[This decision has been published in Ohio Official Reports at
95 Ohio St.3d 254.]
THE STATE OF OHIO, APPELLANT, v. MAXWELL, APPELLEE.
[Cite as State v. Maxwell, 2002-Ohio-2121.]
Criminal law—Sex offenses—Pandering obscenity involving a minor—Proper
reading of R.C. 2907.321(A)(6) demonstrates the clear intent of the
General Assembly to impose strict liability on the act of bringing child
pornography into the state—R.C. 2907.321, construed and applied.
(No. 2000-1812—Submitted October 30, 2001—Decided May 15, 2002.)
APPEAL from the Court of Appeals for Franklin County, No. 99AP-1177.
__________________
MOYER, C.J.
{¶1} Responding to information regarding a thirteen-year-old girl named
Sarah, officers of the Worthington Police Department on August 20, 1998, learned
that appellee Mark W. Maxwell had contacted Sarah via the Internet and that she
had agreed to meet him at a store in Worthington that afternoon. Sarah disclosed
to the police officers that she and appellee, who had identified himself as a nineteenyear-old male, had discussed meeting for the express purpose of engaging in sexual
relations. Appellee was actually twenty-seven. Sarah agreed to meet appellee while
wearing a wire so that the police could tape-record her conversation with appellee.
During their conversation, Sarah brought up their prior discussions concerning
going to a hotel room, but appellee did not say anything of a sexual nature. Pursuant
to the police officer’s instructions, Sarah allowed appellee to leave their meeting
before she did. When appellee exited the store, he was immediately arrested.
{¶2} Following his arrest, the police obtained a search warrant for
appellee’s car and his apartment in Oxford, Ohio. In his car, the police found
information relating to their meeting in Worthington. The police seized appellee’s
computer from his apartment. Numerous pictures and movies were discovered on
SUPREME COURT OF OHIO
appellee’s computer hard drive, including images of minors engaged in various
sexual acts, including fellatio and sexual intercourse.
{¶3} Evidence at trial established that appellee had obtained these files by
downloading them via America Online, an Internet service provider. All America
Online electronic traffic passes through the company servers in Virginia.
Therefore, when appellee downloaded a file via America Online to his computer in
Ohio, the file electronically passed through Virginia and into Ohio.
{¶4} Also introduced into evidence were copies of E-mail transmissions
and instant messages (“IMs”) between appellee and Sarah. The IMs between
appellee and Sarah are sexual in nature and include discussions about Sarah’s
experience with and willingness to perform fellatio, appellee’s offer to give Sarah
a “tip” of one hundred dollars for the act, and appellee’s attempts to send Sarah a
picture of himself naked in a state of sexual excitement. In addition, appellee told
Sarah that he was only nineteen years old, while she told him that she was only
thirteen years old.
{¶5} Copies of other IMs were introduced into evidence, which revealed
portions of similar sexual conversations that appellee had had with other young
females.
{¶6} On September 14, 1999, a jury found appellee guilty of one count of
compelling prostitution, five counts of disseminating matter harmful to juveniles,
eight counts of pandering obscenity involving a minor, and one count of illegal use
of a minor in a nudity-oriented material or performance. The court sentenced
appellee to a total of eighteen years in prison. After a hearing, the trial court found
that appellee is a sexual predator.
{¶7} The court of appeals agreed with appellee that the evidence presented
by the state was insufficient as a matter of law to sustain his convictions under R.C.
2907.321(A)(6) of pandering obscenity involving a minor. The court held that R.C.
2907.321(A)(6) does not plainly indicate an intention to impose strict liability on
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the act of bringing child pornography into the state of Ohio and applied the culpable
mental state of recklessness to appellee’s conduct, pursuant to R.C. 2901.21(B).
{¶8} In support of its appeal, the state argues that a proper reading of R.C.
