People v. Helms

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