State v. Bates

                                       732

   Submitted November 21, 2017; conviction for first-degree ECSA reversed,
       remanded for resentencing, otherwise affirmed June 17, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                        MATTHEW BATES,
                        Defendant-Appellant.
                   Deschutes County Circuit Court
                        15CR24683; A160761
                                   

    In this criminal case, defendant appeals his convictions for first-degree
encouraging child sexual abuse (ECSA) and endangering the welfare of a minor.
He argues that the trial court erred in failing to enter a judgment of acquittal
on each of those charges. Held: Because the child did not participate or engage
in the sexually explicit conduct depicted in the video at issue, the video was not
“a visual recording of sexually explicit conduct involving a child” for purposes of
ORS 163.684. Accordingly, the trial court erred in failing to enter a judgment of
acquittal on the first-degree ECSA count.
    Conviction for first-degree ECSA reversed; remanded for resentencing;
otherwise affirmed.



    Alta Jean Brady, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erik Blumenthal, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Mooney, Judge.
    POWERS, J.
   Conviction for first-degree ECSA reversed; remanded for
resentencing; otherwise affirmed.
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           POWERS, J.
        In this criminal case, defendant appeals his convictions for first-degree encouraging child sexual abuse
(ECSA), ORS 163.684, and endangering the welfare of
a minor, ORS 163.575(2). He argues that the trial court
erred in failing to enter a judgment of acquittal on each of
those charges.1 We reject his challenge to the conviction for
endangering the welfare of a minor without discussion. As
explained below, we also conclude that the trial court erred
in denying defendant’s motion on the ECSA count, because
the visual recording at issue is not “a visual recording of sexually explicit conduct involving a child” within the meaning
of ORS 163.684(1)(a)(A). Accordingly, we reverse defendant’s
ECSA conviction, remand for resentencing, and otherwise
affirm.
         On review of the denial of a motion for judgment of
acquittal, we view the facts in the light most favorable to
the state and evaluate whether a rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. State v. Cunningham, 

, 

 (1994), cert den, 

 (1995). To the extent that
the parties’ dispute regarding the motion for judgment of
acquittal “centers on the meaning of the statute defining the
offense, the issue is one of statutory construction,” which is a
matter of law that we review for legal error. State v. James,

, 

 (2014) (internal quotation
marks omitted).
         Defendant, his wife, and his approximately one- and-one-half-year-old child went to a truck stop and rented
a bathroom, including a shower room. The shower room
included a shower stall with a bench along one wall of the
stall, a curtain separating the shower stall from the rest
    1
      Although defendant did not move for a judgment of acquittal, his legal
argument to the court during closing argument in a bench trial adequately presented and preserved the same issue. See State v. Gonzalez-Valenzuela, 

, 454 n 1, 

 (2015) (“We agree with the long-standing case law from
the Court of Appeals that, under the circumstances [(where the defendant was
tried to the court and made an argument about the legal sufficiency of the evidence in closing argument)], defendant’s closing argument was the equivalent of
a motion for judgment of acquittal and, therefore, preserved the issue that defendant presents.”). Accordingly, we proceed as though he moved for a judgment of
acquittal.
734                                                             State v. Bates

