In re L.Z.

[Cite as In re L.Z., 2016-Ohio-1337.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: L.Z. : JUDGES:
A MINOR CHILD :
: Hon. William B. Hoffman, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
: Case No. 15-CA-36
:
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Juvenile Division, Case
No. A2015-0042
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY March 23, 2016
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
KENNETH W. OSWALT OFFICE OF THE OHIO PUBLIC
DEFENDER
LICKING CO. PROSECUTOR BROOKE M. BURNS
JUSTIN T. RADIC 250 East Broad St., Ste. 1400
20 S. Second St., 4th Floor Columbus, OH 43215
Newark, OH 43055
Licking County, Case No. 15-CA-36 2
Delaney, J.
{¶1} Appellant L.Z., a minor child, appeals from the May 5, 2015 Judgment Entry
of the Licking County Court of Common Pleas, Juvenile Division. Appellee is the state of
Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following facts are adduced from the record of the adjudication hearing
before the Knox County Juvenile Court on December 16, 2014.
{¶3} At the time of these events, appellant was 12 years old. Via cell phone, he
texted with a 12-year-old female classmate. The female student texted appellant a
“selfie,” a photo taken by the female of herself, depicting her face and bare breasts. At
the adjudicatory hearing, the female testified appellant threatened to “sexually assault”
her if she didn’t send the picture and said she sent the picture because she felt pressured
to do so.
{¶4} Appellant allegedly texted or otherwise showed the photo to five other
juveniles.
{¶5} On August 12, 2014, appellant was charged by criminal complaint with five
counts of delinquency by means of disseminating matter harmful to juveniles pursuant to
R.C. 2907.31(A)(1), all misdemeanors of the first degree if committed by an adult. These
counts were journalized as case number 2141245. Appellant was also charged
separately in case number 2141136 with delinquency by means of one count of
disseminating matter harmful to juveniles and two additional counts relating to the 12-
year-old female, including menacing and telephone harassment. Those counts were tried
with case number 2141245. The trial court found appellee did not present credible
Licking County, Case No. 15-CA-36 3
evidence beyond a reasonable doubt of the counts in case number 2141136 and
therefore dismissed that case. None of the charges in case number 2141136 are at issue
in this appeal.
{¶6} On December 3, 2014, appellant filed a “Memorandum of Law” in which
appellant argued a photo of a 12-year-old female with breasts is not properly the subject
of a violation of R.C. 2907.31(A)(1). The memorandum does not explicitly raise a
constitutional argument. Instead, appellant argues naked female breasts have not
traditionally been considered indecent; public indecency laws permit males and females
to appear in public topless; photos of breasts do not lead to a prurient interest in sex;
women are known to walk around topless at a festival in Columbus so a photo of breasts
does not offend prevailing standards in the adult community; and representations of
naked breasts may have legitimate artistic value. Appellee responded with a
memorandum in opposition arguing the definition of “nudity” contained in R.C. 2907.01(H)
is neither vague nor overbroad.
{¶7} The matter proceeded to bench trial before on December 16, 2014. The
trial court also heard argument on appellant’s memorandum of law which was treated as
a motion to dismiss and overruled.
{¶8} Appellant was found delinquent by means of disseminating matter harmful
to juveniles in Counts I, II, IV, and V. Count III was dismissed.
{¶9} On January 26, 2015, the case was transferred to Licking County Juvenile
Court for disposition because appellant is a resident of Licking County.
{¶10} On May 1, 2015, a Magistrate’s Decision was filed memorializing the
“Recommended Disposition of Disseminating Matter Harmful to Juveniles (M1) – 4 counts
Licking County, Case No. 15-CA-36 4
tried in Knox County.” Disposition included imposition of court costs, indefinite probation,
community service, house arrest, and a number of other conditions. Appellant was also
made subject to juvenile sex offender conditions of probation. On May 5, 2015, the trial
court filed a Judgment Entry adopting the magistrate’s orders.
