State v. Street ( 2022 )

1
Submitted September 24, 2020; convictions on Counts 1 and 2 reversed and
remanded for entry of a judgment of conviction for a single count of first-degree
online sexual corruption of a child, remanded for resentencing, otherwise
affirmed January 12, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
WILLIAM GLENN STREET,
Defendant-Appellant.
Washington County Circuit Court
18CR06492; A169470
505 P3d 425
Defendant appeals a judgment of conviction for two counts of first-degree
online sexual corruption of a child, ORS 163.433, (Counts 1 and 2), entered after a
bench trial. On appeal, defendant assigns two errors. In his first assignment, he
asserts that the trial court erred by denying his motion for judgment of acquittal
on the two counts of first-degree online sexual corruption of a child. In defen-
dant’s second assignment, he contends that the trial court erred by failing to
merge the verdicts on those counts into a single conviction. Held: The Oregon
Court of Appeals rejected defendant’s first assignment of error because, under
ORS 163.433 and ORS 163.432, defendant’s actions qualified as solicitation of a
minor. However, as the state conceded, the trial court did err by failing to merge
the guilty verdicts on the two counts.
Convictions on Counts 1 and 2 reversed and remanded for entry of a judg-
ment of conviction for a single count of first-degree online sexual corruption of a
child; remanded for resentencing; otherwise affirmed.
Oscar Garcia, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kirsten M. Naito, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
2 State v. Street
ORTEGA, P. J.
Convictions on Counts 1 and 2 reversed and remanded
for entry of a judgment of conviction for a single count of
first-degree online sexual corruption of a child; remanded
for resentencing; otherwise affirmed.
Cite as 317 Or App 1 (2022) 3
ORTEGA, P. J.
Defendant appeals from a judgment of conviction
for two counts of first-degree online sexual corruption of a
child, ORS 163.433 (Counts 1 and 2), entered after a bench
trial. The court acquitted him of two counts of luring a minor
child, ORS 167.057 (Counts 3 and 4). On appeal, defendant
asserts that the trial court erred by denying his motion for
judgment of acquittal on the two counts of first-degree online
sexual corruption of a child. In a second assignment, he also
contends that the trial court erred by failing to merge those
counts into a single conviction. We reject defendant’s first
assignment of error because, under ORS 163.433 and ORS
163.432, defendant’s actions qualified as solicitation of a
minor. However, as the state concedes, the trial court did
err by failing to merge the guilty verdicts on the two counts.
Accordingly, we reverse and remand defendant’s convictions
on Counts 1 and 2 for entry of a judgment of conviction for
one count of first-degree online sexual corruption of a child,
remand for resentencing, and otherwise affirm.
We briefly state the relevant facts. As part of a sting
operation focused on targeting individuals who are commu-
nicating with children online and willing to engage in sexual
activity with children, Detective Opitz with the Beaverton
Police Department and other law enforcement agents
posted a variety of advertisements on Craigslist. Defendant
answered an advertisement, communicated exclusively with
the FBI agent posing as the children’s mother, and arranged
to meet her and her two children to engage in sexual conduct
with the three of them. Upon his arrival at the appointed
place and time, he was immediately taken into custody and
interviewed. As a result of the incident, the state charged
defendant with two counts of first-degree online sexual cor-
ruption of a child, ORS 163.433, and two charges of luring
a minor child, ORS 167.057. At the bench trial, the court
found defendant guilty on two counts of first-degree online
sexual corruption of a child, ORS 163.433 (Counts 1 and 2),
and acquitted him on both charges of luring a minor child,
ORS 167.057 (Counts 3 and 4).
At sentencing, defendant argued that the guilty
verdicts on Counts 1 and 2 should merge. The court held,
4 State v. Street
“I don’t believe that they merge for conviction purposes * * *.
I do believe that they merge for sentencing purposes. All
right? So they can’t be consecutive.” Defendant was con-
victed and sentenced on each count.
