278 P.3d 33
Or. Ct. App.2012Background
- Consolidated cases where Urbina was convicted of first-degree sodomy, first-degree sexual abuse, first-degree encouraging child sexual abuse (two counts), compelling prostitution, and fourth-degree assault.
- Evidence showed Urbina used file-sharing software to download child-pornography videos to his home computer, with some copies recoverable after attempted deletion.
- Issues on appeal included exclusion of bias evidence, exclusion of certain expert testimony, failure to enter acquittals on first-degree encouraging child sexual abuse, failure to dismiss for merger, and mistrial/closing-arguments concerns.
- The state sought to classify the two videos as separate victims under ORS 161.067 and argued affirming convictions for encouraging prostitution, while Vargas-Torres later clarified propriety of convicting prostitution rather than compelling prostitution.
- The court concluded the compelling prostitution conviction was plain error in light of Vargas-Torres and reversed that conviction; other convictions were affirmed or left intact.
- The court discussed whether Urbina’s conduct satisfied “knowingly duplicate” under ORS 163.684 and distinguished Ritchie and Barger on facts and statutory language.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether exclusion of bias evidence was reversible error | Urbina argues bias testimony was privileged by the victim | Urbina asserts exclusion prejudiced defense | Assignment without discussion; no reversible error noted |
| Whether the trial court should have allowed certain expert testimony | State argues expert testimony needed | Defense contends testimony inadmissible or irrelevant | Assignment rejected without discussion; no reversible error identified |
| Whether the trial court erred by not entering judgments of acquittal on first-degree encouraging child sexual abuse | State contends sufficient evidence of duplication and knowledge | Urbina argues no duplicative evidence or knowledge; plain error claim | No plain error; appropriate to uphold convictions on this point |
| Whether merger under ORS 161.067 affected multiple convictions for encouraging child sexual abuse | State urged merger could apply to reduce counts | Urbina contends merger should apply; multiple convictions improper | Merger issue not plain error; abandoned by court's interpretation and prior Betnar stance |
| Whether compelling prostitution conviction should be reversed in light of Vargas-Torres | Vargas-Torres permits conviction for prostitution (ORS 167.007) | Conviction for compelling prostitution was not supported; correct remedy is reversal | Conviction for compelling prostitution reversed and remanded for resentencing; prostitution conviction affirmed |
Key Cases Cited
- State v. Betnar, 214 Or.App. 416 (2007) (merger interpretation of ORS 161.067 in ambiguity over multiple victims/victims under ORS 163.684)
- Vargas-Torres, 237 Or.App. 619 (2010) (prostitution offenses; compelling prostitution not proved; patrons prosecuted under ORS 167.007)
- Ritchie, 349 Or. 572 (2011) (second-degree encouraging child sexual abuse; possession/control concerns; distinguish from duplicate issue)
- Barger, 349 Or. 553 (2011) (second-degree encouraging child sexual abuse; possession/control concerns; distinguish from duplicate issue)
- Inloes, 239 Or.App. 49 (2010) (plain-error remedy; intervening legal principle warranted correction)
- Camarena-Velasco, 207 Or.App. 19 (2006) (merger/aggregation issues under ORS 161.067 discussed in context of multiple offenses)