State v. DiMolfetto

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456                        August 6, 2025          No. 712

           IN THE COURT OF APPEALS OF THE
                   STATE OF OREGON

                STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
        JOHN ANTHONY DIMOLFETTO, JR.,
                 Defendant-Appellant.
              Linn County Circuit Court
   20CR26835, 20CR58130; A179213 (Control), A179214

   Brendan J. Kane, Judge.
   Argued and submitted December 04, 2024.
   Zachary J. Stern argued the cause for appellant. Also on
the briefs was Stern Law.
   Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Aoyagi, Presiding Judge, Joyce, Judge, and
O’Connor, Judge.*
   JOYCE, J.
   In Case No. 20CR26835, convictions on Counts 5, 6, 7,
8, and 9 reversed; remanded for resentencing; otherwise
affirmed. In Case No. 20CR58130, remanded for resentenc-
ing; otherwise affirmed.




______________
   * O’Connor, Judge vice Mooney, Senior Judge.
Cite as
342 Or App 456
(2025)   457
458                                                  State v. DiMolfetto

            JOYCE, J.
         Defendant was convicted of multiple counts of using
a child in a display of sexually explicit conduct, encouraging
child sexual abuse, and luring a minor. His convictions were
based on evidence that he used anonymous texting appli-
cations and false names to contact girls and convince them
to send him sexually explicit photos and engage in sexu-
ally explicit conduct. On appeal, he raises 31 assignments
of error. Those challenges can be broken down into several
categories: (1) challenges to the multiple warrants that offi-
cers obtained to search the records of the third-party tex-
ting applications that he used to contact the victims; (2) a
challenge to a warrant to search himself and his phone;
(3) challenges to the constitutionality of two statutes under
which he was charged, ORS 163.670 and ORS 163.684, as
violating his free speech rights; (4) state and federal con-
frontation clause challenges to the admission of out-of-court
statements by non-testifying complainants; and (5) 23 chal-
lenges to the sufficiency of evidence supporting his convic-
tions. The state concedes that five of defendant’s convictions
should be reversed because they were based on events that
occurred outside of the jurisdiction. We accept the state’s
concession on those counts and reverse. We otherwise affirm
on defendant’s claims of error.
                    I. MOTIONS TO SUPPRESS
         In his first six assignments of error, defendant
challenges five warrants, two issued in Washington in April
2020 and three issued in Oregon in May 2020.1 We begin
with the April 2020 warrants because our conclusions with
respect to those warrants inform the analysis of the May
2020 warrants. As explained below, we conclude that the
trial court correctly denied defendant’s motions to suppress
evidence obtained pursuant to the April 2020 warrants. We
further conclude that the trial court correctly denied defen-
dant’s motions to suppress evidence obtained pursuant to
the May 2020 warrants.


   1
       Defendant does not challenge warrants issued in June 2020.
Cite as
342 Or App 456
(2025)                            459

A.   April 2020 Warrants to Search Pinger and TextNow
     Records
         We state the uncontroverted facts as recited in the
affidavit supporting the request for the search warrant.
State v. Burnham,
287 Or App 661, 662
,
403 P3d 466
(2017),
adh’d to as modified on recons,
289 Or App 783
,
412 P3d
1233
(2018). An officer with the Vancouver police depart-
ment responded to a report of “possible communication with
a minor with immoral intent,” after a mother discovered
sexually explicit text messages between her 11-year-old
daughter, A, and a self-described 25-year-old man named
“Johnny” on the mother’s cell phone. The officer asked A if
she would talk to them about the texts, and A refused. A’s
mother showed the texts to the officer, and they included
the messages between A and Johnny, as well as messages
between A and a person named “Karra.”
          Karra first contacted A on a social media applica-
tion called YUBO on March 11, 2020. Karra asked A what
her sexual orientation was and asked for A’s phone number,
which A provided. During the text conversation that followed,
A told Karra that she was 13 years old, and Karra said she
was also 13 years old. Karra said she wanted to share a nude
picture of her breasts with A and asked A, “Could I see back?”
A said, “Um I’m kinda insecure abt that kinda stuff,” and
Karra replied, “Me too I’m small but I wanna show I like you
and trust you.” Karra sent a nude picture of breasts and said,
“Ur turn then.” A sent a picture of her breasts, and Karra
said, “lol they hard u turned on?” A said “Nah I’m cold lmao,”
to which Karra replied, “Wish I was there I would keep u
warm and then they would be hard cause ur turned on haha.”
         Karra told A that she has a friend who she has
phone sex with named “Johnny” and that she wanted A to
have phone sex with him. Karra told A that she was going
to give Johnny A’s phone number, and then Johnny texted
A, introducing himself and asking if A has any pictures. A
sent a nonsexual picture of her face. Johnny asked A if he
could call her, told her he was 25 years old, and asked how
old she was. A told him she was 13 years old. Johnny then
sent a series of sexually explicit messages to A. The conver-
sation continued over text message the following day, when
460                                       State v. DiMolfetto

Johnny told A that he loves her, desperately wants to talk to
her, and would give her his credit card if she “need[s] love.”
         Givens, a detective in the cybercrime unit, discov-
ered that Karra’s phone number (ending in 0089) was asso-
ciated with a communications provider called Pinger and
that Johnny’s phone number (ending in 7417) was associated
with a communications provider called TextNow. Givens
sent “preservation request[s]” to both Pinger and TextNow
asking them to preserve data associated with Karra and
Johnny’s phone numbers. Givens received information from
YUBO, the social media app, and discovered that three
photos of a girl, who was approximately 12 to 16 years old,
were associated with the YUBO account, and the user was
located near Gates, Oregon. The phone number associated
with the YUBO account was the same number that Johnny
used to communicate with A. Because Johnny’s phone num-
ber was associated with YUBO and “Karra” first contacted
A through YUBO, Givens suspected that Karra and Johnny
were “very likely * * * the same suspect.”
        In addition to those facts, the affidavit included
information about Givens’s training and experience, and
averments based on that training and experience, includ-
ing that “some suspects with a sexual interest in minor
females may create personas of female minors in order to
meet and befriend female minors online. They then may use
that minor persona to introduce the victim to an adult per-
sona, allowing for more interactive contact such as phone
calls and video chat.” Further, “[t]hose who produce, receive
and attempt to receive child pornography may collect sex-
ually explicit or suggestive materials * * * [and] may use
these materials to lower the inhibitions of children they are
attempting to seduce * * * [and] may correspond with and/
or meet others to share information and materials * * * and
often maintain lists of names, addresses, and telephone
numbers of individuals with whom they have been in con-
tact and who share the same interests in child pornogra-
phy.” Givens averred that “[i]n light of the image forwarded
by the suspect * * * and the request for images from the
minor victim, there is probable cause to believe the suspect
has maintained a collection of child pornography * * *.”
Cite as
342 Or App 456
(2025)                                 461

          The affidavit also included information about
“providers like Pinger [and] TextNow,” including that, “[i]
n general,” they “ask each of their subscribers/customers
to provide certain personal identifying information when
registering for an account [such as] the subscriber’s full
name, physical address, telephone numbers and * * * email
addresses * * *.” And they “typically retain certain trans-
actional information about the creation and use of each
account on their systems[,] [which] can include * * * records
of log-in (i.e. session) times and durations * * * and other log
files that reflect usage of the account.” Providers also often
have records of the internet protocol (IP) address “used to
register the account and associated with particular logins to
the account,” and that information “can help identify which
computers or other devices were used to access the account.”
         Givens asserted that, based on the facts in the affi-
davit, there was probable cause to believe that evidence,
fruits, and instrumentalities of violations of the Washington
crimes of communication with a minor for immoral purposes
and sexual exploitation of a minor would be found in the
Pinger account associated with the “0089” phone number
and the TextNow account associated with the “7417” number.
A Washington magistrate issued two warrants (the April
warrants), one authorizing a search of the Pinger account
and one authorizing a search of the TextNow account. Both
warrants authorized a search for information dating back
to March 9, 2020—two days before Karra and Johnny first
contacted A—and continuing until the date that the war-
rants were issued, which was April 22, 2020. The warrants
included the following search categories:
   “1. All user profile information provided to [Pinger/
   TextNow], including all demographic information, and ser-
   vice date range;
   “2. Any information provided as a means of 2-step ver-
   ification or for account registration/recovery purposes, to
   include phone numbers, email addresses, and dates of most
   recent use of verification or recovery;
   “3. A list of all devices used by this user from account cre-
   ation until the date of this warrant, including:
462                                          State v. DiMolfetto

      “a. Any unique identifiers employed by [Pinger/
   TextNow];
      “b. Make/Model of each registered device, if known;
      “c. IMEID or other unique numbers identifying any
   device;
   “4. Login history over the time period listed by each num-
   ber, to include IP addresses and ports, dates and times, and
   any unique device identifiers included, indicating for each
   whether via mobile device or desktop;
   “5. Content of all text SMS (Short message Service) mes-
   sages, MMS (multimedia message service) messages, as
   well as any phone calls, over the time period listed for each
   number, to include attachments;
   “6. A list of any and all contacts;
   “7. Dates indicating the start and conclusion of service
   with regard to user at the date and time listed.”
          Pursuant to the April warrants, Vancouver police
officers obtained a total of 12 data files from Pinger and
TextNow. Because the information from YUBO indicated
that the person using the accounts was located in Linn
County, Oregon, Vancouver law enforcement forwarded the
files to the Linn County Sheriff’s Department. Linn County
Sheriff Detective Trenary opened the files to look for evi-
dence related to the incident with A, and he immediately
discovered texts and images that involved victims other
than A. Trenary subsequently obtained warrants in May
2020 to examine the data files sent from Washington for
evidence of Oregon offenses, as well as to search defendant
and any digital devices discovered on his person. Based on
evidence obtained from those warrants and additional evi-
dence discovered during the investigation, Trenary obtained
additional warrants in June 2020.
         Defendant filed motions to suppress evidence
obtained from the April 2020 Pinger and TextNow war-
rants, arguing that, among other things, the searches and
seizures violated the heightened particularity requirement
of Article I, section 9, of the Oregon Constitution announced
in State v. Mansor,
363 Or 185
,
421 P3d 323
(2018) (Mansor
Cite as
342 Or App 456
(2025)                                          463

II).2 See id. at 218 (to satisfy the particularity requirement, a
warrant to search a computer “must identify, as specifically
as reasonably possible in the circumstances, the informa-
tion to be searched for, including, if relevant and available,
the time period during which that information was created,
accessed, or otherwise used”).
          In defendant’s view, the affidavit established prob-
able cause only for information related to A and A’s phone
number and only for the time period of March 11 and 12,
2020, the dates when A communicated with Karra and
Johnny. Thus, because the warrants did not limit the search
to information related to A and A’s phone number, and
included the timeframe of March 9, 2020, through April 22,
2020, defendant argued that the warrants were overbroad.
See id. at 212 (specificity and overbreadth are two distinct
concepts that inform the particularity analysis, and a war-
rant “must not authorize a search that is ‘broader than the
supporting affidavit supplies probable cause to justify’ ”).
Defendant also argued that the warrants were impermissi-
bly nonspecific because they authorized a search for “ ‘any’ or
‘all’ information of a particular type of digital data.”
          At the hearing on the motion, defendant also argued
that the April warrants were overbroad because the affida-
vit did not establish probable cause to believe that the con-
tent of defendant’s messages would be found in the Pinger
and TextNow servers. Defendant contended that, because
the affidavit included only information about those pro-
viders’ practices with respect to subscriber, transactional,
log-in, and IP address information, a neutral and detached
magistrate could not reasonably conclude that the providers
retained the content of defendant’s messages.
          The state argued that the heightened standard
from Mansor II does not apply to records retained by third
parties and that, under the regular standard, the April war-
rants were not overbroad or impermissibly nonspecific.
        The trial court denied defendant’s motions after con-
cluding that there was sufficient information in the affidavit
   2
     Defendant also argued that the searches and seizures violated the Fourth
Amendment to the United States Constitution. Defendant does not renew that
argument on appeal.
464                                       State v. DiMolfetto

that Pinger and TextNow would store the content of defen-
dant’s messages; that the court had “to look at [the Pinger
and TextNow records] differently than say a cellphone,” and
thus the heightened standard from Mansor II does not apply;
and that the parameters in the April warrants, including
the timeframe, were not overbroad. Defendant filed motions
to reconsider the denial of his motions to suppress the April
warrants, renewing his previous arguments, and the trial
court denied those motions.
        Defendant appeals the trial court’s denial of his
motions to suppress and for reconsideration, reprising his
arguments that the April warrants were overbroad under
Mansor II because (1) the affidavit did not establish prob-
able cause that the content of defendant’s messages would
be located on the Pinger and TextNow servers; and (2) the
warrants did not limit the search to information related to
A and to the two-day timeframe when A communicated with
Karra and Johnny. Defendant further renews his argument
that the warrants were impermissibly nonspecific because
they authorized searches for “all user profile information,”
“any information” regarding account registration, and the
“content of all text messages” over the course of an arbi-
trary timeframe. The state argues, as it did below, that the
heightened particularity standard from Mansor II does not
apply, and that under the regular standard the warrants
were not overbroad or impermissibly nonspecific.
         We review a trial court’s denial of a motion to sup-
press for errors of law and are bound by the court’s fac-
tual findings if there is constitutionally sufficient evidence
to support them. State v. Hargrove,
327 Or App 437, 443
,
536 P3d 612
(2023). Whether a warrant satisfies the par-
ticularity requirement of Article I, section 9, of the Oregon
Constitution is an issue we review for errors of law.
Id.
A
presumption of regularity arises when a search is war-
ranted, and the defendant bears the burden of proving
the unlawfulness of a warranted search.
Id.
In resolving a
challenge to a search warrant, we look at “the totality of
the circumstances presented in the affidavit, * * * and we
resolve doubtful or marginal cases in favor of the preference
for warrants[.]” State v. Miser,
303 Or App 347, 352
, 463 P3d
Cite as
342 Or App 456
(2025)                              465

