Criminal Episodes and Crime Sprees, Part II (Encouraging Child Sex Abuse)

You can’t understand the concept of criminal episodes unless you understand double jeopardy.   In my previous essay, I mentioned that DUII and DWS were part of the same criminal episode.  That fact has an impact on the maximum sentence a defendant could face.  But it also means that the prosecutor cannot charge a defendant with DUII, go to trial, get a verdict and then charge the defendant with DWS, go to trial and get a verdict.  It would violate the principle of double jeopardy, even though the defendant isn’t charged with the same crime twice.  Under the constitutional provision, the prosecutor has an obligation to bring all known charges in a single prosecution, as long as the charges arise from one criminal episode.

Consequently, some of the most important discussions of “criminal episodes” are not in cases that are about sentencing, but instead are cases involving double jeopardy,  where the prosecutor charged one crime, and then later charged another crime, both from the same criminal episode.  In those cases, the appellate courts said, “you can’t do that.”  Whether involving double jeopardy or sentencing, the rules surrounding “criminal episode” are the same, but if the defense attorney doesn’t know where to look (i.e., under double jeopardy, rather than sentencing), he or she might miss the best cases for his client

Take the crime of “encouraging child sex abuse.”   In Oregon, this means child pornography, either possessing or distributing.  It’s generally assumed that such photographs or films must be of underage sex, and therefore illegal sexual activity involving children, even absent a photograph being taken.  This isn’t strictly true.  In Washington state, the age of consent is 17, so a 17 year old having intercourse is legal, but a photograph of that activity brought into Oregon constitutes the crime of “encouraging child sexual abuse.”

For the purposes of this essay, we are going to limit the discussion to possession of child pornography, aka encouraging child sexual abuse in the second degree (“ECSA II”).

If a person possesses a single photograph that constitutes ECSA II, it is a felony, but the presumptive sentence is probation, as long as the defendant has no prior criminal history.  If the person possesses 10 photographs or 100 photographs or 1000 photographs, it is still presumptive probation, as long as the possession of those photos arise from one criminal episode (i.e., they are possessed simultaneously).  That doesn’t mean jail isn’t a possibility.  Jail in fact is likely.  But prison is unlikely, if, again, the defendant has no criminal history.

As I mentioned, if the photos are possessed simultaneously, that’s one criminal episode.  And that’s usually the case, since the photos will be found during the execution of a single search warrant on the defendant’s home and/or computer.  But if the prosecutor could somehow convince a judge that each photo constitutes separate criminal episodes, the defendant with ten photographs would be looking at years in prison.   This would give the prosecutor substantially more leverage in plea negotiations, enough leverage to convince the defendant to agree to some prison rather than risk more after trial.

How does a prosecutor turn ten photographs, found during the execution of a single search of the defendant’s computer, into 10 criminal episodes?  Modern technology.   Forensic computer experts can determine when the photographs were downloaded, and the prosecutor, in turn, would charge each crime on the day it was downloaded.  Thus, rather than charging the defendant with possessing ten photos on July 15, 2010, (the day the search was executed), the prosecutor could charge one count on one day, another count on a different day, and so on.  To the inexperienced attorney and judge, different days would mean different criminal episodes.

Think about it in terms of double jeopardy, however.  If the prosecutor’s gambit was legally valid, that would mean the police could search the defendant’s home, find the ten photos that were downloaded on different days, charge the defendant with possession of one photo, go to trial, lose, charge the defendant with a second photo, go to trial, lose again, and continue on until all photos are exhausted.  It would seem this kind of harassment is exactly the kind of thing the double jeopardy clause was intended to prohibit.

And in Oregon, it does.  All contraband found during the execution of a single search occurs during a single criminal episode.

If a defendant is charged with the possession of drugs, some of which had been acquired at one time and the rest at another time, it would seem clear that he would be entitled to object to multiple prosecutions. There would be no reason other than harassment of the defendant for the state to divide the condition of possession into parts and prosecute separately on each. The case should not be treated any differently simply because the items of contraband happen to be of different types. We hold, therefore, that the Court of Appeals properly treated this as a single episode.

State v. Boyd, 271 Or 558, 571 (1975)

As I mentioned above, if it is one criminal episode, and the defendant has no criminal history, he is facing probation, albeit with the possibility of some jail time.  (There is a separate issue, involving merger, which could reduce all the counts to a single conviction, but that’s a different essay for a different day.)   If an attorney has a client whose prosecutor has tried to circumvent this rule by charging the individual counts on the day the photos were downloaded, I would advise them of the analysis above, and I have, helping them negotiate to a much better sentence.  But prosecutors continue to do this type of creative charging for a reason:  it works.    And “it works,” in this situation, means that defendants – following the advice of lawyers who don’t understand the full scope of the law – agree to a prison sentence the law doesn’t require and often doesn’t allow.

Read Part III of Criminal Episodes and Crime Sprees