{¶11} On May 15, 2015, appellant filed objections to the magistrate’s decision
including “1) [t]he magistrate violated [appellant’s] right to due process when it found him
delinquent of disseminating matter harmful to juveniles because the ‘harmful’ material at
issue here was the naked breast of a peer, which cannot be per se harmful [ ]; and 2)
[t]he magistrate erred when it found [appellant] delinquent of disseminating matter harmful
to juveniles, in violation of his right to equal protection under the United States and Ohio
Constitutions.” Specifically, appellant’s first objection asserted naked female breasts are
not “harmful to juveniles” and his second objection asserted he was denied equal
protection because he was the victim of the same offense.
{¶12} On May 18, 2015, the Licking County Court of Common Pleas, Juvenile
Division overruled the objections because the adjudicatory hearing was conducted by a
judge in Knox County, thus the Licking County Court was without authority to set aside
the final orders of a judge of another county.
{¶13} Appellant now appeals from the May 5, 2015 Judgment Entry of the Licking
County Court of Common Pleas, Juvenile Division, incorporating the May 1, 2015
Decision of Magistrate.
Licking County, Case No. 15-CA-36 5
{¶14} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶15} “I. THE JUVENILE COURT ERRED WHEN IT FOUND L.Z. DELINQUENT
OF VIOLATING R.C. 2907.31(A)(1) WHEN NO EVIDENCE WAS PRESENTED TO
DEMONSTRATE THAT THE PHOTO HE SENT TO HIS FRIENDS WAS “HARMFUL”
OR “OBSCENE” AS REQUIRED BY R.C. 2907.31(A)(1). [ ].”
{¶16} “II. THE JUVENILE COURT VIOLATED L.Z.’S RIGHT TO DUE PROCESS
WHEN IT ADJUDICATED HIM DELINQUENT OF VIOLATING R.C. 2907.31(A)(1). [ ].”
{¶17} “III. THE JUVENILE COURT VIOLATED L.Z.’S RIGHT TO EQUAL
PROTECTION WHEN IT ADJUDICATED HIM DELINQUENT OF VIOLATING R.C.
2907.31(A)(1) BECAUSE L.Z. WAS THE INITIAL VICTIM IN THIS CASE, AND
BECAUSE THE STATE ARBITRARILY SELECTED TO PROSECUTE HIM FROM A
GROUP OF JUVENILES WHO HAD ENGAGED IN THE SAME CONDUCT. [ ].”
ANALYSIS
I.
{¶18} In his first assignment of error, appellant argues appellee failed to present
sufficient evidence that a photo of the bare breasts of a 12-year-old female is “harmful to
juveniles” within the meaning of R.C. 2907.31(A)(1). We disagree.
{¶19} Appellant was convicted upon four counts of disseminating matter harmful
to juveniles pursuant to R.C. 2907.31(A)(1) which states in pertinent part: “No person,
with knowledge of its character or content, shall recklessly * * *: [d]irectly sell, deliver,
furnish, disseminate, provide, exhibit, rent, or present to a juvenile, a group of juveniles,
Licking County, Case No. 15-CA-36 6
* * * any material or performance that is obscene or harmful to juveniles (emphasis
added).” R.C. 2907.31(F) further provides in pertinent part:
Whoever violates this section is guilty of disseminating matter
harmful to juveniles. If the material or performance involved is
harmful to juveniles, except as otherwise provided in this
division, a violation of this section is a misdemeanor of the first
degree. If the material or performance involved is obscene, except
as otherwise provided in this division, a violation of this section is a
felony of the fifth degree. If the material or performance involved is
obscene and the juvenile to whom it is sold, delivered, furnished,
disseminated, provided, exhibited, rented, or presented, the juvenile
to whom the offer is made or who is the subject of the agreement, or
the juvenile who is allowed to review, peruse, or view it is under
thirteen years of age, violation of this section is a felony of the fourth
degree. (Emphasis added.)
