State v. Maynard

• Decision Date: 24 January 1996
• Citation: 910 P.2d 1115,138 Or.App. 647
• Parties: STATE of Oregon, Respondent, v. John Howard MAYNARD, Appellant. 10-92-06551; CA A81182. *
• Court: Oregon Court of Appeals

Page 1115

910 P.2d 1115

138 Or.App. 647

STATE of Oregon, Respondent, v. John Howard MAYNARD, Appellant.

10-92-06551; CA A81182.

Court of Appeals of Oregon In Banc ^*.

Argued and Submitted Nov. 21, 1994.

Resubmitted In Banc March 8, 1995.

Decided Jan. 24, 1996.

Appeal from Circuit Court, Lane County; F. Gordon Cottrell, Judge.

Robert Cole Tozer, Eugene, argued the cause and filed the brief for appellant.

Kaye E. Sunderland, Assistant Attorney General, argued the cause for respondent. With her on the brief was Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

LEESON, Judge.

Defendant was convicted of three counts of furnishing obscene materials to minors, ORS 167.065(1)(a), and three counts of endangering the welfare of minors, ORS 163.575(1)(a). The indictment stated, in part, that defendant violated ORS 167.065(1)(a) by unlawfully and knowingly furnishing to three minor children

"a picture, photograph, or other visual representation or image depicting sexual intercourse, a male touching a female vagina with his mouth, a female touching a male penis with her mouth, or an erect male penis, knowing or having good reason to know the character of the material furnished * * *."

Defendant demurred to the indictment, contending that the statute is an unconstitutional restriction on free expression under Article I, section 8, of the Oregon Constitution, and the First Amendment to the United States Constitution. ¹ The trial court denied his demurrer and he was convicted following a stipulated facts trial.

On appeal, defendant challenges only his convictions on the counts involving the furnishing of obscene materials to minors. He contends that this case is controlled by State v. Frink, 60 Or.App. 209, 653 P.2d 553 (1982), and State v. House, 66 Or.App. 953, 676 P.2d 892, mod. 68 Or.App. 360, 681 P.2d 173 (1984), aff'd on other grounds 299 Or. 78, 698 P.2d 951 (1985), in which, he maintains, we held that ORS 167.065(1)(a) was unconstitutionally overbroad. The state responds that our decision in Frink addressed only the statutory prohibition against furnishing materials depicting nudity to minors and left intact the remaining prohibitions in ORS 167.065(1)(a). It maintains that defendant's reliance on House is misplaced, because in that case we did not consider whether a proscription against furnishing similar materials to minors should be upheld as "an historical exception" to the constitutional guarantee in Article I, section 8.

ORS 167.065 provides, in part:

"(1) A person commits the crime of furnishing obscene materials to minors if, knowing or having good reason to know the character of the material furnished, the person furnishes to a minor:

"(a) Any picture, photograph, drawing, sculpture, motion picture, film or other visual representation or image of a person or portion of the human body that depicts nudity, sadomasochistic abuse, sexual conduct or sexual excitement[.]"

ORS 167.060 defines the terms used in the statute:

"(3) 'Furnishes' means to sell, give, rent, loan or otherwise provide.

" * * * * *

"(5) 'Nudity' means uncovered, or less than opaquely covered, post-pubertal human genitals, pubic areas, the post-pubertal human female breast below a point immediately above the top of the areola, or the covered human male genitals in a discernibly turgid state. For purposes of this definition, a female breast is considered uncovered if the nipple only or the nipple and areola only are covered.

" * * * * *

"(9) 'Sadomasochistic abuse' means flagellation or torture by or upon a person who is nude or clad in undergarments or in revealing or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.

"(10) 'Sexual conduct' means human masturbation, sexual intercourse, or any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.

"(11) 'Sexual excitement' means the condition of human male or female genitals or the breasts of the female when in a state of sexual stimulation, or the sensual experiences of humans engaging in or witnessing sexual conduct or nudity."

The threshold issue in this case is the effect of Frink and House on ORS 167.065(1)(a). The state contends that we should sever the unconstitutional portion of the statute and consider independently the remaining provisions. Defendant responds that that would amount to an impermissible attempt to use a "narrowing" construction of the statute. We agree with the state.

