THE STATE OF OHIO, APPELLANT, v. MAXWELL, APPELLEE.
No. 2000-1812
SUPREME COURT OF OHIO
Submitted October 30, 2001—Decided May 15, 2002.
95 Ohio St.3d 254 | 2002-Ohio-2121
MOYER, C.J.
APPEAL from the Court of Appeals for Franklin County, No. 99AP-1177.
{¶1} Responding to information regarding a thirteen-year-old girl named Sarah, officers of the Worthington Police Department on August 20, 1998, learned that appellee Mark W. Maxwell had contacted Sarah via the Internet and that she had agreed to mеet him at a store in Worthington that afternoon. Sarah disclosed to the police officers that she and appellee, who had identified himself as a nineteen-year-old male, had discussed meeting for the express purpose of engaging in sexual relations. Appellee was actually twenty-seven. Sarah agreed to meet appellee while wearing a wire so that the police could tape-record her conversation with appellee. During their conversation, Sarah brought up their prior discussions concerning going to a hotel room, but appellee did not say anything of a sexual nature. Pursuant to the police officer‘s instructions, Sarah allowed appellee to leave their meeting before she did. When appellee exited the store, he was immediately arrested.
{¶2} Following his arrest, the police obtained a search warrant for appellee‘s car and his apartment in Oxford, Ohio. In his car, the police found informatiоn relating to their meeting in Worthington. The police seized appellee‘s computer from his apartment. Numerous pictures and movies were discovered on
{¶3} Evidence at trial established that appellee had obtained these files by downloading them via America Online, an Internet service provider. All America Online electronic traffic pаsses through the company servers in Virginia. Therefore, when appellee downloaded a file via America Online to his computer in Ohio, the file electronically passed through Virginia and into Ohio.
{¶4} Also introduced into evidence were copies of E-mail transmissions and instant messages (“IMs”) between appellee and Sarah. The IMs between appellee and Sarah are sexual in nature and include discussions about Sarah‘s experience with and willingness to perform fellatio, appellee‘s offer to give Sarah a “tip” of one hundred dollars for the act, and appellee‘s attempts to send Sarah a picture of himself naked in a state of sexual excitement. In addition, appellee told Sarah that he was only nineteen years old, while she told him that she was only thirteen years old.
{¶5} Copies of other IMs were introduced into evidence, which revealed portions of similar sexual conversations that appellee had had with other young femalеs.
{¶6} On September 14, 1999, a jury found appellee guilty of one count of compelling prostitution, five counts of disseminating matter harmful to juveniles, eight counts of pandering obscenity involving a minor, and one count of illegal use of a minor in a nudity-oriented material or performance. The court sentenced appellee to a total of eighteen years in prison. After a hearing, the trial court found that appellee is a sexual predator.
{¶7} The court of appeals agrеed with appellee that the evidence presented by the state was insufficient as a matter of law to sustain his convictions under
{¶8} In support of its appeal, the state argues that a proper reading of
{¶9} It is undisputed that the General Assembly can “enact legislation with the purpose to impose strict criminal liability.” State v. Jordan (2000), 89 Ohio St.3d 488, 493, 733 N.E.2d 601. In addition, there is no question that the General Assembly can specify the mental element required for each element of an offense. Id.
{¶10} We first consider the words of the statute to determine legislative intent. Provident Bank v. Wood (1973), 36 Ohio St.2d 101, 105, 65 O.O.2d 296, 304 N.E.2d 378. In determining legislative intent, our duty is “to give effect to the words used, not to delete words used or to insert words not used.” Columbus-Suburban Coach Lines, Inc. v. Pub. Util. Comm. (1969), 20 Ohio St.2d 125, 127, 49 O.O.2d 445, 254 N.E.2d 8.
{¶11}
{¶12} “(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:
{¶13} “* * *
{¶14} “(6) Bring or cause to be brought into this state any obscene material that has a minor as one of its participants or portrayed observers.”
{¶15}
{¶16} “(B) When the section defining an offense does not specify any degree of culрability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability
{¶17} “* * *
{¶18} “(D) As used in this section:
{¶19} “* * *
{¶20} “(3) ‘Culpability’ means purpose, knowledge, recklessness, or negligence, as defined in section 2901.22 of the Revised Code.”