599, rev den,
366 Or 827
(2020) (internal quotation marks
and citations omitted).
         As explained below, we conclude that the heightened
standard announced in Mansor II does not apply and that
the April warrants were not overbroad because “the facts, as
set forth in the affidavit, along with any reasonable infer-
ences, * * * ‘permit[ted] a neutral and detached magistrate
to determine that seizable evidence probably would be found
at the place to be searched.’ ” State v. Soto-Sarabia,
333 Or
App 46
, 50,
551 P3d 980
, rev den,
372 Or 813
(2024) (setting
forth standard for probable cause). We further conclude that
the warrants were sufficiently specific because they allowed
an officer, “with reasonable effort, to identify the place to be
searched and the items to be seized.” State v. Goode,
335 Or
App 108
, 116,
557 P3d 1132
(2024), rev den,
373 Or 280
(2025).
    1.   The applicable legal standard
         We begin with the threshold question, namely, the
legal standard that guides our analysis of defendant’s claim
that the April warrants were insufficiently particular. As
to that requirement, defendant contends that the height-
ened standard set out in Mansor II applies because the state
sought records that involved digital data. In his view, the
records from Pinger and TextNow are the “functional equiv-
alent of tangible flip phones,” triggering the heightened
particularity standard announced in Mansor II. The state,
in contrast, argues that that heightened standard does not
apply to the type of data at issue here, which is a limited
category of digital information retained by a third-party
service provider that is not analogous to cellphones and per-
sonal computers. We agree with the state.
         Mansor II involved a warranted search and sei-
zure of defendant’s personal computer. Given the “unique
characteristics of a personal computer,” the court concluded
that a heightened particularity requirement was necessary
for warrants seeking information on personal electronic
devices.
363 Or at 205, 218
. In concluding that warrants
for personal electronic devices require a heightened partic-
ularity standard, the court drew on the analysis in Riley
v. California,
573 US 373
,
134 S Ct 2473
,
189 L Ed 2d 430
466                                         State v. DiMolfetto

(2014), a case involving the question whether officers could
search cell phones incident to arrest, i.e., without a warrant.
Id. at 200. In Riley, the Court “identified the several ways in
which cell phones ‘differ in both a quantitative and a qual-
itative sense’ from other objects that might be found on an
arrestee’s person,” including “many of those characteristics
[that] also describe defendant’s computer here.” Id. at 201
(quoting Riley, 573 US at 375). Cell phones contain photo-
graphs, picture messages, text messages, internet browsing
history, a calendar, a phone book, “and so on.” Riley, 573
US at 394. The “immense storage capacity” of cell phones
means that “[t]he sum of an individual’s private life can be
reconstructed through a thousand photographs labeled with
dates, locations, and descriptions; the same cannot be said
of a photograph or two of loved ones tucked into a wallet.” Id.
at 393-94. Further, cell phones collect “many distinct types
of information—an address, a note, a prescription, a bank
statement, a video—that reveal much more in combination
than any isolated record.” Id. at 394. And the internet his-
tory of cell phones can reveal “an individual’s private inter-
ests or concerns”; location data can show where a person
has been; and apps on a phone may provide a vast array of
personal information. Id. at 395. The Court thus observed
that treating a cell phone like a house is insufficient to pro-
tect the privacy interests that many individuals have in the
information stored in their phones:
   “[A] cell phone search would typically expose to the govern-
   ment far more than the most exhaustive search of a house:
   A phone not only contains in digital form many sensitive
   records previously found in the home; it also contains a
   broad array of private information never found in a home
   in any form—unless the phone is.”
Id. at 396-97 (emphasis in original).
          In light of Riley’s description of the vast amount of
information that could be found on personal cell phones, the
Mansor II court concluded that “the fact that police have a
warrant, based on probable cause, to search for and seize
‘things,’ including computers, does not necessarily mean that
they may conduct a comprehensive forensic examination of
a computer that they seize, and then use at trial anything
Cite as
342 Or App 456
(2025)                            467

they find on the computer, without limit.
363 Or at 208
. To
so hold would disregard the fact that “a computer or other
digital device is a repository with a historically unprece-
dented capacity to collect and store a diverse and vast array
of personal information.”
Id.
Thus, to meet the particularity
requirement of Article I, section 9, a warrant authorizing
the search of digital devices “must identify, as specifically
as reasonably possible in the circumstances, the informa-
tion to be searched for, including, if relevant and available,
the time period during which that information was created,
accessed, or otherwise used.”
Id. at 218
. That standard
requires more than the typical particularity requirement,
which requires that the warrant particularly describe the
place to be searched, and the person or thing to be seized,
and “allow the executing officer to identify with reasonable
effort the things to be seized for which a magistrate has
found probable cause.” Hargrove,
327 Or App at 442-43
.
          Turning to the warrants at issue here, they seek
a particular category of digital data, namely, TextNow
and Pinger’s records for defendant’s accounts. But simply
because the warrants seek digital information does not
mean that Mansor II’s heightened standard applies. Rather,
Mansor II’s reformulation of the particularity requirement
hinged on the nature of the personal computer at issue
there, a device that—much like the cell phones addressed in
Riley—may contain vast amounts of personal information.
The records at issue here—text messages maintained by a
third-party service provider—do not implicate the “ ‘unprec-
edented capacity’ of electronic devices to ‘collect and store
a diverse and vast array of personal information’ as identi-
fied in Mansor [II].” Hargrove,
327 Or App at 451
(quoting
Mansor II,
363 Or at 208
). To be sure, there may be some
records maintained by a third-party service provider that
store a “diverse and vast array of personal information.”
Mansor II,
363 Or at 208
. But there is no evidence that
the records here are tantamount to the personal electronic
devices at issue in Mansor II; to the contrary, the record
shows that the warrants sought limited types of records,
i.e., the text message and phone call records, and a list of
contacts. Stated slightly differently, unlike the devices at
issue in Mansor II and Riley—devices that could contain the
468                                        State v. DiMolfetto

defendant’s photographs, picture messages, text messages,
internet browsing history, a calendar, a phone book, bank-
ing records, and more—the records sought here contained a
narrow, specific category of digital data. We thus decline to
extend Mansor II to this more limited situation.
      2. Overbreadth
         Having determined that the heightened standard
announced in Mansor II does not apply, we assess the valid-
ity of the April warrants under the standard framework,
i.e., “whether the warrant[ ] describe[s], with particularity,
the place to be searched and the persons or things to be
seized and whether the warrant was supported by probable
cause.” Goode, 335 Or App at 111 (internal quotation marks
omitted). Under that standard, we begin with defendant’s
arguments that the warrants were overbroad, i.e., that they
authorized a search that was “ ‘broader than the supporting
affidavit supplies probable cause to justify.’ ” Mansor II,
363
Or at 212
; see State v. Cannon,
299 Or App 616, 626
,
450 P3d
567
(2019) (“[T]he gravamen of an overbreadth challenge is
an asserted lack of probable cause * * *.” (Internal quotation
marks omitted.)).
         First, defendant argues that the April warrants
were overbroad because “the affidavit contains no infor-
mation that TextNow or Pinger possessed [or] retained the
content of a user’s communications on their respective serv-
ers,” and thus the warrants’ authorization to search for and
seize the “[c]ontent of all * * * messages, as well as any phone
calls,” was not supported by probable cause. Under our stan-
dard of review, where “we allow all inferences that the issu-
ing court may have fairly drawn from the facts in the affida-
vit,” we conclude that defendant has not met his burden to
show that the warrant was unlawful. Soto-Sarabia, 333 Or
App at 48 (setting forth standard of review).
         To be sure, as defendant argues, the affidavit did
not explicitly state that Pinger and TextNow typically retain
the content of a user’s communications. However, defendant’s
argument—that the affidavit would establish probable cause
to search the records only if it explicitly stated that the pro-
viders retain the content of communications—is inconsistent
Cite as
342 Or App 456
(2025)                              469

with our standard of review and case law, which allow for
reasonable inferences drawn from the affidavit when the
affidavit is read in a “commonsense, nontechnical and realis-
tic fashion * * *.” State v. Wilson,
178 Or App 163, 167
,
35 P3d
1111
(2001) (internal quotation marks omitted). Here, the
affidavit included information that Givens sent preservation
requests to Pinger and TextNow and that those providers
typically retain “transactional information,” beginning with
specific information such as “length of service” and “records
of log-in * * * times and durations,” and ending with the broad
category of “other log files that reflect usage of the account.”
Construing the affidavit “in a commonsense, nontechnical
and realistic fashion,” the affidavit permitted a reasonable
inference that Pinger and TextNow retain various types of
records and that those records would, more likely than not,
include the content of defendant’s communications.
Id.
Next, defendant argues that the April warrants
were overbroad because they did not limit the search to infor-
mation related only to A and only to the two-day timeframe
when A communicated with Karra and Johnny. Because the
affidavit established probable cause that evidence unrelated
to A would be found in the specified locations (including the
sexually explicit photo of a minor that defendant sent to
A, which, we note, defendant does not address in his argu-
ment), we conclude that defendant did not meet his burden
of proving the unlawfulness of the warranted searches.
         That conclusion is informed by our analysis in
State v. Rose,
264 Or App 95
,
330 P3d 680
, rev den,
356 Or
400
(2014). In that case, the defendant challenged the trial
court’s denial of his motion to suppress evidence obtained
pursuant to a warrant to search his Yahoo email account.
Rose,
264 Or App at 97
. The supporting affidavit stated
that, in June 2010, the victim, a 16-year-old girl, emailed
the defendant two photographs of her bare chest.
Id.
In July
2010, the victim told a detective that she had been commu-
nicating with the defendant over the last few months online,
including via emails, and that they had “discussed sexually
explicit details.”
Id. at 98
.
       The detective applied for a warrant, stating that
there was probable cause to believe that evidence of the
470                                        State v. DiMolfetto

crime of using a child in display of sexually explicit con-
duct and encouraging child sexual abuse would be found
in the defendant’s Yahoo account.
Id.
A magistrate issued
the warrant, which authorized officers to search and seize
user information and all of the defendant’s emails, without
limiting the search to any timeframe or to communications
related only to the victim.
Id.
The defendant moved to sup-
press the evidence obtained pursuant to the warrant, argu-
ing that, among other things, it was insufficiently particu-
lar.
Id. at 99
. The trial court denied the defendant’s motion.
Id.
The defendant appealed, renewing his argument
that the warrant was insufficiently particular—namely, that
it was overbroad—because, “despite the fact that the officer
knew that the alleged photographs of the victim were sent
in June or July of 2010,” the warrant authorized a search of
all of the defendant’s emails stored on his Yahoo account.
Id. at 106
. We affirmed, concluding that the warrant was
not overbroad because the two photographs referred to in
the affidavit “[were] not the only evidence of [the] crimes
that could exist in defendant’s Yahoo account.”
Id. at 109
. In
addition to the information about the two photographs, the
affidavit included the victim’s statement that she and the
defendant had “discussed sexually explicit details” online
over the last few months, which indicated that “possible evi-
dence of [the] defendant’s crimes, aside from the two photo-
graphs, * * * were being stored * * * in his email account.”
Id.
Here, defendant makes a similarly narrow over-
breadth argument—that despite the fact that officers knew
that A communicated with the user of the Pinger and
TextNow accounts only during a two-day period, the April
warrants authorized a search for information unrelated to
A and broader than the two-day period, and thus the war-
rants were overbroad. However, similar to Rose, where the
two photographs referred to in the affidavit were not the
only evidence of the crimes that could exist in the defen-
dant’s Yahoo account, A’s communications during the two-
day period are not the only evidence for which the affidavit
in this case established probable cause to search for in the
Pinger and TextNow records.
Cite as
342 Or App 456
(2025)                              471

