S058345, Opinion — State v. Barger

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Argued and submitted September 14, 2010, decision of Court of Appeals reversed;
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,
Respondent on Review,
v.
BARRY LOWELL BARGER,
Petitioner on Review.

(CC 200721991, 200801740;
CA A138678 (Control), A138679;
SC S058345)
247 P3d 309

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CJS, Obscenity § 26.

On review from the Court of Appeals .*

Kristin A. Carveth, Deputy Public Defender, Salem,
argued the cause and filed the brief for petitioner on review.
With her on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.

Erika L. Hadlock, Senior Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent on
review. With her on the brief were John R. Kroger, Attorney
General, and David B. Thompson, Interim Solicitor General.

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

GILLETTE, J. pro tempore

\* Appeal from Lane County Circuit Court, Mustafa T. Kasubhai, Judge. 233
Or App 621, 226 P3d 718 (2010).

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

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The decision of the Court of Appeals is reversed. The judg-
ment 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.

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# GILLETTE, J. pro tempore

This criminal case involves the following question:
Can a person be found guilty of "possess[ing] or control[ling]"
digital images of sexually explicit conduct involving a child,
as that phrase in used in ORS 163.686(1)(a),1 based on evi-
dence showing only that the person searched for and found
such images through the Internet on his or her computer?
Although the trial court in the present case acknowledged
that "the world of the Internet presses * * * the boundaries of
what we normally understand to be possession and control,"
it ultimately concluded that a jury could find defendant
guilty under ORS 163.686(1)(a) based solely on such evi-
dence. As we explain below, we disagree with that conclusion:
The statute requires something more than simply accessing
and looking at incorporeal material of the kind involved here
to "possess" or "control" that material. Accordingly, we
reverse both the circuit court judgment and the Court of
Appeals decision affirming that judgment.

In the course of investigating a report that defen-
dant had sexually abused a child, a City of Eugene Police
Officer, Sullivan, talked to defendant's wife, who told him
that there was some "weird" material on the couple's home
computer. Defendant's wife showed the computer to Sullivan,
who looked at the computer's web-address history and
saw three addresses that, based on their titles, seemed
suspicious.

A few weeks later, the Eugene police asked defen-
dant's wife if she would allow them to take the computer and
examine it. She consented. Thereafter, Eugene police detec-
tive Williams, who was certified in computer forensics, took
possession of the computer, made a copy of the hard drive,
and used certain forensic software to examine that hard
drive.2 Based on Williams's findings, defendant was charged
with eight counts of Encouraging Child Sexual Abuse in the
Second Degree, ORS 163.686, by possessing or controlling a
visual recording of sexually explicit conduct involving a child.

1 The pertinent text of ORS 163.686(1)(a) is set out at 349 Or at 558-59.

2 As the case comes to us, there is no issue concerning the validity of the wife's
consent to Williams's possession and examination of defendant's computer.

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Each charge was based on a separate digital image that
Williams found in the computer's "temporary internet file
cache."

As Williams later explained at defendant's jury trial,
temporary Internet files found in a computer are the product
of an automatic function of a computer's web browser. When-
ever a computer user visits a web page, the browser creates a
copy of the web page and stores it in a temporary Internet file
"cache," where it remains until the space is used up and writ-
ten over, or it is erased. If a user calls up the same web page
at some later date, the browser simply accesses the copy from
the temporary files, rather than going through the slower
process of downloading the same information from the web
page. Computer users with ordinary skills would not neces-
sarily be aware of that function or know how to go about
accessing information stored in the temporary Internet file
cache.

Williams testified that, when he received the com-
puter, only one of the three addresses that had triggered
Sullivan's suspicions remained in the web-address registry
but that, by examining other Internet activity files, he was
able to identify two other suspicious web addresses that
someone had accessed in the recent past. Williams stated
that he checked all three websites and that all appeared to
contain pornographic images of prepubescent girls and girls
in their early teens.3

Williams testified that he then searched for similar
images that might be stored on the computer's hard drive,
using certain words and phrases commonly used in child por-
nography. He acknowledged that he did not find any images
of that kind that had been purposefully copied and saved in
any user's personal files. He did, however, discover sexually
explicit images of prepubescent girls in the computer's tem-
porary Internet file cache.

3 Again, as the case comes to us, defendant does not argue that the evidence
was insufficient to establish that the various images that Williams identified were
of "sexually explicit conduct involving a child," as that phrase is used in the govern-
ing statute, ORS 163.686.

