People v. RABES, 258 P.3d 937

Rabes uploaded child pornography via AOL tip; NCMEC forwarded to Nebraska police for investigation.
An officer saw the AOL images and obtained a warrant after corroborating the tip.
The basement in a Colorado Springs home was identified as the location in the images, belonging to Rabes and M.V. (neighbor's four-year-old daughter).
Rabes was charged in Colorado with five counts including sexual assault on a child and sexual exploitation of a child; he pled guilty to production of child pornography in a related federal case.
A jury convicted Rabes on the charged counts; sentences: concurrent 10-year terms for sexual assault counts, a concurrent 24-month misdemeanor term, and two consecutive 12-year terms for felony sexual exploitation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the search warrant supported by probable cause despite lacking images in the affidavit?	Rabes argues the affidavit was bare bones and lacked description of AOL images.	Rabes contends insufficient detail to establish probable cause.	No error; affidavit provided substantial basis for probable cause.
Were Rabes's federal-plea statements properly admitted under CRE 410?	Statements were relevant to rebut defense and admissible.	CRE 410 barred such plea-related statements.	Plain error not shown; CRE 410 not violated.
Did the trial court err in denying challenges for cause to two jurors?	The jurors could not follow burden of proof due to exposure to images.	Jurors demonstrated ability to follow instructions.	No abuse of discretion; jurors could follow burden and were not biased.
Were consecutive felony sentences proper given the same act or series of acts?	Multiple images and distinct acts justify consecutive sentences.	Consolidation or concurrent sentences should apply since acts are from same episode.	Consecutive sentences proper for distinct images/acts; one felony sentence proper to be consecutive to others.
Was the misdemeanor sentence properly set given the statutory maximum at the time?	Misdemeanor maximum allowed; sentences were appropriate.	Misdemeanor classification/max was lower; sentence must be vacated.	Misdemeanor sentence vacated and remanded for resentencing.

People v. Alameno, 193 P.3d 830 (Colo. 2008) (mixed questions of law and fact for suppression rulings; deference to factual findings)
People v. Randolph, 4 P.3d 477 (Colo.2000) (probable cause assessment considering totality of circumstances)
Illinois v. Gates, 462 U.S. 213 (U.S. 1983) (probable cause requires probability of evidence at the location)
Kerst, 181 P.3d 1167 (Colo.2008) (presumption of validity for search affidavits; bare bones standard)
Pacheco, 175 P.3d 91 (Colo.2006) (bare bones affidavit standard for probable cause)
Turcotte-Schaeffer, 843 P.2d 658 (Colo.1993) (corroboration of informant and reasonable inferences allowed)
Chrobak, 289 F.3d 1043 (8th Cir.2002) (descriptions of images; statutory language impact on probable cause)
Smith, 795 F.2d 841 (9th Cir.1986) (descriptions of sexually explicit conduct; corroborating language)
Nuss, 279 Neb. 648 (Neb.2010) (images described as child pornography; outcome on good faith vs bare bones)
Miller, 75 P.3d 1108 (Colo.2003) (totality-of-circumstances approach to warrants in child-porn cases)
Eirish, 165 P.3d 848 (Colo.App.2007) (officer training/experience considered in probable cause)
Villarreal, 131 P.3d 1119 (Colo.App.2005) (allocution rights and sentencing considerations)
Juhl v. People, 172 P.3d 896 (Colo.2007) (whether offenses arise from same act; consecutive vs concurrent sentencing)
Bass, 155 P.3d 547 (Colo.App.2006) (standard for affirming consecutive sentences)