State v. Clay, 457 P.3d 330

Defendant (a photographer) arranged "photoshoots" with two minor sisters (E, age 13; R, age 16), then sexually abused each, paid them, and told them not to tell. No evidence he photographed the sexual acts.
Indictment: five counts — two counts first-degree sexual abuse, one count third-degree sexual abuse, and two counts of using a child in a display of sexually explicit conduct (ORS 163.670) based on "lewd exhibition" of victims' genitals.
ORS 163.670 makes it a crime to cause a child to engage in sexually explicit conduct "for any person to observe or to record in a visual recording." The state did not allege visual recording.
At trial the court denied defendant's motion for judgment of acquittal on the two display counts; jury convicted on all five counts.
Trial court sentenced consecutively, treating one display conviction as a prior "major felony sex crime," triggering a 25‑year mandatory minimum on the other display count; defendant appealed, arguing (among other things) the display convictions were legally insufficient.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ORS 163.670 covers a defendant's observation of his own sexual abuse of a child (or viewing a child's intimate parts incidental to abuse)	ORS 163.670 applies when a defendant observes the sexual conduct — a person can abuse and simultaneously make a lewd exhibition for himself to observe	ORS 163.670 does not reach self-observation incidental to sexual abuse; otherwise nearly every child sexual‑contact crime could be a display	Statute requires that the child be caused to engage in sexually explicit conduct "for" someone to observe; an audience of one suffices, but observation incidental to the abuse (i.e., not caused for the purpose of observation) falls outside the statute
Sufficiency of evidence to survive judgment of acquittal on display counts	Evidence of intentional viewing of victims' genitalia is sufficient for a reasonable juror to find the observation element	Viewing was so intertwined with contact that it was incidental; no evidence the conduct was caused "for" observation	Viewing here was incidental to sexual abuse; no reasonable juror could find the viewing was done "for" observation — display convictions reversed and remanded for resentencing

State v. Makin, 360 Or 238 (review standard for judgment of acquittal)
State v. Gaines, 346 Or 160 (statutory‑construction framework)
PGE v. Bureau of Labor & Indus., 317 Or 606 (plain‑meaning/ordinary‑usage canon)
State v. Tyson, 243 Or App 94 (statute can apply when defendant both observes and participates in sexually explicit conduct)
State v. Carey‑Martin, 293 Or App 611 (legislative history showing focus on child pornography)
State v. Mejia, 348 Or 1 (kidnapping conviction reversed where movement was incidental; intent requirement limits overbroad application)
State v. Murray, 340 Or 599 (same principle: reverse where movement incidental to other crime)
State v. Reyes‑Mauro, 217 Or App 315 (reversing kidnapping where movement incidental to robbery)