2003 Ohio 7178 | Ohio Ct. App. | 2003
Lead Opinion
{¶ 3} Appellant has timely appealed, asserting two assignments of error. We have rearranged the assignments of error to facilitate review.
{¶ 4} In Appellant's second assignment of error, he has argued that there was insufficient evidence presented at trial from which the jury could find him guilty of the crimes as charged. He has further contended that his convictions were against the manifest weight of the evidence. We disagree.
{¶ 5} As an initial matter, this Court notes that the sufficiency and manifest weight of the evidence are legally distinct issues. Statev. Manges, 9th Dist. No. 01CA007850, 2002-Ohio-3193, at ¶ 22, citingState v. Thompkins (1997),
"[R]eview the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Otten
(1986),
{¶ 6} Weight of the evidence concerns the tendency of a greater amount of credible evidence to support one side of the issue more than the other. Thompkins,
{¶ 7} This Court is not required, however, to address Appellant's argument that there was insufficient evidence to submit the matter to the jury because we have previously held that a
"defendant who is tried before a jury and brings a Crim.R 29(A) motion for acquittal at the close of the state's case waives any error in the denial of the motion if the defendant puts on a defense and fails to renew the motion for acquittal at the close of all the evidence." Statev. Jaynes, 9th Dist. No. 20937, 2002-Ohio-4527, at ¶ 7, quoting Statev. Miley (1996),
{¶ 8} Appellant brought a Crim.R. 29 motion at the close of the state's evidence, however, he failed to renew the motion at the close of all the evidence. As such, we conclude that Appellant waived any objection under Crim.R. 29 to the sufficiency of the evidence. Accordingly, we must only determine whether Appellant's convictions were against the manifest weight of the evidence.
{¶ 9} In the instant matter, Appellant was convicted of pandering obscenity involving a minor, a violation of R.C.
"(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:
"* * *
"(5) Buy, procure, possess, or control any obscene material, that has a minor as one of its participants[.]"
{¶ 10} The state was required to prove each element of the offense beyond a reasonable doubt. See Jackson v. Virginia (1979),
"[T]the stated failed to prove beyond a reasonable doubt that the persons depicted in State's Exhibit No. 7 and the 19 second clip on State's Exhibit[s] Nos. 1 and 2 were actual children, not virtual child pornography, that the persons depicted were minors and that the images depicted in said exhibits were obscene."
{¶ 11} Appellant's arguments are directed at State's Exhibit 71 and the nineteen second video clip contained on State's Exhibits 1 and 2 (Appellant's home computer and monitor). The video clip was entitled "Little girl displays her sweet young cunt to her sister. It's bedtime but who wants to sleep," and it shows two young girls laughing as they climb into bed; each child is partially clothed in a t-shirt and underwear. One of the girls is seen removing her underwear, and then helping the other girl remove hers. As the last child removes her underwear, she briefly exposes her genital area. State's Exhibit 7 is a still photograph that shows an older man kneeling down in front of a young girl, who appears to be between twelve and sixteen years of age. The man is seen removing the girl's underwear, exposing the girl's genital area.
{¶ 12} The record indicates that the jury's decision was based on more than the nineteen second video clip and State's Exhibit 7. It appears that there were four specific pieces of evidence that the jury could consider when it determined whether Appellant was guilty of pandering obscenity involving a minor.2 However, Appellant has failed to present any arguments with respect to the other two pieces of evidence upon which the jury relied.
{¶ 13} Based on the trial court's jury instructions, the evidence not discussed by Appellant appears to have been another video clip entitled "16 year old-boyfriend having sex" and another still photograph or image contained somewhere on the hard drive of State's Exhibits 1 and 2. The trial court specifically informed the jury that it could consider these four pieces of evidence in deciding Appellant's guilt. After the jury began its deliberations, the jury foreman asked the trial court what evidence the jurors should consider in determining Appellant's guilt. The trial court instructed the jury that:
"There are three, the only one we are to consider regarding guilt, understand that there are four. I read three but the fourth is the clip, year olds, the clip of the nine year olds, the 16 year old, and then two stills. The fourth still that was on the computer."
