513
Submitted April 11; convictions on Counts 3, 4, 5, and 6 reversed, award of
$1,500 in restitution to the Victim’s Emergency Fund of the Washington County
District Attorney’s Office reversed, remanded for resentencing, otherwise
affirmed May 11, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSE LUIS TORRES,
Defendant-Appellant.
Washington County Circuit Court
19CR59408; A174357
511 P3d 85
Erik M. Buchér, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David O. Ferry, 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 Powers, Presiding Judge, and Lagesen, Chief Judge,
and Hellman, Judge.
PER CURIAM
Convictions on Counts 3, 4, 5, and 6 reversed; award of
$1,500 in restitution to the Victim’s Emergency Fund of the
Washington County District Attorney’s Office reversed;
remanded for resentencing; otherwise affirmed.
514 State v. Torres
PER CURIAM
Defendant appeals a judgment of conviction for one
count of first-degree sexual abuse (Count 1 and Count 2,
merged), ORS 163.427, and four counts of using a child in a
sexually explicit display (Counts 3, 4, 5, and 6), ORS 163.670.
He raises 11 assignments of error. For the reasons that
follow, we reverse the convictions on Counts 3 through 6,
reverse the restitution award to the Washington County
District Attorney’s Office Victim’s Emergency Fund, and
remand for resentencing but otherwise affirm.
In his first four assignments of error, defendant
assigns error to the denial of his motion for judgment of
acquittal on Counts 3 through 6. Those counts were based on
defendant’s conduct of placing hidden cameras in the bedroom of the 14-year-old daughter of his girlfriend and secretly
using them to film her while she was nude. Defendant contends that, under State v. Cazee, 308 Or App 748,
482 P3d
140 (2021), to prove that defendant violated ORS 163.670,
the state was required to prove that defendant permitted
the victim to engage in sexually explicit conduct for him to
record and that it is not enough that he made sexually explicit
films of her without her knowledge. He argues further
that, in this case, the record contains no evidence to support a finding that he permitted the victim to engage in the
conduct that he secretly filmed and that, consequently, he is
entitled to a judgment of acquittal on Counts 3 through 6.
The state concedes that, under Cazee, the evidence
in this record is insufficient to establish the connection
between defendant’s conduct and the sexually explicit conduct of the victim needed to render defendant criminally
liable under ORS 163.670. Cazee, 308 Or App at 762-64. We
agree with the state’s concession in light of Cazee. We therefore reverse defendant’s convictions on Counts 3 through 6.
This obviates the need to address defendant’s seventh
through tenth assignments of error, which challenge the
sentences imposed on Counts 3 through 6.
In his fifth assignment of error, defendant assigns
error to the trial court’s denial of his motion to exclude evidence that law enforcement was unable to access one of his
cell phones, a Samsung. He asserts, as he did below, that
Cite as 319 Or App 513 (2022) 515
the evidence implicitly and impermissibly commented on his
constitutional right to refuse to consent to a search of the
phone and, alternatively, that the court abused its discretion
under OEC 403 in admitting it. He also makes an unpreserved argument that the admission of the evidence violated
his due process rights. The state responds that we should
reject the due process argument as unpreserved and otherwise conclude that the trial court did not err. Alternatively,
the state argues that any error likely did not affect the jury’s
guilty verdicts on Counts 1 and 2 and is therefore harmless
as to defendant’s remaining convictions. As we explain, we
agree with the state that any error was harmless and reject
defendant’s fifth assignment of error for that reason.
“Erroneously admitted evidence is harmless if it
had little likelihood of affecting the jury’s verdict.” State v.
Reineke, 297 Or App 84, 93,
441 P3d 637, rev den,
365 Or 533
(2019). To evaluate whether the erroneous admission of evidence is harmless, “we consider any differences between the
quality of the erroneously admitted evidence and other evidence admitted on the same issue to assess whether the jury
would have found the evidence to be duplicative, cumulative,
or unhelpful in its deliberations.” State v. Chandler,
278 Or
App 537, 541,
377 P3d 605, rev den,
360 Or 568 (2016) (internal quotation marks omitted). In this instance, our conclusion that defendant is entitled to a judgment of acquittal on
Counts 3 through 6 eliminates the need to assess whether
the admission of the evidence was harmful as to the convictions on those counts. That leaves the question of whether
the evidence likely affected the conviction for sexual abuse
on Count 1—the result of merged guilty verdicts on Counts
1 and 2.
With respect to that count, defendant contends that
the evidence that law enforcement was not able to access
the content of his Samsung phone could have affected the
jury’s assessment of whether he acted with a sexual purpose in touching the victim. In support of that argument,
defendant notes that “to prove that defendant had such a
purpose in this case, the state relied heavily on an inference
drawn from his sexual interest in children, which itself was
evidenced only by the allegation that he had intentionally
516 State v. Torres
collected and viewed naked images of L.” (Emphasis in
original.)
We are not persuaded. On this record, it is unlikely
that the evidence in question affected the jury’s assessment
of whether defendant had a sexual purpose when he touched
the victim in the manner charged in Counts 1 and 2. For
one, the evidence does not speak to that issue on its face,
and the jury was not presented with a theory that connected
the evidence to the issue. More significantly, other evidence
addressed the issue more directly, namely, the evidence of
the touching itself, as well as evidence that defendant had
nude videos of the victim. The victim’s mother testified that
she saw videos of the victim, nude, on defendant’s phone.
And the victim testified that defendant put his hand under
the victim’s clothing, including her bra and leggings, and
rubbed her from below her belly button to “pretty close
under [her] breasts.” Given that more direct evidence of
defendant’s sexual purpose, it is not likely that the evidence
about the Samsung phone affected the jury’s determination
that defendant touched the victim with a sexual purpose on
Counts 1 and 2. As to those counts, any error in admitting
the evidence was harmless.
In his sixth assignment of error, defendant contends
that his 75-month sentence on Count 1 is unconstitutionally
disproportionate under Article I, section 16, of the Oregon
Constitution. That contention is unpreserved and, in view of
our cases rejecting similar challenges under similar circumstances, does not demonstrate error, plain or otherwise. See,
e.g., State v. Camacho-Garcia, 268 Or App 75,
341 P3d 888
(2014), rev den,
357 Or 164 (2015) (rejecting Article I, section
16, proportionality challenge to 75-month sentence for first-degree sexual abuse).
In his remaining assignment of error, defendant
contends that the trial court erred in awarding $1,500 in restitution to the Victim’s Emergency Fund of the Washington
County District Attorney’s Office. Defendant points out that
the Victim’s Emergency Fund is not the same thing as the
state Crime Injuries Compensation Account under ORS
147.225, which is, by definition, a “victim” for purposes of
the restitution statute, ORS 137.103. See ORS 137.103(4)(c)
Cite as 319 Or App 513 (2022) 517
(defining state Crime Injuries Compensation Account to
be a victim). Defendant also argues that the state failed to
demonstrate that the Victim’s Emergency Fund qualified as
a “victim” under any of the other provisions of ORS 137.103.
In response, the state concedes that the trial court erred in
determining that the Victim’s Emergency Fund falls within
any of the statutory definitions of a victim and, accordingly,
erred in awarding restitution to the fund. That concession is
well taken. We therefore reverse the award of restitution to
the Victim’s Emergency Fund.
Convictions on Counts 3, 4, 5, and 6 reversed; award
of $1,500 in restitution to the Victim’s Emergency Fund of
the Washington County District Attorney’s Office reversed;
remanded for resentencing; otherwise affirmed.