{¶20} In this case, the offenses were charged as misdemeanors of the first degree
(Complaint, Aug. 12, 2014). Appellee was thus not required to prove the image is
“obscene;” the statute is satisfied if appellee established the image is “harmful to
juveniles.” See, State v. Daniels, 1st Dist. Hamilton No. C-020321, 2003-Ohio-1545, ¶
14 [conviction for felony disseminating against manifest weight of evidence if photo of
nude prepubescent female is not “obscene” pursuant to R.C. 2907.01(F)]. “Obscenity”
and “harmful to juveniles” are two separate categories of material, with the latter not rising
to the level of what an adult would consider “obscene.” The underlying premise of
Licking County, Case No. 15-CA-36 7
appellant’s first assignment of error--that “sexting” of the subject photo is non-criminal
“testing of boundaries” and “sexual exploration” by two 12-year-old children—is belied by
the purpose underlying R.C. 2907.31. The legislative notes for that section state in
pertinent part, “This section is designed to prevent persons from exposing the young to
obscenity or to matter which, though not obscene from an adult viewpoint, is nevertheless
unsuitable for juveniles.” The existence of the two categories presupposes material that
is subordinate to obscenity may result in criminal culpability when displayed to juveniles.
{¶21} Appellant’s argument that a photo of a 12-year-old female’s breasts is not
“obscene” is therefore inapposite. Instead, the issue posed in the instant case is whether
the subject photo is “harmful to juveniles” within the meaning of R.C. 2907.01(E) and we
find the answer is “yes.” R.C. 2907.01(E) defines “harmful to juveniles” as:
* * * [T]hat quality of any material or performance describing
or representing nudity * * * in any form to which all of the following
apply:
(1) The material or performance, when considered as a whole,
appeals to the prurient interest of juveniles in sex;
(2) The material or performance is patently offensive to
prevailing standards in the adult community as a whole with respect
to what is suitable for juveniles; and
(3) The material or performance, when considered as a whole,
lacks serious literary, artistic, political, and scientific value for
juveniles.
(Emphasis added.)
Licking County, Case No. 15-CA-36 8
{¶22} Appellant argues the photo does not appeal to the prurient interest of
juveniles in sex because appellee failed to establish “a shameful or morbid interest in
nudity, sex, or excretion * * * [that] goes substantially beyond customary limits of candor
in description or representation.” (Brief, 12). Appellant’s definition is taken from First
Amendment obscenity law in which “prurient” is a term of art and is defined as something
which appeals to “a shameful or morbid interest in nudity, sex, or excretion.” See, e.g.,
Brockett v. Spokane Arcades, 472 U.S. 491, 497, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985);
Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). As recognized
in State v. Conrad, 2nd Dist. Montgomery No. 15553, 1997 WL 54668, *2 (Jan. 17, 1997),
the U.S. Supreme Court has defined “prurient” in such a way as to “introduce an element
of depravity to the conduct or material being examined with regard to federal and state
obscenity statutes (emphasis added).”
{¶23} With regard to R.C. 2907.31(A), though, “obscene” and “harmful to
juveniles” are two different categories of material, the latter being subject to a lesser
criminal penalty than the former. Appellant presents no authority supporting his argument
that appellee was required to establish any element of depravity in its prosecution of the
1st-degree misdemeanor offense at issue here. The Eleventh District Court of Appeals
has expressly rejected appellant’s argument regarding the same subject matter we are
presented with in the instant case--a topless photo of a 12-year-old female:
The dissent asserts that the photograph did not appeal to the
prurient interest of S.J.F because a prurient interest is one that
appeals to a “shameful or morbid interest in sex.” However, this
standard is used to describe material that is obscene. Here, the
Licking County, Case No. 15-CA-36 9
material sent to S.J.F depicted a minor, twelve-year-old M.K., which
violates R.C. 2907.323(A)(1), stating that no person shall
“photograph any minor * * * in a state of nudity.” In a case involving
child pornography the material does not have to be obscene, or
appeal to the prurient interest, to be considered harmful. See State
v. Tooley, 114 Ohio St.3d 366, 872 N.E.2d 894, 2007–Ohio–3698, at
¶ 10 (holding that the State can “regulate child pornography without
requiring proof that material is obscene”). Therefore, the State did
not have to prove that there was a shameful or morbid interest on
behalf of S.J.F. in wanting to view the picture of M.K., as the picture
depicted a minor.
Additionally, allowing a child to view an image of another child
topless would be considered offensive by the adult community with
respect to what is suitable for juveniles. Clearly, this photograph had
no literary, artistic, political, or scientific value. * * * *.
In re S.J.F., 11th Dist. Geauga No. 2010-G-2960, 2010-Ohio-
5514, ¶¶ 28-29.
