25CA0084 Peo v Stinnett 08-20-2026 COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0084 Arapahoe County District Court No. 22CR623 Honorable Joseph Whitfield, Judge
The People of the State of Colorado, Plaintiff-Appellee, v. Jerry Lee Stinnett, Defendant-Appellant.
JUDGMENT AFFIRMED
Division C
Opinion by JUSTICE MARTINEZ* Tow, C.J., and Lipinsky, J., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 20, 2026
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
McClintock Criminal Defense, P.C., Theodore P. McClintock, Colorado Springs, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Defendant, Jerry Lee Stinnett, appeals the trial court’s judgment of conviction entered on a jury verdict finding him guilty of sexual exploitation of a child and sexual exploitation of a child (video). We affirm.
I. Background
¶2 In November 2020, officers received a cyber tip from Yahoo that fourteen images containing child sex abuse material (CSAM) had been uploaded from an IP address linked to a device at Stinnett’s Colorado residence. The images had been uploaded four months earlier. Officers went to Stinnett’s house to investigate but learned that he was living in Florida for the winter.
¶3 Once Stinnett returned to Colorado, in June 2021, officers executed a search warrant to seize any devices from Stinnett’s home that might contain CSAM.
¶4 As a result of their search, officers found nine videos containing CSAM on Stinnett’s cell phone. One of these videos was created and accessed on January 3, 2021, while Stinnett was living in Florida, but the video was still on his phone when he returned to Colorado. However, none of the images Stinnett had uploaded the previous year was found on any of his devices.
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¶5 Stinnett was charged with one count each of sexual exploitation of a child, a class 5 felony, and sexual exploitation of a child (video), a class 4 felony. A jury found Stinnett guilty of both charges. The trial court sentenced Stinnett to 90 days of electronic monitoring, 4 years of probation, and 100 hours of community service.
II. Discussion
¶6 Stinnett contends that the trial court erred by failing to close the courtroom to children during voir dire and refusing to give Stinnett’s proposed jury instruction on accidental or unintentional possession or viewing of sexually exploitative material. Stinnett also contends that there was insufficient evidence to support his conviction for knowingly possessing child sexual exploitative material in Colorado. We reject each of his contentions.
A. Children in the Courtroom
¶7 Stinnett argues that the trial court violated his Sixth Amendment right to an impartial jury when it allowed children to observe the voir dire for his trial. We disagree.
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1. Additional Background
¶8 On the first day of trial, defense counsel noted that “there is a large contingency of school-aged children in the courtroom, [which] appears to be approximately a dozen or more.” Counsel argued that, because the trial was about sexual exploitation of a child, it was “inherently prejudicial to have jurors exposed to a courtroom filled with children.” To support his argument, counsel cited Long v. State, 151 So. 3d 498 (Fla. Dist. Ct. App. 2014). In Long, a group of “men wearing leather jackets emblazoned with the phrase: ‘Bikers Against Child Abuse’” attended the trial of a defendant charged with multiple counts of molestation and sexual battery of his former stepdaughter. Id. at 499-500. The Florida court ruled that the bikers’ presence was inherently prejudicial and violated the defendant’s right to a fair trial. Id. at 501.
¶9 In this case, the trial court said it was aware there would be children in the courtroom that day because they were on a field trip. It also noted that the children would not hear any of the evidence from the case and would just attend the voir dire.
¶ 10 Further, the trial court viewed the children at Stinnett’s trial to be different from the bikers in Long. It said that the children were
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not wearing any clothing “that speaks to the rights of young people or children or certainly nothing along the lines of topics that we have in this case.” The court concluded that having the children in the courtroom did not prejudice Stinnett.
2. Standard of Review and Applicable Law
¶ 11 “We review decisions by trial courts to regulate courtrooms for an abuse of discretion.” People v. Whitman, 205 P.3d 371, 379 (Colo. App. 2007). “A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair, or when the trial court misapplies or misconstrues the law.” Fisher v. People, 2020 CO 70, ¶ 13.
¶ 12 A defendant has the constitutional right to a public trial. People v. Hassen, 2015 CO 49, ¶ 7 (first citing U.S. Const. amends. VI, XIV; and then citing Colo. Const. art. II, § 16). This right extends to all critical proceedings, including voir dire. Rios v. People, 2025 CO 46, ¶ 20. A court can close a trial to the public in compliance with a defendant’s rights only if (1) the party seeking the closure advances “an overriding interest that it is likely to be prejudiced”; (2) the closure is not “broader than necessary to protect that interest”; (3) the court considers “reasonable
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alternatives to closing the proceeding”; and (4) the court makes “findings adequate to support the closure.” Id. at ¶ 24 (quoting Waller v. Georgia, 467 U.S. 39, 48 (1984)).