{¶ 14} The jury asked the trial court whether it "[c]ould have the exact title of icon involving 16 yr. old with boyfriend tape * * * and [i]s the * * * title and subsequent tape evidence in this case?" The trial court responded: "16 yr. old boyfriend having sex (home movie; mpeg; self extracting) insert xxx fuck porn sex fisting oral." The court informed the jury that the tape could be used as evidence against Appellant.
{¶ 15} The testimony presented at trial also indicated that the jury could consider four pieces of evidence in determining Appellant's guilt with respect to the charge of pandering obscenity. At trial, Detective James Foracker, Michael Hatton, and F.B.I. Agent Elizabeth Trotman described the other evidence the trial court informed the jury it could consider in deciding Appellant's fate. Detective Foracker discussed three items of evidence: the nineteen second video clip containing the nine year old girls, State's Exhibit 7, and another video clip of a young girl (but he did not describe the content of this video clip). Michael Hatton referred to four items of evidence: the nineteen second video tape, a video clip he referred to as "16 year old and boy friends having sex,"3 and he discussed at least two unidentified images depicting juveniles contained on State's Exhibits 1 and 2.
{¶ 16} Agent Trotman gave her opinion on an unidentified "still image" apparently located on State's Exhibit 1 and 2, which showed what she believed to be a child even though the photo only showed the person from the "neck up." The still photograph (State's Exhibit 7) contained in the appellate record showed more than the head shot of a minor child; State's Exhibit 7 showed the entire body of a young girl. Thus, Agent Trotman was discussing another still photograph that this Court was unable to locate on State's Exhibit 1 and 2.
{¶ 17} Additionally, during the state's closing argument, and when the state rebutted Appellant's Crim.R.29 motion, the state specifically referred to four pieces of evidence: 1) the nineteen second video clip of two nine year olds getting into bed; 2) the still photograph marked as State's Exhibit 7; 3) another "still image" contained on State's Exhibits 1 and 2, of "a girl with the glasses * * * about to perform oral sex on two males"; and 4) a video clip entitled "16 [year] old girl."4
{¶ 18} After reviewing the entire record, it appears that the evidence the jury considered in determining Appellant's guilt consisted of: 1) a video clip entitled "16 yr old-boyfriend having sex,"5 2) the nineteen second video clip entitled "Little girl displays her sweet young cunt to her sister. It's bedtime but who wants to sleep," 3) an unidentified still photograph of a minor, and 4) State's Exhibit 7. As previously stated, Appellant has failed to present arguments with respect to the 16 year old and boyfriend video clip and the unidentified still photograph. But most importantly, this Court was unable to locate one of the two pieces of evidence ignored by Appellant, but which was thoroughly discussed by the state in its appellate brief.6 That is, this Court was unable to find the unidentified still photograph referred to by Michael Hatton, Agent Trotman, and the trial court.
{¶ 19} Although the record does not adequately describe the missing evidence, we believe that the jury did in fact rely upon the missing evidence when it determined Appellant's guilt. It is Appellant who has failed to direct this Court to the evidence upon which he relies. The consequences of Appellant's failure to provide a complete appellate record falls on him because "[i]t is Appellant's responsibility to provide the reviewing court with a record of the facts, testimony, and evidentiary matters that are necessary to support his assignments of error." City of Alliance v. Warfel (Nov. 19, 2001), 5th Dist. No. 2001 CA 134, 2001 Ohio App. LEXIS 5486, at *6; App.R. 9(B); see, also, Broida v.Broida (Jan. 24, 2001), 9th Dist. No. 19968, at 9; Bond Leather Co. v.Melvin Nadler Inc. (July 11, 1990), 1st Dist. No. C-890276, 1990 Ohio App. LEXIS 2805, at *3; State v. Tate (Aug. 23, 1990), 8th Dist. No. 57232, 1990 Ohio App. LEXIS 3667, at *7. Because Appellant failed to provide this Court with a complete appellate record, we must presume regularity in the proceedings. See Broida, supra, at 9; Tate,
1990 Ohio App. LEXIS 3667, at *7, citing Knapp v. Edwards Laboratories (1980),
{¶ 20} Appellant has also argued that his conviction for possessing criminal tools, a violation of R.C.
