SUMMARY

December 12, 2019

2019COA180

No. 16CA2168, People v. Meils — Crimes — Sexual Exploitation 

of a Child — Sexually Exploitive Material; Constitutional Law —

Fifth Amendment — Double Jeopardy

A division of the court of appeals considers whether section 

18-6-403(3)(b)-(b.5), C.R.S. 2019, prescribes alternative means of 

committing sexual exploitation of a child. The division concludes 

that, because the legislature wrote the statute in the disjunctive, 

listing a series of acts referencing the same subject, governed by a 

common mens rea, it prescribes alternative ways of committing the 

same offense. Thus, a defendant cannot be convicted of both 

possession and creation of sexually exploitative materials for a 

single incident.

Additionally, the division rejects the defendant’s contention 

that the trial court denied him his right to a complete defense by 

excluding certain evidence supporting his alternate suspect theory. 

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.
It also rejects the defendant’s argument that the prosecutor 

committed misconduct during closing arguments. Finally, the 

division concludes that given the weight of the evidence against the 

defendant, any error in admitting improper expert testimony in the 

guise of lay witness testimony did not affect the outcome of the 

trial.

Accordingly, the division affirms the judgment in part, vacates 

three of the four convictions, and remands to the trial court for a 

correction of the mittimus.
COLORADO COURT OF APPEALS 2019COA180

Court of Appeals No. 16CA2168

Jefferson County District Court No. 14CR2865

Honorable Jeffrey R. Pilkington, Judge

The People of the State of Colorado,

Plaintiff-Appellee

v.

David Lee Meils,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, VACATED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division I

Opinion by JUDGE TAUBMAN

Pawar and Davidson*, JJ., concur

Announced December 12, 2019

Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. 

VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
1

¶ 1 Defendant, David Lee Meils, appeals the judgment of 

conviction entered on a jury verdict finding him guilty of four 

counts of sexual exploitation of a child. He argues that the trial 

court erred in excluding alternate suspect evidence, allowing the 

prosecutor to commit misconduct during closing arguments, and 

permitting improper witness testimony. He further contends that 

his four convictions for sexual exploitation of a child violate his 

right to be free from double jeopardy. We affirm in part and vacate 

his convictions on counts 2, 3, and 4.

I. Background

¶ 2 On November 4, 2014, Meils’s wife, H.M., found on Meils work 

phone four photos of the naked victim — her ten-year-old daughter 

— and two videos of her undressing. The photos showed a time 

stamp of November 3, 2014, at 3:58 p.m., and the video showed a 

time stamp of November 4. H.M. testified that, based on the 

victim’s outfit, she knew the video was taken on November 3, 

despite its time stamps of November 4. Both the photos and the 

video appeared to have been taken from outside the master 

bathroom through a gap between the bathroom door and the floor.
2

¶ 3 H.M. attempted to send the photos and videos to herself or 

take a picture of them with her phone to gather proof, fearing that 

they might be deleted. When her efforts failed, she woke up 

Autumn Stoffel, a friend living at the house. Stoffel took a photo of 

one of the photos, including its time stamp, on Meils’s phone. Both 

women then went to a hotel to call the police, leaving Meils’s phone 

at the house.

¶ 4 At trial, both women testified that they initially suspected that 

Meils’s thirteen-year-old son, D.M., had taken the pictures and 

videos. However, Stoffel stated that she had observed D.M. in the 

living room at the time shown on the time stamps. Aside from 

Stoffel, Meils was the only other person home at the time. Stoffel 

recalled hearing Meils tell the victim to “get in the shower,” seeing 

him come downstairs with laundry, and then seeing him run back 

upstairs.

¶ 5 Meils called H.M. while she was at the hotel and again while 

law enforcement officers were present at the hotel. Both times, she 

answered with the call on speaker phone. During the course of the 

calls, she asked him if “there was anything that would make [her] 

leave the house.” He responded, “About those pictures,” and “I’m 
3

sorry.” He then proceeded to make inculpatory statements. He 

explained that H.M. had told him that the victim “was coming into 

puberty and it had made him curious.” He blamed H.M. because 

she mentioned that the victim’s “breasts were bigger than her own.”

