Peo v. Burnett

23CA1119 Peo v Burnett 05-22-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1119
El Paso County District Court No. 22CR2960
Honorable David Shakes, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Walter Clyde Burnett,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division A
Opinion by JUDGE SCHOCK
Dunn and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 22, 2025

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John P. Finnegan, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Walter Clyde Burnett, appeals his convictions on

two counts of sexual exploitation of a child. He contends that

(1) the evidence was insufficient to support one of his convictions;

(2) the search warrant for his home lacked sufficient particularity;

(3) the jury instruction on reasonable doubt impermissibly lowered

the prosecution’s burden of proof; and (4) the district court erred by

admitting improper lay opinion testimony. Alternatively, he argues

that his two convictions should merge. We affirm the judgment.

I. Background

¶2 While filling paper in a Walgreens photo printer, a store

employee noticed two photos — an identification card and an “adult

picture[] of a woman” — that violated store policy. The photos had

been submitted online by Burnett for printing by the store’s photo

department. The employee gave the photos to the store manager,

who then reviewed other photos Burnett had ordered and

discovered what she believed to be nude photos of children. The

store manager contacted police and gave them the photos.

¶3 Several days later, Burnett placed another order that included

nude photos of “young girls.” The store manager again gave the

1
photos to law enforcement. Burnett came to the store that day to

retrieve the photos, but the store manager did not give them to him.

¶4 Law enforcement then searched Burnett’s home pursuant to a

search warrant. During the search, police found several other

photos that appeared to depict nude children, as well as other nude

photos of individuals who could have been adults. Police seized and

searched Burnett’s phone, which contained some of the photos that

had been discovered during the search of his home, as well as

information indicating that Burnett had used the Walgreens online

photo processing service. Burnett told police he had printed photos

at Walgreens and admitted to downloading nude pictures of women

but claimed the women were over the age of eighteen.

¶5 Burnett was charged with two counts of sexual exploitation of

a child — one under section 18-6-403(3)(b), C.R.S. 2024, and one

under section 18-6-403(3)(b.5). The date range for both counts ran

from two days before the discovery of the first Walgreens order

through the search of Burnett’s home. The prosecution argued at

trial that the first count was based on Burnett transferring or

making photos accessible to another person, while the second was

based on his possession of the photos. Burnett’s primary defense

2
was that he reasonably believed the individuals in the photos were

at least eighteen years old. See § 18-1-503.5(1), C.R.S. 2024.

¶6 The jury convicted Burnett on both charges, and the district

court sentenced him to five years of sex offender intensive

supervised probation and ninety days in jail.

II. Sufficiency of the Evidence

¶7 Burnett contends that the evidence was insufficient to support

his conviction under section 18-6-403(3)(b) because, by sending the

photos to Walgreens to be printed, he did not knowingly transfer

them or make them accessible to another person. We disagree.

A. Standard of Review and Applicable Law

¶8 In reviewing the sufficiency of the evidence, we review the

record de novo to determine whether the evidence was sufficient

both in quantity and quality to sustain the conviction. Johnson v.

People, 2023 CO 7, ¶ 13. In doing so, we view the evidence “as a

whole and in the light most favorable to the prosecution” to

determine if the evidence is “substantial and sufficient to support a

conclusion by a reasonable mind that the defendant is guilty of the

charge beyond a reasonable doubt.” Id. (citation omitted).

3
¶9 When a challenge to the sufficiency of the evidence depends on

statutory interpretation, we interpret the statute de novo. People v.

Vidauri, 2021 CO 25, ¶ 11. We begin with the language of the

statute, giving words and phrases their “plain and ordinary

meanings” and reading them in context “according to the rules of

grammar and common usage.” McCoy v. People, 2019 CO 44, ¶ 37.

