity definition necessary to prove sexual exploitation of

  a child; and (2) the chain of custody was insufficient to show that

  the juvenile knew that he possessed the nude photographs of E.H.

  and L.B. on his cell phone. So, he expressly preserved his first

  sufficiency of the evidence contention — that under the sexual

  exploitation statute the photographs of E.H. and L.B. did not depict

  erotic nudity.


                                     4
¶ 15   But the juvenile did not argue to the trial court that the sexual

  exploitation statute did not apply at all to defendant’s conduct in

  this case. Thus, his second argument was not expressly preserved.

¶ 16   The juvenile and the prosecution disagree about what

  standard of review should apply to the juvenile’s second,

  unpreserved, sufficiency of the evidence contention.

¶ 17   The prosecution argues that we should review this

  unpreserved assertion only for plain error. See People v. McCoy,

  2015 COA 76M, ¶ 70 (Webb, J., specially concurring) (cert. granted

  October 3, 2016); People v. Lacallo, 2014 COA 78, ¶¶ 12, 30-31.

¶ 18   The juvenile asserts that we should apply “de novo” review.

  See Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005) (whether the

  record contains sufficient evidence to support conviction is reviewed

  de novo); People v. Mantos, 250 P.3d 586, 589 (Colo. App. 2009)

  (meaning of statute is a question of law subject to de novo review).

  But the term “de novo” describes the standard by which we

  determine whether an error occurred, and does not describe the test

  we apply to determine whether an error requires reversal. Even if

  plain error review applies, we determine whether an error occurred


                                    5
  by applying the de novo review per Dempsey. What the juvenile

  apparently means by the use of this term is that if we conclude that

  the evidence is insufficient we must vacate the conviction, and no

  retrial occurs, in effect a form of “structural error.” See McCoy, ¶

  30.

¶ 19    We recognize that there is disagreement on this court about

  which of these standards of review should apply in these

  circumstances. See McCoy, ¶ 68 (Webb, J., specially concurring)

  (citing cases showing disagreement). We are persuaded by the

  majority’s reasoning in McCoy, ¶¶ 5-36, and the reasoning of the

  special concurrences in Lacallo, ¶¶ 59-73 (Román, J., concurring in

  part and dissenting in part), and People v. Rediger, 2015 COA 26,

  ¶ 67 (Richman, J., specially concurring) (cert. granted Feb. 16,

  2016), so we shall apply that reasoning in this case. See People v.

  White, 179 P.3d 58, 60-61 (Colo. App. 2007) (one division of the

  court of appeals is not obligated to follow the decision of another).

¶ 20    We review both contentions challenging the sufficiency of the

  evidence in accord with the standards set forth in Dempsey, 117

  P.3d at 807, to determine whether the court erred. In doing so, we


                                     6
  consider whether the relevant evidence, both direct and

  circumstantial, when viewed as a whole and in the light most

  favorable to the prosecution, was substantial and sufficient to

  support a conclusion by a reasonable mind that the defendant was

  guilty of the charge beyond a reasonable doubt. People v. Wentling,

  2015 COA 172, ¶ 8; see also Clark v. People, 232 P.3d 1287, 1291

  (Colo. 2010). If we decide the court erred, we will not consider

  whether the error was obvious, or whether the error cast serious

  doubt on the reliability of the judgment of conviction. Cf. Rediger, ¶

  11.

               B.    The Sexual Exploitation of a Child Statute

¶ 21    The sexual exploitation of a child statute states, as relevant

  here, that

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

               ...

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

  § 18-6-403(3)(b.5), C.R.S. 2016.




                                       7
¶ 22   “‘Sexually exploitative material’ means any photograph . . .

  that depicts a child engaged in, participating in, observing, or being

  used for explicit sexual conduct.” § 18-6-403(2)(j). In this context,

  a child is “a person who is less than eighteen years of age.” § 18-6-

  403(2)(a).

¶ 23   For the purposes of our analysis, the statutory definition of

  “explicit sexual conduct” includes “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).

                         C.    Trial Court Findings

¶ 24   When the trial court adjudicated the juvenile delinquent at the

  end of the bench trial, it made a series of factual findings:

        E.H. and L.B. were less than eighteen years old when they

          took the photographs of themselves and texted them to the

          juvenile.


                                     8
 The juvenile knew that E.H. and L.B. were under eighteen

  years old.

 The juvenile knew that he had received the nude

  photographs; indeed, he had complimented one of the girls

  on her appearance.

 The juvenile possessed the nude photographs because they

  were on his cell phone when the police examined it.

 There was an adequate chain of custody between the police

  seizure of the cell phone and the copies of the photographs

  of the girls that the prosecution introduced as evidence

  partially because, during trial, the girls had identified the

  copies as being the photographs that they had texted to the

  juvenile.

 The juvenile repeatedly asked E.H. and L.B. for nude

  photographs after he had sent them photographs of his

  erect penis. The nude photographs of the girls were

  therefore erotic nudity.

 The juvenile was guilty, beyond a reasonable doubt, of both

  counts of sexual exploitation of a child.

                             9
         D.   The First Sufficiency of the Evidence Contention

¶ 25   We first address the juvenile’s contention that the evidence

  was insufficient to prove that he knew that he possessed

  photographs depicting erotic nudity. We review the evidence de

  novo in the light most favorable to the prosecution, and, after doing

  so, we conclude that the evidence was sufficient. See Clark, 232

  P.3d at 1291; Dempsey, 117 P.3d at 807.

                         1.   Chain of Custody

¶ 26   The juvenile first contends that the chain of custody linking

  his cell phone and the photographs of E.H. and L.B. admitted at

  trial was insufficient. He argues the chain of custody was

  insufficient because it did not show that the photographs were

  accurate copies of the photographs that were on the juvenile’s

  telephone. We are not persuaded.

¶ 27   E.H. and L.B. identified the trial photographs as copies of the

  ones that they had taken of themselves and that they had texted to

  the juvenile, using his cell phone number. E.H. also testified that

  the juvenile had complimented her on her photographs.

¶ 28   The evidence showed that the police had searched the

  juvenile’s cell phone. They had found the photographs of E.H. and
                                   10
  L.B., nude photographs of other girls, and photographs of the

  juvenile’s erect penis. A digital forensic officer testified that the

  data in the juvenile’s cell phone had not been tampered with and

  that the photographs from E.H. and L.B. had been opened and

  viewed.

¶ 29     Any purported deficiencies in the chain of custody, such as a

  lack of clarity about which police officer had made the copies of the

  photographs from the juvenile’s cell phone, went to the weight that

  the trial court gave the photographs, not to their admissibility. See

  People v. Moltrer, 893 P.2d 1331, 1335 (Colo. App. 1994).

¶ 30     We conclude that this evidence established, beyond a

  reasonable doubt, that (1) the photographs the prosecution

  introduced during the bench trial were the nude photographs that

  E.H. and L.B. had texted to the juvenile; and (2) the defendant knew

  what these photographs showed and who sent them. In other

  words, we conclude that there was sufficient evidence to prove that

  the juvenile knowingly possessed the nude photographs of E.H. and

  L.B.

                             2.   Erotic Nudity


                                      11
¶ 31   The juvenile asserts that the photographs did not contain

  erotic nudity because E.H. and L.B. did not take them for their own

  sexual satisfaction. This contention assumes that the reference to

  “persons involved” in the definition of erotic nudity necessarily

  means the people who are displayed in the photograph. We

  disagree.

¶ 32   A photograph qualifies as “erotic nudity” if it meets two

  conditions. First, as relevant here, the photograph must depict the

  female genitals, pubic area, or breasts of a child. § 18-6-403(2)(d);

  People v. Gagnon, 997 P.2d 1278, 1281-82 (Colo. App. 1999).

