S058345, Opinion — State v. Barger

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On respondent on review's petition for reconsideration filed March 7, considered
and under advisement March 30,* petition for reconsideration allowed;
former opinion modified and adhered to as modified April 21, 2011

STATE OF OREGON,
Respondent on Review,
v.
BARRY LOWELL BARGER,
Petitioner on Review.
(CC 200721991, 200801740;
CA A138678 (Control), A138679;
SC S058345)
253 P3d 1030

The state petitioned for reconsideration of the Oregon Supreme Court's deci-
sion in State v. Barger, 349 Or 553, 247 P3d 309 (2011), which reversed defendant's
eight convictions for Encouraging Child Sexual Abuse in the Second Degree. The
state sought clarification that the court's instructions for entry of a judgment of
acquittal pertained only to his convictions for Encouraging Child Sexual Abuse in
the Second Degree, and not also to convictions for various sex crimes in a separate
case that had been consolidated on review. Held: The scope of the court's instruc-
tions is modified to clarify that a judgment of acquittal shall be entered only as to
defendant's convictions in Lane County Circuit Court Case No. 200801740.

The petition for reconsideration is allowed. The former opinion is modified and
adhered to as modified.

# En Banc

Erika L. Hadlock, Senior Assistant Attorney General,
Salem, filed the petition for reconsideration. With her on the
petition were John R. Kroger, Attorney General, and Mary H.
Williams, Solicitor General.

No appearance contra.

# PER CURIAM

The petition for reconsideration is allowed. The former
opinion is modified and adhered to as modified.

\* 233 Or App 621, 226 P3d 718 (2010), rev'd, 349 Or 553, 247 P3d 309 (2011).

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# PER CURIAM

The state seeks reconsideration of this court's opin-
ion in State v. Barger, 349 Or 553, 247 P3d 309 (2011). We
allow the petition for reconsideration, modify our earlier
opinion as described below, and, as modified, adhere to that
opinion.

In this case, the court consolidated the review of two
separate Lane County Circuit Court cases. In one, Case No.
200801740, defendant had been convicted of several counts of
Encouraging Child Sexual Abuse in the Second Degree. In
the other, Case No. 200721991, defendant had been convicted
of a variety of sex crimes. This court reversed the convictions
for Encouraging Child Sexual Abuse in the Second Degree in
the first case, holding that evidence that defendant had
accessed and viewed images of child sexual abuse on the
Internet would not, by itself, support an inference that defen-
dant had "possessed" or "controlled" those images within the
meaning of ORS 163.686. The court concluded with the fol-
lowing disposition:

"The decision of the Court of Appeal is reversed. 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."

349 Or at 567.

The state seeks reconsideration, expressing concern
that, although the court's opinion addressed only defendant's
convictions for Encouraging Child Sexual Abuse in the
Second Degree in Case No. 200801740, and not any of the
convictions in the other case, this court's instructions to the
circuit court to enter a judgment of acquittal could be con-
strued to apply to both cases.

We allow reconsideration to clarify the scope of our
disposition and of our instructions on remand. Although the
body of our opinion is clear, we agree that our instructions on
remand should be more explicit to avoid potential confusion.
Accordingly, we withdraw the final dispositional paragraph
of our previous opinion and insert in its place the following
paragraph:

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"The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court in
Case No. 200801740 is reversed, and the case is remanded
to the circuit court with instructions to enter a judgment of
acquittal in Case No. 200801740. The judgment of the cir-
cuit court in Case No. 200721991 is affirmed."

The petition for reconsideration is allowed. The for-
mer opinion is modified and adhered to as modified.