State v. Cale, 330 P.3d 43

Defendant challenges convictions on three counts of using a child in display of sexually explicit conduct (ORS 163.670) and three counts of encouraging child sexual abuse in the first degree (ORS 163.684).
The trial court declined to merge the counts, treating each photograph or transfer as a separate offense, and the convictions totaled six counts for each set of statutes.
J, a four-year-old, disclosed misconduct by defendant; police recovered devices and time-stamped files of child pornography showing sequences of exploitative conduct.
Expert testimony tied specific photos to Counts 2–4 (display) and Counts 5–7 (encouraging abuse) with precise timestamps, suggesting separate acts in time.
The merger statute ORS 161.067(3) requires a sufficient pause between repeated violations to count as separate offenses; the court evaluated whether such a pause existed.
The appellate court concluded there was no legally sufficient pause for either set of counts and reversed and remanded for entry of single convictions for each offense and resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there a sufficient pause to support separate offenses under ORS 161.067(3) for ORS 163.684?	State argued separate transfers could be separate offenses if paused.	Devore contends the transfers occurred in a continuous sequence with no pause.	No sufficient pause; merger required.
Was there a sufficient pause to support separate offenses under ORS 161.067(3) for ORS 163.670?	State asserted separate inducements occurred with separate acts.	Devore argued the conduct was continuous.	No sufficient pause; merger required.
Effect of merger on conviction and sentencing for those counts?	State argued multiple counts could stand as separate offenses absent a pause.	Devore urged merger to reduce the number of offenses.	Counts 2–4 and 5–7 merged; remanded to enter one conviction each and for resentencing.

State v. Glazier, 288 P.3d 1007 (Or. 2012) (addressed merger when there is no sufficient pause between related offenses)
State v. Reeves, 280 P.3d 994 (Or. App. 2012) (pause evidence between downloads; no inference of non-concurrent transfers)
State v. Huffman, 227 P.3d 1206 (Or. App. 2010) (files could download concurrently; absence of pause supports merger)
State v. McConville, 259 P.3d 947 (Or. App. 2011) (no evidence of cessation and resumption necessary for separate counts)
State v. Sanders, 57 P.3d 963 (Or. App. 2003) (insufficient pause between alleged separate assaults)
State v. Watkins, 236 P.3d 770 (Or. App. 2010) (insufficient pause in sustained assault context)