  Second, the depiction in the photograph must be 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); Gagnon, 997 P.2d at

  1281-82.

¶ 33   The juvenile does not dispute that the photographs met the

  first condition, so we turn to the second. When analyzing the

  second condition, we consider whether (1) the focal point of the

  visual depiction was on the child’s breasts, genitals, or pubic area;

  (2) the setting of the visual depiction was sexually suggestive, such


                                    12
  as in a place or pose generally associated with sexual activity; (3)

  the child was depicted in an unnatural pose, or in inappropriate

  attire, considering the child’s age; (4) the child was fully or partially

  clothed, or nude; (5) the visual depiction suggested sexual coyness

  or a willingness to engage in sexual activity; and (6) the visual

  depiction appeared to be intended or designed to elicit a sexual

  response in the viewer. Gagnon, 997 P.2d at 1282.

¶ 34   The focal points of the photographs in this case were the nude

  breasts of E.H. and L.B. and E.H.’s pubic area. There was sufficient

  evidence to support the conclusion that the girls’ poses were

  unnatural and suggestive: in one photograph, E.H. was standing in

  front of a mirror when she took a photograph of her nude body

  reflected in the mirror; in another photograph, L.B.’s shirt is pulled

  down below her breasts, exposing them. The photographs

  suggested a sexual coyness. And they appeared to be intended and

  designed to elicit a sexual response from the juvenile. Some of the

  text messages between the juvenile and L.B. further confirm the

  conclusion that the juvenile requested pictures of her for the

  purposes of sexual gratification and arousal. For example, some


                                     13
  referred to a “dirty pic” and a picture shortly after she showered.

  Their text message discussions included references to intercourse,

  like “I can probe u lol . . . Stick my d*** in u lol,” “wow no love u to

  f*** u too,” and “We’re gunna f*** lol :).”

¶ 35   Our supreme court has rejected the juvenile’s contention that

  the focus of the “overt sexual gratification” component of the

  definition of erotic nudity could only be the persons depicted in the

  photographs. Rather, “[t]he person (or persons) ‘involved’ are not

  always depicted in the material” and “the sexual gratification of that

  person need not be shown in the material.” People v. Batchelor, 800

  P.2d 599, 604 (Colo. 1990). In other words, “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.

  So, following the supreme court’s reasoning, we conclude that, in

  this case, “the overt sexual gratification was of” the juvenile, who

  repeatedly asked the girls for the photographs after sending them a

  picture of his erect penis. Id.

¶ 36   We also disagree with the juvenile’s attempt to distinguish

  Batchelor by pointing out that the defendant in that case was an


                                      14
  adult. The age of the defendant was not a factor in the analysis of

  whether the sexual gratification element was met.

        E.    The Second Sufficiency of the Evidence Contention

¶ 37   The juvenile asserts for the first time on appeal that nude

  photographs taken by teenagers of themselves with no adult

  involvement cannot constitute “sexually exploitative materials”

  because they do not record any act of sexual abuse of a child. He

  further asserts that such photos are a constitutionally protected

  form of speech because they express the teenager’s sexuality to the

  extent that they are neither obscene nor the product of sexual

  abuse. Finally, he suggests that “teen sexting” should only be

  prosecuted under a different statute, and that statute was not

  violated in this case.

                           1. Sexual Abuse of a Child

¶ 38   The juvenile argues that application of the statute to his

  conduct is limited to “sexually exploitative materials” that record

  “sexual abuse of a child.” He imports this limitation from the

  legislative declaration to the statute, which states: “The general

  assembly further finds and declares that the mere possession or


                                     15
  control of any sexually exploitative material results in continuing

  victimization of our children by the fact that such material is a

  permanent record of an act or acts of sexual abuse of a child . . . .”

  § 18-6-403(1.5) (emphasis added). According to the juvenile,

  teenagers who photograph their own bodies do not sexually abuse

  themselves, nor do they create a permanent record of any such

  abuse. Thus, he argues the evidence in this case was insufficient to

  support a conviction. We reject his argument for several reasons.

¶ 39   First, the plain language of the statute does not contain the

  phrase “sexual abuse” in its definitions of “sexually exploitative

  material,” “explicit sexual conduct,” or “erotic nudity.” See § 18-6-

  403(2)(d), (e), (j). Because the statutory language is clear and

  unambiguous, we apply the statute as written and need not engage

  in further statutory analysis as urged by the juvenile. See

  Bostelman v. People, 162 P.3d 686, 689 (Colo. 2007); People v.

  Vecellio, 2012 COA 40, ¶ 14.

¶ 40   When a statute is ambiguous courts may consider the

  legislative declaration or purpose. § 2-4-203, C.R.S. 2016. For

  example, in People v. Renander, 151 P.3d 657 (Colo. App. 2006),


                                    16
  this court considered the legislative declaration at issue here to

  determine whether each offending image could be a separate

  chargeable offense. Id. at 661-62. But it did so only after finding

  ambiguity in the term “any.” Id.

¶ 41   When a statute is unambiguous, courts generally apply the

  plain and ordinary meaning of terms without examining the

  legislative declaration. See Bostelman, 162 P.3d at 690; Stamp v.

  Vail Corp., 172 P.3d 437, 442–43 (Colo. 2007).

¶ 42   In this case, because the statute is unambiguous, we do not

  consider the legislative declaration. As set forth above, the

  contested provisions are clear. The statute defines “sexually

  exploitative material” as a series of visual materials that “depict[] a

  child engaged in, participating in, observing, or being used for

  explicit sexual conduct.” § 18-6-403(2)(j). It then defines the term

  “explicit sexual conduct” to include, among other things, erotic

  nudity. § 18-6-403(2)(e). It further defines “erotic nudity.” § 18-6-

  403(2)(d). Because none of these definitions is ambiguous, we

  apply their plain and ordinary meanings. Turbyne v. People, 151

  P.3d 563, 567 (Colo. 2007) (If the statutory language is clear, we


                                     17
  apply the plain meaning and we do not add words to the statute.).

  The plain and ordinary meaning of “sexually exploitative material”

  does not require depictions of sexual abuse of a child. None of the

  definitions contains such a requirement. The legislative declaration

  cannot replace or amend the clear definitions of terms.

¶ 43   Second, even if we did consider the legislative declaration, the

  outcome remains the same because the legislative declaration

  cannot override a statute’s elements. “To effectuate the intent of

  the legislature, a statute must be read and considered as a whole

  and should be interpreted so as to give consistent, harmonious, and

  sensible effect to all of its parts.” Stamp, 172 P.3d at 444. The

  juvenile’s edit to the language would immunize behavior otherwise

  criminalized under the statute. This is not consistency and

  harmony; it is conflict. Such emendation also risks undermining

  the legislative intent by excluding images deemed harmful to

  children. The juvenile’s proposed revision also adds confusion by

  introducing the new undefined term of “sexual abuse of a child.”

¶ 44   On this point, People v. Enea, 665 P.2d 1026 (Colo. 1983), is

  instructive. There, the supreme court rejected an attempt, like the


                                    18
  juvenile’s here, to add an element to the sexual exploitation of a

  child statute based on language in the legislative declaration. Id. at

  1028-29. Though involving an earlier version of the declaration and

  a different provision of the statute, the supreme court’s holding is

  equally true here: “paragraph (1) is a statement of legislative

  purpose. The prefatory language does not alter the elements of the

  crime, which are set forth in paragraph (3).” Id. at 1029. Similarly,

  here the “prefatory language” cannot alter the elements outlined in

  paragraph (3)(b.5) or definitions in paragraphs 2(d), (e), and (j).

¶ 45   We thus reject the juvenile’s effort to import a sexual abuse of

  a child component into the statutory elements.

