[Cite as State v. Sullivan, 2011-Ohio-2976.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 23948 Plaintiff-Appellee : : Trial Court Case No. 09-CR-667 v. : : (Criminal Appeal from TERRENCE S. SULLIVAN : (Common Pleas Court) : Defendant-Appellant : : ...........
OPINION
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 a minor, one count of endangering children, and
two counts of illegal use of a minor in nudity oriented material or performance. Sullivan was 2
convicted after a jury trial and was sentenced to twenty-five years in prison.
{¶ 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 laptop 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 admitted 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 3
counts should have been dismissed because the indictment did not allege that the minor’s
“state of nudity” constituted “a lewd exhibition or involved a graphic focus on the genitals.”
{¶ 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 R.C. 2907.323(A)(3) because
he claimed the statute violated the constitutional prohibition against vagueness and
overbreadth. R.C. 2907.323(A)(3) provides as follows:
{¶ 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, 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, 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 4
court’s opinion:
{¶ 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
that ‘ * * * 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 in R.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 5
Court of Appeals held the counts in an indictment that alleged use of a minor in
nudity-oriented material, but failed to include language that nudity was a lewd exhibition or a
graphic focus on the genitals, failed to set forth a punishable offense. See also, State v. Moss
(April 14, 2000), Hamilton App. No. C-990631.
{¶ 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 R.C. 2907.323(A)(1) because the indictment failed to
allege that the nudity involved lewdness or graphic focus on the genitals. In explaining its
decision, the court of appeals noted that State v. Young, supra, limited the operation of R.C.
2907.323(A) to nudity that involves lewdness or graphic focus on the genitals to avoid
penalizing the viewing or possessing of innocuous photos of naked children, thereby allowing
the statute to survive constitutional scrutiny. O’Connor, at ¶29. However, the O’Connor
court specifically rejected the notion that the Ohio Supreme Court “judicially engrafted” an
element onto R.C. 2907.323, as only the legislature has the power to enact additional elements
to the offense. O’Connor, at ¶30, citing R.C. 2901.03(A). In short, the court in O’Connor
held the Young and Osborne cases do not “alter the elements of R.C. 2907.323(A)(1).”
O’Connor, at ¶31.
{¶ 17} Crim.R. 7(B) provides in pertinent part that the indictment shall contain a
statement that may be in the words of the applicable section of the statute, provided the words
of the statute charge an offense, or in words sufficient to give the defendant notice of all the
elements of the offense with which the defendant is charged.
{¶ 18} The State urges us to reject the rationale of Graves and to hold that the 6
indictment charging Sullivan with violations of R.C. 2907.323(A)(1) and (A)(3) is sufficient if
the indictment tracks the language of the statute. The State argues that while lewdness or
graphic focus on the genitals is part of the definition of “state of nudity,” it is not a separate
element of the offense that must be alleged in the indictment.
{¶ 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 R.C.
2907.323(A). The Fourth District held that lewdness is a necessary element of nudity. State
v. Walker (1999), 134 Ohio App.3d 89, 94-95. Neither Kerrigan nor Walker alleged that their
indictments were fatally defective. They both alleged that the State had failed to prove their
guilt pursuant to R.C. 2907.323(A)(3) and (A)(1) respectively.
{¶ 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 R.C. 2907.323(A)(3) to avoid First
Amendment issues. The court rejected Osborne’s view that an overbroad statute is void as
written, such that a court may not narrow it, affirm a conviction on the basis of the narrowing
construction, and leave the statute in full force.
{¶ 22} In State v. Moss, supra, Judge Hildebrand weighed in on the issue of whether
R.C. 2907.23(A)(3) required an allegation of lewdness or graphic focus on the genitals in
order to state an offense. He wrote as follows: 7
{¶ 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 disagree.
{¶ 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 8
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 effect 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 R.C.
2907.323(A)(1) and (A)(3). The indictment as worded properly sets forth offenses under
Ohio law and satisfied Crim.R. 7(B). The trial court properly overruled Sullivan’s motion to
dismiss the indictment.
