Court of Appeals Dec. 22, 2011

No. 08CA1884. People v. Marsh.Sexual Assault on a Child—Sexual Exploitation of a Child—Evidence—Internet Cache—Possession—Psychologist–Patient Privilege—Waiver—Continuance—Challenge for Cause—C.R.E. 404(a)—Relevance—Lay Opinion Testimony.

Defendant appealed  jury verdicts 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.  The judgment was affirmed.

The charges in this case arose from incidents involving three of defendant’s granddaughters, C.S., E.M., and S.O., whose ages ranged from 9 to 11 years 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 and viewed pornographic material on his computer, and that defendant sexually assaulted each of them.

Defendant challenged the sufficiency of evidence used to convict him of  sexual exploitation of a child.  The charge was a class 4 felony, and required proof that a defendant possessed more than twenty items of sexually exploitative material.  The court ruled on possession of computer images and internet 'caching' of such images, and found these amounted to 'possession' under the statute.  The presence of digital images in an Internet cache, such as the “AOL cache” in this case,  was found to be evidence of a previous act of possession.    The court found that cache files, generated when someone views internet content, was sufficient to establish "possession" even though defendant did not actively download or save such images.    Defendant argued that he was unaware of the cache files, did not have the technical knowledge to even access them, and was unaware they were on his computer.  The court nevertheless found that the mere "visit or viewing of the web pages constitutes possession of the images displayed on the web pages", and found that the cache files proved he accessed those pages, and that possession is established if one displays an internet image on a viewing screen.

Defendant contended that the trial court erred by refusing to allow him to question A.S. about a session she had with a psychologist and denying his request to enter the psychologist’s report of this session into evidence. A.S.’s session with the psychologist was protected by the psychologist–patient privilege. As a general matter, parents can waive privileges held by their minor children. However, 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. Here, based on the nature of the proceedings at issue, A.S.’s mother (defendant’s daughter) lacked authority to waive A.S.’s privilege.  The court of appeals additionally stated that a previous psychological report, prepared from a prior case filed against the father by one of the same victims, would not be admissible as a document "prepared in anticipation of litigation" and therefore not privileged, despite disclosure to both the district attorney and defendant in the previous case.  This previous report apparently led to dismissal of previous charges against the defendant by a victim in this case, and amounted to exculpatory evidence.  The court of appeals ruled that the case of B.B. v. People, 785 P.2d 132 (Colo. 1990) did not bind the court to allow the report; in that case, a psychologist was appointed to assist in the defense of a mother facing termination of parental rights.  The court in that case allowed statements to the psychologist as they were prepared for the litigation.  

Defendant contended that the trial court erred by refusing to grant his requested continuance. However, defendant did not show that a continuance would prevent any prejudice, and the court found that a continuance would be highly prejudicial to the prosecution. Thus, the trial court’s decision was not arbitrary, unreasonable, or unfair.

Defendant contended that the trial court erred by denying his challenges for cause to jurors M, F, and R. Juror M stated in his juror questionnaire he had an ex-girlfriend who had been sexually assaulted by her stepfather; juror F disclosed to the court that two daughters of a friend were victims of child abuse; and juror R indicated on her juror questionnaire that she had read about the case in the local newspaper. The Court of Appeals found, after inquiring further, that all jurors would abide by the law, remain fair and impartial to both sides, and follow the court’s instructions. Therefore, the trial court acted within its discretion by relying on its own credibility determinations and did not err in denying defendant’s challenges for cause of jurors M, F, and R.

At trial, defendant sought to call two of his other granddaughters to testify that he had not sexually assaulted them. Defendant argued that the trial court erred by ruling that this proffered testimony would be admitted only as C.R.E. 404(a) character evidence and would open the door to the prosecution’s use of defendant’s prior convictions. The trial court did not abuse its discretion in finding that the proffered testimony of the other granddaughters was not relevant to whether defendant assaulted the three victims.

Defendant also challenged the trial court’s limiting of his cross-examination of C.S.’s mother, R.K., and S.O.’s mother, C.O. The trial court did not abuse its discretion in limiting defendant’s cross-examination of R.K. and C.O. as to irrelevant evidence.

Defendant also argued that the trial court erred by allowing two forensic interviewers to offer testimony that constituted expert testimony and improperly vouched for the granddaughters they interviewed. A witness may be qualified as an expert in the area of interviewing techniques, and may testify as to her qualifications, training, and techniques for interviewing children. Here, this was the testimony offered by the forensic interviewers, and neither interviewer vouched for the credibility of the children they interviewed. Therefore, the court did not err by allowing this testimony.


Reprinted from Colorado Bar summaries, with additions and amendment.