State v. Maxwell, No. 2000-1812.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: MOYER, C J.
• Citation: 767 NE 2d 242,95 Ohio St.3d 254
• Decision Date: 15 May 2002
• Docket Number: No. 2000-1812.
• Parties: THE STATE OF OHIO, APPELLANT, v. MAXWELL, APPELLEE.

95 Ohio St.3d 254
767 NE 2d 242

THE STATE OF OHIO, APPELLANT,
v.
MAXWELL, APPELLEE

No. 2000-1812.

Supreme Court of Ohio.

Submitted October 30, 2001.

Decided May 15, 2002.

95 Ohio St.3d 264

Ron O'Brien, Franklin County Prosecuting Attorney, and Scott M. Forehand, Assistant Prosecuting Attorney, for appellant

Mary Ann Torian and Clayton G. Napier, for appellee.

Betty D. Montgomery, Attorney General, and Andrew D. Bowers, Assistant State Solicitor, urging reversal for amicus curiae, Attorney General of Ohio.

MOYER, C J.

{¶ 1} Responding to information regarding a thirteen-year-old girl named Sarah, officers of the Worthington Police Department on August 20, 1998, learned that appellee Mark W. Maxwell had contacted Sarah via the Internet and that she had agreed to meet him at a store in Worthington that afternoon. Sarah disclosed to the police officers that she and appellee, who had identified himself as a nineteen-year-old male, had discussed meeting for the express purpose of

95 Ohio St.3d 255

engaging in sexual relations. Appellee was actually twenty-seven. Sarah agreed to meet appellee while wearing a wire so that the police could tape-record her conversation with appellee. During their conversation, Sarah brought up their prior discussions concerning going to a hotel room, but appellee did not say anything of a sexual nature. Pursuant to the police officer's instructions, Sarah allowed appellee to leave their meeting before she did. When appellee exited the store, he was immediately arrested

{¶ 2} Following his arrest, the police obtained a search warrant for appellee's car and his apartment in Oxford, Ohio. In his car, the police found information relating to their meeting in Worthington. The police seized appellee's computer from his apartment. Numerous pictures and movies were discovered on appellee's computer hard drive, including images of minors engaged in various sexual acts, including fellatio and sexual intercourse.

{¶ 3} Evidence at trial established that appellee had obtained these files by downloading them via America Online, an Internet service provider. All America Online electronic traffic passes through the company servers in Virginia. Therefore, when appellee downloaded a file via America Online to his computer in Ohio, the file electronically passed through Virginia and into Ohio.

{¶ 4} Also introduced into evidence were copies of E-mail transmissions and instant messages ("IMs") between appellee and Sarah. The IMs between appellee and Sarah are sexual in nature and include discussions about Sarah's experience with and willingness to perform fellatio, appellee's offer to give Sarah a "tip" of one hundred dollars for the act, and appellee's attempts to send Sarah a picture of himself naked in a state of sexual excitement. In addition, appellee told Sarah that he was only nineteen years old, while she told him that she was only thirteen years old.

{¶ 5} Copies of other IMs were introduced into evidence, which revealed portions of similar sexual conversations that appellee had had with other young females.

{¶ 6} On September 14, 1999, a jury found appellee guilty of one count of compelling prostitution, five counts of disseminating matter harmful to juveniles, eight counts of pandering obscenity involving a minor, and one count of illegal use of a minor in a nudity-oriented material or performance. The court sentenced appellee to a total of eighteen years in prison. After a hearing, the trial court found that appellee is a sexual predator.

{¶ 7} The court of appeals agreed with appellee that the evidence presented by the state was insufficient as a matter of law to sustain his convictions under R.C. 2907.321(A)(6) of pandering obscenity involving a minor. The court held that R.C. 2907.321(A)(6) does not plainly indicate an intention to impose strict liability on the act of bringing child pornography into the state of Ohio and

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applied the culpable mental state of recklessness to appellee's conduct, pursuant to R.C. 2901.21(B)

{¶ 8} In support of its appeal, the state argues that a proper reading of R.C. 2907.321(A)(6) demonstrates the clear intent of the General Assembly to impose strict liability on the act of bringing child pornography into the state. We agree and reverse the court of appeals.

