168 Ohio App. 3d 455 | Ohio Ct. App. | 2006
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *457
{¶ 1} Defendant-appellant, Patrick Kerrigan, appeals from his conviction and sentence upon five counts of illegal use of a minor in nudity-oriented material or performance, in violation of R.C.
{¶ 2} With respect to four of the five counts upon which Kerrigan was convicted, we conclude that the video materials do not support a conviction, because they do not involve a lewd exhibition or a graphic focus on the genitals. Therefore, we agree with his contention that these convictions are not supported by sufficient evidence, these convictions are reversed, and Kerrigan is ordered discharged as to these convictions.
{¶ 3} With respect to the fifth count upon which Kerrigan was convicted, which was based upon his possession of a brochure advertising video materials, we conclude that a reasonable finder of fact might find that this brochure involves a lewd exhibition or a graphic focus on the genitals. We agree with Kerrigan, however, that the trial judge, acting as the finder of fact in his bench trial, applied an incorrect legal standard in evaluating this evidence. Accordingly, Kerrigan's conviction on this count is reversed, and this cause is remanded for reconsideration of the verdict on this count.
{¶ 4} Our disposition of Kerrigan's first assignment of error renders moot his second assignment of error, which asserts ineffective assistance of trial counsel.
{¶ 6} Kerrigan waived his right to a jury. Following a bench trial, Kerrigan submitted a posttrial memorandum, the state submitted a posttrial memorandum, and Kerrigan submitted a response to the state's memorandum. The trial court *459 entered a decision announcing its verdict of guilty on all five counts, which included the trial court's legal reasoning. Following a sentencing hearing, the trial court sentenced Kerrigan to five years of community-control sanctions, and advised him that violation of the terms of the community-control sanctions would lead to a prison sentence of 11 months on each of the five counts, to be served concurrently.
{¶ 7} From his conviction and sentence, Kerrigan appeals.
{¶ 9} "The court erred when it found the defendant-appellant guilty of counts one, two, three, four and five of the indictment when said findings were not supported by sufficient evidence."
{¶ 10} Although this assignment of error is framed exclusively in terms of insufficiency of the evidence, Kerrigan also argues, in support of this assignment of error, that the trial court applied an incorrect legal standard in evaluating the evidence.
{¶ 12} "(A) No person shall do any of the following:
{¶ 13} "(3) Possess or view any material or performance that shows a minor who is not the person's child or ward in a state of nudity, unless one of the following applies:
{¶ 14} "(a) The material or performance is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance.
{¶ 15} "(b) The person knows that the parents, guardian, or custodian has consented in writing to the photographing or use of the minor in a state of nudity and to the manner in which the material or performance is used or transferred."
{¶ 16} Because all of the materials upon which Kerrigan's convictions are based show persons who are indisputably minors, in states of nudity, who Kerrigan *460
stipulated at trial were not his children or wards, and because Kerrigan has never claimed that either of the lettered exceptions to R.C.
{¶ 17} State v. Young involved a constitutional attack upon R.C.
{¶ 18} "As we construe it today, R.C.
{¶ 19} The United States Supreme Court accepted the Osborne case for review. In a footnote, the United States Supreme Court discussed the construction given to the statute by the Ohio Supreme Court:
{¶ 20} "The dissent distinguishes the Ohio statute, as construed, from the statute upheld in [New Yorkv.] Ferber [
{¶ 21} "We do not concede, as the dissent suggests, see post, [
{¶ 22} Arguably, the United States Supreme Court's understanding of the Ohio Supreme Court's construction of R.C.
{¶ 24} Each of these two videotapes is about 55 minutes long. Other than a brief introduction and closing, both videotapes feature a large group of boys and men, of varying ages, who are all naked. In Exhibit 4, all of the persons shown are naked. The scene is in a crowded gymnasium and shows the men and boys working out on various equipment seemingly selected at random. None of the persons shown appears to be posing for, or "playing to," the camera. *462
{¶ 25} At one point, everyone gathers to watch what appears to be a demonstration in the techniques of wrestling, martial arts, or self-defense, with two adults, who, like everyone else, are naked, demonstrating. For this demonstration, the boys sit on the floor in front of the men, who remain standing.
