State v. Betnar

• Decision Date: 15 August 2007
• Docket Number: 031274; A127947.
• Citation: 214 Or. App. 416,166 P.3d 554
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Andrew William BETNAR, Defendant-Appellant.
• Court: Oregon Court of Appeals

166 P.3d 554

214 Or. App. 416

STATE of Oregon, Plaintiff-Respondent, v. Andrew William BETNAR, Defendant-Appellant.

031274; A127947.

Court of Appeals of Oregon.

Argued and Submitted March 16, 2007.

Decided August 15, 2007.

Marc D. Blackman, Portland, argued the cause for appellant. With him on the briefs was Ransom Blackman LLP.

Ryan P. Kahn argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Paul L. Smith, Assistant Attorney General.

Before EDMONDS, Presiding Judge, and WOLLHEIM and SERCOMBE,^* Judges.

EDMONDS, P.J.

Following a trial to the court, defendant was convicted of 199 counts of encouraging child sexual abuse in the first degree, ORS 163.684, based on evidence that he duplicated or printed 199 sexually explicit images of children. On appeal, he raises five assignments of error, each of which we reject. Accordingly, we affirm defendant's convictions and sentences.

We state the facts in the light most favorable to the state. E.g., State v. Longo, 341 Or. 580, 582, 148 P.3d 892 (2006). In June or July 1999, defendant's wife found a number of photographs in a drawer in their residence. Defendant's wife testified that the photographs "were pictures of naked ladies having sex encounters between adults. And also they were also [sic] of children involved in some of those sexual encounters." When confronted by his wife with the photographs, defendant said that he didn't want her to look at them, that he didn't want to discuss them, and to "leave it alone." Defendant seemed worried and embarrassed by the photographs. Defendant's wife returned the photographs to defendant. In 2001, the couple began suffering marital difficulties. In February, defendant's wife again found the photographs (which she had earlier returned to defendant) in their residence. This time, she kept the photographs.

In February 2003, defendant's wife contacted an attorney regarding dissolving her marriage with defendant. Because she was worried about retaining custody of their children, she eventually told the attorney about the photographs and instructed her to "use" them "only if it's absolutely necessary." The attorney, concerned about her statutory duty to report child abuse, ORS 419B.010, and believing that the photographs depicted underage females engaged in sexually explicit conduct, reported the existence of the photographs to the City of Warrenton Police Department. As a result, Warrenton Police Officer Holder met with the attorney and defendant's wife in the attorney's office in April 2003. At that time, the attorney gave Holder 24 photographs that he described as "several pictures * * * of young girls, none of [whom] have clothes on." Later, defendant's wife gave Holder several credit card bills for pornographic web sites that she had found in the couple's residence; they were dated in March, June, and July 2002 and March 2003.

Based on that information, Holder prepared an affidavit for a search warrant to search the house where defendant and his wife had lived, the house where defendant had subsequently moved, a storage unit, and other locations. A magistrate issued a search warrant and, pursuant to the warrant, the police seized evidence from the house where defendant was staying and from his storage unit. The evidence seized from the house included computer floppy disks, CD-ROMs, and a computer. The evidence seized from the storage unit included sexually explicit photographs, other sexually explicit material, and a number of floppy disks. Among the thousands of images seized, either printed or found on computer storage media, the state ultimately relied at trial on 12 images found on defendant's computer hard drive, 187 images on the CD-ROMs found at the house in which defendant was staying, and one of the photographs that it had received from defendant's wife. As noted, the trial court found defendant guilty on 199 of the 200 counts.¹

On appeal, defendant first argues that the statute under which he was convicted —ORS 163.684—violates his right to free expression under Article I, section 8, of the Oregon Constitution.² We review the trial court's ruling regarding the constitutionality of a statute for an error of law. State v. Rangel, 328 Or. 294, 298, 977 P.2d 379 (1999). ORS 163.684 provides:

"(1) A person commits the crime of encouraging child sexual abuse in the first degree if the person:

"(a)(A) Knowingly develops, duplicates, publishes, prints, disseminates, exchanges, displays, finances, attempts to finance or sells any photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child or possesses such matter with the intent to develop, duplicate, publish, print, disseminate, exchange, display or sell it; or

"(B) Knowingly brings into this state, or causes to be brought or sent into this state, for sale or distribution, any photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child; and

"(b) Knows or is aware of and consciously disregards the fact that creation of the visual recording of sexually explicit conduct involved child abuse.

