State v. Tucker
Case # A150756
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A150756.pdf
Defendant Tucker was convicted of public indecency, ORS 163.465, in July 2000. Eight months later, in March 2001, Tucker was again convicted of public indecency. The crime that led to the second conviction occurred in September 2000, which was only two months after Tucker’s first conviction. Because it was his second conviction for public indecency, that conviction was for a Class C felony and a sex crime, as defined in ORS 181.805(5)(t). ORS 181.805(5)(t) provides that “public indecency” is a “sex crime” if the person has a prior conviction for public indecency or another sex crime.
Tucker ended up having his first public indecency conviction set aside (expunged) under ORS 137.225(1)(a). After the first public indecency conviction was expunged, Tucker sought to have his felony public indecency conviction set aside. The State objected, contending that because that second conviction was for a sex crime, it was ineligible to be set aside. The trial court agreed with the State, and Tucker now appeals.
Tucker argues that because his first conviction for public indecency was set aside, the second public-indecency conviction should count as his first public-indecency conviction and therefore should not be a felony and should not be a sex crime.
The Court of Appeals disagrees with Tucker. It holds that at the time Tucker was charged with the second incident of public indecency, it became a sex crime at that point. Because Tucker’s conviction was for a sex crime, he is ineligible to have that conviction set aside under ORS 137.225(5)(b). Accordingly, the denial is affirmed.