State v. Crook

524                   March 20, 2024                No. 178

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                  STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
                RADLEY EARL CROOK,
                  Defendant-Appellant.
                Lane County Circuit Court
                  21CR12555; A177182

  Kamala H. Shugar, Judge.
  Argued August 10, 2023.
   Joshua B. Crowther, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
  MOONEY, J.
  Affirmed.
Cite as 

 (2024)   525
526                                                          State v. Crook

            MOONEY, J.
         Defendant appeals a judgment of conviction for
eight counts of encouraging child sexual abuse in the first
degree (ECSA I), ORS 163.684.1 On appeal, defendant raises
15 assignments of error. In assignments one through eight,
defendant challenges the trial court’s denial of his motions
for judgments of acquittal (MJOA), arguing that the act of
downloading images from the internet does not constitute
the act of duplicating images under ORS 163.684. Defendant
acknowledges that we held to the contrary in State v. Pugh,

, 

, rev den, 

 (2013), but
he asks us to overrule Pugh as plainly wrong. We conclude
that Pugh is not plainly wrong, and we decline to overrule it.
         In assignments nine through 15, defendant challenges the trial court’s calculation of his criminal history
score under Oregon’s felony sentencing guidelines, arguing
that his conduct constituted a single criminal episode. The
state acknowledges that the trial court may have incorrectly
recalculated defendant’s criminal history on Count 6. We
agree that the court incorrectly recalculated defendant’s
criminal history on Count 6, but the recalculation did not
result in any incorrect increase in defendant’s criminal history. That is so because all the other counts were distinct
acts that constituted separate criminal episodes; therefore,
defendant’s criminal history score was accurately set at the
highest category, “A,” on Counts 4 through 8. We affirm.
                             I. THE FACTS
        The undisputed facts occurred “from March 6th
until March 12th of 2021.” During that time period, defendant downloaded eight images and videos depicting child
sexual abuse from the internet to his cellphone, and he
saved them as digital files in his download folder. Two files

   1
       ORS 163.684 provides, as relevant:
   “(1) A person commits the crime of encouraging child sexual abuse in the
   first degree if the person:
   “(a)(A) Knowingly develops, duplicates, publishes, prints, disseminates,
   exchanges, displays, finances, attempts to finance or sells a visual recording
   of sexually explicit conduct involving a child or knowingly possesses, accesses
   or views such a visual recording with the intent to develop, duplicate, publish, print, disseminate, exchange, display or sell it[.]”
Cite as 

 (2024)                                                527

depicted the same child and were downloaded within one
minute of each other (Counts 5 and 6). Each of the other six
files depicted a different child being sexually abused and
the time between those downloads was at least 14 minutes
and as long as 40 hours (Counts 1, 2, 3, 4, 7, 8).
                             II. THE TRIAL
         Defendant was charged with eight counts of ECSA I.
He waived his right to a jury trial, and the case was tried
to the court. The state proceeded on the theory that defendant’s acts of downloading images constituted duplicating
those images under ORS 163.684.2
          Police detectives and a defense-retained digital forensics expert testified that the download process begins when a
person sees an image or video on the internet that they wish
to download to their cellphone. When the person clicks on the
“three dots” next to the image and selects “download” from
the list of options, they are sending a request to the hosting
website for that image. The host site’s automated response
is to transmit the digital file “that’s behind [the] link” to the
requester who then has the ability to save and store the file
on their cellphone. Once downloaded and saved on the cellphone itself, the person may access the image, often in higher
quality resolution, without having to connect to the internet.
         Defendant’s testimony about the process he uses
to download images and videos from the internet was consistent with the general process described by the detectives
and defense expert:
      “[PROSECUTOR]: Okay. So, let’s start there, okay?
    There’s no images on your phone.
     2
       The state had two options for pleading criminal liability under ORS
163.684: (1) that defendant knowingly duplicated a visual recording of sexually
explicit conduct involving a child, or (2) that defendant knowingly possessed such
a visual recording with the intent to duplicate it. The indictment alleged that
defendant “committed” the crime of ECSA I when, in each of eight instances,
he “did unlawfully and knowingly possess and duplicate” images of child sexual abuse “being aware of and consciously disregarding” that the creation of the
image involved child abuse. Although it is not clear whether the state intended to
allege both theories here—duplication and possession with intent to duplicate—
it did not include the phrase “with intent to” in the indictment and it expressly
clarified at the time of trial: “The [s]tate has only pled that he duplicated them.
There’s one thing. We pled that he duplicated them. I guess we pled ‘or possessed,’
but we’re electing the duplicate.”
528                                                  State v. Crook