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The prosecution then presented the specific evidence
that it asserts established defendant's guilt of the eight
charges of Encouraging Child Sexual Abuse. The evidence
included the eight digital images, all of which Williams had
discovered in the temporary Internet file cache of defendant's
computer, and which were the bases of the charges. Williams
acknowledged that there was nothing about the images that
identified what website they had come from and that there
was no way to know with absolute certainty whether the
images had been accessed intentionally by a user or "were the
result of pop-up windows or browser redirects." Williams fur-
ther explained, however, that pornographic pop-ups and
redirects occur almost exclusively when a computer user vis-
its another pornographic website.

After presenting Williams's testimony, the state
rested. Defendant then moved for a judgment of acquittal,
arguing that there was no evidence that the eight images at
issue had made their way onto the hard drive through any
intentional or knowing action by him and that, even if it was
possible to infer that defendant had accessed the images
through web browsing, that inference was insufficient to
establish defendant's knowing possession or control of those
images. The trial judge denied defendant's motion, and the
jury ultimately returned guilty verdicts on all eight charges.
On defendant's appeal, the Court of Appeals affirmed with-
out opinion. State v. Barger, 233 Or App 621, 226 P3d 718
(2010). We allowed defendant's petition for review.

Before this court, defendant argues that, although
the state's evidence might support an inference that he had
accessed and viewed the images at issue, the evidence
would not support an inference that he ever knowingly "pos-
sess[ed] or control[led]" them within the meaning of ORS
163.686(1)(a).

Because there is no evidence in the record suggest-
ing that defendant knew about the computer's automatic
caching function or how to access material in the cache, the
state does not now argue, and never has argued, that defen-
dant "knowingly possess[ed] or control[led]" the images at
issue insofar as they existed in his computer's temporary

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Internet file cache. Instead, the state's position is a more sim-
ple one. It argues that, because defendant's computer gave
him the capability to print, save, e-mail, and otherwise
manipulate the images in question, his actions of intention-
ally accessing one or more websites that contained the pro-
scribed images, thus causing those images to be displayed on
his computer screen, constituted "possess[ion] and control[ ]"
in the required sense. The question for this court thus is a
narrow one: 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 com-
puter's Internet browser and-by reasonable inference-
looked at them?4

The answer to that question depends on what the
legislature that enacted ORS 163.686(1)(a) intended by the
phrase "possesses or controls" and on whether an activity
that is commonplace now but was far less common at the
time of the statute's enactment5 comes within the meaning
that the legislature intended for that statute. To determine
the legislature's intent, we employ the methodology set out in
ORS 174.020 and State v. Gaines, 346 Or 160, 171-73, 206
P3d 1042 (2009). Specifically, we first consider the text and
context of the statute and then, if we so choose, consider any
legislative history that the parties might proffer.

We begin with the part of the statutory text that is
relevant to the charges against defendant. ORS 163.686 pro-
vides, in part:

"(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 photo-
graph, motion picture, videotape or other visual recording
of sexually explicit conduct involving a child for the purpose

4 This case therefore presents no question concerning defendant's possible
criminal liability if, for example, he understood the temporary Internet file cache
function on his computer and knew how to access that location. We express no opin-
ion on that issue.

5 ORS 163.686 was adopted, together with several other provisions relating to
visual recordings of child sexual abuse, in 1995. Or Laws 1995, ch 768, § 3.

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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[.]"

As our synopsis of the arguments suggests, the operative
words in the present inquiry are the verbs "possesses" and
"controls."

The verb "control" is not statutorily defined, but its
common meaning, as set out in Webster's Third New Int'l
Dictionary 496 (unabridged ed 2002), is "to exercise restrain-
ing or directing influence over: REGULATE, CURB." The
word "possess," on the other hand, is statutorily defined: For
purposes of most Oregon criminal statutes, including ORS
163.686, it means "to have physical possession or otherwise
to exercise dominion or control over property." ORS
161.015(9). As this court explained in State v. Fries, 344 Or
541, 545-47, 185 P3d 453 (2008), that definition of the word
"possess" encompasses two alternative ways of possessing
property that this court traditionally has recognized:
(1) physically controlling the property ("actual" possession)
and (2) exercising some other kind of dominion or control over
the property ("constructive" possession). Put differently, to
"possess" a thing traditionally means to control it, and
"actual possession" and "constructive possession" are simply
different types of control. Id .; see also State v. Connally, 339
Or 583, 591, 125 P3d 1254 (2005) (making a similar point
about the ordinary dictionary meaning of the term
"possession").