         The affidavit included the following facts: Karra
contacted A through YUBO; asked A for her phone number
and began texting A from a Pinger account; sent A a sexu-
ally explicit image of a minor (the photograph of “Karra’s”
breasts); requested a sexually explicit photograph from A,
which A then sent; and quickly introduced A to Johnny and
asked A to have phone sex with Johnny; and then Johnny
sent A sexually explicit messages from a TextNow account;
and Johnny’s TextNow phone number was associated with
“Karra’s” YUBO account.
         The affidavit also included information based on
Givens’s training and experience that “suspects with a sex-
ual interest in minor females may create personas of female
minors in order to meet and befriend female minors online
[and] then may use that minor persona to introduce the victim
to an adult persona,” and that suspects “who produce, receive
and attempt to receive child pornography may collect sexually
explicit * * * materials in a variety of media, * * * [and] may
use these materials to lower the inhibitions of children they
are attempting to seduce * * *.” See State v. Goodman,
328 Or
318, 328
,
975 P2d 458
(1999) (facts derived from training and
experience may contribute the necessary factual nexus in a
determination of probable cause if the expertise is connected
to objective facts derived from other sources).
         That training and experience connected to the facts
of this case—specifically that (1) Johnny’s phone number
was connected to the YUBO account, where Karra, a pur-
ported 13-year-old girl, first contacted A; (2) the initial con-
tact on YUBO was quickly followed by an exchange of sexu-
ally explicit photographs over the Pinger account, including
a sexually explicit photograph of a minor who was not A (the
photo of “Karra’s” breasts); and (3) Johnny then immediately
sent sexually explicit messages from the TextNow account—
provides the necessary factual nexus in the determination
of probable cause. In other words, the affidavit established
probable cause to believe that defendant targeted A through
the YUBO, Pinger, and TextNow accounts, and the fact that
defendant possessed a sexually explicit photo of a different
minor female allowed a reasonable inference that defendant
had targeted at least one other victim. See State v. Anspach,
472                                       State v. DiMolfetto
298 Or 375, 381
,
692 P2d 602
(1984) (to determine proba-
ble cause, the magistrate may rely on facts asserted in the
affidavit as well as reasonable inferences to be drawn from
them); State v. Daniels,
234 Or App 533, 538-41
,
228 P3d
695
, rev den,
349 Or 171
(2010) (objective fact that the defen-
dant had tried unsuccessfully to videotape an act of sexual
abuse 20 years earlier, combined with the officer’s knowledge
from training and experience that pedophiles own and often
retain “deviant” movies, was sufficient to establish proba-
ble cause that videotape evidence of sexual abuse would be
found in the defendant’s home).
         Thus, just as we did in Rose, where we disagreed
with the defendant’s argument that the warrant was over-
broad because it was not limited to the two photographs
sent to the defendant by the victim, we disagree with defen-
dant’s argument here that the April warrants were over-
broad because they were not limited to A’s communications
with Karra and Johnny. In Rose, the victim’s statement in
the affidavit that she and the defendant had discussed sexu-
ally explicit details in previous emails established probable
cause to search for evidence beyond the two photographs.
Here, the objective facts—particularly the photo of a dif-
ferent victim and the connection between Karra’s YUBO
account and Johnny’s TextNow number—combined with
the affiant’s training and experience, established probable
cause to search for evidence beyond just A’s communications
with Karra and Johnny. In reaching that conclusion, we
note that the warrant we upheld in Rose did not limit the
search to any timeframe and thus in fact was broader than
the warrants in this case.
      3. Specificity
         Having concluded that the April warrants were not
overbroad, we next address defendant’s argument that the
warrants were impermissibly nonspecific. In support of that
argument, defendant relies on State v. Bock (A169480),
310
Or App 329
,
485 P3d 931
(2021), which involved the search
of the defendant’s cell phone. As discussed above, however,
the heightened particularity standard that applied to that
search does not apply to the third-party record searches
here. Thus, our inquiry is limited to whether the warrant
Cite as
342 Or App 456
(2025)                              473

was “specific enough to allow an officer, with reasonable
effort, to identify the place to be searched and the items to
be seized.” Goode, 335 Or App at 116.
          Applying that standard in Rose, we concluded that
the warrant was sufficiently specific because it “identified
the place to be searched—defendant’s Yahoo account—and
the thing to be searched for and seized—evidence of the
crimes of using a child in a display of sexually explicit con-
duct and of encouraging child sexual abuse.”
264 Or App at
108
. The warrants here are similarly specific. They identified
the places to be searched—the records of defendant’s Pinger
and TextNow accounts—and the items to be searched for
and seized—evidence of the crimes of communication with
a minor for immoral purposes and sexual exploitation of a
minor, including the content of all text messages and phone
calls, “all user profile information,” and “any information”
regarding “account registration/recovery purposes.” When
read with the affidavit, which included information that
defendant had targeted A through text messages and phone
calls, and may have targeted at least one other victim, the
warrant permitted the executing officer, using reasonable
effort, to identify the items to be seized—namely, sexually
explicit communications and photographs involving minors,
and evidence identifying the user of the accounts. Thus, as
we did in Rose, we conclude that the warrants were suffi-
ciently specific because they were “limited to a particular
location, and the description of the items to be seized left the
officers with no discretion in the matter.”
Id. at 109
.
         In sum, defendant has not carried his burden to
show that the April warrants were overbroad or insuffi-
ciently specific. Accordingly, the trial court did not err in
denying defendant’s motions to suppress evidence obtained
pursuant to those warrants.
B.   May 2020 Warrants to Search the Pinger and TextNow
     Files
         We turn to the May 2020 Pinger and TextNow war-
rants. As mentioned above, Vancouver law enforcement for-
warded the Pinger and TextNow files to the Linn County
Sheriff’s department. Detective Trenary opened the files to
474                                                    State v. DiMolfetto

look for evidence related to the incident with A, and after
discovering texts and images that involved victims other
than A, Trenary sought warrants to search the Pinger and
TextNow files that he had received from Vancouver law
enforcement. A Linn County magistrate issued the war-
rants after finding that there was probable cause to believe
that “evidence of the crimes of Using a Child in a Display
of Sexually Explicit Conduct, Encouraging Child Sexual
Abuse I, and Luring a Minor” would be found in the files.
         Defendant filed motions to suppress evidence
obtained pursuant to the warrants, arguing that they were
“general warrants” and unsupported by probable cause. The
trial court denied defendant’s motions. Defendant assigns
error to that ruling, renewing the arguments that he made
below. Defendant further argues that the “use of nonre-
sponsive data in the [April] warrants to procure the [May]
warrants was unlawful.” The state responds that Trenary
did not need additional warrants to search the Pinger and
TextNow files that had been lawfully obtained pursuant to
the April warrants.
          We agree with the state. Article I, section 9, “pro-
tects both possessory and privacy interests in effects,”
State v. Munro,
339 Or 545, 551
,
124 P3d 1221
(2005), and
a “search” occurs when an individual’s protected privacy
interests are invaded, State v. Howard/Dawson,
342 Or 635,
640
,
157 P3d 1189
(2007). As explained above, the April
warrants, which authorized the seizure of the Pinger and
TextNow files, were valid. Thus, Trenary was lawfully in
possession of the files under the authority of the April war-
rants, and “defendant had no remaining privacy interest in
the [files’] contents at the time of the search.” Munro,
339 Or
at 553
(where police seized a videotape pursuant to a lawful
warrant authorizing the search and seizure of drug-related
evidence, the defendant lost any privacy interest in the vid-
eotape’s contents; thus, a subsequent search of the videotape
for child pornography was lawful).3
    3
      We note that Munro applies here because the seized evidence—third-party
records of text messages and call history—is not subject to the heightened par-
ticularity standard outlined in Mansor II. See
363 Or at 209-10
(rejecting state’s
argument that, under Munro, the defendant retained no privacy interest in
his computer that police seized pursuant to a warrant because devices such as
Cite as
342 Or App 456
(2025)                                             475

C. May 2020 Warrant to Search Defendant’s Person and
   Digital Devices
         Next, we address the May 2020 warrant that autho-
rized officers to search defendant’s person and seize and
search any digital devices found on defendant’s person. In
the affidavit in support of the warrant, Trenary recounted
the facts from the Vancouver investigation, as detailed
above, including Karra’s text to A that she wants A to have
“phone sex” with Johnny, and Johnny’s text to A that “I’ll do
anything to talk on the phone with you.” The affidavit also
included additional facts from a subsequent investigation
conducted by Oregon law enforcement. Those additional facts
included that an officer conducted surveillance on defendant
and observed defendant talking on a cell phone while sitting
in his car after leaving his place of employment. Additionally,
defendant had been arrested in California in 2010 for Lewd or
Lascivious Acts with a Child under 14 and Arrange Meeting
with Minor. The police report that documented the investiga-
tion included information that defendant, using the “Johnny”
persona, texted with a 12-year-old girl, met with the girl, and
sexually assaulted her. Those charges were dismissed, and
defendant was convicted of Disorderly Conduct: Soliciting
Lewd Act (misdemeanor) and sentenced to one day in jail.
          Trenary also included information that he obtained
after opening the Pinger and TextNow files that he received
from Vancouver law enforcement. In one of the TextNow
files, Trenary “noted [it] contained rows of information in col-
umns titled ‘Call Start Time,’ ‘Duration,’ ‘Caller,’ and ‘Called
Number.’ The information listed appeared to be a record of
calls sent or received to the number * * * 7417 (the ‘Johnny’
persona).” Trenary applied a filter to the records to search
for calls with the number that A used, and “noted ten entries
appearing in either the ‘Caller’ or the ‘Called Number’ col-
umns,” with the first call record timestamped March 12,
2020, and the last record timestamped March 13, 2020.
        Also, in one of the TextNow files, the following texts
were sent from the number that Johnny used to a number
that was not the one A used: “I needed to make love to you,”
computers and cell phones “contain[ ] many types of information, hav[e] immense
storage capacity, and play[ ] a role in many aspects of life.”).
476                                         State v. DiMolfetto

“Could I finger you,” and “Baby I’m jacking off thinking
about u.” One of the Pinger files contained a message sent
from a number that was not the number A used that said,
“U just told a fucking little girl u r gunna have her cumming
when you fuck her.”
         The affidavit also included information about
Trenary’s training and experience, and his knowledge
based on that training and experience, including knowledge
about digital devices, digital service providers, digital data,
and persons who commit online child exploitation offenses.
Based on his training and experience, Trenary knows that
“Voice over Internet Protocol (VoIP) phone numbers such as
those offered by TextNow and Pinger are frequently utilized
by online child exploitation suspects * * * [and] are readily
available both from a browser in a computer or through a
free application available for most smart phones.” Further,
Trenary knows that “through the normal use of a digital
device, * * * the operating system, software, and applications
all create data [that] details how the user is interacting with
the device and with different software and applications. * * *
This information can * * * reveal indications of ownership,
use, and/or dominion of control over the device to show the
identity of the person at the time and place any evidentiary
information is located.”
          Based on the information in the affidavit, Trenary
averred that he had “probable cause to believe that evidence
of [the crimes of Using a Child in a Display of Sexually
Explicit Conduct, Encouraging Child Sexual Abuse I, and
Luring a Minor] may be found on digital devices owned by
[defendant] or accessible to [defendant] to include devices * * *
on his person.” A magistrate issued a warrant that autho-
rized officers to search for and seize items from defendant’s
person, including digital devices capable of network commu-
nication and data storage. The warrant further authorized
officers to search the digital devices for the following:
   “[1]. Information related to the online sexual exploitation
   of [A]
   “[2]. Information related to any exchange of information
   related to the phone number of [A’s mother]
Cite as
342 Or App 456
(2025)                                   477

