May 24, 2019

Colorado Court of Appeals: Evidence Insufficient to Prove Photographs were “Erotic Nudity” and “Sexually Exploitative Material”

The Colorado Court of Appeals issued its opinion in People v. Henley on Thursday, June 1, 2017.

Sexual Exploitation of a Child—Erotic Nudity—Objective Standard.

A detective searched defendant’s computer and found over 90 images that he thought were sexually exploitative. The charged images that were introduced into evidence  show fully or partially naked children (sometimes accompanied by adults) talking, walking, and standing outside, posing in costumes, or participating in activities like body painting and games. The prosecution was also allowed to introduce uncharged images as relevant to show context. A jury found defendant guilty of 22 counts of sexual exploitation of a child (possession of materials) and one count of sexual exploitation of a child (possession of more than 20 items).

On appeal, defendant contended that his convictions should be vacated because there was insufficient evidence that the charged images are “sexually exploitative” as required to support a conviction under C.R.S. § 18-6-403(3) because they weren’t “erotic nudity.” Under C.R.S. § 18-6-403(3)(b.5), a person commits sexual exploitation of a child if he knowingly possesses or controls sexually exploitative material. “Sexually exploitative material” is any photograph depicting a child engaged or participating in, observing, or being used for explicit sexual conduct. Explicit sexual conduct includes, as relevant in this case, “erotic nudity.” The People conceded that the charged images don’t depict “erotic nudity” if viewed objectively. When viewed objectively, images that are not “erotic nudity” don’t become so merely because a particular person—one not involved in the creation or distribution of the images—looks at them for the purpose of personal sexual gratification. Therefore, evidence that defendant viewed the charged images for sexual gratification was insufficient to support defendant’s convictions.

The judgment was vacated.

Summary provided courtesy of The Colorado Lawyer.