Because the idea of control is inherent in the statu-
tory term "possess," it is odd that the legislature chose to
define the crime of encouraging child sexual abuse in terms
both of "possessing" and of "controlling" certain kinds of
images. The state explains that choice as a considered deci-
sion to recognize that "control" itself may be both actual and
constructive, and to define the crime set out in ORS
163.686(1)(a) in terms of (1) actual possession, i.e., physical
control of an object; (2) constructive possession, i.e., "domin-
ion or power" over the object that is not necessarily exercised;

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and (3) actual control, i.e., active restraint or direction of the
object.

That explanation is creative, but it is not persuasive.
We think it highly unlikely that the legislature engaged in
that kind of parsing of terms or that it even recognized that,
in light of the statutory definition of the term "possess," the
inclusion of the term "control" was duplicative. Instead, we
believe it is more logical to conclude that the legislature's
choice of words reflects its desire to ensure that the crime not
be limited to a narrow, solely physical, concept of possession.
In other words, it would appear that the legislature used two
words to convey the same broad meaning that ORS
161.015(9) actually conveys in the single word "possess" and
that, at least in the criminal law context, this court tradition-
ally has ascribed to that word; viz., to physically or bodily
possess or control something or to exercise dominion or con-
trol (i.e., a restraining or directing influence) over it in some
other way. See, e.g., State v. Oare, 249 Or 597, 599, 439 P2d
885 (1968) (crime of unlawful possession of marijuana
includes actual and constructive possession); State v. Barnes,
120 Or 372, 379-80, 251 P 305 (1927) (crime of unlawful pos-
session of intoxicating liquor includes actual and construc-
tive possession).

At this stage of our interpretive process, we also con-
sider the statutory context in which the wording under con-
sideration appears. Defendant points to a contextual clue-a
related section of the provision under consideration-that we
agree is relevant. The "possesses or controls" wording at
issue in this case appears in a subparagraph of ORS
163.686-subparagraph (1)(a)(A)(i)-that describes one way
of committing the crime of Encouraging Child Sexual Abuse
in the Second Degree. However, the next subparagraph of the
statute describes an alternative way to commit the same
crime. It states that a person commits the crime by

"Knowingly pay[ing], exchang[ing] or giv[ing] anything
of value to obtain or view a photograph, motion picture,
videotape or other visual recording of sexually explicit
conduct involving a child for the purpose of arousing or

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satisfying the sexual desires of the person or another
person."

ORS 163.686(1)(a)(A)(ii) (emphasis added).6

There are two significant things about subpara-
graph (ii). The first is that it is an alternative definition of the
same crime-Encouraging Child Sexual Abuse in the Second
Degree-that is defined in subparagraph (i), discussed at
length above. The second is that it criminalizes the actions of
paying to obtain and view visual recordings of child sexual
abuse. Although other state legislatures have chosen to crim-
inalize the act of viewing child pornography in and of itself,7
the wording of ORS 163.686(1)(a)(A)(ii) demonstrates to us
that the Oregon legislature made a different choice: It chose
not to criminalize the act of viewing child pornography,
unless that act is accompanied by paying, exchanging, or giv-
ing "anything" of value. (That same requirement is true of the
act of "obtaining" child pornography.)

That legislative choice is relevant to our reading of
ORS 163.686. Whatever "knowingly possess[ing] or con-
trol[ling]" recordings 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[ling]" visual recordings of sexu-
ally explicit conduct involving children under ORS
163.686(1)(a)(A)(ii) only if that act is accompanied by the pay-
ment, exchange, or giving of something "of value," an element
that is not required under ORS 163.686(1)(a)(A)(i).8

6 As is true of subparagraph ORS 163.686(1)(a)(A)(i), that subparagraph
applies only if the person "[k]nows or is aware of and consciously disregards the
fact that creation of the visual recording of sexually explicit conduct involved child
abuse." ORS 163.686(1)(a)(B).

7 See, e.g., Ark Code Ann § 5-27-304(a)(2) (no person shall "solicit, receive, pur-
chase, exchange, possess, view, distribute, or control" child pornography); NJ Stat
Ann § 2C: 24-4(b)(5)(b) (making it a crime to "knowingly possess[ ] or knowingly
view[ ]" child pornography; Ohio Rev Code Ann § 2907.323(A)(3) (no person shall
"possess or view" child pornography). (Emphasis added in each parenthetical.)

