People v. Marsh

• Court: Colorado Court of Appeals
• Writing for the Court: Opinion by Judge MILLER.
• Citation: People v. Marsh, 396 P.3d 1 (Colo. App. 2011)
• Decision Date: 22 December 2011
• Docket Number: 08CA1884
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Anthony Edwin MARSH, Defendant–Appellant.

396 P.3d 1

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Anthony Edwin MARSH, Defendant–Appellant.

No. 08CA1884.

Colorado Court of Appeals, Div. I.

Dec. 22, 2011.

John W. Suthers, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Ari Krichiver, Deputy State Public Defender, Anne T. Amicarella, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge MILLER.

Defendant, Anthony Edwin Marsh, appeals his judgment of conviction entered on a jury verdict finding him guilty of nine counts: three counts of sexual assault on a child by one in a position of trust, two counts of sexual assault on a child, two counts of sexual assault on a child as part of a pattern of abuse, one count of sexual exploitation of a child, and one count of inducement of child prostitution. We affirm.

In affirming, we address two issues of first impression in Colorado:

• First, we consider whether images contained in an "Internet cache," a storage mechanism whereby a computer automatically stores information displayed on a web page, are sufficient to establish that a defendant knowingly possessed sexually exploitative material under section 18–6–403, C.R.S.2011. We conclude that such evidence, when considered together with evidence that the defendant intentionally sought the sexually exploitative material, can be sufficient to show that the defendant possessed the images at the time he or she visited the web page.

• Second, we consider whether a parent has the absolute authority to waive a minor child's psychologist-patient privilege. We conclude the nature of a conflict between the interests of a parent and of his or her child may preclude the parent from waiving the child's psychologist-patient privilege.

We also address the numerous other issues raised by defendant.

I. Background

Defendant has three daughters, R.K., B.L., and C.O., and several grandchildren. The charges in this case stem from incidents involving three of defendant's granddaughters, C.S., E.M., and S.O. C.S. is the daughter of R.K., E.M. is the daughter of B.L., and S.O. is the daughter of C.O. The granddaughters' ages ranged from nine to eleven years old at the time of trial.

Each of these granddaughters testified at trial that defendant took her to his basement, where she sat on his lap in front of his computer. C.S. and E.M. testified that while they sat on his lap, defendant viewed pornographic material on his computer and rubbed their genitalia over their clothes. C.S. also testified that defendant performed oral sex on her, asked her to touch his penis in exchange for receiving a banana, and required C.S. and her younger brother to simulate sexual intercourse in exchange for a treat. S.O. testified that defendant similarly touched her crotch while she sat on his lap in front of the computer. Although she denied at trial remembering what was on the computer while defendant touched her, evidence was admitted that she previously told investigators that defendant watched pornographic movies on these occasions.

A.S., E.M.'s older sister, testified that she too had been sexually assaulted by defendant in his basement and that she had been with defendant when he looked at pictures of naked children on his computer. The allegations made by A.S. resulted in a previous criminal case against defendant that was dismissed.

In addition to the two issues set forth above, defendant contends that the trial court committed reversible errors by (1) denying defendant's request for a continuance; (2) denying three challenges for cause of prospective jurors; (3) ruling that if defendant called another two of his granddaughters to testify that they had not been sexually assaulted by him, the prosecution would be permitted to offer evidence of his prior convictions, including one for sexual assault; (4) impermissibly limiting defendant's cross-examinations of R.K. and C.O.; (5) allowing two prosecution witnesses to provide expert testimony under the guise of lay opinion; and (6) ruling that taking judicial notice of the dismissal of the criminal charges regarding A.S. would open the door to defendant's previous convictions being presented to the jury. He also contends that the cumulative effect of the trial court's errors, other than insufficiency of evidence, warrants reversal. We reject each contention.

II. Sufficiency of the Evidence

Defendant contends that there was insufficient evidence to support his conviction for sexual exploitation of a child as a class 4 felony. We disagree.

