State v. Zamora

A defendant cannot be convicted of both sexual abuse and using a child in display of sexually explicit conduct "unless a reasonable juror could find that the defendant caused the child to participate...in sexually explicit conduct for the defendant to observe, as opposed to the observation being incidental to the...abuse." State v. Clay, 301 Or App 599, 605, 457 P3d 330 (2019).

Defendant appealed a judgment convicting him of five counts of first-degree sexual abuse and three counts of using a child in a display of sexually explicit conduct. Defendant assigned error to the trial court's finding that there was sufficient evidence to charge him with the latter three counts. Defendant argued that, because the acts of sexual observation were incidental to the abuse, they could not also be used to support a conviction on the display counts. A defendant cannot be convicted of both sexual abuse and using a child in display of sexually explicit conduct "unless a reasonable juror could find that the defendant caused the child to participate...in sexually explicit conduct for the defendant to observe, as opposed to the observation being incidental to the...abuse." State v. Clay, 301 Or App 599, 605, 457 P3d 330 (2019). The Court reasoned that, even though Defendant viewed the victim’s genitalia “while” sexually abusing her, a rational trier of fact could find that the defendant “caused the victim to engage in sexually explicit conduct ‘for’ [him] to observe her as a masturbatory stimulus.” The Court reasoned that it was possible for Defendant to both sexually abuse the victim as an end in itself and observe her as an end in itself. Thus, there was sufficient evidence to support the three counts of using a child in a display of sexually explicit conduct. AFFIRMED.