State v. MartinState v. Martin
FROELICH, P.J.
{¶ 1} Terry Lee Martin, Sr., appeals from a judgment of the Montgomery
{¶ 2} For the following reasons, the judgment of the trial count will be affirmed.
{¶ 3} The facts of the case are as follows. Martin, age 51, positioned and hid his iPod in such a way that he was able to record the minor victim in the bathroom of Martin‘s home when she undressed to take a shower. On the video, Martin talked with the girl as she entered the bathroom, complimented her appearance, and stated that she would look “cute” in some sexy “Daisy Dukes” (short shorts) that he had seen at the store. He then left the bathroom, and the victim undressed in preparation for a shower. Her breasts, pubic area, and buttocks were visible in the video as she undressed before the shower and as she dried herself after the shower. When the victim left the bathroom, Martin immediately reentered and retrieved the iPod.
{¶ 4} The video was discovered when Martin lent his iPod to the victim‘s brother and the victim‘s mother perused its contents. The victim stated in a victim impact statement that Martin had “treated [her] as his own daughter,” but the precise nature of their relationship is unclear from the record.
{¶ 5} Martin was indicted for illegal use of a minor in nudity-oriented material, in violation of
{¶ 6} At trial, the parties’ stipulated to the date and location of the offense, that
{¶ 7} Martin was convicted after the bench trial, and he was sentenced as described above.
{¶ 8} Martin appeals from his conviction, raising one assignment of error, in which he contends that his conviction was contrary to law because, if the proper definition of nudity were applied, the State failed to prove the offense of illegal use of a minor in nudity-oriented material. In convicting Martin, the trial court did not specifically discuss the definition of nudity that it applied. Martin does not raise any argument regarding his conviction for possession of criminal tools or regarding the sentencing.
{¶ 9} Illegal use of a minor in nudity-oriented material or performance, in violation of
{¶ 10}
{¶ 11} The United States Supreme Court has held that private possession of obscene material, without more, is constitutionally protected; however, possession of child pornography may be prohibited. Osborne v. Ohio, 495 U.S. 103, 110-111, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990), reversed on other grounds; New York v. Ferber, 458 U.S. 747, 764-765, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). The value of permitting child pornography is “exceedingly modest, if not de minimis,” and legislatures and others have found that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child; these determinations “easily [pass] muster” under the First Amendment. Osborne at 110, quoting Ferber. Both Osborne and
{¶ 12} Martin contends that a series of cases from the U.S. and Ohio Supreme Courts, including Young and Osborne, has narrowed the definition such that the nudity must constitute “a lewd exhibition or involv[e] * * * a graphic focus on the genitals” in order for the material to be prohibited. He further argues that the recording at issue in this case contained nudity under the wording of
{¶ 13} Young and Osborne address
{¶ 14} The U.S. Supreme Court agreed that, as interpreted by the Ohio Supreme Court in Young,
{¶ 15} Martin argues that the more narrow definition of nudity applied in Young and approved in Osborne also applies to
{¶ 17} Other Ohio courts have split on the question of whether the definition of “nudity” set forth in Young applies to
{¶ 18} We need not consider whether the definition of nudity set forth in Young is an “element” of the offense of illegal use of a minor in nudity-oriented material that must be included in an indictment. Martin has not challenged his indictment on appeal or in the trial court and, regardless, any such argument is moot as a result of our holding in this case. The question before us is whether, for a violation of
{¶ 19} In our view, the difference between possession/viewing and creation/production of nudity-oriented material involving a minor, without parental consent,
This court has applied the requirement of State v. Young * * * and Osborne v. Ohio * * * of a “lewd” or “graphic focus on the genitals” to an
R.C. 2907.323(A)(1) offense. * * * I disagree with this view, however. The Ohio Supreme Court employed the “lewd exhibition” or “graphic focus on the genitals” requirement in Young to avoid First Amendment problems that arise with criminalizing possession of nude child photographs with nothing more. * * * The United States Supreme Court endorsed that interpretation, although the case was reversed on other grounds. See Osborne, 495 U.S. at 112-113, 110 S.Ct. 1691, 109 L.Ed.2d 98. The Young and Osborne cases involved only (A)(3) offenses underR.C. 2907.323 . Neither involved a violation of subsection (A)(1). The gist of Young and Osborne is that the mere possession of nude child photographs, without more, raises a First Amendment issue. I note, however, that subsection (A)(1) prohibits taking nude pictures of someone else‘s children, and that is a different issue than the mere possession of such pictures. Does taking a nude picture of someone else‘s child deserve the same level of First Amendment protection? * * *I believe that the better approach is the Massachusetts Supreme Court‘s view in Commonwealth v. Oakes (1990), 407 Mass. 92, 551 N.E.2d 910, 912, which held that photographing nude, underage children combined elements of both speech and conduct. When speech and nonspeech elements are both involved, a “sufficiently important governmental interest” for regulating the nonspeech element can justify an incidental limitation on First Amendment freedoms. Id., citing United States v. O‘Brien (1968), 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (holding that government can criminalize the burning of draft cards notwithstanding the First Amendment symbolism connected therewith). The “important governmental interest” at issue in the case sub judice is obvious.