8 The dissent suggests a different reading of subsection (ii). It argues that the
gravamen of the subsection is the act of payment, so that the ultimate success of the
payor in actually obtaining or viewing any child pornography is irrelevant. That is,
the dissent reads the subsection as a prohibition on attempting to obtain or possess
child pornography. Thus, according to the dissent, the subsection should be read as
if it made it a crime to"[k]nowingly pay * * * anything of value to obtain or view[, or

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A final source of contextual evidence is the body of
cases that interpret or discuss the definition of "possess" pro-
vided by ORS 161.015(9)-the statute that, as discussed,
applies to ORS 163.686(1)(a)(A)(i) and therefore expresses
the meaning that the legislature intended to convey by the
phrase "possesses and controls" in ORS 163.686(1)(a)(A)(i).
In general, those cases deal with possession of tangible
objects-firearms, drugs, forged checks, and the like-and
thus are not perfect analogies for determining how the con-
cepts of actual and constructive possession apply to a digital
image that once appeared on a computer screen and now is
retained in some form on the computer's hard drive. Certain
of the cases are relevant, however, to the extent that they
show that even constructive possession of a thing, i.e., domin-
ion or control over it, cannot be established merely by show-
ing that the thing was in close proximity or physically avail-
able to a potential possessor. See, e.g., State v. Casey, 346 Or
54, 203 P3d 202 (2009) (fact that visitor's gun, which had
been left on counter in defendant's home, was in close prox-
imity to defendant when he went into home to retrieve items
for police officers waiting outside would not support defen-
dant's conviction on charge of felon in possession of firearm);
see also State v. Daniels, 348 Or 513, 234 P3d 976 (2010)
(rejecting state's claim that methamphetamine found in
defendant's home, in a purse that belonged to defendant's
girlfriend, was constructively in defendant's possession
because it was available for his use).9

With the foregoing background concerning the
meaning of the phrase "possesses or controls" in ORS
163.686(1)(a)(A)(i) in mind, we turn to the specific question

to attempt to obtain or view,] [child pornography]." Such a construction of the
wording is clever, but we think that the method of achieving it-adding words that
the legislature did not use-and the resultant significant expansion of the scope of
the prohibition needs a far stronger justification than bare linguistic plausibility.
We thus reject the dissent's reading of that subsection.

9 The same message is conveyed in other cases that discuss the common-law
concepts of actual and constructive possession, which ORS 161.015(9) ultimately
codified. See, e.g., Oare, 249 Or at 598-600 (fact that the defendant was present at
the attempted disposal of marijuana in someone else's home was insufficient to
find constructive possession); State v. Weller, 263 Or 132, 501 P2d 794 (1972) (fact
that defendant lived in a bedroom in a house also occupied by other persons was
insufficient basis for finding that defendant had control or right to control mari-
juana plants found in another (unoccupied) bedroom in the house).

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that this case presents: Does a computer user's act of access-
ing an Internet web page and intentionally calling digital
images of child sexual abuse onto a computer screen consti-
tute "possess[ion] or control[ ]" of those images within the
meaning of that statute? The state asserts that it does, and
offers three different explanations for its answer.

First, the state contends that, insofar as a computer
user has physical control over a computer screen, he or she
has physical control ("actual" possession) of any images that
appear on it. The state points to the fact that a computer user
can move his or her monitor from one place to another and
thereby display the image appearing on the screen wherever
he or she chooses. We think, however, that that argument
misses the point: The intangible nature of a web image is
analogous to seeing something that a visitor has temporarily
placed in one's own home. One may be aware of it, may even
have asked the visitor to bring it for viewing, but one does not
thereby possess the item.

The state argues, next, that a computer user "con-
trols" a digital image of child pornography by actively navi-
gating to the website where it resides, thereby bringing the
image to his computer screen. We think, however, that this
argument suffers from some of the same defects as the pre-
ceding one: Looking for something on the Internet is like
walking into a museum to look at pictures-the pictures are
where the person expected them to be, and he can look at
them, but that does not in any sense give him possession of
them.

