State v. Hunt

• Citation: 346 P.3d 1285,270 Or.App. 206
• Decision Date: 01 April 2015
• Docket Number: 1208199CR,A153151.
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Levi Jack HUNT, Defendant–Appellant.
• Court: Oregon Court of Appeals

270 Or.App. 206
346 P.3d 1285

STATE of Oregon, Plaintiff–Respondent
v.
Levi Jack HUNT, Defendant–Appellant.

1208199CR
A153151.

Court of Appeals of Oregon.

Argued and Submitted Oct. 31, 2014.
Decided April 1, 2015.

346 P.3d 1286

Erik M. Blumenthal, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Lagesen, Presiding Judge, and Haselton, Chief Judge, and Armstrong, Judge.^*

Opinion

LAGESEN, P.J.

270 Or.App. 207

On appeal from a judgment of conviction for two counts of rape in the second degree, one count of sexual abuse in the first degree, and one count of attempted use of a child in a display of sexually explicit conduct, defendant assigns error to the trial court's denial of his motion for judgment of acquittal on the charge of attempted use of a child in a display of sexually explicit conduct. He argues that, in denying the motion for judgment of acquittal, the trial court erroneously interpreted the word “permits” in ORS 163.670(1),¹ and asserts further that, if the statute is correctly construed, the evidence is insufficient to support his conviction for attempting to violate it. He also assigns error to the trial court's failure to sua sponte strike purported “vouching” evidence. We affirm, concluding that the trial court's construction of ORS 163.670(1) is correct under our decisions in State v. Porter, 241 Or.App. 26, 249 P.3d 139, rev. den., 350 Or. 530, 257 P.3d 1020 (2011), and State v. Richardson, 261 Or.App. 95, 323 P.3d 311, rev. den., 355 Or. 880, 333 P.3d 334 (2014), and that the trial court did not plainly err in failing to strike “vouching” evidence.

I. FACTS

Defendant was charged by information with two counts of rape in the second degree, in violation of ORS 163.365 ; two counts of sexual abuse in the first degree, in violation of ORS 163.427(1)(a)(A) ; one count of online sexual corruption of a child in the first degree, in violation of ORS 163.433 ; and one count of attempted use of a child in a display of sexually explicit conduct, in violation of ORS 161.405 and ORS 163.670. With respect to the count of attempted use of a child in a display of sexually explicit conduct, the information alleged that defendant “did unlawfully attempt to permit [M], a child, to engage in sexually explicit

270 Or.App. 208

conduct for a person to observe [.]” The charges arose when an investigation conducted by the Grant County Sheriff's Department revealed that defendant had become involved in a romantic relationship with 13–year–old M, which eventually turned sexual; defendant was 25 years old at the time the relationship started.

During trial, Deputy Burgett, who was involved in the investigation of defendant, recounted his interviews with M. In response to a question from the prosecutor about whether Burgett wished that he had spent more time trying to get more detail from M about characteristics of defendant that would

346 P.3d 1287

be known only to someone who was intimate with defendant, Burgett stated:

“Honestly, it was at the point where she finally was coming forward with, you know, her statements as far as that they had had sex, and I asked—it was just a general question as I was covering my bases. I thought the information she gave me was just the best of her knowledge at the time.”

Defendant did not object to the admission of that testimony, and the trial court did not strike it.

As to the charge that defendant attempted to “permit” M to engage in a display of sexually explicit conduct within the meaning of ORS 163.670(1), the state sought to prove that charge through evidence that defendant had sent M a text message asking her to send him a “naughty” picture of herself. Specifically, the state relied on evidence of the following text-message conversation between defendant and M, together with other evidence that defendant and M had been in a sexual relationship, to establish that defendant had attempted to “permit” M to engage in sexually explicit conduct:

“[Defendant:] Go send me a pic in the bathroom, Baby.

“[M:] What kind of one?

“[Defendant:] Naughty.”

At the close of the state's case, defendant moved for a judgment of acquittal on the two counts of sexual abuse and the one count of attempted use of a child in a display of sexually explicit conduct. With respect to the attempted

270 Or.App. 209

use of a child in a display of sexually explicit conduct count, defendant argued that, as a predicate matter, “permit” first requires an “authority to forbid.” Defendant further argued that, if the statute was construed in that manner, the evidence was insufficient to permit the jury to find that defendant's conduct constituted an attempt to “permit” M to engage in sexually-explicit conduct for a person to observe. The trial court rejected that argument, concluding that “permit” for purposes of ORS 163.670 means, among other things, to “make possible.” The trial court further reasoned that “asking someone to send you a picture to their phone is making it possible for it then to be displayed.” The trial court denied the motion for judgment of acquittal, and the jury convicted defendant on two counts of rape in the second degree, one count of sexual abuse in the first degree, and one count of attempted use of a child in a display of sexually explicit conduct.

On appeal, defendant challenges both (1) the trial court's denial of his motion for a judgment of acquittal as to the count of attempted use of a child in a display of sexually explicit conduct, and (2) the trial court's failure to exclude the deputy's testimony that he thought “the information [M] gave [him] was just the best of her knowledge at the time.”

II. STANDARDS OF REVIEW

We generally review the denial of a motion for a judgment of acquittal “by examining the evidence in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable inferences and...