State v. Parra-Sanchez

                                       712

 Argued and submitted on September 24, 2020, resubmitted en banc March 29,
  reargued and submitted August 3, 2022; convictions on Counts 1 through 5
   reversed, convictions on Counts 6 through 9 reversed and remanded with
   instruction to enter a judgment of conviction for one count of first-degree
  unlawful sexual penetration (Count 6) and one count of first-degree sexual
abuse (Count 7), remanded for resentencing, otherwise affirmed March 22, 2023


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   CESAR PARRA-SANCHEZ,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      18CR25111; A169096
                                  

    In this criminal appeal, defendant challenges his conviction for several
counts of using his daughter in a display of sexually explicit conduct, ORS
163.670. Defendant assigns error to the trial court’s denial of his motion for judgment of acquittal for those counts, contending that a “lewd exhibition,” as defined
in the relevant statute, requires more than mere passive observation of nudity.
Defendant also contends that several Court of Appeals cases related to the definition of “lewd exhibition” were wrongly decided because they foreclosed consideration of whether an exhibition was objectively lewd. Finally, defendant contends
the trial court plainly erred in failing to merge several sexual abuse counts.
Held: The Court of Appeals concluded that the previous construction of “lewd
exhibition” was inconsistent with the text, context, or the legislative history of
the child pornography laws. The court held that the legislature intended that
the term “lewd exhibition” be determined by reference to objective standards.
The court concluded that the evidence in this case did not support a conclusion
that a lewd exhibition occurred according to objective standards, and therefore
the trial court erred by denying the motion for judgment of acquittal. The court
further concluded that the trial court plainly erred by entering separate convictions on several counts that should have been merged. Aoyagi and Kamins, JJ.,
and James, J. pro tempore, wrote concurring opinions, and Powers, Mooney, and
Hellman, JJ., wrote dissenting opinions.
    Convictions on Counts 1 through 5 reversed; convictions on Counts 6 through 9
reversed and remanded with instruction to enter a judgment of conviction for one
count of first-degree unlawful sexual penetration (Count 6) and one count of first-degree sexual abuse (Count 7); remanded for resentencing; otherwise affirmed.



    En Banc
    Eric Butterfield, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, Office of Public Defense Services, argued the cause
Cite as 

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and filed the supplemental brief for appellant. Also on the
opening brief was Joshua B. Crowther, Chief Deputy Defender.
   Jonathan N. Schildt, Assistant Attorney General, argued
the cause for respondent. Also on the supplemental brief
were Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General. On the opening brief were Rolf
C. Moan, Assistant Attorney General, Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Lagesen, Chief Judge, Ortega, Egan, Tookey,
Shorr, Aoyagi, Powers, Mooney, Kamins, Pagán, Joyce, and
Hellman, Judges, and James, Judge pro tempore.
   PAGÁN, J.
    Convictions on Counts 1 through 5 reversed; convictions
on Counts 6 through 9 reversed and remanded with instruction to enter a judgment of conviction for one count of first-degree unlawful sexual penetration (Count 6) and one count
of first-degree sexual abuse (Count 7); remanded for resentencing; otherwise affirmed.
   Pagán, J., filed the opinion of the court in which Lagesen,
C. J., Ortega, Egan, Aoyagi, Kamins, JJ., and James, J. pro
tempore, joined.
    Aoyagi, J., concurred and filed an opinion in which Pagán,
J., joined.
  Kamins, J., concurred and filed an opinion in which
Lagesen, C. J., and Pagán, J., joined.
   James, J. pro tempore, concurred and filed an opinion.
    Powers, J., dissented and filed an opinion in which Shorr,
J., joined.
   Mooney, J., dissented and filed an opinion.
  Hellman, J., dissented and filed an opinion in which
Tookey and Joyce, JJ., joined.
714                                  State v. Parra-Sanchez

        PAGÁN, J.
         Defendant was convicted of multiple sex crimes
involving his minor daughter. Among those crimes were
four counts under ORS 163.670, Oregon’s prohibition on
the creation of pornography using children, using a child
in display of sexually explicit conduct (hereinafter “display”), and one count of attempted display (collectively, the
“display counts”). Those crimes were based on defendant’s
conduct of, depending on the circumstances, entering the
bathroom while his daughter was showering or her bedroom when she was not fully dressed, and observing her in
a state of full or partial undress. During trial, defendant
moved for a judgment of acquittal on the display counts. In
opposing that motion, the state, using our prior case law,
successfully argued that the trier of fact was required to
determine whether there was a “lewd exhibition of sexual
or other intimate parts” based solely on defendant’s subjective intent. We now consider whether, when properly construed, ORS 163.670 and the definitional statute attendant
to that statute, ORS 163.665, support that formulation. For
the reasons that follow, we conclude that the answer to that
question is no. In so doing, we disavow our prior case law
to the extent that it points to or otherwise might require
a different conclusion. We therefore reverse defendant’s
convictions on the display counts and remand for entry of
judgment of acquittal on those counts. We also reverse the
convictions on Counts 8 and 9, and remand for merger of
the guilty verdicts on those counts with Counts 6 and 7,
respectively.
                    I. BACKGROUND
         As this case is before us following the denial of
defendant’s motion for judgment of acquittal, we review the
entire record and draw all reasonable inferences in favor
of the judgment. State v. Waterhouse, 

, 

 (2016). Our job is to determine whether a rational
factfinder could have found each element of the crime to
have been proved beyond a reasonable doubt. State v. Reed,

, 

 (2005). We state the factual background adduced at trial in accordance with that
standard.
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         Defendant was convicted of a number of sexual
offenses against his minor daughter, M. The primary dispute on appeal concerns only five of those convictions: the
convictions for use, and attempted use, of a child in a display
of sexually explicit conduct, in violation of ORS 163.670. We
therefore limit our recitation of the facts to those relevant to
those convictions.
         While defendant and his family lived in various
apartments in Beaverton, defendant would walk into M’s
bedroom after she showered. M would typically take a
shower, then walk down the hall to her bedroom wearing
a towel, before getting dressed in her bedroom. Although
defendant did not come into M’s room every time she showered, he did once or twice a week. Defendant would wait a
few minutes after she went to her bedroom, and then would
open the door, without knocking, and enter. Usually, by the
time defendant entered, M had taken off the towel and was
“completely exposed.” M would “try to cover” herself but could
only cover the “front” “private, intimate parts” of her body.
She was generally unable to cover her buttocks. M would
sit down on the bed, covered with a towel, and would not
get dressed until after defendant left the room. Defendant
would often “pretend to fix things or whatever,” such as the
circuit breaker that was in M’s bedroom, while M sat on the
bed covered with a towel. On one occasion, M asked defendant to leave and he said “I can do whatever I want. I pay
the rent.”
         When defendant would walk into M’s bedroom, he
would first look directly at M, but later, as he looked around
the room, he would look at M’s reflection in the mirror on
the closet door. M could tell defendant was looking at specific body parts because she could see where his eyes were
directed. Defendant was able to observe M’s breasts, vaginal
area, and buttocks. On a different occasion, M was washing
her hair in the shower when defendant opened the shower
curtain partially and looked up and down M’s body at a distance of about two feet.
        Ultimately, M reported the conduct described
above, along with other conduct by defendant, to police. M
also reported that defendant had sexually abused her once
716                                             State v. Parra-Sanchez

by digitally penetrating her vagina. Defendant was charged
with multiple sex offenses, including four counts of using a
child in a display of sexually explicit conduct and one count
of attempted using a child in a display.1
          For the display counts, the state alleged that defendant, in violation of ORS 163.670, “did unlawfully and knowingly employ, authorize, permit, compel or induce [M], a
child, to participate in or engage in sexually explicit conduct
for a person to observe.” The state’s theory was that the “sexually explicit conduct” was the “lewd exhibition of sexual or
other intimate parts” under ORS 163.665(3)(f). At trial, after
the state presented its case-in-chief, defendant moved for
judgment of acquittal on each of the display counts. Citing
State v. Meyer, 

, 

 (1993), State
v. Evans, 

, 

 (2001), rev den, 

 (2002), and State v. Smith, 

, 

, rev den, 

 (2014), defendant argued that an
individual must take some affirmative action with respect
to the child to make an exhibit of the child’s sexual or intimate parts and that the conduct at issue did not amount to
a “lewd exhibition.” Quoting a dissent in Evans, defendant
contended that “[t]he proper focus under the statute is on
whether the manner in which the children’s genitals were
displayed would be considered lewd from the perspective
of the average person viewing the exhibition.” 

 (Armstrong, J., dissenting). The crux of defendant’s
argument was that the question of whether a person has
caused a child to engage in a “lewd exhibition” cannot be
answered by exclusively looking in the mind of the viewer.
In opposition, citing our case law, the state argued to the
trial court that, when considering whether the state had
proven a “lewd exhibition,” the trier of fact could only look
at a defendant’s subjective intent, and because the state had
evidence that this defendant was sexually aroused by the
child, it had met its burden.
        The trial court denied the motions for judgment of
acquittal without explanation. The court noted later, when
    1
      In addition, defendant was charged with one count of first-degree unlawful
sexual penetration, ORS 163.411 (Count 6); one count of first-degree sex abuse,
ORS 163.427 (Count 7); one count of second-degree sex abuse, ORS 163.425(1)(a)
(Count 8); and one count of third-degree sex abuse, ORS 163.415 (Count 9).
Cite as 

 (2023)                                     717

announcing its findings and ruling defendant guilty, that
although it was not clear to it that the terms of the statute encompassed defendant’s conduct, it viewed our cases as
extending the statute to reach defendant’s conduct:
       “The legal issue regarding Counts 1 [through] 5 was
   tricky for me. If I was left to read the statute myself, I don’t
   know that I would decide that it was applicable to [defendant’s] conduct.
      “But the Court of Appeals has made it clear that they
   read it differently than me. I’m following their lead.”
         On appeal, defendant assigns error to the trial
court’s denial of his motion for judgment of acquittal on the
display and attempted display counts, arguing that the legislature did not intend ORS 163.670 “to apply to the passive observation of a person undressing.” The state responds
that, under our case law, whenever a person views a child’s
genitals or other intimate sexual parts for the purpose of
sexual gratification, the person has “permitted” the child to
participate or engage in a display constituting a “lewd exhibition” in violation of ORS 163.670, regardless of the objective nature of that display.
         After this case was argued before a department
of this court and submitted for decision, we voted to take
the case en banc and invited the parties to submit supplemental briefs addressing specific questions and requested
that the parties re-argue the case to the full court. In that
briefing, defendant reiterates his argument that his conduct
does not fall within the statute and, in particular, asserts
that whether a child is engaged in a lewd exhibition must
be determined from an objective standpoint. Defendant suggests that our prior cases are wrong to the extent they suggest that a child in a state of undress is engaged in a lewd
exhibition whenever a person observes the child for the purpose of sexual gratification.
         The state, in its supplemental brief, now contends
that “what qualifies as a lewd exhibition will depend in part
on evidence of the objective qualities and circumstances of
the image or live depiction.” Although the state does not
explicitly reject its prior position that a lewd exhibition
is determined exclusively by the subjective intent of the
718                                   State v. Parra-Sanchez

defendant, we understand the state’s shift as a tacit admission that “lewd exhibition” must contain an objective component, contrary to our prior case law holding otherwise.
                     II. DISCUSSION
         To resolve whether defendant violated the display
statute, we must decide whether the sexual gratification of
the accused is alone sufficient to transform observation of a
nude child into a “lewd exhibition of sexual or other intimate
parts.” If it is, then the state presented sufficient evidence
to withstand defendant’s motion for judgment of acquittal
because there was evidence that defendant took action to
see a child in a state of undress and that he harbored sexual
desire for his daughter. But as the text, context, and legislative history reveal, the legislature did not intend such a
result. Rather, 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. Our
conclusion is guided not only by our principles of statutory
interpretation, but also the need to interpret our statutes
in a manner that passes constitutional muster. We further
conclude that because our jurisprudence on this issue is not
consistent with those principles, we disavow those cases
today. That leads us to the ultimate conclusion that, in this
case, the state did not meet its burden on the display counts,
and defendant’s motion for a judgment of acquittal on those
counts should have been granted.
         Before moving to the analysis, we address the dissent of Judge Powers that suggests that considering our
prior case law, and disavowing it, is unwarranted because
the opening brief did not raise that particular argument.
324 Or App at 775-76 (Powers, J., dissenting). The dissent’s
conclusion overlooks the events that led to our consideration
of this particular issue. As noted above, during trial, when
moving for a judgment of acquittal on the display counts,
counsel specifically argued the very point we reach today:
that our case law after Meyer incorrectly construed the display statute, and that defendant’s conduct was not intended
to be captured by those statutes. The opening brief did not
rely on that argument but did rely on the error that we address
today: the trial court’s denial of a motion for judgment of
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acquittal, rejecting the argument that defendant’s conduct
was not intended to be captured by the display statutes.
When the case was referred en banc, the problematic nature
of our case law became apparent, and we asked the parties
to weigh in on the statutory interpretation issue, providing
a second round of briefing and oral arguments. We thus conclude that the statutory interpretation issue was preserved,
and our duty to correctly interpret statutes, regardless of
the particular arguments raised by the parties, necessitates
the reconsideration of our jurisprudence. State v. Vallin, 

, 

, adh’d to as modified on recons,

, 

 (2019) (“At bottom, the issue here is
one of constitutional interpretation, and this court is dutybound to interpret the law correctly, without regard to the
parties’ arguments or lack thereof.”); Stull v. Hoke, 

, 

 (1997).
         Our goal in interpreting a statute is to discern
the intent of the legislature in enacting the statute. ORS
174.020(1)(a) (“In the construction of a statute, a court shall
pursue the intention of the legislature if possible.”). “[T]here
is no more persuasive evidence of the intent of the legislature than the words by which the legislature undertook to
give expression to its wishes.” State v. Gaines, 

, 

 (2009) (internal quotation marks omitted). We examine “the text of the statute in its context, along
with relevant legislative history, and, if necessary, canons of
construction.” State v. Cloutier, 

, 

(2011) (citing Gaines, 

). “In the absence of
any evidence to the contrary, we assume that the legislature
intended to give those words their ‘plain, natural, and ordinary meaning,’ ” relying on dictionaries that were in use at
the time the statute was enacted. State v. Ziska / Garza, 

, 

 (2014).
A.    Text and Context
           ORS 163.670(1) provides:
        “A person commits the crime of using a child in a display of sexually explicit conduct if the 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.”
720                                                State v. Parra-Sanchez

(Emphasis added.) As relevant here, “sexually explicit conduct” is defined as the “actual or simulated … lewd exhibition of sexual or other intimate parts.” ORS 163.665(3)(f).
Accordingly, we must determine the meaning of the phrase
“lewd exhibition.”
          “Lewd,” used as an adjective, carries two likely
meanings, both of which are pertinent to our discussion.
First, lewd can mean “sexually unchaste or licentious: dissolute, lascivious.” Webster’s Third New Int’l Dictionary 1301
(unabridged ed 2002). Second, lewd can mean “suggestive
of or tending to moral looseness: inciting to sensual desire
or imagination: indecent, obscene, salacious.” Id.; see also
Meyer, 

. Exhibition, in turn, can mean
“an act or instance of showing, evincing, or showing off,”
or, similarly, “a public show or showing.” Websters at 796.2
Thus, the natural meaning of the phrase “lewd exhibition”
is a showing of something lascivious or salacious.
         That understanding is consistent with the structure of ORS 163.665. ORS 163.665(3) defines “sexually
explicit conduct” to encompass six forms of conduct, including “lewd exhibition.” As is often the case when considering the possible meanings of one term in a list of many, the
meaning of the word or term in question can be clarified by
reference to the other words or terms in the same provision.
Daniel N. Gordon, PC v. Rosenblum, 

, 

 (2017) (explaining the textual canon of noscitur

    2
      All of our cases on “lewd exhibition” up to this point have involved overt
presentations or recordings, and they have not tested what is needed to qualify
as an “exhibition.” See State v. Cazee, 

, 

 (2021) (photographs); State v. Rockett, 

, 

 (2020), rev’d on other grounds,

, 

 (2021) (hidden cameras); State v. Bates, 

,

 (2020) (staging a recording); State v. Horseman, 

, 

 (2018), rev den, 

 (2019) (inducing a child to masturbate while
defendant watched); State v. Carey-Martin, 

, 

 (2018)
(defendant requested nude photos from minor); State v. Howe, 

,

 (2015) (photographs); State v. Hunt, 

, 

(2015) (defendant requested nude photograph from victim); State v. Richardson,

, 

, rev den, 

 (2014) (photographs); Smith,

 (photographs); Smith v. Franke, 

, 

(2014), rev den, 

 (2015) (photographs); State v. Cale, 

,

 (2014) (photographs); State v. Porter, 

, 

,
rev den, 

 (2011) (staging sexual acts while others observed); Evans, 

 (staging victim to undress while defendant watched); Meyer, 

 (photographs).
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a sociis). In so doing, we presume, absent contrary indications, that the legislature intends that terms contained in
a single provision share a theme or characteristic common
to all of the terms in the provision. King City Rehab, LLC v.
Clackamas County, 

, 

(2007). As ORS 163.665(3) contains no indications to the
contrary, that presumption suggests that “lewd exhibition”
should be interpreted to mean conduct comparable to “sexual intercourse,” “penetration,” “masturbation,” or “sadistic
or masochistic abuse.”3 Thus, the context confirms that the
legislature intended that the common meaning of “lewd” as
something overtly lascivious or salacious applies.4
          Taken together, and appropriately circumscribed
by the meanings common to other “sexually explicit conduct,” the term “lewd exhibition” would suggest to the ordinary reader that it means a display or showing of sexual or
other intimate parts that is itself salacious or focused on
sex. Thus, mere nudity can be encompassed in the definition of “lewd exhibition” when it can be said to be lascivious
or salacious—not simply nudity in the context of ordinary,
daily activities such as showering or dressing.
          Our textual analysis is also guided by the fact that
the statute at issue is a criminal statute. The legislature
has directed that a criminal statute “shall be construed
according to the fair import of its terms, to promote justice
and to effect the purposes stated in subsection (1) of this
section.” ORS 161.025(2). Particularly relevant here, among
the purposes identified in subsection (1), is “[t]o give fair
warning of the nature of the conduct declared to constitute
an offense and of the sentences authorized upon conviction.”
     3
       As we explain below, interpreting lewd exhibition in such a circumscribed
manner may be constitutionally required.
     4
       One further contextual clue about whether the legislature intended the
“lewd exhibition of sexual or other intimate parts” definition to be focused on an
objective or subjective determination exists in the definition of “sexual contact”
for general sexual offenses. At the time the legislature was considering amending
the child pornography statutes, the legislature had already included language
about a defendant’s subjective sexual desires in other definitional statutes about
sex crimes: “ ‘sexual contact’ means any touching of the sexual or other intimate
parts of a person or causing such person to touch the sexual or other intimate
parts of the actor for the purpose of arousing or gratifying the sexual desire of
either party.” ORS 163.305(6) (1983) (emphasis added). No such language was
included in ORS 163.665 or ORS 163.670.
722                                                  State v. Parra-Sanchez

ORS 161.025(1)(c). The requirement that ambiguous criminal statutes be construed in favor of providing a “fair warning of the conduct declared to constitute an offense” helps
to ensure that Oregon courts do not construe ambiguous
criminal statutes in a way that risks violating a defendant’s
right to due process. State v. Duggan, 

