State v. Saunders

429 P.3d 1049, 294 Or. App. 102
CourtCourt of Appeals of Oregon
DecidedSeptember 12, 2018
DocketA160762
StatusPublished
Cited by8 cases

This text of 429 P.3d 1049 (State v. Saunders) 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. Saunders, 429 P.3d 1049, 294 Or. App. 102 (Or. Ct. App. 2018).

Opinion

GARRETT, J.

*103Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse, ORS 163.427, and one count of using a child in a display of sexually explicit conduct, ORS 163.670.

On appeal, defendant raises 11 assignments of error. We reject all of them without discussion except the third and fourth assignments, which challenge the trial court's admission of certain evidence that defendant acted with a sexual purpose. For the reasons explained below, we reject defendant's arguments and affirm.

The charges against defendant arose from two incidents involving the victim, defendant's five-year-old granddaughter. The two sexual abuse counts arose from an incident in which defendant touched the victim's vagina and caused the victim to touch defendant's penis; the child-display count arose from a different incident in which defendant surreptitiously recorded a video of the victim dancing to cartoons while she was wearing only panties.

*1051In his third assignment of error, defendant challenges the trial court's admission of four exhibits containing pornographic images that defendant had accessed around the time that he abused the victim. The state offered those exhibits to show that defendant has a sexual interest in prepubescent children. Defendant objected on relevance grounds, asserting that the images depicted either post-pubescent children or young adult women and therefore had no tendency to show that defendant has an interest in prepubescent girls. The trial court generally agreed with defendant that any images that "clearly are of adults, young adults" were not relevant. However, the court admitted the referenced exhibits, explaining that images that "look[ ] like young girls, even fake young girls," were relevant.

We review the trial court's OEC 401 relevance determination for legal error. State v. Swinney , 269 Or. App. 548, 554, 345 P.3d 509 (2015). "Relevant evidence" is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the *104evidence." OEC 401. "The proper inquiry in determining a question of logical relevance is whether the item of evidence even slightly increases or decreases the probability of the existence of any material fact in issue." State v. Millar , 127 Or. App. 76, 80, 871 P.2d 482 (1994) (internal quotation marks and brackets omitted). Thus, the issue here is whether defendant's viewing of the pornographic images in question increases, even slightly, the probability that defendant acted with a sexual purpose in his conduct toward the victim. We conclude that it does, and that it is therefore relevant.

The images are from websites with the names like "Lesbian Lolita" and "motherless.com." Unsurprisingly, the images depict females in contexts inviting the viewer to see them as young (e.g. , wearing braces, lacking pubic hair). Indeed, defendant concedes that the images encourage viewers to see the depicted females as "underage." Defendant's narrow argument is that the images are nonetheless irrelevant because they "do not depict young women in contexts that invite the viewer to see them as prepubescent children." But we are unable to say as a matter of law that the images, in context (including the websites' names), do not invite the viewer to perceive the models as being prepubescent. Cf. Millar , 127 Or. App. at 81, 871 P.2d 482 (evidence of photographs depicting "a young nude female, with no pubic hair, wearing tennis shoes and bobby sox, with her finger in her mouth in a decidedly 'babyish' pose" was relevant to proving the defendant's sexual interest in the genital areas of young girls). Accordingly, we reject defendant's argument and conclude that the trial court did not err in admitting the evidence.

Defendant's fourth assignment of error challenges the trial court's admission of evidence that defendant had read stories containing graphic descriptions of young children being subjected to physical abuse. As we explain below, we reject defendant's challenge because we conclude that defendant invited any error.

At trial, the state offered exhibits containing "child literotica" (sexually explicit writing depicting adults having sex with children) that defendant had purportedly viewed. Some of the exhibits included descriptions of prepubescent children being subjected to acts of bondage and *105sadomasochism. Defendant objected under OEC 4031 to the admission of any references to bondage and sadomasochism. The trial court agreed with defendant that such evidence should be excluded, and asked defense counsel to "highlight all content that you think I should redact." Defense counsel replied, "Okay, that's what I can do pretty easily."

Defense counsel later proposed redactions to Exhibits 102 and 103, and made comments to the trial court indicating "that's it." The trial court accepted all of those proposed redactions.

*1052On appeal, defendant identifies two excerpts in Exhibits 102 and 103 that depict children being subjected to acts of bondage and sadomasochism but that were not redacted when those exhibits were admitted into evidence. Undisputedly, defendant did not identify those particular excerpts when he proposed the redactions to Exhibits 102 and 103 to the trial court. The state contends that defendant therefore invited the error. Defendant argues that, notwithstanding any inadvertent contribution by him to the mistake, the court still had a "responsibility to ensure that evidence it had ruled inadmissible under OEC 403 was not inadvertently admitted," and that the trial court abused its discretion by failing "to redact (or to ensure the redaction of)" that material.

A party invites error when the party is " 'actively instrumental in bringing about' " an alleged error. State v. Kammeyer , 226 Or. App. 210

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Cite This Page — Counsel Stack

Bluebook (online)
429 P.3d 1049, 294 Or. App. 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-saunders-orctapp-2018.