COLORADO COURT OF APPEALS 2016COA151 

Court of Appeals No. 14CA1142 

La Plata County District Court No. 13JD15 

Honorable Jeffrey R. Wilson, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

In the Interest of T.B., 

Juvenile-Appellant. 

JUDGMENT AFFIRMED 

Division VI 

Opinion by JUDGE RICHMAN 

Bernard, J., specially concurring 

Fox, J., dissenting 

Announced October 20, 2016 

Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant 

Attorney General, Denver, Colorado, for Plaintiff-Appellee 

Lord Law Firm, LLC, Kathleen A. Lord, Denver, Colorado, for JuvenileAppellant
1 

¶ 1 Two teenage girls alleged that a teenage boy, the juvenile T.B., 

had raped them. During the investigation into those allegations, 

the police discovered that the juvenile had used his cell phone to 

solicit, to receive, and to store nude photographs of teenage girls. 

The police identified and confirmed the ages of two of the girls 

depicted in the photographs, E.H. and L.B. 

¶ 2 The prosecution filed a delinquency petition that charged the 

juvenile with sexual assault, kidnapping, third degree assault, 

aggravated juvenile offender, and, based on the photographs of E.H. 

and L.B., two counts of sexual exploitation of a child. 

¶ 3 The trial court granted the juvenile’s request to sever the two 

sexual exploitation counts from the rest of the counts. A jury 

acquitted him of the sexual assault, kidnapping, third degree 

assault, and aggravated juvenile offender counts. 

¶ 4 The court then presided over a bench trial on the sexual 

exploitation of a child counts. At the trial’s end, the court found 

that the prosecution had proved, beyond a reasonable doubt, that 

the juvenile had committed two counts of sexual exploitation of a 

child, adjudicated the juvenile delinquent, sentenced him to two 
2 

concurrent two-year terms of sex offender probation, and required 

him to register as a sex offender. 

¶ 5 The juvenile appeals the court’s decision to adjudicate him 

delinquent. We affirm. 

I. Background 

¶ 6 The juvenile met E.H. and L.B. at a Future Farmers of America 

conference in September 2012. The juvenile and L.B. were then 

fifteen years old, and E.H. was seventeen years old. After the 

conference, the juvenile stayed in touch with both girls by telephone 

and text messaging because they lived in different towns. 

A. E.H. 

¶ 7 E.H. testified during the trial that, in the fall of 2012, the 

juvenile had texted her photographs of his erect penis. When E.H. 

received them, “[she] deleted them” because she “didn’t want to 

keep those on [her] phone.” 

¶ 8 The juvenile repeatedly asked her to send him nude 

photographs of herself. She said that “[t]he first time [she] told him 

no. Then after that [she] was like well, maybe after a while, and 
3 

then just kind of like getting him off [her] case, and then finally 

[she] just gave in.” 

¶ 9 She sent him three nude photographs of herself. The police 

later recovered these photographs from his cell phone. The 

prosecution introduced them to the court during the bench trial. 

¶ 10 E.H. added that the juvenile said that she “look[ed] good” in 

these photographs. He asked for more. She declined because she 

“was very ashamed of [herself.]” When her mother later found out 

about these photographs, “it really crushed [E.H.] morally” because 

E.H. had “always tried to be the best person [that she could] be.” 

B. L.B. 

¶ 11 L.B. testified at trial that, in the spring of 2013, the juvenile 

had texted her a photo of his erect penis. He proceeded to send her 

a series of texts asking her to send him nude pictures of herself. 

She eventually texted him a photograph that showed her topless. 

The police recovered this photograph from the juvenile’s cell phone, 

and the prosecution introduced it to the court. 

¶ 12 The juvenile continued to text photographs to L.B. of his erect 

penis even after he had been arrested. 
4 

II. Sufficiency of the Evidence 

¶ 13 The juvenile asserts that, for two reasons, the evidence is 

insufficient to support his adjudication for sexual exploitation of a 

child. First, he submits that the evidence did not show that the 

photographs of E.H. and L.B. depicted “erotic nudity,” which is a 

necessary component of the crime of sexual exploitation of a child. 

Second, he contends that the statute prohibiting sexual exploitation 

of a child does not forbid one teenager from possessing a nude 

photograph of another teenager as long as both teenagers are over 

the age of fourteen. We disagree with both contentions. 

A. Standard of Review 

¶ 14 The juvenile asserted at trial that (1) nude photos do not meet 

the erotic nudity definition necessary to prove sexual exploitation of 

a child; and (2) the chain of custody was insufficient to show that 

the juvenile knew that he possessed the nude photographs of E.H. 

and L.B. on his cell phone. So, he expressly preserved his first 

sufficiency of the evidence contention — that under the sexual 

exploitation statute the photographs of E.H. and L.B. did not depict 

erotic nudity. 
5 

¶ 15 But the juvenile did not argue to the trial court that the sexual 

exploitation statute did not apply at all to defendant’s conduct in 

this case. Thus, his second argument was not expressly preserved. 

¶ 16 The juvenile and the prosecution disagree about what 

standard of review should apply to the juvenile’s second, 

unpreserved, sufficiency of the evidence contention. 

¶ 17 The prosecution argues that we should review this 

unpreserved assertion only for plain error. See People v. McCoy, 

2015 COA 76M, ¶ 70 (Webb, J., specially concurring) (cert. granted

October 3, 2016); People v. Lacallo, 2014 COA 78, ¶¶ 12, 30-31. 

¶ 18 The juvenile asserts that we should apply “de novo” review. 

See Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005) (whether the 

record contains sufficient evidence to support conviction is reviewed 

de novo); People v. Mantos, 250 P.3d 586, 589 (Colo. App. 2009) 

(meaning of statute is a question of law subject to de novo review). 

But the term “de novo” describes the standard by which we 

determine whether an error occurred, and does not describe the test 

we apply to determine whether an error requires reversal. Even if 

plain error review applies, we determine whether an error occurred 
6 

by applying the de novo review per Dempsey. What the juvenile 

apparently means by the use of this term is that if we conclude that 

the evidence is insufficient we must vacate the conviction, and no 

retrial occurs, in effect a form of “structural error.” See McCoy, ¶ 

30. 

¶ 19 We recognize that there is disagreement on this court about 

which of these standards of review should apply in these 

circumstances. See McCoy, ¶ 68 (Webb, J., specially concurring) 

(citing cases showing disagreement). We are persuaded by the 

majority’s reasoning in McCoy, ¶¶ 5-36, and the reasoning of the 

special concurrences in Lacallo, ¶¶ 59-73 (Román, J., concurring in 

part and dissenting in part), and People v. Rediger, 2015 COA 26, 

¶ 67 (Richman, J., specially concurring) (cert. granted Feb. 16, 

2016), so we shall apply that reasoning in this case. See People v. 

White, 179 P.3d 58, 60-61 (Colo. App. 2007) (one division of the 

court of appeals is not obligated to follow the decision of another). 

¶ 20 We review both contentions challenging the sufficiency of the 

evidence in accord with the standards set forth in Dempsey, 117 

P.3d at 807, to determine whether the court erred. In doing so, we 
7 

consider whether the relevant evidence, both direct and 

circumstantial, when viewed as a whole and in the light most 

favorable to the prosecution, was substantial and sufficient to 

support a conclusion by a reasonable mind that the defendant was 

guilty of the charge beyond a reasonable doubt. People v. Wentling, 

2015 COA 172, ¶ 8; see also Clark v. People, 232 P.3d 1287, 1291 

(Colo. 2010). If we decide the court erred, we will not consider 

whether the error was obvious, or whether the error cast serious 

doubt on the reliability of the judgment of conviction. Cf. Rediger, ¶ 

11. 

B. The Sexual Exploitation of a Child Statute 

¶ 21 The sexual exploitation of a child statute states, as relevant 

here, that 

(3) A person commits sexual exploitation of a 

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

. . . 

(b.5) Possesses or controls any sexually 

exploitative material for any purpose . . . . 

§ 18-6-403(3)(b.5), C.R.S. 2016. 
8 

¶ 22 “‘Sexually exploitative material’ means any photograph . . . 

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

used for explicit sexual conduct.” § 18-6-403(2)(j). In this context, 

a child is “a person who is less than eighteen years of age.” § 18-6-

403(2)(a). 

