State v. Hunt
270 Or. App. 206
Or. Ct. App.2015Background
- Defendant (25) had a sexual relationship with M, a 13-year-old; charged with multiple sex offenses including attempted use of a child in a display of sexually explicit conduct under ORS 163.670 and attempt statute ORS 161.405.
- The attempted-use count alleged defendant "did unlawfully attempt to permit [M] *to engage in sexually explicit conduct for a person to observe." The state relied on a text where defendant asked M to send a "naughty" picture and evidence of their sexual relationship.
- At trial, Deputy Burgett testified about interviewing M and said he thought her statements were "the best of her knowledge at the time;" defense did not object and court did not strike the comment.
- Defendant moved for judgment of acquittal on the attempted-use count, arguing "permit" requires authority over the child or an act that affirmatively empowers the child to engage in the conduct; trial court denied the motion, construing "permit" to mean "allow" or "make possible."
- Jury convicted defendant on two counts of second-degree rape, one count of first-degree sexual abuse, and one count of attempted use of a child in a display of sexually explicit conduct; defendant appealed the attempted-use conviction and the failure to sua sponte strike Burgett’s testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "permit" in ORS 163.670 requires authority over the child or affirmative empowerment | State: "permit" means allow or make possible; asking for an explicit photo can make a display possible | Lagesen: "permit" must mean authority to forbid or affirmative empowerment; texts insufficient | Court: Affirmed Porter/Richardson; "permit" means allow/make possible; texts + relationship suffice for attempt (substantial step) |
| Whether evidence supported an attempt conviction (substantial step/verifying intent) | State: defendant’s texts and sexual relationship constituted a substantial step and verification of intent | Defendant: texts alone insufficient to show substantial step toward permitting the display | Court: Evidence sufficient under Walters test; reasonable juror could find substantial step and verification |
| Whether McBride undermines Porter’s construction of "permit" | State: Porter remains controlling for ORS 163.670 because McBride concerned different statute and context | Defendant: McBride narrowed "permit" in a different statute, so Porter is undermined | Court: McBride addressed ORS 163.575; does not displace Porter for ORS 163.670; Porter and Richardson control |
| Whether trial court plainly erred by not sua sponte striking Burgett’s comment (vouching) | State: comment was not true vouching; explainatory context about interview tactics | Defendant: comment vouched for M’s credibility and should have been struck sua sponte | Court: Not plain error — the remark was explanatory, not "true vouching," so no sua sponte strike required |
Key Cases Cited
- State v. Porter, 241 Or. App. 26 (Oregon Ct. App.) (interpreting "permits" in ORS 163.670 to mean "allow" or "make possible")
- State v. Richardson, 261 Or. App. 95 (Oregon Ct. App.) (applying broad "permit" interpretation to facts involving photographs)
- State v. McBride, 352 Or. 159 (Or. 2012) (construing "permits" narrowly in the different context of ORS 163.575)
- State v. Wilson, 266 Or. App. 481 (Oregon Ct. App.) (trial court plain-error obligation to strike explicit vouching testimony)
- State v. Corkill, 262 Or. App. 543 (Oregon Ct. App.) (distinguishing "true vouching" from other testimonial commentary)