State v. Smith

Under ORS 163.670(1), compelling or inducing a child to engage in sexually explicit conduct may be inferred by a factfinder from sexually explicit photographs in which a child’s facial expression conveys that the child has been persuaded or influenced to participate. A jury can infer from the nature of photographs, and the context of other evidence, that they are sexually explicit.

Albert Merrill Smith (Smith) was convicted of two counts of using a child in a display of sexually explicit conduct based on photographs of two girls. At trial, Smith moved for a judgment of acquittal, contending the state failed to prove he compelled a child to participate in sexually explicit conduct or displays of such conduct. Smith appealed the trial court’s denial of that motion, reprising his earlier arguments and advancing four assignments of error, arguing that evidence presented was sufficient to grant a judgment of acquittal. The Court held the trial court did not err in denying Smith’s motion. A factfinder could reasonably infer that, from photographs and other evidence submitted, Smith compelled a child to engage in sexually explicit conduct, and a jury could infer that the photographs were a lewd exhibition because Smith intended to stimulate sexual desire. Affirmed.