On appeal, defendant argues that the trial court
erred in denying his motion for judgment of acquittal because
there was insufficient evidence to support his convictions.
In his view, a person who communicates online exclusively
with a person who is an adult, or that reasonably is believed
to be an adult, does not commit the offense of online sexual
corruption of a child of any degree. He contends that online
sexual corruption requires evidence that an adult directly
solicit a child for sexual conduct. The state counters that
“statutory text and context supports the conclusion that—as
used in the statute—‘soliciting a child’ includes all solicita-
tions, including those made through an intermediary.”
When a defendant’s challenge to the legal sufficiency
of the state’s evidence depends upon the meaning of the stat-
ute defining the offense, we review for legal error. State v.
Holsclaw, 286 Or App 790, 792, 401 P3d 262, rev den, 362 Or
175 (2017). “Then, based on the proper construction of the
statute, we view the evidence in the light most favorable to
the state to determine whether a rational factfinder could
have found the elements of the offense beyond a reasonable
doubt.” Id. In interpreting a statute, we examine the text of
the statute in context, considering any relevant legislative
history, to discern the legislature’s intent. State v. Gaines,
346 Or 160, 171-72, 206 P3d 1042 (2009). Generally, “the
text of the statutory provision itself is the starting point for
interpretation and is the best evidence of the legislature’s
intent.” PGE v. Bureau of Labor and Industries, 317 Or 606,
610, 859 P2d 1143 (1992). “In the construction of a statute,
the office of the judge is simply to ascertain and declare what
is, in terms or in substance, contained therein, not to insert
what has been omitted or to omit what has been inserted[.]”
ORS 174.010; State v. Nelson, 282 Or App 427, 440, 386 P3d
73 (2016). When construing a statute, “text should not be
read in isolation but must be considered in context.” Stevens
v. Czerniak, 336 Or 392, 401, 84 P3d 140 (2004). “Context
includes other provisions of the same statute, the session
laws, and related statutes.” Id.Cite as 317 Or App 1 (2022) 5
ORS 163.433 provides, in relevant part, “[a] person
commits the crime of online sexual corruption of a child in
the first degree if the person violates ORS 163.432 and inten-
tionally takes a substantial step toward physically meeting
with or encountering the child.” ORS 163.432 states, in rel-
evant part:
“(1) A person commits the crime of online sexual cor-
ruption of a child in the second degree if the person is 18
years of age or older and:
“(a) For the purpose of arousing or gratifying the sex-
ual desire of the person or another person, knowingly uses
an online communication to solicit a child to engage in sex-
ual contact or sexually explicit conduct; and
“(b) Offers or agrees to physically meet with the child.”
ORS 163.432(1)(a) does not specify whether that commu-
nication must be made directly to a child. ORS 163.431(5)
defines “solicit” to mean “to invite, request, seduce, lure,
entice, prevail upon, coax, coerce or attempt to do so.”
Here, for defendant’s argument to prevail, we would
have to insert the word “directly” in front of the word “solicit”
in ORS 163.432(1)(a), which is contrary to how we construe
statutory text. Nothing within the text of ORS 163.432(1)(a)
prohibits only solicitations that are made directly to the
minor. The context of the statutory scheme confirms the leg-
islature’s intent to criminalize all solicitations of children,
including those where adults are a part of the solicitation.
See ORS 163.434 (providing that it is not a defense to first-
degree online sexual corruption of a child that the person
was, in fact, communicating with a law enforcement officer
or a person working under the direction of a law enforcement
officer, who is 16 years of age or older); cf. ORS 163.413 (“[a]
person commits the crime of purchasing sex with a minor if
the person pays, or offers or agrees to pay, a fee to engage in
sexual intercourse or sexual contact with a minor, a police
officer posing as a minor or an agent of a police officer posing
as a minor.”).
