SUMMARY July 3, 2019
2019COA100
No. 15CA2149, People v. Bott
— Criminal Law
— Confessions
— Corpus Delicti Rule; Crimes
— Sexual Exploitation of a Child; Constitutional Law
— Fifth Amendment
— Double Jeopardy
— Multiplicity In this crimina l appeal, a division of the court of appeals concludes that the corpus delicti rule, in effect when the defendant allegedly committed the charged offenses, applies at trial because the supreme court ’ s decision abandoning the rule does not apply
retroactive ly. The corpus delicti rule requires that the prosecution present evidence independent of the defendant’s confession to establish that a crime occurred. The defendant was charged with sexually assaulting his newborn daughter in 2004. At the 201 5 trial, in addition to the defendant ’ s admission made during sex offender treatment, the prosecution presented evidence that defendant had frequently The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion

should be resolved in favor of the language in the opinion.changed his daughter ’ s diaper and that, in 2014, he possessed

child pornography. The division concludes that the evidence was insufficient to satisfy the prosecution ’ s burden under the corpus delicti rule and therefore vacates the defendant ’ s sexual assault on a child convictions. The division also interprets the sexual exploitation of a child statute to determine the unit of prosecution for possession of child pornography. Based on the plain language, the division concludes that the unit of prosecution is the act of possession, not the individual image. Accordingly, de fendant committed a single offense of possession of more than twenty images, and therefore eleven of his sexual exploitation of a child convictions must be vacated.COLORADO COURT OF APPEALS 2019COA100

Court of Appeals No. 15CA2149 El Paso County District Court No s . 14CR2153 & 15CR232 Honorable Linda Billings

- Vela , Judge
The People of the State of Colorado, Plaintiff

- Appell ee ,

v. Joshua Christian Bott , Defendant

- Appell ant

.
JUDGMENT AND SENTENCE AFFIRMED IN PART, VACATED IN PART,

AN D CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE HARRIS Richman and Tow , JJ., concur Announced Ju ly 3 , 2019
Philip J. Weiser , Attorney General, William G. Kozeliski , Assistant Attorney General, Denver, Colorado, for Plaintiff

- Appell ee Megan A. Ring , Colorado State Public Defender, Mark Evans , Deputy State Public Defender, Denver, Colorado, for Defendant

- Appell ant1

¶ 1 In 2004, when de fendant, Joshua Christian Bott, allegedly molested his infant daughter, Colorado firmly adhered to the “corpus delicti” rule. That rule requires the prosecution to present

e vidence other than the defendant’s confession to prove that the crime occurred. By the time of Bott’s trial in 20 15, the Colorado
S upreme C ourt had abandoned the corpus delicti rule and replaced it with a “trustworthiness” standard

. See People v. LaRosa , 2013 CO 2, ¶ ¶ 31 , 38

. ¶ 2 A t trial, the prosecution introduced Bott’s written confession , prepared as part of his s ex offender treatment, a s well as h undreds of images of child pornography recovered from his computer ten years after the alleged molestation . The jury convicted Bott of five counts of sexual assault on a child by one in a position of trust , twelve counts of sexual exploitation of a child related to his possession of child pornography, and three additional counts of sexual exploitation related to his distribution of child pornography. ¶ 3 On appeal, Bott argues that the supreme court’s decision abandoning th e corpus delicti rule in favor of a trustworthiness standard did not apply retroactively ; therefore, the prosecution had to present corroborating evidence that the crime occurred and2

because it did not the evidence was insufficient to support his sexual as sault convictions. He also argues that, under the sexual

e xploitation of a child statute, his single act of possession of hundreds of images of child pornography constitutes one crime of possession of more than twenty items of sexually exploitative
materi al. ¶ 4 We agree with both arguments. A ccordingly, we vacate Bott’s five convictions for sexual assault on a child and eleven of his convictions for sexual exploitation of a child, and we remand for resentencing. 1
I. Background ¶ 5 In 2 0 10, Bott was in sex offender treatment , a condition of the probationary sentence imposed after he pleaded guilty to a n unrelated class 6 felony sex offense. At trial, Bott’s therapist testified that, to remain in treatment, the client must progress to the satisfaction of the treatment staff. The therapist did not believe that Bott was making sufficient progress in the disclosure phase of treatment because he had not admitted to sexually abusing his

1 Bott does not appeal his conviction for the three counts of sexual exploitation related to distribution of child pornography.3

daughter

— to the contrary, during the several years he had been in
treatment , Bott was “adamant that he did not sexually assault [his daughter]