      “What’s the first thing you do? How do you search for
   the image?
      “[DEFENDANT]: I think what you’re getting at is I go
   to Bing.
      “[PROSECUTOR]:         Okay.
      “[DEFENDANT]: I type in, for the sake of what we’re
   talking about, let’s say I type in no nude preteens.
      “[PROSECUTOR]:         Okay.
       “[DEFENDANT]: And I can either have it bring up a
   list of Web sites or going to have it bring up a list of images.
      “[PROSECUTOR]:         Okay.
       “[DEFENDANT]: If I was on the images, I would click
   on that image and ask it to either bring up Web sites or—
   let’s say an image comes up that I like.
      “[PROSECUTOR]:         Okay.
      “[DEFENDANT]: And I click on it. It will either bring
   up an icon that says save or search. And if I want to save it,
   I want to put it in my download, then I hit save.
       “[PROSECUTOR]: Okay. And let’s say—let’s start first
   with just an image. Let’s just say it’s a picture, okay, and
   of, you know, a ten-year-old, something happening to them
   sexually. You can—you’re at the Web site. You can actually
   just look at that image on your phone, right? You can see it
   right there?
      “[DEFENDANT]: Yes.
      “[PROSECUTOR]:         Okay. Why do you need to save it?
        “[DEFENDANT]: It’s part of the ritual. It’s—I’m
   searching for this thing because I want it, and then I find
   it. I’m not going to remember it in ten minutes or in an hour
   or in a day. And, so, I save.”
        The trial court found defendant guilty on all counts
and specifically found that defendant “duplicated the child
pornography in each of the files that are in the State’s
exhibit” and that he “individually downloaded and duplicated each [file] in a separate and distinct episode.” It sentenced defendant to a 119-month prison term.
Cite as 

 (2024)                               529

          III.   THE FIRST EIGHT ASSIGNMENTS
A. Standard of Review
          We review the denial of an MJOA to determine
whether, viewing the evidence in the light most favorable to the
state, “a rational trier of fact, making reasonable inferences,
could have found the essential elements of the crime proved
beyond a reasonable doubt.” State v. Hall, 

, 

 (1998); see also State v. Allison, 

,

 (1997) (applying same standard of review to the
ruling from a bench trial). When that challenge presents an
issue of statutory construction, we review for legal error. State
v. James, 

, 

 (2014).
B.    Denial of MJOAs
         Defendant contends that the trial court erred in
denying his MJOA on each count. He argues that downloading a digital image or video from the internet is not “duplication” under ORS 163.684. In defendant’s view, the ECSA I
statute is intended to punish those who create and distribute media files depicting child sexual abuse, but not consumers of those files. He asserts that in order to duplicate a
file and commit ECSA I, a defendant must either possess the
original or make a copy with the intent to disseminate it.
          Defendant acknowledges our previous holding that
downloading a file from the internet constitutes duplication
under ORS 163.684. Pugh, 

. We addressed
the same question even earlier, albeit in a plain error context. 

 (discussing State v. Urbina, 

, 

, rev den, 

 (2012), which rejected a
contention that it was beyond dispute that downloading and
viewing images from a peer-to-peer file-sharing network
was no different than picking up a magazine and viewing
images in it). In Pugh, we examined our reasoning in Urbina
as we addressed the issue of whether downloading images
from the internet constituted duplication. As we explained:
     “We see no difference between creating a personal copy of
     child pornography through downloading from a peer-topeer network and downloading from independent sources
     on the Internet. In both situations, the original image
530                                                State v. Crook

   remains with the original owner, and a copy is saved onto
   the downloading party’s computer.”
Pugh, 

. We further stated:
   “When a computer user downloads images depicting child
   pornography, the original owner allows the computer user
   to duplicate the images onto the user’s computer, and keeps
   the original images on the original owner’s Internet server.”

