COLORADO COURT OF APPEALS                                        2016COA90


Court of Appeals No. 14CA0862
Gilpin County District Court No. 13CR20
Honorable Philip J. McNulty, Judge
______________________________________________________________________________

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Scott Allen Helms,

Defendant-Appellant.


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

                                   Division III
                          Opinion by JUDGE J. JONES
                       Lichtenstein and Dunn, JJ., concur

                           Announced June 16, 2016


Cynthia H. Coffman, Attorney General, Molly E. McNab, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Gregory Lansky, Alternate Defense Counsel, Aurora, Colorado, for Defendant-
Appellant
¶1    Defendant, Scott Allen Helms, appeals the district court’s

 judgment of conviction entered on jury verdicts finding him guilty of

 two counts of Internet sexual exploitation of a child. He also

 appeals the revocation of his probation. We reverse defendant’s

 conviction on one of the two counts, reverse the revocation of

 defendant’s probation, and otherwise affirm. As matters of first

 impression, we hold that the statute criminalizing Internet child

 exploitation, section 18-3-405.4(1)(a), C.R.S. 2015, does not violate

 the dormant Commerce Clause, is not unconstitutionally overbroad,

 and does not violate a defendant’s right to due process.

                            I. Background

¶2    On February 1, 2013, defendant, then age forty-seven, started

 a conversation in an Internet chat room with “Miranda.” “Miranda”

 was actually Sergeant Troy Hendricks pretending to be a fourteen-

 year-old girl.1 After “Miranda” moved the conversation to a private

 chat, defendant asked her to take off her clothes and rub her

 nipples. Defendant then asked “Miranda” if she had a younger

 sister with her. “Miranda” responded that there were two other girls


 1 Sergeant Hendricks was in Gilpin County, Colorado, during his
 Internet and telephone communications with defendant.
                                   1
 who lived in her building, ages thirteen and twelve. Defendant

 asked her to go get the other girls.

¶3    “Miranda” told defendant that “Lizzy” (also Sergeant

 Hendricks) had come over and that she was twelve years old.

 Defendant made the “girls” promise that they would not tell their

 parents about their interaction with him. He then asked the “girls”

 to take off each other’s clothes, to perform oral sex, and for

 “Miranda” to insert an item into “Lizzy’s” vagina. Defendant asked

 the “girls” to take photos of each other naked performing the

 requested acts.

¶4    During this chat, defendant asked “Miranda” to video chat.

 Sergeant Hendricks placed a piece of paper over his camera so that

 defendant could not see him, and defendant assumed that

 “Miranda’s” video camera did not work. Sergeant Hendricks was

 able to capture a photo of defendant while defendant was trying to

 video chat with the “girls.”

¶5    A few days later, on February 5, defendant started a second

 chat conversation with “Miranda.” He asked “Miranda” to send him

 the pictures that she had taken of herself and “Lizzy” during their

 first chat conversation on February 1. Defendant told “Miranda”

                                    2
 that he loved her, wanted to “do [her],” and would buy her a plane

 ticket to come visit him in Maine. He asked her if she was on birth

 control. When she said yes, he told her to throw away the pills

 because he wanted to impregnate her. Sergeant Hendricks gave

 defendant “Miranda’s” cell phone number, saying that defendant

 could text “Miranda.” Defendant sent “Miranda” a text message.

¶6    Sergeant Hendricks called defendant the next day using the

 number from which “Miranda” had received a text message. The

 call went to defendant’s voicemail. Defendant called Sergeant

 Hendricks back later that day. When Sergeant Hendricks told

 defendant that he had records of his conversations with “Miranda,”

 including a picture of defendant, defendant admitted that he had

 communicated with “Miranda” and had asked her to perform sexual

 acts. Defendant said that he “[had] a problem” and was going to

 counseling.

¶7    Sergeant Hendricks called defendant again the next day to talk

 about the incident. Defendant told Sergeant Hendricks that he was




                                  3
 planning to fly “Miranda” out to visit him and hide her in a hotel.2

 Defendant said that his wife would “kick [his] ass” if she were to

 find out he had flown “Miranda” out to visit him.

¶8    The State initially charged defendant with eight counts of

 Internet sexual exploitation of a child. See § 18-3-405.4(1)(a).

 Ultimately, defendant faced only two counts. Count one charged

 that defendant had violated the Internet child exploitation statute

 by asking “Miranda” to “expose or touch [her] or another person’s

 intimate parts while communicating with the defendant via a

 computer network” on February 1, 2013. Count two charged the

 same type of violation occurring on February 5, 2013. A jury

 convicted defendant as charged, and the district court sentenced

 him to ten years to life of supervised probation on each count, to

 run concurrently.

¶9    The district court later revoked defendant’s probation when he

 failed to register as a sex offender. The court resentenced

 defendant to the custody of the Department of Corrections for an

 indeterminate term of two years to life.


 2 At this point, defendant still believed that “Miranda” was a real
 fourteen-year-old girl.
                                    4
                              II. Discussion

¶ 10   Defendant contends that we should reverse his convictions

  because (1) section 18-3-405.4(1)(a) is unconstitutional for various

  reasons; (2) the district court denied him a fair trial by admitting

  “other bad act” evidence and the prosecutor engaged in misconduct

  by referring to that evidence; (3) there is insufficient evidence to

  support his convictions because he did not commit any criminal

  acts in Colorado; (4) there is insufficient evidence to support his

  conviction for count two because his alleged actions forming the

  basis for count two — asking “Miranda” to send him the photos he

  thought she had taken on February 1 — are not criminalized by the

  Internet child exploitation statute; and (5) the district court should

  have declared a mistrial when a witness mentioned another

  investigation, violating the court’s prior ruling that the other

  investigation should not be mentioned. Defendant also contends

  that the district court erred by revoking his probation and

  resentencing him without conforming to statutory requirements.