. ” ¶ 6 In May 2010, the therapist notified Bott in writing that he was not progressing and that if he failed to complete the disclosure phase by October, he would be terminated from treatment a nd referred to the court “for consequences,” which might include
incarceration. By July, Bott had completed a questionnaire in which he admitted that during the six months after his daughter was born in June 2004 , he regularly “sexually abused [her] while changing her diaper,” by “rub b [ing] [her] vulva and buttocks with [his] fingers.” The therapist reported the admission to the police, but they declined to file charges. ¶ 7 In 2014, after Bott had been terminated from treatment, incarcerated, and released fr om parole, police received information that Bott’s computer was linked to the distribution of child pornography

. During a search of Bott’s home , police recovered a memory card containing nearly 300 images of child pornography as well as the questionnaire containing his written confession to having sexually abused his infant daughter ten years earlier

.4

¶ 8 The People charged Bott with five counts of sexual assault on a child, twelve counts of sexual exploitation of a child (each count correlating to possession of more than twenty images of child pornography) , and another three counts of sexual exploitation of a child (distribution of child pornography ). ¶ 9 At various pretrial hearings, the prosecut or acknowledged that the case was “based off of the treatment notes , ” and that “the information” it had about the case came from “ Mr. Bott’s
statements

. ” The prosecutor candidly admitted that “there is very little evidence and very little proof in this case.” ¶ 10 At trial, the prosecutor introduced (1) Bott’s written confess ion; (2) the therapist’s testimony concerning the circumstances surrounding the confession ; (3) the ex

- wife’s testimony that Bott regularly changed their daughter’s diaper during the relevant period; and (4) the images of child pornography found on Bott’s computer in 2014. The jury convicted Bott of all charges.
II. Sufficiency of the Evidence

— Sex ual Assault on a Child ¶ 11 Bott contends that the evidence was insufficient to support his convictions for sexual assault on a child by one in a position of5

trust bec ause, under the corpus delicti rule, he could not be convicted based on his confession alone and the prosecution did not present corroborating evidence that the crime occurred. ¶ 12 B ott’s challenge to the sufficiency of the evidence raises two questions . F i rst, did the corpus delicti rule apply at Bott’s trial or did the supreme court’s decision abandoning the rule apply retroactively? And second, if the corpus delicti rule did apply, did the prosecution present any corroborating evidence that the crime

occ urred such that the evidence as a whole was sufficient to sustain the convictions?

A. Preservation and Standard of Review ¶ 13 Before we can address the merits of Bott’s sufficiency claim, we must determine whether , as the People contend, Bott has waived
appe llate review of his claim, under either the doctrine of invited

error or general waiver principles

. 1. Relevant Facts ¶ 14 The corpus delicti rule was first mentioned at the pretrial conference. The prosecutor explained that she had “two pieces of evidence that show that Mr. Bott was around [his daughter]

. One, his admission . . . [a]nd two, [the ex

- wife’s] testimony.” She6

intended to introduce photographs to “show and prove that Mr. Bott was around [his daughter] at that age” and that “he did touch [her].” Th e photographs were necessary, she argued, even though “corpus delicti is dead in the state of Colorado now, so to speak.” Neither defense counsel nor the court responded to the prosecutor’s pronouncement. ¶ 15 At the close of the prosecution’s case, Bott moved for a judgment of acquittal based on La Rosa . Defense counsel noted that
in LaRosa , the supreme court had abandoned the corpus delicti rule and replaced it with the trustworthiness standard. She explained that LaRosa involved similar facts but that the c ourt had not applied the trustworthiness standard to the facts in that case because “there was an ex post facto issue with that specific defendant.” Counsel then argued that the prosecution had failed to demonstrate that Bott’s confession was trustworthy under LaRosa ’s new standard. T he prosecutor reiterated th at LaRosa “did away with the corpus delicti rule

. ” S he argued that the prosecution had established the trustworthiness of the confession through the

ex
- wife’s testimony that Bott changed the daught er’s diaper and the7

introduction of the child pornography, which showed that Bott had a sexual interest in young children. ¶ 16 The trial court denied the motion for a judgment of acquittal.
It acknowledged that the supreme court “didn’t apply their decision [in LaRosa

] retroactively” ; nonetheless, the court determined that the trustworthiness standard applied in this case and that the standard was satisfied by evidence of Bott’s opportunity to commit the crime and of his sexual interests.

