|CALENDAR STATUS: Active|
|State of Oregon v. Gregg Bryant Ritchie|
|Kendra M. Matthews on behalf of Gregg Bryant Ritchie.|
Ryan Kahn on behalf of State of Oregon
Statement of Issues:
|State of Oregon v. Gregg Bryant Ritchie, (S057701) (S057705) (A129591) (appeal from Clackamas County Circuit Court; opinion reported at 228 Or App 412, 208 P3d 981 (2009)).|
Defendant Gregg Bryant Ritchie and the state both seek review of a Court of Appeals decision that affirmed some of defendant's convictions for encouraging child sexual abuse in the second degree, but that reversed other convictions.
Defendant lived and worked in Clackamas County at all times relevant to this case. During an investigation at the school where defendant taught, defendant consented to a forensic examination of his personal computers, a desktop and a laptop. Defendant almost always had his laptop with him, and it was set up to connect automatically to the Internet and to an instant-messaging service. It was connected to the instant-messaging service approximately 80 to 90 percent of the time during evening hours. The forensic examination revealed that defendant had approximately 600 pornographic images on his desktop computer, and 500 pornographic images on his laptop. About 75 of those images were pornographic images of children. The forensic examination also showed that defendant had sent and received files by instant-messaging; the names of those files contained terms consistent with child pornography. Defendant was charged with twenty counts of encouraging child sexual abuse in the second degree. Ten of those counts (counts 1-10) involved images recovered from the desktop and ten (counts 11-20) involved images recovered from the laptop.
At trial, the state's computer expert testified that when a file is deleted, the data contained at that physical location on the hard drive will remain until new data is recorded there. However, a computer user cannot access the deleted files without specialized data recovery software. The parties stipulated that defendant received the images associated with counts 1 through 4 from another user through an Internet-based chat room. The state's expert testified that a person has to confirm acceptance of a file sent through the Internet in that manner, and that after receipt, the images would be available for viewing. The parties stipulated that defendant received the images associated with counts 5 through 20 through Web browsing. The images had been deleted and were retrieved through the forensic examination. The state's expert could not determine whether the files were deleted intentionally by defendant or by some automatic computer process. With respect to counts 11 through 20 (the images on the laptop), the state's expert could not identify when those images were downloaded, or where the computer was located when the images were downloaded.
Defendant moved for judgment of acquittal on all counts, arguing, as to all counts, that he never knowingly possessed or controlled a tangible, visible recording of a prohibited image, and, as to counts 11 through 20, that the evidence was insufficient to establish venue in Clackamas County. The trial court denied defendant's motion. Subsequently, the court convicted defendant on all counts.
Defendant appealed, and the Court of Appeals affirmed in part and reversed in part. With respect to counts 1 through 4, the court determined that there was sufficient evidence to demonstrate that defendant controlled those images when he received those files through communications in an Internet chat room, after confirming that he wanted to download those files. With respect to counts 5 through 10, the court determined that there was sufficient evidence to demonstrate that defendant controlled those images when he accessed and caused the Web pages on which they were displayed to appear on his computer monitor, selected two of those photographs to be displayed in a larger size, and removed those photographs from his screen. With respect to counts 11 through 20 (the images on the laptop), the court determined that the state failed to prove venue, because the evidence was insufficient to demonstrate that defendant knowingly controlled the images within Clackamas County, (i.e., there was no evidence that defendant downloaded, viewed, deleted, or otherwise exercised his influence over the images while in the county). The court also rejected the state's alternative argument that venue was proper under ORS 131.325, which provides for venue "[i]f the offense is committed within the state and it cannot readily be determined within which county the commission took place." The court pointed out that there was no evidence that defendant had engaged in criminal conduct outside of Clackamas County, but still within the state. Accordingly, the court affirmed defendant's convictions on counts 1 through 10, reversed defendant's convictions on counts 10 through 20, and remanded for resentencing.
Both the state and defendant filed separate petitions for review. On review, the issues are as follows.
(State's issues, S057701):
(1) Did the evidence entitle a reasonable factfinder to find that defendant possessed or controlled child pornography either (a) in Clackamas County, Oregon, or (b) within the State of Oregon, when the state presented evidence that defendant lived and worked in Clackamas County when he purchased his laptop computer, that he still lived and worked in the county when police examined the laptop, that the laptop was "always" with him, and that child pornography images had been downloaded onto and deleted from the laptop sometime before police examined it?
(2) Does Article I, section 11, of the Oregon Constitution require the state to prove, as an element of a charged offense, that the offense occurred in a particular county?
(Defendant's issues, S057705):
(1) Does viewing an image of child pornography on the Internet constitute "control" under ORS 163.686?
(2) Do the statutes describing the crime of "Encouraging Child Sexual Abuse, " ORS 163.684 to 163.693, violate Article I, sections 8 and 11, of the Oregon Constitution, because their true purpose is to criminalize a form of expression?
(3) Do the ex post facto clauses of the Oregon and United States Constitutions require the state to prove that the abuse depicted in an image of child pornography on which a prosecution for "Encouraging Child Sexual Abuse" is based occurred after the effective date of the statute, September 9, 1995?
The foregoing summary of a Supreme Court case that is scheduled for oral argument has been prepared for the benefit of the public. Parties and practitioners should rely on neither the factual summary set out above, nor the statement of issues to be decided, as delineating the questions that the Supreme Court ultimately may consider on review. See generally Oregon Rule of Appellate Procedure 9.20.
Justice(s) NOT Participating: