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ADVANCE SHEET HEADNOTE December 14, 2020

No. 19SC599, People v. Bott —Criminal Law —Double Jeopardy — Unit of Prosecution — Statutes.

The People petitioned for review of the court of appeals’ judgment vacating

eleven of Bott’s twelve convictions for sexual exploitation of a child by possession

of sexually exploitative material. See People v. Bott,

, __ P.3d __,

(Colo. App. 2019). In reliance on language from the statute’s legislative

declaration and court of appeals’ decisional law predating current amendments to

the statute, the trial court denied Bott’s motion to dismiss all but one of these

exploitation counts as multiplicitous, finding that the legislature intended to

permit conviction for each single incident of victimization. The court of appeals

disagreed, finding instead that the applicable unit of prosecution was determined

by the legislature when it chose to amend the statute to designate the act of

possessing more than twenty different items qualifying as sexually exploitative

material a class 4 felony. Accordingly, the court of appeals held Bott’s conviction of multiple class 4 felonies for possessing separate items numbering multiple times

greater than twenty violated his constitutional protection against being subjected

to jeopardy more than once for the same crime.

The supreme court affirms, holding that the language of section 18-6-403,

C.R.S. (2020), defining and proscribing the offense of sexual exploitation of a child,

makes clear the legislature’s intent that possession pursuant to subsection (3)(b.5)

of any number of items exceeding twenty that qualify as sexually exploitative

material constitutes a single offense.

2 The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

Supreme Court Case No. 19SC599 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 15CA2149

Petitioner:

The People of the State of Colorado,

v.

Respondent:

Joshua Christian Bott.

Judgment Affirmed en banc December 14, 2020

Attorneys for Petitioner: Philip J. Weiser, Attorney General William G. Kozeliski, Senior Assistant Attorney General Denver, Colorado

Attorneys for Respondent: Megan A. Ring, Public Defender Mark Evans, Deputy Public Defender Denver, Colorado

CHIEF JUSTICE COATS delivered the Opinion of the Court. ¶1 The People petitioned for review of the court of appeals’ judgment vacating

eleven of Bott’s twelve convictions for sexual exploitation of a child by possession

of sexually exploitative material. See People v. Bott,

, __ P.3d __,

(Colo. App. 2019). In reliance on language from the statute’s legislative

declaration and court of appeals’ decisional law predating current amendments to

the statute, the trial court denied Bott’s motion to dismiss all but one of these

exploitation counts as multiplicitous, finding that the legislature intended to

permit conviction for each single incident of victimization. The court of appeals

disagreed, finding instead that the applicable unit of prosecution was determined

by the legislature when it chose to amend the statute to designate the act of

possessing more than twenty different items qualifying as sexually exploitative

material a class 4 felony. Accordingly, the court of appeals held Bott’s conviction

of multiple class 4 felonies for possessing separate items numbering multiple times

greater than twenty violated his constitutional protection against being subjected

to jeopardy more than once for the same crime.

¶2 Because the language of section 18-6-403, C.R.S. (2020), defining and

proscribing the offense of sexual exploitation of a child, makes clear the

legislature’s intent that possession pursuant to subsection (3)(b.5) of any number

of items exceeding twenty that qualify as sexually exploitative material constitutes

a single offense, the judgment of the court of appeals is affirmed.

2 I.

¶3 Joshua Christian Bott was charged with five counts of sexual assault on a

child, three counts of sexual exploitation of a child (distribution), and twelve

counts of sexual exploitation of a child (possession of more than twenty items). He

was convicted of all charges and was sentenced to terms of eight years to life on

each count of sexual assault, to run consecutively; twelve years for distribution;

and two years on each of the counts of possession, also to run consecutively.

¶4 As relevant to the issue before this court, evidence at trial indicated that

during a search of the defendant’s home, the police seized a memory card

containing some 294 sexually exploitative images of children. The images

depicted at least 250 different victims, including some infants. With regard to the

charges of sexual exploitation of a child by possession of sexually exploitative

material, the prosecution grouped the images into twelve separate bundles, each

containing more than twenty images, and charged the defendant with the class 4

felony of possessing more than twenty different items qualifying as sexually

exploitative material, as proscribed at section 18-6-403(3)(b.5) and (5)(b)(II), as to

each bundle.

