“Knowingly Seeking Out and Viewing Child Pornography” and “Possession”

This post examines a recent opinion from the Supreme Court of Colorado: Marsh v. People, 2017 WL 481608 (2017).  The court began the opinion by explaining that a

jury convicted petitioner Anthony Edwin Marsh of sexually assaulting three of his granddaughters and possessing more than twenty images depicting child pornography. Marsh appealed, and the court of appeals affirmed his conviction. Marsh v. People, ––– P.3d ––––, No. 08CA1884, 2011 WL 6425492 (Colorado Court of Appeals Dec. 22, 2011). We granted certiorari to consider whether the presence of temporary internet cache files stored on a person's hard drive can constitute evidence of `knowing possession’ as used in Colorado's child pornography statute, section 18–6–403, Colorado Revised Statutes (2016).

Marsh v. People, supra.

The opinion goes on to summarize the facts that led to Marsh’s conviction:

Marsh allegedly sexually assaulted three of his granddaughters, C.S., E.M., and S.O., between 2005 and 2007. The children ranged in age from four to seven years old at the time of the alleged assaults. Two forensic interviewers from Blue Sky Bridge Advocacy Center (`Blue Sky’) interviewed each of the three granddaughters, as well as a fourth granddaughter, A.S., who was fifteen years old at the time of the trial in 2008.  The two interviewers and four granddaughters all testified at trial, and the jury watched a video recording of each forensic interview. During those interviews, the children's accounts of the alleged assaults varied from their testimony at trial in certain respects, including when and how many times the assault happened and what the assault entailed. The children also gave some conflicting information during their interviews. Each granddaughter consistently testified, however, that Marsh touched her `between the legs,’ sometimes while viewing pornography on a desktop computer that he had in his basement.

The four granddaughters also testified that they, Marsh, and one of Marsh's daughters all used the computer. The children testified that the computer had pornographic images on it, some involving adults and some involving children. They said that they accessed the computer when Marsh was not present and located pornographic images that he had saved on it. They also claimed to have found child pornography websites on Marsh's internet `Favorites’ toolbar. During her forensic interview, A.S. stated that she attempted to delete some of the pornographic images that she found.

Marsh v. People, supra.

The opinion goes on to explain how the forensic interviewers’ testimony was presented at trial:

[T]he forensic interviewers testified about their backgrounds and training and about the goals and methods of conducting forensic interviews. Jennifer Martin, who interviewed A.S. and E.M., testified that she had attended sixteen trainings on forensic interviews and had interviewed approximately 2,000 children. She also explained the difference between forensic interviews and regular interviews. Martin stated that her initial goal in conducting forensic interviews is to make children feel comfortable talking about `things that may have happened to them’; if something has happened, then the goal becomes to obtain detailed information. In particular, Martin said that she conducts forensic interviews of child sex assault victims according to national guidelines that entail starting the interview with broad or open-ended questions and gradually getting more specific. She also noted that this approach entails avoiding leading questions entirely.

The second interviewer, Michelle Peterson, interviewed C.S. and S.O. She testified that she conducted nine to ten forensic interviews per week and that she had been employed with Blue Sky for nine years. Like Martin, Peterson also explained the difference between forensic interviews and other types of interviews. She testified that police or social workers first conduct a short interview and then bring in a forensic interviewer if they believe it is possible that a crime occurred.

Marsh objected to both interviewers' testimony on the grounds that it was expert testimony. The trial court overruled the objections, finding that the interviewers provided no expert opinions and that their testimony provided `background information as to [interviewing] techniques.’

Marsh v. People, supra.

