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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

SEX OFFENSES (122)

Also see Prostitution; Kidnapping; Allied Offenses of Similar Import; Lesser-Included Offenses; Sexual Predator Laws; Computers and Electronic Devices.

 

Rape

Rape shield law

Force

Sexual battery

Sexual imposition

Other acts evidence

Expert witnesses; Physical and mental examinations

Other witness and evidentiary issues

Instructions

Lesser included offenses

Merger

Sufficiency of proof; Degree of offense; Penalties

Pornography

Other sex offenses

 

R.C. 2907.01 -- Definitions.

R.C. 2907.02 -- Rape.

R.C. 2907.03 -- Sexual battery.

R.C. 2907.04 -- Corruption of a minor.

R.C. 2907.05 -- Gross sexual imposition.

R.C. 2907.06 -- Sexual imposition.

R.C. 2907.07 -- Importuning.

R.C. 2907.08 -- Voyeurism.

R.C. 2907.09 -- Public indecency.

R.C. 2907.27 -- Examination and treatment for venereal disease; HIV tests.

Rape

Kennedy v. Louisiana (2008), 128 S.Ct. 2641 – The Eighth Amendment does not permit the death penalty for rape of a child when death was neither the result nor intended result.

In re D.B., 129 Ohio St. 3d 104, 2011-Ohio-2671 – As applied to offenders under age 13, R.C. 2907.02(A), proscribing non-forcible sexual relations with a child under thirteen is unconstitutionally vague and violates the right to equal protection. ¶24: “When an adult engages in sexual conduct with a child under the age of thirteen, it is clear which party is the offender and which is the victim. But when two children under the age of 13 engage in sexual conduct with each other, each child is both an offender and a victim, and the distinction between those two terms breaks down.” Choosing to prosecute one child but not the other is discriminatory enforcement. Prosecution remains possible when force is used or other circumstances exist.

State v. Kaufman, 187 Ohio App. 3d 50, 2010-Ohio-1536 -- ¶54-58: While the law does not impute an authoritative relationship merely because the defendant is an adult and the victim is a child, here the defendant’s long standing relationship with one of the victims’ mother sufficed.. ¶59-62: Same conclusion as to second victim where the sex acts were characterized as punishment. ¶ 85-98: Evidence one victim had been adjudicated delinquent for molesting his step-brother was inadmissible under the rape shield law and Evid. R. 609(D). ¶113-131: Court finds no problem with the testimony of an expert who had no direct involvement with the victims. ¶160-190: Joinder was prejudicial and counts should have been tried separately according to victim. In sex offense prosecutions the common modus operandi pitch for joinder runs into the rape shield law and Evid. R. 404. Nor were the acts inextricably intertwined or identity of the offender disputed. The opinion notes that the trial court did not allow a third alleged victim to testify as to other acts evidence. The evidence was not simple and distinct as to each victim given the risk the jury would view the evidence in toto as corroborative, and the inflammatory nature of the offenses charged. This case demonstrates the difficulty of child rape appeals. Though the court was receptive to a degree to many of the defense claims about the weakness of the case and fairness of the trial it reversed on only one claim, and that with a dissent. On remand a plea bargain netted the defendant a six-year sentence in place of five times life plus twenty years.

State v. Wells (2001), 91 Ohio St. 3d 32, 35 -- "If the evidence shows that the defendant made contact only with the victim's buttocks, there is not sufficient evidence to prove the defendant guilty of the crime of anal rape. As a corollary, where the evidence shows that the defendant attempts to penetrate the victim's anus, and, for whatever reason, fails to do so, and makes contact only with the buttocks, there is sufficient evidence to prove the defendant guilty of the crime of attempted anal rape." Also see State v. Lee, Franklin App. No. 03AP-436, 2004-Ohio-5540.

State v. Smith, Clark App. No. 2003-CA-23, 2004-Ohio-665 -- Sexual conduct not established where victim nodded affirmatively when asked if the defendant stuck his hands into her pants, but shook her head and answered negatively when asked if he made penetration. As to a male victim, indication of some oral contact with the buttocks only was not sufficient to establish anal intercourse or fellatio.

State v. Stricker, Franklin App. No. 03AP-746, 2004-Ohio-3557, ¶17 -- "Not the spouse" language in the definition of rape reflects the marital privilege defense and is not an element.

State v. Hardie, 171 Ohio App. 3d 429, 2007-Ohio-2755 -- Defendant received LWOP for forcible kiddie rape following a guilty plea. The plea encompassed admissions to the facts leading to the enhanced sentence. Blakely and Foster do not apply.

State v. Bailey (1992), 78 Ohio App. 3d 394 -- Penetration is not an element of rape premised on cunnilingus. Also see State v. Ramirez (1994), 98 Ohio App. 3d 388, 393.

State v. Astley (1987), 36 Ohio App. 3d 247 -- Penetration element established, even though for purposes of taking a photograph fellatio had been simulated without actual contact. As to whether penetration must be proven when rape is premised on fellatio or cunnilingus see State v. Ferguson (1983), 5 Ohio St. 3d 160, 168 fn. 7.

State v. Clark (1995), 106 Ohio App. 3d 426 -- (1) Fellatio does require proof of penetration. (2) Evidence that infant was placed face down on grandfather's lap sufficient for force element.

State v. Shoop (1993), 87 Ohio App. 3d 462, 468-469 -- Petechial lesion on the hymen found sufficient to prove penetration in felonious sexual penetration prosecution. To prove penetration it is not necessary that the hymen be broken or that there be an injury to the vagina.

State v. Carpenter (1989), 60 Ohio App. 3d 104 -- Headnote: "The presence of an intact hymen does not preclude a finding by a jury, upon other competent evidence, that a rape has been committed." (Slight penetration sufficient.) Also see State v. Milburn (September 16, 1980), Franklin Co. App. No. 79AP-848, unreported (1980 Opinions 2898).

State v. Collins (1990), 66 Ohio App. 3d 438, 441-444 -- Rape conviction upheld though appears sexual conduct did not occur until after the victim's death. Seems at odds with the notion that the word "person" refers to a life in being. Rationale appears to be that there was a continuing course of conduct encompassing the death of the victim. Also see State v. Whitsell (1990), 69 Ohio App. 3d 512 involving the offense of felonious sexual penetration and citing Collins.

State v. Love (1988), 49 Ohio App. 3d 88 -- There is no requirement that the testimony of a rape victim be corroborated.

State v. Hart (1991), 72 Ohio App. 3d 92, 96 -- In a rape prosecution it is irrelevant what was going through the victim's mind at the time of the incident.

State v. Williams (1989), 52 Ohio App. 3d 19, 21 -- Court finds state did not have to prove a culpable mental state where defendant was convicted of rape and GSI of a minor under age 13. (Opinion avoids the usual discussion of what culpable mental state applies when none is specified in the statute and is probably erroneous.)

In re Washington (1996), 75 Ohio St. 3d 390 -- Syllabus: "A child under the age of fourteen is presumed capable of committing rape. Williams v. State [1854], 14 Ohio 222, and Hiltabiddle v. State [1878], 35 Ohio St. 52, overruled." Body of opinion states that Ohio is not among those states where there is a rebuttable presumption that a child under fourteen is incapable of committing the crime of rape. Dissent states focus should have been upon eight year old defendant's ability to form intent.

In re M.D. (1988), 38 Ohio St. 3d 149 -- It is against public policy for a twelve year old to be prosecuted for complicity to commit rape for "playing doctor." Such prosecution is a violation of due process.

In re Frederick (1993), 63 Ohio Misc. 2d 229 -- The rape statute does not reach consensual intercourse between a boy who has just turned fourteen and a girl aged twelve years, five months. Also see In re Smith (1992), 80 Ohio App. 3d 502. Compare In re Hamrick (September 29, 1988), Franklin Co. App. No. 87AP-1154, unreported (1988 Opinions 3599) reaching the opposite conclusion where a fifteen year old boy and an eleven year old girl engaged in consensual sex.

State v. Smelcer (1993), 89 Ohio App. 3d 115, 124 -- "Rape of a person less than thirteen years old by means of fellatio is a strict liability offense." Also see State v. Nicodemus (May 15, 1997), Franklin Co. App. No. 96APA10-1359, unreported (1997 Opinions 1789).

State v. Bock (1986), 28 Ohio St. 3d 108 -- Harmless error to tell the jury to disregard "not the spouse" element of rape where because of age and gender of victim he could not lawfully have been the defendant's spouse.

State v. Clark (1988), 43 Ohio App. 3d 104 -- Under former R.C. 2907.02, a defendant could be convicted of the rape of his wife if a divorce action was pending. Note: Under the current version, conviction is possible if the offender is living separate and apart from spouse. The extent to which Clark still applies may be problematic.

State v. Rittenhour (1996), 112 Ohio App. 3d 219 -- There is no marital defense to felonious sexual penetration.

State v. Hooper (1979), 57 Ohio St. 2d 87 -- For purposes of the former felonious sexual penetration statute, a finger is not an "object."

State v. Hill (1996), 112 Ohio App. 3d 473 -- Bill of particulars and evidence at trial indicated multiple events were encompassed in a single count of rape, and instructions did not narrow focus of jurors. Majority and dissent split on whether this amounted to impermissible duplicity.

State v. Alexander (1989), 58 Ohio App. 3d 28 -- Headnote: "In a child-rape case, where the child-victim does not know that the criminal act committed against her is wrong, the corpus delicti of the crime remains undiscovered, and the period of limitation does not commence to run until the wrong is discovered."

State v. Amyx (1988), 55 Ohio App. 3d 54 -- Headnote 1: "In a rape prosecution, the selection of a jury composed of eight females and four males does not, standing alone, substantiate a claim of ineffective assistance of counsel raised by a male defendant on the theory that female jurors are more likely to convict than are male jurors."

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Rape shield law

State v. Yenser, 176 Ohio App. 3d 1, 2008-Ohio-1145 – Defendant was charged with anal rape of his estranged wife. Defense was consent. Trial court improperly applied the rape shield law to keep out testimony they had engaged in such activity in the past. The defendant‘s past sexual activity with the victim is admissible under R.C. 2907.02(D), and here was relevant to the defense of consent.