Moreover, the legislature’s stated intent demon-
strates its objective to criminalize all solicitations of chil-
dren, not just direct solicitation. The underlying bill arose
6 State v. Street
“out of the Aloha High School public hearing on ‘Preventing
Internet Predators’ ” and was created to address the problem
of the solicitation of minors over the internet to commit sex-
ual acts. Tape Recording, House Committee on Judiciary,
HB 3515, Apr 6, 2007, Side 117A (statement of Counsel for
the Oregon House and Senate Judiciary Committee, Darian
Stanford); Tape Recording, House Committee on Judiciary,
HB 3515, Apr 6, 2007, Side 117A (statement of Assistant
Attorney General Michael Slauson). Counsel for the House
and Senate Judiciary Committee explained that soliciting
meant “taking action that is clearly criminal action.” Tape
Recording, House Committee on Judiciary, HB 3515, Apr
27, 2007 (statement of Darian Stanford). When the legis-
lature ultimately drafted legislation to address that issue,
it included nine different terms in the definition of “solicit”
to provide a “broad array of what solicit means.” Tape
Recording, Joint Subcommittee on Public Safety, HB 3515,
June 15, 2007, Side 111B (statement of Darian Stanford).
Informed by the text and by that context and leg-
islative history, we affirm the trial court’s denial of defen-
dant’s motion for judgment of acquittal.
We turn to defendant’s argument that that the
trial court erred in failing to merge the guilty verdicts on
Counts 1 and 2. We review the trial court’s determination
of whether or not to merge verdicts for errors of law. State v.
Oldham, 301 Or App 82, 83, 455 P3d 975 (2019). Under ORS
161.067(2), multiple convictions that are based on conduct
that “violat[es] only one statutory provision,” but “involves
two or more victims,” do not merge. Here the trial court con-
cluded that the two counts of first-degree online solicitation
involved two different “theoretical” children, and thus that
the verdicts did not merge. Defendant argues the trial court
erred in entering separate convictions for the two counts
because the two children that he solicited were fictitious,
leaving the state as the sole victim of the crime. The state
concedes the error, and we accept that concession.
ORS 163.432 and ORS 163.433 do not expressly
define the “victim” of the crime. However, the text, context,
and legislative history demonstrate that the legislature’s
purpose in enacting ORS 163.433 was to protect children
Cite as 317 Or App 1 (2022) 7
from being solicited to participate in sexual acts with
adults. As we noted above, the stated legislative intent was
to address the problem of the solicitation of minors over the
internet to commit sexual acts. Thus, the victim is the “child”
as that word is used in the statutes. If this case had involved
defendant soliciting the parent of two actual children, there
would be two victims for purposes of ORS 161.067(2). Here,
however, there were no such actual children involved.
We have not previously addressed whether merger
applies in a case where the separate victims are, in fact, fic-
titious. However, we have examined whether separate con-
victions could be entered when the state did not identify the
separate victims. We concluded that multiple victims exist
when the defendant’s conduct places “specific persons in the
zone of danger.” Jones v. State of Oregon, 246 Or App 253,
260 n 3, 265 P3d 75 (2011). We concluded that the failure to
identify specific victims “does not mean that they were not,
individually, actually exposed to harm.” Id. at 261. Thus,
Jones stands for the proposition that, if a defendant’s con-
duct puts multiple persons at risk, those persons are sep-
arate victims that can support separate convictions under
ORS 161.067(2).
Here, unlike in Jones, it is undisputed that defen-
dant’s conduct did not put an actual child at risk. Thus, ORS
161.067(2) does not authorize entry of separate convictions
on the basis that there were two victims. Accordingly, the
trial court erred by entering two separate convictions for
first-degree online sexual corruption of a child.
Convictions on Counts 1 and 2 reversed and
remanded for entry of a judgment of conviction for a sin-
gle count of first-degree online sexual corruption of a child;
remanded for resentencing; otherwise affirmed.