and County of Denver District Court No. 09CR5412. Honorable
Anne M. Mansfield, Judge.
H. Coffman, Attorney General, John T. Lee, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee.
K. Wilson, Colorado State Public Defender, Chelsea E. Mowrer,
Deputy State Public Defender, Denver, Colorado, for
by CHIEF JUDGE LOEB. Kapelke[*] and Nieto[*], JJ.,
[¶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.
[¶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
[¶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
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
[¶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
[¶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
[¶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
(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.
argument focuses on the third requirement, which prohibits
opinions based on " scientific, technical, or other
specialized knowledge" from being admitted as lay
[¶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 ...