370	                     September 22, 2016	                        No. 62

             IN THE SUPREME COURT OF THE
                   STATE OF OREGON

                     STATE OF OREGON,
                      Petitioner on Review,
                                v.
                  DENNIS JAMES DAVIDSON,
                     Respondent on Review.
                      (S063387) (Control)
                     STATE OF OREGON,
                    Respondent on Review,
                                v.
                 DENNIS JAMES DAVIDSON,
                      Petitioner on Review.
                            (S063480)
                  (CC 11C43121; CA A150292;
               SC S063387 (Control), SC S063480)

   En Banc
   On review from the Court of Appeals.*
   Argued and submitted May 9, 2016.
   Rolf C. Moan, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review/
respondent on review State of Oregon. With him on the brief
were Ellen F. Rosenblum, Attorney General, and Paul L.
Smith, Solicitor General.
   Ernest G. Lannet, Chief Defender, Salem, argued the
cause and filed the brief for respondent on review/petitioner
on review Dennis James Davidson.
   Jordan R. Silk, Portland, filed the brief on behalf of amici
curiae Oregon Justice Center. With him on the brief was
Alexander A. Wheatley.
______________
	  *  On appeal from Marion County Circuit Court, Dale W. Penn, Judge. 271 Or
App 719, 353 P3d 2 (2015).
Cite as 360 Or 370 (2016)	371

    BREWER, J.
   The decision of the Court of Appeals is affirmed. The judg-
ment of the circuit court is affirmed in part and reversed
in part, and the case is remanded to the circuit court for
resentencing.
    Case Summary: Defendant, who was convicted of felony public indecency
based on incidents during which he exposed his genitals in public, argued that
the sentence of life imprisonment without the possibility of parole imposed for
those convictions violated Article I, section 16, of the Oregon Constitution, which
requires that all penalties be proportioned to the offense. Held: Under the cir-
cumstances of this case, the penalty of life imprisonment without the possibility
of parole was unconstitutionally disproportionate under Article I, section 16, of
the Oregon Constitution.
    The decision of the Court of Appeals is affirmed. The judgment of the circuit
court is affirmed in part and reversed in part, and the case is remanded to the
circuit court for resentencing.
372	                                                    State v. Davidson

	          BREWER, J.
	         Defendant was convicted of two counts of public
indecency under ORS 163.465 for exposing himself at a
public park; because he had two prior felony convictions for
public indecency, and the trial court found no ground for
downward departure, defendant was sentenced consecu-
tively on each count to life imprisonment without the possi-
bility of parole under ORS 137.719(1).1 The Court of Appeals
affirmed defendant’s convictions but held that the sentences
violated Article I, section 16, of the Oregon Constitution,
which provides that all penalties shall be proportioned to
the offense.2 State v. Davidson, 271 Or App 719, 353 P3d 2
(2015). Defendant sought review in this court, arguing that
the Court of Appeals erred in upholding his convictions. The
state also sought review, asserting, first, that defendant’s
sentences are unreviewable because they are “presumptive”
sentences and, second, that the sentences were not unconsti-
tutionally disproportionate in light of the facts of this case
and the circumstances of defendant’s previous crimes. We
allowed both petitions. As explained below, we affirm defen-
dant’s convictions, but we conclude that the sentences are
unconstitutionally disproportionate as applied to defendant.
Accordingly, we affirm the decision of the Court of Appeals,
and we reverse defendant’s sentences and remand to the cir-
cuit court for resentencing.
	        This case presents some of the same issues that we
recently addressed in State v. Althouse, 359 Or 668, 375 P3d
475 (2016). Althouse, in fact, forecloses the state’s review-
ability argument, and we therefore reject that argument
without further discussion. See id. at 678 (holding that
ORS 138.222(2)(a) does not preclude review of sentence
of life imprisonment without possibility of parole imposed
pursuant to ORS 137.719). In addition to its reviewability
	1
     ORS 137.719(1) provides:
 	     “The presumptive sentence for a sex crime that is a felony is life impris-
 onment without the possibility of release or parole if the defendant has been
 sentenced for sex crimes that are felonies at least two times prior to the cur-
 rent sentence.”
	2
     Article I, section 16, provides, in part:
 “Cruel and unusual punishments shall not be inflicted, but all penalties shall
 be proportioned to the offense.”
Cite as 360 Or 370 (2016)	373