2. Invited Error, Waiver, and Forfeiture ¶ 17 The People say that by failing to argue the applicability of the corpus delicti rule, and instead focusing exclusively on the trustworthiness standard, Bott is precluded from raising his sufficiency of the evidence c laim o n appeal

. We are not persuaded. ¶ 18 The doctrine of invited error prevents a party from complaining on appeal of an error that he injected into the case. People v. Rediger , 2018 CO 32, ¶ 34. Invited error is a narrow doctrine; it applies to errors in trial strategy bu t not to errors based on inadvertence or oversight. Id. ; see also People v. Stewart , 55 P.3d 107, 119 (Colo. 2002).8

¶ 19 As an initial matter, the prosecutor, not defense counsel, first injected the error in this case. Even so, the People contend , Bott “urged ” the trial court to apply the trustworthiness standard and that, under the invited error doctrine, he may not do “an about

- face” on appeal and argue that the corpus delicti standard applies. That argument would have some force if Bott had “urged” the tri al court to apply one standard over the other as a matter of trial strategy. But it seems clear to us t hat counsel construed
LaRosa to pre clude reliance on the corpus delicti rule and to require application of the trustworthiness standard. In any event, the trial
court was not led astray by counsel’s interpretation of LaRosa ; it independently considered the case, even referring to the language concerning retroactivity. ¶ 20 The People’s waiver argument fares no better. Waiver is the

“ intentional relinquishment of a known right or privilege .” Rediger , ¶ 39 (quoting Dep’t of Health v. Donahue , 690 P.2d 243, 247 (Colo. 1984))

. Th us, as a prerequisite to waiver, we must find t hat the defendant (or his counsel) knew of the right before relinquishing it. The record suggests the opposite: that “everyone involved,” see People v. Tee , 2018 COA 84, ¶ 31, mis understood th e import or9

scope of LaRosa ’s retroactivity analysis. There is simply no evidence that Bott “intended to relinquish his right to be tri ed” in accordance with due process

. Rediger , ¶ 42. Gi ven that we must “indulge every reasonable presumption against waiver,” id. at ¶ 39 (quoting People v. Curtis , 681 P.2d 504, 514 (Colo. 1984)), we conclude that , under these circumstances, counsel did not knowingly and intentionally waive any claim that the corpus delicti rule applied

. See People v. Ramirez , 2019 COA 16, ¶ 18 (where counsel’s failure to address the error was “patently attributable to neglect,” th e instructional error was not waived). ¶ 21 We are not persuaded otherwise by the People’s citation to People v. Murray , 2018 COA 102 , and People v. Kessler , 2018 COA 60. In those cases, the division s assumed that the defendant s knew of the error and so focu sed on the intentionality of the defendant s ’ a cquiescence. Murray , ¶ ¶ 43

- 44; Kessler , ¶¶ 37

- 38

. Tee is distinguishable on other grounds. There, the division thoroughly analyzed the “knowing” component of waiver and concluded t hat, while “everyone involved” in the case had correctly assessed the relevant issue and the proper remedy, the defendant10

had failed to seek any relief in the trial court and thus his claim was waived

. Id. at ¶¶ 31, 33, 35. ¶ 22 Still, w hen the defendant fails to timely assert a right, as Bott did here, we ordinarily consider the claim forfeited and review the claim for plain error. Rediger , ¶ 40. Bott’s claim involves the sufficiency of the evidence to support the sexual assault convictions, however, and we review sufficiency claims de novo

. McCoy v. People , 2019 CO 44, ¶ 34. ¶ 23 Thus, we review de novo whether the prosecution introduced sufficient evidence under the applicable standard to support the sexual assault convictions. If the evidence is insufficient, we must vacate the convictions without conducting a plain error analysis. Id. at ¶ 2 7

. B. Legal Background ¶ 24 Almost all courts adhere to a corroboration requirement that prevents a defendant from being convicted of a crime based only on his uncorroborate d confession. LaRosa , ¶ 13. One such corroboration requirement, known as the corpus delicti rule, requires the prosecution to present independent evidence that the crime occurred. Id. at ¶¶ 14

- 15. The other widely applied11

corroboration requirement, known as the trustworthiness standard, requires the prosecution to present independent evidence that the confession itself is trustworthy. Id. at ¶ 21. ¶ 25 From 1872 until 2013, Colorado adhered to the corpus delicti rule. Id. at ¶ 16

. Under that rule, the prosecution must introduce some corroborating evidence to establish (1) an injury that is “penally proscribed

