## Facts

- Gregg Bryant Ritchie was prosecuted in Clackamas County, Oregon for 20 counts of Encouraging Child Sex Abuse in the Second Degree (ORS 163.686) based on sexually explicit digital images of children found on computer hard drives.
- Law enforcement used forensic software to locate and reconstruct many images from the drives’ “unallocated space,” where deleted data may remain but is not ordinarily accessible to typical users.
- The state’s proof centered on the forensic presence of the images and the expert’s ability to recover them, rather than evidence that Ritchie saved, organized, or could readily retrieve the images through ordinary computer use.
- Ritchie argued the evidence did not establish that he “possesse[d] or control[led]” the images as required by ORS 163.686, and also challenged venue for counts 11–20.
- The trial court entered convictions on all 20 counts; the Court of Appeals affirmed counts 1–10 and reversed counts 11–20 for failure to prove venue, rejecting the possession/control challenge.

## Issues

1. Whether evidence that child-sex-abuse images existed on a defendant’s hard drives—many recoverable only from unallocated space using forensic software—was sufficient to prove the defendant “possesse[d] or control[led]” the images under ORS 163.686.
2. Whether the state presented sufficient evidence of venue in the county of prosecution for counts 11–20.

## Decision

- The Oregon Supreme Court reversed the Court of Appeals in part and held the evidence was insufficient to prove that Ritchie “possesse[d] or control[led]” any of the charged images within the meaning of ORS 163.686.
- The court reversed the circuit court judgment and remanded with instructions to enter a judgment of acquittal on all 20 counts.
- Because the convictions failed on the possession/control element, the court did not decide the venue issue.

## Legal Principles

- Under ORS 163.686, “possess” or “control” requires proof of actual dominion over the images, not merely that an image appeared on a screen or existed somewhere on a storage device.
- The state must prove more than a transient capacity to view; it must show knowing retention or an ability to exercise control consistent with possession (e.g., saving, downloading, maintaining, organizing, or otherwise managing the files).
- Images located only in unallocated space, not ordinarily accessible or discoverable by a typical user without specialized forensic tools, do not by themselves establish present ability to exercise control for purposes of “possess or control.”
- When evidence is legally insufficient on an essential element, the proper remedy is acquittal rather than retrial.

## Conclusion

The court held that forensic recovery of deleted child-sex-abuse images from unallocated space, without proof that the defendant could access or exercise dominion over those files through ordinary use or knowing retention, is insufficient to establish “possess or control” under ORS 163.686, requiring acquittal on all counts.


State v. Ritchie, 349 Or. 572, 248 P.3d 405 (Or. 2011)