322 P.3d 1129
Or. Ct. App.2014Background
- Consolidated appeal; defendant convicted on four counts of using a child in a display of sexually explicit conduct (two tied to A, two tied to B) and related first-degree sexual abuse counts, based on photographs of A and unrecovered photos of B.
- B, six years old in 2009, lived next door to defendant; defendant allegedly was alone with B over 100 times from 2005–2009 and B reported touching and photographing her vagina.
- In July 2009, B and a friend were found naked and touching in B’s bedroom; mother later learned defendant had pulled down B’s pants, touched her, and taken photographs of her vagina.
- Police recovered near 500 photographs of clothed children and children’s clothing/toys in defendant’s bedroom; a fanny pack camera yielded deleted photos of A (two-year-old) but no recovered photos of B.
- A’s photographs showed her naked from the waist down in the backyard; A’s mother testified daily visits by defendant and that A was typically clothed in public; defense suggested A’s sister took the photos.
- At trial, motions for judgment of acquittal were denied; the state proceeded on an inducement theory for both A and B; the jury convicted on A’s two inducement-based counts and on B’s two inducement-based counts plus related sexual-abuse counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Induced versus compelled: sufficient evidence to prove inducement | State argues inducement shown by photos and circumstances | Defendant asserts no evidence of persuasion/circumstances; only photos | Yes; evidence could support inducement |
| Lewd exhibition: unrecovered photos of B constitute lewd exhibition | Photos of B with pants down show lewd exhibition | Mere nudity not lewd; Evans overruled/dismissed | Yes; jury could find lewd exhibition under Evans framework |
| Sufficiency of evidence for B’s lewd exhibition based on unrecovered photos | Unrecovered images, combined with witness testimony, prove lewdness | Lack of direct evidence about photographs’ taking circumstances | Yes; evidence supports lewd exhibition conviction for B |
| Inducement theory applied to A’s photographs | Inducement shown by A’s photos and mother’s testimony | Insufficient proof of circumstances causing A to pose | Yes; two counts sustained under inducement theory |
Key Cases Cited
- State v. Hennagir, 246 Or App 456 (Or. App. 2011) (permissible inferences from circumstantial evidence; avoid speculation)
- Evans v. State, 178 Or App 439 (Or. App. 2001) (lewd exhibition focus on viewer's lust; majority rule adhered to)
- Meyers v. State, 120 Or App 319 (Or. App. 1993) (defines lewd exhibition as intended to stimulate viewer’s lust)
- State v. Ritchey, 257 Or App 291 (Or. App. 2013) (rejected argument that Evans plainly wrong; adheres to lewd exhibition rule)
- Walton v. Thompson, 196 Or App 335 (Or. App. 2004) (adherence to Evans interpretation; focus on statutory interpretation)
- State v. Richardson, 261 Or App 95 (Or. App. 2014) (photos of clothed child near sexual activity; relevance to sufficiency)