23CA1119 Peo v Burnett 05-22-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1119 El Paso County District Court No. 22CR2960 Honorable David Shakes, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Walter Clyde Burnett,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division A Opinion by JUDGE SCHOCK Dunn and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 22, 2025
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, John P. Finnegan, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Walter Clyde Burnett, appeals his convictions on
two counts of sexual exploitation of a child. He contends that
(1) the evidence was insufficient to support one of his convictions;
(2) the search warrant for his home lacked sufficient particularity;
(3) the jury instruction on reasonable doubt impermissibly lowered
the prosecution’s burden of proof; and (4) the district court erred by
admitting improper lay opinion testimony. Alternatively, he argues
that his two convictions should merge. We affirm the judgment.
I. Background
¶2 While filling paper in a Walgreens photo printer, a store
employee noticed two photos — an identification card and an “adult
picture[] of a woman” — that violated store policy. The photos had
been submitted online by Burnett for printing by the store’s photo
department. The employee gave the photos to the store manager,
who then reviewed other photos Burnett had ordered and
discovered what she believed to be nude photos of children. The
store manager contacted police and gave them the photos.
¶3 Several days later, Burnett placed another order that included
nude photos of “young girls.” The store manager again gave the
1 photos to law enforcement. Burnett came to the store that day to
retrieve the photos, but the store manager did not give them to him.
¶4 Law enforcement then searched Burnett’s home pursuant to a
search warrant. During the search, police found several other
photos that appeared to depict nude children, as well as other nude
photos of individuals who could have been adults. Police seized and
searched Burnett’s phone, which contained some of the photos that
had been discovered during the search of his home, as well as
information indicating that Burnett had used the Walgreens online
photo processing service. Burnett told police he had printed photos
at Walgreens and admitted to downloading nude pictures of women
but claimed the women were over the age of eighteen.
¶5 Burnett was charged with two counts of sexual exploitation of
a child — one under section 18-6-403(3)(b), C.R.S. 2024, and one
under section 18-6-403(3)(b.5). The date range for both counts ran
from two days before the discovery of the first Walgreens order
through the search of Burnett’s home. The prosecution argued at
trial that the first count was based on Burnett transferring or
making photos accessible to another person, while the second was
based on his possession of the photos. Burnett’s primary defense
2 was that he reasonably believed the individuals in the photos were
at least eighteen years old. See § 18-1-503.5(1), C.R.S. 2024.
¶6 The jury convicted Burnett on both charges, and the district
court sentenced him to five years of sex offender intensive
supervised probation and ninety days in jail.
II. Sufficiency of the Evidence
¶7 Burnett contends that the evidence was insufficient to support
his conviction under section 18-6-403(3)(b) because, by sending the
photos to Walgreens to be printed, he did not knowingly transfer
them or make them accessible to another person. We disagree.
A. Standard of Review and Applicable Law
¶8 In reviewing the sufficiency of the evidence, we review the
record de novo to determine whether the evidence was sufficient
both in quantity and quality to sustain the conviction. Johnson v.
People, 2023 CO 7, ¶ 13. In doing so, we view the evidence “as a
whole and in the light most favorable to the prosecution” to
determine if the evidence is “substantial and sufficient to support a
conclusion by a reasonable mind that the defendant is guilty of the
charge beyond a reasonable doubt.” Id. (citation omitted).
3 ¶9 When a challenge to the sufficiency of the evidence depends on
statutory interpretation, we interpret the statute de novo. People v.
Vidauri, 2021 CO 25, ¶ 11. We begin with the language of the
statute, giving words and phrases their “plain and ordinary
meanings” and reading them in context “according to the rules of
grammar and common usage.” McCoy v. People, 2019 CO 44, ¶ 37.
¶ 10 As relevant in this case, a person commits sexual exploitation
of a child if the person knowingly “transfers to another person, or
makes accessible to another person, including, but not limited to,
through digital or electronic means, any sexually exploitative
material.” § 18-6-403(3)(b). This subsection of the statute is
intended to “reach any use of sexually explicit material beyond mere
possession or control that impacts or involves ‘the channels of trade
and commerce.’” People v. Robles-Sierra, 2018 COA 28, ¶ 39.
