State v. Kerrigan , 2006 Ohio 4279 ( 2006 )

{¶ 71} I disagree. A determination of whether the disputed materials violate the statute must be based upon their overall content. The trial judge correctly found that based upon their overall content, they do violate R.C.2907.32(A)(3).

{¶ 72} The videotapes and brochure contain clear images of the pubic area and buttocks of children. Black's Law Dictionary (8th Ed.2004) 927 defines "lewd" as obscene or indecent; tending to moral impurity or wantonness. Viewed in the light most favorable to the state, the images constitute a lewd exhibition of nudity. Certainly, none of these materials can be characterized as possessed for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose as set forth in R.C. 2907.32(A)(3).

{¶ 73} I believe the majority misconstruesState v. Young (1988), 37 Ohio St.3d 249,525 N.E.2d 1363, and engrafts a more narrow reading of the lewd exhibition test than engrafted by the Ohio Supreme Court and deemed constitutional by the United States Supreme Court. The majority concludes that the "context" of the Ohio Supreme Court's opinion in Young indicates that the term "nudity" refers to a lewd exhibition of the genitals. The effect of this interpretation morphs the statute into protecting children only when the material involves genitalia; i.e., lewd exhibition of genitalia or graphic focus on genitalia. Such a narrow reading would never protect children where the nudity displayed is a lewd exhibition of female breasts or the buttocks of a child, male or female.

{¶ 74} As noted by Justices Brennan, Marshall, and Stevens in their dissent in Osborne v. Ohio (1990), 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98. The Ohio Supreme Court did not say, "[W]here such nudity constitutes a lewd exhibition of or involves a graphic focus on the genitals." The noun "exhibition" does not take as a modifier the preposition "on," and the court's repeated reference to the "prohibited state of nudity" as a lewd exhibition or a graphic focus on the genitals, Young, 37 Ohio St.3d 249, 251,525 N.E.2d 1363, leaves no doubt that its choice of words was deliberate. The Ohio court clearly meant the "lewd exhibition" standard to pertain only to nudity and not to displays of the genitals. Osborne, 495 U.S. 103, 110 S.Ct. 1691,109 L.Ed.2d 98, fn. 4.

{¶ 75} Further, the majority concludes that these materials are merely "naturist" or nudist, but concedes that at least one "After School Break" is likely intended to be marketed to persons with a prurient interest in nude boys. I would conclude that all of the materials are so marketed. Nevertheless, the majority contends that it is not relevant how the material is promoted or marketed. This conclusion ignores the United States Supreme Court's recognition of the significance of the exceptions delineated in the Ohio statute that narrows significantly the prohibited conduct by limiting it to "conduct which is not morally innocent, i.e., the possession or viewing of the described material for prurient purposes." Id. at fn. 10.

{¶ 76} Reading the trial court's decision in its entirety and giving the state latitude in protecting children from nude visual depictions, I would affirm the convictions of Kerrigan on all counts.