¶ 23 For the purposes of our analysis, the statutory definition of 

“explicit sexual conduct” includes “erotic nudity.” § 18-6-403(2)(e). 

“Erotic nudity” means the display of the 

human male or female genitals or pubic area, 

the undeveloped or developing genitals or 

pubic area of the human male or female child, 

the human breasts, or the undeveloped or 

developing breast area of the human child, for 

the purpose of real or simulated overt sexual 

gratification or stimulation of one or more of 

the persons involved. 

§ 18-6-403(2)(d). 

C. Trial Court Findings 

¶ 24 When the trial court adjudicated the juvenile delinquent at the 

end of the bench trial, it made a series of factual findings: 

 E.H. and L.B. were less than eighteen years old when they 

took the photographs of themselves and texted them to the 

juvenile. 
9 

 The juvenile knew that E.H. and L.B. were under eighteen 

years old. 

 The juvenile knew that he had received the nude 

photographs; indeed, he had complimented one of the girls 

on her appearance. 

 The juvenile possessed the nude photographs because they 

were on his cell phone when the police examined it. 

 There was an adequate chain of custody between the police 

seizure of the cell phone and the copies of the photographs 

of the girls that the prosecution introduced as evidence 

partially because, during trial, the girls had identified the 

copies as being the photographs that they had texted to the 

juvenile. 

 The juvenile repeatedly asked E.H. and L.B. for nude 

photographs after he had sent them photographs of his 

erect penis. The nude photographs of the girls were 

therefore erotic nudity. 

 The juvenile was guilty, beyond a reasonable doubt, of both 

counts of sexual exploitation of a child. 
10 

D. The First Sufficiency of the Evidence Contention 

¶ 25 We first address the juvenile’s contention that the evidence 

was insufficient to prove that he knew that he possessed 

photographs depicting erotic nudity. We review the evidence de 

novo in the light most favorable to the prosecution, and, after doing 

so, we conclude that the evidence was sufficient. See Clark, 232 

P.3d at 1291; Dempsey, 117 P.3d at 807.

1. Chain of Custody 

¶ 26 The juvenile first contends that the chain of custody linking 

his cell phone and the photographs of E.H. and L.B. admitted at 

trial was insufficient. He argues the chain of custody was 

insufficient because it did not show that the photographs were 

accurate copies of the photographs that were on the juvenile’s 

telephone. We are not persuaded. 

¶ 27 E.H. and L.B. identified the trial photographs as copies of the 

ones that they had taken of themselves and that they had texted to 

the juvenile, using his cell phone number. E.H. also testified that 

the juvenile had complimented her on her photographs. 

¶ 28 The evidence showed that the police had searched the 

juvenile’s cell phone. They had found the photographs of E.H. and 
11 

L.B., nude photographs of other girls, and photographs of the 

juvenile’s erect penis. A digital forensic officer testified that the 

data in the juvenile’s cell phone had not been tampered with and 

that the photographs from E.H. and L.B. had been opened and 

viewed. 

¶ 29 Any purported deficiencies in the chain of custody, such as a 

lack of clarity about which police officer had made the copies of the 

photographs from the juvenile’s cell phone, went to the weight that 

the trial court gave the photographs, not to their admissibility. See 

People v. Moltrer, 893 P.2d 1331, 1335 (Colo. App. 1994). 

¶ 30 We conclude that this evidence established, beyond a 

reasonable doubt, that (1) the photographs the prosecution 

introduced during the bench trial were the nude photographs that 

E.H. and L.B. had texted to the juvenile; and (2) the defendant knew 

what these photographs showed and who sent them. In other 

words, we conclude that there was sufficient evidence to prove that 

the juvenile knowingly possessed the nude photographs of E.H. and 

L.B. 

2. Erotic Nudity 
12 

¶ 31 The juvenile asserts that the photographs did not contain 

erotic nudity because E.H. and L.B. did not take them for their own 

sexual satisfaction. This contention assumes that the reference to 

“persons involved” in the definition of erotic nudity necessarily 

means the people who are displayed in the photograph. We 

disagree. 

¶ 32 A photograph qualifies as “erotic nudity” if it meets two 

conditions. First, as relevant here, the photograph must depict the 

female genitals, pubic area, or breasts of a child. § 18-6-403(2)(d); 

People v. Gagnon, 997 P.2d 1278, 1281-82 (Colo. App. 1999). 

Second, the depiction in the photograph must be for the purpose of 

real or simulated overt sexual gratification or stimulation of one or 

more of the persons involved. § 18-6-403(2)(d); Gagnon, 997 P.2d at 

1281-82. 

¶ 33 The juvenile does not dispute that the photographs met the 

first condition, so we turn to the second. When analyzing the 

second condition, we consider whether (1) the focal point of the 

visual depiction was on the child’s breasts, genitals, or pubic area; 

(2) the setting of the visual depiction was sexually suggestive, such 
13 

as in a place or pose generally associated with sexual activity; (3) 

the child was depicted in an unnatural pose, or in inappropriate 

attire, considering the child’s age; (4) the child was fully or partially 

clothed, or nude; (5) the visual depiction suggested sexual coyness 

or a willingness to engage in sexual activity; and (6) the visual 

depiction appeared to be intended or designed to elicit a sexual 

response in the viewer. Gagnon, 997 P.2d at 1282. 

¶ 34 The focal points of the photographs in this case were the nude 

breasts of E.H. and L.B. and E.H.’s pubic area. There was sufficient 

evidence to support the conclusion that the girls’ poses were 

unnatural and suggestive: in one photograph, E.H. was standing in 

front of a mirror when she took a photograph of her nude body 

reflected in the mirror; in another photograph, L.B.’s shirt is pulled 

down below her breasts, exposing them. The photographs 

suggested a sexual coyness. And they appeared to be intended and 

designed to elicit a sexual response from the juvenile. Some of the 

text messages between the juvenile and L.B. further confirm the 

conclusion that the juvenile requested pictures of her for the 

purposes of sexual gratification and arousal. For example, some 
14 

referred to a “dirty pic” and a picture shortly after she showered. 

Their text message discussions included references to intercourse, 

like “I can probe u lol . . . Stick my d*** in u lol,” “wow no love u to 

f*** u too,” and “We’re gunna f*** lol :).” 

¶ 35 Our supreme court has rejected the juvenile’s contention that 

the focus of the “overt sexual gratification” component of the 

definition of erotic nudity could only be the persons depicted in the 

photographs. Rather, “[t]he person (or persons) ‘involved’ are not 

always depicted in the material” and “the sexual gratification of that 

person need not be shown in the material.” People v. Batchelor, 800 

P.2d 599, 604 (Colo. 1990). In other words, “if the sexual 

gratification is of a person not in the material, the sexual 

gratification of that person need not be shown in the material.” Id. 

So, following the supreme court’s reasoning, we conclude that, in 

this case, “the overt sexual gratification was of” the juvenile, who 

repeatedly asked the girls for the photographs after sending them a 

picture of his erect penis. Id. 

¶ 36 We also disagree with the juvenile’s attempt to distinguish 

Batchelor by pointing out that the defendant in that case was an 
15 

adult. The age of the defendant was not a factor in the analysis of 

whether the sexual gratification element was met. 

E. The Second Sufficiency of the Evidence Contention 

¶ 37 The juvenile asserts for the first time on appeal that nude 

photographs taken by teenagers of themselves with no adult 

involvement cannot constitute “sexually exploitative materials” 

because they do not record any act of sexual abuse of a child. He 

further asserts that such photos are a constitutionally protected 

form of speech because they express the teenager’s sexuality to the 

extent that they are neither obscene nor the product of sexual 

abuse. Finally, he suggests that “teen sexting” should only be 

prosecuted under a different statute, and that statute was not 

violated in this case. 

1. Sexual Abuse of a Child 

¶ 38 The juvenile argues that application of the statute to his 

conduct is limited to “sexually exploitative materials” that record 

“sexual abuse of a child.” He imports this limitation from the 

legislative declaration to the statute, which states: “The general 

assembly further finds and declares that the mere possession or 
16 

control of any sexually exploitative material results in continuing 

victimization of our children by the fact that such material is a 

permanent record of an act or acts of sexual abuse of a child . . . .” 

§ 18-6-403(1.5) (emphasis added). According to the juvenile, 

teenagers who photograph their own bodies do not sexually abuse 

themselves, nor do they create a permanent record of any such 

abuse. Thus, he argues the evidence in this case was insufficient to 

support a conviction. We reject his argument for several reasons. 

