State v. Crook

547 P.3d 158

331 Or.App. 524

STATE of Oregon, Plaintiff-Respondent,

v.Radley Earl CROOK, Defendant-Appellant.

A177182

Court of Appeals of Oregon.

Argued August 10, 2023

March 20, 2024

Lane County Circuit Court, 21CR12555; Kamala H. Shugar, Judge.

Joshua B. Crowther, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Shorr, Presiding Judge, Mooney, Judge, and Pagán, Judge.

MOONEY, J.

₅₂₆Defendant appeals a judgment of conviction for eight counts of encouraging child sexual abuse in the first degree (ECSA I), ORS 163.684.¹ On appeal, defendant raises 15 assignments of error. In assignments one through eight, defendant challenges the trial court’s denial of his motions for judgments of acquittal (MJOA), arguing that the act of downloading images from the internet does not constitute the act of duplicating images under ORS 163.684. Defendant acknowledges that we held to the contrary in State v. Pugh, 255 Or.App. 357, 297 P.3d 27, rev. den., 353 Or. 748, 304 P.3d 39 (2013), but he asks us to overrule Pugh as plainly wrong. We conclude that Pugh is not plainly wrong, and we decline to overrule it.

In assignments nine through 15, defendant challenges the trial court’s calculation of his criminal history score under Oregon’s felony sentencing guidelines, arguing that his conduct constituted a single criminal episode. The state acknowledges that the trial court may have incorrectly recalculated defendant’s criminal history on Count 6. We agree that the court incorrectly recalculated defendant’s criminal history on Count 6, but the recalculation did not result in any incorrect increase in defendant’s criminal history. That is so because all the other counts were distinct acts that constituted separate criminal episodes; therefore, defendant’s criminal history score was accurately set at the highest category, "A," on Counts 4 through 8. We affirm.

I. THE FACTS

The undisputed facts occurred "from March 6th until March 12th of 2021." During that time period, defendant downloaded eight images and videos depicting child sexual abuse from the internet to his cellphone, and he saved them as digital files in his download folder. Two files ₅₂₇depicted the same child and were downloaded within one minute of each other (Counts 5 and 6). Each of the other six files depicted a different child being sexually abused and the time between those downloads was at least 14 minutes and as long as 40 hours (Counts 1, 2, 3, 4, 7, 8).

II. THE TRIAL

Defendant was charged with eight counts of ECSA I. He waived his right to a jury trial, and the case was tried to the court. The state proceeded on the theory that defendant’s acts of downloading images constituted duplicating those images under ORS 163.684.²

Police detectives and a defense-retained digital forensics expert testified that the download process begins when a person sees an image or video on the internet that they wish to download to their cellphone. When the person clicks on the "three dots" next to the image and selects "download" from the list of options, they are sending a request to the hosting website for that image. The host site’s automated response is to transmit the digital file "that’s behind [the] link" to the requester who then has the ability to save and store the file on their cellphone. Once downloaded and saved on the cellphone itself, the person may access the image, often in higher quality resolution, without having to connect to the internet.

Defendant’s testimony about the process he uses to download images and videos from the internet was consistent with the general process described by the detectives and defense expert:

"[PROSECUTOR]: Okay. So, let’s start there, okay? There’s no images on your phone.

₅₂₈"What’s the first thing you do? How do you search for the image?

"[DEFENDANT]: I think what you’re getting at is I go to Bing.

"[PROSECUTOR]: Okay.

"[DEFENDANT]: I type in, for the sake of what we’re talking about, let’s say I type in no nude preteens.

"[PROSECUTOR]: Okay.

"[DEFENDANT]: And I can either have it bring up a list of Web sites or going to have it bring up a list of images.

"[PROSECUTOR]: Okay.

"[DEFENDANT]: If I was on the images, I would click on that image and ask it to either bring up Web sites or—let’s say an image comes up that I like.

"[PROSECUTOR]: Okay.

"[DEFENDANT]: And I click on it. It will either bring up an icon that says save or search. And if I want to save it, I want to put it in my download, then I hit save.

"[PROSECUTOR]: Okay. And let’s say—let’s start first with just an image. Let’s just say it’s a picture, okay, and of, you know, a ten-year-old, something happening to them sexually. You can—you’re at the Web site. You can actually just look at that image on your phone, right? You can see it right there?

"[DEFENDANT]: Yes.

"[PROSECUTOR]: Okay. Why do you need to save it?

"[DEFENDANT]: It’s part of the ritual. It’s—I’m searching for this thing because I want it, and then I find it. I’m not going to remember it in ten minutes or in an hour or in a day. And, so, I save."

The trial court found defendant guilty on all counts and specifically found that defendant "duplicated the child pornography in each of the files that are in the State’s exhibit" and that he "individually downloaded and duplicated each [file] in a separate and distinct episode." It sentenced defendant to a 119-month prison term.

₅₂₉III. THE FIRST EIGHT ASSIGNMENTS

A Standard of Review

[1, 2] We review the denial of an MJOA to determine whether, viewing the evidence in the light most favorable to the state, "a rational trier of fact, making reasonable inferences, could have found the essential elements of the crime proved beyond a reasonable doubt." State v. Hall, 327 Or. 568, 570, 966 P.2d 208 (1998); see also State v. Allison, 325 Or. 585, 587-88, 941 P.2d 1017 (1997) (applying same standard of review to the ruling from a bench trial). When that challenge presents an issue of statutory construction, we review for legal error. State v. James, 266 Or.App. 660, 665, 338 P.3d 782 (2014).

B. Denial of MJOAs

[3] Defendant contends that the trial court erred in denying his MJOA on each count. He argues that downloading a digital image or video from the internet is not "duplication" under ORS 163.684. In defendant’s view, the ECSA I statute is intended to punish those who create and distribute media files depicting child sexual abuse, but not consumers of those files. He asserts that in order to duplicate a file and commit ECSA I, a defendant must either possess the original or make a copy with the intent to disseminate it.

Defendant acknowledges our previous holding that downloading a file from the internet constitutes duplication under ORS 163.684. Pugh, 255 Or.App. at 365, 297 P.3d 27. We addressed the same question even earlier, albeit in a plain error context. Id. at 363, 297 P.3d 27 (discussing State v. Urbina, 249 Or.App. 267, 271, 278 P.3d 33, rev. den., 353 Or. 103, 295 P.3d 50 (2012), which rejected a contention that it was beyond dispute that downloading and viewing images from a peer-to-peer file-sharing network was no different than picking up a magazine and viewing images in it). In Pugh, we examined our reasoning in Urbina as we addressed the issue of whether downloading images from the internet constituted duplication. As we explained:

"We see no difference between creating a personal copy of child pornography through downloading from a peer-to-peer network and downloading from independent sources on the Internet. In both situations, the original image ₅₃₀remains with the original owner, and a copy is saved onto the downloading party’s computer."

Pugh, 255 Or.App. at 364, 297 P.3d 27. We further stated:

"When a computer user downloads images depicting child pornography, the original owner allows the computer user to duplicate the images onto the user’s computer, and keeps the original images on the original owner’s Internet server."

Id. at 364-65, 297 P.3d 27. We observed that even though the owner retains the original file, the "downloader [is] liable if that person knew that the contents of the original image contained child pornography but chose to create another set of images anyway." Id. at 365, 297 P.3d 27. We also analyzed ORS 163.684 using the familiar process of statutory construction that was outlined in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993), and modified by State v. Gaines, 346 Or. 160, 171-73, 206 P.3d 1042 (2009), and concluded that "downloading a video to a personal computer is the type of proliferation of child pornography that the legislature intended to prohibit when it enacted ORS 163.684." Pugh, 255 Or.App. at 364, 297 P.3d 27.

[4, 5] We overrule precedent only when it is plainly wrong, a rigorous standard satisfied only in exceptional cases, and the party seeking to change a precedent must affirmatively persuade us that we should abandon our prior decision. State v. Civil, 283 Or.App. 395, 415-17, 388 P.3d 1185 (2017). As we have explained, we examined our Urbina decision in Pugh, and we engaged in the usual method of statutory construction to conclude that downloading files from the internet goes beyond mere possession and instead creates a copy of the file, which itself amounts to the type of proliferation of child pornography that ORS 163.684 was intended to stop. We are not persuaded that Pugh is plainly wrong, and we decline to overrule it. The evidence that defendant downloaded and saved the images to his cellphone and that he was aware that they depicted child sexual abuse was not disputed, and that evidence is sufficient to allow a rational finder of fact to conclude that the state proved...