State v. Parra-Sanchez

If a defendant uses a child to create a display of sexually explicit conduct, then, under ORS 163.670, there must be an objective examination of the characteristics from the perspective of the viewer of the display.

Defendant was convicted of multiple sex crimes involving his minor daughter, including four counts under ORS 163.670, which prohibits the use of a child in display of sexually explicit conduct, and one count of attempted display. The trial court denied Defendant’s motion for judgment of acquittal on the display counts. On appeal, Defendant argued that the trial court erred in that denial because the legislature did not intend for ORS 163.670 to apply to passive observation of someone undressing. The State responded that whenever a person purposely views a child’s genitals for sexual gratification, the person has “permitted” the child to engage in a display violating ORS 163.670. The Court considered whether the phrase “lewd exhibition of sexual or other intimate parts” in ORS 163.670 could be determined based solely on Defendant’s subjective intent. Ultimately, the Court determined that the State must show that the exhibition was objectively lewd, meaning that the “showing of a child’s sexual or other intimate parts is itself salacious or focused on sex.” After applying this definition, the Court concluded that the State did not meet its burden on the display counts and Defendant’s motion for a judgment of acquittal on those counts should have been granted. REVERSED.