Dеfendant appeals a judgment of conviction for four counts of second-degree encouraging child sex abuse, ORS 163.686. He contends that the trial court erred in concluding that four photographs of children on his cell phone contained lewd exhibitions of sexual portions of the childrеn’s bodies and, hence, that it erred in convicting him of the charged crimes. Defendant raises several additional assignments of error that we rejeсt without written discussion. We affirm.
The facts are undisputed. A person told defendant’s parole officer, Kieling, that defendant had child pornography on his cell phone. Kieling went to defendant’s home and asked defendant for permission to search his cell phone, which defendant granted. Kieling fоund a photograph of a child on defendant’s cell phone that Kieling considered to be pornographic, and he arrested defendаnt for violating a condition of his parole, seized the cell phone, and gave it to local police. The police obtained а warrant to conduct a further search of the cell phone, which revealed six photographs of prepubescent girls.
The state chаrged defendant by indictment with six counts of second-degree encouraging child sex abuse, ORS 163.686,
In response to a motion by defendant, the Appellate Commissioner remаnded the case to the trial court to identify which of the six photographs formed the bases of the four convictions. The court responded that it had convicted defendant based on the photographs admitted as Exhibits 2B, 3A, 4A, and 4B. Exhibit 2B depicts a young girl lying on a couch, wearing nothing other than skin-colоred pantyhose and underwear. The other three photographs depict young girls sitting with their legs placed in a manner that exposes their genital area to the camera. The girls in those photographs are wearing shirts and underwear. In one of the photographs, the girl’s genitals are рartially exposed.
We begin with a brief overview of the relevant statutes. ORS 163.686(l)(a)(A)(i) prohibits a person from possessing or controlling “a visual recоrding of sexually explicit conduct involving a child for the purpose of arousing or satisfying the sexual desires of the person or another persоn.” As relevant to this appeal, ORS 163.665(3) defines the term “sexually explicit conduct” to mean, among other things, a “lewd exhibition of sexual or other intimatе parts” of a person.
We have previously construed the phrase “lewd exhibition” in ORS 163.665. In State v. Meyer,
The defendant was convicted of the charged crimes and appealed, contending that the term “lewd exhibition” was unconstitutiоnally vague. We disagreed and held that “the phrase ‘lewd exhibition of the genitals or anus’ *** mean[s] exhibition with the intent of stimulating the lust or sexual desires of the person who views it.” Meyer,
Defendant contends on appeal that no reasonable factfinder could find that the people who took the photographs did so with the intention of arousing the sexual desire of viewers because the state presented no evidence about the circumstances under which the photographs were created. The state responds that the photographs are so sexually suggestive that they allow a reasonable inference that the people who took them did so with the intention of arousing the sexual desire of viewers.
Our task is to determine whether a reasonable fact-finder, viewing the evidence in the light most favorable to the state, could find that the state had proven every essential element of the crime beyond a reasonable doubt. See, e.g., State v. Bivins,
Three facts about the photographs lead us to conclude that each of them would permit a reasonable factfinder to make the requisite finding. First, the children in all of the photographs are positioned in awkward and sexually suggestive poses that a сhild would be unlikely to naturally adopt. Second, the children are wearing tight-fitting underwear that barely covers their genitals. Finally, the children are the sole subjects of the photographs — viz., these are not photographs that could have been taken with the intention of capturing a different subject.
Taken together, those facts lead us to conclude that the photographs can support a nonspeculative inference by a factfinder that they were taken with the intention of arousing the sexual desire of viewers of them. Accordingly, the trial court did not err in finding defendant guilty of four counts of secоnd-degree encouraging child sex abuse.
Affirmed.
Notes
ORS 163.686 provides, as relevant:
“(1) A person commits the crime of encouraging child sexual abuse in the second degree if the persоn:
“(a)(A)(i) Knowingly possesses or controls, *** a visual recording of sexually explicit conduct involving a child for the purpose of arousing or satisfying the sexual desires of the person or another person!.]”
ORS 163.665(3)(f) provides, in turn:
‘“Sexually explicit conduct’ means ***:
«* * * * *
“(f) Lewd exhibition of sexual or other intimate parts.”
Because the charges against defendant were tried to the court, defendant’s contention in his closing argument that the state’s evidence was legally insufficient to establish his guilt was the functional equivalent of a motion for a judgment of acquittal. See, e.g., State v. Andrews,