¶ 39 First, the plain language of the statute does not contain the 

phrase “sexual abuse” in its definitions of “sexually exploitative 

material,” “explicit sexual conduct,” or “erotic nudity.” See § 18-6-

403(2)(d), (e), (j). Because the statutory language is clear and 

unambiguous, we apply the statute as written and need not engage 

in further statutory analysis as urged by the juvenile. See 

Bostelman v. People, 162 P.3d 686, 689 (Colo. 2007); People v. 

Vecellio, 2012 COA 40, ¶ 14. 

¶ 40 When a statute is ambiguous courts may consider the 

legislative declaration or purpose. § 2-4-203, C.R.S. 2016. For 

example, in People v. Renander, 151 P.3d 657 (Colo. App. 2006), 
17 

this court considered the legislative declaration at issue here to 

determine whether each offending image could be a separate 

chargeable offense. Id. at 661-62. But it did so only after finding 

ambiguity in the term “any.” Id. 

¶ 41 When a statute is unambiguous, courts generally apply the 

plain and ordinary meaning of terms without examining the 

legislative declaration. See Bostelman, 162 P.3d at 690; Stamp v. 

Vail Corp., 172 P.3d 437, 442–43 (Colo. 2007). 

¶ 42 In this case, because the statute is unambiguous, we do not 

consider the legislative declaration. As set forth above, the 

contested provisions are clear. The statute defines “sexually 

exploitative material” as a series of visual materials that “depict[] a 

child engaged in, participating in, observing, or being used for 

explicit sexual conduct.” § 18-6-403(2)(j). It then defines the term 

“explicit sexual conduct” to include, among other things, erotic 

nudity. § 18-6-403(2)(e). It further defines “erotic nudity.” § 18-6-

403(2)(d). Because none of these definitions is ambiguous, we 

apply their plain and ordinary meanings. Turbyne v. People, 151 

P.3d 563, 567 (Colo. 2007) (If the statutory language is clear, we 
18 

apply the plain meaning and we do not add words to the statute.). 

The plain and ordinary meaning of “sexually exploitative material” 

does not require depictions of sexual abuse of a child. None of the 

definitions contains such a requirement. The legislative declaration 

cannot replace or amend the clear definitions of terms. 

¶ 43 Second, even if we did consider the legislative declaration, the 

outcome remains the same because the legislative declaration 

cannot override a statute’s elements. “To effectuate the intent of 

the legislature, a statute must be read and considered as a whole 

and should be interpreted so as to give consistent, harmonious, and 

sensible effect to all of its parts.” Stamp, 172 P.3d at 444. The 

juvenile’s edit to the language would immunize behavior otherwise 

criminalized under the statute. This is not consistency and 

harmony; it is conflict. Such emendation also risks undermining 

the legislative intent by excluding images deemed harmful to 

children. The juvenile’s proposed revision also adds confusion by 

introducing the new undefined term of “sexual abuse of a child.” 

¶ 44 On this point, People v. Enea, 665 P.2d 1026 (Colo. 1983), is 

instructive. There, the supreme court rejected an attempt, like the 
19 

juvenile’s here, to add an element to the sexual exploitation of a 

child statute based on language in the legislative declaration. Id. at 

1028-29. Though involving an earlier version of the declaration and 

a different provision of the statute, the supreme court’s holding is 

equally true here: “paragraph (1) is a statement of legislative 

purpose. The prefatory language does not alter the elements of the 

crime, which are set forth in paragraph (3).” Id. at 1029. Similarly, 

here the “prefatory language” cannot alter the elements outlined in 

paragraph (3)(b.5) or definitions in paragraphs 2(d), (e), and (j). 

¶ 45 We thus reject the juvenile’s effort to import a sexual abuse of 

a child component into the statutory elements. 

2. Constitutionally Protected Speech 

¶ 46 On appeal, the juvenile further argues that nude photographs 

taken by teenagers of themselves are constitutionally protected 

speech to the extent they are neither obscene nor the product of 

sexual abuse. He argues that unless the statute is interpreted as 

he suggests, it is unconstitutional as applied to him. We conclude 

this argument is not properly before this court. He did not 

challenge the constitutionality of the statute as applied to him 
20 

before the trial court. We will not assess constitutionality for the 

first time on appeal. O’Quinn v. Baca, 250 P.3d 629, 630 (Colo. 

App. 2010); see also People v. Greer, 262 P.3d 920, 936 (Colo. App. 

2011) (J. Jones, J. concurring). 

3. Teen Sexting 

¶ 47 The juvenile also asserts a broader argument that the sexual 

exploitation of a child statute does not cover “teen sexting.” This 

term refers to teenagers sending sexually explicit messages or 

images to one another by cell phone. 

¶ 48 First, the juvenile uses the legislative declaration to argue the 

statute targets only adult conduct. He contends there is a 

meaningful difference between adult pedophiles possessing child 

pornography and teenagers with nude photos of their boyfriends or 

girlfriends. We disagree. The language of the statute covers 

proscribed behavior committed by teenagers involving images of 

other teenagers. 

¶ 49 Under the statute’s plain meaning, the perpetrator’s age is 

irrelevant. Notwithstanding the dissent’s valid contention that 

juveniles do not possess the emotional capabilities of adults, the 
21 

statute does not exempt teenagers. Indeed, the Colorado criminal 

code contains no general exception for the criminal responsibility of 

teenagers. True, the Colorado juvenile code has special procedural 

and sentencing rules for teenagers accused of criminal misconduct. 

See §§ 19-2-104, -512, -517, -907, -908, C.R.S. 2016. But, even so, 

it does not immunize teenagers from responsibility, or alter the 

elements of crimes when committed by teenagers. In short, when it 

comes to responsibility, teenagers are not a protected class. Absent 

specific language in the statute, if a teenager’s behavior satisfies the 

elements, a teenager is just as responsible as an adult. 

¶ 50 In addition to covering perpetrators who are teenagers, the 

statute also specifically addresses images of teenagers. “Sexually 

exploitative material” includes visual material depicting a child in 

certain circumstances. § 18-6-403(2)(j) & (3)(b.5). A child is a 

person under the age of eighteen. § 18-6-403(2)(a). Most teenagers 

fall within the statute’s definition of “child.”1 Nothing in the statute 

 

1 Although the headers in the juvenile’s briefs argue the statute 

does not criminalize “nude ‘selfies’ exchanged between teenagers 

older than fourteen,” the juvenile never articulates a reason behind 

this age cutoff. Our analysis does not turn on the earliest age of a 

teenager. 
22 

distinguishes a person possessing or controlling the visual material 

and the child depicted. Second, the juvenile makes a more 

nuanced argument that the legislature intended to carve out 

protection for the specific behavior of teen sexting. He relies on the 

legislative history and text of a different statute — the Internet child 

exploitation statute — which outlaws “importun[ing], invit[ing], or 

entic[ing]” certain conduct through, among other means, text 

messaging if “the actor knows or believes [the victim] to be under 

fifteen years of age and at least four years younger than the actor.” 

§ 18-3-405.4(1), C.R.S. 2016. The juvenile also notes that in 2009 

the legislature amended both the Internet child exploitation statute 

and the sexual exploitation of a child statute. 

¶ 51 These are two different criminal statutes, and we do not read 

the applicability of one to exclude the applicability of the other. 

They ban different behavior, have different punishments, and 

address different harms. Compare § 18-6-403(3)(b.5), with § 18-3-

405.4. Behavior may violate one, both, or neither of these statutes. 

Generally, “[i]t is up to the prosecutor to determine which crimes to 

charge when a person's conduct arguably violates more than one 
23 

statute.” People v. Clanton, 2015 COA 8, ¶10. A different statute’s 

legislative history does not affect our interpretation of the child 

exploitation statute. If anything, it is telling that the legislature did 

not amend the sexual exploitation of a child statute to mirror the 

age-focused language of the Internet child exploitation statute. 

¶ 52 Although the issue of teen sexting may be a growing matter of 

public concern, whether it should be illegal and, if so, under what 

circumstances is a policy decision for the General Assembly. By 

affirming this conviction we do not mean to encourage prosecution 

of such offenses, and we urge prosecutors to continue to use 

discretion as to such cases. But, the sexual exploitation of a child 

act criminalizes teen sexting when it meets the enumerated 

elements of the statute. These elements are clear and 

unambiguous. Although the consequences for a convicted teenager 

may be substantial, as pointed out in the dissent, when the 

evidence satisfies the elements of the statute, we must apply the 

statute as written. 

