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State v. Gale

Court of Appeals of Oregon

June 12, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
DANIEL POE GALE, Defendant-Appellant.

          Argued and submitted September 12, 2017

          Washington County Circuit Court C151156CR Eric Butterfeld, Judge.

          David J. Celluch argued the cause for appellant. On the brief was Rankin Johnson IV.

          Susan G. Howe, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant appeals from a judgment of conviction for two counts of first-degree online sexual corruption of a child, ORS 163.433. For purposes of the offense of online sexual corruption of a child, "child" means a person whom the defendant reasonably believes to be under 16 years of age. Defendant assigns error to the trial court's denial of his motion for a judgment of acquittal, arguing that no reasonable factfinder could find beyond a reasonable doubt that he "reasonably believed" that the victim in this case was under 16 years old.

         Held:

         The trial court erred in denying defendant's motion for a judgment of acquittal. Under ORS 163.433, the state must prove that defendant subjectively believed that the victim was under 16 years old and that defendant's belief was objectively reasonable. The record did not permit a factfinder to find beyond a reasonable doubt that defendant subjectively believed that the child was under 16 years old.

         [298 Or.App. 7] EGAN, C. J.

         After a bench trial, defendant was convicted of two counts of third-degree sodomy, ORS 163.385, and two counts of first-degree online sexual corruption of a child, ORS 163.433. On appeal, defendant assigns error to the trial court's denial of his motion for a judgment of acquittal (MJOA) on the two online sexual corruption charges.[1]For purposes of the offense of online sexual corruption of a child, "child" means "a person who[m] the defendant reasonably believes to be under 16 years of age." ORS 163.431(1). Defendant argues that no reasonable factfinder could find beyond a reasonable doubt that he "reasonably believed" that the victim in this case was under 16. We agree with defendant and, thus, reverse his convictions for first-degree online sexual corruption of a child.

         In reviewing the denial of an MJOA, we state the facts in the light most favorable to the state. State v. Greene, 283 Or.App. 120, 121, 388 P.3d 1132 (2016). Defendant met the victim, B, on the online dating site "Boy Ahoy." At the time, B was 15 years old and defendant was 41. In order to use the site, B lied and said that he was 18. At trial, B testified that he used "gay chat apps" to explore his feelings, and that he communicated with multiple men through several different "apps." B said that he was not sure he could physically pass for 18, but that he hoped that he would be accepted as 18 by other users of the apps. B's mother testified that at the time he was using the apps, B was around five feet ten inches or five feet eleven inches tall, was very thin, had very little body hair and wore braces. She was unaware of anyone ever mistaking him for being older than he was. Detective Dolyniuk, the lead investigator in B's case, testified that B's appearance was consistent with his age.

         For several months, B and defendant communicated very frequently over cell phone calls, text messages, Skype video chats, and other online communication applications. B testified that defendant "[p]robably just asked [him] once if [he] was actually above age and [B] lied about that." Defendant and B "chatted" about sexual things, exchanged [298 Or.App. 8] nude photos, and exchanged phone numbers. Defendant asked B to send him nude and clothed photographs, which B did. B also sent nude photographs to defendant without being asked.

         At some point, B and defendant arranged to meet in person "to get to know each other better and have sex." They talked about the meeting ahead of time and agreed that they would engage in sexual activity with each other. They agreed that defendant would pick B up in the parking lot of B's high school. B testified that he had told defendant that he was held back or had started late, so he was 18 and in his last year of high school. B also said that he "may have" lied and told defendant that his license was suspended, and that was why he could not drive. Ultimately, on two separate occasions, defendant ...


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