Then, he said that making the videos “was retarded and the biggest 

mistake of [his] life,” and he did it out of “[s]heer curiosity and 

perversion.” H.M. asked how he did it, and he responded that he 

“put the phone outside the door.” He also threated to kill himself at 

one point during the call.

¶ 6 A short time later, law enforcement officers arrested Meils. He 

voluntarily surrendered his work and personal phones as well as an 

iPad. Though officers did not find the photos and videos when they 

initially looked at his phone, a forensic analyst later recovered from 

Meils’s work phone two videos and nineteen photographs of the 

victim undressing and getting in the shower — all captured between 

6:34 p.m. and 6:46 p.m. on October 2, 2014. (The police did not 

find images time stamped in November 2014.) The analysis also 

uncovered what appeared to be test images of the bathroom viewed 

from the gap between the door and the floor taken minutes before 

the photos and videos of the victim were taken.
4

¶ 7 The district attorney charged Meils with four counts of sexual 

exploitation of a child and one count of invasion of privacy for 

sexual gratification — all with a date range of October 2, 2014 to 

November 5, 2014.

¶ 8 The defense’s theory of the case focused on an alternate 

suspect, accusing D.M. of taking the photos and videos of the 

victim. Support for the theory included evidence of D.M. hoarding 

women’s underwear, including the victim’s, and that on October 2 

he did not have access to his cell phone or computer (thus, 

suggesting that he had used his father’s phone). The prosecution 

emphasized the events of November 3, when D.M. was purportedly 

in the living room when the photos and videos were taken. It also 

highlighted Meils’s immediate confession and apology when 

confronted by H.M.

¶ 9 The jury convicted Meils of all five counts, and the trial court 

sentenced him to a total of ten years in the custody of the 

Department of Corrections.

II. Alternate Suspect

¶ 10 Meils contends that the trial court denied him his right to 

present a complete defense by excluding certain evidence 
5

supporting his alternate suspect theory. We conclude that any 

error was harmless.

A. Standard of Review

¶ 11 We review a trial court’s evidentiary rulings for an abuse of 

discretion. People v. Elmarr, 2015 CO 53, ¶ 20, 351 P.3d 431, 437–

38. A trial court abuses its discretion when its decision is 

manifestly arbitrary, unreasonable, or unfair, or based on a 

misapplication or misunderstanding of the law. Id. at ¶ 20, 351 

P.3d at 438.

¶ 12 However, we do not reverse unless there exists a reasonable 

probability that an error influenced the verdict or affected the 

fairness of the trial, contributing to the defendant’s conviction. 

Yusem v. People, 210 P.3d 458, 469 (Colo. 2009).

B. Applicable Law

¶ 13 In the case of an alternate suspect theory, evidence of another 

person’s motive or opportunity to commit the charged crime “is 

insufficient; a defendant must proffer something ‘more’ to establish 

the non-speculative connection.” Elmarr, ¶ 34, 351 P.3d at 441

(discussing People v. Mulligan, 193 Colo. 509, 568 P.2d 449 (1977)). 

Thus, “the overarching relevance inquiry remains whether the 
6

evidence, taken collectively, establishes a non-speculative 

connection between the alternate suspect and the charged crime.” 

Id. at ¶ 40, 351 P.3d at 441.

C. Relevant Facts and Analysis

¶ 14 Before trial, the defense sought to introduce evidence of D.M.’s 

preoccupation with sex that, when taken together with evidence 

heard by the jury that he hoarded the victim’s underwear and did 

not have his phone on October 2, suggested he was the perpetrator. 

The trial court, in a thorough, detailed order, denied introduction of 

the alternate suspect evidence because, in essence, the potential for 

prejudice or confusion of such evidence substantially outweighed 

any probative value.