A. The Statute

Section 18–6–403¹ makes it unlawful to knowingly possess or control any sexually exploitative material, which it defines² to include any electronic or digitally reproduced material that depicts a child participating in, or being used for, explicit sexual conduct. The offense is a class 6 felony but is increased to a class 4 felony if the defendant possesses more than twenty items of sexually exploitative material. § 18–6–403(5)(b)(II), C.R.S.2011. Defendant does not contend that the evidence was insufficient to convict him of a class 6 felony. Rather, he contests the sufficiency of the evidence to establish that he knowingly possessed more than twenty different items of sexually exploitative material during the relevant time frame set out in the complaint, January 1, 2007 through May 16, 2007.

B. Facts

The facts regarding this issue are undisputed. Pursuant to a search warrant, police seized defendant's computer on April 26, 2007. Forensic analysis of the computer revealed numerous sexually exploitative images. The prosecution presented a compilation of seven "lost" files, thirty-eight "recent file thumbs," one image from the computer's "My Pictures" folder, and seventeen images from the "AOL cache," for a total of sixty-three images.

The prosecution's computer expert testified that the seven lost files were created on April 24, 2007, but had been deleted from the computer before it was seized two days later. The thirty-eight recent file thumbs were smaller images depicting files that had been opened on the computer at some time but had been deleted from the hard drive. The computer expert could not specify when the files had been opened or when they had been deleted. The My Pictures image remained stored on the hard drive in the My Pictures folder when police seized the computer.

The expert also testified that the AOL cache contained images downloaded from web pages visited using defendant's computer. He explained that an Internet cache, such as the AOL cache, is a storage mechanism by which the computer automatically stores information displayed on a web page. When a user revisits a web page with information saved in the Internet cache, the web page will load the locally saved information instead of re-downloading the information from the Internet. This process allows web pages to load more quickly. The expert was unable to identify the exact date defendant's computer had saved the images in the AOL cache, but he did testify that the earliest date on which these seventeen images could have been saved to the AOL cache was March 7, 2007, which is within the relevant time frame.

The jury found defendant guilty of knowingly possessing more than twenty different items of sexually exploitative material within the relevant time frame. Therefore, defendant was convicted of a class 4 felony.

Defendant does not contest the sufficiency of the evidence regarding the seven lost files or the My Documents file. Therefore, if the evidence is sufficient regarding the seventeen AOL cache images, then the number of sexually exploitative items knowingly possessed by defendant during the relevant time frame exceeds twenty, supporting the class 4 felony conviction. We conclude that the evidence is sufficient regarding the seventeen AOL cache images and therefore do not consider the recent thumb files.

C. Analysis

When asked to review the sufficiency of the evidence supporting a guilty verdict, we "determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of the accused's guilt beyond a reasonable doubt." People v. Sprouse, 983 P.2d 771, 777 (Colo.1999). In making this determination concerning the AOL cache images, we consider three issues: (1) the meaning of the term "possession" as used in section 18–6–403 ; (2) whether Internet cache images can be used as evidence of possession; and (3) if so, whether defendant knowingly possessed the AOL cache images.

1. The Meaning of "Possession" as Used in the Statute

Our interpretation of the term "possession" is guided by several principles of statutory construction. "The primary goal in statutory interpretation is to ascertain and effectuate the General Assembly's intent, and we begin this task by examining the plain meaning of the statutory language." Platt v. People, 201 P.3d 545, 551 (Colo.2009). "We read words and phrases in context and construe them literally according to common usage unless they have acquired a technical meaning by legislative definition. Where the language is clear and unambiguous, we do not resort to other rules of statutory construction." Klinger v. Adams County Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo.2006) (citation omitted). When the language is ambiguous, we may consider other aids to statutory construction, including the object sought to be attained by the General Assembly. Bostelman v. People, 162 P.3d 686, 690 (Colo.2007) (citing Klinger, 130 P.3d at 1031 ).

"Possession" is not defined in section 18–6–403. Cf. Patton v. People, 35 P.3d 124, 131 (Colo.2001) (finding that "possession" of a controlled substance is not statutorily defined); People v. Garcia, 197 Colo. 550, 554, 595 P.2d 228, 231 (1979) (" ‘Possession’ is not defined in the [weapons] statute, nor is it a term of art in the law."). Therefore...