Following a trial to the court, defendant was convicted of 199 counts of encouraging child sexual abuse in the first degree, ORS 163.684, based on evidence that he duplicated or printed 199 sexually explicit images of children. On appeal, he raises five assignments of error, each of which we reject. Accordingly, we affirm defendant’s convictions and sentences.
We state the facts in the light most favorable to the state.
E.g., State v. Longo,
In February 2003, defendant’s wife contacted an attorney regarding dissolving her marriage with defendant. Because she was worried about retaining custody of their children, she eventually told the attorney about the photographs and instructed her to “use” them “only if it’s absolutely necessary.” The attorney, concerned about her statutory duty to report child abuse, ORS 419B.010, and believing that the photographs depicted underage females engaged in sexually explicit conduct, reported the existence of the photographs to the City of Warrenton Police Department. As a result, Warrenton Police Officer Holder met with the attorney and defendant’s wife in the attorney’s office in April 2003. At that time, the attorney gave Holder 24 photographs that he described as “several pictures * * * of young girls, none of [whom] have clothes on.” Later, defendant’s wife gave Holder several credit card bills for pornographic websites *419 that she had found in the couple’s residence; they were dated in March, June, and July 2002 and March 2003.
Based on that information, Holder prepared an affidavit for a search warrant to search the house where defendant and his wife had lived, the house where defendant had subsequently moved, a storage unit, and other locations. A magistrate issued a search warrant and, pursuant to the warrant, the police seized evidence from the house where defendant was staying and from his storage unit. The evidence seized from the house included computer floppy disks, CD-ROMs, and a computer. The evidence seized from the storage unit included sexually explicit photographs, other sexually explicit material, and a number of floppy disks. Among the thousands of images seized, either printed or found on computer storage media, the state ultimately relied at trial on 12 images found on defendant’s computer hard drive, 187 images on the CD-ROMs found at the house in which defendant was staying, and one of the photographs that it had received from defendant’s wife. As noted, the trial court found defendant guilty on 199 of the 200 counts. 1
On appeal, defendant first argues that the statute under which he was convicted — ORS 163.684 — violates his right to free expression under Article I, section 8, of the Oregon Constitution.
2
We review the trial court’s ruling regarding the constitutionality of a statute for an error of law.
State v. Rangel,
“(1) A person commits the crime of encouraging child sexual abuse in the first degree if the person:
“(a)(A) Knowingly develops, duplicates, publishes, prints, disseminates, exchanges, displays, finances, attempts to finance or sells any photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child or possesses such matter with the intent to *420 develop, duplicate, publish, print, disseminate, exchange, display or sell it; or
“(B) Knowingly brings into this state, or causes to be brought or sent into this state, for sale or distribution, any photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child; and
“(b) Knows or is aware of and consciously disregards the fact that creation of the visual recording of sexually explicit conduct involved child abuse.
“(2) Encouraging child sexual abuse in the first degree is a Class B felony.”
As defendant recognizes, we upheld ORS 163.684— the very statute at issue here — against an Article I, section 8, challenge in State v.
Dimock,
“If the state may constitutionally prohibit the mere possession of visual recordings of sexually explicit conduct involving a child, as we held in Ready, it may also prohibit their duplication and distribution. Duplication and distribution necessarily imply possession, and the statute is focused as narrowly on an effect that the legislature may proscribe as the statute in Ready.”
Dimock,
Nonetheless, defendant asserts that
Dimock
was wrongly decided. Relying on the Supreme Court’s opinions in
State v. Ciancanelli,
The first aspect of the statute that shows that it is directed at expression, according to defendant, is “its disparate treatment of different forms of child abuse.” In defendant’s view, the fact that the legislature has criminalized a *421 number of forms of child abuse, but that ORS 163.684 applies only to depictions of child sexual abuse, demonstrates that the statute is directed at restricting only one kind of expression. “[0]nce the Legislature has identified harmful effects,” defendant insists, “it may not constitutionally proscribe those which involve expression * * * protected by Article I, section 8[,] while leaving unpunished those which have no constitutional standing.”
We disagree with defendant’s reasoning. In Ready, we explained that former ORS 163.672 (1993), repealed by Or Laws 1995, ch 768, § 16, which prohibited possession of a depiction of sexual conduct involving a child, was aimed at conduct, not expression:
“[HJere, the statute prohibits the possession of certain communicative materials, not in terms of their communicative substance, but in terms of their status as a product of acts that have necessarily harmed children. The ability to possess and use the material is made possible only by the sexual abuse of children, which is, of course, harmfiil to children. Further, following the reasoning of [State v.] Stoneman, [323 Or 536 ,920 P2d 535 (1996),] the possession and use of the video continues that harm.”