¶ 10 As relevant in this case, a person commits sexual exploitation

of a child if the person knowingly “transfers to another person, or

makes accessible to another person, including, but not limited to,

through digital or electronic means, any sexually exploitative

material.” § 18-6-403(3)(b). This subsection of the statute is

intended to “reach any use of sexually explicit material beyond mere

possession or control that impacts or involves ‘the channels of trade

and commerce.’” People v. Robles-Sierra, 2018 COA 28, ¶ 39.

B. Analysis

¶ 11 For purposes of his sufficiency challenge, Burnett does not

dispute that the photos he sent to Walgreens included sexually

exploitative material. But he argues that the evidence was

insufficient to prove that he transferred or made those photos

accessible to another person. Because we conclude that the

4
evidence was sufficient to prove Burnett made the photos accessible

to another person, we need not decide whether the evidence was

also sufficient to prove he transferred them. See People v. Rowe,

2012 COA 90, ¶ 23 (declining to address other theories of liability

where evidence was sufficient to support one of them); People v.

Meils, 2019 COA 180, ¶ 43 (holding that section 18-6-403(3)

“prescribes alternative ways of committing the same offense”).1

¶ 12 The statute does not define “makes accessible.” But the plain

and ordinary meaning of “accessible” is “capable of being reached”

or “capable of being used or seen.” Merriam-Webster Dictionary,

https://perma.cc/Z9J5-5NCC; see also Griego v. People, 19 P.3d 1,

9 (Colo. 2001) (looking to dictionary definitions to determine

ordinary meaning). And to “make” is “to cause to happen to or be

experienced by someone” or “to cause to exist, occur, or appear.”

Merriam-Webster Dictionary, https://perma.cc/8ZM5-Q75H.

1 Burnett argues for the first time in his reply brief that his

conviction must be reversed if the evidence was insufficient as to
any one of the means listed in section 18-6-403(3)(b), C.R.S. 2024.
We do not address arguments raised for the first time in a reply
brief. People v. Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990),
abrogated on other grounds by Rojas v. People, 2022 CO 8. We note,
however, that this is not a case involving a “legally inadequate basis
of liability.” People v. Mantos, 250 P.3d 586, 591 (Colo. App. 2009).

5
Thus, read in context, the phrase “makes accessible” means to

cause something to be capable of being reached, used, or seen.

¶ 13 The evidence was sufficient to support the conclusion beyond

a reasonable doubt that, by sending the photos to Walgreens to be

printed, Burnett knowingly caused those photos to be capable of

being seen, at a minimum, by Walgreens employees. The store

manager testified that online photo orders are printed from the

main computer in the photo department. There was also evidence

indicating that the printed photos were then placed in an envelope

for pickup by the customer. Even if the printing process itself was

automated, these circumstances support an inference that Burnett

knew that someone would be handling the order and, thus, that the

photos were at least capable of being seen by a Walgreens employee.

¶ 14 Burnett argues that interpreting “makes accessible” in this

manner would make it indistinguishable from possession — a lesser

class of sexual exploitation of a child. See § 18-6-403(3)(b.5), (5)(b).

But by sending the photos to a third-party printing service, Burnett

made those photos accessible to others in a way that his own

possession did not. We disagree with Burnett’s suggestion that

photos in one’s personal possession are “capable of being reached”

6
simply because a third party could go to the person’s home and see

them. Rather, subsection (3)(b) is intended to reach conduct

beyond mere possession or control, including conduct that affects

the channels of trade and commerce. Robles-Sierra, ¶ 39; see also

§ 18-6-403(1). The submission of photos to a public business for

printing constitutes such additional conduct.

¶ 15 Burnett also asserts that, even if the photos were accessible to

Walgreens employees, he did not act knowingly because it was not

practically certain the photos would be seen, given the automated

nature of the printing process. See § 18-1-501(6), C.R.S. 2024 (“A

person acts ‘knowingly’ . . . when he is aware that his conduct is

practically certain to cause the result.”). But this argument

misunderstands what must be done knowingly. Burnett did not

need to knowingly cause the photos to be seen; he needed to

knowingly cause the photos to be capable of being seen. And a jury

could reasonably conclude beyond a reasonable doubt that Burnett

was aware his submission of the photos to Walgreens was

practically certain to make those photos capable of being seen — if

nothing else, by the employee who prepared them for pickup.

