S057701, Opinion — State v. Ritchie

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Argued and submitted September 14, 2010, decision of Court of Appeals affirmed
in part and reversed in part; judgment of circuit court reversed, and case remanded
to circuit court with instructions to enter a judgment of acquittal January 6, 2011

STATE OF OREGON,
Petitioner on Review /
Cross-Respondent on Review,
v.
GREGG BRYANT RITCHIE,
Respondent on Review /
Cross-Petitioner on Review.
(CC CR0401509; CA A129591;
SC S057701 (Control), S057705)
(Consolidated)
248 P3d 405

CJS, Infants § 5.

On review from the Court of Appeals .*

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Ryan Kahn, Assistant Attorney General, Salem, argued
the cause and filed the briefs for petitioner on review/cross-
respondent on review. With him on the briefs were John R.
Kroger, Attorney General, David B. Thompson, Interim
Solicitor General, and Erika L. Hadlock, Senior Assistant
Attorney General.

Kendra M. Matthews, Ransom Blackman LLP, Portland,
argued the cause and filed the briefs for respondent on
review/cross-petitioner on review. With her on the briefs was
Marc D. Blackman.

Before De Muniz, C. J., and Durham, Balmer, Kistler,
Walters, and Linder, JJ., and Gillette, J. pro tempore .**

GILLETTE, J. pro tempore

The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court with
instructions to enter a judgment of acquittal.

De Muniz, C. J., concurred and filed an opinion.

Kistler, J., dissented and filed an opinion, in which
Linder, J., joined.

** Landau, J., did not participate in the consideration or decision of this case.

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# GILLETTE, J. pro tempore

This case is a companion to State v. Barger, 349 Or
553, 247 P3d 309 (2011). Like the defendant in Barger, defen-
dant was convicted of multiple (in defendant's case, 20)
counts of Encouraging Child Abuse in the Second Degree,
ORS 163.686, based on the presence of sexually explicit digi-
tal images of children on the hard drives of his computers.
Defendant appealed, arguing, among other things, that the
state had failed to prove that he "possesse[d] or control[led]"
any of the images within the meaning of the Encouraging
Child Abuse statute,1 and that it also had failed to prove
venue with respect to some of the charges. The Court of
Appeals rejected defendant's argument with respect to the
"possess[ion] or control[ ]" element of the charges, but agreed
that the state had failed to prove venue with respect to 10 of
the counts-Counts 11 through 20. The court therefore
reversed defendant's convictions on Counts 11 through 20
and otherwise affirmed. State v. Ritchie, 228 Or App 412,
423, 208 P3d 981 (2009). Defendant and the state both peti-
tioned for review by this court and we allowed both petitions.
On review, we hold that, in view of the disposition that we
make today, we need not-and do not-decide whether the
evidence presented by the state was sufficient to allow a
rational trier of fact to conclude that the conduct at issue
occurred in the county where defendant was tried. Rather,
we hold that the evidence presented by the state was insuffi-
cient to allow a rational trier of fact to conclude that defen-
dant "possesse[d] or control[led]" any of the images at issue
(including those associated with the counts for which venue
was an issue), within the meaning of the relevant section of
ORS 163.686.2

1 The relevant part of ORS 163.686 provides:

"(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 pic-
ture, 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[.]"

2 Defendant also raises several constitutional challenges to his convictions: He
argues that, on its face, ORS 163.686 violates Article I, section 8, of the Oregon

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In September 2004, while defendant was working as
a music teacher in an elementary school in Clackamas
County, officers from the Clackamas County Sheriff's
Department went to the school to interview him about a
report involving a former student. In the course of the inter-
view, defendant consented to a forensic examination of both
his laptop computer, which he had with him at the school,
and his desktop computer, which he kept in his home. Defen-
dant turned over his laptop to the officers on the spot and
gave the officers permission to enter his home and take the
desktop computer.3

A police computer specialist, White, examined the
desktop computer and discovered 600 pornographic images,
most of which were of children, in unallocated space4 on the
computer's hard drive. White repeated the procedure with
the laptop and found about 500 pornographic images, again
primarily of children, in unallocated space in that computer's
hard drive. Virtually all of the images that White discovered
were accessible only by means of special data recovery soft-
ware that forensics experts like White used, but that was not
commonly used by ordinary computer users.

The state subsequently charged defendant in
Clackamas County Circuit Court with 20 counts of
Encouraging Child Sexual Abuse in the Second Degree by
"possess[ing] and control[ling] a photograph of sexually
explicit conduct involving a child." Counts 1 through 10 were
based on 10 sexually explicit digital images of young boys
that had been recovered from unallocated space on the desk-
top computer's hard drive, and Counts 11 through 20 were
based on 10 similar digital images that had been recovered
from unallocated space on the laptop's hard drive.

Constitution and that the Ex Post Facto Clauses of the Oregon and United States
constitutions preclude prosecutions under ORS 163.686 when the digital images of
child sexual abuse that are involved depict abuse that occurred before the effective
date of the statute. In light of our disposition of this case, we need not address those
issues.

3 As the case comes to this court, there is no issue concerning either the validity
of defendant's consent or the lawfulness of the subsequent examination of the two
computers by the police.

4 The meaning of the term "unallocated space" is described below, 349 Or at
577.

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Defendant waived his right to a jury trial and the
case was tried to the court. The state's primary witness was
White. White described his examination of defendant's lap-
top and desktop computers and his discovery of the images
that formed the basis of the charges in "unallocated space" in
the computers' hard drives. He explained that "unallocated"
space "is basically clusters on the hard drive that may or may
not have information written to them. If there's information
written there, it is * * * a file that was deleted." White then
described the process by which deleted files are retained in
unallocated space-that, when a "file"5 is created, the oper-
ating system "allocates" the file to a certain location in the
hard drive, that a master file table keeps track of that loca-
tion, and that, when a file is deleted, the data in the file
remains in the physical location that originally was allocated,
but the master file table is altered to indicate that that loca-
tion now is "unallocated," i.e., available to be overwritten by
new files. Finally, White explained that, although files in
unallocated space generally are not available to a user
through ordinary means, they can be recovered with special
forensic software like the software that he had used.

White then went on to describe some of the charac-
teristics of the images that he had discovered on the two hard
drives, and how he was able to tell that certain of the images
had been sent to defendant's computer by another user while
others may have come to the computer from ordinary Internet
sites. At some point, the parties announced that they would
stipulate that four of the images-those associated with
Counts 1, 2, 3, and 4-had been sent to defendant's desktop
computer in a "zipped folder"6 through an Internet chat room

5 White's testimony was in terms of "files," and we therefore report it that way.
But the testimony was, in a sense, abstract: The state's theory of the case was (and
has continued throughout to be) that defendant "possessed or controlled" the
20 digital images in question by displaying them on his computer screen, not by
having one or more "files" of the images in his computers. A case in which the state
asserted that defendant illegally possessed or controlled forbidden digital images
by having files of them on his computer that he could potentially access would raise
different interpretive problems under ORS 163.686 than those that we address
today.

6 A "zipped" file or folder is one that contains data that has been compressed
using a mathematical algorithm. The "zipping" process renders the material in the
file unreadable until the file is "unzipped" by the recipient. The value of a zipped
file or folder is that it can be transmitted from one computer to another more
quickly.

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by another chat room user, "rasputinlives978," and that,
when the folder reached defendant's desktop computer, the
folder was unzipped in some manner, so that the images
within were available for viewing. The parties were not will-
ing to stipulate as to whether the unzipping was an inten-
tional act by defendant or an automatic function of the chat
room program. White could not determine whether anyone
had ever used defendant's desktop computer to view the
images in that folder. (That was important because, as noted
elsewhere, the state's theory of the case was that defendant
had possessed or controlled the digital images in Counts 1
through 4 by displaying them on a computer screen.)