                    2. Constitutionally Protected Speech

¶ 46   On appeal, the juvenile further argues that nude photographs

  taken by teenagers of themselves are constitutionally protected

  speech to the extent they are neither obscene nor the product of

  sexual abuse. He argues that unless the statute is interpreted as

  he suggests, it is unconstitutional as applied to him. We conclude

  this argument is not properly before this court. He did not

  challenge the constitutionality of the statute as applied to him


                                     19
  before the trial court. We will not assess constitutionality for the

  first time on appeal. O’Quinn v. Baca, 250 P.3d 629, 630 (Colo.

  App. 2010); see also People v. Greer, 262 P.3d 920, 936 (Colo. App.

  2011) (J. Jones, J. concurring).

                               3. Teen Sexting

¶ 47   The juvenile also asserts a broader argument that the sexual

  exploitation of a child statute does not cover “teen sexting.” This

  term refers to teenagers sending sexually explicit messages or

  images to one another by cell phone.

¶ 48   First, the juvenile uses the legislative declaration to argue the

  statute targets only adult conduct. He contends there is a

  meaningful difference between adult pedophiles possessing child

  pornography and teenagers with nude photos of their boyfriends or

  girlfriends. We disagree. The language of the statute covers

  proscribed behavior committed by teenagers involving images of

  other teenagers.

¶ 49   Under the statute’s plain meaning, the perpetrator’s age is

  irrelevant. Notwithstanding the dissent’s valid contention that

  juveniles do not possess the emotional capabilities of adults, the


                                     20
  statute does not exempt teenagers. Indeed, the Colorado criminal

  code contains no general exception for the criminal responsibility of

  teenagers. True, the Colorado juvenile code has special procedural

  and sentencing rules for teenagers accused of criminal misconduct.

  See §§ 19-2-104, -512, -517, -907, -908, C.R.S. 2016. But, even so,

  it does not immunize teenagers from responsibility, or alter the

  elements of crimes when committed by teenagers. In short, when it

  comes to responsibility, teenagers are not a protected class. Absent

  specific language in the statute, if a teenager’s behavior satisfies the

  elements, a teenager is just as responsible as an adult.

¶ 50   In addition to covering perpetrators who are teenagers, the

  statute also specifically addresses images of teenagers. “Sexually

  exploitative material” includes visual material depicting a child in

  certain circumstances. § 18-6-403(2)(j) & (3)(b.5). A child is a

  person under the age of eighteen. § 18-6-403(2)(a). Most teenagers

  fall within the statute’s definition of “child.”1 Nothing in the statute



  1 Although the headers in the juvenile’s briefs argue the statute
  does not criminalize “nude ‘selfies’ exchanged between teenagers
  older than fourteen,” the juvenile never articulates a reason behind
  this age cutoff. Our analysis does not turn on the earliest age of a
  teenager.
                                     21
  distinguishes a person possessing or controlling the visual material

  and the child depicted. Second, the juvenile makes a more

  nuanced argument that the legislature intended to carve out

  protection for the specific behavior of teen sexting. He relies on the

  legislative history and text of a different statute — the Internet child

  exploitation statute — which outlaws “importun[ing], invit[ing], or

  entic[ing]” certain conduct through, among other means, text

  messaging if “the actor knows or believes [the victim] to be under

  fifteen years of age and at least four years younger than the actor.”

  § 18-3-405.4(1), C.R.S. 2016. The juvenile also notes that in 2009

  the legislature amended both the Internet child exploitation statute

  and the sexual exploitation of a child statute.

¶ 51   These are two different criminal statutes, and we do not read

  the applicability of one to exclude the applicability of the other.

  They ban different behavior, have different punishments, and

  address different harms. Compare § 18-6-403(3)(b.5), with § 18-3-

  405.4. Behavior may violate one, both, or neither of these statutes.

  Generally, “[i]t is up to the prosecutor to determine which crimes to

  charge when a person's conduct arguably violates more than one


                                     22
  statute.” People v. Clanton, 2015 COA 8, ¶10. A different statute’s

  legislative history does not affect our interpretation of the child

  exploitation statute. If anything, it is telling that the legislature did

  not amend the sexual exploitation of a child statute to mirror the

  age-focused language of the Internet child exploitation statute.

¶ 52   Although the issue of teen sexting may be a growing matter of

  public concern, whether it should be illegal and, if so, under what

  circumstances is a policy decision for the General Assembly. By

  affirming this conviction we do not mean to encourage prosecution

  of such offenses, and we urge prosecutors to continue to use

  discretion as to such cases. But, the sexual exploitation of a child

  act criminalizes teen sexting when it meets the enumerated

  elements of the statute. These elements are clear and

  unambiguous. Although the consequences for a convicted teenager

  may be substantial, as pointed out in the dissent, when the

  evidence satisfies the elements of the statute, we must apply the

  statute as written.

¶ 53   Accordingly, we conclude that sufficient evidence exists to

  support the sexual exploitation convictions. The evidence


                                     23
  introduced at trial is sufficient to support the convictions, and the

  juvenile’s statutory interpretation arguments are misplaced.

                        III.   Right to a Jury Trial

¶ 54   The juvenile further contends that the court erroneously

  denied his statutory right to a jury trial on the sexual exploitation of

  a child counts after it severed them from the sexual assault,

  kidnapping, third degree assault, and aggravated juvenile offender

  counts. He asserts that the court’s decision to sever the counts

  deprived him of his statutory right to a jury trial, and, alternatively,

  that the court abused its discretion when it denied his request for a

  jury trial. We disagree.

                                 A.    Law

¶ 55   As is pertinent to our analysis, section 19-2-107(1), C.R.S.

  2016, states:

             In any action in delinquency in which a
             juvenile is alleged to be an aggravated juvenile
             offender . . . the juvenile or the district
             attorney may demand a trial by a jury of not
             more than six persons except as provided in
             section 19-2-601(3)(a), or the court, on its own
             motion, may order such a jury to try any case
             brought under this title . . . .

                         B.    Effect of Severance

                                      24
¶ 56   The juvenile asserts that the trial court’s decision to sever the

  counts in this case from the sexual assault, kidnapping, third

  degree assault, and aggravated juvenile offender counts deprived

  him of his statutory right to a jury trial on the sexual exploitation

  counts. Focusing on the word “action,” he asserts that all the

  counts together constituted one action. He therefore adds that he

  was entitled to a jury trial under section 19-2-107(1). We disagree.

¶ 57   The juvenile took a different position in the trial court. In his

  motion for a jury trial on the sexual exploitation of a child counts,

  he stated that the severed sexual exploitation counts constituted

  “an action”:

             While the action against [the juvenile] does not
             allege either that he is an aggravated juvenile
             offender or that he has committed a crime of
             violence for these counts, the significance of
             the fact that the General Assembly granted the
             Court discretion, to order a large number of
             delinquency cases to be tried to a jury, cannot
             be overemphasized.

  (Emphasis added.)

¶ 58   We therefore conclude that the juvenile waived the contention

  that he now raises on appeal. See People v. Geisick, 2016 COA 113,

  ¶ 16 (holding when a party removes an issue from a court’s
                                    25
  consideration, the party has waived the issue and we may not

  review it on appeal).

                          C.   Abuse of Discretion

¶ 59   The juvenile also asserts that the trial court abused its

  discretion when it denied his request for a jury trial. We are not

  persuaded.

¶ 60   Section 19-2-107(1) provides juveniles with a statutory right to

  a jury trial in certain circumstances, and it allows courts — in their

  discretion — to empanel a jury in delinquency proceedings involving

  felony offenses. People in Interest of A.B.-B., 215 P.3d 1205, 1207

  (Colo. App. 2009).