2907.321(A)(6) demonstrates the clear intent of the General Assembly to impose
strict liability on the act of bringing child pornography into the state. We agree and
reverse the court of appeals.
{¶9} It is undisputed that the General Assembly can “enact legislation with
the purpose to impose strict criminal liability.” State v. Jordan (2000), 89 Ohio
St.3d 488, 493,
733 N.E.2d 601. In addition, there is no question that the General
Assembly can specify the mental element required for each element of an offense.
Id.
{¶10} We first consider the words of the statute to determine legislative
intent. Provident Bank v. Wood (1973), 36 Ohio St.2d 101, 105,
65 O.O.2d 296,
304 N.E.2d 378. In determining legislative intent, our duty is “to give effect to the
words used, not to delete words used or to insert words not used.” Columbus-Suburban Coach Lines, Inc. v. Pub. Util. Comm. (1969),
20 Ohio St.2d 125, 127,
49 O.O.2d 445,
254 N.E.2d 8.
{¶11} R.C. 2907.321(A) provides:
{¶12} “(A) No person, with knowledge of the character of the material or
performance involved, shall do any of the following:
{¶13} “…
{¶14} “(6) Bring or cause to be brought into this state any obscene material
that has a minor as one of its participants or portrayed observers.”
{¶15} R.C. 2901.21 provides:
{¶16} “(B) When the section defining an offense does not specify any
degree of culpability, and plainly indicates a purpose to impose strict criminal
liability for the conduct described in the section, then culpability is not required for
a person to be guilty of the offense. When the section neither specifies culpability
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nor plainly indicates a purpose to impose strict liability, recklessness is sufficient
culpability to commit the offense.
{¶17} “…
{¶18} “(D) As used in this section:
{¶19} “…
{¶20} “(3) ‘Culpability’ means purpose, knowledge, recklessness, or
negligence, as defined in section 2901.22 of the Revised Code.”
{¶21} The court of appeals held that R.C. 2901.21(B) applies the element
of recklessness to the act of bringing child pornography into the state. However, a
court must be able to answer in the negative the following two questions before
applying the element of recklessness pursuant to R.C. 2901.21(B): (1) does the
section defining an offense specify any degree of culpability, and (2) does the
section plainly indicate a purpose to impose strict criminal liability?
I. R.C. 2907.321(A)(6) Indicates a Plain Intent to Impose Strict Criminal
Liability
{¶22} Appellant argues that the court of appeals misinterpreted the word
“section” in R.C. 2901.21(B) to mean “division” of a Revised Code section, and
mistakenly applied R.C. 2901.21. We agree. The General Assembly distinguishes
between sections and divisions in the Ohio Revised Code. For example, R.C.
2901.21(A) begins, “Except as provided in division (B) of this section.” (Emphasis
added.) Likewise, R.C. 2907.321(C) states, “Whoever violates this section is guilty
of pandering obscenity involving a minor. Violation of division (A)(1), (2), (3),
(4), or (6) of this section is a felony of the second degree. Violation of division
(A)(5) of this section is a felony of the fourth degree. If the offender previously
has been convicted of or pleaded guilty to a violation of this section or section
2907.322 or 2907.323 of the Revised Code, pandering obscenity involving a minor
in violation of division (A)(5) of the section is a felony of the third degree.”
(Emphasis added.) Thus, in determining whether R.C. 2901.21(B) can operate to
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supply the mental element of recklessness to R.C. 2907.321(A)(6), we need to
determine whether the entire section includes a mental element, not just whether
division (A)(6) includes such an element.
{¶23} R.C. 2907.321(A) includes the element of knowledge. The statute
requires the state to prove, as a prerequisite to proving a defendant criminally liable
for bringing into the state “any obscene material that has a minor as one of its
participants or portrayed observers,” that the defendant had “knowledge of the
character of the material or performance involved.” R.C. 2907.321(A)(6).
