State v. Barger

• Decision Date: 06 January 2011
• Docket Number: A138679; SC S058345).,(CC 200721991,200801740; CA A138678 (Control)
• Citation: 349 Or. 553,247 P.3d 309
• Parties: STATE of Oregon, Respondent on Review,v.Barry Lowell BARGER, Petitioner on Review.
• Court: Oregon Supreme Court

349 Or. 553

247 P.3d 309

STATE of Oregon, Respondent on Review,

v.Barry Lowell BARGER, Petitioner on Review.

(CC 200721991

200801740; CA A138678 (Control)

A138679; SC S058345).

Supreme Court of Oregon.

Argued and Submitted Sept. 14, 2010.Decided Jan. 6, 2011.

On review from the Court of Appeals.^*

Kristin A. Carveth, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.Erika L. Hadlock, Senior Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were John R. Kroger, Attorney General, and David B. Thompson, Interim Solicitor General.Before DE MUNIZ, C.J., and DURHAM, BALMER, KISTLER, WALTERS, and LINDER, JJ., and GILLETTE, J. pro tempore.^**GILLETTE, J., pro tempore.

This criminal case involves the following question: Can a person be found guilty of “possess[ing] or control[ling]” digital images of sexually explicit conduct involving a child, as that phrase in used in ORS 163.686(1)(a),¹ based on evidence showing only that the person searched for and found such images through the Internet on his or her computer? Although the trial court in the present case acknowledged that “the world of the Internet presses * * * the boundaries of what we normally understand to be possession and control,” it ultimately concluded that a jury could find defendant guilty under ORS 163.686(1)(a) based solely on such evidence. As we explain below, we disagree with that conclusion: The statute requires something more than simply accessing and looking at incorporeal material of the kind involved here to “possess” or “control” that material. Accordingly, we reverse both the circuit court judgment and the Court of Appeals decision affirming that judgment.

In the course of investigating a report that defendant had sexually abused a child, a City of Eugene Police Officer, Sullivan, talked to defendant's wife, who told him that there was some “weird” material on the couple's home computer. Defendant's wife showed the computer to Sullivan, who looked at the computer's web-address history and saw three addresses that, based on their titles, seemed suspicious.

A few weeks later, the Eugene police asked defendant's wife if she would allow them to take the computer and examine it. She consented. Thereafter, Eugene police detective Williams, who was certified in computer forensics, took possession of the computer, made a copy of the hard drive, and used certain forensic software to examine that hard drive.² Based on Williams's findings, defendant was charged with eight counts of Encouraging Child Sexual Abuse in the Second Degree, ORS 163.686, by possessing or controlling a visual recording of sexually explicit conduct involving a child. Each charge was based on a separate digital image that Williams found in the computer's “temporary internet file cache.”

As Williams later explained at defendant's jury trial, temporary Internet files found in a computer are the product of an automatic function of a computer's web browser. Whenever a computer user visits a web page, the browser creates a copy of the web page and stores it in a temporary Internet file “cache,” where it remains until the space is used up and written over, or it is erased. If a user calls up the same web page at some later date, the browser simply accesses the copy from the temporary files, rather than going through the slower process of downloading the same information from the web page. Computer users with ordinary skills would not necessarily be aware of that function or know how to go about accessing information stored in the temporary Internet file cache.

Williams testified that, when he received the computer, only one of the three addresses that had triggered Sullivan's suspicions remained in the web-address registry but that, by examining other Internet activity files, he was able to identify two other suspicious web addresses that someone had accessed in the recent past. Williams stated that he checked all three websites and that all appeared to contain pornographic images of prepubescent girls and girls in their early teens.³

Williams testified that he then searched for similar images that might be stored on the computer's hard drive, using certain words and phrases commonly used in child pornography. He acknowledged that he did not find any images of that kind that had been purposefully copied and saved in any user's personal files. He did, however, discover sexually explicit images of prepubescent girls in the computer's temporary Internet file cache.