{¶24} As the Eleventh District noted, a photo of a 12-year-old female’s breasts
may be considered child pornography in some contexts, absent any showing of obscenity
or appeal to the prurient interest. Id. Thus, although we conclude appellee was not
required to show the photo demonstrated “a shameful or morbid interest in nudity, sex, or
excretion,” we also disagree with appellant’s premise that this photo represents harmless
Licking County, Case No. 15-CA-36 10
sexual exploration. We find the photo considered as a whole appeals to the prurient
interest of juveniles in sex. R.C. 2907.01(E)(1).
{¶25} Appellant presents no authority supporting the proposition that the photo at
issue is not patently offensive to prevailing standards in the adult community as a whole
with respect to what is suitable for juveniles. The inherent harm in sexting, especially in
the impulse-driven world of middle school, is well-documented in our social-media-
obsessed culture. “As the National Crime Prevention Counsel has stated, a provocative
or nude photograph may be ‘an electronic fingerprint that can damage [teens'] college
careers, future employment opportunities, and reputation with friends, family, and
neighbors.’” Kowalczyk, Abridging Constitutional Rights: Sexting Legislation in Ohio, 58
Clev. St. L. Rev. 685, 692-93 (2010). We find the photo is patently offensive to prevailing
standards in the adult community as a whole with respect to what is suitable for juveniles.
R.C. 2907.01(E)(2).
{¶26} We further find the photo lacks serious literary, artistic, political, and
scientific value for juveniles. Indeed, appellant makes no attempt to argue that the third
and final category of material harmful to juveniles does not apply to the photo. R.C.
2907.01(E)(3).
{¶27} Appellee presented sufficient evidence that the topless photo of the 12-
year-old female is “harmful to juveniles” within the meaning of R.C. 2907.31(A)(1).
Appellant’s first assignment of error is overruled.
II., III.
{¶28} We will consider appellant’s second and third assignments of error together.
Note on the Appellate Record
Licking County, Case No. 15-CA-36 11
{¶29} We agree with appellee that appellant did not properly raise these
arguments before the trial court. Although appellant asserts we could extrapolate his
constitutional arguments from the arguments raised below, we note specific arguments
raised here. Generally, a constitutional argument that is not raised in the trial court is
“waived and cannot be raised for the first time on appeal.” State v. Brewer, 2nd Dist.
Montgomery No. 26153, 2015-Ohio-693, 2015 WL 848406, ¶ 36. We may still “consider
constitutional challenges to the application of statutes in specific cases of plain error or
where the rights and interests involved may warrant it.” Id., citing In re M.D., 38 Ohio St.3d
149, 527 N.E.2d 286 (1988), syllabus.
{¶30} Notwithstanding the issue of waiver, we find appellant's constitutional
arguments to be unpersuasive. We first note statutes enjoy a strong presumption of
constitutionality. State v. Galloway, 5th Dist. Delaware No. 15CAA040029, 2015-Ohio-
4949, ¶ 18. “An enactment of the General Assembly is presumed to be constitutional, and
before a court may declare it unconstitutional it must appear beyond a reasonable doubt
that the legislation and constitutional provisions are clearly incompatible.” State v. Cook,
83 Ohio St.3d 404, 409, 1998–Ohio–291, 700 N.E.2d 570, citing State ex rel. Dickman v.
Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus.
Additionally, statutes and rules are to be construed so as to avoid unreasonable or absurd
results. State ex rel. Asti v. Ohio Dept. of Youth Servs., 107 Ohio St.3d 262, 2005–Ohio–
6432, 838 N.E.2d 658, ¶ 28.
Appellant’s Due Process Arguments
{¶31} Appellant argues application of R.C. 2907.31(A)(1) to him violates his right
to due process because as a juvenile he is a member of the class of persons the statute
Licking County, Case No. 15-CA-36 12
is designed to protect; alternatively, the statute is void for vagueness as applied to him.
We disagree.
{¶32} First, appellant argues R.C. 2907.21(A)(1) was enacted to protect minors,
thus juveniles may not be prosecuted for violations thereof. Appellant argues punishing
him for a violation of the statute is an “absurd result.” Nothing in the statute prevents a
juvenile with being charged for a violation if his or her conduct meets the elements.
