January 23, 2012

Colorado Court of Appeals - Criminal Law Decision 12-22-11

People v. Marsh            Knowing Possession of Child Pornography
Facts: A jury convicted Mr. Marsh of a slew of charges relating to sexual assault on a child and possession of child pornography. A prosecution expert opined that the ‘AOL cache’ contained 17 images of child porn.  However, the defense claimed that only a person with specialized knowledge could “know” what images the cache contained. If the Court of Appeals found the evidence insufficient for the 17 images, then the class 4-felony possession of child pornography would be vacated.
Issue: Whether the cache of a computer provides sufficient evidence that the person knowingly possessed child porn?
Held: Yes
Reasoning: The Court found the cache issue was one of first impression in Colorado. However, the Court simply went along with the prosecution’s expert. The prosecution expert opined that if the images remained in the cache of the computer, then someone previously opened and viewed those images on the computer. Further, the Court cited the prosecution expert’s testimony that 3 of the images in the cache matched the images on the hard drive that were previously deleted. Thus, Court of Appeals found the jury permissibly inferred that the someone who possessed the child pornography was Mr. Marsh. Lastly, the Court addressed a multitude of other issues, but found no error, cumulative or otherwise. 
Link to People v. Marsh here

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