¶ 53 Accordingly, we conclude that sufficient evidence exists to 

support the sexual exploitation convictions. The evidence 
24 

introduced at trial is sufficient to support the convictions, and the 

juvenile’s statutory interpretation arguments are misplaced. 

III. Right to a Jury Trial 

¶ 54 The juvenile further contends that the court erroneously 

denied his statutory right to a jury trial on the sexual exploitation of 

a child counts after it severed them from the sexual assault, 

kidnapping, third degree assault, and aggravated juvenile offender 

counts. He asserts that the court’s decision to sever the counts 

deprived him of his statutory right to a jury trial, and, alternatively, 

that the court abused its discretion when it denied his request for a 

jury trial. We disagree. 

A. Law 

¶ 55 As is pertinent to our analysis, section 19-2-107(1), C.R.S. 

2016, states: 

In any action in delinquency in which a 

juvenile is alleged to be an aggravated juvenile 

offender . . . the juvenile or the district 

attorney may demand a trial by a jury of not 

more than six persons except as provided in 

section 19-2-601(3)(a), or the court, on its own 

motion, may order such a jury to try any case 

brought under this title . . . . 

B. Effect of Severance 
25 

¶ 56 The juvenile asserts that the trial court’s decision to sever the 

counts in this case from the sexual assault, kidnapping, third 

degree assault, and aggravated juvenile offender counts deprived 

him of his statutory right to a jury trial on the sexual exploitation 

counts. Focusing on the word “action,” he asserts that all the 

counts together constituted one action. He therefore adds that he 

was entitled to a jury trial under section 19-2-107(1). We disagree. 

¶ 57 The juvenile took a different position in the trial court. In his 

motion for a jury trial on the sexual exploitation of a child counts, 

he stated that the severed sexual exploitation counts constituted 

“an action”: 

While the action against [the juvenile] does not 

allege either that he is an aggravated juvenile 

offender or that he has committed a crime of 

violence for these counts, the significance of 

the fact that the General Assembly granted the 

Court discretion, to order a large number of 

delinquency cases to be tried to a jury, cannot 

be overemphasized. 

(Emphasis added.) 

¶ 58 We therefore conclude that the juvenile waived the contention 

that he now raises on appeal. See People v. Geisick, 2016 COA 113, 

¶ 16 (holding when a party removes an issue from a court’s 
26 

consideration, the party has waived the issue and we may not 

review it on appeal). 

C. Abuse of Discretion 

¶ 59 The juvenile also asserts that the trial court abused its 

discretion when it denied his request for a jury trial. We are not 

persuaded. 

¶ 60 Section 19-2-107(1) provides juveniles with a statutory right to 

a jury trial in certain circumstances, and it allows courts — in their 

discretion — to empanel a jury in delinquency proceedings involving 

felony offenses. People in Interest of A.B.-B., 215 P.3d 1205, 1207 

(Colo. App. 2009). 

¶ 61 We review a court’s ruling on a juvenile’s request for a jury 

trial in a delinquency proceeding for an abuse of discretion. Id. 

“Discretionary decisions will not be disturbed unless the court’s 

action was manifestly arbitrary, unreasonable, or unfair.” Id. at 

1209 (citation omitted). Under the abuse of discretion standard, 

the test is not “whether we would have reached a different result 

but, rather, whether the trial court’s decision fell within a range of 
27 

reasonable options.” People v. Rhea, 2014 COA 60, ¶ 58 (citation 

omitted). 

¶ 62 The trial court denied the juvenile’s motion for a jury trial 

without making any factual findings. We nonetheless conclude that 

the court did not abuse its discretion when it denied the motion 

because its decision fell within a range of reasonable options. See 

id. 

¶ 63 Unlike the aggravated juvenile offender count, which a jury 

resolved, the juvenile did not have a statutory right to a jury trial on 

the sexual exploitation of a child counts. So, although the court did 

not grant the juvenile the additional discretionary benefit of a jury 

trial, it did not deprive him of any rights when it denied his request. 

¶ 64 As the division observed in People in Interest of A.B.-B., 215 

P.3d at 1209, “[i]t is true that, following trial, A.B.-B. was required 

to register as a sex offender and he may suffer social stigma 

because of this adjudication.” But the division added that such 

consequences were “little different from those associated with many 

prosecutions for abuses of young children.” Id. at 1210. Thus, the 

division ultimately concluded that, despite these serious 
28 

consequences, the trial court did not abuse its discretion when it 

denied A.B.-B.’s request for a jury trial. We think that the same 

reasoning applies to this case. 

IV. Selective Prosecution 

¶ 65 The juvenile asserts that the trial court should have granted 

his motion to dismiss the sexual exploitation of a child charges 

because the prosecutor selectively prosecuted him. He asserts that 

the prosecutor charged him because he was male. He asks that, at 

a minimum, we remand the case to the trial court for further 

proceedings on this issue. We disagree. 

A. Law 

¶ 66 A prosecutor has “wide discretion in determining who[m] to 

prosecute for criminal activity and on what charge.” People v. Kurz, 

847 P.2d 194, 196 (Colo. App. 1992) (citing People v. MacFarland, 

189 Colo. 363, 540 P.2d 1073 (1975)); see also Colo. Const. art. VI, 

§ 13. “In the ordinary case, so long as the prosecutor has probable 

cause to believe that the accused committed an offense defined by 

statute, the decision whether or not to prosecute, and what charge 

to file or bring before a grand jury, generally rests entirely in his 
29 

discretion.” United States v. Armstrong, 517 U.S. 456, 464 (1996) 

(citation omitted). 

¶ 67 However, equal protection requires that a decision to 

prosecute not be based on “an unjustifiable standard such as race, 

religion, or other arbitrary classification.” Id. at 464-65 (citation 

omitted); see also People v. Gallegos, 226 P.3d 1112, 1117 (Colo. 

App. 2009). “A selective-prosecution claim is not a defense on the 

merits to the criminal charge itself, but an independent assertion 

that the prosecutor has brought the charge for reasons forbidden by 

the Constitution.” Armstrong, 517 U.S. at 463. 

¶ 68 The fact that some people escaped prosecution under a statute 

is not a denial of equal protection unless the prosecutor’s selective 

enforcement of the statute was intentional or purposeful. Kurz, 847 

P.2d at 196-97. A defendant must show that the alleged selective 

prosecution had a discriminatory effect and that it was motivated 

by a discriminatory purpose. Id. at 197. “In order to dispel the 

presumption that a prosecutor has not violated equal protection, a 

criminal defendant must present clear evidence to the contrary.” 

Armstrong, 517 U.S. at 465 (citation omitted). 
30 

B. Standard of Review 

¶ 69 The parties disagree about what standard of review we should 

use to resolve the juvenile’s selective prosecution contention. Citing 

People v. Voth, 2013 CO 61, ¶ 15, and People v. Garcia, 169 P.3d 

223, 226 (Colo. App. 2007), the juvenile contends that we should 

review the trial court’s decision for abuse of discretion because 

ruling on a motion to dismiss is within the trial court’s discretion. 

¶ 70 The prosecution responds that we should follow the majority of 

federal appellate courts that review such claims under the “clearly 

erroneous standard.” See, e.g., United States v. Brantley, 803 F.3d 

1265, 1270 (11th Cir. 2015) (applying the clearly erroneous 

standard for factual findings and de novo standard for legal 

conclusions); United States v. Taylor, 686 F.3d 182, 197 (3d Cir. 

2012) (same). 

¶ 71 We do not need to resolve this disagreement because we 

conclude that, even if we apply an abuse of discretion standard to 

the trial court’s decision, the court’s decision to deny the juvenile’s 

motion was not manifestly arbitrary, unreasonable, or unfair. See 
31 

People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002). And we reach that 

conclusion because the trial court found, based on facts in the 

record, that the prosecution was not motivated by discriminatory 

intent when it prosecuted the juvenile for the two counts of sexual 

exploitation of a child. 

C. Procedural History 

¶ 72 After the jury acquitted the juvenile of the first four counts, he 

filed a motion to dismiss the sexual exploitation of a child counts. 

