State v. Zweygartt

Court Finds Defendant Abandoned Privacy Interest in Smartphone; Merger Required on Two Counts

Defendant had given a smartphone to a minor, which was later discovered by the minor’s mother and turned over to police. The phone contained explicit images of the child, along with digital evidence connecting it to Defendant. Defendant was then convicted of two counts of using a child in a sexual display and five counts of second-degree encouraging child sexual abuse. On appeal, Defendant challenged the admission of evidence from the phone, arguing that he retained a privacy interest in the device.

The Court rejected that claim, concluding that Defendant had abandoned his possessory and privacy interests by giving the phone to the child without restrictions. Applying the abandonment factors from State v. Laney, the Court held that Defendant relinquished control over the phone and made it likely others would inspect it. The Court also rejected defendant’s argument that the arrangement constituted a bailment or retained a socially recognized privacy interest, finding no basis for either under Oregon law.

However, the Court did accept the state’s concession that the trial court erred in failing to merge Counts 1 and 2. Because the conduct underlying both counts occurred as part of a continuous criminal episode, without a sufficient pause to allow for renunciation, the counts should have merged under ORS 161.067(3). The case was reversed and remanded for resentencing. REVERSED and REMANDED with instructions to merge Counts 1 and 2; otherwise AFFIRMED.