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State v. Saunders

Court of Appeals of Oregon

September 12, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
ROGER MICHAEL SAUNDERS, Defendant-Appellant.

          Argued and submitted November 21, 2017.

          Multnomah County Circuit Court 14CR20839; Karin Johana Immergut, Judge.

          Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Roger Saunders filed the supplemental brief pro se.

          Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary: Defendant appeals a judgment of conviction for first-degree sexual abuse and using a child in a display of sexually explicit conduct. He assigns error to the admission of certain evidence that he acted with a sexual purpose toward the five-year-old victim. First, he challenges under OEC 401 the admission of exhibits containing pornographic images that defendant had viewed, arguing that the evidence, which depicts post-pubescent females, is not relevant to whether defendant has a sexual interest in prepubescent girls. Second, defendant challenges under OEC 403 the admission of evidence that defendant had read stories containing graphic descriptions of young children being subjected to physical abuse. Held: The trial court did not err in admitting the images, which were relevant because they invite viewers to perceive the models as being prepubescent. Regarding defendant's challenge to the admission of the stories, defendant invited any error by the trial court.

         Affirmed.

         [294 Or.App. 103] GARRETT, J.

         Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse, ORS 163.427, and one count of using a child in a display of sexually explicit conduct, ORS 163.670.

         On appeal, defendant raises 11 assignments of error. We reject all of them without discussion except the third and fourth assignments, which challenge the trial court's admission of certain evidence that defendant acted with a sexual purpose. For the reasons explained below, we reject defendant's arguments and affirm.

         The charges against defendant arose from two incidents involving the victim, defendant's five-year-old granddaughter. The two sexual abuse counts arose from an incident in which defendant touched the victim's vagina and caused the victim to touch defendant's penis; the child-display count arose from a different incident in which defendant surreptitiously recorded a video of the victim dancing to cartoons while she was wearing only panties.

         In his third assignment of error, defendant challenges the trial court's admission of four exhibits containing pornographic images that defendant had accessed around the time that he abused the victim. The state offered those exhibits to show that defendant has a sexual interest in prepubescent children. Defendant objected on relevance grounds, asserting that the images depicted either post-pubescent children or young adult women and therefore had no tendency to show that defendant has an interest in prepubescent girls. The trial court generally agreed with defendant that any images that "clearly are of adults, young adults" were not relevant. However, the court admitted the referenced exhibits, explaining that images that "look[] like young girls, even fake young girls," were relevant.

         We review the trial court's OEC 401 relevance determination for legal error. State v. Swinney, 269 Or.App. 548, 554, 345 P.3d 509 (2015). "Relevant evidence" is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the [294 Or.App. 104] evidence." OEC 401. "The proper inquiry in determining a question of logical relevance is whether the item of evidence even slightly increases or decreases the probability of the existence of any material fact in issue." State v. Millar, 127 Or.App. 76, 80, 871 P.2d 482 (1994) (internal quotation marks and brackets omitted). Thus, the issue here is whether defendant's viewing of the pornographic images in question increases, even slightly, the probability that defendant acted with a sexual purpose in his conduct toward the victim. We conclude that it does, and that it is therefore relevant.

         The images are from websites with the names like "Lesbian Lolita" and "motherless.com." Unsurprisingly, the images depict females in contexts inviting the viewer to see them as young (e.g., wearing braces, lacking pubic hair). Indeed, defendant concedes that the images encourage viewers to see the depicted females as "underage." Defendant's narrow argument is that the images are nonetheless irrelevant because they "do not depict young women in contexts that invite the viewer to see them as prepubescent children." But we are unable to say as a matter of law that the images, in context (including the websites' names), do not invite the viewer to perceive the models as being prepubescent. Cf. Millar, 127 Or.App. at 81 (evidence of photographs depicting "a young nude female, with no pubic hair, wearing tennis shoes and bobby sox, with her finger in her mouth in a decidedly 'babyish pose" was relevant to ...


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