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FILED: May 25, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

AMY E. TYSON,

Defendant-Appellant.

Malheur County Circuit Court
07068615C2
A139425

Patricia A. Sullivan, Judge.

Argued and submitted on August 12, 2010.

Jesse Wm. Barton argued the cause and filed the briefs for appellant.

Robert M. Atkinson, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Landau, Judge pro tempore.

ORTEGA, P. J.

Affirmed.

ORTEGA, P. J.

Defendant appeals from a judgment, following a jury trial, convicting her of one count of using a child in a display of sexually explicit conduct, ORS 163.670; one count of second-degree sodomy, ORS 163.395; two counts of first-degree sexual abuse, ORS 163.427; and one count of second-degree rape, ORS 163.365. We reject all but one of defendant's numerous assignments of error without discussion, writing only to address her contention that the trial court erred in denying her motion for judgment of acquittal on the charge of using a child in a display of sexually explicit conduct. We reject that contention and, accordingly, affirm.

The pertinent facts are few. Defendant and her husband engaged in a series of sexual acts with a 13-year-old child. Also, they each observed the other engaging in sexual contact with the child during the course of those encounters. In addition, defendant's husband instructed the child regarding how to engage in certain sexual acts with defendant, and the child then did as instructed. Defendant moved for a judgment of acquittal with respect to the charge of using a child in a display of sexually explicit conduct, contending that she could not be convicted of that crime "[b]ecause the only other observer of the sexual activity was a participant in the sexual activity[.]" The trial court denied the motion, and defendant ultimately was convicted of that charge, among others.

On appeal, defendant renews the arguments that she made before the trial court. She asserts that ORS 163.670 "does not apply to participants in an activity that is not disseminated by performance or recording." According to defendant, because her husband was the other person who observed defendant's sexual conduct with the child, and because he was also a participant in the sexual activity, ORS 163.670 does not apply. The state, on the other hand, asserts that, by its unambiguous text, "the statute applies whenever one person sexually abuses a child and any other person is permitted to observe."

Defendant's contention about the application of ORS 163.670 presents a question of statutory construction. Accordingly, we examine the text of the statute in context and in light of any pertinent legislative history proffered by the parties in order to determine the legislature's intent. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). In construing a statute, we give words of common usage their "plain, natural, and ordinary meaning." PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993).

ORS 163.670(1) makes it unlawful to use a child in a display of sexually explicit conduct. That statute 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 photograph, motion picture, videotape or other visual recording."(1)

(Emphasis added.) The purpose of the series of statutes of which ORS 163.670 is a part is to prevent "the underlying harm caused by child sexual abuse." State v. Stoneman, 323 Or 536, 547, 920 P2d 535 (1996). The statute does not restrict its reach to observation only by people who have not also participated in sexually explicit conduct with the child nor to conduct that is visually recorded. Rather, the statute makes it unlawful to compel or induce a child to participate in sexually explicit conduct for any person to observe. See Webster's Third New Int'l Dictionary 97 (unabridged ed 2002) (the plain meaning of "any" includes "one, no matter what one : EVERY"); id. ("anyone" means "any person indiscriminately"); see also Fleming v. United Services Automobile Assn., 329 Or 449, 456, 988 P2d 378 (1999) ("any" may be used synonymously with "every"); Lesser v. Great Lakes Casualty Co., 171 Or 174, 184, 135 P2d 810 (1943) ("The words 'any person or persons' are most comprehensive and unambiguous." (Internal quotation marks omitted.)). Accordingly, when, as here, a person engages in sexually explicit conduct with a child for another person to observe (whether or not that other person also has engaged in such conduct with the child and whether or not the conduct is recorded), that conduct comes directly within the statute's scope.

Defendant nonetheless contends that the legislative history supports her view that ORS 163.670 does not apply to an observer who also has participated in the sexually explicit conduct. Specifically, defendant points to the fact that the statute was enacted "as section 3 of Senate [B]ill 375 (1985)" and that bill was entitled "[r]elating to child pornography." See Or Laws 1985, ch 557,