State v. Ritchie
| Decision Date | 20 May 2009 |
| Docket Number | A129591.,CR0401509. |
| Citation | 208 P.3d 981,228 Or. App. 412 |
| Court | Oregon Court of Appeals |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Gregg Bryant RITCHIE, Defendant-Appellant. |
Kendra M. Matthews, Portland, argued the cause for appellant. With her on the briefs were Ransom Blackman LLP, and Marc C. Blackman.
Ryan P. Kahn, Assistant Attorney General, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kaye E. McDonald, Senior Assistant Attorney General.
Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.
Defendant appeals a judgment of conviction on 20 counts of encouraging child sexual abuse in the second degree. ORS 163.686. In support of his first and fourth assignments of error, defendant asserts that the trial court erred by denying his motions for a judgments of acquittal.1 Defendant first argues that the state did not elicit sufficient evidence to show that defendant knowingly possessed or controlled child pornography. In support of his fourth assignment of error, defendant argues that the state did not elicit sufficient evidence to establish venue as to Counts 11 through 20. We conclude that the evidence was insufficient to establish venue as to Counts 11 through 20, but that the evidence was sufficient to support convictions on the remaining counts.
We state the facts in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). Defendant had been an elementary school teacher in Clackamas County since 1999 and a resident of Clackamas County since 2001. In September 2004, during the course of an investigation at the school by the Clackamas County Sheriff's Department, defendant consented to a forensic examination of his personal computers.
Defendant owned two personal computers at that time: a desktop computer and a laptop computer. Defendant purchased the desktop computer in the summer of 2002 and purchased the laptop computer in the first few months of 2004. Defendant almost always had his laptop computer with him. It was set up to connect automatically to the Internet and to an instant-messaging service. It was connected to the instant-messaging service approximately 80 to 90 percent of the time during evening hours.
Defendant searched on the Internet for pictures of children under the age of 18 years old. The forensic examination showed that defendant had approximately 600 pornographic images on his desktop computer and approximately 500 pornographic images on his laptop computer. At least 75 percent of those images were pornographic images of children. The forensic examination also showed that defendant had sent and received files by instant messaging on the Internet. The names of those files exchanged by instant-messaging contained terms consistent with child pornography.
For each of the 20 counts charged in this case, the state introduced a specific image file recovered from defendant's computers by the forensic examination. Each of those files contained a photograph of sexually explicit conduct involving a child. Ten of those files were recovered from the desktop computer; the other 10 were recovered from the laptop computer. The files containing each of those 20 photographs had been deleted before the investigation at the school began in September 2004.
The state's computer expert described how data from deleted files could be recovered in a forensic examination. The expert noted that, when a computer file is created, the data contained in that file is recorded at a physical location on the hard drive. A master table keeps track of that physical location so that the computer is able to locate the data for later retrieval. When a file is deleted, the master table is modified to indicate that new data may be written in that same physical location. However, data contained at that physical location will remain there until and unless new data is recorded there. Although data may remain on the hard drive for some time after a file is deleted, a computer user cannot access data associated with a deleted file without specialized data recovery software. Accordingly, a forensic examination may recover data from deleted files that a typical computer user could not access.
The parties stipulated that defendant received the photographic files associated with Counts 1 through 4 on his desktop computer from another user through an Internet-based "chat room." The state's computer expert testified that a person has to confirm the acceptance of a file sent through the Internet in that manner. After receipt, those files were available for viewing on defendant's desktop computer. Those files were created and last accessed on that computer on July 7, 2002; the files were deleted that same day.
The parties stipulated that defendant received the photographic files associated with Counts 5 through 20 as a result of Web browsing. Each of those photographs was contained in a separate file that had been deleted from defendant's computers and that had been recovered through the forensic examination.
The state's computer expert explained how defendant's computer received those files and how those files may have been deleted. According to the expert, when a person browses the Internet and accesses a particular Web page, the computer automatically saves various files onto the hard drive as temporary Internet files. One of those files contains instructions for how the Web page should be displayed on the screen. Additional files contain each separate image that appears on that Web page.
Temporary Internet files may be deleted either intentionally by direct action of a computer user or automatically during normal operations of the computer. The state's computer expert could not ascertain whether the files associated with Counts 5 through 20 were deleted intentionally by defendant or by some automatic computer process.
The photographic files associated with Counts 5 through 10 were found on defendant's desktop computer. The forensic examination indicated that those files were created and last accessed on December 8, 2002. The state introduced an exhibit showing how those six photographs would have been displayed on two separate Web pages. Both of those pages were photo albums created on the same Web service and listed under the same username. Although it could not be determined whether either Web page was too large to fit on defendant's computer monitor, any photograph that did not fit on the monitor could be seen by scrolling on the Web page. Each photograph was displayed as a thumbnail-sized image, but each photograph could be enlarged by clicking on it. The state's computer expert testified that defendant had clicked on and enlarged the two photographs associated with Counts 8 and 9.
The photographic files associated with Counts 11 through 20 were found on defendant's laptop computer. The state's computer expert could not identify when those files were downloaded on the laptop computer. In addition, because laptop computers are mobile devices, the expert could not determine where the computer was located when those images were downloaded onto the laptop computer.
After the state presented its case in chief, defendant moved for judgments of acquittal on all counts. Defendant argued that he never knowingly possessed or controlled a tangible, visual recording of any prohibited image. In addition, defendant argued that the evidence was insufficient to establish venue in Clackamas County as to Counts 11 through 20, relating to the photographic files found on defendant's laptop computer. Defendant did not challenge venue as to Counts 1 through 10. The trial court denied defendant's motions, and defendant renews his arguments on appeal.
We review the trial court's denial of defendant's motions for a judgment of acquittal to "determine whether, viewing the evidence in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Cervantes, 319 Or. at 125, 873 P.2d 316.
In this instance, that offense has three elements: (1) that defendant knowingly possessed or controlled a prohibited visual recording; (2) that defendant did so for the purpose of sexual arousal; and (3) that defendant was aware of and consciously disregarded the fact that the creation of the image involved child abuse.
On appeal, defendant focuses on the first element, arguing that a person who views prohibited images on a computer monitor does not knowingly possess or control that image. Defendant argues that a person "controls" the prohibited visual recording only if that person "engages in a volitional act to save, download, print, or otherwise manipulate the data." Defendant further argues that having an ability to control a visual recording could not constitute "control" under the statute, because everyone has the ability to access every image that is publicly available on the...
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