White then testified to some additional matters that
were relevant to the parties' "chat room" stipulation. He tes-
tified that the folder at issue was sent to defendant's desktop
computer at 9:24 p.m. on July 7, 2002, and was deleted by
midnight of the same day. He also testified that, to receive a
zipped folder offered by another Internet chat room user, a
computer user generally must affirmatively accept the folder
or file. White also produced data collected from defendant's
desktop showing that, in September 2002, defendant's laptop
had received a file entitled "youngyoungboys.mpg" by instant
messaging in an apparent swap for another file entitled
"13suckbrother.jpg." Finally, White produced fragments of
online "chat" found in unallocated space on defendant's desk-
top computer, which suggested that defendant had solicited
and received child pornography from other chat room users.
In one of those fragments, someone using one of defendant's
acknowledged screen names appeared to be responding
favorably to material that a user had shared with him ("I'm
taking off my clothes for this one"). In another fragment, a
person using one of defendant's screen names appeared to be
inquiring about how to obtain videos ("u have videos?") that
had been mentioned.

The parties also announced that they had entered
into a stipulation concerning the digital images taken from
the desktop computer that corresponded to Counts 5 through
10 and the images taken from the laptop computer that cor-
responded to Counts 11 through 20. Specifically, they stipu-
lated that all those digital images were the product of "web
browsing," i.e., searching the Internet. White also provided

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technological background evidence that was relevant to that
stipulation. He explained how files accessed through web
browsing might end up in unallocated space: that, when a
computer user accesses a web page, the browser creates a
copy of the page and stores it in a temporary Internet file
cache; that the next time the user calls up the same web page,
the browser pulls up the copy from the temporary Internet
file cache, rather than accessing and downloading the same
information from the web page; that files held in the tempo-
rary Internet file cache may be deleted from the cache in a
number of ways, some of which occur automatically and some
of which require intentional action by a computer user; and
that files that are deleted from the temporary Internet file
cache remain in unallocated space unless and until they are
overwritten by a new file.

In his testimony, White acknowledged that there
was no way of knowing, with respect to any of the files asso-
ciated with Counts 5 through 20, whether the files had been
deleted from the temporary Internet file cache intentionally
or by some automatic process. He suggested, however, that
the temporary Internet file cache appeared to have been
emptied or cleaned more thoroughly and more often than
would have occurred by purely automatic processes.

Because of the limitations of his forensic software,
White was not able to provide further detail about when and
from what website the images associated with Counts 11
through 20 (which had been found on defendant's laptop) had
been accessed. He was able, however, to provide a more
detailed analysis of the six image files associated with
Counts 5 through 10, which had been discovered in unallo-
cated space on defendant's desktop computer. White testified
that, insofar as his forensic software enabled him to see at
least some dates, file names, and path histories associated
with those images, he could determine that all six of the
images came from a "photo album" on a single website, that
they initially had appeared on the desktop computer's screen
as a series of "thumbnail" images,7 that they had been

7 "Thumbnail" images are small images that usually are presented in groups.
Larger versions of the thumbnails may be obtained by clicking on the thumbnail
images.

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accessed under one of defendant's user names on December 8,
2002, and that the user had "clicked" on the thumbnail
images to enlarge them, but had not printed, saved, or taken
other actions concerning them.

After White completed his testimony, defendant
moved for a judgment of acquittal on all counts, arguing that
there was no evidence that he had knowingly "possessed or
controlled" the images at issue within the meaning of ORS
163.686(1)(a)(A)(i). Defendant also moved for a judgment of
acquittal on Counts 11 through 20, i.e., the counts associated
with images found on defendant's laptop, on the ground that
the evidence would not support, beyond a reasonable doubt, a
finding that those crimes had been committed in Clackamas
County. The trial court denied defendant's motions and, after
hearing the remaining evidence, found defendant guilty on
all 20 counts.

On defendant's appeal, the Court of Appeals
affirmed in part and reversed in part. The court opined that,
for purposes of ORS 163.686(1)(a)(A)(i), a person "controls" a
visual recording when the person "discovers the presence of
that recording on the Internet and causes that recording to
appear on a specific computer monitor." 228 Or App at 419.
The court concluded that there was sufficient evidence in the
record to demonstrate that defendant exercised control in
that sense over the images associated with Counts 1 through
10, and affirmed the trial court's findings of guilt with respect
to those counts. Id. at 419-20. The court then addressed
defendant's venue argument, which related to the images
discovered on defendant's laptop computer (Counts 11-20). It
concluded that the state was required to prove venue beyond
a reasonable doubt and that the state's evidence-that defen-
dant's home and work were located in Clackamas County,
that he had broadband Internet access in his home, and that
he generally was logged on to instant-messaging services
when at home-was insufficient to support a finding, beyond
a reasonable doubt, that defendant and his laptop were in
Clackamas County when he downloaded, viewed, and
deleted those images. Accordingly, the court reversed defen-
dant's convictions on Counts 11 through 20. Id. at 420-23.

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As noted, both the state and defendant petitioned for
review, and we allowed both petitions. As it turns out, how-
ever, we need not address the Court of Appeals holding
respecting venue, and we express no opinion concerning it.
We turn directly to questions about defendant's "possess[ion]
or control[ ]" of the images in question.

As noted, the Court of Appeals held that defendant
"controlled" the visual recordings of child sexual abuse that
were discovered on his desktop computer, within the mean-
ing of ORS 163.686(1)(a)(A)(i), by "discover[ing] the presence
of [such] recording[s] on the Internet and caus[ing them] to
appear on a specific computer monitor." 228 Or App at 419.8
Defendant contends that, contrary to the Court of Appeals'
logic, one cannot "knowingly control" an Internet image in
that manner, because the act of "discovering" the image and
"causing [it] to appear" are simultaneous. Defendant argues
that the Court of Appeals is applying the statutory concept of
"possess[ion] or control[ ]" to the mere viewing of child por-
nography on the Internet, and that the legislature did not
intend, when it enacted ORS 163.686, to criminalize mere
viewing of such images.

The state responds that a rational trier of fact could
conclude from the evidence that defendant "possessed or con-
trolled" each of the images associated with the 20 charges.
The state argues that, when a person opens a web page and
displays images on that page on his or her own computer
screen, the person possesses or controls the images that
appear on his screen in the course of such browsing in a vari-
ety of senses-he physically possesses them insofar as he can
move the computer screen and control the way the images
are displayed; he constructively possesses them insofar as he
has the latent ability to save, forward, or otherwise manipu-
late them; and he actually controls them by bringing them to
his computer screen in the first instance. The state argues, in
a nearly identical vein that, when a person accepts a zipped
folder sent to him or her through a chat room and, by infer-
ence, displays the images contained therein on his or her
computer, he or she "possesses or controls" the images in the
same three senses-by physically controlling the way they

8 The full text of ORS 161.686(1)(a)(A)(i) is set out above, 349 Or at 575 n 1.

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are displayed, by having a latent ability to manipulate them,
and by accepting and, thus, actually controlling the transfer.9

In Barger, 349 Or 553, we addressed the same expla-
nations for why a user "possesses or controls" any image
accessed in the course of web browsing. In Barger, the defen-
dant was charged with "knowingly possess[ing] or con-
trol[ling]" eight images of child sexual abuse that were dis-
covered in his computer's temporary Internet file cache. The
evidence indicated that the images were the product of the
defendant's web browsing, but there was no evidence that he
had printed, saved, forwarded, or in any other way done any-
thing beyond accessing the images (and, by inference, looking
at them). The case thus posed the following question: "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?" 349
Or at 558.

This court ultimately answered that question in the
negative. We concluded that the theories of possession and
control that the state had offered, which are identical to the
ones that the state asserts here, were either illogical in and of
themselves or inconsistent with what, in our judgment, the
legislature intended by the statutory phrase "possesses or
controls." Id. at 562-66. We particularly derived our conclu-
sions about the intended meaning of the phrase "possesses
or controls" from contextual evidence showing that the legis-

9 Before this court, the state observes generally that the crime of Encouraging
Child Sexual Abuse under ORS 163.686(1)(a)(A)(i) also can be proved by showing
that the defendant understands that files containing sexually explicit images con-
tinue to be stored in temporary Internet files or in unallocated space in his or her
computer. The state at the same time expressly states that it is not pursuing that
"storage" theory on review in this case-in spite of the fact that the trial court
alluded to that theory when it denied defendant's motion for a judgment of acquit-
tal. We assume that the state is not pursuing that theory here because there is no
evidence in the record to support it: The images that are associated with all of the
charges were discovered in unallocated space on defendant's computers and there
was no evidence presented that suggested that defendant knew or had reason to
believe that the digital images might be retained there (although there was evi-
dence that defendant knew or suspected that the digital images might be retained
in the temporary Internet file cache).

