State v. Cannon

Summarized by:

  • Court: Oregon Court of Appeals
  • Area(s) of Law: Criminal Law
  • Date Filed: 09-13-2023
  • Case #: A176436
  • Judge(s)/Court Below: Shorr, P.J. for the Court; Mooney, J; Pagán, J.
  • Full Text Opinion

The determination of whether an image is “objectively lewd” “must be made through an examination of the characteristics of the exhibition as it would be perceived by a viewer of the display or recording, and not through an examination of the subjective intentions of the child, the intended viewer, or the person creating the display.” Parra-Sanchez, 324 Or. App. 712, 733 (2023).

 

Defendant appealed his convictions for encouraging child sexual abuse and bribe giving. The court only addressed two of the eleven assignments of error raised by defendant. Defendant assigned error to the trial court’s denial of his motion for judgment of acquittal. Two images of children at issue here were considered by prosecution to “depict sexually explicit conduct because they showed ‘lewd exhibitions of sexual or other intimate parts.” On appeal, defendant argued that both images did not meet the standard for “lewd exhibition of sexual or other intimate parts.” “The state must prove that the exhibition of a child’s sexual or intimate parts was objectively lewd, not simply that defendant found it to be sexually gratifying.” Parra-Sanchez, 324 Or. App. 712, 718 (2023). To be “objectively lewd” the “exhibition must be ‘itself salacious or focused on sex.” Id. at 721. The determination of whether an image is “objectively lewd” “must be made through an examination of the characteristics of the exhibition as it would be perceived by a viewer of the display or recording, and not through an examination of the subjective intentions of the child, the intended viewer, or the person creating the display.” Id. at 733. Applying six factors from United States v. Dost, the court found that as the children in the images are clothed, the image does not focus in on their genitalia, and the children are not posed in an unnatural way for their ages, the images do not show “objectively lewd” activity. As such, the court held that the trial court erred in denying defendant’s motion for judgment of acquittal. Reversed; remanded for resentencing; otherwise affirmed.

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