State v. Horseman

432 P.3d 258, 294 Or. App. 398
CourtCourt of Appeals of Oregon
DecidedOctober 17, 2018
DocketA157867
StatusPublished
Cited by12 cases

This text of 432 P.3d 258 (State v. Horseman) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Horseman, 432 P.3d 258, 294 Or. App. 398 (Or. Ct. App. 2018).

Opinion

HADLOCK, J.

*400Defendant was convicted of 12 sex crimes related to the multiple sexual encounters he had with teenaged boys when he was in his late 40s. Defendant's convictions include five counts of using a child in a display of sexually explicit conduct, ORS 163.670, based on defendant having repeatedly induced one of the victims to masturbate while defendant watched. On four of those sexual-display convictions, the trial court sentenced defendant to concurrent 300-month prison terms under ORS 137.690.1 Defendant challenges those statutorily mandated 300-month prison terms on appeal, arguing that they are unconstitutionally disproportionate as applied to the circumstances of this case.

We recently addressed a similar argument in State v. Carey-Martin , 293 Or. App. 611, 430 P.3d 98 (2018), a case that involved very different facts but which-like this case-included a challenge to a trial court's imposition of concurrent 300-month prison terms for multiple sexual-display convictions. In Carey-Martin , we held that those terms were unconstitutionally disproportionate as applied to a teenaged defendant whose sexual-display convictions were based on "sexting" activity with girls who were only a few years younger than him, and whose convictions for other sex crimes against those victims were based on the girls' ages and attendant incapacity to consent. See id. at 626-29, 430 P.3d 98 (describing the defendant's conduct). Although we found the 300-month terms unconstitutional under those circumstances, we noted the likelihood of "other circumstances where imposing such a sentence for multiple convictions for using a child in a display of sexually explicit conduct * * * would be constitutional." Id. at 643, 430 P.3d 98.

*261This case presents such circumstances. For reasons that we discuss below, the trial court did not err when it imposed the 300-month prison term required by ORS 137.690 on four of defendant's convictions for using a child in a display of sexually explicit conduct. We reject without *401discussion each of the other arguments that defendant makes on appeal.2 Accordingly, we affirm.

Defendant's primary argument on appeal is that the 300-month prison terms imposed in this case violate Article I, section 16, of the Oregon Constitution, which requires that "all penalties shall be proportioned to the offense." Because the constitutionality of a sentence depends on, among other things, case-specific factors "such as characteristics of the defendant and the victim, the harm to the victim, and the relationship between the defendant and the victim," State v. Rodriguez/Buck , 347 Or. 46, 62, 217 P.3d 659 (2009), we begin by summarizing the circumstances surrounding defendant's sexual-display crimes, as well as the facts about defendant and his victim that were brought out at sentencing. We describe the evidence in the light most favorable to the state. State v. Smith , 277 Or. App. 709, 710, 372 P.3d 549, rev. den. , 360 Or. 423, 383 P.3d 864 (2016).

One of defendant's victims was a 16-year-old boy, G. The boy's mother described him as having had some "mental health issues" and as having "tak[en] up a homeless status," coming and going from his parents' residence as he saw fit. Over the course of about a month, defendant repeatedly provided G with alcohol, masturbated in front of him, then asked G to masturbate while defendant watched. Some of those incidents also involved sexual contact between defendant and G. G's description of two of the incidents (as he relayed them to a police officer) is representative:

G told the officer that he had first met defendant at a church-associated café that provides food for people without homes. Nothing sexual happened at that first meeting. About a week later, G and defendant ate dinner together at the café. G told defendant "about his drug and alcohol problem," and, at one point, defendant offered to go buy some *402alcohol for G. The boy was "creeped out" and tried to leave without defendant, but defendant ran after him, went into a store, and came out with alcohol. Defendant and G walked behind a business. Defendant told G "that he was feeling very horny and pulled out his penis," then masturbated until he ejaculated. Defendant then unzipped G's pants, pulled out G's penis, and stroked it. Two weeks later, G and defendant again ate dinner together at the café, defendant again provided G with alcohol, and-after they drank the alcohol together-defendant told G that it was "jack time." They masturbated together, then defendant masturbated G until he ejaculated.

Over the following weeks, defendant abused G three more times, once in the bathroom at a fast-food restaurant, once in a courtyard near a garden, and once in the bathroom at a grocery store. At the fast-food restaurant, defendant told G that he would buy G something to drink if G first masturbated together with him. At some point during those later encounters, defendant orally sodomized G and also digitally penetrated G's anus.

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Horseman v. Cain
324 Or. App. 550 (Court of Appeals of Oregon, 2023)
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465 P.3d 255 (Court of Appeals of Oregon, 2020)
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Cite This Page — Counsel Stack

Bluebook (online)
432 P.3d 258, 294 Or. App. 398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-horseman-orctapp-2018.