State v. Clay

"The legislature did not intend ORS 163.670 to capture a person’s observation of his own sexual abuse of a child or observation of a child’s sexual or intimate parts while sexually abusing or preparing to sexually abuse the child." Rather, "the legislature intended to address conduct committed for the purpose of observation or visual recording."

Defendant appealed his conviction of two counts of Using a Child in a Display of Sexually Explicit Conduct.” On appeal, Defendant argued the trial court erred when it denied his motion for judgment of acquittal on those two counts. More specifically, Defendant argued that observing a child in the course of sexually abusing them is not a separate crime under ORS 163.670. "The legislature did not intend ORS 163.670 to capture a person’s observation of his own sexual abuse of a child or observation of a child’s sexual or intimate parts while sexually abusing or preparing to sexually abuse the child." Rather, "the legislature intended to address conduct committed for the purpose of observation or visual recording." The Court held that this “observation” is incidental to committing the crime of sexual abuse and it was not the legislature’s intent for this to be a separate crime of display. Reversed and remanded for the two display counts and affirmed other three sexual abuse convictions.