State v. Clay

599
Submitted January 15; judgment of conviction on Counts 3 and 5 reversed,
remanded for resentencing, otherwise affirmed December 26, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
RANDY KENT CLAY,
Defendant-Appellant.
Lane County Circuit Court
16CR56503; A164419
457 P3d 330
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 judg-
ment 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 displays. 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 stat-
ute. In this case, no reasonable juror could find that the purpose of 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 resentenc-
ing; otherwise affirmed.
Mustafa T. Kasubhai, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant Attorney
General, filed the briefs for respondent.
Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Aoyagi, Judge.
600 State v. Clay
AOYAGI, J.
Judgment of conviction on Counts 3 and 5 reversed;
remanded for resentencing; otherwise affirmed.
Cite as 301 Or App 599 (2019) 601
AOYAGI, J.
After sexually abusing two teenaged girls, defen-
dant 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 acquit-
tal 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 resen-
tencing, 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 P3d 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
602 State v. Clay
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 under-
wear. Defendant complimented R on the appearance of her
vagina, and then started rubbing her vagina, which he con-
tinued 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
Cite as 301 Or App 599 (2019) 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 per-
son to observe” (Count 3). Based on his conduct during R’s
photoshoot, defendant was charged with third-degree sex-
ual 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 sex-
ually 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 per-
son’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 that
you are engaging in sexual abuse.” The state opposed the
motion, arguing that a person could sexually abuse someone
“at the same time” that he was “making a lewd exhibition
for himself to observe.”
The trial court denied defendant’s motion for judg-
ment of acquittal. The jury subsequently convicted defendant
1
As relevant here, it is first-degree sexual abuse to subject a person who
is “less than 14 years of age” to “sexual contact,” ORS 163.427(1)(a)(A), and it
is third-degree sexual abuse to subject a person who is “incapable of consent by
reason of being under 18 years of age” to “sexual contact,” ORS 163.415(1)(a)(B).
2
Although defendant is a photographer and took photographs of the victims
at his apartment, there is no evidence that he took any photographs of sexually
explicit conduct. The state did not allege or seek to prove that defendant caused
the victims to engage in sexually explicit conduct for defendant “to record in a
visual recording.” ORS 163.670(1).
604 State v. Clay
of all five charges. As to the display charges, the verdict
form specified that Count 3 was based on “[l]ewd [e]xhibition
of [E]’s genitals” and that Count 5 was based on “[l]ewd
[e]xhibition of [R]’s vagina.”
At sentencing, the trial court imposed the manda-
tory minimum sentence on each count and ordered all sen-
tences to be served consecutively. Defendant was thereby
sentenced to 75 months on Count 1 (first-degree sexual
abuse); 75 months on Count 2 (first-degree sexual abuse); 70
months on Count 3 (display); 12 months on Count 4 (third-
degree sexual abuse); and 300 months on Count 5 (display).
For Count 5, the court applied ORS 137.690. ORS 137.690a
provides that any person convicted of a “major felony sex
crime” who has one or more previous convictions of a “major
felony sex crime[ ] shall be imprisoned for a mandatory
minimum term of 25 years.” ORS 137.690b designates four
“major felony sex crimes”: first-degree rape, ORS 163.375;
first-degree sodomy, ORS 163.405; first-degree unlawful
sexual penetration, ORS 163.411; and using a child in a dis-
play of sexually explicit conduct, ORS 163.670. Defendant’s
display conviction on Count 3 was treated as a previous con-
viction of a major felony sex crime, triggering a mandatory
minimum 25-year prison term on Count 5.
Defendant appeals the judgment. In his first and sec-
ond assignments of error, defendant contends that the trial
court erred in denying his motion for judgment of acquittal
on Counts 3 and 5. In his third assignment of error, defen-
dant challenges his 300-month sentence on Count 5 as vio-
lating Article I, section 16, of the Oregon Constitution and
the Eighth Amendment to the United States Constitution.
In a supplemental assignment of error, defendant argues
that the trial court erred in giving a nonunanimous verdict
instruction to the jury. We begin with the first and second
assignments of error and, because they are dispositive, do
not reach the third assignment of error. We reject the sup-
plemental assignment of error without discussion.
