State v. Maynard

CourtCourt of Appeals of Oregon
Citation168 Or. App. 118,5 P.3d 1142
PartiesSTATE of Oregon, Respondent, v. John Howard MAYNARD, Appellant.
Decision Date31 May 2000

Robert Cole Tozer, Eugene, for appellant.

Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Kaye E. Sunderland, Assistant Attorney General, for respondent.


Resubmitted En Banc January 13, 2000.


In State v. Maynard, 138 Or.App. 647, 910 P.2d 1115 (1996), this court held that the prohibition of ORS 167.065(1)(a)1 against furnishing materials to minors that depict "sexual conduct" or "sexual excitement" violated Article I, section 8, of the Oregon Constitution.2 The Supreme Court has since vacated that decision and remanded the case for our reconsideration in light of its decision in State v. Stoneman, 323 Or. 536, 920 P.2d 535 (1996).3 For the reasons that follow, we hold that we erred in our former conclusion that ORS 167.065(1)(a) does not focus on preventing harmful effects that the legislature may constitutionally proscribe. Nevertheless, we adhere to our ultimate holding because the statute is unconstitutionally overbroad.4

We begin our analysis with consideration of the Supreme Court's decision in Stoneman. The defendant there was indicted for purchasing a magazine and a video containing visual reproductions of children engaged in sexually explicit conduct, in violation of ORS 163.680 (1987).5 The trial court sustained the defendant's demurrer to the charge and held that the statute violated Article I, section 8. This court affirmed on appeal,6 and the Supreme Court reversed on review.

The court first rejected the state's contention that it should modify its traditional approach by balancing the public interest in protecting children from harm against the burden on freedom of expression imposed by the statute:

"We reject the state's suggestion that we abandon the rule that the court traditionally has employed in resolving Article I, section 8, issues, in recognition of the particular importance of the legislative objective at issue here." 323 Or. at 542-43, 920 P.2d 535.

The court then began its analysis under Article I, section 8. See generally State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982)

; State v. Plowman, 314 Or. 157, 838 P.2d 558 (1992),

cert den 508 U.S. 974, 113 S.Ct. 2967, 125 L.Ed.2d 666 (1993). It held that the statute described and prohibited commerce in certain forms of communication. The court next concluded that the prohibition against purchasing visual reproductions of children engaged in sexually explicit conduct could not be justified as a historical exception to the prohibition of Article I, section 8, pursuant to Statutes of Oregon 1854, chapter XI, section 10, pp. 210-11.7 In its next step, the Supreme Court parted with our analysis in Stoneman, a departure with significant implications for this case. The court concluded that ORS 163.680 (1987) was concerned with harm to children. Stoneman, 323 Or. at 545,

920 P.2d 535. In doing so, the court said that "[t]he Court of Appeals' majority was wrong in holding to the contrary merely because the statute did not describe the communication, the commerce in which is forbidden, specifically in terms of harmful effects." Id.

Critical to the Supreme Court's decision was the view that the context of the statute, in addition to its text, informs an understanding of the policy underlying the statute. Id. at 546, 920 P.2d 535. Relying on the taxonomy established in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993), the court examined other statutory provisions relating to ORS 163.680, including a defense under which the purchase of an otherwise prohibited reproduction was legal "so long as that reproduction is not the product of an act of actual sexual abuse of a child." Stoneman, 323 at 547, 920 P.2d 535. The court then concluded that the subject statute, as well as the entire part of the criminal code in which it was located, "was aimed at preventing and punishing conduct— the subjection of [minors] to sexual exploitation for the purposes of visual recording." Id. at 548, 920 P.2d 535. Because the communication prohibited a "continuation and an integral part of the underlying harmful acts," the statute was not invalid on its face, given that the legislature is authorized to regulate commerce in communication derived from the sexual exploitation of children. Id. at 548-49, 920 P.2d 535.

Finally, the court upheld the statute against an overbreadth challenge, interpreting it as "narrowly tailored to reach only forbidden effects [i.e., commerce that is a direct fruit of child abuse] and [that it] did not extend to privileged expression." Id. at 550, 920 P.2d 535. With the foregoing in mind, we assess the impact of Stoneman on the constitutional challenge to ORS 167.065(1)(a).

