Lead Opinion
Opinion by
T1 A jury convicted Jason Jackson Heywood of violating section 18-3-405.4(1)(b), C.R.S.2013, Internet sexiial exploitation of a child. As relevant here, this statute applies if the actor knowingly importunes, invites, or entices another person, whom the actor knows or believes to be younger than fifteen years old, to view his intimate parts through a computer network. Resolving a novel question, we conclude that importuning, inviting, or enticing requires more than allowing such viewing to continue, after the actor comes to know or believe that the viewer is less than fifteen years old.
T2 Here, the undisputed evidence proves at most only that Heywood, without any information about the viewer's age, invited a person to view a webcam stream of him masturbating, and then did not stop the stream until several minutes after the viewer had said that she was fourteen years old. Because this evidence was insufficient, we reverse the judgment of conviction and remand the case for entry of a judgment of acquittal.
I. Background
13 Heywood and a Jefferson County District Attorney's investigator were connected to an Internet chat room
T 4 Heywood initiated an instant-message
4[ 5 While the webcam streamed images to Gallagher's computer, their conversation continued as follows:
armyjay283 (... 5:29:40 p.m.): 29 male den-ver you?
Tina Gallagher (... 5:29:52 p.m.): lakewood here. u lik dtown denver? 14 f
Tina Gallagher (... 5:80:00 p.m.): ur huge!
armyjay28 (... 5:80:14 p.m.) and you shouldnt be watehing*
Tina Gallagher (... 5:30:19 p.m.): u asked me
armyjay28 (... 5:80:48 p.m.): i didn't it invited everyone in the room
Tina Gallagher (... 5:81:05 pm.): no it said u invited me to see
armyjay28 (... 5:31:20 p.m.): well ill turn it off you could be a cop
Tina Gallagher (... 5:81:27 p.m.): im not a fuckin cop
Tina Gallagher (... 5:81:86 p.m.): wat the fuck
armyjay28 (... 5:81:45 p.m.): show me a pic4
Tina Gallagher (... 5:81:47 pm.): k
[[Image here]]
Tina Gallagher (... 5:82:07 p.m.): tats me armyjay23 (... 5:82:20 pm.): body pic5
Tina Gallagher (... 5:82:25 pm.): k
[[Image here]]
Tina Gallagher (... 5:82:50 pm.) teres another one
armyjay23 (... 5:88:18 p.m.): are you ital-ian
Tina Gallagher (... 5:80:30 pm.): yes
Tina Gallagher (... 5:83:34 p.m.): half
Tina Gallagher (... 5:84:19 p.m.): wat r u?
armyjay23 (... 5:84:24 p.m.): white
Tina Gallagher (... 5:84:39 p.m.): cool
Ting Gallagher ( ... 5:85:08 pm.): brb6
armyjay23 (... 5:85:14 p.m.): i gtg7
Tina Gallagher (... 5:85:84 pm.): friend?
Tina Gallagher (... 5:85:41 pm.) ha
Tina Gallagher (... 5:85:44 p.m.): want to be my friend dont
armyjay23 (... 5:85:45 p.m.): nah youre to young hun
Tina Gallagher (... 5:85:50 pm.): k wa-teve
Tina Gallagher (... 5:85:59 p.m.): bye
armyjay28 (... 5:86:06 p.m.): bye
[[Image here]]
armyjay23 (... 5:36:13 p.m.) hit me up when your 18 lol8
Tina Gallagher (... long ways way 5:36:21 pm.): tats
T6 Heywood admitted that he could have terminated Gallagher's access to the webcam stream at any time. But he did not do so until shortly after she wrote "brb," over five minutes following her statement that she was fourteen years old. The webcam showed him masturbating that entire time.
17 While the investigator was exchanging instant messages with Heywood as Gallagher, he also exchanged sexually graphic instant messages with him posing as tongue _kisser4, whom he identified as a twenty-two-year-old woman. In that role, the investigator arranged to meet Heywood. At the meeting, the investigator arrested him.
