Because I believe the trial court properly found Moss guilty of the offense on his no-contest plea, I respectfully dissent. Where an indictment contains sufficient allegations to state an offense and the defendant pleads no contest, the trial court must find the defendant guilty.⁷ The majority in the instant case, however, relies on Osborne v. Ohio⁸ for the proposition that the allegations in the indictment of Moss were insufficient. I disagree.

In my opinion, the majority misapplies the holding inOsborne. The Osborne court merely held that the phrase "state of nudity" by its definition must refer to a lewd exhibition or a graphic focus on the genitals to survive constitutional scrutiny. The court did not thereby engraft or otherwise enact additional elements to the offense. Indeed, the judiciary would not be empowered to effectuate such a legislative amendment.

Pursuant to the Osborne holding, an admission to the facts of an indictment that alleges the depiction of a "state of nudity" includes by definition an admission to lewdness or graphic focus on the genitals. It is not necessary to expressly allege the definition of the term "state of nudity" to properly state an offense, just as it would not be necessary to define terms such as "deadly weapon" or "serious physical harm" in an indictment for felonious assault. Though the state would have to prove that the material was lewd or graphically focused on the genitals if the case had gone to trial, the admission of the element "state of nudity" in a no-contest plea subsumes the lewdness or graphic focus circumstances as mandated by the First Amendment and the holding of the court in Osborne.

To hold otherwise would assume that the statute, as written, fails to state an offense for which a person could be convicted. The Osborne holding simply does not stand for that proposition, and indeed, the court in Osborne expressly declined to extend its holding that far.⁹ The effect of the majority's decision in the case at bar is to impermissibly ignore the dictates of the Osborne holding and in effect invalidate the statute as written. Because such a holding is not warranted by the First Amendment or the case law construing R.C.2907.323(A)(3), I would affirm the conviction in the case at bar. Accordingly, I dissent.

Please Note:

The court has placed of record its own entry in this case on the date of the release of this Decision.

⁷ State ex rel. Stern v. Mascio (1996), 75 Ohio St.3d 422,662 N.E.2d 370.

⁸ (1990), 495 U.S. 103, 110 S.Ct. 1690.

⁹ Id. at 119, 110 S.Ct. at 1701.

R.C. 2907.323(A)(3) provides:

(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 * * *.

In this case, the indictment charged that Moss "possessed or viewed material or performance, to wit: MOPPETS AND TEENS MAGAZINE, which shows minors who are not [Moss's] children or ward, in a state of nudity * * *." The effect of Moss's no-contest plea was an admission of the truth of the facts alleged in the indictment.¹ If the indictment contained sufficient allegations to state a felony offense, the trial court would have been required to find Moss guilty of the offense.²

In his first assignment of error, Moss argues that the indictment's allegations were insufficient to state a felony offense in light of the Ohio Supreme Court's construction of R.C.2907.323(A)(3) in State v. Young.³ Moss argues that Young requires an allegation of lewdness or a graphic focus on the genitals in order to state an offense under R.C. 2907.323(A)(3). We agree.

In Young, supra,⁴the Ohio Supreme Court held the following:

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. [Emphasis added.]

"By limiting the statute's operation in this manner, the Ohio Supreme Court avoided penalizing persons for viewing or possessing innocuous photographs of naked children."⁵ The United States Supreme Court held that R.C. 2907.323(A)(3) survived overbreadth scrutiny, because, by restricting the statute's operation to nudity that constitutes lewd exhibition or focuses on genitals, the Ohio Supreme Court had rendered the "nudity" language permissible.⁶ Thus, R.C. 2907.323(A)(3) applies only to depictions of nudity that involve lewdness or graphically focus on the genitals.

While the indictment in this case mirrored the statutory language of R.C. 2907.323(A)(3), the indictment failed to allege the judicially engrafted element of the crime as required by Young, that is, lewdness or a graphic focus on the genitals. Therefore, we must conclude that the facts alleged in the indictment were insufficient to state a punishable offense. Furthermore, our examination of the record reveals that the magazine at issue was essentially a 1976 nudist publication. Moss's first assignment of error is sustained, the judgment of the trial court is reversed, and Moss is discharged from further prosecution. Because of our disposition of the first assignment of error, we need not address the remaining assignments of error.

Judgment reversed and appellant discharged. Gorman, J., concurs.

Hildebrandt, P.J., dissents.

¹ Crim.R. 11(B)(2).

² State ex rel. Stern v. Mascio (1996), 75 Ohio St.3d 422, 425,662 N.E.2d 370, 373.

³ (1988), 37 Ohio St.3d 249, 525 N.E.2d 1363, reversed on other grounds in Osborne v. Ohio (1990), 495 U.S. 103, 110 S.Ct. 1691.

⁴ Id. at paragraph one of syllabus.

⁵ Osborne, supra, at 113, 114, 110 S.Ct. 1691, 1698.

⁶ Id. at paragraph two of syllabus.