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State v. Horseman

Court of Appeals of Oregon

October 17, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
SCOTT MICHAEL HORSEMAN, Defendant-Appellant.

          Argued and submitted May 31, 2016

          Washington County Circuit Court C130151CR

          David O. Ferry, Deputy Public Defender, argued the cause for appellant. Also on the opening brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services. Scott Michael Horseman fled the supplemental brief pro se.

          Michael A. Casper, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before Tookey, Presiding Judge, and Hadlock, Judge, and DeHoog, Judge. [*]

         [294 Or.App. 399] Case Summary:

         Defendant was convicted of 12 counts of various sex crimes based on his sexual encounters with teenage boys when he was in his late 40s. His convictions include five counts of using a child in a display of sexually explicit conduct, ORS 163.670, and on four of those counts, the trial court sentenced defendant to concurrent 300-month prison terms as required by ORS 137.690. On appeal, defendant challenges those statutorily mandated 300-month prison terms, arguing that, under Article I, section 16, of the Oregon Constitution, they are unconstitutionally disproportionate as applied to the circumstances of this case. As part of that argument, defendant contends that the test from State v. Rodriguez/Buck, 347 Or. 46, 217 P.3d 659 (2009), does not apply to ORS 137.690. Held: The trial court did not err. Under State v. Carey-Martin, 293 Or.App. 611, P.3d (2018), ORS 137.690 does not operate under the case-specific circumstances as a recidivism statute and the test from Rodriguez/Buck applies. Under that test, defendant's case is not one of the rare cases in which Article I, section 16, precludes imposition of the legislatively mandated sentence.

         Affirmed.

         [294 Or.App. 400] HADLOCK, J.

         Defendant was convicted of 12 sex crimes related to the multiple sexual encounters he had with teenaged boys when he was in his late 40s. Defendant's convictions include five counts of using a child in a display of sexually explicit conduct, ORS 163.670, based on defendant having repeatedly induced one of the victims to masturbate while defendant watched. On four of those sexual-display convictions, the trial court sentenced defendant to concurrent 300-month prison terms under ORS 137.690.[1] Defendant challenges those statutorily mandated 300-month prison terms on appeal, arguing that they are unconstitutionally disproportionate as applied to the circumstances of this case.

         We recently addressed a similar argument in State v. Carey-Martin, 293 Or.App. 611, ___ P.3d ___ (2018), a case that involved very different facts but which-like this case-included a challenge to a trial court's imposition of concurrent 300-month prison terms for multiple sexual-display convictions. In Carey-Martin, we held that those terms were unconstitutionally disproportionate as applied to a teenaged defendant whose sexual-display convictions were based on "sexting" activity with girls who were only a few years younger than him, and whose convictions for other sex crimes against those victims were based on the girls' ages and attendant incapacity to consent. See id. at 626-29 (describing the defendant's conduct). Although we found the 300-month terms unconstitutional under those circumstances, we noted the likelihood of "other circumstances where imposing such a sentence for multiple convictions for using a child in a display of sexually explicit conduct * * * would be constitutional." Id. at 643.

         This case presents such circumstances. For reasons that we discuss below, the trial court did not err when it imposed the 300-month prison term required by ORS 137.690 on four of defendant's convictions for using a child in a display of sexually explicit conduct. We reject without [294 Or.App. 401] discussion each of the other arguments that defendant makes on appeal.[2] Accordingly, we affirm.

         Defendant's primary argument on appeal is that the 300-month prison terms imposed in this case violate Article I, section 16, of the Oregon Constitution, which requires that "all penalties shall be proportioned to the offense." Because the constitutionality of a sentence depends on, among other things, case-specific factors "such as characteristics of the defendant and the victim, the harm to the victim, and the relationship between the defendant and the victim," State v. Rodriguez I Buck, 347 Or. 46, 62, 217 P.3d 659 (2009), we begin by summarizing the circumstances surrounding defendant's sexual-display crimes, as well as the facts about defendant and his victim that were brought out at sentencing. We describe the evidence in the light most favorable to the state. State v. Smith, 277 Or.App. 709, 710, 372 P.3d 549, rev den, 360 Or. 423 (2016).