B. Analysis
¶ 11 For purposes of his sufficiency challenge, Burnett does not
dispute that the photos he sent to Walgreens included sexually
exploitative material. But he argues that the evidence was
insufficient to prove that he transferred or made those photos
accessible to another person. Because we conclude that the
4 evidence was sufficient to prove Burnett made the photos accessible
to another person, we need not decide whether the evidence was
also sufficient to prove he transferred them. See People v. Rowe,
2012 COA 90, ¶ 23 (declining to address other theories of liability
where evidence was sufficient to support one of them); People v.
Meils, 2019 COA 180, ¶ 43 (holding that section 18-6-403(3)
“prescribes alternative ways of committing the same offense”).1
¶ 12 The statute does not define “makes accessible.” But the plain
and ordinary meaning of “accessible” is “capable of being reached”
or “capable of being used or seen.” Merriam-Webster Dictionary,
https://perma.cc/Z9J5-5NCC; see also Griego v. People, 19 P.3d 1,
9 (Colo. 2001) (looking to dictionary definitions to determine
ordinary meaning). And to “make” is “to cause to happen to or be
experienced by someone” or “to cause to exist, occur, or appear.”
Merriam-Webster Dictionary, https://perma.cc/8ZM5-Q75H.
1 Burnett argues for the first time in his reply brief that his
conviction must be reversed if the evidence was insufficient as to any one of the means listed in section 18-6-403(3)(b), C.R.S. 2024. We do not address arguments raised for the first time in a reply brief. People v. Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990), abrogated on other grounds by Rojas v. People, 2022 CO 8. We note, however, that this is not a case involving a “legally inadequate basis of liability.” People v. Mantos, 250 P.3d 586, 591 (Colo. App. 2009).
5 Thus, read in context, the phrase “makes accessible” means to
cause something to be capable of being reached, used, or seen.
¶ 13 The evidence was sufficient to support the conclusion beyond
a reasonable doubt that, by sending the photos to Walgreens to be
printed, Burnett knowingly caused those photos to be capable of
being seen, at a minimum, by Walgreens employees. The store
manager testified that online photo orders are printed from the
main computer in the photo department. There was also evidence
indicating that the printed photos were then placed in an envelope
for pickup by the customer. Even if the printing process itself was
automated, these circumstances support an inference that Burnett
knew that someone would be handling the order and, thus, that the
photos were at least capable of being seen by a Walgreens employee.
¶ 14 Burnett argues that interpreting “makes accessible” in this
manner would make it indistinguishable from possession — a lesser
class of sexual exploitation of a child. See § 18-6-403(3)(b.5), (5)(b).
But by sending the photos to a third-party printing service, Burnett
made those photos accessible to others in a way that his own
possession did not. We disagree with Burnett’s suggestion that
photos in one’s personal possession are “capable of being reached”
6 simply because a third party could go to the person’s home and see
them. Rather, subsection (3)(b) is intended to reach conduct
beyond mere possession or control, including conduct that affects
the channels of trade and commerce. Robles-Sierra, ¶ 39; see also
§ 18-6-403(1). The submission of photos to a public business for
printing constitutes such additional conduct.
¶ 15 Burnett also asserts that, even if the photos were accessible to
Walgreens employees, he did not act knowingly because it was not
practically certain the photos would be seen, given the automated
nature of the printing process. See § 18-1-501(6), C.R.S. 2024 (“A
person acts ‘knowingly’ . . . when he is aware that his conduct is
practically certain to cause the result.”). But this argument
misunderstands what must be done knowingly. Burnett did not
need to knowingly cause the photos to be seen; he needed to
knowingly cause the photos to be capable of being seen. And a jury
could reasonably conclude beyond a reasonable doubt that Burnett
was aware his submission of the photos to Walgreens was
practically certain to make those photos capable of being seen — if
nothing else, by the employee who prepared them for pickup.
7 ¶ 16 We therefore conclude that the evidence was sufficient to
sustain Burnett’s conviction under section 18-6-403(3)(b).
III. Search Warrant
¶ 17 Burnett next argues that the district court erred by failing to
suppress evidence derived from the search of his home because the
search warrant was not sufficiently particular. We again disagree.
A. Additional Background
¶ 18 Based on the photos Burnett sent to Walgreens for printing,
police obtained and executed a search warrant for Burnett’s home.
The warrant identified the items to be searched for and, if found
seized, by reference to an attachment that it incorporated.
¶ 19 The attachment described those items as property
within [Burnett’s residence or property] . . . that is or has been used as a means of committing a criminal offense, is illegal to possess, or would be material evidence in a subsequent criminal prosecution, in violation of Colorado Revised Statutes 18-6-403 titled Sexual Exploitation of a Child and 18-3-405[, C.R.S. 2024,] Sexual Assault on a Child.
