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State v. Clay

Court of Appeals of Oregon

December 26, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
RANDY KENT CLAY, Defendant-Appellant.

          Submitted January 15, 2019.

          Lane County Circuit Court 16CR56503 Mustafa T. Kasubhai, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Shawn Wiley, Deputy Public Defender, Offce of Public Defense Services, fled the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jonathan N. Schildt, Assistant Attorney General, fled the briefs for respondent.

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

         Case Summary: Defendant was convicted of two counts of first-degree sexual abuse, ORS 163.427, one count of third-degree sexual abuse, ORS 163.415, and two counts of using a child in a display of sexually explicit conduct ("display"), ORS 163.670. On appeal, he assigns error to the trial court's denial of his motion for judgment of acquittal on the display counts, arguing, among other things, that ORS 163.670 does not apply to observing oneself sexually abusing a child or observing a child's sexual or intimate parts in connection with one's own sexual abuse of the child. Held: An audience of one is sufficient for the crime of display under ORS 163.670; however, the statute applies only when a person employs, authorizes, permits, compels, or induces a child to participate or engage in sexually explicit conduct "for" any person to observe or to record in a visual recording. In choosing that language, the legislature intended to capture conduct aimed at observation or visual recording, such as child pornography and live sex shows. A person's observation of his own sexual abuse of a child, or observation of a child's sexual or intimate parts incidental to his own sexual abuse of a child, falls outside the statute. In this case, no reasonable juror could find that the purpose of [301 Or.App. 600] defendant's conduct was observation, so the trial court erred in denying defendant's motion for judgment of acquittal on the display counts.

         Judgment of conviction on Counts 3 and 5 reversed; remanded for resentencing; otherwise affirmed.

          [301 Or.App. 601] AOYAGI, J.

         After sexually abusing two teenaged girls, defendant was tried and convicted of two counts of first-degree sexual abuse, ORS 163.427, one count of third-degree sexual abuse, ORS 163.415, and two counts of using a child in a display of sexually explicit conduct ("display"), ORS 163.670. On appeal, defendant assigns error, among other things, to the trial court's denial of his motion for judgment of acquittal on the two display counts. For the reasons that follow, we conclude that the trial court erred in denying defendant's motion for judgment of acquittal. Accordingly, we reverse as to the display counts (Counts 3 and 5), remand for resentencing, and otherwise affirm.

         FACTS

         In reviewing the denial of a motion for judgment of acquittal, we view the facts in the light most favorable to the state. State v. Makin, 360 Or. 238, 240, 381 P.3d 799 (2016). We state the facts in accordance with that standard, noting that, in this case, all of the relevant facts come from statements and testimony of the two victims. The legal issue presented requires us to describe the facts in some detail.

         The victims, E and R, are sisters. At the relevant time, defendant was in his 60s and was dating the victims' grandmother. Defendant, who was a photographer, arranged to have both girls participate in "photoshoots" with him, ostensibly to create modeling portfolios for the girls and for his own use in drawing their portraits.

         E, aged 13, went to defendant's apartment twice for photoshoots. The first time, her grandmother was present but stayed in a separate room. Defendant selected clothing for E to wear and directed E how to pose; many poses made E uncomfortable. Defendant paid her $50. The second time, defendant and E were alone, and defendant sexually abused E. After taking photographs for a while, defendant asked E to put on a dress and to remove her bra and underwear, which she did. Defendant told E that he wanted to put lotion on her legs because "it would be good for shine." Defendant kneeled between E's knees, such that she could not close her legs. Defendant started putting the lotion on E's legs, "[a]nd [301 Or.App. 602] then he just kept going further and further up," until he was rubbing the lotion onto her vagina and buttocks. He "kept rubbing" and was "constantly touch[ing]" her. During that time, defendant did not ask E to strike any poses-he just kept touching her. Defendant then took E's hand and placed it on his erect penis over his shorts. E pulled her hand away and went to the bathroom to change into her own clothes. Before E left, defendant paid her $100, telling her that the extra $50 was for the sexual contact. Defendant told E not to tell anyone.

         R, aged 16, also did a photoshoot at defendant's apartment. No one else was present, and defendant locked the doors. At one point, defendant asked R to remove her bra and underwear; she removed her bra but refused to remove her underwear. Sometime thereafter, defendant told R that he was going to rub some "lotion oil stuff on her to give her "a shine." R was lying on the ground. Defendant was on top of one of R's legs at first, and then he moved between her legs so that her legs were spread, and he was on his knees between them. R could not have closed her legs given defendant's position. Defendant started rubbing the lotion on R's feet, rubbed it "up to [R's] knees, and then he was going up further." R could not find the words to say stop. Defendant rubbed R's hips and "started *** putting his fingers through [R's] underwear." He complimented R on her underwear and pulled the underwear aside. R could feel the skin of his hand when he pulled aside her underwear. Defendant complimented R on the appearance of her vagina, and then started rubbing her vagina, which he continued for some time. Defendant commented on the fact that R had her period (she was wearing a tampon) but said "we can work around that." Defendant eventually finished what he was doing and got up. During the abuse, defendant had not instructed R to assume any poses. Later, when R was ready to leave, defendant paid her $100 and told her not to tell anyone.

         Both E and R reported to multiple people that defendant had sexually abused them. A grand jury indicted defendant on five criminal offenses. Based on his conduct during E's second photoshoot, defendant was charged with first-degree sexual abuse, ORS 163.427, for touching E's [301 Or.App. 603] vagina (Count 1); first-degree sexual abuse, ORS 163.427, for causing E to touch his penis (Count 2); and using a child in a display of sexually explicit conduct, ORS 163.670, for causing E to engage in sexually explicit conduct "for a person to observe" (Count 3). Based on his conduct during R's photoshoot, defendant was charged with third-degree sexual abuse, ORS 163.415, for touching R's vagina (Count 4); and using a child in a display of sexually explicit conduct, ORS 163.670, for causing R to engage in sexually explicit conduct "for a person to observe" (Count 5).[1]

         Defendant went to trial on all five charges. At the close of the state's evidence, he moved for a judgment of acquittal on Counts 3 and 5, the display charges. "A person commits the crime of using a child in a display of sexually explicit conduct if the person employs, authorizes, permits, compels or induces a child to participate or engage in sexually explicit conduct for any person to observe or to record in a visual recording." ORS 163.670(1) (emphasis added).[2] "Sexually explicit conduct" includes a broad array of sexual conduct, including the "[l]ewd exhibition of sexual or other intimate parts." ORS 163.665(3). In support of his motion, defendant argued that ORS 163.670 does not apply to a person's observation of a victim's sexual or intimate parts in the course of sexually abusing the victim. Otherwise, defense counsel argued, "every act of sexual abuse that involves a minor would be lewd exhibition," as "I don't think it is possible to engage in sexual abuse without observing ...


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