7
¶ 16 We therefore conclude that the evidence was sufficient to

sustain Burnett’s conviction under section 18-6-403(3)(b).

III. Search Warrant

¶ 17 Burnett next argues that the district court erred by failing to

suppress evidence derived from the search of his home because the

search warrant was not sufficiently particular. We again disagree.

A. Additional Background

¶ 18 Based on the photos Burnett sent to Walgreens for printing,

police obtained and executed a search warrant for Burnett’s home.

The warrant identified the items to be searched for and, if found

seized, by reference to an attachment that it incorporated.

¶ 19 The attachment described those items as property

within [Burnett’s residence or property] . . .
that is or has been used as a means of
committing a criminal offense, is illegal to
possess, or would be material evidence in a
subsequent criminal prosecution, in violation
of Colorado Revised Statutes 18-6-403 titled
Sexual Exploitation of a Child and 18-3-405[,
C.R.S. 2024,] Sexual Assault on a Child.

It then listed sixteen categories of items. As relevant here, those

categories included “[i]tems of indicia”; “[e]vidence related to the

ownership, control, or use of the computer/device system, media,

8
files, programs, and Internet service provider accounts”; and

“[i]tems that would establish ownership or use of

computers/devices and ownership or use of any Internet service

accounts accessed to obtain child pornography.”

¶ 20 Burnett moved to suppress all evidence derived from the

search of his home on the grounds that the warrant was overbroad

and lacked probable cause. At the motion hearing, Burnett

asserted that the warrant “lists . . . a large amount of things to be

seized at the house including . . . information regarding computer

device storage systems . . . that [are] far outside the scope of what

law enforcement should be able to apply for a warrant for.”

¶ 21 The district court denied the motion, concluding that the

warrant was supported by probable cause and not overbroad.

B. Applicable Law and Standard of Review

¶ 22 The Fourth Amendment requires search warrants to

“particularly describ[e] the place to be searched, and the persons or

things to be seized.” U.S. Const. amend. IV; see also Colo. Const.

art. II, § 7 (requiring warrant to “describ[e] the place to be searched,

or the person or thing to be seized, as near as may be”).

9
¶ 23 This requirement ensures that a government search is

“confined in scope to particularly described evidence relating to a

specific crime for which there is demonstrated probable cause.”

People v. Seymour, 2023 CO 53, ¶ 44 (citation omitted). A warrant

is “adequately particularized as to the ‘things to be seized’ when it

allows an executing officer to ‘reasonably ascertain and identify the

things authorized to be seized.’” Id. at ¶ 50 (citation omitted).

¶ 24 We review de novo whether a search warrant satisfies the

particularity requirement. Pettigrew v. People, 2022 CO 2, ¶ 49.

C. Analysis

¶ 25 Burnett argues that certain categories of items listed in the

warrant were too broad or vague to provide the requisite

particularity. He points to two categories in particular — “items of

indicia” and “evidence related to the ownership, control, or use of

the computer/device system” — and asserts that these categories

effectively authorized the seizure of all items in his home.

¶ 26 We first address the People’s argument that Burnett failed to

preserve this argument. The focus of Burnett’s motion to suppress

was that the warrant lacked probable cause. Although he expanded

his argument somewhat at the suppression hearing by challenging

10
the breadth of the items listed in the warrant, he did so generally

and did not specifically challenge the categories he does on appeal.

