Marsh v. People
2017 CO 10
| Colo. | 2017Background
- Anthony Marsh was convicted by a jury of sexually assaulting three granddaughters and of possessing more than twenty images of child pornography found on his home computer.
- Forensic computer examination recovered: one image in "My Pictures," seven deleted images, thirty-eight thumbnail database files, and seventeen internet cache files (three cache images matched three deleted images).
- Granddaughters testified that multiple people used the computer, that Marsh viewed pornography on it, and that child‑pornography links were in the browser "Favorites."
- Marsh appealed, arguing (1) that internet cache files cannot prove "knowing possession" under Colo. Rev. Stat. § 18‑6‑403 absent evidence he saved or knew about them, and (2) that two forensic interviewers were improperly allowed to testify as lay opinion.
- The Colorado Court of Appeals affirmed; the Colorado Supreme Court granted certiorari on the cache/possession and forensic‑interviewer testimony issues.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Marsh) | Held |
|---|---|---|---|
| Whether viewing online images and the presence of internet cache files can establish "knowing possession" under § 18‑6‑403 | Viewing and accessing images online gives the user control (enlarge, save, print, forward), and cache files are automatic records of prior viewing that may be considered with other evidence to prove knowing possession | Mere online viewing or automatic caching without downloading or knowledge of cache does not constitute possession; prosecution must show affirmative acts like saving/downloading or awareness of cache | Court held that knowingly seeking out and viewing child pornography online constitutes possession; internet cache files can be evidence of prior viewing and thus of possession when considered with other evidence |
| Whether testimony by forensic interviewers about their training/protocols was improperly admitted as lay opinion (CRE 701) | Admitting background information on interview techniques is allowable as lay testimony and aids jury understanding; even if improper, the testimony was harmless given other evidence | Testimony crossed into expert opinion without proper expert designation and could have improperly bolstered child witnesses | Court assumed possible error but held any error harmless beyond a reasonable doubt because interviewers offered only general background, victims testified and were cross‑examined, other corroborating evidence existed, and prosecutor did not rely on interviewer testimony in closing |
Key Cases Cited
- People v. Simon, 266 P.3d 1099 (Colo. 2011) (discusses admissibility of forensic interviewer testimony and standards for lay opinion)
- United States v. Ramos, 685 F.3d 120 (2d Cir. 2012) (online viewing can give a user practical control over images; cache files reflect prior viewing)
- United States v. Kuchinski, 469 F.3d 853 (9th Cir. 2006) (cache files alone may be insufficient where defendant lacked knowledge and control)
- United States v. Romm, 455 F.3d 990 (9th Cir. 2006) (discusses defendant's knowledge of caching in possession analysis)
- United States v. Tucker, 305 F.3d 1193 (10th Cir. 2002) (treats temporary internet files as evidence of possession where awareness and control are shown)
- United States v. Winkler, 639 F.3d 692 (5th Cir. 2011) (presence of images in cache is not automatically dispositive; consider other evidence)