, 

 (1981). That principle too, supports a construction
of lewd exhibition that includes a display of something objectively salacious such that a person has fair warning as to
what conduct is prohibited.
B.    Legislative History
          Legislative history likewise supports the conclusion that “lewd exhibition” encompasses a display that is
lascivious in an objective sense. Oregon’s enactment came
during the broader national conversation addressing what
sorts of displays could be prohibited in view of the First
Amendment’s protections, as legislatures around the country, including the federal government, were actively seeking
to curb the sexual exploitation and abuse of children.
         Specifically, Oregon had initially enacted a statute
prohibiting the use of a child in an obscene sexual performance in 1979, largely incorporating the obscenity standard
set forth by the United States Supreme Court in Miller v.
California, 

, 

, 

(1973).5 See Or Laws 1979, ch 706, §§ 2-5. That standard
    5
       The applicable definitions included Oregon Laws 1979, chapter 706, section 3
(codified as former ORS 163.477, repealed by Or Laws 1985, ch 557, § 10), which
provided:
         “(1) Sexual conduct or a sexual performance is obscene if:
         “(a) It depicts or describes in a patently offensive manner sadomasochistic abuse or sexual conduct;
         “(b) The average person applying contemporary state standards would
    find the work, taken as a whole, appeals to the prurient interest in sex; and
         “(c) Taken as a whole, it lacks serious literary, artistic, political or scientific value.
         “(2) ‘Sexual conduct’ has the meaning given that term in subsection (10)
    of ORS 167.060.”
ORS 167.060(10) defined “sexual conduct” as
    “human masturbation, sexual intercourse, or any touching of the genitals, pubic
    areas or buttocks of the human male or female, or the breasts of the female,
    whether alone or between members of the same or opposite sex or between
    humans and animals in an act of apparent sexual stimulation or gratification.”
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recognized that, although expressive content even of a sexual nature is protected by the First Amendment, a limited
category of conduct classified as “obscene” could be penalized. Consistent with that limitation, Oregon law only prohibited child pornography to the extent it could be characterized as “obscene.”
        The current language of the statute arose following
the United States Supreme Court’s expansion of the type
of conduct that could be regulated without offending the
First Amendment. In Ferber, the Supreme Court held that
child pornography was outside of the protection of the First
Amendment, and because of that conclusion, prosecutors no
longer had to prove that material was “obscene” under the
standards described in Miller. New York v. Ferber, 

, 

, 

 (1982).
         It was the Ferber expansion that spurred the
Oregon legislature to consider Senate Bill (SB) 375 in 1985.
During a hearing on SB 375, Senator Tony Meeker, a principal sponsor of SB 375, expressed that the legislation would
amend Oregon’s existing child pornography laws to bring
those laws as close as possible to what the Supreme Court
approved in Ferber. The focus, explained Meeker, of the proposed legislation was to remove the obscenity test that had
been previously imposed by applicable First Amendment law
in favor of the post-Ferber standard. Tape Recording, Senate
Committee on Judiciary, SB 375, Apr 25, 1985, Tape 110,
Side A (statement of Sen Meeker). Meeker noted that SB 375
had been “patterned identically after those laws that have
been upheld by the [Ferber] case, with very careful drafting.”
Tape Recording, Senate Committee on Judiciary, SB 375,
Apr 25, 1985, Tape 112, Side A (statement of Sen Meeker).
         The discussions about SB 375 make two things
apparent. First, the measure was intended to punish people
for their conduct related to the creation of child pornography, and the underlying abuse or exploitation of children,
not necessarily the visual depictions themselves. Tape
Recording, Senate Committee on Judiciary, SB 375, Apr 25,
1985, Tape 111, Side A (statements of Sen L.B. Day, Sen
Margie Hendriksen, and American Civil Liberties Union of
Oregon President Rex Armstrong). Second, the adoption of
724                                                State v. Parra-Sanchez

the measure was governed by an understanding that the
constitution stops the state from criminalizing thoughts
alone. Tape Recording, Senate Committee on Judiciary,
SB 375, Apr 25, 1985, Tape 111, Side A (statements of
Sen Hendriksen and Armstrong). Senator Hendriksen
remarked that “a person’s ideas or their imagination [cannot be punished] but when you are using children, not ideas,
you are using children who are portrayed in movies or in
photographs as stimulus, it’s not [the same] as a person’s
work product being put in print.” Tape Recording, Senate
Committee on Judiciary, SB 375, Apr 25, 1985, Tape 111,
Side A (statement of Sen Hendriksen).
         Although not determinative as to the intent of the
legislature that enacted the current language, subsequent
legislative history of the language is informative.6 In 1991,
House Bill (HB) 2681 was proposed to criminalize possession
of child pornography. The original text of HB 2681 proposed
to amend the lewd exhibition element to read “lewd exhibition of, or graphic focus on, the genitals or anus.” See HB
2681 § 4 (1991) (emphasis added). In committee discussions
regarding the term “graphic focus” as part of the amendment, Warren Deras, principal drafter of the bill, explained
that the term came from the United States Supreme Court’s
decision in Osborne v. Ohio, 

, 

, 

 (1990), that permitted state regulation of mere
possession of child pornography. Tape Recording, Senate
Committee on Judiciary, HB 2681, May 29, 1991, Tape
195, Side A (statement of Deras). Even absent the addition
of “graphic focus,” Deras explained that “the definition of
‘sexually explicit conduct’ as a whole is not intended to and
does not have the effect of prohibiting mere nudity, including nudity that displays the genitals because of the fact that
     6
       In 1987, a proposal was made to replace “lewd exhibition of the genitals” with
several other provisions that targeted certain conduct “for the purpose of sexual
stimulation of the viewer.” A sponsor of the measure, Senator Jim Simmons, testified that the amendment would “bring in a new set of definitions which greatly
expand ORS 163.665.” Tape Recording, Senate Committee on Judiciary, SB 364,
June 9, 1987, Tape 175, Side B (statement of Sen Simmons). Although SB 364 was
eventually adopted, the proposed amendments to the existing “lewd exhibition”
definition of ORS 163.665 were not. The enacted version of SB 364 included, as a
definition of “sexually explicit conduct,” “lewd exhibition of the genitals or anus.”
The broader definitional term “sexual conduct” from the 1985 enactment was
amended in 1987 to read “sexually explicit conduct.”
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 (2023)                                                  725

nudity involved children.” 

 Deras refuted a question from
Senator Dick Springer suggesting that the bill was “trying
to get in the head of the person that’s actually viewing it
and for what purpose” by noting that “quite frankly, one of
the things we don’t want to do in this statute is to have to go
into the person’s head and look at motivation.” 

 Perhaps
presciently, Deras explained:
       “You always get the difficulty when you are dealing with
    the area of obscenity versus pornography versus something
    that is neither, of the ‘I know it when I see it’ syndrome.
    This is material that is extraordinarily difficult to define,
    but I think again if you look at the definition as a whole,
    and you are looking at extremely restrictive language that
    requires something far beyond total nudity.” 7

 The graphic focus addition was eventually abandoned,
in part because of concern about the breadth that such language could cover. Senator Jim Bunn noted,
       “I think it was Warren Deras that was speaking, saying
    we don’t really want this bill to apply, for example to somebody who’s taking a picture of their kid running naked on
    the beach, and that was not the intent that happen, but I
    think he was admitting that it was possible.”
Tape Recording, Senate Committee on Judiciary, HB 2681,
June 5, 1991, Tape 212, Side B (statement of Sen Bunn).
         Although the legislature never precisely defined
what a lewd exhibition of sexual or other intimate parts
entailed, the legislative history of the original 1985 enactment and subsequent amendments reveal a number of
salient points to provide boundaries in our consideration of
the term.8

    7
      The difficulty of precisely defining the prohibited conduct without also
including innocent behavior was noted by Deras in an earlier hearing.
        “I hate to confess this, but after my second draft of this bill, I realized I
    had made it illegal for my wife to show me how to use a rectal thermometer.
    And having had to learn that with two children, the definition of explicit
    sexual conduct involving a child was actually changed.”
Tape Recording, Senate Committee on Judiciary, HB 2681, May 29, 1991, Tape
195, Side A (statement of Deras).
    8
      The 1997 and 2011 amendments and associated legislative history provide
no discussion meaningful to our analysis of sexually explicit conduct or lewd
exhibition.
726                                    State v. Parra-Sanchez

         First, as demonstrated in the history of the 1987,
1991, and 1995 amendments, Oregon’s legislature has steadfastly rejected attempts to inject a purely subjective, sexualpurpose-based inquiry into the definitions of sexually
explicit conduct (1987) or lewd exhibition (1991 and 1995).
Even during the original enactment in 1985, there was concern over drafting legislation that targeted a person’s ideas
rather than the actual child sex abuse that was inherent in
creating and distributing child pornography.
          Second, in both the 1991 and 1995 amendments,
the applicable committees heard testimony from legislation
drafters, sponsors, and prosecutors that lewd exhibition
meant something far more than mere nudity. “A picture of
a child lying on a rug or running around, that’s not a lewd
exhibition.” Tape Recording, Senate Committee on Judiciary,
HB 2681, June 5, 1991, Tape 212, Side B (statement of Rep
Kevin Mannix). A reasonable inference from those concerns
is that, by focusing on what is being displayed (i.e., nudity or
partial nudity), the objective nature of a display determines
whether something is a lewd exhibition, and not the personal sexual preferences or desires of the creator.
        Finally, we conclude that United States Supreme
Court case law mandates that conclusion. Although federal case law is not always probative of the intent of the
Oregon legislature, it is with respect to this statute. That
is because, as the legislative history shows, the legislature
drafted the statutory language with the purpose of complying with Ferber.
         Beginning in the 1950s, the United States Supreme
Court issued a number of opinions that delineated the
boundaries of material that was protected under the First
Amendment from material that was not protected. See
Miller, 

 (collecting cases). The culmination of
that history came in Miller, which held that “obscene material is unprotected by the First Amendment,” and those
materials were “works which, taken as a whole, appeal to
the prurient interest in sex, which portray sexual conduct in
a patently offensive way, and which, taken as a whole, do not
have serious literary, artistic, political, or scientific value.”

. Further, the Court noted that “no one will be
Cite as 

 (2023)                                 727

subject to prosecution for the sale or exposure of obscene
materials unless these materials depict or describe patently
offensive ‘hard core’ sexual conduct.” Id. at 27.
         In 1982, the United States Supreme Court decided
Ferber. Due to the tension between laws seeking to proscribe
child pornography on the one hand, and First Amendment
protections on the other, the Court noted that to be constitutionally permissible,
   “the conduct to be prohibited must be adequately defined
   by the applicable state law, as written or authoritatively
   construed. Here the nature of the harm to be combated
   requires that the state offense be limited to works that
   visually depict sexual conduct by children below a specified
   age. The category of ‘sexual conduct’ proscribed must also
   be suitably limited and described.”

 (emphasis in original; footnote omitted). The
Court then described the reformulated Miller standard, as
it applied to child pornography, to eliminate the “prurient
interest” requirement, remove the “patently offensive” requirement, and allow consideration of only a part, rather than
the whole of a work. 

. Finally, the Court considered, and approved, the New York statute giving rise to the
case, which stated “ ‘sexual conduct’ means actual or simulated sexual intercourse, deviate sexual intercourse, sexual
bestiality, masturbation, sado-masochistic abuse, or lewd
exhibition of the genitals.” Critically, for our consideration,
the Court noted that “lewd exhibition of the genitals” was a
common and permissible regulation with respect to sexual
conduct. 

 at 765 (citing Miller, 

). The Court did
not expand on what precisely constituted a lewd exhibition,
but by approving New York’s definition including the phrase,
we may surmise it was “suitably limited and described.”
         Later, in United States v. Williams, 

, 

, 

 (2008), the Court
explained that the federal law in question was very similar
to the New York law approved in Ferber, but noted that “[i]f
anything, the fact that the defined term here is ‘sexually
explicit conduct,’ rather than (as in Ferber) merely ‘sexual
conduct’ renders the definition more immune from facial
constitutional attack.” In other words, by inserting “explicit”
728                                              State v. Parra-Sanchez

into the definition, as has Oregon, the qualifying conduct
may have been narrowed. The Williams Court also emphasized that what is critical for whether a lascivious exhibition exists is the content of the work (or live performance),
not what someone subjectively believes about it. 

.
“Where the material at issue is a harmless picture of a child
in a bathtub and the defendant, knowing that material,
erroneously believes that it constitutes a ‘lascivious exhibition of the genitals,’ the statute has no application.” 

“[The] material in fact (and not merely in [a defendant’s]
estimation) must meet the statutory definition.” 

         In sum, Ferber explained that “lewd exhibition of
the genitals,” as construed in Miller, referred to “the hard
core of child pornography.” Ferber, 

;
Miller, 

. Williams reaffirmed that understanding, and added that if anything, “sexually explicit conduct”
is narrower than the phrase “sexual conduct” approved in
Ferber. Williams, 

. And Williams confirmed
that no matter what an individual believed about a photograph, unless that photograph was in fact objectively lascivious, “the statute has no application.” 

.9
         Given the constitutional minefield we traverse,
and considering the text, context, and legislative history
of the phrase “lewd exhibition” in Oregon law, we cannot
adopt a different interpretation than that embraced by the
Supreme Court in Ferber. That definition tracks with the
ordinary meaning of the words, and, consequently, provides
fair notice of what a “lewd exhibition” is, as required by the
Oregon criminal code and federal due process.
C. Prior Judicial Construction
         Our case law interpreting this statute has not
adhered to these principles. Our first case concerning “lewd
     9
       The First Amendment requires the state to prove scienter for prohibitions
on child pornography. Osborne, 

. That requirement includes some
culpable mental state for the nature of the prohibited content. Ferber, 

 (citing Smith v. California, 

, 

, 

(1959) (state may not impose criminal penalties on distribution of obscene material without scienter); Hamling v. United States, 

, 

, 

 (1974) (“A reading of the (New York) statute … as a whole clearly
indicates that only those who are in some manner aware of the character of the
material they attempt to distribute should be punished. It is not innocent but
calculated purveyance of filth which is exorcised.”).
Cite as 

 (2023)                                729

exhibition,” Meyer, laid the groundwork upon which our later
cases were based and was decided under an earlier version of
the definition. It did so, however, not in the context of construing the display statute but, instead, in addressing a vagueness challenge to the definition of sexually explicit conduct.
         In Meyer, we began our analysis by noting that “[t]o
withstand a vagueness challenge, the terms of a criminal
statute ‘must be sufficiently explicit to inform those who are
subject to it of [sic] what conduct on their part will render
them liable in penalties.’ ” 

 (quoting State
v. Graves, 

, 

 (1985)) (sic added by
Meyer). We went on to note that a person “need only be able
to have a reasonable degree of common understanding of
what is forbidden by the statute.” Meyer, 

(quotation marks omitted).
         Surveying legal and dictionary definitions of “lewd”
or “lewdness,” we concluded that although the definitions
were not identical, “they contain sufficient common elements that indicate with reasonable certainty the nature
and character of the conduct forbidden by ORS 163.670 and
ORS 163.673.” 

. In making that determination,
we also looked to federal cases addressing vagueness challenges to comparable statutes to conclude that “lewd” was a
“commonsensical term,” meaning indulgence of lust, immorality relating to sexual impurity, and gross or wanton indecency with respect to sexual relations. 

 at 325 n 7, 326
n 10. From those sources, we concluded that a “lewd exhibition” “refers to sexually motivated conduct; specifically, it
imports the excitement of lust or sexual desire and signifies
gross indecency in sexual behavior.” 

. Thus, we
explained: “We interpret the phrase ‘lewd exhibition of the
genitals or anus’ in ORS 163.670 and ORS 163.673 [sic: ORS
163.665] to mean exhibition with the intent of stimulating
the lust or sexual desires of the person who views it.” 

. Thus, Meyer stands for the minor proposition that “lewd
exhibition” is an objective term with a common meaning,
and the major proposition that the statutes using the term
are not vague because they require proof that in engaging in
conduct that results in a child’s “lewd exhibition,” the defendant had the intent of stimulating the lust or sexual desires
of the viewer.
730                                  State v. Parra-Sanchez

         In Evans, we looked to Meyer when called upon to
determine whether the evidence was sufficient to allow a
finding that the defendant had used a child in a “lewd exhibition of sexual or other intimate parts.” 

-
44. In Evans, the defendant challenged the sufficiency of the
evidence that he had knowingly used a child in a display of
sexually explicit conduct. 

. There, the defendant,
while naked, “initiated and induced” a child to remove her
clothing in the presence of other family members who also
were naked, “volunteered to teach her how to dance,” and
danced with her “holding her so closely that his genitals
were pressed against her stomach.” 

. There,
the defendant, citing Meyer, argued that there was no “lewd
exhibition” because the state failed to show that the defendant’s conduct in inducing the child to dance with him was
undertaken with the intent of stimulating the lust or sexual desires of the person who viewed it. Evans, 

. The defendant there argued that nothing about the
exhibition was lewd and that “mere nudity” was not enough,
but primarily argued there was no evidence that the defendant was sexually aroused by the exhibition of the child.
Addressing the defendant’s specific argument, we concluded
that there was sufficient evidence of the defendant’s intent
with respect to the dancing incident based on the description
of his conduct in inducing the child to remove her clothes
and dance with him, the nature of the dance (his genitals
pressed against the child), and “his conduct and statements
on the following day,” which the court concluded “constitute
additional evidence on which a rational factfinder could rely
to draw an inference as to defendant’s scienter.” 

.
That is, we followed the defendant’s framing of the issue as
a challenge to whether the state had proven that the defendant acted with the requisite intent—to stimulate the lust
or sexual desires of the viewer. We did not, however, engage
in a considered construction of the statute, having taken
defendant’s arguments on their own terms and we determined that the evidence was sufficient to support the finding that the defendant’s conduct was for the purpose of his
own sexual gratification.
       One judge dissented. The dissent disagreed with
the majority’s framing of the key issue as whether the
Cite as 

 (2023)                                    731

defendant acted with the requisite intent, taking the position that ORS 163.670 “is focused on the objective nature
of the children’s conduct, not on the subjective intent of the
person who induces the children to engage in the conduct.”
Id. at 447 (Armstrong, J., dissenting). The dissent acknowledged that there was sufficient evidence of the defendant’s
sexual purpose in inducing the child to dance naked with
him, but concluded that that was insufficient to prove the
crime because “there is no evidence from which a jury could
find that defendant’s or [the child’s] genitals were exhibited
to anyone in a lewd manner.” Id. at 450. Cursorily responding to the dissent in a footnote, we stated that the
   “assertion that the statute’s focus is not on the intent of the
   person charged under the statute is contrary to our holding
   in Meyer, 

, in which we said: ‘We interpret the phrase “lewd exhibition of the genitals or anus”
   in ORS 163.670 and ORS 163.673 to mean exhibition with
   the intent of stimulating the lust or sexual desires of the
   person who views it.’ ”
Evans, 128 Or App at 445 n 3. In so doing, we appear to have
lost sight of the fact that, before reaching the analysis of
a defendant’s sexual purpose, Meyer had drawn the conclusion that a “lewd exhibition” was a term of common understanding that had an objective meaning—it connotes an
exhibition that shows indulgence of lust, immorality relating to sexual impurity, and gross or wanton indecency with
respect to sexual relations. 

 n 8, 326 n 10.
         Nonetheless, we invoked Evans subsequently in
Smith, 

. In Smith, the defendant argued
(as had the defendant in Evans) that “mere nudity” did not
constitute a “lewd exhibition,” and that to the extent Evans
held otherwise, it was wrongly decided. 