Finally, the state argues that, to establish that
defendant "controlled" the images at issue at the time that
they appeared on his computer screen, the state need only
show that, at that time, defendant had the ability to direct or
influence the images (by, for example, showing that he had
the ability to save, copy, print, or e-mail them), and that it
need not show that defendant actually exercised any such
influence or control. In support of that theory, the state
points to certain of this court's cases that describe construc-
tive possession in terms of a "right" to control the object in

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question. See, e.g., Oare, 249 Or at 599 ("evidence of the con-
trol or the right to control is necessary to constructive posses-
sion"); State v. Weller, 263 Or 132, 501 P2d 794 (1972) (quot-
ing Oare to same effect); State v. Barnes, 120 Or 372, 380, 251
P 305 (1926) (jury could conclude that defendant construc-
tively possessed intoxicating liquor to the extent that evi-
dence showed that he "claimed the right and had the power to
control, manage and dispose of the same").

The state's position is problematic in a number of
respects. First, it assumes that, when this court in Oare and
other cases described constructive possession in terms of the
"right" to control a thing, it meant nothing more than a bare
and practical "ability" to exercise a directing or restraining
influence. We do not read the cases that way. Oare and Weller
both involved property that was physically present in places
to which the defendants had access, so that the defendants
physically could have taken up and moved or otherwise used
the items. In both cases, this court found that physical ability
to be insufficient by itself to support a charge of constructive
possession. See Oare, 249 Or at 599; Weller, 263 Or at 133
(both to that effect). And, although this court in Barnes held
that a jury could infer that the defendant claimed a right to
control (and therefore possessed) the moonshine whiskey at
issue in that case, its conclusion in that regard was based on
the existence of evidence that the defendant was not only at
the site where the whiskey was concealed, but had tools and
containers designed to remove the whiskey from its hiding
place. We conclude from the foregoing, then, that when the
court in Oare and other cases referred to a "right" to control a
thing, it was referring to something akin to a legal right to do
so-a concept that is useful in discussing the distinction
between "ownership," "possession," and mere "custody" of
property, but one that is not helpful here.10

10 Thus, in State v. Keelen, 103 Or 172, 203 P 306 (1922), this court quoted a
Kentucky case for the proposition that

" 'there is a difference between custody and possession. Possession is the pres-
ent right and power to control a thing. A person has the custody of property, as
distinguished from the possession, where he merely has the care and charge of
it for one who retains the right to control it, and who therefore retains con-
structive possession.'"

Id. at 182-83 (quoting Shipp v. Patten, 123 Ky 65, 93 SW 1033 (1906)).

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What is more, there is no support in this court's cases
for the idea that a mere unexercised ability to manipulate a
thing can constitute constructive possession of it. Indeed,
State v. Casey, discussed earlier, is to the contrary. In that
case, this court considered and rejected the state's contention
that a visitor's gun, which had been left on a counter in the
defendant's trailer, was under the defendant's "dominion and
control" (and, thus, in his constructive possession) when he
went into the trailer to retrieve certain items for police offi-
cers who were waiting outside. 346 Or at 62-63. It is clear
from that decision that the mere fact that an object is within
a person's reach, and that the person thus has a physical abil-
ity to exercise some directing or restraining influence over it,
is insufficient to establish constructive possession of the
object. And, to the extent that, in Daniels, Oare, and
Weller, this court also declined to infer possession or control
from the mere fact of proximity or availability, those cases
convey a similar message.11

A final problem with the state's theory about the
meaning of "control" is that it would sweep in more factual
scenarios than we believe the legislature could possibly have
intended. If the mere ability to cause an item to appear on a
computer screen is sufficient to constitute "control" or con-
structive "possession" of the item for purposes of ORS
163.686(1)(a)(A)(i), then any person who uses the Internet
(and, indeed, any person who is within physical reach of some

11 The state finds a contrary message in State v. Miller, 238 Or 411, 395 P2d
159 (1964). In Miller, the court concluded that a jury could find that a defendant
had violated the statutory prohibition on felons having any firearm "in his posses-
sion or under his custody or control," ORS 166.270 (1963), when he drove a car
some 400 miles knowing that two loaded guns that purportedly belonged to a pas-
senger in the car were under the car's front seat and within his reach, and that
another gun was in the glove compartment of the car. Id. at 412-13. But the case
involved more than the simple availability of the guns to the defendant: The guns
were found in a vehicle that the defendant had borrowed from a relative and that
the defendant was driving, other suspicious items were found in the car, and
another person had accused the defendant and his passenger of "rolling" him. Id.
Moreover, in reaching its conclusion, the court did not discuss the meaning of the
concepts of actual and constructive possession but, instead, simply cited and fol-
lowed a Pennsylvania case with similar facts. Id. at 413, citing Commonwealth v.
Whitman, 199 Pa Super 631, 186 A2d 632 (1963). As such, the case does not appear
to stand for the proposition for which the state offers it, viz., that this court has con-
cluded in the past that the mere ability to control some object amounts to construc-
tive possession or control of that object.

