STATE OF OHIO, PLAINTIFF-APPELLEE, v. WILLIAM A. PRITT, DEFENDANT-APPELLANT.
CASE NO. 13-14-39
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
June 8, 2015
[Cite as State v. Pritt, 2015-Ohio-2209.]
Appeal from Seneca County Common Pleas Court Trial Court No. 14CR0073 Judgment Affirmed
APPEARANCES:
Gene P. Murray for Appellant
Brian O. Boos for Appellee
{¶1} Defendant-appellant, William A. Pritt (“Pritt“), appeals the October 28, 2014 judgment entry of sentence of the Sеneca County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from a July 21, 2013 incident in which Pritt placed a video camera in the heater vent of the bathroom of his house, recorded his 13-year-old daughter, A.P., using the toilet and preparing to shower, and transferred the recording to his computer. (Feb. 4, 2014 Tr. at 103). On March 19, 2014, the Seneca County Grand Jury indicted Pritt on two counts: Count One of “illegal use of a minor in a nudity-oriented material or performance” in violation of
{¶3} On April 4, 2014, Pritt appeared for arraignment and entered pleas of not guilty. (Doc. No. 10).
{¶4} On August 18, 2014, the State filed a motion to dismiss Count Two of the indictment. (Doс. No. 27). On August 19, 2014, the State filed a motion to amend Count One of the indictment to change the statement “On or about the 25th day of August, 2013” to “On or about the 21st day of July, 2013.” (Doc. No. 29).
{¶5} On August 26, 2014, Pritt filed “Defendant‘s Request for Jury Instruction Regarding Affirmative Defense.” (Doc. No. 32).
{¶6} On August 25-26, 2014, a jury trial was held. (Aug. 25, 2014 Tr., Vol. I, at 1). The jury found Pritt guilty of Count One—the only remaining count—on August 26, 2014. (Aug. 26, 2014 Tr., Vol. II, at 356); (Doc. Nos. 33, 35). The jury further found that Pritt “did not prove, by a preponderance of the evidence, the affirmative defense of bona fide purpose.” (Aug. 26, 2014 Tr., Vol. II, at 356); (Doc. Nos. 34, 35). On October 27, 2014, the trial court sentenced Pritt to five years in prison. (Doc. No. 37).
{¶7} The trial court filed its sentencing entry on October 28, 2014, and Pritt filed his notice of appeal on December 1, 2014. (Doc. Nos. 37, 39). He raises one assignment of error for our review.
Assignment of Error
In an Abuse of its Discretion, the Trial Court Reversibly Erred by Proactively Ruling that the Defense was Prohibited, Ab Initio, Under Court Order, and Under Warning of Contempt of Court Sanctions, that Defendant Pritt Could Not, and Therefore, Would Not Under Any Circumstances, Way, Shape, or Form, Raise in his Defense that the Video Reсording of the Minor Child was Not for the Purpose of Sexual Gratification, and More Pointedly, that the Trial Court Would Not Allow Any Evidence in Pursuit of the Affirmative Defense, that the Video Recording was Not Initiated or Otherwise Not Motivated By a Desire for
the Sexual Gratification of Defendant Pritt, Thereby Effectually Negating the Affirmative Defense of Defendant Pritt, so Rendering it Impossible for Him to Meet His Burden to Present the Required Preponderant Threshold Evidence that His Conduct was Intended for a Bonafied [sic] Purpose that was Morally Innocent, and Therefore Denying Defendant Pritt of His Fundamental Sixth Amendment to the Constitution of the United States, Applicable to the States Through the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and Also Applicable to Defendant Pritt Under His Substantial and Fundamental Right to a Fair Trial as Guaranteed by Article I, Section 10 of the Constitution of the State of Ohio.
{¶8} In his assignment of error, Pritt argues that the trial court abused its discretion by excluding evidence that he did not video A.P. for the purpose of sexual gratification.
{¶9} Generally, the admission or exclusion of evidence lies within the trial court‘s discretion, and a reviewing court should not reverse absent an abuse of discretion and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). An аbuse of discretion implies that the court‘s attitude was unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157 (1980).
{¶10}
[It is not an offense if] 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, member of the clergy, prosecutor, judge, or other person having a proper interest in the material or performance.
Id.
{¶11} The “proper-purpose” exception is an affirmative defense within the meaning of
{¶12} Pritt argues that the trial court аbused its discretion in prohibiting him from introducing evidence “that he was not motivated by a desire for sexual gratification, when he has [sic] the burden of proving that he had a bonafied [sic]
{¶13} First, Pritt‘s argument that the State was required to prove that his motive for committing the underlying sex offense was for sexual gratification is meritless. Sexual-gratification motive is not an element of
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 a nude minor more severely, rеgardless of the purpose of the offender or the lewdness of the subject.
{¶14} Also baseless is Pritt‘s argument that the trial court improperly prevented him from presenting evidence that he was not motivated by sexual gratification tо establish his affirmative defense. The proper-purpose exception to
{¶15} Pritt further argues that the trial court violated “his right to a fair and impartial jury trial, as guaranteed by the Sixth Amendment to the Constitution of the United States, applicable to the states through the due process clause of the Fourteenth Amendment to the United States Constitution, and also guaranteed by Article I, Section 10 of the Constitution of the State of Ohio” by excluding sexual-gratification evidence. However, the “[f]ailure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apрarent at the time of trial, constitutes a waiver of such issue and a deviation from this state‘s orderly procedure, and therefore need not be heard for the first time on аppeal.” State v. Awan, 22 Ohio St.3d 120 (1986), syllabus. Pritt did not raise his constitutional argument at trial. Therefore, Pritt waived this argument, and we decline to address it. See State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 71, citing State v. Rowland, 3d Dist. Hancock No. 5-01-28, 2002 WL 479163, *1 (Mar. 29, 2002).
{¶16} Thus, the trial court did not abusе its discretion in excluding evidence that Pritt did not video A.P. for the purpose of sexual gratification. Pritt‘s assignment of error is overruled.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
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