Did we just win one of the main ECSA sentencing arguments?

This wikilog article is a draft, it was not published yet.

by: Ryan • November 4, 2015 • no comments

Assume the police execute a search warrant on defendant's property, and they seize his computer. On his computer, they find twenty photos of child porn, each one downloaded on a different date. Since the COA has held that downloading equals duplication, the defendant is charged with twenty separate counts of ECSA I, each having alleged to have occurred on the date the picture was downloaded.

If the counts are deemed to be from one criminal episode, and the defendant has no criminal history, the defendant stays a criminal history I for all counts. While he can still get hammered (probably, with one argument to the contrary below), his exposure is far less than if the court finds separate criminal episodes, and he moves from an I to a D to a B to an A to an AAAAAAA.

While the police can prove the pictures were downloaded on different days, an essential and necessary aspect of proving each count is that the images were all taken off of defendant's house computer, which was seized pursuant to a single execution of one search warrant. If the state doesn't offer evidence of how the computer was seized and searched, the state most likely cannot prove any of the counts of ECSA.

Keep this in mind when analyzing the issue of separate criminal episodes, as discussed in today's opinion, State v. Nesbit:

The first step in the analytical sequence by which we determine whether crimes arise from the same criminal episode requires us to consider “whether ‘a complete account of one [crime] necessarily includes details of the other’ or, framed another way, whether the crimes are ‘cross-related.’” Witherspoon, 250 Or App at 322 (quoting Potter, 236 Or App at 82-83; State v. Boyd, 271 Or 558, 566, 533 P2d 795 (1975)) (emphasis in Potter).

It is at this step that the record prevents us from determining that the state proved that the conviction on Count 1 was a “previous conviction.” Beyond the state’s explanation that 21st Century made payments “pursuant to” defendant’s initial filing of “a single claim,” the record included the presentence investigation (PSI) report that provides no meaningful additional detail.

Although the indictment does not specify the legal theory of theft on which the charges are based, the factual basis described by the state would appear to constitute “theft by receiving,” which can be committed when a person obtains property of another by “[f]ail[ing] to correct a false impression that the person previously created or confirmed.” ORS 164.085(1)(b). If that were the theory of theft, then a complete account of why defendant committed theft each time he deposited one of the insurance checks issued to him would necessarily include the detail that 21st Century issued the check pursuant to defendant’s initial false claim for benefits.

In Nesbit, the defendant cashed checks on different days. In my hypothetical, the defendant downloaded images on different days. In Nesbit, the defendant can't be convicted of theft without discussing his inital false claim. In my hypothetical, the defendant can't be convicted of ECSA without the evidence of the original search and seizure of his computer. In both cases, the evidence to prove one is essential to proving the other. Ergo, one criminal episode.

So if you win that, what's the remaining sentencing issue to keep your client from being hammered? E-mail me for the answer.