Opinion
90-07-33549; CA A72528
Argued and submitted January 29, 1993
Affirmed July 7, 1993 Reconsideration denied September 15, 1993 Petition for review denied October 26, 1993 ( 318 Or. 26)
Appeal from Circuit Court, Union County.
Ronald D. Schenck, Judge.
Hari Nam S. Khalsa, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.
Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Charles S. Crookham, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Deits, Presiding Judge, and Riggs and Durham, Judges.
DEITS, P.J.
Affirmed.
Defendant appeals his convictions for two counts of dealing in depictions of sexual conduct involving a child, ORS 163.673, and the conditions of probation imposed as a result of the convictions. We affirm.
Defendant was found to have developed and possessed with intent to print a photograph of a child in an act of "sexually explicit conduct," which ORS 163.665(2)(f) defines as "[l]ewd exhibition of the genitals or anus." Although he did not demur to the indictment, defendant here contends that the statutes under which he was convicted are unconstitutional and that we should reach the error as apparent on the face of the record. ORAP 5.45(2). Specifically, defendant claims that the statutes are void for vagueness and over-breadth. The same issue was decided adversely to defendant in State v. Meyer, 120 Or. App. 319, 852 P.2d 879 (1993).
Defendant also contends that the trial court erred in imposing special conditions of probation relating to pedophile offenders. Defendant's probation was revoked on March 19, 1992, for his failure to comply with the terms of probation. He was sentenced to 84 days in the county jail. The state appealed the trial court's disposition of defendant's sentence after the court revoked probation. In that appeal, we held that, after revoking probation, the trial court erred in failing to sentence defendant to a prison term pursuant to OAR 253-10-002; we remanded for resentencing. State v. Lewis, 119 Or. App. 362, 850 P.2d 409, rev den 317 Or. 163 (1993). Accordingly, the conditions of defendant's probation are no longer at issue, and his claim of error is moot.
Affirmed.