288 P.3d 567
Or. Ct. App.2012Background
- Guilty verdicts on 101 counts of second-degree encouraging child sexual abuse based on images found in unallocated hard‑drive space.
- Defendant argued images were obtained via automatic browser caching and that he only viewed them, not possessed or controlled them.
- Appellate court recognized post‑trial decisions in Barger and Ritchie require reversal of convictions.
- Court found preservation requirements were not met, but addressed plain error review under ORAP 5.45.
- Court concluded, under Barger and Ritchie, the evidence was legally insufficient to prove possession or control, so reversal was warranted.
- Amendments to statute after trial were not applicable to this case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial error is preserved for appeal | State | Barger/Ritchie post‑trial govern; error preserved | Not preserved; but plain error reviewed |
| Whether viewing alone can prove possession or control | State could prove control via capability to save/print | Viewing alone insufficient | Insufficient under Barger and Ritchie |
| Whether plain error should be considered despite preservation failure | State | Plain error applicable | Plain error reviewed; reversible error found |
| Appropriate remedy for plainly erroneous conviction | State | Reverse conviction | Discretion exercised to reverse; conviction reversed |
Key Cases Cited
- State v. Ritchie, 349 Or 572 (2011) (reversal; digital copies cannot prove possession/control)
- State v. Barger, 349 Or 553 (2011) (rejects mere viewing as criminal possession/control)
- State v. Jury, 185 Or App 132 (2002) (plain error standard applied for review after conviction)
- State v. Johnson, 342 Or 596 (2007) (standard for reviewing favorable view of record)
- State v. Reynolds, 250 Or App 516 (2012) (plain error analysis under ORAP 5.45; error apparent on record)
- State v. Inloes, 239 Or App 49 (2010) (insufficient evidence reviewed as error apparent on record)