¶ 13 While a defendant has “the right to a public trial, it does not guarantee the right to compel a private trial.” Gannett Co. v. DePasquale, 443 U.S. 368, 382 (1979); Singer v. United States, 380 U.S. 24, 34-35 (1965) (“The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right.”).
¶ 14 Additionally, a defendant has the constitutional right to a fair trial, which “includes the right to have an impartial jury decide the accused’s guilt or innocence solely on the basis of the evidence properly introduced at trial.” Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005). A defendant may challenge the arrangement of a courtroom as inherently prejudicial against him if he believes it would cause jurors to be prejudicial against him. See Holbrook v. Flynn, 475 U.S. 560, 570 (1986); People v. Montgomery, 743 P.2d 439, 441-42 (Colo. App. 1987) (“The defendant’s right to a fair trial includes the right to a trial free from audience
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demonstrations which may intimidate or prejudicially affect the jury.”).
¶ 15 When a defendant challenges a courtroom arrangement, the court must “look at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial.” Holbrook, 475 U.S. at 572. But “if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.” Id.
3. Analysis
¶ 16 The trial court did not abuse its discretion by allowing the children to remain in the courtroom during the first day of Stinnett’s trial.
¶ 17 Stinnett does not have a constitutional right to close his trial from the public. See Gannett Co., 443 U.S. at 382. Waiving the right to a public trial does not give a defendant the right to require closure, or partial closure, of the courtroom. To the extent that Stinnett requested a closed courtroom, the court did not violate Stinnett’s constitutional rights by denying this request. See Singer, 380 U.S. at 34-35.
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¶ 18 Stinnett now argues that the trial court failed to adhere to the test set forth in Waller to determine whether closing the courtroom was appropriate. But the Waller test protects the right to a public trial with requirements that must be met before limiting that right; thus, it applies when determining whether a court may close a courtroom. See Hassen, ¶ 9 (“In Waller, the Court articulated four requirements that a trial court must meet in order to validly close the courtroom”); see also People v. Gonzalez-Quezada, 2023 COA 124M, ¶ 52 (“[T]he Supreme Court has articulated four requirements, known as the Waller factors, that must be met to justify a courtroom closure . . . .”). In this case, the trial court did not seem to even consider completely closing the courtroom. Rather, finding no prejudice to Stinnett from the presence of the children, the court implicitly decided not to exclude them from the courtroom. Because the court did not partially close the courtroom by excluding the children, all four Waller requirements are not applicable to our review. Rather, we consider the test from Holbrook — whether Stinnett had an overriding interest that was likely to be prejudiced or was prejudiced — specifically, whether the presence of the children was inherently prejudicial to his right to a
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fair trial. See Holbrook, 475 U.S. at 572. To the extent Waller is applicable at all, it is because the first factor, prejudice to an overriding interest, is reflected in Holbrook’s inherent prejudice test. See id.
¶ 19 We are not convinced that Stinnett was inherently prejudiced by the trial court’s decision to allow the children to remain in the courtroom. As the court pointed out, none of the children was wearing or carrying anything “that speaks to the rights of young people or children or certainly nothing along the lines of topics that we have in this case.” The presence of children in the courtroom did not necessarily imply that Stinnett should be found guilty of the charges against him. Rather, different people could draw different inferences, or none at all, from the presence of schoolchildren. It is not clear why any of the possible inferences would speak to Stinnett’s guilt or innocence or otherwise interfere with his right to a fair trial. Further, nothing in the record suggests actual prejudice. Thus, the prejudice, if any, was not inherent and did not require the exclusion of the children from the courtroom. Without inherent or actual prejudice caused by the children’s presence, “the inquiry is over.” Id. Therefore, we cannot agree that the trial court
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abused its discretion by declining Stinnett’s request to exclude the children.
B. Proposed Jury Instruction
¶ 20 Stinnett next contends that the trial court erred by refusing to give his proposed jury instruction. We disagree.
1. Additional Background
¶ 21 On the third day of Stinnett’s trial, defense counsel requested that the trial court provide a jury instruction that read, “Accidentally or unintentionally possessing or viewing sexually exploitative material is not a crime.” Counsel cited People v. Marsh, 396 P.3d 1 (Colo. App. 2011), aff’d, 2017 CO 10M, as support.
¶ 22 The prosecutor objected to the proposed instruction. He argued that courts should “abstain from giving excerpts from court opinions taken out of context as jury instructions.” He also argued that Marsh didn’t support this proposition, and that the instruction would confuse the jury because it didn’t provide the correct mens rea.
