State v. Delp

297 Or.App. 1

441 P.3d 590

STATE of Oregon, Plaintiff-Respondent,

v.John David DELP, Defendant-Appellant.

A160751

Court of Appeals of Oregon.

Submitted March 29, 2017.

April 10, 2019

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

EGAN, C. J.

Defendant was convicted of 10 counts of encouraging child sexual abuse in the first degree, ORS 163.684, based on his guilty plea that, on five separate dates, he had "knowingly duplicated a visual recording of sexually explicit conduct involving a child while [he] was aware of and consciously disregarded the fact that the original creation of that visual recording involved child abuse."¹ Because he had been sentenced for a felony sex crime twice before, the trial court sentenced him to life in prison without the possibility of release or parole. See ORS 137.719.² Defendant appeals, asserting that his sentence is unconstitutionally disproportionate as applied to his circumstances under Article I, section 16, of the Oregon Constitution.³ We affirm.

I. FACTS

We begin with the sentencing facts, which include defendant’s prior and current convictions, as well as evidence of past instances of relevant uncharged misconduct. State v. Davidson , 360 Or. 370, 375, 380 P.3d 963 (2016) ("In evaluating disproportionality challenges to criminal sentences, it is appropriate for a court to consider any prior conviction, as well as misconduct that did not result in convictions."); State v. Rodriguez/Buck , 347 Or. 46, 78, 217 P.3d 659 (2009) ("Traditional understandings of proportionality, as well as this court’s cases, require us to consider whether a defendant is a repeat offender by considering previous criminal convictions and whether there is evidence of multiple instances of uncharged wrongful conduct."). We take those facts from the record, and from the state’s sentencing memorandum, which, unless otherwise noted, defendant does not dispute.

A. Prior Convictions

In July 2004, defendant was convicted in the United States District Court for the District of Oregon of one count of possession of child pornography, 18 USC section 2252 (a)(5), and sentenced to 60 months' incarceration. Three other counts were dismissed by motion of the government. The record discloses no further details about that offense.

On September 14, 2004, following a stipulated bench trial, defendant was convicted in Oregon circuit court of two counts of first-degree sodomy, one count of first-degree sexual abuse, and three counts of first-degree encouraging child sexual abuse. We described the facts underlying those convictions in State v. Delp , 218 Or. App. 17, 178 P.3d 259, rev. den. , 345 Or. 317, 195 P.3d 65 (2008), as follows.

In March 2000, an FBI agent, posing as a 14-year-old girl, engaged in an online chat, during which defendant asked the purported 14-year-old "whether she had ‘ever been with an older man,’ suggested that he could travel to Ohio to meet her in person, indicated that he had previously had sexual intercourse with a 12-year-old girl in Indiana, and said that he was planning to have sexual intercourse with a nine-year-old girl who lived about an hour from him." Id. at 19, 178 P.3d 259.

He also sent her pictures of himself, including two nude photographs, and gave his email address. The FBI traced the conversation to defendant and obtained a warrant to search defendant’s home. Id. at 20, 178 P.3d 259. During the search, defendant directed the agents to a computer disk, which contained numerous images of child pornography. Id . During the investigation that followed, defendant also confessed to performing sexual acts on his girlfriend’s one-year-old child.⁴

Defendant appealed his convictions, contending, among other things, that the state did not provide sufficient corroborating evidence of defendant’s confession to the sodomy and sexual abuse counts, as required by ORS 136.425(1) (2003).⁵

Id. at 27, 178 P.3d 259. We agreed and reversed those convictions. Id . at 29, 178 P.3d 259. We affirmed defendant’s convictions for three counts of first-degree encouraging child sexual abuse, and he was ultimately sentenced to a total of 119 months' incarceration on those counts. He served that sentence and was released to post-prison supervision in May 2014.

