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 

¶ 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. 
2 

¶ 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 

 

1 The People also charged defendant with six habitual criminal 

counts based on previous felony convictions. 
3 

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.” 
4 

¶ 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. 

 

2 The prosecutor conceded that the uncharged images were not 

sexually exploitative material. 
5 

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. 
6 

¶ 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 
7 

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 
8 

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 

 

5 The 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).
9 

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 
10 

“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). 
11 

¶ 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 
12 

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. 
13 

“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). 
14 

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.,
15 

Ashcroft v. Free Speech Coal., 535 U.S. 234, 253 (2002) (computergenerated 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 
16 

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 
17 

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). 

 
18 

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. 

 

8 The 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. 
19 

¶ 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.