[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 :

:

. . . . . . . . . . O P I N I O N

Rendered on the 22nd day of August , 2014.

. . . . . . . . . . APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney, 301 W. Third Street, 5 th 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 Montgomery2 County Court of Common Pleas, which found him guilty of one count of illegal use of a minor in nudity-oriented materi al 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 w ill 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 th e video, Martin talked with the girl as she entered the bathroom, complimented her appear ance, 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 undresse d in preparation for a shower. Her breasts, pubic area,

and buttocks were visible in the video as she undressed before the show er 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 po ssession of criminal tools (the iPod), in violation of R.C. 2923.24(A). He waiv ed his right to a jury trial. {¶ 6} At trial, the parties’ stipulated to the date and location of the offense, that3 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 to wels, and that the victim had not been aware of the device or that she was being recorded. They also sti pulated that the video wa s not “for a bona fide artistic, medical, scientific, educational, relig ious, governmental, judi cial, 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 th at 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 be nch trial, and he was sentenced as

described above. {¶ 8} Martin appeals from his conviction, ra ising one assignment of error, in

which he contends that his convi ction was contrary to law becau se, 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 c onvicting Martin, the trial cour t did not specifically discuss the definition of nudity that it applied. Mar tin does not raise any argument regarding his conviction for possession of criminal t ools 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 defi ned 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 of4 nudity,” unless the material is to be used “for a bona fide artistic , medical, scientific, educational, religious, gove rnmental, judicial, or othe r proper purpose” and by an appropriate person, and the minor’s parents, guardian, or custodi an 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 fe male genitals, pubic area, or bu ttocks 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 constituti onally 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 legislatur es 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 and5 Ferber upheld prohibitions of even the privat e possession of child pornography out of concern for the minor children involved and recogn ition 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 th e 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-oriente d 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 argument s that the use of the term “nudity” in R.C. 2907.323(A)(3) was overbroad and violat ed the Constitution by unconstitutionally encompassing morally innocent beha vior as well as lewd behavior . See Osborne at 112; Young at 251-252. In response to such con cerns, 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, et c.) and (b) (parental consent) to narrow the offense and to exclude “conduct that is morally innocent.” Young at 251-252. “Thus, the only conduct6 prohibited by the statute is conduct which is not morally innocent, i.e ., the possession or viewing of the described material for prur ient 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 ma terial 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 i ssue. He further argues that, although the recording he made contained nud ity 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-o riented material in violation of R.C. 2907.323(A)(1).7 {¶ 16} We acknowledge that, in two prior cas es 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 lew dness had to be shown and we affirmed the trial court’s finding of “a lewd ex hibition” 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 c ourt), 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 detaile d 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 te rms 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 i ndictment. The Fourth Appellate District has

concluded that there is “no difference” be tween 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 (A pr. 14, 2000). The Twelfth District, on the other hand, has rejected the argument th at the “judicially engr afted 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 definiti on did not apply to R.C. 2907.323(A)(1).

State v. O’Connor , 12th Dist. Butler No. CA 2001-08-195, 2002-Ohio-4122, ¶ 28-30.

O’Connor held that, “[w]hile Osborne may limit the proof of ‘a st ate 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. Mar tin has not challenged his indic tment on appeal or in the trial court and, regardless, any such ar gument is moot as a result of our holding in this case. The question before us is whether, for a viol ation of R.C. 2907.323(A)(1) involving use of a minor in the creation or production of nudity-orien ted 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-orien ted 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 diffe rent State and personal interests and is not

entitled to the same First Amendm ent protection. The dissent in Graves aptly describes the

distinction: This court has applie d 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 “l ewd 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 Suprem e Court endorsed th at 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 unde r 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 photogra phs, 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. Do es 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.2d10 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 impor tant governmental interest” for regulating the nonspeech element can ju stify 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 obvi ous. 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 nude11 photographs of someone else’s child, w ithout 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 pe rformance involving a nude child; wh en such a case is compared to a case in which only possession of a pictur e 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 te rm “nudity” that R.C. 2907.323(A)(3) arguably

does. {¶ 21} Nudity is statutorily defined, a nd, 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 a pplied, and we reject Ma rtin’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, represen tation, or depiction of human ma le 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 be low the top of the nipple * * *.” The nudity depicted in Martin’s recording, which depict ed 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 defi nition, the video was indisputably “lewd,” notwithstanding the fact that it does not c ontain 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 Bookstor e 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 Oxfo rd English Dictionary gives a similar definition and cites Chaucer for first using th e word in popular literature as early as 1386. ‘Lascivious’ is defined by Webster as: ‘ * * * in clined to lechery: lewd, lustful * * * tending to arouse sexual desire * * *.’ Webster’s, s upra, at 1274. The Oxford dictionary defines ‘lascivious’ as: ‘[i]nclined to lust, lewd, wa nton.’ 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 wa ntonness[.]” 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 whet her 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 videot aping 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 statutor y 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 mate rial in violation of R.C. 2907.323(A)(1) is a felony of the second degree, and voyeuri sm 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 nude 2 minor without the purpose of sexually arousing th e “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 gratif ication) 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, rega rdless of the purpose of the o ffender 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