. We observed that even though the owner
retains the original file, the “downloader [is] liable if that
person knew that the contents of the original image contained child pornography but chose to create another set of
images anyway.” 

. We also analyzed ORS 163.684
using the familiar process of statutory construction that
was outlined in PGE v. Bureau of Labor and Industries, 

, 

 (1993), and modified by State
v. Gaines, 

, 

 (2009), and concluded that “downloading a video to a personal computer is
the type of proliferation of child pornography that the legislature intended to prohibit when it enacted ORS 163.684.”
Pugh, 

.
          We overrule precedent only when it is plainly wrong,
a rigorous standard satisfied only in exceptional cases, and
the party seeking to change a precedent must affirmatively
persuade us that we should abandon our prior decision.
State v. Civil, 

, 

 (2017).
As we have explained, we examined our Urbina decision in
Pugh, and we engaged in the usual method of statutory construction to conclude that downloading files from the internet goes beyond mere possession and instead creates a copy
of the file, which itself amounts to the type of proliferation of
child pornography that ORS 163.684 was intended to stop.
We are not persuaded that Pugh is plainly wrong, and we
decline to overrule it. The evidence that defendant downloaded and saved the images to his cellphone and that he
was aware that they depicted child sexual abuse was not
disputed, and that evidence is sufficient to allow a rational
finder of fact to conclude that the state proved each element
of ECSA I beyond a reasonable doubt. The trial court did not
err when it denied defendant’s MJOAs.
Cite as 

 (2024)                               531

         IV. THE LAST SEVEN ASSIGNMENTS
A. Standard of Review
          We review defendant’s sentence for legal error. See
ORS 138.105(7), (8)(c)(A). “Whether conduct giving rise to
convictions constitutes a single criminal episode is a question of law, although the answer to that question may depend
on predicate findings of historical fact.” State v. Dent, 

, 

 (2023) (internal quotation
marks omitted).
B.   Reconstituting Criminal History Based on Separate
     Criminal Episodes
         In his second set of assignments, defendant contends that the trial court erred when it found that Counts 2
through 8 were separate criminal episodes for the purpose
of calculating his criminal history score under the sentencing guidelines grid, OAR chapter 213, division 4. The state
acknowledges that Counts 5 and 6 “may have involved a single uninterrupted course of conduct” given that those downloads were less than one minute apart and involved images
of the same child victim. The state thus allows for the possibility that the trial court erred in reconstituting defendant’s
criminal history score on Count 6 but argues that such error
was harmless because “defendant’s criminal history score
was already at the maximum of ‘A’ by the time the trial court
correctly reconstituted it for [C]ount 4[.]” For the reasons that
follow, we conclude that the trial court incorrectly treated
Counts 5 and 6 as separate criminal episodes; however, we
also conclude that that did not affect defendant’s criminal
history, which was correctly stated for each count.
         Defendant was sentenced under the Oregon sentencing guidelines. The trial court calculated defendant’s
presumptive sentence by juxtaposing (1) the seriousness of
the crime committed with (2) defendant’s criminal history at
the time of sentencing, and then assigning him a corresponding grid-block score. OAR 213-004-0001. The trial court correctly classified the criminal offense of ECSA I as a category
“8” on the crime seriousness scale. OAR 213-017-0004(15).
Defendant’s criminal history was categorized according to
the nature and extent of his prior convictions at the time he
532                                                            State v. Crook

was sentenced. OAR 213-004-0006. Criminal history categories range from the lowest category of “I” which indicates no
prior “juvenile adjudication for a felony or any adult conviction
for a felony or Class A misdemeanor,” to the highest category
of “A” which indicates that the defendant has been convicted
of “three or more person felonies in any combination of adult
convictions or juvenile adjudications.” OAR 213-004-0007.
         At the time his sentencing began, defendant had no
prior criminal history. On Count 1, the trial court scored
defendant as an “8-I” and sentenced him to a prison term
of 16 months. Defendant does not challenge his sentence
on Count 1. With each subsequent count, however, the trial
court recalculated defendant’s criminal history category to
reflect his conviction(s) on the previous count(s), and it is
those recalculations of criminal history to which defendant
assigns error.3

