State v. Ritchie

dissenting.

Today, the majority holds that a person who goes onto the Internet, purposefully searches out pictures of child pornography, and displays those pictures on a computer for as long as he or she wishes does not possess or control the pictures. Not only are the factual and legal premises on which the majority’s opinion rests suspect, but the majority’s decision fails to recognize that today’s iPhone is yesterday’s photograph. There is no difference between a person who uses his iPhone to pull an image of child pornography off the Internet and then passes that image, displayed on his iPhone, around for his friends to see and a person who passes a photograph of the same image to his friends. Both persons possess or control the image. The fact that the person has not saved the image to his iPhone does not mean that the person does not possess or control it. The majority errs in holding otherwise.

The relevant facts can be summarized briefly. Defendant taught music to elementary school children. As a result of an investigation involving one of defendant’s students, the Clackamas County Sheriffs office analyzed the contents of defendant’s laptop and home computers. *586Although defendant volunteered that the officers would find “no porn” on his computers, it turned out that defendant was overly optimistic. The forensic expert who analyzed defendant’s computers found approximately 600 pornographic images in the unallocated space on defendant’s home computer and approximately 500 pornographic images in the unallocated space on his laptop.1 Almost all of the 500 pornographic images on defendant’s laptop involved children, as did approximately 450 of the 600 pornographic images on defendant’s home computer.

The state charged defendant with 20 counts of encouraging child sexual abuse in the second degree, based on 10 of the 500 images of child pornography found on his laptop and on 10 of the 450 images of child pornography found on his home computer. See ORS 163.686(l)(a)(A)(i).2 To prove those charges, the state needed to establish that defendant (1) knowingly (2) possessed or controlled (3) a visual recording of sexually explicit conduct involving a child (4) for the purpose of arousing or satisfying his or someone else’s sexual desires and (5) that defendant knew, or was aware of and consciously disregarded the fact, that the creation of the visual recording involved child abuse. Id. In this case, there is no dispute that the trial court, sitting as the trier of fact, reasonably could find that each of the 20 images found on defendant’s computers was a visual recording of sexually explicit conduct involving children; that defendant knew that fact; that, if he possessed or controlled the images, he did so *587for the purpose of arousing or satisfying his own sexual desires; and that he knew that the creation of each visual recording involved child abuse. Given the volume and content of the images that the police found on defendant’s computers, defendant would be hard pressed to argue otherwise.

The majority concludes, however, that the evidence was not sufficient to permit a reasonable trier of fact to find one element of the offense — that defendant “possesse[d] or controlled]” the pictures of child pornography that he had sought out on the Internet. According to the majority, all that the evidence permitted the trial court to find was that defendant “viewed” child pornography, and that, the majority reasons, is no crime. At bottom, the majority’s opinion rests on the proposition that going onto the Internet and pulling up pictures of child pornography is no different from visiting a museum and viewing the paintings displayed there. In both situations, the majority reasons, the person views but does not possess or control the pictures.

I have no disagreement with the general proposition that a person does not possess or control every image that he or she sees. Nor do I disagree with the specific example that the majority uses — that a person who goes to a museum and views a painting does not possess or control the painting. The majority errs, however, in assuming that a computer user stands in the same position as a visitor to a museum. This case arises on defendant’s motion for a judgment of acquittal, and the question is whether the trier of fact reasonably could have inferred that defendant possessed or controlled the images that he sought out on the Internet and displayed on his computer screen.

On that point, the trier of fact reasonably could have found that, when a person uses a computer to display an image from an Internet website, the data is transferred from the website to the person’s computer. The person’s computer automatically saves a copy of the data from the website to a temporary Internet file on the computer, and the computer displays on the computer screen a graphic image of that data (whether text or a picture). Put in lay terms, the person’s computer copies the data from the website and uses that data to re-create on the person’s computer screen the image *588that exists (or existed) separately as data on the website’s server.3