IL Preservation and Standard of Review
T9 Whether the record contains sufficient evidence to support a conviction is subject to de novo review. Dempsey v. People,
11 10 Lacallo is more like this case than it is different. True, in Lacaillo, interpreting a statutory element preceded "weighing of the probative strength of the evidence against the culpability element to which it relates." People v. Madson,
{11 And, similar to Lacallo, where trial counsel raised a different sufficiency argument below but "did not expressly or even impliedly raise the issue now argued," ¶6, here Heywood did not raise insufficiency until he appealed.
12 The Lacallo division articulated four reasons for applying plain error review: the broad wording of Crim. P. 52(b); the great weight of federal authority; significant, albeit less uniform, supporting authority in many states; and, most importantly, adhering to the policy of conserving judicial resources "by alerting the trial court to a particular issue in order to give the court an opportunity to correct any error." Lacallo, [ 15 (internal quotation marks omitted).
13 Because the cireumstances presented in this case do not diminish any of these reasons, we apply Lacallo's plain error limi
114 Plain error occurs Where an error is both "obvious and substantial" and "so undermined the fundamental fairness of the trial itself ... as to cast serious doubt on the reliability of the judgment of conviction." People v. Miller,
§15 When reviewing a challenge to the sufficiency of the evidence, a court considers whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a rational conclusion that the defendant is guilty of the crime charged beyond a reasonable doubt. People v. McGlotten,
IIL Law
T16 As relevant here, sectlon 18-3-405.4(1)(b) provides:
actor commits internet sexual exploitation of a child if the actor knowingly importunes, invites, or entices through communication via a computer network ... or instant message, a person whom the actor knows or believes to be under fifteen years of age and at least four years younger than the actor, to ... [olbserve the actor's intimate parts via a computer network ... or instant message.
117 "Generally, in order to subject a person to criminal liability for a felony or serious misdemeanor, there must be a concurrence of an unlawful act (actus reus) and a culpable mental state (mens rea)" Hendershott v. People,
118 A person acts knowingly with respect to an element of an offense when the person is aware that his conduct is of such a nature or that such cireumstances exist. § 18-1-501(6), C.R.S.2013. "The mental state of knowingly is a subjective rather than an objective standard and does not include a reasonable care. standard." Oram v. People,
119 Some statutes protect victims based on age alone. See, e.g., Gorman v. People,
120 Where a challenge to the sufficiency of the evidence requires that a statute be interpreted, the goal is effectuating the General Assembly’s intent. People v. Davis,
¶21 Effectuating the General Assembly's intent requires that the statute be
IV. Application
T 22 The parties agree that Heywood's initial invitation to the investigator posing as Gallagher-the actus reus-alone cannot support his conviction because he had no information suggesting that she was fourteen-the mens rea-when be sent it, In fact, Heywood had some information-the age restriction for the chat room-to believe otherwise. See People v. Casias,
23 But the parties disagree about whether the statute proscribes Heywood's conduct after Gallagher told him her age.
e Heywood argues that his failure to terminate Gallagher's webcam access immediately after being told of. her age is insufficient evidence that he importuned, invited, or enticed her to continue viewing.
e The Attorney General responds that the evidence was sufficient because by failing to terminate Gallagher's access while continuing their dialogue, he extended the initial invitation after having learned Gallagher's age.
{24 Resolving this dispute requires us first to interpret "importunes," "invites," and "entices," as used in section 18-3-405.4(1). Then we apply that interpretation to the undisputed evidence. After doing both, we conclude that Heywood is correct. .
A. Interpretation
125 Because the statute does not define those terms and they are of common usage, we begin with their dictionary definitions. See People v. Fioco,
126 "Importune" means "to press or urge with frequent or unreasonable requests or troublesome persistence"; "to beg, urge, or solicit persistently or troublesomely"; and "to make immoral or lewd advances toward another," Webster's Third New International Dictionary 1135-36 (2002). "Invite" means "to offer an incentive or inducement to"; "to request the presence or participation of"; "[to] solicit the company of"; and "to send a formal invitation to." (Id. at 1190. And "entice" means "to draw on by arousing hope or desire" and "to draw into evil ways." Id. at 757.
