[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Martin, Slip Opinion No. 2016-Ohio-7196.]

NOTICE This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of De cisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O . 2016-O HIO -7196

T HE S TATE OF O HIO , A PPELLEE , v. M ARTIN , A PPELLANT . [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Martin, Slip Opinion No. 2016-Ohio-7196.] Criminal law—R.C. 2907.323(A)(1)—Definition of “nudity” set forth in R.C. 2907.01(H) applies to statute prohibiting creation of child-nudity-oriented material—Court of appeals’ judgment affirmed. (No. 2014-2028—Submitted October 27, 2015—Decided October 5, 2016.)

C ERTIFIED by the Court of Appeals for Montgomery County, No. 26033, 2014-Ohio-3640.

_______________________ P FEIFER , J.

B ACKGROUND {¶ 1} On March 18, 2012, appellant, Terr y Lee Martin, surreptitiously recorded video of an 11-year-old female while she was undressed in a bathroom.

Martin was indicted for two felonies: cr eating nudity-oriented material involving a minor, R.C. 2907.323(A)(1), and possession of criminal tools, R.C. 2923.24(A).S UPREME C OURT OF O HIO

2 {¶ 2} The parties stipulated that Martin recorded the video, that the person in the video is a minor, that the recordin g was not “for a bona fide artistic, medical, scientific, educational, re ligious, governmental, judici al, or other proper purpose,” R.C. 2907.323(A)(1)(a), and that the girl’s parents had not consented in writing to the creation of the video, see R.C. 2907.323(A)(1)(b). Martin waived his right to a jury trial and was found guilty by the tr ial court of both felonies charged. {¶ 3} On appeal, Martin raised one assignment of error—that the trial court had not applied the proper de finition of nudity in convic ting him of violating R.C. 2907.323(A)(1). The court of appeals af firmed the conviction, 2014-Ohio-3640, 18 N.E.3d 799, and certified that its judgme nt was in conflict with a judgment of the Fourth District Court of Appeal s, 2d Dist. Montgomery No. 26033 (Nov. 9, 2014), citing State v. Graves , 184 Ohio App.3d 39, 2009-Ohio-974, 919 N.E.2d 753, ¶ 9 (applying definition of nudity set forth in State v. Young , 37 Ohio St.3d 249, 525 N.E.2d 1363 (1988), to R.C. 2907.323(A)(1)). We declined to accept jurisdiction over Martin’s discretionary appeal, 141 Ohio St.3d 1457, 2015-Ohio239, 23 N.E.3d 1198; however, we determined that a conflict exists and ordered the parties to brief the following issue:

“With respect to R.C. 2907.323(A)(1), which proscribes the creation or production of nudity-o riented material involving a minor, which definition of nudity a pplies: the statutory definition (R.C. 2907.01(H)), or the narrower definition set forth in State v. Young , 37 Ohio St.3d 249, 525 N.E.2d 1363, which requires additional elements of ‘lewd depi ction’ and ‘graphic focus on the genitals?’ ”

141 Ohio St.3d 1452, 2015-Ohio-239, 23 N.E.3d 1194, quoting 2d Dist. Montgomery No. 26033, at 6.January Term, 2016

3 {¶ 4} For the reasons explained below, we conclude that the statutory definition applies, and we therefore affirm the judgment of the court of appeals.

A NALYSIS {¶ 5} R.C. 2907.323 is entitled “Illegal use of a minor in nudity-oriented material or performance.” R.C. 2907.323(A)(1) provides:

(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 show s the minor in a state of nudity, unless both of the following apply: (a) The material or performance is, or is to be, sold, disseminated, displayed, possessed, c ontrolled, brought or caused to be brought into this state, or presented for a bona fide artistic, medical, scientific, educ ational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuin g bona fide studies or research, librarian, member of the clergy, pr osecutor, judge, or other person having a proper interest in the material or performance; (b) The minor’s parents, guardi an, 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.

{¶ 6} As stated above, the parties stipul ated to facts that eliminate the possibility that the exception created by subsections (a) and (b) applies. To wit, the recording was not made for a proper purpose and was not made with the consent ofS UPREME C OURT OF O HIO

4 the minor’s parents. The only issue for re view is the certified question, essentially: which definition of nudity a pplies to R.C. 2907.323(A)(1). {¶ 7} R.C. 2907.01 provides:

As used in sections 2907.01 to 2907.38 of the Revised Code:

* * * (H) “Nudity” means 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.