holding, Althouse set out a framework for the consideration of
as-applied constitutional challenges to sentences imposed
pursuant to ORS 137.719. Accordingly, we first address
defendant’s challenge to his underlying convictions under
ORS 163.465 and then evaluate the constitutionality of
the life sentences imposed for those convictions under the
framework set out in Althouse.
       I.  FACTS AND PROCEDURAL HISTORY
A.  Current Convictions
	        Because the jury found defendant guilty of the cur-
rent charges, we view the evidence presented at trial in
the light most favorable to the state. State v. Agee, 358 Or
325, 327, 364 P3d 971 (2015). A group of women and chil-
dren were having lunch in a park in Salem when defendant
walked by and waved at them. After the older children left
the group to play on a nearby play structure, a man came by
and told the group that defendant was behind a nearby tree.
One of the women, Davis, looked over her shoulder and could
see defendant peeking out at her from behind the tree.
	        When Davis stood up and turned, she was able to
see that defendant was exposing his genitals and mastur-
bating. Davis called 9-1-1 and gathered her group together
to return to their car. As they left, defendant approached
and told Davis several times that he was leaving; he then
left through the south end of the park. Responding offi-
cers searched the area to the south of the park and found
defendant standing at a fence bordering the park, looking
into the park. As the officers approached defendant, they
could see that he had his pants open and was masturbat-
ing. Defendant was then arrested and subsequently charged
with and convicted by a jury of two counts of public inde-
cency, one count for the incident near Davis’s group and the
other count for the incident at the border of the park shortly
before he was apprehended.
B.  Prior Public Indecency Convictions
	        Defendant’s prior convictions for public indecency
were relevant to his sentencing on his current convic-
tions, because the prior convictions elevated those offenses
374	                                                      State v. Davidson

from misdemeanors to felony public indecency. See ORS
163.465(2).3 In the guilt phase of the trial in this case, for
the purpose of establishing that the current offenses were
properly charged as Class C felony offenses, defendant
stipulated to the existence of three prior public indecency
convictions. The details of defendant’s prior convictions, as
described below, were presented in a presentence investiga-
tion report in the course of the sentencing proceeding.4
	        In 2006, defendant was convicted of the crime of
misdemeanor public indecency and placed on probation.
That offense occurred when defendant was observed by a
neighbor while defendant was standing on the porch of a
house and masturbating. When defendant saw the neighbor,
he called out to her, “you want some of this?” as he continued
to masturbate. The neighbor called the police. Nobody was
home at the house when the incident occurred, but, when
questioned by the police, defendant claimed to have been
visiting “Amy” at the house and suggested that he had some
sort of intimate relationship with “Amy.” Defendant even
described some items inside the house. The police later con-
tacted the homeowner, who was not named “Amy,” and she
denied knowing defendant. The police also discovered that
defendant’s grandmother lived near the house where the
offense occurred, that defendant had stayed with his grand-
mother at some point in time, and that his grandmother
had entered his bedroom and discovered him masturbating
while looking out the window toward the house where the
offense later occurred. Finally, the police located a letter in
defendant’s backpack written by defendant to another per-
son, stating that he had a crush on her and had watched her
mow her lawn. The woman who owned the house where the
offense occurred acknowledged that she regularly mowed the
	3
        ORS 163.465(2) provides:
    	     “(a)  Public indecency is a Class A misdemeanor.
    	     “(b)  Notwithstanding paragraph (a) of this subsection, public indecency
    is a Class C felony if the person has a prior conviction for public indecency or
    a crime described in ORS 163.355 to 163.445 or for a crime in another juris-
    diction that, if committed in this state, would constitute public indecency or
    a crime described in ORS 163.355 to 163.445.”
	4
        At sentencing, defendant also made a personal statement to the court, but
neither party presented additional evidence beyond what was contained in the
presentence investigation report.
Cite as 360 Or 370 (2016)	375

lawn around her house. The woman subsequently obtained
a stalking protective order against defendant.
	        Defendant was convicted of misdemeanor public
indecency arising out of the incident on the porch, and he
was sentenced to probation for that offense. Several months
later, while defendant was on probation for that offense,
a number of school staff members reported that they had
observed defendant expose his genitals while masturbating
near an elementary school playground. One of those staff
members indicated that, when defendant saw her looking at
him through a window, he turned to face her as if he wanted
her to observe him. Three children also saw defendant near
the school, although the record did not indicate whether
they saw him expose his genitals. Defendant was convicted
of public indecency for that conduct, and, because he had a
prior misdemeanor public indecency conviction, his convic-
tion for the school incident was elevated to a felony under
ORS 163.465(2). Defendant served a 28-month prison sen-
tence for that conviction.
	        Shortly after defendant was released from prison on
his sentence for the school incident, defendant again was
arrested for and convicted of felony public indecency. In that
incident, a group of women (who had a child with them) were
near their car in a store parking lot when they observed
defendant looking at them while he exposed his genitals
and masturbated. When the police arrived, an officer also
observed defendant masturbating in the parking lot. After
defendant was apprehended, he told the police that he had
been masturbating inside a nearby pornography shop and
that he had masturbated in front of the women after he left
the store because he thought that it would make the women
“hot” and that he would be able to get a “date.”
C.  Other Prior Convictions and Misconduct
	        In evaluating disproportionality challenges to crim-
inal sentences, it is appropriate for a court to consider any
prior conviction, as well as misconduct that did not result
in convictions. Althouse, 359 Or at 679; State v. Rodriguez/
Buck, 347 Or 46, 78, 217 P3d 659 (2009). In the present case,
the presentence investigation report indicated that defen-
dant first came into contact with police at age 10, when he
376	                                                     State v. Davidson