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lature did not intend to criminalize the mere viewing of child
pornography.1º We also were persuaded by certain cases-
notably State v. Casey, 346 Or 54, 203 P3d 202 (2009), State v.
Daniels, 348 Or 513, 234 P3d 976 (2010), and State v. Weller,
263 Or 132, 501 P2d 794 (1972) that discussed
common-law notions of physical and constructive possession
and the relevant statutory definition of the term "possess,"
which incorporates those common-law notions. Because
those cases indicate that a person's constructive possession of
a thing (i.e., his or her dominion or control over it) cannot be
established merely by showing that the person has a practi-
cal ability to manipulate or direct the item, we concluded that
something more than a latent ability to save, e-mail, or other-
wise manipulate a digital image that appears on a computer
user's screen is required to "possess[ ] or control[ ]" the image
within the meaning of ORS 163.686(1)(a)(A)(i). Barger, 349
Or at 562-66.

10 The dissent contends that Barger is incorrect insofar as it treats the act of
accessing and "viewing" digitalized images drawn from the web as similar to an act
of viewing art in a museum. The dissent argues, in that regard, that images dis-
played on a computer screen are portable (because a person who has called up an
image from a website can move the image from one place to another by moving his
or her computer) and controllable (as, for example, when a person replays a specific
part of an online video, or skips over uninteresting parts) in a way that art in a
museum is not. That argument is unpersuasive for two reasons: First, it depends
on the proposition that a mere unexercised ability to move or otherwise physically
manipulate something is sufficient to establish possession or control-a proposi-
tion that we rejected in Barger. 349 Or at 565. Second, it ignores the fact that our
holding in Barger was premised on the absence of any evidence that the defendant
there had done anything other than call the images up to his computer screen. If
there had been evidence that defendant had, for example, gone back and looked at
particular scenes in a video, etc., or that he had passed around his computer screen
while an image of child pornography was displayed on the screen, we would have
faced a different interpretive task.

The dissent also finds significance in the facts that images accessed through
web browsing involve an actual transfer of data from a website to a person's com-
puter and the automatic saving in a temporary Internet file of a copy of the data on
the person's computer. The dissent suggests that that fact makes an analogy to
ordinary viewing (as of pictures in a museum) inapt, because the image in fact
exists, in digital form, in the user's computer. But what the dissent fails to
acknowledge is that, 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 com-
puter 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.
The computer user's vision of what is happening when he or she is web browsing is
relevant, of course, because the statute criminalizes "knowing possession and con-
trol" of child pornography.

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Barger appears to control our disposition of the pres-
ent case. It rejects the state's central idea-that, to the extent
that a digitalized image is displayed on a computer screen
and, presumably, is viewed by the computer's user, the com-
puter user "possesses or controls" the image.

That is not to say that the facts in the present case
are identical in every way to the facts in Barger. For example,
in Barger, there was no evidence that the defendant had
taken any intentional action with respect to the images at
issue after they appeared on his computer screen; the only
inference that could be drawn from the evidence was that the
defendant had at some point viewed the images. In the pres-
ent case, however, there is evidence indicating that defen-
dant enlarged the two images involved in Counts 8 and 9
after he initially accessed the website where they were dis-
played, and there also is evidence that might support an
inference that defendant attempted to remove all traces of
the images from his computer's hard drive. Moreover, while
the images in Barger all had been obtained through web
browsing, it appears that certain of the images in the present
case came to defendant's computer from a different source.
Those images-which are associated with Counts 1 through
4-apparently were transferred to defendant's desktop com-
puter through an instant messaging service by another user
of the messaging service.

