State v. Sullivan
2011 Ohio 2976
Ohio Ct. App.2011Background
- Terrence Sullivan was convicted by jury in Montgomery County on multiple counts related to indecent images involving his sixteen-year-old former partner, A.K.
- A.K. testified Sullivan took nude photos of her; a video of her masturbating was found on a flash card Sullivan owned and allegedly stolen from Tokio Hotel’s site.
- The flash card also held 141 images, with 91 showing A.K. nude or engaging in sexual conduct; Sullivan had previously lived with A.K.’s family.
- The flash card, Sullivan’s laptop, and other seized materials formed the evidentiary basis for the charges including pandering obscenity involving a minor and endangering children.
- Sullivan argued the indictment failed to allege that A.K.’s nudity constituted a lewd exhibition or a graphic focus on the genitals, and challenged the sufficiency of the evidence to prove certain counts.
- The trial court denied motions to dismiss and for Crim.R. 29 judgments of acquittal, and Sullivan was sentenced to 25 years in prison.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether indictment properly states R.C. 2907.323(A)(1)/(A)(3) by tracking the statute | Sullivan argues the indictment omits the lewd/exhibition element when alleging nudity | Sullivan contends counts four and five require explicit averment of lewdness/graphic focus | Indictment properly states the offenses; tracking the statute suffices. |
| Whether Crim.R. 29 dismissal was proper for Count Two based on video involving A.K. | State argues evidence shows reproduction by downloading the video; Wright rationale supports denial | Sullivan argues he did not create/record/publish the video; only downloaded/possessed | Crim.R. 29 motions were properly overruled; evidence supported judgment. |
Key Cases Cited
- State v. Young, 37 Ohio St.3d 249 (Ohio 1988) (limits R.C. 2907.323(A)(3) to lewd or grafically focused nudity to avoid overbreadth)
- New York v. Ferber, 458 U.S. 747 (U.S. 1982) (constitutional scrutiny of child pornography statute; allows narrowing construction)
- State v. Kerrigan, 168 Ohio App.3d 455 (2006-Ohio-4279) (treats lewd exhibition/graphic focus as essential elements under R.C. 2907.323(A))
- State v. Ross, 12 Ohio St.2d 37 (1967) (indictment insufficient if it omits elements required by the statute's intent/mental state rules)
- State v. Horner, 126 Ohio St.3d 466 (2010-Ohio-3830) (indictment tracked language of a strict liability offense may suffice)
- State v. Graves, 184 Ohio App.3d 39 (2009-Ohio-974) (indictment must include lewd/graphic focus as element for certain counts)