Appellee argues that this knowledge requirement also applies to the act of bringing
into the state obscene material that has a minor as one of its participants or portrayed
observers. We disagree.
{¶24} In State v. Wac (1981), 68 Ohio St.2d 84,
22 O.O.3d 299,
428 N.E.2d
428, we found plain indications that the General Assembly meant to impose strict
criminal liability. In that case, the appellant argued that recklessness was an
element of bookmaking because R.C. 2915.02(A)(1) did not specify a culpable
mental state for bookmaking. It provided:
{¶25} “(A) No person shall do any of the following:
{¶26} “(1) Engage in bookmaking, or knowingly engage in conduct that
facilitates bookmaking.”
{¶27} We rejected appellant’s position. Noting that “[t]he General
Assembly included the culpable mental state of ‘knowingly’ as an element of
facilitating bookmaking,” we held that because “there is no such requirement in the
same subsection for bookmaking per se,” the “exclusion ‘plainly indicates a
purpose to impose strict criminal liability ….’ R.C. 2901.21(B).” (Emphasis sic.)
State v. Wac, 68 Ohio St.2d at 86,
22 O.O.3d 299,
428 N.E.2d 428.
{¶28} We recognized that the clause “or knowingly engage in conduct that
facilitates bookmaking” was a discrete clause and that the knowledge required by
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that clause could not be inserted into the previous clause, “engage in bookmaking.”
R.C. 2901.21(B).
{¶29} Similarly, in R.C. 2907.321(A), knowledge is a requirement only for
the discrete clause within which it resides: “with knowledge of the character of the
material or performance involved.” Thus, the state must prove that appellee knew
the character of the material at issue. The state is not required to prove that appellee
knew that in downloading files via America Online he was also transmitting those
files from Virginia into Ohio.
{¶30} There are other indications outside the statute that plainly indicate a
purpose to impose strict liability. The decision in Wac demonstrates that a crime
may have different degrees of mental culpability for different elements. The
General Assembly has assumed a strong stance against sex-related acts involving
minors, as evidenced by the numerous statutes in the Ohio Revised Code providing
for criminal liability for those acts. Therefore, it is reasonable to presume that the
inclusion of a knowledge requirement regarding the character of the material and
the absence of a mental element elsewhere in R.C. 2907.321 reflect legislative
intent to impose strict liability for the act of bringing child pornography into the
state of Ohio.
{¶31} Appellee argues that the statute was adopted in 1977, well before the
advent of the Internet as a means of general communication, and that the prohibition
on bringing material into the state cannot constitutionally be applied to
downloading. However, application of a criminal statute to a specific factual
circumstance not anticipated when the statute was adopted is not a ground for not
applying the statute. “[F]ew words possess the precision of mathematical symbols,
most statutes deal with untold and unforeseen variations in factual situations, and
the practical necessities of discharging the business of government inevitably limit
the specificity with which legislators can spell out prohibitions. Consequently, no
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more than a reasonable degree of certainty can be demanded.” Boyce Motor Lines,
Inc. v. United States (1952), 342 U.S. 337, 340,
72 S.Ct. 329,
96 L.Ed. 367.
II. There Is Sufficient Evidence to Show that Appellee Knew the Character of the
Material He Downloaded
{¶32} Appellee argues that there was insufficient evidence that he knew the
character of the materials before he brought them into Ohio. Pursuant to R.C.
2907.321(B)(3), “the trier of fact may infer that a person in the material or
performance involved is a minor if the material or performance, through its title,
text, visual representation, or otherwise, represents or depicts the person as a
minor.” Review of the downloaded images reveals that the jury reasonably could
find the material to be obscene and have a minor as a participant or portrayed
observer. Evidence also shows that the files downloaded from America Online
were never deleted, as they might have been were they downloaded by mistake.
Finally, appellee’s numerous E-mail transmissions and IMs of a sexual nature
provided the jury with evidence from which it could reasonably find that appellee
knew of the sexual nature of the files before he downloaded them. For these
reasons, we find the evidence sufficient to support a conviction based on
knowledge.
{¶33} For the foregoing reasons, we reverse the judgment of the court of
appeals.
Judgment reversed.
DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.
COOK, J., concurs in judgment.
PFEIFER and LUNDBERG STRATTON, JJ., dissent.
__________________
LUNDBERG STRATTON, J., dissenting.
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{¶34} I agree with the court of appeals’ decision to affirm Maxwell’s
convictions for one count of compelling prostitution, five counts of disseminating
matter harmful to juveniles, and one count of illegal use of a minor in a nudity-oriented material or performance. However, for the reasons that follow, I
respectfully dissent from the majority’s analysis and conclusion with respect to the
eight counts of pandering obscenity involving a minor in violation of R.C.
2907.321(A)(6). While I would find that defendant’s conduct constitutes a
violation of R.C. 2907.321(A)(5) (possession of child pornography), I would find
that R.C. 2907.321(A)(6) (transportation of child pornography into this state) does
not apply.
{¶35} Over thirty years ago, the Internet was launched at the Department of
Defense. Internet Society, A Brief History of the Internet and Related Networks
<www.isoc.org/internet/history/brief.shtml>. Today, more than four hundred fifty
million people worldwide have home-based Internet access, NetRatings, Inc.,
<www.nielsen-netratings.com/hot_off_the_net.jsp>, and more than fifty percent of
children in the United States use the Internet at school, home, or a community
access center, Aftab, The Parent’s Guide to Protecting Your Children in Cyberspace
(2000) 1. Prior to the advent of the Internet, consumers of child pornography
operated through an underground network of mail order magazines and videotapes.
But the World Wide Web’s relative simplicity via the use of “point-and-click”
hypertext links has allowed child pornography to be mass distributed in seconds to
a large group of consumers, all in the privacy of their own homes. The anonymity
offered by the Internet may lead some individuals to explore areas of cyberspace
that once were inaccessible and that they may not otherwise have been inclined to
explore. In essence, while the Internet has brought volumes of useful information
to the fingertips of consumers, it has also drawn nearer the dark side of humanity.
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{¶36} Clearly child pornography is insidious and inherently evil. For that
very reason, the General Assembly has enacted statutes to address and punish this
evil. Specifically, R.C. 2907.321(A) provides:
{¶37} “(A) No person, with knowledge of the character of the material or
performance involved, shall do any of the following:
{¶38} “(1) Create, reproduce, or publish any obscene material that has a
minor as one of its participants or portrayed observers;
{¶39} “(2) Promote or advertise for sale or dissemination; sell, deliver,
disseminate, display, exhibit, present, rent, or provide; or offer or agree to sell,
deliver, disseminate, display, exhibit, present, rent, or provide, any obscene
material that has a minor as one of its participants or portrayed observers;
{¶40} “(3) Create, direct, or produce an obscene performance that has a
minor as one of its participants;
{¶41} “(4) Advertise or promote for presentation, present, or participate in
presenting an obscene performance that has a minor as one of its participants;
{¶42} “(5) Buy, procure, possess, or control any obscene material, that has
a minor as one of its participants;
{¶43} “(6) Bring or cause to be brought into this state any obscene material
that has a minor as one of its participants or portrayed observers.”
{¶44} R.C. 2907.321 clearly provides a basis for prosecuting and convicting
Maxwell for his actions of having child pornography on the hard drive of his
personal computer, i.e., the prohibition of (A)(5) against possession of child
pornography (a fourth degree felony). However, the state charged Maxwell under
(A)(6), which provides, “No person, with knowledge of the character of the material
or performance involved, shall … [b]ring or cause to be brought into this state
any obscene material that has a minor as one of its participants or portrayed
observers,” charged him, that is, with importing child pornography into this state
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via his computer (a second degree felony). I do not believe that (A)(6) should be
applied to these facts.
