[Cite as State v. Martin, 2014-Ohio-3640.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 26033
v. : T.C. NO. 13CR2624
TERRY LEE MARTIN, SR. : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 22nd day of August , 2014.
APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
ELIZABETH C. SCOTT, Atty. Reg. No. 0076045, 120 W. Second Street, Suite 603, Dayton, Ohio 45402 Attorney for Defendant-Appellant
FROELICH, P.J.
{¶ 1} Terry Lee Martin, Sr., appeals from a judgment of the Montgomery 2
County Court of Common Pleas, which found him guilty of one count of illegal use of a
minor in nudity-oriented material and one count of possession of criminal tools. Martin
was sentenced to five years and to nine months, respectively, to be served concurrently, for
an aggregate term of five years. He was also designated as a Tier II sex offender.
{¶ 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 R.C. 2907.323(A)(1), and with possession of criminal tools (the iPod), in
violation of R.C. 2923.24(A). He waived his right to a jury trial.
{¶ 6} At trial, the parties’ stipulated to the date and location of the offense, that 3
the victim was 11 years old at the time, that Martin had recorded the victim by use of his
iPod, which was hidden in some towels, and that the victim had not been aware of the device
or that she was being recorded. They also stipulated that the video was not “for a bona fide
artistic, medical, scientific, educational, religious, governmental, judicial, or other proper
purpose” and that the victim’s parents had not consented in writing to the creation of the
video. R.C. 2907.323(A)(1)(a) and (b). The only evidence presented at trial was the video
recording and the list of the stipulations; the parties agreed that “we’re not really here to
determine [any] factual issue but rather a legal issue.” The legal dispute focused on whether
the victim was shown in a state of nudity, as that term is used in R.C. 2907.323(A)(1) and as
defined in R.C. 2907.01(H) and State v. Young, 37 Ohio St.3d 249, 525 N.E.2d 1363 (1988).
{¶ 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 R.C. 2907.323(A)(1), is defined as follows: “No person shall * * *
[p]hotograph 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 4
nudity,” unless the material is to be used “for a bona fide artistic, medical, scientific,
educational, religious, governmental, judicial, or other proper purpose” and by an
appropriate person, and the minor’s parents, guardian, or custodian consents in writing to the
photographing of the minor, to the use of the minor in the material or performance, or to the
transfer of the material and to the specific manner in which the material or performance is to
be used. (Emphasis added.) Similarly, R.C. 2907.323(A)(3), which is not at issue in this
case, prohibits the possession or viewing of any material or performance of a child who is
not the person’s child or ward in a state of nudity, subject to the same exceptions.
(Emphasis added.)
{¶ 10} R.C. 2907.01(H) defines nudity as “the showing, representation, or
depiction of human male or female genitals, pubic area, or buttocks with less than a full,
opaque covering, or of a female breast with less than a full, opaque covering of any portion
thereof below the top of the nipple, or of covered male genitals in a discernibly turgid state.”
{¶ 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 5
Ferber upheld prohibitions of even the private possession of child pornography out of
concern for the minor children involved and recognition of the State’s interest in eradicating
child sexual abuse. Osborne at 109-111; Ferber at 764; see also State v. Dalton, 153 Ohio
App.3d 286, 2003-Ohio-3813, 793 N.E.2d 509, ¶ 23 (10th Dist.). The Ohio Supreme Court
has also held that prohibitions against the private possession of child pornography are
constitutional. State v. Meadows, 28 Ohio St.3d 43, 51, 503 N.E.2d 697, syllabus (1986).
{¶ 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 R.C. 2907.01(H), but that the nudity was not lewd or
did not include any graphic focus on the genitals.
{¶ 13} Young and Osborne address R.C. 2907.323(A)(3), which deals with the
possession or viewing of child nudity-oriented material, rather than the creation or
production of child nudity-oriented material, as charged in this case and addressed in R.C.