It then listed sixteen categories of items. As relevant here, those
categories included “[i]tems of indicia”; “[e]vidence related to the
ownership, control, or use of the computer/device system, media,
8 files, programs, and Internet service provider accounts”; and
“[i]tems that would establish ownership or use of
computers/devices and ownership or use of any Internet service
accounts accessed to obtain child pornography.”
¶ 20 Burnett moved to suppress all evidence derived from the
search of his home on the grounds that the warrant was overbroad
and lacked probable cause. At the motion hearing, Burnett
asserted that the warrant “lists . . . a large amount of things to be
seized at the house including . . . information regarding computer
device storage systems . . . that [are] far outside the scope of what
law enforcement should be able to apply for a warrant for.”
¶ 21 The district court denied the motion, concluding that the
warrant was supported by probable cause and not overbroad.
B. Applicable Law and Standard of Review
¶ 22 The Fourth Amendment requires search warrants to
“particularly describ[e] the place to be searched, and the persons or
things to be seized.” U.S. Const. amend. IV; see also Colo. Const.
art. II, § 7 (requiring warrant to “describ[e] the place to be searched,
or the person or thing to be seized, as near as may be”).
9 ¶ 23 This requirement ensures that a government search is
“confined in scope to particularly described evidence relating to a
specific crime for which there is demonstrated probable cause.”
People v. Seymour, 2023 CO 53, ¶ 44 (citation omitted). A warrant
is “adequately particularized as to the ‘things to be seized’ when it
allows an executing officer to ‘reasonably ascertain and identify the
things authorized to be seized.’” Id. at ¶ 50 (citation omitted).
¶ 24 We review de novo whether a search warrant satisfies the
particularity requirement. Pettigrew v. People, 2022 CO 2, ¶ 49.
C. Analysis
¶ 25 Burnett argues that certain categories of items listed in the
warrant were too broad or vague to provide the requisite
particularity. He points to two categories in particular — “items of
indicia” and “evidence related to the ownership, control, or use of
the computer/device system” — and asserts that these categories
effectively authorized the seizure of all items in his home.
¶ 26 We first address the People’s argument that Burnett failed to
preserve this argument. The focus of Burnett’s motion to suppress
was that the warrant lacked probable cause. Although he expanded
his argument somewhat at the suppression hearing by challenging
10 the breadth of the items listed in the warrant, he did so generally
and did not specifically challenge the categories he does on appeal.
In other words, Burnett argued that officers should not have been
able to search for certain items at all rather than that the warrant
did not sufficiently describe those items. Nevertheless, though a
close call, we conclude that Burnett’s assertion that the list of items
in the warrant was overbroad was sufficient to alert the district
court to the particularity issue Burnett raises on appeal. See
People v. Pahl, 169 P.3d 169, 183 (Colo. App. 2006).
¶ 27 Turning to the merits of Burnett’s argument, if the challenged
categories stood alone, he would have a point. But they do not
stand alone. Instead, all the categories listed in the warrant are
confined by the overarching limitation that the items must relate to
the crimes of sexual exploitation of a child or sexual assault on a
child. Thus, read in context, the phrases in question authorized
officers to search for (1) “items of indicia” of sexual exploitation or
sexual assault of a child; and (2) “evidence related to the ownership,
control, or use of [a] computer” used to commit, or containing
evidence of, sexual exploitation or sexual assault of a child. See
People v. Roccaforte, 919 P.2d 799, 804 (Colo. 1996) (requiring
11 courts to read warrants “in a practical, common sense fashion”). By
limiting the search to items related to “specific crime[s] for which
there [was] demonstrated probable cause,” the warrant provided the
requisite particularity. Seymour, ¶ 44 (citation omitted); see also
United States v. Suggs, 998 F.3d 1125, 1134 (10th Cir. 2021) (“[A]
warrant may satisfy the particularity requirement if its text
constrains the search to evidence of a specific crime . . . .”).
¶ 28 Burnett attempts to liken this case to People v. Herrera, 2015
CO 60, in which the supreme court held that a cell phone warrant
did not authorize a search of all data contained on the phone. But
the problem in Herrera was not the warrant. Id. at ¶ 25 (noting that
initial search was legitimate). It was the People’s interpretation of
the warrant to authorize a search that was not limited to the
particular alleged crime. Id. at ¶ 20. In contrast, the warrant in
this case was expressly limited to evidence of specific crimes, and
Burnett does not argue that law enforcement exceeded its scope.
