State v. Meyer

• Decision Date: 19 May 1993
• Citation: 120 Or.App. 319,852 P.2d 879
• Parties: STATE of Oregon, Respondent, v. Stephen R. MEYER, Appellant. CM 89-0177; CM 89-0179; CM 89-0180; CA A61964 (Control); CA A61965; CA A61966. *
• Court: Oregon Court of Appeals

Page 879

852 P.2d 879

120 Or.App. 319

STATE of Oregon, Respondent, v. Stephen R. MEYER, Appellant.

CM 89-0177; CM 89-0179; CM 89-0180; CA A61964 (Control);

CA A61965; CA A61966.

Court of Appeals of Oregon,

In Banc ^*.

Argued and Submitted Feb. 27, 1991.

Resubmitted In Banc May 5, 1993.

Decided May 19, 1993.

Ingrid A. MacFarlane, Deputy Public Defender, argued the cause, for appellant. With her on the brief was Sally L. Avera, Public Defender.

Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause, for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Ann Kelley, Asst. Atty. Gen., Salem.

ROSSMAN, Judge.

Defendant appeals his convictions for possession of a controlled substance, ORS 475.992(4)(b), dealing in depictions of a child's sexual conduct, ORS 163.673, and using a child in a display of sexually explicit conduct. ORS 163.670. He assigns error to the court's denial of his motion to suppress ¹ and to the overruling of his demurrer to the indictments charging violations of ORS 163.673 and ORS 163.670.

At 7:45 a.m., on January 27, 1989, Deputy Stephens, U.S. Marshall Barr and 4 other officers executed a warrant for the arrest of defendant for a federal narcotics violation. The officers considered it a high risk operation. Stephens knocked on the door of defendant's residence and yelled, "Police, arrest warrant." Barr tried the door knob and, finding it locked, kicked in the glass door. Deputy Eastham entered first, followed by Stephens and Barr. All of them were carrying weapons. Outside, two other officers guarded the other doors to the house. The officers found defendant and his wife in the doorway between their bedroom and the kitchen. Defendant was naked, and his wife wore only a robe. Eastham pointed his pistol at the couple and ordered them to lie on the floor. Both were then handcuffed with their hands behind their backs, facing the floor. Barr told defendant that he had a federal warrant for his arrest, but did not present it and did not give Miranda warnings to either defendant or his wife.

Stephens and Deputies Downing and Chilcote conducted a "security sweep" of the house, the attic crawlspace and outbuildings for weapons and other persons. Stephens saw some rifles on the closet wall in a spare room and seized them. At some point while defendant's wife was still on the floor, Barr shouted "Fuck you" at her, apparently in response to her question about her cat. Defendant and his wife answered questions about the location of other firearms. About 20 minutes after the initial entry and the discovery and seizure of numerous weapons, defendant was allowed to dress and was then taken to the police car.

Barr moved defendant's wife, still handcuffed, to the sofa and explained that he had no warrant for her arrest. Without advising her of her rights, he asked if there were any other weapons. She said that she thought that her husband had a gun in the car that was parked in front of the house and, when the officers asked whether they could search the car, she said, "Sure." ² Barr went to the squad car and told defendant that his wife had granted permission to "look through" the car for a weapon. Defendant told him that there was a .45 pistol under the front seat. Barr looked there but could not find it. He told that to defendant, who said that it was "there somewhere." Barr returned and conducted a more intensive search, during which he found 2 metal suitcases and a cloth satchel about the size of a briefcase. He opened the metal cases and found only camera equipment. He then opened the satchel and found a black plastic box, variously described as being 8 X 12 X 2 inches or 5 X 7 X 2 inches. Barr testified that, although the box did not look like a weapon container, he thought that it could have contained the gun, so he opened it. In it, he found proof sheets of photographs of a child under 18, a few of which revealed her genitals and anus. Those pictures formed the basis for 2 of defendant's convictions. Stephens and Eastham read defendant his Miranda rights as they drove him to the county jail; Chilcote, Downing and Barr remained with defendant's wife as defendant was driven away.

During the ensuing investigation, the photographed child's statement was taken, and a warrant was obtained for the search of defendant's residence for other pictures. When the officers executed the warrant, they did not find any other pictures but did find methamphetamine in the bedroom, the spare room and the garage shop. That evidence was the basis for defendant's unlawful possession conviction.