— e.g., in an unlawful homicide, a person killed; in larceny, certain property missing,” and (2) “unlawfulness of some person’s conduct in causing that injury.” People v. Smith , 182 Colo. 31, 33, 510 P.2d 893, 894 (1973), abrogated by LaRosa , ¶ 41; see also State v. Mauchley , 67 P.3d 477, 482 (Utah 2003) (corpus delicti rule requires the prosecution to present corroborat ing evidence that the injury or harm specified in the crime occurred and this injury or harm was caused by someone’s criminal activity). T he corpus delicti rule was adopted in part to “reduce the possibility that a person is convicted based on a confessio n to a crime that never happened.” LaRosa , ¶ 17. ¶ 26 But the corpus delicti rule has some obvious disadvantages , including its potential to obstruct justice in cases where, as in
LaRosa and as here, “the victim is too young to testify and no12

tangible injury results from the alleged crim inal act .” Id. at ¶ 27. So in 2013, after carefully considering the benefits and costs of the rule as well as the important role of stare decisis in our legal system, the supreme court decided to abandon the corpus delicti

r ule and to adopt the trustworthiness standard. Id. at ¶ ¶ 31 , 38

. T he trustworthiness standard “requires corroboration of the confession itself rather than corroboration that a crime was committed.” Mauchley , 67 P.3d at 488

. ¶ 27 Having adopted a new corrob oration rule, the court turned to the issue of retroactivity. As a general matter, judicial decisions apply retroactively. See Martin Marietta Corp. v. Lorenz , 823 P.2d 100, 111 (Colo. 1992). But when a decision alters a common law doctrine of criminal law, and the alteration is unexpected and indefensible by reference to the law in effect at the time of the conduct at issue, retroactive application of the decision violates a defendant’s rights under the Due Process Clause. LaRosa , ¶ 44 ; see also Rogers v. Tennessee , 532 U.S. 451, 462 (2001). Thus, the “key test in determining whether the due process clause precludes the retrospective application of a judicial decision in a criminal case is whether the decision was sufficiently foreseeable so that the13

d efendant had fair warning.” LaRosa , ¶ 44 (quoting Aue v. Diesslin , 798 P.2d 436, 441 (Colo. 1990)). 2 The court concluded that because Colorado had consistently applied the corpus delicti rule for more than a century, abandonment of the rule was not foreseeable, and therefore the defendant did not have fair warning. Id. at ¶ 46. Under those circumstanc es, applying the trustworthiness standard to the defendant would violate his due process rights. Id.
C. Analysis
1. Does LaRosa ’s New Trustworthiness Standard Apply Retroactively to Bott? ¶ 28 The People acknowledge that the LaRosa court declined to apply the trustworthiness standard retroactively. But they argue that the court’s retroactivity ruling prohibits application of the new trustworthiness standard only to trials, not to conduct, that occurred before the change in the rule

.

2 “Retroactive” and “retrospective” can have different meanings when referring t o application of civil statutes, but frequently c ourts use the terms interchangeably, s ee Ficarra v. Dep’t of Regulatory Agencies , 849 P.2d 6, 11 (Colo. 1993), as the supreme court appeared to do in People v. LaRosa , 2013 CO 2, ¶¶ 44, 45.14

¶ 29 In determining whether a statute or rule operates “retrospectively” so as to raise ex post facto or due process concerns, the court must ask whether the new statute or rule attaches new legal consequences to events completed before its
enactment. La ndgraf v. USI Film Prods

. , 511 U.S. 244, 269 (1994). The answer to that question depends on “the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event.” Id. at 270. As

we understand the People’s argument, they contend that because the replacement of the corpus delicti rule with the trustworthiness standard constituted a mere procedural change, operation of the new rule had no connection to the defendant’s commission of the underlying criminal co nduct but only to his conduct at trial. ¶ 30 To be sure, not all judicial rule changes result in due process violations

. See Proctor v. Cockrell , 283 F.3d 726, 735 (5th Cir. 2002). “Rather only those ‘unexpected and indefensible’ judicial changes of the type with which the Ex Post Facto Clause is concerned violate the Due Process Clause.” Id. ; see also Rogers , 532 U.S. at 456 (“[L]imitations on ex post facto judicial decisionmaking are inherent in the notion of due p rocess.”).15

¶ 31 But what are the type s of rules with which the Ex Post Facto Clause and, by extension, the Due Process Clause, are concerned?
In Calder v. Bull , 3 Dall. 386, 390 (1798) (seriatim opinion) , Justice Samuel Chase identified them as follows:

1st

. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. E very law that aggravates a crime , or makes it greater than it was , when committed

. 3 r d. E very law that cha nges the punishment, and inflicts a greater punishment , than the law annexed to the crime, when committed. 4th. E very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commis sion of the offence, in order to convict the offender

. ¶ 32 The People are right that the Ex Post Facto Clause is not concerned with mere procedural rules, which necessarily fall outside Calder

’s four categories. See Collins v. Youngblood , 497 U.S. 37, 46 (1990) ; see also State v. Jess , 184 P.3d 133, 160 (Haw. 2008) ( “ F or a judicial decision to implicate due process concerns, the change wrought upon the defendant’s interests must be substantive, as opposed to procedural

. . . .”)

