[Cite as State v. Cassel, 2016-Ohio-3479.]

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

TERRY R. CASSEL 

Defendant-Appellant 

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Appellate Case No. 26708 

Trial Court Case No. 14-CR-2763 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 17th day of June, 2016. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, 

Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts 

Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 

 Attorney for Plaintiff-Appellee 

 

TERRY L. LEWIS, Atty. Reg. No. 0010324, Terry L. Lewis Co., L.P.A., 10 West Second 

Street, Suite 1100, Dayton, Ohio 45402 

 Attorney for Defendant-Appellant 

. . . . . . . . . . . . . 

 

FAIN, J. 

{¶ 1} Defendant-appellant Terry R. Cassel appeals from his conviction and 

sentencing for one count of the illegal use of a minor in nudity-oriented materials in 
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violation of R.C. 2907.323. Cassel argues that the trial court erred by overruling his motion 

to dismiss the indictment, his Crim.R. 29 motion for an acquittal, and his motion to 

suppress. Cassel also argues that the trial court erred by considering evidence of motive 

and by failing to identify which of the photos met the elements of the charged offense. 

The State argues that an indictment that includes the statutory elements is sufficient, that 

probable cause was established for the issuance of a search warrant, and that sufficient 

evidence was presented to support the conviction. The State argues that Cassel’s motive 

for possessing the photos was relevant to rebut his affirmative defense that he used the 

photos for artistic purposes. The State also asserts that the trial court did sufficiently 

identify the basis for its guilty verdict. 

{¶ 2} We conclude that the indictment sufficiently identifies the elements of the 

statute, and that probable cause for the issuance of a search warrant was established. 

We also conclude that evidence of motive was relevant to Cassel’s affirmative defense. 

We conclude that the trial court did not err in overruling the Rule 29 motion to dismiss, 

because sufficient evidence was presented to prove all elements of the charged offense. 

We also conclude that the trial court is not required to identify which of the photos was 

the basis of its verdict, as long as the evidence is sufficient to support the conviction. 

I. Photos of Nude Children Stored in Home Computer 

{¶ 3} Cassel was an art teacher for the Dayton City Schools for 26 years. He has 

a bachelor’s degree and a master’s degree in art education. Cassel retired from the school 

system in 1996, and then started a home improvement company. As a hobby, Cassel 

creates art through sculpture, painting, and drawing. Cassel primarily focuses his art on 
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biblical subjects, such as angels. He also does nature and landscape drawings. Cassel 

uses photographs as a resource for his art, and retained many photographs on his home 

computer. 

{¶ 4} After separating, Cassel’s estranged wife provided information to the police, 

stating that Cassel had photos of nude children on his home computer. Mrs. Cassel’s 

grandson also told police that he had seen photos or videos on Cassel’s computer 

depicting minors engaged in sexual activity. A search warrant was executed and two 

computers were seized from Cassel’s residence. No photos or videos were found that 

depict persons engaged in sexual activity. 

II. The Course of Proceedings 

{¶ 5} Cassel was indicted on one count of the illegal use of a minor in nudityoriented materials, in violation of R.C. 2907.323(A)(3), a felony of the second degree. 

Cassel filed a motion to suppress, a demand for a bill of particulars, a motion to quash 

the indictment, four motions to dismiss, and three motions in limine. 

{¶ 6} To obtain the indictment, the grand jury was shown a total of 93 photos 

seized from Cassel’s home and from his computers. Cassel argues that neither the written 

indictment, Dkt. #5, nor the instructions to the grand jury, included any language other 

than the terms of the statute, R.C. 2907.323(A)(3), omitting the phrase established by 

case law that narrows the application of the statute to possessing photographs of a minor 

in the state of nudity only when the nudity constitutes a lewd exhibition or involves a 

graphic focus on the minor’s genitals. The trial court overruled the motion to dismiss or 

quash the indictment, concluding that the indictment sufficiently recited the elements of 
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the statute. 

{¶ 7} At the hearing on the motion to suppress, the State presented the testimony 

of the two officers who obtained and served the search warrant. Both officers confirmed 

that the affidavit they prepared to obtain the search warrant was based on their interview 

of Cassel’s ex-wife and her grandson. The officers stated that Mrs. Cassell reported to 

them that Cassel had photos on his computer and in books depicting nude children. Mrs. 

Cassel’s grandson corroborated these allegations by reporting that he had seen photos 

or videos on Cassel’s computer depicting minors engaged in sexual intercourse. Mrs. 