¶5 Both before and during trial, the defendant moved to dismiss eleven of the

twelve charges on grounds that possession of more than twenty qualifying items

constituted a single offense, for which he could not be convicted and punished

3 more than once. The district court denied the motions, finding that the statute

proscribed as a separate offense “each single incident of victimization.” On

appeal, the intermediate appellate court reversed the defendant’s convictions for

sexual assault on a child, for the separate reason that the prosecution failed to

produce sufficient evidence of those charges. It also vacated eleven of the

defendant’s twelve convictions for possessing sexually exploitative materials,

finding that the statute proscribes an act of possession, which was evidenced in

this case by the defendant’s possession of a memory card containing more than

twenty qualifying items. The defendant did not appeal his convictions and

sentences for sexual exploitation of a child (distribution).

¶6 We granted the People’s petition for a writ of certiorari solely on the

question whether the court of appeals erred in vacating eleven of the defendant’s

convictions for sexual exploitation of a child, as a violation of the constitutional

bar to his being placed in jeopardy more than once for the same offense.

II.

¶7 The double jeopardy clauses of both the federal and state constitutions

protect individuals not only from prosecution after either an acquittal or

conviction of the same offense, but also from being subjected to multiple

punishments for the same offense. See North Carolina v. Pearce,

(1969), overruled on other grounds by Alabama v. Smith,

(1989).

4 Although the Supreme Court has clarified this articulation of the constitutional

protection—specifying that with respect to cumulative sentences imposed at a

single proceeding, the Double Jeopardy Clause does no more than prevent the

sentencing court from prescribing greater punishment than the legislature

intended, Missouri v. Hunter,

, 366–69 (1983); see Whalen v. United

States,

, 691–92 (1980); see also Lewis v. People,

(Colo.

2011) (summarizing this court’s jurisprudence acknowledging this clarification

and accepting it as the correct interpretation of the state constitutional jeopardy

provision as well)—it nevertheless remains the case that unless the General

Assembly makes clear its intent to punish the same offense with more than one

conviction and sentence, it is not constitutionally permitted to do so, see Hunter,

459 U.S. at 368–69; Boulies v. People,

, 1278–79 (Colo. 1989).

¶8 Subject to constitutional limitations, it is, however, the prerogative of the

legislature to define crimes and prescribe punishments. Sanabria v. United States,

, 69–70 (1978); Woellhaf v. People,

, 215–20 (Colo. 2005);

Martinez v. People,

(Colo. 2003). Because any particular criminal

proscription can be violated more than once and often in more than one way, it is

similarly for the legislature to determine the breadth of the conduct it intends to

be punished as a single crime or single violation of its criminal proscription.

Although not specifically defining the term, the Supreme Court, in cases involving

5 more than one violation of a single statute, has referred to “the offense which the

legislature intended to create,” as the “unit of prosecution.” People v. Abiodun,

(Colo. 2005); see Ladner v. United States,

, 174–75

(1958); Bell v. United States,

(1955); see also Callanan v. United States,

(1961) (unit of prosecution discerns whether conduct constitutes

one or several violations of a single statutory provision); see generally Note, Twice

in Jeopardy,

, 313 (1965).

¶9 Further, the Court has expressly held that “once Congress has defined a

statutory offense by its prescription of the ‘allowable unit of prosecution’ . . . that

prescription determines the scope of protection afforded by a prior conviction or

acquittal.” Sanabria,

(citations omitted). This court has followed suit

by similarly characterizing the “unit of prosecution” as the manner in which a

criminal statute permits a defendant's conduct to be divided into discrete acts for

purposes of prosecuting multiple offenses, Woellhaf,

, and by

holding that once the General Assembly prescribes the unit of prosecution, that

prescription determines the scope of protection offered by the Double Jeopardy

Clause, id.; People v. Williams,

(Colo. 1982).