¶ 15 Our review of the record as a whole leads us to conclude that 

overwhelming evidence supported Meils’s conviction. H.M. found 

the photos and videos on his phone, and Stoffel testified that Meils 

was upstairs and D.M. was downstairs during the November 3 

incident. Significantly, during H.M.’s two phone calls with Meils, he 

immediately confessed to taking the photos and videos, and he told 

H.M. how he had taken them, and made other inculpatory 

statements. Moreover, the jury heard evidence of D.M. hoarding 
7

women’s underwear in his bedroom and not having access to his 

phone on October 2. Notably, none of the evidence excluded by the 

trial court related to any interaction between D.M. and the victim. 

Under these circumstances, we conclude that any error in denying 

admission of the proffered evidence of D.M.’s alleged sexual conduct 

did not substantially affect the outcome of the trial, and therefore 

any error in the trial court’s exclusion of some of the proffered 

alternate suspect evidence was harmless.

III. Prosecutorial Misconduct

¶ 16 Meils argues that the trial court erred by allowing the 

prosecutor to commit misconduct by misstating critical evidence 

and asking the jury to draw an inference based on the absence of 

evidence that had been excluded. We disagree.

A. Relevant Facts

¶ 17 During closing arguments, the prosecutor argued: “[I]n 

November of 2014, [D.M.] has his own phone. [D.M.] doesn’t need 

to borrow the defendant’s phone. He has his own phone in

November. Interestingly, [H.M.] remembers that specifically on

October 2nd, [D.M.]’s phone was taken away for that one day.” 

Defense counsel objected and argued at the bench that the 
8

comment was barred by the court’s pretrial ruling to suppress 

discussion of the reason D.M. did not have his phone on October 2. 

He also voiced concern about the prosecutor’s implication that H.M. 

had fabricated that D.M.’s phone was confiscated that day. The 

court sustained the objection and issued a curative instruction 

stating that “the evidence in this case was that [D.M.] did not have 

access to a cell phone on October 2nd. The evidence was not that 

he had his cell phone taken away.” 

¶ 18 During rebuttal, the prosecutor told the jury that “[H.M.]’s 

parental instincts were spot on November 4th of 2014 when she 

said, [Meils] did this, the defendant did this which is why she 

confronted him.” Defense counsel did not object.

¶ 19 The prosecutor also highlighted that, while H.M. remembered 

some details from October 2, she could not recall — or could only 

vaguely recall — others. 

[S]he doesn’t remember what time the 

defendant got home, where the defendant was, 

whether he was home for dinner, what phone 

she called him on, whether he had his work or 

cell phone with him, where his phones were. 

She doesn’t remember any of that. So there’s 

certain things she remembers. There’s certain 

things she doesn’t remember.
9

Again, defense counsel did not lodge an objection.

B. Standard of Review

¶ 20 We engage in a two-step analysis to review claims of 

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096 

(Colo. 2010). First, we determine whether the prosecutor’s conduct 

was improper based on the totality of the circumstances. Id. 

Second, we decide whether, under the proper standard of review, 

any misconduct warrants reversal. Id.

¶ 21 We review misconduct of nonconstitutional magnitude to 

which the defense objected at trial for harmless error. Id. at 1097. 

Under this standard, misconduct does not require reversal if there 

is no reasonable probability it contributed to the verdict. Crider v. 

People, 186 P.3d 39, 44 (Colo. 2008).

¶ 22 However, we review alleged misconduct not objected to at trial 

for plain error. Wend, 235 P.3d at 1097. Under this standard, 

reversal is warranted only when prosecutorial misconduct is 

“flagrantly, glaringly, or tremendously improper,” Domingo-Gomez v. 

People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila, 

944 P.2d 673, 676 (Colo. App. 1997)), and “so undermines the 
10

fundamental fairness of the trial itself as to cast serious doubt on 

the reliability of the jury’s verdict.” Id.

C. Applicable Law and Analysis

¶ 23 We address each of the three alleged improper arguments in 

turn.