2907.323(A)(1). Those cases responded to arguments that the use of the term “nudity” in
R.C. 2907.323(A)(3) was overbroad and violated the Constitution by unconstitutionally
encompassing morally innocent behavior as well as lewd behavior. See Osborne at 112;
Young at 251-252. In response to such concerns, the Ohio Supreme Court in Young
interpreted the “proper purposes” exceptions set forth in R.C. 2907.323(A)(3)(a) (medical,
scientific, judicial purpose, etc.) and (b) (parental consent) to narrow the offense and to
exclude “conduct that is morally innocent.” Young at 251-252. “Thus, the only conduct 6
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.” (Emphasis sic.) Id. In
Ferber, the U.S. Supreme Court required that prohibited conduct in the “sensitive area” of
child pornogrpahy be “adequately defined by the applicable state law, as written or
authoritatively construed.” (Emphasis added in Young.) Id. at 252, quoting Ferber at 764.
Accordingly, the Ohio Supreme Court in Young construed R.C. 2907.323(A)(3) to prohibit
“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.”
(Emphasis added.) Young at 252.
{¶ 14} The U.S. Supreme Court agreed that, as interpreted by the Ohio Supreme
Court in Young, R.C. 2907.323(A)(3) did not violate the First Amendment and was not
overbroad. Osborne at 107-111.
{¶ 15} Martin argues that the more narrow definition of nudity applied in Young
and approved in Osborne also applies to R.C. 2907.323(A)(1), where the creation or
production of nudity-oriented material is at issue. He further argues that, although the
recording he made contained nudity of a minor, it did not depict a lewd exhibition or involve
graphic focus on the genitals of the minor, and therefore he should not have been found
guilty of illegal use of a minor in nudity-oriented material in violation of R.C.
2907.323(A)(1). 7
{¶ 16} We acknowledge that, in two prior cases from this district cited by the
State, this court has implicitly accepted the applicability of the “lewd exhibition” or “graphic
focus on the genitals” definition of nudity in a case involving R.C. 2907.323(A)(1). See
State v. Stoner, 2d Dist. Miami No. 2003 CA 6, 2003-Ohio-5745; State v. Powell, 2d Dist.
Montgomery No. 18095, 2000 WL 1838716 (Dec. 15, 2000). In Stoner, the
defendant-appellant’s argument accepted that lewdness had to be shown and we affirmed the
trial court’s finding of “a lewd exhibition” without any discussion of Young. In Powell, we
affirmed the trial court’s finding, when addressing the sufficiency of the evidence, that
reasonable minds could find a lewd exhibition in the victim’s raising of her buttocks to the
camera. Our opinion mentioned Young (as had the trial court), but we did not discuss the fact
that Young dealt with a different subsection of the statute defining illegal use of a minor in
nudity-oriented material or the cases’ different postures with respect to First Amendment
interests. Insofar as neither Stoner nor Powell contained a detailed discussion of Young or
acknowledged that the holding in Young involved a different subsection of R.C.
2907.323(A), they do not compel our application of Young’s narrow definition of nudity to
R.C. 2907.323(A)(1) in Martin’s case.
{¶ 17} Other Ohio courts have split on the question of whether the definition of
“nudity” set forth in Young applies to R.C. 2907.323(A)(1), as well as to R.C.
2907.323(A)(3). Several cases have addressed the issue in terms of whether the narrowed
“lewd exhibition” and “graphic focus on genitals” definition of nudity constitutes an element
of the offense which must be included in an indictment. The Fourth Appellate District has
concluded that there is “no difference” between subsections R.C. 2907.323(A)(1) and (3) 8
with respect to the definition of “nudity,” that the “lewd exhibition” or “graphic focus on the
genitals” interpretation applies equally to both subsections, and that such language must be
included in an indictment charging an offense under either section. State v. Graves, 184
Ohio App.3d 39, 2009-Ohio-974, 919 N.E.2d 753, ¶ 9 (4th Dist.). See also State v. Moss,
1st Dist. Hamilton No. C-990631, 2000 WL 376434 (Apr. 14, 2000). The Twelfth District,
on the other hand, has rejected the argument that the “judicially engrafted element” (the
more narrow definition of nudity set forth in Young) must be included in an indictment; it
concluded that the statutory language was sufficient to charge an offense under R.C.