. In Smith,
evidence supporting a charge of using a child in a display of
sexually explicit conduct included that the defendant had
pulled down the pants and underwear of a child, B, had her
lie on her back, and then touched and photographed her
vaginal area. 

. The defendant argued that the
court should adopt the view of the dissent in Evans and conclude that the unrecovered photos that exposed B’s vagina
may have depicted “nudity alone,” which would not be a lewd
exhibition. 

. On those facts we declined to revisit
732                                  State v. Parra-Sanchez

and overrule Evans, concluding that it was not “plainly
wrong.” 

. We went on to conclude that there was
sufficient evidence to conclude that the photographs were a
lewd exhibition because of the evidence allowing the inference that the defendant himself was sexually gratified by
them. We did not address whether the photographs themselves were objectively lewd.
         To the extent that Evans (and, to the lesser extent,
Smith) suggests the objective nature of the display at issue
is not a necessary consideration to determine whether there
has been a “lewd exhibition,” we disavow those statements
because they were based on a misreading of Meyer and are
contrary to the plain meaning of the text of the statute, as
informed by its context and legislative history.
         The remaining question is whether our decisions
in Evans and Smith, by operation of the doctrine of stare
decisis, preclude us from interpreting “lewd exhibition” in
this manner. Stare decisis is a judicial doctrine motivated
by “moral and intellectual, rather than arbitrary and inflexible” forces. State v. Merrill, 

, 

 (2020), adh’d to as modified on recons, 

,

, rev den, 

 (2021) (quoting Stranahan
v. Fred Meyer, Inc., 

, 

 (2000)). And
our adherence to stare decisis is presumptive, not absolute.
State v. Civil, 

, 

 (2017). The
doctrine holds the least force where a prior case did not, in
fact, examine the issue at hand, as is the case here. 

.
         Here, the reality is we have never addressed the
question at hand. As our retracing of our case law demonstrates, in rejecting a vagueness challenge to the phrase
“lewd exhibition,” Meyer drew from federal case law defining
the same or similar phrases. It is evident, from the sources
that we drew on, that Meyer’s standard was an objective
one, based on the characteristics of the particular exhibition alleged to have been lewd. In Evans and Smith, we
purported to apply that standard by echoing it, but instead,
without analysis, we transmuted it into a new standard,
holding that an exhibition of a child’s sexual or other intimate parts meets the statutory definition so long as the
Cite as 

 (2023)                                                 733

subjective purpose of the defendant allowing or creating
the display is to elicit a sexual response from the defendant
or someone else. In so doing, though, we gave the statute a
meaning that is not communicated to the ordinary reader
by its terms, and that risks generating the constitutional
problems the Oregon legislature was intentionally trying to
avoid by drafting the Oregon statutes to comport with Miller
and Ferber. Under those circumstances, we decline to afford
Evans and Miller the weight of stare decisis, to the extent
they can be read to interpret “lewd exhibition” to include
visual perception of a nude child without any other implication of explicit sex, simply because a defendant who observed
the child’s exposed sexual or other intimate parts in those
contexts did so for the defendant’s own sexual gratification.
D. The Meaning of Lewd Exhibition
          For the foregoing reasons, the text, context, and legislative history demonstrate that “lewd exhibition” means
the showing of a child’s sexual or other intimate parts that
is itself salacious or focused on sex. Further, because of the
deep ties between child pornography on one side, and constitutional obscenity law on the other, whether something
constitutes a lewd exhibition is determined by reference
to objective standards. That is something that must be
assessed 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, if that person is someone other
than the child or the viewer.
        To assist factfinders and trial courts in making
those objective determinations, we believe that a set of factors that have been widely analyzed and adopted by state10
     10
        State v. Brock, 248 Ariz 583, 591, 

, 215 (Ct App 2020), rev den
(Dec 15, 2020); Cummings v. State, 

, 630 n 1, 

, 279 n 1
(2003); People v. Kongs, 30 Cal App 4th 1741, 1754-55, 37 Cal Rptr 2d 327, 334-
35 (1994), as modified (Jan 18, 1995), rev den (Apr 13, 1995); People In Interest of
T.B., 

 (Colo 2019); State v. Sawyer, 

, 41, 225 A3d
668, 677 (2020); State v. Brabson, 7 So 3d 1119, 1125 (Fla Dist Ct App 2008);
People v. Lamborn, 185 Ill 2d 585, 592, 

 (1999); Purcell v.
Commonwealth, 

 (Ky 2004), overruled on other grounds by
Commonwealth v. Prater, 

 (Ky 2010); State v. Roberts, 2001-00154
p 9, 796 So 2d 779, 786-87 (La Ct App 10/3/01), writ den, 2001-2974 (La 9/20/02);
734                                              State v. Parra-Sanchez

and federal11 courts can be useful guideposts to assist factfinders and trial courts in making those objective determinations. The factors are:
        “1) whether the focal point of the visual depiction is on
    the child’s genitalia or pubic area; 2) whether the setting of
    the visual depiction is sexually suggestive, i.e., in a place or
    pose generally associated with sexual activity; 3) whether
    the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; 4) whether the
    child is fully or partially clothed, or nude; 5) whether the
    visual depiction suggests sexual coyness or a willingness
    to engage in sexual activity; 6) whether the visual depiction
    is intended or designed to elicit a sexual response in the
    viewer.”
United States v. Dost, 

 (SD Cal 1986),
aff’d sub nom United States v. Wiegand, 812 F2d 1239 (9th
Cir 1987), and aff’d, 813 F2d 1231 (9th Cir 1987).
         We note that even courts that have explicitly
adopted the Dost factors have raised valid concerns about
their use. See, e.g., United States v. Amirault, 

 (1st Cir 1999); United States v. Frabizio, 

(1st Cir 2006) (Dost factors are not the equivalent of the

Commonwealth v. Sullivan, 82 Mass App Ct 293, 302-03, 

(2012); Hood v. State, 17 So 3d 548, 555 (Miss 2009); State v. Cerna, 

 (Mo Ct App 2017); State v. Saulsbury, 243 Neb 227, 235, 

 (1993); State v. Lopez, 162 NH 153, 156, 27 A3d 713, 716 (2011); State v.
Myers, 

, 132, 

 (2009); People v. Horner, 

, 

 (2002); State v. Reisner, 253 A3d 1273, 1281-82
(RI 2021); State v. Dubois, 

 (SD 2008); State v. Bolles, 

 (Tex Crim App 2017); State v. Morrison, 

 (Utah
2001); Foster v. Commonwealth, 0369-87-2, 

 at *3 (Va Ct App
Nov 21, 1989).
    11
       See, e.g., United States v. Frabizio, 

 (1st Cir 2006) (noting
adoption of Dost factors and describing their usefulness); United States v. Spoor,

 (2d Cir 2018) (analyzing video with Dost factors); United
States v. Larkin, 

 (3d Cir 2013) (acknowledging adoption of
factors but noting they are “not dispositive and serve only as a guide”); United
States v. Steen, 

 (5th Cir 2011) (analyzing video with Dost
factors, noting that “[a]ny determination of lasciviousness will have to be made
based on the overall content of the visual depiction”); United States v. Guy, 

 (6th Cir 2017) (approving jury instructions based on Dost factors); United States v. Lohse, 

 (8th Cir 2015) (acknowledging
adoption of factors); United States v. Perkins, 

 (9th Cir 2017)
(same); United States v. Wells, 

 (10th Cir 2016) (same); United
States v. Hunter, 

, 997-98 (11th Cir 2017) (analyzing photographs with Dost factors).
Cite as 

 (2023)                                                   735

statutory term “lascivious”); United States v. Rivera, 

 (2d Cir 2008) (recognizing “valid criticisms
and cautions about the Dost factors but ultimately approving their use); United States v. Villard, 885 F2d 117, 125 (3d
Cir 1989) (raising a concern over possible improper use of
the sixth factor); United States v. Price, 

(7th Cir 2014) (holding that instructing the jury with Dost
instructions was not plain error, but “discourag[ing] their
routine use”); State v. Sawyer, 

, 41, 225 A3d
668, 677 (2020) (cautioning against applying the Dost factors “rigidly or mechanically”).
          However, the main concern is frequently not that
the factors themselves incorrectly identify aspects of a
depiction that make it a lewd exhibition.12 Rather, the main
concern is that the factors can be used improperly; that is,
treated as a checklist or as additional necessary elements of
the crime. We share that concern and do not intend that the
Dost factors be used in those ways. The Dost factors are simply guideposts for a factfinder; a set of “neutral references
and considerations to avoid decisions based on individual
values or the revulsion potentially raised in a child pornography prosecution.” Rivera, 

. A factfinder
does not have to find all of them before concluding that there
was a lewd exhibition; conversely, the absence of one does
not require an acquittal. Further, some of the factors may
not be relevant or useful in any given case. What weight
should be given to any specific factor will depend ultimately
on the circumstances of the trial. In this, we are aligned
with the majority of jurisdictions in the way they use the
Dost factors. See, e.g., United States v. Horn, 

 (8th Cir 1999) (“It goes without saying that the Dost criteria are neither definitive nor exhaustive.”); United States
v. Wolf, 890 F2d 241, 245-47 (10th Cir 1989) (“All six factors
need not be present in order to bring the depiction under

     12
        But see United States v. Hillie, 

 (DC Cir 2022) (determining that Dost was based on an erroneous reading of the legislative history,
failed to honor the teachings of Miller, and required reasoning expressly rejected
by Williams); State v. Whited, 

 (Tenn 2016) (rejecting Dost
factors because “the fact-intensive determination of whether particular materials contain sexual activity or a lascivious exhibition of private body areas is not
facilitated by the adoption of a one-size-fits-all ‘multi-factor analysis’ such as the
Dost factors”).
736                                   State v. Parra-Sanchez

the proscription of the statute.”); State v. Lopez, 162 NH
153, 156, 27 A3d 713, 716 (2011) (“Not all factors must be
present to reach a determination that a visual depiction is
a lewd exhibition of the genitals.”); State v. Myers, 

, 135, 

 (2009) (holding that the Dost
factors are “neither comprehensive nor necessarily applicable in every situation” and that the “inquiry will always be
case-specific”).
         In sum, we agree with the majority of courts that the
Dost factors are a useful tool for factfinders. These specific
factors can apply neutrally across the wide range of charged
cases and help to reduce decisions based on assumptions or
unarticulated personal beliefs or biases. Although the factors may be most useful in cases that are close calls, the
availability of a set of neutral factors will focus the inquiry
on what is presented in the depiction itself—not the defendant’s subjective state of mind—an evaluation that we have
concluded is statutorily established and constitutionally
required.
E. Application
         Returning to the facts of this case, we apply our
modified definition of “lewd exhibition of sexual or other
intimate parts.” We have concluded, consistent with our
statutory interpretation principles, that “lewd exhibition
of sexual or other intimate parts” means “the showing of
a child’s sexual or other intimate parts that is itself salacious or focused on sex.” 324 Or App at 733. As applied in
this instance, because neither visual recording nor a live
sex show are implicated, the focus must be on M’s conduct
in determining whether a lewd exhibition occurred.
         The undisputed evidence for the display counts
related to Counts 1 and 2 consisted of several, undifferentiated episodes when defendant would walk into M’s bedroom, without knocking, and would encounter M in various
states of nudity, including M’s bare breasts, buttocks, and
vagina. In response, M would sit on the bed, covered with
a towel until defendant would leave the room. That evidence is insufficient as a matter of law to elevate M’s nudity
into something that is “itself salacious or focused on sex.”
Id.
Cite as 

 (2023)                             737

          Likewise, the evidence related to the display count
and attempted display count (Counts 3 and 5) occurring
at a second apartment unit lack the objective indicia of a
lewd exhibition sufficient to elevate mere nudity into a lewd
exhibition. The factual occurrences there presented similar, if not identical, conduct to those occurring in the first
apartment.
         The display count related to the shower occurrence
(Count 4) presents a similar lack of objective indicia of any
sexuality or focus on sex sufficient to elevate M’s activity
of taking a shower into a lewd exhibition of her sexual or
other intimate parts. The evidence introduced for Count 4
included only that defendant partially opened the shower
curtain while M was washing her hair, and defendant was
thus able to focus upon M’s breasts. That too falls short of
any evidence that what was being viewed was, itself, salacious or focused on sexuality. Although the evidence amply
supports the finding that defendant viewed M’s unclothed
body for the purpose of his own sexual gratification, that
is not determinative of whether there has been a “lewd
exhibition.”
         Judge Hellman’s dissent suggests that the defendant’s viewing of the minor’s intimate parts is, itself, salacious or focused on sex, stating “[a] focus on a 15-year old’s
exposed breasts is inappropriate for her age and sexually
suggestive.” 324 Or App at 787 (Hellman, J., dissenting).
But the problem with the dissent’s approach, on both the
bedroom and the shower incidents, is that it requires defendant’s conduct to be considered part of the exhibition. If
defendant had created a circumstance where someone else
could view him ogling his minor daughter in a state of
undress, wherein his conduct depicts a sexual interest in
her intimate parts, that could indeed be an exhibition that
was salacious and focused on sex, depending on the presentation. But the facts presented here do not allow for that
finding. Defendant took no steps to allow for someone else to
view him with his daughter in a state of undress, and so his
activities are not part of the exhibition. In these instances,
his role is solely as the intended viewer, and not a participant in a separate exhibition that he intended for anyone to
view.
738                                   State v. Parra-Sanchez

          As no rational finder of fact could have concluded
from that evidence that the state had proved, beyond a reasonable doubt, that M participated or engaged in “sexually
explicit conduct,” specifically a “lewd exhibition of sexual
or other intimate parts,” the trial court erred by denying
the motion for judgment of acquittal for each display and
attempted display count. The convictions for Counts 1
through 5 are thus reversed.
      III. REMAINING ASSIGNMENTS OF ERROR
          Turning then to the remaining assignments, due
to our conclusion with respect to the assignments of error
related to the convictions under ORS 163.670, we need not
address defendant’s assignments challenging the proportionality of the sentences arising from those counts.
          Defendant makes two plain-error challenges to
the trial court’s decision to leave certain guilty verdicts
unmerged in the judgment. First, defendant contends that
third-degree sexual abuse (Count 9) should have been
merged into first-degree sexual abuse (Count 7) in the judgment. Second, defendant contends that second-degree sexual
abuse (Count 8) should have been merged into first-degree
unlawful sexual penetration (Count 6). The state responds
that any error is not plain and urges us to reject defendant’s arguments for that reason. We conclude that, under
State v. Breshears, 

, 

 (2016), the
alleged errors are plain and, further, we exercise our discretion to correct them. To qualify for plain-error review, three
requirements must be met: (1) it must be an error of law;
(2) the point must be obvious, i.e., not reasonably in dispute;
and (3) the error cannot require us to go outside the record
or select among competing inferences. State v. Terry, 

, 

 (2001), cert den, 

 (2002). If
those requirements are met, correcting a plain error is a
matter of discretion. Id. at 180 n 11.
         As defendant was charged, each of these crimes
arose from the same episode, so our merger analysis is governed by ORS 161.067(1). ORS 161.067 provides, in relevant
part:
      “(1) When the same conduct or criminal episode violates two or more statutory provisions and each provision
Cite as 

 (2023)                               739

   requires proof of an element that the others do not, there
   are as many separately punishable offenses as there are
   separate statutory violations.”
          Challenges to the application of ORS 161.067 present a question of law. Breshears, 

. Our
courts have interpreted the statute to mean that “if one
offense contains X elements, and another offense contains
X + 1 elements, the former offense does not contain an element that is not also found in the latter offense. In that situation, under ORS 161.067(1), there is only one separately
punishable offense.” State v. Blake, 

, 

 (2010) (footnote omitted). A court must answer three
questions when considering merger under ORS 161.067:
“(1) Did defendant engage in acts that are ‘the same conduct or criminal episode,’ (2) did defendant’s acts violate two
or more ‘statutory provisions,’ and (3) does each statutory
‘provision’ require ‘proof of an element that the others do
not.’ ” State v. Haddon, 

, 

(2017). If the answer to all three is affirmative, merger is not
required. See 

 If, however, the answer to the first two factors is affirmative, but the answer to the third is negative,
merger is required. 

 Tracking the wording of the statute,
the analysis we apply focuses on the elements of the crimes
alleged, not the particular facts that the state alleged to
establish those elements. Breshears, 

.
         As charged in this case, Counts 7 and 9 both require
proof of “sexual contact” and some manner of an absence
of consent; first-degree sexual abuse, ORS 163.427(1)(a)(C)
(2016), amended by Or Laws 2021, ch 82, § 7 (Count 7) that
the victim was “incapable of consent” because of being
“physically helpless” and third-degree sexual abuse, ORS
163.415 (Count 9) that the victim was “incapable of consent”
because the victim was under 18 years of age. We have previously concluded that third-degree sexual abuse, under a
“does not consent” theory is a lesser-included offense of first-degree sexual abuse under an “incapable of consent” theory. See State v. Barnes, 

, 

(2006), rev den, 

 (2007). And as explained by the
Oregon Supreme Court, “ ‘does not consent’ refers to the lack
of capacity to consent due to age, as well as to the lack of
actual consent.” State v. Ofodrinwa, 

, 

                                               State v. Parra-Sanchez

154 (2013). Given the equivalence of those different means
of absence of consent, as alleged in this case, third-degree
sexual abuse should have been merged into first-degree sexual abuse. As all three requirements for plain-error review
are met, we conclude that entering separate convictions for
Counts 7 and 9 was plain error and we exercise our discretion to correct it. See State v. Pass, 

, 

 (2014) (correcting plain error for failing to merge
third-degree sodomy into second-degree sex abuse).
         The foregoing discussion applies with equal force to
defendant’s assignment of error regarding entry of separate
convictions for first-degree unlawful sexual penetration and
second-degree sexual abuse, which likewise turns on the
same question of consent. And likewise, we exercise our discretion to correct the plain error. 