¶10 It is the legislature's choice to treat a course of conduct, or various acts that

it considers to be related in time, nature, or purpose (or in any other way) as one

or as more than one offense. See Williams,

(citing Sanabria,

6 at 69–70). For a host of reasons, including not only its assessment of the

appropriateness of multiple punishments but also the practical consequences of

requiring that similar or related acts be distinguishable, the legislature may very

well choose to define a series of acts, related along a continuum of conduct or

motivated by a single objective, for example, as a single crime. Abiodun,

; e.g., Prince v. United States,

(1957) (explaining that it is

Congress’s prerogative to proscribe the robbing of a federal bank and merely

entering with the intent to rob it, as the same crime).

¶11 Where the General Assembly proscribes conduct in different provisions of

the penal code and identifies each provision with a different title, its intent to

establish more than one offense is generally clear. Unless all the elements of a

separately designated offense are a subset of another, and therefore the one is

considered the same as, or included within, the other, see Blockburger v. United

States,

(1932); Reyna-Abarca v. People,

,

, a legislative intent to permit separate punishments for each can be

presumed, see Albernaz v. United States,

, 341–42 (1981). Where,

however, a number of acts are joined as a disjunctive series in a single criminal

proscription, whether the legislature intends to allow separate convictions and

sentences for each enumerated act is not so readily apparent and must be

7 ascertained, if at all, from the language and organization of the statute itself or

through the use of various aids to statutory construction. Abiodun,

.

¶12 The crime defined at section 18-6-403(3) and designated “sexual exploitation

of a child” proscribes a host of acts concerning visual depictions of a child engaged

in, participating in, observing, or being used for explicit sexual conduct, including

causing, inducing, enticing, or permitting a child to engage in or be used for any

explicit sexual conduct for the making of such depictions; preparing, arranging

for, publishing, producing, promoting, making, selling, financing, offering,

exhibiting, advertising, dealing in, or distributing such depictions; and finally,

simply possessing such depictions for various purposes. § 18-6-403(2)(j), (3),

C.R.S. (2020). Today we need not determine the extent to which the legislature

intended to permit separate prosecutions and sentences for any or all of these acts.

For purposes of the issue before us,we are called upon only to determine the extent

to which the legislature intended to permit separate conviction and punishment

for a defendant’s possession of each separate item included in the statutory

definition of “sexual exploitative material,” for some purpose other than to deal

in, sell, or distribute it.

¶13 Subsection (3)(b.5) of the statute specifies that any person other than certain

designated professional personnel commits sexual exploitation of a child if, for

any purpose, he knowingly possesses or controls “any” sexually exploitative

8 material.1 Sexually exploitative material is statutorily defined to include “any” of

a number of specifically named and disjoined items capable of reproducing visual

material or other mechanically, electronically, chemically, or digitally reproduced

visual material that depicts a child involved in or observing explicit sexual

conduct. § 18-6-403(2)(j).2 Use of the term “any” in both the definitional provision

and the proscriptive provision necessarily implies that proof of knowing

possession of any single item falling within the definition of sexually exploitative

material is sufficient for a conviction of the offense. However, it implies virtually

1Specifically, the statute provides that a person commits sexual exploitation of a child if he or she: Possesses or controls any sexually exploitative material for any purpose; except that this subsection (3)(b.5) does not apply to law enforcement personnel, defense counsel personnel, or court personnel in the performance of their official duties, nor does it apply to physicians, psychologists, therapists, or social workers, so long as such persons are licensed in the state of Colorado and the persons possess such materials in the course of a bona fide treatment or evaluation program at the treatment or evaluation site. § 18-6-403(3)(b.5). 2 “‘Sexually exploitative material’ means any photograph, motion picture, video, recording or broadcast of moving visual images, print, negative, slide, or other mechanically, electronically, chemically, or digitally reproduced visual material that depicts a child engaged in, participating in, observing, or being used for explicit sexual conduct.” § 18-6-403(2)(j). 9 nothing about the breadth or scope of the prohibited conduct intended by the

legislature to be punished as a single offense—its chosen unit of prosecution.