of the room, and a sink next to the stall. While his wife
and child were in the shower with the curtain closed, defendant lay naked on the floor outside the curtain, and made
a two-and-one-half minute video of himself engaging in
sexually explicit conduct with a dildo. The camera was on
or near the floor and faced toward defendant’s back, with
his feet in the foreground. The shower curtain was visible
in the background, beyond defendant’s head. At two points
during the video, the shower curtain opens for a few seconds and the child is visible, apparently sitting on the bench
in the shower stall. When the curtain opens for the second
time, defendant hands the dildo to his wife. She hands it
back to him a few seconds later, and defendant closes the
curtain.
         Defendant uploaded the video to YouTube, and he
was charged with ECSA after sending a link to the video to
an online acquaintance. During a trial to the court, defendant argued that the video was not one of “sexually explicit
conduct involving a child,” as necessary to convict him of
ECSA under ORS 163.684, which is set out below, 304 Or
App at 735-36. The court disagreed, reasoning that it was
sufficient that the video shows that the child was exposed—
albeit briefly—to defendant’s sexually explicit conduct.
         On appeal, defendant renews his argument that the
video at issue is not “a visual recording of sexually explicit
conduct involving a child” within the meaning of ORS
163.684(1)(a)(A). He contends that “involving a child,” as it
appears in that phrase, means “that the child was engaged
in the conduct or in some way became a participant, even an
unwitting one.” See Webster’s Third New Int’l Dictionary at
1191 (unabridged ed 2002) (“to involve” can mean “to draw
in as a participant : ENGAGE, EMPLOY”). The state responds
that, because the word “involve” is capable of a wide variety
of meanings, “a visual recording of sexually explicit conduct
involving a child” covers, “at a minimum, all recordings in
which a child has any association whatsoever with the sexually explicit conduct depicted in that recording.”2
     2
       The state points out that “to involve” can mean “to have within or as part of
itself : CONTAIN, INCLUDE.” Webster’s at 1191. However, the state does not explain,
and we do not perceive, any material way in which that definition differs from the
one that defendant proposes.
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         The parties’ dispute thus presents a question of
statutory interpretation. To resolve it, we apply our familiar statutory-interpretation framework set out in State v.
Gaines, 

, 

 (2009). With the
goal of discerning the intention of the legislature, we begin
by examining the statute’s text, context, and any pertinent legislative history. 

. If the legislature’s intent
remains ambiguous after that analysis, we may resort to
maxims of statutory construction to help resolve the uncertainty. 

 As explained below, we conclude that the statutory text, considered in context, is ambiguous. The legislative history, however, fully resolves the textual ambiguity.
        As noted above, defendant was convicted of encouraging child sexual abuse in the first degree, ORS 163.684.3
That statute provides:
       “(1) A person commits the crime of encouraging child
    sexual abuse in the first degree if the person:
        “(a)(A) Knowingly develops, duplicates, publishes, prints,
    disseminates, exchanges, displays, finances, attempts to
    finance or sells a visual recording of sexually explicit conduct involving a child or knowingly possesses, accesses or
    views such a visual recording with the intent to develop,
    duplicate, publish, print, disseminate, exchange, display or
    sell it; or
       “(B) Knowingly brings into this state, or causes to be
    brought or sent into this state, for sale or distribution, a
    visual recording of sexually explicit conduct involving a
    child; and

    The state also notes that “to involve” can mean “to oblige to become associated (as in an unpleasant situation) : EMBROIL, ENTANGLE, IMPLICATE.” 

 That
definition, however, is inapposite here as a matter of grammar. In that meaning,
the subject “involves” someone in something. The state suggests that a defendant
involves a child in sexually explicit conduct by obliging the child to become associated with the sexually explicit conduct. However, in ORS 161.684, the phrase
“involving a child” uses the present participle to modify “sexually explicit conduct.” To use that meaning of “involve,” then, we would have to understand the
text to say that the sexually explicit conduct “oblige[s a child] to become associated” with an unspecified something else. That meaning does not fit the text.
Consequently, we conclude that the legislature did not intend that meaning for
“involve.” See Brock v. State Farm Mutual Auto. Ins. Co., 

, 

 (2004) (“[W]e do not construe statutes in a manner that is grammatically
untenable.”).
    3
      Defendant was convicted under ORS 163.684(1)(a)(A) for “disseminat[ing]”
the video recording at issue.
736                                                            State v. Bates

       “(b) Knows or is aware of and consciously disregards
    the fact that the creation of the visual recording of sexually
    explicit conduct involved child abuse.
        “(2) Encouraging child sexual abuse in the first degree
    is a Class B felony.” 4
         That provision is one of a group of statutory provisions that, taken together, prohibit all stages of the
production, distribution, possession, and accessing of child
pornography. See ORS 163.665 - 165.693. The legislature
has graded those crimes by the severity of the person’s conduct and accompanying culpable mental state. See State v.
Porter, 