Cassel also gave the officers a CD of images downloaded from Cassel’s computer and a 

diary. The officers acknowledged that Mrs. Cassel did not report that any of the photos or 

books depicted lewd behavior or focused on genitalia. The officers also acknowledged 

that no photos were found on the CD, or on Cassell’s computers, depicting sexual activity, 

and nothing in the diary admitted to viewing or possessing lewd, or sexually graphic, 

photos or videos. 

{¶ 8} Cassel testified at the suppression hearing. Cassel acknowledged that he 

made a written statement to the police, Ex. 32, that included a statement that he had been 

looking at computer images of nude boys, and occasionally nude boys having sex, and 

that he needed help so that he would not act upon his impulses. In his testimony at the 

suppression hearing, Cassel recanted his statement, contending that he was intimidated 

by the officers arriving at his house with sirens blaring, tearing up his house, invading his 

privacy looking for photos, and telling him that the judge would be lenient, and it would go 

a lot better for him, if he admitted to it and asked for help. He was also upset that his exwife would do this to him. Both officers, who served the search warrant and were present 
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when Cassel wrote out a statement, testified that no threats or promises were made to 

obtain his statement. It was stipulated that a proper Miranda warning was given prior to 

obtaining Cassel’s statement. 

{¶ 9} The trial court overruled the motion to suppress, finding that sufficient 

probable cause was established for the search warrant. Based on the statements the 

officers had obtained from Mrs. Cassel and her grandson, the trial court concluded that 

there was a fair probability that evidence of a crime would be found at Cassel’s residence. 

{¶ 10} The trial court denied in part, and granted in part, the motion in limine, by 

excluding many of the photos presented by the State, allowing 25 of the 93 photos to be 

introduced as evidence. Cassel also filed a motion to dismiss prior to trial, and made a 

Crim.R. 29 motion to dismiss at the close of the State’s case, upon the ground that none 

of the photos depicted minors in a state of nudity that was lewd or involved a graphic 

focus on the minor’s genitals. The trial court overruled Cassel’s motion to dismiss, 

concluding that one or more of the photos met the definition of a minor in the state of 

nudity. 

{¶ 11} Cassel waived his right to a jury trial, and the evidence was presented to 

the court in a bench trial. Cassel testified at trial, stating that he downloaded the photos 

marked as Exhibits 1- 25 from sources on the internet. Cassel stated that he used the 

photos as resources for his art. The parties stipulated that Cassel was not the parent or 

guardian of any child depicted in the photos. There was no evidence that Cassel actually 

took any of the photos himself, or had direct contact with any child depicted in the photos. 

Cassel testified that Exhibits 16-22 were reproductions downloaded from a Library of 

Congress collection of photographs from a famous turn-of-the-century photographer, 
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Edward Weston. At trial, Cassel again recanted his written statement made to the police 

at the time the search warrant was issued, and said it was not accurate because he had 

no photos showing sex acts. 

{¶ 12} Based on the evidence presented, the trial court found Cassel guilty of one 

count of illegal use of a minor in nudity oriented materials. Cassel was sentenced to serve 

five years of community control sanctions, including registration as a Tier 1 sex offender. 

From his conviction and sentencing, Cassel appeals. 

III. Standard of Review 

{¶ 13} Because a trial court exercises discretion in its decision to exclude or admit 

evidence, our standard of review on appeal is whether the trial court committed an abuse 

of discretion that amounted to prejudicial error. State v. Graham, 58 Ohio St.2d 350, 390 

N.E.2d 805 (1979); State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 

528, ¶ 19. Under an abuse of discretion standard, we will review the issues of whether 

the trial court properly admitted evidence of motive and whether the trial court was 

required to identify which of the photos met the elements of the charged offense. 

“Generally, abuse of discretion occurs when a decision is grossly unsound, unreasonable, 

illegal, or unsupported by the evidence.” State v. Nichols, 195 Ohio App.3d 323, 2011-

Ohio-4671, 959 N.E.2d 1082, ¶ 16 (2d Dist.); State v. Beechler, 2d Dist. Clark No. 

09CA54, 2010-Ohio-1900, ¶ 60-70. A decision is unreasonable if there is no sound 

reasoning process that would support that decision. State v. Jones, 2d Dist. Montgomery 

Nos. 25315 & 25316, 2013-Ohio-1925, ¶ 32; State v. LeGrant, 2d Dist. Miami No. 2013-

CA-44, 2014-Ohio-5803, ¶ 7. When applying the abuse of discretion standard, an 
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appellate court may not merely substitute its judgment for that of the trial court. Berk v. 

Mathews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990). 