{¶ 26} In the other Helios Natura videotape, Exhibit 3, which is entitled "Bare Buns and Boxing," the action takes place at a boxing gymnasium, with a boxing ring, punching bags, and other kinds of pugilistic equipment. The naked men and boys, again of assorted ages, are watching clothed boxers sparring, with a clothed referee. After a while, some of the naked observers climb into the ring and take turns boxing with boxing gloves and protective headgear but no other apparel. The latter part of the tape shows pairs of naked boys sparring in the ring, again with boxing gloves and protective headgear and a clothed referee. Many naked boys and men are observing at ringside.
{¶ 27} In neither Exhibit 3 nor Exhibit 4 do we find any graphic focus on the genitals of the men and boys shown. The genitals of the persons in the video are generally visible and no attempt has been made to edit them out of the picture, but neither is any particular attention focused on the genitals. The camera does not zoom in on, or linger upon, the genital organs. They are merely an inherent aspect of the fact that all, or, in the case of Exhibit 3, almost all, of the persons shown in the video are naked.
{¶ 28} The parties have not furnished us with any authority defining "lewd" or "lewd exhibition," but Webster's Third New International Dictionary defines "lewd" as:
{¶ 29} "1 obs a: of, relating to, or characteristic of common and ignorant people: VULGAR b: BASE, EVIL, WICKED — used of persons and their conduct c: POOR, WORTHLESS — used of things 2 a: sexually unchaste or licentious: DISSOLUTE, LASCIVIOUS b: suggestive of or tending to moral looseness: inciting to sensual desire or imagination: INDECENT, OBSCENE, SALACIOUS * * *"
{¶ 30} In the context of the statute, we take the definitions set forth in "2," above, to be the appropriate definitions of "lewd." The two definitions set forth therein appear to be closely related, and involve the quality of appealing to, or inciting, sexual desire or imagination.
{¶ 31} It must be remembered that our analysis of the statute (see Part II-A, above) leads us to the conclusion that it is the quality of the material or performance being possessed or viewed, not the purpose of the possessor or viewer, that determines whether the material or performance involves a lewd exhibition or a graphic focus on the genitals. Bearing that in mind, we find nothing in Exhibits 3 or 4 that a reasonable finder of fact could find to be a lewd *463
exhibition. To be sure, the title of Exhibit 3 — "Bare Buns and Boxing" — could support a reasonable inference that it is marketed to appeal to persons with a prurient interest, but the video itself does not appear to this court to involve a lewd exhibition or a graphic focus on the genitals. There are no provocative or suggestive poses, and there is no provocative or suggestive editing. If either of these videos could be said to involve a lewd exhibition or a graphic focus on the genitals, then any video depicting nude minors would have to be deemed to involve a lewd exhibition or a graphic focus on the genitals. But our analysis of State v. Osborne, supra, set forth in Part II-A, above, leads us to the conclusion that a requirement of a lewd exhibition or a graphic focus on the genitals has been engrafted into the statute as a separate, and narrowing, requirement for the material or performances, the possession or viewing of which constitutes a violation of R.C.
{¶ 32} In conclusion, we hold that a reasonable finder of fact cannot find that Exhibit 3 or Exhibit 4 constitutes or includes a lewd exhibition or a graphic focus on the genitals. Since this is an essential element of the offense, there is insufficient evidence to support Kerrigan's convictions corresponding to these two exhibits.1
{¶ 34} "May 9th is a very important holiday in the Ukraine. It celebrates victory at the end of The Great Patriotic War (WWII). School kids like it because on the day before, they get out early. Our four teens take advantage of this half-day vacation by having lunch at an outdoor café and then going to the banya. There's no better way to spend an afternoon."
