People v. Interest of T.B., 2019 CO 53

Background

In 2012 a 15‑year‑old juvenile (T.B.) sent a photo of his erect penis to two teenage girls and repeatedly solicited nude selfies; the girls (ages 15 and 17) eventually sent nude photographs to T.B., which were found on his phone in 2013.
T.B. was charged with two counts of sexual exploitation of a child under Colo. Rev. Stat. § 18‑6‑403(3)(b.5) for possession of "sexually exploitative material."
At bench trial the court found the images constituted "erotic nudity" and adjudicated T.B. delinquent; he received juvenile sex‑offender probation and registration requirements.
On appeal T.B. argued (1) the photos did not show "erotic nudity," and (2) for the first time that the statute must be limited to images depicting acts of sexual abuse to avoid First Amendment problems; he also argued the legislature did not intend the statute to apply to juveniles.
The Colorado Court of Appeals (split) affirmed; the Colorado Supreme Court granted certiorari and affirmed, rejecting the narrowing interpretation and holding the evidence was sufficient that the images were "erotic nudity" made for T.B.'s sexual gratification.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 18‑6‑403(3)(b.5) must be read to require images depict an act of child sexual abuse (constitutional‑avoidance reading)	T.B.: the statute must be limited to images showing sexual abuse to avoid First Amendment overbreadth	State: statutory definitions are clear; legislative declarations do not alter statutory elements	Court: statute unambiguous; legislative declarations do not alter elements; no need to import a "sexual abuse" element; rejection of constitutional‑avoidance narrowing
Whether the statute was intended to exclude juvenile sexting (close‑in‑age or juvenile exception)	T.B.: legislature’s later enactments (internet luring/close‑in‑age statutes) show intent that sexual‑exploitation not reach teen sexting	State: § 18‑6‑403 contained no juvenile exception; subsequent H.B. 17‑1302 (2018) confirms law previously reached juveniles and created lower‑level juvenile remedies	Court: no implicit juvenile carve‑out in pre‑2018 statute; H.B. 17‑1302 confirms legislature later created narrower juvenile scheme but does not retroactively limit the earlier statute
Whether the photos constituted "erotic nudity" (sufficiency of evidence)	T.B.: images, though nude, were not produced for overt sexual gratification of a person "involved"	State: images and context (T.B.'s erect‑penis photo, repeated solicitations, sexual banter) show they were made to elicit sexual response for T.B.'s gratification	Court: applying Dost‑style factors, images focused on breasts/pubic area, posed and sexually suggestive; T.B. was a "person involved" by soliciting/orchestrating—evidence sufficient
Proper review for unpreserved sufficiency claim	T.B.: appellate de novo review necessary to consider new statutory interpretation and First Amendment concerns	State: regardless of standard, statutory text controls and claim fails	Court: did not need to decide standard because claim fails on the merits; cited de novo precedent but outcome unchanged

Key Cases Cited

People v. Batchelor, 800 P.2d 599 (Colo. 1990) (maker of photographs can be a “person involved” whose gratification renders display "erotic nudity")
People v. Enea, 665 P.2d 1026 (Colo. 1983) (legislative declarations do not add elements to statutory offenses)
United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) (non‑exhaustive factors for determining whether an image is a lascivious exhibition)
McCoy v. People, 442 P.3d 379 (Colo. 2019) (unpreserved sufficiency claims may be raised on appeal and reviewed de novo)
Dempsey v. People, 117 P.3d 800 (Colo. 2005) (standard for reviewing sufficiency of evidence challenges)
United States v. Oakland Cannabis Buyers’ Co‑op., 532 U.S. 483 (2001) (canon of constitutional avoidance unavailable when statute is unambiguous)
New York v. Ferber, 458 U.S. 747 (1982) (child pornography may be regulated because of harms to children)
People v. Flippo, 159 P.3d 100 (Colo. 2007) (statutory interpretation principles: no constitutional avoidance where text is clear)