September 9, 2011

Colorado Court of Appeals 9-1-11 criminal law decision

People v. Boles            Internet Luring / Overbreadth and Vague
Facts: A jury convicted Mr. Boles of attempted Internet Sexual Exploitation of a Child, Internet Luring, and Obscenity. Because cops ain’t got enough to do, they conjure up crap like these internet cases. In these cases, police 'heroically' pretend, lie, and fraudulently assume the identity of some underage girl in an ADULT chat room – not the Disney chat room, not the Nickelodeon chat room, and not even the MTV chat room – an adult chat room where everyone pretends to be something they are not (do those cable channels really have chat rooms?) Further, these scam artist cops either entrap or ensnare folks into sending pictures of themselves nude, encourage the men to meet the fake underage girl, or encourage the men to prompt the girls to send pictures. Mr. Boles ran the defense of role playing - meaning that he knew the person was not really a teenage hussy, but instead an adult. Unfortunately, the detective claimed and a jury bought that Mr. Boles was not role-playing, and convicted him. Mr. Boles challenged the constitutionality of both the Internet Luring statute and the Obscenity statute.
Issue: Whether Colorado’s Internet Luring statute is overbroad, and thus unconstitutional?
Held: No.
Reasoning: The Court of Appeals cited the rule on overbroad First Amendment challenges by rote, “In a facial challenge asserting that a statute is unconstitutional under the First Amendment, however, a showing that the law is overbroad may be sufficient to invalidate its enforcement. Nevertheless, a statute is unconstitutionally overbroad only if it includes within its proscriptions a substantial amount of constitutionally protected speech.”
Thwarting the overbreadth challenge, the Court of Appeals wrote, “Here, because section 18–3–306(1) requires an actor, in connection with a description of explicit sexual conduct, to make a statement ‘persuading or inviting’ the minor to meet, it does not authorize criminal charges based solely on speech.”
Issue: Whether as applied to Mr. Boles, the Internet Luring statute is unconstitutional in that he made no obscene statements to the fake kid?
Held: No.
Reasoning: Simply put, the Court of Appeals found that the obscenity standard under the First Amendment is lessened when it involves some clown pretending to be a kid. Thus, fake kid plus description to the fake kid about explicit sexual conduct establishes obscene language unprotected under the First Amendment.
Issue: Whether the Internet Luring statute is vague, and thus unconstitutional?
Held: No.
Reasoning: Mr. Boles argued that the statutory language “in connection with that description” made the statute vague. The Court of Appeals disagreed, “The grammatical construction of this language is that the statement can be under the guise of ‘any purpose,’ so long as it is made ‘in connection with’ the description of explicit sexual conduct. Therefore, contrary to defendant's argument, a person of common intelligence would comprehend what conduct is prohibited by the statute and thus, it is not unconstitutionally vague.”
Issue: Whether the Internet Luring statute violated the dormant Commerce Clause?
Held: Nope.
Reasoning: First you gotta hand it to the appellate lawyer, Andrew T. Bethart, for not only coming up a Commerce Clause challenge, but jn general, for putting the Court of Appeals through the grinder and forcing it to address these arguments. The rule for a dormant Commerce Clause challenge, as stated by the Court of Appeals, “The negative or dormant implication of the Commerce Clause prohibits the states, through taxation or regulation, from discriminating against or unduly burdening interstate commerce.” And, unfortunately, Colorado’s Internet Luring statute does not discriminate against or unduly burned interstate commerce because the Court could not “ascertain any legitimate commerce that would be derived from these communications.”
Issue: Whether the Obscenity statute is unconstitutional?
Held: No.
Reasoning: “Here, in our view, a person of common intelligence, when reading ‘promote’ in the context of the rest of the statute and in light of the definition provided by the legislature, could readily understand its meaning and application” Thus, the statute is not vague.
Issue: Whether the evidence was sufficient to convict Mr. Boles attempted Internet Exploitation of a Child?
Held: Yes.
Reasoning: Despite this being an adult chat room, the Court found that because Mr. Boles did not specify he was role playing with the fake kid, that he was told many times the age of the fake teenager, and because Mr. Boles asked her to touch herself, the evidence was indeed sufficient.

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