Submitted January 15, 2019.
County Circuit Court 16CR56503 Mustafa T. Kasubhai, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Shawn Wiley, Deputy Public Defender, Offce of Public Defense
Services, fled the briefs for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Jonathan N. Schildt, Assistant Attorney General,
fled the briefs for respondent.
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
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
of conviction on Counts 3 and 5 reversed; remanded for
resentencing; otherwise affirmed.
Or.App. 601] AOYAGI, J.
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.
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
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.
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
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.
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"
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). "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 ...