[Cite as State v. Bronkar, 2019-Ohio-1306.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. Patricia A. Delaney, J.
                         Plaintiff-Appellee   :       Hon. Earle E. Wise, J.
                                              :
-vs-                                          :
                                              :       Case No. CT2018-0041
EARL F. BRONKAR, JR.                          :
                                              :
                     Defendant-Appellant      :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Muskingum
                                                  County Court of Common Pleas, Case No.
                                                  CR2017-0243


JUDGMENT:                                         Reversed and Vacated



DATE OF JUDGMENT ENTRY:                           April 5, 2019



APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

D. MICHAEL HADDOX                                 ELIZABETH GABA
Prosecuting Attorney                              1231 East Broad Street
BY: GERALD ANDERSON                               Columbus, OH 43205
27 North Fifth St., Box 189
Zanesville, OH 43702-0189
[Cite as State v. Bronkar, 2019-Ohio-1306.]


Gwin, P.J.

        {¶1}     Appellant Earl F. Bronkar, Jr. [“Bronkar”] appeals his conviction and

sentence after a no contest plea in the Muskingum County Court of Common Pleas.

                                         Facts and Procedural History

        {¶2}     On June 12, 2017, Bronkar was at the Muskingum County Job and Family

Services office using a computer. An employee walked by the printer and found pages

with images of nude children on it. Bronkar was found to be on a computer displaying a

website with nude children on it. Bronkar was told to leave. The employee took the

images to her boss and eventually the police were called. The police found Bronkar had

a binder with five or seven pages each with multiple images printed on them of nude

children and adults. The pictures did not involve the children engaging in sexual activity.

(T. Aug. 18, 2017 at 17-18; 24). The pictures did not depict close-ups of the children’s

genitalia. (Id.). Nor were the children posing in a lewd manner. (T. Aug. 18, 2017 at 18).

When the police asked Bronkar, Bronkar explained that he had accidentally gotten onto

an unfamiliar website and was attempting to get out of it when the pictures were

accidentally printed. (T. Aug. 18, 2017 at 18 -19).

        {¶3}     Bronkar was indicted on two counts of Illegal Use of a Minor in Nudity

Oriented Material or Performance, in violation of R.C. 2907.323(A)(1), each a felony of

the second degree; and six counts of Illegal Use of a Minor in Nudity Oriented Material or

Performance, in violation of R.C. 2907.323(A)(3), each a felony of the fifth degree.

        {¶4}     On August 10, 2017, Bronkar filed a Motion to Suppress and a Motion to

Dismiss the Indictment. On August 18, 2017, a hearing was held on both of the motions,
Muskingum County, Case No. CT2018-0041                                                              3


which were both denied1. None of the pictures were marked as Exhibits and entered into

evidence during the hearing on Bronkar’s motion to dismiss.

      {¶5}       On August 23, 2017, Bronkar pled no contest to count one Illegal Use of a

Minor in Nudity Oriented Material or Performance, in violation of R.C. 2907.323(A)(1), a

felony of the second degree. The state agreed to nolle all remaining counts at the time

of sentencing. The state presented evidence regarding the facts of the case at the plea

hearing. None of the pictures were marked as Exhibits and entered into evidence during

the plea hearing. None of the pictures were sealed and made a part of the record for

purposes of appellate review.

      {¶6}       Bronkar filed for a competency evaluation, was evaluated, and found to be

competent. Bronkar was brought back before the trial court on May 21, 2018, and pled

no contest again, to the same plea deal that occurred on August 23, 2017. Both parties

stipulated to the facts as presented during the August 23, 2017, plea hearing. None of

the pictures were marked as Exhibits and entered into evidence during the second plea

hearing. None of the pictures were sealed and made a part of the record for purposes of

appellate review. Bronkar received a sentence of three years in prison, and was required

to register as a Tier 3 Sex Offender.

                                              Assignments of Error

      {¶7}       Bronkar raises three assignments of error,

      {¶8}       “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

AND ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION TO DISMISS

THESE COUNTS OF THE INDICTMENT. THE CHARGES ARE SO ILL-DEFINED THAT



      1   We note the trial court did not file a Judgment Entry overruling either of the motions.
Muskingum County, Case No. CT2018-0041                                  4


THE DEFENDANT DOES NOT KNOW WHAT HE IS DEFENDING AGAINST, IN

VIOLATION OF HIS 5TH AND 6TH AMENDMENT RIGHTS, AND THE STATUTES ARE

VAGUE, OVERBROAD AND UNCONSTITUTIONAL.          IN THE EVENT THAT THIS

COURT FINDS THAT THE STATE DOES NOT HAVE TO PROVE THAT AN ELEMENT

OF THE "NUDITY" FOR R.C. 2907.323(A)(1) AND 2907.323(A)(3) MUST REFER TO A

"LEWD EXHIBITION OF THE GENITALS" OR "GRAPHIC FOCUS ON GENITALS",

THEN THE STATUTES R.C. 2907.323 (A)(1) AND (A)(3) ARE UNCONSTITUTIONAL IN

THEIR VAGUENESS AND OVERBREADTH.