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tangible item of child pornography) can be deemed to be
guilty of violating that statute, at least insofar as the element
of possession or control is involved. Of course, the state con-
tends that a person who already has accessed an image of
child sexual abuse on his computer has a more direct and
immediate ability to save, print, or otherwise control that
image than does a computer user who has not accessed the
image, and that that directness and immediacy makes the
difference. But that argument still is nothing more than the
assertion, rejected by this court most recently in Casey, that
the ability to possess or control a thing means that one actu-
ally is possessing or controlling it.12

In a final version of that argument, the state insists
that a person who uses a computer to look at images of child
pornography does more than just view the images that he
brings to the screen. It contends that, because computers
have the capacity to save, print, post, and transmit those
images "with only a few mouse clicks," web browsing for child
pornography is qualitatively different from other methods of
"viewing" child pornography, and falls within the intended
meaning of the phrase "possesses or controls" in ORS
163.686(1)(a)(A)(i). But we think that our recent holdings in
Casey and Daniels fully answer that argument, particularly
where the state fails to explain why existence of those capac-
ities in the viewing device would transform viewing into pos-
session. Neither do we see anything in the statutory wording
that would support that idea.

For the foregoing reasons, we are not persuaded by
the state's theories as to how and why, in the absence of some
additional action by a computer user beyond that proved
here, the user could be deemed to "possess" or "control," in
any sense that this court heretofore has recognized, a digital
image that he or she has called up on a computer screen.

12 Our reservations about the state's attempt to define "control" solely in terms
of ability to exercise directing or restraining influence should not be interpreted as
acceptance of defendant's theory that constructive possession or control requires
active exercise of such influence in all cases. It is clear, for example, that when a
person who has a property interest in some item places that item in the custody of
another person, he or she can retain constructive possession by retaining the power
to control the item, regardless of whether he or she actively exercises that power.
But, as we have explained, that is not this case.

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Instead, we are satisfied that the statute before us, ORS
163.686(1)(a)(A)(i), when read in the light of its context (par-
ticularly ORS 163.686(1)(a)(A)(ii)), embodies a considered
legislative choice not to criminalize the mere "obtaining" or
"viewing" of child pornography without consideration. Thus,
we conclude that the acts at issue here-navigating to a web-
site and bringing the images that the site contains to a com-
puter screen-are not acts that the legislature intended to
criminalize.13

Applying our conclusions to the record in this case,
we hold that defendant's motion for a judgment of acquittal
should have been granted. There is no evidence in the record
that, at any time, defendant "possess[ed] or control[led]" any
of the eight images that are the subject of the charges against
him under ORS 163.686(1)(a)(A)(i).

The decision of the Court of Appeals 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.

# DE MUNIZ, C. J., concurring.

I agree with the majority's conclusion in this case
and in State v. Ritchie, 349 Or 572, 248 P3d 405 (2011), that

13 In so concluding, we recognize that some courts in other jurisdictions have
reached a different conclusion on the basis of theories that are similar, if not iden-
tical, to the ones that the state has advanced in this case. See, e.g., People v.
Josephitis, 394 Ill App 3d 293, 914 NE2d 607 (2009) (defendant who actively sought
out illicit websites, paid for access, maintained websites among his "favorites"
and viewed numerous images of child pornography, and who had the ability to
copy, print, or send images to others, "possessed" the images he viewed);
Commonwealth v. Diodoro, 601 Pa 6, 970 A2d 1100 (2009), cert den, _US
130 S Ct 200, 175 L Ed 2d 127 (2009) (accessing and viewing child pornog-
raphy over the Internet constitutes "control" of the pornography sufficient to sup-
port conviction of crime of possessing child pornography); United States v. Kain,
589 F3d 945 (8th Cir 2009) (a computer user who intentionally accesses child por-
nography images on a website gains actual control over the images). We note, how-
ever, that the analyses in those cases provide little or no help for our analysis of the
relevant Oregon statutory text and context. Certainly, none of the cases involves
statutes that effectively announce that "viewing" child pornography is not, by
itself, unlawful.

