State v. Young, Nos. 86-1532

CourtUnited States State Supreme Court of Ohio
Writing for the CourtDOUGLAS; MOYER
Citation525 N.E.2d 1363,37 Ohio St.3d 249
Docket Number86-1728,Nos. 86-1532
Decision Date06 July 1988
PartiesThe STATE of Ohio, Appellee, v. YOUNG, Appellant. The STATE of Ohio, Appellee, v. OSBORNE, Appellant.

Page 249

37 Ohio St.3d 249
525 N.E.2d 1363
The STATE of Ohio, Appellee,
v.
YOUNG, Appellant.
The STATE of Ohio, Appellee,
v.
OSBORNE, Appellant.
Nos. 86-1532, 86-1728.
Supreme Court of Ohio.
Submitted May 3, 1988.
Decided July 6, 1988.
Syllabus by the Court

1. R.C. 2907.323(A)(3) 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.

2. The term "minor," as employed in R.C. 2907.323(A)(3), connotes a person under eighteen years of age.

3. Recklessness is the culpable mental state required to constitute a violation of R.C. 2907.323(A)(3).

4. The "proper purposes" exceptions set forth in R.C. 2907.323(A)(3)(a) and (b) are affirmative defenses within the meaning of R.C. 2901.05(C)(2).

Page 250

In case No. 86-1532, Columbus police officers applied for a warrant to search the residence of defendant-appellant, Denis Young. The facts contained in the affidavit for the warrant were provided to police by two male minors who had been arrested on separate occasions for being a runaway and for male prostitution, respectively. Both informants reported that they had been picked up by Young and taken to Young's home, that Young had taken nude photographs of them, and that they had engaged in sexual acts with Young. Further, both informants reported that they had observed photographs in Young's house of nude minors or of minors engaged in sexual activity.

[525 N.E.2d 1366] The warrant was executed on March 21, 1985. Various items were seized, including four photographs of one of the informants. Young was subsequently charged with possession of material depicting a minor in a state of nudity in violation of R.C. 2907.323(A)(3).

Young filed a motion to dismiss the indictment on the basis that R.C. 2907.323(A)(3) is unconstitutional. He also moved to suppress the evidence seized pursuant to the search, alleging that the search warrant was issued without probable cause. Both motions were overruled, the motion to suppress after a hearing. Young thereafter entered a plea of no contest and was found guilty of the charge set forth in the indictment. Upon appeal, the court of appeals affirmed Young's conviction, upholding the constitutionality of R.C. 2907.323(A)(3).

In case No. 86-1728, Columbus police secured a warrant to search the residence of defendant-appellant, Clyde J. Osborne. The warrant was issued pursuant to an affidavit sworn by Detective James A. Phillips of the Columbus Police Department. The information recited in the affidavit was based on a conversation between Phillips and an Ohio postal inspector. The inspector informed Phillips that a Florida postal inspector had arrested two persons in that state who, during interrogation, implicated Osborne as having photographic negatives of child pornography in his possession.

The warrant was executed on July 22, 1985, resulting in the seizure of, inter alia, photographs of nude male minors. Osborne was subsequently charged with a violation of R.C. 2907.323(A)(3).

Osborne filed various pretrial motions, including a motion to dismiss the indictment on the basis that R.C. 2907.323(A)(3) is unconstitutional, and a motion to suppress the evidence seized during the search. These motions were overruled and, after a jury trial, appellant was found guilty as charged.

Upon appeal, the court of appeals upheld the constitutionality of R.C. 2907.323(A)(3) and affirmed Osborne's conviction.

By separate entries, the appellate court, finding its judgments in case Nos. 86-1532 and 86-1728 to be in conflict with the judgment of the Court of Appeals for Hamilton County in State v. Meadows (Dec. 18, 1985), No. C-850091, unreported, certified the record of each case to this court for review and final determination.

Ronald J. O'Brien, City Atty., for appellee.

Andrea R. Yagoda, Columbus, for appellant in case No. 86-1532.