   “[3]. Information related to digital imagery depicting sus-
   pected child sexual abuse, to include visual depictions of
   child sexual abuse
   “[4]. Identification and communication information indic-
   ative of co-conspirators, alternate personas used in the
   commission of the offense, or additional victims of online
   child sexual exploitation offenses.
   “[5]. If * * * any of the above described evidentiary infor-
   mation is identified residing in the data storage of a digital
   device seized and analyzed pursuant to this warrant, then
   the following information will also be searched for:
       “a. Information related to the ownership, access, use,
   or control of the identified digital device.”
         Detectives executed the warrant and seized a cell
phone from defendant. Pursuant to the commands to search
the cell phone, officers discovered social media and commu-
nication applications, including Yubo, TextNow, and Pinger/
TextFree. In those applications, officers discovered the mes-
sages and photos that defendant exchanged with A, as well
as sexually explicit text messages and sexually explicit
images of children associated with other phone numbers.
         As noted, defendant filed a motion to suppress evi-
dence obtained from his person and digital device, arguing
that the warrant was unsupported by probable cause and
that it was insufficiently particular under Article I, section
9. Although defendant challenged each search command
before the trial court, on appeal he challenges only the sec-
ond, third, and fifth commands, and thus we focus on the
arguments defendant made to the trial court as to those
commands.
         Beginning with defendant’s probable cause argu-
ment, he contended that the affidavit did not establish prob-
able cause to search defendant or his cell phone because the
IP address associated with the text messages was linked to
defendant’s residence, the affidavit did not connect the IP
address to a particular device, and the affidavit did not “lead
to a nonspeculative inference that a cell phone (as opposed
to a tablet, laptop, desktop, or any other digital device) was
used to facilitate the exchange of contraband messages.”
478                                         State v. DiMolfetto

         As to defendant’s particularity argument, he
argued generally that the commands were overbroad and
impermissibly nonspecific. Beginning with the second com-
mand, defendant argued that it “permit[ted] officers to look
anywhere in the phone for any exchange of information.” As
to the third command, defendant argued that it “authorized
police to rummage through the entire phone on a quest to
[discover] additional criminal activity that is not mentioned
in the affidavit * * *.” Finally, defendant argued that the fifth
command was impermissible under Bock.
310 Or App at 335
(command to search cell phone for “[a]ny evidence identify-
ing the owner/user of the device” violated the particularity
requirement because “the officer performing the search has
the discretion to rummage freely throughout the device and
seize nearly everything * * *.”).
         The state argued that the search was lawful
because defendant consented to the search of his phone.
The state argued, alternatively, that the affidavit estab-
lished probable cause and that the warrant commands
were sufficiently particular. With respect to the fifth com-
mand, the state argued that the language is narrowly tai-
lored, and it is “further constrained by the fact that it is
activated only upon the occurrence of a specific contingency.
This command * * * [can] only be utilized if evidence sought
under the preceding commands yielded the expected con-
traband. If the preceding commands are narrow, then this
too is narrow.”
         At a hearing on defendant’s motion to suppress,
Trenary testified about the execution of the warrant.
Trenary and detective Miller, who were dressed in plain
clothes, contacted defendant at his workplace and asked
to speak with him. Trenary “Mirandized [defendant], pat-
ted him down, read the search warrant, * * * and then we
moved into the car to have our conversation,” which Trenary
described as “pretty cordial.” Trenary seized defendant’s cell
phone during the pat down. The conversation, which took
about two hours, occurred in Trenary’s unmarked vehicle
that was parked in the parking lot of defendant’s workplace.
Defendant, who was not handcuffed, sat in the passenger
seat, Trenary sat in the driver’s seat, and Miller sat in
Cite as
342 Or App 456
(2025)                                 479

the back seat. There was no “display of weaponry,” and no
threats or physical force.
        Trenary asked defendant about the passcodes for
his phone, and after defendant mentioned three different
passcodes, Trenary said “I just want to make sure that we
actually have the correct one. I want to be able to do what
we need to do with the phone with as minimal intrusion as
we possibly can.” Miller checked each passcode and one of
the codes “did in fact work.”
       Trenary asked defendant some questions about
Yubo and TextNow, then asked him:
      “[TRENARY]: So on your phone, on your laptop and
   stuff like that how much imagery whether it’s videos or
   pictures are we going to find that depicts kids * * * that’s
   sexual in nature, like explicit images?
      “[DEFENDANT]: On my laptop zero, * * * none of the
   devices at home. On this phone I don’t save anything to
   the—the gallery or anything like that so * * * if there was
   stuff saved into the—the text itself it would just be that.
       “[TRENARY]: It sounds like you don’t care if we look
   at or analyze any of your phone—
         “[DEFENDANT]:     Yeah.
         “[TRENARY]: Your phone’s cool to look at.
         “[DEFENDANT]: Yeah. You already know what’s on
   it.
      “[TRENARY]: Well, yeah. I know, but do you under-
   stand like why I ask that question? Like I would—just me
   as a human being I would want to be afforded the same
   courtesy.
         “[DEFENDANT]:     Right.”
         Trenary then showed defendant a consent form and
told him he was not “under any obligation to sign this,” to
which defendant replied, “Okay.” Trenary then explained
that “the search warrant that I read to you covers * * * digi-
tal devices seized from your person * * *.” Trenary told defen-
dant that another detective was “currently writing another
search warrant” for defendant’s residence and that that
warrant would authorize a search for “digital devices, notes,
480                                          State v. DiMolfetto

passwords, that kind of stuff” and would also authorize offi-
cers to analyze those devices. Trenary then said:
       “[TRENARY]: I like to give people the respect of say-
   ing ‘Can I also have your consent to * * * analyze those dig-
   ital devices that we find.
      “[DEFENDANT]:       Right.
        “[TRENARY]: It’s nothing that you have to give me.
   You can say ‘No, you don’t have my consent’ and that would
   be fine. I’m not going to get mad about that, but I think
   it’s—to me just as a human being to another human being
   it’s a respectful thing to do.
      “[DEFENDANT]:       Right.
      “[TRENARY]: [R]ather than tromp through like I own
   the place. Do you know what I mean?
      “[DEFENDANT]:       Yeah.
        “[TRENARY]: And by the place I mean your phone,
   * * * your Nintendo switch, your computer up at the house,
   your daughter’s old phone, like that kind of stuff.
      “[DEFENDANT]: Mm-hmm.
      “[TRENARY]: Okay. You can say no. Is giving me con-
   sent to analyze those devices something that you want to
   do?”
          Defendant responded by asking Trenary if he could
ask him a question, and Trenary said yes. Defendant said,
“I can take and give you everything that I own, I don’t really
care,” but he explained that the owner of the land where
defendant’s residence is located is “very particular about who
he lets on the property.” Defendant was concerned that the
landowner would see the police on the property and then not
want defendant to live on the property anymore. Defendant
said, “I don’t care if you guys take my computer and tear it
into little tiny pieces or whatever, I don’t care if you take
whatever. I just need a place for my family to live.” Trenary
replied, “I’m not intending to damage any of your digital
devices, by the way, * * * that’s an expensive phone * * *
I’m not planning on damaging it at all, okay?” Defendant
replied, “Yeah. Okay.” Trenary testified that defendant did
not sign the consent form, not because he refused to sign,
Cite as
342 Or App 456
(2025)                             481

but because they “moved on and it was my failure to circle
back to that form because we’re now talking about the prop-
erty and how to access the property.”
         Trenary also testified about the search commands
in the warrant. Specifically, with respect to the fifth com-
mand, which authorized officers to search for “[i]nforma-
tion related to the ownership, access, use, or control” of the
phone on the condition that officers located evidence pur-
suant to the other commands, Trenary testified that “only
after identifying evidence am I then able to go to [the fifth
command] of looking for * * * who’s behind the keyboard.”
He further explained that “[w]ith something like the Pinger
and TextNow information that’s pretty limited to just the
account. The subscriber information is all it’s going to be
limited to.” As to defendant’s phone, Trenary explained, “it’s
going to be things like the phone number, * * * any informa-
tion about what Google account is assigned to the device,
other kinds of identifying information like that * * *.”
          After Trenary testified, defendant renewed the
arguments that he made in his motion to suppress—that
the affidavit did not establish probable cause and that the
search commands were overbroad and insufficiently spe-
cific. Defendant also argued that he did not voluntarily con-
sent to the search because he “was told a search is going to
happen no matter what and he tells the officer ‘You already
know what’s in there.’ That at best is mere acquiescence.”
The state renewed its arguments that defendant consented
to the search of his phone and that, alternatively, the war-
rant was lawful. With respect to the fifth command, the
state argued that “if [the executing officer] found say the
contraband image in TextNow or Pinger then that would
* * * authorize [the officer] to look for information regarding
the access, use, and control of the identified Pinger account.”
         The trial court denied defendant’s motion after con-
cluding that the warrant was supported by probable cause
and sufficiently particular under Mansor II. As to the fifth
command, the court noted that it “authoriz[ed] [officers] to
find out who was the person who was actually * * * engag-
ing in the criminal conduct” and that Trenary “carried out
his search by a step-by-step process before he even tried to
482                                                    State v. DiMolfetto

ascertain who was the one who was in charge of or respon-
sible for downloading the information.” With respect to the
state’s argument about whether defendant voluntarily con-
sented to the search, the trial court first found that “the
search warrant was not overbroad and that [it] was lawfully
ordered.” The court then noted that defendant “was very
explicit in that his only concern was not in the privacy inter-
est in his property, even going so far as to say ‘I don’t care
if you chop up that computer into pieces.’ He was more con-
cerned about ‘I don’t want to get evicted.’ ”
         On appeal, defendant assigns error to the trial
court’s ruling. Defendant renews his arguments that the
warrant was unsupported by probable cause and that the
second, third, and fifth commands were insufficiently partic-
ular.4 The state argues that the search was lawful because
defendant voluntarily consented, or, alternatively, that the
warrant was supported by probable cause and did not vio-
late the particularity requirement.
         We begin with the state’s argument that defendant
voluntarily consented to the search of his phone. See State v.
Tennant,
310 Or App 70, 75
,
483 P3d 1226
(2021) (“A warrant-
less search violates Article I, section 9, unless it is justified
by an exception to the warrant requirement; consent is such
an exception.”). In determining whether a defendant volun-
tarily consented to a search, we consider whether, “under the
totality of the circumstances, the consent was given by an act
of free will or was the result of coercion, express or implied.”
State v. Moore,
354 Or 493, 505
,
318 P3d 1133
(2013), adh’d
to as modified on recons,
354 Or 835
,
322 P3d 486
(2014). “A
defendant’s ‘mere acquiescence’ to police authority does not
constitute consent.” Tennant,
310 Or App at 75
. In assessing
whether a defendant consented or merely acquiesced, we look
to the totality of the circumstances.
Id. at 76
. We are bound
by the trial court’s findings of fact if there is evidence in the
record to support them, but, ultimately, whether consent was
voluntary is a question of law. Moore, 354 Or at 505.
    4
      Defendant also argues that the “use of nonresponsive data in the [April]
warrants to procure the warrant[ ] was unlawful.” As explained above, however,
the April warrants lawfully authorized officers to search the records for evidence
related to crimes involving the sexual exploitation of children, and thus the text
messages were responsive to the warrants.
Cite as
342 Or App 456
(2025)                             483

          Here, Trenary asked defendant for consent to search
his phone, and defendant made statements such as “I can
* * * give you everything that I own, I don’t really care,” and
“I don’t care if you take whatever.” However, before that con-
versation, Trenary had Mirandized defendant, read him the
search warrant, seized defendant’s cell phone, and asked
defendant for his passcode “to be able to do what we need to
do with the phone.” We conclude that, under those circum-
stances, it would have been clear to defendant that a search
would occur regardless of whether consent was given, and
thus defendant did not consent but rather merely acquiesced
to the search. Id. at 76 (“[I]n assessing consent versus mere
acquiescence, we view the situation from the perspective of
the person being asked for consent * * *.”).
         We next address whether the search was lawful
pursuant to the warrant, beginning with defendant’s argu-
ment that the warrant was unsupported by probable cause.
Article I, section 9, provides, in part, that “no warrant shall
issue but upon probable cause, supported by oath, or affir-
mation, and particularly describing the place to be searched,
and the person or thing to be seized.” Probable cause exists
“when the facts set out in the affidavit, along with any rea-
sonable inferences, permit a neutral and detached magis-
trate to determine that seizable evidence will probably be
found in the location to be searched.” State v. Hernandez,
308 Or App 783, 789
,
481 P3d 959
(2021). The standard of
probability “requires more than a mere possibility, but less
than a certainty.”
Id.
(internal quotation marks omitted).
          Defendant argues that the affidavit did not “estab-
lish[ ] any nexus that a digital device on defendant’s per-
son would contain crime evidence.” See State v. Nelson,
307 Or App 226, 233
,
476 P3d 100
(2020) (probable cause
“exists only if the affidavit sets forth facts that create a
nexus between the place to be searched and the objects to
be found” (internal quotation marks omitted)). “[C]ognizant
of the preference for warrants and our concomitant duty
to resolve doubtful or marginal cases in favor of that pref-
erence,” we disagree and conclude that defendant did not
meet his burden to show that the warrant lacked probable
cause. State v. Webber,
281 Or App 342, 358
,
383 P3d 951
484                                        State v. DiMolfetto

