Background
Miki Genao was indicted on rape, gross-sexual-imposition, domestic-violence, and pandering-sexually-oriented-matter-involving-a-minor charges involving his 16-year-old daughter and a video found on his phone. A jury could not reach verdicts on the rape counts, but convicted him of gross sexual imposition and domestic violence. A separate bench trial addressed the pandering charge.
The trial court found Genao not guilty of the indicted pandering offense under R.C. 2907.322(A)(3), which concerns creating, directing, or producing a sexual performance involving a minor. It nevertheless convicted him under R.C. 2907.322(A)(5), concerning soliciting, receiving, purchasing, exchanging, possessing, or controlling such material, treating that offense as a lesser included offense. Genao received concurrent sentences, including 12 months on the pandering count.
The Court’s Holding
On reconsideration, the Eighth District held that R.C. 2907.322(A)(5) is not a lesser included offense of R.C. 2907.322(A)(3). Although the (A)(5) offense carries a lower penalty, a person can create, direct, or produce a live sexual performance involving a minor without creating material that can be possessed, controlled, or otherwise covered by (A)(5). The trial court therefore lacked a basis to convict Genao of (A)(5) after acquitting him of the charged (A)(3) offense.
The court reversed and vacated the pandering conviction and did not reach Genao’s sufficiency challenge to that conviction. It affirmed the gross-sexual-imposition and domestic-violence convictions, holding that testimony about two prior sexualized incidents was admissible as grooming-related preparation and plan evidence, the evidence did not warrant a parental-discipline instruction, and the gross-sexual-imposition verdict was not against the manifest weight of the evidence.
Key Takeaways
- A conviction for an uncharged offense is improper unless it satisfies Ohio’s lesser-included-offense test.
- Creating a live performance involving a minor does not necessarily entail possessing or controlling material depicting that performance.
- Other-acts evidence may be admissible to show grooming, preparation, and plan when those issues are genuinely disputed.
Why It Matters
The decision underscores that courts cannot substitute a different pandering offense merely because it appears factually related and carries a lesser penalty. The statutory elements must establish that the greater offense cannot be committed without the lesser one.
It also preserves the appellate court’s approval of grooming evidence in a parent-child sexual-abuse prosecution where the defense theory put preparation and planning at issue.