{¶ 21} Since Appellant has claimed that his convictions were against the manifest weight of the evidence and the evidence to support such a claim is missing from the record, this Court finds that it must affirm the trial court's decision. Cortell v. Koch (Dec. 19, 1986), 11th Dist. No. 1275, 1986 Ohio App. LEXIS 9392, at *12. (holding that "[w]hen evidence of assigned errors are missing from the record, a reviewing court has no choice but to affirm the lower court's decision").
{¶ 22} Appellant's second assignment of error lacks merit.
{¶ 23} In Appellant's first assignment of error, he has argued that the trial court erred when it permitted the state to introduce evidence of other wrong acts, in contravention of R.C.
{¶ 24} A trial court has broad discretion in the admission or exclusion of evidence, and this Court will not disturb a trial court's ruling on the admission of evidence absent an abuse of discretion and material prejudice to the defendant. State v. Hymore (1967),
{¶ 25} In the instant matter, Appellant has argued that the trial court should not have admitted testimony regarding 1) a customer order form for the purchase of a computer, in which Appellant listed his two-year-old son as a credit reference; and 2) offensive emails Appellant allegedly sent to Detective James Foracker. Such evidence, Appellant has argued, is violative of Evid.R. 404(B). He has contended that Evid.R. 404(B) prohibits the admission of "other alleged acts of Appellant which had no relation or logical connection to the offenses for which Appellant was charged." Evid.R. 404(B) states, in pertinent part:
"(B) Other crimes, wrongs, or acts[.] Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." (Alterations added).
{¶ 26} Appellant has further argued that the "[a]cts of an accused, which have no relation to or logical connection with and do not tend to disclose a motive or purpose for the commission of the offense for which the accused is on trial, are not admissible under R.C.
"In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant."
{¶ 27} The position taken by the state is that "[e]vidence of other crimes is admissible when evidence of the other crimes is so blended, or connected, with the crime on trial that the proof of one crime incidentally involves the other crime, explains the circumstances, or tends logically to prove any element of the crime charged." The state has further argued that because Appellant's only defense to the charges was that he was working for the F.B.I., and he therefore did not have the purpose to use the computer criminally, "Appellant's credibility became intertwined with the State's ability to prove the `specific intent' element of the crime."
{¶ 28} We first note that defense counsel initially objected when the state asked Mr. Richard Black, an employee at Rent-Way in Medina, Ohio, on direct examination to name the persons Appellant listed as references on the customer order form; the objection was overruled.7 However, defense counsel did not object when the state asked Mr. Black, on re-direct, whether he was "aware that the person [Appellant] listed as his brother-in-law [on the customer order form] is really his son, his two year old son?" This Court has consistently held:
"In order to promote important concerns for judicial expediency and efficiency, a party, who fails to object to the receipt or use of evidence at the time at which alleged errors can still be remedied, waives the right to address the alleged errors on appeal." State v.Moore (Nov. 3, 1993), 9th Dist. No. 16227, at 8, citing Mallin v. Mallin
(1988),
{¶ 29} Because Appellant failed to object when the state questioned its witness about Appellant's use of his two-year old son as a credit reference, Appellant has waived that argument on appeal and this Court declines to address whether the trial court abused its discretion in admitting such evidence.
