The requirement of lewdness or graphic focus on the genitals has been engrafted on the definition of "state of nudity," as used in R.C. 2907.323(A)(3), illegal use of a minor in nudity-oriented material or performance. Because the judicial construction placed on the element of "state of nudity" is not a separate element, but merely defines that element as it is set forth in R.C. 2907.323(A)(1) and (A)(3), an indictment charging an offense under either provision of the statute is sufficient if it charges the offense using the words of the statute.
The trial court convicted defendant of two counts of illegal use of a minor in nudity-oriented material or performance, in violation of R.C. 2907.323(A)(3). Defendant filed a motion for a judgment of acquittal under Crim.R. 29, contending that the photographs (Exhibits 5 and 6) forming the basis for the charges, while constituting photographs of nude underage boys, did not satisfy the requirement that the "nudity constitutes a lewd exhibition or involves a graphic focus on the genitals," which was engrafted upon the statute by State v. Young, 37 Ohio St.3d 249, 525 N.E.2d 1363 (1988). The trial court overruled the motion. Defendant appealed his conviction and sentence. The appellate court reversed defendant’s conviction based upon Exhibit 5 but affirmed the conviction based upon Exhibit 6. The cause was remanded for resentencing.
Did the trial court err in overruling defendant’s motion for a judgment of acquittal, contending that photographs (Exhibits 5 and 6) forming the basis for the charges did not satisfy the statutory requirements?
Yes, in part.
Sufficient evidence did not support the conviction for the count corresponding to Exhibit 5. Based on the setting and the pose, it could not be found, beyond reasonable doubt, that the photograph was intrinsically unchaste or licentious, inciting to sensual desire or imagination. Exhibit 6 satisfied the requirement beyond a reasonable doubt, based upon the prominence of the boy's nude buttocks and his provocative stance.