Child Pornography—Criminal Trials—Evidence.

In this case, the Supreme Court considered the meaning of “possession” in Colorado’s child pornography statute and held that when a computer user seeks out and views child pornography on the Internet, he possesses the images he views. Accordingly, the Court concluded that because the evidence presented at trial established that petitioner’s cache contained images that a computer user had previously viewed on the web browser, the Internet cache images qualified as relevant evidence that the petitioner had previously viewed, and thus possessed, those images. Therefore, the Court affirmed the Court of Appeals’ judgment in its entirety. 

Criminal Law—Expert Testimony.

This case, like the recently announced case Venalonzo v. People, 2017 CO 9, __P.3d__, required the Supreme Court to address the difference between lay and expert testimony. Specifically, it required the Court to resolve one issue—whether an ordinary person would be able to differentiate reliably between blood castoff (i.e., blood droplets from waving a hand around) and blood transfer (i.e., blood transferred by physical contact). Applying the test announced in Venalonzo, the Court held that an ordinary person would not be able to testify reliably about the difference between blood cast-off and blood transfer. Therefore, the Court affirmed the Court of Appeals’ holding that the trial court abused its discretion by not qualifying the police detective’s blood testimony as expert testimony.

Criminal Law—Identity Theft.

This case came to the Supreme Court on certiorari review of the Court of Appeals’ unpublished opinion, People v. Molina, No. 11CA1650 (Colo.App. June 19, 2014). A jury convicted Molina of two counts of identity theft and three counts of forgery. The Court granted certiorari to resolve three issues: (1) whether the People must show that Molina knew she stole another person’s information; (2) whether there was sufficient evidence that Molina knew she stole a real person’s information; and (3) whether an apartment lease and employment qualify under the identity theft statute as “thing[s] of value.” The Court answered all three questions in the affirmative. Therefore, the Court affirmed in part and reversed in part the Court of Appeals’ judgment and remanded the case for proceedings consistent with this opinion.

Fourth Amendment—Probable Cause—Totality of the Circumstances—Canine Alerts.

Several factors led the trooper, who had stopped defendant’s vehicle for a traffic infraction, to suspect that there might be evidence of illegal activity in the vehicle’s trunk, including defendant’s unusual nervousness, an inconsistency in his account of his travels, the fact that he had two cell phones on the passenger seat of his vehicle, and the fact that the trooper’s canine alerted to the trunk for the presence of drugs. The trooper searched the trunk over defendant’s objection and found multiple sealed packages of marijuana. Defendant filed a motion to suppress the evidence found in the trunk, which the trial court granted. The trial court concluded that the canine alert could not be considered under the totality of the circumstances because the canine would alert to both legal and illegal amounts of marijuana. The trial court ultimately held that the trooper did not have probable cause to search the trunk. The Supreme Court reversed. Under People v. Zuniga, 2016 CO 52, issued before the trial court issued its order in this case, the canine alert should be considered as a part of the totality of the circumstances. Considering the totality of the circumstances, including the canine alert, defendant’s unusual nervousness, an inconsistency in his account of his travels, and the fact that he had two cell phones on the passenger seat of his vehicle, there was probable cause to search the vehicle’s trunk.

Criminal Trials—Evidence.

In this case, the Supreme Court considered the admissibility of testimony under CRE 701 and 702. The Court held that in determining whether testimony is lay testimony under CRE 701 or expert testimony under CRE 702, trial courts must look to the basis for the opinion. If the witness provides testimony that could be expected to be based on an ordinary person’s experiences or knowledge, then the witness is offering lay testimony. If, on the other hand, the witness provides testimony that could not be offered without specialized experiences, knowledge, or training, then the witness is offering expert testimony. Applying that rule in this case, the Court concluded that some portions of a forensic interviewer’s testimony were admissible as lay opinion but that others were inadmissible expert testimony in the guise of lay opinion. The Court also addressed the admissibility of testimony under CRE 608(a) and concluded that some of the interviewer’s and the victim’s mother’s testimony was inadmissible under CRE 608(a) as it improperly bolstered the credibility of the child victims.