People v. Henley

COLORADO COURT OF APPEALS 2017COA76

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

The People of the State of Colorado,

Plaintiff-Appellee,

v.

David Allan Henley,

Defendant-Appellant.

JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS

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

Announced June 1, 2017

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

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

judgment of conviction entered on jury verdicts finding him guilty of

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

materials) and one count of sexual exploitation of a child

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

court’s related habitual criminal adjudications. We vacate

defendant’s convictions and adjudications because there is

insufficient evidence that the photographs on which the charges are

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

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

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

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

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

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

personal sexual gratification.

I. Background

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

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

on his laptop computer during class. The classmate reported this

to the teacher and to police.

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

ninety images that he thought were sexually exploitative. He also

discovered that the computer had been used to search the Internet

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

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

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

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

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

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

¶5 The charged images show fully or partially naked children

(sometimes accompanied by adults) talking to others, walking

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

activities like body painting and playing games.

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

from introducing the other images that the detective had found on

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

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

of provocatively dressed children (posed suggestively) and naked

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

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

were relevant. The prosecutor responded that because the charged

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

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

show that defendant looked at the charged images for his personal

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

charged images “makes them exploitative images.”

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

said it would allow the prosecutor to introduce the uncharged

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

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

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

to show intent here.”

¶8 During trial, the prosecutor introduced the charged and

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

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

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

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

pics” and “preteen sluts.”

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

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

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

search terms and the uncharged images.2 In addressing whether

the charged images were “erotic nudity,” the prosecutor

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

these are nudist camp photographs. Pictures of naked children.

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

a whole” showed that defendant “took otherwise innocent

photographs and perverted them for his sexual gratification.”

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

uncharged images. The prosecutor summed up by saying that

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

purpose.”

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

individual charged images, but it convicted him of the remaining

counts.

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

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

¶ 11 Defendant contends that we should vacate his convictions for

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

images are “sexually exploitative” as required to support a

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

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

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

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

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

second.4

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

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

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

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

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

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

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

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

conduct includes, as relevant in this case, “erotic nudity.” § 18-6-

403(2)(e). “Erotic nudity” means

the display of the human male or female
genitals or pubic area, the undeveloped or
developing genitals or pubic area of the human
male or female child, the human breasts, or
the undeveloped or developing breast area of
the human child, for the purpose of real or
simulated overt sexual gratification or
stimulation of one or more of the persons
involved.

§ 18-6-403(2)(d).

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

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

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

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

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

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

1278, 1281 (Colo. App. 1999).

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

condition — they show physical areas of children described in

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

condition. Defendant and the People offer competing views of how

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

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

purpose of real or simulated overt sexual gratification” must be

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

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

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

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

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

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

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

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

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

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

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

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

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

correct.

A. Preservation and Standard of Review

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

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

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

preserved because when defense counsel moved for a judgment of

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

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

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

statement, defense counsel argued to the jury that the charged

images didn’t meet the definition of sexually exploitative material

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

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

there was an issue whether the charged images meet that

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

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

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

these reasons, we conclude that the issue was sufficiently

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

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

opportunity to make factual findings and legal conclusions on any

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

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

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

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

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

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

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

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

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

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

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

2005)).

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

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

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

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

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

B. Analysis

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

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

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

clear and unambiguous, we must interpret the statute according to

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

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

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

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

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

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

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

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

We also construe statutory terms “in a manner that avoids

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

constructions, one of which is constitutional, then the

constitutional interpretation must be adopted.” People v.

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

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

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

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

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

wonder whether the nature of the conduct depicted in a photograph

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

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

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

“display[ed] . . . for the purpose of real or simulated overt sexual

gratification or stimulation of one or more of the persons involved.”

§ 18-6-403(2)(d). Thus, this definition focuses on the purpose for

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

particular viewer.

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

irrelevant for purposes of determining whether the image is “erotic

nudity” is confirmed by the prohibitory language of the statute

pertaining to the possession of sexually exploitative material. It

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

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

sexually exploitative material for any purpose,” subject to certain

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

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

possesses an image can determine whether the image is “erotic

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

one that is — runs headlong into this statutory language.

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

Supreme Court and divisions of this court support our

interpretation of the statute, as does federal authority.

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

court addressed the constitutionality of the definition of “erotic

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

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

12
“does not reach constitutionally protected materials depicting nude

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

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

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

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

to distinguish between innocent (or, at least, constitutionally

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

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

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

Photographs taken for family, artistic, or any other legitimate

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

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

discretion under this statute to charge or convict a defendant for

making a photograph depicting nudity for any purpose other than

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

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

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

gratification or stimulation).

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

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

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

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

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

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

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

photographs, viewed objectively, would lead to sexual gratification

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

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

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

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

image was created, and the relevant viewer is a hypothetical

“reasonable viewer.”

¶ 26 Likewise, federal cases interpreting similar federal statutes

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

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

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

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

generated child pornography that did not depict real children was

protected under the First Amendment because it did not directly

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

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

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

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

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

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

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

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

created when the pedophile derives sexual enjoyment from an

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

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

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

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

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

that images of nude children that otherwise did not depict any

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

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

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

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

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

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

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

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

subjective response in determining whether an image was “erotic

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

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

mischaracterize these cases.

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

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

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

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

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

pictures secretly showed that he took the pictures for his own

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

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

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

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

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

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

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

of a teenage girl in sexually suggestive poses and clothing were

produced for sexual gratification, the court considered that “the

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

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

none of the cases did the court consider whether the subjective

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

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

the images rendered the images “erotic nudity.”

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

several untenable consequences of adopting it.

 Images that are otherwise constitutionally protected

images could become unprotected based merely on the

subjective response of a particular viewer. See Batchelor,

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

legitimate purposes are constitutionally protected).

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

image could be prosecuted, which wouldn’t further the

purpose of the statute to protect children from sexual

exploitation. See § 18-6-403(1).8

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

another, could be prosecuted because of their different

subjective purposes for viewing an image. That would

raise First Amendment and equal protection concerns.

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

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

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

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

conceded the contrary, pinning their hopes instead on evidence of

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

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

support defendant’s convictions.

III. Conclusion

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

court to dismiss the charges.

JUDGE GRAHAM and JUDGE WELLING concur.

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

19