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A Bad Opinion in One Context Can Be a Great Opinion in Another

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by: Ryan • November 22, 2011 • no comments

[For] there is nothing either good or bad, but thinking makes it so.Hamlet Act 2, scene 2

I have tried to convince many of you that if a hundred child porn photos are found during the execution of a single search warrant, that all of the subsequent counts of Encouraging Child Sexual Abuse in the 2nd Degree are from one criminal episode. If they are from one criminal episode, and the defendant is an "I" for the first count, he's an "I" for the 100th count, and every count in-between. Sure, he could get consecutive sentences (assuming the merger arguments lose) but he's still presumptive probation on each count.

You don't believe me. I know you don't believe me. Because your response is, "But the prosecutor knows when each photo was downloaded and each photo was downloaded on a different day."

My response is: State v. Boyd. And without belaboring the point I made in that post, I still don't think any of you believe me. Defense attorneys can be really skeptical of these arguments.

So, I have to console myself that there are people who do believe me. Who? The AG's office and the Court of Appeals.

There is a case that is exactly on point. You may not have noticed it, because the defendant lost his argument. But while he was losing his argument, the AG and the COA were busy conceding the argument I make above.

The case is State v. Bell. In that case, the defendant had three photos. Each photo was obtained on a different date. Each photo was stored in a different computer in the defendant's house. Because each photo was obtained at a different time, and was stored in a different place, the COA ruled that the counts do not merge, but everyone - the AG, the COA - assumed the three crimes were from the same criminal episode.

Here, similarly, the record establishes that defendant's acts of possession of [the photos] were separate acts. He obtained each [photo] from a different person at a different time and then stored each [photo] in a different location within his residence. These facts demonstrate, as the trial court ruled, that defendant had the opportunity to renounce his criminal intent at each juncture. Consequently, ORS 161.067(3) authorized separate convictions for the possession of each [photo].

In case you've forgotten, ORS 161.067(3) only applies when there is one criminal episode:

(3) When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent. Each method of engaging in deviate sexual intercourse as defined in ORS 163.305, and each method of engaging in unlawful sexual penetration as defined in ORS 163.408 and 163.411 shall constitute separate violations of their respective statutory provisions for purposes of determining the number of statutory violations. [Bold added.]

So, let's summarize:

  1. Each piece of contraband was obtained on a different day.
  2. Each piece of contraband of stored at a different location in the same house.
  3. Each piece of contraband was found during a single search of his residence.

And while the counts don't merge, everyone agrees that it's one criminal episode, and so his grid score is never re-constituted.

Now, here's the punch-line. Everything I've said above is accurate, except. . . there weren't separate pictures at issue in Bell. There were separate firearms. But everything else is exactly the same, including the analysis. The irony is, I doubt the state would have made this concession quite so casually if the issue had been photos - rather than firearms - obtained on different days from different people. Regardless, there is no remotely rational or logical reason to find separate criminal episodes for photos obtained on different days than firearms obtained on different days. Consequently, if your client starts out as a criminal history I on the grid for counts 1, he remains an I for count 3, for count 20 and count 100.