Ready,
Next, defendant argues that “[t]he second aspect of ORS 163.684 that demonstrates that its actual focus is on *422 expression, not conduct, is its application to any depiction of the forbidden conduct, regardless of when or where it may have occurred.” He explains that
“ORS 163.684 does not, either on its face or as interpreted by the trial court, make actual exploitation of a child a necessary element of any violation. On the contrary, it purports to punish involvement with ‘visual recording [s] of sexually explicit conduct involving a child’ regardless of when or where they may have occurred and regardless of whether the portrayed conduct was lawful when or where it occurred.”
It follows, in his view, that in the absence of a statutory requirement to prove the actual sexual abuse of the child depicted in the image, the statute is aimed at protected expression rather than conduct. Defendant also relies on the Supreme Court’s characterization in
Ciancanelli
of its holding in
Stoneman.
In
Ciancanelli,
the court said that the statute it had addressed in
Stoneman
“made [sexual] exploitation of children a necessary element of any violation.”
First, we understand the court’s description in
Ciancanelli
of its holding in
Stoneman
to have a different implication than defendant asserts. We understand the use of the words “sexual exploitation” by the
Ciancanelli
court in that passage to refer to the exploitation of the depicted children after they have been previously exploited by the actual sexual abuse perpetrated on them, an exploitation that arises from activities such as engaging in the dissemination or distribution of the images of child sexual abuse. We believe that the court’s reference is to a point that it has made numerous other times,
viz.,
that commerce in communicative products from actual sexual exploitation of children “provides the very
raison d’etre
for engaging in the underlying acts of child sexual
abuse.” Stoneman,
*423 Moreover, the basic flaw in defendant’s argument is that the focus of ORS 163.684, by its terms, is on acts that encourage the sexual exploitation of children. Under defendant’s construct, the images depicting the child abuse are mere expressions of the actual sexual abuse of the persons portrayed in the images. Defendant is partially correct: Proof of the sexual abuse that is depicted in the image is not an element of proof of the offense of encouraging child sexual abuse. But the dissemination of the depiction of the child sexual abuse is more than mere expression; rather, it is further exploitative conduct that occurs after the abuse takes place. In other words, the circumstances of the underlying sexual abuse are not within the ambit of the statute’s proscription, but the conduct that occurs thereafter involving the dissemination of the abuse portrayed is. In that sense, the statute does not punish expression any more than the statute that the Supreme Court upheld in Stoneman or the statute that this court upheld in Ready.
In short, neither of the arguments that defendant raises on appeal persuades us to revisit our conclusion in Dimock that ORS 163.684 does not violate Article I, section 8, of the Oregon Constitution. We reject defendant’s first assignment of error.
In his second assignment of error, defendant asserts that the trial court erred in denying his motion for a judgment of acquittal on constitutional ex post facto grounds. In a variation of the argument addressed immediately above, defendant asserts that, because the state did not prove that the conduct depicted in the images he duplicated or printed took place after the effective date of ORS 163.684, punishing him for his actions violates the state and federal constitutional prohibitions on ex post facto laws. 3 For the reasons explained below, we reject that argument.
Defendant’s argument is based on the interplay of the constitutional
ex post facto
prohibitions and the logic
*424
underlying this court’s and the Supreme Court’s rejection of Article I, section 8, challenges to statutes criminalizing conduct involving depictions of child sexual abuse. Regarding the former, in
State v. MacNab,
“like the framers of the United States Constitution, the framers of the Oregon Constitution intended for Article I, section 21, to proscribe four categories of penal laws: those that punish acts that were legal before enactment; those that aggravate a crime to a level greater than it was before enactment; those that impose greater or additional punishment than that annexed to the crime before enactment; and those that deprive a defendant of a defense that was available before enactment.”
(Emphasis added.) Defendant does not assert that his duplication or printing took place before enactment of ORS 163.684 in 1995, but he does claim that, if the sexual abuse of the children depicted occurred before 1995, then the constitutional ex post facto prohibitions are implicated. It follows, according to defendant, that, to avoid the ex post facto prohibitions, the state was required to prove that the child sexual abuse depicted in the images involved in this case took place after the enactment of ORS 163.684. Because the state failed to prove those facts, defendant concludes that the trial court erred in denying his motion for a judgment of acquittal.
