Lee v. Kemna, 534 U.S. 362, 16 (2002)

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Cite as: 534 U. S. 362 (2002)

Opinion of the Court

object contemporaneously to the judge's charge, which did not instruct the jury that it could convict only for conduct that satisfied both the scienter and the lewdness elements. Id., at 107-108, 123; see Ohio Rule Crim. Proc. 30(A) (1989) ("A party may not assign as error the giving or the failure to give any instructions unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection.").

We agreed with the State that Osborne's failure to urge the trial court to instruct the jury on scienter qualified as an "adequate state-law ground [to] preven[t] us from reaching Osborne's due process contention on that point." 495 U. S., at 123. Ohio law, which was not in doubt, required proof of scienter unless the applicable statute specified otherwise. Id., at 112-113, n. 9, 123. The State's contemporaneous objection rule, we observed, "serves the State's important interest in ensuring that counsel do their part in preventing trial courts from providing juries with erroneous instructions." Id., at 123.

"With respect to the trial court's failure to instruct on lewdness, however, we reach[ed] a different conclusion." Ibid. Counsel for Osborne had made his position on that essential element clear in a motion to dismiss overruled just before trial, and the trial judge, "in no uncertain terms," id., at 124, had rejected counsel's argument. After a brief trial, the judge charged the jury in line with his ruling against Osborne on the pretrial motion to dismiss. Counsel's failure to object to the charge by reasserting the argument he had made unsuccessfully on the motion to dismiss, we held, did not deter our disposition of the constitutional question. "Given this sequence of events," we explained, it was proper to "reach Osborne's [second] due process claim," for Osborne's attorney had "pressed the issue of the State's failure of proof on lewdness before the trial court and . . . nothing would be gained by requiring Osborne's lawyer to


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