, 

, rev den, 

 (2011) (summarizing the content and gradation of the
statutory framework).
          The most serious of the child pornography crimes
is ORS 163.670, which establishes the offense of using a
child in a display of sexually explicit conduct. Cf. State v.
Stoneman, 

, 

 (1996) (“ORS
163.670 (1987) described the basic and most serious kind of
harm covered by this part of the criminal code and set out
the theme that is common to a variety of subsidiary offenses
that are described in the remainder of that part: the state’s
determination to deter the harm that arises from participation of children in sexually explicit conduct for the purpose of
visual recording.” (Footnote omitted.)). That statute makes
it a Class A felony when a person “employs, authorizes, permits, compels or induces a child to participate or engage
in sexually explicit conduct for any person to observe or to
record in a visual recording.” Simply stated, ORS 163.670
prohibits “the actual creation of child pornography or the
use of a child in a sexual display for a live audience.” Porter,

.
    4
      For purposes of all of the child pornography crimes, including ORS 163.684,
“sexually explicit conduct” is defined as
    “actual or simulated: [s]exual intercourse or deviant sexual intercourse;
    [g]enital-genital, oral-genital, anal-genital or oral-anal contact, whether
    between persons of the same or opposite sex or between humans and animals; [p]enetration of the vagina or rectum by any object other than as part
    of a medical diagnosis or treatment or as part of a personal hygiene practice;
    [m]asturbation; [s]adistic or masochistic abuse; or [l]ewd exhibition of sexual
    or other intimate parts.”
ORS 163.665(3) (formatting modified).
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         Thus, the text of ORS 163.670 expressly requires
that the child must participate or engage in sexually explicit
conduct. ORS 163.670(1) (prohibiting employing, authorizing, permitting, compelling, or inducing “a child to participate or engage in sexually explicit conduct” for certain
purposes). First-degree ECSA, ORS 163.684, describes its
prohibition differently; that statute prohibits taking a variety of actions with respect to “a visual recording of sexually
explicit conduct involving a child.” ORS 163.684(1)(a)(A).

         The state argues that we should infer from that textual difference—on the one hand, a prohibition on causing
or permitting “a child to participate or engage in sexually
explicit conduct,” ORS 163.670(1), and, on the other hand,
a prohibition on taking certain actions with respect to “a
visual recording of sexually explicit conduct involving a
child,” ORS 163.684(1)(a)(A)—that the legislature intended
the two provisions to cover different conduct by the child. In
the state’s view, that textual difference “suggests that the
legislature intended involvement to mean something less
than participation.” See, e.g., Baker v. Croslin, 

, 

 (2016) (explaining that, as a general rule,
alternative terms do not mean the same thing unless there
is evidence to the contrary). We agree with the state’s assertion that that is a plausible understanding of the textual
differences between the statutes, but do not agree that that
plausible understanding is necessarily determinative. See
State v. Lane, 

, 

 (2015) (explaining that the fact that the legislature has used different
terms “does not, by itself, require the terms to have different
meanings”; rather, “[s]uch ‘rules’ of interpretation are mere
assumptions that always give way to more direct evidence of
legislative intent”).

         It is equally plausible that the legislature chose
different phrases to describe the same conduct because of
other differences between the two statutes. The relevant
text of ORS 163.670 is not describing the content of a visual
recording; it is directly describing the child’s action. ORS
163.670(1) prohibits employing, authorizing, permitting,
compelling, or inducing “a child to participate or engage
in sexually explicit conduct for any person to observe or to
738                                             State v. Bates

record in a visual recording.” By contrast, ORS 163.684 prohibits taking a variety of actions whose object is “a visual
recording of sexually explicit conduct involving a child.”
That text is describing the characteristics of the prohibited
object, a visual recording; it does not directly describe the
child’s action. That difference in the structure of the statutes suggests that the legislature could have chosen different phrases in the two statutes not to signify that the
child’s relationship to the sexually explicit conduct had to
be different, but, rather, because the statutes are describing different things—in one, the child’s actions, in the other,
the nature of the visual recording. See Wittemyer v. City of
Portland, 

