COLORADO COURT OF APPEALS                                      2017COA76


Court of Appeals No. 14CA0014
El Paso County District Court No. 12CR1808
Honorable David A. Gilbert, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

David Allan Henley,

Defendant-Appellant.


                       JUDGMENT VACATED AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division IV
                        Opinion by JUDGE J. JONES
                       Graham and Welling, JJ., concur

                           Announced June 1, 2017


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

Douglas K. Wilson, Colorado State Public Defender, Jud Lohnes, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, David Allan Henley, appeals the district court’s

 judgment of conviction entered on jury verdicts finding him guilty of

 twenty-two counts of sexual exploitation of a child (possession of

 materials) and one count of sexual exploitation of a child

 (possession of more than twenty items). He also appeals the district

 court’s related habitual criminal adjudications. We vacate

 defendant’s convictions and adjudications because there is

 insufficient evidence that the photographs on which the charges are

 based constitute “erotic nudity” so as to qualify as “sexually

 exploitative material” under the charging statute, section 18-6-403,

 C.R.S. 2016. In so concluding, we hold that images which, when

 viewed objectively, aren’t “erotic nudity” don’t become so merely

 because a particular person — one not involved in the creation or

 distribution of the images — looks at them for the purpose of

 personal sexual gratification.

                            I. Background

¶2    Defendant’s community college classmate saw him looking at

 what appeared to be pictures of clothed children in “sexual” poses

 on his laptop computer during class. The classmate reported this

 to the teacher and to police.


                                   1
¶3    A detective searched defendant’s computer and found over

 ninety images that he thought were sexually exploitative. He also

 discovered that the computer had been used to search the Internet

 for “preteen girl pics” and “preteen sluts.”

¶4    The People charged defendant with twenty-five counts of

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

 twenty-five of the individual images (charged images), and one

 count of sexual exploitation of a child (possession of more than

 twenty items) under section 18-6-403(3)(b.5), (5)(b)(II).1

¶5    The charged images show fully or partially naked children

 (sometimes accompanied by adults) talking to others, walking

 outside, standing outside, posing in costume, or participating in

 activities like body painting and playing games.

¶6    Before trial, defense counsel moved to prohibit the prosecutor

 from introducing the other images that the detective had found on

 defendant’s computer (uncharged images), arguing that they could

 confuse the jury and were unduly prejudicial. (These images were

 of provocatively dressed children (posed suggestively) and naked


 1The People also charged defendant with six habitual criminal
 counts based on previous felony convictions.

                                    2
 adults.) The court asked the prosecutor why the uncharged images

 were relevant. The prosecutor responded that because the charged

 images were “nudist photographs” that “in and of themselves would

 not qualify as exploitative,” the uncharged images were relevant to

 show that defendant looked at the charged images for his personal

 sexual gratification. He said defendant’s purpose in looking at the

 charged images “makes them exploitative images.”

¶7    The district court apparently agreed with the prosecutor. It

 said it would allow the prosecutor to introduce the uncharged

 images because “this does constitute res gestae,” and the

 uncharged images would “provid[e] the context within which items

 are found.” It concluded, “I find there would be potential relevance

 to show intent here.”

¶8    During trial, the prosecutor introduced the charged and

 uncharged images into evidence. As well, defendant’s classmate

 testified as to what he’d seen on defendant’s computer, and the

 detective testified as to the images he’d found on defendant’s

 computer and defendant’s use of the search terms “preteen girl

 pics” and “preteen sluts.”




                                   3
¶9     In closing argument to the jury, the prosecutor focused on

  defendant’s purpose in looking at the charged images, arguing that

  defendant’s purpose was “sexual,” as demonstrated by the Internet

  search terms and the uncharged images.2 In addressing whether

  the charged images were “erotic nudity,” the prosecutor

  acknowledged that “[y]ou [the jurors] are going to say to yourselves

  these are nudist camp photographs. Pictures of naked children.

  Doing things that are not sexual.” But, he argued, “the evidence as

  a whole” showed that defendant “took otherwise innocent

  photographs and perverted them for his sexual gratification.”

  Again, the prosecutor pointed to the Internet search terms and the

  uncharged images. The prosecutor summed up by saying that

  defendant “[w]as viewing [the charged images]” “[f]or a sexual

  purpose.”

¶ 10   The jury acquitted defendant of three counts related to the

  individual charged images, but it convicted him of the remaining

  counts.




  2The prosecutor conceded that the uncharged images were not
  sexually exploitative material.