¶ 23 Defense counsel argued that Marsh supported the proposed instruction because Marsh stated that the jury in that case could “decide that the defendant did not accidentally or unintentionally
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visit the web pages” containing CSAM based on the evidence that his computer automatically saved files of the images. Thus, defense counsel argued, the inverse of this statement could be inferred, such that it’s not a crime to accidentally view CSAM.
¶ 24 The trial court found that the statement from Marsh specifically related to the facts in that case and could not be generalized to support defense counsel’s proposed jury instruction. It further held that Marsh doesn’t say that accidentally or unintentionally viewing CSAM is not a crime but instead says “the jury in that case could decide, again, based on all the evidence, that the defendant did not accidentally or unintentionally visit the web pages from which the cache files were created.”
¶ 25 The trial court denied defense counsel’s request to give the proposed instruction.
2. Standard of Review and Applicable Law
¶ 26 “[W]e review a trial court’s decision concerning a proposed jury instruction for an abuse of discretion and will not disturb the ruling unless it is manifestly arbitrary, unreasonable, or unfair,” or a misapplication of the law. People v. Trujillo, 2018 COA 12, ¶ 11; People v. Gallegos, 2023 COA 47, ¶ 15, aff’d, 2025 CO 41M.
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¶ 27 “[A]n instruction embodying a defendant’s theory of the case must be given by the trial court if the record contains any evidence to support the theory.” People v. Nunez, 841 P.2d 261, 264 (Colo. 1992). “[A] trial court has ‘an affirmative obligation’ to work with counsel to correct a tendered theory of the case instruction . . . .” Trujillo, ¶ 13. However, “[a] trial court may refuse an instruction that contains an incorrect statement of law, or that states principles already encompassed elsewhere in the court’s instructions.” People v. Tweedy, 126 P.3d 303, 307-08 (Colo. App. 2005) (first citing People v. Mandez, 997 P.2d 1254, 1271 (Colo. App. 1999); and then citing People v. Frantz, 114 P.3d 34, 41 (Colo. App. 2004)).
¶ 28 A court does not have an obligation to edit any tendered jury instruction other than a defendant’s theory of defense instruction. People v. Quezada-Caro, 2019 COA 155, ¶ 50, cert. granted, judgment vacated on other grounds, and case remanded, No. 19SC962, 2020 WL 7868226 (Colo. Dec. 21, 2020) (unpublished order). A theory of defense instruction “sets forth a party’s contentions” rather than the applicable law. Schuessler v. Wolter, 2012 COA 86, ¶ 23.
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¶ 29 Lastly, “a trial court’s use of an excerpt from a judicial opinion in a jury instruction is generally an unwise practice because opinions and instructions serve very different purposes.” People v. Lane, 2014 COA 48, ¶ 13.
[L]anguage used in an opinion pertinent to the issues and the determined facts in that case may be a proper expression of the law as related to those facts and issues, and pertinent to a decision of the case, and yet may not be sufficiently general, clear, or accurate to serve as a satisfactory or full instruction to a jury.
Cohen v. People, 103 P.2d 479, 480 (Colo. 1940).
3. Analysis
¶ 30 Stinnett’s tendered jury instruction is not a theory of defense instruction. The instruction simply states Stinnett’s proposed applicable law for the case, and it doesn’t “explain the evidence and its legal effect.” People v. Bruno, 2014 COA 158, ¶ 19. An instruction that discusses an elemental definition, like Stinnett’s proposed instruction, is not a theory of defense instruction because it does not explain why a defendant is not guilty. See People v. Joosten, 2018 COA 115, ¶ 33. Stinnett’s proposed instruction does not indicate how the evidence presented shows that he accidentally or unintentionally viewed CSAM, or even that his theory of defense
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was that he accidentally viewed CSAM. Thus, because the instruction does not provide a theory of defense, the trial court was not obligated to work with Stinnett to draft a different instruction. See Quezada-Caro, ¶ 50.
¶ 31 Additionally, the substance of Stinnett’s proposed instruction was subsumed within the instructions that the court gave the jury. The instructions presented to the jury define “possession” as a “voluntary act” if “the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it.” The instructions also provide that a person acts knowingly “when he is aware that his conduct is of such nature or that such a circumstance exists.” And a person acts “‘knowingly’ or ‘willfully,’ with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result.” The instructions allowed the jury to find that Stinnett didn’t meet the elements of possessing or controlling CSAM if the evidence established that he unknowingly possessed the images and deleted them when he discovered them in his possession. Moreover, to the extent “accidentally” is understood to mean anything other than “not knowingly,” it would be inaccurate or require an additional
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instruction providing a more restrictive definition. Thus, Stinnett’s proposed instruction was misleading and, at best, inaccurately stated the inverse of the provided instructions.
