State v. Bellar

• Decision Date: 30 September 2009
• Docket Number: A129493.,050230673.
• Citation: 217 P.3d 1094,231 Or. App. 80
• Parties: STATE of Oregon, Plaintiff-Appellant Cross-Respondent, v. Donald Lee BELLAR, Defendant-Respondent Cross-Appellant.
• Court: Oregon Court of Appeals

217 P.3d 1094

231 Or. App. 80

STATE of Oregon, Plaintiff-Appellant Cross-Respondent, v. Donald Lee BELLAR, Defendant-Respondent Cross-Appellant.

050230673.

A129493.

Court of Appeals of Oregon.

Argued and Submitted on August 4, 2008.

Decided September 30, 2009.

Rankin Johnson IV, Portland, argued the cause for respondent-cross-appellant. With him on the briefs was Philip A. Lewis.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for appellant-cross-respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.

EDMONDS, P.J.

The appeal in this criminal case charging defendant with 40 counts of encouraging child sexual abuse in the second degree, ORS 163.686, was initiated by the state after the trial court allowed in part and denied in part defendant's motion to suppress evidence. Defendant cross-appeals pursuant to ORS 138.040¹ from the part of the order denying the motion to suppress. Subsequently, the state dismissed its appeal. The threshold issue before us is whether, under ORS 138.040, we may exercise our discretion to consider defendant's cross-appeal after the state has dismissed its appeal. We conclude that, under the holding in State v. Shaw, 338 Or. 586, 113 P.3d 898 (2005), we are required to dismiss defendant's cross-appeal.

The trial court's order recites that the charges against defendant arose out of the discovery of images of child pornography on defendant's computer by a computer repair technician. The evidence sought to be suppressed by defendant consisted of his statements and computer images depicting child pornography. In September 2003, defendant took his computer to a repair shop owned by Wells. Defendant asked Wells to repair his computer and to copy files from the hard drive so they could be loaded on defendant's new computer. Part of that process involved Wells copying files from defendant's computer onto his own computer in order to preserve those files in the event that there was a problem in restoring the files to defendant's computer. While copying the files to his computer, Wells came across a file with a name that Wells associated with gaming activities. Wells was uncertain whether defendant wanted the file copied to his new computer. Consequently, he opened the file and discovered multiple images of what appeared to be children engaged in sexual acts.

After defendant picked up his computer from Wells, Wells reported his discovery to his mother, who works for the Multnomah County Sheriff's Office. A few days later, Wells was contacted by a Multnomah County sheriff deputy who informed him that the report would be referred to the City of Portland Police Bureau. Wells heard nothing further until approximately two months later when he was contacted by Multnomah County Sheriff Deputy Biles. In the interim, Wells had decided to copy defendant's files that existed on his own computer. He transferred those files to a CD and then deleted them from his own computer.

When Biles contacted Wells, Wells offered to give the CD containing defendant's computer files to Biles. Biles took the CD and went back to his office, put the CD in his computer, viewed the images, and confirmed that the images depicted child pornography. The investigation was then determined to be within the jurisdiction of the Portland Police Bureau and transferred to that agency.

Andrews, a detective with the Portland Police Bureau, viewed the CD with defendant's files on it that had been made by Wells. The "gaming" file opened by Wells was determined to contain 287 pornographic images. Andrews also viewed another file entitled "Thumbs 31" belonging to defendant that was on the Wells CD and found more images of child pornography. Andrews then procured a search warrant for the search of defendant's residence. When the officers executing the search warrant contacted defendant, they had him read a written Miranda warning and defendant signed a consent form agreeing to speak with the officers. During the ensuing interview, defendant admitted that he knew that the images of child pornography existed on his computer but explained that the images had been put there by the person from whom he had bought the computer. While the interview was ongoing, the police seized a number of personal items including computers and computer files from defendant's residence and subsequently opened or viewed those computer files.