                                    4
  II. The Evidence That the Charged Images Are Sexually Exploitative
                           Was Insufficient

¶ 11   Defendant contends that we should vacate his convictions for

  two reasons: (1) there was insufficient evidence that the charged

  images are “sexually exploitative” as required to support a

  conviction under section 18-6-403(3) because they aren’t “erotic

  nudity,” and (2) he didn’t possess or control the images within the

  meaning of section 18-6-403(3) merely by looking at them online.3

  Because we agree with defendant’s first contention, and vacate his

  convictions and adjudications on that basis, we don’t address his

  second.4


  3 Defendant also contends that the People’s theory of prosecution —
  that the charged images, though otherwise “not sexual” and
  “otherwise innocent” (according to the prosecutor), nevertheless
  constituted “erotic nudity” because of defendant’s purpose in
  looking at them — was legally invalid. But that’s the same
  argument he makes in contending that the evidence was
  insufficient to support his convictions, so we don’t address this
  contention separately.

  4 Defendant’s second contention is that he didn’t possess or control
  the images within the meaning of section 18-6-403(3), C.R.S. 2016,
  because he merely looked at them on the Internet without saving or
  downloading them onto his computer. We note, however, that the
  supreme court held recently that “for purposes of section 18-6-
  403(3), knowingly seeking out and viewing child pornography on the
  internet constitutes knowingly possessing or controlling it under
  the statute.” Marsh v. People, 2017 CO 10M, ¶ 28.

                                    5
¶ 12   Under section 18-6-403(3)(b.5), “[a] person commits sexual

  exploitation of a child if, for any purpose, he or she knowingly . . .

  [p]ossesses or controls any sexually exploitative material for any

  purpose.” “Sexually exploitative material” is “any photograph . . .

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

  used for explicit sexual conduct.” § 18-6-403(2)(j). Explicit sexual

  conduct includes, as relevant in this case, “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).

¶ 13   So under the relevant statutory provisions, the charged images

  were “erotic nudity,” and therefore “sexually exploitative material,” if

  they (1) displayed genitals, pubic areas, or breasts of a child; (2) for

  the purpose of real or simulated sexual gratification of one or more

  of the persons involved. See § 18-6-403(2)(d), (e), (j); People in


                                     6
  Interest of T.B., 2016 COA 151M, ¶ 31; People v. Gagnon, 997 P.2d

  1278, 1281 (Colo. App. 1999).

¶ 14   It is undisputed that the charged images meet the first

  condition — they show physical areas of children described in

  section 18-6-403(2)(d). This case then turns on the second

  condition. Defendant and the People offer competing views of how

  this aspect of the statutory definition of “erotic nudity” should be

  construed. Defendant argues that whether an image is “for the

  purpose of real or simulated overt sexual gratification” must be

  determined objectively based on the content of the image itself, and

  that a viewer’s purpose in looking at the image does not cause it to

  become “erotic nudity.” The People respond that even if an image

  is, when viewed objectively, not sexually exploitative, it becomes so

  if the person looking at the image does so for personal sexual

  gratification. In other words, the People argue that an image is “for

  the purpose of real or simulated overt sexual gratification,” even if it

  was not created or displayed for such a purpose, whenever the

  viewer’s purpose in looking at the image is such gratification.

¶ 15   Though we don’t agree with defendant’s argument entirely, we

  conclude that on the key issue — whether the viewer’s subjective


                                     7
  purpose in looking at an image can transform an image that

  otherwise is not “erotic nudity” into one that is — defendant is

  correct.

                A. Preservation and Standard of Review

¶ 16   Relying on People v. Lacallo, 2014 COA 78, and People v.

  McCoy, 2015 COA 76M (Webb, J., specially concurring) (cert.

  granted Oct. 3, 2016), the People argue that this issue is not

  preserved because when defense counsel moved for a judgment of

  acquittal at trial, she didn’t expressly articulate the statutory claim

  defendant now makes on appeal.5 But recall that the issue of the

  prosecution’s theory had come up before trial. And in her opening

  statement, defense counsel argued to the jury that the charged

  images didn’t meet the definition of sexually exploitative material

  because of what they do and do not show. In denying defendant’s

  motion for a judgment of acquittal, the district court recognized that

  there was an issue whether the charged images meet that

  definition, ruling that “a reasonable juror could find that the


  5The supreme court has granted certiorari review in a number of
  cases to decide whether the People’s preservation theory applies to
  a sufficiency of the evidence challenge. E.g., People v. McCoy, 2015
  COA 76M (cert. granted Oct. 3, 2016).