¶ 24 Generally, a curative instruction will remedy any prejudice 

caused by an improper argument. People v. Pesis, 189 Colo. 52, 

54-55, 536 P.2d 824, 826 (1975); People v. Mersman, 148 P.3d 199, 

203 (Colo. App. 2006). Here, the court remedied the first instance 

of alleged prosecutorial misconduct with a curative instruction. In 

so doing, the court informed the jury that it should not consider the 

prosecutor’s statement as evidence. Thus, in regard to the first 

alleged instance of misconduct, the court alleviated any improper 

argument.

¶ 25 Turning to the second argument, we first note that 

prosecutors enjoy broad discretion in crafting their closing 

arguments and may argue all reasonable inferences from the 

evidence in the record. Domingo-Gomez, 125 P.3d at 1048. “Given 

the wide latitude granted to the prosecutor in closing arguments, 

the trial court is best positioned to determine whether the 
11

prosecutor’s conduct was improper considering contemporaneous 

circumstances.” People v. Sandoval, 2018 COA 156, ¶ 39, 

___P.3d___, ___. Thus, “[p]rosecutorial misconduct in closing 

argument rarely constitutes plain error.” People v. Cevallos-Acosta, 

140 P.3d 116, 123 (Colo. App. 2005). Though H.M. admitted that 

she initially thought it was D.M. who took the photos and videos, 

she testified that, after learning that Stoffel saw D.M. in the living 

room when the photos and videos were taken, she felt that the only 

person who could have been responsible was Meils. Thus, the 

prosecutor did not mislead the jury. Instead, the prosecutor used 

the evidence to draw a reasonable inference to explain why H.M. 

confronted Meils. We perceive no error, much less plain error, in 

this statement.

¶ 26 Similarly, we analyze the third statement by the prosecutor 

under plain error review. Meils argues that H.M. did remember that 

Meils was late for dinner, that he got home around seven or eight 

o’clock, and where he was before that. He further asserts that H.M. 

testified that she “probably called him on his personal phone first,” 

and, in any event, nobody ever asked H.M. whether Meils had his 

work or cell phone with him or where the phones were at the time. 
12

¶ 27 H.M. testified that she did not remember exactly what time 

Meils arrived home that evening, but “probably . . . around 7:00 or 

maybe 8 . . . .” (Emphasis added.) Further, she said that she 

probably called him on his personal phone first and she had to call 

him to determine where he was at the time. The uncertainty in 

H.M.’s testimony suggests that she did not remember these details 

clearly; thus, the prosecutor’s arguments that she did not 

remember were not precisely based on the evidence presented at 

trial. Though H.M. testified that Meils was late for dinner, the 

People contend that the prosecutor saying that H.M. did not 

remember if he was home for dinner was not so obvious as to alert 

the trial judge of an error without Meils’s objection. Moreover, 

defense counsel addressed these statements in his closing 

arguments, pointing out that “[H.M.] told you she remembers that 

day well . . . .”

¶ 28 Therefore, after reviewing the record, we conclude that the 

prosecutor’s remarks, though inartful, did not constitute plain 

error.
13

IV. Witness Testimony

¶ 29 Meils contends that the trial court erred in admitting expert 

testimony in the guise of lay witness testimony by Susan Scohy, an 

investigative technician, and unhelpful testimony by Detective Matt 

Clark. We conclude that any error was harmless.

A. Relevant Facts

¶ 30 Scohy recovered the two videos and nineteen photos from 

Meils’s iPhone and determined they were taken on October 2. At 

trial, she explained her training and experience in extracting this 

type of data. She also told the jury that to do so, she plugged the 

phone into her extracting device, accessed certain software, and 

generated a report. She further said that deleted data may 

sometimes be recovered, but that the use of a lot of data 

subsequent to deletion of the images may erase the images to make 

room for more storage. Defense counsel did not object to this 

testimony.

¶ 31 During cross-examination, defense counsel questioned Scohy 

about her lack of formal training concerning cell phone data 

extraction. Defense counsel also inquired about deleted data and 

how it is overwritten.
14

¶ 32 The jury later asked Scohy multiple questions. The court 

rejected all but one: “Would a phone use up all of its data before 

overwriting any files, or would it overwrite deleted files before taking 

up new space?” Defense counsel objected, stating that it called for 

expert testimony, but the trial court overruled the objection 

“because those issues have been gone over in both direct and 

cross.”