{¶45} The majority concludes that the act of transporting child pornography
via computer is a strict-liability offense. I agree that the act of transporting child
pornography via the mail, a vehicle, or some other traditional physical method that
would have been known to the General Assembly when drafting this statute would
fall under the guise of strict liability. In those traditional situations, offenders are
aware that they are transporting child pornography into the state, and the General
Assembly can fairly hold them strictly liable if they physically carry it across
ascertainable borders, even without knowledge. But in this case, the defendant was
in the state of Ohio, communicating with others in the state of Ohio via his computer
modem and claims to have had no knowledge or expectation that he was crossing
state lines. In fact, but for the fact that his Internet service provider America Online
(“AOL”) is based out of state, in Virginia, no violation of (A)(6), as interpreted by
the majority, would have occurred.
{¶46} In today’s Internet environment, users with very little technical
knowledge can click on a hypertext link or an icon on his or her screen and be
automatically transported to a remote computer site without having understood
where, physically, they have landed on the World Wide Web. And Internet service
providers such as AOL have made the navigation of the uncharted waters of
cyberspace all the easier. Consumers often receive free software in the mail from
a major Internet service provider, such as AOL in this case, and that software
normally offers a certain number of hours of Internet access for free. The consumer
simply inserts the software into his or her personal computer and follows the
instructions given on the disk. After entering a valid credit card number, selecting
a screen name and password, and choosing a local access telephone number for his
or her modem to dial to access the Internet service provider, the consumer has the
full resources of the World Wide Web at his or her fingertips.
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{¶47} Consumers, typically, do not know where, geographically, their
Internet service provider’s computer servers are located. Indeed, I believe it would
baffle most AOL subscribers to learn that even when they send an e-mail to
themselves, the e-mail travels from their computer to the AOL servers in Virginia
and back to their own computer. For all a consumer knows, he or she is accessing
information stored in Ohio, since normally a local telephone number is used to dial
into the Internet service provider. Notably, there was no evidence in this case that
these images did not originate in Ohio.
{¶48} Subsection (A)(6) of R.C. 2907.321 was enacted in 1984, long before
the Internet was generally accessible by the public. Sub.H.B. No. 44, 140 Ohio
Laws, Part I, 1726. Thus, R.C. 2907.321(A)(6), which prohibits the transportation
of child pornography into Ohio, was never drafted with the Internet in mind. While
it is true that the law must be malleable enough to adapt to future circumstances, I
simply do not believe that our General Assembly could have foretold this evolution
in the information superhighway. In this case of first impression, the law has not
yet caught up with technology. For that reason, I believe that the decision to
prosecute individuals for what their computer wires do, unbeknownst to them,
should be left to the General Assembly.
{¶49} At the time R.C. 2907.321 was drafted, e-mail, web sites, chat rooms,
newsgroups, bulletin board services, and Internet relay chat did not exist. Today,
it is possible for an unsuspecting person to possess child pornography without even
knowing it. If a user receives an e-mail with an attachment containing child
pornography, that image can be on the hard drive of the user’s computer before the
file is even opened. Hughes, Kids Online (1998) 61. Further, an Internet user can
type in seemingly innocent search terms into a search engine and pull up
pornographic material. For example, a child searching for “Little Women” by
Louisa May Alcott may retrieve x-rated websites. Even a mistakenly typed web
address may direct an innocent user seeking information on the White House to a
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pornographic site. Id. at 58. Thus, as frightening as it is, innocent Internet users
can possess pornography of any type, child pornography or other, with no intention
of doing so.