{¶ 8} Martin argues for the definition enunciated in Young , 37 Ohio St.3d at 252, 525 N.E.2d 1363, which is markedly narrower than R.C. 2907.01(H). In Young , this court analyzed R.C. 2907.323(A)(3), which—then and now—prohibits possession of materials of the same nature as those described in R.C. 2907.323(A)(1), subject to essentially the sa me exception. We concluded that the statute does not prohibit the possession of ma terials that depict mere nudity, which is expression protected by the First Amendment. Young at 251, citing New York v.

Ferber , 458 U.S. 747, 765, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), fn. 18. Instead, we concluded that R.C. 2907.323(A)(3) pr ohibits possession of materials that depict nudity that “constitutes a lewd exhi bition or involves a graphic focus on the genitals.” Young at 252. {¶ 9} Martin argues that the state of nudi ty recorded in this case does not satisfy the definition of nudity set forth in Young . We agree in that the video is not lewd or focused on the genitals. But Martin also contends that because the Young definition is not met in this case, he cannot be convicted of violating R.C. 2907.323(A)(1). We disagree.January Term, 2016

5 A. Pornography and child-oriented nudity {¶ 10} “States have broad powers to regulate distribution of obscene material, but not the private possession of it in one’s home.” State v. Tooley , 114 Ohio St.3d 366, 2007-Ohio-3698, 872 N.E.2d 894, ¶ 9, citing Stanley v. Georgia
, 394 U.S. 557, 567-568, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). In Stanley , the United States Supreme Court stated that the “right to receive information and ideas, regardless of their social worth * * * is fundamental to our free society.” Stanley at 564. Nevertheless, Stanley does not protect purveyors or possessors of child pornography. State v. Meadows , 28 Ohio St.3d 43, 46, 503 N.E.2d 697 (1986);

Osborne v. Ohio , 495 U.S. 103, 110, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). {¶ 11} Pornography is commonly defined to mean “ ‘a depiction (as in writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement.’ ” Miller v. California , 413 U.S. 15, 18, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), fn. 2, quoting Webster’s Third New International Dictionary 1767 (1986). See also Black’s Law Dictionary 1349 (10th Ed.2014) (defining pornography as “[m]at erial (such as writings, photographs, or movies) depicting sexual activity or erotic behavior in a way that is designed to arouse sexual excitement”). The state has not argued or in any way suggested that the child-nudity-oriented material at issue in this case is pornography. {¶ 12} This case revolves around R.C. 2907.323(A)(1), which prohibits the creation of child-nudity-oriented material , whether or not pornographic. We

consider the difference between child -nudity-oriented material and child pornography a matter of degree, not of kind. All the state interests that apply to eliminating child pornography apply to e liminating child-nudity-oriented material. Even if child-nudity-oriented material is less harmful to the child depicted than child pornography, it is undeniably harmful. Even if child-nudity-oriented material is less exploitative of a child than child pornography, it is undeniably exploitative. Similarly, child-nudity-oriented material le aves a permanent record that can hauntS UPREME C OURT OF O HIO

6 a child into adulthood and provides an economic incentive to its purveyors and

possessors. {¶ 13} Therefore, it is essential to consider various important and legitimate state objectives that are served by decreasing or eradicating child pornography, including:

 protecting the “physiological, emotiona l and mental health” of children,

Ferber , 458 U.S. at 758, 102 S.Ct. 3348, 73 L.Ed.2d 1113;

 preventing exploitation of children, because the distribution of child pornography is “intrinsically related to the sexual abuse of children,” id. at 759;

 preventing a permanent record of an abused or exploited child, id. ; and

 lessening the economic incentives for those who would produce child pornography, Meadows , 28 Ohio St.3d at 49, 503 N.E.2d 697. {¶ 14} Some of these interests might be sufficient standing alone to outweigh the “exceedingly modest, if not de minimis ” interest in possessing child pornography. Ferber at 762. Regardless, it is indisputable that when considered collectively, these interests far outweigh an individual’s interest in possessing child pornography. {¶ 15} Martin did not merely possess ch ild-nudity-oriented material—he

