State v. Evans
Decision Date | 26 December 2001 |
Citation | 37 P.3d 227,178 Or. App. 439 |
Parties | STATE of Oregon, Respondent, v. Johnny Lee EVANS, Appellant. |
Court | Oregon Court of Appeals |
Meredith Allen, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, Public Defender.
Douglas F. Zier, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.
Defendant appeals from a judgment of conviction for one count of knowingly using a child in a display of sexually explicit conduct. ORS 163.670. He does not appeal his conviction on another count of that crime. On appeal, he argues that the trial court erred when it denied his motion for judgment of acquittal as a matter of law. We affirm.
Viewing the evidence in the light most favorable to the state, the jury could have found the following. Defendant lived in a mobile home with his fiancé and their two sons, age three years and six months, respectively. At times, the fiancé's daughter, M., who was 8 years old at the time of trial, stayed in the residence with defendant's family while having visitation with her mother. While all the members of the household, including M., were present one night in the residence, defendant encouraged everyone to "get naked." Everyone immediately complied, except M., who said that she did not want to participate. However, defendant told her that she would not be "part of this family" if she did not comply with his request. M. then went to another room, took off her clothes, wrapped herself in a blanket and rejoined the family in the living room. The three-year-old playfully took the blanket from M. and put it beyond her reach. The family then watched a movie together.
At some point, M.'s mother went to another room to take a bath, and M. followed her, asking her to teach M. how to dance. However, defendant called M. back into the family room and told her that he would teach her how to dance. He then assumed a standard slow-dancing position with M. and told her to "watch his feet." He then danced with M., holding her so closely that his genitals were pressed into her stomach. Both defendant and M. were nude at the time. According to M., defendant did not have an erection.
After the dancing ended, the family went to bed. The next day, M.'s mother ran some errands and left her in defendant's care. Defendant entered the bedroom where M. was and, according to M.:
She complied with defendant's request, while he watched from the doorway. A few minutes later, she got dressed again. M. did not tell her mother about the second incident. After her visitation with her mother ended, M. returned to her father's residence and disclosed the events described above. M.'s father immediately took her to the police, and the investigation that followed resulted in this prosecution and the convictions.
The first count against defendant is based on the naked dancing episode. The second count charges the same crime and is based on defendant's request that M. display her genitals to him. Defendant was acquitted of a third count charging sex abuse, ORS 163.427, which was also based on the second incident.
Defendant argued to the trial court that he was entitled to a judgment of acquittal on Count 1, because:
The trial court ruled as follows:
On appeal, defendant assigns as error the denial of his motion and argues:
The issue is whether a rational factfinder could conclude on this record that defendant induced M. to engage in "sexually explicit conduct" as required by ORS 163.670 and as defined by ORS 163.665(3)(f). See State v. King, 307 Or. 332, 339, 768 P.2d 391 (1989) (the proper inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). ORS 163.670 provides in part:
"(1) A person commits the crime of using a child in a display of sexually explicit conduct if the 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 photograph, motion picture, videotape or other visual recording."1
ORS 163.665(3) provides definitions for "[s]exually explicit conduct," including subsection (f) which provides that sexually explicit conduct is the "[l]ewd exhibition of sexual or other intimate parts."
We conclude that a rational factfinder could find from the above facts that defendant knowingly caused M. to engage in a display of sexually explicit conduct as defined by ORS 163.665(3)(f).2 Defendant initiated and induced M.'s removal of her clothing by telling her that she was not part of the family unless she joined them in the nude. He then called her back into his presence when she attempted to leave and volunteered to teach her how to dance. He then danced with her while both were nude and pressed his genitals against her. In addition, his conduct and the statements on the following day constitute additional evidence on which a rational factfinder could rely to draw an inference as to defendant's scienter.
The dissent says, in part:
3 178 Or.App. at 447, 37 P.3d at 231 (Armstrong, J., dissenting) (emphasis added).
The dissent further reasons:
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State v. Rose, 10P3394
...We affirm the trial court's denial of defendant's motion for judgment of acquittal without further discussion based on State v. Evans, 178 Or.App. 439, 37 P.3d 227 (2001), rev. den.,334 Or. 76, 45 P.3d 450 (2002) (construing the term “lewd exhibition”). 3. Defendant also argues that, under ......
- State v. Fortmeyer
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State v. Smith
...that “mere nudity” does not constitute a lewd exhibition and that this court's interpretation of lewd exhibition in State v. Evans, 178 Or.App. 439, 37 P.3d 227 (2001), rev. den.,334 Or. 76, 45 P.3d 450 (2002), was wrong and should be overruled. For the following reasons, we reject defendan......
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State v. Smith, A147619 (Control)
...that "mere nudity" does not constitute a lewd exhibition and that this court's interpretation of lewd exhibition in State v. Evans, 178 Or App 439, 37 P3d 227 (2001), rev den, 334 Or 76 (2002), was wrong and should be overruled. For the following reasons, we reject defendant's arguments and......