He alleged that the prosecution was selectively prosecuting him 

because he was male. During a hearing on the motion, the 

prosecutor stated: 

I want to be perfectly clear. The reason [the 

juvenile] is being prosecuted for these sexually 

[exploitative] images charges is because of the 

other underlying charges with which he’s 

facing. He’s alleged to have sexually assaulted 

-- and is currently charged here and in New 

Mexico with sexually assaulting two of 

his classmates, and we have a [Rule] 404(b) 

witness, his half-sister, who is also making 

allegations that she was sexually assaulted, 

and this is why we have selected [the juvenile] 

for this particular prosecution. 

[Defense counsel is] correct, we do not 

prosecute most teenagers for possessing and 

distributing sexually [exploitative] images 
32 

because there are a lot of kids out there 

making incredibly stupid decisions to take 

pictures of their genitalia and send them to 

each other. This is a -- probably a larger 

number of people than anybody in the 

community cares to know about. 

So as a policy, no, we typically do not 

prosecute those cases based upon the sort of 

short sighted and ignorant decisions that 

teenagers can make. However, when people 

that are in [the juvenile’s] situation find 

themselves also, as the [prosecution is] 

alleging, sexually assaulting his classmates, in 

addition to possessing these images, yes, we 

do think that’s worth prosecution and that’s 

why we did it. 

¶ 73 After the parties and the court discussed another case brought 

against a juvenile male within that jurisdiction on similar charges, 

defense counsel stated that the prosecution had added the charges 

in this case because the juvenile had refused to enter a guilty plea 

concerning the sexual assault, kidnapping, third degree assault, 

and aggravated juvenile offender counts. The prosecutor responded 

that 

[o]ne, with respect to us filing it after the initial 

charges, I want to refresh everyone’s 

recollection here, that [the prosecution was] 

making everybody aware that these were 

possible charges that we were continuing to 

investigate at the beginning of this case and 
33 

that we may upon the conclusion of that 

investigation add those charges. So I guess I 

sort of want to set it straight that it wasn’t 

while we’re going to plead not guilty and these 

charges get added, but I want to go back to the 

fact that we have been discussing these 

charges from the outset. 

The vindictive prosecution, which was not 

alleged in their motion but is apparently being 

alleged now based upon our response, those 

charges go directly to what it is he’s being 

charged with. He’s being charged with sexual 

assault. These are sexually related charges 

with other teenage girls and they’re being 

brought because we think [the juvenile’s] 

behavior is dangerous and not for any 

vindictive purpose. 

¶ 74 The court then denied the juvenile’s selective prosecution 

motion. It stated: 

The case law is pretty clear that in order for 

there to be a problem or a constitutional 

problem with selective prosecution, that 

selective prosecution has to be based upon an 

unjustifiable standard such as race, religion or 

other arbitrary classification, it has to have a 

discriminatory effect, motivated by a 

discriminatory purpose. . . . 

In this case, it’s pretty clear that [the juvenile] 

is not [a member of a] suspect classification, 

[the juvenile is] a young white male, so I don’t 

see that being a discriminatory purpose. The 

[prosecutor] has explained that [the juvenile] 

got charged with this because of the other 
34 

charges he is facing, and I do remember 

somewhat, I assume it’s [a particular 

prosecutor], but I do remember someone 

talking about the potential additional charges 

being filed. So at this time I’m going to deny 

that motion and not dismiss the case because 

of selective prosecution. 

D. Analysis 

¶ 75 The juvenile first asserts that the trial court erred when it 

stated that he could not be a victim of selective prosecution because 

he was a white male. We agree that this is a misstatement of the 

law. See, e.g., United States v. Diaz, 961 F.2d 1417, 1420 (9th Cir. 

1992) (“[C]ourts . . . have the authority to inquire into charging . . . 

decisions to determine whether the prosecutor is abusing her 

awesome power to favor or disfavor groups defined by their gender, 

race, religion or similar characteristics.” (quoting United States v. 

Redondo-Lemos, 955 F.2d 1296, 1301 (9th Cir. 1992))) (emphasis 

added); cf. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 

78 (1998) (“Title VII’s prohibition of discrimination ‘because of . . . 

sex’ protects men as well as women.”) (citation omitted); People v. 

Gandy, 878 P.2d 68, 70 (Colo. App. 1994) (gender discrimination 

claim based on removal of male jurors was cognizable). 
35 

¶ 76 But, although the trial court made this legal mistake, we 

nonetheless conclude that the court did not err when it denied the 

juvenile’s selective prosecution motion because it made factual 

findings that are supported by the record. The court found that (1) 

the prosecutor decided to add the sexual exploitation of a child 

counts because of the other, more serious charges that the juvenile 

faced; and (2) a prosecutor gave notice to the court and to the 

juvenile about the prospect of adding these counts as the 

investigation unfolded, which eventually led the police to E.H. and 

L.B. We conclude that the record supports these findings. See 

People v. Gallegos, 251 P.3d 1056, 1062 (Colo. 2011).

¶ 77 In other words, the trial court found that the juvenile had not 

established that the prosecution had acted with an impermissible 

discriminatory purpose. See Kurz, 847 P.2d at 197. And we add 

that our review of the record has not turned up any “clear evidence” 

to the contrary. See Armstrong, 517 U.S. at 465. 

V. Conclusion 

¶ 78 The delinquency adjudication is affirmed. 

JUDGE BERNARD specially concurs. 
36 

JUDGE FOX dissents. 

 
37 

JUDGE BERNARD, specially concurring. 

¶ 79 I respectfully disagree with the majority’s analysis of the 

second, unpreserved sufficiency-of-the-evidence contention in Parts 

II.A and II.E of the majority opinion. I therefore specially concur 

with those parts of the opinion. I concur without reservation in the 

rest of it. 

¶ 80 I am persuaded by the majority’s reasoning in People v. 

Lacallo, 2014 COA 78, ¶¶ 12, 30-31, the majority’s reasoning in 

People v. Rediger, 2015 COA 26, ¶¶ 10-14, and the reasoning of the 

special concurrence in People v. McCoy, 2015 COA 76M, ¶ 70 

(Webb, J., specially concurring). So I would apply that reasoning in 

this case. As a result, I would review the juvenile’s second 

sufficiency-of-the-evidence claim for plain error. 

¶ 81 Plain error review involves three questions: whether there was 

an error; if so, whether it was obvious; and, if so, whether the error 

cast serious doubt on the reliability of the judgment of conviction. 

Rediger, ¶ 11. “Where analyzing the evidence requires the 

preliminary interpretation of a statute” that the defendant did not 

raise in the trial court and that no Colorado court has decided, “the 
38 

initial focus is on obviousness.” Id. at ¶ 12. In this context, we do 

not address the merits of a sufficiency-of-the-evidence claim if (1) it 

would have been difficult to figure out the meaning of “operative 

statutory terms” under existing Colorado law, id.; or (2) the 

contention concerning those statutory terms did not “implicate a 

‘well-settled legal principle that numerous courts elsewhere have 

uniformly embraced,’” id. (quoting Lacallo, ¶ 31). But, even if other 

courts have not consistently resolved the statutory interpretation 

question in a particular way, a sufficiency-of-the-evidence error is 

nonetheless obvious if the statute is unambiguous and its terms 

have common and ordinary meanings. Id. at ¶ 13. And, if the error 

is obvious, we must review the sufficiency of the evidence claim de 

novo. Id. 

¶ 82 To summarize, plain error analysis in the sufficiency-of-theevidence context will only reach a different result than de novo 

review if three things happen: we have to interpret a statute before 

we move on to analyzing the evidence in the context of that statute; 

we have to interpret the statute because the defendant has urged 

us to do so for the first time on appeal; and the defendant’s 
39 

proposed interpretation of the statute is not obvious. Id. at ¶ 14. 

“Otherwise, whether or not review is for plain error, the analysis will 

start — and usually end — with examining the sufficiency of the 

evidence de novo.” Id. 

¶ 83 Because the first step in the analysis of this sufficiency-of-theevidence contention is the interpretation of a statute that the 

juvenile did not raise in the trial court, I first focus on the 

obviousness prong of the plain error test. See id. at ¶ 12. I 

conclude, for the following reasons, that the statutory interpretation 

upon which the juvenile relies in making his sufficiency-of-theevidence contention was not obvious. 