was accused of shoplifting a toy.5 He was first referred to
the juvenile court at age 14 based on a fighting incident at
his junior high school; that referral was disposed of infor-
mally. When he was in his late teens and early twenties,
defendant had numerous contacts with law enforcement,
primarily involving possession of controlled substances. He
also was arrested twice for battery based on fights with his
girlfriend, but those charges were dismissed. He was con-
victed on one occasion of trespass and investigated for tres-
pass based on several other incidents, some of which arose
in conjunction with the public indecency incidents described
above. Defendant also had a single prior conviction for driv-
ing while suspended.
	        Most of defendant’s convictions for offenses other
than public indecency resulted in probationary sentences.
The record shows that defendant consistently performed
poorly on probation and post-prison supervision, regularly
committing new offenses while under supervision, as well
as failing to appear at various hearings concerning proba-
tion violations. While incarcerated, defendant received sanc-
tions for misconduct (generally for disobedience) on numer-
ous occasions. Defendant has been diagnosed with various
substance dependence disorders, as well as with a cognitive
disorder due to a traumatic brain injury that occurred when
he was a teenager.
D.  Sentencing
	         At defendant’s sentencing, the state argued that
a sentence of life imprisonment without the possibility of
parole was appropriate, noting in particular that defen-
dant’s first two public indecency offenses were committed in
a brief time interval, that the third offense occurred within
days after he was released from prison on the prior offenses,
and that the current crimes also occurred within days of his
release from prison for the third offense. For the most part,
the state’s focus at sentencing was not on the specifics of
any of the public indecency offenses themselves (other than

	5
       Defendant does not challenge the trial court’s consideration of evidence of
his prior misconduct and other criminal offenses contained in the presentence
investigation report.
Cite as 360 Or 370 (2016)	377

noting that they caused harm to the victims), but rather on
defendant’s recidivism.
	        In response, defense counsel emphasized the fact
that none of defendant’s offenses involved violence or physi-
cal contact with anyone; he argued that a life sentence with-
out the possibility of parole is simply too harsh a punishment
for masturbating in public, even for a repeat offender. In his
own statement at sentencing, defendant showed little or no
understanding that society views his public sexual behavior
as unacceptable.6
	        The circuit court noted that, under ORS 137.719, the
presumptive sentences for defendant’s current convictions
were life imprisonment without the possibility of parole and
concluded that it could not identify any mitigating factor that
would justify downward departures from those presumptive
sentences.7 Accordingly, the court sentenced defendant to
consecutive life sentences without the possibility of parole
on the current convictions.
E.  Appeal
	        Defendant appealed, arguing that (1) his convic-
tions should be reversed because the trial court had erred
in failing to give a requested jury instruction on attempted
public indecency; and (2) his sentences should be reversed
because the life sentences without the possibility of parole
that the court imposed were unconstitutionally dispropor-
tionate under Article I, section 16. Defendant did not argue
that ORS 137.719 is facially unconstitutional. Rather, he
asserted that the application of that statute in the present
circumstances was unconstitutional under Article I, sec-
tion 16, because the penalty was disproportionate to the
	6
        Defendant’s statements were consistent with the opinions of several mental
health professionals who had evaluated him over the years. For example, the
report of defendant’s 2009 mental health evaluation states:
     “He has obviously distorted sexual attitudes and opinions, believing that
     women might be attracted to him by masturbating in public in their presence.”
	7
        Defendant did not assert before the circuit court, nor has he asserted on
appeal or review, that his mental health circumstances, including his apparent
lack of appreciation for the criminality of his conduct, amount to a mitigating fac-
tor in assessing the proportionality of his sentences. We therefore do not consider
that issue here.
378	                                           State v. Davidson

offense. Defendant emphasized that public indecency his-
torically has been a misdemeanor offense under Oregon law,
see ORS 161.615(1) (maximum term of imprisonment for
highest-level misdemeanor offense is one year), and he urged
that the penalties imposed in this case were disproportion-
ate in comparison to sentences for other offenses of similar
or greater gravity.
	        The Court of Appeals rejected defendant’s jury
instruction argument without discussion, but it agreed with
defendant that, as applied to his circumstances, the life sen-
tences imposed on the two convictions for public indecency
were unconstitutionally disproportionate and, therefore,
reversed those sentences and remanded to the circuit court
for resentencing. Davidson, 271 Or App at 721 n 4, 745.
	       The state sought review of the Court of Appeals’
decision with respect to defendant’s sentences, and defen-
dant sought review of the Court of Appeals’ disposition of
his assignment of error relating to the jury instruction.
We granted both petitions for review, and, for the reasons
explained below, we affirm the decision of the Court of
Appeals with respect to both issues.
             II.  CHALLENGE TO DEFENDANT’S
                       CONVICTIONS
	        We first consider defendant’s challenge to his con-
victions. ORS 163.465(1) provides:
   	 “A person commits the crime of public indecency if while
   in, or in view of, a public place the person performs:
   	   “(a)  An act of sexual intercourse;
   	   “(b)  An act of deviate sexual intercourse; or
   	 “(c)  An act of exposing the genitals of the person with
   the intent of arousing the sexual desire of the person or
   another person.”
Defendant was charged under paragraph (c) of that statute.
	        At trial, defendant moved for a judgment of acquit-
tal, arguing that the state was required to prove that, when
he exposed himself, he intended other people to see what he
was doing, and asserting that a person who surreptitiously
Cite as 360 Or 370 (2016)	379