¶ 33 The prosecution used this testimony to show that there were 

two incidents of sexual misconduct — on October 2 and November 

3.

¶ 34 Detective Clark was the lead investigator in the case. He 

testified that none of the photos found on Meils’s phone from 

October 2 matched those on Stoffel’s phone (the photos found by 

H.M. on November 4). He explained that, by looking at the photos 

side-by-side, he determined that they were different. Through his 

comparison, and a comparison of the videos found and those 

described by H.M., he concluded there must have been two separate 

incidents. Defense counsel did not object.
15

B. Standard of Review

¶ 35 We review a trial court’s evidentiary rulings for an abuse of 

discretion. Elmarr, ¶ 20, 351 P.3d at 437-38. For preserved errors, 

the standard of reversal is nonconstitutional harmless error. People 

v. Stewart, 55 P.3d 107, 122 (Colo. 2002). However, unpreserved 

errors are reviewed for plain error, and therefore we reverse only if 

the error is obvious and substantial. Hagos v. People, 2012 CO 63, 

¶ 14, 288 P.3d 116, 120. 

C. Applicable Law and Analysis

¶ 36 Given that all images that Scohy testified about had already 

been admitted into evidence, we conclude that any error in 

admitting the testimony was harmless and not plain error. Meils’s 

argument hinges on his disagreement with the prosecution’s theory 

that the images were taken on two separate dates. Defense counsel 

emphasized during closing arguments: “It’s about whether David 

Meils took the photos and videos.” Meils alleges that he had an 

alibi on October 2 but not November 3; thus, without proof that 

images were taken on November 3, his convictions cannot stand. 

However, even without Detective Clark’s testimony, the jury had 

ample evidence from H.M.’s and Stoffel’s testimony and the photos 
16

taken of Meils’s phone on Stoffel’s phone to find him guilty of sexual 

exploitation. Significantly, as noted, he twice admitted to having 

taken the photos and videos during his phone call with H.M.1 

¶ 37 Accordingly, we conclude that any error in admitting 

testimony by Scohy or Detective Clark did not affect the outcome of 

the trial and was therefore harmless. 

V. Double Jeopardy

¶ 38 Meils contends that his multiple convictions for sexual 

exploitation of a child violate his right to be free from double 

jeopardy because section 18-6-403(3), C.R.S. 2019, prescribes 

alternative methods of committing the same offense. Therefore, he 

argues they must merge, and we must vacate his convictions for 

counts 2, 3, and 4. We agree.

 

1 The jury was instructed that, to find Meils guilty of sexual 

exploitation in counts 2, 3, and 4, it must find that he knowingly 

possessed sexually exploitative material, for any purpose, on or 

between November 3 and November 5.
17

A. Standard of Review

¶ 39 We review de novo a claim that multiplicitous convictions 

violate a defendant’s right to be free from double jeopardy. Lucero 

v. People, 2012 CO 7, ¶ 19, 272 P.3d 1063, 1065.

B. Applicable Law and Analysis

¶ 40 “Multiplicity is the charging of the same offense in several 

counts, culminating in multiple punishments.” People v. McMinn, 

2013 COA 94, ¶ 19, 412 P.3d 551, 557. Multiplicitous “convictions 

are prohibited because they violate the constitutional prohibition 

against double jeopardy.” Id. 

¶ 41 First, we must identify the unit of prosecution.2 Id. at ¶ 20, 

412 P.3d at 558. The unit of prosecution determines whether a 

 

2 Another division of our court recently addressed section 18-6-

403(3)(b.5) and (5), C.R.S. 2019, to determine the unit of 

prosecution for sexual exploitation of a child. People v. Bott, 2019 

COA 100, ¶ 62, ___ P.3d ___, ___. The division concluded: 

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) . . . .
18

defendant’s conduct can be divided into discrete acts for purposes 

of multiple offenses. Quintano v. People, 105 P.3d 585, 590 (Colo. 