         One of defendant's victims was a 16-year-old boy, G. The boy's mother described him as having had some "mental health issues" and as having "tak[en] up a homeless status," coming and going from his parents' residence as he saw fit. Over the course of about a month, defendant repeatedly provided G with alcohol, masturbated in front of him, then asked G to masturbate while defendant watched. Some of those incidents also involved sexual contact between defendant and G. G's description of two of the incidents (as he relayed them to a police officer) is representative:

G told the officer that he had first met defendant at a church-associated cafe that provides food for people without homes. Nothing sexual happened at that first meeting. About a week later, G and defendant ate dinner together at the cafe. G told defendant "about his drug and alcohol problem," and, at one point, defendant offered to go buy some [294 Or.App. 402] alcohol for G. The boy was "creeped out" and tried to leave without defendant, but defendant ran after him, went into a store, and came out with alcohol. Defendant and G walked behind a business. Defendant told G "that he was feeling very horny and pulled out his penis," then masturbated until he ejaculated. Defendant then unzipped G's pants, pulled out G's penis, and stroked it. Two weeks later, G and defendant again ate dinner together at the cafe, defendant again provided G with alcohol, and-after they drank the alcohol together-defendant told G that it was "jack time." They masturbated together, then defendant masturbated G until he ejaculated.

         Over the following weeks, defendant abused G three more times, once in the bathroom at a fast-food restaurant, once in a courtyard near a garden, and once in the bathroom at a grocery store. At the fast-food restaurant, defendant told G that he would buy G something to drink if G first masturbated together with him. At some point during those later encounters, defendant orally sodomized G and also digitally penetrated G's anus. However, G described defendant's "usual" conduct as what happened in the grocery-store bathroom: defendant started masturbating and asked G to do the same; he then watched G masturbating.

         Shortly after the last of those incidents, defendant and G planned to travel to a nearby city to meet a 15-year-old boy so that defendant and that boy could have sex together, then engage in sexual activity with G. By that point, somebody had told police that G was sexually involved with an older man, and police had alerted G's mother. When G told his mother that he was meeting a friend at the library, her "radar went off," so she drove him to the library and dropped him off, but she did not leave immediately. Instead, G's mother watched G enter the library, saw him meet defendant, and then saw G and defendant leave the library together. G's mother called the police, who found and arrested defendant. The boy whom defendant and G had planned to meet subsequently told police officers that he had communicated with defendant and G through email and Facebook. Officers obtained a search warrant for defendant's Facebook account, executed it, and found statements by defendant to that other boy that corroborated the report [294 Or.App. 403] that the boy, defendant, and G had planned to meet for a sexual encounter. Other conversations on defendant's Facebook account also reflected his sexual interest in teenaged boys.

         Based on his conduct against G, defendant was charged with crimes that occurred on five different dates, viz., two counts of third-degree sexual abuse, three counts of second-degree sexual abuse, and five counts of using a child in a display of sexually explicit conduct, which is a Class A felony. Thus, the indictment alleged that-on each of five pertinent dates-defendant committed an act of sexual abuse against G and also compelled or induced G "to participate in or engage in sexually explicit conduct for a person to observe." The state prosecuted the sexual-display counts on a theory that defendant had violated ORS 163.670 by inducing G to masturbate while defendant watched.[3]

         The state also charged defendant with one count of third-degree sexual abuse and one count of second-degree sexual abuse against another victim, T, whom defendant met at a light-rail station when T was 15 or 16 years old. When they first met, defendant bought cigarettes for T because T was too young to do so. Defendant and T exchanged numbers, defendant later contacted T, and the two met to drink alcohol. T became drunk, and he and defendant had "a masturbation conversation." Defendant pulled out his penis and asked T to do the same. Defendant then touched T's penis with ...


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