¶27 These definitions show that section 18-3-405.4(1)(b) is unambiguous. By their common meanings, "importune," "invite," and "entice" require more than merely allowing a person to continue viewing the actor's intimate parts. Had the General Assembly intended more broadly to prohibit allowing a person under the age of fifteen to view the actor's intimate parts through a computer network, it could have said so. See People v. Moore,
128 The statutory requirement that the actor "importune," "invite," or "entice" the viewer "through communication" also supports this interpretation. "Communication" means "the act or action of imparting or transmitting." - Webster's supra, at 460. Thus, reading the statute as a whole, it prohibits an actor from actively and affirmative ly importuning, inviting, or enticing a person to view the actor's intimate parts, while the actor knows or believes that the person is less than fifteen years old and at least four years younger than the actor,
B. Evidence.
129 Applying this interpretation, the undisputed evidence does not show that Heywood committed an act which the statute prohibits contemporaneously with the culpa ble mental state. The prosecution did not offer any evidence that Heywood believed Gallagher was younger than fifteen years old
130 Although their "communication via a computer network" continued, the transcript of those communications shows that Heywood referred to the webcam stream only twice after having been told of Gallagher's age. First, he said that she "shouldn't be watching." Second, he said that he would "turn it off," These two statements do not fit within the common meanings of "importune," "invite," or "entice." See People v. Rockne,
131 Still, the Attorney General argues that by failing to terminate Gallagher's access to the webcam stream after learning Gallagher's claimed age, Heywood "con-tinuled] his initial invitation," thereby satisfying the statute's requirement that an act and a specific mental state concur. The Attorney General has cited no authority supporting this argument, nor have we found any in Colorado.
{32 True, under some statutes, "physical conduct might begin first but continue until the requisite state of mind occurs," thus creating the required concurrence between an act and a culpable mental state. Wayne R. LaFave, Substantive Criminal Law § 6.3(a) n. 5 (2d ed. 2003). But unlike statutes that create ongoing offenses, such as possession of contraband or stolen property, section 18-3-405.4(1)(b) prohibits an invitation, which is a discrete event. See United States v. Southerland,
Thus, we conclude that the record does not contain sufficient evidence for any rational juror to conclude that Heywood "importuned," "invited," or "enticed" Gallagher to view his intimate parts after having been told her age. As a result, we further conclude that the first requirement for plain error reversal exists.
134 In so concluding, we note that the Lacallo division left open whether to require a greater showing at this stage because sufficiency was unpreserved. See Lacallo, ¶21 ("[We save for another day deciding whether analyzing either of the other questions is different when sufficiency arises for the first time on appeal.").
1 35 The federal civeuits are divided on this question. See id. at ¶20 n. 12. We are persuaded not to embark on what may be a futile effort by the following observations in United States v. White,
We admit we are not sure exactly what standard is implied by plain error review on a sufficiency of the evidence challenge. Presumably review should be more deferential than under the usual standard under which we determine only "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia,443 U.S. 307 , 319,99 S.Ct. 2781 ,61 L.Ed.2d 560 (1979) (emphasis in original). But it is hard to imagine that more deferential standard.
(First and third emphasis added.) See also People v. McBride,
136 Obviousness, the second plain error requirement, presents a closer question. Because the operative statutory terms have never been interpreted, no "previous case law would have alerted the court" to the error. People v. Mendoza,
@The contemporaneous intent requirement has always been a feature of erimi-nal law. See LaFave, Substantive Criminal Law, at § 6.8(a) ("With those crimes which require some mental fault (whether intention, knowledge, recklessness, or negligence) in addition to an act or omission, it is a basic premise of Anglo-American criminal law that the physical conduct and the state of mind must concur.").
e The operative terms in the statute have common and ordinary meanings.
e The statute is unambiguous.