But the state chose not to make a separate issue out
of those factual differences. In the proceedings below and
before this court, it has never suggested that Counts 1
through 4, or Counts 8 and 9, should be analyzed any differ-
ently than the other counts. With regard to all 20 counts, the
state's position has been no different than its position in
Barger-that defendant "possess[ed] or control[led]" the
image at issue as long as the image appeared on his computer
screen, because he could change the location where the image
was displayed, because he had the capacity to save, forward,
and manipulate it, and because he controlled it, in the
first instance, by taking affirmative steps to bring it to his
screen.11 We rejected those arguments in Barger and, apply-
ing Barger, we reject them here as well. We conclude, in

11 In fact, it appears that the state's primary concern in the trial court was
with convincing the court that it was possible to infer from other evidence that

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short, that the evidence presented at trial, with respect to all
20 counts, was insufficient to support a finding of possession
or control under any theory of possession or control that the
state has urged in this proceeding.

The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court with
instructions to enter a judgment of acquittal.

DE MUNIZ, C. J., concurring.

For the reasons expressed in my concurring opinion
in State v. Barger, 349 Or 553, 567, 247 P3d 309 (2011), I
agree with the majority's conclusion in this case.

KISTLER, J., 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 pic-
tures. Not only are the factual and legal premises on which
the majority's opinion rests suspect, but the majority's deci-
sion fails to recognize that today's iPhone is yesterday's pho-
tograph. 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 Sheriff's office analyzed
the contents of defendant's laptop and home computers.

defendant had actually opened and viewed the images associated with Counts 1
through 4, which had been sent to defendant in a zipped folder through an Internet
chat room. The state had to persuade the trial court that such an inference was per-
missible in order to prevail on those counts under the theory of possession and con-
trol that it was advancing.

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Although 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 defen-
dant's computers found approximately 600 pornographic
images in the unallocated space on defendant's home com-
puter and approximately 500 pornographic images in the
unallocated space on his laptop.1 Almost all of the 500 por-
nographic 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 lap-
top and on 10 of the 450 images of child pornography found
on his home computer. See ORS 163.686(1)(a)(A)(i).2 To prove
those charges, the state needed to establish that defendant
(1) knowingly (2) possessed or controlled (3) a visual record-
ing 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

' As this court explained in State v. Bray, 342 Or 711, 715 n 3, 160 P3d 983
(2007), a hard drive contains both allocated and unallocated space. Allocated space
contains data that has been saved to the hard drive. Id. When files are deleted from
the allocated space, the deleted files remain on the unallocated space on the com-
puter's hard drive and, depending on whether the computer later writes over that
data, can be recovered. Id.

2 ORS 163.686(1) provides, in part:

"A person commits the crime of encouraging child sexual abuse in the sec-
ond degree if the person:

"(a)(A)(i) Knowingly possesses or controls any photograph, motion pic-
ture, 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[.]"

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for 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 con-
tent of the images that the police found on defendant's com-
puters, 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
control[led]" 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 defen-
dant "viewed" child pornography, and that, the majority rea-
sons, 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

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that 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

3 The state's expert did not explain whether, when a computer user first
accesses the Internet, the image displayed on the screen reflects data stored in the
computer's temporary memory or whether the image reflects the data saved to a
temporary Internet file on the computer's hard drive. For the purposes of this case,
the difference is irrelevant. In both circumstances, the image displayed on the com-
puter screen exists as a result of data maintained in the computer separately from
the data available on the Internet.

4 Possession involves the question of a person's relation to an object, which
ordinarily is determined both by legal definitions of property and societal conven-
tions. See State v. Casey, 346 Or 54, 61, 203 P3d 202 (2009) (considering the usual
relationship between a homeowner and a guest in determining whether the home-
owner constructively possessed property that the guest temporarily left in the
house). In a museum, not only does the museum have exclusive possession of the
objects displayed there, but a visitor to a museum typically is governed by a set of
rules that strictly limit the visitor's ability to do anything other than passively view
the objects on display. Put differently, the analogy on which the majority's opinion
rests is not an apt one.

" The portability of an iPhone, iPad, or Droid simply illustrates the control that
a computer user possesses over an Internet image displayed on a computer screen.
The control arises from the fact, which the trier of fact could have inferred from this
record, that the data generating the image is copied to and resides independently
in the user's computer. Maintaining an image on the screen, as in the example,
does not evidence a greater degree of control than exists when a person calls the
image to the screen in the first place. In both situations, the image remains on the
screen until the person chooses to navigate away from the web page.