State v. Black, 172 Ohio App. 3d 716, 2007-Ohio-3133 -- Trial court granted the state‘s motion in limine under the rape shield law to exclude evidence the victim had previously been sexually abused. Relying on In re Michael (1997), 119 Ohio App. 3d 112 the defendant claimed this prevented him from showing the victim, who would not be expected to be sexually knowledgeable, had an alternative source of knowledge about sexual conduct other than the acts attributed to the defendant. Instead the court followed State v. Hennis, Clark App. No. 2003 CA 21, 2005-Ohio-51 reaching the opposite conclusion where the victim was a teenager. Affirmed. Though the victim was closer in age to the victim in Michael, the defendant‘s admissions warranted following Hennis. Also see State v. Guthrie (1993), 86 Ohio App. 3d 465.

State v. Craig, 110 Ohio St. 3d 306, 2006-Ohio-4571, ¶63-72 -- Application of Ohio's rape shield law found not to be arbitrary and contrary to Holmes v. North Carolina, 547 U.S. ___, 126 S.Ct. 1727. The rape shield law continues to apply when the victim has been killed.

State v. Chaney, 169 Ohio App. 3d 246, 2006-Ohio-5288 -- The defendant had information the victim had partially recanted a rape allegation against another defendant. Reversed because he was denied the opportunity to ask the victim if she had made a false accusation. Had she said no he would have been bound by the answer and not permitted to introduce extrinsic evidence to the contrary. State v. Boggs (1992), 63 Ohio St. 3d 418, applied.

State v. Acre (1983), 6 Ohio St. 3d 140 -- An in camera hearing shall be conducted to determine the admissibility under the rape shield law of testimony regarding collateral sexual acts. A side bar conference does not satisfy this requirement.

State v. Cotton (1996), 113 Ohio App. 3d 125 -- Rape shield law required hearing in chambers on admissibility of evidence. Bench conference was not sufficient. Evidence in question did not go to origin of semen, pregnancy, disease, or the defendant's past sexual activity with the victim, nor did it qualify as similar acts evidence. Concurring opinion states material was no more than unfounded personal beliefs or unsubstantiated accusations. Compare State v. Netherland (1999), 132 Ohio App. 3d 252 finding waiver of right to hearing.

State v. Hart (1996), 112 Ohio App. 3d 327 -- Application of rape shield law claimed to have denied defendant his Sixth Amendment right to confront witnesses against him and his Fourteenth Amendment right to due process. Material in question did not fall within the listed exceptions in the rape shield law. Court weighs probative value of the evidence, concluding trial court did not abuse its discretion keeping sexual liaison between the victims from the jury. For further discussion of the right to confrontation vis a vis the rape shield law see In re Michael (1997), 119 Ohio App. 3d 112.

State v. Williams (1986), 21 Ohio St. 3d 33 -- In a rape prosecution where the alleged victim on direct denied previously having sex with the defendant and that she did not have sex with men because she was gay, it was a denial of the defendant's right of confrontation not to allow testimony contradicting these assertions, notwithstanding the rape shield law and Evid. R. 608(B). Also see State v. Williams (1984), 16 Ohio App. 3d 484 (same case); Olden v. Kentucky (1988), 488 U.S. 227. Compare State v. Tomlinson (1986), 33 Ohio App. 3d 278, 280; State v. Leslie (1984), 14 Ohio App. 3d 343.

In re Johnson (1989), 61 Ohio App. 3d 544, 550-551 -- Defendant was entitled to introduce testimony of third party to whom victim expressed her desire to have sexual relations with the defendant. The rape shield law applies to sexual activity and not expression of sexual desires. Defense was consent.

State v. Graham (1979), 58 Ohio St. 2d 350 -- Evidence of past sexual relations between the defendant and the victim was not relevant where the defendant denied being present and consent was no a defense.

State v. Ferguson (1983), 5 Ohio St. 3d 160, 163-165 -- Rape shield law barred cross examination of victim based on contradictory statements on the stand in hospital reports as to date of prior sexual activity where consent was the defense and testimony was not material to the statutory exceptions.

State v. Gardner (1979), 59 Ohio St. 2d 14 -- Rape shield law did not deny Sixth Amendment right to confrontation where the claim that the victim was a prostitute did not bear on her credibility or the issue of consent. Evidence of other rape at gunpoint, one night before incident charged, was admissible under R.C. 2945.59 and tended to prove intent to commit forcible rape.

State v. Smith (1986), 34 Ohio App. 3d 180 -- Where defendant denied having sexual relations with the victim and semen was detected during hospital examination, defendant was entitled to introduce testimony victim had intercourse with two other men during the twenty-four hours before she was examined. Credibility of this testimony was for the jury and not the court to determine. Also see State v. Brewster (May 1, 1990), Franklin Co. App. No. 88AP-974, unreported (1990 Opinions 1701).

State v. Clemons (1994), 94 Ohio App. 3d 701 -- In a GSI and rape prosecution, testimony concerning the defendant's "problem" with masturbation was not admissible under the rape shield law, as it did not involve the origin of semen, pregnancy or disease, or of the defendant's past sexual activity with the victim. Nor was it admissible as similar acts evidence.

State v. Price (1992), 80 Ohio App. 3d 35, 40-41 -- Trial court erroneously allowed testimony as to defendant's sexual relations with another stepdaughter. Held not to be admissible as an exception under R.C. 2907.02(D) since it was not offered to prove the source of semen, pregnancy or disease, nor was it evidence of the defendant's past sexual activity with the victim. Was not admissible under R.C. 2945.59 or Evid. R. 404(B) since it was not connected with acts charged, nor did it explain the circumstances of those acts.

State v. Banks (1991), 71 Ohio App. 3d 214 -- Defendant's assertion that he had never had sex with any child opened the door to evidence to the contrary. Compare State v. Hamilton (1991), 77 Ohio App. 3d 293 where in similar circumstances the appellate court found Evid. R. 608(B) barred admission of extrinsic evidence of incident defendant had denied.

State v. Ridgeway (1990), 66 Ohio App. 3d 270 -- Evidence that victim had gonorrhea and defendant did not was of such low probative value as to be properly excluded. Court further finds issue was not raised in a timely fashion. Instead of hearing in chambers at least three days before trial, was raised at sidebar in mid trial without explanation why had not been raised sooner.

State v. Black (1993), 85 Ohio App. 3d 771, 778 -- "(B)ecause prior false accusations of rape do not constitute sexual activity of the victim, the rape-shield doctrine does not exclude such evidence." Also see State v. Watson (August 27, 1981) Franklin Co. App. No. 80AP-880, unreported (1981 Opinions 2657) Compare State v. Banks (1997), 117 Ohio App. 3d 592, 595-597.

State v. Boggs (1992), 63 Ohio St. 3d 418 -- Syllabus: "(1) Evid. R. 608(B) allows, in the trial court's discretion, cross-examination on specific instances of conduct 'if clearly probative of truthfulness or untruthfulness.' In certain instances it is within the discretion of the trial court to permit cross-examination of a rape victim as to prior accusations of rape. (2) ...(T)he trial judge shall conduct an in camera hearing to ascertain whether sexual activity was involved and, as a result, cross-examination on the accusation would be prohibited by 2907.02(D), or whether the accusation was totally unfounded and therefore could be inquired into pursuant to Evid. R. 608(B)."

State v. Boggs (1993), 89 Ohio App. 3d 206 -- Implementing the decision in State v. Boggs (1992), 63 Ohio St. 3d 418, courts are to follow a two stage procedure. Defense counsel may ask the witness if she has made any false prior rape accusations. If the answer is no, the court would have the discretion to determine whether and to what extent counsel may proceed with cross. If the answer is yes, the court is to conduct an in camera hearing. If it is ascertained that the false accusations involved sexual activity, further inquiry may be barred by the rape shield law. If sexual activity was not involved, then further cross may be allowed, but Evid. R. 608(B) would bar the introduction of extrinsic evidence. However, extrinsic evidence may be heard at the in camera hearing.

State v. Guthrie (1993), 86 Ohio App. 3d 465 -- The rape shield law, considered in conjunction with Evid. R. 608, does not provide for impeachment of the reputation for truth telling by evidence of a victim's past sexual conduct which tends to show that she may have the ability to fabricate a new but fictitious story, or to establish an alternate source of knowledge of sexual function, or for possibly establishing a motive for bringing charges of sexual abuse. Question whether this interpretation is sufficiently broad as to deny right to confrontation.

State v. Dozier (December 10, 1981), Franklin Co. App. No. 81AP-552, unreported (1981 Opinions 4000) -- The rape shield law does not preclude use of a defendant's prior sex offense convictions for impeachment pursuant to Evid. R. 609. (Should still object probative value outweighed by prejudice and offer to stipulate conviction without naming offense.)

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Force

State v. Eskridge (1988), 38 Ohio St. 3d 56 -- Paragraph one of the syllabus: "The force and violence necessary to commit the crime of rape depends upon the age, size and strength of the parties and their relation to each other. With the filial obligation of obedience to a parent, the same degree of force and violence may not be required upon a person of tender years, as would be required were the parties more nearly equal in age, size and strength. (State v. Labus [1921], 102 Ohio St. 26, 38-39.)" Also see: State v. Stokes (1991), 72 Ohio App. 3d 735 -- Threats of harm to child's mother if rape was reported found sufficient to establish force element where victim was under thirteen. State v. Netherland (1999), 132 Ohio App. 3d 252, 264-265 -- Rule applies to foster parents.

State v. Schaim (1992), 65 Ohio St. 3d 51 -- (1) Paragraph one of the syllabus: "A defendant purposely compels another to submit to sexual conduct by force or threat of force if the defendant uses physical force against that person, or creates the belief that physical force will be used if the victim does not submit. A threat of force can be inferred from the circumstances surrounding sexual conduct, but a pattern of incest will not substitute for the element of force where the state introduces no evidence that an adult victim believed that the defendant might use physical force against her. (State v. Eskridge [1988], 38 Ohio St. 3d 56..., distinguished.)" (2) Sex offense charges involving three different victims should have been severed. Evidence would not have been admissible as similar acts evidence.

State v. Fowler (1985), 27 Ohio App. 3d 148, 154 -- "Force need not be overt and physically brutal, but can be subtle and psychological. As long as it can be shown that the rape victim's will was overcome by fear or duress, the forcible element of rape can be established. State v. Martin (1946), 77 Ohio App. 553; State v. Wolfenberger (1958), 106 Ohio App. 553."

