332
Argued and submitted January 11, affirmed June 14, petition for review denied
October 19, 2023 (371 Or 509)
STATE OF OREGON,
Plaintiff-Respondent,
v.
RYAN GRANT CLEAVER,
Defendant-Appellant.
Malheur County Circuit Court
20CR65253; A177908
532 P3d 87
Defendant appeals from a judgment convicting him of private indecency,
ORS 163.467, and assigns error to the denial of his motion for judgment of acquittal, contending that there was insufficient evidence that he exposed himself in a
“place where another person has a reasonable expectation of privacy.” Held: The
legislature defined a “place where another person has a reasonable expectation of
privacy” to include a “residence.” Here, the state adduced sufficient evidence for a
reasonable factfinder to conclude that defendant exposed himself to the victim in
a “residence.” The trial court did not err.
Affirmed.
Robert S. Raschio, Judge.
Laura Graser argued the cause and filed the briefs for
appellant.
Jonathan N. Schildt, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Lagesen, Chief Judge,
and Powers, Judge.
ORTEGA, P. J.
Affirmed.
Cite as 326 Or App 332 (2023) 333
ORTEGA, P. J.
Defendant appeals from a judgment convicting him
of private indecency, ORS 163.467, and assigns error to the
trial court’s denial of his motion for judgment of acquittal.
Defendant contends that the state failed to adduce sufficient
evidence that he exposed himself in a “place where another
person has a reasonable expectation of privacy” because the
victim, his 17-year-old daughter, did not have a reasonable
expectation of privacy in the “marital bedroom” that he and
his wife share. We affirm.
The relevant facts are few, and we recount them in
the light most favorable to the state, drawing all reasonable
inferences in the state’s favor. State v. Zamora, 326 Or App
140, 142,
530 P3d 914 (2023). In November 2020, defendant’s
17-year-old daughter, A, lived with defendant and his wife in
their home. A entered defendant’s bedroom, which he shares
with his wife, to ask defendant about an upcoming shopping
trip. Defendant was lying on the bed, fully clothed, and A
was talking to her boyfriend on her cell phone. A few minutes
later, defendant exposed his penis and began masturbating.
A ended the call with her boyfriend and began recording a
video of defendant with her cell phone. The video, which the
state introduced at trial, shows defendant stroking his erect
penis for about one minute while A and defendant engage in
casual conversation. Although A generally understood that
she was not allowed to enter her parents’ bedroom unless
she was invited, the door was open, and defendant never
asked her to leave.
The state charged defendant with private indecency, ORS 163.467.1 At the close of the state’s evidence,
1
ORS 163.467 provides:
“(1) A person commits the crime of private indecency if the person
exposes the genitals of the person with the intent of arousing the sexual
desire of the person or another person and:
“(a) The person is in a place where another person has a reasonable
expectation of privacy;
“(b) The person is in view of the other person;
“(c) The exposure reasonably would be expected to alarm or annoy the
other person; and
“(d) The person knows that the other person did not consent to the
exposure.
334 State v. Cleaver
defendant moved for judgment of acquittal. He argued that
there was insufficient evidence that he was in a “place where
another person has a reasonable expectation of privacy,”
ORS 163.647(1)(a), to convict him as a matter of law because,
in his view, A had no reasonable expectation of privacy in
defendant’s bedroom; defendant argued that only he and
his wife have a reasonable expectation of privacy in their
bedroom. Defendant contended that a person’s reasonable
expectation of privacy varies with the room because “different rooms of [a] house have different purposes.”
The state responded that defendant was misconstruing “place where another person has a reasonable
expectation of privacy” as a place where that other person
has a right to exclude others or be free from observation.
Correctly understood, the state argued, that element focuses
on whether the defendant is in a place where another person
has a reasonable expectation to be free from the intrusion of
someone indecently exposing themselves to the person. The
state pointed to ORS 163.467(4), which expressly includes
“residences” as a “place where another person has a reasonable expectation of privacy,” and argued that A had a
reasonable expectation of privacy in her parents’ bedroom
because she was in a residence, regardless of which particular room she was in within the residence. The trial court
denied defendant’s motion.
On appeal, the parties reprise the arguments they
made to the trial court. Thus, the issue before us is whether
the state adduced sufficient evidence that defendant was in
a “place where another person has a reasonable expectation
of privacy” within the meaning of ORS 163.467. We conclude
that it did and that the trial court therefore correctly denied
defendant’s motion for judgment of acquittal.
