State v. Tucker

Under ORS 137.225, the second public indecency (or similar) conviction, which amounts to a “sex crime” as defined in ORS 181.805, is ineligible to be set aside.

Defendant appealed the trial court decision not to set aside his felony convictions for public indecency, believing the court erred when it concluded that the conviction was for a sex crime and, therefore, was ineligible to be set aside. Defendant argued that, although his second conviction would technically amount to a “sex crime” based on his current conviction of public indecency, the “sex crime” conviction ceased to be a conviction once the court set aside Defendant’s first public-indecency conviction. The Court held that public indecency is a sex crime if Defendant “has a prior conviction” for public or private indecency or another sex crime at the time of the commission of the second event. Because Defendant’s conviction amounted to a sex crime, and because of his prior conviction at the time he committed his second crime, he was ineligible to have the “sex crime” conviction set aside and the trial court did not err in so concluding. Affirmed.