[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 Decisions, 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.



                          SLIP OPINION NO. 2016-OHIO-7196
             THE STATE OF OHIO, APPELLEE, v. MARTIN, APPELLANT.
  [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.)
            CERTIFIED by the Court of Appeals for Montgomery County,
                               No. 26033, 2014-Ohio-3640.
                               _______________________
        PFEIFER, J.
                                       BACKGROUND
        {¶ 1} On March 18, 2012, appellant, Terry Lee Martin, surreptitiously
recorded video of an 11-year-old female while she was undressed in a bathroom.
Martin was indicted for two felonies: creating nudity-oriented material involving a
minor, R.C. 2907.323(A)(1), and possession of criminal tools, R.C. 2923.24(A).
                              SUPREME COURT OF OHIO




       {¶ 2} The parties stipulated that Martin recorded the video, that the person
in the video is a minor, that the recording was not “for a bona fide artistic, medical,
scientific, educational, religious, governmental, judicial, 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 trial court of both felonies charged.
       {¶ 3} On appeal, Martin raised one assignment of error—that the trial court
had not applied the proper definition of nudity in convicting him of violating R.C.
2907.323(A)(1). The court of appeals affirmed the conviction, 2014-Ohio-3640,
18 N.E.3d 799, and certified that its judgment was in conflict with a judgment of
the Fourth District Court of Appeals, 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-Ohio-
239, 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-oriented material involving a
       minor, which definition of nudity applies: 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 depiction’ 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.




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                                January Term, 2016




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


       {¶ 6} As stated above, the parties stipulated 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 of




                                          3
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the minor’s parents. The only issue for review is the certified question, essentially:
which definition of nudity applies 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 same exception. We concluded that the
statute does not prohibit the possession of materials 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) prohibits possession of materials that
depict nudity that “constitutes a lewd exhibition or involves a graphic focus on the
genitals.” Young at 252.
       {¶ 9} Martin argues that the state of nudity 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.




                                          4
                                January Term, 2016




                     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]aterial (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 eliminating 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 leaves a permanent record that can haunt




                                          5
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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, emotional 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 child-nudity-oriented material—he
created it. Young addressed R.C. 2907.323(A)(3), which 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 implicates 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 less




                                          6
                                  January Term, 2016




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 otherwise, 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 material 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-oriented 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 the 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).
                                    CONCLUSION
       {¶ 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 provided by R.C. 2907.01(H).
                                                                 Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, KENNEDY, and FRENCH, JJ., concur.
       LANZINGER, J., dissents, with an opinion.
       O’NEILL, J., dissents, with an opinion.
                               _________________




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                             SUPREME COURT OF OHIO




       LANZINGER, 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 involving a minor, to reach only nudity that
either constitutes a lewd exhibition or involves 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 Supreme 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 child, 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’NEILL, J., dissenting.
       {¶ 22} Respectfully, I must dissent.
       {¶ 23} I do not agree that this court should treat creation of child-nudity-
oriented photography any differently than possession of it. In State v. Young, 37
Ohio St.3d 249, 525 N.E.2d 1363 (1988), we applied 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.




                                         8
                                 January Term, 2016




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 who 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 prohibited 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 prohibition against possession of child-nudity-
oriented 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 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.) 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). In




                                           9
                            SUPREME COURT OF OHIO




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 genitals, we “avoided penalizing 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 photographing nude infants absent written parental
permission.
       {¶ 26} In support of this result, the majority 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-oriented material.” Id. And armed with those state
interests, the majority blesses the definition of “nudity” set forth in R.C.
2907.01(H). I disagree with that approach.
       {¶ 27} It is patently false that photography of a nude child is “undeniably
harmful” and “undeniably exploitative” in every context. Majority opinion at ¶ 12.
Not every act of photography or depiction 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” depictions 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, aunts, 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 it




                                        10
                                  January Term, 2016




cannot withstand constitutional scrutiny. 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 Martin 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 too 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 broad as the definition set forth in R.C.
2907.01(H).
       {¶ 29} Respectfully, I dissent.
                               _________________
       Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and April
F. Campbell and Carley J. Ingram, Assistant Prosecuting Attorneys, for appellee.
       Timothy Young, Ohio Public Defender, and Valerie Kunze, Assistant
Public Defender, for appellant.
       Michael DeWine, Attorney General, and Eric E. Murphy, State Solicitor,
urging affirmance for amicus curiae, Ohio Attorney General.
                               _________________




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