R.C. 2907.323(A)(3) Interpretation
R.C. 2907.323(A)(1) states, in part, that no person may photograph any minor, who is not the person's (the minor) child or ward, in a state of nudity.
Likewise, subsection (A)(3) bans the possession of material that depicts a minor, who is not that person's ward or child, in a state of nudity.
Although the indictment in the case sub judice is somewhat vague and does not specify a specific subsection for each count, it appears that counts two and three allege a violation of subsection (A)(3) and count four alleges a violation of subsection (A)(1).
In State v. Young (1988), 37 Ohio St.3d 249, 525 N.E.2d 1363, the Ohio Supreme Court held that nudity, for purposes of R.C. 2907.323(A)(3), means a "lewd exhibition or involves a graphic focus on the genitals." 37 Ohio St.3d 249, 525 N.E.2d 1363, at paragraph one of the syllabus.
Young construed the statute to avoid First Amendment issues that could arise with criminalizing the possession of nude child photographs with nothing more. Id. at 251.
In State v. Cook, 2nd Dist. No. 2008 CA 19, 2008 Ohio 6543, the Second Appellate District held that, because a violation of R.C. 2907.323(A)(3) was not a sexually oriented offense under former R.C. Chapter 2950, Cook, who had committed his R.C. 2907.323(A)(3) offense prior to January 1, 2008, was not subject to Senate Bill 10's tier-classification, registration, or notification provisions.
The Cook court reasoned that R.C. 2950.011 states that the definition of "sexually oriented offense" includes crimes committed before January 1, 2008, requiring registration; therefore, by implication, other crimes committed before January 1, 2008, are not included:
"The definition of 'sexually oriented offense' does not include offenses that were added by Senate Bill 10 if they were committed prior to Senate Bill 10's effective date.
By indicating that 'sexually oriented offense' includes offenses included in prior versions of Ohio's Sex Offender Registration and Notification Act, that were committed prior to January 1, 2008, and that required registration, R.C. 2950.011 implicitly states that other offenses committed prior to January 1, 2008, are not included in the definition.
In other words, the offenses added by Senate Bill 10 are to be considered 'sexually oriented offenses' prospectively only.
As conceded by the State, nothing in R.C. 2950.01 indicates that the new offenses are to be treated as 'sexually oriented offenses' retroactively. Accordingly, a person who committed a violation of R.C. 2907.323(A)(3) prior to January 1, 2008, is not subject to Senate Bill 10's registration and notification requirements." See id. at P22.