2907.323(A)(1) and that the narrower definition did not apply to R.C. 2907.323(A)(1).
State v. O’Connor, 12th Dist. Butler No. CA2001-08-195, 2002-Ohio-4122, ¶ 28-30.
O’Connor held that, “[w]hile Osborne may limit the proof of ‘a state of nudity’ to lewdness
or graphic focus on the genitals, in order to meet a constitutional objective, it does not alter
the elements of R.C. 2907.323(A)(1).” Id. at ¶ 31.
{¶ 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 R.C. 2907.323(A)(1) involving use of a
minor in the creation or production of nudity-oriented material, the State must prove at trial
that the nudity was a “lewd exhibition” or included “graphic focus on the genitals.”
{¶ 19} In our view, the difference between possession/viewing and
creation/production of nudity-oriented material involving a minor, without parental consent, 9
is significant. Creation/production, because it involves direct contact with a minor and the
creation of child nudity material, involves different State and personal interests and is not
entitled to the same First Amendment protection. The dissent in Graves aptly describes the
distinction:
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 under R.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 10
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 nude 11
photographs 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, R.C. 2907.323(A)(1) involves photographing, recording, or
transferring a material or performance involving a nude child; when such a case is compared
to a case in which only possession of a picture of a nude child is at issue, the First
Amendment concerns are less compelling. Thus, R.C. 2907.323(A)(1) does not present the
need for a narrower construction of the term “nudity” that R.C. 2907.323(A)(3) arguably
does.
{¶ 21} Nudity is statutorily defined, and, with respect to R.C. 2907.323(A)(1),
there is no constitutional interest that requires a more narrow construction of the statutory
term. Thus, the statutory definition should be applied, and we reject Martin’s argument that
the definition of nudity set forth in Young is applicable to R.C. 2907.323(A)(1). The
statutory definition does not require that the nudity be shown to be a lewd exhibition or that
it involve graphic depiction of the genitals. R.C. 2907.01(H). The statutory definition
requires “the showing, representation, or depiction of human male or female genitals, pubic
area, or buttocks with less than a full, opaque covering, or of a female breast with less than a
full, opaque covering of any portion thereof below the top of the nipple * * *.” The nudity
depicted in Martin’s recording, which depicted the victim’s breasts, pubic area, and buttocks, 12
satisfied the statutory definition of nudity.
{¶ 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
1 It is, no doubt, definitions such as these that occasioned Justice Stewart’s famous aphorism about obscenity, “I know it when I see it.” See Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring). 13
focus on the genitals. State v. Kerrigan, 168 Ohio App.3d 455, 2006-Ohio-4279, 860
N.E.2d 816, ¶ 22 (2d Dist.). Therefore, Martin’s motivations are not relevant. We need
not reach the issue whether the video was lewd, since we hold that this does not have to be
proved for a conviction of R.C. 2907.323(A)(1).
{¶ 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. R.C. 2907.08(B) (voyeurism) provides that “[n]o person, for the purpose of sexually
arousing or gratifying the person’s self, shall commit trespass or otherwise surreptitiously
invade the privacy of another to videotape, file, photograph, or otherwise record the other
person in a state of nudity.” The same statutory definition of nudity applies to this section.
Voyeurism in violation of R.C. 2907.08(B) is a misdemeanor of the second degree, whereas
illegal use of a minor in nudity-oriented material in violation of R.C. 2907.323(A)(1) is a
felony of the second degree, and voyeurism is not a lesser included offense. See Stoner, 2d
Dist. Miami No. 2003-CA-6, 2003-Ohio-5745, ¶ 25.
{¶ 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
2 In this context, we assume the nudity is not obscene under R.C. 2907.322 or lewd under R.C. 2907.323(A)(3). 14
a nude minor more severely, regardless of the purpose of the offender or the lewdness of the
subject.
{¶ 27} The assignment of error is overruled.
{¶ 28} The judgment of the trial court will be affirmed.
FAIN, J. and HALL, J., concur.
Copies mailed to:
April F. Campbell Elizabeth C. Scott Hon. Frances E. McGee