{¶21} The court of appeals held that
I. R.C. 2907.321(A)(6) Indicates a Plain Intent to Impose Strict Criminal Liability
{¶22} Appellant argues that the court of аppeals misinterpreted the word “section” in
{¶23}
{¶24} In State v. Wac (1981), 68 Ohio St.2d 84, 22 O.O.3d 299, 428 N.E.2d 428, we found plain indications that the General Assembly meant to impose strict criminal liability. In that case, the appellant argued that recklessness was an element of bookmaking because
{¶25} “(A) No person shall do any of the following:
{¶26} “(1) Engage in bookmaking, or knowingly engage in conduct that facilitates bookmaking.”
{¶27} We rejected appellant‘s position. Noting that “[t]he General Assembly included the culpable mental state оf ‘knowingly’ as an element of facilitating bookmaking,” we held that because “there is no such requirement in the same subsection for bookmaking per se,” the “exclusion ‘plainly indicates a purpose to impose strict criminal liability * * *.’
{¶28} We recognized that the clause “or knowingly engage in conduct that facilitates bookmaking” was a discrete clause and that the knowledge required by
{¶29} Similarly, in
{¶30} There are other indications outside the statute that plainly indicate a purpose to impose strict liability. Thе decision in Wac demonstrates that a crime may have different degrees of mental culpability for different elements. The General Assembly has assumed a strong stance against sex-related acts involving minors, as evidenced by the numerous statutes in the Ohio Revised Code providing for criminal liability for those acts. Therefore, it is reasonable to presume that the inclusion of a knowledge requirement regarding the character of the material and the absence of a mental element elsewhеre in
{¶31} Appellee argues that the statute was adopted in 1977, well before the advent of the Internet as a means of general communication, and that the prohibition on bringing material into the state cannot constitutionally be applied to downloading. However, application of a criminal statute to a specific factual circumstance not anticipated when the statute was adopted is not a ground for not applying the statute. “[F]ew words possess the precision of mathematical symbols, most statutes deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no
II. There Is Sufficient Evidence to Show that Appеllee Knew the Character of the Material He Downloaded
{¶32} Appellee argues that there was insufficient evidence that he knew the character of the materials before he brought them into Ohio. Pursuant to
{¶33} For the foregoing reasons, we reverse the judgment of the court of appeals.
Judgment reversed.
DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.
COOK, J., concurs in judgment.
PFEIFER and LUNDBERG STRATTON, JJ., dissent.
THE STATE OF OHIO, APPELLANT, v. MAXWELL, APPELLEE.
No. 2000-1812
SUPREME COURT OF OHIO
Submitted October 30, 2001—Decided May 15, 2002.
LUNDBERG STRATTON, J., dissenting.
{¶35} Over thirty years ago, the Internet was launched at the Department of Defense. Internet Society, A Brief History of the Internet and Related Networks <www.isoc.org/internet/history/brief.shtml>. Today, more than four hundred fifty milliоn people worldwide have home-based Internet access, NetRatings, Inc., <www.nielsen-netratings.com/hot_off_the_net.jsp>, and more than fifty percent of children in the United States use the Internet at school, home, or a community access center, Aftab, The Parent‘s Guide to Protecting Your Children in Cyberspace (2000) 1. Prior to the advent of the Internet, consumers of child pornography operated through an underground network of mail order magazines and videotapes. But the World Wide Web‘s relative simplicity via the use of “point-and-click” hypertext links has allowed child pornography to be mass distributed in seconds to a large group of consumers, all in the privacy of their own homes. The anonymity offered by the Internet may lead some individuals to explore areas of cyberspace that once were inaccessible and that they may not otherwise have been inclined to explore. In essence, while the Internet has brought volumes of useful information to the fingertips of consumers, it has also drawn nearer the dark sidе of humanity.
{¶37} “(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:
{¶38} “(1) Create, reproduce, or publish any obscene material that has a minor as one of its participants or portrayed observers;
{¶39} “(2) Promote or advertise for sale or dissemination; sell, delivеr, disseminate, display, exhibit, present, rent, or provide; or offer or agree to sell, deliver, disseminate, display, exhibit, present, rent, or provide, any obscene material that has a minor as one of its participants or portrayed observers;
{¶40} “(3) Create, direct, or produce an obscene performance that has a minor as one of its participants;
{¶41} “(4) Advertise or promote for presentation, present, or participate in presenting an obscene performance that has a minor as one of its participants;
{¶42} “(5) Buy, procure, possess, or control any obscene material, that has a minor as one of its participants;
{¶43} “(6) Bring or cause to be brought into this state any obscene material that has a minor as one of its participants or portrayed observers.”