¶ 61   We review a court’s ruling on a juvenile’s request for a jury

  trial in a delinquency proceeding for an abuse of discretion. Id.

  “Discretionary decisions will not be disturbed unless the court’s

  action was manifestly arbitrary, unreasonable, or unfair.” Id. at

  1209 (citation omitted). Under the abuse of discretion standard,

  the test is not “whether we would have reached a different result

  but, rather, whether the trial court’s decision fell within a range of




                                    26
  reasonable options.” People v. Rhea, 2014 COA 60, ¶ 58 (citation

  omitted).

¶ 62    The trial court denied the juvenile’s motion for a jury trial

  without making any factual findings. We nonetheless conclude that

  the court did not abuse its discretion when it denied the motion

  because its decision fell within a range of reasonable options. See

  id.

¶ 63    Unlike the aggravated juvenile offender count, which a jury

  resolved, the juvenile did not have a statutory right to a jury trial on

  the sexual exploitation of a child counts. So, although the court did

  not grant the juvenile the additional discretionary benefit of a jury

  trial, it did not deprive him of any rights when it denied his request.

¶ 64    As the division observed in People in Interest of A.B.-B., 215

  P.3d at 1209, “[i]t is true that, following trial, A.B.-B. was required

  to register as a sex offender and he may suffer social stigma

  because of this adjudication.” But the division added that such

  consequences were “little different from those associated with many

  prosecutions for abuses of young children.” Id. at 1210. Thus, the

  division ultimately concluded that, despite these serious


                                     27
  consequences, the trial court did not abuse its discretion when it

  denied A.B.-B.’s request for a jury trial. We think that the same

  reasoning applies to this case.

                        IV.   Selective Prosecution

¶ 65   The juvenile asserts that the trial court should have granted

  his motion to dismiss the sexual exploitation of a child charges

  because the prosecutor selectively prosecuted him. He asserts that

  the prosecutor charged him because he was male. He asks that, at

  a minimum, we remand the case to the trial court for further

  proceedings on this issue. We disagree.

                                 A.    Law

¶ 66   A prosecutor has “wide discretion in determining who[m] to

  prosecute for criminal activity and on what charge.” People v. Kurz,

  847 P.2d 194, 196 (Colo. App. 1992) (citing People v. MacFarland,

  189 Colo. 363, 540 P.2d 1073 (1975)); see also Colo. Const. art. VI,

  § 13. “In the ordinary case, so long as the prosecutor has probable

  cause to believe that the accused committed an offense defined by

  statute, the decision whether or not to prosecute, and what charge

  to file or bring before a grand jury, generally rests entirely in his


                                      28
  discretion.” United States v. Armstrong, 517 U.S. 456, 464 (1996)

  (citation omitted).

¶ 67   However, equal protection requires that a decision to

  prosecute not be based on “an unjustifiable standard such as race,

  religion, or other arbitrary classification.” Id. at 464-65 (citation

  omitted); see also People v. Gallegos, 226 P.3d 1112, 1117 (Colo.

  App. 2009). “A selective-prosecution claim is not a defense on the

  merits to the criminal charge itself, but an independent assertion

  that the prosecutor has brought the charge for reasons forbidden by

  the Constitution.” Armstrong, 517 U.S. at 463.

¶ 68   The fact that some people escaped prosecution under a statute

  is not a denial of equal protection unless the prosecutor’s selective

  enforcement of the statute was intentional or purposeful. Kurz, 847

  P.2d at 196-97. A defendant must show that the alleged selective

  prosecution had a discriminatory effect and that it was motivated

  by a discriminatory purpose. Id. at 197. “In order to dispel the

  presumption that a prosecutor has not violated equal protection, a

  criminal defendant must present clear evidence to the contrary.”

  Armstrong, 517 U.S. at 465 (citation omitted).


                                     29
                         B.   Standard of Review

¶ 69   The parties disagree about what standard of review we should

  use to resolve the juvenile’s selective prosecution contention. Citing

  People v. Voth, 2013 CO 61, ¶ 15, and People v. Garcia, 169 P.3d

  223, 226 (Colo. App. 2007), the juvenile contends that we should

  review the trial court’s decision for abuse of discretion because

  ruling on a motion to dismiss is within the trial court’s discretion.

¶ 70   The prosecution responds that we should follow the majority of

  federal appellate courts that review such claims under the “clearly

  erroneous standard.” See, e.g., United States v. Brantley, 803 F.3d

  1265, 1270 (11th Cir. 2015) (applying the clearly erroneous

  standard for factual findings and de novo standard for legal

  conclusions); United States v. Taylor, 686 F.3d 182, 197 (3d Cir.

  2012) (same).

¶ 71   We do not need to resolve this disagreement because we

  conclude that, even if we apply an abuse of discretion standard to

  the trial court’s decision, the court’s decision to deny the juvenile’s

  motion was not manifestly arbitrary, unreasonable, or unfair. See


                                     30
  People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002). And we reach that

  conclusion because the trial court found, based on facts in the

  record, that the prosecution was not motivated by discriminatory

  intent when it prosecuted the juvenile for the two counts of sexual

  exploitation of a child.

                         C.   Procedural History

¶ 72   After the jury acquitted the juvenile of the first four counts, he

  filed a motion to dismiss the sexual exploitation of a child counts.

  He alleged that the prosecution was selectively prosecuting him

  because he was male. During a hearing on the motion, the

  prosecutor stated:

             I want to be perfectly clear. The reason [the
             juvenile] is being prosecuted for these sexually
             [exploitative] images charges is because of the
             other underlying charges with which he’s
             facing. He’s alleged to have sexually assaulted
             -- and is currently charged here and in New
             Mexico with sexually assaulting two of
             his classmates, and we have a [Rule] 404(b)
             witness, his half-sister, who is also making
             allegations that she was sexually assaulted,
             and this is why we have selected [the juvenile]
             for this particular prosecution.

             [Defense counsel is] correct, we do not
             prosecute most teenagers for possessing and
             distributing sexually [exploitative] images

                                    31
              because there are a lot of kids out there
              making incredibly stupid decisions to take
              pictures of their genitalia and send them to
              each other. This is a -- probably a larger
              number of people than anybody in the
              community cares to know about.

              So as a policy, no, we typically do not
              prosecute those cases based upon the sort of
              short sighted and ignorant decisions that
              teenagers can make. However, when people
              that are in [the juvenile’s] situation find
              themselves also, as the [prosecution is]
              alleging, sexually assaulting his classmates, in
              addition to possessing these images, yes, we
              do think that’s worth prosecution and that’s
              why we did it.

¶ 73     After the parties and the court discussed another case brought

  against a juvenile male within that jurisdiction on similar charges,

  defense counsel stated that the prosecution had added the charges

  in this case because the juvenile had refused to enter a guilty plea

  concerning the sexual assault, kidnapping, third degree assault,

  and aggravated juvenile offender counts. The prosecutor responded

  that

              [o]ne, with respect to us filing it after the initial
              charges, I want to refresh everyone’s
              recollection here, that [the prosecution was]
              making everybody aware that these were
              possible charges that we were continuing to
              investigate at the beginning of this case and
                                       32
            that we may upon the conclusion of that
            investigation add those charges. So I guess I
            sort of want to set it straight that it wasn’t
            while we’re going to plead not guilty and these
            charges get added, but I want to go back to the
            fact that we have been discussing these
            charges from the outset.

            The vindictive prosecution, which was not
            alleged in their motion but is apparently being
            alleged now based upon our response, those
            charges go directly to what it is he’s being
            charged with. He’s being charged with sexual
            assault. These are sexually related charges
            with other teenage girls and they’re being
            brought because we think [the juvenile’s]
            behavior is dangerous and not for any
            vindictive purpose.