{¶ 14} In ruling on a motion to suppress, the trial court “assumes the role of the 

trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate 

the credibility of the witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 

498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010-Ohio-116, ¶ 

30. Accordingly, when we review suppression decisions, we must accept the trial court’s 

findings of fact if they are supported by competent, credible evidence. State v. Keith, 2d 

Dist. Montgomery No. 26367, 2016-Ohio-1263, ¶ 24, citing Retherford at 592, 639 N.E.2d 

498. “Accepting those facts as true, we must independently determine as a matter of law, 

without deference to the trial court’s conclusion, whether they meet the applicable legal 

standard.” Id.

{¶ 15} We review a trial court’s decision on a motion to dismiss an indictment 

pursuant to a de novo standard of review. State v. Gaines, 193 Ohio App.3d 260, 2011-

Ohio-1475, 951 N.E.2d 814, ¶ 14 (12th Dist.). “De novo review requires an independent 

review of the trial court’s decision without any deference to the trial court’s determination.” 

State v. Clay, 2d Dist. Miami No. 2015-CA-17, 2016-Ohio-424, ¶ 5. 

{¶ 16} When we review the denial of a Crim.R. 29 motion to dismiss, we use the 

same standard of review that is used to review a sufficiency-of-the-evidence claim. State 

v. Cokes, 2d Dist. Montgomery No. 26223, 2015-Ohio-619, ¶ 23. When a defendant 

challenges the sufficiency of the evidence, he is arguing that the State presented 

inadequate evidence on at least one element of the offense to sustain the verdict as a 

matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000). 
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“ ‘An appellate court’s function when reviewing the sufficiency of the evidence to support 

a criminal conviction is to examine the evidence admitted at trial to determine whether 

such evidence, if believed, would convince the average mind of the defendant’s guilt 

beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence 

in a light most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime proven beyond a reasonable doubt.’” State v. Morefield, 

2d Dist. Montgomery No. 26155, 2015-Ohio-448, ¶ 18, quoting State v. Jenks, 61 Ohio 

St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. 

 

IV. The Indictment Is Not Defective 

{¶ 17} For his First Assignment of Error, Cassel asserts: 

THE TRIAL COURT ERRED IN FAILING TO GRANT 

APPELLANT’S MOTION TO DISMISS THE INDICTMENT BASED UPON 

THE STATE’S ADMITTED IMPROPER INSTRUCTIONS TO THE GRAND 

JURY AND FAILING TO INCLUDE ALL THE NECESSARY ELEMENTS IN 

THE INDICTMENT 

{¶ 18} Cassel argues that the indictment is defective because the State failed to 

inform the grand jury of all essential elements of the charged offense, and the indictment 

fails to include all elements of the charged offense. Cassel argues that the grand jury 

should have been informed that the photographs of children must depict lewd behavior 

or graphically focus on the genitalia of a child. 

{¶ 19} The purpose of an indictment is to give the accused adequate notice of the 

crime charged. State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, 
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¶ 7; State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 10. An 

indictment is sufficient if it contains the elements of the offense charged, fairly informs the 

defendant of the charge, and enables the defendant to plead an acquittal or conviction in 

bar of future prosecutions for the same offense. Buehner at ¶ 9, Horner at ¶ 45. As applied 

to the case before us, the indictment cites R.C. 2907.323(A)(3), and tracks the statutory 

language of the charged offense. Therefore, we conclude that it gave Cassel adequate 

notice of the crimes charged. 

{¶ 20} We rejected this exact argument in State v. Sullivan, 2d Dist. Montgomery 

No. 23948, 2011-Ohio-2976, ¶ 27 and State v. Videen, 2013-Ohio-1364, 990 N.E.2d 173 

(2d Dist.), concluding that because “the judicial construction placed on the element of 

‘state of nudity’ is not a separate element, but merely defines that element as it is set forth 

in R.C. 2907.323(A)(1) and (A)(3), an indictment charging an offense under either 

provision of the statute is sufficient if it charges the offense using the words of the statute.” 

Videen at ¶¶ 47-49. 

{¶ 21} In the case before us, the indictment charges the offense using the words 

of the statute. Therefore, we conclude that the indictment is not defective. 

{¶ 22} Cassel’s First Assignment of Error is overruled. 

V. The Trial Court Did Not Err By Overruling the Motion to Suppress 

{¶ 23} For his Second Assignment of Error, Cassel asserts: 

THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE 

EVIDENCE OBTAINED FROM APPELLANT’S COMPUTER. 

{¶ 24} Cassel argues that his motion to suppress should have been granted, 
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because the affidavit used to obtain the search warrant did not establish probable cause, 

and the informant was unreliable. The State argues that the affidavit did establish 

probable cause. 

