No. 92 February 12, 2025 765
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL JOHN CASEY,
Defendant-Appellant.
Yamhill County Circuit Court
21CR42739; A180658
Ladd J. Wiles, Judge.
Submitted October 30, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anne Fujita Munsey, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Kamins, Judge, and
DeVore, Senior Judge.
TOOKEY, P. J.
Judgment of conviction on Counts 15 and 16 reversed and
remanded for new trial; remanded for resentencing; otherwise affirmed.
766 State v. Casey
TOOKEY, P. J.
Defendant appeals his convictions, after a bench
trial, of multiple sexual offenses, challenging his convictions
of two counts of using a child in display of sexually explicit
conduct, ORS 163.670 (Counts 15 and 16).1 He assigns error
to the sufficiency of the evidence on Counts 15 and 16, contending that the evidence was not sufficient to establish an
objectively “lewd exhibition” of five photographs of the minor
victim’s penis, as required by our opinion in State v. Parra-Sanchez, 324 Or App 712,
527 P3d 1008, rev den,
371 Or 333
(2023). The photos themselves are not in evidence, because
defendant deleted them before they could be obtained by the
police. The photos were described at trial in testimony by
defendant and the victim. In his first assignment, defendant
contends that the trial court erred in denying his motion for
a judgment of acquittal on Counts 15 and 16. In his second
assignment, defendant contends that the trial court plainly
erred in instructing itself on the elements of using a child
in a display of sexually explicit conduct. In his third assignment, defendant contends that the trial court plainly erred
in finding defendant guilty on Counts 15 and 16.
The state agrees that, in light of Parra-Sanchez, the
trial court’s speaking verdict on Counts 15 and 16 reflects
a misunderstanding of the applicable legal standard relating to “lewd exhibition” and demonstrates that the court
convicted defendant on a legally incorrect theory. The state
therefore concedes the correctness of defendant’s second and
third assignments of error and that defendant’s convictions
must be reversed. We agree with and accept the state’s concession and conclude that defendant’s contentions in his second and third assignments of error are well-taken.
But the state disputes defendant’s contention in
his first assignment of error that he was entitled to a judgment of acquittal on Counts 15 and 16, asserting that the
record includes sufficient evidence from which the factfinder
could find the elements of the offense. The offense of using
a child in a display of sexually explicit conduct occurs when
1
Defendant was also convicted of four counts of sodomy in the first degree,
ORS 163.405 (Counts 1 to 4); and six counts of sexual abuse in the first degree,
ORS 163.427 (Counts 5 to 10). Those convictions are not challenged on appeal.
Nonprecedential Memo Op: 337 Or App 765 (2025) 767
a person “[e]mploys, 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)(a). “Sexually explicit conduct,” in turn,
means “actual or simulated” activity of the following kinds:
“(a) Sexual intercourse or deviant sexual intercourse;
“(b) Genital-genital, oral-genital, anal-genital or oralanal contact, whether between persons of the same or opposite sex or between humans and animals;
“(c) Penetration of the vagina or rectum by any object
other than as part of a medical diagnosis or treatment or as
part of a personal hygiene practice;
“(d) Masturbation;
“(e) Sadistic or masochistic abuse; or
“(f) Lewd exhibition of sexual or other intimate parts.”
ORS 163.665(3). Defendant focuses on the “lewd exhibition”
part of that definition, correctly citing the requirement in
Parra-Sanchez, 324 Or App at 733 that “whether something
constitutes a lewd exhibition is determined by reference to
objective standards.” We explained that to be “objectively
lewd,” the exhibition must be
“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.”
Id. at 721. “Lewd exhibition,” we held,
“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.”
Id. at 733. We cited with approval in Parra-Sanchez six factors that “can be useful guideposts” in applying the objective
standard:
768 State v. Casey
“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.”
Id. at 734 (quoting United States v. Dost,
636 F Supp 828,
832 (SD Cal 1986), aff’d sub nom United States v. Wiegand,
812 F2d 1239 (9th Cir 1987), aff’d, 813 F2d 1231 (9th Cir
1987) (internal quotation marks omitted)).
Defendant contends in his first assignment of error
that, because photos of the victim’s penis were not in evidence and no other evidence indicated that the photos were
sexual in nature, in considering the Dost factors, no rational
factfinder could find that the photos were “salacious or
focused on sex.” Parra-Sanchez, 324 Or App at 721.
The state responds that, viewing the evidence in
the light most favorable to the state, State v. Baker, 299 Or
App 779, 780,
452 P3d 1066 (2019), the evidence at trial was
sufficient to permit inferences establishing “lewd exhibition”
under the objective standard and the six Parra-Sanchez factors, and we agree. The focal point of the five photos was
victim’s penis—a child’s genitalia—as described in the first
factor; the evidence would support an inference that the victim’s penis was erect, in a “pose generally associated with
sexual activity” and suggesting a “willingness to engage
in sexual activity,” as described in the second and fifth factors. The evidence further supported an inference that the
victim was nude in the pictures, as described in the fourth
factor. We conclude that the evidence was sufficient to allow
a rational factfinder to find beyond a reasonable doubt that
the photos were “salacious or focused on sex,” and we therefore reject defendant’s contention that the trial court erred
in denying a motion for judgment of acquittal.
Judgment of conviction on Counts 15 and 16
reversed and remanded for new trial; remanded for resentencing; otherwise affirmed.
