Marsh v. People

• Decision Date: 06 February 2017
• Docket Number: Supreme Court Case No. 12SC102
• Citation: 389 P.3d 100
• Parties: Anthony Edwin MARSH, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

389 P.3d 100

Anthony Edwin MARSH, Petitioner,

v.The PEOPLE of the State of Colorado, Respondent.

Supreme Court Case No. 12SC102

Supreme Court of Colorado.

February 6, 2017

As Modified on Denial of Rehearing February 27, 2017

Attorneys for Petitioner: Douglas K. Wilson, Public Defender, Anne T. Amicarella, Deputy Public Defender, Denver, Colorado

Attorneys for Respondent: Cynthia H. Coffman, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado

En Banc

JUSTICE BOATRIGHT announced the judgment of the Court.

¶1 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 (Colo. App. 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, C.R.S. (2016). We also address the admissibility of the testimony of two forensic interviewers.¹

¶2 We first 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.

I. Facts and Procedural History

¶3 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 2008.² 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.

¶4 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.

¶5 At trial, the 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.

¶6 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.

¶7 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."

¶8 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,³ 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.

¶9 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.

¶10 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), C.R.S. (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, C.R.S. (2016).

¶11 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.

¶12 As 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 *6.⁴ 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.

¶13 Second, 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...