B. Current Convictions and Uncharged Misconduct

Google reported to the National Center for Missing and Exploited Children that child pornography had been uploaded to Google Drive on November 8, 16, and 22, 2014, and January 24, 2015, from an account associated with defendant. The images depicted infants, toddlers, and prepubescent boys and girls being sexually abused and molested by adults. Additionally, Microsoft reported that a user associated with defendant’s email address uploaded child pornography to the user’s SkyDrive/One Drive account on January 18, 2015, and January 24, 2015. Those child pornography images depicted prepubescent boys and girls being sexually abused and molested by adults, including vaginal, oral, and anal penetration.⁶

During the investigation that ensued, defendant admitted (among other conduct discussed below) to uploading and duplicating child pornography into the Google and Microsoft cloud services, and he was charged with 10 counts of first-degree encouraging child sexual abuse. He waived a jury trial and pleaded guilty to those charges, admitting that, on five separate dates—November 8, 2014, November 16, 2014, November 22, 2014, January 18, 2015, and January 24, 2015—he unlawfully and knowingly duplicated a visual recording of sexually explicit conduct involving a child while he was aware of and consciously disregarded the fact that the original creation of the recording involved child abuse. See ORS 163.684. He also admitted to two upward departure factors—persistent involvement in similar offenses and multiple victims/incidents.

As part of defendant’s plea agreement, the state agreed not to charge him with any additional crimes based on information it had obtained during its investigation. However, the parties also agreed that the state could present that information for the court’s consideration at sentencing. Accordingly, the state submitted a sentencing memorandum describing the results of its investigation. Defendant also submitted a sentencing memorandum. Except as noted, defendant did not dispute the state’s description of the facts.

The investigation revealed that defendant had uploaded a total of 536 images and videos of child pornography in his Google and Microsoft cloud storage services, including depictions of children engaged in acts of sexually explicit conduct with men, women, other children, and dogs. According to the National Center, 77 of the children depicted in those files were known and identified victims who were rescued. Defendant’s smartphone contained 467 photos and videos of child pornography, including images of infants and toddlers being sexually abused. Sixty-eight of those images depict children who were identified and rescued.

During a recorded interview, defendant admitted that he had uploaded, copied, and distributed child pornography using his smartphone through email, online storage devices, and messaging applications, engaging in that activity at various locations in Marion County. He further stated that he viewed the child pornography for his own sexual arousal and masturbation and that he talked to other people online about his interest in child pornography.

Further, defendant "admitted to communicating with people he believed may be engaged in contact sexual abuse of children"; he also communicated with people he believed to be minor girls and sometimes requested and received sexually explicit images from them, although he denied ever meeting them in person.

In addition, he admitted to participating in internet chat rooms and using a text messaging application on his smartphone to communicate with other people to exchange child pornography. The state’s memorandum included a transcript from one of those exchanges in which a woman describes to defendant how she sexually abused two toddlers while their father filmed it. The memorandum also described defendant’s text communications with a 17-year-old girl living in Georgia and, later, Florida, in which defendant requested and induced the minor to produce and send to defendant "several dozens of sexually explicit images of herself." Defendant also sent her sexually explicit images of himself.⁷

At the sentencing hearing, defendant asserted that a sentence of life without the possibility of release or parole—or "true life"—under ORS 137.719(1) was unconstitutionally disproportionate as applied to him under Article I, section 16.⁸ Relying on our opinion in State v. Davidson , 271 Or. App. 719, 745, 353 P.3d 2 (2015) (Davidson I ), aff'd , 360 Or. 370, 380 P.3d 963 (2016) (Davidson II ), he argued that, because his crimes "exclusively involved the duplication of existing child pornography" and not crimes involving force or violence, under Davidson I , a true-life sentence in his circumstances would violate Article I, section 16. The trial court rejected that argument, explaining, in part:

"This is not a defendant who’s unaware of the harmfulness, the criminality of the images that he was possessing and uploading. He had ample opportunity to be aware of that in his prior criminal processes. It’s not a defendant who’s youthful or otherwise would seem likely to benefit from some opportunity at treatment. It’s not a defendant whose only danger lies in viewing and therefore promoting the production of abusive images.

"I do find on this record that the defendant also constitutes a threat of contact pedophilia.

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