Defendant’s wife, H.M., found on defendant’s work phone four photos of her 10-year-old daughter naked and two videos of her daughter undressing. Defendant was convicted of four counts of sexual exploitation of a child and one count of invasion of privacy for sexual gratification.

On appeal, defendant contended that the trial court denied him his right to present a complete defense by excluding evidence supporting his alternate suspect theory. However, overwhelming evidence supported defendant’s conviction, so any error in the trial court’s exclusion of the proffered evidence did not substantially affect the trial’s outcome and was harmless.

Defendant also argued that the trial court erred by allowing the prosecutor to commit misconduct by misstating critical evidence and asking the jury to draw an inference based on the absence of evidence that had been excluded. As to the first alleged instance of misconduct, the court alleviated any improper argument with a curative instruction. As to the second statement, the prosecutor used the evidence to draw a reasonable inference to explain why H.M. confronted defendant. The prosecutor’s remaining remarks, though inartful, did not constitute plain error.

Defendant further contended that the trial court erred in admitting expert testimony in the guise of lay witness testimony by an investigative technician, and unhelpful testimony by a detective. Given that the images the witnesses testified about had already been admitted into evidence, any error in admitting this testimony did not affect the outcome of the trial and was therefore harmless.

Lastly, defendant argued that his multiple convictions for sexual exploitation of a child violate his right to be free from double jeopardy because CRS § 18-6-403(3) prescribes alternative methods of committing the same offense. This statute is written in the disjunctive; it lists a series of acts referencing the same subject, governed by a common mens rea, and alternative ways of committing the same offense. Thus, a defendant cannot be convicted of both possession and creation of sexually exploitative materials for a single incident. Here, there was no indication that the prosecution intended to demonstrate that count 1 occurred at a different time than counts 2, 3, and 4. Thus, counts 2, 3, and 4 must merge into count 1 because it is the most serious of the charges.

The judgment was affirmed as to count 1. The convictions on counts 2, 3, and 4 were vacated and the case was remanded for correction of the mittimus.

Butler contacted 911 to report the driver of a vehicle (defendant) who Butler believed had fired shots at his vehicle while he was driving on the interstate. Police officers arrived at the vehicle and engaged their lights and sirens. The vehicle continued for two blocks before turning into a school parking lot, where defendant was arrested without incident. The officers searched his car and discovered a 9mm Smith & Wesson pistol with a live round in the chamber under the front passenger seat. The pistol’s loaded magazine was found in the center console, and several 9mm bullets were on the ground near the driver’s side door. The officers found two rifles and four boxes of ammunition in the trunk. Defendant was found guilty of attempted first degree assault, felony menacing, possession of a weapon on school grounds, prohibited use of a weapon, reckless endangerment, eluding a police officer, and a crime of violence sentence enhancer.

On appeal, defendant contended that the trial court plainly erred by failing to provide a specific intent element for the jury instruction on attempted first degree assault. The trial court’s failure to provide the specific intent element in the attempted first degree assault instruction constituted error. But when considered together, the jury instructions clearly instructed the jury regarding the required mens rea for attempted first degree assault. Therefore, there was no plain error.

Defendant also argued that the prosecution produced insufficient evidence to sustain a conviction for eluding a police officer. Here, in response to a police officer’s signal to pull over, defendant drove for two blocks on a two-lane residential road, without accelerating, before turning into a parking lot. Defendant’s actions did not constitute sufficient evidence to convict for vehicular eluding.

Defendant further argued that he did not commit the felony of possessing a deadly weapon on school grounds. Pulling into a school parking lot with a gun in the vehicle in response to a police officer’s directive is not sufficient evidence to prove unlawful conduct for purposes of CRS § 18-12-105.5.

Defendant further contended that his convictions for felony menacing and attempted first degree assault should be merged because proof of attempted first degree assault necessarily establishes felony menacing. Felony menacing is not a lesser included offense of first degree assault, and felony menacing and attempted first degree assault do not merge.

Lastly, defendant contended that the trial court violated his constitutional right to be present at his trial when it communicated with the deliberating jury while he was outside the courtroom. Here, while the jury deliberated, the trial court returned to the bench in response to an issue about the jury’s access to physical evidence recovered during the search. The prosecutor and defense counsel stipulated that, if the jury wanted access to this evidence, it could view the magazine, pistol, and live rounds individually, but not all together. No prejudice was caused by defendant’s absence during this stage of the trial. Thus, any error stemming from defendant’s absence was harmless beyond a reasonable doubt.

The convictions for eluding a police officer and possession of a deadly weapon on school grounds were reversed. The remaining convictions were affirmed. The case was remanded for amendment of the mittimus.

Salas and Trujillo were arrested for a drive-by shooting at a bar where two men were injured and one man was killed. Salas’s girlfriend, Sosa, admitted that she knew there was an outstanding warrant for the men and that she had been camping out with them since the shooting. Sosa was charged with accessory to first or second degree murder. To facilitate a plea agreement, the prosecution added a second count of accessory to second degree murder heat of passion. Sosa pleaded guilty to the second count, and the first count was dismissed. The prosecution moved for Sosa to be ordered to pay restitution jointly and severally with her co-defendants. The district court granted the motion. Sosa timely objected to the amount of the restitution order. After a hearing the court denied the objections.

On appeal, Sosa contended that the district court abused its discretion by ordering her to pay joint and several restitution for the victims’ losses because she was not the proximate cause of those losses. Colorado’s restitution statutes do not authorize a trial court to order a defendant to pay restitution for pecuniary losses caused by conduct for which a defendant was never criminally charged. Here, Sosa was not charged with and did not plead guilty to any crime based on conduct she engaged in before or as a participant in the shooting. Therefore, she has not been found guilty of, nor did she plead guilty to, a crime based on such conduct, and she cannot be deemed an “offender” as to any uncharged crime. Consequently, the district court was not authorized to order Sosa to pay restitution for losses proximately caused by the shooting.

The prosecution argued that requiring Sosa to pay restitution for losses caused by conduct for which she was not criminally charged does not violate her procedural due process right. However, Sosa was never charged with murder, so she did not agree to pay restitution proximately caused by the murder. The plea agreement in this case does not support the district court’s restitution award.

The restitution order as to Sosa was reversed and the case was remanded for the district court to determine what losses, if any, were proximately caused by the conduct for which Sosa was charged.