Argued and Submitted May 6, 2013
Clatsop County Circuit Court. 101220. Paula Brownhill, Judge.
Per C. Olson argued the cause for appellant. With him on the brief was Hoevet, Boise & Olson, P.C.
Ryan P. Kahn, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Wollheim, Presiding Judge, and Duncan, Judge, and Schuman, Senior Judge.
[261 Or.App. 97] SCHUMAN, S. J.
Defendant appeals his conviction on two counts of using a child in a display of sexually explicit conduct, ORS 163.670, and one count of first-degree encouraging child sexual abuse, ORS 163.684. The conviction was based on photographs found in defendant's home. In one, Exhibit 1, a fully clothed child is standing near defendant and a woman who are both nude and in a highly sexualized situation. The child is apparently looking at
defendant's exposed, erect penis. In another photograph, Exhibit 3, the adults are again engaged in sexual activity; the fully clothed child is standing near the woman's left side. One of the child's hands is touching defendant's leg and the other hand is reaching toward defendant.
The case presents two closely related issues. The first is whether, for purposes of the crime of using a child in a display of sexually explicit conduct, the images show the child " participat[ing] or engag[ing] in" such conduct and that defendant " permitt[ed]" that participation. The second is whether those same images depict " sexually explicit [261 Or.App. 98] conduct involving a child." Defendant moved for a judgment of acquittal (MJOA), arguing that the two photographs were insufficient to convict him of either offense. The court denied the motion and found defendant guilty. Defendant appeals. We conclude that there was evidence from which a trier of fact could reasonably find that the child was both participating and engaging in the sexually explicit conduct, that defendant permitted that participation, and that the conduct " involv[ed]" the child.
The following facts are undisputed. In July 2010, defendant was admitted to a hospital for medical issues related to alcohol use. While he was recovering, his daughter would periodically visit his residence to bring him changes of clothes and to check on his dog. She would also look around the house and remove any alcohol or firearms that she found. During one of those visits, in looking through one of her father's toolboxes, she saw " a wad of something stashed in there." Upon closer inspection, she realized that she had found photographs wrapped in a clear plastic bag. The photos were of her father engaged in various sexual acts with a woman. Several of the photographs also showed a child who appeared to be around one year old, whom defendant's daughter identified as the photographed woman's son. Defendant's daughter immediately turned the photographs over to police.
At trial, the state submitted several of the photographs as evidence. Exhibit 1  was taken from defendant's point of view and shows a woman either about to engage in, or having recently engaged in, oral-genital contact with defendant. The child, fully clothed, is standing to the left of the woman, looking at defendant's visibly exposed penis. The woman is unclothed, facing defendant, and pushing the child away with her arm. Defendant and the woman are not touching each other.
[261 Or.App. 99] Exhibit 3 was also taken from defendant's vantage point. The same woman, again unclothed, is engaging in oral-genital contact with defendant. The same child who appears in Exhibit 1 is fully clothed, standing to the left of the woman near her elbow, and looking at the sex act. One of the child's hands is touching defendant's naked leg and the other appears to be reaching ...