¶ 29 Burnett also argues that the crime-based limitation is
“meaningless” because officers could not determine if items were
related to that crime without going through Burnett’s effects in the
first place. That may be true, but it does not make the warrant
12 insufficiently particular. In executing a search warrant, officers
may search any area in which the items identified in the warrant
might reasonably be found. Id. at ¶ 31. And unless they know
exactly where those items are kept, they will need to look for
them — including in places it turns out they are not. See United
States v. Bishop, 910 F.3d 335, 336-37 (7th Cir. 2018) (“A warrant
authorizing a search of a house for drugs permits the police to
search everywhere in the house, because ‘everywhere’ is where the
contraband may be hidden.”). But as long as the warrant describes
the items that officers are authorized to search for and seize with as
much particularity as the circumstances allow, that is all the
Constitution requires. See Seymour, ¶ 52; Bishop, 910 F.3d at 337
(“It is enough . . . if the warrant cabins the things being looked for
by stating what crime is under investigation.”).
¶ 30 Because the warrant in this case particularly described the
things to be seized by reference to the crimes under investigation,
the district court did not err by denying the motion to suppress.
IV. Reasonable Doubt Instruction
¶ 31 Burnett next contends that the district court erred by giving
the then-in-effect Colorado model jury instruction on reasonable
13 doubt, which Burnett argues lowered the prosecution’s burden of
proof, shifted the burden of proof to him, and undermined the
presumption of innocence. See Tibbels v. People, 2022 CO 1, ¶ 22
(“Instructions that lower the prosecution’s burden of proof below
the reasonable doubt standard constitute structural error . . . .”).
Specifically, he challenges (1) the failure to instruct the jury that
reasonable doubt may arise from the “lack of evidence” and (2) the
direction that the prosecution has failed to meet its burden “if you
think there is a real possibility that the defendant is not guilty.”
¶ 32 A division of this court recently rejected each of Burnett’s
arguments. People v. Schlehuber, 2025 COA 50, ¶¶ 18-25, 29-34
(holding that 2022 model jury instruction on reasonable doubt
correctly describes the burden of proof); see also People v. Melara,
2025 COA 48, ¶¶ 24, 32 (holding that omission of “lack of evidence”
language was not structural error). We agree with Schlehuber.
¶ 33 Although Colorado courts have approved of reasonable doubt
instructions that refer expressly to the “lack of evidence,” see People
v. Robb, 215 P.3d 1253, 1262 (Colo. App. 2009), “that does not
mean . . . it is error not to include that phrase,” Schlehuber, ¶ 24.
To the contrary, “the concept of reasonable doubt inherently invites
14 jurors to consider what evidence is missing.” Id. at ¶ 21. And read
as a whole, the instruction properly informs the jury that “if the
prosecution fails to present sufficient evidence of guilt, it will not
have met its burden.” Id. at ¶ 22. Thus, there is no reasonable
likelihood that the jury understood the omission of an express
reference to the “lack of evidence” to lower the prosecution’s burden
of proof below the reasonable doubt standard. Id. at ¶ 25.
¶ 34 The district court also did not err by equating reasonable
doubt with a “real possibility that the defendant is not guilty.” See
id. at ¶¶ 29-34. This formulation — which has been consistently
approved by federal courts — “correctly directs the jury not to
acquit the defendant simply because it can conceive of some
fanciful possibility that the defendant is not guilty.” Id. at ¶¶ 30-31.
Juxtaposed against the instruction that proof beyond a reasonable
doubt is proof that leaves the jury “firmly convinced” of the
defendant’s guilt, the “real possibility” phrase “give[s] the jury a
complete picture of the reasonable doubt standard.” Id. at ¶ 33.
And it does not shift the burden of proof to the defendant because
“[n]othing in that phrase suggests that the defendant must be ‘the
source of the “real possibility.”’” Id. at ¶ 34 (citation omitted).
15 ¶ 35 We therefore conclude, consistent with Schlehuber, that the
district court did not lower the prosecution’s burden of proof or
otherwise err by giving the model jury instruction then in effect.
