Marsh v. People

JUSTICE EID,

concurring in part and concurring in the judgment in part.

¶46 I agree with the majority’s conclusion that a defendant may “knowingly ... [p]os-sess[ ] or controlf ]” child pornography under section 18-6-403(3) by knowingly seeking out and viewing child pornography on the internet. Maj. op. ¶ 28. I disagree, however, with the majority’s conclusion that “because possession has a number of definitions, the stat*111ute’s plain language is unclear.” Id. at ¶ 22.1 would simply hold that the statute’s plain language is plain. The fact that this court has not applied the statutory language to this context before does not in itself create a statutory ambiguity. See Burnett v. Dep’t of Nat. Res., 2015 CO 19, ¶ 51, 346 P.3d 1005, 1014 (Eid, J., concurring in the judgment). Here, the definitions cited by the majority suggest that the statutory term “possession” requires a certain degree of control over the object. Maj. op. ¶ 22 n.6. The question is whether viewing an online image of child pornography constitutes such control. I believe it does. As the court of appeals put it (in a sentiment echoed by the majority), a computer user viewing an image online “has the ability to enlarge, save, copy, forward, or print the image. The user can also show the image on the screen to others.” Marsh v. People, — P.3d -, 2011 WL 6425492, *5 (Colo. App. Dec. 22, 2011). See also maj. op. ¶ 28 (citing the court of appeals). Like the majority, I would reject Marsh’s argument that the statute requires something more. I therefore concur with all of Part II.A. of the majority opinion except for Part II.A.2.1 also concur in the judgment as to Part II.B. for the reasons set forth by Justice Coats in his separate opinion.