.16

¶ 33 But contrary to the Peop le’s assertion, the corpus delicti rule is not merely procedural. 3 The LaRosa court itself rejected that argument, observing that it had always treated the corpus delicti rule as a “ ‘ substantive rule of law relating to the quantum of proof necessary to su stain a conviction ’ and not a rule affecting admissibility.” LaRosa , ¶ 42 (quoting People v. Robson , 80 P.3d 912, 913

- 14 (Colo. App. 2003)). ¶ 34 To the extent we needed confirmation of the proper characterization of a corroboration rule, Carmell v. Texas , 529 U.S. 513 (2000), provides it. The defendant in that case sexually assaulted his stepdaughter when the law required corroboration of a victim’s testimony to convict the offender unless the victim had reported the crime within six months or was younger than fourteen. Id. at 516

- 17. But by the time of trial, the statute had been amended to permit conviction of certain offenses on the victim’s testimony alone. Id. at 516

- 18. The question was whether the amendment could be applied at trial for offenses committed before

3 At oral argument, the People appeared to concede that the co rpus delicti rule is substantive, not procedural, but did not acknowledge the legal consequence of the distinction.17

its enactment without violating the defendant’s constitutional rights. Id. at 516. The answer turned on whether the rule fell within one of the Calder categories

. The Supreme Court concluded that it did : [The amended corroboration rule] is

unquestionably a law ‘that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.’ Under the law in effect at the time the a cts were committed, the prosecution’s case was legally insufficient and petitioner was entitled to a judgment of acquittal, unless the State could produce both the victim’s testimony and corroborative evidence. The amended law, however, changed the quantu m of evidence necessary to sustain a conviction ; under the new law, petitioner could be (and was) convicted on the victim’s testimony alone, without any corroborating evidence. Under any commonsense understanding of Calder ’s fourth category, [the amended rule] plainly fits. Id. at 530. ¶ 35 Like the corroboration law at issue in Carmell , the corpus delicti rule is a sufficiency of the evidence rule. “As such, it does not merely ‘ regulate the mode in which the facts constituting guilt may be placed before the jury, ’ ” but instead “governs the sufficiency of those facts for meeting the burden of proof.” Id. at 54518

(alterations omitted) (citation omitted)

. And, as our supreme court recognized, prior to LaRosa , a person would not have had fair warning of a c hange in the rule. LaRosa , ¶ 46. Thus, both elements of a due process violation are present. ¶ 36 The People counter that Bott could not possibly have relied on the corpus delicti rule in ordering his conduct , beyond devising litigation strategy , and thus he was only entitled to fair warning of the rule change before his trial. According to the People, Bott could not have known at the time he allegedly abused his daughter or at the time he confessed that no corroborating evidence would later

emer ge. But as the People conceded at oral argument, if Bott had falsely confessed to appease his treatment provider, he surely would have known that there was no risk that police would ever uncover corroborating evidence. ¶ 37 In any event, the Supreme Court considered and rejected that argument in Carmell , see 529 U.S. at 534, because the Court’s

“ concern with fair not ice goes beyond actual reliance, ” United States
v. Lata , 415 F.3d 107, 111 ( 1st Cir. 2005). As the Court explained,

e ven apart from any claim of r eliance, “[t]here is plainly a fundamental fairness interest” in “having the government abide by19

the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life.” Carmell , 529 U.S. at 533. ¶ 38 Finally, we have no disagreement with the People’s assertion that “criminal conduct is not excused merely on the basis that the defendant did not believe the state would be able to prove the crime in court.” But we do not find this assertion helpful to ou r retroactivity analysis. It seems obvious to us that the Supreme
Court was not “ excusing ” the defendant’s conduct in Carmell when it determined that retroactive application of the state’s new corroboration law would violate his constitutional rights. ¶ 39 For these reasons , we conclude, if it was not obvious from
LaRosa itself, that the trustworthiness standard cannot be applied retroactively to defendants, like Bott , who committed the alleged offense before the c ourt adopted the new standard.
2. Did the Pro secution Present Corroborating Evidence

Establishing That the Crime Was Committed? ¶ 40 U nder the corpus delicti rule, the prosecution had to present corroborative evidence that a sexual assault occurred. LaRosa , ¶ 14. W hile the corroborative evidence “ need o nly be slight, ” id. at20

¶ 15 (quoting Neighbors v. People , 168 Colo. 319, 322, 451 P.2d 264, 265 (1969)), “we must tread carefully when evaluating the probative weight of evidence that might provide slight corroboration” because some evidence might indicate guilt without establishing the corpus delicti , Allen v. Commonwealth , 752 S.E.2d 856, 860 (Va. 2014). ¶ 41 We review de novo whether the evidence is sufficient to establish the corpus delicti of the crime. See State v. Pineda , 992 P.2d 525, 532 (Was h