See People v. Pollard,
137 Finally, as to the third plain error requirement-whether the error casts serious doubt on the reliability of the judgment of conviction-the Lacallo majority did not address this requirement because it concluded that the error, if any, was not obvious. Lacallo, ¶21. Unlike in Lacallo, here both the first and second plain error requirements have been satisfied. Thus, we must address application of the third factor to an unpre-served sufficiency claim.
' 38 But why would the nature of the error affect this third requirement? In many plain error cases involving all types of unpreserved errors, our supreme court has asked the same question: whether 'the error 'inder-mines " 'the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the judgment of conviction." Hagos v. People,
189 Therefore, we conclude that where the evidence is obviously insufficient for a rational trier of fact to find that an element of an offense has been proven beyond a reasonable doubt, the third requirement is satisfied. >
V. Conclusion
{40 The judgment is reversed and the case is remanded to the trial court with directions to enter judgment of acquittal.
. The investigator described a chat room as an online forum, similar to a "big conference call," in which "[elveryone in the chat{ Jroom can see what's being typed."
. According to the investigator, instant messages allow two people who are connected to the chat room to communicate privately.
. Defendant's computer contained a webcam, which allowed him to send real time images to other computers.
. In response to this statement, the investigator sent Heywood a photo of a young woman.
. In response to this statement, the investigator sent Heywood a second photo of a young woman.
. The investigator and Heywood testified that "brb" means "be right back."
. According to the investigator and Heywood, "i gtg" means "I got to go."
. According to the investigator, "lol" means "laughing out loud."
. The special concurrence says that Lacallo was "wrongly decided" because applying plain error review could result in a conviction being affirmed, although "the prosecution has failed to prove a defendant's guilt beyond a reasonable doubt," which "would be manifestly unjust." . But the same could be said of affirming a conviction despite structural errors, which "deprive defendants of 'basic protections' without which 'a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence ... and no criminal punishment may be regarded as fundamentally fair'" Neder v. United States,
. Like the division in Lacallo, we express no opinion whether a general assertion that the evidence was insufficient would, without more, preserve a legal question concerning the interpretation of a statutory element necessary to weigh the evidence.
. Although the Lacallo division noted that "trial counsel conceded that the evidence was sufficient," ¶2, later it expressly declined to resolve the issue based on waiver, because the Attorney General had not so argued. Id. at ¶6 n. 2.
Concurrence Opinion
specially concurring.
§41 I agree with the majority that the evidence in this case, even when viewed as a whole and in the light most favorable to the prosecution, is insufficient to establish that Heywood knowingly importuned, invited, or enticed, through communication via a computer network or instant message, a person whom Heywood knew or believed to be under fifteen years of age to observe his intimate parts via a computer network or instant message. Accordingly, I agree that the judgment in this case should be reversed.
T42 For two reasons, however, which I discuss in more detail below, I cannot join the majority's analysis. First, in my view, People v. Lacallo,
€ 43 Because I cannot agree with the majority's approach, which I believe will lead to unjust results, I respectfully concur in the judgment only.
I. Lacallo Was Wrongly Decided
1 44 In his thorough and thoughtful dissent in Lacallo, ¶¶55-72,
(45 First, with all respect, I cannot discern the prineiple that would allow an appellate court properly to say that the prosecution has failed to prove a defendant's guilt beyond a reasonable doubt (or to ignore whether it did) and then hold that the convietion should be affirmed anyway. I think, at root, our obligation as jurists is to do justice, and such a holding would be manifestly unjust.