masturbates in a public place but does not intend to be
viewed by others does not violate that statute. That is, defen-
dant argued, the state was required to prove that defendant
exposed his genitals with the intent to arouse sexual desire
by being seen exposing himself in public, not simply that he
exposed his genitals intending to arouse sexual desire and
that that act occurred in, or view of, a public place. The trial
court denied defendant’s motion for judgment of acquittal.
	        Subsequently, in a colloquy regarding jury instruc-
tions, defense counsel requested an instruction on attempted
public indecency, arguing: “[I]n this case, because especially
in count two, or the second time [defendant] encountered
someone else, no one else was around to see him and when
he was seen, he fled. It could be seen as an attempt[.]” When
the trial court asked for further clarification about how the
evidence could support an attempt conviction, counsel indi-
cated that the instruction could potentially apply to both
counts, adding: “Well, because ‘exposed,’ your Honor, can be
a couple of things. The fact that [Davis] had to get up and
adjust her viewpoint to see what was going on, [defendant]
was not putting himself on display.” Defense counsel did not
specify precisely how he wanted the jury to be instructed
on attempted public indecency, but it is apparent from the
quoted colloquy that he sought the “attempt” instruction
as a basis for arguing to the jury that the state’s evidence
was insufficient to prove that defendant was trying to be
observed when he committed the “act of exposing the gen-
itals” described in ORS 163.465(1)(c), an argument similar
to the one that he had made in support of the motion for
judgment of acquittal.
	        “A party is generally entitled to a jury instruction
based on its theory of the case if the instruction is war-
ranted by the particular facts and correctly states the law.”
State v. Washington, 355 Or 612, 653, 330 P3d 596 (2014).
We presume that defendant wanted a standard instruction
on “attempt” that followed the text of the attempt statute
and thus would have been a correct statement of the law.
Under ORS 161.405(1), an attempt crime occurs when a per-
son “intentionally engages in conduct that constitutes a sub-
stantial step toward commission of the crime.” The conduct
380	                                                      State v. Davidson

that constitutes the substantial step must “(1) advance the
criminal purpose charged and (2) provide some verification
of the existence of that purpose.” State v. Walters, 311 Or 80,
85, 804 P2d 1164 (1991). In sum, an attempt instruction is
appropriate when the evidence could support a finding that
the defendant specifically intended to commit a crime and
took a substantial step toward doing so, but did not complete
the crime.
	        Defendant’s argument in this case, by contrast, was
not that the evidence permitted an inference that he intended
to carry out the charged offenses of public indecency but did
not complete them. Rather, his argument was that the state
was required to prove that he intended to arouse himself
by being observed exposing himself in public, and the state
failed to prove that he had the requisite intent to commit the
crimes at all. Stated differently, defendant’s theory was that
no public indecency crime was committed because he lacked
the requisite intent to commit that offense.
	        So understood, an attempt instruction based on
ORS 161.405 would not have advanced defendant’s theory
of the case. If defendant’s theory were correct, he would not
have been guilty of either an attempt—in that he would
have lacked the requisite specific intent to carry out that
offense—or the completed offense. Accordingly, even assum-
ing that defendant’s theory of the case was sound—an issue
that we do not reach in this case—an attempt instruction
would not have been an appropriate vehicle for advancing the
argument that defendant lacked the requisite intent to com-
mit the charged crime.8 It follows that the trial court did not
err in declining to give the requested attempt instruction.
                 III.  AS-APPLIED CHALLENGE
                 TO DEFENDANT’S SENTENCES
	       We now turn to the state’s argument that the Court
of Appeals erred in concluding that defendant’s sentences
were unconstitutionally disproportionate under Article I,
section 16. As discussed, defendant had been convicted of
	8
       As noted, defendant advanced the same theory of the case in his motion for
judgment of acquittal. He did not, however, assign error on appeal to the denial of
that motion.
Cite as 360 Or 370 (2016)	381

felony sex crimes as defined in ORS 163A.005 twice before
being sentenced for the present offenses, and, thus, he pre-
sumptively was subject to the sentences of life imprisonment
without the possibility of parole that the trial court imposed
pursuant to ORS 137.719. In its full text, that latter statute
provides:
   	 “(1)  The presumptive sentence for a sex crime that
   is a felony is life imprisonment without the possibility of
   release or parole if the defendant has been sentenced for
   sex crimes that are felonies at least two times prior to the
   current sentence.
   	 “(2)  The court may impose a sentence other than the
   presumptive sentence provided by subsection (1) of this sec-
   tion if the court imposes a departure sentence authorized
   by the rules of the Oregon Criminal Justice Commission
   based upon findings of substantial and compelling reasons.
   	   “(3)  For purposes of this section:
   	 “(a)  Sentences for two or more convictions that are
   imposed in the same sentencing proceeding are considered
   to be one sentence; and
   	   “(b)  A prior sentence includes:
   	 “(A)  Sentences imposed before, on or after July 31,
   2001; and
   	 “(B)  Sentences imposed by any other state or federal
   court for comparable offenses.
   	 “(4)  As used in this section, ‘sex crime’ has the mean-
   ing given that term in ORS 163A.005.”
	        After the Court of Appeals issued its decision in
this case, we decided Althouse, 359 Or 668. In that case, we
considered a challenge to the application of ORS 137.719 to
convictions for felony public indecency offenses under ORS
163.465. The defendant in Althouse, like defendant here,
had been convicted of felony public indecency after already
having been convicted of prior sexual offenses, thus trigger-
ing the application of ORS 137.719. We observed in that case
that the framework for the analysis of an as-applied dis-
proportionality challenge to a true-life sentence under ORS
137.719 requires consideration of the following factors:
382	                                           State v. Davidson