.
         Convictions on Counts 1 through 5 reversed; convictions on Counts 6 through 9 reversed and remanded with
instruction to enter a judgment of conviction for one count of
first-degree unlawful sexual penetration (Count 6) and one
count of first-degree sexual abuse (Count 7); remanded for
resentencing; otherwise affirmed.
           AOYAGI, J., concurring.
         I agree with the majority that, when the legislature
defined “sexually explicit conduct” for purposes of the crime
of display, ORS 163.670, it intended a “[l]ewd exhibition of
sexual or other intimate parts” (ORS 163.665(3)) to mean an
exhibition of genitalia or other intimate parts in a manner
that is objectively lewd. I also agree with both the majority
and Judge Kamins that, in the circumstances here, our obligation to correctly construe the statute, coupled with recognition of our own role in muddying the waters around it,
supports the approach taken by the majority.1
    1
      Unlike Judge Kamins, I do believe that we could reverse the display
convictions—thus giving effect to the legislative intent and the words of the
statute—without having to overrule any existing precedent, by focusing on
whether M engaged in an “exhibition,” without getting into the meaning of “lewd.”
However, that analysis would be more strained, and it would ultimately be less
helpful to the bench and bar than the majority’s more fulsome approach. In my
view, for the reasons expressed by Judge Kamins, we should not engage in a
more strained and less helpful analysis solely to avoid overruling a prior decision
because the defendant did not directly ask us to do so in his opening brief.
Cite as 

 (2023)                                             741

         I therefore concur in the majority opinion in its
entirety. I write separately because ORS 163.670 is a challenging statute from a construction standpoint, given how
it is written, and our case law has both reflected and exacerbated that complexity. The majority opinion focuses on
a very specific issue—the meaning of “lewd exhibition” as
a form of “sexually explicit conduct.” I write to make some
broader observations, in the hopes that they may contribute
to the ongoing effort to clarify the law on ORS 163.670.
      I. PROPERLY CONSTRUING ORS 163.670
   DOES NOT MINIMIZE DEFENDANT’S CONDUCT.
         As a preliminary matter, it is worth stating out loud
that defendant’s efforts to see his daughter’s naked body
were wrong, and likely a criminal invasion of her privacy
under ORS 163.700. To the extent that our case law regarding the crime of display has strayed at times from the legislative intent, it may be in part due to an understandable
but nonetheless mistaken impulse to stretch ORS 163.670
in cases where the defendant engaged in voyeuristic acts
and was charged only with display and not with invasion
of privacy, particularly if the defendant seems especially
blameworthy.
         The crime of display is not meant to encompass
every criminal act of a sexual nature committed against a
child. ORS 163.670 was enacted to combat child pornography. At the time of its enactment, the legislature understood
that “international trafficking in child pornography” was
generating five to six billion dollars in revenues annually.2
Display is a major felony sex crime and “the most serious of
a group of related offenses that concern the visual recording and observation of children engaged in sexually explicit
conduct that also include encouraging child sexual abuse,
possession of materials, and failure to report child pornography.” State v. Carey-Martin, 

, 

 (2018) (internal citations omitted; emphasis added);
see also State v. Bates, 

, 

(2020) (“The most serious of the child pornography crimes is
ORS 163.670, which establishes the offense of using a child
    2
      Testimony, Senate Committee on Judiciary, SB 375, Apr 25, 1985, Exhibit K
(statement of Sen Tony Meeker).
742                                     State v. Parra-Sanchez

in a display of sexually explicit conduct.”); State v. Porter,

, 

, rev den, 

 (2011)
(among the offenses in ORS chapter 163, ORS 163.670 is
“the most serious offense, which involves the actual creation
of child pornography or the use of a child in a sexual display
for a live audience”).
         ORS 163.670 is meant to criminalize a very particular type of conduct: creating child pornography in either
a recorded or live format. Properly construing and applying ORS 163.670 does not minimize other types of sexual
misconduct, which can and should be prosecuted under different statutes. We must resist the urge to extend the display statute beyond its intended scope to compensate for
mischarging.
       II. ORS 163.670 REQUIRES THE CHILD
   TO ENGAGE IN SEXUALLY EXPLICIT CONDUCT.
         The majority’s interpretation of “lewd exhibition” is
consistent with an aspect of ORS 163.670 that is sometimes
forgotten but that provides important insight into the legislative intent: The statute requires the child to participate or
engage in sexually explicit conduct for someone to observe or
record.
         “A person commits the crime of using a child in a
display of sexually explicit conduct if the 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.” ORS 163.670(1).
As written, the statute requires the child to participate or
engage in sexually explicit conduct. If an adult employs,
authorizes, permits, compels, or induces the child to do so,
for any person to observe or record it, then the adult commits
the crime of display. But the statute expressly requires that
the child participate or engage in sexually explicit conduct.
Of course, the child may not fully understand the nature of
the conduct, particularly if the child is younger, but it is still
the child, not the adult, who must engage in the sexually
explicit conduct.
        We made a misstep as to that aspect of the statute
in State v. Richardson, 

, 

,
Cite as 

 (2023)                              743

rev den, 

 (2014), when, in dicta, we analogized to
a motorist hijacked by a bank robber to suggest that a child
could participate or engage in sexually explicit conduct even
if the child did “not actively exercise his or her volition to
participate.” We later corrected our footing, however, clarifying in Bates, 

 n 7, that, although it is
true as a general principle that a person can be forced to
participate or engage in an event against their will, “the
ultimate question regarding the child’s actions under [ORS
163.670(1)] is whether the child ‘participate[d] or engage[d]
in sexually explicit conduct,’ not whether the defendant
engaged the child in the conduct.” In Bates, the defendant
had engaged in sexually explicit conduct, but the child had
not, even if the child’s presence served a subjectively sexual
purpose for the defendant. 

 (“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.”).

         The majority’s interpretation of “lewd exhibition” as
requiring objective lewdness fits with the statutory requirement that the child has participated or engaged in sexually explicit conduct. An approach to “lewd exhibition” that
depends solely on the defendant’s subjective reaction to a
child’s conduct is inconsistent with the statute’s focus on the
child as the person participating or engaging in a lewd exhibition (or other sexually explicit conduct). At the same time,
it is obvious that the legislature did not intend “lewdness”
to turn on the child’s subjective perception of their conduct,
as that would seriously undermine the purposes of the display statute, especially as to younger children. The logical conclusion is that the legislature intended an objective
standard.

         In so recognizing, the majority appropriately focuses
the initial inquiry on the child, requiring a determination
whether the child participated or engaged in a lewd exhibition (or other sexually explicit conduct). If the child participated or engaged in an objectively lewd exhibition (or other
sexually explicit conduct), then the next step is to determine
whether the defendant employed, authorized, permitted,
744                                   State v. Parra-Sanchez

compelled, or induced the child to do so, specifically for the
defendant or someone else to observe or record.
         In this case, M showered and dressed in her home
with no intention of being seen. Defendant invaded her privacy when he intentionally walked in on her doing those
things. But, using the normal meanings of words, it simply
cannot be said that M herself participated in a lewd exhibition. To say that she did so requires an unnatural reading
of ORS 163.670—one that strains the plain text, fails to give
adequate consideration to context, and achieves a result that
is inconsistent with the statutory purpose as reflected in the
legislative history.
      III. TODAY’S DECISION MAY HELP REDUCE
       OVERRELIANCE ON THE VERB “PERMITS.”
          A peripheral benefit of our recognizing that the
crime of display occurs only when a child engages in an exhibition that is objectively lewd (or other sexually explicit conduct) is that it may help reduce prosecutorial overreliance on
the statutory term “permits.” ORS 163.670(1) applies 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 record. One side effect of our
mistaken focus on the defendant’s state of mind has been an
overemphasis on the verb “permits.”
        In Porter, 

, the defendant lived
with his wife, her 15-year-old daughter, and two male
housemates. The wife and one housemate sexually abused
the girl “in numerous ways,” including “posing” her in
“sexual positions” in common areas of the house. 

 The
defendant was convicted of display on a “permits” theory, based on incidents in which he watched the girl being
sexually abused and did not intervene. 

 On appeal, the
defendant challenged the denial of his motion for judgment
of acquittal, arguing that he could not “permit” the girl’s
conduct when he had no “legal relationship to her.” 

. We disagreed. 

 Looking to the legislative intent, we
indicated that “permits” needed to be construed broadly
enough to reach “people who are instrumental in the production of live or recorded displays of sexually explicit conduct by children,” such as “the photographers who record a
Cite as 

 (2023)                               745

child engaging in sexually explicit conduct” and “persons
who provide the equipment and the venue.” Id. at 34-35.
“[T]he legislature did not intend to limit liability to those
with a legal relationship to the child; rather, we conclude
that the legislature intended ‘permit’ to convey the broader
meaning of ‘to allow’ or to ‘make possible.’ ” Id. at 35; see
Webster’s Third New Int’l Dictionary 1683 (unabridged ed
2002) (defining “permit” to mean, variously, “to consent to
expressly or formally” (as in allow or tolerate), “to give (a
person) leave” (as in authorize), and “to make possible”).
         Porter refers to people who are instrumental in creating child pornography, and it involved a defendant who
provided the venue where sexual abuse occurred in his
presence. Our holding in Porter is consistent with the statute. However, when coupled with a mistakenly subjective
view of “lewd exhibition,” Porter’s description of “permit” as
including “make possible” has contributed to confusion as
to what the crime of display covers and has given rise to
an increasing number of display cases framed around the
verb “permits.” In that vein, Judge Hellman’s dissent posits
that defendant “permitted” M to participate in a lewd exhibition, by opening M’s door or moving the shower curtain so
that he could see M naked against her will, thus instantly
transforming M’s innocent nudity into a lewd display by
M that was “made possible” by defendant. 324 Or App at
786 (Hellman, J., dissenting); see also 324 Or App at 782
n 7) (Powers, J., dissenting) (arguing that “defendant’s acts,
including removing barriers to allow himself to look at the
victim’s sexual or intimate parts, made the victim’s otherwise ordinary conduct into an exhibition and defendant’s
sexual intent made it lewd”).
          Properly construing “lewd exhibition” helps make
clear that, when a minor’s nudity or sexual activity is selfinitiated, another person’s unexpected observation or recording of it does not simultaneously create a lewd exhibition and
permit the child to engage in it. Cf. State v. Torres, 

, 

 (2022) (the defendant did not “permit”
a child to engage in a lewd exhibition by secretly recording
her while she was naked in her bedroom); State v. Cazee, 

, 

 (2021) (the defendant did not
“permit” teenaged girls to engage in sexually explicit conduct
746                                   State v. Parra-Sanchez

by surreptitiously watching and visually recording them
through their bedroom windows). Rather, to be guilty of display on a “permits” theory, a person must permit the actual
conduct in which the child participates or engages, and that
conduct must be objectively lewd or otherwise sexually explicit.
     IV. THE MAJORITY’S CONSTRUCTION OF
    “LEWD EXHIBITION” AVOIDS CREATING AN
   UNINTENDED DISTINCTION BETWEEN OVERT
   AND SURREPTITIOUS VOYEURISTIC CRIMES.
         Finally, another benefit of the majority’s approach—
which, as the legislature intended, focuses on whether the
child’s conduct was objectively lewd (or otherwise sexually
explicit)—is that it eliminates the risk of creating an unintended, illogical distinction between overt and surreptitious
voyeurism.
         Under the dissent’s approach to ORS 163.670, a
sexually motivated adult who overtly observes or records an
innocently naked child would be guilty of display, based on
having “permitted” the child to engage in a “lewd display”
through the very act of observing or recording the child. See
324 Or App at 785-86 (Hellman, J., dissenting). However,
a sexually motivated adult who surreptitiously observes or
records an innocently naked child would not be guilty of display, under existing precedent. See Torres, 

(using hidden cameras to secretly record a naked teenaged
girl did not constitute display); Cazee, 

-
64 (observing and recording teenaged girls through their
bedroom windows as they engaged in sexual activity did not
constitute display).
         There is no indication that the legislature intended
surreptitious voyeurs to be guilty of invasion of personal privacy, a Class A misdemeanor (ORS 163.700) or Class C felony (ORS 163.701), but intended overt voyeurs to be guilty of
display, a Class A felony (ORS 163.670). Such a distinction is
not in line with the purposes of the display statute, nor does
it make much sense. Both types of conduct are wrongful and
criminal. Moreover, in practice, overtness is not a binary
question—people who believe they are being surreptitious
may nonetheless get caught in the act, including by victims,
Cite as 

 (2023)                              747

and indeed anyone convicted of invasion of personal privacy
was necessarily caught.
                     V.   CONCLUSION
         In sum, I agree with the majority that when the legislature defined “sexually explicit conduct” for purposes of
the crime of display, ORS 163.670, it intended a “[l]ewd exhibition of sexual or other intimate parts” (ORS 163.665(3)(f))
to mean an exhibition of genitalia or other intimate parts
in a manner that is objectively lewd. M did not participate
or engage in a lewd exhibition. It follows that defendant’s
conduct, although criminal, did not constitute the crime of
display.
        Accordingly, I concur.
        Pagán, J., joins in this concurrence.
        KAMINS, J., concurring.
         Opening briefs carry no magic powers. They are not
statutes that require maxims of construction or Supreme
Court cases whose holdings are subject to vigorous debate.
They are simply a lawyer’s conception of a client’s best arguments at a moment in time. In an adversarial system, there
is value to the arguments selected by lawyers at the outset
of an appeal. That value, however, is not absolute.
         I agree fully with the majority’s analysis and conclusion. I also agree with Judge Hellman’s articulation of
the applicable legal standard and recognition of the need
to revisit our case law. I write only to respond to Judge
Powers’s view that these circumstances do not justify overruling our prior case law because defendant did not make
that request in his initial filing before this court. According
to Judge Powers’s dissent, we, as an en banc court in the
face of unconstitutional precedent and in receipt of additional briefing from the parties, are beholden to and constrained by the content of the parties’ original briefs. Our
duty to shepherd the law cannot be delegated so absolutely.
        It is important to understand why opening briefs
matter. American courts function in an adversarial system
based on the “party presentation principle”—that is, “we rely
748                                                State v. Parra-Sanchez

on the parties to frame the issues for decision and assign
to courts the role of neutral arbiter of matters the parties
present.” United States v. Sineneng-Smith, ___ US ___, 

, 

 (2020) (citation and internal quotation marks omitted). Essentially, opening briefs
present a travel itinerary for courts to follow. Those maps
keep judges in check, preventing us from taking intriguing
detours “looking for wrongs to right.” 

 (citation omitted).
However, the “party presentation principle is supple, not
ironclad[,]” and there are “no doubt circumstances in which
a modest initiating role for a court is appropriate.” 

         Indeed, far from “forging … new ground,” as the
dissent asserts, we routinely recognize as much when construing statutes. 324 Or App at 776 (Powers, J., dissenting).
When a party’s roadmap fails to provide a necessary connecting route, we have acknowledged that gap and added
that route to the itinerary. See, e.g., State v. A. B. K., 

, 

 (2022) (engaging in statutory
construction to determine whether autism spectrum disorder qualifies as a “mental disorder” within the meaning of
ORS 426.005(1)(f) despite the fact that neither party argued
the point (citing Strasser v. State of Oregon, 

,

 (2021) (explaining that an appellate court has
an independent duty to correctly interpret any statute that
comes before it, “regardless of the arguments and interpretations offered by the parties”); Stull v. Hoke, 

, 

 (1997) (observing that an appellate court
is responsible for identifying the correct interpretation of a
statute, “whether or not asserted by the parties”))).
          In this case, defendant argued to the trial court
that, if our case law interpreted “lewd exhibition” to include
this conduct, that case law should be overruled.1 The state
responded to that argument and the trial court considered
and rejected it. When preparing the opening brief, defendant’s appellate counsel chose to focus on arguments with
the greatest chance of success—that is, arguments that
    1
      After closing argument, the trial court joined the chorus of voices questioning the validity of our case law. (“If I was left to read the statute myself, I don’t
know that I would decide that it was applicable to Mr. Parra-Sanchez’s conduct.
But the Court of Appeals has made it clear that they read it differently than me.
I’m following their lead.”)
Cite as 

 (2023)                                               749

did not include persuading a panel to overrule the court’s
precedent, a standard that the dissent recognizes is exceedingly high. See State v. Civil, 

, 

 (2017) (holding that a court should only overturn precedent that is “plainly wrong”—“a rigorous standard, satisfied only in exceptional circumstances”). That is exactly
what we encourage appellate attorneys to do. See, e.g., In re
Sanai, 

, 

 (2016) (“As the Court
has recognized on numerous occasions, the process of winnowing out weaker arguments on appeal and focusing on
those more likely to prevail is the hallmark of effective
appellate advocacy.” (Internal punctuation omitted.)). And
perhaps, that is why we have disavowed precedent without
being asked by the parties when it is necessary to perform
our duty. See, e.g., State v. Prophet, 

,

, rev den, 

 (2022) (sua sponte overruling prior Court of Appeals cases that the court interpreted
to be inconsistent with subsequent Oregon Supreme Court
precedent); Kleikamp v. Board of Commissioners of Yamhill
County, 

, 

 (2019) (disavowing
the analysis in prior cases upon which the appellant relied
without discussing whether a party requested as much); see
also State v. White, 

, 

 (2009)
(Kistler, J., concurring) (observing that “focusing solely on
what our past decisions have said about a statute can sometimes cause us to lose sight of the statutory text that underlies those decisions, and it is occasionally helpful to return
to the text, context, and history of a statute to determine
whether our decisions have drifted away from the legislature’s intent”).
        Long after defendant filed his opening brief, we,
as an en banc court, concluded that we could not travel
the map provided without confronting the constitutionally
suspect yet currently binding holdings of our prior case
law. Accordingly, we sought briefing from the parties (the
adversaries), thus preserving their role in an adversarial
system.2 That practice is routine in federal court, where
en banc proceedings are reserved for issues of “exceptional
importance,” such as overruling precedent. FRAP 35(a)(2).