¶ 11   We agree with defendant that there is insufficient evidence to

  support his conviction for count two and that the district court



                                     5
  erred in revoking his probation. We otherwise reject defendant’s

  contentions.

       A. Constitutionality of the Internet Child Exploitation Statute

¶ 12      The Internet child exploitation statute provides in relevant

  part:

               (1) An actor commits internet sexual
               exploitation of a child if the actor knowingly
               importunes, invites, or entices through
               communication via a computer network or
               system, telephone network, or data network or
               by a text message or instant message, a person
               whom the actor knows or believes to be under
               fifteen years of age and at least four years
               younger than the actor, to:

               (a) Expose or touch the person’s own or
               another person’s intimate parts while
               communicating with the actor via a computer
               network or system, telephone network, or data
               network or by a text message or instant
               message . . . .

  § 18-3-405.4(1)(a).

¶ 13      Defendant contends that the Internet child exploitation statute

  is facially unconstitutional because it violates the so-called dormant

  Commerce Clause of the United States Constitution, violates the

  First Amendment because it is overly broad, and violates his




                                       6
  constitutional right to due process because it is vague.3 These

  challenges fail.

                          1. Standard of Review

¶ 14   Defendant concedes that he did not preserve these

  contentions. We will nevertheless consider them because the

  factual record is sufficient to allow us to do so. See People v.

  Houser, 2013 COA 11, ¶ 35; People v. Allman, 2012 COA 212, ¶ 16;

  People v. Greer, 262 P.3d 920, 933-36 (Colo. App. 2011) (J. Jones,

  J., specially concurring). We will do so, however, applying the plain

  error standard of review. See Hagos v. People, 2012 CO 63, ¶ 14

  (constitutional errors that were not preserved are reviewed for plain

  error). Reversal for plain error is required only if (1) there was an

  error; (2) that error was obvious; and (3) that error so undermined

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

  reliability of the judgment of conviction. Id.

¶ 15   We review the constitutionality of a statute de novo. Hinojos-

  Mendoza v. People, 169 P.3d 662, 668 (Colo. 2007). Because

  statutes are presumed to be constitutional, the party challenging


  3We do not read any of defendant’s arguments as as-applied
  challenges to the constitutionality of the statute.
                                     7
  the facial constitutionality of a statute has the burden of showing

  that the statute is unconstitutional beyond a reasonable doubt. Id.

                     2. Dormant Commerce Clause

¶ 16   Article I, Section 8, Clause 3 of the United States Constitution

  (the Commerce Clause) authorizes Congress to “regulate Commerce

  with foreign Nations, and among the several States.” Though the

  Commerce Clause says nothing about the protection of interstate

  commerce in the absence of any action by Congress, the Supreme

  Court has held that it prohibits certain state actions that interfere

  with interstate commerce. This application of the Commerce

  Clause is referred to as the “dormant” Commerce Clause. Quill

  Corp. v. North Dakota, 504 U.S. 298, 309 (1992).

¶ 17   “The negative or dormant implication of the Commerce Clause

  prohibits state taxation or regulation that discriminates against or

  unduly burdens interstate commerce and thereby ‘imped[es] free

  private trade in the national marketplace.’” Gen. Motors Corp. v.

  Tracy, 519 U.S. 278, 287 (1997) (alteration in original) (citations

  omitted) (quoting in part Reeves, Inc. v. Stake, 447 U.S. 429, 437

  (1980)). “The modern law of what has come to be called the

  dormant Commerce Clause is driven by concern about ‘economic

                                     8
  protectionism — that is, regulatory measures designed to benefit in-

  state economic interests by burdening out-of-state competitors.’”

  Dep’t of Revenue v. Davis, 553 U.S. 328, 337-38 (2008) (quoting in

  part New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273-74

  (1988)).

¶ 18   Defendant argues that the Internet child exploitation statute

  violates the dormant Commerce Clause because it regulates

  communication occurring entirely outside of Colorado, the burdens

  it places on interstate commerce outweigh any putative local

  benefit, and it subjects interstate use of the Internet to inconsistent

  regulation. We reject these arguments in turn.

¶ 19   Defendant is correct that a law which regulates commerce

  occurring entirely outside a state’s boundaries violates the dormant

  Commerce Clause. See, e.g., Healy v. Beer Inst., Inc., 491 U.S. 324,

  336 (1989); Edgar v. MITE Corp., 457 U.S. 624, 641-43 (1982)

  (plurality opinion). But he is not correct in asserting that section

  18-3-405.4(1)(a) regulates such commerce. Though the Internet

  child exploitation statute does not expressly include a territorial

  limitation, such a limitation is implied by section 18-1-201, C.R.S.

  2015. That statute provides that a person is subject to prosecution

                                     9
  in Colorado “for an offense which he commits . . . if,” as relevant

  here, the person’s conduct “is committed either wholly or partly

  within [Colorado].” § 18-1-201(1)(a). Thus, section 18-3-405.4(1)(a)

  is limited to situations in which the criminal conduct occurs either

  wholly or partially in Colorado. And we note that a defendant’s

  conduct qualifies on that score if he sends a communication to

  someone who is in Colorado. Cf. People v. Chase, 2013 COA 27,

  ¶¶ 11-26 (e-mail threats sent from Boston, which were opened by

  the victims in Baltimore, could have caused the victims (Colorado

  residents) to fear for their safety or others’ safety in Colorado).