Defendant in this case was convicted of furnishing obscene materials to minors. ORS 167.065(1)(a). In our earlier decision, we stated that the issue on appeal was whether the statutory prohibition against furnishing materials to minors that depict "sexual conduct"8 or "sexual excitement"9 violated Article I, section 8.10Maynard, 138 Or.App. at 652,910 P.2d 1115.

We next determined that materials depicting sexual conduct or sexual excitement are expression encompassed by Article I, section 8. That determination is consistent with Stoneman and other relevant Supreme Court decisions. See State v. Henry, 302 Or. 510, 515, 732 P.2d 9 (1987)


We next addressed whether the statute was directed at harmful effects resulting from the exposure of children to sexually explicit materials or, alternatively, whether it was directed to the content of an opinion or communication. Maynard, 138 Or.App. at 652-54, 910 P.2d 1115. We relied on our examination of the text of the statute and found that it neither expressly nor by clear implication identified the effects to be avoided. Therefore, we concluded that the statute was "directed solely at prohibiting certain communication with minors." Id. at 654, 910 P.2d 1115. We did not examine related statutory provisions for context in order to ascertain any effect forbidden by the statute. In light of Stoneman, our analysis was therefore incomplete. We now examine the context of the statute to determine whether it sufficiently identified the harmful effects it sought to prevent.

A statute's context includes related statutory provisions. PGE, 317 Or. at 611, 859 P.2d 1143. ORS 167.065(1) is part of a broader statutory framework that addresses the protection of children from exposure to obscene material. ORS 167.065 to ORS 167.085.11 That framework includes ORS 167.085, which creates affirmative defenses to alleged violations of ORS 167.065(1)(a). It provides:

"In any prosecution under ORS 167.065 to [ORS] 167.080, it is an affirmative defense for the defendant to prove:
"(1) That the defendant was in a parental or guardianship relationship with the minor;
"(2) That the defendant was a bona fide school, museum or public library, or was acting in the course of employment as an employee of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization;
"(3) That the defendant was charged with the sale, showing, exhibition or display of an item, those portions of which might otherwise be contraband forming merely an incidental part of an otherwise nonoffending whole, and serving some legitimate purpose therein other than titillation;
"(4) That the defendant had reasonable cause to believe that the person involved was not a minor."

ORS 167.085(1) and (2) exempt various categories of persons and organizations from the reach of ORS 167.065. Taking those exemptions into account, ORS 167.065 is directed exclusively at persons and organizations other than parents, guardians, schools, museums, libraries, and employees of the last three named organizations. The population of potential offenders is reduced further by two additional exemptions. First, the defendant may establish that he or she reasonably believed that the target of the material was not a minor. ORS 167.085(4). Second, and more germane to this case, it is a complete defense that the materials form merely an "incidental part of an otherwise nonoffending whole" and serve a purpose other than titillation. ORS 167.085(3).

The word "titillation" was not defined by the legislature in ORS 167.085 or any related statute. In analyzing the text of the statute for definition, words of common usage are given their plain, natural and ordinary meanings. PGE, 317 Or. at 611, 859 P.2d 1143. "Titillate" is defined in Webster's Third New Int'l Dictionary, 2400 (unabridged ed 1993) to mean "to excite pleasurably or agreeably: arouse by stimulation." In the context of ORS 167.065(1)(a), which refers to depictions of sexual conduct and sexual excitement, titillation logically refers to sexual excitement or arousal. Although the defense provided by ORS 167.085(3) does not expressly state that the person to be protected from titillation is the victim of the offense, that motive is obvious from the overall framework of ORS 167.065 to ORS 167.085. The victim of each offense in that group of statutes must be a minor. In light of that common theme, it would make no sense to shield a defendant from criminal liability merely because that defendant did not primarily intend to titillate him or herself by engaging in the prohibited conduct. Thus, the context of ORS 167.085(3) plainly shows that the defense applies to those materials not primarily intended to titillate the victim. We further note that ORS 167.085(3) looks to the purpose of the materials and does not ask whether that purpose was accomplished. Thus, if the defendant at...

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