A computer user is not passively viewing a picture as a museum patron does, or so the trier of fact could find.4 Rather, a computer user is free to search out and select the images that he or she wishes to display on the computer screen. The computer copies the data from the website and, using that copied data, recreates the image from the website on the user’s screen, giving a computer user the ability to keep that image on the screen as long as he or she wishes. And, when the computer displaying the image is portable, as an iPhone, iPad, or Droid is, then the user can take that displayed image with him or her, move the image from one place to another, and show it to others in different locations, all without ever saving the image to the user’s hard drive.5

In the same vein, if a computer user watches a child pornography video on the Internet, as one would watch a video on YouTube, the computer user can start the video, stop *589it, go back and look at a particularly interesting scene a second time, move forward through some activity that does not interest the user, or replay the video completely. It is difficult to see how the majority could say that the user does not “control” an Internet video, even though the data that allows the user to manipulate the video is maintained on the user’s computer in the same way as the data that gave rise to the pictures that defendant viewed in this case. Nor is it any answer to say that this case involves Internet photographs, not Internet videos. There is no difference in principle between an Internet video and Internet photographs. Control exists in both instances. It is simply more evident with a video.

Admittedly, the images from the Internet that are displayed on a computer screen (whether a photograph or a video) are not permanent, but we have never suggested that permanence is necessary to establish either possession or control. See State v. Fries, 344 Or 541, 546-47, 185 P3d 453 (2008) (observing that only momentary or fleeting contacts may be insufficient as a matter of law to establish control); cf. State v. Hall, 269 Or 63, 65-66, 68, 523 P2d 556 (1974) (a person who temporarily sat on a bag of marijuana when the police entered a room possessed the marijuana). It also may be true that a computer user does not have exclusive possession or control over images (whether photographs or movies) taken from the Internet. But, again, the court has never held that possession or control must be exclusive; rather, it has recognized that two persons may possess property jointly. See State v. Downing, 185 Or 689, 698, 205 P2d 141 (1949) (jury reasonably could infer that the defendant and his accomplice jointly possessed a stolen watch). And the fact that one person who jointly possesses property has the power to dispose of the property completely (as when a person with joint possession of a bank account spends all the money) does not mean that both persons did not have joint possession of the property while it existed.

Ultimately, the majority appears to acknowledge that analogizing a computer user to a museum visitor may not be completely accurate. It appears to recognize that, once a person accesses an image on the Internet, “the image in fact exists, in digital form, in the user’s computer.” 349 Or at 583 n 10. The majority reasons, however, that

*590“from the user’s point of view, the experience of viewing images on the web is not different from viewing images in a museum: The ordinary computer user speaks of visiting or ‘going to’ websites, and has no sense that web images are ‘in’ the user’s own computer until the user affirmatively saves them.”

Id. (emphasis in original).

The majority’s reasoning fails to distinguish two related but separate issues. It is certainly true that, on this record, no reasonable trier of fact could find that defendant knew why, as a technical matter, he was able to control the images of child pornography that he drew from the Internet and displayed on his computer screen.6 But there was ample evidence from which a reasonable trier of fact could find that defendant could and did control those images. More specifically, there was evidence from which a reasonable trier of fact could find that defendant had downloaded and played child pornography videos, that he had exchanged photographs of child pornography with others, that he had enlarged pornographic “thumbnail” images so that he could study the pictures depicted in the thumbnails more closely, and that he had maintained images of child pornography on his computer screen, at least long enough “for the purpose of arousing or satisfying [his own] sexual desires.” See ORS 163.686(l)(a)(A)(i) (stating one element of the offense).

Even if, as the majority reasons, the evidence was insufficient to permit the trier of fact to find that defendant knew why he could control the images he accessed, it was more than sufficient for a reasonable trier of fact to find that defendant could and did exercise control over those images. The level of control over the Internet images that defendant displayed on his computer screen made his relationship to those images markedly different from that of a person who goes, say, to the Brancacci Chapel so that he can view (from a distance) Masaccio’s frescos. Put differently, the factual *591premise on which the majority’s opinion rests — that defendant’s relationship to the images on his computer was the same as that of a museum patron to the paintings displayed there — is not the only inference that the trier of fact reasonably could have drawn.