{¶ 25} In State v. Weimer, 8th Dist. Cuyahoga No. 92094, 2009-Ohio-4983, ¶ 20-

21, the court succinctly summarized the reviewing court’s process as follows: 

In reviewing the sufficiency of probable cause in an affidavit 

submitted in support of a search warrant issued by a magistrate, neither a 

trial court nor an appellate court should substitute its judgment for that of 

the magistrate conducting a de novo determination as to whether the 

affidavit contains sufficient probable cause upon which that court would 

issue the search warrant. City of Cincinnati v. Contemporary Arts Ctr.

(1990), 57 Ohio Misc.2d 9, 566 N.E.2d 207. A reviewing court affords great 

deference to a judge’s determination of the existence of probable cause to 

support the issuance of a search warrant. State v. Garner (1995), 74 Ohio 

St.3d 49, 656 N.E.2d 623. Such a determination should not be set aside 

unless it was arbitrarily exercised. See United States v. Spikes (C.A. 6, 

1998), 158 F.3d 913, certiorari denied (1999), 525 U.S. 1086, 119 S.Ct. 

836, 142 L.Ed.2d 692. 

* * * 

“To successfully attack the veracity of a facially sufficient searchwarrant affidavit, a defendant must show by a preponderance of the 

evidence that the affiant made a false statement, either ‘intentionally, or with 

reckless disregard for the truth.’ ” State v. McKnight, 107 Ohio St.3d 101, 
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2005-Ohio-6046, 837 N.E.2d 315, at ¶ 31, quoting Franks v. Delaware

(1978), 438 U.S. 154, 155-156, 98 S.Ct. 2674, 57 L.Ed.2d 667. “Reckless 

disregard” means that the affiant had serious doubts about the truth of an 

allegation. Id., citing United States v. Williams (C.A.7, 1984), 737 F.2d 594, 

602. Omissions count as false statements if “designed to mislead or * * * 

made in reckless disregard of whether they would mislead the [issuing 

judge].” (Emphasis deleted.) Id., citing United States v. Colkley (C.A.4, 

1990), 899 F.2d 297, 301. 

Weimer at ¶ 20-21. 

{¶ 26} The Supreme Court of Ohio has also provided guidance by stating, “[i]n 

conducting any after-the-fact scrutiny of an affidavit submitted in support of a search 

warrant, trial and appellate courts should accord great deference to the magistrate's 

determination of probable cause, and doubtful or marginal cases in this area should be 

resolved in favor of upholding the warrant.” State v. Jones, 143 Ohio St.3d 266, 2015-

Ohio-483, 37 N.E.3d 123, ¶ 14, citing State v. George, 45 Ohio St.3d 325, 544 N.E.2d 

640 (1989), paragraph two of the syllabus. The court in Jones concluded that “[b]oth the 

trial court and the appellate court had a duty to examine the totality of the circumstances 

in determining whether probable cause existed for issuing the search warrant” and that 

probable cause is found when “there is a fair probability that contraband or evidence of a 

crime will be found in a particular place.” Jones at ¶¶13-15. 

{¶ 27} In the case before us, the trial court looked at the totality of the 

circumstances by considering the process followed by the officers in obtaining the 

information, and by considering not only the information provided by Cassel’s ex-wife, but 
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also by her grandson, who corroborated the allegation that Cassel had possession of 

questionable photos or videos on his home computer. Although Cassel argued that the 

officers should not have considered the allegations made by an ex-wife to be reliable, the 

trial court also considered the grandson’s statements as corroborating evidence. We do 

not find that the officers had a duty to examine the contents of the CD provided by the exwife before preparing their affidavit because they already had corroboration from the 

grandson. We conclude that Cassel did not prove that the officer who prepared the 

affidavit made any false statement, either intentionally or with reckless disregard for the 

truth in the affidavit to obtain a search warrant. Based on the statements made by Mrs. 

Cassel and her grandson, the issuing magistrate had probable cause to conclude that 

there was a substantial likelihood of finding photos of nude minors on Cassel’s computer. 

{¶ 28} Cassel’s Second Assignment of Error is overruled. 

