State v. Barger

Annotate this Case

Filed: April 21, 2011

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

BARRY LOWELL BARGER,

Petitioner on Review.

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

En Banc

On respondent on review's petition for reconsideration filed March 7, 2011; considered and under advisement on March 30, 2011.*

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).

PER CURIAM

The state seeks reconsideration of this court's opinion 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 defendant had "possessed" or "controlled" those images within the meaning of ORS 163.686. The court concluded with the following 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 construed 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:

"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 circuit court in Case No. 200721991 is affirmed."

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

Primary Holding

Searching for and finding images of sexually explicit conduct involving children online on a personal computer cannot by itself lead to a conviction of possessing or controlling digital images of this conduct.

Facts

The police searched Barger's computer while they were investigating allegations that he had sexually abused a child. They found child pornography on the computer in the temporary internet cache, where the computer stores web pages on sites that the user recently visited. None of the images had been saved on the computer's hard drive. Barger was convicted after the judge denied his motion for judgment of acquittal.

Opinions

Majority

Dyke (Author)

Possession or control means a level of conduct greater than accessing and viewing certain material. Nobody who used Barger's computer had saved the pornographic images in personal files, even though it appeared that three websites contained illegal conduct had been accessed. Content that is stored in a temporary internet cache cannot be considered as lying within the user's control because the ordinary person might not know how to access the images there or understand how the internet cache system works. Seeing an image on a website is similar to seeing an object that a visitor brings into one's home, which one cannot be said to possess. The statute should not be interpreted so broadly that it would impose criminal liability on anyone who uses the internet and happens to come across an illegal image. If the legislature had intended to criminalize the mere viewing of child pornography, it would have constructed the statute with explicit language to that effect.

Case Commentary

The ability and intent to access child pornography does not equate to possessing it if the images are not saved.

Disclaimer: Justia Annotations is a forum for attorneys to summarize, comment on, and analyze case law published on our site. Justia makes no guarantees or warranties that the annotations are accurate or reflect the current state of law, and no annotation is intended to be, nor should it be construed as, legal advice. Contacting Justia or any attorney through this site, via web form, email, or otherwise, does not create an attorney-client relationship.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.