In other words, Burnett argued that officers should not have been

able to search for certain items at all rather than that the warrant

did not sufficiently describe those items. Nevertheless, though a

close call, we conclude that Burnett’s assertion that the list of items

in the warrant was overbroad was sufficient to alert the district

court to the particularity issue Burnett raises on appeal. See

People v. Pahl, 169 P.3d 169, 183 (Colo. App. 2006).

¶ 27 Turning to the merits of Burnett’s argument, if the challenged

categories stood alone, he would have a point. But they do not

stand alone. Instead, all the categories listed in the warrant are

confined by the overarching limitation that the items must relate to

the crimes of sexual exploitation of a child or sexual assault on a

child. Thus, read in context, the phrases in question authorized

officers to search for (1) “items of indicia” of sexual exploitation or

sexual assault of a child; and (2) “evidence related to the ownership,

control, or use of [a] computer” used to commit, or containing

evidence of, sexual exploitation or sexual assault of a child. See

People v. Roccaforte, 919 P.2d 799, 804 (Colo. 1996) (requiring

11
courts to read warrants “in a practical, common sense fashion”). By

limiting the search to items related to “specific crime[s] for which

there [was] demonstrated probable cause,” the warrant provided the

requisite particularity. Seymour, ¶ 44 (citation omitted); see also

United States v. Suggs, 998 F.3d 1125, 1134 (10th Cir. 2021) (“[A]

warrant may satisfy the particularity requirement if its text

constrains the search to evidence of a specific crime . . . .”).

¶ 28 Burnett attempts to liken this case to People v. Herrera, 2015

CO 60, in which the supreme court held that a cell phone warrant

did not authorize a search of all data contained on the phone. But

the problem in Herrera was not the warrant. Id. at ¶ 25 (noting that

initial search was legitimate). It was the People’s interpretation of

the warrant to authorize a search that was not limited to the

particular alleged crime. Id. at ¶ 20. In contrast, the warrant in

this case was expressly limited to evidence of specific crimes, and

Burnett does not argue that law enforcement exceeded its scope.

¶ 29 Burnett also argues that the crime-based limitation is

“meaningless” because officers could not determine if items were

related to that crime without going through Burnett’s effects in the

first place. That may be true, but it does not make the warrant

12
insufficiently particular. In executing a search warrant, officers

may search any area in which the items identified in the warrant

might reasonably be found. Id. at ¶ 31. And unless they know

exactly where those items are kept, they will need to look for

them — including in places it turns out they are not. See United

States v. Bishop, 910 F.3d 335, 336-37 (7th Cir. 2018) (“A warrant

authorizing a search of a house for drugs permits the police to

search everywhere in the house, because ‘everywhere’ is where the

contraband may be hidden.”). But as long as the warrant describes

the items that officers are authorized to search for and seize with as

much particularity as the circumstances allow, that is all the

Constitution requires. See Seymour, ¶ 52; Bishop, 910 F.3d at 337

(“It is enough . . . if the warrant cabins the things being looked for

by stating what crime is under investigation.”).

¶ 30 Because the warrant in this case particularly described the

things to be seized by reference to the crimes under investigation,

the district court did not err by denying the motion to suppress.

IV. Reasonable Doubt Instruction

¶ 31 Burnett next contends that the district court erred by giving

the then-in-effect Colorado model jury instruction on reasonable

13
doubt, which Burnett argues lowered the prosecution’s burden of

proof, shifted the burden of proof to him, and undermined the

presumption of innocence. See Tibbels v. People, 2022 CO 1, ¶ 22

(“Instructions that lower the prosecution’s burden of proof below

the reasonable doubt standard constitute structural error . . . .”).

Specifically, he challenges (1) the failure to instruct the jury that

reasonable doubt may arise from the “lack of evidence” and (2) the

direction that the prosecution has failed to meet its burden “if you

think there is a real possibility that the defendant is not guilty.”

