State v. Bates
| Citation | 472 P.3d 768,304 Or.App. 732 |
| Decision Date | 17 June 2020 |
| Docket Number | A160761 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Matthew BATES, Defendant-Appellant. |
| Court | Court of Appeals of Oregon |
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and Mooney, Judge.
In this criminal case, defendant appeals his convictions for first-degree encouraging child sexual abuse (ECSA), ORS 163.684, and endangering the welfare of a minor, ORS 163.575(2). He argues that the trial court erred in failing to enter a judgment of acquittal on each of those charges.1
We reject his challenge to the conviction for endangering the welfare of a minor without discussion. As explained below, we also conclude that the trial court erred in denying defendant's motion on the ECSA count, because the visual recording at issue is not "a visual recording of sexually explicit conduct involving a child" within the meaning of ORS 163.684(1)(a)(A). Accordingly, we reverse defendant's ECSA conviction, remand for resentencing, and otherwise affirm.
On review of the denial of a motion for judgment of acquittal, we view the facts in the light most favorable to the state and evaluate whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Cunningham , 320 Or. 47, 63, 880 P.2d 431 (1994), cert. den. , 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995). To the extent that the parties’ dispute regarding the motion for judgment of acquittal "centers on the meaning of the statute defining the offense, the issue is one of statutory construction," which is a matter of law that we review for legal error. State v. James , 266 Or. App. 660, 665, 338 P.3d 782 (2014) (internal quotation marks omitted).
Defendant, his wife, and his approximately one-and-one-half-year-old child went to a truck stop and rented a bathroom, including a shower room. The shower room included a shower stall with a bench along one wall of the stall, a curtain separating the shower stall from the rest of the room, and a sink next to the stall. While his wife and child were in the shower with the curtain closed, defendant lay naked on the floor outside the curtain, and made a two-and-one-half minute video of himself engaging in sexually explicit conduct with a dildo. The camera was on or near the floor and faced toward defendant's back, with his feet in the foreground. The shower curtain was visible in the background, beyond defendant's head. At two points during the video, the shower curtain opens for a few seconds and the child is visible, apparently sitting on the bench in the shower stall. When the curtain opens for the second time, defendant hands the dildo to his wife. She hands it back to him a few seconds later, and defendant closes the curtain.
Defendant uploaded the video to YouTube, and he was charged with ECSA after sending a link to the video to an online acquaintance. During a trial to the court, defendant argued that the video was not one of "sexually explicit conduct involving a child," as necessary to convict him of ECSA under ORS 163.684, which is set out below, 304 Or. App. at 735–36, 472 P.3d at 771–72. The court disagreed, reasoning that it was sufficient that the video shows that the child was exposed—albeit briefly—to defendant's sexually explicit conduct.
On appeal, defendant renews his argument that the video at issue is not "a visual recording of sexually explicit conduct involving a child" within the meaning of ORS 163.684(1)(a)(A). He contends that "involving a child," as it appears in that phrase, means "that the child was engaged in the conduct or in some way became a participant, even an unwitting one." See Webster's Third New Int'l Dictionary at 1191 (unabridged ed. 2002) ("to involve" can mean "to draw in as a participant : ENGAGE, EMPLOY "). The state responds that, because the word "involve" is capable of a wide variety of meanings, "a visual recording of sexually explicit conduct involving a child" covers, "at a minimum, all recordings in which a child has any association whatsoever with the sexually explicit conduct depicted in that recording."2
The parties’ dispute thus presents a question of statutory interpretation. To resolve it, we apply our familiar statutory-interpretation framework set out in State v. Gaines , 346 Or. 160, 171-73, 206 P.3d 1042 (2009). With the goal of discerning the intention of the legislature, we begin by examining the statute's text, context, and any pertinent legislative history. Id. at 172, 206 P.3d 1042. If the legislature's intent remains ambiguous after that analysis, we may resort to maxims of statutory construction to help resolve the uncertainty. Id. As explained below, we conclude that the statutory text, considered in context, is ambiguous. The legislative history, however, fully resolves the textual ambiguity.
As noted above, defendant was convicted of encouraging child sexual abuse in the first degree, ORS 163.684.3 That statute provides:
That provision is one of a group of statutory provisions that, taken together, prohibit all stages of the production, distribution, possession, and accessing of child pornography. See ORS 163.665 - 165.693. The legislature has graded those crimes by the severity of the person's conduct and accompanying culpable mental state. See State v. Porter , 241 Or. App. 26, 33-34, 249 P.3d 139, rev. den. , 350 Or. 530, 257 P.3d 1020 (2011) ().
The most serious of the child pornography crimes is ORS 163.670, which establishes the offense of using a child in a display of sexually explicit conduct. Cf. State v. Stoneman , 323 Or. 536, 547-48, 920 P.2d 535 (1996) . That statute makes it a Class A felony when a person "employs, authorizes, permits, compels or induces a child to participate or engage in sexually explicit conduct for any person to observe or to record in a visual recording." Simply stated, ORS 163.670 prohibits "the actual creation of child pornography or the use of a child in a sexual display for a live audience." Porter , 241 Or. App. at 34, 249 P.3d 139.
Thus, the text of ORS 163.670 expressly requires that the child must participate or engage in sexually explicit conduct. ORS 163.670(1) (). First-degree ECSA, ORS 163.684, describes its prohibition differently; that statute prohibits taking a variety of actions with respect to "a visual recording of sexually explicit conduct involving a child." ORS 163.684(1)(a)(A).
The state argues that we should infer from that textual difference—on the one hand, a prohibition on causing or permitting "a child to participate or engage in sexually explicit conduct," ORS 163.670(1), and, on the other hand, a prohibition on taking certain actions with respect to "a visual recording of sexually explicit conduct involving a child," ORS 163.684(1)(a)(A) —that the legislature intended the two provisions to cover different conduct by the child. In the state's view, that textual difference "suggests that the legislature intended involvement to mean something less than participation." See, e.g. , Baker v. Croslin , 359 Or. 147, 157, 376 P.3d 267 (2016) (). We agree with the state's assertion that that is a plausible understanding of the textual differences between the statutes, but do not agree that that plausible understanding is necessarily determinative. See State v. Lane , 357 Or. 619, 629, 355 P.3d 914 (2015) ().
It is equally plausible that the legislature chose different phrases to describe the same conduct because of other differences between the two statutes. The relevant text of ORS 163.670 is not describing the content of a visual recording; it is directly describing the child's action. ORS 163.670(1) prohibits employing, authorizing, permitting, compelling, or inducing "a child to...
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