STATE OF OHIO v. TERRENCE S. SULLIVAN
Appellate Case No. 23948
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
June 17, 2011
[Cite as State v. Sullivan, 2011-Ohio-2976.]
Trial Court Case No. 09-CR-667 (Criminal Appeal from Common Pleas Court)
Rendered on the 17th day of June, 2011.
MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0071560, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
ROBERT E. SEARFOSS, III, 321 North Main Street, Bowling Green, Ohio 43402 Attorney for Defendant-Appellant
BROGAN, J.
{1} Terrence Sullivan appeals from his conviction in the Montgomery County Common Pleas Court of one count of pandering obscenity involving a minor, one count of pandering sexually oriented matter involving а minor, one count of endangering children, and two counts of illegal use of a minor in nudity oriented material or performance. Sullivan was
{2} Sullivan‘s indictment arose out of his relationship with A.K., age sixteen. Multiple nude images of A.K. were found on an image storing device called a flash card that belonged to Sullivan. The images were discovered by Matthew McDavid, a friend of A.K.‘s brother, when he was using Sullivan‘s laрtop computer that Sullivan stored at A.K.‘s home. Sullivan had previously lived with A.K.‘s family when he was involved in a relationship with A.K.‘s mother.
{3} The flash card also contained a video showing A.K. masturbating. A.K. testified that Sullivan had taken nude photographs of her which she believed Sullivan subsequently sent to the lead singer of a music group she was interested in called Tokio Hotel. A.K. did not remember when the video was created and could not recall whether Sullivan had any role in its creation. Sullivan admittеd to Detective Alan Meade of the Englewood Police Department that he took nude photographs of A.K. Sullivan denied producing the video, but admitted stealing the video.
{4} Sullivan told Meade that the nude photographs he took of A.K. were “tasteful photos.” (Tr. 346, 402.) The photographs were all taken the same day. They included topless depictions of A.K. on her bed and fully nude photographs of her with her legs spread exposing her vagina. (Tr. 291-300.) There were 141 images on the flash card with 91 images containing photos of A.K. in some state of nudity or engaged in sexual conduct. (Tr. 263.)
{5} In his first assignment of error, Sullivan contends the trial court erred in denying his motion to dismiss counts four and five of the indictment. He contends these
{6} In support of his assignment, Sullivan cites the Ohio Supreme Court‘s case of State v. Young (1988), 37 Ohio St.3d 249. Young challenged
{7} “(A) No person shall do any of the following:
{8} “***
{9} “(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:
{10} “(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, scientifiс, 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.
{11} “(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.” (Emphasis added.)
{12} In support of his assignment, Young contended that the statute was overbroad because it swept within its ambit morally innocent states of nudity as well as lewd exhibitions. Justice Douglas disagreed with Young‘s argument. He wrote at pages 251 and 252 of the
{13} “It is true that
R.C. 2907.323(A)(3) does not expressly limit the prohibited state of nudity to a lewd exhibition or a graphic focus on the genitals. Furthermore, we are aware thаt ‘* * * nudity, without more is protected expression * * *,’ even where the subject depicted is a child. New York v. Ferber (1982), 458 U.S. 747, 765, fn. 18. However, when the ‘proper purposes’ exceptions set forth inR.C. 2907.323(A)(3)(a) and(b) are considered, the scope of the prohibited conduct narrows significantly. The clear purpose of these exceptions, quoted supra, is to sanction the possession or viewing of material depicting nude minors where that conduct is morally innocent. Thus, the only conduct prohibited by the statute is conduct which is not morally innocent, i.e., the possession or viewing of the described material for prurient purposes. So construed, the statute‘s proscription is not so broad as to outlaw all depictions of minors in a state of nudity, but rather only those depictions which constitute child pornography.{14} “In the area of child pornography, the United States Supreme Court has directed that ‘[a]s with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed.; (Emphasis added.) Ferber, supra, at 764. As we construe it today,
R.C. 2907.323(A)(3) prohibits the possession or viewing of material or performance of a minor who is in a state of nudity, where such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals, and where the person depicted is neither the child nor the ward of the person charged.”
{15} In State v. Graves, 184 Ohio App.3d 39, 2009-Ohio-974, the Ross County
{16} In State v. O‘Connor, Butler App. No. CA2001-08-195, 2002-Ohio-4122, the Butler County Court of Appeals rejected the appellant‘s claim that the trial court erred in convicting him of six counts of violating
{17}
{18} The State urges us to reject the rationale of Graves and to hold that the
{19} In State v. Kerrigan, 168 Ohio App.3d 455, 2006-Ohio-4279, we held that lewd exhibition or a graphic focus on the genitals is an essential element of the offense of
{20} In State v. Ross (1967), 12 Ohio St.2d 37, the Ohio Supreme Court held that when a criminal statute does not clearly make a certain specific intent an element of the offense, but judicial interpretation has made such intent a necessary element, an indictment charging the offense solely in the language of the statute is insufficient.
