June 26, 2019

Colorado Court of Appeals: Internet Luring and Obscenity Statutes Not Unconstitutional; Not Overbroad as Applied to Defendant’s Explicit Sexual Communications

The Colorado Court of Appeals issued its opinion in People v. Boles on September 1, 2011.

Internet Sexual Exploitation of a Child—Internet Luring of a Child—Obscenity—Constitutional—Dormant Commerce Clause—Evidence.

Defendant appealed the judgments of conviction entered on jury verdicts finding him guilty of criminal attempt to commit Internet sexual exploitation of a child, Internet luring of a child, and obscenity. The judgments were affirmed.

Defendant was arrested and convicted after defendant, while online in an adult Internet chat room and using a screen name, initiated a conversation with an undercover detective posing as a 14-year-old girl named Trista. For over a month, defendant and “Trista” had numerous online, phone, and text conversations, the majority of which were sexual in nature. Defendant also asked “Trista” whether she wanted to meet him in person, at which point they discussed how she would travel from her supposed home in Denver to Colorado Springs, where defendant lived.

Defendant contended that the Internet luring and obscenity statutes under which he was convicted are unconstitutional. CRS § 18-3-306 is not overbroad because it is not content neutral and applies only if a communication describes “explicit sexual conduct.” The definition of “explicit conduct,” while narrow, is broader than the definition of obscenity as an exception to constitutionally protected speech. Further, the statute was not overbroad as applied to defendant’s explicit sexual and obscene communications. Finally, because a person of common intelligence would comprehend what conduct is prohibited by the statute, it is not unconstitutionally vague.

Defendant argued that the luring statute violates the dormant Commerce Clause. CRS § 18-3-306 does not discriminate against or unduly burden interstate commerce because it regulates the conduct of individuals who, through sexually explicit communications sent over the Internet, endanger the welfare of minors. Therefore, it does not violate the dormant Commerce Clause.

Defendant also contended that Colorado’s obscenity statute, CRS § 18-7-102(2.5)(a)(I), is unconstitutionally vague. However, a person of common intelligence would comprehend what conduct is prohibited by the statute. Therefore, it is not unconstitutionally vague.

Finally, defendant contended that there was insufficient evidence presented to prove that he took a substantial step toward the commission of Internet sexual exploitation of a child. “Trista” told defendant several times that she was 14 years old, defendant acknowledged her age, and defendant instructed “Trista” to touch her intimate parts. Therefore, there was sufficient evidence for a jury to convict defendant of this crime.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on September 1, 2011, can be found here.

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