¶ 74   The court then denied the juvenile’s selective prosecution

  motion. It stated:

            The case law is pretty clear that in order for
            there to be a problem or a constitutional
            problem with selective prosecution, that
            selective prosecution has to be based upon an
            unjustifiable standard such as race, religion or
            other arbitrary classification, it has to have a
            discriminatory effect, motivated by a
            discriminatory purpose. . . .

            In this case, it’s pretty clear that [the juvenile]
            is not [a member of a] suspect classification,
            [the juvenile is] a young white male, so I don’t
            see that being a discriminatory purpose. The
            [prosecutor] has explained that [the juvenile]
            got charged with this because of the other
                                     33
             charges he is facing, and I do remember
             somewhat, I assume it’s [a particular
             prosecutor], but I do remember someone
             talking about the potential additional charges
             being filed. So at this time I’m going to deny
             that motion and not dismiss the case because
             of selective prosecution.

                               D.    Analysis

¶ 75   The juvenile first asserts that the trial court erred when it

  stated that he could not be a victim of selective prosecution because

  he was a white male. We agree that this is a misstatement of the

  law. See, e.g., United States v. Diaz, 961 F.2d 1417, 1420 (9th Cir.

  1992) (“[C]ourts . . . have the authority to inquire into charging . . .

  decisions to determine whether the prosecutor is abusing her

  awesome power to favor or disfavor groups defined by their gender,

  race, religion or similar characteristics.” (quoting United States v.

  Redondo-Lemos, 955 F.2d 1296, 1301 (9th Cir. 1992))) (emphasis

  added); cf. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,

  78 (1998) (“Title VII’s prohibition of discrimination ‘because of . . .

  sex’ protects men as well as women.”) (citation omitted); People v.

  Gandy, 878 P.2d 68, 70 (Colo. App. 1994) (gender discrimination

  claim based on removal of male jurors was cognizable).


                                     34
¶ 76   But, although the trial court made this legal mistake, we

  nonetheless conclude that the court did not err when it denied the

  juvenile’s selective prosecution motion because it made factual

  findings that are supported by the record. The court found that (1)

  the prosecutor decided to add the sexual exploitation of a child

  counts because of the other, more serious charges that the juvenile

  faced; and (2) a prosecutor gave notice to the court and to the

  juvenile about the prospect of adding these counts as the

  investigation unfolded, which eventually led the police to E.H. and

  L.B. We conclude that the record supports these findings. See

  People v. Gallegos, 251 P.3d 1056, 1062 (Colo. 2011).

¶ 77   In other words, the trial court found that the juvenile had not

  established that the prosecution had acted with an impermissible

  discriminatory purpose. See Kurz, 847 P.2d at 197. And we add

  that our review of the record has not turned up any “clear evidence”

  to the contrary. See Armstrong, 517 U.S. at 465.

                            V.   Conclusion

¶ 78   The delinquency adjudication is affirmed.

       JUDGE BERNARD specially concurs.


                                   35
JUDGE FOX dissents.




                      36
        JUDGE BERNARD, specially concurring.

¶ 79    I respectfully disagree with the majority’s analysis of the

  second, unpreserved sufficiency-of-the-evidence contention in Parts

  II.A and II.E of the majority opinion. I therefore specially concur

  with those parts of the opinion. I concur without reservation in the

  rest of it.

¶ 80    I am persuaded by the majority’s reasoning in People v.

  Lacallo, 2014 COA 78, ¶¶ 12, 30-31, the majority’s reasoning in

  People v. Rediger, 2015 COA 26, ¶¶ 10-14, and the reasoning of the

  special concurrence in People v. McCoy, 2015 COA 76M, ¶ 70

  (Webb, J., specially concurring). So I would apply that reasoning in

  this case. As a result, I would review the juvenile’s second

  sufficiency-of-the-evidence claim for plain error.

¶ 81    Plain error review involves three questions: whether there was

  an error; if so, whether it was obvious; and, if so, whether the error

  cast serious doubt on the reliability of the judgment of conviction.

  Rediger, ¶ 11. “Where analyzing the evidence requires the

  preliminary interpretation of a statute” that the defendant did not

  raise in the trial court and that no Colorado court has decided, “the


                                     37
  initial focus is on obviousness.” Id. at ¶ 12. In this context, we do

  not address the merits of a sufficiency-of-the-evidence claim if (1) it

  would have been difficult to figure out the meaning of “operative

  statutory terms” under existing Colorado law, id.; or (2) the

  contention concerning those statutory terms did not “implicate a

  ‘well-settled legal principle that numerous courts elsewhere have

  uniformly embraced,’” id. (quoting Lacallo, ¶ 31). But, even if other

  courts have not consistently resolved the statutory interpretation

  question in a particular way, a sufficiency-of-the-evidence error is

  nonetheless obvious if the statute is unambiguous and its terms

  have common and ordinary meanings. Id. at ¶ 13. And, if the error

  is obvious, we must review the sufficiency of the evidence claim de

  novo. Id.

¶ 82   To summarize, plain error analysis in the sufficiency-of-the-

  evidence context will only reach a different result than de novo

  review if three things happen: we have to interpret a statute before

  we move on to analyzing the evidence in the context of that statute;

  we have to interpret the statute because the defendant has urged

  us to do so for the first time on appeal; and the defendant’s


                                    38
  proposed interpretation of the statute is not obvious. Id. at ¶ 14.

  “Otherwise, whether or not review is for plain error, the analysis will

  start — and usually end — with examining the sufficiency of the

  evidence de novo.” Id.

¶ 83   Because the first step in the analysis of this sufficiency-of-the-

  evidence contention is the interpretation of a statute that the

  juvenile did not raise in the trial court, I first focus on the

  obviousness prong of the plain error test. See id. at ¶ 12. I

  conclude, for the following reasons, that the statutory interpretation

  upon which the juvenile relies in making his sufficiency-of-the-

  evidence contention was not obvious.

¶ 84   First, the juvenile’s contention has never been adopted by a

  Colorado appellate court, and it does not “involve[] a well-settled

  legal principle that numerous courts elsewhere have uniformly

  embraced.” See Lacallo, ¶ 31. Indeed, the juvenile’s appellate briefs

  do not cite one appellate decision from any court in the United

  States that has adopted this contention.

¶ 85   Second, the juvenile’s contention is not based on a simple and

  plain assertion that the sexual exploitation statute was


                                      39
  unambiguous and that its terms had common and ordinary

  meanings, so a simple reading of the statute would have revealed

  the error. See Rediger, ¶ 13. Instead, his contention has a lot of

  moving parts, and some of them are complex.

¶ 86   The juvenile’s contention analyzes the language of sexual

  exploitation of a child statute. It discusses the legislature’s intent.

  It compares the sexual exploitation of a child statute to the

  language and the legislative history of a different statute, section

  18-3-405.4, C.R.S. 2015, which addresses Internet exploitation.

  And, incorporating a constitutional contention, it asserts that “the

  creation of the texted images in this case did not involve sexual

  abuse of a child or criminal conduct,” so the juvenile’s possession of

  the photographs “cannot be banned without violating First

  Amendment guarantees.”

¶ 87   So, based on my conclusion that the putative error that the

  juvenile identifies was not obvious, I would not address the merits

  of this sufficiency-of-the-evidence contention. See Lacallo, ¶ 32.




                                     40
       JUDGE FOX, dissenting.

¶ 88   I am unable to join the majority opinion — namely Parts II.E.1

  and II.E.3 — because, as I discuss below, our juvenile justice

  system and the statute at issue, targeting sexual exploitation of

  children, were never intended to reach imprudent or irresponsible

  behavior by and among juveniles. Here, a seventeen-year old and a

  fifteen-year old each voluntarily sent texts containing partially nude

  photographs (or sexts) to their then-boyfriend, T.B., who was then

  sixteen years old. The record does not show that T.B. forwarded or

  shared those photographs. And, although both teen girls also

  received sexts from T.B., they were not prosecuted.