. Ct. App. 2000). ¶ 42 According to the People, the prosecut ion satisfied its burden by introduc ing t he following evidence to establish the corpus delicti of a sexual assault: (1) the ex

- wife’s testimony that Bott regularly changed the daughter’s diaper in 2004 and (2) the numerous images of child pornography downloaded by Bott in 2014. ¶ 43 That Bott changed his daughter’s diaper does not establish that a crime occurred. See Smith , 182 Colo. at 33, 510 P.2d at 894 (under the corpus delicti rule, evidence must establi sh an injury proscribed by a criminal law and unlawfulness of a person’s conduct in causing the injury)

. The ex

- wife did not say that she had observed any inappropriate touching or other unusual act by21

Bott during the diaper changes. (She did not, for ex ample, corroborate Bott’s statement that he had repeatedly rubbed the baby’s vulva with his fingers.) Cf. State v. McMeans , 201 S.W.3d 117, 121 (Mo. Ct. App. 2006) ( the defendant’s manner of touching the child during a diaper change was evidence that she had committed sexual abuse of the child). Nor did she testify that her daughter exhibited any physical or emotional manifestation of abuse. See id. at 119 (noting that witnesses testified that after the defendant changed the child’s diaper, the child’s v aginal area “was very red” and the child did not want anyone to change her and “would fuss and fidget”). Rather, the ex

- wife testified to facts that are “just as consistent with non

- commission of the offense as . . . with its commission.” Allen , 752 S.E.2d at 860 (quoting Phillips v. Commonwealth , 116 S.E.2d 282, 285 (Va. 1960)). Under those circumstances, the “slight corroboration” necessary to establish the corpus delicti “does not exist.” Id. ¶ 44 At most, the ex

- wife’s testimony established Bott’s opportunity
to commit a crime . But “the mere opportunity to commit a criminal act, standing alone, provides no proof” of the corpus delicti. State v. Ray , 926 P.2d 904 , 907 (Wash. 1996).22

¶ 45 That leaves only the images of child pornography. In their brief, the People repeatedly argue that the child pornography “corroborated the defendant’s confession

. ” That may be true, and if we were applying the trustworthiness standard, the outcome might be different. But as we have explained, the corpus de licti rule requires corroboration that a crime occurred, not corroboration of the confession itself. ¶ 46 We do not see how the recovery of child pornography in 2014 supplies the necessary corroboration that Bott’s daughter was sexually assaulted ten years ea rlier. According to the People, Bott’s possession of the images necessarily t ransforms his earlier, otherwise innocent conduct into sexual assault, thus establishing that the crime of sexual assault on a child occurred and that the daughter was the victim

. But that is true only if every person who has ever had (or will have in the future) an interest in child pornography is also a child molester and, more specifically, a molester of his own children. The prosecution did not present any evidence to suppor t that proposition , nor do the People cite any supporting authority in their briefing.23

¶ 47 At least two courts have rejected th e proposition. In State v. Delp , 178 P.3d 259 (Or. Ct. App. 2008), the defendant solicited a purported fourteen

- year
- old girl ( actua lly an FBI agent) for sex. After tracing the computer to the defendant, agents obtained a search warrant for his home and recovered a disk containing child pornography. Id. at 260

- 61. The defendant later confessed to performing sexual acts on his girlfr iend’s one

- year
- old child. Id. ¶ 48 On appeal from his convictions for sodomy and sexual abuse , the defendant argued that the prosecution had failed to satisfy its burden under the state’s corpus delicti rule because it had not introduce d any corroborating ev idence that the crimes had been committed. Id. at 265. The state pointed to evidence that the defendant had access to the child, child pornography was recovered from his computer , he engaged in sexually explicit online conversations, and a towel discovered in the girlfriend’s home corroborated a detail in the confession. Id. ¶ 49 The appellate court reversed the convictions, concluding that none of the evidence offered by the state “tends to demonstrate or gives rise to an in ference that the a lleged victim was the subject of” the charged offenses. Id. at 266. As the court explained,24 no reasonable juror could infer from defendant’s possession of child pornography, his sexual interest in children, the existence of a recently laundered pink towe l, and defendant’s opportunity to commit the crimes, that the child was the victim of sodomy or sexual abuse, whether those facts are considered separately or together. Id. ¶ 50 State v. Mesot , No. M200602599

