Frank Aloysius Grecco, III v. State of Indiana ( 2024 )

IN THE
Court of Appeals of Indiana
Frank Grecco, III,
FILED
Appellant-Defendant Oct 04 2024, 9:10 am
CLERK
v. Indiana Supreme Court
Court of Appeals
and Tax Court
State of Indiana,
Appellee-Plaintiff
October 4, 2024
Court of Appeals Case No.
24A-CR-560
Appeal from the Hendricks Superior Court
The Honorable Stephenie LeMay-Luken, Judge
Trial Court Cause No.
32D05-2305-F6-454
Opinion by Judge Brown
Judges May and Pyle concur.
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Brown, Judge.
[1] Frank Grecco, III, appeals the trial court’s order denying his motion to dismiss
two charges of possession of child pornography as level 6 felonies. We reverse.
Facts and Procedural History
[2] On May 24, 2023, the State charged Grecco with two counts of possession of
child pornography as level 6 felonies. On December 14, 2023, Grecco filed a
motion to dismiss “pursuant to Indiana Code § 35-34-1-4(a)(5) and (11)” and
asserted that the prosecution violated federal precedent and the protections
provided by the First Amendment to the United States Constitution and Article
1, Section 9 of the Indiana Constitution. 1 Appellant’s Appendix Volume II at
49. On December 15, 2023, the State filed a response and conceded in part that
Grecco “correctly states in his memorandum that these charges allege no
possession of pornography of any actual, living and breathing children” and
that “[t]he images of the children in question are best described as cartoon
caricatures of the ‘manga’ or ‘hentai’ variety, which originated in Japan.” Id. at
66.
[3] After a hearing, the trial court denied Grecco’s motion. Grecco filed a Motion
to Certify Order for Interlocutory Appeal and Stay Proceedings. The trial court
1
Ind. Code § 35-34-1-4(a) provides that “[t]he court may, upon motion of the defendant, dismiss the
indictment or information upon any of the following grounds: . . . [t]he facts stated do not constitute an
offense” or “[a]ny other ground that is a basis for dismissal as a matter of law.”
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granted Grecco’s motion, and this Court granted Grecco’s petition to accept
jurisdiction of the interlocutory appeal.
Discussion
[4] Grecco argues this case involves a form of simulated child pornography that is
“in the form of manga (comic books) and anime (cartoons).” Appellant’s Brief
at 10. He contends the images are drawn and do not use actual children in their
production. He asserts that Indiana’s law prohibiting the possession or access
of simulated child pornography violates the First Amendment of the United
States Constitution and Article 1, Section 9 of the Indiana Constitution. He
acknowledges the Supreme Court’s opinion in Osborne v. Ohio, 495 U.S. 103,
110 S. Ct. 1691 (1990), which held that the State of Ohio could constitutionally
proscribe the possession and viewing of child pornography. He argues that Ind.
Code § 35-42-4-4(d) “is unconstitutional because it violates one’s First
Amendment right,” “[simulated child pornography] does not involve real
children; thus, the U.S. Supreme Court’s holdings in [New York v. Ferber, 458
U.S. 747, 102 S. Ct. 3348 (1982)] and [Osborne] are not implicated.” Id. at 16.
He also asserts that “[t]he Court held in [Ashcroft v. Free Speech Coalition, 535
U.S. 234, 122 S. Ct. 1389 (2002),] that [simulated child pornography] is
protected by the First Amendment, and [Stanley v. Georgia, 394 U.S. 557, 89 S.
Ct. 1243 (1969)] holds that, even if material is obscene, a person has the right to
possess (and view) such material in the privacy of his home.” Id. at 16-17.
[5] The State agrees that Grecco’s motion to dismiss should have been granted. It
acknowledges that Grecco need only show that the statute is unconstitutional
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on the facts of the particular case because he makes an as-applied challenge. It
concedes that “established federal precedent precludes his prosecution for
accessing or possessing obscene virtual child pornography within his own
home.” Appellee’s Brief at 7. It also acknowledges that “there is . . . no
question that the images Grecco is alleged to have accessed do not involve
actual children.” Id. at 9. It states that “pursuant to Stanley and Free Speech
Coalition, Grecco’s conduct of accessing obscene animated child pornography
from his own home is protected conduct under the First Amendment.” Id. The
State notes that, given the advancements in technology and the ability to
produce “hyper-realistic images that use actual children’s faces, the line
between real and virtual child pornography is no longer clear and the existing
case law does not answer the question of whether virtual child pornography
produced using images of actual children is protected under the First
Amendment,” and that “that issue is not presented in this case.” Id. at 9 n.1. It
also contends that “[t]he animated images at issue here are clearly covered by
the holding in” Free Speech Coalition. Id.[6] “We review a ‘ruling on a motion to dismiss a charging information for an
abuse of discretion, which occurs only if a trial court’s decision is clearly against
the logic and effect of the facts and circumstances.’” State v. Katz, 179 N.E.3d
431, 440 (Ind. 2022) (quoting Gutenstein v. State, 59 N.E.3d 984, 994 (Ind. Ct.
App. 2016), trans. denied). “The constitutionality of an Indiana statute is a pure
question of law we review de novo.” Id. at 441 (quoting Horner v. Curry, 125
N.E.3d 584, 588 (Ind. 2019)). “These statutes, however, come to us ‘clothed
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with the presumption of constitutionality until clearly overcome by a contrary
showing.’” Id. (quoting Horner, 125 N.E.3d at 588 (quoting Whistle Stop Inn,
Inc. v. City of Indianapolis, 51 N.E.3d 195, 199 (Ind. 2016))).