Appellant places this argument within the context of his due process assignment of error,
but we fail to see how his rights to due process have been violated.
{¶33} Appellant poses the arguments as alternatives in his brief: either the statute
leads to an absurd result because he is a member of the class it is designed to protect,
or as applied to him it is void for vagueness. Appellant presents us with no authority in
support of his argument that as a juvenile, he may not be prosecuted for a violation of
R.C. 2907.31(A)(1). We deduce appellant’s point is, as a recipient of the photo himself
and thus a purported “victim” of a disseminating offense, he may not be prosecuted as an
offender for sending it on to others. In the case cited by appellant, a Pennsylvania
appellate court weighed the application of a statutory rape law to consensual sexual
conduct between two 11-year-olds, finding the history of the statute at issue “makes clear
that the Legislature intended to exclude from prosecution consensual sexual activity
within peer groups, criminalizing behavior only where the ages of the participants were
significantly disparate and/or the acts were not mutually agreed upon.” In re B.A.M., 2002
Pa.Super. 284, 806 A.2d 893, 897 (Pa. Super. Ct.). Again, appellant characterizes the
instant case as similar consensual sexual experimentation between children. Those are
Licking County, Case No. 15-CA-36 13
not the facts here and statutory rape statutes are not analogous to R.C. 2907.31(A)(1).
B.A.M. is inapposite to the case sub judice.
{¶34} Appellant further argues R.C. 2907.31(A)(1) is void for vagueness as
applied to him. “Under the vagueness doctrine, statutes which do not fairly inform a
person of what is prohibited will be found unconstitutional as violative of due process.”
State v. Carrick, 131 Ohio St.3d 340, 2012-Ohio-608, 965 N.E.2d 264, ¶ 14, citing State
v. Reeder, 18 Ohio St.3d 25, 26, 479 N.E.2d 280 (1985) and Connally v. Gen. Constr.
Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Columbus v. Thompson, 25 Ohio
St.2d 26, 266 N.E.2d 571 (1971). However, “‘[i]mpossible standards of specificity are not
required. * * * The test is whether the language conveys sufficiently definite warning as to
the proscribed conduct when measured by common understanding and practices.’” Id. at
¶ 14, quoting Jordan v. De George, 341 U.S. 223, 231–232, 71 S.Ct. 703, 95 L.Ed. 886(1951).
{¶35} A facial challenge requires that “the challenging party * * * show that the
statute is vague ‘not in the sense that it requires a person to conform his conduct to an
imprecise but comprehensible normative standard, but rather in the sense that no
standard of conduct is specified at all.’” Carrick, supra, 2012-Ohio-608, at ¶ 15, citing
State v. Anderson, 57 Ohio St.3d 168, 171, 566 N.E.2d 1224 (1991), quoting Coates v.
Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). Stated another way,
“the challenger must show that upon examining the statute, an individual of ordinary
intelligence would not understand what he is required to do under the law.” Id. Appellant
“must prove, beyond a reasonable doubt, that the statute was so unclear that he could
not reasonably understand that it prohibited the acts in which he engaged.” Id., citing
Licking County, Case No. 15-CA-36 14
United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954); 25 Ohio
Jurisprudence 3d, Criminal Law, Section 8, at 106 (1981).
{¶36} We have previously relied upon the void-for-vagueness test set forth by the
Supreme Court of Ohio in State v. Collier:
A tripartite analysis must be applied when examining the void-
for-vagueness doctrine. See Papachristou v. City of Jacksonville,
405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Grayned v. City
of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972);
Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903(1983). In Tanner, supra [State v. (1984), 15 Ohio St.3d 1], Justice
Locher instructed that “[t]hese values are first, to provide fair warning
to the ordinary citizen so behavior may comport with the dictates of
the statute; second, to preclude arbitrary, capricious and generally
discriminatory enforcement by officials given too much authority and
too few constraints; and third, to ensure that fundamental
constitutionally protected freedoms are not unreasonably impinged
or inhibited. Proper constitutional analysis necessitates a review of
each of these rationales with respect to the challenged statutory
language.” Id., 15 Ohio St.3d at 3, 472 N.E.2d at 691.