{¶ 35} At the beginning of the video, in written English, there is mention of the rise of naturism in postcommunist Eastern Europe. The voices of the persons featured in the video, which consist entirely of the four boys in the starring roles except for a waitress who takes their orders at a café, all speak in a language *464 other than English. Because the judges of this court are not familiar with the language featured in the video, and no translation has been supplied, we do not know what is being said. As is the case with all the other videos, however, our not knowing what is being said does not appear to matter.
{¶ 36} At the beginning of the video, the four boys, who appear to be young teenagers, almost certainly under the age of 18, are warmly dressed and are walking outside. They stop to play at a sliding board and a chin-up bar. They appear to know each other and to be engaging in friendly banter and conversation.
{¶ 37} After a while, the quartet goes to an outdoor café. They look at the menu and place their orders with a waitress. She brings them some kind of beverage that looks like a fruit drink, and later a full meal, with one plate for each boy. They eat their meals and then leave. They arrive at the banya about 12½ minutes into the video and go to the locker room. They are the only persons present at the banya throughout the video. At the locker room, they each disrobe, and, naked, proceed through a door to an indoor pool. For a public pool, it is fairly small. They arrive at the pool about 14½ minutes into the video, and the next 25 minutes shows them playing in the pool. At one point, they bat an inflated ball around. From time to time, one or more of them gets out of the pool and then jumps back in, but for most of this time, they are immersed in the pool, with nothing but their heads clearly visible.
{¶ 38} They then get out of the pool and go into a communal shower. Again, they are the only persons present. As they shower, they occasionally spray each other with the detachable shower nozzles. After about four minutes in the shower, they go into the locker room, towel off, and get dressed. They then leave the banya, fully dressed, and are shown walking outside for about three and a half minutes, when the video concludes.
{¶ 39} As with Exhibits 3 and 4, we find no graphic focus on the genitals in this DVD. During the bulk of the video, when the boys are naked, their genitals are visible when they are out of the water. No attempt has been made to edit out the boys' genital organs. But neither is there any focus on the genitals. The camera does not zoom in on, or linger upon, the genitals, and, indeed, during the time when the boys are in the pool, their genitals are not visible. Nor have we seen anything in this video that could be found, by a reasonable finder of fact, to be a lewd exhibition. There are no provocative or suggestive poses.
{¶ 40} As was the case with Exhibit 3, one can reasonably infer that the "After-School Break" DVD is marketed to persons with a prurient interest in nude minor boys. Like many DVDs, it includes promotions for other DVDs. We looked at these promotional videos, since they are part of Exhibit 5, and they all involve four boys, although not the same four boys, who start off fully clothed, *465 disrobe to engage in some activity, and ultimately put their clothes back on. The quartets of boys are of varying ages (although the members of each set always appear to be about the same age), but all appear to be minors. The contents and format of these other videos appear to be similar to "After-School Break." There is no plot, and the conclusion appears likely, if not inescapable, that they are intended to be marketed to persons with a prurient interest in nude minor boys.
{¶ 41} Nevertheless, the test, as laid down inState v. Young,
{¶ 43} Soon, the daughter, Jane, arrives home from school. She is clothed upon her arrival but quickly takes off her clothes. This family apparently is nudist. Importantly, Jane's minority status is not apparent and is not disclosed. She could easily be 18 years old or older. Although she could be under the age of 18, there is nothing in the video from which a reasonable finder of fact could find, beyond reasonable doubt, that Jane is a minor.
{¶ 44} A little bit later, the son, Henry, arrives home from school. Unlike Jane, Henry is clearly a minor. He, too, strips nude shortly after arriving home. Henry and Jane, who are siblings, bat a large inflated ball back and forth.
{¶ 45} Finally, the father arrives home. He, too, takes off his clothes shortly after his arrival. The family is depicted engaging in fairly typical wholesome activities. They remain nude throughout this portion of the video, while at home in their apartment. Jane plays with a hula hoop and is good with it, unlike the other family members, who try, gamely. Although Jane uses the hula hoop well, which necessarily involves some gyration of her body, these scenes are not erotic. Also, Jane is not clearly a minor. Henry plays with the hula hoop, but these *466 scenes, also, are not erotic, and, in most of them, Henry has his back to the camera.
