State v. Barger, 247 P.3d 309

Barger charged with eight counts of Encouraging Child Sexual Abuse in the Second Degree under ORS 163.686(1)(a) by possessing or controlling visual recordings of child sexual abuse found on his computer.
Evidence arose from police examining the couple's computer after consent; forensic analysis identified eight images in the temporary Internet file cache.
Forensic witness Williams testified images found in the cache were pornographic and likely problematic, but could not link them to purposeful saving by defendant.
Defense moved for acquittal arguing no evidence showed knowing possession or control; the trial court denied, and verdicts were entered against defendant.
Court of Appeals affirmed; this Court granted review to resolve whether accessing images via Internet alone can satisfy possession or control under ORS 163.686(1)(a)(A)(i).
Justice's opinion clarifies the statute’s text, context, and legislative intent, concluding the acts here do not meet the possession or control standard.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether accessing images via a browser constitutes possession or control	State argues browser access and display satisfies possession/controls	Barger argues mere access does not show knowledge of possession or control	No; viewing alone does not satisfy possession or control
How to interpret 'possesses or controls' in ORS 163.686(1)(a)(A)(i)	Statute intended broad possession/conduct beyond physical control	Literal reading limits to physical/constructive possession	Broad interpretation not supported; text/context limit scope
Role of subparagraph (1)(a)(A)(ii) in shaping the meaning of possession/controls	Subparagraph (ii) shows criminalization of paying to obtain/viewing with value	Subparagraph (ii) clarifies separate conduct; does not redefine (i)	Context shows (i) and (ii) target different conduct; (i) not satisfied by mere viewing
Whether Oregon should analogize to corporeal possession cases for digital images	Constructive possession concepts apply to digital images	Digital context requires different approach; proximity alone insufficient	Constructive possession rules do not support conviction here
Impact of legislative history and other states' approaches	Oregon should modernize to fit digital age; other states expanded statutes	Court should stick to text and context; avoid legislative overreach	Statute not written for digital world; not criminalizing mere obtaining/viewing

State v. Fries, 344 Or. 541 (2008) (defines possession as actual or constructive; two forms of possession)
State v. Connally, 339 Or. 583 (2005) (discusses possession concepts in context of property)
State v. Oare, 249 Or. 597 (1968) (constructive possession requires more than mere proximity)
State v. Casey, 346 Or. 54 (2009) (proximate possession not sufficient; holding on constructive possession)
State v. Gaines, 346 Or. 160 (2009) (methodology for statutory interpretation (text, context, history))
State v. Daniels, 348 Or. 513 (2010) (rejects inference from mere proximity/availability for possession)
State v. Barnes, 120 Or. 372 (1927) (possession includes actual and constructive possession)
State v. Miller, 238 Or. 411 (1964) (illustrates limits of proximity-based possession reasoning)