State v. Johnson, 5th Dist. Licking No. 14-CA-54, 2015-Ohio-
1110, ¶ 12, citing State v. Collier, 62 Ohio St.3d 267, 269–270
(1991).
Licking County, Case No. 15-CA-36 15
{¶37} Appellant does not argue that R.C. 2907.31(A)(1) is unclear or not
susceptible to being easily understood. Appellant argues the statute is unconstitutional
as applied to him. “In an as-applied challenge, the challenger ‘contends that application
of the statute in the particular context in which he has acted, or in which he proposes to
act, [is] unconstitutional.’” Carrick, supra, 2012-Ohio-608 at ¶ 16, citing State v. Lowe,
112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 17, quoting Ada v. Guam Soc. of
Obstetricians & Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992)
(Scalia, J., dissenting). Thus, an as-applied challenge focuses on the particular
application of the statute.
{¶38} Appellant’s as-applied challenge is similar to his equal protection argument:
the statute is unconstitutionally vague because he was treated as an offender but the 12-
year-old female was treated as a “victim.” The trial court referred to the female as the
“victim” during disposition but the female is not the “victim” in terms of the statute—the
statute is designed to protect the juvenile recipient of the harmful material. As we will
further address infra, appellant is properly treated as an offender because the evidence
demonstrated he recklessly disseminated the photo. Appellant has presented us with no
authority establishing why application of the statute to him is unconstitutionally void for
vagueness. The statute is not so unclear appellant could not reasonably understand that
it prohibited the acts in which he engaged, nor is it unconstitutional as applied to his
conduct.
“In Re D.B.” Does not apply
{¶39} Appellant’s constitutional challenges are largely premised upon the ruling
of the Ohio Supreme Court in In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, 950 N.E.2d
Licking County, Case No. 15-CA-36 16
528, in which the Court found R.C. 2907.02(A)(1)(b), “statutory” rape, to be
unconstitutionally vague as applied to the conduct of a child under the age of 13 who
engages in sexual conduct with another child under the age of 13. Id. at ¶ 27. The Court
also found the statute violated equal protection when applied to only one of those parties.
Id. at ¶ 31. The statutory rape offense held offenders strictly liable for engaging in sexual
conduct with a child under the age of 13. The Court found the statute to run afoul of the
second element of the tripartite void-for-vagueness test; the statute authorizes and
encourages arbitrary enforcement when applied to two children under the age of 13
engaging in sexual conduct because both children are victims and offenders. Id. at ¶ 24.
Further, the Equal Protection Clause requires similarly-circumstanced persons to be
treated alike, but in terms of 2907.02(A)(1)(b), both parties could be prosecuted and both
were members of the class protected by the statute; the resulting arbitrary enforcement
against the defendant violated his right to equal protection. Id. at ¶ 31.
{¶40} The fatal flaw in the statutory-rape offense, for D.B.’s purposes, is the strict
liability mens rea. The Court pointed out that the facts indicated one child forced another
child to engage in sexual conduct, supporting a charge of forcible rape. However, for the
purpose of statutory rape, both “victim” and “perpetrator” were in violation of the statute
because sexual conduct between persons under the age of 13 is prohibited without regard
to force or consent. In re D.B., supra, 2011-Ohio-2671 at ¶ 25. The statute offers no
prosecutorial exception to charging every person under the age of 13 involved in the
offense. Id., 2011-Ohio-2671 at ¶ 30.
{¶41} R.C. 2907.31(A)(1), the statute at issue in the case sub judice, requires
appellee to establish the element of recklessness. Pursuant to R.C. 2901.22(C), “[a]
Licking County, Case No. 15-CA-36 17
person acts recklessly when, with heedless indifference to the consequences, the person
disregards a substantial and unjustifiable risk that the person's conduct is likely to cause
a certain result or is likely to be of a certain nature. A person is reckless with respect to
circumstances when, with heedless indifference to the consequences, the person
disregards a substantial and unjustifiable risk that such circumstances are likely to exist.”
{¶42} As applied to the instant case, in order to find appellant acted recklessly,
the trier of fact must have been able to find, beyond a reasonable doubt, that when he
showed or forwarded the photo to his friends, he acted with a perverse disregard that his
conduct was likely to cause a certain result. In this instance, the trial court found that
appellant presented the photo to other juveniles four times. The “result” is, dissemination
of harmful material to unmarried persons under the age of eighteen. R.C. 2907.01(I).