                                     8
  images, in fact, meet the definition of sexually exploitative.” For all

  these reasons, we conclude that the issue was sufficiently

  preserved. See People v. Syrie, 101 P.3d 219, 223 n.7 (Colo. 2004)

  (an issue is preserved where the trial court has “adequate

  opportunity to make factual findings and legal conclusions on any

  issue that is later raised on appeal”); People v. McFee, 2016 COA 97,

  ¶ 31 (“Where, despite imprecision in the objection, the trial court

  actually rules on the claim raised on appeal, and makes findings of

  fact and conclusions of law, the claim is sufficiently preserved.”).

¶ 17   We review the record de novo to determine if there was

  sufficient evidence to support the convictions. People v. Douglas,

  2015 COA 155, ¶ 8. “In reviewing the sufficiency of the evidence,

  we determine whether the evidence, viewed as a whole and in the

  light most favorable to the prosecution, is both ‘substantial and

  sufficient’ to support the defendant’s guilt beyond a reasonable

  doubt.” Id. (quoting Dempsey v. People, 117 P.3d 800, 807 (Colo.

  2005)).

¶ 18   Given that the People concede the charged images don’t depict

  “erotic nudity” if viewed objectively, the issue presented — whether

  a viewer’s subjective purpose in looking at an image can render it


                                     9
  “erotic nudity” — is entirely one of statutory construction. We

  review such issues de novo. Marsh v. People, 2017 CO 10M, ¶ 19.

                               B. Analysis

¶ 19   We construe a statute to give effect to the intent of the General

  Assembly, which we discern by looking first to the language of the

  statute. Mosley v. People, 2017 CO 20, ¶ 16. “If the language is

  clear and unambiguous, we must interpret the statute according to

  its plain meaning.” Marsh, ¶ 20. “To reasonably effectuate the

  legislature’s intent, a statute must be read and considered as a

  whole, and should be interpreted to give consistent, harmonious,

  and sensible effect to all its parts.” Mosley, ¶ 16; see People v.

  Berry, 2017 COA      ,¶     (“[W]e consider the words and phrases at

  issue in context — both in the context of the statute of which the

  words and phrases are a part and in the context of any

  comprehensive statutory scheme of which the statute is a part.”).

  We also construe statutory terms “in a manner that avoids

  constitutional infirmities. Thus, if a statute is capable of alternative

  constructions, one of which is constitutional, then the

  constitutional interpretation must be adopted.” People v.

  Zapotocky, 869 P.2d 1234, 1240 (Colo. 1994) (citations omitted).


                                     10
¶ 20   The definition of “sexually exploitative material” speaks in

  terms of the “depict[ion]” of children in visual images. § 18-6-

  403(2)(j). It therefore focuses on the nature of the image itself. And

  the depiction must show “explicit sexual conduct.” So, one might

  wonder whether the nature of the conduct depicted in a photograph

  is a chameleon that can change depending on who is looking at it.

¶ 21   The definition of “erotic nudity” suggests an answer: it speaks

  in terms of whether particular parts of a child’s body are

  “display[ed] . . . 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). Thus, this definition focuses on the purpose for

  which the image is displayed, not the subjective purpose of a

  particular viewer.

¶ 22   That the particular viewer’s purpose in looking at the image is

  irrelevant for purposes of determining whether the image is “erotic

  nudity” is confirmed by the prohibitory language of the statute

  pertaining to the possession of sexually exploitative material. It

  says that “[a] person commits sexual exploitation of a child if, for

  any purpose, he or she knowingly . . . [p]ossesses or controls any

  sexually exploitative material for any purpose,” subject to certain


                                     11
  exceptions that don’t apply in this case. § 18-6-403(3)(b.5). The

  People’s position that the purpose of a particular person who

  possesses an image can determine whether the image is “erotic

  nudity” — indeed, can transform an image that otherwise isn’t into

  one that is — runs headlong into this statutory language.

¶ 23   We aren’t writing on a clean slate. Decisions of the Colorado

  Supreme Court and divisions of this court support our

  interpretation of the statute, as does federal authority.

¶ 24   In People v. Batchelor, 800 P.2d 599 (Colo. 1990), the supreme

  court addressed the constitutionality of the definition of “erotic

  nudity” in section 18-6-403(2)(d).6 The court held that the statute


  6 Because statutes like section 18-6-403 criminalize conduct based
  on the content of expressive speech, they implicate free speech
  concerns. The mere display of child nudity, without more, is
  protected speech. People v. Batchelor, 800 P.2d 599, 602 (Colo.
  1990); see Erznoznik v. City of Jacksonville, 422 U.S. 205, 213
  (1975) (“[A]ll nudity cannot be deemed obscene even as to minors.”).
  But there is a substantial body of law affirming the constitutionality
  of statutes criminalizing the production or viewing of sexually
  exploitative images of fully or partially naked children because “[t]he
  prevention of sexual exploitation and abuse of children constitutes
  a government objective of paramount importance.” People v. Grady,
  126 P.3d 218, 221 (Colo. App. 2005); see Ashcroft v. Free Speech
  Coal., 535 U.S. 234, 245 (2002) (pornography produced with real
  children is not protected by First Amendment); New York v. Ferber,
  458 U.S. 747, 757 (1982) (laws enacted to protect minors by
  criminalizing child pornography are constitutional); United States v.

