State v. Kirkpatrick

                                      62

   Submitted April 25, 2019; remanded for resentencing, otherwise affirmed
                               January 29, 2020


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
             MICHAEL ANDREW KIRKPATRICK,
                   Defendant-Appellant.
                Yamhill County Circuit Court
                   16CR17334; A165450
                                 

    Defendant appeals a judgment of conviction for two counts of encouraging
child sexual abuse in the first degree, ORS 163.684. Defendant argues that the
trial court erroneously concluded that he was subject to a presumptive sentence
under ORS 137.719 because his prior conviction for violating 

(a)(1) was “comparable” under ORS 137.719(3)(b)(B) to a conviction under
ORS 163.686. The state concedes the error. Held: Under State v. Carlton, 

, 

 (2017), a conviction for violating 

(a)(1) is
not comparable to a conviction under ORS 163.686. Accordingly, the trial court
erred by finding that defendant was subject to a presumptive sentence under
ORS 137.719.
   Remanded for resentencing; otherwise affirmed.



   Cynthia L. Easterday, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Ingrid A. MacFarlane, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
   DeVORE, J.
   Remanded for resentencing; otherwise affirmed.
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         DeVORE, J.
         Defendant appeals from a judgment of conviction
for encouraging child sexual abuse in the first degree. He
assigns error to the trial court’s determination at sentencing that he was subject to ORS 137.719, which provides a
presumptive sentence for repeat sex offenders. Defendant
disputes that one of two prior offenses qualifies as a “comparable offense” under Oregon law. In particular, he argues
that the trial court erred in determining that his prior conviction under 

(a)(1) is “comparable” to a
felony sex crime conviction under ORS 137.719(3)(b)(B). The
state concedes that that argument is correct, and we agree.
Based on the conceded issue, we remand for resentencing
and otherwise affirm.
         We recount the facts in relation to the sentencing
issue presented. Defendant pleaded guilty to two of ten
counts of encouraging child sex abuse in the first degree.
ORS 163.684. In September 2014, defendant knowingly
duplicated visual recordings of sexually explicit conduct
involving a child. That offense is deemed a “sex crime” under
ORS 163A.005(5)(g). Conviction of a felony sex crime raises
the prospect of a presumptive sentence if a defendant has
been sentenced for two prior felony sex crimes. Under ORS
137.719:
       “(1) The presumptive sentence for a sex crime that
   is a felony is life imprisonment without the possibility of
   release or parole if the defendant has been sentenced for
   sex crimes that are felonies at least two times prior to the
   current sentence.
       “(2) The court may impose a sentence other than the
   presumptive sentence provided by subsection (1) of this section if the court imposes a departure sentence authorized
   by the rules of the Oregon Criminal Justice Commission
   based upon findings of substantial and compelling reasons.
      “(3)   For purposes of this section:
       “(a) Sentences for two or more convictions that are
   imposed in the same sentencing proceeding are considered
   to be one sentence; and
      “(b)   A prior sentence includes:
64                                        State v. Kirkpatrick

        “…
        “(B) Sentences imposed by any other state or federal
     court for comparable offenses.”
During sentencing, the state argued that defendant was subject to the statute’s presumptive life sentence as the result
of separate state and federal convictions in 1998 involving a
Wyoming offense and a federal offense.
        In 1998, defendant, then 34 years old, befriended a
14-year-old girl through an internet chat room. Defendant
flew to Wyoming, took the girl to a motel, and had sexual
contact and intercourse. Defendant was arrested, and child
pornography was found on his laptop computer. In December
1998, defendant was convicted of three offenses under
Wyoming law, and, in June 1999, he was convicted of three
offenses under federal law. He served his state and federal
sentences concurrently at the Wyoming State Prison.
         In the current case, the state relied on two of defendant’s prior offenses as predicate sex crimes under ORS
137.719: (1) sexual assault in the third degree under 

 (sexual contact in the motel room);
and (2) transporting child pornography in interstate commerce under 