V. Lay Opinion Testimony
¶ 36 Burnett’s final challenge to his convictions is that the district
court reversibly erred by (1) allowing multiple witnesses to offer lay
opinion that the individuals in the photos were under eighteen
years old and (2) allowing the lead detective to answer a jury
question about the number of “sexually exploitative images” found
at Burnett’s home. We conclude that any error was harmless.
¶ 37 Four witnesses testified at trial that the individuals in the
photos appeared to be under the age of eighteen:
• The store manager testified that the first set of photos
concerned her because “[t]here [were] children” and that
the second set of photos included “young girls.” She also
testified that she called police after seeing the first set of
photos because she saw “young girls . . . being abused.”
• The patrol officer who initially responded to the store
manager’s call testified that the females in some of the
16 photos he observed “looked, on their appearance, to be
underage; under the age of 18.”
• A detective testified that she believed the person in two of
the photos was under eighteen years old. She testified
that two other photos were “age difficult,” in that the
person’s “face is very young, but her body shows that it
might be older than 18.”
• The lead detective (now a sergeant) testified that,
although police cannot identify a person’s specific age,
they “can say it’s under the age of 18, and with good
estimation,” provide an age range. He testified that he
believed one photo “depicts somebody who’s a juvenile”
because “the development of the child in that photo is . . .
almost prepubescent, kind of younger of age.”
¶ 38 Defense counsel objected to all this testimony on the ground
that age was an issue for the jury to determine. The district court
overruled each objection, often without explanation but twice
reasoning that the testimony was “proper” or “helpful” lay opinion.
¶ 39 After the lead detective’s testimony, a juror posed a question to
him: “How many sexually exploitative images were determined to be
17 found at Burnett’s residence in total?” Burnett objected under CRE
403 and CRE 404(b), arguing that the question called for
speculation, was prejudicial, and could elicit testimony about other
uncharged bad acts. The district court overruled the objections and
asked the detective the question. The detective responded:
I do not recall the specific totals. Some of the images that were brought up were not our main focus. We were more concerned with the juvenile photos.
So I think there w[ere] under 10 photos, at that point in time.
¶ 40 Lay opinion testimony — the opinion of a non-expert
witness — must be (1) rationally based on the witness’s perception;
(2) helpful to a clear understanding of the witness’s testimony or the
determination of a fact in issue; and (3) not based on scientific,
technical, or other specialized knowledge within the scope of CRE
702. CRE 701. Such testimony is admissible when it “describe[s]
something that the jurors could not otherwise experience for
themselves by drawing upon the witness’s sensory and experiential
observations that were made as a firsthand witness to a particular
event.” People v. McFee, 2016 COA 97, ¶ 76 (citation omitted).
18 ¶ 41 But a witness “may not form conclusions for jurors that they
are competent to reach on their own.” Id. Thus, lay opinion
testimony is not helpful to the jury when it is “based on exactly the
same information the jury had.” Id. Nor may a witness testify that
“a particular legal standard has or has not been met.” People v.
Beilke, 232 P.3d 146, 152 (Colo. App. 2009); see also People v.
Collins, 730 P.2d 293, 306 (Colo. 1986) (explaining that lay opinion
testimony may not “merely tell the jury what result to reach”).
¶ 42 We review the district court’s evidentiary rulings, including the
admission of lay opinion testimony, for an abuse of discretion.
People v. Vergari, 2022 COA 95, ¶ 16. A court abuses its discretion
when “its decision is manifestly arbitrary, unreasonable, or unfair,
or based on a misapplication or misunderstanding of the law.” Id.
¶ 43 We review preserved evidentiary error for harmless error and
will reverse only if it “substantially influenced the verdict or affected
the fairness of the trial proceedings.” Id. at ¶ 17 (citation omitted).
An error is harmless if “there is no reasonable possibility that it
contributed to the defendant’s conviction.” Id. (citation omitted).
19 C. Ages of Individuals in Photos
¶ 44 We agree that the witnesses’ testimony regarding the ages of
the individuals in the photos — none of which was presented as
expert opinion — was not helpful to the jury in determining the
actual ages of those individuals. That testimony was based entirely
on the witnesses’ review of the photos. Because the jury also had
those photos, it was “in precisely the same position” as the
witnesses to review the photos and determine whether the
individuals were less than eighteen years old. McFee, ¶ 76.
