State v. Pugh

297 P.3d 27, 255 Or. App. 357, 2013 WL 638935, 2013 Ore. App. LEXIS 186
CourtCourt of Appeals of Oregon
DecidedFebruary 21, 2013
Docket081191; A148574
StatusPublished
Cited by5 cases

This text of 297 P.3d 27 (State v. Pugh) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pugh, 297 P.3d 27, 255 Or. App. 357, 2013 WL 638935, 2013 Ore. App. LEXIS 186 (Or. Ct. App. 2013).

Opinion

NAKAMOTO, J.

Defendant was convicted on 18 counts of first-degree encouraging child sexual abuse, ORS 163.684 (2001).1 He appeals the trial court’s denial of his motions for a judgment of acquittal based on the state’s failure to prove that he knowingly duplicated an image of sexually explicit conduct involving a child and the state’s failure to prove venue. For the reasons explained below, we affirm.

In reviewing a denial of a motion for judgment of acquittal, we view the facts in the light most favorable to the state to determine whether a rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Hall, 327 Or 568, 570, 966 P2d 208 (1998). After receiving a tip from the United States Postal Service, special agents Hicks and Persons traveled to defendant’s home in Clatsop County2 in 2007 to interview him about his Internet activities. When the special agents entered defendant’s home, they noticed that defendant’s desktop computer was hooked up to a monitor in the middle of the living room and was connected to the Internet through a dial-up connection. During the interview, defendant revealed that “viewing pornography was something he did often [,]” and that “he had seen child pornography on the Internet,” but “he did not actively seek out child porn.” He adamantly denied any interest in or possession of child pornography. Defendant consented to the special agents taking and searching his home computer.

During the forensic examination of defendant’s computer, Hicks identified 58 images that he believed to be child pornography, 18 of which were used to charge defendant with first-degree encouraging child sexual abuse, [359]*359ORS 163.684. At trial, Hicks and Persons testified to the facts recounted above. The state introduced evidence that defendant downloaded the images onto his computer by saving images he saw over the Internet into specific folders on the hard drive in his computer. For example, some of the images were located in folders labeled ‘Young,” “Underage Home main page_files,” and ‘Young Models Photos, Videos.” The state also produced evidence that the images were downloaded between 2002 and 2005, that defendant lived in the same home in Clatsop County for at least 10 years, and that he worked for the same company in Clatsop County for almost 27 years.

Persons explained that downloading an image is similar to physically copying the image with a copying machine.

‘You can go on-—-you can save a copy of that picture or of that document to your computer, which is no different than if you took that picture, went to a copy machine, copied it, and now you have two copies.
“So when you’re downloading, I may see a picture of this TV stand that I like, and I download that picture to my computer desktop so I can save that. But the picture of that computer TV stand still resides out in the Internet for the next person to come and copy and for the next person to come and copy.”

Hicks supported Persons’s explanation of downloading. During his testimony, he stated that saving an image obtained from the Internet is like duplicating a photograph “because the image on the Internet still exists, and still is being duplicated over and over and over throughout the world.” He also testified that, if someone has saved a photograph of a child being sexually abused in a folder on a computer, that is an action “you have to make happen.”

After the state rested its case, defendant moved for a judgment of acquittal on two grounds: insufficiency of evidence and venue. Concerning the insufficiency of evidence, defendant argued that the state failed to prove that he “duplicated” images depicting the sexual abuse of children as the indictment required. Rather, defendant asserted that the state proved that he “downloaded” images [360]*360and “downloading is neither production nor distribution.” As to venue, defendant argued that the state failed to prove that he downloaded the images in Clatsop County. Although there was evidence that defendant worked and lived in Clatsop County, defendant contends that there is no correlation between the location of his home and work and the site of his criminal activities. Defendant relied on testimony from Persons stating that, before interviewing defendant in Clatsop County, the special agents obtained a report indicating that defendant may have had another address during this time period in Multnomah County. The trial court denied the motions and the jury returned guilty verdicts on 18 counts of first-degree encouraging child sexual abuse.

On appeal, defendant renews his arguments that the state failed to prove that he “duplicated” child pornography and that the crime occurred in Clatsop County. He also assigns error to the trial court’s nonunanimous jury instruction, which we reject without discussion. State v. Cobb, 224 Or App 594, 596-97, 198 P3d 978 (2008), rev den, 346 Or 364 (2009).

We begin with defendant’s first assignment of error, whether “downloading” is “duplicating” for purposes of ORS 163.684. When interpreting a statute, our task is to discern the legislature’s intent in enacting the law. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). To do so, we first look at the text of the statute in context, as well as any helpful legislative history. Id. The issue in this case is a narrow one, namely, whether the term “duplicates” in ORS 163.684 includes downloading images from the Internet and saving them onto a personal computer. That statute provides, in part:

“(1) A person commits the crime of encouraging child sexual abuse in the first degree if the person:
“(a)(A) Knowingly develops, duplicates, publishes, prints, disseminates, exchanges, displays, finances, attempts to finance or sells any photograph, motion picture, video tape or other visual recording of sexually explicit conduct involving a child or possesses such matter with the intent to develop, duplicate, publish, print, disseminate, exchange, display or sell it[.]”

[361]*361ORS 163.684 (emphasis added). In this case, the state must prove that defendant (1) duplicated a photograph or other visual recording of sexually explicit conduct involving a child, and (2) he knew that the image contained sexually explicit conduct involving a child.

Defendant relies on the statutory scheme for child pornography offenses to argue that the evidence was insufficient to convict him of first-degree encouraging child sexual abuse. The statutory scheme punishes most harshly the creation of child pornography, followed by distribution, then its use to promote further sexual abuse of children, and finally, general possession. State v. Porter, 241 Or App 26, 34, 249 P3d 139, rev den, 350 Or 530 (2011).

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Cite This Page — Counsel Stack

Bluebook (online)
297 P.3d 27, 255 Or. App. 357, 2013 WL 638935, 2013 Ore. App. LEXIS 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pugh-orctapp-2013.