Oregon Appellate Court - February 21, 2013

by: Jwestover and Abassos • February 22, 2013 • no comments

Encouraging Child Sexual Abuse I—Downloading = Duplicating

The word “duplicating” in ORS 163.684 includes “downloading.” The court reviews the legislative history and ultimately analogizes downloading files and saving them on a computer’s hard drive to developing a roll of film: “In both scenarios, the original owner retains the originals while the developer/downloader creates another set of images.” State v. Pugh, ___ Or App ___ (Feb. 21, 2013).

Circumstantial Evidence to Prove Venue

When a charge involves downloading files and saving them to a computer, sufficient evidence to prove venue exists where the defendant used a desktop computer equipped only with a dial-up connection, downloaded 58 files over a number of years, and lived at the same location for the past 10 years. The court distinguishes those circumstances from cases where a laptop computer with a wireless connection is used. State v. Pugh, ___ Or App ___ (Feb. 21, 2013).

The 90 day technical PPS sanction limitation in former OAR 235-11-004(3) applies to offenders on lifetime PPS

The exception for those on lifetime PPS for murder set forth in OAR 253-05-004 apply only to OAR 253-11-004(3)'s 180-day aggregate limitation. Under former OAR 235-11-004(3), a person who commits a single PPS violation cannot be sanctioned with more than 180 days of prison. There is an exception for persons serving “a life sentence”. But a determinate sentence followed by lifetime PPS is not “a life sentence”. Here, a defendant convicted of murder committed a single technical violation and, therefore, could not be given more than 90 days. Instead he received an 84-month parole sanction. Reversed. Hostetter v. Bd. of Parole and Post-Prison Supervision, ___ Or App ___ (Feb. 21, 2013), overruling in part Jones v. Bd. of Parole, 231 Or App 256, rev den, 347 Or 718 (2010).

Per Curiams

• Speedy Trial—The court accepts the State’s concession that a delay of 26 months in bringing the defendant to trial on a felony DUII charge was unreasonable where nothing on the record below demonstrated otherwise. The trial court should have granted defendant’s motion to dismiss. Reversed. State v. Beddingfield, __ Or App __ (Feb. 21, 2013)(per curiam).

• Dependency—Parents appealed the jurisdictional judgment made by the trial court. While that appeal was pending, the trial court issued an amended judgment on jurisdiction. The court accepts the State’s concession that the first judgment was based on insufficient evidence. The court holds that the trial court did not have jurisdiction to enter the second judgment while the appeal was pending. Judgment vacated. DHS v. ME, __ Or App __ (Feb. 21, 2013)(per curiam).