, 

 (2017) (recognizing that the presumption that different terms have different
meanings may be rebutted by evidence that the legislature
intended the contrary).
         Before turning to the legislative history, we note
another contextual consideration based on the structure of
the statutory framework. If, as the state argues, the two
phrases have different meanings, then there are some
“visual recording[s] of sexually explicit conduct involving a
child” whose actual creation is not prohibited by the child
pornography statutes. As set out above, ORS 163.684 prohibits developing, duplicating, publishing, printing, disseminating, exchanging, displaying, and financing “a visual
recording of sexually explicit conduct involving a child.”
Second- and third-degree ECSA, ORS 163.686 and ORS
163.687, prohibit possessing, controlling, and accessing such
a visual recording. ORS 163.670 provides a counterpart to
those statutes that prohibits “the actual creation of child
pornography.” Porter, 

. If “a visual recording of sexually explicit conduct involving a child” includes
more visual recordings than only those that depict a child
“participat[ing] or engag[ing] in sexually explicit conduct,”
then the statutory framework does not prohibit the actual
creation of some of the visual recordings that are prohibited. In this particular statutory framework, it is not likely
that that is what the legislature intended. See 

 (“It
is unfathomable that the legislature would have chosen to
insulate from prosecution the people who are instrumental in the production of live or recorded displays of sexually
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explicit conduct by children, while criminalizing the distribution and viewing of such conduct.”).

         With those observations in mind, we turn to the legislative history. In 1995, the legislature enacted a bill establishing the three offenses of first-, second-, and third-degree
ECSA in response to our opinion in State v. Stoneman, 

, 

 (1994), rev’d, 

, 

 (1996).5 Or Laws 1995, ch 768; see Tape Recording,
House Committee on Judiciary, Subcommittee on Family
Justice, HB 2692, Feb 23, 1995, Tape 28, Side A (statement
of legislative counsel Virginia Vanderbilt). The goal was to
demonstrate that the statutory prohibition on child pornography was focused on the harm of sexual exploitation of
children, not merely on expression. Tape Recording, House
Committee on Judiciary, Subcommittee on Family Justice,
HB 2692, Feb 23, 1995, Tape 28, Side A (statement of legislative counsel Virginia Vanderbilt).

         To advance that goal, the 1995 bill reformulated
then-existing prohibitions on child pornography to focus on
the underlying harm to children. It reused the text “a visual
recording of sexually explicit conduct involving a child” from
the provisions that it was replacing. Compare former ORS
163.680(2) (1991), repealed by Or Laws 1995, ch 768, § 16 (“It
is unlawful for any person to pay, exchange or give anything
of value to obtain or view a photograph, motion picture,
videotape or other visual recording of sexually explicit conduct involving a child.”) with Or Laws 1995, ch 768, § 2(1) (a
person commits first-degree ECSA when the person knowingly takes certain actions with respect to “any photograph,
motion picture, videotape or other visual recording of sexually explicit conduct involving a child”).

    5
      In Stoneman, we considered the constitutionality of the 1987 version ORS
163.680, which prohibited paying or giving anything of value “to obtain or view
a photograph, motion picture, videotape or other visual reproduction of sexually
explicit conduct by a child under 18 years of age.” Former ORS 163.680 (1987),
repealed by Or Laws 1995, ch 768, § 16; Stoneman, 

 n 1. We
concluded that the statute violated Article I, section 8, of the Oregon Constitution
because it focused on the content of the materials rather than focusing on harmful effects. Stoneman, 

. The Supreme Court eventually disagreed and reversed, Stoneman, 

, but the legislature acted before the
Supreme Court issued its decision.
740                                                                State v. Bates