Beyond that, the legal premise underlying the majority’s opinion is suspect. In analyzing what the statutory phrase “possesses or controls” means, the majority reasons that an alternative way of proving the crime of second-degree encouraging child sexual abuse demonstrates that a person who searches the Internet for child pornography and displays those images on his or her computer screen does not “posses[s] or contro[l]” the images. Specifically, the majority notes that a person may commit the crime of second-degree encouraging child sexual abuse in one of two ways. ORS 163.686 makes it a crime if, with the requisite mental state, a person either (1) “possesses or controls” a visual recording of child pornography or (2) “pays, exchanges or gives anything of value to obtain or view” a visual recording of child pornography. ORS 163.686(l)(a)(A)(i) and (ii).

Given those alternative ways of committing second-degree encouraging child sexual abuse, the majority reasons:

“Whatever ‘knowingly possess[ing] or controlfling]’ recordings of child sexual abuse might mean in subparagraph (l)(a)(A)(i), it involves something different than simply ‘obtaining]’ or ‘view[ing]’ digital images: The legislature clearly has chosen to criminalize the act of ‘view[ing]’ or ‘obtaining]’ visual recordings of sexually explicit conduct involving children under ORS 163.686(l)(a)(A)(ii) only if that act is accompanied by the payment, exchange, or giving of something ‘of value,’ an element that is not required under ORS 163.686(l)(a)(A)(i).”

State v. Barger, 349 Or 553, 561, 247 P3d 309 (2011) (emphasis and brackets in original).

Later in Barger, the majority recognizes that other jurisdictions have held that a person who searches the Internet for child pornography and displays those images on his or her computer possesses or controls those images. Id. at 567 n 13; see, e.g., People v. Josephitis, 914 NE2d 607, 616-17 (Ill App Ct 2009) (so holding); Commonwealth v. Diodoro, 970 A2d *5921100, 1108 (Pa 2009) (same); United States v. Kain, 589 F3d 945, 950 (8th Cir 2009) (same). The majority, however, reasons that those decisions have no persuasive value in interpreting the phrase “possesses or controls,” as used in ORS 163.686, because Oregon’s statutory scheme is different. Barger, 349 Or at 567 n 13. Returning to the contextual point it made earlier, the majority reasons that our statutes except “viewing” child pornography from the prohibition against possessing or controlling it, rendering Oregon’s prohibition narrower than superficially identical prohibitions found in other jurisdictions. Id. (explaining that “none of the cases [from other jurisdictions] involves statutes that effectively announce that ‘viewing’ child pornography is not, by itself, unlawful”).

The majority misperceives the statutory context that informs its understanding of the phrase “possesses or controls.” Subparagraph (ii) of ORS 163.686(l)(a)(A) provides that a person commits the crime of encouraging child sexual abuse in the second degree if the person “[k]nowingly pays, exchanges or gives anything of value to obtain or view * * * [a] visual recording of sexually explicit conduct involving a child * * *.” Textually, the act that the statute prohibits is “pay[ing], exchanging] or giving] anything of value” for a particular purpose. The crime is complete when a person pays to obtain or view child pornography, without regard to whether the person in fact ever obtains or views it. It is the payment, not the receipt of the bargained-for consideration, that subparagraph (ii) prohibits. Cf. ORS 167.007 (similarly providing that a person who pays to engage in sexual conduct commits the crime of prostitution without regard to whether that person ever gets the benefit of the bargain).

The fact that a would-be purchaser never obtains or views child pornography is immaterial to proving a violation of subparagraph (ii) of ORS 163.686(l)(a)(A). For that reason, the context on which the majority relies is equally immaterial to determining what the phrase “possesses or controls” means in subparagraph (i) of that statute. Were there any doubt about the matter, the majority’s conclusion reveals the difficulty with its interpretation. As noted, relying on the alternative method of proving second-degree encouraging child sexual abuse, the majority distinguishes cases from *593other jurisdictions (holding that behavior like defendant’s constitutes possession or control) by explaining that “none of th[os]e cases involve[d] statutes that effectively announce that ‘viewing’ child pornography is not, by itself, unlawful.” Barger, 349 Or at 567 n 13.