created it. Young addressed R.C. 2907.323(A)(3), wh ich prohibits the possession of material that shows a minor in a state of nudity. Young , 37 Ohio St.3d at 251, 525 N.E.2d 1363. Martin was not charged with possessing material that shows a minor in a state of nudity, which imp licates First Amendment interests, id. ; see Osborne , 495 U.S. at 113-114, 110 S.Ct. 1691, 109 L.Ed.2d 98. Martin was charged with creating a video that shows a minor in a state of nudity. Whatever liberty interest Martin has in creating such material, it is entitled to even lessJanuary Term, 2016

7 protection than the “exceedingly modest” interest in mere possession of such

material. {¶ 16} We are not aware of any court in the country that has concluded that a person has the right, fundamental or ot herwise, to create nudity-oriented material using someone else’s minor child unless it is for a proper purpose and is done with parental consent. The creation of materi al depicting a nude minor is prohibited by R.C. 2907.323(A)(1), not R.C. 2907.323(A)(3). Given the state interests served by prohibiting the possession of child-nudity-orien ted material, it is inconceivable that

we would not conclude that the same interests justify a prohibition on creating child-nudity-oriented material.

B. Young versus R.C. 2907.01(H) {¶ 17} Given the purpose of R.C. 2907.323(A)(1)—preventing the creation of child-nudity-oriented material and th e state interests served thereby—as compared to an individual’s negligible interest in creating such material—it is obvious that the nudity proscribed by R.C. 2907.323(A)(1) is not the more narrow lewdness nudity defined in Young . Rather, it is readily apparent that the nudity that R.C. 2907.323(A)(1) refers to is nudity as defined in R.C. 2907.01(H).

C ONCLUSION {¶ 18} The certified question requires a simple either/or answer; we answer unequivocally that with respect to R.C. 2907.323(A)(1), the definition of nudity that applies is provi ded by R.C. 2907.01(H). Judgment affirmed.

O’C ONNOR , C.J., and O’D ONNELL , K ENNEDY , and F RENCH , JJ., concur.

L ANZINGER , J., dissents, with an opinion.

O’N EILL , J., dissents, with an opinion.

_________________S UPREME C OURT OF O HIO

8 L ANZINGER , J., dissenting. {¶ 19} I respectfully dissent. In State v. Young , 37 Ohio St.3d 249, 525 N.E.2d 1363 (1988), we construed R. C. 2907.323(A)(3), which prohibits possession of nudity-oriented materials involvi ng a minor, to reach only nudity that

either constitutes a lewd exhibition or i nvolves a graphic focus on the genitals. Young at 252. There, we read the statute to focus on child pornography, and we avoided penalizing persons for viewing or possessing innocuous photographs of naked children. The United States Supr eme Court agreed that under this interpretation, the statute did not violate the First Amendment. Osborne v. Ohio
, 495 U.S. 103, 112-114, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). {¶ 20} Although this case does not directly present a constitutional challenge to R.C. 2907.323(A)(1), which prohibits creation of nudity-oriented materials or performances involving a chil d, overbreadth in application still is a concern. And we are to avoid a particular statutory interpretation if it would raise serious constitutional problems. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council , 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988). {¶ 21} I believe that we must apply Young ’s statutory interpretation of “nudity” to R.C. 2907.323(A)(1), effectively limiting the definition found in R.C. 2907.01(H), for the reasons stated in Justice O’Neill’s dissent.

_________________ O’N EILL , J., dissenting. {¶ 22} Respectfully, I must dissent. {¶ 23} I do not agree that this court should treat creation of child-nudityoriented photography any differently than possession of it. In State v. Young , 37 Ohio St.3d 249, 525 N.E.2d 1363 (1988), we app lied the rule that “ ‘nudity, without more is protected expression * * *,’ even where the subject depicted is a child.” (Ellipsis sic.) Id. at 251, quoting New York v. Ferber , 458 U.S. 747, 765, 102 S.Ct.January Term, 2016