         That text originally was enacted in House Bill (HB)
2681 (1991), in which the legislature revised the child pornography statutes and also prohibited possession—as opposed
to creation, distribution, or purchase, which were already
prohibited—of child pornography for the first time. Or Laws
1991, ch 664, § 2. In that bill, the legislature replaced the
existing descriptions of prohibited visual recordings—which
varied slightly but were similar to a recording that “depicts
a child under 18 years of age in an act of sexually explicit
conduct”—with the uniform phrase “sexually explicit conduct involving a child.”6
         Because it is important to the remainder of our
analysis, we pause here to review the parties’ textual arguments with respect to that key phrase added by HB 2681:
Defendant contends that “to involve” means “to draw in as
a participant : ENGAGE, EMPLOY,” Webster’s at 1191, and,
consequently, that “a visual recording of sexually explicit
conduct involving a child” means a visual recording in
which “the child was engaged in the conduct or in some way
became a participant, even an unwitting one.” Thus, under
defendant’s view, the textual change in 1991 that replaced
a variety of phrasings, including “depicts a child under 18
years of age in an act of sexually explicit conduct,” with the
uniform phrase “sexually explicit conduct involving a child,”
did not change the scope of the statutes; rather, the legislature intended a meaning for “involving a child” that is synonymous with the pre-1991 phrasings.
        The state asserts that “to involve” has a broad
range of meanings and that, as a result, the phrase “a visual
recording of sexually explicit conduct involving a child”
means “at a minimum, all recordings in which a child has
any association whatsoever with the sexually explicit conduct depicted in that recording.” The state argues that the
     6
       See Or Laws 1991, ch 664, § 6 (replacing “any photograph or other visual
recording that depicts a child under 18 years of age in an act of sexually explicit
conduct” with “any photograph, motion picture, videotape or other visual recording
of sexually explicit conduct involving a child”); id. at § 7 (same); id. at § 10 (replacing “depicts a child under 18 years of age engaged in sexually explicit conduct”
with “depicting sexually explicit conduct involving a child”); id. at § 11 (replacing
“[a]ll visual or printed matter that depicts a child under 18 years of age engaged
in sexually explicit conduct” with “[a]ny photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child”).
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textual change in 1991 broadened the scope of the statutes,
so that, rather than prohibiting only depictions of a child “in
an act of sexually explicit conduct,” the statutes prohibited
a much broader category of materials, including any visual
recording of sexually explicit conduct in which the child has
any association whatsoever with the conduct.
          The legislative history unambiguously supports
defendant’s view: By replacing the clause “depicts a child
… in an act of sexually explicit conduct” with the clause
“sexually explicit conduct involving a child,” the legislature
did not intend to change the scope of the statutes. Warren
Deras, the drafter of HB 2681, presented the House and
Senate committees that considered the bill with a summary
of the bill entitled “House Bill 2681, Prohibit Possession of
Child Pornography, Bill Objectives and Outline.” Exhibit D,
House Committee on Judiciary, Subcommittee on Family
Justice, HB 2681, Mar 8, 1991; see also Exhibit H,
Senate Committee on Judiciary, HB 2681, May 29, 1991.
The summary explained, “[t]he primary purpose of the bill
is to criminalize possession of child pornography. Existing
law prohibits pornographic display of a child, production
and distribution of child pornography, and purchase of child
pornography.” Exhibit D at 1. With respect to the textual
changes noted above, the summary explained,
      “It was noted in preparing the bill that language is not
   used consistently in the existing statutes. Rather than create an unintended inference that different meanings were
   intended, the language in the statutes is brought into a
   common mold.
       “The subject of the restrictions in the law is variously
   stated as ‘a photograph or other visual recording,’ ‘a photograph, motion picture, videotape or other visual reproduction, and ‘visual or printed matter.’ There are also references to depictions of a child ‘in an act’ or ‘engaged in.’
   This bill revises these various statutes to consistently use
   the phrase ‘photograph, motion picture, videotape or other
   visual recording depicting sexually explicit conduct involving a child.”
Id. at 2-3. That summary demonstrates that the change of
phrasing was intended only to make the statutory text uniform, not to expand its scope.
742                                               State v. Bates

          Consistently with that understanding, the proponents of HB 2681 who testified before the House and
Senate committees that considered the bill had a uniform
and clearly stated understanding that (1) the statutory
framework already prohibited the creation, production, distribution, and purchase of a consistently defined group of
materials, which they referred to as child pornography, and
(2) the effect of the bill would be to fill a gap in the framework
by prohibiting possession of the same materials. As noted
above, Deras explained that “[e]xisting law prohibits pornographic display of a child, production and distribution of
child pornography” and the “primary purpose of the bill is to
criminalize possession of child pornography.” Exhibit D at 1;
see also Tape Recording, House Committee on Judiciary,
Subcommittee on Family Justice, HB 2681, March 8, 1991,
Tape 50, Side A (statement of Warren Deras) (explaining the
operation of the then-current statutory framework and that,
after enactment of the proposed bill, the statutory framework “still imposes a significantly harsher penalty on those
who are directly involved at the commercial level in the production and distribution of [child pornography]”).
          Another proponent, Assistant United States Attorney
Jeffrey Kent, provided the committees with a letter that
explained that one of the numerous advantages of “a law
criminalizing the very possession of child pornography” would
be that “[i]t attacks a vital link in the distribution chain—
the possessor, who creates the demand for such material.”
Exhibit C, House Committee on Judiciary, Subcommittee
on Family Justice, HB 2681, March 8, 1991 (testimony of
Jeffrey J. Kent) (incorporating “Concerned Citizen” letter,
at 2); see also, e.g., Exhibit B, House Committee on Judiciary,
Subcommittee on Family Justice, HB 2681, March 8, 1991
(testimony of “chief Senate sponsor of HB 2681,” Sen Larry
Hill) (“[The bill] can benefit from years of judicial and legislative experience in defining child pornography. The definitions of child pornography are already on the books and,
thankfully, we do not have to worry over whether or not this
law will accidentally cover baby pictures. HB 2681 draws on
existing definitions of child pornography ….” (Underscoring
in original.)). HB 2681 was intended to fill a gap in the
existing statutory framework, which already defined child
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pornography and prohibited its creation, distribution, and
purchase, but not possession. HB 2681 added a prohibition
on possession, and it was not intended to expand the statutory framework to include a broader array of materials than
it had previously covered.
         Finally, the proponents of the bill did not leave
unstated what they meant by “child pornography.” Rather,
they explained that, when they discussed “child pornography,” they were referring to depictions of children participating or engaging in sexually explicit conduct. Kent testified
about the constitutionality of prohibiting possession of child
pornography and noted that the United States Supreme
Court had recently upheld a similar statute in Osborne v.
Ohio, 

, 

, 

 (1990).
Attached to his written testimony was a law review article
that he had co-authored, arguing that states should criminalize possession of child pornography. Exhibit C, House
Committee on Judiciary, Subcommittee on Family Justice,
HB 2681, March 8, 1991 (testimony of Jeffrey J. Kent)
(incorporating Jeffrey J. Kent & Scott D. Truesdell, Spare
the Child: The Constitutionality of Criminalizing Possession
of Child Pornography, 68 Or L Rev 363 (1989)). The article expressly defined “child pornography” as “ ‘works that
visually depict sexual conduct by children below a specified
age.’ [New York v. ]Ferber, 458 US [747, 764, 

,

 (1982)].” Kent & Truesdell, 68 Or L Rev at
365 n 8 (emphasis omitted).
         Another witness was equally clear that the subject
of the statutes was children engaging in sexually explicit
conduct. Paul Groza, United States Postal Inspector,
Portland Division Child Pornography Specialist, presented
written testimony that explained:
   “I believe what we need to make clear is what we are stating is child pornography. We are not talking about all types
   of photographs or films of children. What we are talking
   about is only that type of photograph or film that is produced with the intent that it depict the child engaged in
   sexually explicit conduct.”
Exhibit G, House Committee on Judiciary, Subcommittee on
Family Justice, HB 2681, March 8, 1991, 6 (testimony of Paul
744                                             State v. Bates

