State v. Richardson

A photograph depicting a fully-clothed child touching a person's leg who is engaged in sexual activity with a naked woman constitutes first-degree encouraging child sexual abuse under ORS 163.684. Additionally, a photograph that depicts a fully-clothed child standing near two people who are in a sexual situation constitutes using a child a in a display of sexually explicit conduct under ORS 163.670.

Defendant was convicted of two counts of using a child in a display of sexually explicit conduct under ORS, 163.670, and one count of first-degree encouraging child sexual abuse under ORS 163.684. All convictions were based on two exhibits; Exhibit One, a photograph that depicted a fully clothed child standing near Defendant and a woman, both nude, engaged in highly sexualized situation, and Exhibit Three, a photograph in which Defendant and a nude woman are engaged in sexual activity and the fully clothed child is standing near the woman's side and his hand is touching Defendant's leg. Defendant contends that both images were not sufficient evidence to convict Defendant under ORS 163.670 or 163.684. Defendant argued that Counts one and two should be dismissed because Defendant did not "employ, authorize, permit, compel or induce" the child to "participate or engage in sexually explicit conduct for any person to record" under ORS 163.670. Further, Defendant claims there is no evidence the child engaged in sexual activity to support a conviction under ORS 163.684. The Court finds the element "permit" under ORS 163.670, is satisfied if there is evidence Defendant allowed the child to engage or participate in sexually explicit conduct. It is undisputed Defendant allowed the conduct depicted in the photographs, therefore, permitted the act. Additionally, the Court finds the element "engage" under ORS 163.670 requires something more than mere proximity or observation; in contrast, here, a child touching one of the persons engaged in sexual activity satisfies the "engage" element under the statute. Lastly, the Court found Defendant took the photographs, the child was "involved" in the photographs, and child abuse under ORS 163.665(2) is broadly defined as "conduct that constitutes, or would constitute if committed in this state, a crime in which the victim is a child." The Court finds a reasonable person could find the images "involved child abuse" under ORS 163.684. Affirmed.