The fact that appellant himself is a “juvenile” is immaterial. “The mental state
“recklessness” assumes that the actor intends the act, but not the harm.” State v. Patton,
106 Ohio App.3d 736, 740, 667 N.E.2d 57 (1st Dist.1995).
{¶43} As appellee notes, appellant’s argument that as a juvenile, he is a member
of the class protected by the statute and therefore may not be prosecuted for violation
thereof, was addressed by the Eleventh District Court of Appeals in In re J.P., 11th Dist.
Geauga No. 2011-G-3023, 2012-Ohio-1451. In that case, the court specifically found
R.C. 2907.31 is not void for vagueness as applied to juveniles. Id. at ¶ 35. The J.P. court
also distinguished In re D.B., supra:Appellant's reliance on In re D.B. is misplaced. As stated
above, appellant is not both a “victim” and “offender” as claimed. The
statute requires only one person to act in order to be culpable. In In
Licking County, Case No. 15-CA-36 18
re D.B., two people engaged in the proscribed conduct, but only one
was charged. Here, only appellant engaged in the unlawful act.
Further, had appellant sent any nude photograph to a juvenile, e.g.,
a nude photograph of an adult, she would still have disseminated
harmful material. Simply because the image was of her does not
make her any less culpable of the offense. In this case, appellant
recklessly disseminated harmful material. That is, since the facts
alleged in the complaint were found to be true, only appellant is in
violation of the statute; whereas, in In re D.B., “if the facts alleged in
the complaint were true, D.B. and M.G. would both be in violation of
R.C. 2907.02(A)(1)(b).” Id. at ¶ 24–25.
In re J.P., 11th Dist. Geauga No. 2011-G-3023, 2012-Ohio-
1451, ¶ 34.
{¶44} Appellant did not cite or attempt to distinguish J.P. and In re S.G.F. until his
reply brief, and we are not persuaded by his argument that the instant case is different
because appellee declined to prosecute the other juveniles involved including the female
who took the photo and texted it to appellant. First, we reject appellant’s assertion that
he is of the same class as the female who took the photo; the female testified at the
adjudicatory hearing that she sent the photo because appellant threatened her and she
felt pressured to do so.1 We are not required to speculate as to appellee’s motivation in
1The trial court ultimately dismissed the criminal charges related to this conduct, possibly
because the trial court found the female not to be a credible witness. The weight of the
evidence and the credibility of the witnesses are determined by the trier of fact. State v.
Yarbrough, 95 Ohio St.3d 227, 231, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79.
Licking County, Case No. 15-CA-36 19
declining to prosecute the female in this case, but we note that pursuant to appellee’s
theory of the case, the female was threatened and pressured into sending the photo. The
evidence may not have satisfied the requisite element of recklessness.
{¶45} We further reject appellant’s assertion that “five children in this case
disseminated the photo” thus his equal protection rights were violated because it is not
evident from the record that appellant alone was prosecuted based on anything other
than the evidence. Male minor witnesses, the purported recipients of the photo, were
granted immunity from prosecution and testified at the adjudicatory hearing, claiming
variously they received the photo from someone other than appellant, or they were not
the persons actually sending and receiving messages on their own cell phones, or they
can’t recall their old cell phone numbers to identify the number on exhibits of text
messages sent “to” and “from.” The record of the adjudicatory hearing demonstrates the
witnesses dissimulated and equivocated. It is not our role to speculate why any of these
individuals were not prosecuted when appellee’s theory of the case was that appellant
threatened the female to obtain the photo and then texted or forwarded it to other
individuals. Appellant’s forwarding of the photo was demonstrated by the evidence of his
own phone.
{¶46} In short, we fail to perceive, and appellant has not established, that the
prosecution of appellant versus the other juveniles was premised upon anything other
than the evidence in the case. Appellant has not established his prosecution is the result
of a constitutional flaw in R.C. 2907.31(A)(1) on its face or as applied.