  I.   The Juvenile Justice System’s Goals Are to Rehabilitate — Not
                     to Irreparably Brand — Juveniles

¶ 89   The General Assembly intended the Children’s Code to serve

  the welfare of children and the best interest of society. § 19-1-

  102(2), C.R.S. 2016. Thus, the General Assembly recognized that

  juveniles who violate the law should be treated differently than

  adults. It therefore created a separate statutory system within the

  Children’s Code, Article II, to handle the treatment and sentencing

  of juveniles who commit a delinquent act. § 19-2-102, C.R.S. 2016.

                                    41
  Article II of the Children’s Code focuses on the rehabilitation and

  accountability of the juvenile delinquent while protecting public

  safety. Id.; see also Bostelman v. People, 162 P.3d 686, 692 (Colo.

  2007). Thus, the Children’s Code’s treatment of juveniles

  adjudicated delinquents should contrast with the adult criminal

  system, where the focus is on punishment, deterrence, and

  retribution. Bostelman, 162 P.3d at 692; see also A.S. v. People,

  2013 CO 63. The goal is to help make the juvenile a productive

  member of society. See § 19-2-102(1); accord In re Application of

  Gault, 387 U.S. 1, 15-16 (1967) (recognizing that the juvenile

  system was developed in large part to facilitate the opportunity for

  juveniles to reform and become productive citizens).1

¶ 90   It makes sense to treat juveniles differently. Indeed, even the

  United States Supreme Court recognizes that “[i]nexperience [and]

  less education . . . make the teenager less able to evaluate the

  consequences of his or her conduct[.]” Thompson v. Oklahoma, 487

  1 Colorado, one of the first states to create a juvenile court, has a
  rich history in the juvenile justice realm. See Laoise King, Colorado
  Juvenile Court History: The First Hundred Years, 32 Colo. Law. 63
  (Apr. 2003) (noting that the creation and use of juvenile courts
  allowed communities to recognize the humanity of children and
  their entitlement to justice).
                                    42
  U.S. 815, 835 (1988) (plurality opinion). It is for that reason that

  “juveniles are not trusted with the privileges and responsibilities of

  an adult” and “why their irresponsible conduct is not as morally

  reprehensible as that of an adult.” Id.

¶ 91   Not infrequently, courts have relied on research about

  adolescent behavior and brain development to underscore the

  importance of exercising discretion when prosecuting juveniles. In

  Roper v. Simmons, the Supreme Court — highlighting the research

  on adolescent behavior that supports the view that child offenders

  are less culpable and more capable of reform than adults who

  commit similar crimes — declared the juvenile death penalty

  unconstitutional. 543 U.S. 551 (2005). In accepting the premise

  that adolescent offenders are less culpable, the Court cited research

  demonstrating that adolescents are generally more “impetuous”

  than adults and are thus “overrepresented statistically in virtually

  every category of reckless behavior.” Id. at 569 (citation omitted).

¶ 92   For similar reasons, the Supreme Court later held, in Graham

  v. Florida, 560 U.S. 48, 68 (2010), mandatory life without parole

  sentences for those under the age of eighteen to be


                                    43
unconstitutional. The Court reasoned that juveniles are less

culpable than adults and, therefore, are less deserving of the most

severe punishments. Id. This presumption that juveniles are

generally less culpable than adults is based on previous and

ongoing “developments in psychology and brain science” which

“continue to show fundamental differences between juvenile and

adult minds” in, for instance, “parts of the brain involved in

behavior control.” Miller v. Alabama, 567 U.S. ___, ___, 132 S. Ct.

2455, 2464 (2012) (quoting Graham, 560 U.S. at 68). According to

the Supreme Court, “[a]s compared to adults, juveniles have a ‘lack

of maturity and an underdeveloped sense of responsibility.’”

Graham, 560 U.S. at 68 (quoting Roper, 543 U.S. at 569-70).

Juveniles “are more vulnerable or susceptible to negative influences

and outside pressures, including peer pressure,” id. (quoting Roper,

543 U.S. at 569-70), and “they have limited ‘contro[l] over their own

environment’ and lack the ability to extricate themselves from”

harmful settings, Miller, 567 U.S. at ___, 132 S. Ct. at 2464

(alteration in original) (quoting Roper, 543 U.S. at 569). Finally, “a

child’s character is not as ‘well formed’ as an adult’s . . . and his


                                   44
  actions [are] less likely to be ‘evidence of irretrievabl[e] deprav[ity].’”2

  Id. (alteration in original) (quoting Roper, 543 U.S. at 570).

  Accordingly, “[i]t is difficult even for expert psychologists to

  differentiate between the juvenile offender whose crime reflects

  unfortunate yet transient immaturity, and the rare juvenile offender

  whose crime reflects irreparable corruption.” Graham, 560 U.S. at

  68 (alteration in original) (quoting Roper, 543 U.S. at 573).

       II.   Protecting Children from Sexual Exploitation

¶ 93   In contrast with the rehabilitative goals of Colorado’s juvenile

  justice system, child pornography laws are meant to prevent the

  sexual abuse of children necessarily present in the making of child

  pornography. See § 18-6-403(3)(b.5), C.R.S. 2016; see also People

  v. White, 656 P.2d 690, 693 (Colo. 1983) (recognizing that the sex

  offender laws’ primary purpose is to protect the public from proven



  2 Even justices not finding categorical Constitutional violations in
  these juvenile cases agree with this precept. See Graham v. Florida,
  560 U.S. 48, 90 (2010) (Roberts, C.J., concurring in the judgment)
  (“Roper’s conclusion that juveniles are typically less culpable than
  adults has pertinence beyond capital cases.”); Roper v. Simmons,
  543 U.S. 551, 599 (2005) (O’Connor, J., dissenting) (“It is beyond
  cavil that juveniles as a class are generally less mature, less
  responsible, and less fully formed than adults, and that these
  differences bear on juveniles’ comparative moral culpability.”).
                                      45
dangerous sex offenders). Sexting, in comparison, generally

involves teens taking pictures of themselves, usually for their

boyfriend or girlfriend, and without the exploitative circumstances

that accompany the production of conventional child pornography.

The sexting at issue here entailed seventeen-year-old E.H. and

fifteen-year-old L.B., each voluntarily taking a photograph of

herself, and sending the photograph by text to another teen, T.B.;

these actions lack the exploitative element implicit in the laws

prohibiting child pornography. Texting, including sexting, is not

uncommon among today’s teens.3 To charge sexting between teens



3 The cell phone is the most direct and most widely used mode of
communication between young people. Seventy-one percent of
teens own a cell phone and seventy-six percent of teens have sent
text messages — in fact, of teens with cell phones, twenty-five
percent of teens aged twelve to fourteen text daily and fifty-one
percent of teens aged fifteen to seventeen text daily. See Amanda
Lenhart, Teens and Mobile Phones Over the Past 5 Years: Pew
Internet Looks Back 5, 8 (2009), available at
https://perma.cc/6W77-NDZL. A survey conducted on the topic of
sexting reported that twenty percent of the teens surveyed have
electronically sent or posted online a nude or semi-nude picture or
video of themselves. See 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. Most teen sexting is sent between partners of a relationship
(i.e., between boyfriend and girlfriend), or to someone the sender is
interested in dating. Seventy-one percent of teen girls and sixty-
                                  46
in these circumstances as child pornography, a prosecutor must

