Background
A jury convicted William Richard McDonald II of first-degree unlawful sexual penetration, using a child in a display of sexually explicit conduct, and three counts of first-degree encouraging child sexual abuse. The victim was L, a 7-year-old granddaughter of McDonald’s partner. The first count arose from evidence that McDonald inserted his finger into L’s vagina while she slept. The remaining counts were based on explicit photos found in McDonald’s Google account, including internet screenshots and photographs of L.
McDonald was arrested following a forensic interview of the victim in August 2023. During the police interview, McDonald admitted sharing photos with L’s account while intoxicated, touching L’s vagina “once,” and taking some photos of her. He denied penetration, claiming he was having sexual dreams and woke to find his hands in her pants. After the interview, McDonald consumed floor stripper, attempted to strangle himself with cords in the hospital, and tried to smother himself with a pillow.
On appeal, McDonald raised seven assignments of error, four concerning evidence admissibility and three concerning the meaning of “participating” in sexually explicit conduct. The Court of Appeals affirmed all convictions.
The Court’s Holding
The court affirmed the admissibility of the victim’s hearsay statements to her mother, finding them either admissible to show their effect on the listener or harmless error because corroborating evidence—including the victim’s own testimony and McDonald’s videotaped statements—independently established the facts asserted. The court rejected McDonald’s argument that the evidence was immaterial merely because police eventually obtained the images.
The court also affirmed the admission of McDonald’s self-harm acts and statements that he wanted to kill himself as evidence of consciousness of guilt. The court held that such evidence is relevant and admissible, analogous to evidence of flight or concealment, and that it was reasonable for the jury to infer guilty knowledge from McDonald’s reactions after police confrontation. The court rejected McDonald’s contention that his mental health challenges should insulate such evidence from admission, noting that the timing of his reactions—following police confrontation—made consciousness of guilt a reasonable inference even if other interpretations were possible.
On the critical statutory interpretation issue, the court held that a sleeping child can “participate” in sexually explicit conduct for purposes of ORS 163.670. Although McDonald did not raise this argument below, the court addressed it on plain error review. Consulting dictionary definitions, the court found that “participate” can mean “to have a part or share in something.” Because McDonald moved L’s underwear to the side and photographed her pubic area, the child had “a part” in the defendant’s creation of the visual recording. The court rejected McDonald’s reliance on prior cases, finding that L was not merely in proximity to sexually explicit conduct but served “as defendant’s model.”
Key Takeaways
- A child who is unconscious or asleep can still “participate” in sexually explicit conduct for statutory purposes when the defendant positions the child’s body and photographs their genitalia.
- Evidence of a defendant’s self-harm and suicide statements after police confrontation is admissible as circumstantial evidence of consciousness of guilt, even where mental health challenges may provide an alternative explanation.
- Trial courts are not required to provide supplemental jury instructions on statutory terms when no such instruction was requested at trial, and failure to do so is not plain error.
- Hearsay statements of a child to their parent are admissible where independently corroborated by the child’s own trial testimony or other evidence.
Why It Matters
This decision significantly impacts child sexual abuse prosecutions by clarifying that the statute criminalizing use of a child in sexually explicit conduct is not limited to situations where the child is conscious or cooperating. The court’s holding that a sleeping child can “participate” in a lewd exhibition expands prosecutorial reach and protects against defendants exploiting child unconsciousness as a loophole. The decision notes that this interpretation makes intuitive sense where, for example, a defendant has drugged a child and then photographed their body.
The affirmance of consciousness-of-guilt evidence is also significant. By permitting admission of self-harm and suicide statements as circumstantial evidence of guilt—rather than excluding them based on the defendant’s asserted mental health vulnerabilities—the court maintains a powerful prosecutorial tool while rejecting arguments that mental illness should categorically shield defendants from such evidence. This balance reflects the court’s view that timing (reactions following police confrontation) makes guilt inference reasonable regardless of competing explanations.