¶ 45 But the testimony could have been helpful for another
purpose: assessing Burnett’s affirmative defense that he reasonably
believed the children to be eighteen years of age or older. See § 18-
1-503.5(1). A juror’s own personal determination that an individual
in a photo appeared to be a child would not necessarily answer
whether a person could reasonably believe otherwise. That four
witnesses had seen the photos and agreed they depicted children
could inform the jury’s determination of that issue. See Collins, 730
P.2d at 307 (holding that witness’s opinion that there was no
20 necessity to use a deadly weapon was helpful in determining what a
reasonable person would have believed under the circumstances).2
¶ 46 But even assuming the district court erred by admitting the
testimony, any error was harmless because the jury saw the photos
and could make its own determination as to whether the individuals
in those photos were under eighteen. See McFee, ¶ 78; Vergari,
¶ 20. Although three of the witnesses were police officers, they did
not claim that their opinions as to the individual’s ages were based
on any special expertise or knowledge; they simply looked at the
photos and thought the people in them looked like children. The
jury therefore had “no reason to accept [the witnesses’] opinion”
when it could “evaluate [the photos] for itself.” McFee, ¶ 79.
¶ 47 Indeed, in closing argument, both the prosecution and defense
counsel repeatedly urged the jury to do just that. The prosecution
explained that the witnesses had given their opinions “just as lay
people who live in this world and have life experience,” and it told
2 The store manager’s testimony that she saw photos of “children”
and “young girls” was also helpful to explain why she called police. See United States v. Stanley, 896 F.2d 450, 452 (10th Cir. 1990) (holding that postal inspector’s testimony that photos depicted children was helpful to explain his investigative actions).
21 the jury to “make those determinations [itself].” See Vergari, ¶ 20
(holding that error was harmless when court instructed jury to view
the videos and draw its own conclusions). Defense counsel likewise
emphasized that none of the witnesses had any medical training
and that the jury needed to determine how old the individuals
looked. Under these circumstances, there is no reasonable
probability that the jury uncritically accepted the witnesses’
opinions rather than forming its own conclusions. See id.
D. Number of Sexually Exploitative Images
¶ 48 Burnett also argues that the district court erred by allowing
the lead detective to answer the jury question regarding the number
of “sexually exploitative images” found in Burnett’s home.
¶ 49 Although Burnett asserts that this testimony was improper lay
opinion under CRE 701, he did not preserve that objection in the
district court, instead objecting only under CRE 403, CRE 404(b),
and the constitutional right to a fair trial. See People v. Gee, 2015
COA 151, ¶ 45 (“If an objection or request was made in the trial
court on grounds different from those raised on appeal, the issue is
unpreserved.”). We therefore review this issue for plain error,
meaning the error must be “obvious and substantial” and “so
22 undermine[] the fundamental fairness of the trial as to cast serious
doubt on the reliability of the judgment of conviction.” McFee, ¶ 71.
¶ 50 We agree that the question was improper to the extent it asked
the detective to opine on the ultimate legal conclusion that the
photos in Burnett’s home were “[s]exually exploitative material.”
§ 18-6-403(2)(j); see also Beilke, 232 P.3d at 152 (“The question that
elicits the opinion testimony must be phrased to ask for a factual,
rather than a legal opinion.”). But the detective’s response mostly
alleviated that problem by framing the answer in terms of the
number of photos law enforcement was “concerned about” rather
than the number of photos that were “sexually exploitative.” See
People v. Collins, 2021 COA 18, ¶ 68 (holding that witness’s proper
answer to an improper question rendered any error harmless).
¶ 51 In any event, even assuming it was obvious error to ask and
allow the detective to answer this juror question, any error was not
substantial for the reasons above. The focus of the question was
not whether the photos were sexually exploitative but the number of
photos at issue, compared to the total number of sexually explicit
23 photos found in Burnett’s home.3 To the extent the detective’s
response conveyed an opinion about the nature of the photos, it did
little more than the testimony that the individuals in the photos
were underage, which we addressed above. See § 18-6-403(2)(j)
(defining “[s]exually exploitative material” as “any photograph . . .
that depicts a child engaged in . . . explicit sexual conduct”).
¶ 52 The jury had the photos before it and could make its own
determination as to whether they were “sexually exploitative
material.” See McFee, ¶ 78. The detective’s testimony therefore did
not create “the kind of prejudice that would cast doubt on the
reliability of the verdict.” Id.; cf. Lawrence v. People, 2021 CO 28,
¶¶ 52-56 (holding that expert testimony addressing applicable legal
standards did not usurp the jury’s role or, alternatively, was
harmless, when it addressed only one element of the crime, the jury
was instructed that it was free to disregard the witness’s testimony,
and substantial evidence supported the jury’s findings).