   “ ‘(1) a comparison of the severity of the penalty and the
   gravity of the crime; (2) a comparison of the penalties
   imposed for other, related crimes; and (3) the criminal his-
   tory of the defendant.’ ”
Althouse, 359 Or at 684 (quoting Rodriguez/Buck, 347 Or
at 58). We further held in Althouse that, when a sentence
is enhanced based on the defendant’s repeat-offender sta-
tus, additional considerations come into play. For example, if
the defendant “ ‘is a menace to the community, his sentence
should be aimed at offering the most protection to the com-
munity, regardless of the relative innocuousness of the par-
ticular crime for which he is now convicted.’ ” Althouse, 359
Or at 684 (quoting Tuel v. Gladden, 234 Or 1, 6, 379 P2d 553
(1963)). We stated that the constitutionality of an enhanced
sentence for repeated sexual offenses would “ ‘depend on the
seriousness of repetitive sexual conduct of th[e] kind [pun-
ished by the statute] and the danger that it forecasts for
others unless the defendant is segregated from society.’ ”
Althouse, 359 Or at 685 (quoting Jensen v. Gladden, 231
Or 141, 144-45, 372 P2d 183 (1962) (brackets in Althouse)).
We concluded that, in the context of enhanced sentences for
repeat offenders, “the first and third of [the factors identi-
fied in Rodriguez/Buck] overlap in comparing the severity
of the penalty and the gravity of the crimes that gave rise to
the repeat offender sentence.” Althouse, 359 Or at 685.
	        In considering the first and third Rodriguez/Buck
factors in Althouse, we stated:
   	 “We may agree with defendant that public indecency,
   considered in isolation, is not as serious as some other sex
   crimes. That much follows from the legislature’s classifi-
   cation of that offense. The legislature has classified public
   indecency as a misdemeanor unless the defendant previ-
   ously has been convicted of public indecency or another
   specified sex crime, in which case the offense is classified
   as a Class C felony. ORS 163.465(2). This is not a case,
   however, in which defendant’s criminal history consists of
   a single conviction for public indecency, nor is it a case in
   which the three convictions that resulted in a presumptive
   life sentence under ORS 137.719(1) are three felony public
   indecency convictions. Rather, this is a case in which defen-
   dant, over a 30-year period, has been convicted of sexual
   abuse and sodomy of his own and other people’s children,
Cite as 360 Or 370 (2016)	383

   as well as public indecency. And many of the charged and
   uncharged instances in which defendant has engaged in
   public indecency during that 30-year period have been
   directed at or related to children.”
359 Or at 687. We noted in Althouse that the defendant’s
criminal history “reflect[ed] a deeply ingrained pattern of
predatory behavior” and concluded that, “[g]iven the seri-
ousness of [the] defendant’s repeated sexual misconduct and
the danger that it forecasts for others, we cannot say that
imposing a presumptive life sentence in response to [the]
defendant’s pattern of criminal behavior violated Article I,
section 16.” Id. We further concluded that “an inability to
reform one’s conduct despite repeated opportunities to do so
* * * can justify the legislature’s decision to impose a life sen-
tence without the possibility of parole.” Id. (citing Tuel, 234
Or at 7).
	        We then examined the second Rodriguez/Buck fac-
tor. With respect to that factor, the defendant in Althouse
had argued that ORS 137.719 covers numerous offenses,
some of which are much more serious than others, and thus
“that three relatively low-level sex crimes can give rise to
the same presumptive life sentence under ORS 137.719(1)
as three far more serious sex crimes.” In addressing that
argument, we noted that the legislature, not the court, is
primarily responsible for ranking the severity of offenses,
subject to the caveat that, if the penalties for similar, yet
more “serious” crimes result in less severe sentences, the
challenged penalty may be unconstitutionally disproportion-
ate. Althouse, 359 Or at 689. We nevertheless rejected the
defendant’s comparative arguments that his sentence was
more severe than the sentence for other, related crimes. We
observed that (1) ORS 137.719 “does not require the same life
sentence no matter how disparate the combination of convic-
tions that give rise to a repeat-offender sentence under that
statute”; and (2) “[a] trial court may impose a downward
departure sentence under ORS 137.719(2) for less egregious
combinations of offenses.” Id. at 690 (emphasis added). We
ultimately concluded in Althouse that, because the defen-
dant’s “sentence appears proportionate to his particular
criminal history, the comparisons that he invites us to make
provide no reason to hold that a life sentence, as applied to
384	                                        State v. Davidson