The court’s opinion in Stoneman helps to inform the analysis of the issue. In that case, the Supreme Court — in explaining that former ORS 163.680 (1993), repealed by Or Laws 1995, ch 768, § 16, did not violate Article I, section 8, because it was not aimed at expression — focused on the economic incentives that encourage child sexual abuse:
“ORS 163.680 (1987) prohibited commerce in material, the production of which necessarily involves harm to children. In fact, it is that aspect of the films and photographs described in ORS 163.680 (1987), i.e., their relationship to harm to children, rather than their communicative substance, that sets them apart. In other words, ORS 163.680 (1987) prohibited the purchase of‘visual reproduction [s] of sexually explicit conduct by a child under 18 years of age,’ not in terms of the content of those reproductions, but because they owe their very existence to the commission of *425 sexual abuse of a child and are, consequently, an extension of that harmful act — one that may, in many instances, provide an economic incentive to abuse the child.
* ‡ * *
“* * * ORS 163.680 (1987) thus was directed at commerce in the materials described in the statute only because they are the products of sexual exploitation of children. * * *
“We conclude that ORS 163.680 (1987) prohibited the purchase of certain communicative materials, not in terms of their communicative substance, but in terms of their status as the products of acts that necessarily have harmed the child participants. So understood, it will be seen that the statute punished sexual exploitation by commerce that is a continuation and an integral part of the underlying harmful acts.”
Stoneman,
Similarly, as explained above, ORS 163.684 does not include the harm to children as an “element” of the crime. Rather, the statute is aimed at the economic incentives for causing that harm. We rejected a related argument in Ready,
In sum, although the statute is concerned with the harm caused to children by sexual abuse, the original abuse is not itself an element of the crime. Rather, the statute captures conduct that exploits the abuse and makes that conduct unlawful much in the same way that other criminal statutes make conduct unlawful after the actus reus (the criminal act) of the underlying offense is committed. We conclude that the *426 state was not required to prove that the underlying sexual abuse took place by proving when and where it occurred and that the trial court therefore correctly denied defendant’s motion for a judgment of acquittal on ex post facto grounds.
In his third assignment, defendant argues that the trial court erred when it denied his motion for a judgment of acquittal on the ground that the evidence was insufficient to prove that defendant duplicated or printed a photograph, videotape, or other visual record of sexually explicit conduct involving a child. We disagree that the state’s evidence of printing or duplication was insufficient. We have reviewed the record, and it demonstrates that defendant was in possession of a computer that would permit the downloading and copying of images from the Internet or other sources. Also found in his possession were computer floppy disks, photographs, and CD-ROMs with the images on them. We conclude that a rational trier of fact could infer, based on that evidence, as well as the other evidence in the record, that defendant himself printed or duplicated the images found in his possession. While that inference is not the only inference that could be drawn from the evidence as to how he came to possess the images, it is a permissible inference that allowed the court to find beyond a reasonable doubt that defendant “printed” or “duplicated” the images. Accordingly, we reject defendant’s third assignment of error without further discussion.
Defendant next argues that the trial court erred in denying his motion, filed one day before trial, to suppress evidence seized from the house where he was staying. In support of his motion, defendant argued that the search warrant affidavit did not provide probable cause because it was based on information that was both stale and privileged. At the noon break on the first day of trial, the trial court noted that it had received the motion only that day. The prosecutor asserted that the court should not consider the motion on the ground that it was untimely. Following argument, the trial court took the motion under advisement. After the trial concluded, the court denied the motion, stating:
“As to the Defendant’s Motion to Suppress, the Court will deny the motion on the ground that it was untimely *427 filed. In the alternative, and if the Court is in error in ruling that the motion was untimely filed, then the Court denies the motion on its merits.”
On appeal, defendant asserts that the trial court erred in denying his motion to suppress evidence seized pursuant to the search warrant. We review a trial court’s denial of a motion to suppress on the ground that it is untimely for an abuse of discretion.
See State v. Johnson,
The search warrant in this case was issued in May 2003, defendant was arraigned in August 2003, and defendant’s motion to suppress was filed in January 2005 — on the eve of trial and over a year later. UTCR 4.010 provides,
“Motions for pretrial rulings on matters subject to ORS 135.037 and ORS 135.805 to 135.873 must be filed in writing not less than 21 days before trial or within 7 days after the arraignment, whichever is later, unless a different time is permitted by the court for good cause shown.” 4
The trial court, in ruling that defendant’s motion was untimely, implicitly concluded that defendant had not shown “good cause” for the late filing. Thus, unless defendant establishes that the trial court’s conclusion was outside “the range of legally correct discretionary choices * * * the trial court did not abuse its discretion.”