blatantly disregard the purpose and intent of the laws enacted to

protect children from the predators who would exploit them. See,

e.g., Bond v. United States, 572 U.S. ___, ___, 134 S. Ct. 2077,

2090-91 (2014) (condemning the attempt to prosecute a woman

who placed “irritating chemicals” on her husband’s mistress’ door

knob and mailbox under a statute criminalizing the possession and

use of “chemical weapons,” two actions the Court found to be

“worlds apart”). Consensual teen sexting is worlds apart from a

predator’s sexual exploitation of a child. Criminalizing the conduct

at issue here under the sexual exploitation statute — section 18–6–

403(3)(b.5) — turns a law that was intended to shield minors into a

sword used against their imprudent conduct. The expansive

interpretation given by the trial court, and affirmed here,4 could just

as easily have led to charges against the teen girls, the putative



seven percent of teen boys who have sexted say they sent this
content to a boyfriend or girlfriend. Id. at 2.
4 Like Judge Richman, I too would review T.B.’s challenges,

although I come to a different result than his. See People v. McCoy,
2015 COA 76M, ¶ 70 (Webb, J., specially concurring); People v.
Rediger, 2015 COA 26, ¶ 67 (Richman, J., specially concurring)
(cert. granted Feb. 16, 2016).
                                  47
  victims here. Surely that is not how the legislature intended section

  18-6-403(3)(b.5) to be applied. See People v. Arapahoe Cty. Court,

  74 P.3d 429, 430-31 (Colo. App. 2003) (applying the principle that

  the court presumes that the General Assembly intended a just and

  reasonable result — and thus avoids interpretations leading to

  unjust or absurd results — before soundly rejecting a prosecution

  argument that, pursuant to 18-6-403(3)(b.5), defense counsel could

  not possess sexually explicit photographs needed to defend the

  client); see also Stephen F. Smith, Jail for Juvenile Child

  Pornographers?, 15 Va. J. Soc. Pol’y & L. 505, 525 (2008) (pointing

  out that, in many states, minors can marry or engage in consensual

  sex and arguing that, if the law considers a minor to be old enough

  to engage in sex, the minor should be treated as if he or she is old

  enough to document his or her sexual activity).

¶ 94   It is well established that a statute must set “minimal

  guidelines to govern law enforcement” and avoid the potential for

  discriminatory or arbitrary enforcement. City of Chicago v. Morales,

  527 U.S. 41, 60 (1999) (citation omitted); Trail Ridge Ford, Inc. v.

  Colo. Dealer Licensing Bd., 190 Colo. 82, 83-85, 543 P.2d 1245,


                                    48
1246 (1975) (recognizing that where criminal or quasi-criminal

sanctions are to be imposed, the threat of arbitrary enforcement of

the law requires specificity). Given the incongruent application of

section 18-6-403(3)(b.5) here, I must conclude that sufficient

guidelines are not present. This lack of guidelines has led to a

discriminatory enforcement of the conduct of T.B. — and not E.H.

or L.B. — and an arbitrary enforcement of conduct that reasonable

people could conclude is imprudent, but is not sexually exploitative

such that the juvenile should be treated no differently than a

pedophile or a distributor of child pornography. See Arapahoe Cty.

Court, 74 P.3d at 430-31; see also Curtiss v. People, 2014 COA 107,

¶ 7 (rule of lenity requires courts to resolve ambiguities in the penal

code in favor of a defendant’s liberty interests). This statute could

be misused to prosecute juvenile males differently than juvenile

females, even where the juveniles may be similarly situated,

depending on which gender sends or receives more sexts. See The

National Campaign to Prevent Teen & Unplanned Pregnancy, Sex

and Tech: Results from a Survey of Teens and Young Adults 2

(2008), available at https://perma.cc/E8PX-BEJD. The male sext


                                  49
  recipient in this case faced charges, while the female producers and

  distributors faced no legal consequences.

¶ 95   In 2009, the Colorado General Assembly amended two

  statutes to address the sexting phenomenon. See Ch. 341, sec. 1,

  § 18-3-306, 2009 Colo. Sess. Laws 1792-93 (Internet luring of a

  child); Ch. 341, sec. 1, § 13-21-1002, 2009 Colo. Sess. Laws 1792

  (computer dissemination of indecent material to a child). These

  amendments lend further support to the proposition that section

  18-6-403(3)(b.5) was never intended to be used in the way it was

  used against T.B. Instead, the legislature intended the 2009

  amendments to address texting violations when appropriate.

¶ 96   Section 18-3-306 — the Internet luring of a child provision —

  was altered as follows:

            18-3-306. Internet luring of a child. (1) An
            actor commits internet luring of a child if the
            actor knowingly communicates a statement
            over a computer or computer network,
            telephone network, or data network or by text
            message or instant message to a person who
            the actor knows or believes is to be under
            fifteen years of age describing and, in that
            communication or in any subsequent
            communication by computer, computer
            network, telephone network, data network,
            text message, or instant message, describes
                                   50
            explicit sexual conduct as defined in section
            18-6-403(2)(e), and, in connection with the
            communication that description, makes a
            statement persuading or inviting the person to
            meet the actor for any purpose, and the actor
            is more than four years older than the person
            or than the age the actor believes the person to
            be.

  Ch. 341, sec. 1, § 18-3-306, 2009 Colo. Sess. Laws 1792-93.

  Although this provision covers sexting, it would not apply to fifteen-

  year-old L.B or to seventeen-year-old E.H. Nor would it apply to

  sixteen-year-old T.B., who was one year younger than E.H. and one

  year older than L.B.

¶ 97   During the same legislative session, section 13-21-1002,

  which imposes civil liability for disseminating indecent material to a

  child, was modified as follows:

            13-21-1002. Computer dissemination of
            indecent material to a child—prohibition.
            (1) A person commits computer dissemination
            of indecent material to a child when: (a)
            Knowing the character and content of the
            communication which, in whole or in part,
            depicts actual or simulated nudity, or sexual
            conduct, as defined in section 19-1-103(97),
            C.R.S., the person willfully uses a computer,
            computer network, telephone network, data
            network, or computer system allowing the
            input, output, examination, or transfer of
            computer data or computer programs from one

                                    51
               computer to another or a text-messaging or
               instant-messaging system to initiate or engage
               in such communication with a person he or
               she believes to be a child[.]

  Ch. 341, sec. 1, § 13-21-1002, 2009 Colo. Sess. Laws 1792.

  Violations of section 13-21-1002, C.R.S. 2016, result in a civil

  penalty “established pursuant to verdict or judgment.” § 13-21-

  1003(1), C.R.S. 2016.

¶ 98      These legislative amendments suggest that, rather than

  criminalizing sexting activity by and among teens, the legislature

  most likely intended that civil penalties be imposed pursuant to

  sections 13-21-1002 and 13-21-1003. See Lawrence G. Walters,

  How to Fix the Sexting Problem: An Analysis of the Legal and Policy

  Considerations for Sexting Legislation, 9 First Amend. L. Rev. 98,

  121-22 (2010).

   III.   T.B.’s Section 18-6-403 Adjudication Irreparably Brands Him
          as a Sex Offender, With all the Attendant Consequences

¶ 99      As a result of the court finding T.B. guilty of the two counts of

  sexual exploitation of a child under section 18-6-403(3)(b.5) for the

  photographs received from each teen girl, T.B.’s sentence includes

  these restrictions (among others):


                                       52
 T.B. was required to register as a sex offender (thereby

  undermining the otherwise confidential nature of juvenile

  proceedings).

 T.B. was required to submit to and pay a fee for DNA

  testing.

 T.B. was required to actively participate in sex offender

  evaluation and treatment.

 T.B. was required to submit, at his expense, to

  psychological assessment and monitoring.

