Today's opinions said nothing about child porn and yet. . . .
by: Ryan • October 17, 2013 • no comments
Today, the Oregon Supreme Court issued an opinion in State v. Mills, and it dismissed the review of State v. Campbell, which resulted in a concurrence by Justice Walters. Neither case has anything to do with child porn. But both will have an impact on child porn cases in the future, one directly, one indirectly.
Let's take Mills first. If your client has child porn on his laptop, and the state can identify when it was downloaded, but the prosecutor may have difficulty figuring out where it was downloaded, he or she may nevertheless charge Encouraging in the First Degree on or about the date the images were "duplicated."
Rather than waiting until trial to determine if the state can prove venue beyond a reasonable doubt, it is now incumbent on defense counsel to raise a venue challenge under Article I, section 11, pre-trial. The sooner the better. And the state will have to prove venue. Whether the burden on the state is by a preponderance or beyond a reasonable doubt, that has yet to be decided.
The other type of case that frequently has venue problems is the crime of Failure to Register as a Sex Offender. You need to make the challenge now, and in some cases, that's great news, because if you've got a strong venue argument, you won't have to wait until trial to (potentially) get your in-custody defendant released.
Now what about Campbell? Justice Walters was writing only for herself, in a case dismissed as improvidently granted (a dismissal she endorsed). But she obviously has concerns about how trial courts -- and, I suspect, the Court of Appeals -- have been approaching the issue of "separate criminal episodes," and she has advice that is -- primarily -- directed at the legislature to be more clear.
There's a lot to love about the concurrence, even recognizing that in the circumstances in which it has come up, it's debatable how much weight should be given to her insights. Nevertheless, it does talk about State v. Boyd, a big deal in the criminal episode universe, since the COA has written opinions that seem to directly conflict with Boyd.
Boyd holds that different types of contraband, discovered during the same search, constitute one criminal episode, regardless of when the contraband was obtained. In Orchard v. Mills, the Court of Appeals held that multiple firearms discovered during the same search of the defendant's house can each be from separate criminal episodes if obtained on different days. How do you explain the difference? I don't know, and the COA didn't try, despite the opinion being written by one of the finest appellate judges in Oregon.
How does this play with child porn? If a defendant is charged with 300 counts of ECSA II, each downloaded on a different day, is each of those counts from a separate criminal episode as the other, which would convert a presumptive probation sentence to a potential life sentence? Or would Boyd apply? The reasoning in the Campbell concurrence has a lot of nuggets that would benefit defense attorneys who must make the argument.
The tougher argument is when the defendant is charged with 300 counts of ECSA I, and the state alleges separate criminal episodes based on when each item was downloaded. This would permit the state, at least in theory, to charge one count, win or lose, charge another, win or lose, and so on for a total of 300 times. Sure, no prosecutor would do that, but if that's permissible, what kind of protection does the double jeopardy clause actually provide?
Can we make a Boyd argument in that scenario, even though the behavior is more than just possession, it's "duplication"? Here's something even more complicated. What if the state has charged 150 counts of ECSA II and 150 counts of ECSA I? The same pictures in the first 150 counts are the same pictures in the 2nd 150 counts. How does Boyd work then? The ECSA II counts would be from one criminal episode under Boyd, each photo would be from the same criminal episode as the corresponding ECSA I count, but the ECSA I counts would all be from separate criminal episodes?
It's a mess. But it's a mess that can be cleaned up. Hopefully, the concurrence of Justice Walters is a synecdoche for a larger judicial willingness to tackle the issue head on.