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it, go back and look at a particularly interesting scene a sec-
ond 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 "con-
trol" an Internet video, even though the data that allows the
user to manipulate the video is maintained on the user's com-
puter in the same way as the data that gave rise to the pic-
tures 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 per-
son 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 posses-
sion 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 per-
son who jointly possesses property has the power to dispose of
the property completely (as when a person with joint posses-
sion of a bank account spends all the money) does not mean
that both persons did not have joint possession of the prop-
erty 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

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"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 specifi-
cally, 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 porno-
graphic "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 com-
puter screen, at least long enough "for the purpose of arous-
ing or satisfying [his own] sexual desires." See ORS
163.686(1)(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

6 As the majority notes, the record is not sufficient to permit a reasonable trier
of fact to find that defendant knew that his computer saved every web page that he
visited to a temporary Internet file and maintained those saved files in the allo-
cated space on his computer until those files were either manually or automatically
deleted. But that proposition matters only if possession or control is limited to
saved files.

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premise on which the majority's opinion rests-that defen-
dant'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 reason-
ably 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 "pos-
ses[s] or contro[l]" the images. Specifically, the majority notes
that a person may commit the crime of second-degree encour-
aging 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 pornogra-
phy. ORS 163.686(1)(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 control[ling]' record-
ings of child sexual abuse might mean in subparagraph
(1)(a)(A)(i), it involves something different than simply
'obtain[ing]' or 'view[ing]' digital images: The legislature
clearly has chosen to criminalize the act of 'view[ing]' or
'obtain[ing]' visual recordings of sexually explicit conduct
involving children under ORS 163.686(1)(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(1)(a)(A)(i)."

State v. Barger, 349 Or 553, 561, 247 P3d 309 (2011) (empha-
sis 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

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1100, 1108 (Pa 2009) (same); United States v. Kain, 589 F3d
945, 950 (8th Cir 2009) (same). The majority, however, rea-
sons that those decisions have no persuasive value in inter-
preting 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 con-
trols." Subparagraph (ii) of ORS 163.686(1)(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], exchang[ing] or giv[ing] 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(1)(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

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other 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(1)(a)(A)(ii) (emphasis added). If the majority's
statutory interpretation were correct, then our statutes also
would "effectively announce that ['obtaining'] child pornog-
raphy 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 antithet-
ical 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 "pos-
sesses 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 record-
ings of child pornography and (2) paying, exchanging, or giv-
ing anything of value in order to obtain or view visual record-
ings 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 por-
nography) 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

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recovered from his home computer and 10 of the approxi-
mately 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 defen-
dant 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 per-
son 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 .?

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 know-
ingly regarding every thumbnail that appears on a web page.

7 To be sure, the state's expert was not able to say whether defendant purpose-
fully opened the zip file or whether defendant's software did so automatically. The
state's expert was also not able to say whether, assuming that the file contained
70 images of child pornography, defendant would have in fact looked at all of them.
But both those factual issues are immaterial to whether defendant possessed or
controlled the file once he received it.

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And, if a user does not select and enlarge a particular thumb-
nail, 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(1)(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-
trol[led]" the thumbnail images that he displayed on the com-
puter 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 defen-
dant's home computer, the evidence would permit a reason-
able trier of fact to find that defendant selected two of the
thumbnails so that he could see a larger image. For the rea-
sons 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,

8 Given the majority's holding that defendant did not possess or control these
images, the majority does not reach the question whether the evidence is also
insufficient to find venue. Because I would hold that the evidence was sufficient to
find possession or control, it is necessary to reach venue.

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defendant lived and worked in Clackamas County. Defen-
dant 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 ele-
ment 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 ques-
tion that the state raises. In my view, the evidence was suf-
ficient 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 defen-
dant would have used his laptop computer to access child por-
nography 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 offi-
cers later found on his laptop. See State v. Cervantes, 319 Or

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121, 125-26, 873 P2d 316 (1994) (inferring from circumstan-
tial 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

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affirm all defendant's convictions and respectfully dissent
from the majority's contrary holding.

Linder, J., joins in this dissenting opinion.