After defendant was charged, he initially moved to suppress the evidence that the police obtained from his computer files at his residence, arguing that the search warrant obtained by the police did not authorize a search of his computers and related electronic storage media. In a supplemental motion to suppress, he argued that the police impermissibly expanded Wells's private search of defendant's files by examining a copy of the files provided by Wells without a warrant. In a second supplemental motion, he contended that the initial copying of his computer files by Wells was done at the direction of law enforcement officials. Additionally, defendant filed a motion to controvert contents of the affidavit that the police had filed in support of their request for a search warrant, and he moved to suppress his statements that were made contemporaneously with the search of his residence.

The trial court, in a memorandum opinion and a supplemental memorandum of opinion, agreed with defendant's initial motion to suppress. It reasoned that the language in the warrant did not authorize the police to look at the images on the computers and disks seized from defendant's residence. According to the trial court, the warrant was supported by probable cause and authorized the search of defendant's residence for a list of items in the warrant and a seizure of those items but not a subsequent search or viewing of the contents of the seized items. It rejected defendant's argument that Wells was acting as an agent of the police. The court also granted defendant's supplemental motion to suppress evidence obtained as a result of the police viewing the file contained on the CD provided to them by Wells but only to the extent that their search exceeded the scope of the private search by Wells. The trial court also denied defendant's motions to controvert the evidence and to suppress the statements that he made to the detectives at the time the search warrant was executed.

Pursuant to its rulings, the court entered an order suppressing the evidence that police obtained through the search of items seized from defendant's residence and granting and denying in part the supplemental motion to suppress evidence that the "police obtained in connection with their review of the CD provided to them by computer repairman Ron Wells." The order also denied defendant's second supplemental motion to suppress, defendant's motion to controvert, and defendant's motion to suppress the statements that he had made to police. The state appealed. In its notice of appeal, the state stated, "State of Oregon, Plaintiff, hereby gives notice of appeal from the ORDER GRANTING DEFENDANT'S MOTIONS TO SUPPRESS[.]" Four days later, defendant filed a notice of cross-appeal appealing "to the extent [the order] denied portions of defendant's motion to suppress." Defendant also cross-appealed from other pretrial orders entered by the trial court. Approximately one year later, the state moved to dismiss its appeal, citing the following reasons:

"After careful evaluation of this appeal, and after consultation with the Multnomah County District Attorney's Office, the state has concluded that it would be more expeditious to reseize the challenged evidence by means of a search warrant, rather than to pursue this appeal of the trial court's order suppressing evidence obtained from defendant's computer."

Defendant thereafter continued to pursue his cross-appeal, making five assignments of error, three of which pertain to the trial court's rulings on the motions to suppress: (1) The trial court erred by denying defendant's motion to suppress the results of Bile's view of the CD provided by Wells; (2) The search warrant was the product of the prior unlawful search of the CD; and (3) The statements obtained from defendant were the product of an illegal search.

In Shaw, the court identified, for the first time, the circumstances under which appellate courts should elect to exercise their statutory discretion to review a defendant's cross-appeal under ORS 138.040. 338 Or. at 617, 113 P.3d 898. In other words, the court's holding in Shaw effectively defines the boundaries of our discretion to consider defendant's cross-appeal. The initial holding in Shaw is that the exercise of discretion under ORS 138.040 to review a defendant's cross-appeal should be exercised "only sparingly." Id. at 618, 113 P.3d 898.

The reasons for that limitation are two-fold, according to the Shaw court. First, a defendant, unlike the state, has a full opportunity to challenge any intermediate adverse trial court ruling if the defendant is convicted. If a defendant is acquitted, then any intermediate rulings become moot. Accordingly, a limitation on the exercise of discretion under ORS 138.040 of a defendant's cross-appeal promotes judicial economy at the appellate level, thereby negating the possibility of the expenditure of judicial time and resources on issues that will not arise unless the defendant is convicted. Id.

Second, a state's pretrial appeal necessarily prolongs the pendency of a criminal proceeding against a defendant and may in some cases result in the defendant remaining in custody during the pendency of the appeal. The consideration of a cross-appeal by this court, along with the state's appeal, together with the possibility of review by the Supreme Court, only adds to the delay of the defendant being brought to trial. In the Shaw court's...