¶ 84 First, the juvenile’s contention has never been adopted by a 

Colorado appellate court, and it does not “involve[] a well-settled 

legal principle that numerous courts elsewhere have uniformly 

embraced.” See Lacallo, ¶ 31. Indeed, the juvenile’s appellate briefs 

do not cite one appellate decision from any court in the United 

States that has adopted this contention. 

¶ 85 Second, the juvenile’s contention is not based on a simple and 

plain assertion that the sexual exploitation statute was 
40 

unambiguous and that its terms had common and ordinary 

meanings, so a simple reading of the statute would have revealed 

the error. See Rediger, ¶ 13. Instead, his contention has a lot of 

moving parts, and some of them are complex. 

¶ 86 The juvenile’s contention analyzes the language of sexual 

exploitation of a child statute. It discusses the legislature’s intent. 

It compares the sexual exploitation of a child statute to the 

language and the legislative history of a different statute, section 

18-3-405.4, C.R.S. 2015, which addresses Internet exploitation. 

And, incorporating a constitutional contention, it asserts that “the 

creation of the texted images in this case did not involve sexual 

abuse of a child or criminal conduct,” so the juvenile’s possession of 

the photographs “cannot be banned without violating First 

Amendment guarantees.” 

¶ 87 So, based on my conclusion that the putative error that the 

juvenile identifies was not obvious, I would not address the merits 

of this sufficiency-of-the-evidence contention. See Lacallo, ¶ 32. 
41 

JUDGE FOX, dissenting. 

¶ 88 I am unable to join the majority opinion — namely Parts II.E.1 

and II.E.3 — because, as I discuss below, our juvenile justice 

system and the statute at issue, targeting sexual exploitation of 

children, were never intended to reach imprudent or irresponsible 

behavior by and among juveniles. Here, a seventeen-year old and a 

fifteen-year old each voluntarily sent texts containing partially nude 

photographs (or sexts) to their then-boyfriend, T.B., who was then 

sixteen years old. The record does not show that T.B. forwarded or 

shared those photographs. And, although both teen girls also 

received sexts from T.B., they were not prosecuted. 

I. The Juvenile Justice System’s Goals Are to Rehabilitate — Not 

to Irreparably Brand — Juveniles 

¶ 89 The General Assembly intended the Children’s Code to serve 

the welfare of children and the best interest of society. § 19-1-

102(2), C.R.S. 2016. Thus, the General Assembly recognized that 

juveniles who violate the law should be treated differently than 

adults. It therefore created a separate statutory system within the 

Children’s Code, Article II, to handle the treatment and sentencing 

of juveniles who commit a delinquent act. § 19-2-102, C.R.S. 2016. 
42 

Article II of the Children’s Code focuses on the rehabilitation and 

accountability of the juvenile delinquent while protecting public 

safety. Id.; see also Bostelman v. People, 162 P.3d 686, 692 (Colo. 

2007). Thus, the Children’s Code’s treatment of juveniles 

adjudicated delinquents should contrast with the adult criminal 

system, where the focus is on punishment, deterrence, and 

retribution. Bostelman, 162 P.3d at 692; see also A.S. v. People, 

2013 CO 63. The goal is to help make the juvenile a productive 

member of society. See § 19-2-102(1); accord In re Application of 

Gault, 387 U.S. 1, 15-16 (1967) (recognizing that the juvenile 

system was developed in large part to facilitate the opportunity for 

juveniles to reform and become productive citizens).1

¶ 90 It makes sense to treat juveniles differently. Indeed, even the 

United States Supreme Court recognizes that “[i]nexperience [and] 

less education . . . make the teenager less able to evaluate the 

consequences of his or her conduct[.]” Thompson v. Oklahoma, 487 

 

1 Colorado, one of the first states to create a juvenile court, has a 

rich history in the juvenile justice realm. See Laoise King, Colorado 

Juvenile Court History: The First Hundred Years, 32 Colo. Law. 63 

(Apr. 2003) (noting that the creation and use of juvenile courts 

allowed communities to recognize the humanity of children and 

their entitlement to justice). 
43 

U.S. 815, 835 (1988) (plurality opinion). It is for that reason that 

“juveniles are not trusted with the privileges and responsibilities of 

an adult” and “why their irresponsible conduct is not as morally 

reprehensible as that of an adult.” Id. 

¶ 91 Not infrequently, courts have relied on research about 

adolescent behavior and brain development to underscore the 

importance of exercising discretion when prosecuting juveniles. In 

Roper v. Simmons, the Supreme Court — highlighting the research 

on adolescent behavior that supports the view that child offenders 

are less culpable and more capable of reform than adults who 

commit similar crimes — declared the juvenile death penalty 

unconstitutional. 543 U.S. 551 (2005). In accepting the premise 

that adolescent offenders are less culpable, the Court cited research 

demonstrating that adolescents are generally more “impetuous” 

than adults and are thus “overrepresented statistically in virtually 

every category of reckless behavior.” Id. at 569 (citation omitted). 

¶ 92 For similar reasons, the Supreme Court later held, in Graham 

v. Florida, 560 U.S. 48, 68 (2010), mandatory life without parole 

sentences for those under the age of eighteen to be 
44 

unconstitutional. The Court reasoned that juveniles are less 

culpable than adults and, therefore, are less deserving of the most 

severe punishments. Id. This presumption that juveniles are 

generally less culpable than adults is based on previous and 

ongoing “developments in psychology and brain science” which 

“continue to show fundamental differences between juvenile and 

adult minds” in, for instance, “parts of the brain involved in 

behavior control.” Miller v. Alabama, 567 U.S. ___, ___, 132 S. Ct. 

2455, 2464 (2012) (quoting Graham, 560 U.S. at 68). According to 

the Supreme Court, “[a]s compared to adults, juveniles have a ‘lack 

of maturity and an underdeveloped sense of responsibility.’” 

Graham, 560 U.S. at 68 (quoting Roper, 543 U.S. at 569-70). 

Juveniles “are more vulnerable or susceptible to negative influences 

and outside pressures, including peer pressure,” id. (quoting Roper, 

543 U.S. at 569-70), and “they have limited ‘contro[l] over their own 

environment’ and lack the ability to extricate themselves from” 

harmful settings, Miller, 567 U.S. at ___, 132 S. Ct. at 2464 

(alteration in original) (quoting Roper, 543 U.S. at 569). Finally, “a 

child’s character is not as ‘well formed’ as an adult’s . . . and his 
45 

actions [are] less likely to be ‘evidence of irretrievabl[e] deprav[ity].’”2 

Id. (alteration in original) (quoting Roper, 543 U.S. at 570). 

Accordingly, “[i]t is difficult even for expert psychologists to 

differentiate between the juvenile offender whose crime reflects 

unfortunate yet transient immaturity, and the rare juvenile offender 

whose crime reflects irreparable corruption.” Graham, 560 U.S. at 

68 (alteration in original) (quoting Roper, 543 U.S. at 573). 

II. Protecting Children from Sexual Exploitation 

¶ 93 In contrast with the rehabilitative goals of Colorado’s juvenile 

justice system, child pornography laws are meant to prevent the 

sexual abuse of children necessarily present in the making of child 

pornography. See § 18-6-403(3)(b.5), C.R.S. 2016; see also People 

v. White, 656 P.2d 690, 693 (Colo. 1983) (recognizing that the sex 

offender laws’ primary purpose is to protect the public from proven 

 

2 Even justices not finding categorical Constitutional violations in 

these juvenile cases agree with this precept. See Graham v. Florida, 

560 U.S. 48, 90 (2010) (Roberts, C.J., concurring in the judgment) 

(“Roper’s conclusion that juveniles are typically less culpable than 

adults has pertinence beyond capital cases.”); Roper v. Simmons, 

543 U.S. 551, 599 (2005) (O’Connor, J., dissenting) (“It is beyond 

cavil that juveniles as a class are generally less mature, less 

responsible, and less fully formed than adults, and that these 

differences bear on juveniles’ comparative moral culpability.”). 
46 

dangerous sex offenders). Sexting, in comparison, generally 

involves teens taking pictures of themselves, usually for their 

boyfriend or girlfriend, and without the exploitative circumstances 

that accompany the production of conventional child pornography. 