- CCA

- R3

- CD, 2008 WL 732151 (Tenn. Crim. App. Mar. 1 4, 2008), is also instructive. In that case, the defendant’s wife discovered child pornography on the couple’s computer and called the police. Id. at *1. When police arrived, the defendant consented to a search of his computer but informed the officers that he had “wiped” all the child pornography from the hard drive. Nonetheless, a search uncovered five images in a temporary file. Id. Defendant then confessed in writing to having sexually abused his nineteen

- month

- old daughter. Id. at *2. He later admitted to his wife that he had engaged in sexual conduct with the child for six months. Id. ¶ 51 The defendant appealed his convictions for child rape, contending that the state had failed to present evidence other than his confession to establish t he corpus delicti of the crimes. Id. at25

* 3. The state argued that the fact of the crime was corroborated by the defendant’s expressed interest in incest and child pornography and the images of child pornography found on his computer. While the court ack nowledged that the corroboration of the corpus delicti may be established solely by circumstantial evidence, it concluded that the state had nonetheless failed to present sufficient corroborating evidence of the crimes:

The court’s finding that the Appella nt’s
“ interest in child pornography ” independently corroborates the rape of the victim is misplaced. We know of no authority which holds that all persons who have an interest in child pornography are also child rapists. Thus, the finding that the Appella nt had an interest in child pornography neither “ tends to establish ” nor compels the inference that the Appellant committed the crime of rape of a child. Id. at * 4

. ¶ 52 We acknowledge that under section 16

- 10

- 301, C.R.S. 2018, evidence of the defendant’s other “relevant” acts is generally admissible in prosecutions of sexual offenses, including for the purpose of proving the corpus delicti of a crime. But it does not follow that any evidence offered pursuant to section 16

- 10

- 30 1 will always be sufficient to prove the corpus delicti of a sexual offense.26

Conversely, we do not mean to suggest that evidence offered under the statute could never corroborate the corpus delicti of a crime. ¶ 53 We conclude only that, on this record, the evidence of Bott’s possession of child pornography, ten years after the alleged offense,

e ven when considered together with the fact that he changed his daughter’s diaper, was insufficient to prove the corpus delicti of sexual assault on a child. ¶ 54 A ccordingly, the evidence was insufficient to sustain Bott’s convictions for sexual assault on a child by one in a position of
trust. The convictions must therefore be vacated. See LaRosa , ¶¶ 47

- 48

. III. Double Jeopardy ¶ 55 During the search of Bott’s home, p olice recovered a single memory card containing 294 images of child pornography. The sexual exploitation of a child statute makes the possession of child pornography a class 5 felony, unless the person possesses more than twenty images, in which case poss ession of the materials is a class 4 felony. § 18

- 6

- 403(5) (b), C.R.S. 2018. ¶ 56 The prosecution charged Bott with twelve counts of possession of more than twenty images of child pornography by dividing the27

images from the memory card into separate counts. B o tt contends that the sexual exploitation of child statute treats as a single offense the p ossession of more than twenty images of child pornography. Thus, he argues, his twelve convictions and sentences for possessing 294 images violates his rights under the Double Jeopardy Clause. We agree.
A. Standard of Review ¶ 57 We review de novo a claim that multiplicitous convictions violate a defendant’s constitutional protection against double jeopardy. People v. Allman , 2017 COA 108, ¶ 12 ( cert. granted on other grounds Mar. 5, 2018)

. B. Analysis ¶ 58 Multiplicity is the charging of the same offense in several counts, culminating in multiple punishments. People v. McMinn , 2013 COA 94, ¶ 19. Multiplicitous convictions are prohibited because they violate the constitut ional prohibition against double jeopardy. Id. ¶ 59 If a defendant is prosecuted for distinct offenses under the same statute, as Bott was, we ascertain whether the defendant’s double jeopardy rights were violated by determining (1) whether the28

unit of prose cution prescribed by the legislature permits the charging of multiple offenses and (2) whether the evidence in support of each offense justified the charging of multiple offenses and the imposition of multiple sentences. People v. Harris , 2016 COA 159, ¶ 40. ¶ 60 “Unit of prosecution” refers to the extent to which the relevant statute permits the prosecution to separate the defendant’s conduct into discrete acts for purposes of prosecuting multiple offenses. Quintano v. People , 105 P.3d 585, 590 (Colo. 2005)

. ¶ 61 To determine the unit of prosecution, we look to the statute. People v. Arzabala , 2012 COA 99, ¶ 23. In construing a statute, we must discern and effectuate the intent of the legislature based primarily on the plain and ordinary meaning of the statutory language. Id. ¶ 62 Bott was charged with sexual exploitation of a child unde r section 18

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- 403(3)(b.5) and (5)

. Those statutory provisions p rovide as follows : (3) A person commits sexual exploitation of a

child if, for any purpose, he or she knowingly:

. . .29 (b.5) Possesses or controls any sexually exploitative material for any purpose, except that this subsection (3)(b.5) does not apply to [enumerated persons].