We also note that some other courts have concluded, as we do, that accessing
child pornography on the Internet does not constitute possession or control of such
materials. See, e.g., Worden v. State, 213 P3d 144 (Alaska App 2009); Barton v.
State, 648 SE2d 660 (Ga App 2007).

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defendants did not violate ORS 163.686(1)(a)(A)(i) when they
viewed pornographic images on the Internet. Although the
legislature might have intended that ORS 163.686 criminal-
ize "the mere 'obtaining' or 'viewing' of child pornography
without consideration," the words the legislature used in the
statute do not reveal that intent. 349 Or at 553. In agreeing
with the majority's conclusion, I wish to point out that the
prosecution made a choice in both these cases not to argue
that the legislature had intended that the "possession or con-
trol" element of ORS 163.686 could be satisfied by the storage
in the computer's temporary Internet cache, and later in
unallocated space in the computer's hard drive, of the digital
images that each defendant had viewed.1 That said, I believe
it is also important to identify the chasm that presently sep-
arates the statutory texts at issue here from the technological
realities of the digital age in which we live.

As the majority correctly identifies, the crime of
encouraging child sexual abuse in the second degree, ORS
163.686, requires, among other things, the knowing posses-
sion or control of "any photograph, motion picture, videotape
or other visual recording of sexually explicit conduct involv-
ing a child[.]" Although the Internet was a well-established
fact of life at the time that ORS 163.686 was enacted in 1995,
nothing in that statutory text suggests that the legislature
expressly intended to capture the kind of digital computer
images that purveyors of child pornography now use as their
principal means of communication and distribution. See
Ty E. Howard, Don't Cache out Your Case: Prosecuting Child
Pornography Possession Laws Based On Images Located In
Temporary Internet Files, 19 Berkeley Tech LJ 1227, 1228
(2004) (noting that, for defendants presently collecting and
trafficking in child pornography, the media of choice are now
digital images and the medium of choice is the Internet).
Instead, and unfortunately, the legislature appears to have
assumed that the proscribed pornographic images would
appear on or in tangible objects-photographs, motion pic-
tures, videotapes, or other visual recordings.

1 Nor did the state contend in Ritchie, with respect to counts 1 through 4, that
the "possession or control" element of ORS 163.686(1)(a)(A)(i) was satisfied insofar
as the contents of the zip file associated with those counts had been stored in unal-
located space on the relevant hard drives.

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In 1997, when the legislature enacted ORS 163.688
and ORS 163.689,2 the legislature demonstrated that it was
capable of proscribing the possession of digital images, like
those at issue here, for purposes of the Oregon Criminal
Code. Those statutes made it a crime to knowingly possess
and use or attempt to use-"any visual depiction of sexually
explicit conduct involving a child," for the purpose of inducing
another child to engage in sexual acts. When it enacted those
statutes, the legislature specifically defined the terms "visual
depiction" to include computer-related images:

"As used in ORS 163.670 to 163.693:

" 'Visual depiction' includes, but is not limited to,
photographs, films, videotapes, pictures or computer or
computer-generated images or pictures, whether made or
produced by electronic, mechanical or other means."

ORS 163.665(4) (emphasis added).

Unfortunately, the legislature did not add those, or
similar terms, to Oregon's other child pornography statutes.
Today, the phrase "visual depiction" and its attendant defi-
nition currently find use only in ORS 163.688 and ORS

2 ORS 163.688 provides:

"(1) A person commits the crime of possession of materials depicting sex-
ually explicit conduct of a child in the first degree if the person:

"(a) Knowingly possesses any visual depiction of sexually explicit conduct
involving a child or any visual depiction of sexually explicit conduct that
appears to involve a child; and

"(b) Uses the visual depiction to induce a child to participate or engage in
sexually explicit conduct.

"(2) Possession of materials depicting sexually explicit conduct of a child
in the first degree is a Class B felony."

ORS 163.689 provides:

"(1) A person commits the crime of possession of materials depicting sex-
ually explicit conduct of a child in the second degree if the person:

"(a) Knowingly possesses any visual depiction of sexually explicit conduct
involving a child or any visual depiction of sexually explicit conduct that
appears to involve a child; and

"(b) Intends to use the visual depiction to induce a child to participate or
engage in sexually explicit conduct.

"(2) Possession of materials depicting sexually explicit conduct of a child
in the second degree is a Class C felony."