The opinion then explains that a

computer forensic expert also testified at trial about Marsh's possession of child pornography. The expert testified that he examined Marsh's computer and recovered a series of pornographic images depicting children. The series of images included one image from the `My Pictures’ folder, seven deleted files, thirty-eight thumbnail database files (i.e., files that contain smaller versions of image files that have been previously opened on the computer), and seventeen internet cache files. The image from the My Pictures folder and the seven deleted images were attributable to the relevant time period between January 1, 2007, and May 16, 2007. The thirty-eight original files that corresponded to the images depicted in the thumbnail database files had been deleted from the hard drive prior to the examination of Marsh's computer, and the expert could not determine when the original files had been opened or deleted.

As for the seventeen internet cache files, evidence at trial established that an internet cache is a temporary file that contains images automatically stored on the computer's hard drive after a computer user views them on a website. If the website is accessed at a later time, the computer recalls the images from the cache rather than downloading them from the internet again, which allows the website to load more quickly. The expert testified that computer users typically do not know that images they view on websites are being saved to their computer's hard drive. Three of the cache images were identical to three of the deleted images.

Marsh v. People, supra.

The court then explains that the jury found Marsh

guilty of three counts of sexual assault on a child, three counts of sexual assault on a child—position of trust, and two counts of sexual assault on a child—pattern of abuse. §§ 18-3-405(1), (2)(d); 18–3–405.3(1), (2)(a), Colorado Revised Statutes (2016). The jury also found Marsh guilty of sexual exploitation of children (possessing material) (possessing more than twenty sexually exploitative items), and inducement of child prostitution. §§ 18–6–403(3)(b.5), (5)(b)(II); 18–7–405.5, Colorado Revised Statutes (2016).

Marsh v. People, supra.

The Supreme Court then took up the arguments Marsh made in his appeal to that court, noting, initially, that Marsh

raised several issues in the court of appeals; we address the two arguments that pertain to the issues on which we granted certiorari. First, he argued that the evidence was not sufficient to establish that he knowingly possessed more than twenty images depicting child pornography. Second, he argued that the trial court erred in permitting the forensic interviewers to offer expert testimony in the guise of lay opinion. The court of appeals affirmed his convictions in a unanimous, published opinion. Marsh, 2011 WL 6425492, at *1.

Marsh v. People, supra.

The Supreme Court then explained what the Court of Appeals did in the opinion cited at the end of the paragraph above. Marsh v. People, supra. It began with Marsh’s argument that the evidence was not sufficient to prove beyond a reasonable doubt that he knowingly possessed more than twenty images of child pornography. Marsh v. People, supra. The court went on to explain that

[a]s to the first issue, the court of appeals held that sufficient evidence supported Marsh's conviction for knowing possession of child pornography. Id. at *3. The court held that `for purposes of section 18–6–403, “possession” means the non-exclusive control or dominion over sexually exploitative material, and the statute requires that any such control or dominion be carried out knowingly.’ Id. at *4. Reasoning that `[w]hen [an] image is viewed, the user possesses and controls it in the sense that he or she has the ability to enlarge, save, copy, forward, or print the image,’ the court of appeals held that internet cache images `can constitute evidence of a prior act of possession.’ Id. at *5. Because Marsh did not contest that he possessed the seven deleted images or the single image in the My Pictures file, the court of appeals held that the combination of those eight images and the seventeen internet cache images was sufficient to prove possession of more than twenty images. Id. at *6. 

The court then concluded that those images—combined with the facts that (1) Marsh owned the computer and exercised control over the computer and its environs, (2) Marsh's granddaughters testified that he viewed sexually exploitative material on his computer, (3) the forensic computer expert also recovered the sexually exploitative thumbnail database images from Marsh's computer, and (4) three of the cache images were identical to three deleted images—were sufficient for the jury to infer that Marsh knowingly viewed and possessed over twenty sexually exploitative images. Id.

Marsh v. People, supra (emphasis in the original).