¶ 32 A division of this court recently rejected each of Burnett’s

arguments. People v. Schlehuber, 2025 COA 50, ¶¶ 18-25, 29-34

(holding that 2022 model jury instruction on reasonable doubt

correctly describes the burden of proof); see also People v. Melara,

2025 COA 48, ¶¶ 24, 32 (holding that omission of “lack of evidence”

language was not structural error). We agree with Schlehuber.

¶ 33 Although Colorado courts have approved of reasonable doubt

instructions that refer expressly to the “lack of evidence,” see People

v. Robb, 215 P.3d 1253, 1262 (Colo. App. 2009), “that does not

mean . . . it is error not to include that phrase,” Schlehuber, ¶ 24.

To the contrary, “the concept of reasonable doubt inherently invites

14
jurors to consider what evidence is missing.” Id. at ¶ 21. And read

as a whole, the instruction properly informs the jury that “if the

prosecution fails to present sufficient evidence of guilt, it will not

have met its burden.” Id. at ¶ 22. Thus, there is no reasonable

likelihood that the jury understood the omission of an express

reference to the “lack of evidence” to lower the prosecution’s burden

of proof below the reasonable doubt standard. Id. at ¶ 25.

¶ 34 The district court also did not err by equating reasonable

doubt with a “real possibility that the defendant is not guilty.” See

id. at ¶¶ 29-34. This formulation — which has been consistently

approved by federal courts — “correctly directs the jury not to

acquit the defendant simply because it can conceive of some

fanciful possibility that the defendant is not guilty.” Id. at ¶¶ 30-31.

Juxtaposed against the instruction that proof beyond a reasonable

doubt is proof that leaves the jury “firmly convinced” of the

defendant’s guilt, the “real possibility” phrase “give[s] the jury a

complete picture of the reasonable doubt standard.” Id. at ¶ 33.

And it does not shift the burden of proof to the defendant because

“[n]othing in that phrase suggests that the defendant must be ‘the

source of the “real possibility.”’” Id. at ¶ 34 (citation omitted).

15
¶ 35 We therefore conclude, consistent with Schlehuber, that the

district court did not lower the prosecution’s burden of proof or

otherwise err by giving the model jury instruction then in effect.

V. Lay Opinion Testimony

¶ 36 Burnett’s final challenge to his convictions is that the district

court reversibly erred by (1) allowing multiple witnesses to offer lay

opinion that the individuals in the photos were under eighteen

years old and (2) allowing the lead detective to answer a jury

question about the number of “sexually exploitative images” found

at Burnett’s home. We conclude that any error was harmless.

A. Additional Background

¶ 37 Four witnesses testified at trial that the individuals in the

photos appeared to be under the age of eighteen:

• The store manager testified that the first set of photos

concerned her because “[t]here [were] children” and that

the second set of photos included “young girls.” She also

testified that she called police after seeing the first set of

photos because she saw “young girls . . . being abused.”

• The patrol officer who initially responded to the store

manager’s call testified that the females in some of the

16
photos he observed “looked, on their appearance, to be

underage; under the age of 18.”

• A detective testified that she believed the person in two of

the photos was under eighteen years old. She testified

that two other photos were “age difficult,” in that the

person’s “face is very young, but her body shows that it

might be older than 18.”

• The lead detective (now a sergeant) testified that,

although police cannot identify a person’s specific age,

they “can say it’s under the age of 18, and with good

estimation,” provide an age range. He testified that he

believed one photo “depicts somebody who’s a juvenile”

because “the development of the child in that photo is . . .

almost prepubescent, kind of younger of age.”

¶ 38 Defense counsel objected to all this testimony on the ground

that age was an issue for the jury to determine. The district court

overruled each objection, often without explanation but twice

reasoning that the testimony was “proper” or “helpful” lay opinion.