him, is disproportionate in violation of Article I, section 16.”
Id. at 692.
	        We now turn to the application of the factors iden-
tified in Rodriguez/Buck, as expanded on in Althouse, to
the present case. Under the first and third factors set out
in Rodriguez/Buck, we examine the gravity of the current
offenses and the severity of the penalty imposed for it, in
light of defendant’s criminal history. As noted, defendant
first was convicted of misdemeanor public indecency in
2006, based on an incident in which he masturbated on the
porch of a woman in whom he had taken a sexual interest
but did not know. A neighbor observed his conduct, and the
woman on whose porch he committed the offense ultimately
obtained a stalking protective order against him. Because
defendant did not have prior convictions for sexual offenses,
that public indecency crime was a Class A misdemeanor
under ORS 163.465(2).
	        Defendant’s other two public indecency convictions—
the ones that subjected him to enhanced sentences under
ORS 137.319(1) in this case—were not misdemeanors.
Rather, as noted, those convictions were classified as felo-
nies under ORS 163.465(2)(b) because of his previous misde-
meanor conviction for public indecency. Defendant’s second
conviction, as described above, involved indecent exposure in
view of several adults on a school playground where children
were present. His third offense involved exposing himself in
a public parking lot in view of a number of people, and where
a child was present. All the prior offenses were observed
by private citizens who were disturbed by defendant’s con-
duct. Moreover, the first prior offense caused a significant
amount of fear to a person who did not directly witness
defendant exposing himself; as noted, the woman on whose
porch defendant masturbated was concerned enough about
his behavior to obtain a stalking protective order. Thus, the
circumstances of defendant’s past public indecency offenses
demonstrated that they caused harm to others, and that
they often had at least the potential to cause even greater
harm due to the presence of children nearby.
	       The two current public indecency convictions obvi-
ously are of greater concern in light of defendant’s significant
Cite as 360 Or 370 (2016)	385

history of committing similar offenses. The first of the two
current offenses involved conduct in a public park where—
despite defendant’s intimations to the contrary—numerous
people had the ability to see what he was doing. The second
incident involved masturbation near the same public park,
shortly after defendant had fled and presumably was aware
that he was being pursued. That he resumed his mastur-
bation activities under those circumstances is consistent
with what his criminal history implies—that he has little
control over his behavior or understanding of the socially
unacceptable nature of his conduct. In addition, defendant’s
lengthy history of committing other minor crimes, his lack
of success while under supervision, and his other nonsexual
misconduct all indicate that he is highly resistive to reform.
	          That said, the issue before us is the proportionality
of a life sentence without the possibility of parole for a series
of offenses that, if viewed in isolation and without consider-
ation of criminal history, would be misdemeanors that each
would merit, at most, incarceration for a period not to exceed
one year. As we stated in Althouse, the constitutionality of
the sentence will “ ‘depend on the seriousness of the repeti-
tive sexual conduct’ ” as well as the “ ‘danger that it forecasts
for others[.]’ ” 359 Or at 685 (quoting Jensen, 231 Or at 144-
45). The primary danger identified here is that defendant’s
repeated behavior will continue to cause upset and possi-
ble harm to people who observe him exposing himself and
masturbating.
	         The state asserts that that danger is very serious,
citing a study that indicates that nearly 29 percent of the peo-
ple who witness acts of public exhibitionism have increased
fear of sexual crime. See Sharon Riordan, Indecent Exposure:
The Impact Upon the Victim’s Fear of Sexual Crime, Journal
of Forensic Psych, vol 10, No 2, 309, 313, 315 (1999). The state
asserts that defendant’s history supports a conclusion that
he deliberately targets others, noting that, when he commit-
ted his first offense, he called out, “You want some of this?”
to the neighbor who observed him; that one of the school
employees who observed his second offense thought that he
wanted her to see him masturbate; and that when he was
apprehended after his third offense, he indicated that he
386	                                                     State v. Davidson

thought that women who observed him masturbating might
become sexually attracted to him. The state describes that
cited conduct as “aggressive” behavior toward “vulnerable”
members of the public.
	         Although we do not take such harm lightly, that
type of harm stands in contrast to the harms at issue in
Althouse. In that case, the defendant, who had a significant
history of exposing himself in public, also had a lengthy his-
tory of sexually abusing children, including attempting to
establish contact with children at or near the time he was
exposing himself. 359 Or at 679-81. Unlike the defendant in
Althouse, nothing in defendant’s criminal history or history
of other misconduct indicates that he specifically preys on
children or that he has sexually abused a child. Cf. Jensen,
231 Or at 144-45 (upholding life-with-possibility-of-parole
sentence for public indecency, where defendant previously
had committed felony sex offense against a child). Although
the state is correct that defendant apparently has no inhi-
bitions about committing the crime of public indecency in
the presence of children, and such behavior clearly puts chil-
dren at risk of harm if they observe it, the record does not
suggest that he has specifically targeted children to observe
his acts, or that he has committed such acts in the course
of or in furtherance of other crimes that target children, as
was the circumstance in Althouse.
	        More generally, unwillingly observing sexual behav-
ior by another person is not a harm of the same magnitude
as being specifically and personally subjected to unwanted
physical sexual contact or sexual violence. Defendant’s
behavior, while not passive and certainly reprehensible to
those witnessing it, was not aggressive in the sense that he
actively pursued victims or attempted to have physical con-
tact with them; instead, he generally showed sexual interest
in whomever happened to observe him.9
	9
      Although there was evidence that defendant did, in fact, have a specific
sexual interest in the woman on whose porch he masturbated when he committed
his first public indecency offense, that person did not witness the crime. Rather,
a neighbor of that woman witnessed the crime. There was no evidence that defen-
dant either intended to expose himself to the woman on whose porch he stood or
that defendant’s exposure of himself to the neighbor was anything other than
opportunistic.
Cite as 360 Or 370 (2016)	387

