[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, 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 
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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 
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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 
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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 
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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 
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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). 
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{¶ 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) 
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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, 
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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 
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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 
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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