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People v. Bott.

2020 CO 86. No. 19SC599.  Criminal Law—Double Jeopardy—Unit of Prosecution—Statutes.

December 14, 2020

The People petitioned for review of the Court of Appeals’ judgment vacating 11 of Bott’s 12 convictions for sexual exploitation of a child by possession of sexually exploitative material. See People v. Bott, 2019 COA 100, __ P.3d __ (Colo.App. 2019). Relying 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, concluding 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 20 different items qualifying as sexually exploitative material a class 4 felony. Accordingly, the Court of Appeals held that Bott’s conviction of multiple class 4 felonies for possessing separate items numbering multiple times greater than 20 violated his constitutional protection against being subjected to jeopardy more than once for the same crime.

The Supreme Court affirmed, holding that the language of CRS § 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 20 that qualify as sexually exploitative material constitutes a single offense.

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