Groza). Likewise, Dean Renfrow, Criminal Investigation
Division Director of the Oregon State Police, testified that
“[f]or every picture of a child engaging in sexually explicit
conduct, there is at least one child that has been victimized and exploited. It makes no difference where the child
is from or where the picture was taken.” Exhibit F, House
Committee on Judiciary, Subcommittee on Family Justice,
HB 2681, March 8, 1991, 2-3 (testimony of Dean L. Renfrow).
         In sum, the legislative history demonstrates that,
by replacing the phrases “depicts a child under 18 years of
age in an act of sexually explicit conduct” and “a child under
18 years of age engaged in sexually explicit conduct” with
the uniform phrase “sexually explicit conduct involving a
child,” the legislature did not intend to broaden the scope of
the statutory framework. Rather, the legislature intended
the text “a visual recording of sexually explicit conduct
involving a child” to mean a visual recording in which a
child engages or participates in sexually explicit conduct.
         The state does not argue, and we have found no indication, that the legislature intended the same text to have a
different meaning when it was reenacted in 1995 as part of
ORS 163.684. Thus, we conclude that “a visual recording of
sexually explicit conduct involving a child” refers to a visual
recording in which a child participates or engages in sexually explicit conduct.
         That understanding of the text of ORS 163.684
also resolves the potential inconsistency between the scope
of that statute and the scope of ORS 163.670. The crime of
causing or permitting “a child to participate or engage in
sexually explicit conduct for any person … to record in a
visual recording” in ORS 163.670(1) prohibits the creation of
the same materials of which ORS 163.684 prohibits development, duplication, publication, printing, dissemination,
exchange, display, finance, and sale.
         With that understanding, we turn to whether the
video at issue here is “a visual recording of sexually explicit
conduct involving a child.” ORS 163.684(1)(a)(A). We addressed
a similar question in State v. Richardson, 

,

, rev den, 

 (2014). In that case, the
defendant was convicted of two counts of using a child in a
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display of sexually explicit conduct, ORS 163.670, and one
count of first-degree ECSA, ORS 163.684, based on two photographs that he had taken. Id. at 97. In describing the contents of the two photographs, we observed:
   “Exhibit 1 was taken from defendant’s point of view and
   shows a woman either about to engage in, or having recently
   engaged in, oral-genital contact with defendant. The child,
   fully clothed, is standing to the left of the woman, looking at defendant’s visibly exposed penis. The woman is
   unclothed, facing defendant, and pushing the child away
   with her arm. Defendant and the woman are not touching
   each other.
       “Exhibit 3 was also taken from defendant’s vantage
   point. The same woman, again unclothed, is engaging in
   oral-genital contact with defendant. The same child who
   appears in Exhibit 1 is fully clothed, standing to the left
   of the woman near her elbow, and looking at the sex act.
   One of the child’s hands is touching defendant’s naked leg
   and the other appears to be reaching towards defendant.
   The child is wearing different clothes and appears to be
   younger than in Exhibit 1.”
Id. at 98-99 (footnote omitted).
        We first considered whether Exhibit 3 showed “the
child participating or engaging in the sexually explicit conduct that is pictured.” Id. at 101 (internal quotation marks
and brackets omitted). The defendant argued that the photograph did not show “the sort of active engagement that
ORS 163.670 requires.” Id. at 102 (internal quotation marks
omitted).
         We agreed with the defendant’s argument that
“mere proximity to, or observation of, sexually explicit conduct is not sufficient to prove that a child is participating
or engaging in that conduct.” Id. Importantly, however, “a
viewer of Exhibit 3 could reasonably infer that the photograph shows more than mere proximity and observation.”
Id. We explained that, in Exhibit 3, it was significant that
“the child is touching one of the persons who is unequivocally engaged in sexual conduct.” Id. We noted that touching
one of the participants might satisfy the requirement that
the child participate or engage in the sexually explicit conduct. Id.
746                                                            State v. Bates

