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 DefendantAppellant 
1 

¶ 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 fourteenyear-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. 
2 

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” 
3 

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 
4 

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. 
5 

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 
6 

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 
7 

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

statutes are presumed to be constitutional, the party challenging 

 

3 We do not read any of defendant’s arguments as as-applied 

challenges to the constitutionality of the statute. 
8 

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 
9 

protectionism — that is, regulatory measures designed to benefit instate 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 
10 

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 
11 

(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”). 
12 

¶ 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. 
13 

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 
14 

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 
15 

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 
16 

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 
17 

¶ 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). 
18 

“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. 
19 

¶ 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). 
20 

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”). 
21 

¶ 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. 
22 

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. 
23 

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. 
24 

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 
25 

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). 
26 

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 
27 

“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 
28 

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 

 

10 Defendant 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. 
29 

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. 

 

11 Defendant does not contend that the evidence failed to establish 

the statutory elements of the offense. 
30 

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 
31 

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. 
32 

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 
33 

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, 
34 

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. 
35 

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 
36 

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 
37 

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 
38 

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. 
39 

¶ 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.