Richard Curtner, for appellant in case No. 86-1728.

S. Adele Shank, for appellants.

DOUGLAS, Justice.

The question certified to this court in the two cases before us today is whether the state, consistent with the First Amendment to the United States Constitution, may outlaw the private possession of child pornography. This question has since been answered in the affirmative in State v. Meadows (1986), 28 Ohio St.3d 43, 28 OBR 146, 503 N.E.2d 697. The syllabus in Meadows reads:

"R.C. 2907.322(A)(5), which prohibits the knowing possession or control of material which shows a minor participating or engaging in sexual activity, masturbation, or bestiality, does not violate the First Amendment to the United States Constitution, as made applicable to the states by reason of the Fourteenth Amendment. (Stanley v. Georgia [1969], 394 U.S. 557 [89 S.Ct. 1243, 22 L.Ed.2d 542], and New York v. Ferber [1982], 458 U.S. 747 [102 S.Ct. 3348, 73 L.Ed.2d 1113], construed, harmonized and followed.)"

Our ruling in Meadows concerned the constitutionality of R.C. 2907.322(A)(5), while the cases before us today involve a related statute, R.C. 2907.323(A)(3). However, shortly after Meadows was decided, this court issued judgment entries in two cases involving R.C. 2907.323(A)(3), both of which were resolved solely on the authority of Meadows. State v. Modeen (1986), 28 Ohio St.3d 64, 28 OBR 164, 502 N.E.2d 634; [525 N.E.2d 1367] State v. Robinson (1986), 28 Ohio St.3d 65, 28 OBR 165, 502 N.E.2d 634. Thus, the question certified to this court in today's cases has already been decided.

However, it is well-established that "[c]ertification of the record of a case to the Supreme Court because of conflict between judgments of Courts of Appeals upon any question, brings the

Page 251

entire case before the Supreme Court for review." Couk v. Ocean Acc. & Guar. Corp. (1941), 138 Ohio St. 110, 20 O.O. 65, 33 N.E.2d 9, paragraph one of the syllabus. On this basis, we turn now to a consideration of the remaining issues presented by the cases at bar.

In addition to the First Amendment issues resolved in Meadows, supra, appellants herein raise additional challenges to the constitutionality of R.C. 2907.323(A)(3) which were not addressed in that decision. In determining the validity of these challenges, we must remain mindful that all legislative enactments enjoy a strong presumption of constitutionality. State, ex rel. Dickman, v. Defenbacher (1955), 164 Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59, paragraph one of the syllabus.

Appellants first argue that R.C. 2907.323(A)(3) violates the constitutional prohibition against vagueness and overbreadth. The statute provides in pertinent part:

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

" * * *

"(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, clergyman, 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."

Appellants contend that the statute is overbroad because it sweeps within its ambit other activities that constitute an exercise of constitutionally protected expression. For example, the use of the term "nudity" is challenged as overly broad, since that term encompasses morally innocent states of nudity as well as lewd exhibitions. Thus, it is argued, the statute fails to define in a sufficiently narrow manner the criminal conduct it prohibits. See, e.g., N.A.A.C.P. v. Button (1963), 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405.

We do not agree with this analysis. The First Amendment doctrine of overbreadth is limited in its application to laws in which the deterrence of protected activities is substantial. Where, as here, a statute regulates conduct rather than pure speech, its overbreadth " * * * must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma (1973), 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830. For the following reasons, we find that R.C. 2907.323(A)(3) is not constitutionally infirm on the basis of overbreadth.

It is true that R.C. 2907.323(A)(3) does not expressly limit the prohibited state of nudity to a lewd exhibition or a graphic focus on the genitals. Furthermore, we are aware that " * * * nudity, without more is protected expression * * *," even where the subject depicted is a child. New York v. Ferber (1982), 458 U.S. 747, 765, fn. 18, 102 S.Ct. 3348, 3359 fn. 18, 73 L.Ed.2d 1113. However, when the "proper purposes" exceptions set forth in R.C. 2907.323(A)(3)(a) and (b) are considered, the scope of the prohibited conduct narrows

Page 252

significantly. The clear purpose of these exceptions, quoted supra, 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 [525 N.E.2d 1368] 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.