   2
       In that briefing, neither adversary defended our problematic case law.
750                                                State v. Parra-Sanchez

In those limited circumstances, parties are invited to
weigh in anew on those questions. See, e.g., United States
v. Campbell, 26 F 4th 860, 871 (11th Cir), cert den, ___ US
___, 

 (2022) (recognizing that parties may make
new arguments concerning the issues they are directed to
brief in en banc briefing notice). Far from “destabilizing” as
Judge Powers’s dissent contends, that process—employed by
all federal courts of appeals—provides an avenue for a court
to revisit its precedent informed by input from the adversaries. 324 Or App at 778 (Powers, J., dissenting).
         Although I agree with Judge Powers that the adversarial process functions best when a court is faithful to the
precise route provided by the parties, that prudential preference must bend here. The issue is preserved, the adversaries
weighed in, and we have an obligation to correctly construe
the statute. The rationale behind the party presentation
principle is met. The alternative, that we—as an en banc
court having determined that our own case law violates the
constitutional rights of Oregonians—simply look the other
way, is not prudence, but an abdication of our duty. Relying
on unconstitutional case law to reach an unconstitutional
result because an attorney did not invoke the right incantation at the right time is not judicial restraint, but a transfer
of power from the judiciary to the lawyers.3
           I concur.
           Lagesen, C. J., and Pagán, J., join in this concurrence.
           JAMES, J. pro tempore, concurring.
        I begin by stating that I wholeheartedly join in
Judge Kamins’s excellent concurrence. As to the majority,
I agree that “lewd exhibition,” as part of the definition of
“sexually explicit conduct” found in ORS 163.665(3), must
involve an objective component. I further agree that, to the
extent our previous decisions have held otherwise, they
must be disavowed. As such, I join the majority in reaching
     3
       See Amanda Frost, The Limits of Advocacy, 59 Duke L J 447, 486 (2009)
(“[C]ourts certainly have the power, if not the obligation, to raise a constitutional
infirmity overlooked or ignored by the parties. In short, the fact that courts cannot set their agenda does not mean that litigants can co-opt them into applying
unconstitutional laws to achieve unconstitutional purposes.”).
Cite as 

 (2023)                              751

its result. I depart, however, in two respects. First, I do not
join the majority in advocating for the use of the Dost factors, for the reasons set forth below. Second, I write separately to emphasize a point not discussed by the majority,
but one that has been the focus of a fair amount of the parties’ arguments, and one that is particularly important to
my conclusion that principles of stare decisis must yield in
this instance.
                    I. DOST FACTORS
         In legal analysis, few things are as pernicious as
judicially created factor tests. The difficult questions in the
law are usually highly circumstance dependent. Context
drives focus, and what may determine one case, might not
determine another. And to this contextual background, the
lawyers and the court apply human reason and persuasion.
This, too, is contextual. One might approach the same issue,
in two cases, in slightly differing ways because the factual
differences between the cases called for a shift in focus;
and each approach, though different, can be reasonable.
Similarly, different people might think of a complex issue in
slightly different ways, each valid. One power of diversity in
the legal profession is the recognition that diverse perspectives, and diverse approaches to a problem, are an asset, not
a flaw to be mitigated.
         Factor tests take the depth and complexity of human
thought and perspective and replace it with a checkbox form.
Although often couched in language of “non-exhaustive factors,” or “guideposts,” factor tests naturally encourage parties to follow a script: consider A, then consider B, finally
consider C, then decide. Parties, wanting to preserve their
issue, will naturally follow the script, even though it purports to only be a guide. And courts, not wanting to err, will
more often than not hew to the script, lest they be accused
of overlooking a factor.
         When a court announces a factor test, we see litigation shift. Rather than grapple with the primary issue, we
see parties, and appellate courts, resolving discrete issues
with one of the factors. What was meant by a word choice in
factor A? What is the scope of factor B? These opinions start
to dominate the discourse, and soon the complex issue that
752                                     State v. Parra-Sanchez

spawned the factor test is lost to time, replaced only with a
jurisprudence of the test itself. The forest is gone; only trees
remain.
        Courts have echoed my concerns about factor tests
generally in the context of the Dost factors. As the Supreme
Court of Tennessee noted,
        “Courts that have approved application of the Dost factors, even with the typical disclaimers that they are useful
   but non-exclusive, have at times ended up engaged in an
   extended discussion of each Dost factor, even those that
   were not applicable, and have become bogged down in disputes over what a given Dost factor means and how to apply
   it.”
State v. Whited, 

 (Tenn 2016).
         Rather than creating predictability, the disputes
around the Dost factors have resulted in fractured courts
and split circuits on issues from how many factors constitute
a threshold, to what the factors themselves mean. See, e.g.,
United States v. Wolf, 890 F2d 241, 245 & n 6 (10th Cir 1989)
(“We do not hold that more than one Dost factor must be
present ….”); United States v. Villard, 885 F2d 117, 122 (3d
Cir 1989) (“Although more than one factor must be present in
order to establish ‘lasciviousness,’ all six factors need not be
present.”); Whited, 

 (“The sixth Dost factor,
whether the depiction is intended to elicit a sexual response
in the viewer, has been the subject of significant controversy.
Indeed, courts are sharply split on how the sixth Dost factor should be applied.” (Footnote omitted.)). As at least one
commentator has noted, “the Dost test has produced a profoundly incoherent body of case law.” Amy Adler, Inverting
the First Amendment, 149 U Pa L Rev 921, 953 (2001).
         For many courts, litigating Dost has eclipsed the
statute at issue. Accordingly, the Seventh Circuit has
advised lower courts not to rely on Dost: “We take this
opportunity … to discourage the use of the Dost factors;
they are unnecessary in light of the clear statutory definition of the term ‘sexually explicit conduct.’ ” United States v.
Price, 

 (7th Cir 2014). So, too, the Tennessee
Supreme Court held that the Dost factors risk inappropriately supplanting the essential task at hand: statutory
Cite as 

 (2023)                                 753

interpretation. “[M]any seem inexorably drawn to using
Dost as a lasciviousness definition or a test of sorts, with
lengthy analysis and weighing of each ‘factor’ and debate
regarding different courts’ interpretation of specific factors.
This often ends up pulling them ‘far afield’ from the task at
hand, namely, applying the statutory language to the materials at issue.” Whited, 

.
          For these reasons, I do not join the majority in its
favorable treatment of the Dost factors. However, because
those factors are not essential to the majority’s result, I
join the rest of the majority analysis without reservation.
The remainder of my writing is to emphasize a point the
majority did not address, but one critical for me. As I will
explain, on the issue this case presented—offenders acting
to view others in states of undress, in locations where there
is a reasonable expectation of privacy, for their own sexual
gratification—the legislature has repeatedly criminalized
that conduct in the context of ORS 163.700, the invasion of
privacy statute. I begin by setting out the history of ORS
163.700, after which I will turn to how we are to utilize that
history in the question before us, which involves application
of a different statute, ORS 163.670.
                       II. ORS 163.700
         ORS 163.700 criminalizes the invasion of personal
privacy. In its current form, it reads:
      “(1) Except as provided in ORS 163.702, a person commits the crime of invasion of personal privacy in the second
   degree if:
      “(a)(A) For the purpose of arousing or gratifying the
   sexual desire of the person, the person is in a location to
   observe another person in a state of nudity without the consent of the other person; and
      “(B) The other person is in a place and circumstances
   where the person has a reasonable expectation of personal
   privacy; or
      “(b)(A) The person knowingly makes or records a photograph, motion picture, videotape, or other visual recording of another person’s intimate area without the consent of
   the other person; and
754                                     State v. Parra-Sanchez

     “(B) The person being recorded has a reasonable
  expectation of privacy concerning the intimate area.
      “(2)   As used in this section and ORS 163.701:
     “(a) ‘Intimate area’ means nudity, or undergarments
  that are being worn by a person and are covered by clothing.
      “(b) ‘Makes or records a photograph, motion picture,
  videotape or other visual recording’ includes, but is not limited to:
      “(A) Making or recording or employing, authorizing,
  permitting, compelling or inducing another person to make
  or record a photograph, motion picture, videotape or other
  visual recording.
     “(B) Making or recording a photograph, motion picture, videotape or other visual recording through the use of
  an unmanned aircraft system as defined in ORS 837.300,
  even if the unmanned aircraft system is operated for commercial purposes in compliance with authorization granted
  by the Federal Aviation Administration.
     “(c) ‘Nudity’ means any part of the uncovered or less
  than opaquely covered:
      “(A) Genitals;
      “(B) Pubic area; or
     “(C) Female breast below a point immediately above
  the top of the areola.
      “(d) ‘Places and circumstances where the person has
  a reasonable expectation of personal privacy’ includes, but
  is not limited to, a bathroom, dressing room, locker room
  that includes an enclosed area for dressing or showering,
  tanning booth and any area where a person undresses in
  an enclosed space that is not open to public view.
     “(e) ‘Public view’ means that an area can be readily
  seen and that a person within the area can be distinguished
  by normal unaided vision when viewed from a public place
  as defined in ORS 161.015.
      “(f) ‘Reasonable expectation of privacy concerning the
  intimate area’ means that the person intended to protect
  the intimate area from being seen and has not exposed the
  intimate area to public view.
Cite as 

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       “(3) Invasion of personal privacy in the second degree
   is a Class A misdemeanor.”
ORS 163.700 (2021).
         The legislature first enacted ORS 163.700 in 1997.
Or Laws 1997, ch 697, § 1; SB 1076 (1997), following the
“Savage Tan” scandal. There, the owner of a tanning salon
had surreptitiously videotaped customers undressing. Tape
Recording, Senate Committee on Crime and Corrections, SB
1076, Apr 23, 1997, Tape 84, Side B (statement of Jeff Merrick).
Testimony before the legislature included Multnomah County
District Attorney First Assistant John Bradley’s comments,
who reported that his office could not pursue criminal
charges against the tanning salon owner because no crime
had occurred. Id. (statement of John Bradley).
        Diana Godwin, an attorney representing the victims who also coauthored the bill, remarked on the bill’s
ambitions:
   “[We represent] 10 or 12 women who were victimized in
   the Savage Tan case last year. As you heard from John
   Bradley, Assistant District Attorney of Multnomah County,
   when the District Attorney’s Office looked into this issue
   they found there was no crime on the books under which
   these people could be prosecuted. … I’ve drafted this bill
   working with Senator Stull’s office and working with other
   interested parties. As your counsel said, the bill makes it
   a misdemeanor punishable by one year in jail for a person
   knowingly to make or record a photograph, motion picture,
   videotape, or other visual recording of another person in a
   state of nudity. … And at the time the visual recording is
   made the person being recorded is in a place and circumstances where the person has a reasonable expectation of
   privacy. … And we have defined the circumstances where
   someone does have a reasonable expectation of personal
   privacy, which includes but is not limited to—because
   there are always cases where we have not thought of
   something—a bathroom, dressing room, locker room, tanning booth, or any other place where a person undresses in
   an enclosed space that is not open to public view.”
Tape Recording, Senate Committee on Crime and Corrections, SB 1076, Apr 28, 1997, Tape 87, Side A (statement of
Diana Godwin).
756                                      State v. Parra-Sanchez

        In further committee discussions, Legislative
Counsel Nikola Jones emphasized the need for the amendments to encompass partial nudity and envisioned a scenario where,
  “[t]hinking from a prosecutor’s point of view, when trying
  to charge someone who is photographing people who are
  in a restroom there is an argument that can be made that
  your genitals are exposed at one point or another when
  you’re about to go to the bathroom or going to the bathroom
  or just finished and robing again. So, there is an argument
  that can be made …. A person filming a person going to
  the bathroom can be covered the way it is written, especially if we make it clear in the legislative history …. But
  I don’t think there’s anything wrong with making it explicitly clear.”
Tape Recording, Committee on Crime and Corrections, SB
1076, May 7, 1997, Tape 104, Side A (statement of Nikola
Jones).
        The 1997 statute only prohibited the film or photographic recording of a person described under the circumstances set out in the law and not the in-person observation
of someone. The 2001 amendments to invasion of privacy
expanded the proscribed conduct to include in-person
observation:
      “(1) [A] person commits the crime of invasion of personal
  privacy if: … [f]or the purpose of arousing or gratifying
  the sexual desire of the person, the person is in a location
  to observe another person in a state of nudity without the
  consent of the other person; and … [t]he other person is in
  a place and circumstances where the person has a reasonable expectation of personal privacy.”
Or Laws 2001, ch 330, § 1.
       Senator Lenn Hannon sponsored Senate Bill
625, whose legislative aide outlined the purpose of the
amendments:
     “Senate Bill 625 was drafted … to fill in a legal loophole having to do with person’s privacy …. ORS 163.700
  speaks to the crime of the person who knowingly records
  another person in a partial state of nudity without that
  person’s consent, but if that same person uses a recording
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  device like a camera to zoom in and out simply to observe
  but doesn’t record and they’re doing it for the same purpose, for sexual gratification, the statutes are silent. SB
  625 would make it a class A misdemeanor just like it would
  if you were recording or taking photographs or video camera. … The reason I see no difference personally whether
  you actually catch that individual on tape, still photo, video
  camera, whether you’re looking through a peephole, using
  some kind of magnifying glass, you’re still there for one
  reason only—sexual gratification—whether it is taped or
  not taped. The new statute if passed would place observation in the same category. This doesn’t pertain to the open
  shower area of something like at the YMCA with people
  walking back and forth and observing many different
  states of nudity. This is clearly for people who are being
  observed in a closed area and who have a reasonable expectation of privacy like a bathroom, a dressing room, a tanning booth. Any area where you shut the door and are sure
  that it is a private personal area and not open to people
  viewing you. Other statutes speak to public indecency and
  private indecency as a crime. Whether a person exposes
  him or herself to another person. But the statutes are silent
  to this particular issue.”
Tape Recording, Senate Committee on Judiciary, SB 625,
Mar 6, 2001, Tape 53, Side A (statement of Dixie Hannon).
         The Judiciary Committee discussed circumstances
in which a person might incidentally observe another person
nude within an enclosed space such as a communal shower
at the gym. 

 (comments of Chairperson Sen John Minnis).
It emphasized the requirement that the observation be for
the purposes of sexual gratification to address that problematic scenario. In response, Ingrid Swenson of the Oregon
Criminal Defense Lawyers Association commented:
  “The original statute does not require an intent to arouse;
  it’s simply the recording in a private place of a person’s
  nudity. So, this would be a significant change of direction
  because it does require the intent to gratify or arouse, and
  I think that is a good limitation to make this behavior
  criminal. And simply requires the knowing observation. I
  think I know what it’s probably directed at: someone with
  intent observes a person for the purpose of gratification.
  … It’s probably not directed at people who more or less
  inadvertently observe nudity. Unfortunately, I think the
758                                      State v. Parra-Sanchez

  bill could be applied to those people. And there a couple of
  categories of people that you might think about. Spouses,
  for example, or people engaged in intimate relationships.
  These people ought to be excluded. … You don’t want to
  make it criminal for one to observe the other. … When
  one spouse might have thought there was consent to this
  type of observation and because the other spouse is angry
  says they want him prosecuted. … If there’s a teenager
  who is in his own apartment and has a neighbor and maybe
  the curtains are closed and the wind blows them open and
  here is a teenage boy looking at this vision of a nude person,
  he might be sexually aroused and he might not go away,
  but he has not created the circumstance, it sort of created
  itself. One way to exclude that kind of circumstance is to
  say the person had to knowingly place themselves in a position to observe. … This is a suggested limitation. … I
  would add ‘places oneself in a position to observe and does
  observe.’ ”

Tape Recording, Senate Committee on Judiciary, SB 625,
Mar 6, 2001, Tape 54, Side A (statement of Ingrid Swenson).
        On the floor of the Senate, one senator recounted
her own experience with a voyeur who intruded into the
enclosed space of her home, violating her privacy:
  “I guess for the first time in my adult life I have to say
  something that is both personal and private. You might
  think this is a simple bill; it is not a simple bill. As a young
  woman growing up, my fears have lasted with me until this
  day. Because growing up in Louisiana, we used to have
  peeping toms who on several different occasions would
  break into the windows of women. And I was such a victim.
  And today it is hard for me to stay in my home alone or
  any place else. So, I want you to know this is a very, very
  important bill. And if you’ve never been the victim of this
  kind of activity, you don’t know what it is. It’s personally
  violating and personally very frightening and it can last
  you for a lifetime. Today is the first day this had been triggered for me and the first day I have ever spoken out about
  it. And for this woman in Ashland, I join her in this cause
  and in this fight. And to let you know how psychologically
  unsettling this can be. I urge your support.”

Tape Recording, Senate Floor Session, Apr 3, 2001, at
1:24:46 (comments of Sen Margaret L. Carter).
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         When the bill reached the floor of the House,
Representative Carl Wilson reiterated the understanding
that the amended statute would provide broad coverage
for instances where an offender had breached a barrier to
observe the victim in an enclosed space with the intention of
gratifying his or her sexual desire:
   “A very simple bill but a good bill. Back in 1997 the legislature passed a bill that created the crime of invasion of
   personal privacy, and that bill was brought about due to
   the fact that owners of tanning bed establishments and so
   forth were drilling holes in those tanning booths to film
   people who had an expectation of privacy. This bill takes
   care of a loophole in that law; this will allow you to charge
   someone with invasion of personal privacy whether or not
   they are videotaping—if they are there just looking.”
Tape Recording, House Floor Session, SB 625, May 21, 2001,
Tape 136, Sides A and B (comments of Rep Carl Wilson).
         The legislature revisited invasion of privacy again
in 2009 in order to ensure the protection of children, who
had been excluded in the 1997 statute. Or Laws 2009, ch 877,
§ 1. Our decision in State v. Mayes, 

, 

 (2008), prompted the changes, where we determined
that the definition of nudity set out in ORS 163.700(2)(b)
applied only to post-pubescent people. 

. In Mayes,
the defendant “arranged to have small cameras concealed in
restrooms in his workplace and in a doctor’s office that had
hired defendant’s business to install telecommunications
equipment.” 

 The defendant captured a number of adult
women and two young girls—aged nine and seven—using
the restrooms. 

 After examining the relevant legislative
history and the language of the statute in context, we concluded that that victim had to be post-pubescent to be covered by the then-existing statute.
        The Mayes case figured prominently in the discussions of the 2009 amendments, especially the legislative
imperative for the invasion of privacy statute to protect children. Wasco County District Attorney Eric Nisley recounted
his experience trying the Mayes case:
   “One of the most important parts of this bill in my estimation is changing the definition of what nudity means.
760                                      State v. Parra-Sanchez

  Defense counsel brought this up in the trial of Ronnie
  Mayes. I have provided a printout from the Oregonian. As
  far as I know this is the only case of this kind that has
  gone fully to a jury trial. I tried it myself. It was a Class A
  misdemeanor. He was convicted of six counts. Two of the
  counts involved two very young girls who were filmed going
  to the bathroom. The camera was small—it was placed in a
  garbage can inside a toilet paper roll. The camera itself was
  smaller than the penny I’m holding. What happened there
  was even though you could clearly see the genitals of the
  two girls on the computer that Mr. Mayes had, the Court of
  Appeals found that because we were not addressing post-pubescent genitalia only and those convictions were overturned. We’re urging the state and committee to change
  that—to make the filming of any genitalia or the other
  parts described there [they’re?] criminal in this sense. The
  other aspect that has changed is making this a Class C felony and making it a sex offense. It’s hard for me to understand any argument why you would secretly film someone
  defecating or urinating and where this wouldn’t have a sexual intent. [Mayes] has a gross amount of pornography in
  his business, one of the locations where he filmed, including
  pornography of … potty cams … this is something that
  sexually excited him. He was very aroused by this type of
  activity …. This person is not a sex offender even though
  he has been convicted of this. It’s difficult to imagine a scenario where someone would want to view that …. This is
  a huge community impact, especially in smaller communities like the Dalles where I am from. He filmed in three or
  four different locations—one of which was a doctor’s office
  …. I think I had calls for three days.”
Audio Recording, House Committee on Judiciary, HB 2477,
Feb 24, 2009, at 1:26:00 (statement of Eric Nisley).
         Nisley recounted other experiences to the committee
to emphasize the difficulty in seeking convictions for invasion of privacy:
  “We had a guy that owned a restaurant in the Dalles
  who set up a little storeroom adjacent to the women’s, his
  employees’ bathroom, and he was able to stand on boxes
  and watch as his employees used the restroom. I don’t particularly think that sounds very interesting. He did. We
  didn’t have enough evidence to prove that case. We knew he
  did it. He was caught in the room, and there was the hole
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   there. The reason I bring that up is it’s unusual to bring
   that case to court.”

 at 1:31:49.
         The committee also heard testimony from the parent of one of Mayes’s underage victims, who was filmed wiping her bottom:
   “It has been years but still gets to me. So, at one time we
   thought we had him. A year ago, we found out we didn’t. It
   was hard. I was brought in to identify the victims because
   I was the employee of Ronnie Mayes. … One of the first
   shots was my daughter. And when you imagine videotaping somebody and how we explained to our daughters at
   that time that she was videotaped, they imagine running
   through fields with flowers in their hands. But what we
   saw was their bottoms—them wiping themselves. And it’s
   because of the technology this man was able to do it. And
   our law needs to update to the technology we have. Last
   October we found out that because my children had not
   reached puberty, the charges were dropped against him.
   … We need to protect the children, and this is excluding
   children because of one word.”

 at 1:33:33 (statement of Jean Beckley).
         The Judiciary Committee’s discussions centered on
a circumstance that some members referred to as the “bathtub scenario” in which a family member would be criminally
liable if he or she innocently photographed a nude child
taking a bath. Vice-Chair Representative Judy Stiegler
described the concern and proposed a solution for addressing it:
   “With respect to the baby in the bathtub types of scenarios,
   I had in-depth discussion with legislative counsel on this,
   Josh Nasby, and what we ultimately decided is that it’s
   going to be very difficult to try to put a box around this, so
   what we ended up doing was probably the only thing under
   the circumstances we could do, which was put a laundry
   list of people excluded for taking these type of pictures.
   You’ll see the long list that it’s been expanded from mother
   and father and siblings and grandparents and uncles and
   first cousins by blood, adoption, or marriage. Notice there
   is an ‘and’ there. … These pictures need to be taken for
   the purpose of arousing or gratifying a sexual desire. Be
762                                      State v. Parra-Sanchez

   sure and read that in the conjunctive. It’s not an ‘or.’ These
   pictures are taken by one of these people and done for one
   of these types of purposes.”
Audio Recording, House Committee on Judiciary, HB 2477,
Apr 23, 2009, at 00:3:07 (comments of Rep Judy Stiegler).
         Ultimately, the legislature resolved that particular
family members would be exempt from ORS 163.700(1)(a)
(2009) provided that a recording was not made for the purposes of sexual gratification. ORS 163.702(2)(a), (b) (2009).
        At the Joint Subcommittee on Public Safety, after
concerns were expressed about the fiscal impact of elevating
the crime to a felony and requiring sex-offender registration,
Representative Stiegler reiterated that the bill’s primary
intention was to ensure the protection of pre-pubescent
children:
   “We’re not talking about family pictures or naked babies
   in the bathtub. … We are talking about taking pictures
   meant to arouse or gratify sexual desire. … We are recommending to remove the enhancement to a C felony.
   … We’re talking about the potty cams and those types
   of things. It’s the pictures of pre-pubescent children that
   are not being protected. … The primary situation is Rep.
   Huffman’s intention to address pre-pubescent children
   being protected. … That’s the crux of what we feel is
   important.”
Audio Recording, Joint Committee on Public Safety, HB
2477, May 13, 2009, at 00:52:25 (comments of Rep Judy
Stiegler).
         In 2015, the legislature was yet again faced with
the problem of invasive, harmful conduct that fell outside of
the invasion of privacy statute’s ambit. A voyeuristic practice
called “upskirting” left police frustrated that they could not
pursue a criminal investigation because Oregon’s law did not
forbid the conduct. In one instance, the Oregonian reported
that “a man crouched down in a Target aisle and snapped
photos up a 13-year-old girl’s skirt.” Emily E. Smith, Taking
Photos Up Girl’s Skirt at Beaverton Target: Appalling, But
Not a Crime, Judge Rules, Oregonian (Feb 5, 2015), https://
www.oregonlive.com/beaverton/2015/02/taking_photos_up_
girls_skirt_a.html. The paper reported that the girl “didn’t
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notice him stick his cellphone under her skirt, but someone else did.” 

