Submitted January 21, 2014.
Douglas County Circuit Court. 09CR1709FE. Ronald Poole, Judge.
Peter Gartlan, Chief Defender, and Susan Fair Drake, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Lysne, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Nakamoto, Judge, and DeVore, Judge.
[263 Or.App. 637] DEVORE, J.
Defendant appeals a judgment challenging convictions for crimes involving sexual exploitation of a child. At issue are convictions on three counts of using a child in display of sexually explicit conduct, ORS 163.670, and three counts of encouraging child sexual abuse in the first degree, ORS 163.684. Defendant argues that the several counts of each respective crime constituted a single criminal episode so as to require merger of the respective counts. If the several counts of each crime would merge, defendant would be convicted of the two offenses, not
six offenses. The state responds that the several counts of each crime constituted separate acts of criminality. We review for legal error. State v. Glazier, 253 Or.App. 109, 115, 288 P.3d 1007 (2012), rev den, 353 Ore. 280, 298 P.3d 30 (2013). We are bound by the trial court's findings of fact if there is sufficient evidence in the record to support them. Id. We reverse and remand.
T. S., the mother of children, A, M, and J, left them in defendant's care while she attended to errands most of the day. After T. S. returned, her oldest child, A, told her that something had happened to J. T. S. asked J, a four-year-old, to describe what happened. J said that defendant had brought her into his bedroom and propped a chair under the door handle. While in his bedroom, defendant took a series of nude photos of J. J related to her mother that defendant had then asked to put his tongue on her vaginal area. J explained to her mother that she had allowed defendant to do so because defendant had promised that she could use his camera if she complied, and she liked taking photos. M happened to knock on the bedroom door. Because J needed to use the toilet, defendant removed the chair from the door handle, redressed J, and took her to the bathroom. T. S. alerted the police. During the investigation, the police seized defendant's computer, laptop, hard drive, computer [263 Or.App. 638] discs, and digital camera. A search of defendant's devices revealed files containing child pornography. Defendant was indicted on 59 criminal counts. Several of the counts corresponded with photos of J on the camera and the transfer of those photos to defendant's computer.
At trial, an expert witness described child pornography that had been transferred from the camera. The content included pornographic and nonpornographic photos of J. The witness testified about the particular photos corresponding with Counts 2, 3, and 4 (using a child in display of sexually explicit conduct). One photo was taken on April 13, 2009, at " 3:28:40 a.m." ; another photo was taken at " 3:28:48 a.m." ; and a third photo was taken at " 3:29:56 a.m."  The photos were an image of J naked on a bed, an image of her vaginal area, and an image of her vaginal area next to the lower part of defendant's face. Those photos were later transferred to defendant's computer on April 29, 2009, a number of seconds apart, and corresponded to Counts 5, 6, and 7 (encouraging child sex abuse). The first photo was transferred at " 2:00:32 p.m." ; the second was transferred at " 2:00:34 p.m." ; and, the third photo was transferred at " 2:00:36 p.m." Defendant was convicted on those counts and others.
At sentencing, defendant argued that Counts 2, 3, and 4 should merge, and that Counts 5, 6, and 7 should merge. The state responded that each photograph constituted a separate criminal incident and each photo's transfer was a separate crime. The trial court concluded that " every time you take a photograph of a child, it's a separate crime." The trial court ...