¶46 Nor can I discern the principle, endorsed by the Lacallo majority, that would justify an appellate court's skipping over the question of whether the evidence was sufficient and deciding first whether any error was obvioud, I agree with Judge Romain that review in that manner seems to assume without deciding that an error occurred because review under the Colorado plain error standard begins with a determination of whether there was error. See id. at ¶67,
1 47 Second, to the extent that the Lacallo majority relied on the interests of finality, I do not agree that those interests alone suffice to let stand a manifestly unjust result. See Engle v. Isaac,
148 Third, to the extent that the Lacallo majority relied on federal court precedent, I do not find the majority's reasoning persuasive. As Judge correctly observed, the federal courts apply a fourth plain error prong that the Colorado courts have not adopted. See id. at ¶¶65-66,
Valenzuela contests the sufficiency of the evidence on both counts of conviction, but he did not move for acquittal in the district court. Im this circumstance, our review technically is for plain error. "Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." However, as a practical matter, the standard actually applied is the same as if there had been a motion for acquittal-de novo-because a conviction in the absence of sufficient evidence is plainly an error affecting substantial*211 rights provided that "the error seriously affects the fairness, integrity, or public reputation of judicial proceedings."
(Emphasis added.)
¶49 I fully agree that a conviction in the absence of sufficient evidence would always be plain error. Accordingly, I perceive no reason to depart from the principle, which I believed to be well-settled before 'Lacallo, that we will address insufficiency claims raised for the first time on appeal without applying plain error review. See id. at ¶¶59-63,
{50 Fourth, I -fail to perceive why we would require a defendant in a criminal case to file a motion for a judgment of acquittal to preserve an issue for appeal when we do not require similar preservation in civil cases. See Bailey v. Airgas-Intermountain, Inc.,
T51 Lastly, I agree with Judge that Lacallo signaled a major change 'in the law and would almost certainly create a new Tine of Crim. P. 35(c) ineffective assistance of counsel claims, see Lacallo, ¶¶70-71,
1 52 For all of these reasons, I respectfully believe that Lacallo was wrongly decided, and thus, I cannot join the majority's opinion here.
II. The Majority Has Miéappfied Lacallo
T 53 Even if Lacallo were correctly decided, however, I still could not join the majority's analysis here because I believe the majority has misapplied-and improperly expanded the reach of-Lacallo's holding.
1} 54 As noted above, in Lacallo, the majority stated that It was considering whether to apply plain error review to a sufficiency of the evidence challenge under "narrow circumstances," namely, where "trial counsel conceded that the evidence was sufficient ..., and appellate review of the evidence depends on a legal interpretation of a statutory element raised for the first time by appellate counsel." Lacallo, ¶2,
T 55 Here, the majority fails to apply these important limitations on the reach of Lacal-to's holding and states instead, "[Blecause Heywood did not raise sufficiéney of the evidence below, we agree with the Attorney General that the judgment will be reversed only for plain error."" The majority then cites Lacallo in support of this proposition.
56 For the reasons stated above, Lacallo does not support the broad proposition for which the majority cites it. Moreover, Lo-callo's limited holding does not apply. on the facts of this case. Unlike in Lacallo, we have no concession by Heywood that the evidence was sufficient. Moreover, in my view, our review here does not depend on a legal interpretation of a statutory element raised for the first time on appeal,. To the contrary, the majority concludes that section 18-3-405.4, C.R.S.2013, is unambiguous and that the operative terms have common and ordinary meanings, which the majority defines by reference to the dictionary. Indeed, the
¶57 In this regard, this case is distinguishable from Lacallo. There, the majority considered the meaning of "public disturbance" under section 18-9-101(2), C.R.S.2013. The majority began by observing that no Colorado cases had either interpreted that phrase or provided a commonly accepted definition of the term "public." Lacallo, ¶29,
1 58 The facts in this case are substantially different. Here, unlike in Lacallo, the majority has found that the statute at issue is «unambiguous, and the majority had no difficulty defining the statute's operative terms by reference to common and easily accessible dictionary definitions.
159 Accordingly, even if Lacallo were good law, by its very terms, it does not apply here, and the majority's opinion effects an unwarranted and in my view misguided expansion of Lacallo's already incorrect analy-sig.
III - Conclusion
' 60 For these reasons, I respectfully concur in the judgment only.