The prosecution then presented the specific evidence that it asserts established defendant's guilt of the eight charges of Encouraging Child Sexual Abuse. The evidence included the eight digital images, all of which Williams had discovered in the temporary Internet file cache of defendant's computer, and which were the bases of the charges. Williams acknowledged that there was nothing about the images that identified what website they had come from and that there was no way to know with absolute certainty whether the images had been accessed intentionally by a user or “were the result of pop-up windows or browser redirects.” Williams further explained, however, that pornographic pop-ups and redirects occur almost exclusively when a computer user visits another pornographic website.

After presenting Williams's testimony, the state rested. Defendant then moved for a judgment of acquittal, arguing that there was no evidence that the eight images at issue had made their way onto the hard drive through any intentional or knowing action by him and that, even if it was possible to infer that defendant had accessed the images through web browsing, that inference was insufficient to establish defendant's knowing possession or control of those images. The trial judge denied defendant's motion, and the jury ultimately returned guilty verdicts on all eight charges. On defendant's appeal, the Court of Appeals affirmed without opinion. State v. Barger, 233 Or.App. 621, 226 P.3d 718 (2010). We allowed defendant's petition for review.

Before this court, defendant argues that, although the state's evidence might support an inference that he had accessed and viewed the images at issue, the evidence would not support an inference that he ever knowingly “possess[ed] or control[led]” them within the meaning of ORS 163.686(1)(a).

Because there is no evidence in the record suggesting that defendant knew about the computer's automatic caching function or how to access material in the cache, the state does not now argue, and never has argued, that defendant “knowingly possess[ed] or control[led]” the images at issue insofar as they existed in his computer's temporary Internet file cache. Instead, the state's position is a more simple one. It argues that, because defendant's computer gave him the capability to print, save, e-mail, and otherwise manipulate the images in question, his actions of intentionally accessing one or more web sites that contained the proscribed images, thus causing those images to be displayed on his computer screen, constituted “possess[ion] and control[ ]” in the required sense. The question for this court thus is a narrow one: Can a computer user be found to have knowingly “possess[ed] or control[led]” digital images of child sexual abuse, within the meaning of ORS 163.686(1)(a)(A)(i), based solely on evidence showing that, at some time in the past, he intentionally accessed those digital images using his computer's Internet browser and—by reasonable inference—looked at them? ⁴

The answer to that question depends on what the legislature that enacted ORS 163.686(1)(a) intended by the phrase “possesses or controls” and on whether an activity that is commonplace now but was far less common at the time of the statute's enactment ⁵ comes within the meaning that the legislature intended for that statute. To determine the legislature's intent, we employ the methodology set out in ORS 174.020 and State v. Gaines, 346 Or. 160, 171–73, 206 P.3d 1042 (2009). Specifically, we first consider the text and context of the statute and then, if we so choose, consider any legislative history that the parties might proffer.

We begin with the part of the statutory text that is relevant to the charges against defendant. ORS 163.686 provides, in part:

“(1) A person commits the crime of encouraging child sexual abuse in the second degree if the person:

“(a)(A)(i) Knowingly possesses or controls any photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child for the purpose of arousing or satisfying the sexual desires of the person or another person; [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[.]”

As our synopsis of the arguments suggests, the operative words in the present inquiry are the verbs “possesses” and “controls.”

The verb “control” is not statutorily defined, but its common meaning, as set out in Webster's Third New Int'l Dictionary 496 (unabridged ed 2002), is “to exercise restraining or directing influence over: REGULATE, CURB.” The word “possess,” on the other hand, is statutorily defined: For purposes of most Oregon criminal statutes, including ORS 163.686, it means “to have physical possession or otherwise to exercise dominion or control over property.” ORS 161.015(9). As this court explained in State v. Fries, 344 Or. 541, 545–47, 185 P.3d 453 (2008), that definition of the word “possess” encompasses two alternative ways of possessing property that this court traditionally has recognized: (1) physically controlling the property (“actual” possession) and (2) exercising some other kind of dominion or control over the property (“construct...