The opinion then explains that as to the second issue,

the court of appeals addressed the forensic interviewers' testimony about their qualifications and protocols. Relying on People v. Tillery, 231 P.3d 36 (Colo. App. 2009), aff'd on other grounds sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011), it held that the trial court did not abuse its discretion in admitting the forensic interviewers' testimony because it was proper lay witness testimony within the scope of Colorado Rule of Evidence (“CRE”) 701. Marsh, 2011 WL 6425492, at *18. The court of appeals noted that the interviewers testified about their qualifications, experience, training, protocols, and techniques, and `provided some basic information about interviewing children concerning possible sexual abuse.’ Id. The court held that this fell within the scope of lay opinion testimony. Id.

Marsh v. People, supra.

The Supreme Court also noted that

Marsh petitioned for review on these two issues, and we granted certiorari. We now affirm the court of appeals.

Marsh v. People, supra.

The Supreme Court then began its analysis of the first issue, explaining that

[f]irst, we consider whether the evidence in this case was sufficient to support Marsh's conviction for possession of more than twenty sexually exploitative images under section 18–6–403(5)(b)(II). In essence, Marsh asserts that he did not possess the images that appeared on his screen during online viewing because he did not download or save them. Additionally, he contends that because he did not know that the images in the cache were on his hard drive, he could not have knowingly possessed them. We therefore examine the meaning of the term `possession’ as used in the child pornography statute and consider whether internet cache images can constitute evidence that a defendant knowingly possessed those images. Second, we consider Marsh's complaint that the forensic interviewers were allowed to testify as experts without being properly endorsed. To do so, we address the preliminary question of whether admission of this testimony harmed Marsh.

Marsh v. People, supra.

The court went on to explain that,

[f]irst, we hold that when a computer user seeks out and views child pornography on the internet, he possesses the images he views. Since the evidence presented at trial established that Marsh's cache contained images that a computer user had previously viewed on the web browser, we conclude that the internet cache images qualified as relevant evidence that Marsh had previously viewed, and thus possessed, those images. Therefore, when considered as a whole and in the light most favorable to the People, the evidence was sufficient to support the jury's conclusion that Marsh possessed more than twenty images depicting child pornography. Second, we hold that even if the trial court improperly admitted the forensic interviewers' testimony as lay opinion, the error was harmless.

Marsh v. People, supra.

The Supreme Court then took up the issue of “knowing possession of Internet cache images”.

Marsh v. People, supra.  It noted that Marsh argued that the evidence was insufficient to

support his conviction for possession of more than twenty images depicting child pornography under section 18–6–403(5)(b)(II) because the People could prove neither that he was aware of the images in his computer's internet cache nor that he had exercised dominion or control over those images. Therefore, he argues, the People's evidence was insufficient to prove that he knowingly possessed more than twenty sexually exploitative images. Essentially, Marsh interprets the statute's `possession or control’ language to encompass acts like downloading images to a hard drive but not to merely viewing them online.

We have not yet addressed how Colorado's child pornography statute applies to images viewed only online. Thus, we first analyze the term `possession’ as it is used in section 18–6–403. We then examine the evidentiary significance of the images in the internet cache. Finally, we consider whether the evidence in this case was sufficient for the jury to find Marsh guilty of knowingly possessing more than twenty sexually exploitative images.

Marsh v. People, supra.

The Supreme Court went on to explain that

Marsh was convicted of sexual exploitation of a child by knowingly possessing more than twenty sexually exploitative images under sections 18–6–403(3)(b.5) and 18–6–403(5)(b)(II). Section 18–6–403(3)(b.5) provides that `[a] person commits sexual exploitation of a child if ... he or she knowingly ... [p]ossesses or controls any sexually exploitative material for any purpose.’ While possession of sexually exploitative material is normally a class 5 felony, section 18–6–403(5)(b)(II) increases it to a class 4 felony when the offender possesses `more than twenty different items qualifying as sexually exploitative material.’