  There is no reason to suspect that Colorado law enforcement

  authorities would attempt to prosecute anyone under the statute for

  conduct occurring entirely outside of Colorado, in derogation of

  section 18-1-201.

¶ 20   In arguing that the statute violates the dormant Commerce

  Clause because it regulates communications occurring entirely

  outside of Colorado, defendant relies heavily on the Tenth Circuit’s

  decision in American Civil Liberties Union v. Johnson, 194 F.3d 1149




                                     10
(10th Cir. 1999). In Johnson, the court indicated, in dictum,4 that a

New Mexico statute criminalizing the dissemination of sexual

material to minors likely violated the Commerce Clause because it

attempted to regulate activity occurring wholly outside of New

Mexico’s borders. The Tenth Circuit relied on American Libraries

Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997), in which

the court held that a law similar to New Mexico’s violated the

Commerce Clause. But as the California Court of Appeal has

pointed out in refusing to follow American Libraries Association,

where prosecution is by historical practice and by statute limited to

conduct occurring at least partially within a state, there is no

reason to suppose that prosecution for wholly extraterritorial

conduct will occur, and therefore there is no Commerce Clause

violation. Hatch v. Superior Court, 94 Cal. Rptr. 2d 453, 472-73

(Cal. Ct. App. 2000); see also People v. Hsu, 99 Cal. Rptr. 2d 184,

191-92 (Cal. Ct. App. 2000). Thus, defendant’s extraterritorial

effect argument fails.



4 See Am. Civil Liberties Union v. Johnson, 194 F.3d 1149, 1160
(10th Cir. 1999) (“[a]lthough we need not reach [the Commerce
Clause] issue”).
                                  11
¶ 21   Defendant’s argument that the Internet child exploitation

  statute places an undue burden on interstate commerce also fails.5

  Again, defendant relies primarily on American Libraries Association.

  But the court in American Libraries Association pointed out that the

  plaintiffs in that case had not challenged the portion of the statute

  prohibiting “adults from luring children into sexual contact by

  communicating with them via the Internet.” 969 F. Supp. at 179.

¶ 22   In People v. Foley, 731 N.E.2d 123 (N.Y. 2000), the court

  rejected a dormant Commerce Clause challenge to just such a

  luring statute, one which, similar to the statute at issue in this

  case, prohibits a person from using Internet communication to

  “importune[], invite[], or induce[] a minor to . . . engage in a sexual



  5 It does not appear that defendant argues that the Internet child
  exploitation statute discriminates against interstate commerce.
  But, to the extent he intends to assert that the statute
  discriminates against interstate commerce, we reject any such
  notion. Discrimination in this context “means differential treatment
  of in-state and out-of-state economic interests that benefits the
  former and burdens the latter.” Ore. Waste Sys., Inc. v. Dep’t of
  Envtl. Quality, 511 U.S. 93, 99 (1994); see, e.g., Chem. Waste Mgmt.,
  Inc. v. Hunt, 504 U.S. 334, 342 (1992) (Alabama statute that
  imposed a higher fee for disposal of hazardous waste from other
  states than it imposed for disposal of waste from Alabama was
  facially discriminatory). The Internet child exploitation statute
  treats intrastate and interstate communications the same.
                                     12
  performance, obscene sexual performance, or sexual conduct” for

  the benefit of the person. Id. at 127 (emphasis omitted) (quoting

  N.Y. Penal Law § 235.22 (McKinney 2016)). The court reasoned

  that in contrast to the statute at issue in American Libraries

  Association, the statute before it does not discriminate against or

  burden “any legitimate commerce.” Id. at 133. Rather, “it regulates

  the conduct of individuals who intend to use the Internet to

  endanger the welfare of children.” Id. at 132; see also id. at 133

  (activity regulated by the statute “deserves no ‘economic’

  protection”).

¶ 23   In People v. Boles, 280 P.3d 55 (Colo. App. 2011), a division of

  this court applied the Foley court’s reasoning in rejecting a

  defendant’s contention, premised on Johnson, that section 18-3-

  306, C.R.S. 2015 (the Internet child luring statute), violates the

  dormant Commerce Clause. The division held that the Internet

  child luring statute does not discriminate against or unduly burden

  interstate commerce because it only regulates the conduct of

  persons who, through sexually explicit communications sent over

  the Internet, seek to endanger the welfare of children. The “luring”

  requirement of the offense distinguishes it from the statute

                                    13
  addressed in Johnson. Boles, 280 P.3d at 63; see § 18-3-306(1) (the

  actor must persuade or invite the minor to meet the actor for any

  purpose in connection with a communication describing explicit

  sexual conduct). Echoing the Foley court, the Boles division said

  that it could not “ascertain any legitimate commerce that would be

  derived from these communications.” 280 P.3d at 63.

¶ 24   We agree with the reasoning of Foley and Boles and conclude

  that it applies with equal force to the Internet child exploitation

  statute. The statute requires that an actor “importune[], invite[], or

  entice[]” a child to expose or touch his or her or another’s intimate

  parts while communicating with the actor. § 18-3-405.4(1)

  (emphasis added). It — like the statutes at issue in Foley and

  Boles, and unlike the statutes challenged in Johnson and American

  Libraries Association — contains an active element which obviates

  any concern about regulation of legitimate interstate commerce.

  See also Hatch, 94 Cal. Rptr. 2d at 471-72 (distinguishing American

  Libraries Association on the grounds the California statute requires

  proof of intent to seduce).

