Lee v. Kemna, 534 U.S. 362, 35 (2002)

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396

LEE v. KEMNA

Kennedy, J., dissenting

The Court seeks to ground its renewal of Henry's long-quiescent dictum in our more recent decision in Osborne v. Ohio, 495 U. S., at 122-125. Though isolated statements in Osborne might appear to support the majority's approach— or, for that matter, Henry's approach—Osborne's holding does not.

This case bears little resemblance, if any, to Osborne. The Ohio statute in question there made it criminal to possess a photograph of a minor in "a state of nudity." Ohio Rev. Code Ann. § 2907.323(A)(3) (Supp. 1989). In a pretrial motion to dismiss, Osborne objected to the statute as overbroad under the First Amendment. The state trial court denied the motion, allowed the case to proceed, and adopted no limiting construction of the statute when it instructed the jury on the elements of the crime.

In his appeal to the Ohio Supreme Court, Osborne argued that the statute violated the First Amendment for two reasons: First, it prohibited the possession of nonlewd material; and second, it lacked a scienter requirement. In rejecting the first contention, the appellate court did what the trial court had not: It adopted a limiting construction so that "nudity constitute[d] a lewd exhibition or involve[d] a graphic focus on the genitals." State v. Young, 37 Ohio St. 3d 249, 252, 525 N. E. 2d 1363, 1368 (1988). In addressing Osborne's second point, the Ohio Supreme Court noted that another Ohio statute provided a mens rea of recklessness whenever, as was the case there, the criminal statute at issue was silent on the question. Id., at 252-253, 525 N. E. 2d, at 1368 (citing Ohio Rev. Code Ann. § 2901.21(B) (1987)). Osborne also argued that his due process rights were violated because the trial court had not instructed the jury on the elements of lewdness and recklessness that the Ohio Supreme Court had just read into the statute. The appellate court rejected this claim on procedural grounds, observing that Osborne "neither requested such . . . charge[s] nor objected to the instructions as given." 37 Ohio St. 3d, at 254, 258,

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