{¶50} Logic suggests that an Internet user upon discovering that he or she
possesses illegal material could simply delete the illegal material from his or her
hard drive; not always so. As illustrated by this case, investigators can make a
“mirror image” of the user’s hard drive. In so doing, in certain circumstances, all
files, even those files once thought to be deleted, can be conjured up from the user’s
computer and reconstructed. This is because the act of deleting does not in all cases
actually cause the selected information or image to be discarded from the hard
drive. Rather, the act of deleting can merely mark that portion on the hard drive as
available to store new information. Indeed, even once new information is stored
over the old “deleted” information, the “deleted” information can in some cases
still be resuscitated by computer-savvy investigators. See Aftab, The Parent’s
Guide to Protecting Your Children in Cyberspace, at 147.
{¶51} I certainly do not condone Maxwell’s actions in this case, but I
believe that our statutes as written adequately address his actions without resorting
to laws that never contemplated these actions. The state could have properly
charged and convicted Maxwell for possession of child pornography in violation of
R.C. 2907.321(A)(5). Possession of child pornography is a fourth-degree felony
punishable by six to eighteen months of imprisonment. See R.C. 2929.14(A)(4).
However, the state charged and convicted Maxwell for bringing child pornography
into the state of Ohio in violation of R.C. 2907.321(A)(6). Transportation of child
pornography is a second-degree felony punishable by two to eight years of
imprisonment. In my view, it is up to the General Assembly to increase the penalty
for actions such as Maxwell’s by amendments to the statute. I would find that the
General Assembly never contemplated the Internet as a vehicle for importation of
child pornography into this state when it drafted R.C. 2907.321(A)(6), and I do not
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believe it is within the province of the court to interpret the statute to do so. Thus,
I would find that the legislature never intended R.C. 2907.321(A)(6) to be applied
to acts involving computers.
{¶52} As the principal drafter of our Declaration of Independence once
wrote, “[L]aws and institutions must go hand in hand with the progress of the
human mind. As that becomes more developed, more enlightened, as new
discoveries are made, new truths disclosed, and manners and opinions change with
the change of circumstances, institutions must advance also, and keep pace with the
times.” Thomas Jefferson to Samuel Kercheval, July 12, 1816, Padover, The
Writings of Thomas Jefferson (1967) 351.
{¶53} I believe that this case represents just such an example of the law
failing to keep pace with the times. Consumers certainly do not have any reason to
know the complexity of the network connections made with the click of their
mouse. Therefore, I find that charging individuals with the knowledge of the
internal workings of their Internet service provider is repugnant to fairness and due
process.
{¶54} The proliferation of child pornography available on the Internet and
the complex legal issues generated from that proliferation illustrate the need for our
General Assembly to fully explore and discuss these issues.
{¶55} To that end, in February, the General Assembly enacted Sub.H.B.
No. 8, which amends R.C. 2907.01(J) to make it explicit that the definition of
“material” that applies to the sex offense laws includes images appearing on a
computer monitor or computer hard drive or similar data storage device, except
under specified circumstances. This represents an attempt by our General Assembly
to bring the law up to speed with technology, but other issues, such as those in this
case, remain unaddressed.
{¶56} I agree with the court of appeals’ decision to affirm Maxwell’s
convictions for one count of compelling prostitution, five counts of disseminating
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matter harmful to juveniles, and one count of illegal use of a minor in a nudity-oriented material or performance. However, because it is the duty of the General
Assembly to make the necessary adjustments to the law, I dissent, and would affirm
the court of appeals’ judgment that the evidence presented by the state was
insufficient as a matter of law to sustain Maxwell’s convictions under R.C.
2907.321(A)(6), transporting child pornography into the state of Ohio.
PFEIFER, J., concurs in the foregoing dissenting opinion.
__________________
Ron O’Brien, Franklin County Prosecuting Attorney, and Scott M.
Forehand, Assistant Prosecuting Attorney, for appellant.
Mary Ann Torian and Clayton G. Napier, for appellee.
Betty D. Montgomery, Attorney General, and Andrew D. Bowers, Assistant
State Solicitor, urging reversal for amicus curiae, Attorney General of Ohio.
__________________
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