¶ 25   We also conclude, largely for the reasons articulated above,

  that the benefit of protecting children from sexual exploitation via

                                     14
  the Internet is an important state interest that outweighs any de

  minimis, incidental burden that enforcing the statute could have on

  interstate commerce. See Hsu, 99 Cal. Rptr. 2d at 190-91 (states

  have a compelling interest in protecting minors from sexual harm,

  and it is difficult to conceive of any legitimate commerce that would

  be burdened by penalizing the transmission of harmful sexual

  material to minors in order to seduce them); Boles, 280 P.3d at 62-

  63; Foley, 731 N.E.2d at 133 (“[i]ndeed, the conduct sought to be

  sanctioned by [the Internet statute protecting minors] is of the sort

  that deserves no ‘economic’ protection”); see also Pike v. Bruce

  Church, Inc., 397 U.S. 137, 142 (1970) (if a statute

  nondiscriminatorily regulates to serve a legitimate local interest, it

  does not violate the Commerce Clause unless the burden on

  interstate commerce is “clearly excessive in relation to the putative

  local benefits”).

¶ 26   Lastly, we are not persuaded by defendant’s argument that the

  nature of the Internet dictates that regulation of activity conducted

  thereby be undertaken only at the national level. The Supreme

  Court has never held that a state may not regulate activity that may

  also be carried on in the other states or that is carried on between

                                    15
  itself and other states. And we are persuaded by the court’s

  reasoning in Hatch that “[w]hile it may be true that Internet

  communications routinely pass along interstate lines,” that fact

  cannot “be employed . . . to insulate pedophiles from prosecution

  simply by reason of their usage of modern technology.” 94 Cal.

  Rptr. 2d at 471. Further, as noted, the activity proscribed by the

  statute is not legitimate commerce entitled to the protection of the

  Commerce Clause.

¶ 27   In sum, we conclude that section 18-3-405.4(1)(a) does not

  violate the dormant Commerce Clause

                   3. First Amendment/Overbreadth

¶ 28   We also reject defendant’s contention that the Internet child

  exploitation statute violates the First Amendment because it

  burdens a substantial amount of protected speech and is therefore

  overbroad.6




  6 Defendant argues in a separate section of his opening brief that
  the Internet child exploitation statute violates the First Amendment
  because it is not narrowly tailored to achieve a compelling state
  interest. But that argument is substantively the same as his
  overbreadth argument — that the statute burdens a “substantial
  amount of protected speech.” Thus, we do not address that
                                    16
¶ 29   Generally, a facial challenge to a statute can succeed only if

  the challenger can show that the law is unconstitutional in all of its

  applications. Dallman v. Ritter, 225 P.3d 610, 625 (Colo. 2010).

  However, a showing that a statute is overbroad may be sufficient to

  support a facial challenge asserting that a statute is

  unconstitutional under the First Amendment. Id. A statute is

  unconstitutionally overbroad only if it punishes a substantial

  amount of constitutionally protected speech. Boles, 280 P.3d at 59.

  If a statute meets this description, we must invalidate it unless we

  can supply a limiting construction or partial invalidation that

  narrows the statute’s scope to constitutionally acceptable

  applications. People v. Hickman, 988 P.2d 628, 635 (Colo. 1999).

  “The criterion of ‘substantial overbreadth’ precludes a court from

  invalidating a statute on its face simply because of the possibility,

  however slight, that it might be applied in some unconstitutional

  manner . . . .” People v. Baer, 973 P.2d 1225, 1231 (Colo. 1999).

¶ 30   The substantial overbreadth doctrine applies to constitutional

  challenges to statutes that prohibit “pure speech” as well as



  argument separately. See People v. Graves, 2016 CO 15, ¶ 23 (the
  prohibition against overbreadth derives from the First Amendment).
                                    17
  “conduct plus speech.” Hickman, 988 P.2d at 635. If a statute may

  apply to protected speech, but is not substantially overbroad, then

  whatever overbreadth exists should be resolved on a case-by-case

  basis. Id.

¶ 31   “Sexual expression which is indecent but not obscene is

  protected by the First Amendment . . . .” Sable Commc’ns of Cal.,

  Inc. v. FCC, 492 U.S. 115, 126 (1989). But a state may “regulate

  the content of constitutionally protected speech in order to promote

  a compelling interest if it chooses the least restrictive means to

  further the articulated interest.” Id.

¶ 32   Colorado unquestionably has a compelling interest in

  protecting children from persons who would seek to involve them in

  harmful activity. Courts have held that statutes similar to the

  Internet child exploitation statute further that compelling interest.

  E.g., Hsu, 99 Cal. Rptr. 2d at 194; see also Boles, 280 P.3d at 59

  (the defendant conceded such an interest with respect to the

  Internet child luring statute). And defendant concedes that the

  Internet child exploitation statute serves a compelling interest. So

  the only question remaining is whether the statute is sufficiently

  narrowly tailored. It is.

                                    18
¶ 33   We will assume, without deciding, that the Internet child

  exploitation statute applies to some protected speech. See Boles,

  280 P.3d at 60 (holding that the Internet child luring statute

  applies, on its face, to some protected speech because it is not

  content neutral and arguably applies to conduct that is not

  obscene).7 But defendant fails to show that it punishes a

  substantial amount of constitutionally protected speech. It

  prohibits only a very specific type of communication — enticing a

  child to expose or touch his or her or another’s intimate parts while

  communicating with the actor via a computer, telephone, or data

  network. Like the Internet child luring statute at issue in Boles, the

  Internet child exploitation statute applies to speech attempting to

  influence a child to do something harmful. We are not persuaded


  7 However, we note that the Internet child exploitation statute’s
  prohibition is narrower than that of the statute at issue in Boles,
  and it may prohibit only conduct which is obscene. Compare § 18-
  3-405.4(1)(a), C.R.S. 2015 (prohibiting enticing of a child to touch
  his or her own, or another’s, intimate parts via a proscribed
  network), with § 18-3-306(1), C.R.S. 2015 (prohibiting
  communicating with a child via a proscribed network, describing
  explicit sexual conduct, and, in connection with that description,
  inviting the child to meet for any purpose); see Miller v. California,
  413 U.S. 15, 25 (1973) (states may regulate “[p]atently offensive
  representations or descriptions of ultimate sexual acts” because
  such communications are obscene).
                                    19
  by defendant’s argument that the statute is overbroad because it

  fails to limit culpability for such communications to those made for

  some additional prurient purpose.