2005). Once we determine the unit of prosecution, we must 

address whether the evidence supporting each offense justified 

multiple charges. People v. Abiodun, 111 P.3d 462, 467-68 (Colo. 

2005).

¶ 42 To respond to Meils’s argument, we must consider whether the 

statute prescribes alternative means of committing the same offense 

under Abiodun. See People v. Friend, 2014 COA 123M, ¶¶ 71–

72, 431 P.3d 614, 629, aff’d in part and rev’d in part, 2018 CO 90, 

429 P.3d 1191. As relevant here, the statute reads:

(3) A person commits sexual exploitation of a 

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

. . . .

(b) Prepares, arranges for, publishes, including 

but not limited to publishing through digital or 

electronic means, produces, promotes, makes, 

sells, finances, offers, exhibits, advertises, 

deals in, or distributes, including but not 

 

Id. at ¶ 63, ___ P.3d at ___. In so doing, it determined that the 

defendant’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.” Id. at ¶ 69, ___ P.3d at 12. We need not 

address Bott in the circumstances presented here.
19

limited to distributing through digital or 

electronic means, any sexually exploitative 

material; or

(b.5) Possesses or controls any sexually 

exploitative material for any purpose . . . .

§ 18-6-403, C.R.S. 2019 (emphasis added).

¶ 43 “[B]y joining alternatives disjunctively in a single provision of 

the criminal code, the legislature intended to describe alternate 

ways of committing a single crime rather than to create separate 

offenses.” Abiodun, 111 P.3d at 467; see also Schneider v. People, 

2016 CO 70, ¶ 13, 382 P.3d 835, 839; Woellhaf v. People, 105 P.3d 

209, 217 (Colo. 2005). Therefore, we conclude that, because 

section 18-6-403(3) is written in the disjunctive, constructed as a 

series of acts referencing the same subject — sexually exploitative 

materials — and governed by a common mens rea, it prescribes 

alternative ways of committing the same offense. Id. at 466. 

¶ 44 Meils was convicted of four counts of sexual exploitation of a 

child under section 18-6-403(3). The date range for all counts was 

October 1, 2014 to November 5, 2014. Notably, there is no 

indication that the prosecution intended to demonstrate that count 

1 occurred at a different time than counts 2, 3, and 4. See 

Quintano, 105 P.3d at 592 (stating that the court must “look to all 
20

the evidence introduced at trial to determine whether the evidence 

on which the jury relied for conviction was sufficient to support 

distinct and separate offenses”). In Quintano, the supreme court 

determined that, because “the defendant’s conduct was separate in 

temporal proximity and constituted a new volitional departure in 

his course of conduct,” the evidence supported five separate 

offenses. Id. Here, neither party argued that the multiple charges 

resulted from discrete offenses committed at different times. 

Rather, the only temporal element focused on by the parties was 

whether all of the offenses occurred on the November date — when 

Meils did not have an alibi — or in October, when Meils had an 

alibi. Thus, Meils cannot be convicted of both creating and 

possessing sexually exploitative material. 

¶ 45 As the People note, multiplicitous convictions must merge, and 

in so doing, we must maximize the effect of the jury verdicts. See 

People v. Glover, 893 P.2d 1311, 1314-15 (Colo. 1995); see also 

Friend, ¶¶ 71-72, 431 P.3d at 629 (maximizing the effect of the jury 

verdict by merging convictions that carried different penalties into 

the most serious offense). Thus, counts 2, 3, and 4 (class 4
21

felonies) must merge into count 1 (a class 3 felony) because it is the 

most serious of the charges. 

VI. Conclusion

¶ 46 Accordingly, the judgment is affirmed as to count 1, the 

convictions on counts 2, 3, and 4 are vacated, and we remand to 

the trial court for correction of the mittimus.

JUDGE PAWAR and JUDGE DAVIDSON concur.