(2016). The affidavit included the following information:
the TextNow records contained “ten entries [involving A’s
phone number] appearing in either the ‘Caller’ or the ‘Called
Number’ columns”; Johnny texted A that “I’ll do anything to
talk on the phone with you”; Karra texted A that she wants
A to have “phone sex” with Johnny; “phone numbers such as
those offered by TextNow and Pinger are * * * readily avail-
able both from a browser in a computer or through a free
application available for most smart phones”; and an officer
observed defendant talking on a cell phone while sitting in
his car. Although the affidavit did not identify a specific dig-
ital device that was used to commit the crimes, the facts in
the affidavit allowed a reasonable inference that defendant
possessed a cell phone and that he used that cell phone at
his home to text and call A. Thus, the affidavit “permit[ted]
a neutral and detached magistrate to determine that seiz-
able evidence probably would be found” in defendant’s cell
phone. Soto-Sarabia, 333 Or App at 50 (internal quotation
marks omitted); cf. Cannon,
299 Or App at 632
(affidavit
did not establish probable cause to search electronic devices
in part because it failed to establish that defendant even
owned any of the devices indicated in the warrant).
         Turning to defendant’s argument that the second,
third, and fifth search commands were insufficiently par-
ticular, we determine whether the warrant identified, “as
specifically as reasonably possible in the circumstances, the
information to be searched for, including, if available and
relevant, the time period during which the information was
created, accessed, or otherwise used.” Mansor II,
363 Or at
187-88
(setting forth the heightened particularity standard
for warrants to search computers or other digital devices).
          Beginning with the second command—”[i]nforma-
tion related to any exchange of information related to the
phone number [that A used]”—defendant argues that it is
overbroad because it contained “no temporal or subject mat-
ter limitations.” We note that, although defendant argues
that the command is overbroad rather than insufficiently
specific, those concepts often overlap, and we understand
defendant to argue that the command is overbroad because
it is insufficiently specific.
Cite as
342 Or App 456
(2025)                            485

          We conclude that, when read in conjunction with
the affidavit, the search command is sufficiently specific.
See State v. Vesa,
324 Or App 674, 683
,
527 P3d 786
(2023)
(determining whether the affidavit “provided the necessary
specificity” after observing that “the warrant to search [the]
defendant’s cellphone must be read in conjunction with [the]
affidavit”). First, although the command lacked a temporal
limitation, it was limited to information related only to A’s
phone number, and the affidavit included information that
defendant had communicated with A over a two-day period.
Thus, the search was effectively limited to the relevant
timeframe. See State v. Meyers,
338 Or App 59, 71
,
565 P3d
463
(2025) (command to search the defendant’s cell phone
for “[d]igital photographs related to [defendant’s phone num-
bers] and digital images sent to [the undercover phone num-
ber]” was sufficiently specific notwithstanding the absence
of a temporal limitation because the command was limited
to the relevant phone numbers and the affidavit included
the dates that the defendant communicated with the under-
cover phone number).
        Second, as to defendant’s argument that the com-
mand was impermissibly nonspecific because it lacked
“subject matter limitations,” we understand defendant to
argue that it did not sufficiently specify the type of infor-
mation officers were authorized to search for. Although the
command does not define “information,” the affidavit estab-
lished that defendant had sent sexually explicit text mes-
sages and exchanged sexually explicit photographs with A
using Pinger and TextNow. Those facts, combined with the
crimes identified in the warrant, sufficiently limited the
search such that it permitted “law enforcement, exercising
reasonable effort, to identify the information sought with a
reasonable degree of certainty.” State v. Turay,
371 Or 128,
149-50
,
532 P3d 57
(2023). In other words, the warrant—
limited by the affidavit—identified with specificity what
the evidence was, namely texts and photographs involving
A’s phone number. See Mansor,
363 Or at 219
(warrant that
contained no instructions or limitations regarding how the
computers were to be analyzed was sufficiently particular
where the affidavit “sufficiently described the ‘what’ to be
searched for and the relevant time frame”).
486                                       State v. DiMolfetto

          As to the third command—“[i]nformation related to
digital imagery depicting suspected child sexual abuse, to
include visual depictions of child sexual abuse”—defendant
summarily argues that “a warrant authorizing a search for
all ‘evidence of a particular crime’ is not sufficiently spe-
cific.” See Mansor,
363 Or at 213-14
(a warrant authorizing
the search of a computer for “evidence of a particular crime,”
without more, was not sufficiently specific).
         Defendant is correct that “merely identifying the
crime under investigation” does not, by itself, satisfy the
particularity requirement.
Id. at 214
. The search command
here, however, does not “merely identify the crime under
investigation.” Rather, it specifies the type of evidence exe-
cuting officers should search for, including contraband that
can be located on a cell phone—”visual depictions of child
sexual abuse.” Cf. State v. Savath,
298 Or App 495, 503
,
447
P3d 1
, rev den,
365 Or 722
(2019) (warrant was insufficiently
particular in part because defendant’s alleged criminal
activities—controlled substance offenses—did not involve
contraband that could be located on his cell phone); cf. Bock
(A169480), 310 Or App at 336 (command to search for evi-
dence of various firearm offenses was insufficiently partic-
ular in part because “a firearm itself cannot be located on
[the] defendant’s cell phone”); cf. Mansor,
363 Or at 213
(a
warrant that, without more, “identifies the crimes being
investigated,” is not sufficiently specific where crimes under
investigation were criminal mistreatment and assault).
         Further, as discussed above, the affidavit estab-
lished probable cause to believe that defendant had cre-
ated different personas to send, solicit, and receive sexu-
ally explicit photographs of minor females using TextNow
and Pinger, and that he had targeted at least two victims.
Defendant does not point to any relevant timeframe or other
limitation that was available to police that could have been
included in the warrant. Turay,
371 Or at 152-54
(warrant
was insufficiently particular where it “omitted additional
limiting factors that were known to law enforcement”).
Under those circumstances, we conclude that the search
command was sufficiently specific. See State v. Paye,
310 Or
App 408, 415-17
,
486 P3d 808
(2021) (command to search
Cite as
342 Or App 456
(2025)                             487

the defendant’s computer for “[a]ny and all evidence docu-
menting the [crimes of promoting prostitution and compel-
ling prostitution],” to include a broad array of information
such as photographs and videos of the named victim and
“as-of-yet unidentified females,” satisfied the particularity
requirement notwithstanding the lack of a temporal lim-
itation; there was probable cause that the defendant was
engaged in an ongoing enterprise, that evidence of that
enterprise would be found on his computer, and “[t]here is
no indication that specific relevant time frames pertaining
to that ongoing activity were ‘available to the police’ ”).
          Turning to the fifth command, which authorized
officers to search for “[i]nformation related to the owner-
ship, access, use, or control of the identified digital device”
if the officers first identified evidence pursuant to the other
commands, defendant argues that that command is invalid
under Bock. In Bock, we concluded that a command to search
the defendant’s cell phone for “[a]ny evidence identifying the
owner/user of the device” violated the particularity require-
ment. 310 Or App at 332, 334. We observed that a “warrant
without clear limitations on the material subject to search
and seizure requires the executing officer to employ discre-
tion in deciding what to search or seize.” Id.
        The state argues that Bock is not controlling because,
contrary to the search command in Bock, the command here
was conditional and only applied if the officer first found
evidence pursuant to the preceding commands. For his part,
defendant does not acknowledge or address the effect, if any,
of the conditional nature of the command. The state also
argues that the command here is distinguishable from the
one in Bock because it authorized a search for “information”
rather than “any evidence” and, in the state’s view, the term
“information” is narrower than “any evidence.”
         In our view, the term “information” is not disposi-
tively narrower than “any evidence,” but we do agree with
the state that the conditional phrase attached to the com-
mand—combined with the facts in the affidavit—distin-
guishes this case from Bock. The affidavit here contained
Trenary’s knowledge that, based on his training and expe-
rience, a digital device’s “operating system, software, and
488                                       State v. DiMolfetto

applications” create data that can show ownership, use, and
control over the digital device and the identity of the per-
son “at the time and place any evidentiary information is
located.” When read with the affidavit, the purpose of the
conditional phrase is to tie the search for evidence of own-
ership, use, and control, to the evidence that was found on
the phone. In other words, as the state argued before the
trial court, if officers found evidence on Pinger, then the
fifth search command would authorize officers to look for
the identity of the person who accessed, used, and controlled
the Pinger account in connection with that evidence.
         Thus, we conclude that the command here is mate-
rially distinguishable from the command in Bock such that
it is sufficiently specific—particularly in light of the prin-
ciple that “[w]hen a search is warranted, a presumption of
regularity arises, [and] therefore, the defendant bears the
burden of proving the unlawfulness of a warranted search.”
Goode, 335 Or App at 116. The conditional phrase—which
again, defendant does not address in his argument—when
read with the affidavit, limits the search to information
that would show the identity of the user in connection with
the creation of the evidence that was located in the digi-
tal device pursuant to the previous commands. And, as
discussed above, those commands are sufficiently specific.
Within those parameters, the executing officer would know,
exercising reasonable effort, what to search for and would
not have the discretion to “rummage freely throughout the
device and seize nearly everything * * *.” Bock (A169480),
310 Or App at 335.
        In sum, we conclude that the May 2020 warrants
to search Pinger, TextNow, and defendant’s person and cell
phone were supported by probable cause and sufficiently
particular, and the trial court correctly denied defendant’s
motions to suppress evidence obtained pursuant to those
warrants.
  II. MOTION TO DISMISS OR TO DEMUR TO THE
                 INDICTMENT
       In his seventh assignment of error, defendant
contends that the trial court erred in denying his motion
Cite as
342 Or App 456
(2025)                                              489

to dismiss and in overruling his demurrer. Before trial,
defendant filed a motion to “Dismiss and/or Demurrer” in
which he argued that two of the statutes under which he
was charged, ORS 163.670 and ORS 163.684, were uncon-
stitutional. ORS 163.670,5 which governs using a child in
a display of sexually explicit conduct, prohibits anyone
from “employ[ing], authoriz[ing], permit[ting], compel[ling]
or induc[ing] a child to participate or engage in sexually
explicit conduct for any person to observe or to record in a
visual recording.” ORS 163.684, which governs encourag-
ing child sexual abuse, prohibits anyone from “develop[ing],
duplicat[ing], publish[ing], print[ing], disseminat[ing],
exchang[ing], display[ing], finance[ing], attempt[ing] to
finance or sell[ing] a visual recording of sexually explicit con-
duct involving a child” when that person “knows or is aware
of and consciously disregards the fact that creation of the
visual recording of sexually explicit conduct involved child
abuse” (emphasis added). The phrase “sexually explicit con-
duct,” as it is used in both ORS 163.670 and ORS 163.684,
is statutorily defined, in part, as the “actual or simulated
* * * [l]ewd exhibition of sexual or other intimate parts.”
ORS 163.665(3)(f). In defendant’s view, “the legislature’s
definition of ‘sexually explicit conduct’ is constitutionally
unenforceable under Article I, sections 8, 20, and 21” of the
Oregon Constitution and under the First and Fourteenth
Amendments to the United States Constitution because it
creates “content-based restrictions” on expressive material
and because it is vague and overbroad.
        The trial court concluded that ORS 163.670 and
ORS 163.684 were constitutional and denied defendant’s
motion. On appeal, defendant renews his challenges to those
statutes.
         We begin with defendant’s state constitutional chal-
lenges, and, in particular, his argument under Article I, sec-
tion 8. See State v. Velykoretskykh,
268 Or App 706
, 707 n 2,
343 P3d 272
(2015) (stating that under the “ ‘first things first’
     5
       ORS 163.670 was amended after defendant engaged in the conduct that
is the subject of this appeal. However, because those amendments do not affect
our analysis, we refer to the current version of the statute in this opinion. See
State v. Lasheski,
309 Or App 140
, 146 n 2,
481 P3d 966
(2021) (taking the same
approach).
490                                         State v. DiMolfetto

