398
Kennedy, J., dissenting
neither proposed instruction would have preserved his federal claim. That our decision was based on this foreseeability concern is evident from our discussion of the state court's treatment of the scienter question. This holding was supported by an adequate state ground, we found, because the state statute cited by the Ohio Supreme Court "state[d] that proof of scienter is required in instances, like the present one, where a criminal statute does not specify the applicable mental state." 495 U. S., at 123. In other words, while the recklessness element was foreseeable (and in fact established by statute), the lewdness element was not.
Second, to the extent Ohio faulted the defendant for not raising a more general objection to the jury instructions, Osborne followed from Douglas v. Alabama, 380 U. S., at 420-423. In Douglas, the defendant was required to repeat, again and again, the same Confrontation Clause objection while his codefendant's confession was read to the jury. The trial court's initial adverse ruling foreclosed the possibility that the subsequent objections would be sustained. Ohio's treatment of overbreadth objections raised similar concerns. By ruling on and rejecting the pretrial objection—at the time when overbreadth challenges are generally made—the trial court would make its position on lewdness clear. The case would continue on the assumption that the statute was not overbroad and that possession of nonlewd materials could be a criminal offense. Any evidence the defendant introduced to establish that the photographs were not lewd would be irrelevant, and likely objectionable on this ground. As both a logical and a practical matter, then, the ruling at the trial's outset would foreclose a lewdness instruction at the trial's close. Ohio's requirement that the defendant nonetheless make some sort of objection to the jury instructions, as we concluded, served "no perceivable state interest." 495 U. S., at 124 (internal quotation marks omitted). On this point, too, the Osborne Court's different conclusion with respect to scienter is enlightening. Osborne did not
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