{¶ 9} It is undisputed that the General Assembly can "enact legislation with the purpose to impose strict criminal liability." State v. Jordan (2000), 89 Ohio St.3d 488, 493, 733 N.E.2d 601. In addition, there is no question that the General Assembly can specify the mental element required for each element of an offense. Id.

{¶ 10} We first consider the words of the statute to determine legislative intent. Provident Bank v. Wood (1973), 36 Ohio St.2d 101, 105, 65 O.O.2d 296, 304 N.E.2d 378. In determining legislative intent, our duty is "to give effect to the words used, not to delete words used or to insert words not used." Columbus-Suburban Coach Lines, Inc. v. Pub. Util. Comm. (1969), 20 Ohio St.2d 125, 127, 49 O.O.2d 445, 254 N.E.2d 8.

{¶ 11} R.C. 2907.321(A) provides:

{¶ 12} "(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:

{¶ 13} "* * *

{¶ 14} "(6) Bring or cause to be brought into this state any obscene material that has a minor as one of its participants or portrayed observers."

{¶ 15} R.C. 2901.21 provides:

{¶ 16} "(B) When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.

{¶ 17} "* * *

{¶ 18} "(D) As used in this section:

{¶ 19} "* * *

{¶ 20} "(3) `Culpability' means purpose, knowledge, recklessness, or negligence, as defined in section 2901.22 of the Revised Code."

{¶ 21} The court of appeals held that R.C. 2901.21(B) applies the element of recklessness to the act of bringing child pornography into the state. However, a court must be able to answer in the negative the following two questions before

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applying the element of recklessness pursuant to R.C. 2901.21(B): (1) does the section defining an offense specify any degree of culpability, and (2) does the section plainly indicate a purpose to impose strict criminal liability?

I. R.C. 2907.321(A)(6) Indicates a Plain Intent to Impose Strict Criminal Liability

{¶ 22} Appellant argues that the court of appeals misinterpreted the word "section" in R.C. 2901.21(B) to mean "division" of a Revised Code section, and mistakenly applied R.C. 2901.21. We agree. The General Assembly distinguishes between sections and divisions in the Ohio Revised Code. For example, R.C. 2901.21(A) begins, "Except as provided in division (B) of this section." (Emphasis added.) Likewise, R.C. 2907.321(C) states, "Whoever violates this section is guilty of pandering obscenity involving a minor. Violation of division (A)(1), (2), (3), (4), or (6) of this section is a felony of the second degree. Violation of division (A)(5) of this section is a felony of the fourth degree. If the offender previously has been convicted of or pleaded guilty to a violation of this section or section 2907.322 or 2907.323 of the Revised Code, pandering obscenity involving a minor in violation of division (A)(5) of the section is a felony of the third degree." (Emphasis added.) Thus, in determining whether R.C. 2901.21(B) can operate to supply the mental element of recklessness to R.C. 2907.321(A)(6), we need to determine whether the entire section includes a mental element, not just whether division (A)(6) includes such an element.

{¶ 23} R.C. 2907.321(A) includes the element of knowledge. The statute requires the state to prove, as a prerequisite to proving a defendant criminally liable for bringing into the state "any obscene material that has a minor as one of its participants or portrayed observers," that the defendant had "knowledge of the character of the material or performance involved." R.C. 2907.321(A)(6). Appellee argues that this knowledge requirement also applies to the act of bringing into the state obscene material that has a minor as one of its participants or portrayed observers. We disagree.

{¶ 24} In State v. Wac (1981), 68 Ohio St.2d 84, 22 O.O.3d 299, 428 N.E.2d 428, we found plain indications that the General Assembly meant to impose strict criminal liability. In that case, the appellant argued that recklessness was an element of bookmaking because R.C. 2915.02(A)(1) did not specify a culpable mental state for bookmaking. It provided:

{¶ 25} "(A) No person shall do any of the following:

{¶ 26} "(1) Engage in bookmaking, or knowingly engage in conduct that facilitates bookmaking."

{¶ 27} We rejected appellant's position. Noting that "[t]he General Assembly included the culpable mental state of `knowingly' as an element of facilitating

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bookmaking," we held that...