{¶ 28} In his second assignment, Sullivan contends the trial court erred in denying his
Crim.R. 29 motions as to Count Two which he made at the conclusion of the State’s case and
at the conclusion of the evidence.
{¶ 29} R.C. 2907.322(A)(1) provides as follows:
{¶ 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 Rule 29 motions, commented that because
Sullivan admitted to downloading the video from the website of Tokio Hotel, that the motion 9
was overruled. Sullivan argues that the only colorable argument that he violated division
(A)(1) is that by downloading the video he actually “reproduced it.” Sullivan argues that the
only admission he made to Detective Meade was he “stole the video back from the website.”
(Tr. 349.)
{¶ 32} The State, for its part, argues the trial court properly overruled Sullivan’s
Crim.R. 29 motions because the evidence established that Sullivan stole the video image from
the Tokio Hotel website and it was found on his flash card along with his laptop computer.
The State argues the jury could reasonably conclude Sullivan had “reproduced” the video by
downloading it on a flash card.
{¶ 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 reproduced for purposes of R.C. 2907.322(A)(1). State v. Huffman, 165 Ohio
App.3d 518, 2006-Ohio-1106.
{¶ 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.
............. 10
FROELICH, J., concurring separately:
{¶ 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 informs 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 R.C.
2901.01(A)(11)(m) which includes in the definition of law enforcement officer “a special
police officer employed by a municipal corporation at a municipal airport or other municipal
air navigation facility, that has scheduled operations, as defined in Section 119.3 of Title 14 of
the Code of Federal Regulations, 14 C.F.R. 119.3, as amended, and that is required to be 11
under a security program and is governed by aviation security rules of the transportation
security administration of the United States department of transportation as provided in Parts
1542. and 1544. of Title 49 of the Code of Federal Regulations, as amended.” Or the
definition of “computer contaminant” contained in R.C. 2909.01(F) which will not be
reproduced here for lack of space. None of this language needs to be included in the
indictment.
{¶ 38} Normally, absent the demonstration of a particularized need, we presume 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 12
order to ensure the finders of fact are following the same rules, and finding the same facts, but
the jury here was not given that guidance.
{¶ 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 R.C. 2907.323(A)(1), which prohibits photographing a minor who is
not the offender’s child in a state of nudity or having or transferring performance materials
depicting the minor in a state of nudity, are sufficient to charge that offense absent the judicial
limitation imposed in State v. Young (1988), 37 Ohio St.3d 249. Young, relying on New York
v. Ferber (1982), 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113, limited application of R.C.
2907.323(A)(1) to the conduct prohibited by that section “where such nudity constitutes a
lewd exhibition or a graphic focus on the genitals.” Young, at p. 252. Young imposed that 13
judicial limitation in order to save R.C. 2907.323(A)(1) from unconstitutionality, per Ferber.
{¶ 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 the statute is insufficient. (Sections
2941.05 and 2905.34, Revised Code.)”
{¶ 46} The defendant in Ross was charged with a violation of former R.C. 2905.34,
which by its terms provided that “[n]o person shall knowingly . . . have in his possession or
under his control an obscene, lewd, or lascivious . . . photograph . . .” State v. Jacobellis
(1962), 173 Ohio St. 22, previously held that the crime defined by R.C. 2905.34 was not to
knowingly possess or control obscene material, but rather to do it with the guilty intention of
using, exhibiting, or selling it wrongfully. Ross observed that “[t]his mens rea requirement
was inferred by reading the language (‘knowingly’) in context with the rest of the statute, and
the motivation behind the inferences was undoubtedly the preservation of language of
otherwise questionable constitutionality.” Ross at 38-39.
{¶ 47} Ross held that an indictment charging a violation of R.C. 2905.34 in the terms
of the statute, omitting any reference to the mens rea requirement imposed by Jacobellis, was
insufficient to charge the crime alleged. The holding in Ross states:
{¶ 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 14
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 identify 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.
R.C. 2911.01(A)(1). That section contains no culpable mental state. Applying the default
provisions of R.C. 2901.21(B), Horner found that R.C. 2911.01(A)(1) is a strict liability
offense. Therefore, because proof of a culpable mental state is not required, it was sufficient
to track the language of the section in order to charge the offense in an indictment. Id., at
¶53.