¶ 34   Defendant attempts to provide “everyday” examples of

  innocent hypothetical communications which, he says, the Internet

  child exploitation statute could be viewed as criminalizing, such as

  a parent discussing birth control with his child via text message, a

  parent asking his child to change clothes, or an adult asking a

  babysitter to change a child’s diaper. But we are not convinced that

  such communications fall within a common sense understanding of

  the scope of the statute. Moreover, the statute is limited to

  enticements to convince a child to engage in certain activity “while

  communicating with the actor.” The examples proffered by

  defendant would not satisfy that element, and we are unconvinced

  that a substantial amount of protected speech would. See New

  York v. Ferber, 458 U.S. 747, 773 (1982) (a child pornography

  statute was not overbroad because the legitimate reach of the

  statute “dwarfs its arguably impermissible applications”).




                                    20
¶ 35   Further, in the unlikely event any non-exploitative

  communication is prosecuted under the statute, that could be

  handled on a case-by-case basis. See Hickman, 988 P.2d at 635.

¶ 36   Thus, we conclude that the Internet child exploitation statute

  is not overbroad and therefore does not violate the First

  Amendment.

                       4. Due Process/Vagueness

¶ 37   We also reject defendant’s contention that the Internet child

  exploitation statute is vague and thus violates his right to due

  process of law.

¶ 38   Procedural due process requires that laws give fair notice of

  the conduct prohibited and supply adequate standards to prevent

  arbitrary and discriminatory enforcement. People v. Graves, 2016

  CO 15, ¶ 17; Boles, 280 P.3d at 61. A law is void for vagueness if

  its prohibitions are not clearly defined and it may reasonably be

  susceptible of more than one interpretation by a person of common

  intelligence. Graves, ¶ 17. A law is not unconstitutionally vague,

  however, merely because it could have been drafted with greater

  precision; rather, it is unconstitutionally vague only if no

  understandable standard of conduct is specified at all. Id. at ¶ 18.

                                    21
  When assessing a vagueness challenge, we have a duty to construe

  the statute in such a way that satisfies constitutional due process

  requirements if a reasonable and practical construction of the

  statute will achieve such a result. Id. at ¶ 20.

¶ 39   Defendant conclusorily contends that the Internet child

  exploitation statute is vague because it fails to contain a

  requirement of sexual gratification, or exceptions and defenses

  found in other similar statutes, which, he says, encourages

  arbitrary enforcement and gives law enforcement officials too much

  discretion.8

¶ 40   The Internet child exploitation statute has three distinct

  elements: (1) knowingly importuning, inviting, or enticing through

  communication via a computer network or system, telephone

  network, or data network or by text message or instant message; (2)

  a person whom the actor knows or believes to be under fifteen years

  old and at least four years younger than the actor; (3) to expose or

  touch the person’s own or another’s intimate parts while



  8 We need not address defendant’s lack of fair notice contention
  relating to count two because of our disposition regarding the
  sufficiency of the evidence supporting that count.
                                    22
  communicating with the actor via one of the identified systems or

  networks. These elements are clear, and defendant offers no

  specific argument or example explaining how the statute could be

  susceptible of more than one interpretation. We therefore conclude

  that the Internet child exploitation statute provides fair notice of

  what conduct is prohibited; a person of ordinary intelligence would

  understand its reach. See Hsu, 99 Cal. Rptr. 2d at 196-98; Boles,

  280 P.3d at 62; Foley, 731 N.E.2d at 131 (a person of ordinary

  intelligence would reasonably know what the words “importune,”

  “invite,” and “induce” mean and would know what conduct the

  Internet luring statute is meant to prevent).

                      B. “Other Bad Act” Evidence

¶ 41   Defendant contends that the district court erred by admitting

  CRE 404(b) bad act evidence, specifically evidence of his intent to

  fly “Miranda” to Maine to visit him and to have sex with her. He

  also contends that the prosecutor engaged in misconduct by

  referring to this evidence. We conclude that the contested evidence

  was admissible and, thus, no error in its admission or prosecutorial

  misconduct occurred.



                                    23
                             1. Background

¶ 42   At trial, the prosecutor introduced defendant’s recorded

  second phone conversation with Sergeant Hendricks, during which

  defendant said that he was going to buy “Miranda” a plane ticket to

  visit him in Maine and that he would hide her from his wife in a

  hotel. The prosecutor referred to defendant’s statement during his

  opening and closing arguments, saying that defendant was going to

  buy “Miranda” a ticket to Maine, hide her in a hotel room, and have

  sex with her.

¶ 43   At trial, defense counsel argued that defendant did not

  actually believe that “Miranda” was fourteen years old but was an

  adult who was role-playing, and that all of their communications

  were part of the fantasy role-playing.

               2. Standard of Review and Applicable Law

¶ 44   Defendant’s counsel did not object to the admission of the

  second phone call or the prosecutor’s argument referencing

  defendant’s plan for “Miranda” at trial. Thus, defendant’s




                                    24
  contentions are unpreserved and we review them for plain error.