Here, we must decide whether viewing child pornography without any evidence of affirmative action to save or download an image and without knowledge of the computer's automatic caching function constitutes possessing or controlling that image within the meaning of section 18–6–403(3). Because the statute criminalizes possession or control of child pornography, we assume that the General Assembly intended those words to have two distinct meanings. See Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1010 (Colo. 2008). But because the common meaning of possession often includes the term `control,’ and because possession has a number of definitions, the statute's plain language is unclear.

The General Assembly did not define the term `possession’ in the child pornography statute, nor has this court ever determined its meaning as used in this statute. To the extent we have considered the meaning of `possession’ elsewhere, we have done so in the context of tangible items. See, e.g., Patton v. People, 35 P.3d 124, 131 (Colo. 2001) (concluding that possession of an illegal drug requires immediate and knowing control); People v. Garcia, 197 Colo. 550, 595 P.2d 228, 231 (1979) (concluding that possession of a firearm means actual or physical control). The concept of possession in the context of the internet, on the other hand, is unsettled because of evolving technology and the reality that computer users are often unaware of a computer's various unseen functions. Cf. ClearCorrect Operating, LLC v. Int'l Trade Comm'n, 819 F.3d 1334, 1339 (Fed. Cir. 2016) (`[S]tatutory law should be adapted to its legislative purpose, in the context of advances in technology.’). As relevant here, evidence at Marsh's trial established that after a computer user views images online the cache function automatically stores those images on the computer's hard drive in order to enhance the computer's performance in the event that the user revisits the same page. This function is enabled without any action by the computer user.

Marsh v. People, supra.

The opinion goes on to point out that

analyzing the plain language of section 18–6–403(3) does not resolve the meaning of possession in the context of online child pornography, we look elsewhere to determine its definition. Relevant factors include the problem that the legislation is meant to address, the consequences of a particular construction of the legislation, and the legislative declaration or purpose. See § 2–4–203(1), Colorado Revised Statutes (2016); Rowe v. People, 856 P.2d 486, 489 (Colorado Supreme Court 1993). Here, the General Assembly's legislative declaration is telling. In it, the General Assembly asserts that to protect children from sexual exploitation, `it is necessary to prohibit the production of material which involves or is derived from such exploitation and to exclude all such material from the channels of trade and commerce.’ § 18–6–403(1). It further provides that both possessing and viewing such material is harmful to children, declaring:

`that the mere possession or control of any sexually exploitative material results in continuing victimization of our children by the fact that such material is a permanent record of an act ... of sexual abuse of a child; that each time such material is shown or viewed, the child is harmed; ... that laws banning the production and distribution of such material are insufficient to halt this abuse; that in order to stop the sexual exploitation and abuse of our children, it is necessary for the state to ban the possession of any sexually exploitative materials.

§ 18–6–403(1.5) (emphasis added). This declaration emphasizes that the harm in possessing child pornography recurs every time someone views it. As such, we conclude that the statute criminalizes knowingly viewing online child pornography.

This approach finds support in other jurisdictions. For example, in United States v. Ramos, 685 F.3d 120, 131–32 (2d Cir. 2012), the Second Circuit Court of Appeals explained that `[e]ven without saving them,’ a computer user possesses illegal pornographic images because online viewing provides for control over the images:

`[H]e could view them on the screen, he could leave them on his screen for as long as he kept his computer on, he could copy them to an email and send them to someone, he could print them, and he could . . . move the images from a cached file to other files and then view or manipulate them off-line.’

See also New v. State, 327 Ga.App. 87, 755 S.E.2d 568, 575 (2014) (holding that a computer user looking at child pornography on a website `gains actual control over the images, just as a person who intentionally browses child pornography in a print magazine ‘knowingly possesses' those images, even if he later puts the magazine down’). In Ramos, there was evidence that the defendant had visited child pornography websites, viewed images of child pornography, and attempted to delete his browsing history. 685 F.3d at 125. The court held that the evidence was sufficient to prove that the defendant was guilty of knowingly receiving and possessing child pornography. Id. at 134.

Marsh v. People, supra.