ANALYSIS
ORS 163.670(1) provides that “[a] person commits
the crime of using a child in a display of sexually explicit
Cite as 301 Or App 599 (2019) 605
conduct if the person employs, authorizes, permits, com-
pels or induces a child to participate or engage in sexually
explicit conduct for any person to observe or to record in a
visual recording.” Defendant argues that, although sexually
abusing a child is obviously a crime, observing the child in
the course of sexually abusing her is not a separate crime
under ORS 163.670(1). The state disagrees.
Because defendant’s argument raises a question of
statutory construction, we examine the text of the disputed
provision, the statutory context, and any helpful legisla-
tive history to determine the legislature’s intent. State v.
Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009) (setting
out our standard procedure for statutory construction); see
also Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997) (We are
“responsible for identifying the correct interpretation [of a
statute], whether or not asserted by the parties.”). Unless
the statute indicates otherwise, we assume that the legisla-
ture intended words of common usage to have their “plain,
natural, and ordinary meaning.” PGE v. Bureau of Labor
and Industries, 317 Or 606, 611, 859 P2d 1143 (1993).
Under ORS 163.670, the crime of display has four
elements:
(1) the defendant employs, authorizes, permits, compels
or induces;3
(2) a child;
(3) to participate or engage in sexually explicit conduct;
(4) for any person (a) to observe or (b) to record in a visual
recording.
Defendant does not dispute that, as to both Counts 3 and 5,
the state’s evidence was sufficient to prove the first three
elements of display. It is the fourth element that is the sub-
ject of dispute and, therefore, the focus of our analysis.
We first examine the statutory text. For a person to
be convicted of violating ORS 163.670, the state must prove
that the person caused a child to participate or engage in
3
For ease of reference only, we use “causes” as shorthand for “employs,
authorizes, permits, compels or induces.”
606 State v. Clay
sexually explicit conduct “for any person to observe or to
record in a visual recording.” (Emphasis added.) The word
“for” creates a functional relationship between the per-
son’s behavior—“employ[ing], authoriz[ing], permit[ting],
compel[ling] or induc[ing] a child to participate or engage
in sexually explicit conduct”—and the person’s purpose in
engaging in that behavior—“for any person to observe or to
record in a visual recording.” ORS 163.670; see also Webster’s
Third New Int’l Dictionary 886 (unabridged ed 2002) (defin-
ing “for” to mean “as a preparation toward * * * or in view
of”; “in order to bring about”; or “so as to secure as a result”);
Merriam-Webster’s Collegiate Dictionary 454 (10th ed 1999)
(“for” is “used as a function word to indicate purpose” or
“used as a function word to indicate an intended goal”);
American Heritage Dictionary of the English Language 684
(5th ed 2011) (“for” is “[u]sed to indicate the object, aim, or
purpose of an action or activity”).4
That is, ORS 163.670 does not provide that a per-
son commits the crime of display when the person causes
a child to participate or engage in sexually explicit conduct
and any person observes or visually records the conduct. It
expressly requires that the person cause a child to partic-
ipate or engage in sexually explicit conduct “for” any per-
son to observe or to visually record. Thus, based on the text
alone, it appears that the legislature intended to address
conduct committed for the purpose of observation or visual
recording.
Turning to context, it is significant to note that
display is one of the most serious crimes in Oregon. It is
a Class A felony. ORS 163.670(2). By point of comparison,
child sexual abuse—which, unlike display, requires sexual
intercourse or sexual contact—is a Class B felony, Class C
felony, or Class A misdemeanor, depending on degree. ORS
163.427 (first-degree sexual abuse); ORS 163.425 (second-
degree sexual abuse); ORS 163.415 (third-degree sexual
abuse). Not only is it a Class A felony, but, as previously
4
See Comcast Corp. v. Dept. of Rev., 356 Or 282, 296 n 7, 301 n 13, 337 P3d
768 (2014) (The court “most often looks to the definitions provided in Webster’s
Third New Int’l Dictionary (unabridged ed 2002),” but, “[u]nless the legislature is
shown to have chosen its words in reliance on a particular dictionary definition
of them, no particular dictionary is ‘authoritative’ or otherwise controlling.”).