 The defendant in that case was acquitted
on two counts of invasion of privacy, among other charges,
because the Washington County Circuit Court determined
that the conduct fell outside of the conduct that the statute
proscribed because it occurred in a public place and undergarments covered the child’s genitalia. Id.; State v. Patrick
Joseph Buono, Case No. C140453CR.
         The legislature amended ORS 163.700 to include
recording the “intimate area” of a person, which means
“nudity, or undergarments that are being worn by a person and covered by clothing.” Or Law 2015, ch 321, § 1.
Representative Peter Buckley, the bill’s cosponsor, reported
to the committee that a teacher in Albany whose student
had secretly captured a photograph of the undergarments
under her skirt while she was teaching in the classroom
prompted legislation. Audio Recording, House Committee on
Judiciary, HB 2596 and HB 2356, Feb 18, 2015, at 00:02:09
(comments of Rep Peter Buckley).
         In addition to expanding invasion of privacy to
prohibit photographing an intimate area such as under a
person’s garments in public, the committee also heard testimony about a companion bill, HB 2356, to elevate invasion
of privacy to a felony under certain circumstances. Or Laws
2015, ch 645, § 2. Denyc Boles, a former representative,
described the intentions behind creating invasion of privacy in the first degree, which a stepfather prompted, who
had been secretly recording his stepdaughter, among other
women:
   “[The stepfather] left a hidden camera in the bathrooms
   and bedrooms of these women and stored the images on the
   thumb drive. He is spending nearly four years in prison, but
   not because of the images in the videotaping but because
   of the three counts of burglary. There were 14 counts of
   invasion of privacy—just for Ashley. There are other recent
   cases in Happy Valley and Beaverton. … Currently, this
   is a misdemeanor regardless of the age of the victim. … I
   introduce this bill in order to move Oregon’s laws forward to
   keep up with the rapidly developing technology. … People
   that intentionally place hidden cameras in bedrooms and
   bathrooms and who capture those images forever should be
764                                       State v. Parra-Sanchez

   charged appropriately. … House Bill 2356 would make the
   invasion of privacy a Class C felony … this crime needs
   to be reclassified; the predatory nature, the sexual distinctions, the potential image longevity should be reflected in
   its classification. … With increasing technology, Oregon’s
   current statute is inadequate for this crime. The images
   have the potential to be in cyberspace forever. The victim’s
   privacy was not simply compromised in a place where they
   should feel the safest, their bedroom and bathroom, but
   continues to be compromised in the future.”
Id. at 4:38 (statement of Denyc Boles).
        The victim also testified that her stepfather had
assisted her in filing police reports for stalking that was
occurring over the internet; she later discovered that he was
the stalker after viewing several videos from hidden cameras in her home that “were placed in our bedrooms and
bathrooms without us victims knowing.” Id. at 8:41 (statement of Ashley Buckle).
         Another witness described how her underage
daughter, who also testified before the committee, had been
secretly recorded over the course of four years while she
undressed and showered during stays at a family friend’s
beach house:
   “He bought a small recording device the size of a car fob to
   secretly tape her as she dressed from showering. He continued to do this ritual over the course of four years. … Then,
   he decided to record her in her bedroom here in Portland—a
   place where you would expect complete privacy. Luckily,
   the camera was discovered after a few months of recording
   and ultimately this is what led to his arrest, but the ways
   our laws are currently written would have given him a slap
   on the wrist. … It was only because he was gutsy enough
   to place a camera in our own home, he was charged with
   two counts of burglary. … He entered our house with the
   intent to commit a crime. … To add insult to injury he not
   only doesn’t have to register as a sex offender, but when he
   is released from prison, he will continue to be our neighbor
   four houses down from us.”
Id. at 00:53:00 (statement of Katie Reed).
        Notably, the legislature’s 2015 enactment of invasion of privacy in the first degree did not encompass
Cite as 

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in-person observation of a nude victim for the purposes of
arousing or gratifying the sexual desires of the person looking in a place where there is a reasonable expectation of privacy. That offense remains classified as second-degree invasion of privacy unless the provisions of ORS 163.701(1)(b)
are met, which require previous convictions for related conduct. Indeed, the legislature could have chosen to elevate
in-person observation to a felony, but it did not. Furthermore,
it could have chosen to elevate the in-person observation of a
child to a felony, but it did not.
         The history set forth above is but a fraction of what
could have been written, all of it consistent in its showing
that the legislature has repeatedly considered this type
of conduct—viewing others in a state of undress, in areas
where they had a reasonable expectation of privacy like
a bedroom or a bathroom, for sexual gratification—in the
context of ORS 163.700. And the legislature repeatedly considered that conduct in situations involving alterations to
the environment, such as drilling holes or installing hidden cameras, alterations far more significant than opening
the doors of bedrooms or bathrooms, or pulling the shower
curtain back, as we have here. It is rare, in fact, to find a
legislative history so directly on point. The question, then,
is what do we do with this history?
     III.    THE PRIMACY OF LEGISLATIVE INTENT
        In the two competing theories of statutory interpretation—textualism vs. intentionalism, Oregon has clearly
chosen a side: We are an intentionalist state.4 The Oregon
    4
      In using the term “intentionalist” I recognize that intentionalism is
sometimes seen as a subset of a more general “purposivism.” Purposivism,
broadly, “reminds the judge … that it is in Congress, not the courts, where
the Constitution places the authority to enact a statute.” Stephen Breyer, Our
Democratic Constitution, 77 NYU L Rev 245, 266 (2002); see also Peter L. Strauss,
Essay, The Courts and the Congress: Should Judges Disdain Political History, 98
Colum L Rev 242, 252-53 (1998) (arguing that purposivism makes courts the
most effective agents of the legislature).
    Some have sought to carve out intentionalism from purposivism by narrowing intentionalism to solely the statute’s enacting legislature, disconnected from
the more “general aim or policy which pervades a statute.” Archibald Cox, Judge
Learned Hand and the Interpretation of Statutes, 60 Harv L Rev 370, 370-71
(1947); see John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum
L Rev 673, 677 & n 11 (1997) (discussing this distinction); see also Richard A.
766                                              State v. Parra-Sanchez

legislature has mandated that “[i]n the construction of a
statute, a court shall pursue the intention of the legislature.”
ORS 174.020 (emphasis added). In furtherance of ascertaining that legislative intent, we have many tools at our
disposal.
         We begin by looking to the text of the statute in context. A statute’s “context” includes both its immediate context—the “phrase or sentence in which the term appears”—
and the “broader context,” which includes other statutes “on
the same subject.” State v. Stamper, 

,

, rev den, 

 (2005). It is incumbent upon
us to not isolate statutes, but to read them in pari materia,
that is, as part of a unified set of policy choices made across
the statutory landscape on a similar subject. State v. Carr,

, 

 (1994).
         Context of a statute includes prior versions of the
statute and related statutes. State v. Webb, 

,

 (1996). It also encompasses prior judicial construction of the statute, and related statutes. Young v. State
of Oregon, 

, 

, rev den, 

 (1999). Similarly, subsequent changes to a statute are a
relevant consideration in determining legislative intent. See
Halperin v. Pitts, 

, 

 (2012) (“Of
course, the new subsections adopted in 2009 do not provide
‘context’ for the legislature’s enactment of ORS 20.080(2)
some 50-odd years earlier. But that does not mean that they
are irrelevant.” (Citation omitted.)). Nor are subsequent
changes to related statutes irrelevant—they too are a pertinent consideration in divining the broader legislative intent,
just as we can consider the legislative history of related statutes. Goodyear Tire & Rubber Co. v. Tualatin Tire & Auto,

, 

 (1995), modified on recons,

, 

 (1997).

Posner, Statutory Interpretation—in the Classroom and in the Courtroom, 50
U Chi L Rev 800, 817 (1983) (“The judge should try to think his way as best he
can into the minds of the enacting legislators and imagine how they would have
wanted the statute applied to the case at bar.”).
    As should be clear from my approach in this case, I believe Oregon tacks
closer to purposivist intentionalism—a narrowed intentionalism merely being
textualism lite. While this belief clearly animates my concurrence in this case, a
fuller academic discussion I save for another day.
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 (2023)                                   767

         When a statute is subject to any plausible ambiguity, our search for legislative intent does not end with the
words of the statute. As the Oregon Supreme Court has recognized on many occasions, the words of a statute are not
the finite universe of consideration for, when read literally,
words can be in conflict with the more general policy of the
legislature, and it is incumbent on this court to give effect to
the policy, not the literal application of language:

   “In construing a statute, courts must refuse to give literal
   application to language when to do so would produce an
   absurd or unreasonable result. Rather, courts must construe the statute if possible so that it is reasonable and
   workable and consistent with the legislature’s general policy.”

McKean-Coffman v. Employment Div., 

, 

, adh’d to on recons, 

, 

 (1992)
(citing Pacific P. & L. v. Tax Com., 

, 

 (1968) (emphasis added)). See also Beck v. Aichele, 

, 

 (1971) (“It is a fundamental canon
that ‘… [i]t is the duty of the court in construing a statute
to ascertain the intention of the Legislature and to refuse to
give literal application to language when to do so would produce ‘an absurd or unreasonable result,’ but, rather, ‘to construe the act, if possible, so that it is a reasonable and workable law and not inconsistent with the general policy of the
Legislature.’ ”); Mallon v. Employment Div., 

, 

 (1979) (“[I]n determining the meaning of
the words used we can properly consider the legislative purpose and construe the language to reasonably accomplish
this purpose. We may also presume the legislature did not
intend the harsh results that a literal application of the statutory terms would seem to require.”).

         As the foregoing illustrates, the tools for statutory
interpretation are multifold, and none is an island. When
we become overly focused on textual choices, detached from
context and legislative history, our interpretive process has
become too narrow. Similarly, if we determine that the legislature has used wide-ranging, expansive, or “broad” terminology, that represents the beginning of our work, not the
end.
768                                     State v. Parra-Sanchez

         The interpretation of a statute is not a formula. The
methods and approaches we have created are but tools to
an end, not an end of themselves. Ultimately, our fidelity
cannot be to the mechanical application of a method, but to
the pursuit of our ultimate objective: furthering legislative
intent. As we have said:
   “In the final analysis, we acknowledge that this statute
   cannot be interpreted merely by the mechanical application
   of well-known principles of statutory construction. As we
   have endeavored to demonstrate, depending on which rules
   are given emphasis, different readings of the relevant statutes may be justified. And the law neglects to supply a rule
   for determining which rules should prevail. Ultimately, our
   interpretation of the statute is a judgment call based on our
   best estimation of what the legislature intended.”
Stamper, 

.
                     IV. APPLICATION
         In applying the legislative history of ORS 163.670
and ORS 163.700, in conjunction with proper statutory
interpretive methods, we must begin with a core truth: It
is the role of the legislature, not the executive or judicial
branches, to declare which acts are so offensive to society
that they should be criminalized and to affix the corresponding severity, and level of penalty, for that act. State v. Smith,

, 

 (1929) (“The power to declare
what punishment may be assessed against those convicted
of crime is not a judicial, but a legislative, power, controlled
only by the provisions of the Constitution.”). When we consider a motion for judgment of acquittal, we are necessarily
engaged in statutory interpretation—asking if the evidence,
viewed in the light most favorable to the state, falls within
the universe of conduct the legislature contemplated when
it enacted not only the specific statutory crime, but as it has
constructed over time a comprehensive criminal statutory
landscape that ascribes relative levels of severity and attendant punishment to conduct.
        In this case, we are faced with two statutes. As
detailed in Carey-Martin, the legislature enacted ORS
163.670 to combat the production of child pornography. State
v. Carey-Martin, 

, 

 (2018)
Cite as 

 (2023)                                  769

(James, J., concurring). In that case, we considered the issue
of sexting, noting that the “legislature has never identified
sexting as a social ill that it set about to deliberately criminalize, or affix a penalty to.” Id. at 673. But, we noted:
      “To be sure, that behavior unquestionably can fall under
      the wording of ORS 163.670, but it does so not through
      deliberate legislative choice, but through historical happenstance. ORS 163.670, a law repeatedly enacted to target
      child pornography perpetrated as abuse against children,
      now can be read to criminalize voluntary sexting among
      young people due to the evolution of technology and social
      norms, not purposeful legislative action.”
Id.
         This is not Carey-Martin. In its original enactment
of ORS 163.760, and in all subsequent amendments, there is
not a single instance from the legislative record that shows
the legislature, which sought to combat child pornography,
ever envisioned the conduct at issue here as falling under
the ambit of the statute. And while there is absolutely no
example of the legislature ever contemplating the application of ORS 163.670 to the circumstances present in this
case, the legislative record is replete, and explicit, that the
legislature has repeatedly conceptualized this behavior
under ORS 163.700, invasion of personal privacy. The very
reason ORS 163.700 was enacted was because the legislature understood that, in 1997, no current statute criminalized the conduct, including ORS 163.670.
         The Oregon legislature has, for many years—1997,
2001, 2009, and 2015—held public hearings, received testimony, debated, and enacted legislation to respond to factual circumstances nearly identical to those we have here:
someone acting to enable the viewing of another, in a state
of undress, in an area where they had a reasonable expectation of privacy, for sexual gratification. Never, once, over
any of those years did the legislature ever express the belief
that this conduct was punishable under ORS 163.670. There
is no indication the legislature intended to leave it to prosecutors, or the courts, to choose between ORS 163.670 or
ORS 163.700, with each being equally applicable. Unlike
in Carey-Martin, where sexting arguably came under ORS
770                                   State v. Parra-Sanchez

163.670 by happenstance, and not “purposeful legislative
action,” here, there is explicit “purposeful legislative action”
criminalizing defendant’s conduct under ORS 163.700 and
affixing a severity of misdemeanor status, and an attendant
penalty of one year in jail. To the extent that ORS 163.670
has become a viable prosecutorial choice for this conduct, it
is as a result of our iterative case law.
         And here I quibble with the majority when it states
that “[o]ur goal in interpreting a statute is to discern the
intent of the legislature in enacting the statute.” Indeed,
that is often our task. But sometimes we are tasked with
more. ORS 174.020 demands that we “pursue the intention
of the legislature.” ORS 174.020 does not state “the legislature enacting the statute,” it states “the legislature.” Many
times, perhaps even most times, the intent of the enacting
legislature is the intent of the legislature, but sometimes we
are called upon to place a specific statute within the context of the total statutory scheme the legislature, as a body
existing across time, has created. That is the case here. For
me, on the question of the application, on these facts, of ORS
163.670, the legislative history of ORS 163.700 answers the
question in pari materia.
         If we adhere to our mandate of intentionalism over
textualism, we lack the authority to approach the question of
ORS 163.670 with blinders on—whistling past ORS 163.700,
even though it is a different statute, a subsequent sitting
of the legislature enacted. Without question, the legislature can enact duplicative statutes. But we do not presume
it does so; quite the opposite, our presumption is that the
legislature does not. The presumption against the legislature enacting duplicative, yet divergent, criminal penalties
is necessary to avoid a host of problems. “For a statute to
attach criminal penalties to conduct, ‘[t]he terms of a criminal statute must be sufficiently explicit to inform those who
are subject to it of what conduct on their part will render
them liable to its penalties.’ ” State v. Graves, 

, 

 (1985). In addition to the requirements for
notice, a criminal statute must not be so vague as to allow
“a judge or jury unbridled discretion to decide” what conduct to punish. State v. Cornell/Pinnell, 

, 

 (1987). “A law that gives such unbridled discretion
Cite as 

 (2023)                             771

to judges and juries offends … the principle against standardless and unequal application of criminal laws embodied
in Article I, section 20, of the Oregon Constitution.” State v.
Plowman, 

, 

 (1992), cert den, 

 (1993).
         Here, the sole reason ORS 163.670 and ORS 163.700
both became potential prosecutorial charges on these facts
is due to our case law, not legislative intent. Any overlap is
our creation, not the legislature’s. On questions like these,
we are but stewards of the legislature’s intent. Authority is
not given to the steward to deny the return of the king, and
so, too, when iterative case law has developed our interpretation of one statute over time to reach a point where it now
stands irreconcilable with the broader statutory framework
the legislature envisioned, it is not our place to leave it to
the legislature, or the Oregon Supreme Court, to fix it. In
such an instance, barriers we may have erected through our
court-created common law to revisiting precedent, or reconceptualizing an issue, must necessarily yield to our statutory mandate to “pursue the intention of the legislature.”
ORS 174.020.
        Accordingly, I respectfully concur.
        POWERS, J., dissenting.
         The majority opinion could be viewed as a subtle
but significant shift in the role and function of this court.
The majority opinion could instead be responding to a case
that presents extraordinary circumstances that justify a
departure from the traditional adversarial system of justice
where the parties frame the issue to be decided by the court.
Unfortunately, we do not know the precise reason or reasons why the majority opinion felt it was necessary to tread
on ground that was not raised in the opening briefs. That
is especially concerning because this case involves a question of statutory interpretation, and the legislature has not
altered or modified the statutory framework in response to
our prior decisions that the majority opinion now disavows.
The opacity surrounding when the court will dispense with
the parties’ framing of the issues, silently disregard prudential rules of appellate procedure, and revisit statutory
772                                  State v. Parra-Sanchez

interpretation decisions based on a constitutional challenge
that we raised ourselves leads me to write separately.