Subparagraph (ii), of course, makes it a crime to pay “to obtain or view” visual recordings of child pornography. ORS 163.686(l)(a)(A)(ii) (emphasis added). If the majority’s statutory interpretation were correct, then our statutes also would “effectively announce that [‘obtaining’] child pornography is not, by itself, unlawful.” However, “obtain” means “to gain or attain possession or disposal of usu. by some planned action or method.” Webster’s Third New Int’l Dictionary 1559 (unabridged ed 2002). Under the majority’s reasoning, obtaining — i.e., possessing — child pornography “is not, by itself, unlawful.” Not only is that conclusion antithetical to the rest of the statute, but it also demonstrates that the majority misreads the statutory context, from which it “particularly derive[s]” its understanding of the phrase “possesses or controls.” See 349 Or at 582-83 (so stating).

Properly interpreted, the prohibition against second-degree encouraging child sexual abuse is directed at two separate acts: (1) possessing or controlling visual recordings of child pornography and (2) paying, exchanging, or giving anything of value in order to obtain or view visual recordings of child pornography. The legislature intended to cast a broad net in prohibiting the abuse of children resulting from the creation and dissemination of child pornography. The majority errs in reading the legislature’s effort to reach a broader range of conduct (paying to obtain or view child pornography) as a way of narrowing a related but separate type of conduct (possessing or controlling child pornography) that the statute also prohibits. In sum, I disagree with both the factual and legal premises on which the majority’s holding rests. I would hold that the trial court and the Court of Appeals correctly interpreted the statutory prohibition against possessing or controlling child pornography.

The remaining question is whether a reasonable trier of fact could find that defendant possessed or controlled 10 of the approximately 450 images of child pornography *594recovered from his home computer and 10 of the approximately 500 images of child pornography recovered from his laptop. The 10 images from defendant’s home computer divide into three types: (1) four images received in a zip file; (2) four thumbnail images; and (3) two thumbnail images that defendant selected and enlarged.

Regarding the four zip file images, the trial court reasonably could find that another person sent defendant a zip file containing images of child pornography, that defendant received the file on his home computer, that he was aware that the zip file contained child pornography, and that he accepted the zip file. Given that evidence, I would hold that, in accepting the zip file, defendant exercised possession or control of both the file and its contents. In that respect, defendant’s receipt of the zip file was no different from a person who receives a package in the mail knowing its contents. That evidence was sufficient for a reasonable trier of fact to find that defendant possessed both the file and its contents.7

The four images contained on a thumbnail page present a more difficult issue, but not because of any question whether defendant possessed or controlled those images. Typically, a thumbnail page displays several rows of small pictures or thumbnails. The page functions much like a menu in a restaurant. It displays a series of offerings, only some of which a user may wish to select. If a user wants to see a larger image of a particular thumbnail, he or she can click on the thumbnail and cause a larger image to appear on the computer screen. For the reasons discussed above, I would hold that, when a computer user displays a thumbnail page on the computer, he or she possesses or controls all the images or thumbnails on the page.

To be sure, there may be factual questions regarding the computer user’s state of mind: A user may not act knowingly regarding every thumbnail that appears on a web page. *595And, if a user does not select and enlarge a particular thumbnail, then it may be that the user did not possess or control that thumbnail “for the purpose of arousing or satisfying the [user’s or someone else’s] sexual desires * * *[.]” See ORS 163.686(l)(a)(A)(i) (requiring proof of that state of mind). But those are questions for the trier of fact regarding defendant’s state of mind. They have no bearing on whether a reasonable trier of fact could find that defendant “possesse[d] or con-trolfied]” the thumbnail images that he displayed on the computer screen. As to that issue, I would hold that the evidence was sufficient to go to the trier of fact.

Regarding the remaining two images from defendant’s home computer, the evidence would permit a reasonable trier of fact to find that defendant selected two of the thumbnails so that he could see a larger image. For the reasons explained above, I would hold that defendant’s ability to manipulate and maintain those images on his computer screen constituted “control” within the meaning of ORS 163.686. Cf. State v. Blake, 348 Or 95, 102, 228 P3d 560 (2010) (explaining that “[t]he ability to manipulate a bank account using a computer is sufficient to constitute ‘dominion and control * * *.’ ”).