Cite as 301 Or App 599 (2019) 607
discussed, display is one of only four crimes designated a
“major felony sex crime” under Ballot Measure 37, codified
in ORS 137.690b (designating first-degree rape, first-degree
sodomy, first-degree unlawful sexual penetration, and dis-
play as Oregon’s major felony sex crimes). Someone con-
victed twice of a “major felony sex crime” is subject to a man-
datory minimum term of 25 years’ imprisonment, which is
the same mandatory minimum sentence as second-degree
murder. See ORS 137.690a (requiring a mandatory min-
imum term of 25 years’ imprisonment for second or more
conviction of a “major felony sex crime”); ORS 163.115(5)(b)
(requiring a mandatory minimum term of 25 years’ impris-
onment for second-degree murder).
The legislative history gives insight into why the
legislature made display such a serious crime—it was
because the legislature was concerned with severely pun-
ishing the exploitation of children in the production of por-
nography. See Senate Bill (SB) 375 (1985) (titled “Relating
to child pornography”); State v. Carey-Martin, 293 Or App
611, 652-67, 430 P3d 98 (2018) (James, J., concurring) (dis-
cussing in detail the context and legislative history of ORS
163.670, including the legislature’s focus on “child pornog-
raphy”). The legislative history of ORS 163.670 is replete
with references to the evils of child pornography, its dev-
astating long-terms effects on child victims, and the need
for severe punishment to deter the use of children in por-
nography. Carey-Martin, 293 Or App at 652-67 (James, J.,
concurring).
Of course, the legislature took a broad view of
pornography, as evidenced by the statutory language it
adopted. The statute applies to causing a child to partici-
pate or engage in sexually explicit conduct for observation
or visual recording. ORS 163.670(1). Thereby, for example,
it clearly captures live sex shows involving children, even
if they are not photographed, videorecorded, or otherwise
visually recorded.
It is also apparent from the text and legislative his-
tory of ORS 163.670 that an audience of one is sufficient. A
person commits the crime of display if the person causes a
child “to participate or engage in sexually explicit conduct
608 State v. Clay
for any person to observe or to record in a visual recording.”
ORS 163.670(1) (emphasis added). “Any person” is a “ ‘com-
prehensive and unambiguous’ ” phrase that means “one,
no matter what one,” “any person indiscriminately,” and
“every” person. State v Tyson, 243 Or App 94, 97-98, 259
P3d 64 (2011) (quoting Lesser v. Great Lakes Casualty Co.,
171 Or 174, 184, 135 P2d 810 (1943)); Webster’s at 97.
The legislature chose the phrase “any person”
intentionally. The original draft of what would become
ORS 163.670 said “for another person to observe or to record
in a visual recording.” Exhibit M, Senate Committee on
Judiciary, SB 375, Apr 25, 1985 (emphasis added). However,
“another” was changed to “any” at the request of the
Multnomah County District Attorney’s Office. See Tape
Recording, Senate Committee on Judiciary, SB 375, May 21,
1985, Tape 145, Side B (testimony of Multnomah County
District Attorney Keith Meisenheimer). The change was
described to legislators as “a minor amendment” that would
“make clear that it is unlawful for the person who does the
employing, authorizing, permitting or inducing under the
first part of that section to then also observe or record”—
and, thus, would fix a “glitch” in the bill. Id.Although not explicitly stated in the legislative his-
tory, the most obvious “glitch” in using the “another person”
language is that the resulting statute would not have cap-
tured situations in which a person causes a child to partici-
pate or engage in sexually explicit conduct for the person to
photograph or videorecord, or stages a live sex show involv-
ing a child for the person’s own observation. That would have
been a major loophole given the bill’s aim at reducing child
pornography. The amendment was made, however, and, as
a result, ORS 163.670 applies equally to causing a child to
participate or engage in sexually explicit conduct for another
person to observe, for one’s self to observe, for another person
to visually record, or for one’s self to visually record.
All but one of those means of violating the statute
are relatively straightforward to understand and apply. If
a person causes a child to participate or engage in sexually
explicit conduct, and another person is present and observ-
ing it, it may be fairly obvious that the conduct was caused
Cite as 301 Or App 599 (2019) 609
in whole or part “for” the other person to observe and that
ORS 163.670 applies. Similarly, if a person causes a child
to participate or engage in sexually explicit conduct, and
another person is present and visually recording it, it may
be fairly obvious that the conduct was caused in whole or
part “for” the other person to record and that ORS 163.670
applies. And, if a person causes a child to participate or
engage in sexually explicit conduct, and the same person
visually records it, it may be fairly obvious that the conduct
was caused in whole or part “for” the person to record it and
that ORS 163.670 applies.