                                    12
“does not reach constitutionally protected materials depicting nude

children for . . . legitimate purposes” because it is limited to images

“made ‘for the purpose of overt sexual gratification or stimulation of

one or more of the persons involved.’” Id. at 602 (emphasis added).

In so holding, the court focused on why an image was created so as

to distinguish between innocent (or, at least, constitutionally

protected) nude images, and sexually exploitative nude images. Id.

at 603 (“[O]nly those depictions of nudity taken for the purpose of

sexual gratification or stimulation are proscribed by the statute. . . .

Photographs taken for family, artistic, or any other legitimate

purpose are not proscribed by the statute.”) (emphasis added); see

also id. (“Police, prosecutors, judges and juries do not have

discretion under this statute to charge or convict a defendant for

making a photograph depicting nudity for any purpose other than

sexual gratification or stimulation.”) (emphasis added); Gagnon, 997




Frabizio, 459 F.3d 80, 90 (1st Cir. 2006) (the government has a
compelling interest in preventing the sexual exploitation of
children). Thus, laws enacted to protect the victims of child
pornography by penalizing those who produce or possess such
materials are, as a general matter, constitutional. See Osborne v.
Ohio, 495 U.S. 103, 109 (1990).

                                   13
  P.2d at 1281-82 (the “display . . . must be for the purpose of” sexual

  gratification or stimulation).

¶ 25   The division’s decision in People v. Grady, 126 P.3d 218 (Colo.

  App. 2005), advances the ball even farther. In holding that a

  “person[] involved” as used in the definition of “erotic nudity” can

  include a viewer of an image, the division held that the term must

  be applied “objectively, so as to include a reasonable viewer of

  sexual materials that have been distributed.” Id. at 220; see also

  id. at 221 (“[T]he People must prove that . . . the content of those

  photographs, viewed objectively, would lead to sexual gratification

  or stimulation of a reasonable viewer.”). So if, as in that case, an

  image is created or distributed for the purpose of real or simulated

  overt sexual gratification or stimulation of a viewer of the image, it

  may qualify as “erotic nudity.” But, again, the focus is on why the

  image was created, and the relevant viewer is a hypothetical

  “reasonable viewer.”

¶ 26   Likewise, federal cases interpreting similar federal statutes

  have held that using an objective test (i.e., one that disregards a

  particular viewer’s subjective purpose) is necessary to assure that

  those statutes are applied in a constitutional manner. See, e.g.,


                                    14
Ashcroft v. Free Speech Coal., 535 U.S. 234, 253 (2002) (computer-

generated child pornography that did not depict real children was

protected under the First Amendment because it did not directly

harm children; a person’s purpose in viewing such materials is

irrelevant); United States v. Amirault, 173 F.3d 28, 34-35 (1st Cir.

1999) (“[I]n determining whether there is an intent to elicit a sexual

response, the focus should be on the objective criteria of the

photograph’s design.”); see also United States v. Villard, 885 F.2d

117, 125 (3d Cir. 1989) (“Although it is tempting to judge the actual

effect of the photographs on the viewer, we must focus instead on

the intended effect on the viewer. . . . ‘Child pornography is not

created when the pedophile derives sexual enjoyment from an

otherwise innocent photo.’” (quoting in part United States v. Villard,

700 F. Supp. 803, 812 (D. N.J. 1988))); United States v. Wiegand,

812 F.2d 1239, 1245 (9th Cir. 1987) (“Private fantasies are not

within the statute’s ambit.”); Commonwealth v. Rex, 11 N.E.3d

1060, 1068 n.13, 1071 n.16 (Mass. 2014) (rejecting the argument

that images of nude children that otherwise did not depict any

“lewd exhibition” could be regarded as doing so based on how the




                                  15
  defendant stored them, other images he possessed and kept with

  them, or what he thought in looking at them).

