## Facts

- Police investigated allegations that Barry Lowell Barger had sexually abused a child.
- During the investigation, an officer inspected the home computer after Barger's wife pointed to “weird” material and allowed inspection.
- Police seized the computer, made a forensic copy of the hard drive, and located multiple images of naked children only in the browser’s temporary Internet file cache.
- No charged images were found saved elsewhere on the hard drive in user-created directories.
- Investigators could not determine whether the images were intentionally accessed by Barger or were generated by pop-ups, redirects, or similar automatic web activity.
- The state charged multiple counts of Encouraging Child Sexual Abuse in the Second Degree under ORS 163.686(1)(a), each count tied to a different cached image.
- Detectives conceded there was no evidence that Barger intentionally downloaded or saved the images, knew how to locate the cache, or exercised control over the cache’s contents.
- The trial court denied Barger's motion for judgment of acquittal, and the jury convicted him; the Court of Appeals affirmed.

## Issues

1. Whether evidence that a defendant searched for and viewed child-pornographic images online, resulting only in automatically cached files, is sufficient to prove he “knowingly possess[ed] or control[led]” those images under ORS 163.686(1)(a).
2. Whether automatically created cache files, without evidence of the defendant’s knowledge of and dominion over the cache, establish constructive possession or control.

## Decision

- The Oregon Supreme Court reversed the Court of Appeals and the circuit court on the ORS 163.686 counts.
- The court held the evidence was legally insufficient to show that Barger “possessed or controlled” the images within the meaning of ORS 163.686(1)(a).
- The case was remanded with instructions to enter a judgment of acquittal on the Encouraging Child Sexual Abuse in the Second Degree counts.
- On reconsideration, the court clarified that the reversal and acquittal disposition applied only to the ORS 163.686 convictions in one consolidated case and did not disturb separate convictions for other sex crimes in the other consolidated case.

## Legal Principles

- ORS 163.686(1)(a) is a possessory offense; it requires proof of knowing possession or control of a visual recording, not mere online viewing.
- “Possess” and “control” require dominion over the item; simply causing an image to appear on a screen, without more, does not satisfy the statutory terms.
- Automatically created browser cache files do not establish possession or control absent evidence that the defendant knew of the cache and exercised dominion over the stored files.
- Constructive possession is not shown by a merely theoretical, unexercised capability to locate or manipulate cached files.

## Conclusion

The court held that proof of intentional online viewing, coupled only with images stored automatically in a temporary Internet cache and without evidence of knowing dominion over those files, does not prove “possess[ion] or control” under ORS 163.686(1)(a), requiring acquittal on the charged child-pornography possession counts.


State v. Barger, 349 Or. 553, 247 P.3d 309 (Or. 2011)