         Although defendant challenges the denial of his
motions for judgment of acquittal on four counts of using a
child in a display of sexually explicit conduct, ORS 163.670,
and one count of attempted use of a child in a display of sexually explicit conduct, ORS 163.670 and ORS 161.405, he did
not disagree with existing case law describing how a factfinder determines whether there was sufficient evidence of a
“lewd exhibition” for purposes of those crimes. Defendant’s
opening brief did not ask us to revisit any of our prior decisions, much less carry the burden to prove that any of our
prior decisions are “plainly wrong” as described by State v.
Civil, 

, 

 (2017). See also Dept.
of Human Services v. K. W., 

, 

(2020), rev den, 

 (2021) (explaining that “it is
insufficient for a prior decision to be merely wrong; it must
be ‘plainly wrong,’ ” which is a “rigorous” standard that is
“satisfied only in exceptional circumstances”). Starkly put,
although defendant did not ask us to revisit whether “lewd
exhibition” should be measured on a subjective basis—as
described by the cases that we overrule or disavow today—
the absence of that advocacy by defendant in the opening
brief was no barrier for the majority opinion to adopt an
objective standard. This approach, in my view, runs contrary
to the adversarial process, which “functions most effectively
when we rely on the initiative of lawyers, rather than the
activism of judges, to fashion the questions for review.” New
Jersey v. T.L.O., 

, 

, 

 (1984) (Stevens, J., dissenting from an order directing reargument). Moreover, because the majority opinion’s
explanation for why it exercised its discretion to decide the
case on an issue that defendant waived—by not including
in his opening brief—is inadequate in my view, especially
considering that this is in an area of statutory construction,
I respectfully dissent.

        I begin where there is common ground. I agree
with the observation in the majority opinion that defendant
assigned error to the trial court’s denial of his motions for
judgment of acquittal on the display and attempted display
Cite as 

 (2023)                                                   773

counts, arguing that the legislature did not intend ORS
163.670 “to apply to the passive observation of a person
undressing.” 324 Or App at 717. It is at that point, however,
where I part ways with the majority opinion. In my view, the
majority opinion does not acknowledge, much less address,
the context of defendant’s argument in his opening brief.
         Defendant made that argument as part of his contention that his conduct did not fall within ORS 163.670
because, in his view, he did not “permit” sexually explicit
conduct, there was no exhibition, and he did not cause the
victim to engage in sexually explicit conduct for a third
party. No part of defendant’s argument in the opening brief
asked us to revisit our prior decisions in State v. Meyer, 

, 

 (1993); State v. Evans, 

, 

 (2001), rev den, 

 (2002); or State v.
Smith, 

, 

, rev den, 

(2014). Indeed, defendant’s opening brief accepted our interpretation of the term “lewd exhibition” articulated by the
en banc court in Meyer that the term meant “exhibition with
the intent of stimulating the lust or sexual desires of the person who views it.” Meyer, 

.1 Concluding his
    1
      In a lengthy footnote, the en banc court approved of the trial court’s jury
instructions and addressed the defendant’s vagueness challenge:
    “The trial court’s instruction that defined ‘lewd’ for the jury is consistent
    with our interpretation:
        “ ‘Lewd—the term lewd or lewd exhibition as used in the law … means
        an exhibition of the [genitals or] anus which is meant to arouse the sexual
        gratification of the person observing the exhibition, or which a reasonable
        person would know to be an exhibition, the purpose of which is to arouse
        the sexual gratification of the person observing the exhibition or photograph.’ (Emphasis supplied.)
    “Similar language was used to instruct on two elements of the crime of dealing in depictions of a child’s sexual conduct:
            “ ‘And five, defendant knew that the photographs depicted [the child]
        in a pose showing her vagina or anus for the purpose of arousing the sexual gratification … or the desire of the defendant or persons to whom the
        photograph would be shown.’
             “ ‘And six, that the depiction of [the child’s] vagina or anus was a pose
        that a reasonable person would know to be a pose taken for the purpose
        of arousing sexual gratification or desire of the person taking the photographs or some other person to whom the photographs would be shown.’
        (Emphasis supplied.)
    “In listing the elements of the crime of using a child in a display of sexually
    explicit conduct, the court also instructed the jury that the state had to prove
    beyond a reasonable doubt that
774                                               State v. Parra-Sanchez

discussion of Meyer, defendant observes in his opening brief:
“In short then, orchestrating or posing a child to engage in
a photo shoot qualifies as an ‘exhibition.’ And obviously if
the photo shoot depicts genitals, then it could also be ‘lewd.’ ”
That acknowledgment is meaningful. The majority opinion does not appear to address the context of defendant’s
argument in the opening brief, nor does it explain why it
refashioned defendant’s argument to decide whether the
legislature intended a lewd exhibition to be assessed subjectively or objectively, which was not raised in the opening
brief.
         The case was argued before a three-judge panel in
the normal course and taken under advisement to decide
the issues framed by the parties. See State v. McDonnell,

, 

 (1999) (explaining that
“[a]djudication … resolves legal and factual issues framed
by litigants …. Courts generally confine their judgments
to the issues that the litigants have raised and submitted
for decision.”). Sometime later, the case was taken into full
court as provided by ORS 2.570(5). And then, the case went
sideways.
         Rather than deciding the case on ground plowed
by the parties’ arguments, we pointed to new territory—
which was at the time unexplored by the parties’ briefing
on appeal—to root our decision. We asked the parties seven
questions, including whether Smith and Evans were plainly
wrong under the Civil standard and “to what extent should
this court consider case law from other states and the federal
courts” when interpreting ORS 163.670. We invited optional
supplemental briefs due 21 days later in anticipation of an

        “ ‘[t]he taking of the photograph or photographs was done to use the photographs to arouse the sexual desire or gratification of the defendant or
        others.’ (Emphasis supplied.)
        “Clearly, a person would not be prevented from producing or distributing pictures of minor children with their genitalia displayed for the purpose
   of having the pictures included in a medical textbook or an issue of, say,
   National Geographic. In those instances, the person would not possess the
   requisite intent that triggers the statutes’ prohibitions. Furthermore, that
   activity is not the type of sexual exploitation or abuse that is targeted by the
   statutes.”
Meyer, 

 n 11 (bracketed text and emphasis by Meyer court).
Cite as 

 (2023)                                                   775

en banc argument about a week after those optional briefs
were due.2

         In response to one of the court’s questions, both
parties engaged in an extended discussion about whether
we should reach new arguments to overrule prior cases
that were not raised in the opening brief. See, e.g., Dept. of
Human Services v. A. F., 

, 

 (2018)
(refusing to consider an argument to overrule prior cases
because that argument was not made in the opening brief
and limiting the court’s analysis to the arguments made in
the opening brief). Despite the parties engaging in that discussion, the majority opinion does little to explain why it
exercised its discretion to reach new arguments to overrule
prior cases that were not included in the opening brief. The
economical explanation speaks volumes.

         Instead of identifying situations when the court
will exercise its discretion to reach an issue that has been
waived by a party on appeal—and explaining why it was
necessary that we do so in this case—the majority simply
notes the “problematic nature of our case law” and invokes
the principle articulated in Stull v. Hoke, 

, 

 (1997) (observing that an appellate court is responsible for identifying the correct interpretation of a statute,
“whether or not asserted by the parties”), to explain why it
felt compelled to reconsider our earlier decisions. 324 Or App
at 718-19. To me, that is not an explanation of why the court
will decide a case on grounds not raised in the opening brief;
rather, it is merely a response that the court has the discretion to do so. Indeed, Stull does not, in my view, stand for
the proposition that we must assess potential constitutional
challenges to our prior statutory interpretation decisions.
Thus, it is difficult to understand what has changed since
our first decision three decades ago, and the majority opinion provides no clues.

    2
      To give that timing context, the opening brief was filed 229 days after the
transcript was deemed settled, and the answering brief was filed 308 days after
the opening brief. Thus, the parties took a total of 537 days to fully brief the case.
The optional supplemental briefing that included a response to the court’s question on whether we should overrule our prior case law was given just over 21 days
to complete (since the briefs were due simultaneously).
776                                    State v. Parra-Sanchez

         Deciding the case on grounds not raised by the parties in the opening briefs without an adequate explanation
sends destabilizing signals. Instead of answering the question posed by the parties, the majority opinion appears to
tell the parties, the bar, and the public that it does not matter what a party asks us to decide. It does not matter that
a party did not ask us to revisit a decision rendered by the
full court 30 years ago. It does not matter that defendant did
not raise a constitutional vagueness challenge to our prior
interpretation of a statutory term. It does not matter that
we affirmatively have declined to revisit our prior statutory interpretation decision and that the legislature has not
taken any action to modify the statute after our first opinion
interpreting ORS 163.670 (or any of our subsequent opinions
relying on that interpretation). The approach taken by the
majority opinion announces that it does not matter because
the court will create those arguments itself. The court will
revisit a settled question of statutory interpretation, create an unraised constitutional challenge, and then answer
that new question by refashioning how a factfinder should
determine whether there is sufficient evidence. Indeed, the
majority opinion appears to stand for the proposition that
the court will revisit its own cases sua sponte (Latin for “voluntarily” or “of one’s own accord”), and the court will do so,
apparently, with little explanation.
         In my view, forging this new ground—as the majority opinion does—calls into question the future use of oftcited prudential principles familiar to appellate practitioners. For instance:
      •   Normally, when a party does not renew an argument on appeal that it advanced before the trial
          court, we do not address it. See, e.g., Trent v. Connor
          Enterprises, Inc., 

, 

 (2019) (recognizing that the defendant did
          not reprise the argument advanced before the trial
          court and addressing the argument the defendant
          did raise on appeal); Gambaro v. Dept. of Justice,
          

, 

 (2012) (observing that, because the plaintiffs did not renew the
          arguments that they made before the trial court,
          the plaintiffs “have presented us with no basis to
Cite as 

 (2023)                              777

        reverse the trial court’s dismissal of those claims,
        whatever their merits were in the trial court”). The
        approach taken by the majority opinion today suggests that a party need not worry about waiving an
        argument because the court may decide on its own
        to revive it.
   •    Normally, we do not address arguments raised on
        appeal for the first time in a reply brief. See, e.g.,
        W. A. S. v. Teacher Standards and Practices Comm.,
        

, 

 (2021) (explaining that, although the petitioner raised the issue
        before the administrative law judge and the agency,
        the petitioner did not raise the issue in the opening brief and waited for the reply brief). Now that
        the majority opinion treads on ground not raised at
        all in the opening brief, it is difficult to understand
        when the court will reject an argument raised for
        the first time on appeal in a reply brief.
   •    Normally, we do not develop a party’s argument on
        appeal. See, e.g., Beall Transport Equipment Co. v.
        Southern Pacific, 

, 700 n 2, 

, adh’d to as clarified on recons, 

,
        

 (2003) (“[I]t is not this court’s function to
        speculate as to what a party’s argument might be.
        Nor is it our proper function to make or develop a
        party’s argument when that party has not endeavored to do so itself.”). Under the approach adopted
        by the majority opinion, a party need not advance
        any argument on appeal let alone develop that
        argument because the court may do so on a party’s
        behalf.
   •    Normally, we do not overrule cases unless a party
        carries the burden of showing that it is “plainly
        wrong,” which is a “rigorous standard grounded
        in presumptive fidelity to stare decisis.” Civil, 

. The majority opinion has signaled
        that the court will take on some of that burden and
        revisit an unchallenged prior decision or decisions
        by developing a constitutional challenge to justify
        its reinterpretation of a statute.
778                                   State v. Parra-Sanchez

Any one of these prudential rules act as a check to the exercise of our discretion. They are not fixed barriers; rather,
they function as guideposts to advance important goals
of fairness to the parties (and potential intervenors and
amici) and the efficient administration of justice. By not
discussing what distinguishes this case from other cases
(assuming, of course, that we will not approach every case
in this manner), the majority opinion appears to create
confusion on whether we would rely on one or more fundamental principles of appellate jurisprudence or whether
we would dispense with those principles and reach into
the trial court record to decide an argument that perhaps was raised before the trial court, but not renewed
on appeal. Thus, in my view, the majority opinion sends
destabilizing signals because it is unclear, based on our
decision today, when these rules will prevail or in what circumstances these prudential rules will cede to the court’s
creativity in raising its own view of how a case should be
decided.

         Moreover, beyond jettisoning our own prudential
rules, the majority opinion shows that we will revisit our
determination of the “intention of the legislature,” which
has always been required by ORS 174.020 when interpreting
statutes, despite the legislature not clarifying or changing
the statute to advance its policy objectives. As noted earlier,
it was the full court decision in Meyer—decided in 1993—
that interpreted the statutory phrase “lewd exhibition” to
mean “exhibition with the intent of stimulating the lust
or sexual desires of the person who views it.” 

 (footnote omitted). The legislature did not alter or
modify the statutory framework after we announced that a
factfinder should use the subjective intent of the person to
assess whether a situation qualifies as a lewd exhibition for
purposes of the definition of “sexually explicit conduct” in
ORS 163.665(3). Decades have elapsed with no action by the
legislature in this area.

          The Supreme Court has explained that stare decisis is at its zenith when it comes to statutory construction.
Farmers Ins. Co. v. Mowry, 

, 

 (2011).
The court explained:
Cite as 

 (2023)                                            779

   “After we have interpreted a statute, the legislature’s constitutional role allows it to make any change or adjustment
   in the statutory scheme that it deems appropriate, given
   this court’s construction of the statute (and, of course, subject to constitutional limitations). The legislature can—and
   often does—amend a statute that this court has interpreted
   to clarify or change the statute or otherwise to advance the
   policy objectives that the legislature favors.”

We have explained that the weight of stare decisis “is especially strong when the statutory interpretation at issue comes
from an intermediate appellate court. In such instances,
there is not one, but two, bodies capable of correction—the
legislature, and the Supreme Court.” State v. Merrill, 

, 

 (2020) (emphasis omitted).
None of that appears to matter—or if it does matter, the
majority opinion does not endeavor to discuss why it chose
to revisit the intention of the legislature despite the legislature’s inaction after Meyer, Evans, or Smith. The majority
opinion does not discuss any recent case that animates its
desire to raise a constitutional challenge to our prior interpretation of the statute and then resolve that constitutional
challenge by disavowing our earlier cases. Thus, this case is
unlike State v. Prophet, 

, 

,
rev den, 

 (2022), which addressed “our conflicting
and inconsistent case law” and was decided shortly after the
Oregon Supreme Court addressed the same issue in State v.
Owen, 

, 

 (2022).
         A healthy respect for the distribution of powers
among coordinate branches of government would seem to
caution against taking it upon ourselves to revisit a question of statutory construction without explaining what has
changed since we first determined the legislature’s intention
and why we must revisit that decision despite no signal from
the legislature or any other change in the law that suggests
our prior interpretation was plainly wrong.3 Our decision

   3
       Article III, section 1, of the Oregon Constitution provides:
       “The powers of the Government shall be divided into three [separate]
   departments, the Legislative, the Executive, including the administrative,
   and the Judicial; and no person charged with official duties under one of
   these departments, shall exercise any of the functions of another, except as
   in this Constitution expressly provided.”
780                                              State v. Parra-Sanchez

to engage in a reexamination of our prior cases should not
rest on the current composition of the court and the individual proclivities of the judges; rather, our decision should be
ground in the law. See generally Couey v. Atkins, 

, 

 (2015) (identifying circumstances when a
court may overrule precedent without violating stare decisis
principles and explaining that the court may not “revisit a
prior decision merely because the court’s current members
may hold a different view than its predecessors about a particular issue”).
         Indeed, we have turned away opportunities to
revisit the issue of what constitutes a lewd exhibition for
purposes of the definition of “sexually explicit conduct” in
ORS 163.665(3). In State v. Ritchey, 

,

, rev den, 

 (2013), the defendant challenged the denial of his motions for judgment of acquittal
arguing that “the state failed to offer sufficient evidence
to prove that the images were of ‘sexually explicit conduct’ ” as that term is used in ORS 163.665(3).4 Although
not discussed in our per curiam opinion, the parties’ briefs
describe the three digital images that were entered into evidence and formed the basis of the defendant’s convictions:
(1) a nude girl standing in a field grinning at the camera;
(2) a nude girl, who was not looking at the camera, sitting
on the edge of a swimming pool with her legs in the water;
and (3) a cropped image of the first image of the girl in the
field that showed only her nude torso from her neck to her
thighs. We summarily rejected the defendant’s invitation
to revisit our prior interpretation of what constitutes “lewd
exhibition” as that term is used in the definition of “sexually
explicit conduct.” The Ritchey court explained, “We reject
[the defendant’s] argument based on our decision in” Evans,
“in which we considered and rejected, over a dissent, a similar argument.” Ritchey, 

. Thus, not only
has the majority opinion not explained what changed since
    4
      Although the defendant’s convictions at issue in Ritchey were different than
the ones at issue in this case, both cases involve crimes that use the term “sexually explicit conduct,” which is defined by ORS 163.665(3)(f) to include “lewd
exhibition of sexual or other intimate parts.” Compare ORS 163.684 (encouraging
child sexual abuse in the first degree) and ORS 163.686 (encouraging child sexual abuse in the second degree) with ORS 163.670 (using a child in a display of
sexually explicit conduct).
Cite as 

 (2023)                                                   781

our 1993 decision in Meyer, but it also does not explain what
has changed since our 2013 decision in Ritchey to justify
revisiting our existing case law.5
         To be sure, we asked the parties to weigh in on a
new statutory interpretation approach that would undo our
prior cases. It is, of course, possible that we did not correctly
encapsulate the intention of the legislature in our 1993
Meyer decision and that lewd exhibition should be measured solely by reference to objective standards and aided
by factors like those articulated in United States v. Dost,

 (SD Cal 1986), aff’d sub nom United States
v. Wiegand, 812 F2d 1239 (9th Cir 1987). Maybe our prior
decisions left the statutory framework susceptible to a successful constitutional challenge that the legislature did not
address in its multiple amendments to the statutory framework since our decisions in Meyer, Evans, and Smith. In this
case, however, defendant’s arguments did not put that issue
before us. Instead of waiting for a case to present a constitutional challenge to our statutory interpretation in those
cases, the majority opinion replaces defendant’s arguments
with its own to reinterpret what the legislature meant in
1985.6
         For these reasons, I respectfully cannot join the
majority opinion and its exercise of discretion to ground
its decision on disavowing our prior cases when defendant
waived that argument by not including it in his opening
brief. In my view, judicial discretion should “be exercised
according to fixed legal principles in order to promote substantial justice.” Elliott v. Lawson, 