VI. Evidence of Motive Was Admissible 

{¶ 29} For his Third Assignment of Error, Cassel asserts: 

THE TRIAL COURT ERRED BY PERMITTING THE STATE TO 

OFFER EVIDENCE OF THE APPELLANT’S ALLEGED MOTIVE AND BY 

BASING ITS DECISION ON THIS ALLEGED MOTIVE 

{¶ 30} Cassel argues that a conviction for violating R.C. 2907.323(A)(3) must be 

based on the nature of the photos, not the purpose for which the defendant may use 

them. Specifically, Cassel argues the court erred by admitting testimony, from one of the 

officers who interviewed Cassel when the search warrant was served, that Cassel stated 

that he thought he had an addiction and needed help. T. at 171. In the court’s written 
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verdict, the trial court made an inaccurate finding that Cassel had stated to the officer that 

“he believed he was struggling with an addiction to child pornography and he was afraid 

that his urges were escalating.” Dkt.#98, pg. 2. The transcript of the testimony of the 

officer who interviewed Cassel states that he only admitted to viewing “child porn back in 

the 60’s and 70’s,” but had not created any child pornography. T. at pgs 170-171. When 

the officer told Cassel that he thought he was progressing with an addiction, Cassel 

responded that “he in fact thought he did have an addiction and he needed help.” T. at 

171. Cassel later recanted this statement. 

{¶ 31} 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 focus on the genitals. State v. Martin, 2014-Ohio-3640, 18 

N.E.3d 799, ¶ 24 (2d Dist.), citing State v. Young, 37 Ohio St.3d 249, 258, 525 N.E.2d 

1363 (1988). See also State v. Kerrigan, 168 Ohio App.3d 455, 2006-Ohio-4279, 860 

N.E.2d 816, ¶ 22 (2d Dist.). In its verdict, the trial court specifically recognized this case 

law, and proceeded to discuss its view of the photos, not Cassel’s motive. 

{¶ 32} The trial court, as the finder of fact, identified specific aspects of several 

photos that lead to its conclusion that the photos meet the element of being lewd or 

focusing on a minor’s genitals. The trial court recognized that several photos had been 

edited or altered. In the written verdict, the trial court specifically described the photos 

that met the statutory definition of the charged offense, including the photos of two nude 

boys, posing together, which we can discern as Exhibits 10-13, and the same boys posing 

with a nude adult, which we can discern as Exhibits 14 and 15. The trial court relied on 

the fact that the face of the adult in Exhibits 14 and 15 was edited out of the picture, to 
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conclude that the editing caused the photo to focus on the genitals. 

{¶ 33} Although motive is not an element of the charged offense, motive is an 

essential element of the affirmative defenses set forth in R.C. 2907.323(A)(3)(a), which 

provide exceptions to the prohibited conduct if possession of the photos is “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, member of the clergy, prosecutor, judge, 

or other person having a proper interest in the material or performance.” Therefore, when 

Cassel raised the affirmative defense that he was using the photos for artistic purposes, 

his purpose or motive for possession of the photos became an element of his defense. In 

its written verdict, the trial court reviewed Cassel’s testimony regarding his artistic use of 

the photos, and recognized that Cassel was a former art teacher who enjoys sketching 

pictures of children and nature. The verdict does not discuss Exhibits 16-22, which Cassel 

described as reproductions of photos from a famous turn-of-the-century photographer, 

downloaded from the Library of Congress. In the verdict, the trial court also does not 

discuss Cassel’s sketch books, marked as Defense Exhibits OO & WW, or his pencil 

sketches marked as Exhibits A, B, C, D, XX, YY, ZZ, AAA, & BBB, which include drawings 

of nude children as angels. 

{¶ 34} While we agree that motive is an essential element of the affirmative 

defenses available under R.C. 2907.323(A)(3)(a), and that evidence of motive is therefore 

appropriate to admit in the defendant’s case, and in the State’s rebuttal case, it is not 

admissible during the State’s case-in-chief to establish the elements of the offense. The 

trial court did err by permitting evidence of motive during the State’s case-in-chief. 
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However, to constitute reversible error, Cassel must also establish that he was materially 

prejudiced by the trial court’s error. When reviewing alleged errors regarding the 

admission of evidence, we have held that, “[u]nless the trial court has ‘clearly abused its 

discretion and the defendant has been materially prejudiced thereby, [appellate courts] 

should be slow to interfere’ with the exercise of such discretion.” State v. Goldblum, 2d 

Dist. Montgomery No. 25851, 2014-Ohio-5068, ¶ 32, quoting State v. Hymore, 9 Ohio 

St.2d 122, 128, 224 N.E.2d 126 (1967). 

{¶ 35} We conclude that Cassel was not prejudiced by this error, since evidence 

of motive was admissible to rebut Cassel’s defense that the photos were used for artistic 

purposes. At a bench trial, the trial court has the ability to apply the evidence properly, 

regardless of the order of presentation. Therefore, Cassel’s Third Assignment of Error is 

overruled. 