The 10 images found on defendant’s laptop present two issues. The first is whether a reasonable trier of fact could find that defendant possessed or controlled them. All 10 pictures were images that defendant purposefully retrieved from the Internet, or so a reasonable trier of fact could find, and I would hold for the reasons explained above that defendant possessed or controlled those images. The only remaining issue is whether a reasonable trier of fact could find that the state had established venue in Clackamas County.8

On that issue, the evidence at trial showed that defendant bought his laptop computer approximately six to eight months before the officers seized it. During that time, *596defendant lived and worked in Clackamas County. Defendant told the officers that he almost always kept his laptop with him and that, after he bought it, he hardly ever used his desktop computer at home. Finally, there is no evidence in this record that defendant ever left Clackamas County between the time that he purchased the laptop and the time that the officers seized it. Having considered that evidence, the Court of Appeals held that it was not sufficient to prove venue. The Court of Appeals reasoned that the fact that defendant lived and worked in Clackamas County was not sufficient to permit a reasonable trier of fact to find beyond a reasonable doubt that defendant used his laptop computer solely in Clackamas County to get access to the Internet. See State v. Ritchie, 228 Or App 412, 421-23, 208 P3d 981 (2009).

On review, the state argues that venue is not an element of an offense that the state has to prove beyond a reasonable doubt but that, even if it is, there was sufficient evidence from which the trial court could have found that defendant accessed all 10 images on his laptop while in Clackamas County. There is no need to reach the larger question that the state raises. In my view, the evidence was sufficient for a reasonable trier of fact to find that venue lay in Clackamas County.

Specifically, a reasonable trier of fact could find that, after defendant bought the laptop, he used that computer instead of his home computer; that is, that the laptop took the place of the computer that defendant had used exclusively at his home. A reasonable trier of fact also could find that, given the nature of the subject matter, it was unlikely that defendant would have used his laptop computer to access child pornography outside the privacy of his home or perhaps a motel (or some other private place) if he were travelling. There is, however, no evidence that defendant ever strayed outside of Clackamas County during the six to eight months that he owned the laptop, much less that he went to some secluded place outside of Clackamas County where he could have used his laptop to privately access child pornography. Given that evidence, a reasonable trier of fact could find that defendant accessed the Internet from his home in Clackamas County to search for the 10 images of child pornography that the officers later found on his laptop. See State v. Cervantes, 319 Or *597121, 125-26, 873 P2d 316 (1994) (inferring from circumstantial evidence that the crime at issue had occurred in Coos County).

Defendant argues, however, that he could have left Clackamas County while he owned the laptop, that he could have taken the laptop with him, that he could have found a private place somewhere outside the county, and that, while outside the county, he could have used his laptop to access child pornography on the Internet. Without any evidence that defendant ever left Clackamas County during the time that he owned the laptop and without any evidence that, even if defendant had left Clackamas County, he went to some secluded place where he could use his laptop to look for child pornography, defendant’s argument reduces to nothing more than speculation. But, even if a trier of fact reasonably could have drawn all the inferences that defendant urges, that is not the only reasonable inference that the trier of fact could draw on this record.

Beyond that, ORS 131.325 provides, in part, that, “[i]f an offense is committed within the state and it cannot readily be determined within which county the commission took place, * * * [the] trial may be held in the county in which the defendant resides * * Under that statute, even if one assumed that defendant might have gone to Multnomah, Lane, or Malheur County to access child pornography on his laptop, venue still would be appropriate in Clackamas County if it could not readily be determined which county defendant was in when he went on the Internet. Venue in Clackamas County would be defeated only if a trier of fact were willing to speculate that defendant had gone outside the state during the time he owned the laptop and accessed child pornography in some state other than Oregon. Without some evidence that defendant in fact left the state, it is difficult to see how a trier of fact reasonably could draw that inference. But, even if that were a permissible inference, nothing in this record compels it. In my view, the Court of Appeals erred in holding that the state had failed to establish venue in Clackamas County.

I would uphold the trial court’s rulings both as to venue and as to possession or control. Accordingly, I would *598affirm all defendant’s convictions and respectfully dissent from the majority’s contrary holding.