¶ 27   Notwithstanding all this, the People argue that the charged

  images meet the definition of “erotic nudity” because defendant — a

  “person[] involved” as a viewer — viewed the charged images for

  sexual gratification. § 18-6-403(2)(d). They assert that, in several

  prior cases, Colorado appellate courts have considered a viewer’s

  subjective response in determining whether an image was “erotic

  nudity.” See Batchelor, 800 P.2d at 604; T.B., ¶ 34; Grady, 126

  P.3d at 221; Gagnon, 997 P.2d at 1282. But the People

  mischaracterize these cases.

¶ 28   In all of them, the courts considered extrinsic circumstances

  only to determine whether the images were created to be viewed for

  sexual gratification. See Batchelor, 800 P.2d at 604 (that the

  defendant concealed the photos of his naked nine-year-old

  daughter, took the pictures at night, posed the child, and took the

  pictures secretly showed that he took the pictures for his own

  sexual gratification); T.B., ¶ 34 (that the defendant had texted the

  victims a picture of his erect penis when he solicited nude pictures

  from the victims showed that the pictures taken by the victims were


                                    16
intended for the defendant’s sexual gratification); Grady, 126 P.3d

at 222 (the defendant produced photos of teenage models that he

also posted on a website entitled “True Teen Babes”); Gagnon, 997

P.2d at 1284 (in deciding whether pictures taken by the defendant

of a teenage girl in sexually suggestive poses and clothing were

produced for sexual gratification, the court considered that “the

pictures of the victim were found along with a large collection of

other material the trial court described as adult pornography”).7 In

none of the cases did the court consider whether the subjective


7 Likewise, in federal cases applying similar statutes, courts have
considered extrinsic circumstances only to determine whether the
images were created to be viewed for sexual gratification. Compare
United States v. Larkin, 629 F.3d 177, 183-84 (3d Cir. 2010)
(pictures of naked girls in a bathtub were determined to be child
pornography because the defendant engineered the photographs to
arouse pedophiles), and United States v. Wiegand, 812 F.2d 1239,
1244 (9th Cir. 1987) (picture of naked children was lascivious
“because the photographer arrayed it to suit his peculiar lust” and
lasciviousness was a characteristic of “the exhibition which the
photographer sets up”), with United States v. Amirault, 173 F.3d 28,
34-35 (1st Cir. 1999) (picture of a naked girl in a hole on the beach
was not child pornography because it was not necessarily produced
to elicit a sexual response, even though the defendant admitted that
he possessed the photo because he found it erotic), and Doe v.
Chamberlin, 139 F. Supp. 2d 637, 642-44 (M.D. Pa. 2001) (pictures
of naked girls taking a shower at the beach were “innocent” because
they were not produced to elicit a sexual response), aff’d, 299 F.3d
192 (3d Cir. 2002).


                                  17
  purpose of a viewer not involved in the creation or distribution of

  the images rendered the images “erotic nudity.”

¶ 29   We must also reject the People’s position because we foresee

  several untenable consequences of adopting it.

           Images that are otherwise constitutionally protected

            images could become unprotected based merely on the

            subjective response of a particular viewer. See Batchelor,

            800 P.2d at 602 (pictures depicting nude children for

            legitimate purposes are constitutionally protected).

           In some situations, the viewer, but not the creator, of an

            image could be prosecuted, which wouldn’t further the

            purpose of the statute to protect children from sexual

            exploitation. See § 18-6-403(1).8

           Or a situation might arise where one viewer, but not

            another, could be prosecuted because of their different

            subjective purposes for viewing an image. That would

            raise First Amendment and equal protection concerns.


  8The statute seeks to further this purpose by attacking both the
  supply and the demand side of the equation. But if an image, as
  created, is not sexually exploitative, that purpose is not served as,
  by definition, there was no sexual exploitation of any child.

                                    18
¶ 30   The People presented no evidence that, objectively considered,

  a reasonable viewer of the charged images would look at them for

  the purpose of sexual gratification or stimulation. In fact, they

  conceded the contrary, pinning their hopes instead on evidence of

  defendant’s subjective purpose in looking at them. That evidence

  was irrelevant.9 It follows that the evidence was insufficient to

  support defendant’s convictions.

                             III. Conclusion

¶ 31   The judgment is vacated. The case is remanded to the district

  court to dismiss the charges.

       JUDGE GRAHAM and JUDGE WELLING concur.




  9 We aren’t holding that in any case brought under section 18-6-
  403 a fact finder may consider only the image itself. That approach
  would likely be inconsistent with Colorado case law. We hold only
  that evidence of a defendant-viewer’s subjective purpose does not
  transform images that otherwise don’t constitute “erotic nudity” into
  images that do.

                                     19