         To the extent that touching a participant, alone,
is not enough in some circumstances, we explained that
whether a child is participating or engaged in sexually
explicit conduct may depend, in part, on the intentions of
others. Id. That is, a child who is not directly participating
or engaged in sexually explicit conduct but who is touching
adults who are directly engaged in sexually explicit conduct
can nevertheless fall within the meaning of the statute if the
presence of the child can be inferred to further one or more
of the participants’ sexual purpose.7 Id. at 103. Applying
that standard, we concluded that (1) the child was touching
one of the participants and (2) the circumstances allowed
an inference that the defendant had included the child in
the photograph for a sexual purpose. Id. Thus, the child was
engaged or participating in the sexually explicit conduct as
required by ORS 163.670. Id. Turning to Exhibit 1, we concluded that the same analysis applied, and, thus, affirmed
the defendant’s convictions on both counts of using a child in
a display of sexually explicit conduct. Id. at 103-04.
         Then we turned to the defendant’s challenge to his
conviction under ORS 163.684. Id. at 104. We agreed with
the defendant’s argument “that conduct ‘involving’ the child
is more or less synonymous with conduct in which the child
participated or was engaged to participate in,” id., and, consequently, reached the same conclusion that we had regarding ORS 163.170. Id.
         Thus, Richardson establishes that, under both ORS
163.170 and ORS 163.684, the child need not be a direct participant in the sexually explicit conduct; that is, the child

     7
       In the course of our discussion, we explained our understanding that a
person may participate or engage in conduct without “actively exercise[ing] his or
her volition to participate; a person can become a participant by virtue of another
participant’s actions.” Richardson, 

. We continued, “[f]or example, if a bank robber hijacks an unwitting motorist and demands to be taken to
an address, the motorist can be seen as a participant—albeit an innocent one—in
the crime; it could be said that the robber ‘engaged’ the motorist in the robbery.”

     Although we agree with that general principle, we pause to clarify that the
ultimate question regarding the child’s actions under the statute is whether
the child “participate[d] or engage[d] in sexually explicit conduct,” not whether
the defendant engaged the child in the conduct. See 

 at 97 n 1 (quoting ORS
163.670(1) (2009)).
Cite as 

 (2020)                                              747

need not be personally engaged in one of the enumerated acts
set out in ORS 163.665(3). In this case, the state argues that
we should understand Richardson also to hold that touching
or physical proximity to the people actually engaged in the
sexually explicit conduct is unnecessary; rather, the state
contends, Richardson establishes that a child participates
or engages in sexually explicit conduct any time a factfinder
could infer that the child was included in a visual recording
for a sexual purpose and the visual recording also depicts
sexually explicit conduct.
         We disagree. In Richardson, our discussion of the
defendant’s sexual purpose is not separate from our consideration of the fact that, in each of the photographs at issue
there, the child was touching one of the participants in the
sexually explicit conduct.8
         Moreover, that interpretation would be inconsistent with the legislative intent for the statutory framework
discussed above. As we have explained, the legislature
intended “a visual recording of sexually explicit conduct
involving a child” to be synonymous with a visual recording
that “depicts a child … in an act of sexually explicit conduct.” In other words, even if the child is not directly and
personally doing one of the enumerated activities that constitute sexually explicit conduct, the child must nevertheless have some direct part in the sexual act.
          In Richardson, the child took part in the act by
touching the defendant, in one photograph, and the woman,
in the other, while the adults were engaging in sexually
explicit conduct. 

. The factfinder could
infer that the child was a participant—not merely an uninvolved bystander or observer—because, in addition to the
fact that the child was touching the participants, the totality of the circumstances allowed an inference that the defendant had intended the child’s presence to further his sexual
purpose. 

    8
      To the extent that our discussion in Richardson could be understood to
suggest that it is sufficient that the factfinder could infer the child is in the
visual recording for a sexual purpose, any such suggestion was dicta, because
the photographs at issue showed the child touching the defendant and the
woman. As stated in the text above, however, that is not how we understand the
opinion.
748                                             State v. Bates

         By contrast, in this case, the child had no part at
all in the act; she was engaged in a different, unrelated, and
nonsexual activity—taking a shower with her mother—and
was physically removed from defendant while he engaged
in sexually explicit conduct. Even if, as the state contends,
a factfinder could infer that defendant intended the child’s
presence to further his sexual purpose, that inference,
alone, does not show that the child participated or engaged
in the sexually explicit conduct. Because the child did not
participate or engage in the sexually explicit conduct, the
video was not “a visual recording of sexually explicit conduct
involving a child” for purposes of ORS 163.684. Accordingly,
the trial court erred in failing to enter a judgment of acquittal on the first-degree ECSA count.
         Conviction for first-degree ECSA reversed; remanded
for resentencing; otherwise affirmed.