Argued and Submitted October 31, 2014.
Grant County Circuit Court. 1208199CR. W. D. Cramer, Jr., Judge.
Erik M. Blumenthal, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jeff J. Payne, 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 Lagesen, Presiding Judge, and Haselton, Chief Judge, and Armstrong, Judge.[*]
[270 Or.App. 207] LAGESEN, P. J.
On appeal from a judgment of conviction for two counts of rape in the second degree, one count of sexual abuse in the first degree, and one count of attempted use of a child in a display of sexually explicit conduct, defendant assigns error to the trial court's denial of his motion for judgment of acquittal on the charge of attempted use of a child in a display of sexually explicit conduct. He argues that, in denying the motion for judgment of acquittal, the trial court erroneously interpreted the word " permits" in ORS 163.670(1), and asserts further that, if the statute is correctly construed, the evidence is insufficient to support his conviction for attempting to violate it. He also assigns error to the trial court's failure to sua sponte strike purported " vouching" evidence. We affirm, concluding that the trial court's construction of ORS 163.670(1) is correct under our decisions in State v. Porte r, 241 Or.App. 26, 249 P.3d 139, rev den, 350 Or. 530, 257 P.3d 1020 (2011), and State v. Richardson, 261 Or.App. 95, 323 P.3d 311, rev den, 355 Or. 880, 333 P.3d 334 (2014), and that the trial court did not plainly err in failing to strike " vouching" evidence.
Defendant was charged by information with two counts of rape in the second degree, in violation of ORS 163.365; two counts of sexual abuse in the first degree, in violation of ORS 163.427(1)(a)(A); one count of online sexual corruption of a child in the first degree, in violation of ORS 163.433; and one count of attempted use of a child in a display of sexually explicit conduct, in violation of ORS 161.405 and ORS 163.670. With respect to the count of attempted use of a child in a display of sexually explicit conduct, the information alleged that defendant " did unlawfully attempt to permit [M], a child, to engage in sexually explicit [270 Or.App. 208] conduct for a person to observe[.]" The charges arose when an investigation conducted by the Grant County Sheriff's Department revealed that defendant had become involved in a romantic relationship with 13-year-old M, which eventually turned sexual; defendant was 25 years old at the time the relationship started.
During trial, Deputy Burgett, who was involved in the investigation of defendant, recounted his interviews with M. In response to a question from the prosecutor about whether Burgett wished that he had spent more time trying to get more detail from M about characteristics of defendant that would
be known only to someone who was intimate with defendant, Burgett stated:
" Honestly, it was at the point where she finally was coming forward with, you know, her statements as far as that they had had sex, and I asked--it was just a general question as I was covering my bases. I thought the information she gave ...