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State v. Smith

Court of Appeals of Oregon

March 26, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
ALBERT MERRILL SMITH, Defendant-Appellant

Argued and Submitted: December 28, 2012.

Josephine County Circuit Court. 09CR0419, 10CR0323. Thomas M. Hull, Judge.

Ingrid A. MacFarlane, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Ryan Kahn, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before Wollheim, Presiding Judge, and Nakamoto, Judge, and Schuman, Senior Judge.

OPINION

Page 1130

[261 Or.App. 667] WOLLHEIM, P. J.

In this consolidated appeal, defendant appeals from judgments of conviction for two counts of using a child in a display of sexually explicit conduct based on evidence regarding unrecovered photographs of B, his neighbor's daughter, in Case No. 09-CR-0419,[1] and two counts of using a child in a display of sexually explicit conduct based on photographs of A, his second cousin's daughter, in Case No. 10-CR-0323. See ORS 163.670(1) (2009).[2] Defendant advances four assignments of error. In his first two assignments of error, defendant challenges the trial court's denial of his motion for judgment of acquittal for the counts involving A and makes a combined argument that the state failed to provide sufficient evidence to support a finding that he compelled or induced A to " participate or engage in sexually explicit conduct," as required by ORS 163.670(1). In his third and fourth assignments, defendant assigns error to the trial court's denial of his motion for judgment of acquittal on the counts involving B and makes a combined argument that the state failed to offer sufficient evidence to support a finding that the unrecovered photographs of B were of sexually explicit conduct, namely a " [l]ewd exhibition of sexual or other intimate parts[,]" as required by ORS 163.665(3)(f) (2009), amended by Or. Laws 2011, ch 515, § 1.[3] Specifically, defendant contends that " mere nudity" does not constitute a lewd exhibition and that this court's interpretation of lewd exhibition in State v. Evans, 178 Or.App. 439, 37 P.3d 227 (2001), rev den, 334 Or. 76, 45 P.3d 450 (2002), was wrong and should be overruled. For the following reasons, we reject defendant's arguments and, therefore, affirm.

[261 Or.App. 668] In reviewing the denial of a motion for judgment of acquittal, we view the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the state to determine whether a rational trier of fact could find that the state proved each element of the offense beyond a reasonable doubt. State v. Hall, 327 Or. 568, 570, 966 P.2d 208 (1998). We state the facts according to that standard.

In 2009, when B was six years old, she reported to her mother that defendant had

Page 1131

touched her on several occasions; defendant was 41 years old at the time that B reported the touching. Since 2005, defendant had lived next door to mother and her two children and, over time, mother had gotten to know defendant personally and trusted him to watch B for brief periods of time while B played in defendant's backyard. Mother estimated that defendant was alone with B over 100 times from 2007 to 2009. In July 2009, B and her friend, N, spent the day together in a wading pool at B's apartment and then went into B's bedroom to get dressed and ready for dinner. Mother found the girls in B's bedroom naked and touching each other. Mother told the girls to get dressed immediately and called N's mother to pick her up. After N left, mother asked B if what had happened in the bedroom had ever happened before, and B responded, " Only with [defendant]." Mother asked B what she meant by that statement, and B said that defendant had pulled her pants down, touched her, and photographed her " pee-pee." When mother asked B how many times that had happened, B responded, " A lot."

The next morning, mother called the Women's Crisis Support Team and arranged to meet with a police officer. That same day, Grants Pass Detective Pierce interviewed B at the Grants Pass Children's Advocacy and Treatment Center. During the interview, Pierce asked B if she knew anyone who had a " touching problem," and B responded that defendant had a touching problem and that he had taken pictures of her vagina. B explained that, when she was in defendant's backyard, defendant had pulled down her pants and underwear and made her lie on her back while he took pictures of her. B said that she never saw the photographs because defendant deleted them. B also explained that, [261 Or.App. 669] while her clothes were off, defendant touched her vagina with his hand. When Pierce asked her how many times that had happened, B responded that it had occurred more than one time. Pierce also asked B if any part of her body had touched defendant's body, and B recounted that, on different occasions, defendant got on top of her and moved up and down while she was lying on a red mat in his backyard. B also stated that defendant would give her kisses. When asked if defendant ever gave her things, B responded that defendant gave her gum and stickers after he had touched her and taken photographs of her.

After the interview, Pierce, along with some other officers, went to defendant's home to execute a warrant to search defendant's residence, and defendant was home at that time. Pierce asked defendant if he would be willing to speak with her in a police van parked outside while the other detectives searched his house, and defendant agreed. In the van, Pierce advised defendant of his rights and then told him what B had said to her during the interview. In response, defendant admitted to knowing B, but denied taking photographs of B naked, touching her vagina, or taking photographs of B while she was naked, or simulating sexual acts on top of her. Pierce eventually asked defendant if he would continue their conversation at the Grants Pass Sheriff's Office, and defendant agreed.

Meanwhile, the other officers searched defendant's bedroom and found nine computers, several video cameras, at least one digital camera, and five cell phones. The officers discovered " close to 500" photographs of clothed children, many of which depicted young girls. In defendant's bedroom closet, there were items of children's clothing (including young girls' clothing) and toys; defendant did not have any children. The officers seized a fanny pack that defendant was wearing around his waist, containing a small digital camera, and later sent the camera for forensic analysis.

At the sheriff's office, defendant was first interviewed by Detective Auborn. During that interview, defendant admitted that he did, in fact, take photographs of B with her pants and underwear pulled down to her knees and that the photographs were taken about one year before. Although [261 Or.App. 670] he had admitted to taking the photographs, defendant again denied touching B, removing her clothing, or having simulated sexual acts on top of her. After defendant spoke with Auborn alone, Pierce came in to follow up with defendant about what he had just admitted to Auborn. During that second interview with Pierce and Auborn, defendant gave some details about the photographs that he

Page 1132

had taken of B, explaining that B was naked from the waist down to about her knees, and that he had taken the photographs in the side yard of his house. He also stated that he had deleted the photographs of B and acknowledged that taking the photographs was a " bad idea." At some point during the interview, defendant started talking about other photographs that he had taken of A, his second ...


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