9 3348, 73 L.Ed.2d 1113 (1982), fn. 18. I do not believe that the majority sufficiently justifies departing from that rule when the state prosecutes a defendant who created child-nudity-oriented material given that we are bound by that rule when the state prosecutes the individuals w ho later possess the material. Would this court have allowed Michelangelo to be imprisoned for carving a nude teenage David from marble yet stood by while the patrons of the Galleria dell’Accademia di Firenze went unpunished? {¶ 24} State v. Young provides us with the legal construct that I believe we

must follow. In Young , we considered language in R.C. 2907.323(A)(3) that is essentially identical to the language in R.C. 2907.323(A)(1). We held that while the statute did “not expressly limit the prohib ited state of nudity to a lewd exhibition or a graphic focus on the genitals,” the “proper purposes” exception evinced an intent to limit the scope of the prohib ition against possession of child-nudityoriented material to content that may be constitutionally proscribed:

The clear purpose of these exceptions * * * 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 desc ribed 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.) Young at 251-252. {¶ 25} Although we did not explicitly say so at the time, I believe that we construed R.C. 2907.323(A)(3) in this way in order to avoid a meaning that would be unconstitutional, whether on its face or in its application. See R.C. 1.47(A). InS UPREME C OURT OF O HIO

10 affirming our interpretation of the statute in Young , the United States Supreme Court indicated that by “limiting the statute’s operation” so that it reached only lewd content or a graphic focus on the ge nitals, we “avoided pe nalizing persons for viewing or possessing innocuous photographs of naked children” that fall within the protection of the First Amendment. Osborne v. Ohio , 495 U.S. 103, 113-114, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). See also Ferber at 765, fn. 18. The

alternative definition set forth in R.C. 2907.01(H) reaches well into the realm of constitutionally protected innocuous nudity. By applying the statutory definition, the majority has criminalized phot ographing nude infants absent written parental permission. {¶ 26} In support of this result, the majo rity states that the difference between child-nudity-oriented material and child pornography is “a matter of degree, not of kind.” Majority opinion at ¶ 12. For that reason, the majority holds that “the state interests that apply to eliminating child pornography apply to eliminating child-nudity-o riented material.” Id. And armed with those state interests, the majority blesses the de finition of “nudity” set forth in R.C. 2907.01(H). I disagree with that approach. {¶ 27} It is patently false that photogra phy of a nude child is “undeniably harmful” and “undeniably exploitative” in ev ery context. Majority opinion at ¶ 12. Not every act of photography or depic tion of a nude minor falls on the same spectrum as child pornography. We have already recognized a difference of kind— not degree—between “morally innocent” de pictions of minors in a state of nudity and morally reprehensible prurient depictions. Young , 37 Ohio St.3d at 252, 525 N.E.2d 1363. Indeed, many Ohioans currently possess innocent—or as the United States Supreme Court put it, “innocuous,” Osborne at 113-114—photographs of children in a state of nudity. Uncles, a unts, grandparents, and others take these photographs of their nieces, nephews, and grandchildren. And they do it without parental permission in writing. That R. C. 2907.01(H) cuts so broadly shows that itJanuary Term, 2016

11 cannot withstand constitutional sc rutiny. And as we did in Young when construing R.C. 2907.323(A)(3), we should give a constitutional meaning to the word “nudity” as it is used in R.C. 2907.323(A)(1). {¶ 28} This case is difficult because Mar tin surreptitiously recorded video of a young girl in a way that suggests he hoped to produce lewd and graphic imagery. But the statute in question goes t oo far as to the content it proscribes and not far enough regarding the intent of the individual the state seeks to punish. If R.C. 2907.323(A)(1) were limited to apply to those who seek to create child pornography regardless of the moral value of the materials they do create, then perhaps the state’s interest in decreasing or eradicating child pornography would justify a definition of “nudity” as broa d as the definition set forth in R.C. 2907.01(H). {¶ 29} Respectfully, I dissent.

_________________ Mathias H. Heck Jr., Montgomery C ounty Prosecuting Attorney, and April F. Campbell and Carley J. Ingram, Assistant Prosecuting Attorneys, for appellee. Timothy Young, Ohio Public Defende r, and Valerine Kunze, Assistant Public Defender, for appellant. Michael DeWine, Attorney General, and Eric E. Murphy, State Solicitor, urging affirmance for amicus curiae, Ohio Attorney General.

_________________