Defendant-appellant, Kenny C. Lorenz, appeals from his conviction for pandering sexually oriented matter involving a minor, a violation of R.C. 2907.322(A)(1), and illegal use of a minor in nudity-oriented material, a violation of R.C.2907.323(A)(1).
The record shows the offenses occurred on October 8, 1987. Appellant, *Page 18 who was thirty-seven years old, rented a basement apartment in Milford, Ohio from the victim's grandmother. The victim, a fourteen-year-old female, was apparently lured to appellant's apartment under the pretext of having her photograph appellant for his girlfriend. Once in the apartment, appellant forced the victim to submit to vaginal intercourse and fellatio. Appellant also took several polaroid photographs of the victim in the nude and also of her fully clothed performing fellatio on appellant.
Based on the above conduct, appellant was indicted on three counts involving the offenses of rape, pandering sexually oriented material involving a minor, and illegal use of a minor in nudity-oriented material. Thereafter, pursuant to a plea bargain, appellant entered a guilty plea to the lesser-included offense of corruption of a minor, and the rape count was dismissed. Appellant also entered pleas of no contest to the remaining counts and was found guilty of both offenses by the trial court. The trial court sentenced appellant to consecutive terms of five to fifteen years each on count two of pandering and count three of illegal use of a minor. Appellant also received a sentence of two years on count one of corruption of a minor to be served concurrently with his other sentences.
On appeal to this court, appellant, in his sole assignment of error, argues that his conviction on the offenses of pandering and illegal use of a minor was improper under R.C. 2941.25(A) because they are allied offenses of similar import.
R.C. 2941.25 provides as follows:
"(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
"(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them."
Appellant, in his brief and at oral argument, urges this court to adopt a subjective test, determining on a case-by-case basis whether offenses are allied offenses of similar import. Appellant concludes that only by looking at offenses in light of the facts under which the offenses were committed will the purpose of R.C.2941.25, preventing "shotgun convictions," be served. In the casesub judice, appellant points out that the two offenses arose from separate photographs that were taken in the same location, during the same time period, and involved the same parties. Further, appellant argues the photographs were taken for the single purpose of sexual gratification and therefore are allied offenses under the particular facts of the case.
While appellant's argument is logical, the Supreme Court has already dictated that an objective test be used in identifying allied offenses of similar import. In determining whether two offenses are allied within the purview of R.C. 2941.25, the Supreme Court has articulated a two-step analysis. First, the elements of the offenses must be compared. The offenses are allied offenses of similar import if the elements correspond to such a degree that the commission of one offense will result in the commission of the other. If, under the first step, the court finds the offenses to be allied offenses, it must proceed to the second step in which the court reviews the defendant's conduct to determine whether the offenses were committed separately or with a separate animus. If the *Page 19 court finds affirmatively, the defendant may be convicted of both offenses. State v. Mughni (1987), 33 Ohio St. 3d 65,514 N.E.2d 870; State v. Talley (1985), 18 Ohio St. 3d 152, 18 OBR 210,480 N.E.2d 439; State v. Mitchell (1983), 6 Ohio St. 3d 416, 6 OBR 463, 453 N.E.2d 593. The second step of the analysis, however, is only applicable if the offenses have been determined under the first step to be allied. State v. Talley, supra, at syllabus;State v. Mughni, supra, at 68, 514 N.E.2d at 873.
Appellant was convicted of violating R.C. 2907.322(A)(1), which states that "[n]o person, with knowledge of the character of the material or performance involved, shall * * * create, reproduce, or publish any material that shows a minor participating or engaging in sexual activity * * *." Appellant was also convicted of violating R.C. 2907.323(A)(1), which states that no person shall "[p]hotograph any minor who is not the person's child or ward in a state of nudity * * *."
After comparing the elements of the above offenses, we conclude the offenses do not correspond to such a degree that the commission of one offense will result in the commission of the other. For example, R.C. 2907.322 (A)(1) requires proof that a person created material involving a minor engaging in sexual activity, which is not an element of R.C. 2907.323(A)(1). Conversely, while R.C. 2907.323(A)(1) requires proof that a person photographed a minor in a state of nudity, this is not an element of R.C. 2907.322(A)(1). In addition, R.C. 2907.322(A)(1) requires proof of "knowledge of the character of the material or performance involved" while R.C. 2907.323(A)(1) requires only proof of recklessness as the culpable mental state. See State v.Young (1988), 37 Ohio St. 3d 249, 525 N.E.2d 1363, paragraph three of the syllabus.
Accordingly, based on the above analysis, we hold that the offenses of pandering sexually oriented material involving a minor, as defined in R.C. 2907.322(A)(1), and illegal use of a minor in nudity-oriented material, as proscribed in R.C.2907.323(A)(1), are not allied offenses of similar import. Therefore, we need not discuss the second step of the analysis to determine whether the offenses were committed separately or with a separate animus because the second step is inapplicable when the offenses are found not to be allied under the first step of the analysis. State v. Talley, supra, at syllabus.
Appellant's sole assignment of error is overruled.
The judgment of the trial court is affirmed.
Judgment affirmed.
KOEHLER, J., concurs.
JONES, P.J., dissents.