¶ 39 After the lead detective’s testimony, a juror posed a question to

him: “How many sexually exploitative images were determined to be

17
found at Burnett’s residence in total?” Burnett objected under CRE

403 and CRE 404(b), arguing that the question called for

speculation, was prejudicial, and could elicit testimony about other

uncharged bad acts. The district court overruled the objections and

asked the detective the question. The detective responded:

I do not recall the specific totals. Some of the
images that were brought up were not our
main focus. We were more concerned with the
juvenile photos.

So I think there w[ere] under 10 photos, at
that point in time.

B. Applicable Law and Standard of Review

¶ 40 Lay opinion testimony — the opinion of a non-expert

witness — must be (1) rationally based on the witness’s perception;

(2) helpful to a clear understanding of the witness’s testimony or the

determination of a fact in issue; and (3) not based on scientific,

technical, or other specialized knowledge within the scope of CRE

702. CRE 701. Such testimony is admissible when it “describe[s]

something that the jurors could not otherwise experience for

themselves by drawing upon the witness’s sensory and experiential

observations that were made as a firsthand witness to a particular

event.” People v. McFee, 2016 COA 97, ¶ 76 (citation omitted).

18
¶ 41 But a witness “may not form conclusions for jurors that they

are competent to reach on their own.” Id. Thus, lay opinion

testimony is not helpful to the jury when it is “based on exactly the

same information the jury had.” Id. Nor may a witness testify that

“a particular legal standard has or has not been met.” People v.

Beilke, 232 P.3d 146, 152 (Colo. App. 2009); see also People v.

Collins, 730 P.2d 293, 306 (Colo. 1986) (explaining that lay opinion

testimony may not “merely tell the jury what result to reach”).

¶ 42 We review the district court’s evidentiary rulings, including the

admission of lay opinion testimony, for an abuse of discretion.

People v. Vergari, 2022 COA 95, ¶ 16. A court abuses its discretion

when “its decision is manifestly arbitrary, unreasonable, or unfair,

or based on a misapplication or misunderstanding of the law.” Id.

¶ 43 We review preserved evidentiary error for harmless error and

will reverse only if it “substantially influenced the verdict or affected

the fairness of the trial proceedings.” Id. at ¶ 17 (citation omitted).

An error is harmless if “there is no reasonable possibility that it

contributed to the defendant’s conviction.” Id. (citation omitted).

19
C. Ages of Individuals in Photos

¶ 44 We agree that the witnesses’ testimony regarding the ages of

the individuals in the photos — none of which was presented as

expert opinion — was not helpful to the jury in determining the

actual ages of those individuals. That testimony was based entirely

on the witnesses’ review of the photos. Because the jury also had

those photos, it was “in precisely the same position” as the

witnesses to review the photos and determine whether the

individuals were less than eighteen years old. McFee, ¶ 76.

¶ 45 But the testimony could have been helpful for another

purpose: assessing Burnett’s affirmative defense that he reasonably

believed the children to be eighteen years of age or older. See § 18-

1-503.5(1). A juror’s own personal determination that an individual

in a photo appeared to be a child would not necessarily answer

whether a person could reasonably believe otherwise. That four

witnesses had seen the photos and agreed they depicted children

could inform the jury’s determination of that issue. See Collins, 730

P.2d at 307 (holding that witness’s opinion that there was no

20
necessity to use a deadly weapon was helpful in determining what a

reasonable person would have believed under the circumstances).2

¶ 46 But even assuming the district court erred by admitting the

testimony, any error was harmless because the jury saw the photos

and could make its own determination as to whether the individuals

in those photos were under eighteen. See McFee, ¶ 78; Vergari,

¶ 20. Although three of the witnesses were police officers, they did

not claim that their opinions as to the individual’s ages were based

on any special expertise or knowledge; they simply looked at the

photos and thought the people in them looked like children. The

jury therefore had “no reason to accept [the witnesses’] opinion”

when it could “evaluate [the photos] for itself.” McFee, ¶ 79.