State v. Rogers,
Defendant relies on ORS 133.673, which provides:
“(1) Objections to use in evidence of things seized in violation of any of the provisions of ORS 133.525 to 133.703 shall be made by a motion to suppress which shall be heard and determined by any department of the trial court in advance of trial.
*428 “(2) A motion to suppress which has been denied may be renewed, in the discretion of the court, on the ground of newly discovered evidence, or as the interests of justice require.”
Focusing on subsection (2), defendant asserts that the trial court’s ruling was inconsistent with the discovery of new evidence and the interests of justice.
The first problem with defendant’s argument is that ORS 133.673(2) does not, by its terms, apply to defendant’s motion in this case; rather, it applies only to motions that are “renewed.” Here, defendant moved only once — the day before trial — to suppress evidence. Accordingly, defendant’s focus on that provision is misplaced. Moreover, the principles enunciated in Owens demonstrate that the trial court properly exercised its discretion in this case.
In
Owens,
which defendant himself describes as “most analogous” to this case, the defendant’s motion to waive the time limit imposed by local rules for filing motions to suppress was filed 40 days before the scheduled omnibus hearing and 46 days before trial.
Here, in contrast to Owens, defendant filed the motion to suppress on the eve of trial. The lateness of the motion created at the least a reasonable likelihood of disruption of the judicial process. Although defendant asserts that he could not challenge the search and seizure until he knew on what evidence the state would rely and that he did not have that information until “the virtual eve of trial,” we are not persuaded. Defense counsel was aware of — or should have been aware of — the issues of staleness and privilege long before the state knew definitively the images on which it *429 would rely. Finally, filing a motion on the eve of trial that the judge did not receive until the day of trial left the state little time to respond, both on legal grounds and in evidence gathering and trial strategy decisions. We conclude that the trial court did not abuse its discretion in denying defendant’s motion to suppress on timeliness grounds.
We turn, finally, to defendant’s fifth assignment of error, in which he asserts that the trial court erred in entering 199 convictions. Following the state’s case-in-chief, defendant separately moved for a judgment of acquittal on several different grounds. One ground was that the indictment charged only one crime:
“The simultaneous possession of multiple CD’s * * * is a single offense, and therefore this * * * Indictment does not charge 199 violations. It charges one.
“Now, I guess in theory, the charge is a second one because they’re claiming that they’re now relying on one of the photos, or a copy — one of the images found at the — provided by [defendant’s wife] to the police back in April of’03, but at most it would be two, not 200 offenses.”
The prosecutor responded that it appeared that defendant was raising “a merger or Boots sort of issue * * *. And so I think it’s more of that type of an issue more than a proper motion for Judgment of acquittal based on lack of evidence.” When the trial court asked defense counsel whether he had any more motions, counsel replied, “I think those are the only motions for judgment of acquittal, Your Honor.” (Emphasis added.) The trial court took the motion under advisement, ultimately denying the motion: “As to the third motion, which I will label or characterize concluding that only that if any crime was committed on these facts, it would constitute only one crime and not more than one crime. That motion also is denied.”
On appeal, defendant asserts that the trial court erred in entering more than one conviction:
“In this case, it is undisputed that 198 of the counts for which defendant was prosecuted were based on the contents of six CD-ROMs and one personal computer that were found together in defendant’s apartment. It is undisputed that defendant’s possession of these items was alleged to *430 violate the same statutory provision. The trial court therefore erred in entering separate convictions and imposing separate punishments on each of these counts. [The court] must at the least vacate defendant’s convictions on counts 1 through 66 and 68 through 200 and remand the case to the trial court for entry of a single conviction on these counts.”
In support of his argument, defendant cites ORS 161.067 (the “anti-merger” statute) and a number of cases addressing merger of convictions. 5 Initially, the state responds that defendant did not preserve in the trial court the issue that he raises on appeal.
We agree with the state’s initial response. As noted, defendant raised the issue whether the indictment charged only one offense or 199 offenses in a motion for a judgment of acquittal. However, he told the trial court when the prosecutor remarked that defendant appeared to be making a merger argument that “those are the only motions for judgment of acquittal [.]”
Motions for acquittal are governed by ORS 136.445, which provides:
“In any criminal action the defendant may, after close of the state’s evidence or of all the evidence, move the court for a judgment of acquittal. The court shall grant the motion if the evidence introduced theretofore is such as would not support a verdict against the defendant. The acquittal shall be a bar to another prosecution for the same offense.”
