730 N.E.2d 419 | Ohio Ct. App. | 1999
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *91
Scott Walker appeals his conviction for the illegal use of a minor in nudity oriented material in violation of R.C.
The state cross appeals, asserting that the trial court erred in finding that it did not present sufficient evidence that Walker's video was not lewd. Because the state did not file a motion for leave to appeal pursuant to App.R. 5(B), we decline to address the state's assignment of error.
One day, when Tyra's son was between nine and eleven months old, he discovered his genitals for the first time as Tyra changed his diaper. He began grasping his crotch area and laughing. Walker decided to capture the boy's exploration on videotape. However, Walker already had used the videotape in the camera on a separate occasion to shoot footage of Tyra in the nude. Walker labeled the tape containing footage of his nude girlfriend "X-rated: Do Not Watch."
By the time Walker got the video camera to operate, the infant boy's attention had wandered. During the seven minute segment Walker shot of the boy, he and *92 Tyra encouraged the boy's play, using phrases such as "grab your balls" several times. At one point, Tyra held the video camera as Walker reached out and directed the boy's hand toward his crotch. The tape focuses on the boy's genitalia approximately ten times and he is unclothed through the entire seven minute segment. The boy smiles, laughs, and giggles throughout the segment.
Several months later, Tyra's aunt and uncle discovered the videotape and alerted authorities. When confronted about the videotape by police detectives in an uncounseled audio taped interview, Walker denied any perverted or immoral purpose, and stated that his sole purpose in taping the segment was to watch the boy explore and giggle.
The Ross County Grand Jury indicted Walker on one count of endangering children, a violation of R.C.
In a journal entry issued after the trial, the trial court specifically found that the videotape Walker created did not contain a lewd exhibition of a minor in a state of nudity. However, the court also found that, because the videotape focused on the boy's genital area approximately ten times, it contained a graphic focus on a minor's genitals. The court reasoned that State v. Young (1988),
Walker appeals, asserting that Young (a consolidated decision arising from appeals by defendants Young and Osborne) andOsborne v. Ohio (1990),
R.C.
(A) No person shall do any of the following:
(1) Photograph any minor who is not the person's child or ward in a state of nudity, or create, direct, produce, or transfer any material or performance that shows the minor in a state of nudity, unless both of the following apply:
(a) The material or performance is * * * presented for a bona fide artistic, medical, scientific, educational, religious, or other proper purpose * * *.
(b) The minor's parents, guardian, or custodian consents in writing to the photographing of the minor * * *.
* * *
(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:
(a) The material or performance is * * * presented for a bona fide artistic, medical, scientific, educational, religious, or other proper purpose * * *.
(b) The minor's parents, guardian, or custodian consents in writing to the photographing of the minor * * *.
In Young, the court held that R.C.
Osborne appealed the Ohio Supreme Court's finding that R.C.
The state asserts that, because the Young court used the word "or" in its syllabus, and because the United States Supreme Court did not overrule Young, the state can support a conviction with evidence of either lewdness or a graphic portrayal. We recognize that the legal precedent arising from an Ohio Supreme Court case comes from the court's syllabus. However, we also recognize that the opinion of the court provides crucial guidance on interpreting the intent of the court in writing the syllabus. Moreover, in Osborne, the United States Supreme Court relied heavily on the rationale articulated in Young to uphold the Young court's ruling that R.C.
The rationale articulated in Young and Osborne reflects that both courts view R.C.
Based upon the rationale articulated by the supreme courts of the United States and Ohio, we find that lewdness is a necessary element of nudity under R.C.
Accordingly, we sustain Walker's assignment of error.
Accordingly, we decline to address the state's assignment of error.
Therefore, we sustain Walker's assignment of error. We decline to address the state's assignment of error. Accordingly, we remand this case to the trial court to enter a judgment of acquittal on the charge against Walker.
JUDGMENT REVERSED.
Dissenting Opinion
Because I cannot convince myself to reverse a trial court which adheres to S.Ct.R.Rep. 1(B) and follows the literal wording of a syllabus of the Supreme Court of Ohio, I reluctantly dissent. The first syllabus paragraph inYoung, supra, is unambiguously stated in the disjunctive, and thus creates two separate standards by which to determine whether a depiction of a child's nudity is a criminal act, i.e. "when such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals." (emphasis supplied.) Notwithstanding the Supreme Court's confusing use of language in the body of the opinion that seems to mix and match the two standards, see Justice Brennan's dissent in Osborne, supra, the rule of law is pronounced in the syllabus. S.Ct.R.Rep.Op. 1(B). Just as lower courts are not permitted to pronounce the syllabus to be obiter dictim, see *96 State ex rel. Heck v. Kessler (1995),
Likewise, principles of federalism prevent the Supreme Court of the United States from modifying syllabus law pronounced by their state counterpart in Ohio. While the U.S. Supreme Court clearly is the final arbiter of the federal constitution, it is not free to interpret a state court's unambiguous pronouncement of black letter law. Shuttlesworth v. Birmingham (1965),
Thus, while I readily agree with my colleagues and the text of Young that R.C.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as the date of this Entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Evans, J.: Concurs in Judgment and Opinion.
Harsha, J.: Dissents with Attached Dissenting Opinion.