"(2) Encouraging child sexual abuse in the first degree is a Class B felony."

As defendant recognizes, we upheld ORS 163.684—the very statute at issue here— against an Article I, section 8, challenge in State v. Dimock, 174 Or.App. 500, 27 P.3d 1048 (2001), rev. den., 334 Or. 190, 47 P.3d 485 (2002). Relying on our opinion in State v. Ready, 148 Or.App. 149, 939 P.2d 117, rev. den., 326 Or. 68, 950 P.2d 892 (1997), in which we determined that a predecessor to ORS 163.684 did not violate Article I, section 8, we held:

"If the state may constitutionally prohibit the mere possession of visual recordings of sexually explicit conduct involving a child, as we held in Ready, it may also prohibit their duplication and distribution. Duplication and distribution necessarily imply possession, and the statute is focused as narrowly on an effect that the legislature may proscribe as the statute in Ready."

Dimock, 174 Or.App. at 504, 27 P.3d 1048. The holding in Dimock would appear to answer defendant's first assignment of error.

Nonetheless, defendant asserts that Dimock was wrongly decided. Relying on the Supreme Court's opinions in State v. Ciancanelli, 339 Or. 282, 121 P.3d 613 (2005), and City of Nyssa v. Dufloth, 339 Or. 330, 121 P.3d 639 (2005), defendant argues that "ORS 163.684 is directed at expression, not conduct, and hence unconstitutional under Article I, section 8." Defendant asserts that his conclusion "follows from two aspects of" the statute. We briefly address each in turn.

The first aspect of the statute that shows that it is directed at expression, according to defendant, is "its disparate treatment of different forms of child abuse." In defendant's view, the fact that the legislature has criminalized a number of forms of child abuse, but that ORS 163.684 applies only to depictions of child sexual abuse, demonstrates that the statute is directed at restricting only one kind of expression. "[O]nce the Legislature has identified harmful effects," defendant insists, "it may not constitutionally proscribe those which involve expression * * * protected by Article I, section 8[,] while leaving unpunished those which have no constitutional standing."

We disagree with defendant's reasoning. In Ready, we explained that former ORS 163.672 (1993), repealed by Or. Laws 1995, ch. 768, § 16, which prohibited possession of a depiction of sexual conduct involving a child, was aimed at conduct, not expression:

"[H]ere, the statute prohibits the possession of certain communicative materials, not in terms of their communicative substance, but in terms of their status as a product of acts that have necessarily harmed children. The ability to possess and use the material is made possible only by the sexual abuse of children, which is, of course, harmful to children. Further, following the reasoning of [State v.] Stoneman, [323 Or. 536, 920 P.2d 535 (1996),] the possession and use of the video continues that harm."

Ready, 148 Or.App. at 160, 939 P.2d 117. The legislature's authority to determine what conduct is criminal is plenary, subject to constitutional limitations. State v. Moyle, 299 Or. 691, 699, 705 P.2d 740 (1985). That the legislature chose to criminalize conduct (in this case, printing or duplication of a visual recording of sexually explicit conduct involving a child) that necessarily harms children, without choosing to criminalize conduct involving depictions of other kinds of child abuse, does not logically demonstrate that ORS 163.684 punishes expression. For instance, the legislature could have chosen not to make depictions of other kinds of child abuse unlawful because it believed that there existed no economic incentives for those kinds of child abuse, unlike the economic incentives that exist for the dissemination of depictions of the sexual abuse of children. Accordingly, we reject defendant's first argument.

Next, defendant argues that "[t]he second aspect of ORS 163.684 that demonstrates that its actual focus is on expression, not conduct, is its application to any depiction of the forbidden conduct regardless of when or where it may have occurred." He explains that

"ORS 163.684 does not, either on its face or as interpreted by the trial court, make actual exploitation of a child a necessary element of any violation. On the contrary, it purports to punish involvement with `visual recording[s] of sexually explicit conduct involving a child' regardless of when or where they may have occurred and regardless of whether the portrayed conduct was lawful when or where it occurred."

It follows, in his view, that in the absence of a statutory requirement to prove the actual sexual abuse of the child depicted in the image, the statute is aimed at protected expression rather than...