v. Bott, 2020 CO 86

Joshua Bott was charged with multiple sexual-exploitation offenses after police seized a memory card containing ~294 sexually exploitative images depicting about 250 different victims.
Prosecution grouped the images into 12 bundles, each containing more than 20 images, and charged Bott with twelve counts of sexual exploitation by possession (possession of more than twenty qualifying items) under § 18-6-403(3)(b.5) and (5)(b)(II).
Bott moved to dismiss eleven counts as multiplicitous; the trial court denied the motion, treating each incident of victimization as a separate offense.
The court of appeals reversed, vacating eleven possession convictions on double jeopardy grounds, reasoning that the statute’s classification makes possession of more than twenty qualifying items a single offense.
The Colorado Supreme Court granted certiorari solely to resolve whether multiple class-4 possession convictions based on simultaneous possession of >20 qualifying items violate double jeopardy and affirmed the court of appeals.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Unit of prosecution for § 18-6-403(3)(b.5)/(5)(b)(II) possession counts	People: statute and legislative declaration allow convictions for each single incident/image; multiple convictions permitted.	Bott: legislature defined unit by elevating possession of >20 items to a single class 4 felony, so simultaneous possession above 20 is one offense.	The statute’s classification makes possession of more than twenty qualifying items a single offense; multiple convictions for the same simultaneous possession violate double jeopardy.
Role of legislative declaration vs. statutory text in defining unit of prosecution	People: legislative declaration and prior case law support treating each image/victimization as distinct for prosecution.	Bott: where statutory text unambiguously defines the offense and its classification (by number/types of items), the text controls; declaration cannot create ambiguity.	The court relied on the clear statutory language in subsection (5)(b)(II); legislative declaration cannot override unambiguous statutory text.

North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969) (double jeopardy protection against multiple punishments after conviction)
Missouri v. Hunter, 459 U.S. 359 (U.S. 1983) (legislature’s intent governs cumulative punishments; court cannot impose greater punishment than legislature intended)
Sanabria v. United States, 437 U.S. 54 (U.S. 1978) (unit of prosecution prescribed by statute defines scope of prior-conviction protection)
Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (same-elements test and statutory offense analysis)
Woellhaf v. People, 105 P.3d 209 (Colo. 2005) (unit of prosecution concept and legislative determination of offense scope)
People v. Abiodun, 111 P.3d 462 (Colo. 2005) (statute’s language governs unit of prosecution analysis)
Roberts v. People, 203 P.3d 513 (Colo. 2009) (legislature may require joinder by classifying multiple acts as a single felony)
Marsh v. People, 389 P.3d 100 (Colo. 2017) (possession ambiguity for internet images may require extrinsic aids)
United States v. Chiaradio, 684 F.3d 265 (1st Cir. 2012) (statutory quantity language can define single unit of possession)
United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009) (possession statutes using ‘one or more’ indicate single violation for multiple matters)