{21} In Osborne v. Ohio (1990), 495 U.S. 103, 110 S.Ct. 1691, the United States Supreme Court endorsed Young‘s construction of
{22} In State v. Moss, supra, Judge Hildebrand weighed in on the issue of whether
{23} “Because I believe the trial court properly found Moss guilty of the offense on his no-contest plea, I respectfully dissent. Where an indictment contains sufficient allegations to state an offense and the defendant pleads no contest, the trial court must find the defendant guilty. The majority in the instant case, however, relies on Osborne v. Ohio for the proposition that the allegations in the indictment of Moss were insufficient. I disagrеe.
{24} “In my opinion, the majority misapplies the holding in Osborne. The Osborne court merely held that the phrase “state of nudity” by its definition must refer to a lewd exhibition or a graphic focus on the genitals to survive constitutional scrutiny. The court did not thereby engraft or otherwise enact additional elements to the offense. Indeed, the judiciary would not be empowered to effectuate such a legislative amendment.
{25} “Pursuant to the Osborne holding, an admission to the facts of an indictment that alleges the depiction of a “state of nudity” includes by definition an admission to lewdness or graphic focus on the genitals. It is not necessary to expressly allege the definition of the term ‘state of nudity’ properly state an offense, just as it would not be necessary to define terms such as “deadly weapon” or “serious physical harm” in an indictment for felonious assault. Though the state would have to prove that the material was lewd or graphically focused on the genitals if the case had gone to trial, the admission of the element ‘state of nudity’ in a no-contest plea subsumes the lewdness or graphic focus circumstances as mandated by the First Amendment and the holding of the court in Osborne.
{26} “To hold otherwise would assume that the statute, as written, fails to state an offense for which a person could be convicted. The Osborne holding simply does not stand for that proposition, and indeed, the court in Osborne expressly declined to extend its holding
that far. The effect of the majority‘s decision in the case at bar is to impermissibly ignore the dictates of the Osborne holding and in effeсt invalidate the statute as written. Because such a holding is not warranted by the First Amendment or the case law construing R.C. 2907.323(A)(3) , I would affirm the conviction in the case at bar. Accordingly, I dissent.”
{27} We agree with the State that the judicial construction placed on the element “state of nudity” is not a separate element but merely defines that element in
{28} In his second assignment, Sullivan contends the trial court erred in denying his
{29}
{30} “No person, with knowledge of the character of the material or performance involved, shall * * * [c]reate, record, photograph, film, develop, reproduce, or publish any material that shows a minor participating or engaging in sexual activity, masturbation, or bestiality.” Appellant argues that while he admitted to possessing the video that showed A.K. masturbating, and to stealing it from Tokio Hotel‘s website, he did not admit to creating, recording, photographing, filming, developing, reproducing or publishing the video. He argues that there is no evidence in the record that he did any of these things.
{31} The trial judge, when ruling on the
{32} The State, for its part, argues the trial court properly overruled Sullivan‘s
{33} The State notes that at best one appellate court has held that evidence proving sexually orientated matter was saved from a computer‘s hard drive onto disks, or downloaded from the Internet and stored onto disks, is sufficient evidence for a trier of fact to conclude the images were reproducеd for purposes of
{34} We find the Huffman opinion to be persuasive. The appellant‘s second assignment of error is likewise Overruled. Appellate counsel has not raised issues regarding the severity of the sentence imposed by the trial court nor whether any of the counts in the indictment are allied offenses of a similar import. We need not address those issues at this time. The judgment of the trial court is Affirmed.
. . . . . . . . . .
{35} I generally agree with the dissent that as long as Ohio mandates grand jury findings for a felony charge, that any ensuing indictment should reflect such consideration. See, also, the dissent in State v. Vaughn, Lorain App. No. 10 CA 009820, 2011-Ohio-394, ¶34 et seq. and its cited cases. Even if the hoary aphorism that a grand jury would indict a ham sandwich were true, such a result should still make clear that the grand jury considered what the sandwich allegedly did.
{36} However, I concur with the majority. First, the indictment states all the elements by tracking the statute verbatim. An indictment meets constitutional requirements if it contains the elements of the offense charged and fairly infоrms a defendant of the charge against him and it enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. State v. Childs, 88 Ohio St.3d 558, 564-565, 2000-Ohio-425, quoting Hamling v. United States (1974), 418 U.S. 87, 117-118.
{37} For the reasons stated by Judge Brogan, I agree that the statutory elements of the charged offense need not be further defined in the indictment. The Revised Code is replete with definitions such as, for example only, “recklessness” which is defined as including one who acts with “heedless indifference” or who “perversely disregards a known risk.” As terse (if not unambiguous) as is that definition, compare it with
{38} Normally, absent the demonstration of a particularized need, we presumе that the grand jury received all the appropriate facts and the law to consider whether there was probable cause to return the indictment for a specific statutory violation; a litigant is usually not permitted to look behind such indictment to determine if the grand jury was told the correct legal definitions of the words in the statutes. See, e.g., State v. Carte, Cuyahoga App. No. 91534, 2009-Ohio-4193, ¶30.