(a)(1) (bringing his laptop
from Oregon to Wyoming). The trial court determined that
those two offenses were comparable to Oregon sex crimes
and, consequently, concluded that defendant was subject to
ORS 137.719. Rather than impose the presumptive life sentence, however, the trial court downwardly departed so as
to impose a 60-month sentence for each of the two recent
offenses. The sentences are to be served consecutively. The
court downwardly departed because defendant had been
conviction-free since 1998 and because his two prior convictions were for conduct discovered at the same time.
         On appeal, defendant argues that the trial court
erred in concluding that a conviction under 

(a)(1) is comparable to ORS 163.686, an Oregon felony
sex offense. Defendant concedes that the Wyoming offense is
comparable to an Oregon felony sex crime (i.e., third-degree
rape, ORS 163.355), but he argues that, because the federal offense is not a “comparable offense,” defendant lacks
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two predicate sex crimes, such that ORS 137.719 should be
determined to be inapplicable1.
         We review a trial court’s conclusion that defendant’s
prior offenses are “comparable” to a qualifying Oregon sex
offense for errors of law. State v. Carlton, 

, 

 (2017). Likewise, we review for errors of law any
questions of statutory interpretation. Mayfly Group, Inc. v.
Ruiz, 

, 

, rev den, 

,
(2011).
          The state concedes that the federal offense is not
comparable to the Oregon felony sex crime asserted below
because ORS 163.686 requires proof of an element that 

(a)(1) does not. We agree and accept the
state’s concession. In relevant part, 

(a)(1) provides a criminal penalty for:
        “(a) Any person who—
       “(1) knowingly transports or ships using any means or
    facility of interstate or foreign commerce or in or affecting
    interstate or foreign commerce by any means including by
    computer or mails, any visual depiction, if—
       “(A) the producing of such visual depiction involves
    the use of a minor engaging in sexually explicit conduct;
    and
        “(B) such visual depiction is of such conduct[.]”
In relevant part, ORS 163.686 provides:
       “(1) A person commits the crime of encouraging child
    sexual abuse in the second degree if the person:
        “(a)(A)(i) Knowingly possesses or controls, or knowingly accesses with the intent to view, a visual recording of
    sexually explicit conduct involving a child for the purpose
    of arousing or satisfying the sexual desires of the person or
    another person; [and]

    1
      Defendant argues that, even if the federal offense is comparable, ORS
137.719 should not be construed to treat two convictions from separate courts as
two predicate crimes when they allegedly arise out of the same criminal episode
and result in one so-called “unitary sentence.” By “unitary sentence,” we assume
defendant refers to the sentences for separate state and federal convictions being
served concurrently. In light of our conclusion that the federal offense is not comparable, we do not reach defendant’s alternative argument.
66                                          State v. Kirkpatrick

        “…
        “(B) Knows or is aware of and consciously disregards
     the fact that creation of the visual recording of sexually
     explicit conduct involved child abuse.”
Unlike the federal offense, ORS 163.686 requires proof
that a person possesses with intent to view for the purpose
of arousing or satisfying the sexual desires of the person
or another person. The lack of that element in the federal
offense and presence of that element in the Oregon offense
requires our agreement that the federal offense is not a
“comparable offense” for purposes of ORS 137.719.
         In Carlton, the Supreme Court reviewed the standard with which to determine whether other convictions
were “comparable offenses” under ORS 137.719(3)(b)(B).

. The court interpreted the phrase “comparable
offenses” narrowly. 

. The court explained that an
offense in another jurisdiction is only considered comparable to an Oregon felony sex crime if the two have “elements
that are the same … or nearly the same.” 

. It is not
enough that offenses “merely share a core similarity.” 

 The
court held that a California statute proscribing sexual contact with a minor was not comparable to an Oregon statute
because the Oregon statute was narrower, requiring proof
of an additional element. 

. The court determined
that 

(a) and ORS 163.427(1)(a)(A)
both proscribed touching a child with a sexual intent, but
only the Oregon statute required touching a sexual or other
intimate part of a person. 

 Because the Oregon offense
was narrower, due to an added element, the offenses were
not comparable. Id. at 45.
        The Carlton standard requires the same result here.
The added element of ORS 163.686 prevents recognition of

(a)(1) as a comparable offense. On the
record presented, ORS 137.719(3)(b)(B) was inapplicable.
Accordingly, we remand for resentencing.
           Remanded for resentencing; otherwise affirmed.