, 

 (1918). The foray into territory abandoned by defendant
    5
      Moreover, the new approach adopted by the majority opinion to determine
whether there is “sexually explicit conduct for any person to observe or to record”
means that the digital images at issue in Ritchey may no longer qualify as “sexually explicit conduct.”
    6
      It is not lost on me that prudential rules and the slow pace of change often
weigh heavier on some people and can be frustrating. On the other hand, a court
that independently chooses to revive a waived argument—rather than signal
that in a future case it would consider such arguments—risks the perception
that it has stepped outside its role as an error-correcting court if its action is not
adequately explained. See State v. Pemberton, 

, 

(2009) (Wollheim, J., dissenting) (“Because we are an error-correcting court, we
do not make arguments for the parties that they should have made but did not
make.”).
782                                                State v. Parra-Sanchez

on appeal does not promote substantial justice; rather, the
majority opinion, in my view, sends a destabilizing message
about when the court will ignore the arguments presented
in the opening briefs and decide the case on grounds the
court chooses on its own. Our failure to provide a thorough
explanation to support our exercise of discretion and any
guideposts for what sort of cases we will do so again in the
future appears to subtly shift the role of the court away from
neutral arbiter. Although I do not quibble with the existence
of the authority to do so in extraordinary circumstances—
such as when there are jurisdictional concerns or to consider
a significant change in controlling legal authority or when
the ends of justice will not otherwise be satisfied—the majority opinion has not, in my view, sufficiently explained why it
developed defendant’s argument for him and disavowed our
existing cases.
         Accordingly, I respectfully dissent.7
         Shorr, J., joins in this dissent.
    7
      If we were writing on a clean slate and the arguments were properly before
us, much of the approach advocated by Judge Hellman’s thoughtful separate
opinion makes sense to me. Given the procedural posture of this case, however, I
do not join that opinion. We are not writing on a clean slate and our existing case
law, in my view, provides answers to defendant’s challenges that he did raise in
the opening and supplemental briefs.
     Briefly stated, defendant does not dispute that there was sufficient evidence
for a factfinder to conclude that he viewed or attempted to view the victim’s
nude or partially nude body to satisfy his sexual desires; rather, he appears to
argue that there was no exhibition—lewd or otherwise—because he passively
observed the victim. The record, however, demonstrates that defendant’s acts,
including removing barriers to allow himself to look at the victim’s sexual or
intimate parts, made the victim’s otherwise ordinary conduct into an exhibition
and defendant’s sexual intent made it lewd. See Meyer, 

; Smith,

 (explaining that whether an exhibition is lewd depends on the
intent of the person charged under the statute). To the extent that defendant’s
argument suggests that “mere nudity” does not constitute a lewd exhibition, we
have previously rejected that argument. See 

 (rejecting the defendant’s
contention “that ‘mere nudity’ does not constitute a lewd exhibition and that this
court’s interpretation of lewd exhibition in [Evans] was wrong and should be overruled”); see also United States v. Knox, 

 (3d Cir 1994) (applying the
Dost factors, among other considerations, and concluding that “lascivious exhibition of the genitals or pubic area” of a minor can include fully clothed minors
and “requires only that the material depict some ‘sexually explicit conduct’ by the
minor subject which appeals to the lascivious interest of the intended audience”).
    Finally, perhaps some of the difficulty in determining whether there was
a “lewd exhibition” arises from the dissonance between a colloquial concept of
what constitutes child pornography (e.g., posed photos or video) and what happened here (i.e., a lone defendant viewing, in person, an already naked child’s
Cite as 

 (2023)                                                  783

           MOONEY, J., dissenting.
         I am not persuaded by defendant’s contentions that
the trial court erred in denying his motions for judgment
of acquittal. I do not agree that his sentences are unconstitutional. I would not reverse based on defendant’s claim of
plain error regarding merger. I would affirm the judgment
on appeal in all respects and, therefore, I dissent.
           HELLMAN, J., dissenting.
         As the majority correctly concludes, criminal culpability under ORS 163.670 does not depend solely on a defendant’s thoughts or subjective state of mind. Such a law would
be unconstitutional. 324 Or App at 723-24. That conclusion
is compelled by the United States Constitution and United
States Supreme Court case law. There is also no indication
that our legislature sought to craft such a law when the text
of the statute and the legislative history are considered. 324
Or App at 719-26.
         The majority also correctly concludes that a lewd
exhibition requires more than mere nudity. 324 Or App
at 721. Again, that conclusion is compelled by the United
States Constitution and United States Supreme Court case

breasts, vaginal area, and buttocks with the intent of stimulating his own sexual
desires). To remove some of the implicit associations that the term “child pornography” may trigger and demonstrate whether an individual’s in-person viewing
of an already-naked child can ever be a “lewd exhibition,” consider the following
hypothetical:
    Imagine that an individual had taken the same actions that defendant took
    in the shower incident—going into the closed bathroom while his daughter
    was showering, opening the shower curtain, holding the curtain open, staring at his daughter’s breasts, and ignoring her protestations and admonishments to leave—but did so while recording a video of what he saw with his
    smart phone.
In that hypothetical scenario, where the individual is taking the same actions as
defendant did in this case but also happens to be producing a video recording, it
may be easier to conclude that the individual created what colloquially is known
as child pornography. The display statute, however, does not require a visual
recording. See ORS 163.670(1) (“A person commits the crime of using a child in
a display … if the person … permits … a child to participate or engage in
sexually explicit conduct for any person to observe or to record in a visual recording.”). The statutory requirements are satisfied if the lewd exhibition was “for any
person to observe” or “to record in a visual recording.” In my view, because there
was sufficient evidence to conclude that defendant was an observer of a lewd
exhibition, the trial court correctly denied defendant’s motions.
784                                   State v. Parra-Sanchez

law and is confirmed by the text of the statute and the legislative history. 324 Or App at 728.
         I also agree that we were mistaken in State v.
Smith, 

, 

, rev den, 

 (2014) when we wrote out any objective element for lewd
exhibition by adding the language “as determined from the
perspective of the person charged under the statute” to the
definition that we established in Meyer. 324 Or App at 732.
         I further wholeheartedly agree with the majority’s
recognition of the Dost factors as a useful tool in this area
of law. 324 Or App at 733-35. In my view, both as a legal
and practical matter, objectivity requires an agreed-upon
analytical framework as a starting place. In this context,
a definition of “lewd exhibition” is not enough. Leaving the
question of what is “salacious or focused on sex,” 324 Or App
at 721, to the individual factfinder to sort out without guidance carries the same risk as a purely subjective standard;
specifically, that guilt or innocence will be decided in an
arbitrary manner.
         However, I dissent from the disposition in this case
on Counts 1 through 5 because even with an objective component in the analysis, the prosecution’s case here survives
a motion for judgment of acquittal and was correctly submitted to the jury. I would thus affirm on Counts 1 through 5.
          Because this case comes before us after the denial
of a motion for judgment of acquittal, “we view the facts and
reasonable inferences therefrom in the light most favorable to the state … to determine whether a rational factfinder could have found each element of the offense to have
been proved beyond a reasonable doubt.” State v. Cazee, 

, 

 (2021) (internal citations omitted). Under that standard, here are the facts that relate to
defendant’s views of M’s naked body in her bedroom (Counts
1, 2, 3, and 5):
         At the relevant times, M was between 11 and 15
years old. After M took a shower, she would walk to her room
in a towel, close the door, take off the towel, and be naked in
her room before she got dressed. At least once a week, a couple of minutes after M got into her bedroom, defendant would
Cite as 

 (2023)                              785

open the door and come in. M would be naked or dressed only
in underwear when defendant entered. M’s room was small,
so defendant would be standing near M when he was in the
room. Defendant could open M’s door at will because he had
removed the lock so she could not shut him out. Defendant
knew when M took a shower, and he knew that she would be
naked or partially clothed afterwards. When he first came
in the room, defendant did not look at anything except M.
Defendant looked at M’s naked body, and specifically looked
at her breasts, vagina, and butt. He did so by looking directly
at her body and by looking at the image of M reflected in a
mirror. In response to defendant’s observation of her naked
body and intimate parts, M would grab her towel and try to
cover up, but the towel would only cover her front. If she was
naked, it would leave her butt exposed. M would then sit
down on the bed to try and cover her butt. M would also tell
defendant to leave, but he would refuse, saying “that’s why
he paid the rent” so that he could do whatever he wanted.
Defendant would stay in M’s room, pretending to fix things,
and would continue to look at M’s breasts, vagina, and butt,
whichever were visible, as long as he was in there.
          Here, there was sufficient evidence for a factfinder
to conclude that there was a lewd exhibition. The focal point
of the depiction was on M’s breasts, vagina, and butt—the
body parts that defendant stared at directly and repeatedly.
M was in a place (her bedroom, sitting on her bed) and in
a state of undress (naked or partially covered in a towel or
underwear) that are both generally associated with sexual
activity, and therefore created a depiction that was sexually
suggestive. In addition, M’s attire in that depiction (partially
clothed in a towel or in her underwear) was inappropriate
given that she was 15 years old. The evidence is also sufficient to find that defendant designed the depiction, through
his knowledge and exploitation of M’s schedule, his removal
of locks to her bedroom door, and his unrestricted entry into
her bedroom because “that’s why he paid the rent.” Finally,
a factfinder could conclude that the intent of this depiction of
a naked or partially clothed 15-year-old girl after a shower
was for a sexual response in the viewer.
          In sum, a factfinder could view the evidence in this
record to support a conclusion there was a lewd exhibition
786                                              State v. Parra-Sanchez

in this case. Having concluded that there was sufficient evidence to find a lewd exhibition in this case, I then turn to
the remainder of the statutory analysis.
         We previously have observed that the legislature
intended “permit” to convey the meaning of “allow” or “make
possible.” State v. Porter, 

, 

,
rev den, 

 (2011). What a person must “permit”
under the statute is a child’s participation or engagement in
sexually explicit conduct for the purpose of observation or
recording. Cazee, 

.
         Here, a factfinder could conclude that defendant
made possible M’s participation in a lewd exhibition for
the purpose of his observation.1 Private conduct becomes a
showing when someone sees it, and as explained above, a
factfinder could conclude that the showing was “itself salacious or focused on sex.” See 324 Or App at 721. We have
held that a person need not exercise the person’s own volition to be a participant in sexually explicit conduct; rather,
“a person can become a participant by virtue of another
participant’s actions.” State v. Bates, 

, 746
n 7, 

 (2020) (internal quotation marks omitted). Thus, the trial court did not err when it denied defendant’s motion for a judgment of acquittal on Counts 1, 2, 3,
and 5.
        Defendant was also charged in Count 4 based on
his view of M in the shower. In the light most favorable to
the state, here are the facts about that episode: Once when

    1
      In State v. Torres, 

, 

 (2022), we accepted the
state’s concession that under Cazee, 

, the defendant did not permit
the sexually explicit conduct when he set up hidden cameras in his girlfriend’s
daughter’s bedroom, which captured videos of the naked teen. The state has not
conceded the issue in this case. Moreover, both Torres and Cazee were missing the
kind of direct link between defendant’s actions and the sexually explicit conduct
that the statute requires. In Cazee, the “sexually explicit conduct” was sexual
intercourse, which was already occurring when the defendant looked through
the uncovered window to view it. In other words, the defendant in Cazee did
nothing to bring about the minors’ involvement in sexually explicit conduct. In
Torres, there was insufficient evidence of a direct link between the defendant’s
conduct in placing the camera and the victim’s sexually explicit conduct. Again,
the defendant did not directly permit any sexually explicit conduct. In contrast,
in this case, a jury could conclude that defendant’s direct interactions with the
victim allowed or made possible her participation in sexually explicit conduct in
the form of a lewd exhibition.
Cite as 

 (2023)                             787

M was 15 years old, she was washing her hair in the shower
with the shower curtain closed. Defendant entered the
bathroom and partially pulled back the shower curtain and
talked to M. M agreed that defendant was in the bathroom
to talk to her about something but could not recall what it
was. When defendant pulled back the shower curtain, he
used both of his hands to form a half-circle that exposed
the top half of M’s body from her breasts up. M told defendant to get out, but defendant remained, still talking to her
for a minute and a half. For part of the time, defendant’s
eyes moved up and down over M’s exposed body. M knew he
was staring at her breasts because of where his eyes were
focused.

         The shower incident is a much closer call, but there
was sufficient evidence to defeat defendant’s motion for judgment of acquittal. Although washing one’s hair in the shower
is not generally associated with sexual activity, defendant’s
observation of M was not limited to that view. A factfinder
could conclude that defendant positioned the shower curtain
to create a focus on M’s breasts. M testified that she could
tell defendant was looking at her breasts because of where
his eyes were focused. A focus on a 15-year-old’s exposed
breasts is inappropriate for her age and sexually suggestive.
A jury could thus conclude that this was a lewd exhibition.

         It is in the analysis of the shower incident that best
demonstrates how a set of factors can be useful in these
kinds of cases. We know that defendant himself had a sexual interest in M because of his other actions such as his
hands-on sexual abuse of her, and it is a reasonable inference that his motive for moving the shower curtain aside
and viewing M’s naked body was to elicit a sexual response
in himself. It would be all too easy then to shortcut the legal
analysis because what defendant did was seriously wrong.
Using a set of factors guards against that kind of decisionmaking because it keeps the focus on the depiction itself
when determining whether it amounted to a lewd exhibition.
Although the evidence was sufficient to survive a motion for
judgment of acquittal, the jury would be well within reason
to view the evidence as not supporting a conviction. But on
this record, that is the jury’s decision to make.
788                                   State v. Parra-Sanchez

         As with the bedroom incidents, a factfinder could
conclude that through his actions in the shower incident,
defendant made possible M’s participation in a lewd exhibition for the purpose of his observation. Therefore, the trial
court did not err when it denied defendant’s motion for a
judgment of acquittal on Count 4.
         In sum, even under the majority’s definition of lewd
exhibition under ORS 163.670, in the light most favorable to
the state there was sufficient evidence to survive a motion
for a judgment of acquittal.
         That brings me to defendant’s arguments that
his sentence is unconstitutionally disproportionate under
Article I, section 16, of the Oregon Constitution and State
v. Rodriguez/Buck, 

, 

 (2009). That is
an extremely high bar to meet, and necessarily so. As the
Supreme Court recognized, disproportionality is found only
in “rare circumstances” and the inquiry seeks to balance
the legislature’s “central role” in “establishing penalties for
crimes” with the judicial function to ensure that those penalties do not violate constitutional principles. 

.
         In a proportionality analysis, we (1) compare the
severity of the penalty to the gravity of the offense; (2) compare the penalties for other related crimes, and (3) assess
the defendant’s criminal history. 

 Here, a comparison of
the penalties for related crimes weighs in favor of a finding
of disproportionality. As we held in State v. Carey-Martin,

, 

 (2018), “[a] 25-year imprisonment sentence is an extremely severe penalty.” Had defendant been convicted of invasion of personal privacy in the
second degree under ORS 163.700, he would have received a
sentence of less than a year in prison, and he received less
time for his hands-on abuse of the victim than he did for
viewing her naked.
         However, the gravity of defendant’s actions (he
affirmatively exercised his power and control as the victim’s father to remove barriers, including locks, to repeatedly view her naked, despite her protests) and his criminal
history (including his physical abuse and hands-on sexual
abuse of the victim) lead me to a conclusion that the sentence here would not “shock the moral sense of reasonable
Cite as 

 (2023)                             789

people,” which is the ultimate question to answer. See Carey-Martin, 

 (quoting State v. Wheeler, 

, 

 (2007)).
         My conclusion that the defendant in this case did
not demonstrate an unconstitutionally disproportionate sentence does nothing to alleviate my serious concerns with the
statutory scheme as it currently exists. What I find deeply
troubling about all of this comes from the interplay of the
broad scope of criminal liability under ORS 163.670 and the
mandatory nature of punishment for such a conviction. A
second conviction under the statute results in a mandatory
minimum sentence of 25 years imprisonment under ORS
137.690, no matter what the specific conduct was, and no
matter if the “prior” conviction occurred in the same case.
That is, the sentencing structure gives no recognition for
the broad range of conduct that can come under the statute’s grasp. Thus, someone who induces a child to have
sex with several men, and films it, see State v. Howe, 

, 

 (2015), is given the same sentence
as someone, like the defendant in this case, whose criminal conduct was to take actions that allowed him to view
his daughter naked in her room and the shower. By failing
to differentiate between the severity and moral culpability
of conduct captured by ORS 163.670, the current sentencing structure is not fair or just. The burden should not be
on individual defendants to meet a nearly insurmountable
burden to prove that their sentence rises to the level of
“unconstitutionally disproportionate” before they are given
a sentence that is fair and just in light of their actual conduct. In my view, the burden is squarely on the legislature
to craft a sentencing scheme that produces fair and just
sentences.
          The legislature has many tools available for that
task, including rewriting the statute to create different levels of criminal liability and punishment that reflect the realworld differences in conduct or simply by removing the mandatory nature of the sentence. Either approach would result
in punishments that fairly and appropriately address the
specific acts that are deemed criminal under ORS 163.670,
or whatever statutory scheme the legislature chooses to
enact.
790                                  State v. Parra-Sanchez

         Either approach would also have the effect of being a
check on prosecutorial charging discretion, which is another
reason I believe the legislature needs to take prompt action
in this area. I am unaware of any statewide policies that
guide a prosecutor’s choice to charge under ORS 163.670,
a Class A felony, instead of ORS 163.700 and ORS 163.701,
which criminalize an invasion of personal privacy as a Class A
misdemeanor or Class C felony. That is a concern, because
there is overlap in those statutes. Thus, in some factual
situations a person could be charged under either scheme,
despite the vast differences in liability and punishment that
flow from such a decision. In my view, that situation creates
a very real risk of causing arbitrary results that depend less
on a defendant’s conduct (where the focus belongs) and more
on the individual choices of whichever particular prosecutor
happens to be assigned to the case. Without boundaries on
charging discretion, there is a significant risk of unacceptable unfairness in this area of the law. Our criminal justice
system should not tolerate that risk.
         And yet, despite those serious concerns with the
statutory framework as it currently exists, defendant’s conduct in this case was within the scope of ORS 163.670. I
also conclude that defendant’s sentence is not constitutionally disproportionate under the Supreme Court’s Rodriguez/
Buck test. I therefore dissent from the majority’s decision to
remand with instructions to grant defendant’s motion for a
judgment of acquittal on Counts 1 through 5.
         Finally, I dissent from the majority’s disposition on Counts 6, 7, 8, and 9, because any error in failing
to merge the counts is not plain. Plain error requires that
there be a legal error that is obvious and not reasonably
in dispute. See, e.g., State v. Vanornum, 

,

 (2013). To accept defendant’s arguments that
merger was required, we must accept his interpretation of
case law and his characterization of how he was charged in
this case, both of which are at odds with the way in which
the state views the current state of the law and the facts in
this case. Notably, the majority does not adopt either party’s legal analysis, but instead finds plain error based on
an altogether different legal analysis. That legal analysis
includes citation to a Supreme Court case that neither side
Cite as 

 (2023)                            791

references and use of our case law in a way that neither side
advocates. The majority may very well be correct that defendant’s convictions should merge. But granting plain-error
review does not turn on the correctness of the underlying
issue. If there are two ways to read the same record and
three different legal analyses that possibly apply, then any
error is not plain. I would therefore not reach defendant’s
eleventh and twelfth assignments of error.
        I respectfully dissent.
        Tookey and Joyce, JJ., join in this dissent.