{¶ 46} Dad brings out his digital camera and starts taking pictures. The mother's pose, which is shown at one point from the point of view of the photographer, is mildly sexual. When Jane poses for him, we only see the scene from behind Jane's shoulder. Then Henry is photographed, and then all three — the mother, daughter, and son — but these scenes are not erotic at all.
{¶ 47} Next, the father and son are shown playing on, or at least using, a computer. There is nothing erotic in this scene. Then Jane is shown working out on a piece of equipment. There is no focus on her genital organ, which cannot be seen. The father and son are then shown curling some weights with their arms. Then Jane is shown curling the same weights with her arms. There is nothing sexually provocative or suggestive in these scenes.
{¶ 48} Then, a little over 17 minutes into the video, the mother, the father, and Jane go to the "Mad Max" club to join some of their naturist friends. Significantly, Henry, the only person in this video whom a reasonable finder of fact could find, beyond reasonable doubt, to be a minor, stays at home.
{¶ 49} At the Mad Max club, everyone takes off their clothes. An inflated ball is batted back and forth. The participants, an almost even mixture of men and women (there is one more man than there are women), play with a hula hoop. One woman, who, while young, is not obviously a minor, pole dances in a fairly erotic manner. Then a conga line forms, and this same woman, Natalie, shakes her breasts in a manner that could fairly be described as a lewd exhibition. Couples then dance in a traditional manner, the man's right hand holding the woman's left, the man with his other arm around the woman's waist, and the woman with her other arm at the man's upper shoulder, or around his neck. Of course, all the participants are completely nude.
{¶ 50} The atmosphere becomes progressively steamier, with all of the participants working up a sweat, and with some dancing near the end that can reasonably be deemed to constitute a lewd exhibition.
{¶ 51} In this video, we have found no graphic focus on the genitals. In the second part of the video, in the scenes at the Mad Max club, there are some scenes that a reasonable finder of fact could find to include a lewd exhibition, but no reasonable finder of fact could find, beyond reasonable doubt, that any of the persons participating in these scenes is a minor. Consequently, we conclude that there is insufficient evidence to support a conviction on this count.
{¶ 53} In our view, at least one of the photographs featured in this brochure could be found, by a reasonable finder of fact, to involve a lewd exhibition, a graphic exhibition of the genitals, or both. In the photograph of the nude boy advertising "Skinny Dippin' Boys," the boy is posed in a manner that a reasonable finder of fact could find to be sexually provocative, involving both lewdness and an emphasis on the boy's genital organ.
{¶ 54} With respect to the count and conviction corresponding to Exhibit 6, then, we find that there is sufficient evidence to support a conviction. Nevertheless, we agree with Kerrigan that the record demonstrates a legal error on the part of the trial court that we cannot hold to be harmless.
{¶ 55} In its written verdict, the trial court, as the finder of fact, set forth the following:
{¶ 56} "The Ohio Supreme Court in State v.Young,
{¶ 57} "The materials in question, which are the exhibits before the Court, purport to show numerous individuals both adults and minors in a state of nudity engaging in purportedly everyday activities such as swimming, working out, boxing, and family activities. While the materials themselves do not demonstrate *468 a `lude [sic] exhibition' nor do they necessarily place a `graphic focus on the genitals,' the length of the videos, together with the activities demonstrated by the minors, would have no other purpose other than to call to the attention of the viewer the nudity of the minors resulting in the viewer's continuous exposure to the minors' genitals.
{¶ 58} "The activities demonstrated by the minors, while not specifically focusing on the genitals, are apparently intended to do so. Most videos would not contain 15 minutes or more of minors boxing; working out in a gym on numerous pieces of equipment in numerous positions, or swimming in an indoor pool if the minors were not nude. It isobviously the intent of the exhibits to call attention to thenudity of the minors. These exhibits do not fall within the proper purposes exception to Section
{¶ 59} In our view, the portions of the trial court's verdict quoted above demonstrate an error of law. The trial court evidently misapprehended the construction of R.C.
