Possession Of Child Pornography (Sexual Exploitation 18-6-403) In Colorado – Is Mere Viewing Enough?

By H. Michael Steinberg Colorado Sex Crimes Criminal Defense Lawyer – Attorney

Possession Of Child Pornography (Sexual Exploitation 18-6-403) In Colorado – Is Mere Viewing Enough? In Marsh v. People – a 2017 decision, the Colorado Supreme Court held that “possession” under Colorado’s child pornography statute now includes merely viewing child pornography on the Internet and does NOT require downloading or otherwise saving the images.

In People v. Marsh the State of Colorado presented evidence at trial that established that Defendant’s computer “cache” contained images that were child pornography.

An internet cache is a temporary file that contains images that are automatically stored on the computer’s hard drive after a computer user views them on a website. A cache allows a computer to quickly recalls images from the cache rather than having to download them again from the internet again.

The issue in ALL cases where a person is charged with Sexual Exploitation of A Child 18-6-403 is this: – can the prosecution establish the “possession” of images of child pornography AND, if so, how many images were possessed and how were they possessed?

The number of images of child pornography that are admitted against a Defendant is important.

Under Colorado law, the more images of child pornography located on an individual’s computer and viewed by the Defendant the more enhanced the possible penalty.

The mere possession of even 1 image of sexually exploitative material is a class 5 felony.

§ 18-6-403(5)(b), C.R.S. BUT the possession of more than twenty items increases the level of felony to a class 4 felony.

The importance of the March case is that under certain conditions 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 – 18-6-403, C.R.S.

The Marsh Court found many things – most important among them was that when a Defendant seeks out and views child pornography on the internet, he possesses the images he views.

“Possession” of Child Pornography – Sexual Exploitation Of A Child – Occurs When Computer User Views Files on Internet – Section 18-6-403, C.R.S.

Sexual Exploitation Of A Child – 18-6-403(3)(b.5) provides that:

“[a] person commits sexual exploitation of a child if . . rtwsref. he or she knowingly . . . [p]ossesses or controls any sexually exploitative material for any purpose.”

Is Merely Finding Child Pornography In An Internet “Cache” Enough To Establish Possession?

The Marsh case must not be read incorrectly. Child pornography images that have been automatically stored by a computer in its internet cache are NOT sufficient evidence of a crime without more:

“..without additional evidence of a Defendant’s awareness of the cache or evidence of a defendant’s affirmative conduct such as downloading or saving such images, to establish “knowing possession” under section 18-6-403, C.R.S.”

The evidence produced during the trial in Marsh proved that the “cache” contained images that Marsh had previously viewed on the web browser and were not just downloaded by mistake. As in almost all of these cases, the District Attorney called a computer forensic expert who testified that several of the files that had been deleted by Marsh matched several of the files in the cache.

Marsh did not contest that he “possessed” at least seven of the deleted images. The Marsh Court then held that the “combination” of the deleted images and seventeen internet cache images was “sufficient to prove possession of more than twenty images” – thus enhancing the crime into the Class 4 Felony level.

Some Important Rules To Be Taken From This Case

A Defendant “possesses” the images that appear on a Defendant’s computer screen during online viewing whether or not they downloaded or saved. Furthermore, the argument that images in the cache of a hard drive can be “knowingly possessed” under certain circumstances.

Viewing child pornography even without any evidence of an “affirmative action to save or download an image” may now fall within the definition of possession.

While the term “possession” in the child pornography statute was not specifically defined to include cached images and it is still certainly possible that computer users can be unaware of a computer’s various unseen functions, IF the evidence at trial establishes that the computer user viewed the images online under §18-6-403(1.5) the harm sought to be punished by the law now includes the very act of viewing it online.

The jury as the “fact-finder,” can make the finding that the cache images are sufficient evidence of possession of child pornography in light of other evidence in a case. However, equally important is the Marsh Court’s acknowledgment that the mere presence of photos in the internet cache alone does not automatically establish knowing possession.

Along those same “defense” based lines of thought – it is important to note that the defense still exists that as a result of advances in internet technology – cyber-attacks like viruses and hacking “can conceivably result in a computer displaying sexually exploitative images without the knowledge of that computer’s owner, even where the owner has exclusive physical access to the computer.”

Internet cache images alone are, without more, insufficient evidence of the crime without evidence of  proof that the accused even knew of the existence of the internet cache images.

“Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images.”

Possession Of Child Pornography (Sexual Exploitation 18-6-403) In Colorado – Is Mere Viewing Enough?

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