. . . . (5)(b) Sexual exploitation of a child by possession of sexually exploitative material . . . is a class 5 felony ; except that said offense is a class 4 felony if: (I) It is a second or subsequent offense; or (II) The possession is of . . . more than twenty different items qualifying as sexually exploitative material. Id. ¶ 63 Under the plain and unambiguous language of the statute, the unit of prosecution is an act of po ssession, not an individual image. The statute refers to the singular “possession” of sexually exploitative material and instructs that , if “ [ t ] he possession” is of more than twenty images, the defendant may be punished more severely. § 18

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- 403(5)(b)(II ); s ee State v. Liberty , 370 S.W.3d 537, 552

- 53 (Mo. 2012) (construing substantially similar statute to mean that “possession of 20 or more proscribed images constitutes a single unit of prosecution”); see also United States v. Polouizzi , 564 F.3d 142, 15 4

- 5 5 (2d Cir. 2009) ( The unit of prosecution under a30

statute prohibiting the possession of “1 or more books, magazines

. . . or other matter” containing child pornography is the act of possession , not “each ‘ matter ’ ” containing an image

. ). ¶ 64 Citing People v. Renander , 151 P.3d 657 (Colo. App. 2006), the People contend that a division of this court “faced the precise question presented in this case and held that each image of exploitative material may be charged as a separate offense.” But Renander interpreted an earlier version of the statute that did not include the critical language contained in the current iteration of subsection (5)(b). And when a statute is amended, it is presumed that the legislature intended to change the law. Robles v. Pe ople , 811 P.2d 804, 806 (Colo. 1991). ¶ 65 The Renander division analyzed the 2005 version of the statute, which contained the following language :

The sexual exploitation of a child is a class 3 felony ; except that sexual exploitation of a child by possessio n of sexually exploitative material pursuant to paragraph (b.5) of subsection (3) of this section is a class 1 misdemeanor, but a second or subsequent offense by such possession is a class 4 felony. § 18

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- 403(5), C.R.S. 2005.31

¶ 66 Because the statute did not c learly define the allowable unit of prosecution, the division looked to the term “any sexually exploitative material” in subsection (3)(b.5) and concluded that each discrete item of sexually exploitative material constituted an allowable unit of prosecutio n. 151 P.3d at 661

- 62

. The division’s analysis does not apply to the new version of the statute, however, which clearly delineates the unit of prosecution as each act of possession. ¶ 67 The People contend that construing the statute in this way will lead t o absurd results because a person who possesses twenty

- one images will face the same consequences as a person who possesses 21,000 images

. Even assuming that our construction of the statute gives rise to “undesirable results,” the “legislature must determ ine the remedy. Courts may not rewrite statutes to improve them.” People v. Butler

, 2017 COA 117, ¶ 35 (quoting Dep’t of Transp. v. City of Idaho Springs , 192 P.3d 490, 494 (Colo. App. 2008))

. ¶ 68 And we disagree that our construction of the statute would impermissibly constrain prosecutors ’ discretionary charging decisions. Prosecutors may continue to make charging decisions at32

their discretion, limited only by the statutory unit of prosecution and the prohibition against double jeopardy. ¶ 69 Under the appl icable unit of prosecution, Bott ’s possession of the memory card containing 294 images subjected him to only one conviction under section 18

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- 403(3)(b.5) , C.R.S. 2018 . The multiplicitous convictions therefore violated Bott’s rights under the Double Jeopa rdy Clause. Accordingly, we vacate eleven of Bott’s convictions and remand for resentencing. See People v. Johnson , 2016 COA 15, ¶ 25 (“In multicount cases, judges typically craft sentences on the various counts as part of an overall sentencing scheme, b ut when a count is vacated and that scheme unravels, they should have the discretion to reevaluate the underlying facts and sentences on the remaining counts.”)

. 4
IV. Conclusion ¶ 70 Bott’s convictions for sexual assault on a child by one in a position of trust and eleven of his convictions for sexual exploitation of a child (possession of child pornography ) are vacated. One

4 Because we remand for resentencing, we do not address Bott’s final contention that the mittimus must be corrected to reflect the court’s o ral sentence on the sexual exploitation of a child counts.33

conviction of sexual exploitation of a child (possession of child pornography ) and the three convictions of sexual exploitation of a child (distribution of child pornography) are affirmed. The case is remanded to the district court for resentencing. JUDGE RICHMAN and JUDGE TOW concur.