State v. Dye (1998), 82 Ohio St. 3d 323 -- Syllabus: "A person in a position of authority over a child under thirteen may be convicted of rape of that child with force pursuant to R.C. 2907.02(A)(1)(b) and (B) without evidence of express threat of harm or evidence of significant physical restraint."

State v. Payton (1997), 119 Ohio App. 3d 694 -- On the first night he stayed with old friends, defendant got drunk and molested their daughter. Because he was not a parent or stepparent, and did not have a close relationship with the child, he did not occupy a position of authority over the victim. Though the acts described could support a finding of force with respect to a person in a position of authority, they did not as to defendant.

State v. Riffle (1996), 110 Ohio App. 3d 554 -- For purposes of proving the force element of life rape, court extends the rule of State v. Eskridge (1988), 38 Ohio St 3d 56 to person standing in loco parentis.

State v. Banks (1997), 117 Ohio App. 3d 592, 595 -- Force established by a threat of harm if the victim told of sexual misconduct, and where the victim had in the past seen the defendant hit her mother.

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Sexual battery

State v. Ortiz, 185 Ohio App. 3d 733, 2010-Ohio-38 – Charged with rape, defendant contended that post-Wrestlemania sex was consensual. PW claimed it was not. At a bench trial the judge found the defendant guilty of sexual battery. Rape requires proof of purpose on the part of the offender. It is possible to prove an offender acted knowingly though not purposely. Furthermore, force is not required to prove coercion, which is the basis of sexual battery. The defendant’s low IQ and the past history of the couple made this a reasonable view of the evidence. See State v. Wilkins (1980), 64 Ohio St. 2d 382, 386.

State v. Nagel, 188 Ohio App. 3d 348, 2010-Ohio-3062, ¶46 – Counsel was not ineffective for failing to object to when the victim testified she was beaten with a belt and had encyclopedias “smashed” in her face. Disciplinary measured helped demonstrate stepfather was a person in loco parentis. Such disciplinary practices were also relevant to proof of the force element of rape.

In re Moore, Franklin App. No. 04AP-581, 2004-Ohio-6357 -- The purpose of arousal or gratification element of gross sexual imposition may be inferred from the circumstances. Direct testimony is not required.

State v. Sears, 119 Ohio Misc. 2d 80, 2002-Ohio-4225 -- The amended version of R.C. 2907.03, applicable to school employees, may not be applied to previously lawful activity occurring before its effective date.

State v. Noggle (1993), 67 Ohio St. 3d 31 -- A high school teacher and coach is not a "person in loco parentis" for purposes of the sexual battery statute.

State v. Benson (1992), 81 Ohio App. 3d 697, 700-701 -- The sexual battery statute's proscription of sexual conduct between a stepparent and stepchild is not facially unconstitutional.

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Sexual imposition

State v. Dunlap, 129 Ohio St. 3d 461, 2011-Ohio-4111 R.C. 2907.05(A)(4) sets forth the elements of gross sexual imposition when the victim is under the age of 13. It establishes strict liability as to the offender’s knowledge of the victim’s age. However, the contact between the victim and the defendant must be purposeful.

State v. Drayer, Franklin App. No. 03AP-1033, 2004-Ohio-5061 -- Force element of gross sexual imposition was not proven. Touching alone did not amount to constraint. Nor may force be inferred from the mere fact the defendant was an adult. There must be some evidence the adult is perceived as an authority figure. Here he was a near stranger. Sexual imposition was proven, but court does not address whether it is a lesser-included offense. But see State v. Drayer, 159 Ohio App. 3d 189, 2004-Ohio-6120 where the court granted the prosecutor's application for reconsideration and affirmed the conviction. While not abandoning the above reasoning, the court found the defendant's conduct following the touching could be considered and it did establish constraint.

State v. Economo (1996), 76 Ohio St. 3d 56 -- Syllabus: "The corroborating evidence necessary to satisfy R.C. 2907.06(B) need not be independently sufficient to convict the accused, and it need not go to every essential element of the crime charged. Slight circumstances or evidence which tends to support the victim's testimony is sufficient." Physician was prosecuted for GSI. Medical records establishing opportunity, and sister's testimony victim was fearful before entering examining room, were sufficient corroboration. Also see Avon Lake v. Pinson (1997), 119 Ohio App. 3d 567.

State v. Mundy (1994), 99 Ohio App. 3d 275 -- (1) At 287: GSI is not a strict liability offense. The culpable mental state is that the offender acted "for the specific purpose or intention of sexually arousing or gratifying either himself or the victim." Reasoning in State v. Astley (1987), 36 Ohio App. 3d 247 faulted at pp. 294-295. (2) At pp. 286-295: The GSI statute is not unconstitutionally vague on its face, but is vague as applied to the defendant because of the court's erroneous instructions on culpable mental state. (3) At pp. 297-299: No abuse of discretion found in refusal to excuse for cause jurors who indicated they had been victims of abuse. Compare State v. Zerla (March 17, 1992), Franklin Co. App. No. 91AP-562, unreported, where juror had recently be a victim of rape.

State v. Baker (1976), 50 Ohio App. 2d 68 -- Since feet were not an erogenous zone of the victim, GSI not established.

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Other acts evidence

State v. Wilkins (1999), 135 Ohio App. 3d 26 -- Testimony concerning a 1985 rape was improperly admitted at trial for a rape committed in 1997. Identity was not at issue in the latter case, nor was the earlier incident a part of the immediate background of the crime charged, permitting admission to show scheme, plan or system.

State v. Hurt, 158 Ohio App. 3d 671, 2004-Ohio-4266 -- In an unlawful sexual activity with a minor case, the court erroneously permitted questions about the defendant's prior sexual activity with the victim's companion and improperly admitted homoerotic images obtained from the defendant's computer.

State v. Burgess, 162 Ohio App. 3d 291, 2005-Ohio-3747, ¶16-24 -- State was allowed to offer testimony that the rape victim had been a virgin following the state's request for a hearing on admissibility of testimony concerning other sexual activity. Though the matter was discussed off the record, passing reference from the bench was sufficient to establish the hearing had been held. Testimony was relevant since the victim and the defendant both tested as having gonorrhea. Concurring judge believes no hearing was required as the lack of prior sexual activity involves neither sexual contact or sexual conduct. ¶25-28: Statements to emergency room nurse were properly admitted as the victim would have perceived the nurse's questions as being related to diagnosis and treatment, which she in fact received for her injuries.

State v. Thompson (1981), 66 Ohio St. 2d 496 -- Other acts evidence is admissible only when relevant to a disputed factual issue falling within one of the enumerated categories. Thus, evidence of other acts of fondling was improperly admitted when identity was not an issue and only question was whether act charged fell before victim's 13th birthday.

State v. Strobel (1988), 51 Ohio App. 3d 31 -- After the defendant denied he would touch a family member in a sexual manner, state called stepdaughter and niece who described incidents 13 and 26 years in the past. (1) Defendant's denial on cross did not open the door for impeachment in this manner. (2) Incidents were too remote in time to be admissible as other acts evidence. Also see State v. Henderson (1991), 76 Ohio App. 3d 290.

State v. Smith (1992), 84 Ohio App. 3d 647 -- Evidence concerning another incident of child sexual abuse was improperly admitted as it did not meet one of the purposes enumerated in Evid. R. 404(B) or R.C. 2945.59.

State v. DePina (1984), 21 Ohio App. 3d 91 -- Use of (only slightly similar) pretexts to get victim alone, leading to rape, not rendered too remote in time by five year interim.

State v. Davis (1989), 64 Ohio App. 3d 334 -- In a rape trial, evidence concerning prior sexual contact between the defendant and his daughter was properly admitted as other acts evidence, but testimony concerning his drinking and temperament was not. Also see State v. Fenton (1990), 68 Ohio App. 3d 412, 419-420.

State v. Curry (1975), 43 Ohio St. 2d 66 -- Court improperly admitted evidence of an unrelated incident of sexual misconduct. Admissibility is limited to matters enumerated in the statute and only where such evidence relates to a disputed issue.

State v. Lewis (1990), 66 Ohio App. 3d 37 -- Evidence of another anal rape occurring four years in the past was improperly admitted.

State v. Gardner (1979), 59 Ohio St. 2d 14 -- Evidence of other rape at gunpoint, one night before incident charged, was admissible under R.C. 2945.59 and tended to prove intent to commit forcible rape.

State v. Eubank (1979), 60 Ohio St. 2d 183 -- After victim's testimony was shaken, state was erroneously allowed to present evidence of sexual activities involving the defendant and others. Identity was not an issue, nor was mistake or accident. The other acts were not inextricably related to the act charged so as to be a part of the same scheme, plan or system. Error harmless since case was tried to the bench.

State v. Kelly (1993), 89 Ohio App. 3d 320 -- In a rape prosecution, testimony concerning prior acts of domestic violence was not admissible under Evid. R. 404(B), but was admissible to show rape victim's state of mind, explaining why she may have acquiesced to a degree to conduct of estranged husband.

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Expert witnesses; Physical and mental examinations

State v. Stowers (1998), 81 Ohio St. 3d 260, 261 -- "An expert witness's testimony that the behavior of an alleged child victim of sexual abuse is consistent with behavior observed in sexually abused children is admissible under the Ohio Rules of Evidence." See dissent.

State v. Boston (1989), 46 Ohio St. 3d 108 -- Syllabus: "An expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant." Also see State v. Hamilton (1991), 77 Ohio App. 3d 293; State v. Dever (1992), 64 Ohio St. 3d 401.

State v. Price (1992), 80 Ohio App. 3d 35, 44 -- Testimony of expert on child sexual abuse was inadmissible where it was merely offered to bolster the credibility of the victim and her brother and did not assist the trier of fact to understand the evidence or to determine a fact in issue. Also see State v. Eben (1992), 81 Ohio App. 3d 341; State v. Burrell (1993), 89 Ohio App. 3d 737.

State v. Gersin (1996), 76 Ohio St. 3d 491 -- Syllabus: "A defendant in a child sexual abuse case may present testimony as to the proper protocol for interviewing child victims regarding their abuse." State v. Boston  (1989), 46 Ohio St. 3d 108 distinguished on the basis that such testimony goes to interview technique and is not addressed to the child's veracity. For a case where interview techniques warranted sustaining a defense motion in limine, see State v. Johnson (1996), 83 Ohio Misc. 2d 26.

State v. Jones (1996), 114 Ohio App. 3d 306, 316-320 -- Counsel's failure to object to expert's testimony he believed child sex offense victim was truthful amounted to ineffective assistance of counsel. Measure of prejudice is not whether there was enough evidence otherwise to support the verdict. Instead "the essential inquiry is the capacity of the improper testimony to influence the jury's collective mind."

State v. Minkner (1994), 93 Ohio App. 3d 127, 132 -- "Essentially, Minkner wished to make the jury aware of the physical appearance of his penis, apparently in an effort to show that Tia Davis's statement concerning a surgical scar or mark was an embellishment of a story having no basis in fact. Considerations of propriety precluded Minkner from directly exhibiting his penis to the jury. Under these circumstances, we conclude that his request to designate an impartial person to conduct a visual examination and testify concerning the findings of that examination was a reasonable request." Reversed event though the prosecutor claimed the defendant or his wife could have testified. Compare State v. Thompson (1998), 127 Ohio App. 3d 511, 521 where the rape victim testified only that she had bit the defendant's penis, and three months had elapsed by the time the request for an examination was made.

State v. Whitman (1984), 16 Ohio App. 3d 246 -- Headnote 1: "To properly evaluate the admission of expert testimony evidence relating to 'rape trauma syndrome,' it must be subjected to the following tests: Whether or not the evidence (1) is relevant and material, (2) is within the view of the average layman, (3) has acceptable scientific reliability, and (4) has probative value that outweighs its prejudicial impact."

State v. Martens (1993), 90 Ohio App. 3d 338 -- Testimony of expert that rape victim suffered from posttraumatic stress disorder was relevant as, in the face of a consent defense, her demeanor was relevant and important to corroborate her claim that she was raped. Testimony that PTSD was only within the general knowledge of the public to a certain degree was sufficient to establish testimony as beyond the ken of the jury. While the testimony came close to being an impermissible effort to bolster the credibility of the victim, it was sufficiently limited to explaining the victim's reactions after the incident.

State v. Jones (1992), 83 Ohio App. 3d 723, 727-732 -- Court did not abuse its discretion in excluding defense evidence that victim did not suffer from rape trauma syndrome. Whatever marginal relevancy the testimony might have had was outweighed by potential for the jury being confused.

State v. Zeh (1987), 31 Ohio St. 3d 99 -- Paragraph two of the syllabus: "When the mental condition of the victim-potential witness is a contested, essential element of the crime charged, the defense may move the court that the state be barred from utilizing evidence of such mental condition obtained in a clinical interview of the witness prior to trial, unless such witness voluntarily agrees to a court-appointed, independent examination with the results being made available to both sides." Compare In re Johnson (1989), 61 Ohio App. 3d 544, 548-549 where the state did not utilize evidence of the mental state of the rape victim.

State v. Ramirez (1994), 98 Ohio App. 3d 388 -- No abuse of discretion shown in refusal to allow defense to have victim evaluated where was no indication relevant evidence would result other than as might have gone to credibility. Nor did the court abuse its discretion in refusing to have the victims evaluated before sentencing.

State v. Hill (1989), 59 Ohio App. 3d 31 -- Headnote 1: "In a prosecution for rape, the defendant's motion for blood-grouping tests pursuant to R.C. 2317.47 should be granted where the victim testified that she conceived a child as a result of the rape and that she had no sexual relations with any man except the defendant."

State v. Smith (1992), 84 Ohio App. 3d 647 -- Testimony of an expert witness concerning behavior traits of pedophiles was improperly admitted as a part of the state's case in chief. The effect of the testimony was to show the defendant acted in accordance with an undesirable character trait.

State v. Roughton (1999), 132 Ohio App. 3d 268 -- In a case replete with instances of prosecutorial misconduct, sole basis for reversal is failure to provide potentially exculpatory evidence in the form of slides showing nucleated cells. Even though trial court had excluded all DNA evidence from trial, material might have proven exculpatory.

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Other witness and evidentiary issues

State v. Arnold, 126 Ohio St. 3d 290, 2010-Ohio-2742 -- Syllabus: “(1) Statements made to interviewers at child-advocacy centers that serve primarily a forensic or investigative purpose are testimonial and are inadmissible pursuant to the Confrontation Clause. (2) Statements made to interviewers at child-advocacy centers that are made for medical diagnosis and treatment are nontestimonial and are admissible without offending the Confrontation Clause. Compare State v. Lukacs, 188 Ohio App. 3d 597, 2010-Ohio-2364, decided two weeks before Arnold.

State v. Puckett, 191 Ohio App. 3d 747, 2010-Ohio-6597 – Grandfather received life without parole for digital contact with his three-year old granddaughter. Two counts dismissed as the confession related to a single incident. Court finds corpus delicti was established, based on “the fact of information” that the child’s seven year old brother said something to their mother which led the mother to take the child to a hospital where she was examined for sexual abuse. Also, the defendant told his son he wouldn’t have done it if it weren’t for the resemblance of the child to his late wife.

In re Orick, 182 Ohio App. 3d 333, 2009-Ohio-2097 – Defense should have been allowed to ask victim of alleged rape how he might have known she was at the location where the incident occurred since it went to credibility. Defense also was entitled to inquire concerning victim‘s efforts to defend herself. While proof of resistance is not required, inquiry was relevant to consent.

State v. Bell, 176 Ohio App. 3d 378, 2008-Ohio-2578 – (1) Exclusion of testimony that the alleged victim may have run away because she stole drugs, rather than because she had been molested, was (harmless) error. (2) Testimony of expert on the behaviors of sexual abuse victims was properly admitted. (3) Inexactitude as to the date and time of events is not prejudicial when the defendant testifies concerning the time of the events recounted by the victim and denies anything improper occurred. Lack of specificity did not impose a material detriment to the preparation of the defense. (4) Cookie cutter counts in the indictment did not violate due process where they were differentiated by a bill of particulars and were differentiated in the state‘s closing argument. Compare Valentine v. Konteh (6th Cir. 2005), 395 F.3d 626.

Disciplinary Counsel v. Kellogg-Martin, 124 Ohio St. 3d 415, 2010-Ohio-282 – In a rape prosecution where the victim’s age at the time of the offense was crucial to the penalty, prosecutor elected to withhold information she was 13, not 12. No violations found. (1) The disciplinary rules do not give rise to a duty to disclose evidence favorable to the defense broader than Criminal Rule 16. (2) Applying United States v. Ruiz (2002), 536 U.S. 622, 633, material impeachment evidence need not be disclosed prior to entering into a plea bargain. In the case leading to the ethical complaint, the defendant pled to a lesser offense.

State v. Stahl, 111 Ohio St. 3d 186, 2006-Ohio-5482 -- Ohio adopts the "objective witness test" for evaluation of Crawford claims. Syllabus: "(1) For Confrontation Clause purposes, a testimonial statement includes one made 'under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' Crawford v. Washington (2004), 541 U.S. 36, 52...followed.) (2) In determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement; the intent of the questioner is relevant only if it could affect a reasonable declarant's expectations." The majority concludes statements by the victim of an oral rape to a sexual assault nurse examiner were for diagnosis and treatment, notwithstanding indication efforts were primarily directed towards evidence gathering. Three dissenters concur in adoption of the test but conclude the statements to the nurse were testimonial in nature.

State v. Warren, 168 Ohio App. 3d 288, 2006-Ohio-4104, ¶20 -- "However we are constrained to agree that the victim's testimony that appellant inserted his penis inside her vagina 'eight, nine times' and that he inserted his finger into her vagina 'a good 11 or 12 times' is not sufficient to support appellant's convictions of additional charges of rape and gross sexual imposition. '[W]e cannot accept the numerical estimate which is unconnected to individual, distinguishable incidents.' State v. Hemphill, Cuyahoga App. No. 85431, 2005-Ohio-3726, ¶88. Valentine v. Konteh (C.A.6, 2005), 395 F.3d 626."

State v. Kovac, 150 Ohio App. 3d 676, 2002-Ohio-6784, ¶31-48 -- Mother testified she had no reason to disbelieve her daughter's claim she had been raped. Reversed as plain error. Door was not opened by defense counsel's inquiry regarding daughter's recent history of lying, and thus was not invited error.

State v. Willard (2001), 144 Ohio App. 3d 767 -- Reversal for prosecutorial misconduct where prosecutor: (1) argued without any basis that those trained to investigate sexual abuse believed the complainant, (2) pointed to the defendant and told the jury this is what a man who rapes his daughter looks like, (3) belittled the defendant for permitting his attorney to cross-examine his daughter, and (4) misstated the testimony of the alleged victim's physician. Not all of the misconduct had been objected to.

State v. Presley, Franklin App. No. 02AP-1354, 2003-Ohio-6069 -- (1) Diagram prepared by victim while being questioned by a police officer was inadmissible hearsay. (2) No abuse of discretion found in allowing thirteen year old to clutch a teddy bear during cross-examination. (3) The prejudicial effect of testimony concerning victim's post-rape psychological problems substantially outweighed probative value regarding guilt or innocence.

State v. McConnell, Montgomery App. No. 19993, 2004-Ohio-4263 -- Foundation requirements of R.C. 2945.481(E) were not met where child victim said only that she was afraid to see her father because she hadn't seen him in a long time. For the witness to be allowed to testify in a different room it had to be established that she would be unable to communicate about the alleged violation because of extreme fear or that there would be a substantial likelihood she would suffer serious emotional trauma.

State v. Sheppard, 164 Ohio App. 372, 2005-Ohio-6065 -- Child rape victim's testimony probably didn't cover the elements, but her statement to a "licensed clinical counsellor" did. The opinion states one of the objectives was to determine the nature and extent of sexual abuse allegations. Stretching Crawford the court concludes the child's statements were nontestimonial, and were made for purposes of diagnosis and treatment. Hung jury the first time the case was tried. LWOP the second time. Compare State v. Woods, Cuyahoga App. No. 82789, 2004-Ohio-2700, ¶9-17.

State v. Kinney (1987), 35 Ohio App. 3d 84 -- When the victim's competency as a witness is clearly called into question, the court must inquire into his or her capacity to receive just impressions of the facts and to relate them truly.

State v. Brown (1988), 48 Ohio App. 3d 286 -- Headnote: "The rights to confrontation and due process of a defendant charged with gross sexual imposition are not violated by his forced absence from an in camera competency examination of the child victim-witness where no substantive testimony was given by that prospective witness." (Counsel was present.) Also see Kentucky v. Stincer (1987), 482 U.S. 730.

State v. Self (1990), 56 Ohio St. 3d 73 -- Paragraph one of the syllabus: "The use, in accord with R.C. 2907.41(A) and (B), of a child sexual abuse victim's videotaped deposition at trial in place of live testimony does not violate a defendant's right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. (Maryland v. Craig [1990], 497 U.S. ___, 110 S. Ct. 3157, 111 L. Ed. 2d 666, applied and followed; Coy v. Iowa [1988], 487 U.S. 1012, and State v. Eastham [1988], 39 Ohio St. 3d 307, 530 N.E. 2d 409, distinguished." Compare State v. Butts (June 29, 1989), Franklin Co. App. No. 88AP-764, unreported (1989 Opinions 2366). Also see State v. Sibert (1994), 98 Ohio App. 3d 412, 420-423.

State v. Eastham (1988), 39 Ohio St. 3d 307 -- Procedure whereby child rape victim was allowed to testify (at a bench trial) in a side room in the presence of the judge, counsel and the court reporter, while the defendant remained in the courtroom watching on a TV monitor and able to communicate by telephone with defense counsel, was a denial of confrontation. Also see Coy v. Iowa (1988), 487 U.S. 1012; State v. Bean (1990), 62 Ohio App. 3d 881.

State v. Madden (1984), 15 Ohio App. 3d 130 -- No abuse of discretion found in prosecutor having been allowed use of leading questions in direct examination of eight year old victim, previously found competent to testify. For qualification of child witness see State v. Workman (1984), 14 Ohio App. 3d 385.

State v. Black (1993), 87 Ohio App. 3d. 724 -- (1) For purposes Evidence Rule 807, a witness is not "unavailable" because they are not competent to testify. Child victim must be found competent as a witness for statements to third parties to be admissible. (2) Trial court properly concluded that the requirement of independent proof of the act charged was not satisfied by testimony of the examining physician, which was inconclusive as to whether injuries were the result of sexual abuse or could have been caused by other means.

State v. Gingell (1982), 7 Ohio App. 3d 364 -- Averments of the exact time and place of an offense are not essential to an indictment, where the precise time or date is not an essential element of the offense charged and where the failure to provide specific averments does not affect the defendant's due process rights. Also see State v. Madden (1984), 15 Ohio App. 3d 130, 131; Tesca v. State (1923), 108 Ohio St. 287 (on or about language OK); State v. Carey (1958), 107 Ohio App. 149 (Sunday in January and four successive Sundays OK); State v. Hill (1989), 59 Ohio App. 3d 31.

State v. Kinney (1987), 35 Ohio App. 3d 84 -- Headnote 2" "Although precise dates are generally not essential elements of offenses, where (a) the entire prosecution in a rape case focuses on one specific date, (b) defendant presents an alibi defense for that specific date, (c) another incident is mentioned during trial, and (d) the trial court originally instructs the jury that it must find that the rape occurred 'on' that date, it is plain error for the trial court to permit the jury to find that the rape occurred 'on or about' that date."

State v. Said (1994), 71 Ohio St. 3d 473 -- (1) Syllabus: "A hearing to determine the competency of a potential child witness pursuant to Evid. R. 601 must be recorded pursuant to Crim. R. 22." (2) For the statement of a child victim to be admissible under Evid. R. 807, the court must first determine whether the child was competent as a witness at the time the statement was made.

State v. Daniels (1982), 1 Ohio St. 3d 69, 77 -- See Krupansky dissent for language that sexual preference of a witness is generally irrelevant.

State v. Riffle (1982), 3 Ohio App. 3d 202 -- Court erroneously blocked cross-examination concerning psychiatric treatment received by prosecuting witness in a rape case which might have borne upon her credibility.

State v. Lee (1983), 9 Ohio App. 3d 282 -- No abuse of discretion found in allowing a five year old witness to use dolls to illustrate her testimony.

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Instructions

State v. Thompson (1987), 33 Ohio St. 3d 1, 11 -- Court does not reverse where the trial court failed to instruct that jury must unanimously agree as to the type of rape defendant committed where single count in the indictment both vaginal and anal rape. Not clear from the opinion whether counsel requested such an instruction. Also see State v. Ambrosia (1990), 67 Ohio App. 3d 552 (approximate dates in three counts each involved more than one offense). For the proposition that the jury must unanimously agree upon a single theory of culpability see United States v. Gipson (5th Cir. 1977), 553 F. 2d 453, 457-458 citing In re Winship, 1970, 397 U.S. 358.

State v. Sibert (1994), 98 Ohio App. 3d 412, 431 -- "A criminal defendant is not entitled to a jury instruction on gross sexual imposition as a lesser included offense of rape where the defendant has denied participation in the alleged offense, and the jury, considering such defense, could not reasonably disbelieve the victim's testimony as to 'sexual conduct,' and at the same time, consistently and reasonably believe the testimony under a theory of mere 'sexual contact.'"

State v. Patton (1991), 74 Ohio App. 3d 224 -- Defendant charged with rape not entitled to instruction on sexual battery where he put on no evidence and there was not basis for jury finding consent or knowing versus purposeful conduct.

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Lesser included offenses

In re Pennington, 150 Ohio App. 3d 205, 2002-Ohio-6381 -- Disorderly conduct is a lesser-included offense to gross sexual imposition involving a victim under the age of thirteen.

State v. Hairston (1997), 121 Ohio App. 3d 750 -- Corruption of a minor is not a lesser included offense to rape, but it is an offense of lesser degree. Corruption of a minor is neither a lesser included or offense of lesser degree to GSI as it is an F-3 while GSI (in this case) is an F-4.

State v. Bryan (1998), 127 Ohio App. 3d 573 -- Sexual battery as defined by R.C. 2907.03(A)(2) is not a lesser included offense to rape as defined by R.C. 2907.02(A)(1)(a) because the lesser offense requires additional elements of proof.

State v. Wilkins (1980), 64 Ohio St. 2d 382 -- Sexual battery may be a lesser-included offense of rape. Also see State v. Johnson (February 12, 1981), Franklin Co. App. No. 80AP-561, unreported (1981 Opinions 271; State v. Miller (April 22, 1982), Franklin Co. App. No. 81AP-722, unreported (1982 Opinions 1208).

State v. Johnson (1988), 36 Ohio St. 3d 224 -- Gross sexual imposition a lesser-included offense to rape.

State v. Fletchinger (1977), 51 Ohio App. 2d 73 - Corruption of a minor is not a lesser included offense of rape.

State v. Moore (1978), 62 Ohio App. 2d 86 -- Headnote: "The crimes of gross sexual imposition (R.C. 2907.05[A][3]) and contributing to the delinquency of a minor (R.C. 2151.41) are separate and distinct crimes and the latter is not a lesser offense included within the former."

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Merger

In re T.L., 186 Ohio App. 3d 42, 2010-Ohio-402, ¶44-46 – Rape and GSI are allied offenses of similar import. Based on prosecutor’s agreement GSI was a lesser included offense, they merge for sentencing.

State v. Cabrales, 118 Ohio St. 3d 54, 2008-Ohio-1625 -- Paragraph one of the syllabus: "In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), courts are required to compare the elements of offenses in the abstract without considering the evidence in the case, but are not required to find an exact alignment of the elements. Instead, if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import. (State v. Rance (1999), 85 Ohio St. 3d 632, 710 N.E. 2d 699, clarified.) As applied to the drug offenses at issue, possession and trafficking based on sale or offer to sell do not merge, because one may offer to sell without possession and one may possess without an intent to sell. Possession and trafficking premised on preparation for shipment, shipment, transport, delivery etc. do merge, since any of these alternatives requires possession. But trafficking premised on shipment, etc. and trafficking premised on sale or offer to sale do not merge, as the latter does not require actual possession.

State v. Moore, 161 Ohio App. 3d 778, 2005-Ohio-3311, ¶83-91 -- Complicity to rape counts do not merge for the complicitor when they do not merge for the principal offender.

In re Rashid, 163 Ohio App. 3d 515, 2005-Ohio-4851 -- ¶11-28 discuss Rance and other cases, concluding State v. Logan (1979), 60 Ohio St. 2d 126 again is the primary authority for merger of complicity to rape and kidnapping. Defendant loses under either standard. Under Rance it is impossible to kidnap without raping. Under Logan the restraint and beating as a part of the game of "arrest" were not merely incidental, and subjected the victim to a substantial risk of harm separate and apart form the rape. Game involved teenage boys treating the arrestee like Abner Louima.

State v. Austin (2000), 138 Ohio App. 3d 547 -- Separate acts of touching amount to multiple violations of the gross sexual imposition statute.

State v. Fenwick 91 Ohio St. 3d 1252, 2001-Ohio-51 -- Court dismisses conflict case as improperly certified on the question whether it is plain error to impose concurrent sentences for merged offenses. Charged assumed to merge are rape with GSI and sexual battery with attempted sexual battery.

State v. Nicholas (1993), 66 Ohio St. 3d 431, 434-435 -- Related offenses of oral and vaginal rape and felonious sexual penetration are separate crimes, committed with a separate animus and do not merge for purposes of sentencing.

State v. Jones (1997), 78 Ohio St. 3d 12 -- Where individual acts were committed within a short period of time, but separated by intervening events, counts premised on fellatio did not merge, nor did counts premised on vaginal intercourse and attempted vaginal intercourse.

State v. Barnes (1981), 68 Ohio St. 2d 13 -- Related rape charges based on vaginal intercourse and fellatio may be the basis for multiple sentences. Also see State v. Wilson (1982), 8 Ohio App. 3d 216, 222-223; State v. Ware (1977), 53 Ohio App. 2d 210; State v. Fadgen (March 6, 1980), Franklin Co. App. No. 79AP-642, unreported (1980 Opinions 616, 625).

State v. Donald (1979), 57 Ohio St. 2d 73 -- Rape and kidnapping may be allied offenses of similar import.

State v. Logan (1979), 60 Ohio St. 2d 126 -- Syllabus: "In establishing whether kidnapping and another offense of the same or similar kind are committed with a separate animus as to each pursuant to R.C. 2941.25(B), this court adopts the following guidelines: (a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restrain is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions; (b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support convictions." Also see State v. Price (1979), 60 Ohio St. 2d 136.

State v. Moore (1983), 13 Ohio App. 3d 226 -- Rape and kidnapping do not merge if the movement of the victim is substantial or the restraint of liberty is of a significant period of time so as to demonstrate a significant independence of the rape offense. Also see State v. Malone (1984), 15 Ohio App. 3d 123; State v. Peterman (September 25, 1979), Franklin Co. App. No. 79AP-218, unreported (1979 Opinions 2792; State v. Booker (December 22, 1981), Franklin Co. App. No. 81AP-258, unreported (1981 Opinions 4221).

State v. Ware (1980), 63 Ohio St. 2d 84 -- Rape and kidnapping were committed separately where there was an act of asportation by deception significantly independent of the asportation incidental to the rape itself.

State v. DePina (1984), 21 Ohio App. 3d 91 -- Rape and kidnapping do not merge where victim was lured from bar by deception, then forcibly removed to secluded area where rape occurred.

State v. Henry (1987), 37 Ohio App. 3d 3, 9 -- Rape and kidnapping are committed with a separate animus when restraint is for two and a half hours, confinement in car was secretive, and movement was substantial, all contributing to a substantial increase in the risk of harm to the victim. Also see State v. Brown (1984), 12 Ohio St. 3d 147; State v. Mitchell (1989), 60 Ohio App. 3d 106.

State v. Abi-Sarkis (1988), 41 Ohio App. 3d 333 -- Rape and gross sexual imposition are allied offenses of similar import when fondling is incidental to fellatio.

State v. Earich (1982), 4 Ohio App. 3d 183 -- Attempted rape and GSI are allied offenses of similar import.

State v. Moralevitz (1980), 70 Ohio App. 2d 20 -- Gross sexual imposition and kidnapping are not allied offenses of similar import when the victim is under thirteen and force or threat of force is not an element. Different conclusion might follow where force is an element.

State v. Stewart (1980), 70 Ohio App. 2d 147 -- Felonious assault and rape do not merge when the assaults upon the victim were not merely incidental to the rapes and were committed with a separate animus.

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Sufficiency of proof; Degree of offense; Penalties

State ex rel. Carnail v. McCormick, 126 Ohio St. 3d 124, 2010-Ohio-2671 – Mandamus lies to compel trial court judge to conduct a new sentencing hearing to make postrelease control a part of a life-rape sentence.

State v. Johnson, 116 Ohio St. 3d 541, 2008-Ohio-69 R.C. 2929.13(F) does not require that mandatory life sentences for rape of a child be served consecutively.

State v. Warren, 118 Ohio St. 3d 200, 2008-Ohio-2011 – Rapes were committed when the defendant was fifteen. Seventeen years later he was convicted and received life sentences. Statutes that went into effect after the crimes were committed mandated he be prosecuted as an adult after reaching age 21. No due process violation found.

State v. Hatten, 186 Ohio App. 3d 256, 2010-Ohio-499 – Defendant was acquitted of forcible rape, but convicted of rape of a substantially impaired person. ¶22-37: A half pitcher, three cans of beer, and seven shots gave the jury a reasonable basis for finding a 120 pound woman was substantially impaired. But the state was required to further prove the defendant was aware of this impairment. Though he had training as a liquor enforcement agent this was not shown to give rise to particular expertise. Nor did the victim’s conduct otherwise suggest impairment. Conviction reversed. ¶38-43: As to related kidnapping charge, promise to “cuddle” only didn’t amount to deception, but blocking exit with an arm was enough for force.

State v. Wilson, 192 Ohio App. 3d 189, 2011-Ohio-155 – Weight of the evidence claim fails in a voyeurism case because the defense failed to provide an innocent, nonsexual, explanation for the offender’s conduct. In fact such explanation had been provided but the appellate court did not find it entirely credible.

State v. Brooks, 186 Ohio App. 3d 694, 2009-Ohio-3286 – A three year old child’s vague and conflicting statement about what may have happened when he was bathed by his mother’s boyfriend led to GSI and kidnapping convictions. The state sought to vindicate statements to the custodial paternal grandmother as being in furtherance of medical diagnosis and treatment or as excited utterances., but in view of the passage of time and the manner of questioning they were neither. Convictions also reversed as not being supported by legally sufficient evidence.

State v. Leopard, 194 Ohio App. 3d 500, 2011-Ohio-3864 – Defendant got consecutive 4-year sentences for consensual sexual activity which would have been legal if the victims were 16 instead of 15. Defendant is unsuccessful arguing sentence statutory factors guiding felony sentencing were not followed. Dissenting judge finds an abuse of discretion and would run the terms concurrently.

Carmell v. Texas (2000), 529 U.S. 513, 120 S.Ct. 1620 -- Texas law changed, eliminating corroboration requirement with regard to some sex offenses. Defendant was convicted of offenses committed before the change based on uncorroborated testimony. Ex post facto violation found. Laws altering the rules of evidence, allowing less or different testimony than required at the time of the offense, may not be applied retroactively.

State v. Adrian, 168 Ohio App. 3d 300 -- Defendant solicited another to provide a drugged eight year old for him to molest, but cops were waiting in the van where the child was thought to be. Attempted rape conviction was supported by the evidence as the defendant's payment and discussions with the woman who set him up constitutes a substantial step in a course of conduct planned to result in a rape. But related "attempted complicity to commit kidnapping" conviction fails because no effort had been made to obtain an eight year old.

State v. Hutchinson (1999), 135 Ohio App. 3d 459 -- Attempted aggravated murder conviction premised on attempted anal intercourse by a defendant who knows he is HIV positive affirmed.

State v. White (1999), 135 Ohio App. 3d 481 -- First offender got 70 years for rape convictions arising from a single incident. Affirmed. Lack of remorse manifest in statement he would "serve his sentence as a sacrifice to all those falsely accused of crimes" didn't help.

State v. Knight (2000), 140 Ohio App. 3d 797 -- Police officer was convicted of bribery for soliciting sex acts in the course of his duties. (1) Passenger was offered a ride home after driver was arrested, but told to get out of the cruiser when she refused sexual favors. Soliciting improper sexual relations may be construed as a valuable thing. Duty element satisfied since officers could drive people home if necessary, and he had begun to do so. (2) Citation in lieu of arrest on an outstanding warrant in exchange for intercourse supports conviction for both bribery and sexual battery.

State v. Heinish (1990), 50 Ohio St. 3d 231 -- Defendant was convicted of aggravated murder with specifications premised on attempted rape and kidnapping. Court of appeals reversed kidnapping finding no evidence of asportation. Supreme Court reversed attempted rape and related specification finding circumstantial evidence relied upon insufficient to distinguish between rape and lesser offense of gross sexual imposition.

State v. Robinson (1990), 67 Ohio App. 3d 743 -- Attempted rape conviction affirmed where defendant's position between the victims's legs (though fully clothed) at the time he was interrupted by a passer by was concluded to be a "substantial step" towards the act of rape. Also see State v. Woods (1976), 48 Ohio St. 2d 127.

State v. Davis (1996), 76 Ohio St. 3d 107, 114 -- "While removing the victim's clothing can amount to a 'substantial step' toward the commission of rape...a defendant cannot be convicted of attempted rape solely on evidence that he removed the victim's clothing. There must be evidence indicating purpose to commit rape as opposed to some other sex offense, such as gross sexual imposition..." Also see State v. Porter (May 29, 1980), Franklin Co. App. No. 80AP-50, unreported (1980 Opinions 1560). Compare State v. Austin (December 13, 1979), Franklin Co. App. No. 79AP-581, unreported (1979 Opinions 3900); State v. Bunce (August 7, 1980), Franklin Co. App. No. 80AP-227, unreported (1980 Opinions 2303).

In re Anderson (1996), 116 Ohio App. 3d 441 -- 16 year old girl's GSI conviction upheld. Charges arose from playing spin the bottle with children under 13.

State v. Stepp (1997), 117 Ohio App. 3d 561 -- Mother didn't prevent her boyfriend's continued entry at bedtime to her 14 year old daughter's room, encouraged birth control, told daughter to do what ever it took to keep boyfriend in the household, and threatened consequences if daughter became pregnant. Aiding and abetting felonious sexual penetration upheld.

State v. Heidelburg (1986), 30 Ohio App. 3d 265 -- In order for GSI to be a third degree felony, verdict form does not need to specify the age of the victim, though the jury must necessarily have concluded the victim was under thirteen. [Poorly drafted opinion purporting to overrule State v. Prater (1983), 13 Ohio App. 3d 98.]

State v. Shainoff (1996), 117 Ohio App. 3d 129 -- Attempted rape is a probationable offense. Also see State v. Long (1990), 68 Ohio App. 3d 663.

State v. Overholt (1991), 77 Ohio App. 3d 111 -- Defendant convicted of various sex offenses could not be ordered to pay as restitution the expenses of counselling for his victims until they reached age eighteen.

State v. Fenton (1990), 68 Ohio App. 3d 412, 437-439 -- Life sentence for forcible rape of a child under the age of thirteen is not cruel and unusual punishment. Also see State v. Gladding (1990), 66 Ohio App. 3d 502.

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Pornography

United States v. Williams (2008), 128 S.Ct. 1830 – Provision enacted to replace the one found unconstitutional in Ashcroft v. Free Speech Coalition (2002), 525 U.S. 234, survives First Amendment challenge as it targets speech introducing child-pornography into the distribution network and not underlying material, which if virtual, is constitutionally protected. Void for vagueness challenge rejected as well.

State v. Graves, 184 Ohio App. 3d 39, 2009-Ohio-974 – Trial court dismissed three counts of illegal use of a minor in nudity oriented material because they failed to allege lewd exhibition or a graphic focus on the genitals, in accordance with the narrowing interpretation of the statute set forth in State v. Young (1988), 37 Ohio St. 3d 249. Trial court properly found the counts failed to state a punishable offense. Furthermore, the state was properly denied leave to amend the indictment as the further allegation might reflect matters not considered by the grand jury.

State v. Hurst, 181 Ohio App. 3d 454, 2009-Ohio-983 – Injured employee was placed on light duty at the office. In five days 14,000 pictures landed on a new computer‘s temporary Internet cache folder, leading to kiddie porn charges. The defendant testified he had meager computer skills and described crawling under a table to unplug the computer when screens full of images rapidly downloaded. As to the sufficiency of proof on the mens rea element of recklessness in relation to possession, at ¶65-99, the court does not hold the state to merely proving presence of prohibited images in the cache. Defendant loses because of the search terms he used and file names associated with his computer activity – "amazing preteens, elite preteens, family incest tree," etc.

State v. Brady, 119 Ohio St. 3d 375, 2008-Ohio-4493 – Attorney was appointed as an expert witness in a kiddie porn prosecution. The FBI raided his home and seized his laptop and the digital image exhibits was preparing for use at trial. Trial court sustained a motion to dismiss. Court of Appeals affirmed. Reversed. Court could consider matters beyond the face of the indictment in ruling on motion to dismiss premised on claim federal child pornography statutes deprived the defendant of his right to expert assistance, since the motion could be decided without deciding the general issue. Expert could do his work at the prosecutor‘s office.

Ashcroft v. Free Speech Coalition (2002), 122 S.Ct. 1389 -- The ban on virtual child pornography in the Child Pornography Prevention Act of 1996 is overly broad and unconstitutional under the First Amendment.

State v. Tooley, 114 Ohio St. 3d 366, 2007-Ohio-3698 -- Syllabus: "(1) The permissive inference of R.C. 2907.322(B)(3) does not render R.C. 2907.322(A)(5) unconstitutionally overbroad by equating virtual child pornography, which is protected expression under the First Amendment, with pornography that involves real children, which is not protected. (Ashcroft v. Free Speech Coalition (2002), 535 U.S. 234...followed) (2) Application of the culpable mental state of recklessness to R.C. 2907.323(A)(3), which prohibits possession of certain images of minors in a state of nudity, does not render the statute unconstitutionally overbroad. (Osborne v. Ohio (1990), 495 U.S. 103...followed.) (3) The state must prove all elements beyond a reasonable doubt, including that a real child is depicted, to support a conviction for possession of child pornography under either R.C. 2907.322 or 2907.323." The undercurrents in the decision are what may constitute unprotected "morphed" kiddie porn and the value of expert testimony.

State v. Huffman, 165 Ohio App. 3d 518, 2006-Ohio-1106 -- Ashcroft struck down a federal ban on virtual child pornography but allows states to ban pornography depicting real children, which is the basis for the Ohio statute banning depiction of sexual activity by a "minor." The Ohio statute is not overbroad. Compare State v. Tooley, 11th Dist. No. 2004-P-0064, 2005-Ohio-6709. Nor is R.C. 2907.322(A)(1) unconstitutionally vague. Whether or not the subjects depicted are real or virtual is a jury question not requiring expert testimony. Videotaping is photographing.

State v. Steele, Butler App. No. CA2003-11-276, 2005-Ohio-943 -- Whether images are virtual or real is an issue of fact to be determined by the jury. Expert testimony is not required.

State v. Jenkins, Hamilton App. No. C-040111, 2004-Ohio-7131 -- Court declines to extend Lawrence v. Texas (2003), 123 S.Ct. 2472 "to the commercial enterprise of selling obscene materials to the public." While a person may have the right to watch cowboy hat-wearing Max Hardcore in the privacy of his own home, there is no correlative right to sell such obscene materials. The court fields the complaint that the jury was not allowed to see two other videos shown the grand jury by describing their contents, concluding they were not "compellingly similar" measured by "raunchy" and "disturbing" content. The trial judge properly responded to the prosecutor's suggestion obscenity should be measured from the perspective of an average Kroger customer, and his emotional closing argument that the jury set, rather than determined, community standards. Engaging in its independent review for obscenity, the court finds the video goes beyond recreational sex to sexual defilement.

State v. Anderson, 151 Ohio App. 3d 422, 2003-Ohio-429, ¶31-32 -- R.C. 2907.322(A)(5) prohibits knowing possession of material depicting actual children.

State v. Dalton, 153 Ohio App. 3d 286, 2003-Ohio-3813 -- Post-sentencing motion to withdraw guilty plea should have been granted to correct manifest injustice. Defendant, while on judicial release, was charged with two counts of pandering obscenity involving a minor. Counsel didn't realize both counts were based on fictional events in his journal, and advised him to plead guilty to one count. Because a constitutional distinction is drawn between real and fictional depictions of children, counsel rendered ineffective assistance. Since it is unlikely a guilty plea would have been entered had he been properly advised, motion to withdraw should have been granted.

State v. Maxwell, 95 Ohio St. 3d 254, 2002-Ohio-2121 -- Ohio resident was convicted of pandering obscenity involving a minor premised on R.C. 2907.321(A)(6), which proscribes: "No person, with knowledge of the character of the material or performance involved, shall do any of the following...Bring or cause to be brought into this state any obscene material that has a minor as one of its participants or portrayed observers. (1) Though knowledge of the character of the material must be proven, overall strict liability applies. (2) Material was received in Ohio via AOL servers in Virginia. Majority finds application of the statute is appropriate even though it predates the Internet. Dissent would not apply statute in circumstances unforeseen at the time it was enacted, noting users may have no knowledge as to the route Internet communications travel.

State v. Cook, 149 Ohio App. 3d 422, 2002-Ohio-4812 -- (1) At ¶3-15: Visiting brother-in-law went looking for porn on family computer and found kiddie-porn. He made copies to disk and took them to the police. In furtherance of obtaining a warrant he was asked to bring in a piece of mail addressed to the defendant. Suppression not required. As to making copies, he had not yet made contact with the police, and thus, was not acting as their agent. Providing a piece of mail at police request was of no consequence in determining the validity of the warrant. For a search of the premises, the magistrate only had to determine whether criminal activity was being conducted. Defendant's person was not searched. (2) "Mirror image" made of defendant's hard drive provided exhibits used at trial, and was prepared using EnCase software. No abuse of discretion in admission of testimony. Claims raised went to weight, not admissibility.

State v. Kerrigan, 168 Ohio App. 3d 455, 2006-Ohio-4279 -- ¶22: Interpreting State v. Young (1988), 37 Ohio St. 3d 249 and Osborne v. Ohio (1990), 495 U.S. 103: "Arguably the United States Supreme Court's construction of R.C. 2907.323(A)(3) in Young...is merely dictum and therefore not binding on us. But we find that understanding to be persuasive. As we understand the holding of the Ohio Supreme Court in Young, it is the character of the material or performance, not the purpose of the person possessing or viewing it, that determines whether it involves a lewd exhibition or a graphic focus on the genitals."

State v. Walker (1999), 134 Ohio App. 3d 89 -- Defendant videotaped his girlfriend in the nude, marking the tape "X-rated." Later he used the same tape to record her infant son discovering his genitals. Aunt and uncle found tape and gave it to the police. Trial court concluded the tape was not intended to be lewd, but found boyfriend guilty of use of a minor in nudity-oriented materials. Reversed, as the statute had previously been construed to require proof of lewd purpose to survive constitutional challenge.

State v. Daniels, Hamilton App. No. C-020321, 2003-Ohio-1545, ¶ 12-15 -- To constitute a felony violation of the disseminating matter harmful to juveniles statute, the materials must be depict or describe hard core sexual conduct meeting the definition of "sexual conduct." Graphic depiction of underage nudity does not fall within the controlling statutory definition.

State v. Dute, Hamilton App. No. C-020709, 2003-Ohio-2774 -- Defendant sold porno tapes involving herself and others over the Internet. (1) ¶ 3-12. Defendant was entitled to admission of a comparable tape, which had been found in another prosecution not to be obscene, in order to demonstrate community standards. (2) ¶ 14-25: Mistrial should have been declared when it was learned seven jurors had been exposed to incorrect media coverage of a prior prosecution that had been the subject of a defense motion in limine. "Where the jury becomes aware of 'highly prejudicial' evidence of the defendant's past criminal behavior through news media coverage, it is per se prejudicial to the defendant." See Marshall v. United States (1959), 360 U.S. 310. (3) ¶ 36-38: For purposes of sentencing the court improperly found this to be organized criminal activity based on the number or participants.

State v. Gann, 154 Ohio App. 3d 170, 2003-Ohio-4000 -- The illegal use of a minor in nudity oriented material statute [R.C. 2907.03(A)(3)] is not unconstitutionally vague or overbroad. Opinion goes on to evaluate the sufficiency of the evidence in support of various lesser sex offenses, often involving Internet communications.

State v. Knode, Wayne App. No. 03CA 014, 2003-Ohio-7186 -- Thumbnail Image in temporary files was sufficient to establish possession.

State ex rel. Flynt v. Dinkelacker, 156 Ohio App. 3d 595, 2004-Ohio-1695 -- An indictment cannot be conditionally dismissed. Plea agreement in 1999 substituted Hustler News and Gifts for the defendant named in the indictment. The company pleaded guilty and remaining charges against individuals were dismissed. In court agreement that prosecution could be revived if there were future sales of obscene materials was unenforceable. Writ of prohibition granted.

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Other sex offenses

State v. Maisch, 173 Ohio App. 3d 724, 2007-Ohio-6230, ¶30-37 – Bill of information in an importuning prosecution failed to allege in the conjunctive that the defendant was four or more years older than the identity assumed by a police office in an online sting operation. This rendered the information defective, and a conviction based on an indictment that fails to state an offense is void for lack of subject matter jurisdiction. However, because the court lacked jurisdiction jeopardy did not attach and the state is free to reindict.

Alliance v. Carbone, 181 Ohio App. 3d 500, 2009-Ohio-1197 – Cop looking to make arrests under an ordinance making it disorderly conduct to loiter near a toilet building responded to the defendant flashing his brake lights, followed him into a park restroom, arranged a liaison at the defendant‘s place of business, then placed him under arrest. Officer was mindful the park had a four star rating on "cruisingforsex.com." The ordinance simply states "No person shall loiter in or near toilet buildings." This is unconstitutionally vague both on its face and as applied to the defendant. It permits the police to make an arrest before any crime has occurred or is about to occur. The ordinance is also overly broad.

Lawrence v. Texas (2003), 123 S.Ct. 2472 -- Prosecution for same-sex consensual sexual activity violates due process.

State v. Turner, 156 Ohio App. 3d 177, 2004-Ohio-464 -- Instead of meeting a 14-year old year old boy wearing a purple shirt, the defendant met a 45-year old cop, who was at least honest about the color of his shirt. (1) R.C. 2907.04(A) and (B)(3) concerning unlawful sexual conduct with a minor, and 2907.07(E), now (D), concerning telecommunications solicitation, survive claims of vagueness, negation of the defenses of impossibility, mistake of fact and abandonment, and infringement of freedom of speech. (2) Pleading no contest precludes consideration of dubious entrapment claim. (3) Intervention in lieu of conviction was properly denied absent a showing that "sexual addiction" was driven by drugs or alcohol. (4) A computer can be used as a criminal tool.

State v. Tarbay, Hamilton App. No. C-030619, 2004-Ohio-2721 -- Telecommunications importuning provision survives First Amendment challenges contending it is content-based, overly broad, and punishes mere thought. Also see <State v. Anthony, Hamilton App. No. 030510, 2004-Ohio-3894.>

State v. Andrews, 171 Ohio App. 3d 332, 2007-Ohio-2013 -- After discussing authority for the proposition that an attempt to commit an attempt is not a crime, the court concluded importuning is not an attempt offense. The word attempt does not appear in the statute. Importuning does not involve an attempt to engage in the sexual activity. The offense is premised on the asking. Here the offense was an attempt because the defendant mistakenly believed the person he chatted with was underage, though in fact it was an adult civilian working though "Perverted Justice." The court also rejects a First Amendment attack on attempted importuning as a cognizable offense.

State v. Cunningham, 156 Ohio App. 3d 714, 2004-Ohio-1935 -- Court declines extending the outrageous police conduct defense to charges arising from an officer posing as a 14-year old girl on the Internet. ¶31 (quoting from the trial court opinion): "The photograph may have been sufficient in the Defendant's mind to warrant driving an Infinity Q-45 five hours from Tennessee, but it is not so overwhelming to launch a thousand ships. The Helen of Troy Defense is not applicable here." Actually the defendant did not make it to Miami County as he was arrested enroute after stopping to meet another cop in Greene County. Nor does the importuning by soliciting sexual relations on the Internet statute violate the Commerce Clause. Also see State v. Bolden, Montgomery App. No. 19943, 2004-Ohio-2315.

State v. Lowe, 112 Ohio St. 3d 507, 2007-Ohio-606 -- Step parent may be prosecuted for sexual battery of his stepdaughter. Syllabus: "R.C. 2903.03(A)(5) is constitutional as applied to consensual sexual intercourse between a stepparent and an adult stepchild, since it bears a rational relationship to the state's legitimate interest in protecting the family." Lawrence v. Texas distinguished because it involved unrelated adults. Divorce would end the stepparent relationship.

State v. Freeman, 155 Ohio App. 3d 492, 2003-Ohio-6730, ¶ 18: "...(A)ppellant did not have a constitutionally protected right to engage in incest with his daughter. Neither the United States Constitution nor the Ohio Constitution guarantees appellant a fundamental right to engage in private acts of consensual sexual intercourse with his daughter..." Lawrence v. Texas (2003), 123 S. Ct. 2472, distinguished. Nor did the court err in denying funds to retain an incest expert.

State v. Snyder, 155 Ohio App. 3d 453, 2003-Ohio-6399 -- Over the Internet, "Man that heals," a deputy coroner, arranged to meet "Sarah 420 Hottie," a Lima cop, at the Kewpee Restaurant. Division (E)(2) of R.C. 2907.07, the importuning statute, held not to be unconstitutionally vague, overbroad, or in violation of the First Amendment. The provision addresses communications with undercover officers.

State v. Schaefer, 155 Ohio App. 3d 448, 2003-Ohio-6538 -- It is no defense to the offense of attempted unlawful sexual activity with a minor that the 14-year old girl the defendant thought he was meeting proved to be an officer. Nor is importuning a lesser included offense forming the basis for a double jeopardy claim.

Cleveland v Maistros (2001), 145 Ohio App. 3d 346 -- R.C. 2907.07(B), the same sex portion of the importuning statute, held to violate equal protection, applying the rational relationship standard. Also see State v. Thompson 95 Ohio St. 3d 264, 2002-Ohio-2124 -- Syllabus: "R.C. 2907.07(B) is facially invalid under the Fourteenth Amendment to the United States Constitution and Section 2, Article I of the Ohio Constitution." The Supreme Court finds the provision is a content-based restriction on speech and applies the strict scrutiny test.

State v. Conklin, Darke App. No. 1556, 2002-Ohio-2156 -- Wildlife Division investigator responding to complaints of illicit sexual activity in a wildlife area struck up a conversation with a mushroom hunter. "Delicate dance of courtship" leading towards understanding that talk of sex would not be offensive was insufficient to establish importuning.

State v. Norris, 147 Ohio App. 3d 224, 2002-Ohio-1033 -- A Cincinnati ordinance required licensing of all massage practitioners, but was enforced only against those advertising such services in a sexually suggestive manner in the "adult" section of a weekly newspaper. City admitted selective enforcement, but maintained it was proper. Equal protection violation found. Defendants who provided massage to police officers did so in the nude, but violated no other statutes or ordinances.

State v. Henry, 151 Ohio App. 3d 128 -- Public indecency charge was the result of a surveillance camera focused on the public area of a men's room. Citing cases where there was deemed to be limited or no reasonable expectation of privacy in a stall, held that the same applies to a public area. Placement of the camera did not require a warrant. Conviction doesn't require proof another person actually observed or was offended by the conduct involved. Likelihood is enough. Concurring judge is offended by practice of using cameras in this manner.

Columbus v. Breer, 152 Ohio App. 3d 701, 2003-Ohio-2479 -- Urination in a public place (next to a house, near cops, during a campus area party) may constitute public indecency. Cleveland v. Pugh (1996), 110 Ohio App. 3d 472 distinguished on the basis that case involved an urgent need linked to a medical condition.

State v. Walker (1999), 134 Ohio App. 3d 89 -- Defendant videotaped his girlfriend in the nude, marking the tape "X-rated." Later he used the same tape to record her infant son discovering his genitals. Aunt and uncle found tape and gave it to the police. Trial court concluded the tape was not intended to be lewd, but found boyfriend guilty of use of a minor in nudity-oriented materials. Reversed, as the statute had previously been construed to require proof of lewd purpose to survive constitutional challenge.

State v. Maxson (1978), 54 Ohio St. 2d 190 -- Syllabus: "An individual who has passed his or her fifteenth birthday but has not reached his or her sixteenth birthday is 'over fifteen years of age' pursuant to R.C. 2907.04 (corruption of a minor)."

State v. Fawn (1983), 12 Ohio App. 3d 25 -- Headnote: "R.C. 2907.04, corruption of a minor, is constitutional on equal protection and due process grounds, in that it creates a reasonable classification in providing different penalties for different adults committing the same offense and in requiring a lesser degree of proof under this section that under R.C. 2907.06, sexual imposition."

State v. Johnson (1987), 42 Ohio App. 3d 81 -- Public indecency conviction upheld where defendant was found engaged in a sex act in an unlocked pit toilet in a highway rest area.

Cleveland v. Pugh (1996), 110 Ohio App. 3d 472 -- Urgent, though imprudent, alfresco urination did not amount to public indecency.

Miller v. Barberton Municipal Court (6th Cir. 1991), 935 F. 2d 775 -- Public indecency conviction of defendant who swam nude in the illuminated pool of a private club did not violate right to privacy and was not a violation of due process.

State v. Parenteau (1990), 55 Ohio Misc. 2d 10 -- Headnote: "The female breast is not a 'private part' within the meaning of R.C. 2907.09(A)(1)." [Public indecency - cops at a nightclub "fashion show."]

State v. Million (1989), 63 Ohio App. 3d 349 -- Voyeurism conviction reversed where defendant was using hand held mirror to peer into empty john stall.

State v. Taylor (1982), 8 Ohio App. 3d 20 -- Amendment of voyeurism complaint to disorderly conduct changed the nature and identity of the offense.

State v. Frost (1994), 92 Ohio App. 3d 106 -- Man masturbating in parked car while watching bikini-clad woman at beach in a state park was not guilty of voyeurism.

State v. Cooper (1994), 92 Ohio App. 3d 108 -- Importuning not proven where defendant asked eight year old girl to pull down her clothes, and saying he had "something to show her." While reprehensible, this did not amount to a solicitation to engage in "sexual activity" as that term is defined by R.C. 2907.01(C).

State v. Laney (1991), 61 Ohio Misc. 2d 688 -- Because the defendant's indecent suggestions were not construed as "fighting words" the court finds him not guilty of importuning. Because of the position of his zipper and hands while he was talking, the court finds him guilty of public indecency. Also see State v. Perrin (1991), 62 Ohio Misc. 2d 51.

State v. Pressley (1992), 81 Ohio App. 3d 721 -- Straightforward solicitation of another person of the same sex found not to be protected by the First Amendment, applying the fighting words doctrine. See dissent.

State v. Ward (1993), 85 Ohio App. 3d 378 -- Postal investigators sent raunchier kiddy porn photos than the defendant requested. Pandering obscenity conviction reversed as one photo was not obscene and the other was improperly admitted as it had not been requested by the defendant.

State v. Gleason (1996), 110 Ohio App. 3d 240 -- (1) Ex post facto violation found in sentencing defendant on disseminating matter harmful to juveniles as a F-3, when at the time the offense occurred it was classified as a F-4. (2) Since the verdict did not set forth a finding whether the material was obscene or harmful, defendant was convicted of the least degree of the offense, being a first degree misdemeanor. (3) Expert testimony was not necessary to establish community standard for obscenity.

State v. Stewart (1996), 111 Ohio App. 3d 525, 534-536 -- R.C. 2907.05(A)(4) conviction for permitting child to model or otherwise participate in the production of sexually oriented matter was supported by the evidence, though child did not appear in photos. Evidence was that the child was forced to take nude photos of her mother and mother's boyfriend, thus participating in the production of such materials.

In re Dalton (1996), 115 Ohio App. 3d 794 -- Videotape showed 17 year old defendant touching the thigh of another 17 year old. Conviction for complicity in pandering sexually oriented matter involving a juvenile affirmed. Prosecutor had sought bindover.

State v. Midwest Pride IV, Inc. (1998), 131 Ohio App. 3d 1 -- While public opinion polls may be relevant in pandering obscenity trials, poll results were properly excluded when they did not address the content of the specific materials at issue. Title of one of two videotapes was highly suggestive as to content. Also see State v. Williams (1991), 75 Ohio App. 3d 102.

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