  People v. Wentling, 2015 COA 172, ¶ 26.9

¶ 45   We review a district court’s evidentiary rulings for an abuse of

  discretion. Yusem v. People, 210 P.3d 458, 463 (Colo. 2009); People

  v. Munoz-Casteneda, 2012 COA 109, ¶ 7. A court abuses its

  discretion if its decision is manifestly arbitrary, unreasonable, or

  unfair, or based on a misapprehension of the law. See People v.

  Chavez, 190 P.3d 760, 765 (Colo. App. 2007); see also People v.

  Muniz, 190 P.3d 774, 781 (Colo. App. 2008).

¶ 46   All relevant evidence is admissible unless otherwise prohibited

  by law. CRE 402. “‘Relevant evidence’ means evidence having any

  tendency to make the existence of any fact that is of consequence to

  the determination of the action more probable or less probable than

  it would be without the evidence.” CRE 401.

¶ 47   CRE 404(b) provides:


  9 Although defendant contends that he preserved his objection to
  the admission of the contested evidence by filing a request for
  notice of CRE 404(b) evidence prior to trial, because we conclude
  that this evidence is not CRE 404(b) evidence, any filing relating to
  CRE 404(b) evidence would not apply. Even if it did, we would
  review for plain error due to defendant’s failure to object to the
  admission of the evidence as CRE 404(b) evidence at trial since the
  district court had not ruled on the issue. See CRE 103(a)(2).
                                    25
            Other Crimes, Wrongs, or Acts. Evidence of
            other crimes, wrongs, or acts is not admissible
            to prove the character of a person in order to
            show that he acted in conformity therewith. It
            may, however, be admissible for other
            purposes, such as proof of motive,
            opportunity, intent, preparation, plan,
            knowledge, identity, or absence of mistake or
            accident, provided that upon request by the
            accused, the prosecution in a criminal case
            shall provide reasonable notice in advance of
            trial, or during trial if the court excuses
            pretrial notice on good cause shown, of the
            general nature of any such evidence it intends
            to introduce at trial.

                               3. Analysis

¶ 48   We are not persuaded that defendant’s statement to Sergeant

  Hendricks in their second phone conversation constitutes CRE

  404(b) evidence. It was not a part of an “other” crime or wrong and

  was not admitted as evidence of defendant’s “bad character” as he

  claims. Rather, defendant’s statement directly rebutted his defense

  that he was fantasy role-playing. See, e.g., People v. Griffin, 224

  P.3d 292, 297 (Colo. App. 2009) (the defendant’s notebook entries

  were not CRE 404(b) evidence, but rather were admissible evidence

  relevant to show her state of mind and to rebut her theory of

  defense). Thus, defendant’s statements regarding his intent to meet



                                    26
  “Miranda” were admissible as relevant evidence, and the prosecutor

  did not engage in misconduct by using the evidence against him.

¶ 49   We also are not persuaded that the evidence should have been

  excluded on the grounds that it was overly prejudicial. Evidence is

  not “unfairly prejudicial” merely because it damages the defendant’s

  case. People v. Dist. Court, 785 P.2d 141, 147 (Colo. 1990).

                     C. Sufficiency of the Evidence

¶ 50   Defendant contends that the evidence was insufficient to

  support his convictions. We disagree as to count one, but we agree

  as to count two and reverse that conviction.

                         1. Standard of Review

¶ 51   We review the record de novo to determine whether the

  evidence before the jury was sufficient in both quantity and quality

  to sustain the defendant’s conviction. Clark v. People, 232 P.3d

  1287, 1291 (Colo. 2010). To make this determination, we employ

  the substantial evidence test. Id. We consider whether any rational

  trier of fact might accept the evidence, taken as a whole and in the

  light most favorable to the prosecution, as sufficient to support a

  finding of the defendant’s guilt beyond a reasonable doubt. People

  v. Sprouse, 983 P.2d 771, 777 (Colo. 1999). We must give the

                                    27
  prosecution the benefit of every reasonable inference that may be

  fairly drawn from the evidence. Dempsey v. People, 117 P.3d 800,

  807 (Colo. 2005); People v. Padilla, 113 P.3d 1260, 1261 (Colo. App.

  2005).

                              2. Count One

¶ 52   Defendant contends that his conviction for count one is not

  supported by sufficient evidence because the jury was instructed

  that he must have committed the crime in Colorado to be guilty of

  child exploitation.10 “This argument fails because the sufficiency of

  evidence is measured ‘against the elements of the offense, not

  against the jury instructions.’” People v. Vigil, 251 P.3d 442, 447

  (Colo. App. 2010) (quoting in part United States v. Bomski, 125 F.3d

  1115, 1118 (7th Cir. 1997)); see also United States v. Morton, 412

  F.3d 901, 904 (8th Cir. 2005) (whether the jury was properly

  instructed does not affect a review for sufficiency of the evidence).

  The child exploitation statute does not require that the actor be in

  Colorado at the time of the criminal communication; thus, we reject


  10Defendant also makes this argument as to count two, but
  because of our disposition on the sufficiency of the evidence for
  count two we only address this argument in relation to count one.


                                    28
  defendant’s contention that the evidence is insufficient to support

  the conviction for count one.11

                              3. Count Two

¶ 53   Defendant’s conviction for count two is based on his second

  interaction with “Miranda” (via instant messaging), during which he

  asked her to send the pictures that he thought she had taken of

  herself and “Lizzie” during their first conversation four days earlier.

