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 criminal 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 

retroactively. 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 2015 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, defendant 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 Nos. 14CR2153 & 15CR232

Honorable Linda Billings-Vela, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joshua Christian Bott,

Defendant-Appellant.

JUDGMENT AND SENTENCE AFFIRMED IN PART, VACATED IN PART, 

AND CASE REMANDED WITH DIRECTIONS

Division V

Opinion by JUDGE HARRIS

Richman and Tow, JJ., concur

Announced July 3, 2019

Philip J. Weiser, Attorney General, William G. Kozeliski, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant
1

¶ 1 In 2004, when defendant, Joshua Christian Bott, allegedly 

molested his infant daughter, Colorado firmly adhered to the 

“corpus delicti” rule. That rule requires the prosecution to present 

evidence other than the defendant’s confession to prove that the 

crime occurred. By the time of Bott’s trial in 2015, the Colorado 

Supreme Court had abandoned the corpus delicti rule and replaced 

it with a “trustworthiness” standard. See People v. LaRosa, 2013 

CO 2, ¶¶ 31, 38. 

¶ 2 At trial, the prosecution introduced Bott’s written confession, 

prepared as part of his sex offender treatment, as well as hundreds 

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 the 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 and 
2

because it did not the evidence was insufficient to support his 

sexual assault convictions. He also argues that, under the sexual 

exploitation 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 

material. 

¶ 4 We agree with both arguments. Accordingly, 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 2010, Bott was in sex offender treatment, a condition of the

probationary sentence imposed after he pleaded guilty to an 

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 and 

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 “rubb[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 from 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 prosecutor 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 

confession; (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 — Sexual 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 of 
5

trust because, 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 Bott’s challenge to the sufficiency of the evidence raises two 

questions. First, 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 

occurred 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 

appellate 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.” She 
6

intended to introduce photographs to “show and prove that Mr. Bott 

was around [his daughter] at that age” and that “he did touch 

[her].” The 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 LaRosa. 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 court 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. The prosecutor reiterated that LaRosa “did away 

with the corpus delicti rule.” She argued that the prosecution had 

established the trustworthiness of the confession through the 

ex-wife’s testimony that Bott changed the daughter’s diaper and the 
7

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 claim on 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 but 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 trial court to apply one standard over the other as a matter of 

trial strategy. But it seems clear to us that counsel construed 

LaRosa to preclude 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)). Thus, as a prerequisite to waiver, we must find that 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, misunderstood the import or 
9

scope of LaRosa’s retroactivity analysis. There is simply no 

evidence that Bott “intended to relinquish his right to be tried” in 

accordance with due process. Rediger, ¶ 42. Given 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,” the 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 divisions assumed that the defendants

knew of the error and so focused on the intentionality of the 

defendants’ acquiescence. Murray, ¶¶ 43-44; Kessler, ¶¶ 37-38. 

Tee is distinguishable on other grounds. There, the division

thoroughly analyzed the “knowing” component of waiver and 

concluded that, while “everyone involved” in the case had correctly 

assessed the relevant issue and the proper remedy, the defendant 
10

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

was waived. Id. at ¶¶ 31, 33, 35. 

¶ 22 Still, when 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 ¶ 27. 

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 uncorroborated 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 applied 
11

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 corroborating evidence that 

the injury or harm specified in the crime occurred and this injury or 

harm was caused by someone’s criminal activity). The corpus 

delicti rule was adopted in part to “reduce the possibility that a 

person is convicted based on a confession 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 no 
12

tangible injury results from the alleged criminal 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 

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

The 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 corroboration 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 the 
13

defendant 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 circumstances, 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 to application of civil statutes, but frequently courts 

use the terms interchangeably, see 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. Landgraf 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 conduct 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 process.”). 
15

¶ 31 But what are the types 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. Every law that aggravates a 

crime, or makes it greater than it was, when 

committed. 3rd. Every law that changes the 

punishment, and inflicts a greater 

punishment, than the law annexed to the 

crime, when committed. 4th. Every 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. 

¶ 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) (“For 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 People’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 sustain 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 corpus 

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 acts 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 quantum 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 545
18

(alterations omitted) (citation omitted). And, as our supreme court 

recognized, prior to LaRosa, a person would not have had fair 

warning of a change 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 

emerge. 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 notice goes beyond actual reliance,” United States 

v. Lata, 415 F.3d 107, 111 (1st Cir. 2005). As the Court explained, 

even apart from any claim of reliance, “[t]here is plainly a 

fundamental fairness interest” in “having the government abide by 
19

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 our 

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 court adopted the new standard. 

2. Did the Prosecution Present Corroborating Evidence 

Establishing That the Crime Was Committed?

¶ 40 Under the corpus delicti rule, the prosecution had to present 

corroborative evidence that a sexual assault occurred. LaRosa, 

¶ 14. While the corroborative evidence “need only be slight,” id. at
20

¶ 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 (Wash. Ct. App. 2000).

¶ 42 According to the People, the prosecution satisfied its burden 

by introducing the 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 establish 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 by 
21

Bott during the diaper changes. (She did not, for example, 

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 vaginal 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 delicti 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 earlier. According to the People, Bott’s 

possession of the images necessarily transforms 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 support that proposition, nor do the People cite any 

supporting authority in their briefing.
23

¶ 47 At least two courts have rejected the proposition. In State v. 

Delp, 178 P.3d 259 (Or. Ct. App. 2008), the defendant solicited a 

purported fourteen-year-old girl (actually 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 girlfriend’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 

introduced any corroborating evidence 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 inference that the alleged 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 towel, 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. 14, 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 the corpus delicti of the crimes. Id. at 
25

*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 acknowledged 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 Appellant’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 Appellant 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 16-10-301 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, 

even 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 Accordingly, 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, police 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 possession 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 the 
27

images from the memory card into separate counts. Bott contends 

that the sexual exploitation of child statute treats as a single 

offense the possession 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 constitutional 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 the 
28

unit of prosecution 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 under 

section 18-6-403(3)(b.5) and (5). Those statutory provisions provide

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 possession, 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. § 18-6-403(5)(b)(II); see 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, 154-55 (2d Cir. 2009) (The unit of prosecution under a 
30

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. People, 

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 possession 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.

§ 18-6-403(5), C.R.S. 2005.
31

¶ 66 Because the statute did not clearly 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 prosecution. 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 to 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 determine 

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 at 
32

their discretion, limited only by the statutory unit of prosecution 

and the prohibition against double jeopardy. 

¶ 69 Under the applicable unit of prosecution, Bott’s possession of 

the memory card containing 294 images subjected him to only one 

conviction under section 18-6-403(3)(b.5), C.R.S. 2018. The 

multiplicitous convictions therefore violated Bott’s rights under the 

Double Jeopardy 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, but 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 oral 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.