¶14 Although “possession” is now widely accepted as a proper basis for a crime,

at least to the extent that the possessed item was knowingly received or

consciously retained after sufficient time to have given up control of it, as a

criminal act, or actus reus, it is clearly different in nature from other discrete,

voluntary acts. See generally Wayne R. LaFave, 1 Substantive Criminal Law, § 6.1(e)

(3rd ed. 2020); Model Penal Code § 2.01 (Am. Law Inst., Proposed Official Draft

1962); Model Penal Code Commentaries, Part I, Vol. 1, 214, 224 (1985). Because

possession, as that term is ordinarily understood, continues until the possessor is

divested of control of the possessed item, it is more in the nature of a condition

than a discrete act, or at least has more in common with a course of conduct or a

series of acts related along a continuum of conduct. Factors we have previously

identified as determining whether conduct supporting one commission of a

particular offense is factually distinct from conduct supporting a second or

subsequent commission of that offense, like temporal and spatial proximity and

the presence of intervening events or volitional departures, see Schneider v. People,

,

; Woellhaf,

, are therefore less

applicable to offenses of possession. Rather, the intended scope of a single offense

of possession is typically determined by considerations involving the nature of the

10 thing or quantity of things simultaneously possessed, how or where or when they

were acquired or controlled, the length of time they have been possessed, or the

purpose or intended use for which they were possessed. See LaFave, § 6.1(e) n.50

(“[B]ut when the crime is possession with certain intention, one uninterrupted

possession may become multiple crimes because of a change in the defendant’s

intention.”).

¶15 By contrast with the definition of the offense itself in subsection (3)(b.5),

subsection (5)(b), concerning classification and punishment, expressly defines the

scope of a single commission of that offense in terms of the type or number of

different items qualifying as sexually exploitative material possessed pursuant to

subsection (3)(b.5). In subparagraph (5)(b)(II), the legislature specifies that

possession pursuant to subsection (3)(b.5) of a video, recording or broadcast of

moving visual images, or motion picture, or more than twenty different items

qualifying as sexually exploitative material “is a class 4 felony.” Id. (emphasis

added). While “items” is not defined as a term of art in the statute, subparagraph

(5)(b)(II)’s use of the phrase “items qualifying as sexually exploitative material” is

a clear and unmistakable reference to the list of disjoined items in subsection (2)(j)

constituting “sexually exploitative material” whenever the item in question

“depict(s) a child engaged in, participating in, observing, or being used for explicit

11 sexual conduct.” One of the disjoined items in the series is “digitally reproduced

visual material depicting a child” under the described circumstances.

¶16 In the past, we have found that by classifying as a single felony the

commission of a number of crimes under statutorily specified circumstances, the

legislature not only permits, but in fact requires, all such crimes to be joined and

prosecuted as a single felony. See, e.g., Roberts v. People,

(Colo.

2009) (“When a person commits theft twice or more within a period of six

months . . . it is a class . . . felony.” (quoting § 18-4-401(4), C.R.S. (2008) (emphasis

in original))).3 Similarly, in specifying that possession of more than twenty

qualifying items is a class 4 felony, the legislature has defined the unit of

prosecution in terms of the number of items possessed for the crime of sexual

exploitation of a child by possession pursuant to subsection (3)(b.5). Because the

legislature has itself determined that the possession of qualifying items numbering

greater than twenty, without limitation, amounts to the commission of a single

felony, separate convictions and punishment for the simultaneous possession of

3 In 2009, the General Assembly amended section 18-4-401 to expressly grant discretion to the prosecuting authority whether or not to join as a single felony all thefts committed by the same person within a six month period. Despite simultaneously amending section 18-6-403(5) in other regards, the legislature did not similarly amend that provision. 12 qualifying items exceeding twenty violates constitutional protections against

being punished twice for the same offense.