doctrine, we have an obligation to address state constitu-
tional law claims before federal ones.”). Defendant contends
that both ORS 163.670 and ORS 163.684 violate Article I,
section 8, because they are “focused on curtailing speech”
and are “untethered” to any harm. See State v. Robertson,
293 Or 402
,
649 P2d 569
(1982) (establishing the frame-
work for Article I, section 8, challenges); see also State v.
Stoneman,
323 Or 536, 543
,
920 P2d 535
(1996) (explaining
that under the framework established in Robertson and its
progeny, the court analyzes Article I, section 8, challenges
by first determining whether the statute is directed at the
“substance of any opinion or any subject of communication”;
if so, it is facially invalid unless it fits within a “historical
exception” or is focused on a proscribed harm rather than
the content of the communication (internal quotation marks
omitted)). In response, the state contends that defendant’s
arguments are foreclosed by the Oregon Supreme Court’s
decision in Stoneman. We agree with the state.
          In Stoneman, the Supreme Court rejected a simi-
lar challenge to a statute, former ORS 163.680 (1987), that
prohibited the purchase of any “photograph, motion picture,
videotape or other visual reproduction of sexually explicit con-
duct by a child.”
323 Or at 539
(emphasis added). There, while
applying the framework established in Robertson, the major-
ity concluded that the statute did not violate Article I, section
8, because it was directed not to the communicative substance
of the content, but to the harmful effects to children that nec-
essarily follow from the production of that material.
Id. at
550
. In coming to that conclusion, the court reasoned that the
statute at issue “prohibited the purchase of ‘visual reproduc-
tion[s] of sexually explicit conduct by a child under 18 years
of age,’ not in terms of the content of those reproductions, but
because they owe their very existence to the commission of
sexual abuse of a child and are, consequently, an extension
of that harmful act.”
Id.
at 546 (quoting former ORS 163.680
(1987); emphasis and brackets in original).
         The statutes here are directed to the same harm-
ful effects identified in Stoneman. ORS 163.670 and ORS
163.684 prohibit compelling or financing the creation of
certain communicative materials (i.e., visual recordings of
Cite as
342 Or App 456
(2025)                                                    491

sexually explicit conduct involving a child), not in terms of
their communicative substance, but in terms of their sta-
tus as a product of acts that have necessarily harmed chil-
dren. The ability to create and disseminate such material is
“made possible only by the sexual abuse of children, which
is, of course, harmful to children.” State v. Ready,
148 Or
App 149, 160
,
939 P2d 117
, rev den,
326 Or 68
(1997).6 As
in Stoneman, the statutes here are directed at eliminat-
ing the underlying harm that child sexual abuse causes
and, accordingly, do not violate Article I, section 8, of the
Oregon Constitution. To the extent defendant contends that
Stoneman was wrongly decided, we are not at liberty to dis-
regard the Supreme Court’s majority opinion. Unless and
until the Supreme Court overrules Stoneman, it remains
binding precedent.
        In arguing for a contrary result, defendant con-
tends that subsequent legislative changes to the definition
of “sexually explicit conduct” have left Stoneman with “no
continuing precedential effect.” As defendant notes, before
1995, the definition of “sexually explicit conduct” in ORS
163.665(3)(f) included “lewd exhibition of the genitals or
anus” (emphasis added). However, in 1995, the legislature
amended that portion of the definition to “lewd exhibition
of sexual or other intimate parts.” ORS 163.665(3)(f) (1991),
amended by Or Laws 1995, ch 768, § 4 (emphasis added).
Defendant argues that the legislature’s change broadened
the scope of the statute to such a degree that Stoneman has
no continuing validity. We disagree.
         To begin, and as the state points out, although the
defendant in Stoneman had been charged under an earlier
version of the statute, the Supreme Court issued its opin-
ion after the 1995 amendment and acknowledged that the

     6
       This analysis does not address the use of artificial intelligence or other digi-
tal technologies to generate visual depictions of children who do not exist. The stat-
utes at issue here are directed at a narrow category of visual materials that neces-
sarily involve the participation of an actual child in the creation of the content. See
ORS 163.665(3)(f) (defining the phrase “sexually explicit conduct,” in part, as the
“actual or simulated * * * [l]ewd exhibition of sexual or other intimate parts”); see
also Stoneman,
323 Or at 540
(explaining that “simulated” exhibitions of sexually
explicit conduct refers to sexual acts in which an actual child participates—”the
child’s participation in the act must be real, i.e., the sexual act may be ‘simulated,’
but the child’s participation in that act cannot be” (emphasis in original)).
492                                                      State v. DiMolfetto

amendment was immaterial to its opinion.
323 Or at 540
n 4
(stating that in 1995 the definition of “sexually explicit con-
duct” had been “amended in minor ways not relevant to this
case”). Thus, the court’s reasoning in Stoneman remains
directly applicable, regardless of the subsequent statutory
amendment.
         Furthermore, nothing about that amendment brings
into question the core of the court’s reasoning in determining
whether the statute at issue in Stoneman violated Article I,
section 8. While applying the framework established in
Robertson, the court reasoned that because the statute was
focused on “harm to children,” “rather than on the substance
of the communication,” the statute passed constitutional
muster.
Id. at 543-45
. As the state argues, the 1995 amend-
ment to the definition of “sexually explicit conduct” to replace
“the anus or genitals” with “sexual or other intimate parts”
does not alter that analysis. Nor does it change our conclusion
that the statutes under which defendant was charged—ORS
163.670 and ORS 163.684—are similarly focused on harm to
children and not speech. In sum, the 1995 amendment to the
definition of “sexually explicit conduct” in ORS 163.665(3)
(f) does not affect the continuing validity of Stoneman or its
application to this case.
          Next, we turn to defendant’s argument that the defi-
nition of “sexually explicit conduct” in ORS 163.665(3)(f)—
applicable in ORS 163.670 and ORS 163.684—is unconstitu-
tionally vague under Article I, sections 207 and 21,8 of the
Oregon Constitution. Defendant’s primary argument is that
the phrase “other intimate parts” fails to inform a person
of ordinary understanding what conduct is prohibited and,
thus, that it is unconstitutionally vague. See ORS 163.665(3)
(f) (defining “sexually explicit conduct,” in part, as the “actual
or simulated * * * [l]ewd exhibition of sexual or other intimate
parts” (emphasis added)).

    7
      Article I, section 20, provides, “No law shall be passed granting to any cit-
izen or class of citizens privileges, or immunities, which, upon the same terms,
shall not equally belong to all citizens.”
    8
      Article I, section 21, provides in relevant part, “No ex-post facto law, or law
impairing the obligation of contracts shall ever be passed, nor shall any law be
passed, the taking effect of which shall be made to depend upon any authority,
except as provided in this Constitution.”
Cite as
342 Or App 456
(2025)                                               493

         To withstand a vagueness challenge, the terms of
a criminal statute “must be sufficiently explicit to inform
those who are subject to it of what conduct on their part
will render them liable to its penalties.” State v. Graves,
299
Or 189, 195
,
700 P2d 244
(1985). To that end, “[a] criminal
statute need not define an offense with such precision that
a person in every case can determine in advance that a spe-
cific conduct will be within the statute’s reach. However, a
reasonable degree of certainty is required by Article I, sec-
tions 20 and 21.”
Id.
On appeal, defendant contends that ORS 163.665(3)(f)’s
definition of “sexually explicit conduct” is “problematic because
‘intimate part’ is not statutorily defined” and because the pro-
vision is so broad that it “gives unbridled discretion to judges
and juries.”
         Although defendant is correct that the phrase
“other intimate parts” is not expressly statutorily defined,
the Supreme Court has previously interpreted that phrase
in the context of ORS 163.305(6) (1983)9 and concluded that
it was sufficiently clear to withstand a constitutional chal-
lenge. More specifically, in State v. Woodley, the Supreme
Court determined that “other intimate parts” includes
areas that are “subjectively intimate to the person touched,
and either known by the accused to be so or to be an area of
the anatomy that would be objectively known to be intimate
by any reasonable person.”
306 Or 458, 463
,
760 P2d 884
(1988). After considering that interpretation of the phrase
“other intimate parts,” the court concluded that it did not
violate constitutional standards for vagueness.
Id. at 463
(explaining that because the phrase was “focused on the
understanding of each of the two persons concerned, not on
the factfinder’s estimation of undifferentiated social stan-
dards” it “survive[d] the test of vagueness”); see also State
v. Miles,
273 Or App 271, 278
,
357 P3d 522
, rev den,
358
Or 449
(2015) (describing Woodley and the manner in which
    9
      ORS 163.305 has been amended numerous times since 1983. See Or Laws
1999, ch 949, § 1; Or Laws 2009, ch 770, § 1; Or Laws 2017, ch 318, § 2; Or Laws
2017, ch 634, § 17; Or Laws 2021, ch 82, § 1; Or Laws 2023, ch 407, § 1. ORS
163.305(6) (1983) defined “sexual contact” as “any touching of the sexual or other
intimate parts of a person or causing such person to touch the sexual or other
intimate parts of the actor for the purpose of arousing or gratifying the sexual
desire of either party” (emphasis added).
494                                                     State v. DiMolfetto

the court’s construction of the phrase “other intimate parts”
“solve[d] the problem of vagueness”). In short, defendant’s
vagueness argument is contrary to the Supreme Court’s deci-
sion in Woodley. Accordingly, for the same reasons expressed
in Woodley, we conclude that the legislature’s definition of
“sexually explicit conduct” in ORS 163.665(3)(f) provides a
reasonable degree of certainty as to what conduct is prohib-
ited in ORS 163.670 and ORS 163.684 and that, therefore,
the definition is not unconstitutionally vague.
          Furthermore, we are unpersuaded that the defini-
tion of “sexually explicit conduct” is void for vagueness under
the Due Process Clause of the Fourteenth Amendment to
the United States Constitution.10 Due process requires that
a penal statute define the criminal offense with sufficient
definiteness so that people of ordinary intelligence can
understand what conduct is prohibited in a manner that
does not encourage arbitrary and discriminatory enforce-
ment. Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455
US 489, 498
,
102 S Ct 1186
,
71 L Ed 2d 362
(1982); Smith
v. Goguen,
415 US 566, 572-73
,
94 S Ct 1242
,
39 L Ed 2d
605
(1974). Accordingly, for due process purposes, a statute
is impermissibly vague if it either contains no identifiable
standard, see Kolender v. Lawson,
461 US 352, 358
,
103 S
Ct 1855
,
75 L Ed 2d 903
(1983), or employs a standard that
relies on the shifting and subjective judgments of the per-
sons who are charged with enforcing it, City of Chicago v.
Morales,
527 US 41, 62
,
199 S Ct 1849
,
144 L Ed 2d 67
(1999).
         ORS 163.665(3)(f), as presently drafted and con-
strued by our courts, contains an identifiable standard for
determining what constitutes “sexually explicit conduct”
and does not rely on the shifting or subjective judgments of
the persons responsible for enforcing the criminal statutes
applying that definition. To fall within the scope of that defi-
nition as it is used in ORS 163.670 and ORS 163.684, an
exhibition must involve a child, it must be “objectively lewd”
in the sense that it is “salacious or focused on sex,” and it
must involve parts of the child’s body that were subjectively
intimate to the child and that the accused either knew or

     10
        The Fourteenth Amendment provides, in relevant part, “No State shall
* * * deprive any person of life, liberty, or property, without due process of law.”
Cite as
342 Or App 456
(2025)                                             495

reasonably should have known were regarded by the child
as intimate. Woodley,
306 Or at 463
(explaining that “other
intimate parts” includes areas that are “subjectively intimate
to the person touched, and either known by the accused to be
so or to be an area of the anatomy that would be objectively
known to be intimate by any reasonable person”); State v.
Parra-Sanchez,
324 Or App 712, 733
,
527 P3d 1008
, rev den,
371 Or 333
(2023) (explaining that “ ‘lewd exhibition’ means
the showing of a child’s sexual or other intimate parts that is
itself salacious or focused on sex”). Those standards are suffi-
cient to allow an ordinary person to understand what conduct
is prohibited. Furthermore, the fact that the “intimate parts”
test includes both objective and subjective components suffi-
ciently constrains the factfinder so as to discourage arbitrary
and discriminatory enforcement. In sum, ORS 163.665(3)(f),
as applicable through ORS 163.670 and ORS 163.684, does
not violate federal constitutional standards for vagueness.
         Finally, we turn to defendant’s argument that ORS
163.665(3)(f) is unconstitutionally overbroad in violation of
the First Amendment to the United States Constitution.11
A statute is facially overbroad if it proscribes a substantial
amount of protected conduct in relation to its legitimate
sweep. Broadrick v. Oklahoma,
413 US 601, 615
,
93 S Ct 2908
,
37 L Ed 2d 830
(1973). In contrast, a statute is not overbroad
merely because it is possible to conceive of some impermis-
sible applications. United States v. Williams,
553 US 285,
303
,
128 S Ct 1830
,
170 L Ed 2d 650
(2008). Defendant con-
tends that ORS 163.665(3)(f) is overbroad under that stan-
dard because “ORS 163.665(3)(f), utilized in ORS 163.670
and ORS 163.684, proscribes a ‘substantial’ amount of pro-
tected speech” in that it “proscribes ‘simulated’ acts that do
not involve the sexual exploitation of children” and because
“ ‘intimate part’ could quite literally be anything the person
depicted subjectively believes would be intimate.”
        We begin with defendant’s argument that ORS
163.665(3)(f) is overbroad because it proscribes “ ‘simu-
lated’ acts that do not involve the sexual exploitation of
     11
        The First Amendment provides, in relevant part, “Congress shall make no
law * * * abridging the freedom of speech.” The First Amendment is made applica-
ble to the states through the Due Process Clause of the Fourteenth Amendment.
Gitlow v. New York,
268 US 652, 666
,
45 S Ct 625
,
69 L Ed 1138
(1925).
496                                        State v. DiMolfetto