    3
      This table sets forth each count sequentially as charged in the indictment
with related information about the victim, time of download per testimony of
one of the police detectives, amount of time between the download charged and
the download most recently accomplished in chronologic order, grid block, and
sentence. It is included here for ease of reference as we explain our analysis and
conclusions regarding defendant’s last seven assignments of error.

                    Date & Time       Time from pre-      Grid
 Count    Victim                                                     Sentence
                    of Download       vious download      block
                    March 11      –
 1        A                           14 minutes         8-I       16 months
                    8:57 AM

                    March 11      – 5 hours,
 2        B                                              8-D       27 months
                    8:43 AM         30 minutes
                    March 11      –
 3        C                           28 hours           8-B       35 months
                    2:34 AM
                    March 6 – 6:47    0
 4        D                                              8-A       41 months
                    PM                (First download)

                    March 8       –                                41 months,
 5        E                           40 hours           8-A
                    10:50 AM                                       concurrent

                    March 8       –                                41 months,
 6        E                           < 1 minute         8-A
                    10:50 AM                                       concurrent
                    March 9       –                                41 months,
 7        F                           36 hours           8-A
                    10:37 PM                                       concurrent
                    March 11      –                                41 months,
 8        G                           45 minutes         8-A
                    3:13 AM                                        concurrent
Cite as 

 (2024)                               533

         A trial court may reconstitute a defendant’s criminal history score for multiple convictions in the same proceeding only if the convictions constitute separate criminal
episodes under statutory and constitutional double jeopardy
provisions. State v. Dulfu, 

, 

(2018). “Thus, a conviction does not count toward a defendant’s criminal history score if, for double jeopardy purposes, it arose out of the same criminal episode as the crime
for which the defendant is being sentenced.” 

          There are three alternative tests “for determining
when a prosecution for one charge will bar a later prosecution for another charge.” 

. The first test, referred
to as the “cross-related” test, asks whether the charges “are
so closely linked in time, place and circumstances that a
complete account of one charge cannot be related without
relating details of the other charge.” 

 (internal
quotation marks omitted). The second test asks whether
the charges arose out of a “single criminal episode,” defined
as “continuous and uninterrupted conduct that establishes
at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective.” 

 (internal quotation
marks omitted). The third test examines whether the criminal charges are “based on the possession of contraband.” 

These are alternative tests and, therefore, an affirmative
result on any one of the tests would mean that the convictions involve a single criminal episode and cannot be used to
reconstitute the defendant’s criminal history for purposes of
sentencing the defendant on those convictions.
         We begin with the third test, the possession of contraband, and conclude that it does not yield an affirmative
result. Defendant argues, relying on Dulfu, that ECSA I
is an inherently possessory offense and therefore, his conduct constitutes a single criminal episode. Defendant reads
Dulfu too broadly because in that case, the state did not
elect a theory under ORS 163.684, and the jury verdict form
did not identify the theory on which the jury reached its
verdict. Dulfu, 

. The court thus analyzed the
defendant’s charges under the theory that the defendant
possessed the images with the intent to duplicate them. 