¶17 Because a statute takes its meaning from the language chosen for it by the

legislature, as long as that language is unambiguous and does not conflict with

other statutory provisions, the legislative intent, and therefore the meaning of the

statute, is clear without reference to other interpretative aids. See People v. Jones,

,

; Pham v. State Farm Auto. Ins. Co.,

,

. A declaration of legislative intent or purpose attached

to a proscriptive enactment can never be in conflict with that enactment because it

merely provides an explanation, in the form of legislative history, of its goals and

reasons for choosing to legislate as it has. While such a declaration of legislative

purpose may be helpful in resolving existing ambiguity, it cannot create ambiguity

in or conflict with an otherwise unambiguous proscriptive statute. See People in

Int. of T.B.,

,

(“[The] additional legislative

declaration in subsection (1.5) likewise does not narrow or otherwise modify the

actual elements of the offense of sexual exploitation of a child found in subsection

(3) of the statute or its associated definitional provisions in subsection (2).”).

¶18 In any event, the legislative declaration of purpose included in the broader

statute creating the crime of sexual exploitation of a child in no way suggests that

the language chosen to accomplish the legislature’s purpose was inadequate or

13 inadvertent. The categorization of possession pursuant to subsection (3)(b.5) as a

class 5 felony except where that possession consists of more than twenty

qualifying items clearly accomplishes the legislative goal of treating a greater

quantity of sexually exploitative material as a more serious offense. And

specifying an amount of prohibited material the possession of more than which

constitutes an element of, or elevates the seriousness of, an offense has been

acknowledged in other jurisdictions as a technique for defining the intended unit

of prosecution for possession crimes. See, e.g., United States v. Chiaradio,

, 275–76 (1st Cir. 2012) (finding that prohibition against “knowingly

possess[ing] . . . one or more books, magazines, . . .” could not constitutionally

support multiple possession charges); United States v. Polouizzi,

(2d Cir. 2009) (holding that “[t]he language ‘1 or more’ indicates that a person

commits one violation of the statute by possessing more than one matter

containing a visual depiction of child pornography” (citation omitted)).

¶19 In Marsh v. People,

, ¶¶ 22–23,

, 105–06, this court

found the term “possession” itself to be ambiguous, at least with regard to images

conveyed over the internet, and therefore considered extrinsic aids in resolving

the case before it. No question concerning either the possession or number of

images of individual children appearing on the memory card in question has been

raised before this court. Similarly, because the items as to which separate

14 conviction and punishment at issue here were all found on a single memory card

possessed or controlled by the defendant, we need not determine whether

possession pursuant to subsection (3)(b.5) inherently includes any limitation as to

time, location, or simultaneity of possession.4 Compare United States v. Prestenbach,

(5th Cir. 2000) (reasoning that “[i]f the contraband is possessed

at a single place and time, there is a single act of possession and a single crime” in

holding that keeping four altered money orders in a lotion bottle is one action, and

therefore one crime), and United States v. Elliott,

, 1315–16 (10th Cir.

2019) (relying on the fact that the prohibited materials containing child

pornography were all found in one location, the defendant’s bedroom, when

concluding the counts were multiplicitous), with United States v. Planck,

(5th Cir. 2007) (holding that separate counts for possession of child

pornography in three separate places—a laptop, a desktop computer, and

diskettes—were not multiplicitous).

4 In their Opening Brief in this court, the People asserted for the first time that multiple convictions should be permitted based on evidence that the images on the memory card were acquired rather than possessed at different times. Because this alternate claim was not litigated in the court of appeals, was not supported by a jury finding, and was not the subject of our grant of certiorari, we do not address it.

15 III.

¶20 Because the language of section 18-6-403, defining and proscribing the

offense of sexual exploitation of a child, makes clear the legislature’s intent that

possession pursuant to subsection (3)(b.5) of any number of items exceeding

twenty that qualify as sexually exploitative material constitutes a single offense,

the judgment of the court of appeals is affirmed.

16