The sexting at issue here entailed seventeen-year-old E.H. and 

fifteen-year-old L.B., each voluntarily taking a photograph of 

herself, and sending the photograph by text to another teen, T.B.; 

these actions lack the exploitative element implicit in the laws 

prohibiting child pornography. Texting, including sexting, is not 

uncommon among today’s teens.3 To charge sexting between teens 

 

3 The cell phone is the most direct and most widely used mode of 

communication between young people. Seventy-one percent of 

teens own a cell phone and seventy-six percent of teens have sent 

text messages — in fact, of teens with cell phones, twenty-five 

percent of teens aged twelve to fourteen text daily and fifty-one 

percent of teens aged fifteen to seventeen text daily. See Amanda 

Lenhart, Teens and Mobile Phones Over the Past 5 Years: Pew 

Internet Looks Back 5, 8 (2009), available at 

https://perma.cc/6W77-NDZL. A survey conducted on the topic of 

sexting reported that twenty percent of the teens surveyed have 

electronically sent or posted online a nude or semi-nude picture or 

video of themselves. See The National Campaign to Prevent Teen & 

Unplanned Pregnancy, Sex and Tech: Results from a Survey of Teens 

and Young Adults 1 (2008), available at https://perma.cc/E8PXBEJD. Most teen sexting is sent between partners of a relationship 

(i.e., between boyfriend and girlfriend), or to someone the sender is 

interested in dating. Seventy-one percent of teen girls and sixty-
47 

in these circumstances as child pornography, a prosecutor must 

blatantly disregard the purpose and intent of the laws enacted to 

protect children from the predators who would exploit them. See, 

e.g., Bond v. United States, 572 U.S. ___, ___, 134 S. Ct. 2077, 

2090-91 (2014) (condemning the attempt to prosecute a woman 

who placed “irritating chemicals” on her husband’s mistress’ door 

knob and mailbox under a statute criminalizing the possession and 

use of “chemical weapons,” two actions the Court found to be 

“worlds apart”). Consensual teen sexting is worlds apart from a 

predator’s sexual exploitation of a child. Criminalizing the conduct 

at issue here under the sexual exploitation statute — section 18–6–

403(3)(b.5) — turns a law that was intended to shield minors into a 

sword used against their imprudent conduct. The expansive 

interpretation given by the trial court, and affirmed here,4 could just 

as easily have led to charges against the teen girls, the putative 

 

seven percent of teen boys who have sexted say they sent this 

content to a boyfriend or girlfriend. Id. at 2. 

4 Like Judge Richman, I too would review T.B.’s challenges, 

although I come to a different result than his. See People v. McCoy, 

2015 COA 76M, ¶ 70 (Webb, J., specially concurring); People v. 

Rediger, 2015 COA 26, ¶ 67 (Richman, J., specially concurring) 

(cert. granted Feb. 16, 2016). 
48 

victims here. Surely that is not how the legislature intended section 

18-6-403(3)(b.5) to be applied. See People v. Arapahoe Cty. Court, 

74 P.3d 429, 430-31 (Colo. App. 2003) (applying the principle that 

the court presumes that the General Assembly intended a just and 

reasonable result — and thus avoids interpretations leading to 

unjust or absurd results — before soundly rejecting a prosecution 

argument that, pursuant to 18-6-403(3)(b.5), defense counsel could 

not possess sexually explicit photographs needed to defend the 

client); see also Stephen F. Smith, Jail for Juvenile Child 

Pornographers?, 15 Va. J. Soc. Pol’y & L. 505, 525 (2008) (pointing 

out that, in many states, minors can marry or engage in consensual 

sex and arguing that, if the law considers a minor to be old enough 

to engage in sex, the minor should be treated as if he or she is old 

enough to document his or her sexual activity). 

¶ 94 It is well established that a statute must set “minimal 

guidelines to govern law enforcement” and avoid the potential for 

discriminatory or arbitrary enforcement. City of Chicago v. Morales, 

527 U.S. 41, 60 (1999) (citation omitted); Trail Ridge Ford, Inc. v. 

Colo. Dealer Licensing Bd., 190 Colo. 82, 83-85, 543 P.2d 1245, 
49 

1246 (1975) (recognizing that where criminal or quasi-criminal 

sanctions are to be imposed, the threat of arbitrary enforcement of 

the law requires specificity). Given the incongruent application of 

section 18-6-403(3)(b.5) here, I must conclude that sufficient 

guidelines are not present. This lack of guidelines has led to a 

discriminatory enforcement of the conduct of T.B. — and not E.H. 

or L.B. — and an arbitrary enforcement of conduct that reasonable 

people could conclude is imprudent, but is not sexually exploitative 

such that the juvenile should be treated no differently than a 

pedophile or a distributor of child pornography. See Arapahoe Cty. 

Court, 74 P.3d at 430-31; see also Curtiss v. People, 2014 COA 107, 

¶ 7 (rule of lenity requires courts to resolve ambiguities in the penal 

code in favor of a defendant’s liberty interests). This statute could 

be misused to prosecute juvenile males differently than juvenile 

females, even where the juveniles may be similarly situated, 

depending on which gender sends or receives more sexts. See The 

National Campaign to Prevent Teen & Unplanned Pregnancy, Sex 

and Tech: Results from a Survey of Teens and Young Adults 2 

(2008), available at https://perma.cc/E8PX-BEJD. The male sext 
50 

recipient in this case faced charges, while the female producers and 

distributors faced no legal consequences. 

¶ 95 In 2009, the Colorado General Assembly amended two 

statutes to address the sexting phenomenon. See Ch. 341, sec. 1, 

§ 18-3-306, 2009 Colo. Sess. Laws 1792-93 (Internet luring of a 

child); Ch. 341, sec. 1, § 13-21-1002, 2009 Colo. Sess. Laws 1792 

(computer dissemination of indecent material to a child). These 

amendments lend further support to the proposition that section 

18-6-403(3)(b.5) was never intended to be used in the way it was 

used against T.B. Instead, the legislature intended the 2009 

amendments to address texting violations when appropriate. 

¶ 96 Section 18-3-306 — the Internet luring of a child provision — 

was altered as follows: 

18-3-306. Internet luring of a child. (1) An 

actor commits internet luring of a child if the 

actor knowingly communicates a statement 

over a computer or computer network, 

telephone network, or data network or by text 

message or instant message to a person who 

the actor knows or believes is to be under 

fifteen years of age describing and, in that 

communication or in any subsequent 

communication by computer, computer 

network, telephone network, data network, 

text message, or instant message, describes 
51 

explicit sexual conduct as defined in section 

18-6-403(2)(e), and, in connection with the 

communication that description, makes a 

statement persuading or inviting the person to 

meet the actor for any purpose, and the actor 

is more than four years older than the person 

or than the age the actor believes the person to 

be. 

Ch. 341, sec. 1, § 18-3-306, 2009 Colo. Sess. Laws 1792-93. 

Although this provision covers sexting, it would not apply to fifteenyear-old L.B or to seventeen-year-old E.H. Nor would it apply to 

sixteen-year-old T.B., who was one year younger than E.H. and one 

year older than L.B. 

¶ 97 During the same legislative session, section 13-21-1002, 

which imposes civil liability for disseminating indecent material to a 

child, was modified as follows: 

13-21-1002. Computer dissemination of 

indecent material to a child—prohibition.

(1) A person commits computer dissemination 

of indecent material to a child when: (a) 

Knowing the character and content of the 

communication which, in whole or in part, 

depicts actual or simulated nudity, or sexual 

conduct, as defined in section 19-1-103(97), 

C.R.S., the person willfully uses a computer, 

computer network, telephone network, data 

network, or computer system allowing the 

input, output, examination, or transfer of 

computer data or computer programs from one 
52 

computer to another or a text-messaging or 

instant-messaging system to initiate or engage 

in such communication with a person he or 

she believes to be a child[.] 

Ch. 341, sec. 1, § 13-21-1002, 2009 Colo. Sess. Laws 1792. 

Violations of section 13-21-1002, C.R.S. 2016, result in a civil 

penalty “established pursuant to verdict or judgment.” § 13-21-

1003(1), C.R.S. 2016. 

¶ 98 These legislative amendments suggest that, rather than 

criminalizing sexting activity by and among teens, the legislature 

most likely intended that civil penalties be imposed pursuant to 

sections 13-21-1002 and 13-21-1003. See Lawrence G. Walters, 

How to Fix the Sexting Problem: An Analysis of the Legal and Policy 

Considerations for Sexting Legislation, 9 First Amend. L. Rev. 98, 

121-22 (2010). 