{¶ 52} Clearly, Horner does not speak to the issue decided in Ross. Neither did
Horner overrule Ross. Instead, Horner was largely concerned 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. 15
{¶ 53} Ross held that, absent the judicial limitation it imposed, an indictment charging
a violation of R.C. 2905.34 was insufficient to put an accused on notice of the criminal
liability he faces, which is required by due process. Ross cited Harris v. State (1932), 125
Ohio St.257, in support of that proposition. Harris also made a further observation:
{¶ 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 Section 10, Article I of the Ohio Constitution,
stating that “no person shall be held to answer for a capital or otherwise infamous, crime,
unless on presentment or indictment of a grand jury.” That section applies to felony offenses,
including R.C. 2907.323(A)(3).
{¶ 56} The grand jury clause of Section 10, Article I has been part of the Ohio
Constitution since 1802. It was adopted in its present form in 1851. Grand juries had
existed at common law and were one of the most significant protections against malicious or
untoward prosecutions. State ex rel. Doefler v. Price (1920), 101 Ohio St. 50. Most states
and the federal government use grand juries, although the Fifth Amendment does not require
the states to use them. Branzburg v. Hayes (1972), 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d
626. “In fact, the right to a grand jury is the only right under the Fifth and Sixth Amendments
that the U.S. Supreme Court has not applied to the states, and states are free to initiate 16
criminal prosecutions through other means.” Steinglass and Scarselli, The Ohio State
Constitution, A Reference Guide, Praegar (2004), p. 93.
{¶ 57} “[T]he grand-jury requirement found in Section 10, Article I of the Ohio
Constitution does not merely guarantee notice and guard against double jeopardy. Section 10
also requires a grand jury to consider every element of a charged offense before issuing an
indictment.” State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, at ¶14. (Moyer, C.J.,
dissenting). It guarantees the accused that the essential facts constituting the offense for
which he is tried will be found in the indictment of the grand jury, which reports a finding by
the grand jury. State v. Headley (1983), 6 Ohio St.3d 475. Where, as here, the language of
the statute might also apply to conduct which is non-criminal, an indictment in the terms of
the statute could permit the grand jury to issue an indictment absent any finding of the
particular criminal conduct a violation requires. That, clearly, would violate the purpose
and intent of the grand jury clause in Section 10, Article I.
{¶ 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 R.C.
2907.323(A)(3). Judge Hildebrandt took issue with that view in his dissenting opinion,
stating that “the judiciary would not be empowered to effectuate such a legislative
amendment.” Id., p. 2. The Twelfth District echoed that view in State v. O’Connor, Butler
App. No. CAS2001-08-195, 2002-Ohio-4122, stating, at ¶30: “only the legislature, not the
judiciary, has the power to engraft or enact additional elements to the offense.”
{¶ 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 17
courts can’t exercise that power under any circumstance, ever. That rubric, which is based on
the separation of powers doctrine, is surely correct. But, it doesn’t fit this circumstance.
{¶ 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 R.C. 2907.323(A)(3), as written, offends the First Amendment, which
provides that “no law” abridging freedom of speech may be enacted, the limitation Young
imposed avoids a free speech violation and preserves the statute by removing its
unconstitutional feature. Review of constitutional questions is a judicial function. As a
matter of comity between the branches of government, courts avoid striking down a statute as
unconstitutional when it can be saved by severing the defect or curing the omission that
renders the statute unconstitutional. That’s what the court in Young did. E.g., State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856.
{¶ 61} Finally, the view expressed in Moss and O’Connor reflects the way in which
those cases proceeded. Both involved no contest pleas and challenges on appeal to the
sufficiency or manifest weight of the evidence. Neither involved a Crim.R. 12(C)(2) motion
to dismiss for a defect in the indictment, which the present case does. That motion was
proper, and it presented the legal issues in a clearer light.
{¶ 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 R.C. 2907.323(A)(3),
absent a finding of the particular requirement Young imposes, the indictment fails to allege an
offense. 18
(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