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.
No comments:
Post a Comment