VII. There Is Sufficient Evidence to Support the Conviction 

{¶ 36} For his Fourth Assignment of Error, Cassel asserts: 

THE TRIAL COURT ERRED BY FAILING TO DISMISS THE 

INDICTMENT, FAILING TO GRANT THE APPELLANT’S RULE 29 

MOTION, AND FINDING THE APPELLANT GUILTY OF THE 

POSSESSION OF TWENTY-SIX PHOTOGRAPHS IN DISPUTE EVEN 

THOUGH THEY DO NOT DEPICT LEWD BEHAVIOR OR GRAPHICALLY 

FOCUS ON GENITALIA. 

{¶ 37} Cassel argues that the trial court should have dismissed the indictment, 

granted his Rule 29 motion for a judgment of acquittal, or entered a verdict of acquittal, 

because there was insufficient evidence to prove the elements of the crime of illegal use 
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of a minor in nudity oriented material or performance in violation of R.C. 2907.323, by 

proof beyond a reasonable doubt. Cassel argues that his Crim.R. 29 motion should have 

been granted, because the State’s evidence during the bench trial was not legally 

sufficient to satisfy all elements of the offense. Specifically, Cassel argues that the State 

did not establish that the material in his possession displayed a specific state of nudity 

prohibited under the governing statute. 

{¶ 38} Crim.R. 29(A) provides: 

The court on motion of a defendant or on its own motion, after the 

evidence on either side is closed, shall order the entry of a judgment of 

acquittal of one or more offenses charged in the indictment, information, or 

complaint, if the evidence is insufficient to sustain a conviction of such 

offense or offenses. 

{¶ 39} A Crim.R. 29(A) motion tests the sufficiency of evidence. When determining 

whether there is sufficient evidence presented to sustain a conviction, “[t]he relevant 

inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, 

any rational trier of fact could have found the essential elements of the crime proven 

beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), 

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 

61 L.Ed.2d 560 (1979). At this bench trial, the trial court, as the trier of fact, was in the 

best position to weigh the evidence. 

{¶ 40} Cassel was indicted under R.C. 2907.323(A)(3), which provides: 

 (A) No person shall do any of the following: 

 * * * 
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 (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: 

 (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, member of the clergy, prosecutor, judge, or 

other person having a proper interest in the material or performance. 

(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. 

{¶ 41} The phrase “state of nudity” was analyzed in State v. Young, 37 Ohio St.3d 

249, 525 N.E.2d 1363 (1988). The Supreme Court of Ohio concluded that the statute 

specifically 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.” Id. at 252. On appeal to the Supreme Court of the United 

States, that court agreed that “[b]y limiting the statute’s operation in this manner, the Ohio 

Supreme Court avoided penalizing persons for viewing or possessing innocuous 
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photographs of naked children.” Osborne v. Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, 

109 L.Ed.2d 98 (1990). “Thus, the phrase ‘state of nudity’ was not intended to cover all 

materials involving a nude minor; instead, the prohibition only applies to any lewd 

exhibition or graphic focus upon the genitals.” State v. Tooley, 114 Ohio St.3d 366, 2007-

Ohio-3698, 872 N.E.2d 894, ¶ 16. As to the definition of “lewd,” the Supreme Court of 

Ohio has indicated that the term refers to “ ‘sexually unchaste or licentious * * * lascivious 

* * * inciting to sensual desire or imagination * * *.’ ” State v. Aguirre, 11th Dist. Portage 

No. 2010-P-0057, 2012-Ohio-644, ¶ 54, citing State ex rel. Rear Door Bookstore v. Tenth 

Dist. Ct. of Appeals, 63 Ohio St.3d 354, 358, 588 N.E.2d 116 (1992), quoting Webster’s 

Third New International Dictionary 1301 (1986). We utilized this same definition of lewd 

in both Videen and Kerrigan, supra. 

{¶ 42} It is undisputed that none of the photos show persons engaged in sexual 

activity. We have held that “lewd exhibition” does not require sexual activity. State v. 

Jewell, 2d Dist. Montgomery No. 16254, 1997 WL 476667 (Aug. 22, 1997). In Jewell, we 

found violations of the statute when the photos “constitute[d] visual depictions of children 

lewdly exhibiting their genitals. * * * [T]he child is posed in such a way that her genital 

organ is prominently displayed, open for viewing * * * even though the entire body of the 

child, or almost the entire body of the child, is displayed.” Id. 