What is less clear is the issue before us in this case:
what it means for a person to cause a child to participate
or engage in sexually explicit conduct “for” that person to
“observe.” To “observe” is “to see or sense,” Webster’s at 1558,
and, as previously discussed, “for” creates a functional rela-
tionship between the person’s behavior and the person’s pur-
pose. Thus, if a person verbally directs a child to participate
or engage in sexually explicit conduct—without personally
sexually touching the child—so that he or she can observe
the sexually explicit conduct as an end to itself, one may
easily conclude that the person caused the child to partici-
pate or engage in sexually explicit conduct for the person to
observe and that ORS 163.170 applies.
But what if the person is sexually abusing the
child? Sexual abuse requires sexual intercourse or sexual
contact. ORS 163.427; ORS 163.425; ORS 163.415. If a per-
son “observes” a child while sexually abusing the child, or
“observes” a child’s sexual or intimate parts in connection
with sexually abusing the child, is that a violation of ORS
163.670? For purposes of ORS 163.670, “sexually explicit
conduct” includes actual or simulated sexual intercourse,
deviant sexual intercourse,[5] genital-genital contact, oral-
genital contact, anal-genital contact, oral-anal contact, vag-
inal or rectal penetration by an object, masturbation, sadis-
tic or masochistic abuse, or “[l]ewd exhibition of sexual or
other intimate parts.” ORS 163.665(3). As such, many acts of
5
Effective January 1, 2018, the term “deviate sexual intercourse” was
eliminated from most Oregon sex crime statutes. Or Laws 2017, ch 318, §§ 1-14.
However, the term “deviant sexual intercourse” remains in place in ORS
163.665(3) (emphasis added).
610 State v. Clay
child sexual abuse will necessarily involve “sexually explicit
conduct,” and, unless the sexual abuser closes his eyes or
otherwise avoids seeing what he is doing, the sexual abuser
necessarily will “observe” the sexually explicit conduct that
he caused. Did the legislature intend the act of observation
to constitute a separate crime under ORS 163.670?
Having considered the text, context, and legislative
history of ORS 163.670, we conclude that the legislature did
not intend ORS 163.670 to capture a person’s observation
of his own sexual abuse of a child or observation of a child’s
sexual or intimate parts while sexually abusing or prepar-
ing to sexually abuse the child. In effect, the “observation”
that occurs in such a situation is incidental to the crime
of sexual abuse and was not intended by the legislature to
constitute the separate—and much more serious—crime
of using a child in a display of sexually explicit conduct.6
Rather, we understand the crime of display to capture what
is colloquially called child pornography, including live sex
displays. That includes an audience of one—i.e., a person
making a visual recording of a child participating or engag-
ing in sexually explicit conduct that he himself has caused
to occur, or staging a live sex display involving a child for his
own observation—but it does not include observation of one’s
own acts of sexual abuse against a child or observation of a
child’s sexual or intimate parts incidental to one’s own acts
of sexual abuse against a child.
We have taken a similar approach to kidnapping
incidental to other crimes. A person cannot be convicted
of kidnapping if the person did not intend to interfere
6
Relatedly, we note that, under ORS 137.123(5), a trial court may impose
consecutive sentences for “separate convictions arising out of a continuous and
uninterrupted course of conduct” if “the criminal offense for which a consecutive
sentence is contemplated was not merely an incidental violation of a separate
statutory provision in the course of the commission of a more serious crime but
rather was an indication of defendant’s willingness to commit more than one
criminal offense.” (Emphasis added.) As a Class A felony and major felony sex
crime, display would be a “more serious crime” than most sexual-contact crimes
against children, including first-degree sexual abuse. Thus, if we accepted the
state’s construction of ORS 163.670, trial courts would be in the counterintui-
tive position of having to determine, when sentencing sexual abusers of children,
whether their direct acts of sexual intercourse or sexual contact with children
were “incidental” to the “more serious crime” of observing the children during the
abuse.