children.” At the outset, we reiterate the limited nature of
what ORS 163.665(3)(f) criminalizes, as it applies through
ORS 163.670 and ORS 163.684. The portion of ORS 163.670
involved in this case criminalizes the creation of a very spe-
cific kind of material i.e., child pornography, and the portion
of ORS 163.684 that is at issue criminalizes the dissemina-
tion of depictions of child sexual abuse. See State v. Zamora,
326 Or App 140, 145
,
530 P3d 914
(2023) (describing ORS
163.670 as capturing “the creation of child pornography”).
These statutes are directed at a narrow category of visual
depictions that involve real children participating in the
creation of the material. In that context, and as Supreme
Court explained in Stoneman, “simulated” exhibitions of
sexually explicit conduct refers to sexual acts in which an
actual child participates—”the child’s participation in the
act must be real, i.e., the sexual act may be ‘simulated,’ but
the child’s participation in that act cannot be.”
323 Or at 540
(emphasis in original). As the state points out, to run afoul
of ORS 163.670 or ORS 163.684, those simulations must
involve actual child abuse. See
id. at 540-41
(upholding a
similar statute criminalizing the purchase of child pornog-
raphy and explaining that “simulated” sexual conduct must
involve the real participation of an actual child; the statute’s
reach was confined to material that could come into exis-
tence only through child sexual abuse). With these statutes
so framed, we conclude that, to the extent these statutes are
capable of encompassing protected expression, it is inciden-
tal and not substantial in relation to the purpose of these
statutes: protecting children from sexual exploitation.
         We also disagree with defendant’s argument that
ORS 163.665(3)(f) is overbroad because “ ‘intimate part’ could
quite literally be anything the person depicted subjectively
believes would be intimate.” Defendant’s argument misap-
prehends the standard that is used to determine whether
something constitutes an “intimate part” within the mean-
ing of ORS 163.665(3)(f). Contrary to defendant’s assertion,
and as we have previously explained, that standard involves
both a subjective and an objective analysis. More specifically,
“other intimate parts” includes areas that are “subjectively
intimate to the person touched, and either known by the
accused to be so or to be an area of the anatomy that would
Cite as
342 Or App 456
(2025)                            497

be objectively known to be intimate by any reasonable per-
son.” Woodley,
306 Or at 463
. That two-part inquiry ensures
ORS 163.665(3)(f) remains tethered to a clear and knowable
threshold of intimacy and sufficiently avoids criminalizing
depictions that fall outside the intended scope. Accordingly,
we conclude that ORS 163.665(3)(f) is not overbroad.
        In sum, the trial court did not err in denying defen-
dant’s motion to “Dismiss and/or Demurrer.”
     III.   MOTION TO EXCLUDE OUT-OF-COURT
                    STATEMENTS
         In his eighth assignment of error, defendant argues
that the trial court erred by admitting certain exhibits
showing defendant’s text messages with people who did not
testify at trial. More specifically, defendant contends that
the admission of those exhibits violated his right to confron-
tation under Article I, section 11, of the Oregon Constitution
and the Confrontation Clause of the Sixth Amendment to
the United States Constitution.
         Before describing defendant’s confrontation argu-
ment on appeal, we describe the evidence at issue. That evi-
dence consists of communication logs that Trenary created
based on records he received from Pinger and TextNow. In
particular, the communication logs at issue contained text
messages between defendant and four individuals—S, 9824,
K, and KM1. The logs showed that defendant engaged in
sexually explicit conversations with S, 9824, K, and KM1
and that, during those conversations, they all referenced
being 15 years old or younger. For instance, in the commu-
nication log relevant to K, defendant asked K, “How old ru,”
to which K responded, “I’m 13.” Furthermore, with respect
to 9824 and K, upon learning their ages, defendant chose to
lie to them about his age by claiming to 9824 that he was
“14” and by separately telling K that he was in “8th” grade.
        The communication logs also showed that defendant
requested explicit videos and/or photos from S, 9824, K, and
KM1. For example, the log relevant to KM1 contained the
following exchange:
      “[Defendant]: Umm I dare you to send the sexiest pic
   on your camera roll of either you or your friend.”
498                                          State v. DiMolfetto

      “[KM1]: Hold on it’ll take a minute I have a lot of pic-
   tures in my camera roll”
   “[Defendant]: It’s okay if it’s nude”
That same communication log also showed that defendant
later “dared” KM1 to “take a video of [herself] taking [her]
shirt off for [him].”
         During trial and while Trenary was testifying
about his investigation into defendant’s case, the state
sought to introduce the communication logs. In response to
the state’s offer of evidence and as a question in aid of objec-
tion, defendant asked Trenary whether he knew S, 9824, or
K. Trenary responded that he “d[id] not know who th[ose]
pe[ople] [were].” Defendant further asked Trenary whether
S, 9824, or K, could be an adult, and Trenary answered that
they “could be anyone.” With respect to KM1, defendant
asked Trenary whether he had ever personally spoken with
KM1, and Trenary responded that he had not. Defendant
then objected to the admission of all four of the communi-
cation logs on authentication, hearsay, and confrontation
grounds.
         With respect to his confrontation argument, defen-
dant contended that the communication logs contained
hearsay statements from S, 9824, K, and KM1 and that,
because the state had not called them to testify, admitting
the logs violated his right to confront the witnesses against
him. More specifically, defendant argued that
   “[t]he fact that these other people who Detective Trenary
   does not even know who they are, whether or not they’re
   adults definitionally means * * * that to prove its case the
   fact finder has to take the received statements as truth
   to establish age, to establish whether or not that person
   engaged in sexually explicit conduct, to establish whether
   or not the photo or video that was sent is of that individual
   person as opposed to another adult like [defendant] who
   has different images.”
Thus, defendant contended that “to the extent that the state
is relying on [the communication logs] for their truth these
are subject to confrontation.”
Cite as
342 Or App 456
(2025)                              499

           In response, the state argued that because defendant
participated in the conversations with S, 9824, K, and KM1,
half the statements were defendant’s own, and the other half
were admissible as “adoptive admissions.” OEC 801(4)(b)(B)
(exempting from the hearsay rule a statement that is offered
against a party and is “[a] statement of which the party has
manifested the party’s adoption or belief in its truth”). The
state further argued that any messages from S, 9824, K,
and KM1 were “not hearsay statements because they are
not presented to prove the truth of the matter asserted” and
because they were instead being offered to provide “context
for * * * defendant’s admissions and his statements.”
         In rebuttal, defendant pointed to the specific por-
tions of the communication logs in which S, 9824, K, and
KM1 identified their ages. Defendant contended that, to
the extent that the state was relying on those statements
to “prove the age of the person [defendant was] speaking
with,” those statements constituted hearsay and were not
subject to an exception. He further argued that, “if [those
statements were] only coming in to show the effect that it
had on [defendant] that’s fine, so long as the fact finder is
crystal clear that the content of any received messages can-
not establish a fact.”
        The trial court overruled defendant’s objection to
the admission of the communication logs on two separate
grounds. First, it admitted certain portions of the logs as
“adoptive admissions,” specifically the messages in which S,
9824, K, and KM1 mentioned their ages. The court explained
that those messages were not being admitted for the truth
of the matter asserted, but to show defendant’s belief about
their ages, as reflected in his responses. However, the court
agreed with defendant that those statements were not
admissible to establish “as fact that the recipient is 13, 15 or
whatever.” Second, the court admitted the remainder of the
messages from S, 9824, K, and KM1 as “context” for defen-
dant’s own messages. In admitting those remaining state-
ments as “context,” the court explained that they were being
admitted to provide “context of what the ongoing threads
are actually saying,” rather than for “the truth of the matter
asserted.”
500                                                     State v. DiMolfetto

          On appeal, defendant renews his argument that
the admission of the communication logs violated his right
to confront witnesses under both Article I, section 11, of
the Oregon Constitution and the Sixth Amendment to the
United States Constitution. We review the trial court’s rul-
ing on constitutional confrontation issues for errors of law.
State v. Kini,
305 Or App 833, 835
,
473 P3d 64
(2020).
          We begin with defendant’s argument under the
state constitution. Sterling v. Cupp,
290 Or 611, 614
,
625
P2d 123
(1981) (“The proper sequence is to analyze the
state’s law, including its constitutional law, before reaching
a federal constitutional claim.”). Article I, section 11, of the
Oregon Constitution guarantees a criminal defendant the
right to confront and cross-examine adverse witnesses.12
State v. Copeland,
353 Or 816, 827-28
,
306 P3d 610
(2013).
Under both constitutions, the confrontation right applies
to hearsay statements—that is, statements “other than
one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the mat-
ter asserted.” OEC 801(3) (defining hearsay); see State v.
Ruggles,
214 Or App 612, 619
,
167 P3d 471
, adh’d to as mod-
ified on recons,
217 Or App 384
,
175 P3d 502
(2007), rev den,
344 Or 280
(2008) (explaining that, because the “constitu-
tional provisions work to limit the introduction of hearsay
testimony,” whether a particular piece of evidence “offends
[a] defendant’s rights to confront witnesses depends, in the
first instance, on whether it is hearsay evidence”). As such,
we begin with that threshold question.
         With respect to the trial court’s decision to admit
the messages from S, 9824, K, and KM1 about their ages,
the state argues that the trial court correctly ruled that
those messages were “relevant and admissible as non-hear-
say under OEC 801(4)(b)(B).” Although we question whether
the adoptive admission rule applies on these facts, we need
not resolve that issue here. Regardless of that specific the-
ory, we conclude that the messages were not hearsay because
they were not offered for the truth of the matter asserted.
Rather the messages were introduced to show defendant’s
    12
       Article I, section 11, of the Oregon Constitution provides, “In all criminal
prosecutions, the accused shall have the right to * * * meet the witnesses face to
face.”
Cite as
342 Or App 456
(2025)                                                  501

belief about the ages of the people he was messaging, mak-
ing them admissible as non-hearsay.
         As for the remaining text messages from S, 9824,
K, and KM1 in the communication log, when the trial court
admitted them into evidence, it concluded that the messages
were “not being offered for the truth of the matter asserted,”
but rather to provide “context” for defendant’s statements.13
The state argues that, under State v. Davis,
291 Or App
146, 159
,
419 P3d 730
, rev den,
363 Or 481
(2018), the trial
court’s reason for admitting the statements from S, 9824,
K, and KM1 was a permissible non-hearsay use of that evi-
dence. In Davis, we held that “the victim’s statements in [a
text message] conversation with defendant were themselves
admissible as non-hearsay context for defendant’s admissi-
ble statements.” Id. at 159. Here, as in Davis, the messages
from S, 9824, K, and KM1 provide necessary context for
understanding defendant’s corresponding half of the con-
versations. Therefore, pursuant to our holding in Davis, we
agree with the state that the trial court did not err in admit-
ting the remaining messages from S, 9824, K, and KM1 and
in determining that those messages were not hearsay.
         Because the threshold requirement for a confronta-
tion claim under the state constitution is that the evidence
constitutes hearsay, and because we conclude that the trial
court did not err in determining that the communication
logs did not contain hearsay, defendant’s confrontation claim
under Article 1, section 11, necessarily fails. That conclusion
also resolves defendant’s claim under the federal constitu-
tion, which similarly requires the admission of hearsay to
trigger the protections of the Confrontation Clause. Crawford
v. Washington,
541 US 36
, 59 n 9,
124 S Ct 1354
,
158 L Ed 2d
177
(2004) (explaining that the federal Confrontation Clause
“does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted”).
To the extent that defendant suggests that, notwithstanding
the trial court’s express ruling, the evidence was ultimately
used for a hearsay purpose, he fails to develop any argument
     13
         We note that the text messages from defendant plainly fall within the
hearsay exclusion for opposing-party statements. That exclusion provides that
“[a] statement is not hearsay if * * * [t]he statement is offered against a party and
is * * * [t]hat party’s own statement.” OEC 801(4)(b)(A).
502                                       State v. DiMolfetto

explaining how that later use made the court’s earlier rul-
ing erroneous. We therefore do not address it further. Beall
Transport Equipment Co. v. Southern Pacific,
186 Or App
696
, 700 n 2,
64 P3d 1193
, adh’d to as clarified on recons,
187 Or App 472
,
68 P3d 259
(2003) (“[I]t is not this court’s
function to speculate as to what a party’s argument might
be. Nor is it our proper function to make or develop a par-
ty’s argument when that party has not endeavored to do so
itself.”).
        In sum, the trial court did not err in admitting the
communication logs containing defendant’s conversations
with S, 9824, K, and KM1.
  IV. MOTIONS FOR JUDGMENTS OF ACQUITTAL
         Defendant raises 23 assignments of error relat-
ing to the trial court’s denial of his motions for judgment
of acquittal. His challenges relate to the evidence that
the state offered to prove encouraging child sexual abuse
(ECSA), using a child in a display of sexually explicit con-
duct (UCDSEC), and luring. We begin by describing what
those charges required the state to prove. We then explain
the bases for defendant’s motions for judgment of acquit-
tal on those charges. Lastly, we explain why, except for five
counts related to one victim on which the state concedes
error, we reject defendant’s challenges.
         As relevant here, a person commits ECSA if the per-
son “[k]nowingly develops, duplicates, publishes, prints, dis-
seminates, exchanges, [or] displays * * * a visual recording
of sexually explicit conduct involving a child” and the per-
son “[k]nows or is aware of and consciously disregards the
fact that creation of the visual recording of sexually explicit
conduct involved child abuse.” ORS 163.684. As also rele-
vant here, a person commits UCDSEC if the person “com-
pels 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. Both statutes contain the
phrase “sexually explicit conduct,” which, as relevant here,
is defined to include “[m]asturbation” and the “[l]ewd exhibi-
tion of sexual or other intimate parts.” ORS 163.665(3).
Cite as
342 Or App 456
(2025)                             503