3 Indeed, defense counsel specifically highlighted this point in
closing argument, calling the juror question “such a good question” and emphasizing that out of more than one hundred photos found in Burnett’s home, only ten were “potentially exploitative.”
24 VI. Merger
¶ 53 Finally, Burnett argues that his two convictions for sexual
exploitation of a child should merge. Because the evidence
supports at least two separate and distinct offenses, we disagree.
¶ 54 The Double Jeopardy Clauses of the United States and
Colorado Constitutions prohibit the imposition of multiple
punishments for the same criminal conduct. Woellhaf v. People,
105 P.3d 209, 214 (Colo. 2005). To determine whether multiple
convictions under the same statute violate double jeopardy, we
consider (1) whether the unit of prosecution prescribed by the
legislature permits charging multiple offenses and (2) whether the
evidence in support of each offense justifies charging distinct
offenses. Quintano v. People, 105 P.3d 585, 590 (Colo. 2005).
¶ 55 Section 18-6-403(5)(b) specifies that the unit of prosecution for
sexual exploitation of a child under subsection (3)(b.5) is each item
of sexually exploitative material possessed. The statute does not
specify the unit of prosecution under subsection (3)(b). But we
need not decide whether the unit of prosecution under that
subsection is each item of sexually exploitative material made
accessible or each instance of making sexually exploitative material
25 accessible because, either way, there was evidence of two such
instances. See Friend v. People, 2018 CO 90, ¶ 21 (“[A] single unit
of prosecution does not immunize a defendant from being punished
separately for successive commissions of the same offense.”).
¶ 56 So the question is whether the prosecution presented evidence
to support two factually distinct offenses. See Woellhaf, 105 P.3d at
218. It did. The prosecution presented evidence of three distinct
groups of sexually exploitative material: (1) the photos submitted to
Walgreens in the first order; (2) the photos submitted in the second
order about a week later; and (3) the photos found at Burnett’s
home a week after that. The two photos orders were each
independently sufficient to support the subsection (3)(b) charge,
and, as the prosecution argued in closing, any one of the three
groups of photos could have supported the subsection (3)(b.5)
possession charge. Thus, whether the unit of prosecution is each
photo (as it is for possession) or each act of making photos
accessible, the evidence was sufficient to support separate and
distinct offenses under subsection (3)(b) and subsection (3)(b.5).
See People v. Price, 2023 COA 96, ¶¶ 42-45 (holding that conviction
for possession of a forged instrument did not merge with
26 convictions for forgery when evidence established six separate
instances in which defendant possessed counterfeit money).
¶ 57 Relying on Meils, Burnett argues that his convictions must
merge because both counts involved the same date range and
“neither party argued that the multiple charges resulted from
discrete offenses committed at different times.” Meils, ¶ 44. But in
Meils, all the offenses occurred on a single date — the only question
was which date — and there was no indication of any distinction
between them. Id. In contrast, the prosecution in this case
presented evidence of three distinct groups of photos and explicitly
identified each “batch of photos” in closing. While the prosecution
did not directly tie each batch of photos to one of the two charged
offenses, it did not need to. See Price, ¶ 45 (holding that merger
was not required when “distinct and separate evidence supported
each conviction” and “verdict form did not assign particular acts to
particular charges”); People v. Gingles, 2014 COA 163, ¶ 45 (noting
that double jeopardy multiplicity claims are resolved on the basis of
the unit of prosecution and the sufficiency of the evidence, not “on
the basis of the positions taken by the parties at trial”).
27 ¶ 58 Burnett also argues that his convictions must merge because
subsection (3)(b.5) is a lesser included offense of subsection (3)(b).
See Reyna-Abarca v. People, 2017 CO 15, ¶ 64 (holding that lesser
included offense merges into greater offense). But “[m]ultiple
convictions for two separate offenses the elements of one of which
constitute a subset of the elements of the other can clearly stand if
the offenses were committed by distinctly different conduct.” People
v. Rock, 2017 CO 84, ¶17. In other words, convictions for a lesser
and a greater offense may both stand when, as in this case, the
evidence supports the commission of two factually distinct offenses.
VII. Disposition
¶ 59 The judgment is affirmed.
JUDGE DUNN and JUDGE BROWN concur.