State v. Saunders, 429 P.3d 1049

Background

Defendant convicted of two counts of first-degree sexual abuse and one count of using a child in a display of sexually explicit conduct involving his five-year-old granddaughter (two separate incidents).
State introduced pornographic images and "child literotica" that defendant had accessed to prove sexual interest in children and sexual purpose in the abuse.
Defendant objected: the images depicted post-pubescent or young-adult models and thus were irrelevant to a sexual interest in prepubescent children; he also objected under OEC 403 to references to bondage/sadomasochism in the writings.
Trial court excluded clearly adult images but admitted material that "looked like young girls, even fake young girls." Defendant conceded some images encouraged perceiving subjects as underage.
For the written material, the court asked defense counsel to identify redactions; defense counsel proposed redactions and indicated completion, and the court accepted them. Two passages depicting bondage/sadomasochism remained but defense counsel had not pointed them out at trial.
On appeal, defendant challenged admission of both the images and the unredacted excerpts; the court rejected the relevance challenge to the images and held defendant invited any error concerning the unredacted excerpts.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of pornographic images to show sexual interest in prepubescent children	Images tend to show defendant viewed models as underage; relevant to sexual purpose	Images depict post-pubescent or adult females and thus do not show interest in prepubescent children; irrelevant	Court: Relevant — images (given context/names, depiction) slightly increase probability of sexual purpose; admission not error
Admission of "child literotica" passages depicting bondage/sadomasochism	State: writings defendant viewed show sexual interest in children; properly admitted after redactions	Defendant: OEC 403 exclusion of bondage/sadomasochism; court abused discretion by admitting unredacted offensive excerpts	Court: Any error invited by defense — counsel agreed to identify redactions and indicated completion; defendant cannot later complain
Trial court duty to ensure redactions of inadmissible parts when parties propose redactions	State: party who proposed redactions rests on their identifications; court not obligated to sort admissible vs inadmissible matter	Defendant: court had responsibility to ensure inadmissible passages were not admitted	Court: No affirmative duty; court need not separate admissible from inadmissible unless it itself divided the offer and ruled on parts
Preservation of appellate error when trial counsel fails to object to admitted passages	State: failure to identify excerpts invited error; no preservation	Defendant: inadvertent oversight should not forfeit error review	Court: Rule of invited error applies even to inadvertent/unstated failures; defendant invited error and cannot prevail

Key Cases Cited

State v. Swinney, 269 Or. App. 548 (Or. App. 2015) (standard for reviewing OEC 401 relevance determination)
State v. Millar, 127 Or. App. 76 (Or. App. 1994) (photographs of young nude female relevant to proving sexual interest in young girls)
State v. Kammeyer, 226 Or. App. 210 (Or. App. 2009) (definition and application of invited-error doctrine)
Anderson v. Oregon Railroad Co., 45 Or. 211 (Or. 1904) (early articulation of "actively instrumental" language for invited error)
State v. Ferguson, 201 Or. App. 261 (Or. App. 2005) (party bound by strategic trial choices; invited-error application)
Tenbusch v. Linn County, 172 Or. App. 172 (Or. App. 2001) (invited error may include inadvertent or unintentional failures)
State v. Rennells, 253 Or. App. 580 (Or. App. 2012) (failure to preserve claim at trial can invite error)
State v. Saunders, 221 Or. App. 116 (Or. App. 2008) (statements by counsel can invite alleged errors regarding jury instructions)
Clay/Luttrell v. Pay Less Drug Stores, 276 Or. 673 (Or. 1976) (invited error where counsel approved instructions)
Crawford v. Jackson, 252 Or. 552 (Or. 1969) (strategic trial choices and subsequent complaints)
State v. Ryel, 182 Or. App. 423 (Or. App. 2002) (trial court not required to separate admissible from inadmissible matter within a single offer)
State v. Howard, 49 Or. App. 391 (Or. App. 1980) (same principle regarding mixed admissible/inadmissible evidence)
State v. Dye, 286 Or. App. 626 (Or. App. 2017) (court obligation to divide offers and rule on parts is the exception to the general rule)