No. Just looking at a picture on a screen is not the same as possessing it. The judges explained that the law against 'possessing' these pictures means you have to actually control them. They said looking at a website is like walking through a museum—you can see the paintings, but you don't own them. The court also pointed out that another part of the law specifically makes it a crime to *pay money* to view these images. That suggests that just *viewing* them for free isn't the crime the 'possession' law was meant to stop. To be guilty, a person has to take an extra step, like clicking 'save' or printing the picture.

Yes. The judges who disagreed thought that looking at the pictures online should count as possessing them. They didn't write out a full explanation, but instead said they agreed with the reasoning written in another, very similar case.

No, the high court said just going to a website and seeing bad pictures isn't enough to 'possess' or 'control' them under the law. The law doesn't make it a crime to just find or look at this stuff without doing something more to show you want to keep it. So there wasn't enough proof Barger really had the pictures.

The dissenting judge would have agreed with the lower courts that Barger was guilty. He thought intentionally looking for and viewing the child porn pictures was enough to possess or control them.

—confronted a similar issue: "Can a person be found guilty of'possessing] or controlling] 1 digital images of sexually explicit conduct involving a child, as that phrase is used in Oregon Revised Statute Section 163.686 (1)(a), based on evidence showing only that the person searched for and found such images through the Internet on his or her computer?"

—a)(A)(i), when read in the light of its context (particularly ORS 163.686 (1)(a)(A)(ii)), embodies a considered legislative choice not to criminalize the mere `obtaining'or `viewing'of child pornography without consideration. Thus, we conclude that the acts at issue here—navigating to a website and bringing the images that the site contains to a computer screen—are not acts …

—despite evidence that the defendant viewed child pornography over the Internet, there was no evidence that the defendant knew or understood that the files were downloaded into a temporary Internet file cache

We supplement the state's summary of constructive possession by adding that, although "[t] he verb `control'is not statutorily defined,*** its common meaning, as set out in Webster's Third New Int'l Dictionary 496 (unabridged ed 2002), is `to exercise restraining or directing influence over: REGULATE, CURB. "

T] he word `possess' encompasses two alternative ways of possessing property that this court traditionally has recognized:(1) physically controlling the property (`actual'possession) and (2) exercising some other kind of dominion or control over the property (`constructive'possession

At most, he asserts, the state's evidence can only prove that he knowingly possessed child pornography in violation of second-degree encouraging child sexual abuse. ORS 163.686

Looking for something on the Internet is like walking into a museum to look at pictures—the pictures are where the person expected them to be, and he can look at them, but that does not in any sense give him possession of them

A couple of the cases he cites determined that their respective legislatures did not intend to criminalize behavior such as Linson's.

It may be that this is a case in which the statutory text, at least subsection (1)(b), "appears not to have been written for the digital world in which we live."

For purposes of our review of the denial of the MJOA, we thus assume, without deciding, that downloading constitutes duplication under ORS 163.684

No. A computer user does not 'possess or control' digital images within the meaning of ORS 163.686(1)(a) solely by accessing and viewing them on an internet browser. The court reasoned that 'possession' requires either physical possession or the exercise of dominion or control. The mere transient display of an image on a screen does not meet this standard, as it is analogous to viewing a picture in a museum—one can see it but does not possess it. The court found a key contextual clue in a related subsection of the statute, ORS 163.686(1)(a)(A)(ii), which separately criminalizes 'paying' to 'obtain or view' such material. This indicates the legislature's intent to treat mere 'viewing' differently from 'possessing' and to criminalize viewing only when accompanied by a payment or exchange of value. The court rejected the state's argument that the ability to save, print, or email an image constitutes constructive possession, citing precedent like State v. Casey, which held that mere proximity and the physical ability to exercise control over an item are insufficient to establish possession.

Yes. The dissent would affirm the lower courts' decisions, finding that the defendant's actions constituted possession or control. The opinion does not provide independent reasoning, instead incorporating by reference the reasoning from the dissenting opinion in a companion case, State v. Ritchie, 349 Or 572 (2011).

No, the Supreme Court of Oregon held that the acts of navigating to a website and bringing images to a computer screen do not constitute 'possessing or controlling' within the meaning of ORS 163.686(1)(a)(A)(i), because the legislature did not intend to criminalize the mere 'obtaining' or 'viewing' of child pornography without additional evidence of intentional control or dominion over the images. The Court emphasized that something more than simply accessing and looking at incorporeal digital material is required to 'possess' or 'control' it under the statute. Therefore, the evidence presented was insufficient to establish Barger's knowing possession or control of the images.

The dissent would have affirmed the Court of Appeals decision and the trial court's judgment for the reasons stated in the dissenting opinion in State v. Ritchie, 349 Or 572 (2011). In that dissent, Justice Kistler argued that the defendant's actions of intentionally seeking out and viewing child pornography images were sufficient to constitute possession or control under ORS 163.686(1)(a)(A)(i).

State v. Barger

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