People in the Interest of T.B, 2016 COA 151

Background

Juvenile T.B., then 16, received and stored nude photographs sent by two teenage girls, E.H. (17) and L.B. (15); police recovered the images from his cell phone during investigation of separate sexual-assault allegations.
Prosecutor charged T.B. with multiple counts including sexual assault and two counts of sexual exploitation of a child based on the recovered images; the sexual-exploitation counts were severed for bench trial.
A jury acquitted T.B. of the sexual-assault, kidnapping, third-degree assault, and aggravated-juvenile-offender counts.
After a bench trial on the sexual-exploitation counts, the court adjudicated T.B. delinquent, finding he knowingly possessed sexually exploitative material (images of E.H. and L.B.), and sentenced him to concurrent two-year sex-offender probation terms and registration.
On appeal T.B. challenged (1) sufficiency of evidence (chain of custody; images as "erotic nudity"), (2) statute’s application to consensual teen sexting and whether the statute requires evidence of sexual abuse, (3) denial of a jury trial after severance, and (4) selective prosecution based on gender.

Issues

Issue	Plaintiff's Argument (People)	Defendant's Argument (T.B.)	Held
Sufficiency — chain of custody / knowledge of possession	Photographs were recovered from T.B.’s phone; victims identified the trial copies; forensic evidence showed files were viewed on the phone.	Chain of custody insufficient to prove images were accurate copies and that T.B. knew he possessed them.	Court: Evidence sufficient; identification by senders and forensic testimony supported chain of custody and knowledge.
Sufficiency — "erotic nudity" element	Images focused on breasts/pubic area and were taken/posed to elicit sexual response; texts show sexual requests/gratification.	Images were not "erotic nudity" because senders did not take them for their own sexual gratification.	Court: Images met statutory erotic-nudity criteria; gratification may be of viewer (T.B.), not necessarily of person depicted (People v. Batchelor).
Statute scope — whether sexual-exploitation statute requires recording of sexual abuse / whether it covers teen sexting	Statute’s plain language defines "sexually exploitative material" to include erotic nudity and does not require proof of sexual abuse; applies regardless of ages of persons involved (under 18).	Statute should be read to target materials recording sexual abuse; consensual teen self-photographs should not be prosecuted as child-exploitation material and raise First Amendment concerns.	Court: Statute unambiguous and does not require sexual-abuse element; legislative prefatory language cannot add elements; statute can criminalize teen sexting if elements are met.
Right to jury trial after severance / denial of jury request	N/A — prosecution argued discretionary; court denied jury after severance.	Severance deprived T.B. of statutory right to jury trial under §19-2-107(1) or, alternatively, court abused discretion in denying jury.	Court: Defendant waived one argument by prior position; court did not abuse discretion in denying jury — no statutory right to jury on these counts and denial fell within reasonable options.
Selective prosecution (gender)	Prosecutor prosecuted based on alleged dangerous behavior and related charges; notified defense of possible image charges during investigation.	Prosecutor selectively prosecuted T.B. because he was male; similar teen senders/recipients are often not prosecuted.	Court: Trial court’s factual findings supported denial; defendant failed to show discriminatory purpose/effect or clear evidence of selective prosecution.

Key Cases Cited

People v. Batchelor, 800 P.2d 599 (Colo. 1990) (gratification may be of a person not depicted; supports interpretation of "persons involved")
People v. Gagnon, 997 P.2d 1278 (Colo. App. 1999) (factors for evaluating erotic nudity in images)
Dempsey v. People, 117 P.3d 800 (Colo. 2005) (standard for de novo sufficiency-of-the-evidence review)
People v. Moltrer, 893 P.2d 1331 (Colo. App. 1994) (chain-of-custody defects affect weight not admissibility)
People v. Enea, 665 P.2d 1026 (Colo. 1983) (legislative prefatory language does not alter statutory elements)
Roper v. Simmons, 543 U.S. 551 (2005) (juveniles generally less culpable; relevant to sentencing/reform rationale cited in dissent)
Graham v. Florida, 560 U.S. 48 (2010) (juvenile sentencing principles; cited by dissent)
Miller v. Alabama, 567 U.S. 460 (2012) (juvenile culpability and sentencing considerations; cited by dissent)