534                                                          State v. Crook

at 674. Here, the prosecutor clarified that the state was proceeding solely on a theory of duplication, and the trial court
made findings and convicted defendant of ECSA I under
the sole theory of duplication. In short, defendant was not
charged with mere possession of the images in question. He
was charged with duplicating those images. Even if we were
to accept defendant’s argument that ECSA I is a possessory
offense, defendant was charged for the conduct that culminated in his possession of the files, i.e., his act of duplicating the images in question. And when the state criminally
charges and prosecutes crimes based on the underlying conduct that culminates in possession, rather than on possession itself, double jeopardy is not implicated. See, e.g., State
v. Oliver, 

, 

 (1976); State
v. Wilder, 

, 

 (2020), rev den,

 (2021).4
         We next turn to the “cross-related” test, which
examines whether charges are part of the “same act or
transaction.” Dulfu, 

. “[T]wo charges arise out
of the same act or transaction if they are so closely linked
in time, place and circumstance that a complete account
of one charge cannot be related without relating details of
the other charge.” State v. Fitzgerald, 

, 

 (1973). Overlapping evidence does not necessarily
establish that charges are cross-related. Dent, 

.
        In Dent, we determined that instances of mail theft
that occurred over a two-year period at different stops on
a mail carrier’s route were properly regarded as separate
criminal episodes. 

. We determined that
     4
       In Oliver, the defendant argued that he could not be serially prosecuted
for illegal elk possession and livestock theft because the contraband had been
discovered simultaneously—both the elk and livestock carcasses were discovered
hanging side by side in the defendant’s shed. 

. The court held
that the serial prosecutions did not violate double jeopardy principles as articulated in State v. Boyd, 

, 

 (1975): “[W]e would reach a
different result[ ] if the theft charge were based on defendant’s mere possession
of the steer …. Here, however, defendant was charged with the act which culminated in his possession of the steer[.]” Oliver, 

. Similarly
in Wilder, the court held that prosecution for unlawful hunting did not preclude
subsequent prosecution for felon in possession of a firearm because “the state
based the unlawful hunting charge on defendant’s conduct, not mere possession
of contraband.” 

.
Cite as 

 (2024)                              535

the charges were not cross-related because “each piece of
postmarked mail would have been enough to prove the
elements of mail theft by taking.” Id. at 174. Similarly, in
State v. Spynu, 

, 

 (2016), the
defendant submitted multiple false claims for payment as a
home health care worker. We concluded that, although the
crimes were repetitive in nature and involved overlapping
evidence, a “ ‘complete account’ of any single one of the theft
charges could be related without relating the details of the
other charges.” 

. By contrast, in State v. Nesbit, 

, 

 (2015), the defendant
filed a single false benefit claim with an insurance company
and then cashed multiple insurance checks over the course
of a year, resulting in multiple charges for aggravated theft.
The court held that the charges were cross-related because
“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 [the insurance company] issued the check pursuant to defendant’s initial false
claim for benefits.” 

 (emphasis in original). Here,
as in Dent and Spynu, any individual ECSA I charge could
be described without any mention of the details of the other
charges. Evidence establishing each download would be sufficient, without evidence of any other download, to prove the
elements of ECSA I. Although there is some overlapping evidence concerning file location, for example, that alone is not
sufficient to establish that the charges are cross-related.
          Defendant’s reliance on State v. Cale, 

, 

 (2014), is misplaced. There, the defendant was charged with multiple counts of ECSA I after he
took sexually explicit photos of his girlfriend’s child and then
transferred them from his camera to his phone, 

 at 637-
38, and the only evidence about the transfer of the images
was that the “pause between the transfer of the three photos … [was] an invariable two-second gap between each
transfer time stamp.” 

. We held that that evidence
was insufficient to permit a reasonable factfinder to determine that the files had not been uploaded concurrently. 

. Here, the gaps in time are much more significant,
and therefore, the download times present stronger evidence
that the files were not downloaded concurrently. Moreover,
536                                            State v. Crook

defendant’s own testimony, previously quoted, explaining
the process by which he finds and downloads images also
supports an inference that he independently downloaded
each file. His testimony in conjunction with the time stamps
of the downloads permits a reasonable factfinder to conclude
that he downloaded the files at separate times. Each of the
charges against defendant is supported by evidence of how
he downloaded the image in question. Although the evidence may sometimes overlap, establishing each count does
not require that the details of the other counts be related.
The charges and convictions are not cross-related.
         Turning next to the “same criminal objective test,”
we examine whether the charges stem from “continuous and
uninterrupted conduct that establishes at least one offense
and is so joined in time, place and circumstances that such
conduct is directed to the accomplishment of a single criminal objective.” Dulfu, 