We have previously construed “place where another
person has a reasonable expectation of privacy” to include,
“(2) Private indecency is a Class A misdemeanor.
“(3) Subsection (1) of this section does not apply to a person who commits
the act described in subsection (1) of this section if the person cohabits with
and is involved in a sexually intimate relationship with the other person.
“(4) For purposes of this section, ‘place where another person has a reasonable expectation of privacy’ includes, but is not limited to, residences,
yards of residences, working areas and offices.”
Cite as 326 Or App 332 (2023) 335
as a matter of law, those places set forth in ORS 163.467(4).
In State v. Miller,
242 Or App 572,
256 P3d 171 (2011), the
defendant was charged with private indecency for masturbating in a holding cell in view of the victim, who was seated
in a hallway across from the defendant’s cell awaiting a
court proceeding in an unrelated criminal case. The hallway
was not open to the public, but it was open to judges, court
staff, maintenance personnel, and occasional escorted tour
groups.
Id. at 574. On appeal, the defendant challenged the
denial of his motion for judgment of acquittal and argued
that the victim was not in a place where she had a reasonable expectation of privacy. The state remonstrated that
“the victim was in a ‘working area,’ which is a specifically
protected area under ORS 163.467(4).”
Id. at 577.
We agreed with the state. In construing the
private indecency statute, we first observed that, “[i]n
ORS.163.467(4), the legislature defined ‘place where another
person has a reasonable expectation of privacy’ for purposes
of ORS 163.467.” Id. (emphasis added). We then construed
one such place, “working area,” and concluded that the evidence was sufficient for a reasonable factfinder to conclude
that the jail hallway was “a ‘working area’ and thus a ‘place
where another person has a reasonable expectation of privacy.’ ”
Id. at 578.
The analysis in Miller applies equally to this case.
There is no dispute that defendant exposed himself to A
while in defendant’s bedroom, nor is there any dispute that
the bedroom was inside defendant’s and A’s “residence.” See
Webster’s Third New Int’l Dictionary 1931 (unabridged ed
2002) (defining “residence” as “a building used as a home
: dwelling”). Accordingly, there was sufficient evidence here
for a reasonable factfinder to conclude that defendant’s bedroom was part of a “residence,” ORS 163.467(4), and thus a
“place where another person has a reasonable expectation
of privacy,” ORS 163.467(1)(a). The trial court therefore correctly denied defendant’s motion for judgment of acquittal.
In arguing for a different result, defendant makes
several related arguments, none of which we find persuasive. We understand defendant to argue that a “place where
another person has a reasonable expectation of privacy”
336 State v. Cleaver
depends on whether the person has a right to access the
place, a right to be free from scrutiny while in the place, and
a right to exclude others from the place that is superior to the
defendant’s right to exclude others from the place. We disagree. As we recently held in State v. Wimmer, 325 Or App
372, 379,
529 P3d 307 (2023), the legislature enacted the private indecency statute with the intent “to cover situations
where the [inappropriate] exposure occurs in a place that a
person reasonably expects is not public.” That is, for purposes
of ORS 163.467(1)(a), a person has a reasonable expectation
of privacy in a place when the person reasonably expects
that the place is not public—i.e., it is a place to which the
general public does not have access—regardless of whether
the person has a right to access the place or to be free from
scrutiny while in that place. We also concluded that there is
no indication in the text, context, or legislative history that
“reasonable expectation of privacy” in ORS 163.467 is meant
to incorporate the standard under the Fourth Amendment.
Id. at 376-77. Nor is there any indication that the defendant’s
reasonable expectation of privacy is relevant to the analysis;
indeed, the statute requires only that the defendant’s exposure occur at a “place where another person has a reasonable
expectation of privacy.” ORS 163.467(1)(a) (emphasis added).
Finally, defendant argues that construing ORS
163.467(1)(a) to include those places listed in ORS 163.467(4)
by definition would lead to “absurd results.” However, “without ambiguity as to the legislative intent after consulting
the text, context, and legislative history, we do not reach
canons of construction.” Coos Waterkeeper v. Port of Coos Bay
Oregon, 363 Or 354, 371-72,
423 P3d 60 (2018) (citing State
v. Gaines,
346 Or 160, 172,
206 P3d 1042 (2009)).
Affirmed.
