State v. Crook

“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.” State v. Pugh, 255 Or App 357 (2013). “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.” State v. Dulfu, 363 Or 647, 496 (2018).

Defendant appealed convictions for eight counts of encouraging child sexual abuse in the first degree (“ECSA I”). Defendant assigned fifteen errors to the trial court, one through eight challenge the trial court’s denial of his motions for judgement of acquittal (“MJOA”) and nine through fifteen challenge the trial court’s calculation of his criminal history score (“CHS”). Defendant argued that downloading an image from the internet does not constitute duplication of the image under ORS 163.684, and that counts five and six were considered one single criminal episode. The state didn’t respond regarding the MJOAs, but conceded that counts five and six could be considered one single criminal episode because the downloads were less than one minute apart. “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.” State v. Pugh, 255 Or App 357 (2013). “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.” State v. Dulfu, 363 Or 647, 496 (2018). The Court reasoned that the issue of whether downloading a copy from the internet constitutes a duplication was decided in Pugh and they declined to overrule it. The Court further reasoned that because counts five and six were only a minute apart, it could be considered a single criminal episode, but because the defendant had already reached a score of  “A” after count four the error was harmless. Therefore the trial court did not err in denying defendant’s MJOAs or in recalculation of his CHS. Affirmed.