State v. Lewis

Jul 7, 1993
90-07-33549; CA A72528
Reporters:
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Before:
Deits
DEITS, P. J.

Defendant appeals his convictions for two counts of dealing in depictions of sexual conduct involving a child, ORS 163.673, and the conditions of probation imposed as a result of the convictions. We affirm.

Defendant was found to have developed and possessed with intent to print a photograph of a child in an act of “sexually explicit conduct,” which ORS 163.665(2)(f) defines as “[l]ewd exhibition of the genitals or anus.” Although he did not demur to the indictment, defendant here contends that the statutes under which he was convicted are unconstitutional and that we should reach the error as apparent on the face of the record. ORAP 5.45(2). Specifically, defendant claims that the statutes are void for vagueness and over-breadth. The same issue was decided adversely to defendant in State v. Meyer, 120 Or App 319, 852 P2d 879 (1993).

Defendant also contends that the trial court erred in imposing special conditions of probation relating to pedophile offenders. Defendant’s probation was revoked on March 19, 1992, for his failure to comply with the terms of probation. He was sentenced to 84 days in the county jail. The state appealed the trial court’s disposition of defendant’s sentence after the court revoked probation. In that appeal, we held that, after revoking probation, the trial court erred in failing to sentence defendant to a prison term pursuant to OAR 253-10-002; we remanded for resentencing. State v. Lewis, 119 Or App 362, 850 P2d 409, rev den 317 Or 163 (1993). Accordingly, the conditions of defendant’s probation are no longer at issue, and his claim of error is moot.

Affirmed.