State v. Richardson
261 Or. App. 95
Or. Ct. App.2014Background
- Defendant was convicted after police found photographs in his home showing him and an adult woman engaged in oral-genital sexual acts while a fully clothed child appeared in the photos near the adults.
- Exhibit 3 shows the child touching defendant’s naked leg while the adults engaged in sexual activity; Exhibit 1 shows the child standing and looking at defendant’s exposed penis while the woman appears to push the child away.
- Defendant admitted he took the photographs; duplicates/prints were found stashed in his toolbox. The photographed woman identified defendant as the photographer and denied intentionally involving the child.
- Defendant moved for judgment of acquittal arguing (1) the photos did not show the child ‘‘participating or engaging’’ in sexually explicit conduct and (2) the images did not depict sexually explicit conduct ‘‘involving’’ a child for purposes of the encouraging-child-sexual-abuse statute. The trial court denied the motion and convicted on two counts under ORS 163.670 and one count under ORS 163.684.
- On appeal the court reviewed denial of the MJOA for sufficiency of the evidence and statutory interpretation of terms such as ‘‘permit,’’ ‘‘participate,’’ ‘‘engage,’’ and ‘‘involve.’”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exhibit 3 shows the child "participating or engaging" in sexually explicit conduct and defendant "permitted" that participation under ORS 163.670 | Photo and context support inference defendant deliberately included child; touch of defendant’s leg shows more than mere proximity; defendant’s retention of photos supports intent to include child | Mere presence or proximity is insufficient; no evidence child actively engaged in sexual conduct or that defendant induced participation | Held: Sufficient evidence. Child touching defendant and defendant’s conduct (photographing and retaining images) permitted a reasonable inference child was participating/engaged and defendant allowed it; conviction affirmed (Count 1). |
| Whether Exhibit 1 shows the child "participating or engaging" in sexually explicit conduct | Even if woman appears to push child away, defendant’s choice to photograph and retain the image supports inference he included the child | Woman’s pushing suggests child not a participant; still merely in proximity | Held: Sufficient evidence. Differences do not negate reasonable inference defendant included child; conviction affirmed (Count 2). |
| Whether Exhibit 3 depicts sexually explicit conduct "involving" a child and whether defendant "developed/printed" photos for ORS 163.684 (encouraging child sexual abuse) | Photograph portrayed sexually explicit conduct involving the child; defendant photographed and possessed printed copies, supporting inference he developed/printed duplicates; thus creation involved child abuse | No evidence defendant printed/developed; photo does not "involve" child as participant; no evidence child was a victim of a crime | Held: Sufficient evidence. Court may infer defendant developed/printed; conduct "involved" child because it satisfied ORS 163.670 elements; conviction affirmed (Count 4). |
Key Cases Cited
- State v. Stoneman, 323 Or. 536 (1996) (statute aims to deter harm from children’s participation in sexually explicit conduct for visual recording)
- State v. Porter, 241 Or. App. 26 (2011) ("permit" in ORS 163.670 construed broadly to mean allow or make possible)
- State v. Betnar, 214 Or. App. 416 (2007) (possession of duplicates can support inference defendant developed or printed originals)
- State v. Hall, 327 Or. 568 (1998) (standard for appellate review of denial of judgment of acquittal)
- State v. Spainhower, 251 Or. App. 25 (2012) (statutory interpretation reviewed for legal error)
- State v. Langford, 260 Or. App. 61 (2013) (review of factual findings for constitutionally adequate evidence)