{39} Not dissimilarly, an indictment can state alternative means of committing an offense, creating the possible inference that not even the majority of the grand jury agreed upon the particular means by which the offense was committed. See., e.g., State v. Fitzpatrick, Lake App. No. 2009-L-030, 2010-Ohio-710; State v. Vaughn, supra; State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787 (a petit jury), but see State v. Lynn, 185 Ohio App.3d 390, 2009-Ohio-6812, appeal allowed, 125 Ohio St.3d 1413, 2010-Ohio-1893.
{40} I am concerned in this case that the petit jury was never instructed on the definition of “state of nudity.” It was not told that the evidence must prove “a lewd exhibition or involved a graphic focus on the genitals.” As mentioned above, the statutes and Ohio Jury Instructions go to legitimate, but almost bewildering, lengths to define terms in
{41} There was no request for, or objection to the lack of, such an instruction. Reviewing such a record necessarily under the plain error standard, I cannot find that the result clearly would have been different. State v. Long (1978), 53 Ohio St.2d 91. The testimony was overwhelming that the pictures constituted a “lewd exhibition or involved graphic focus on the genitals,” and it may have been a strategy of defense counsel not to highlight this in jury instructions.
{42} An appellate court is not a ferret and cannot independently scrutinize the record for issues such as the length of the sentence or allied offenses of similar import. I concur in the majority‘s opinion regarding the assigned errors.
. . . . . . . . . .
GRADY, P.J., dissenting:
{43} The question presented is whether counts four and five of the indictment charging violations of
{44} In State v. Ross (1967), 12 Ohio St.2d 37, the Supreme Court held:
{45} “Where a criminal statute does not clearly make a certain specific intent an element of the offense, but judicial interpretation has made such intent a necessary element, an indictment charging the offense solely in the language of thе statute is insufficient. (Sections 2941.05 and 2905.34, Revised Code.)”
{46} The defendant in Ross was charged with a violation of former
{47} Ross held that an indictment charging a violation of
{48} ““The general rule that an indictment or information for a statutory offense is sufficient if the offense is charged in the words of the statute, either literally or substantially, or in equivalent words, does not apply when the statutory words do not in themselves fully, directly, and expressly, without uncertainty or ambiguity, set forth all the elements and
ingredients necessary to constitute the offense intended to be punished. * * *’ {49} “This exception is not surprising, as it is the logical result of cases requiring every element of a crime to be alleged for an indictment to be sufficient. Harris v. State, 125 Ohio St.257, 181 N.E. 104, paragraph four of the syllabus.” Ross at 38-39, quoting 4 Wharton‘s Criminal law and Procedure, 626.
{50} More recently, in State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, the Supreme Court held: “An indictment that charges an offense by tracking the language of the statute is not defective for failure to idеntify a culpable mental state when the statute itself fails to specify a culpable mental state.” Paragraph one, Syllabus by the Court.
{51} The defendant in Horner was convicted of two counts of aggravated robbery.
{52} Clearly, Horner does not speak to the issue decided in Ross. Neither did Horner overrule Ross. Instead, Horner was largely concernеd with clarifying the confusion created by the holdings in State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, and State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, which Horner called “a boon to defendants, a headache to appellate courts, and a nightmare to prosecutors.” Id., at ¶44, quoting State v. Lester, 123 Ohio St.3d 396, 2009-Ohio-4225, at ¶35. (Lanzinger, J., concurring in judgment only.) Therefore, Ross remains good law.
{53} Ross held that, absent the judicial limitation it imposed, an indictment charging a violation of
{54} “The material and essential facts constituting an offense are found by the presentment of the grand jury; and if one of the vital and material elements identifying and characterizing the crime has been omitted from the indictment such defective indictment is insufficient to charge an offense, and cannot be cured by the court, as such a procedure would not only violate the constitutional rights of the accused, but would allow the court to convict him on an indictment essentially different from that found by the grand jury.” Id., at 264.
{55} That reference in Harris is to
{56} The grand jury clause of
{57} “[T]he grand-jury requirement found in
{58} In State v. Moss (April 14, 2000), Hamilton App. No. C-990631, the First District wrote that Young “judicially engrafted” the Ferber elements onto
{59} These views recite a point with which every judge and judicial candidate is familiar: courts don‘t make laws; that‘s a function reserved to the legislative branch, and
{60} When a court limits the application of a statute, as the courts did in Ross and Young, the court is not making law. The court is merely limiting the application of a law the legislative branch enacted in order to avoid striking the law down as unconstitutional. For example, because
{61} Finally, the view expressed in Moss and O‘Connor reflects the way in which those сases proceeded. Both involved no contest pleas and challenges on appeal to the sufficiency or manifest weight of the evidence. Neither involved a
{62} I would find that the trial court erred when it denied Defendant‘s motion to dismiss the indictment, because by charging the offense in the terms of
(Hon. James A. Brogan, retired from the Second District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Mathias H. Heck
R. Lynn Nothstine
Robert E. Searfoss, III
Hon. Barbara P. Gorman