Background
Shayla Ann Simpson’s husband, Steven Rothbarth, sexually abused Simpson’s daughter, M.S., from ages eight through twelve. The evidence showed that Rothbarth had M.S. watch “daddy-daughter” pornography depicting an older man and younger woman engaged in vaginal and oral sex, purportedly to teach her acts he then committed against her. Simpson allowed M.S. to continue watching the material.
Police found pornography on M.S.’s phone and Rothbarth’s computer, and introduced a spreadsheet of websites visited on M.S.’s phone. M.S. testified and described the videos during forensic interviews. The videos themselves were not admitted. A jury convicted Simpson of promoting obscenity to a minor and child abuse.
The Court’s Holding
The Colorado Court of Appeals affirmed. It held that the prosecution may prove beyond a reasonable doubt that material is obscene without introducing the material itself for the jury to view. The court found no statutory or precedential requirement that the precise alleged obscene material be admitted at trial.
Viewing the admitted evidence in the light most favorable to the prosecution, the court concluded that it supported each part of Colorado’s obscenity definition. The descriptions supported a finding of patently offensive incestuous sex acts; the use of the pornography to facilitate Rothbarth’s abuse supported an inference of prurient appeal; and the record contained no indication of serious literary, artistic, political, or scientific value.
Key Takeaways
- A prosecutor need not introduce the alleged obscene video, image, or other material itself to sustain an obscenity conviction.
- Witness testimony and other circumstantial evidence may establish the nature and obscenity of material.
- Jurors may apply contemporary community standards based on their own understanding of their community’s tolerance.
Why It Matters
The decision establishes in a published Colorado appellate opinion that obscenity may be proved through admissible descriptive and circumstantial evidence rather than through presentation of the material itself. That rule is particularly consequential in cases involving sexualized material shown to children, where introducing the material may be unnecessary to establish the statutory elements.