In Frink, we held that the "mere depiction of nudity may not be prohibited, because it impinges on the constitutionally protected right of free expression[,]" and that the statute's prohibition on furnishing all materials depicting nudity to minors, regardless of the context in which the nudity was presented, swept too broadly. 60 Or.App. at 212-13, 653 P.2d 553. (Footnote omitted.) We limited our holding to that portion of the statute dealing with furnishing materials depicting nudity to minors. Id. at 212 n. 4, 653 P.2d 553.

In House, the defendant appealed his conviction for engaging in sexual conduct in a live public show. ORS 167.060(10); ORS 167.062. We noted that the sweep of the statute would include ballets, operas, musicals and dramas that may contain scenes in which a performer may touch the buttocks, breasts or genitals of another performer " 'in an act of apparent sexual stimulation or gratification.' " House, 66 Or.App. at 958, 676 P.2d 892. We held that the following definition of "sexual conduct" in ORS 167.062 and 167.060(10) was overbroad and violated Article I, section 8:

" 'any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals' * * * 'in an act of apparent sexual stimulation or gratification[.]" Id. at 957, 676 P.2d 892.

On reconsideration, we held that the terms "human masturbation" and "sexual intercourse" were severable. House, 68 Or.App. at 365, 681 P.2d 173.

ORS 174.040 provides that if any part of a statute is held unconstitutional, the remaining parts shall remain in force unless the statute provides otherwise, the remaining parts would not have been enacted without the unconstitutional part, or the remaining parts are "incomplete and incapable of being executed in accordance with the legislative intent." None of those conditions is present in ORS 167.065(1)(a). Our severing of the word "nudity" from the statute in Frink does not prevent us from considering independently the remaining provisions. Our declaration in House that part of the definition of "sexual conduct" in ORS 167.060(10) is unconstitutionally overbroad left intact the terms "human masturbation" and "sexual intercourse" as definitions of the term "sexual conduct."

At the time defendant was indicted, ORS 167.065(1)(a) prohibited furnishing to a minor material that "depicts sadomasochistic abuse, sexual conduct or sexual excitement." Following House, sexual conduct is defined in ORS 167.060(10) as "human masturbation" or "sexual intercourse." The narrow question in this case is whether the prohibitions against furnishing materials to minors that depict sexual conduct or sexual excitement violates Article I, section 8. ²

Under the established framework for analyzing an Article I, section 8, challenge that we followed in State v. Stoneman, 132 Or.App. 137, 139-40, 888 P.2d 39 (1994), rev. allowed 321 Or. 94, 893 P.2d 540 (1995), the first step is to determine whether the prohibited activity involves speech or expression. Moser v. Frohnmayer, 315 Or. 372, 375, 845 P.2d 1284 (1993). The depictions of sexually explicit materials described in ORS 167.065(1)(a) are expression encompassed by Article I, section 8. State v. Henry, 302 Or. 510, 515, 732 P.2d 9 (1987) (Article I, section 8, "covers any expression of opinion, including verbal and nonverbal expressions contained in films, pictures, paintings, sculpture and the like.").

The next step is to determine if the law is directed at the content of an opinion or communication, or if it is directed at forbidden effects. Stoneman, 132 Or.App. at 140, 888 P.2d 39. A content-based restriction on speech violates Article I, section 8, unless

"it is 'wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach.' " Moser, 315 Or. at 376, 845 P.2d 1284 (quoting State v. Robertson, 293 Or. 402, 412, 649 P.2d 569 (1982)).

A statute that restricts speech may be valid "if 'the focus of the enactment, as written, is on an identifiable actual effect or harm that may be proscribed, rather than on the communication itself.' " Moser, 315 Or. at 379, 845 P.2d 1284. Such a law must "specify expressly or by clear inference what serious and imminent effects it is designed to prevent." Oregon State Police Assn. v. State of Oregon, 308 Or. 531, 541, 783 P.2d 7 (1989), cert. den. 498 U.S. 810, 111 S.Ct. 44, 112 L.Ed.2d 20 (1990) (Linde, J., concurring). A law that focuses on harmful effects may take the form of expressly prohibiting expression used to achieve those effects. Such a law

" 'must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such "overbreadth." ' " State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992), cert den 508 US 974, 113 SCt 2967, 125 LEd2d 666 (1993) (quoting Robertson, 293 Or. at 418, 649 P.2d 569).

Alternatively, a law may focus on harmful effects without referring to expression at all. Such a law is scrutinized for vagueness or...