The court then began the process of articulating its holding – its decision – on this issue:

Marsh asks us instead to limit the definition of possession to include only those instances where the defendant has saved images onto a computer or tangible drive. Cf. United States v. Romm, 455 F.3d 990, 1000 (9th Cir.2006) (holding that the defendant must know that internet cache images are stored on a hard drive in his possession to possess those images); United States v. Tucker, 305 F.3d 1193, 1203–04 (10th Cir. 2002) (holding that the defendant possessed images in an internet cache because he knew that his internet browser automatically stored the images that he viewed online). While proponents of this approach acknowledge that viewing child pornography online without downloading images exploits children, they conclude that a statutory prohibition against “possession” cannot encompass mere online viewing. See Commonwealth v. Diodoro, 932 A.2d 172, 176 (Pa. Super. 2007) (Klein, J., dissenting) (arguing that viewing is not possessing, and stating that `[i]f the legislature fails to keep up with modern technology, it is not our responsibility to correct its oversight’).

We reject this limitation. To hold that viewing child pornography online does not constitute possession would ignore today's technological realities and the purpose of the statute. When section 18–6–403(3)(b.5) was added to Colorado's child pornography statute in 1988, access to the internet was not yet ubiquitous. Prior to widespread use of the internet, child pornography generally came in the form of tangible objects such as books, periodicals, or videotapes. As a general rule, a person who viewed child pornography could not do so without physically possessing it.

Marsh v. People, supra.

The court then wound up its analysis of this issue by noting that,

[t]oday, computer users can access child pornography simply by navigating to a website. Seeking out and accessing the images online harms children, even where the seeker does not manipulate or save the image, because navigation to and within child pornography websites promotes the exploitation of children. As the court of appeals reasoned, a computer user viewing an image online `has the ability to enlarge, save, copy, forward, or print the image. The user can also show the image on the screen to others.’ Marsh, 2011 WL 6425492, at *5. Thus, we conclude that for purposes of section 18–6–403(3), knowingly seeking out and viewing child pornography on the internet constitutes knowingly possessing or controlling it under the statute. Having made this determination, we now consider whether internet cache images can be evidence of knowing possession.

Marsh v. People, supra.

It also noted that

Marsh argues that the internet cache images do not constitute evidence that he knowingly possessed the images. Because we hold that viewing images online amounts to possession, and because a cache image is automatically downloaded when an image is viewed online, we reject Marsh's argument and conclude that cache images can constitute evidence that the defendant knowingly possessed the images when he viewed them online. It is for the fact-finder to determine the weight to give cache images in light of all the other evidence in any given case.

Marsh v. People, supra.

And, finally, it pointed out that

images contained in the internet cache may constitute evidence of possession, and therefore, the fact-finder may consider those images in reaching its ultimate conclusion. A number of other jurisdictions have adopted this approach. See, e.g., United States v. Kain, 589 F.3d 945, 948–50 (8th Cir. 2009) (holding that the presence of child pornography in temporary internet files is evidence of prior possession). . . . To determine if a defendant accessed the images stored in an internet cache and did so knowingly, the fact-finder must consider the cache images in light of all other evidence.

Marsh v. People, supra.

After some other comments, the Supreme Court articulated its holding in this case:

[f]irst, we hold that when a computer user seeks out and views child pornography on the internet, he possesses the images he views. Since the evidence presented at trial established that Marsh's cache contained images that a computer user had previously viewed on the web browser, we conclude that the internet cache images qualified as relevant evidence that Marsh had previously viewed, and thus possessed, those images. Therefore, when considered as a whole and in the light most favorable to the People, the evidence was sufficient to support the jury's conclusion that Marsh possessed more than twenty images depicting child pornography. Second, we hold that even if the trial court improperly admitted the forensic interviewers' testimony as lay opinion, the error was harmless. Therefore, we affirm the court of appeals' judgment in its entirety.

Marsh v. People, supra.