     {¶9}   “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

AND ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION TO DISMISS

THE F2 COUNTS OF THE INDICTMENT.         THE COUNTS SHOULD HAVE BEEN

DISMISSED BECAUSE LEWD EXHIBITION OR A GRAPHIC FOCUS ON THE

GENITALS MUST BE AN ESSENTIAL ELEMENT OF THE OFFENSE OF R.C.

2907.323(A)(1) (SEE LANZINGER AND O'NEILL DISSENTS, STATE V. MARTIN)

OTHERWISE THE STATUTE DOES NOT SURVIVE CONSTITUTIONAL SCRUTINY. IN

PARTICULAR, R.C. 2907.323(A)(1) IS UNCONSTITUTIONAL AS APPLIED IN THIS

CASE TO DEFENDANT.

     {¶10} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

AND ABUSED ITS DISCRETION, WHEN IT FOUND THE DEFENDANT-APPELLANT

GUILTY OF COUNT 1 OF THE INDICTMENT WHEN SAID FINDINGS WERE NOT

SUPPORTED BY SUFFICIENT EVIDENCE, WERE AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE, AND THE TRIAL COURT APPLIED AN INCORRECT LEGAL

STANDARD IN EVALUATING THE EVIDENCE.        THE IMAGE ASSOCIATED WITH
Muskingum County, Case No. CT2018-0041                                                  5


COUNT 1 DID NOT HAVE "LEWD CONTENT" OR A "GRAPHIC FOCUS ON GENITALS"

AND AS SUCH SHOULD NOT BE ILLEGAL TO "RECKLESSLY POSSESS" OR

"RECKLESSLY TRANSFER.”           TO HOLD THAT VIEWING THE SPECIFIC IMAGE

ASSOCIATED WITH COUNT 1 ON A PC AND TRANSFER OF THAT SPECIFIC IMAGE

TO A PRINTER IS A CRIME, IS BOTH WRONG AND UNCONSTITUTIONAL. THIS

ACTION BY THE COURT WAS IN VIOLATION OF APPELLANT'S 5" AND 14TH

AMENDMENT RIGHTS, AND FURTHER VIOLATED HIS RIGHTS UNDER THE EQUAL

PROTECTION CLAUSE.”

                                             I. & II.

      {¶11} In his first two assignments of error, Bronkar claims the trial court erred in

denying his motion to dismiss the Illegal Use of a Minor in Nudity Oriented Material or

Performance because the statute R.C. 2907.323(A)(1) is unconstitutionally vague and

overbroad.

      STANDARD OF APPELLATE REVIEW.

      {¶12} Bronkar’s argument centers on an issue of law, not the discretion of the

trial court. “‘When a court’s judgment is based on an erroneous interpretation of the law,

an abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville Grace

Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6; Huntsman

v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL 2572598, ¶

50.’ Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d

1237, ¶ 13.” State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶6.

Because the assignments of error involve the interpretation of a statute, which is a

question of law, we review the trial court’s decision de novo. Med. Mut. of Ohio v.
Muskingum County, Case No. CT2018-0041                                               6

Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13; Accord, State

v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9; Hurt v. Liberty

Township, Delaware County, OH, 5th Dist. Delaware No. 17 CAI 05 0031, 2017-Ohio-

7820, ¶ 31.

      ISSUE FOR APPEAL.

      A. Whether R.C. 2907.323(A)(1) is unconstitutionally vague and overbroad.

      {¶13} In Kolender v. Lawson, the United State Supreme Court noted,

              As generally stated, the void-for-vagueness doctrine requires that a

      penal statute define the criminal offense with sufficient definiteness that

      ordinary people can understand what conduct is prohibited and in a manner

      that does not encourage arbitrary and discriminatory enforcement. Village

      of Hoffman Estates v. Flipside, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d

      362 (1982); Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605

      (1974); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33

      L.Ed.2d 222 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 92

      S.Ct. 839, 31 L.Ed.2d 110 (1972); Connally v. General Construction Co.,

      269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Although the doctrine

      focuses both on actual notice to citizens and arbitrary enforcement, we have

      recognized recently that the more important aspect of vagueness doctrine

      “is not actual notice, but the other principal element of the doctrine—the

      requirement that a legislature establish minimal guidelines to govern law

      enforcement.” Smith, supra, 415 U.S. at 574, 94 S.Ct., at 1247–1248.

