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Colorado Supreme Court: Dividing Multiple Images of Child Pornography Into Multiple Batches to Charge Multiple Counts Violates Double Jeopardy

The case came before the Court after Joshua Bott was charged with five counts of sexual assault on a child, three counts of distribution of child pornography, and 12 counts of possession of more than 20 items of child pornography. He was convicted of every charge and sentenced to several decades in prison, with the sentences for each count running consecutively. He appealed, and in pertinent part, the court of appeals vacated 11 of the possession counts. The court held that charging 12 separate counts for one batch of 294 images of child pornography found on one memory card violated the Double Jeopardy Clause.

The issue in question arose after the prosecution broke down the batch of child pornography into a dozen separate groups of more than 20 images in order to charge Bott with 12 Class 4 felonies, instead of one charge for the entire batch. Bott did file a motion to dismiss the multiplicitous counts as violating double jeopardy, but the trial court ruled that the possession statute, Colo. Rev. Stat. § 18-6-403 (2020), allows separate charges for “each single incident of victimization.” The images were mostly of different victims of various ages.

On appeal, the court of appeals dismissed the sexual assault charges for lack of evidence by the prosecution. The court also ruled that all of the images on the memory card amounted to one act of possession and vacated 11 of the 12 child pornography possession counts.

The State petitioned the Supreme Court, arguing that the law allowed multiple counts for possessing a single batch of child pornography. The Supreme Court granted certiorari to address this single issue.

Both the Colorado and U.S. Constitutions prohibit a defendant from being punished for the same offense. This Double Jeopardy Clause prevents a sentencing court from imposing greater punishment than the lawmakers intended for a crime. Lewis v. People, 261 P.3d 480 (Colo. 2011). Unless lawmakers make clear the intent to punish the same offense with more than one conviction and sentence, it is not constitutionally permitted to do so, the U.S. and Colorado Supreme Courts have both ruled. Missouri v. Hunter, 459 U.S. 359 (1983); Lewis v. People, 261 P.3d 480 (Colo. 2011).

The Court recognized that any criminal law could be violated more than once “and often in more than one way.” Therefore, it is up to the language of the criminal statute to set out what conduct is punishable and how many times. This is called the “unit of prosecution.” People v. Abiodun, 111 P.3d 462 (Colo. 2005); Callanan v. United States, 364 U.S. 587 (1961).

A unit of prosecution is legally defined 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 v. People, 105 P.3d 209 (Colo. 2005). It is the unit of prosecution that established the scope of protection under the Double Jeopardy Clause.

Section 18-6-403 C.R.S. (sexual exploitation of children) criminalizes, among many other sexual abuses of children, possessing depictions of child pornography. Under subsection (3)(b.5) of the statute, a person commits sexual exploitation of a child if he “possesses or controls any sexually exploitative material for any purpose.” Subsection (5)(b) then provides the punishment and declares that possessing more than 20 items of child pornography “is a Class 4 felony,” observed the Court.

By including multiple items as one offense, the Court explained that this showed the intent of the General Assembly to classify possessing multiple child pornography images as one offense under the statute. “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 qualifying items exceeding twenty violates constitutional protections against being punished twice for the same offense,” the Court concluded.

The “unit of prosecution” established by the General Assembly is possession of multiple images, the Court said. Possessing fewer than 20 images is a lesser felony and more than 20 images is a greater felony. But in any case, possessing multiple images constitutes only one violation of the statute, the Court instructed.

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Related legal case

People v. Bott



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