III. T.B.’s Section 18-6-403 Adjudication Irreparably Brands Him 

as a Sex Offender, With all the Attendant Consequences 

¶ 99 As a result of the court finding T.B. guilty of the two counts of 

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

photographs received from each teen girl, T.B.’s sentence includes 

these restrictions (among others): 
53 

 T.B. was required to register as a sex offender (thereby 

undermining the otherwise confidential nature of juvenile 

proceedings). 

 T.B. was required to submit to and pay a fee for DNA 

testing. 

 T.B. was required to actively participate in sex offender 

evaluation and treatment. 

 T.B. was required to submit, at his expense, to 

psychological assessment and monitoring. 

 T.B. was required to create a safety plan before attending a 

school environment. 

 T.B. was restricted from the use of any Internet service, 

personal digital assistant devices, cell phones, and other 

like devices. 

 T.B. was restricted from dating without prior approval (and 

if approved, was required to disclose the most private and 

intimate details of that relationship). 

 T.B. had to submit to vehicle and residence searches. 
54 

 T.B. had to avoid overnight visits away from home without 

prior authorization. 

 T.B. was required to refrain from contact with any children 

over the age of three without prior permission and was 

required to remove himself from any situation involving 

contact with children (even if incidental or accidental) and 

report that contact. 

 T.B. was restricted from going, absent prior approval, to 

parks, playgrounds, recreation centers, arcades, and pools. 

¶ 100 As evidenced by T.B.’s sentence, juvenile sexting adjudications 

can have far-reaching adverse consequences for the juvenile, 

especially where, as here, the juvenile is adjudicated delinquent for 

an offense categorized as a sexual offense or an offense that would 

require registration as a sex offender. Adjudications of delinquency 

for sex-related offenses can preclude the juvenile from the following: 

• Retaining custody of his or her minor child (if the juvenile is 

already a parent, or becomes a parent while under court 

supervision) if a dependency court finds that return of the 

child to the parent presents safety or other concerns vis-a-
55 

vis the child. See People in Interest of D.P., 160 P.3d 351, 

353-54 (Colo. App. 2007). 

• Obtaining approval as a foster or adoptive parent. See § 26-

6-104(7)(C), C.R.S. 2016 (“The state department shall not 

issue a license to operate . . . a foster care home [or] a 

residential child care facility . . . if the applicant . . ., an 

affiliate of the applicant, a person employed by the 

applicant, or a person who resides with the applicant . . . 

has been convicted of . . . [a]ny offenses involving unlawful 

sexual behavior [including those punishable under § 18-6-

403.]”). 

• Pursuing certain occupations requiring working with 

children, like jobs in education, child care, and law 

enforcement. See 42 U.S.C. § 13041(c) (2012) (“Any 

conviction for a sex crime [or] an offense involving a child 

victim . . . may be ground for denying employment or for 

dismissal of an employee in [child protective services, social 

services, health and mental health care, child (day) care, 

education, foster care, residential care, recreational or 
56 

rehabilitative programs, and detention, correctional, or 

treatment services.]”); see also Dep’t of Educ. Reg. 301-37, 

1 Code Colo. Regs. 301-37:2260.5-R15.00(2)(o) (providing 

that violations of section 18-6-403(3)(b.5) and of similar 

laws can lead to denial, suspension or revocation of a 

teaching license); Dep’t of Educ. Reg. 301-37, 1 Code Colo. 

Regs. 301-37:2260.5-R15.02(10). 

• Returning to normalcy, as registration makes the juvenile’s 

name, picture, and offense available to the public, including 

classmates and the press. 

• Pursuing higher education, obtaining employment, or 

enlisting in the military. See Robert F. Shepard, Jr., 

Collateral Consequences of Juvenile Proceedings: Part II, 15 

Crim. Just. 41 (Fall 2000).5 

 

5 An increasing number of college and financial aid applications 

inquire into juvenile adjudications, Robert F. Shepard, Jr., 

Collateral Consequences of Juvenile Proceedings: Part II, 15 Crim. 

Just. 42 (Fall 2000), and certain drug offenses can make an 

individual ineligible for financial aid. See Higher Education Act of 

1965, 20 U.S.C. § 1091(r) (2012). While historically juvenile 

adjudications have not been characterized as criminal convictions 

in employment applications, many applications now include specific 

references to juvenile adjudications. See Shepard, 15 Crim. Just. 
57 

• Exercising driving privileges in certain situations. Barbara 

Fedders, Two Systems of Justice, and What One Lawyer Can 

Do, 12 Whittier J. Child & Fam. Advoc. 25, 35 (2012); see 

also §§ 42-2-125, -126, C.R.S. 2016. For juveniles who 

reside in rural communities with limited public 

transportation, the inability to drive may translate into an 

inability to work. 

• Having a clean slate in subsequent judicial matters. See

Michael Pinard, The Logistical and Ethical Difficulties of 

Informing Juveniles about the Collateral Consequences of 

Adjudications, 6 Nev. L. J. 1111, 1115 (2006). For example, 

Colorado sentencing law permits calculations of a “prior 

record score” to include juvenile adjudications of 

delinquency. See People v. Perez-Hernandez, 2013 COA 

160, ¶ 49. 

 

at 42. Juvenile adjudications of delinquency may also preclude 

eligibility for enlistment in the military. For example, based on the 

United States Army’s classification system, juvenile delinquency 

adjudications qualify as criminal offenses. Army Reg. 601-210, ¶ 4-

22(v) (Mar. 2013), available at https://perma.cc/U6FS-GFY5. 
58 

• Remaining in the United States, if the juvenile is not a 

citizen. See, e.g., Serrato-Navarrette v. Holder, 601 F. App’x 

734, 737 (10th Cir. 2015). 

• Obtaining public housing, see generally Kristin Henning, 

Eroding Confidentiality in Delinquency Proceedings: Should 

Schools and Public Housing Authorities be Notified?, 79 

N.Y.U. L. Rev. 520 (2004); Michael Pinard, The Logistical 

and Ethical Difficulties of Informing Juveniles about the 

Collateral Consequences of Adjudications, 6 Nev. L. J. 1111, 

1114 (2006) (noting that housing authorities routinely 

conduct background checks for adult applicants and may 

“investigate whether any member of the family unit, 

including a juvenile member, has been convicted of specific 

disqualifying offenses”), and other public benefits, including 

Temporary Assistance for Needy Families and food stamps, 

see Personal Responsibility and Work Opportunity 

Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 

2105, as amended by Balanced Budget Act of 1987, Pub. L. 

No. 105-33, 111 Stat. 251. 
59 

¶ 101 On top of state-based restrictions, the Adam Walsh Child 

Protection and Safety Act of 2006 specifically mandates that 

juveniles be included in sex offender registries. See 42 U.S.C. 

§ 16911(8) (2012). The Adam Walsh Act requires states to 

“substantially implement” the Sex Offender Registration and 

Notification Act (SORNA) requirements or risk forfeiting ten percent 

of the funds normally received from the federal Omnibus Crime 

Control and Safe Streets Act of 1968. 42 U.S.C. § 16925(a) (2012). 

Certain SORNA classifications can result in registration for twentyfive years to life, and require in-person “show-ups” two to three 

times each year, while failing to register can subject the person to a 

maximum term of imprisonment greater than one year. 42 U.S.C. 

§§ 16913(e), 16915, 16916 (2012). If T.B. moves — for educational 

or employment opportunities — he may be required to register as a 

sex offender in other states pursuant to each state’s SORNAimplementing legislation. See, e.g., Del. Code Ann. tit. 11, 

§ 4120(e)(1) (West 2013) (requiring registration in Delaware for 

violation of substantially similar sex offense laws in another state); 

Ohio Rev. Code Ann. § 2950.01(12) (West 2016) (same); see also
60 

Nicole Marie Nigrelli, Comment, Sex Offender Registry: Is it 

Attacking People That Were Not Meant to Be Part of the Law?, 4 

Suffolk J. Trial & App. Advoc. 343, 345 & n.15 (1999) (noting that 

all states have some form of child sex offender registration 

requirements). 

¶ 102 For all the foregoing reasons, I would reverse juvenile T.B.’s 

adjudication — under section 18-6-403(3)(b.5) — based on receiving 

sexts from his teenage girlfriends E.H. and L.B. Given this 

disposition, I need not address the remaining contentions.