R.C. 2907.323(A)(1) prohibits a person from taking nude photographs of someone else‘s children. Except in limited circumstances, such as an abuse, dependency, or neglect proceeding, parents have the right to know who is taking nude pictures of their children and a right to refuse permission to take those pictures. Both the Ohio and United States Supreme Courts have long held that parents have a fundamental liberty interest in the custody and control of their own children. * * * Prohibiting someone else from taking nude photographs of one‘s child is a common-sense extension of that right and is an area that the Ohio General Assembly can legitimately legislate.Therefore, I do not believe that the Ohio Supreme Court‘s limited construction of
R.C. 2907.323(A)(3) in Young, affirmed by the United States Supreme Court in Osborne, applies with regard to a subsection (A)(1) charge. Rather, the state may constitutionally prohibit strangers from taking nudephotographs of someone else‘s child, without permission, even if there is no “lewd” or graphic focus on that child‘s genitals. * * *.
(Some internal citations omitted.) Graves, 184 Ohio App.3d 39, 2009-Ohio-974, 919 N.E.2d 753, ¶ 17-19 (4th Dist.) (Abele, J., dissenting).
{¶ 20} The State‘s interests are compelling when a child is depicted. The State has compelling interests in protecting the child and in limiting the availability of depictions of nude children. Moreover,
{¶ 21} Nudity is statutorily defined, and, with respect to
{¶ 22} In its brief, the State seems to concede the applicability of the Young definition of nudity, a conclusion with which we do not agree, for the reasons stated above. The State contends that, accepting this definition, the video was indisputably “lewd,” notwithstanding the fact that it does not contain a graphic focus on the genitals.
{¶ 23} The term “lewd” is not a legal term of art, but a word of common usage. State, ex rel. Rear Door Bookstore v. Tenth Dist. Ct. of Appeals, 63 Ohio St.3d 354, 358, 588 N.E.2d 116 (1992). “Webster defines ‘lewd’ as: ’ * * * sexually unchaste or licentious * * * lascivious * * * inciting to sensual desire or imagination * * *.’ Webster‘s Third New International Dictionary (1986) 1301. The Oxford English Dictionary gives a similar definition and cites Chaucer for first using the word in popular literature as early as 1386. ‘Lascivious’ is defined by Webster as: ’ * * * inclined to lechery: lewd, lustful * * * tending to arouse sexual desire * * *.’ Webster‘s, supra, at 1274. The Oxford dictionary defines ‘lascivious’ as: ‘[i]nclined to lust, lewd, wanton.’ The Oxford English Dictionary (1989) 666.” Rear Door Bookstore at 358. Black‘s Law Dictionary defines “lewd” as “[o]bscene or indecent; tending to moral impurity or wantonness[.]” Black‘s Law Dictionary (7th Ed.1999) 919.1
{¶ 24} Based on the Ohio Supreme Court‘s holding in Young, this court has held that it is the character of the material or performance, not the purpose of the person possessing or viewing it, that determines whether it involves a lewd exhibition or a graphic
{¶ 25} Finally, we note that secretly videotaping a naked person without consent is a crime when committed (with a specific mens rea) against an adult as well as against a child.
{¶ 26} With any other holding, the “photographing” of a nude2 minor without the purpose of sexually arousing the “photographer,” e.g., for the purpose of embarrassing the minor or the purely pecuniary purpose of selling the image to a child pornographer, arguably would not be against the criminal law. Because of the State interests involved in preventing the exploitation of children through the creation of nudity-oriented materials in which they are depicted, the legislature reasonably chose to define the offense more broadly (i.e., not requiring a trespass or a purpose of sexual gratification) and to punish the secret imaging of
{¶ 27} The assignment of error is overruled.
{¶ 28} The judgment of the trial court will be affirmed.
FAIN, J. and HALL, J., concur.
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April F. Campbell
Elizabeth C. Scott
Hon. Frances E. McGee