{¶ 30} Appellant has next argued that the trial court erred when it admitted into evidence testimony concerning inflammatory emails that Appellant allegedly sent to Detective James Foracker. Even if we assume, for the sake of argument, that the trial court erred when it allowed into evidence Detective Foracker's testimony regarding the inflammatory emails, Appellant has not demonstrated such error was prejudicial. Crim.R. 52(A) provides that "[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." A reviewing court, therefore, when determining whether an error in the admission of evidence is harmless, must find there is no reasonable probability that the evidence may have contributed to the defendant's conviction. State v. DeMarco (1987),
{¶ 31} After examining the record, we cannot find that any error is prejudicial because the appellate record is incomplete as discussed in Appellant's second assignment of error. The missing evidence could, by itself, prove Appellant's guilt beyond a reasonable doubt and render Detective Foracker's testimony regarding the harassing emails inconsequential, and thus not prejudicial. Therefore, this Court cannot say that the trial court abused its discretion in admitting Detective Foracker's testimony. Consequently, Appellant's first assignment of error is not well taken.
Judgment affirmed.
William R. Baird for the court, Baird, P.J., concurs.
Concurrence Opinion
CONCURS, SAYING:
{¶ 33} Although I feel that Appellant's convictions should be affirmed, I agree with Judge Whitmore's analysis regarding Ohio's obscenity law.
Dissenting Opinion
DISSENTS SAYING:
{¶ 34} I respectfully dissent from the majority's holding that this Court cannot address the merits of Appellant's argument because the appellate record is incomplete. What is painfully obvious when reading the transcript of the trial court proceedings is that much of the so-called evidence regarding the charge of pandering obscenity involving a minor was never identified by an exhibit number and never actually admitted into evidence. In fact it is not even clear that this so called evidence was ever actually shown to the jury during the trial. Witnesses testify as to the titles of certain video clips and still photographs allegedly on the computer's hard drive. But the transcript of such testimony does not reflect that once the title was noted by the witness the file was ever shown on the computer monitor or other video display for the jury.
{¶ 35} Moreover, neither the attorneys nor the court are clear about the evidence that could be legitimately considered by the jury. I agree that the state's witnesses refer to other evidence and that the trial court indicated that the jury could consider four pieces of evidence. However, three of the items sent to the jury as evidence8 were never given separate exhibit numbers for the purpose of identification. Of those three, one was described by witnesses as a nineteen second video clip showing two young girls in bed, naked from the waist down. Though not given an exhibit number, the nineteen second video of these two girls was titled: "Little girl displays her sweet young cunt to her sister." It was offered and admitted into evidence without objection. It was not, however, copied onto a separate disc or marked with an exhibit number. The other two items of evidence were never copied onto a separate disc, never given an exhibit number, and never offered into evidence. Thus, the only evidence relevant to the charge of pandering obscenity involving a minor that was actually marked separately as an exhibit and properly admitted into evidence was State's Exhibit 7, a still photograph of a male touching the upper thighs of a young girl as he pulled down her underwear.
{¶ 36} The state marked Appellant's computer and monitor as State's Exhibits 1 and 2, and these were admitted into evidence without objection. However, the hard drive on the computer contained a great deal of irrelevant and prejudicial information, including a "snuff film" (a depiction of a female being shot in the head) and other material that could be classified as obscenity depicting adults.
{¶ 37} I further note that while there was specific testimony describing the conduct contained in the nineteen second video clip and the still photograph marked as State's Exhibit 7, there was no testimony describing the actual conduct depicted on the remaining so-called evidence. While State's Exhibit 7 was a hard copy of a still photograph also on the computer hard drive, it was the only data separately reduced to hard copy and marked with an exhibit number. It strains credulity to believe that if the other so-called evidence actually contained depictions of the conduct required for a conviction under the jury charge in this case, the witnesses would have testified as to the specific activity, it would have been reduced to a hard copy, marked as an exhibit and offered into evidence. Moreover, the prosecutor would have argued such specific evidence at closing, rather than just referring to the titles. I note also that the prosecutor did not argue that State's Exhibit 7 actually satisfied the essential elements of the charge of pandering obscenity involving a minor as that offense was explained to the jury.
{¶ 38} I submit that the appellate record is complete and that this Court can properly review the merits of Appellant's arguments in his second assignment of error. For reasons that follow, I would reverse Appellant's conviction on the pandering charge as against the manifest weight of the evidence under the specific jury charge as given. Having reversed the pandering conviction, I would find that the conviction of possession of criminal tools must also be reversed.