¶ 47 Indeed, in closing argument, both the prosecution and defense

counsel repeatedly urged the jury to do just that. The prosecution

explained that the witnesses had given their opinions “just as lay

people who live in this world and have life experience,” and it told

2 The store manager’s testimony that she saw photos of “children”

and “young girls” was also helpful to explain why she called police.
See United States v. Stanley, 896 F.2d 450, 452 (10th Cir. 1990)
(holding that postal inspector’s testimony that photos depicted
children was helpful to explain his investigative actions).

21
the jury to “make those determinations [itself].” See Vergari, ¶ 20

(holding that error was harmless when court instructed jury to view

the videos and draw its own conclusions). Defense counsel likewise

emphasized that none of the witnesses had any medical training

and that the jury needed to determine how old the individuals

looked. Under these circumstances, there is no reasonable

probability that the jury uncritically accepted the witnesses’

opinions rather than forming its own conclusions. See id.

D. Number of Sexually Exploitative Images

¶ 48 Burnett also argues that the district court erred by allowing

the lead detective to answer the jury question regarding the number

of “sexually exploitative images” found in Burnett’s home.

¶ 49 Although Burnett asserts that this testimony was improper lay

opinion under CRE 701, he did not preserve that objection in the

district court, instead objecting only under CRE 403, CRE 404(b),

and the constitutional right to a fair trial. See People v. Gee, 2015

COA 151, ¶ 45 (“If an objection or request was made in the trial

court on grounds different from those raised on appeal, the issue is

unpreserved.”). We therefore review this issue for plain error,

meaning the error must be “obvious and substantial” and “so

22
undermine[] the fundamental fairness of the trial as to cast serious

doubt on the reliability of the judgment of conviction.” McFee, ¶ 71.

¶ 50 We agree that the question was improper to the extent it asked

the detective to opine on the ultimate legal conclusion that the

photos in Burnett’s home were “[s]exually exploitative material.”

§ 18-6-403(2)(j); see also Beilke, 232 P.3d at 152 (“The question that

elicits the opinion testimony must be phrased to ask for a factual,

rather than a legal opinion.”). But the detective’s response mostly

alleviated that problem by framing the answer in terms of the

number of photos law enforcement was “concerned about” rather

than the number of photos that were “sexually exploitative.” See

People v. Collins, 2021 COA 18, ¶ 68 (holding that witness’s proper

answer to an improper question rendered any error harmless).

¶ 51 In any event, even assuming it was obvious error to ask and

allow the detective to answer this juror question, any error was not

substantial for the reasons above. The focus of the question was

not whether the photos were sexually exploitative but the number of

photos at issue, compared to the total number of sexually explicit

23
photos found in Burnett’s home.3 To the extent the detective’s

response conveyed an opinion about the nature of the photos, it did

little more than the testimony that the individuals in the photos

were underage, which we addressed above. See § 18-6-403(2)(j)

(defining “[s]exually exploitative material” as “any photograph . . .

that depicts a child engaged in . . . explicit sexual conduct”).

¶ 52 The jury had the photos before it and could make its own

determination as to whether they were “sexually exploitative

material.” See McFee, ¶ 78. The detective’s testimony therefore did

not create “the kind of prejudice that would cast doubt on the

reliability of the verdict.” Id.; cf. Lawrence v. People, 2021 CO 28,

¶¶ 52-56 (holding that expert testimony addressing applicable legal

standards did not usurp the jury’s role or, alternatively, was

harmless, when it addressed only one element of the crime, the jury

was instructed that it was free to disregard the witness’s testimony,

and substantial evidence supported the jury’s findings).

3 Indeed, defense counsel specifically highlighted this point in

closing argument, calling the juror question “such a good question”
and emphasizing that out of more than one hundred photos found
in Burnett’s home, only ten were “potentially exploitative.”

24
VI. Merger

¶ 53 Finally, Burnett argues that his two convictions for sexual

exploitation of a child should merge. Because the evidence

supports at least two separate and distinct offenses, we disagree.