 (internal quotation
marks omitted). “[T]he standard is not whether there is
any difference in time and space at all, but whether there is
enough of a difference in time, place, and circumstances surrounding the different acts to show that defendant’s conduct
was directed toward separate criminal objectives.” State v.
Burns, 

, 

 (2013). A criminal
objective, “refers to the pursuit of some object or attainment
of some goal beyond the successful commission of the acts
constituting the offense charged.” State v. Cloutier, 

, 599 n 21, 

 (1979).
         The state acknowledges that the question of whether
defendant’s conduct constituted separate criminal episodes
is closest under this test, especially—as noted above—with
respect to Counts 5 and 6. Defendant argues that there is
insufficient evidence that the downloads were separated by
enough time or other circumstances to show that he did not
act with a single criminal objective—to satisfy his pornography addiction.
        But the question of criminal objective is not
answered simply by broadening the scope of defendant’s
intent. See Wilder, 

. We find State v.
Martin, 

, 

, rev den, 

(2022), particularly instructive. The defendant in Martin
Cite as 

 (2024)                             537

was charged with multiple counts of felony public indecency
after he exposed himself to women working drive-through
service windows at five separate restaurants on the same
night, between 6:00 p.m. and 1:00 a.m. 

.
He argued that each incident that night had the same “single criminal objective of exposing himself for the purposes of
sexual arousal” and that they should, therefore, be treated
as a single criminal episode. 

 (internal quotation
marks omitted). Applying the definition of criminal episode
in ORS 131.505(4), grounded in the former jeopardy statutes, we rejected that argument. Martin, 

. We concluded that, even under defendant’s framing
of his criminal objective as being “exposing himself for the
purposes of sexual arousal,” the time, place, and circumstances of defendant’s conduct established that he achieved
his objective “separately at each drive-through.” 

(emphasis added). We explained that the defendant had
“committed each exposure at a different time, and [location]
miles apart,” and that his conduct was directed to individual victims. 

. Under those circumstances, we
concluded that “it would … not make sense to convert
defendant’s five targeted exposures into one criminal episode merely by framing his objective more broadly.” 

. That is because the facts “indicate that each exposure
was in pursuit of a more immediate and separate objective
of exposing himself for sexual gratification and was thus a
separate criminal episode.” 

 (internal quotation
marks and brackets omitted); see also Wilder, 

 (“Although [the] defendant may have formed an overriding goal to facilitate a father-son hunting trip, the record
supports the determination that his unlawful hunting and
possession of the shotgun were in pursuit of more immediate and separate objectives …. … To conclude otherwise would allow a defendant to convert numerous wildlife
violations or firearm offenses into a single criminal episode
by merely forming a broad intent to foster family bonding
through hunting.”). As we explained, sexual gratification “is
not a ‘discrete’ goal, in that [the defendant] did not need to
expose himself a specific number of times to achieve it. It is
more akin to the ‘distant and overriding’ goals of running
538                                            State v. Crook

a drug-dealing enterprise and fostering father-son bonding
through hunting.” Martin, 

.
         Here, we accept what amounts to a state concession
that the conduct charged in Counts 5 and 6 constitutes a
single criminal episode. Those images were of the same victim and were downloaded within less than one minute of
each other, supporting the determination that that conduct
was continuous, uninterrupted, and occurred under circumstances supporting the same criminal objective. However,
for the same reason expressed in Martin, there was sufficient evidence to support the trial court’s findings that the
downloading of images charged in the remaining counts
constituted separate criminal episodes. Given that, the fact
that the court recalculated the criminal history on both
Count 5 and Count 6, rather than only one of them, had no
effect on defendant’s criminal history category, which was
correctly stated as “A” for both of those counts. The court did
not err in recalculating defendant’s criminal history.
        Affirmed.