  It is undisputed that during his second conversation with

  “Miranda,” defendant did not ask her to expose or touch her own or

  another person’s intimate parts, an essential element of the offense.

  § 18-3-405.4(1)(a). A request to send a picture taken previously is

  not equivalent to such conduct. And asking a child to send a

  photograph showing such conduct would not constitute an attempt

  to persuade the child to engage in such conduct “while

  communicating” with the actor, another essential element of the

  offense. Id. Thus, we conclude that defendant’s conviction for

  count two cannot be sustained by the evidence presented at trial.




  11Defendant does not contend that the evidence failed to establish
  the statutory elements of the offense.
                                    29
                                D. Mistrial

¶ 54   Defendant contends that the district court erred by denying

  his motion for a mistrial after a witness testified about an

  inadmissible matter. We conclude that the district court did not

  abuse its discretion.

                             1. Background

¶ 55   Defendant told Sergeant Hendricks that he had been

  investigated for sexual assault of a child twenty-five years earlier.

  Before trial, the prosecution told the court that it would not

  introduce evidence of the prior investigation because it would be

  unfairly prejudicial.

¶ 56   During defense counsel’s cross-examination of Sergeant

  Hendricks at trial, the following exchange occurred after a

  discussion of Sergeant Hendricks’s similar investigations:

             Defense Counsel: In this particular case you
             haven’t come across any real victims in this
             time period.

             Sergeant Hendricks: Any real victims of
             [defendant]?

             Defense Counsel: Correct.

             Sergeant Hendricks: Actually during one of the
             interviews he admitted to me that he did have

                                    30
            a sex assault on a child, twenty to twenty-five
            years ago that (inaudible)

            Defense Counsel: I’m talking in this time
            period – was my question.

            Sergeant Hendricks: I’m sorry. In your time
            period?

            Defense Counsel: This time period, yeah. You
            talked to him February of 2013.

            Sergeant Hendricks: So, are you asking me if
            he had contact with any other children –

            Defense Counsel: Was he contacting –

            Sergeant Hendricks: At that exact same time –

            Defense Counsel: Other children in February
            of 2013?

            Sergeant Hendricks: Oh, based on his Yahoo
            emails and friends list, I did not find any other
            children.

¶ 57   After the conclusion of Sergeant Hendricks’s testimony,

  defense counsel requested a mistrial because Sergeant Hendricks

  had testified to defendant’s prior bad act. The district court noted

  that the evidence should have been excluded, and offered to give the

  jury a curative instruction, but denied the motion for a mistrial.

  Defense counsel declined the court’s offer of a curative instruction.



                                    31
                2. Standard of Review and Applicable Law

¶ 58   Because defendant preserved this issue by moving for a

  mistrial, we review for nonconstitutional harmless error. Under

  that standard, we reverse only if there was an error that had a

  substantial and injurious effect or influence in determining the

  jury’s verdict. Krutsinger v. People, 219 P.3d 1054, 1058 (Colo.

  2009); People v. Wilson, 2013 COA 75, ¶ 24 (“An error is harmless if

  a reviewing court can say with fair assurance that, in light of the

  entire record, the error did not substantially influence the verdict or

  impair the fairness of the trial.”).

¶ 59   We review a district court’s decision to deny a motion for a

  mistrial for an abuse of discretion. People v. Marko, 2015 COA 139,

  ¶ 29. A mistrial is a drastic remedy, and we will not disturb the

  district court’s decision absent a showing of a gross abuse of that

  discretion and prejudice to the moving party. People v. Abbott, 690

  P.2d 1263, 1269 (Colo. 1984). A mistrial is warranted only where

  the prejudice caused cannot be remedied by other means. Id.

                                 3. Analysis

¶ 60   In denying defendant’s counsel’s request for a mistrial, the

  district court characterized the context of the question as “very

                                         32
  ambiguous” and the officer’s response as responsive to the

  question. We cannot say that the district court, with its superior

  opportunity to consider the issue, abused its discretion in so

  characterizing the question and answer. Further, defendant does

  not point to anything in the record indicating that Sergeant

  Hendricks was purposefully trying to include defendant’s prior bad

  act in his testimony. Rather, it appears he was simply answering

  counsel’s question as he understood it. Also, it was defense

  counsel, not the prosecutor, who elicited Sergeant Hendricks’s

  statement. Defense counsel quickly clarified his question, got the

  answer he wanted, and moved on.

¶ 61   Given the weight of the admissible evidence against defendant,

  it is unlikely that the admission of this evidence was overly

  prejudicial to defendant such that it substantially affected the

  verdict. Further, the court offered defendant a curative instruction

  to cure any prejudice that could have arisen. Under these

  circumstances, although the evidence of defendant’s prior

  investigation for sexual assault on a child was potentially

  prejudicial, we perceive no abuse of discretion in the district court’s

  decision to deny the request for a mistrial. See People v. Krueger,

                                    33
  2012 COA 80, ¶ 72 (district court did not abuse its discretion by

  denying the defendant’s motion for a mistrial based on a witness

  testifying to inadmissible evidence where the witness’s reference to

  the inadmissible matter was brief and the court offered to give a

  curative instruction, which defense counsel declined); People v.

  Tillery, 231 P.3d 36, 43-44 (Colo. App. 2009) (district court’s denial

  of mistrial was not an abuse of discretion where reference to

  inadmissible evidence was brief, unembellished, promptly

  suppressed, not repeated again before the jury, and the court gave

  a curative instruction), aff’d sub nom. People v. Simon, 266 P.3d

  1099 (Colo. 2011); People v. Shreck, 107 P.3d 1048, 1060 (Colo.