	         To recapitulate with respect to the first and third
Rodriguez/Buck factors (gravity of the offense compared to
the severity of the penalty, and defendant’s criminal history),
public indecency generally can be considered either a high-
level misdemeanor or a low-level felony, depending on the
perpetrator’s criminal history. ORS 163.465(2). It involves
the exposure of a defendant’s genitals in a public place or
in view thereof, with the intent to arouse sexual desire, but
it does not require that there be any physical contact with
another person. ORS 163.465(1)(c). In terms of gravity, it is
not as serious as a sexual offense that involves nonconsen-
sual sexual contact or sexual behaviors targeting children,
which, as discussed below in our evaluation of the second
Rodriguez/Buck factor, generally carry greater sentences.
The penalty involved—life imprisonment without the possi-
bility of parole—is the most severe penalty available under
Oregon law, other than the death penalty, which is available
only in certain cases of aggravated murder.10 Defendant’s
criminal history, although lengthy and varied, almost exclu-
sively consisted of low-level offenses; it did not include sex-
ual offenses that entailed physical contact with victims or
that appeared to specifically target child victims. Those con-
siderations all tend to support defendant’s argument that
his sentences of life imprisonment without the possibility of
parole are disproportionate under Article I, section 16.
	        On the other side of the scale, the state accurately
observes that defendant’s criminal history demonstrates
that lesser criminal sanctions have not deterred him from
re-offending. As this court stated in Tuel, one of the pur-
poses of statutes that provide enhanced penalties for repeat
offenders is to recognize that some offenders simply are not
deterred by criminal sanctions and such people likely will
continue to re-offend if released from confinement. 234 Or
at 6-7; see also Althouse, 359 Or at 685 (same). Nonetheless,
that consideration is only one among others, and, as indicated
	10
        In Kennedy v. Louisiana, 554 US 407, 128 S Ct 2641, 171 L Ed 2d 525, mod-
ified on denial of reh’g, 554 US 945, 129 S Ct 1, 171 L Ed 2d 932 (2008), the United
States Supreme Court held that imposition of the death penalty for the rape of
a child was unconstitutional under the Eighth Amendment to the United States
Constitution. The Court stated: “As it relates to crimes against individuals, * * *
the death penalty should not be expanded to instances where the victim’s life was
not taken.” Id. at 438.
388	                                                     State v. Davidson

above, the other considerations under the first and third
Rodriguez/Buck factors that are at issue here suggest that
imposing a sentence of life imprisonment without the possi-
bility of parole on a defendant who commits crimes such as
these, and whose criminal history does not reflect that he
poses a significant physical danger to the public, does not
comport with Article I, section 16.
	        Our consideration of the second Rodriguez/Buck
factor reinforces that assessment. In applying that factor,
we consider the penalties imposed for other crimes that have
similar characteristics to the crime at issue in this case. 347
Or at 65. It is useful to compare the seriousness of similar
crimes that may result in the same penalty as defendant’s
sentence, as well as to examine similar yet more serious
crimes that may result in a lesser sentence than the one
imposed on defendant. Id. at 74-76. Looking at the serious-
ness of similar crimes that may result in the same penalty
as defendant’s sentence, we note that, unlike felony public
indecency, most of the other felony sex crimes that may result
in the imposition of a true-life sentence under ORS 137.719
involve nonconsensual sexual contact or sexual exploitation
of child victims.11 A considerable number of those felonies
(including first- and second-degree rape, first-degree sexual
abuse, unlawful sexual penetration, sodomy, and kidnap-
ping) carry mandatory minimum sentences of at least 70
months imprisonment. ORS 137.700(2). The remaining fel-
onies are ranked under the Oregon Sentencing Guidelines
between categories 5 and 10, with the majority being in
the higher ranges. Presumptive sentences in those ranges
can vary from between probation and 60 months’ imprison-
ment for offenders with no criminal history, to between 15
and 130 months’ imprisonment for offenders with extensive
criminal histories. Most of the listed offenses are ranked
higher (more seriously) in the Sentencing Guidelines than is
felony public indecency. Felony public indecency also is one
of the few crimes on the list that does not require—although