Defendant’s argument on appeal is not that any given count of the indictment is not supported by sufficient evidence. Rather, he asserts that, under ORS 161.067, the court could enter only one conviction on all the counts of the indictment. But, as we explained in
State v. Davis/Hamilton,
In Davis /Hamilton, we described — in a passage that applies equally to this case — why a motion for a judgment of acquittal does not preserve a merger argument:
“Defendants do not contend that the state failed to adduce legally sufficient proof establishing the allegations of each separate count * * *. Nor do defendants dispute that any one of those counts, standing alone, would, by itself, be sufficient to support a conviction * * *. Rather, as we understand defendants’ argument, it reduces to the assertion that those allegations, even as substantiated, cannot support separate and multiple convictions * * *. Thus, defendants’ argument pertains not to the sufficiency of the state’s proof but, instead, to the legal effect to be given to the jury’s determination of each count. The latter is properly addressed by way of a post-verdict motion invoking ORS 161.067, and not by way of a motion for judgment of acquittal.”
Id. at 390-91 (emphasis in original; footnote omitted). As we further explained in Davis/Hamilton, “[o]nly after the jury returned its verdict finding defendants guilty on some or all of the robbery counts could the court determine whether, given the proper construction of [the robbery statute] and the proper application of ORS 161.067, that verdict supported the entry of multiple convictions or the imposition of multiple sentences.” Id. at 392.
That analysis disposes of defendant’s fifth assignment of error. The result that defendant seeks on appeal is not one that he could have obtained in the trial court through his motion for a judgment of acquittal for two reasons. First, defendant does not appear to dispute on appeal that there was evidence from which a rational trier of fact could have found him guilty of each of the 199 counts. Under those circumstances, the trial court correctly denied the motion for a judgment of acquittal. Second, the merger of convictions that defendant seeks now, but did not seek in the trial court, cannot take place until after the convictions have occurred. At the time defendant moved for the judgment of acquittal, he did not stand convicted of any offense. As in Davis /Hamilton, defendant “effectively ‘put the cart before the horse.’ ” Id.
*432
In his reply brief, defendant asks us to nonetheless address the trial court’s failure to merge his convictions as error apparent on the face of the record.
See
ORAP 5.45(1) (addressing plain error review). The elements of plain error are that (1) the error is one of law, (2) the error is apparent, meaning the legal point is obvious, not reasonably in dispute, and (3) the error appears on the face of the record; that is, the court “need not go outside the record or choose between competing inferences to find it[.]”
State v. Brown,
We conclude that the trial court did not commit plain error by entering separate convictions. As noted, merger is governed by ORS 161.067, which provides, in part:
“(1) When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.
“(2) When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims. * * *
“(3) When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent. * * *”
Defendant argues that the merger issue in this case is governed by subsection (3). He asserts that, because “[t]he state is not required to prove the identity or existence of any ‘victim’ to establish a violation of any form of Encouraging Child Sexual Abuse, * * * violation of any of the Encouraging *433 Child Sexual Abuse statutes can be found to involve [only] a single victim.” It follows, under defendant’s premise, that only subsection (3) of the statute governs the merger issue. Defendant concludes that, because the state did not prove that there was a sufficient pause in defendant’s criminal conduct to afford him an opportunity to renounce the criminal intent, he is guilty of only one crime. The state, in contrast, asserts that this issue is governed by subsection (2) of thé statute. It claims that there are as many victims of defendant’s crimes as there are individuals depicted in the images on which defendant’s convictions are based.
The issue raised by the parties’ arguments is how many victims were involved in defendant’s crimes. That is, it is not clear whether — when multiple charges are based on images of different children — ORS 163.684 contemplates that there was one victim or more than one victim, or whether the statute is intended instead to promote the general welfare of children, rather than to address a criminal act committed against a particular person. Because ORS 163.684 is subject to all of the above interpretations, it is not clear which subsection of ORS 161.067, if any, governs the merger issue in this case. No Oregon case has addressed that issue, and the answer is not obvious. Because that point of law is reasonably in dispute, the trial court did not commit plain error in entering separate convictions.
Affirmed.
Notes
The state conceded at trial that one of the images from the CD-ROMs did not support a conviction.
Article I, section 8, of the Oregon Constitution provides:
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
Article I, section 21, of the Oregon Constitution, provides, in part, “No ex-post facto law * * * shall ever be passed * * Article I, section 10, of the United States Constitution, provides, in part, “No state shall * * * pass any * * * ex post facto Law[.]” For purposes of this opinion, we need not be concerned with any differences between the federal and state constitutional prohibitions.
A motion to suppress is a “matter subject to ORS 135.037.”
In
State v.
White,