  App. 2004) (a mistrial for a witness’s reference to inadmissible

  evidence was not warranted where the reference was brief and the

  district court offered a curative instruction).

                         E. Probation Revocation

¶ 62   Lastly, defendant contends that the district court’s revocation

  of his probation must be reversed because the district court did not

  adhere to the applicable statutory requirements. We agree.




                                     34
                         1. Standard of Review

¶ 63   Because defendant did not preserve his contention, we review

  it for plain error. Hagos, ¶ 14. To determine whether the district

  court erred, we must construe the requirements of sections 16-11-

  206(1), (2) and 18-1.3-1010(2)(a), (b), C.R.S. 2015, which we do de

  novo. Romero v. People, 179 P.3d 984, 986 (Colo. 2007).

                          2. Section 16-11-206

¶ 64   Section 16-11-206(1), (2) provides:

            (1) At the first appearance of the probationer in
            court or at the commencement of the hearing,
            whichever is first in time, the court shall
            advise the probationer as provided in section
            16-7-206 insofar as such matters are
            applicable; except that there shall be no right
            to a trial by jury in proceedings for revocation
            of probation.

            (2) At or prior to the commencement of the
            hearing, the court shall advise the probationer
            of the charges against him and the possible
            penalties therefor and shall require the
            probationer to plead guilty or not guilty.

¶ 65   The People filed a probation violation complaint against

  defendant because he allegedly failed to register as a sex offender.

  At the initial court date on defendant’s probation revocation,

  defense counsel said that he had “gone over” defendant’s rights with


                                    35
  defendant and that defendant wanted a hearing on his probation

  revocation. The district court did not advise defendant of the

  charges against him and possible penalties he could face. At no

  point did defendant expressly waive his right to an advisement.

¶ 66   Contrary to the People’s assertion, defense counsel’s brief,

  vague statement that he had “gone over” defendant’s rights at the

  initial court date three months earlier is not sufficient to establish

  that defendant waived his right to be advised by the court through

  counsel, or that he was advised of potential penalties before the

  hearing. Cf. Finney v. People, 2014 CO 38, ¶¶ 18-19 (advisements

  before a hearing were sufficient to satisfy the advisement

  requirement where the defendant was advised of the potential

  penalties six separate times before the hearing); see Craig v. People,

  986 P.2d 951, 964 (Colo. 1999) (an advisement is sufficient if the

  record as a whole shows that the defendant was given sufficient

  notice of the possible penalties associated with a guilty plea). Thus,

  the district court failed to adhere to section 16-11-206(2).

¶ 67   We conclude that the district court’s error is plain because the

  statutory requirements were known to the court, and the failure to

  advise defendant of the possible penalties substantially undermines

                                     36
  our confidence in the fairness of the probation proceeding. See

  People v. Pollard, 2013 COA 31M, ¶ 40 (an error is obvious if it

  contravenes a clear statutory command).

                        3. Section 18-1.3-1010

¶ 68   Section 18-1.3-1010(2)(a), (b) provides:

            (a) A sex offender sentenced to probation
            pursuant to section 18-1.3-1004(2) is subject
            to arrest and revocation of probation as
            provided in sections 16-11-205 and 16-11-
            206, C.R.S. At any revocation proceeding, the
            sex offender’s probation officer and the sex
            offender’s treatment provider shall submit
            recommendations concerning the level of
            treatment and monitoring that should be
            imposed as a condition of probation if
            probation is not revoked or whether the sex
            offender poses a sufficient threat to the
            community that probation should be revoked.
            The recommendations shall be based on the
            criteria established by the management board
            pursuant to section 18-1.3-1009. If the court
            revokes the sex offender’s probation, the court
            shall sentence the sex offender as provided
            in section 18-1.3-1004, and the sex offender
            shall be subject to the provisions of this part
            10.

            (b) At a revocation hearing held pursuant to
            this subsection (2), the court shall consider the
            recommendations of the probation officer and
            the treatment provider, in addition to evidence
            concerning any of the grounds for revocation of
            probation specified in sections 16-11-205 and
            16-11-206, C.R.S. If the court chooses not to

                                   37
             follow the recommendations made, it shall
             make findings on the record in support of its
             decision.

¶ 69   The People concede that the district court revoked defendant’s

  probation without obtaining and considering treatment and

  monitoring recommendations from defendant’s probation officer or

  treatment provider as required by section 18-1.3-1010(2)(a), (b).

  Because a court is deemed to know these statutory requirements,

  the district court plainly erred by not adhering to section 18-1.3-

  1010(2)(a), (b). See Pollard, ¶ 40.

¶ 70   The error was substantial. The statute requires that new

  reports be written, that the district court consider them, and that

  the district court make findings on the record to support its

  decision if it departs from the recommendations in the reports.

  § 18-1.3-1010(2)(a), (b). None of that occurred. Contrary to the

  People’s assertion, the fact that defendant’s probation was revoked

  soon after his probation officer and treatment provider had provided

  reports for his initial sentencing does not render the error

  insubstantial. And in any event, there is no indication in the record

  that the district court considered the earlier reports when revoking

  defendant’s probation.

                                    38
¶ 71   Therefore, we reverse the district court’s revocation of

  defendant’s probation.

                             III. Conclusion

¶ 72   Defendant’s conviction for count two is reversed, and the case

  is remanded to the district court to dismiss that count with

  prejudice. The judgment is reversed as to the revocation of

  defendant’s probation, and the case is remanded for further

  proceedings on the probation revocation complaint. The judgment

  is otherwise affirmed.

       JUDGE LICHTENSTEIN and JUDGE DUNN concur.




                                    39