Defendant moved to suppress the fruits of the search of his car and all of the evidence seized pursuant to the search warrant that was based on that evidence, contending that it was "fruit of the poisonous tree." He also filed a demurrer, contending that ORS 163.673 and ORS 163.670, under which he was charged, are unconstitutionally vague and overbroad under Oregon Constitution, Article I, section 8, ³ violate Article I, sections 20 and 21, ⁴ by unlawfully delegating legislative power to the court and jury, and also violate his rights under the Due Process and Equal Protection Clauses of the federal constitution. ⁵ The trial court overruled the demurrer and denied the motion to suppress. If defendant's demurrer should have been sustained, the charges under ORS 163.673 and ORS 163.670 should have been dismissed. Accordingly, we consider that question first.

ORS 163.673 provides, in part:

"(1) A person commits the crime of dealing in depictions of a child's sexual conduct if the person knowingly:

"(a) Develops, duplicates, publishes, prints, disseminates, exchanges, displays, finances, attempts to finance, or sells any photographs or other visual recording that depicts a child under 18 years of age in an act of sexually explicit conduct."

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 under 18 years of age to participate or engage in sexually explicit conduct for any person to observe or to record in a photograph or other visual recording."

ORS 163.665 provided, ⁶ in part:

" 'Sexually explicit conduct' means actual or simulated * * * (6) Lewd exhibition of genitals or anus." (Emphasis supplied.)

We consider state constitutional questions before reaching federal questions. State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983). Defendant's primary argument is that the phrase "lewd exhibition" is unconstitutionally vague. Although the indictment charging defendant with violating ORS 163.670 does not allege what "sexually explicit conduct" he induced the child to engage in, the charges under ORS 163.673 do allege conduct: "lewd exhibition of the genitals and anus." Defendant demurred to both indictments, and the state has not distinguished between them in responding. Apparently, the state concedes that the "sexually explicit conduct" involved in both charges is the same and presents the same question concerning vagueness. Accordingly, we will treat them that way.

To withstand a vagueness challenge, the terms of a criminal statute "must be sufficiently explicit to inform those who are subject to it of [sic ] what conduct on their part will render them liable in penalties." State v. Graves, 299 Or. 189, 195, 700 P.2d 244 (1985); State v. Knobel, 97 Or.App. 559, 563, 777 P.2d 985, rev. den. 309 Or. 522, 789 P.2d 1387 (1989). Terms need not be defined so precisely that, in every instance, a person can predict that a specific act or course of conduct will fall within the statute's prohibitions. State v. Graves, supra, 299 Or. at 195, 700 P.2d 244; State v. Hendrix, 107 Or.App. 734, 741, 813 P.2d 1115 (1991). A person need only be able to have "a reasonable degree of common understanding" of what is forbidden by the statute. Cascade Fireworks v. State of Oregon, 86 Or.App. 355, 358, 738 P.2d 1013 (1987).

When reviewing an assertion of vagueness, it is this court's duty to construe the statute to salvage its constitutionality, if possible. State v. Cantwell, 66 Or.App. 848, 853, 676 P.2d 353, rev. den. 297 Or. 124, 681 P.2d 134 (1984). We start from the premise that, "in performing its law-making role, the legislature intends to act within constitutional bounds." State v. Cornell/Pinnell, 304 Or. 27, 31, 741 P.2d 501 (1987). Although "lewd" is not expressly defined in ORS 163.670 or ORS 163.673, it is a commonly used word that "has an unmistakable meaning which is very well and generally understood." ⁷ 53 CJS, "Lewdness," § 1; see also Dictionary of Criminology 127-28 (1965). Indeed, there is a large body of case law recognizing that the term "lewd," when used in a criminal statute to define an offense, connotes an unlawful indulgence in lust or an eagerness for sexual indulgence. People v. Babb, 103 Cal.App.2d 326, 330, 229 P.2d 843, 846 (1951); State v. Trombley, 3 Conn.Cir. 28, 206 A.2d 482, 484 (1964); State v. Jones, 2 Conn.Cir. 698, 205 A.2d 507, 509 (1964); Chesebrough v. State, 255 So.2d 675, 677-78 (Fla.1971); Buchanan v. State, 111 So.2d 51, 57 (Fla.1959); State v. Brenner, 132 N.J.L. 607, 609, 41 A.2d 532, 534 (1945). ⁸

Recourse to a dictionary also serves to inform a person of the meaning of "lewd." Although the various dictionary definitions may not be identical, they contain sufficient common elements that indicate with reasonable certainty the nature and character of the conduct forbidden by ORS 163.670 and ORS 163.673. ⁹ An examination of the definitions discloses that "lewd" refers to sexually motivated conduct; specifically, it imports the excitement of lust or sexual desire and signifies gross indecency in sexual behavior. See Webster's New World Dictionary 812 (2d College ed. 1986); Black's Law Dictionary 817 (5th ed. 1979); Webster's Third New International Dictionary 1301 (unabridged 1971...