{¶ 39} This case presents itself as does a wolf in sheep's clothing.
{¶ 40} Relying on our prior decision in State v. Ward (1993),
{¶ 41} Ohio Jury Instructions ("OJI"), specifically section 507.321, provides an accurate and complete jury charge relevant to prosecution under R.C.
{¶ 42} As previously discussed, the trial court did not charge the jury using OJI 507.321. Instead, it gave an instruction that on its face appears to have been expressly written to meet the holdings of Radey andWard. The trial court instructed the jury as follows:10
"Before you can find [Appellant] guilty you must find beyond a reasonable doubt that on or about the 10th day of August, year 2001, Medina County Ohio [Appellant], with knowledge of the character of the material bought, procured, possessed, controlled obscene material that had a minor as one of its participants. That's the charge. Now let's define some of those terms for you.
"* * *
"The following three-part test is to be used to determine whether the work is obscene. A, whether the average person applying contemporary community standards would find that the work taken as a whole appeals to prurient interest.
"And B, whether or not the work depicts or describes in a patently offensive way * * * [s]exual conduct specifically defined by the applicable state law. And C, whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
"Prurient interest is a shameful or morbid interest in nudity, sex or excretion which goes substantially beyond customary limits of candor in description or representation of such matters. Whether a work appeals to the prurient interest or depicts sexual conduct in a patently offensive way is governed by contemporary community standards. In [contrast], the reasonable person standard is used to determine whether a work has literary, artistic, political, or scientific value. To be patently offensive, a work must depict or describe hard core sexual conduct.
"What is sexual conduct? Sexual conduct means vaginal intercourse between a male and female, anal intercourse, fellatio, cunnilingus between persons regardless of sex without privilege to do so, the insertion, however slight, of any part of the body, instrument, apparatus, object into the vagina or anus. Penetration, however slight, is sufficient to complete vaginal, anal intercourse.
"Fellatio means a sexual act committed with the penis and the mouth.
"Cunnilingus means sexual act committed with the mouth and the female sex organ."
{¶ 43} Thus, under the Radey/Ward instruction the jury could only convict if it was convinced beyond a reasonable doubt that the materials possessed by Appellant depicted a minor engaged in vaginal intercourse, anal intercourse, fellatio and/or cunnilingus. My review of the properly admitted evidence is that there is no evidence of these four specific sex acts. Thus on the record before me I have no alternative but to reverse Appellant's convictions on the ground that the verdict is against the manifest weight of the evidence under the actual jury charge given.
{¶ 44} However, I cannot stop there. I am required by the compelling state interest so clearly presented in New York v. Ferber
(1982),
{¶ 45} I begin at the beginning with Miller — the supposed genesis of the "hard core/sexual conduct" limitation first engrafted into Ninth District law by Radey. Miller articulated a three-part test for judging whether material is obscene. See Miller,
{¶ 46} Miller declared the constitutionality of California Penal Code Section
"(a) `Obscene' means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e. a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance." Miller,
{¶ 47} Miller is replete with analysis of the history of obscenity law and makes it clear that the constitutional reach of such laws permits state regulation of more than just explicit sexual behavior as defined in R.C. Section
"We note, therefore, that the words `obscene material,' as used in this case, have a specific judicial meaning which derives from the Roth case, i.e., obscene material `which deals with sex.'" (Citations omitted.)Miller,
{¶ 48} Citing to Roth, the Miller court further noted that: "This Court has defined `obscene material' as `material which deals with sex in a manner appealing to prurient interest[.]'" Miller,
{¶ 49} The materials at issue in Miller were sexually explicit depictions of adults "engaging in a variety of sexual activities, with genitals often prominently displayed." Miller,
"We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion[:]
"(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
"(b) Patently offensive representations of descriptions of masturbation, excretory functions, and lewd depiction of the genitals."Miller,
{¶ 50} While Miller does say that "for the first time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate `hard core' pornography from expression protected by the First Amendment" it does not define that term in a restrictive way. Miller,
{¶ 51} Footnote 15 further provides:
"In the apt words of Mr. Chief Justice Warren, appellant in this case was `plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct. * * *'" Miller,
{¶ 52} It is significant that Miller gives a non-exhaustive list of examples. I submit that the Ohio Legislative scheme regarding obscenity regulates sexual expressions which portray the so called "ultimate sex acts"15 of vaginal intercourse, anal intercourse, fellatio and cunnilingus as well as other less "ultimate" sexual expressions such as the touching of another's erogenous zone and other conduct more generically described as "sexual contact" in R.C.
