[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                            :

                                                       :

                                             ..........

                                             OPINION

                         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
                                                                                              2

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
                                                                                            3

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
                                                                                               4

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
                                                                                           6

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).
                                                                                              7

       {¶ 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)
                                                                                              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 (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,
                                                                                           9

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
                                                                                 10

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
                                                                                             11

        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
