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The Oregon Court of Appeals.

(Oregon Judicial Department)

The Oregon Court of Appeals ruled Wednesday that a serial public masturbator convicted of pleasuring himself five times in front of women or children in parks or playgrounds shouldn't spend the rest of his life in prison.

The appeals court ruled that although Dennis James Davidson of Keiser has so far appeared unstoppable, imprisoning the 38-year-old with no possibility of release is not constitutionally justified. Davidson's own lawyer described him as an "incorrigible masturbator," but the appeals court noted he has never been convicted of touching any of his victims or using force to commit a sex crime.

Dennis James Davidson

Oregon law calls for judges to sentence defendants -- upon their third felony sex conviction -- to what's known as a "true life" prison term. But in reversing Davidson's true-life term, the appeals court noted his criminal history is absent of convictions for rape, sodomy or sexual abuse like other men sentenced under that law.

The court's 27-page ruling reflects the struggle that appeals judges have had with determining when Oregon's "three strikes you're out" sex-offense law is warranted and when it represents punishment that's too harsh.

Last year, the Oregon Court of Appeals upheld the life sentence of another repeat public masturbator from Marion County, William Althouse. Althouse was ordered to be locked away for life after his this third felony sex conviction -- being caught exposing himself to a female jogger on the Salem Parkway.

Prosecutors noted Althouse wasn't just a serial flasher, however. His criminal history includes sexual abuse and sodomy convictions from the 1980s and 1990s.

The Oregon Supreme Court has said it will take up the question of whether imprisoning Althouse for life is "cruel and unusual punishment."

Although Davidson's history wasn't as severe, the appeals court noted he has a highly concerning pattern of masturbating in public and he might not comprehend what he's doing is wrong.

According to the appeals court's summary of the case, Davidson was 16 or 17 years old when a friend struck him in the head with a baseball bat, causing Davidson to suffer brain damage. Davidson said he began using "just about every drug he could get his hands on," including marijuana and methamphetamine.

He also eventually lost his left eye due to complications. That distinctive characteristic might have made it easier for victims to identify him and for police to track him down.

The following is a summary, provided by the appeals court, of each of the five incidents leading up to Davidson's public indecency convictions:

July 2006: Davidson was 29 years old and living with his grandmother when he was first arrested for public indecency. He had been standing on a female neighbor's porch masturbating, when another female neighbor spotted him. She reported to police that he had thrust his hips at her and yelled, "You want some of this?"

Police who responded to the home searched Davidson's backpack and found jelly lubricant and a note that stated, "I've got a crush on you so bad it's frustrating."

The woman who lived at the house applied for a protective stalking order to keep Davidson away from her. Davidson was sentenced to probation.

September 2006: About six weeks later, Davidson was spotted masturbating on an elementary school playground in view of three children, the school's principal, a custodian and a cook. He was sentenced to over years in prison and released early in August 2008.

December 2008: Four months after his release, Davidson was arrested after he left a pornography store in a strip mall and masturbated in the parking lot in front of three women and a 2-year-old. He told authorities he hoped one of the women would become "hot" and want to date him. He was sentenced to another 2 1/3 years in prison.

April 2011: Four days after he was released, Davidson celebrated his 34th birthday by masturbating behind a tree and near a mother and her three daughters -- ages 3, 10 and 12 -- who were picnicking in a park.

The mother frantically called 9-1-1, prompting Davidson to hop a fence and announce he was leaving. When police showed up, they found him next to the park, masturbating again.

According to police, Davidson appeared to express surprise by stating, "Is that illegal or something?" He later told a judge that he hadn't intended to commit a crime, explaining that he was drunk and "I guess my pants fell down or something."

Davidson added: "I didn't try to rape. I didn't try to hurt nobody."

Later on the day of his arrest, a jail officer reported spotting Davidson masturbating two or three times in a holding cell and a bathroom. Although Davidson wasn't charged with any crimes for those incidents, the appeals court noted he doesn't seem to be able to control himself, even while in custody.

Davidson later explained that the jail officer had misinterpreted what he'd been doing and that he "had a rash. I was putting the rash stuff on."

Judge Dale Penn convicted Davidson of two counts of public indecency for the park incidents -- Davidson's fourth and fifth convictions -- and sentenced him to the life term.

"Bluntly, defendant has demonstrated the following pattern: masturbate in public, get locked up (and continue to masturbate in front of others), get released, and -- within days -- masturbate in public again," stated the appeals court opinion, written by Judge Timothy Sercombe. "Defendant is not remorseful."

The opinion added: "Given that pattern and state of mind, it is reasonable to expect that, if defendant is released, he will reoffend."

But, the appeals court noted, the most Davidson should have been sentenced to for the April 2011 park encounters is nine years. His case is being sent back to Marion County Circuit Court for resentencing.

Wednesday's ruling was made by a three-judge panel of the appeals court: Sercombe, Erika Hadlock and Douglas Tookey.

-- Aimee Green

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