¶ 54 The Double Jeopardy Clauses of the United States and

Colorado Constitutions prohibit the imposition of multiple

punishments for the same criminal conduct. Woellhaf v. People,

105 P.3d 209, 214 (Colo. 2005). To determine whether multiple

convictions under the same statute violate double jeopardy, we

consider (1) whether the unit of prosecution prescribed by the

legislature permits charging multiple offenses and (2) whether the

evidence in support of each offense justifies charging distinct

offenses. Quintano v. People, 105 P.3d 585, 590 (Colo. 2005).

¶ 55 Section 18-6-403(5)(b) specifies that the unit of prosecution for

sexual exploitation of a child under subsection (3)(b.5) is each item

of sexually exploitative material possessed. The statute does not

specify the unit of prosecution under subsection (3)(b). But we

need not decide whether the unit of prosecution under that

subsection is each item of sexually exploitative material made

accessible or each instance of making sexually exploitative material

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accessible because, either way, there was evidence of two such

instances. See Friend v. People, 2018 CO 90, ¶ 21 (“[A] single unit

of prosecution does not immunize a defendant from being punished

separately for successive commissions of the same offense.”).

¶ 56 So the question is whether the prosecution presented evidence

to support two factually distinct offenses. See Woellhaf, 105 P.3d at

218. It did. The prosecution presented evidence of three distinct

groups of sexually exploitative material: (1) the photos submitted to

Walgreens in the first order; (2) the photos submitted in the second

order about a week later; and (3) the photos found at Burnett’s

home a week after that. The two photos orders were each

independently sufficient to support the subsection (3)(b) charge,

and, as the prosecution argued in closing, any one of the three

groups of photos could have supported the subsection (3)(b.5)

possession charge. Thus, whether the unit of prosecution is each

photo (as it is for possession) or each act of making photos

accessible, the evidence was sufficient to support separate and

distinct offenses under subsection (3)(b) and subsection (3)(b.5).

See People v. Price, 2023 COA 96, ¶¶ 42-45 (holding that conviction

for possession of a forged instrument did not merge with

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convictions for forgery when evidence established six separate

instances in which defendant possessed counterfeit money).

¶ 57 Relying on Meils, Burnett argues that his convictions must

merge because both counts involved the same date range and

“neither party argued that the multiple charges resulted from

discrete offenses committed at different times.” Meils, ¶ 44. But in

Meils, all the offenses occurred on a single date — the only question

was which date — and there was no indication of any distinction

between them. Id. In contrast, the prosecution in this case

presented evidence of three distinct groups of photos and explicitly

identified each “batch of photos” in closing. While the prosecution

did not directly tie each batch of photos to one of the two charged

offenses, it did not need to. See Price, ¶ 45 (holding that merger

was not required when “distinct and separate evidence supported

each conviction” and “verdict form did not assign particular acts to

particular charges”); People v. Gingles, 2014 COA 163, ¶ 45 (noting

that double jeopardy multiplicity claims are resolved on the basis of

the unit of prosecution and the sufficiency of the evidence, not “on

the basis of the positions taken by the parties at trial”).

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¶ 58 Burnett also argues that his convictions must merge because

subsection (3)(b.5) is a lesser included offense of subsection (3)(b).

See Reyna-Abarca v. People, 2017 CO 15, ¶ 64 (holding that lesser

included offense merges into greater offense). But “[m]ultiple

convictions for two separate offenses the elements of one of which

constitute a subset of the elements of the other can clearly stand if

the offenses were committed by distinctly different conduct.” People

v. Rock, 2017 CO 84, ¶17. In other words, convictions for a lesser

and a greater offense may both stand when, as in this case, the

evidence supports the commission of two factually distinct offenses.

VII. Disposition

¶ 59 The judgment is affirmed.

JUDGE DUNN and JUDGE BROWN concur.

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