{¶44}
{¶45} The majority concludes that the act of transporting child pornography via computer is a strict-liability offense. I agree that the act of transporting child pornography via the mail, a vehicle, or some other traditional physical method that would have been known to the General Assembly when drafting this statute would fall under the guise of strict liability. In those traditional situations, offenders are aware that they are transporting child pornography into the state, and the General Assembly can fairly hold them strictly liable if they physically carry it across ascertainable borders, even without knowledge. But in this case, the defendant was in the state of Ohio, communicating with others in the state of Ohio via his computer modem and claims to have had no knowledge or expectation that he was crossing state lines. In fact, but for the fact that his Internet service provider America Online (“AOL”) is based out of state, in Virginia, no violation of (A)(6), as interpreted by the majority, would have occurred.
{¶46} In today‘s Internet environment, users with very little technical knowledge can click on a hypertext link or an icon on his or her screen and be automatically transported to a remote computer site without having understood where, physically, they have landed on the World Wide Web. And Internet service providers such as AOL have made the navigation of the uncharted waters of cyberspace all the easier. Consumers often receive free software in the mail from a major Internet service provider, such as AOL in this case, and that software normally offers a certain number of hours of Internet access for free. The consumer simply inserts the software into his or her personal computer and follows the instructions given on the disk. After entering a valid credit card number, selecting a screen name and password, and choosing a local access telephone number for his or her modem to dial to access the Internet service provider, the consumer has the full resources of the World Wide Web at his or her fingertips.
{¶48} Subsection (A)(6) of
{¶49} At the time
{¶50} Logic suggests that an Internet user upon discovering that he or she possesses illegal material could simply delete the illegal material from his or her hard drive; not always so. As illustrated by this case, investigators can make a “mirror image” of the user‘s hard drive. In so doing, in cеrtain circumstances, all files, even those files once thought to be deleted, can be conjured up from the user‘s computer and reconstructed. This is because the act of deleting does not in all cases actually cause the selected information or image to be discarded from the hard drive. Rather, the act of deleting can merely mark that portion on the hard drive as available to store new information. Indeed, even once new information is stored over the old “deleted” information, the “deleted” information can in some cases still be resuscitated by computer-savvy investigators. See Aftab, The Parent‘s Guide to Protecting Your Children in Cyberspace, at 147.
{¶51} I certainly do not condone Maxwell‘s actions in this case, but I believe that our statutes as written adequately address his actions without resorting to laws that never contemplated these actions. The state could have properly charged and convicted Maxwell for possession of child pornography in violation of
{¶52} As the principal drafter of our Declaration of Independence once wrote, “[L]aws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discоveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.” Thomas Jefferson to Samuel Kercheval, July 12, 1816, Padover, The Writings of Thomas Jefferson (1967) 351.
{¶53} I believe that this case represents just such an example of the law failing to keep pace with the times. Consumers certainly do not have any reason to know the complexity of the network connections made with the click оf their mouse. Therefore, I find that charging individuals with the knowledge of the internal workings of their Internet service provider is repugnant to fairness and due process.
{¶54} The proliferation of child pornography available on the Internet and the complex legal issues generated from that proliferation illustrate the need for our General Assembly to fully explore and discuss these issues.
{¶55} To that end, in February, the General Assembly enacted Sub.H.B. No. 8, which amends
{¶56} I agree with the court of appeals’ decision to affirm Maxwell‘s convictions for one count of compelling prostitution, five counts of disseminating
PFEIFER, J., concurs in the foregoing dissenting opinion.
Ron O‘Brien, Franklin County Prosecuting Attorney, and Scott M. Forehand, Assistant Prosecuting Attorney, for appellant.
Mary Ann Torian and Clayton G. Napier, for appellee.
Betty D. Montgomery, Attorney General, and Andrew D. Bowers, Assistant State Solicitor, urging reversal for amicus curiae, Attorney General of Ohio.