Licking County, Case No. 15-CA-36 20
Note on Selective Prosecution
{¶47} Appellant does not articulate a selective-prosecution argument per se but
does repeatedly assert that he was unfairly singled out for prosecution. We examined
the elements of a selective-prosecution claim in State v. Taylor and noted the heavy
burden upon the defendant to demonstrate an “invidious motive” indicative of bad faith.
State v. Taylor, 5th Dist. Holmes No. 12CA18, 2013-Ohio-5751, ¶ 61. In State v. Flynt,
the Ohio Supreme Court addressed the elements for establishing a selective-prosecution
claim:
To support a defense of selective or discriminatory
prosecution, a defendant bears the heavy burden of establishing, at
least prima facie, (1) that, while others similarly situated have not
generally been proceeded against because of conduct of the type
forming the basis of the charge against him, he has been singled out
for prosecution, and (2) that the government's discriminatory
selection of him for prosecution has been invidious or in bad faith,
i.e., based upon such impermissible considerations as race, religion,
or the desire to prevent his exercise of constitutional rights.
State v. Flynt, 63 Ohio St.2d 132, 134, 407 N.E.2d 15 (1980).
{¶48} In Cleveland v. Trzebuckowski, 85 Ohio St.3d 524, 532, 709 N.E.2d 1148(1999), the Supreme Court broadened the second-prong of the test to include any
selection deliberately based upon any arbitrary classification. Furthermore, the Ohio
Supreme Court has held that “[a] mere showing that another person similarly situated was
not prosecuted is not enough; a defendant must demonstrate actual discrimination due
Licking County, Case No. 15-CA-36 21
to invidious motives or bad faith.” State v. Freeman, 20 Ohio St.3d 55, 58, 485 N.E.2d
1043 (1985). Examples of when such an allegation may be held to be justified are those
situations in which selection is “deliberately based upon an unjustifiable standard such as
race, religion, or other arbitrary classification.” Trzebuckowski, 85 Ohio St.3d at 530, citing
Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 506, 7 L.Ed.2d 446, (1962).
{¶49} As has been noted by both the Ohio and U.S. Supreme Courts, the burden
in maintaining a selective prosecution claim is on the defendant as the prosecutor enjoys
a presumption that his actions were non-discriminatory in nature. State v. Keene, 81 Ohio
St.3d 646, 653, 693 N.E.2d 246 (1998). “In order to dispel [this] presumption * * *, a
criminal defendant must present ‘clear evidence to the contrary.’” Id. citing United States
v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). The U.S.
Supreme Court further noted that in its cases delineating the elements of a selective
prosecution case, it has taken “great pains” in explaining that the standard is a quite
demanding one. Armstrong, 517 U.S. at 468.
{¶50} In the instant case, appellant has not demonstrated that appellee’s decision
to prosecute him while granting immunity to other juveniles involved was dictated by
anything other than the evidence. As appellee notes, the selective-prosecution argument
was raised summarily at trial in closing argument and was never articulated to the extent
requiring a hearing such as the claim in Taylor, supra. Having reviewed the record of this
case, we find no evidence appellant was prosecuted based upon any arbitrary
classification.
{¶51} Appellant’s second and third assignments of error are overruled.
Licking County, Case No. 15-CA-36 22
CONCLUSION
{¶52} Appellant’s three assignments of error are overruled and the judgment of
the Licking County Court of Common Pleas, Juvenile Division is affirmed.
By: Delaney, J. and
Baldwin, J.
Hoffman, PJ., concurs separately
Licking County, Case No. 15-CA-36 23
Hoffman, P.J., concurring
{¶53} I concur in the majority’s thorough analysis and disposition of Appellant’s
three assignments of error. I write separately only to state what I find to be an additional
reason In Re D.B. does not apply to the case sub judice.
{¶54} In In Re D.B., both juveniles were both “victim” and “offender” as a result of
engaging in the prohibited conduct simultaneously. While Appellant may have been a
“victim” in the strictest sense of the word when he received the photo,2 his subsequent
act of forwarding the photo to other juveniles was separate and distinct conduct, as a
result of which he was not a victim, but only the offender.
________________________________
HON. WILLIAM B. HOFFMAN
2 Given the photo was received in response to Appellant’s request, Appellant was not a
“victim” in the traditional sense of the word.