 T.B. was required to create a safety plan before attending a

  school environment.

 T.B. was restricted from the use of any Internet service,

  personal digital assistant devices, cell phones, and other

  like devices.

 T.B. was restricted from dating without prior approval (and

  if approved, was required to disclose the most private and

  intimate details of that relationship).

 T.B. had to submit to vehicle and residence searches.



                            53
         T.B. had to avoid overnight visits away from home without

          prior authorization.

         T.B. was required to refrain from contact with any children

          over the age of three without prior permission and was

          required to remove himself from any situation involving

          contact with children (even if incidental or accidental) and

          report that contact.

         T.B. was restricted from going, absent prior approval, to

          parks, playgrounds, recreation centers, arcades, and pools.

¶ 100   As evidenced by T.B.’s sentence, juvenile sexting adjudications

  can have far-reaching adverse consequences for the juvenile,

  especially where, as here, the juvenile is adjudicated delinquent for

  an offense categorized as a sexual offense or an offense that would

  require registration as a sex offender. Adjudications of delinquency

  for sex-related offenses can preclude the juvenile from the following:

        • Retaining custody of his or her minor child (if the juvenile is

          already a parent, or becomes a parent while under court

          supervision) if a dependency court finds that return of the

          child to the parent presents safety or other concerns vis-a-

                                    54
  vis the child. See People in Interest of D.P., 160 P.3d 351,

  353-54 (Colo. App. 2007).

• Obtaining approval as a foster or adoptive parent. See § 26-

  6-104(7)(C), C.R.S. 2016 (“The state department shall not

  issue a license to operate . . . a foster care home [or] a

  residential child care facility . . . if the applicant . . ., an

  affiliate of the applicant, a person employed by the

  applicant, or a person who resides with the applicant . . .

  has been convicted of . . . [a]ny offenses involving unlawful

  sexual behavior [including those punishable under § 18-6-

  403.]”).

• Pursuing certain occupations requiring working with

  children, like jobs in education, child care, and law

  enforcement. See 42 U.S.C. § 13041(c) (2012) (“Any

  conviction for a sex crime [or] an offense involving a child

  victim . . . may be ground for denying employment or for

  dismissal of an employee in [child protective services, social

  services, health and mental health care, child (day) care,

  education, foster care, residential care, recreational or


                              55
       rehabilitative programs, and detention, correctional, or

       treatment services.]”); see also Dep’t of Educ. Reg. 301-37,

       1 Code Colo. Regs. 301-37:2260.5-R15.00(2)(o) (providing

       that violations of section 18-6-403(3)(b.5) and of similar

       laws can lead to denial, suspension or revocation of a

       teaching license); Dep’t of Educ. Reg. 301-37, 1 Code Colo.

       Regs. 301-37:2260.5-R15.02(10).

     • Returning to normalcy, as registration makes the juvenile’s

       name, picture, and offense available to the public, including

       classmates and the press.

     • Pursuing higher education, obtaining employment, or

       enlisting in the military. See Robert F. Shepard, Jr.,

       Collateral Consequences of Juvenile Proceedings: Part II, 15

       Crim. Just. 41 (Fall 2000).5



5 An increasing number of college and financial aid applications
inquire into juvenile adjudications, Robert F. Shepard, Jr.,
Collateral Consequences of Juvenile Proceedings: Part II, 15 Crim.
Just. 42 (Fall 2000), and certain drug offenses can make an
individual ineligible for financial aid. See Higher Education Act of
1965, 20 U.S.C. § 1091(r) (2012). While historically juvenile
adjudications have not been characterized as criminal convictions
in employment applications, many applications now include specific
references to juvenile adjudications. See Shepard, 15 Crim. Just.
                                 56
     • Exercising driving privileges in certain situations. Barbara

       Fedders, Two Systems of Justice, and What One Lawyer Can

       Do, 12 Whittier J. Child & Fam. Advoc. 25, 35 (2012); see

       also §§ 42-2-125, -126, C.R.S. 2016. For juveniles who

       reside in rural communities with limited public

       transportation, the inability to drive may translate into an

       inability to work.

     • Having a clean slate in subsequent judicial matters. See

       Michael Pinard, The Logistical and Ethical Difficulties of

       Informing Juveniles about the Collateral Consequences of

       Adjudications, 6 Nev. L. J. 1111, 1115 (2006). For example,

       Colorado sentencing law permits calculations of a “prior

       record score” to include juvenile adjudications of

       delinquency. See People v. Perez-Hernandez, 2013 COA

       160, ¶ 49.




at 42. Juvenile adjudications of delinquency may also preclude
eligibility for enlistment in the military. For example, based on the
United States Army’s classification system, juvenile delinquency
adjudications qualify as criminal offenses. Army Reg. 601-210, ¶ 4-
22(v) (Mar. 2013), available at https://perma.cc/U6FS-GFY5.
                                 57
• Remaining in the United States, if the juvenile is not a

  citizen. See, e.g., Serrato-Navarrette v. Holder, 601 F. App’x

  734, 737 (10th Cir. 2015).

• Obtaining public housing, see generally Kristin Henning,

  Eroding Confidentiality in Delinquency Proceedings: Should

  Schools and Public Housing Authorities be Notified?, 79

  N.Y.U. L. Rev. 520 (2004); Michael Pinard, The Logistical

  and Ethical Difficulties of Informing Juveniles about the

  Collateral Consequences of Adjudications, 6 Nev. L. J. 1111,

  1114 (2006) (noting that housing authorities routinely

  conduct background checks for adult applicants and may

  “investigate whether any member of the family unit,

  including a juvenile member, has been convicted of specific

  disqualifying offenses”), and other public benefits, including

  Temporary Assistance for Needy Families and food stamps,

  see Personal Responsibility and Work Opportunity

  Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat.

  2105, as amended by Balanced Budget Act of 1987, Pub. L.

  No. 105-33, 111 Stat. 251.


                            58
¶ 101   On top of state-based restrictions, the Adam Walsh Child

  Protection and Safety Act of 2006 specifically mandates that

  juveniles be included in sex offender registries. See 42 U.S.C.

  § 16911(8) (2012). The Adam Walsh Act requires states to

  “substantially implement” the Sex Offender Registration and

  Notification Act (SORNA) requirements or risk forfeiting ten percent

  of the funds normally received from the federal Omnibus Crime

  Control and Safe Streets Act of 1968. 42 U.S.C. § 16925(a) (2012).

  Certain SORNA classifications can result in registration for twenty-

  five years to life, and require in-person “show-ups” two to three

  times each year, while failing to register can subject the person to a

  maximum term of imprisonment greater than one year. 42 U.S.C.

  §§ 16913(e), 16915, 16916 (2012). If T.B. moves — for educational

  or employment opportunities — he may be required to register as a

  sex offender in other states pursuant to each state’s SORNA-

  implementing legislation. See, e.g., Del. Code Ann. tit. 11,

  § 4120(e)(1) (West 2013) (requiring registration in Delaware for

  violation of substantially similar sex offense laws in another state);

  Ohio Rev. Code Ann. § 2950.01(12) (West 2016) (same); see also


                                    59
  Nicole Marie Nigrelli, Comment, Sex Offender Registry: Is it

  Attacking People That Were Not Meant to Be Part of the Law?, 4

  Suffolk J. Trial & App. Advoc. 343, 345 & n.15 (1999) (noting that

  all states have some form of child sex offender registration

  requirements).

¶ 102   For all the foregoing reasons, I would reverse juvenile T.B.’s

  adjudication — under section 18-6-403(3)(b.5) — based on receiving

  sexts from his teenage girlfriends E.H. and L.B. Given this

  disposition, I need not address the remaining contentions.




                                    60