In the area of child pornography, the...

To continue reading

Request your trial
131 practice notes
  • Osborne v. Ohio, No. 88-5986
    • United States
    • United States Supreme Court
    • April 18, 1990
    ...under the name of local practice. Cf. Douglas v. Alabama, 380 U.S. 415, 421-422, 85 S.Ct. 1074, 1078-1079, 13 L.Ed.2d 934. Pp. 122-125. 37 Ohio St.3d 249, 525 N.E.2d 1363, reversed and remanded. WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, O'CONNOR,......
  • McNeill v. Bagley, Case No. 1:02 CV 1645
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • August 26, 2019
    ...424-425, 613 N.E.2d 212, 219 and 221; State v. DePew (1988), 38 Ohio St.3d 275, 282-283, 528 N.E.2d 542, 552; State v. Young (1988), 37 Ohio St.3d 249, 252-253, 525 N.E.2d 1363, 1368-1369, reversed on other grounds Osborne v. Ohio (1990), 495 U.S. 103, 125-126, 110 S.Ct. 1691, 1705, 109 L.E......
  • State v. Mole, No. 2013–1619.
    • United States
    • United States State Supreme Court of Ohio
    • July 28, 2016
    ...We, too, have recognized the state's interest in protecting minors, including protections from sexual exploitation. State v. Young, 37 Ohio St.3d 249, 256–257, 525 N.E.2d 1363 (1988) (upholding statute criminalizing possession of child pornography as justified by state's compelling interest......
  • T.R., In re, Nos. 89-1302
    • United States
    • Ohio Supreme Court
    • June 13, 1990
    ...important and deserving of protection, the state also has a compelling interest in the protection of children. State v. Young (1988), 37 Ohio St.3d 249, 257, 525 N.E.2d 1363, 1372. The "substantial probability" standard gives insufficient weight to this interest, leaving the juvenile court ......
  • Request a trial to view additional results
131 cases
  • Osborne v. Ohio, No. 88-5986
    • United States
    • United States Supreme Court
    • April 18, 1990
    ...under the name of local practice. Cf. Douglas v. Alabama, 380 U.S. 415, 421-422, 85 S.Ct. 1074, 1078-1079, 13 L.Ed.2d 934. Pp. 122-125. 37 Ohio St.3d 249, 525 N.E.2d 1363, reversed and remanded. WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, O'CONNOR,......
  • McNeill v. Bagley, Case No. 1:02 CV 1645
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • August 26, 2019
    ...424-425, 613 N.E.2d 212, 219 and 221; State v. DePew (1988), 38 Ohio St.3d 275, 282-283, 528 N.E.2d 542, 552; State v. Young (1988), 37 Ohio St.3d 249, 252-253, 525 N.E.2d 1363, 1368-1369, reversed on other grounds Osborne v. Ohio (1990), 495 U.S. 103, 125-126, 110 S.Ct. 1691, 1705, 109 L.E......
  • State v. Mole, No. 2013–1619.
    • United States
    • United States State Supreme Court of Ohio
    • July 28, 2016
    ...We, too, have recognized the state's interest in protecting minors, including protections from sexual exploitation. State v. Young, 37 Ohio St.3d 249, 256–257, 525 N.E.2d 1363 (1988) (upholding statute criminalizing possession of child pornography as justified by state's compelling interest......
  • T.R., In re, Nos. 89-1302
    • United States
    • Ohio Supreme Court
    • June 13, 1990
    ...important and deserving of protection, the state also has a compelling interest in the protection of children. State v. Young (1988), 37 Ohio St.3d 249, 257, 525 N.E.2d 1363, 1372. The "substantial probability" standard gives insufficient weight to this interest, leaving the juvenile court ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT