CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2012-05-0701
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, for plaintiff-appellee
Fred S. Miller, Baden & Jones Bldg., and F. Joseph Schiavone, for defendant-appellant
(¶ 1} Defendant-appellant, Zachary Thomas, appeals his conviction in the Butler County Court of Common Pleas for illegal use of a minor in a nudity-oriented material or performance.
(¶ 2} Thomas was indicted on 14 counts of voyeurism, one count of disseminating matter harmful to juveniles, and one count of illegal use of a minor in a nudity-oriented material or performance. Thomas pled guilty to all 14 counts of voyeurism and the charge of disseminating matter harmful to juveniles. The offense of illegal use of a minor in a nudity-oriented material or performance proceeded to a jury trial.
(¶ 3} At trial, the subject of the pictures in question, K.N., testified. At the time the photos were taken, K.N. was 17 years old. She testified that she met Thomas on Facebook through mutual friends. After exchanging messages on Facebook for a few days, they began to communicate via cell phone text messages.
(¶ 4} Eventually the two began sharing pictures via text message, both clothed and nude. K.N. testified that she took the photos of herself and sent them to Thomas at his request. Thomas specifically asked K.N. to send him explicit pictures, and she complied.
(¶ 5} The jury subsequently convicted Thomas of illegal use of a minor in a nudity-oriented material or performance. The trial court then sentenced Thomas to 180 days in jail for each of the 14 voyeurism convictions, two of which were to be served consecutively; 180 days in jail for the disseminating material harmful to juveniles conviction, to be served concurrently; and five years of community control for the illegal use of a minor in a nudity-oriented material or performance.
(¶ 6} Thomas now appeals his conviction, raising three assignments of error for our review:
(¶ 7} Assignment of Error No. 1:
(¶ 8} THE TRIAL COURT ERRED TO THE PREJUDICE OF [THOMAS] WHEN IT RULED THAT [THOMAS] COULD NOT ARGUE TO THE JURY THAT HE WAS RECKLESS IN HIS BELIEF THAT THE VICTIM WAS UNDER 18 YEARS OF AGE.
(¶ 9} Within this assignment of error, Thomas argues that in order to prosecute him for the illegal use of a minor in a nudity-oriented material or performance, the state must prove that he was reckless in his knowledge that the minor was under 18 years of age.
(¶ 10} R.C. 2907.323(A)(3) states: "No person shall * * * [p]ossess or view any material or performance that shows a minor who is not the person's child or ward in a state of nudity * * *." The Ohio Supreme Court has recognized that "[b]ecause R.C. 2907.323 does not specify any degree of culpability, the degree of culpability required to commit the offense is recklessness." ...