Cite as 301 Or App 599 (2019) 611
substantially with the victim’s personal liberty but, rather,
did so only incidentally in the course of accomplishing
another crime. State v. Mejia, 348 Or 1, 7-8, 227 P3d 1139
(2010) (further stating that the legislature wrote the statute
as it did to prevent prosecutors from charging kidnapping
when a person moved a victim “incidentally to the commis-
sion of another crime, such as rape or robbery”); see, e.g.,
State v. Murray, 340 Or 599, 606-07, 136 P3d 10 (2006)
(reversing kidnapping conviction based on movement of the
victim incidental to a car theft); State v. Reyes-Mauro, 217
Or App 315, 328, 175 P3d 998 (2007) (reversing kidnapping
conviction based on movement of the victim incidental to a
robbery).7 The legislature sought to avoid overbroad appli-
cation of the kidnapping statute by including an intent ele-
ment. Mejia, 348 Or at 7-8. Similarly, here, the legislature
sought to avoid overbroad application of the display statute
by using the phrase “for any person to observe or to record
in a visual recording.” That language is not coincidental or
casual—it is the gravamen of the offense of display.
To be clear, we do not mean to suggest that a per-
son cannot be convicted of both sexual abuse and display in
appropriate circumstances. In Tyson, the defendant alter-
nated between sexually abusing a child herself and observ-
ing her husband sexually abusing the child. 243 Or App at
96. She was convicted of rape, sodomy, sexual abuse, and
display. Id. She argued to the trial court and on appeal that
she could not be convicted of display because “the only other
observer of the sexual activity was a participant in the sex-
ual activity.” Id. We disagreed, finding “no indication that
the legislature intended to preclude the statute from apply-
ing when a person both observes and engages in sexually
explicit conduct with a child. Indeed, all indications are to
the contrary.” Id. at 99. We reaffirm that holding, noting
that Tyson involved distinct acts of the defendant sexually
abusing a child and observing the child engaged in sexually
explicit conduct with someone else.
7
Another somewhat analogous principle is that, for purposes of the crime of
first-degree sexual abuse, the state must prove that a person used force “greater
in degree or different in kind from the simple movement and contact that is
inherent in the act of touching the intimate part of another” to prove that the
person subjected the victim to “forcible compulsion.” State v. Tilly, 269 Or App
665, 346 P3d 567 (2015).
612 State v. Clay
Having construed the statute, we turn to the facts
of this case, viewing the evidence in the light most favor-
able to the state. In this case, the only evidence was that
defendant observed the victims’ genitalia in direct connec-
tion with his own sexual abuse of the victims. The facts have
already been recounted and need not be repeated here. It is
sufficient to say that, in each instance, defendant had either
already made sexual contact with the victim before looking
at her vagina or made sexual contact with the victim at the
same time as or immediately after looking at her vagina.
Although defendant’s observation of each victim’s vagina
was clearly intentional, the viewing was so closely inter-
twined with the touching that no reasonable juror could find
that the viewing was other than incidental to defendant’s
criminal sexual abuse. Cf. Reyes-Mauro, 217 Or App at 328(concluding that the trial court erred in denying a motion
for judgment of acquittal on a kidnapping charge, where
the defendant moved the victim during a robbery, because,
“[a]lthough intent usually presents a jury question, the
intended movement was too minimal for any reasonable jury
to find the requisite intent”).8
Accordingly, we reverse and remand the judgment
of conviction as to Counts 3 and 5, based on the trial court’s
error in denying defendant’s motion for judgment of acquit-
tal. We affirm defendant’s three convictions for sexual abuse.
Judgment of conviction on Counts 3 and 5 reversed;
remanded for resentencing; otherwise affirmed.
8
In cases involving a person’s sexual abuse of a child, we acknowledge that
it is difficult to articulate a precise standard as to when evidence of “observation”
that occurred during a sexual-abuse episode will be legally sufficient for a display
count to survive a motion for judgment for acquittal. Neither party has articu-
lated a standard that we find satisfactory. Ultimately, the question is whether,
on the record that exists, a reasonable juror could find that the defendant caused
the child to participate or engage in sexually explicit conduct for the defendant to
observe, as opposed to the observation being incidental to the defendant’s sexual
abuse. In most cases, the defendant’s purpose will be a question for the factfinder.
Of course, if the legislature intended the “observation” prong of ORS 163.670
to apply more narrowly than the current statutory language provides, that is a
matter for the legislature to address.