{¶ 43} Since every photo is different, no single definition is sufficient to capture 

the precise meaning of the statute, which is targeted to prevent the exploitation of children 

for the purpose of child pornography. It is not illegal to possess pictures of nude bodies, 

a common art form utilized by many famous artists. We do not find that any of the photos 

depict nude minors posed in a manner that is suggestive of sexual excitement or designed 
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to incite sexual desire. However, more than one of the photos can be viewed as a graphic 

focus on the minor’s genitals. In Kerrigan, in determining whether a video was focused 

on the minor’s genitals, we analyzed whether the videographer zoomed in on, or lingered 

upon, the genitals, whether any particular attention was focused on the genitals, or 

whether any attempt was made to edit them out of the picture. Kerrigan at ¶ 26. In Videen, 

we again considered whether the posing or editing of the photos led to a finding that the 

photograph was intrinsically unchaste or licentious, inciting to sensual desire or 

imagination. Videen at ¶¶ 32-33. 

{¶ 44} Exhibits 16-22 are seven black-and-white photos that appear to be of the 

same nude boy, each edited in a slightly different manner, starting with one that includes 

the boy’s head on the top of the picture, and stopping under the boy’s waist. Each 

successive photo moves down the boy’s body, starting and ending at a lower point, with 

two ending at the boy’s knees. Four of the photos are edited to focus the boy’s genitals 

on the center of the page. In its written verdict, the trial court did not discuss Exhibits 16-

22. In his defense, Cassel testified that these photos were reproductions of photographs 

from a famous photographer, Edward Weston, which can be downloaded from the Library 

of Congress website. This testimony was not rebutted by the State. As works of art, 

Cassel argued that he met his burden of proving the affirmative defense that his 

possession of Exhibits 16-22 were for an artistic purpose. 

{¶ 45} The trial court described one black-and-white photo as an edited version of 

Exhibits 4 & 5, which we can discern as Ex. 6. Cassel explained that Exhibit 6 was an 

artistic technique to make a photograph look like a sketched drawing. Cassel argued that 

he met his burden of proving the affirmative defense that his possession of Exhibits 4-6 
-20-

were for an artistic purpose. 

{¶ 46} Exhibits 14 and 15 both include the same three naked persons, an adult in 

the middle, with his arms extended to hold up two young boys, but the face of the adult is 

obliterated. By holding up the two boys, the adult has positioned the boys in a manner 

that graphically focuses on their genitals, but the body ends just below his waist, so the 

adult’s genitals are not visible. The same two naked boys are depicted together in Exhibits 

10-13, and it appears that adults who were standing on either side of the boys are 

removed from the photos, either by the camera focus or by editing. The boys’ genitals are 

clearly visible, along with their entire bodies. Cassel argued that Ex. 14 was used as a 

resource for a sketch he started in his sketchbook, Ex. OO, of Jesus gathering up children. 

{¶ 47} We conclude that a reasonable mind could find, beyond a reasonable 

doubt, that one or more of the photos marked as Exhibits 10-15 meet the elements of the 

offense by graphically focusing on a minor’s genitals, and that Cassel was not using the 

photos for artistic purposes. Therefore, the trial court did not err in overruling Cassel’s 

motion to dismiss and the Crim. R. 29 motion, or by finding him guilty of the charged 

offense. 

{¶ 48} Cassel’s Fourth Assignment of Error is overruled. 

VIII. The Court Was Not Required to Identify Specific Photos 

{¶ 49} For his Fifth Assignment of Error, Cassel asserts: 

THE TRIAL COURT ERRED BY FAILING TO IDENTIFY WHICH 

SPECIFIC PHOTOGRAPHS IT FOUND TO BE A VIOLATION OF OHIO 

REVISED CODE SECTION 2907.323(A)(3). 
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{¶ 50} Cassel argues that his right to a meaningful review of the basis of the trial 

court’s decision to convict him is prejudiced by the trial court’s failure to identify which of 

the 25 photos in evidence meet the requirement of depicting a lewd exhibition or focusing 

on genitals. The State argues that all of the 25 photos constitute violations of the statute, 

but also separately identifies five that focus on genitalia, Exhibits 16, 19, 20, 21 & 22, and 

ten that involve a lewd exhibition, Exhibits 10-15, 17, 18, 23 and 24. The question before 

us is whether the trial court abused its discretion by failing to specify the particular 

photographs supporting its guilty verdict. 

{¶ 51} As discussed above, we are able to discern from the trial court’s description 

of the photos in its written verdict, that the trial court considered one or more of Exhibits 

10-15 to meet the elements of the offense. Although the trial court did not discuss Exhibits 

1-4 or 16-25, it was not required to find more than one photo meeting the elements of the 

offense, and not meeting the elements of the affirmative defense, in order to find Cassel 

guilty of one count of the charged offense. Based on the findings made by the trial court 

in its written verdict, we conclude that the trial court sufficiently identified a sound 

reasoning process for its conclusion and did not abuse its discretion. Cassel’s Fifth 

Assignment of Error is overruled. 

