Sunday, November 17, 2013

State v. Barger case brief

State v. Barger case brief summary
247 P.3d 309 (2011)

Defendant was convicted of possessing or controlling digital images of sexually explicit conduct involving a child, in violation of Or. Rev. Stat. § 163.686(1)(a), based on evidence that he searched for and found such images through the Internet on his computer. The Court of Appeals, Oregon, affirmed. Defendant sought further review.

The Oregon Supreme Court held that Or. Rev. Stat. § 163.686(1)(a)(A)(i), when read in the light of its context (particularly § 163.686(1)(a)(A)(ii)), embodied a considered legislative choice not to criminalize the mere obtaining or viewing of child pornography without consideration. Thus, the acts at issue in the current case—navigating to a website and bringing the images that the site contained to a computer screen—were not acts that the legislature intended to criminalize.


  • Applying its conclusions to the record in the current case, the court held that defendant's motion for a judgment of acquittal should have been granted. 
  • There was no evidence in the record that, at any time, defendant possessed or controlled any of the eight images that were the subject of the charges against him under § 163.686(1)(a)(A)(i).

The court reversed the decision of the court of appeals, reversed the judgment of the circuit court, and remanded the case to the circuit court with instructions to enter a judgment of acquittal.

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