	11
        ORS 163A.005(5), is partially incorporated by reference in ORS 137.719(1),
lists both felony and non-felony sex crimes. ORS 137.719(1) applies only if the
prior sex crimes were felonies, so the entire compendium of offenses contained in
ORS 163A.005(5) are not necessarily “related crimes” for purposes of our dispro-
portionality analysis.
Cite as 360 Or 370 (2016)	389

it certainly may have—an identifiable victim. In light of
those considerations, we conclude that the gravity of the
offense of public indecency is relatively minor in comparison
with the majority of the other sex offenses identified in ORS
163A.005(5) that may result in a true-life sentence under
ORS 137.719. Cf. Rodriguez/Buck, 347 Or at 61 (where a
statute criminalizes “broad range of activity” and defen-
dant “is convicted for engaging in only more minor conduct
encompassed within the statute, the defendant may plau-
sibly argue that the mandatory sentence, as applied to the
particular facts of his or her case, is unconstitutionally
disproportionate”).
	        Turning to similar yet more serious crimes that
may result in a lesser sentence than the one imposed on
defendant, we note that, in Rodriguez/Buck, this court
discouraged “roam[ing] freely through the criminal code,
deciding which crimes are more or less serious than others.”
Id. at 64. In that case, which involved convictions for first-
degree sexual abuse, the court concluded that the pertinent
related offenses were sexual offenses set out in ORS 163.305
to 163.479. We reach the same conclusion here, given that
public indecency is one of the statutes in that range.
	        Most of the sexual offenses described in ORS
163.305 to 163.479 are felonies that are “sex crimes”
under ORS 163A.005(5) and, thus, are subject—in some
circumstances—to the same type of sentence that defen-
dant received here. Some, however, are not. For example,
purchasing sex with a minor, a felony, is only considered a
“sex crime” under some circumstances. ORS 163.413; ORS
163A.005(5)(v). As another example, third-degree sexual
abuse is a Class A misdemeanor and may involve (1) non-
consensual sexual contact; (2) sexual contact with a person
under the age of 18; or (3) propelling blood, urine, semen or
feces at a nonconsenting person with the intent of arous-
ing sexual desire. ORS 163.415. In addition, contributing
to the sexual delinquency of a minor, which involves sex-
ual intercourse with a person under the age of 18, also is
a Class A misdemeanor. ORS 163.435. Sexual misconduct
with a person under the age of 18 is a Class C misdemeanor.
ORS 163.445. Second-degree custodial sexual misconduct,
which involves sexual contact with a person in custody or
390	                                       State v. Davidson

on supervision by a supervisor, is a Class A misdemeanor.
ORS 163.454. Private indecency, which is similar to public
indecency, except that it involves exposure of genitals at a
location where the victim has a “reasonable expectation of
privacy,” similarly is a Class A misdemeanor. ORS 163.467.
Unlawful dissemination of an intimate image, which can
be either a Class A misdemeanor or a felony, and involves
disclosure of intimate images on the internet for the pur-
pose of harassing, humiliating, or injuring another, is not
a “sex crime” for purposes of ORS 137.719(1). ORS 163.472.
Unlawfully being in a location where children regularly
congregate, an offense that applies only to those previously
designated as sexual offenders, is a Class A misdemeanor.
ORS 163.476. And finally, unlawful contact with a child,
ORS 163.479, another offense that applies only to offenders
who previously have committed sexual offenses, and which
involves contact with a child “with the intent to commit a
crime or for the purpose of arousing or satisfying the sexual
desires of the person or another person,” is a Class C felony
that is not listed under ORS 163A.005(5) and therefore not
subject to ORS 137.719(1).
	         We have no difficulty in concluding that most of,
if not all, the sexual offenses described above that are not
within the purview of ORS 137.719(1)—and, thus, not subject
to a presumptive true-life sentence—can be viewed as being
at least as serious as public indecency. Indeed, the two that
are arguably the most similar (because they involve noncon-
sensual conduct for the purpose of arousing sexual desire)
are private indecency, which involves intrusion into a place
where a victim has a reasonable expectation of privacy, and
the type of sexual abuse that involves flinging blood, urine,
semen or feces at another person. Both those offenses are
classified as misdemeanors. In sum, in light of the other sex-
ual offenses set out in ORS chapter 163 and their respective
penalties, we conclude that a life sentence without the pos-
sibility of parole for public indecency is among the harshest
sentences available under Oregon law when the gravity of
the offense is compared to the severity of the penalty.
	        We do not mean to suggest that the inclusion of pub-
lic indecency in ORS 137.719(1) is facially unconstitutional.
Indeed, we upheld the facial constitutionality of that statute
Cite as 360 Or 370 (2016)	391

in State v. Wheeler, 343 Or 652, 175 P3d 438 (2007). And,
as noted, we rejected an as-applied challenge to a life sen-
tence under that statute for public indecency most recently
in Althouse, 359 Or 668. But where, as here, a criminal
defendant—even an incorrigible one—has a criminal his-
tory that includes no offenses more serious than public inde-
cency (and no other misconduct that otherwise supports a
conclusion that he poses a significant physical danger to
society), a sentence of life imprisonment without the possi-
bility of parole for public indecency is unconstitutionally dis-
proportionate under Article I, section 16.
	        The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is affirmed in part and
reversed in part, and the case is remanded to the circuit
court for resentencing.