         A person commits the crime of luring a minor
if that person “furnishes to, or uses with, a minor * * * a
visual representation or explicit verbal description or nar-
rative account of sexual conduct for the purpose of inducing
the minor or purported minor to engage in sexual conduct.”
ORS 167.057.
          Defendant, as he did below, argues that he was
entitled to judgments of acquittal on each of the charges
for UCDSEC and ECSA. He raises three arguments that
encompass both those statutes. First, he asserts that the
state presented insufficient evidence that the images at
issue were “lewd,” as both statutes require. Second, he
argues that he was entitled to judgments of acquittal
because the state failed to prove that breasts are a “sexual
or intimate part.” And third, he argues that he was entitled
to judgments of acquittal on two of the UCDSEC charges
and two of the ECSA charges because they were based on
acts that defendant committed while in California, outside
of Oregon’s jurisdiction. Defendant additionally argues, as
to the UCDSEC charges, that he was entitled to judgments
of acquittal because the state failed to prove that: (1) defen-
dant compelled or induced the victims to engage in sexually
explicit conduct; (2) the victims’ participation or engagement
in sexually explicit conduct was causally related to defen-
dant’s compulsion or inducement; and (3) that he was “using
a child” in the display. Furthermore, defendant contends
that the state’s evidence was legally insufficient to support
defendant’s conviction for UCDSEC in Case No. 20CR26835,
Count 14. Finally, he argues that he was entitled to a judg-
ment of acquittal on the luring charges because, in defen-
dant’s view, there was no evidence that he used a narrative
account of sexual conduct to induce a minor to engage in
sexual conduct.
         Before addressing the merits of each of those argu-
ments, we accept the state’s concession that the ECSA and
UCDSEC charges that were based on conduct that defendant
engaged in while in California cannot be the basis for con-
victions in Oregon. We therefore reverse defendant’s convic-
tions on Counts 5, 6, 7, 8, and 9 in Case No. 20CR26835. We
now turn to the merits of defendant’s remaining arguments.
504                                                      State v. DiMolfetto

A.   A rational trier of fact could conclude that the images
     that the state offered were “lewd,” as required for both
     UCDSEC and ESCA (20CR26835, Counts 2-3, 11-12, 14;
     20CR58130, Counts 5-6, 10, 12, 15-16).
         As noted, both UCDSEC and ESCA (as alleged in
this case) require proof that the images that defendant sent
the victims constituted “lewd exhibition of sexual or other
intimate parts.” The images at issue include photographs
of one victim pulling up her shirt and revealing her bare
breasts, an image of one victim taking a “selfie” of herself in
the mirror, bare breasted, an image of one victim’s “butt,” a
photograph of one victim’s genitals, as well as images (taken
as screenshots from a video) showing one of the victims mas-
turbating. The images were sent in the context of defendant
asking the victims to send him additional explicit images
and sending sexually explicit text messages. As to that last
piece of evidence—screenshots from a video of one of the
victims masturbating—the record shows that the victim
recorded the video and sent it to defendant after he urged
her to send images of her “fingering” herself.
         Defendant contends that a rational trier of fact could
not find that the images constituted “lewd exhibition.”14 He
relies on our recent decision in Parra-Sanchez, in which we
concluded that “whether something constitutes a lewd exhi-
bition is determined by reference to objective standards.”
324 Or App at 733. Determining whether an exhibition is
“lewd” depends on
     “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. “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
    14
       In his opening brief, defendant broadly asserted that none of the images
offered at trial were “lewd.” In his reply brief, he identified certain images—of the
victims’ breasts, of a victim’s buttocks, of a victim’s vagina that is “suggestive of
masturbation,” and another of a victim masturbating—and suggests that those
particular images are not lewd. As we explain below, we disagree that those
images are not lewd.
Cite as
342 Or App 456
(2025)                                                     505

such as showering or dressing.” Id. at 721.15 We adopted six fac-
tors as “useful guideposts” in applying that objective standard:
   •    “ ‘[W]hether the focal point * * * is on the child’s genita-
        lia or pubic area;’ ”
   •    “ ‘[W]hether the setting of the visual depiction is sex-
        ually suggestive, i.e., [whether it is] in a place or pose
        generally associated with sexual activity;’ ”
   •    “ ‘[W]hether the child is depicted in an unnatural pose,
        or in inappropriate attire, considering the age of the
        child;’ ”
   •    “ ‘[W]hether the child is fully or partially clothed, or
        nude;’ ”
   •    “ ‘[W]hether the visual depiction suggests sexual coy-
        ness or a willingness to engage in sexual activity;’ ” and
   •    “ ‘[W]hether the visual depiction is intended or designed
        to elicit a sexual response in the viewer.’ ”
Id. at 733-34 (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), and aff’d, 813 F2d 1231 (9th Cir),
cert den,
484 US 856
(1987)). The weight to be given to each
factor “will depend ultimately on the circumstances of the
trial”; not all factors have to be present for a trier of fact to
find a lewd exhibition. Id. at 735.
        We conclude that a rational trier of fact could find
that the images at issue here constituted lewd exhibition
because they were “salacious or focused on sex.” Id. at 733.
As the state observes, those images satisfy most of the fac-
tors that we adopted in Parra-Sanchez.16 At defendant’s
request, the victims—who were children—took photographs
     15
        In Parra-Sanchez, we concluded that the evidence was insufficient to support
the defendant’s convictions for UCDSEC. 324 Or App at 718. The defendant was
charged with that crime after he looked at his daughter while she was in the shower
or while she was getting dressed. Id. at 715. We concluded that there was no evidence
of a display that was “itself salacious or focused on sex” even if the defendant himself
viewed his daughter’s nude body for his own sexual gratification. Id. at 736-37.
     16
        The state urges us to consider, in applying the Dost factors, the context in
which the images were sent, i.e., a series of graphic and sexually charged conversa-
tions with defendant. Defendant has offered no argument as to why, in the context
of the objective test we adopted in Parra-Sanchez, we cannot consider such context.
That said, because a rational trier of fact could conclude that the images—even
absent that context—are lewd, we do not decide that question today.
506                                          State v. DiMolfetto

of their breasts and genitals and, in one instance, created a
video of herself masturbating. The focal points of many of the
images and video were of a victim’s genitalia, as described in
the first factor; the evidence would support an inference that
the images were “generally associated with sexual activity”
and suggesting a “willingness to engage in sexual activity”
given that some involved victims pulling up their shirts to
expose their bare breasts, exposing their genitals, and mas-
turbating, as described in the second and fifth factors; and
the victims were nude and not in natural poses or dressed
in appropriate clothing, as described in the third and fourth
factors. Id. at 734. Simply put, we are persuaded that, in the
light most favorable to the state, a rational trier of fact could
find that the images were salacious and focused on sex.
B.    A rational trier of fact could find that the victims’ breasts
      constituted a “sexual or intimate part,” as required for
      both UCDSEC and ESCA (20CR26835, Counts 2-3,
      11-12, 14; 20CR58130, Counts 5-6, 10, 12, and 15-16).
         Defendant next asserts that breasts are not a “sex-
ual or intimate part,” as required by both the UCDSEC and
ESCA statutes, and so no rational trier of fact could have
found defendant guilty of those crimes based on photographs
of the victims’ breasts. Defendant’s argument is foreclosed
by State v. Woodley,
306 Or 458
,
760 P2d 884
(1988). We
are bound by that case and are unpersuaded by defendant’s
attempts to distinguish it.
C. A rational trier of fact could find that (1) defendant induced
   the victims to engage in sexually explicit conduct and
   (2) the victims’ participation or engagement in sexually
   explicit conduct was causally related to defendant’s induce-
   ment, as required for the UCDSEC charges. (20CR26835,
   Counts 2, 11-12, 14; 20CR58130, Counts 5, 6, 10, 16).
         Defendant next argues that the state’s evidence
was legally insufficient to prove that defendant committed
UCDSEC because the state failed to prove that defendant
“induced” any of the victims to engage in sexually explicit
conduct or that he caused the victims to engage in sexually
explicit conduct. As to the first argument, he maintains that
“inducing” a child to act “requires the defendant to influence
Cite as
342 Or App 456
(2025)                               507

an act or course of conduct * * * by ‘persuasion or reasoning.’ ”
Even assuming that is what is required (and defendant cites
no authority on that point), the evidence shows that defen-
dant’s conduct meets that definition. He used deception and
manipulation to convince the children to engage in sexu-
ally explicit conduct—specifically, lewd display of intimate
parts—photograph themselves, and send the images to him.
         As to his second argument—that the evidence
was insufficient to prove any of the UCDSEC or attempted
UCDSEC charges because there was “no evidence” that he
actually caused any child to engage in sexually explicit con-
duct—we again disagree. Defendant acknowledges that the
record contains evidence that he “cajoled” and “manipulated”
children to send him images of themselves undressed; how-
ever, he asserts that it is possible that the images that the
victims sent him were ones that they already had. Reviewing
the evidence in the light most favorable to the state, we con-
clude that there is ample evidence in the record from which
a trier of fact could conclude that defendant persuaded the
victims to create the images for him and at his request.
D. A rational trier of fact could find that defendant was
   guilty of UCDSEC based on images relating to that
   charge (20CR26835, Count 14).
          Defendant maintains that the jury could not find
him guilty of UCDSEC as charged in Count 14 because
the state did not offer any lewd image associated with that
charge. Having reviewed the record, we conclude that the
state offered a number of explicit images that the victim
sent defendant at his behest that would permit a rational
trier of fact to find that defendant committed this particular
count of UCDSEC.
E.   A rational trier of fact could find that defendant engaged
     in a narrative description of sexual conduct with the pur-
     pose of inducing the victims to do the same, as required
     for the crime of luring a minor (20CR26835, Counts 1, 4,
     10, 13, 15; 20CR58130, Counts 11, 17).
          Lastly, defendant argues, briefly, that no rational
trier of fact could find that defendant committed the crime
of luring a minor. As noted above, a person commits that
508                                       State v. DiMolfetto

crime if they “furnis[h] to, or use[ ] with, a minor, a police
officer posing as a minor or an agent of a police officer pos-
ing as a minor, a visual representation or explicit verbal
description or narrative account of sexual conduct for the
purpose of inducing the minor or purported minor to engage
in sexual conduct.” ORS 167.057(1)(a). Defendant appears
to maintain that there is no evidence that he sent explicit
texts with the purpose of inducing the victims to engage in
sexual conduct. Having reviewed the evidence of the text
messages between defendant and the victims, we disagree.
Evidence that defendant urged the victims to “finger” them-
selves and to have sex with their boyfriends (while thinking
of him) was sufficient for a rational trier of fact to conclude
that defendant sent those messages to induce the victims to
engage in sexual conduct themselves.
         In Case No. 20CR26835, convictions on Counts 5, 6,
7, 8, and 9 reversed; remanded for resentencing; otherwise
affirmed. In Case No. 20CR58130, remanded for resentenc-
ing; otherwise affirmed.