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People v. Froehler

Court of Appeals of Colorado, Fifth Division

July 30, 2015

The People of the State of Colorado, Plaintiff-Appellee,
Kenneth Froehler, Defendant-Appellant

          City and County of Denver District Court No. 09CR5412. Honorable Anne M. Mansfield, Judge.

         Cynthia H. Coffman, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

         Douglas K. Wilson, Colorado State Public Defender, Chelsea E. Mowrer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

         Opinion by CHIEF JUDGE LOEB. Kapelke[*] and Nieto[*], JJ., concur.


         LOEB, JUDGE

          [¶1] Defendant, Kenneth Froehler, appeals the judgment of conviction entered on a jury verdict finding him guilty of sexual exploitation of a child. We affirm.

         I. Background

          [¶2] Froehler checked into the Renaissance Hotel in Denver in the early afternoon of March 17, 2009. That evening, two men who appeared to be hotel guests found a flash drive plugged into one of the hotel's business center computers. The men opened some of the files on the flash drive and discovered child pornography. They immediately turned the flash drive over to hotel security. The men did not identify themselves and asked not to be involved further. The security guard contacted the police and gave them the flash drive.

          [¶3] The next morning, Froehler called the front desk and asked if anyone had turned in a flash drive. He described the missing flash drive as black with the words " Datatraveler" on it. Because that description matched the flash drive turned in the night before, the clerk contacted the police.

          [¶4] Responding officers approached Froehler in the hotel parking lot and asked him about the flash drive. Froehler described its appearance and told them it contained personal pictures, pictures of Christmas lights, pictures of his dog, and business invoices from his company. Later investigation revealed that the flash drive contained those items, as well as 155 images and 4 videos of child pornography. Police later searched five laptops found in Froehler's home but discovered no child pornography on any of them.

          [¶5] The prosecution charged Froehler with one count of sexual exploitation of a child, a class four felony. At trial, the defense argued that someone else put child pornography on the flash drive after Froehler had accidently left it in the hotel computer. A jury convicted Froehler, and the trial court sentenced him to two years in the custody of the Department of Corrections and three years mandatory parole.

         II. Discussion

          [¶6] On appeal, Froehler contends that the trial court abused its discretion by allowing the detective who investigated the case to give improper lay testimony about (1) the dates associated with the images on the flash drive and (2) ImageScan, the software program used to search Froehler's laptops. Froehler contends that this evidence constituted expert testimony that should have been excluded because the detective was not disclosed or qualified as an expert. For the reasons set forth below, we discern no reversible error.

         A. Standard of Review

          [¶7] We review the trial court's evidentiary rulings for an abuse of discretion. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002); People v. Veren, 140 P.3d 131, 136 (Colo.App. 2005). A trial court abuses its discretion if its ruling is manifestly arbitrary, unreasonable, or unfair, or based on an erroneous view or application of the law. Stewart, 55 P.3d at 122; People v. Bondurant, 2012 COA 50, ¶ 79, 296 P.3d 200; People v. Esparza-Treto, 282 P.3d 471, 480 (Colo.App. 2011).

          [¶8] Froehler timely objected to the detective's testimony. Accordingly, we apply the harmless error standard for reversal. See Stewart, 55 P.3d at 124; People v. Ramos, 2012 COA 191, ¶ 6 ( cert. granted Feb. 18, 2014). Under this standard, we may not reverse a conviction if we " can say with fair assurance that, in light of the entire record of the trial, the error did not substantially influence the verdict or impair the fairness of the trial." Stewart, 55 P.3d at 124 (internal quotation marks omitted).

          [¶9] We reject Froehler's contention that the constitutional harmless error standard applies here. Colorado appellate courts have uniformly applied the ordinary harmless error standard where, as here, the defendant contends that expert testimony was improperly admitted as lay testimony and the objection was preserved. See, e.g., id.; Ramos, ¶ 6; Veren, 140 P.3d at 140.

         B. Applicable Law

          [¶10] Whether the trial court abused its discretion here turns on whether admission of the detective's testimony was proper under CRE 701. Stewart, 55 P.3d at 122. That rule, which governs lay opinion testimony, applies because the prosecution did not seek to qualify the detective as an expert witness under CRE 702. Id.

          [¶11] Under CRE 701, a witness who is not testifying as an expert may give testimony in the form of opinions or inferences only if those opinions or inferences are

(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

         Froehler's argument focuses on the third requirement, which prohibits opinions based on " scientific, technical, or other specialized knowledge" from being admitted as lay testimony. Id.

          [¶12] In determining whether testimony is lay or expert, the critical inquiry is whether a witness' testimony is based upon " specialized knowledge." Veren, 140 P.3d at 137. Lay witness opinion testimony is proper only if the opinions or inferences " do not require any specialized knowledge and could be reached by any ordinary person." Id. (internal quotation marks omitted). In deciding whether an opinion is one that could be reached by any ordinary person, courts consider whether ordinary citizens can be expected to know certain information or to have had certain experiences. Id. Courts also consider " whether the opinion results from 'a process of reasoning familiar in everyday life,' or 'a process of reasoning which can be mastered only by specialists in the field.'" Id. (quoting People v. Rincon, 140 P.3d 976, 983 (Colo.App. 2005)).

          [¶13] In People v. Stewart, the supreme court recognized the difficulty in classifying a police officer's testimony as expert or lay opinion testimony. 55 P.3d at 123. Police officers regularly, and appropriately, offer testimony under CRE 701 based on their perceptions and experiences. Id. However, " [o]fficer testimony becomes objectionable when what is essentially expert testimony is improperly admitted under the guise of lay opinions." Id. The court held that where an officer's testimony is based not only on his or her perceptions, observations, and experiences, but also on the officer's specialized training or education, the officer must be properly qualified as an expert before offering such testimony. Id. at 124.

          [¶14] The parties have not cited, and we have not found, any published Colorado appellate case that has addressed the distinction between lay and expert testimony in the context of computer-related testimony. Because CRE 701 mirrors Rule 701 of the Federal Rules of Evidence, we look to federal cases construing that rule for guidance. See Stewart, 55 P.3d at 123.

          [¶15] In United States v. Ganier, 468 F.3d 920, 924 (6th Cir. 2006), the Sixth Circuit considered testimony by a forensic computer specialist who used forensic software to determine what searches were run on a computer. The court rejected the Government's argument that this was " simply lay testimony available by running commercially-available software, obtaining results, and reciting them." Id. at 925 (internal quotation marks omitted). The court reasoned that interpreting the reports generated by the software would require the specialist to " apply knowledge and familiarity with computers and the particular forensic software well beyond that of ...

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