IX. Conclusion 

{¶ 52} All assignments of error having been overruled, the judgment of the trial 

court is Affirmed. 

. . . . . . . . . . 
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WELBAUM, J., concurs. 

FROELICH, J., concurring: 

{¶ 53} After Appellant made a discovery demand, Appellant’s counsel was 

permitted to view the 93 photographs that formed the basis for the indictment, but 

Appellant was not provided a copy of the photographs. The State made no Crim.R. 

16(C) “counsel only” designation nor was a Crim.R. 16(D) certificate of non-disclosure 

sought by the State. 

{¶ 54} Appellant moved the court to be allowed to examine the withheld material. 

(Doc. #20.) In the motion, Appellant’s counsel stated that he had attempted to describe 

the photographs to Appellant, but his attempts were “insufficient.” Counsel asserted that 

Appellant had a due process right to view this “critical evidence” before trial. The State 

filed no written response to the motion, but apparently argued during an in-chambers 

conference that Appellant should not be permitted to view the exhibits. The trial court’s 

decision specifically denied Appellant the pretrial opportunity to view the material and 

indicated that, since the photographs were on Appellant’s computer when seized by the 

police, Appellant should be able to remember them based on counsel’s description. The 

court found that Appellant had not demonstrated “a particularized need to view the 

photographs.” (Doc. #33.) 

{¶ 55} After the trial court’s decision, an in-chambers meeting was apparently held 

to discuss the photographs, and an agreement was apparently reached that the State 

would provide copies of the photographs to Appellant’s counsel and counsel would 

execute a non-disclosure agreement. (See Doc. #36.) When the State subsequently 

refused to “copy and disseminate” the photographs to Appellant’s counsel, counsel filed 
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a motion to dismiss the indictment. (Doc. #36.) The State responded that copying and 

disseminating the photographs to Appellant’s counsel would violate R.C. 2907.323(A)(1). 

(Doc. # 37.) The trial court ordered the State to immediately furnish the defense a copy 

of the photographs in DVD/CD format, with the following conditions: 

1. The DVD/CD, or any portion thereof, shall NOT be reproduced, 

downloaded, or copied in any way. 

2. The DVD/CD or any portion thereof is to be viewed ONLY by the 

defense counsel and/or any defense expert. 

3. The DVD/CD will be returned to State upon completion of trial or plea 

or dismissal of this matter. 

(Emphasis in original.) (Doc. #40.) The State complied with this order on February 11, 

2015. (Doc. #43.) 

{¶ 56} The intent of Crim.R. 16 is “to provide all parties in a criminal case with the 

information necessary for a full and fair adjudication of the facts, to protect the integrity of 

the justice system and the rights of defendants, and to protect the well-being of witnesses, 

victims, and society at large.” Crim.R. 16(A). The Criminal Rules and the Local Rules 

of Montgomery County explicitly require photographic evidence against the Appellant to 

be provided to him, except for very limited circumstances. See Crim.R. 16(B)(3). 

{¶ 57} The trial court’s ruling does not explain its reasons for designating the 

photographs as “counsel only” material, and having reviewed all the material seized by 

the State and/or admitted into evidence, none of it appears to be encompassed by that 

Rule. Moreover, the pictures were the corpus delecti; regardless of the Appellant’s intent 

or statements that he made, there could be no conviction without the substance of the 
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photos being admitted. While I agree that precautions were necessary to ensure that 

the photographs were not further copied and disseminated and thus Appellant’s counsel 

was reasonably restricted from downloading, copying or reproducing the photographs, 

there does not appear to be any reason why Appellant was denied the opportunity to view 

the photographs with his attorney so that Appellant could fully assist with his defense. 

{¶ 58} However, at no point in the proceedings is there any indication by Appellant 

of an objection to the court’s ruling, a request for a continuance once Appellant was able 

to view the material at trial, or even an indication during Appellant’s testimony that he was 

hampered by this lack of disclosure, let alone that he was legally prejudiced. And this 

does not fall into any recognized definition of structural error. See, e.g., United States v. 

Gonzalez-Lopez, 548 U.S.140, 149, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). 

{¶ 59} I concur in the affirmance. 

. . . . . . . . . . 

.Copies mailed to: 

Mathias H. Heck, Jr. 

Andrew T. French 

Terry L. Lewis 

Hon. Dennis J. Adkins