¶ 32 Lastly, Stinnett’s tendered instruction was not an accurate statement of the court’s holding in Marsh. Nowhere in Marsh does the court say that accidentally or unintentionally possessing or controlling CSAM can never be a crime. See Marsh, 396 P.3d at 10. Marsh involved a sufficiency of the evidence claim, and the court in that case concluded that files in a cache on Marsh’s computer, which would have been automatically created, were sufficient evidence to prove that the files had been viewed on the computer. The court in Marsh said the jury could use such evidence to find that Marsh “did not accidentally or unintentionally visit the web pages.” Id. at 10. This was the one time the court used this phrase, and it was a reference to the evidence presented in the case. See id. (“Based on this evidence, the jury could infer that . . . defendant intentionally saved images he viewed on the internet to his hard drive.” (emphasis added)). The language in the Marsh opinion is specific to the facts of that case, and the opinion was not written for the purpose of supporting a generally applicable jury
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instruction for future cases. Thus, the trial court did not abuse its discretion by denying Stinnett’s proposed instruction.
C. Sufficiency of the Evidence
¶ 33 Stinnett contends that the People failed to prove that he knowingly possessed child exploitative material in Colorado because they did not prove that he accessed the material within the state. We disagree.
1. Standard of Review and Applicable Law
¶ 34 “We review the record de novo to determine whether the evidence presented at trial was sufficient in both quantity and quality to sustain a defendant’s conviction.” Lawrence v. People, 2021 CO 28, ¶ 23.
¶ 35 “In criminal cases, the prosecution is required to ‘prove every factual element necessary to constitute the crime charged beyond a reasonable doubt.’” People v. Knobee, 2020 COA 7, ¶ 21 (quoting Vega v. People, 893 P.2d 107, 111 (Colo. 1995)). For sufficiency challenges, we determine “whether the evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a rational jury that the defendant is guilty beyond a reasonable
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doubt.” People v. Market, 2020 COA 90, ¶ 47. “In making this determination, we give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence.” Id. But “it is the jury’s job, not ours, to resolve conflicting evidence and to determine the credibility and weight of the evidence.” People v. Price, 2023 COA 96, ¶ 26.
¶ 36 Under section 18-6-403(3)(b.5), C.R.S. 2025, a person commits sexual exploitation of a child if he knowingly “[a]ccesses with intent to view, views, possesses, or controls any sexually exploitative material.” A person acts knowingly “when he is aware that his conduct is practically certain to cause the result.” § 18-1-501(6), C.R.S. 2025. Ordinarily, the offense is a class 5 felony, but it is raised to a class 4 felony if the CSAM is a video. § 18-6-403(5)(b)(II).
2. Analysis
¶ 37 There is sufficient evidence that Stinnett possessed CSAM while in Colorado.
¶ 38 Detectives first became involved in Stinnett’s case when they received a cyber tip from Yahoo that fourteen images containing CSAM had been uploaded and sent via one of Yahoo’s email
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addresses that it controls on its servers. Though Stinnett was living in Florida when the detectives received the tip, the photos had been uploaded five months earlier, when Stinnett was in Colorado.
¶ 39 Stinnett also accessed a CSAM video twice when he was living in Florida. Officers found the same video on his phone when they searched his devices at his home in Colorado. This is enough circumstantial evidence for a jury to find that Stinnett knew that the material was CSAM and knew that he was in possession of it when he was in Colorado, as the statute required.
¶ 40 Stinnett argues that this evidence is not sufficient because it does not prove that he accessed the material in Colorado. But accessing CSAM is just one way that a person can commit the offense. See § 18-6-403(3)(b.5). A person can also commit the offense if they are knowingly in possession or control of CSAM. Id. The evidence presented at trial was sufficient to show that Stinnett knowingly possessed or controlled CSAM in Colorado.
¶ 41 Stinnett argued at trial that the evidence instead showed that he had tried to delete the CSAM from his phone and thus did not knowingly possess it in Colorado. But the fact that the jury did not accept this explanation does not make the evidence insufficient.
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See People v. Becker, 531 P.2d 386, 388 (Colo. 1975) (the jury does not have to accept the defendant’s explanation). It’s entirely reasonable for a jury to have concluded that, based on the evidence presented, Stinnett possessed or controlled images containing CSAM in Colorado.
III. Disposition
¶ 42 We affirm the judgment.
CHIEF JUDGE TOW and JUDGE LIPINSKY concur.