Case Could Change Definition Of Obscenity

FORMER POLICE OFFICERS COULD FACE ADDITIONAL CHARGES

By Chad Klimack
Advocate Reporter

The Newark Advocate
January 7, 2006

PATASKALA - A court case involving two former Pataskala Police Officers could impact the definition of obscenity in Licking County.

On December 19, Licking County Common Pleas Court Judge Thomas M. Marcelain approved a summary judgment motion in a case involving former Pataskala Police officers Kenneth L. Schwart and Nathan Harding and a Circleville resident. The move effectively threw out a civil lawsuit filed by the Office of Licking County Prosecutor Robert L. Becker against the three men.

Becker's office filed the lawsuit in late 2004. It sprang to life after someone mailed about 40 doctored nude photographs of a female Pataskala police officer to law enforcement agencies, individuals and businesses in the Pataskala area in July of 2004.

Less than six months after the mailing, police arrested Schwart and Harding, who were charged with tampering with evidence related to the mailings.

Marcelain ultimately sentenced Schwart to three years of probation. Harding, on the other hand, was placed on community control in a diversion program.

Pataskala Police Chief Chris Forshey did not agree with the punishments his former employees received.

"I was disappointed with the punishments they received," said Forshey, when reached last week.

It is unknown whether Schwart and Harding could face additional charges.

The civil lawsuit the Prosecutor's office filed against Schwart, Harding and the Circleville resident, David Metzger accused the three men of being the principal offenders or accomplices who created and/or disseminated the doctored nude photographs.

Harding's Newark-based attorney, Robert Calesaric, asked Marcelain for summary judgment in July, 2005. Summary judgment works as a legal device for terminating litigation. Marcelain granted Calesaric's request.

Assistant Prosecutor Kenneth Oswalt, who is handling the case on behalf of the prosecutor's office, did not fight the move. In fact, Oswalt argued in court papers for summary judgment. The prosecutor's office stated from the beginning of the case it wanted to appeal the case to the Fifth District Court of Appeals, of which Licking County is part.

"We're going to appeal it," said Oswalt when reached last week.

The Fifth District Court of Appeals has held that material is not obscene unless it depicts sexual conduct, so Oswalt had no real chance of winning the case on the local level. The picture that was mailed around Pataskala depicts a male performing a lewd act over the face of a female, who appears to be lying down.

The prosecutor's office intends to urge the Fifth District Court of Appeals to overrule two cases that currently define obscenity. The cases contain "misrepresentations of both Ohio and federal law on the subject of obscenity," Oswalt argued in court papers. If the Court overrules the two cases, the definition of obscenity would change.

Oswalt said last week he has until Jan. 19 to file an appeal, and he intends to meet that deadline. Calesaric, who was out of town, could not be reached for comment.

Forshey, meanwhile, support Oswalt's efforts to file the appeal.

"This was the course of what we wanted in the first place," Forshey said. "Everything is going as it's supposed to go."

Still, even if Oswalt can convenience the Fifth District Court of Appeals to change its definition of obscenity, Forshey said he does not know if the move will lead to more charges against Schwart and Harding.

"We're just anxious to get a change in the definition of obscenity so in the future we won't have to go through this, he said.