{¶ 53} It is indeed perplexing to read Radey's conclusion that obscenity is restricted to only those sexual expressions set forth in R.C.
{¶ 54} Perhaps the Radey court was mislead by the fact that Miller
used the phrase "hard core sexual conduct" in its opinion. I submit that the term "hard core sexual conduct" does not limit the examples provided in Miller. Rather, as set forth in Wolfe, the examples give meaning to the court's use of the words "hard core sexual conduct." I submit that R.C.
{¶ 55} Moreover, had Miller been somehow prescient enough to know that Ohio had an express definition of "sexual conduct" for use in many criminal statutes,16 still the argument cannot be successfully made that Ohio intended to limit its regulation of obscenity to only that which it defined as "sexual conduct" in R.C.
{¶ 56} If the Radey/Ward instruction were to be viewed as correct law it would wipe out, rather than implement, the full range of conduct that can be regulated according to Miller prong (b). The Ohio Supreme Court in Burgun did not intend to so decimate Ohio obscenity law when it held that Ohio obscenity provisions were to be read in pari materia withMiller. To the contrary, Burgun commented upon the specificity with which R.C.
"The definition of obscenity [in
{¶ 57} Burgun held that
{¶ 58} Lest there be any doubt about the continuing viability of the Miller examples of conduct that may be regulated, I have reviewed United States Supreme Court decisions subsequent to Miller. One year after Miller, Jenkins v. Georgia (1974),
"These examples included `representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,' and `representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.' * * * While this did not purport to be an exhaustive catalogue of what juries might find patently offensive, it was certainly intended to fix substantive constitutional limitations * * * on the type of material subject to such a determination. It would be wholly at odds with this aspect of Miller to uphold an obscenity conviction based upon a defendant's depiction of a woman with a bare midriff, even though a properly charged jury unanimously agreed on a verdict of guilty." Jenkins,
{¶ 59} In 1977, in Smith v. United States (1977),
{¶ 60} I come, now to the case of Ferber, which lays down important new law regarding the protection of children from sexual exploitation.Ferber framed the issue as follows: "We believe our inquiry should begin with the question of whether a State has somewhat more freedom in proscribing works which portray sexual acts or lewd exhibitions of genitalia by children." Ferber,
{¶ 61} For important public policy reasons, the Ferber court rejected the application of Miller prongs (a) and (c) to statutes which criminalize the distribution of material depicting children engaged in sexual conduct. Ferber,
{¶ 62} In the course of its analysis the United States Supreme Court in Ferber noted that "[the] prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance." Ferber,
{¶ 63} Accordingly, I submit that even if Radey and Ward are viewed as viable interpretation of Ohio obscenity law when viewed in pari materia with Miller (an interpretation I reject), such an interpretation cannot survive Ferber. I submit that if Miller could be read into R.C.
{¶ 64} In Osborne v. Ohio (1990),
{¶ 65} Even if the Miller test remains incorporated into R.C.
{¶ 66} The foregoing analysis makes it clear that if we look only at the sheep's clothing (Radey/Ward's simplistic adoption of a limiting definition of "sexual conduct") we miss the wolf inside. Wolfe got it right and Ferber and Osborne only reinforce that conclusion. Had the jury been properly instructed using OJI 507.321, I would have affirmed the verdict and overruled Radey and Ward.
