In State v. Tilden, No. A146914 (Or. Ct. App. 2012), the Oregon Court of Appeals reversed a conviction on 101 counts related to child pornography possession as the state had not proven that the images found in the defendant's cache were ever possessed or controlled by the defendant.
The defendant was charged and convicted of 101 counts of encouraging child sexual abuse under an Oregon statute, one count for each image of child pornography found on his computer. A forensic analysis of the computer revealed that the images appeared on the defendant's computer after he "accessed [the] website by clicking on a link in an e-mail." The images were stored in his cache, which was later deleted but recovered from unallocated space.
At trial, the state argued the defendant possessed the images. No evidence was presented to show the "defendant actually did anything with the images other than view them on the website," though the forensic examiner testified as to the defendant's capability to do more, such as explaining that the images could be saved to a CD or thumb drive. A jury instruction noted that no evidence had been presented to show such actions had occurred, but in his closing argument, the prosecutor said:
″[The forensic examiner] talked about [defendant’s] ability to control each one of those digital images. He controlled whether they could be printed, transmitted, saved, downloaded. He talked about saving and downloading some—same thing. The fact that [defendant] didn’t do that doesn’t negate the fact that he had control over whether that happened. And interestingly enough he talked about, ’Well, hey, I didn’t download it and I didn’t print—or transmit it,’ excuse me. So he knew he could, he knew he had control of it.On appeal, the defendant argued that the evidence was insufficient to prove possession or control of the images. The state argued that the claim was not properly preserved at trial, and the court agreed, reviewing for plain error. The court of appeals held that because the state failed "to offer evidence that defendant had done something more than view the images on a website," there had been no proof of possession or control. As such, the convictions were reversed.