{¶ 60} Although we have concluded, with respect to Exhibit 6, that there is sufficient evidence upon which a reasonable finder of fact could predicate a conviction, we cannot say that the error of law demonstrated in the record is harmless. In a bench trial, the trial judge takes the place of the jury as the finder of fact. It would be no more appropriate for us to usurp the role of the trial judge as the finder of fact in a bench trial than it would be for us to usurp the role of the jury in a trial to the jury. In this respect, the situation in this appeal is similar to an appeal predicated upon an error in an instruction of law given to a jury. Once we have determined that the trial court erred, to the prejudice of the defendant, in its instruction to the jury by misstating an element of the offense in a manner that makes it easier to find the defendant guilty, we may not disregard that error on the theory that the jury, having been correctly instructed, would have found the defendant guilty anyway. That determination is for the finder of fact, not for this court. *469
{¶ 61} For this reason, the conviction corresponding to Exhibit 6 will be reversed, and this cause will be remanded for reconsideration of the trial court's verdict as to that count, after correctly applying the law.
{¶ 63} "Defendant-appellant was denied effective assistance of counsel as granted by the
{¶ 64} Kerrigan contends that his trial counsel was ineffective for having failed to move for a judgment of acquittal following the close of the state's case. Kerrigan submitted no evidence in his behalf.
{¶ 65} We find Kerrigan's argument difficult to follow, since the trial court stated, after all the evidence had been submitted:
{¶ 66} "Then just for purposes of the record, we'll assume you had a Rule 29 motion, I'll overrule that motion so that we have something on the record."
{¶ 67} In any event, as to four of the five counts upon which Kerrigan was convicted, this assignment of error is obviously moot, since we are not only reversing those convictions, we are taking the further step of discharging him as to those counts.
{¶ 68} We find the application of this assignment of error to the fifth count, corresponding to Exhibit 6, to be moot as well. In concluding that there is evidence in the record from which a reasonable finder of fact could find Kerrigan guilty as to that count, we are necessarily concluding that had Kerrigan's trial attorney made a motion for a judgment of acquittal (assuming, for purposes of analysis, that he did not in fact do so), the trial court would properly have denied it.
{¶ 69} Kerrigan's second assignment of error is overruled.
Judgment reversed in part and reversed and remanded in part.
BROGAN, J., concurs.
DONOVAN, J., dissents.
Dissenting Opinion
{¶ 71} I disagree. A determination of whether the disputed materials violate the statute must be based upon their overall content. The trial judge correctly found that based upon their overall content, they do violate R.C.
{¶ 72} The videotapes and brochure contain clear images of the pubic area and buttocks of children. Black's Law Dictionary (8th Ed.2004) 927 defines "lewd" as obscene or indecent; tending to moral impurity or wantonness. Viewed in the light most favorable to the state, the images constitute a lewd exhibition of nudity. Certainly, none of these materials can be characterized as possessed for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose as set forth in R.C.
{¶ 73} I believe the majority misconstruesState v. Young (1988),
{¶ 74} As noted by Justices Brennan, Marshall, and Stevens in their dissent in Osborne v. Ohio
(1990),
{¶ 75} Further, the majority concludes that these materials are merely "naturist" or nudist, but concedes that at least one "After School Break" is likely intended to be marketed to persons with a prurient interest in nude boys. I would conclude that all of the materials are so marketed. Nevertheless, the majority contends that it is not relevant how the material is promoted or marketed. This conclusion ignores the United States Supreme Court's recognition of the significance of the exceptions delineated in the Ohio statute that narrows significantly the prohibited conduct by limiting it to "conduct which is not morally innocent, i.e., the possession or viewing of the described material for prurient purposes." Id. at fn. 10.
{¶ 76} Reading the trial court's decision in its entirety and giving the state latitude in protecting children from nude visual depictions, I would affirm the convictions of Kerrigan on all counts.