[7] The charging information alleged that Grecco, “with intent to view the image,
did knowingly or intentionally possess or access an image that depicted or
described sexual conduct that is simulated sexual conduct involving a
representation that appears to be a child less than eighteen (18) years of age and
the representation of the image was obscene.” Appellant’s Appendix Volume II
at 11-12. The charging information cited Ind. Code § 35-42-4-4(d)(3), which
provides:
(d) A person who, with intent to view the image, knowingly or
intentionally possesses or accesses an image that depicts or
describes sexual conduct . . . (3) that is simulated sexual conduct
involving a representation that appears to be a child less than
eighteen (18) years of age, if the representation of the image is
obscene (as described in IC 35-49-2-1) . . . commits possession of
child pornography, a Level 6 felony. It is not a required element
of an offense under subdivision (3) that the child depicted
actually exists.
[8] An “[i]mage” is defined as:
(A) A picture.
(B) A drawing.
(C) A photograph.
(D) A negative image.
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(E) An undeveloped film.
(F) A motion picture.
(G) A videotape.
(H) A digitized image.
(I) A computer generated image.
(J) Any pictorial representation.
Ind. Code § 35-42-4-4(a)(2). Ind. Code § 35-49-2-1 provides:
A matter or performance is obscene for purposes of this article if:
(1) the average person, applying contemporary community
standards, finds that the dominant theme of the matter or
performance, taken as a whole, appeals to the prurient
interest in sex;
(2) the matter or performance depicts or describes, in a
patently offensive way, sexual conduct; and
(3) the matter or performance, taken as a whole, lacks
serious literary, artistic, political, or scientific value.
[9] In 1969, the United States Supreme Court held in Stanley:
Whatever may be the justifications for other statutes regulating
obscenity, we do not think they reach into the privacy of one’s
own home. If the First Amendment means anything, it means
that a State has no business telling a man, sitting alone in his own
house, what books he may read or what films he may watch.
Our whole constitutional heritage rebels at the thought of giving
government the power to control men’s minds.
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394 U.S. at 565, 89 S. Ct. at 1248. The Court concluded that “the First and
Fourteenth Amendments prohibit making mere private possession of obscene
material a crime” and that while “the States retain broad power to regulate
obscenity; that power simply does not extend to mere possession by the
individual in the privacy of his own home.” Id. at 568; 89 S. Ct. at 1249-1250.
[10] In 1982, the United States Supreme Court issued its decision in Ferber which
upheld a New York statute outlawing the distribution of child pornography.
458 U.S. at 774, 102 S. Ct. at 3363. In 1990, the Court observed in Osborne that
“since the time of our decision in Ferber, much of the child pornography market
has been driven underground; as a result, it is now difficult, if not impossible, to
solve the child pornography problem by only attacking production and
distribution” and that “19 States have found it necessary to proscribe the
possession of this material.” 495 U.S. at 110-111, 110 S. Ct. at 1697. The
Court observed that “the use of children as subjects of pornographic materials is
harmful to the physiological, emotional, and mental health of the child.” Id. at
109, 110 S. Ct. at 1696 (quoting Ferber, 458 U.S. at 756-758, 102 S. Ct. at 3354-
3355). The Osborne Court emphasized “the importance of the State’s interest in
protecting the victims of child pornography,” the idea that “the materials
produced by child pornographers permanently record the victim’s abuse,” and
“[t]he pornography’s continued existence causes the child victims continuing
harm by haunting the children in years to come.” Id. at 110-111, 110 S. Ct. at
1697. It concluded that, “[g]iven the gravity of the State’s interests in this
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context, we find that Ohio may constitutionally proscribe the possession and
viewing of child pornography.” Id. at 111, 110 S. Ct. at 1697.
[11] In 2002, the United States Supreme Court addressed whether the Child
Pornography Prevention Act of 1996 (“CPPA”), 18 U.S.C. § 2251 et seq.,
abridged the freedom of speech in Free Speech Coalition. 535 U.S. at 239, 122 S.
Ct. at 1396. The CPPA extended “the federal prohibition against child
pornography to sexually explicit images that appear to depict minors but were
produced without using any real children.” Id. The Court observed that, “[i]n
contrast to the speech in Ferber, speech that itself is the record of sexual abuse,
the CPPA prohibits speech that records no crime and creates no victims by its
production. Virtual child pornography is not ‘intrinsically related’ to the sexual
abuse of children, as were the materials in Ferber.” Id. at 250, 122 S. Ct. at
1402. Accordingly, the Court held that the statute prohibiting virtual child
pornography covered materials beyond the categories recognized in Ferber “and
the reasons the Government offers in support of limiting the freedom of speech
have no justification in our precedents or in the law of the First Amendment.”
Id. at 256, 122 S. Ct. at 1405. It concluded that “[t]he provision abridges the
freedom to engage in a substantial amount of lawful speech” and was
“overbroad and unconstitutional.” Id.[12] In light of the precedent from the United States Supreme Court and under these
circumstances in which the State conceded before the trial court that the
materials Grecco was charged with possessing did not depict actual children, as
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well as the State’s agreement on appeal that Grecco’s motion to dismiss should
have been granted, we reverse. 2
[13] For the foregoing reasons, we reverse the trial court’s denial of Grecco’s motion
to dismiss.
[14] Reversed.
May, J., and Pyle, J., concur.
ATTORNEYS FOR APPELLANT
Cara Schaefer Wieneke
Wieneke Law Office, LLC
Brooklyn, Indiana
John Razumich
Razumich & Associates P.C.
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
2
Because we resolve this case on First Amendment grounds, we need not address Article 1, Section 9 of the
Indiana Constitution.
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