      Where the legislature fails to provide such minimal guidelines, a criminal
Muskingum County, Case No. CT2018-0041                                                  7


      statute may permit “a standardless sweep [that] allows policemen,

      prosecutors, and juries to pursue their personal predilections.” Id., at 575,

      94 S.Ct., at 1248.

461 U.S. 352, 357-358, 103 S.Ct. 1855, 75 L.Ed.2d 903(1983)(footnotes omitted).

      {¶14} In discussing the First Amendment overbreadth doctrine, the United States

Supreme Court has emphasized that,

             Where a statute regulates expressive conduct, the scope of the

      statute does not render it unconstitutional unless its overbreadth is not only

      “real, but substantial as well, judged in relation to the statute’s plainly

      legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct.

      2908, 2917, 37 L.Ed.2d 830 (1973). Even where a statute at its margins

      infringes on protected expression, “facial invalidation is inappropriate if the

      ‘remainder of the statute ... covers a whole range of easily identifiable and

      constitutionally proscribable ... conduct....’ ” New York v. Ferber, 458 U.S.,

      at 770, n. 25, 102 S.Ct., at 3362 n. 25.

Osborne v. Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, 109 L.Ed.2d 98(1990).

      {¶15} In Osborne, the United States Supreme Court specifically found Ohio’s

statute, R.C. 2907.323, passed constitutional muster on all issues of vagueness and

overbreadth, and was not an unconstitutional violation of the First Amendment. The

Osborne court reviewed subsection (A)(3). That section states,

             (A) No person shall do any of the following:
Muskingum County, Case No. CT2018-0041                                                   8


             (3) Possess or view any material or performance that shows a minor

      who is not the person’s child or ward in a state of nudity, unless one of the

      following applies:

             (a) The material or performance is sold, disseminated, displayed,

      possessed, controlled, brought or caused to be brought into this state, or

      presented for a bona fide artistic, medical, scientific, educational, religious,

      governmental, judicial, or other proper purpose, by or to a physician,

      psychologist, sociologist, scientist, teacher, person pursuing bona fide

      studies or research, librarian, member of the clergy, prosecutor, judge, or

      other person having a proper interest in the material or performance.

             (b) The person knows that the parents, guardian, or custodian has

      consented in writing to the photographing or use of the minor in a state of

      nudity and to the manner in which the material or performance is used or

      transferred.

      {¶16} In State v. Hosseinipour, this Court found that the rationale espoused in

Osbourne concerning R.C. 2907.323(A)(3) applies with equal force to a violation of R.C.

2903.323(A)(1) the section to which Bronkar pled,

             Both subsections refer to a “state of nudity.” Although we are only

      concerned with a violation under R.C. 2907.323(A)(1), we find the Osborne

      case to be definitive and binding upon the constitutional issues presented

      sub judice. In State v. Graves, 184 Ohio App.3d 39, 2009–Ohio–974 (4th

      Dist.2009), ¶ 9, out brethren from the Fourth District stated the following:
Muskingum County, Case No. CT2018-0041                                                9


             Before we go further, we point out that both Young and

      Osborne involved R.C. 2907.323(A)(3), not subsection (A)(1).

      However, this fact makes no difference for purposes of our analysis.

      This court has previously held that the same “lewd” or “graphic focus

      on the genitals” that both Supreme Courts applied to an (A)(3)

      offense applies equally to an (A)(1) offense. See State v. Walker

      (1999), 134 Ohio App.3d 89, 94, 730 N.E.2d 419; State v. Steele

      (Aug. 21, 2001), Vinton App. No. 99CA530, 2001 WL 898748.

5th Dist. Delaware No. 13 CAA 05 0046, 2014-Ohio-1090, ¶13.

      {¶17} The Osborne holding gives a green light to Ohio’s statutory scheme:

             The Ohio statute, on its face, purports to prohibit the possession of

      “nude” photographs of minors. We have stated that depictions of nudity,

      without more, constitute protected expression. See Ferber [New York v.,

      458 U.S. 747], supra, at 765, n. 18, 102 S.Ct., at 3359, n. 18. Relying on

      this observation, Osborne argues that the statute as written is substantially

      overbroad. We are skeptical of this claim because, in light of the statute’s

      exemptions and “proper purposes” provisions, the statute may not be

      substantially overbroad under our cases.* * * However that may be,

      Osborne’s overbreadth challenge, in any event, fails because the statute,

      as construed by the Ohio Supreme Court on Osborne’s direct appeal,

      plainly survives overbreadth scrutiny.    Under the Ohio Supreme Court

      reading, the statute prohibits “the possession or viewing of material or

      performance of a minor who is in a state of nudity, where such nudity
Muskingum County, Case No. CT2018-0041                                                  10


      constitutes a lewd exhibition or involves a graphic focus on the genitals, and

      where the person depicted is neither the child nor the ward of the person

      charged.” 37 Ohio St.3d, at 252, 525 N.E.2d, at 1368.* * *By limiting the

      statute’s operation in this manner, the Ohio Supreme Court avoided

      penalizing persons for viewing or possessing innocuous photographs of

      naked children. We have upheld similar language against overbreadth

      challenges in the past. In Ferber, we affirmed a conviction under a New

      York statute that made it a crime to promote the “‘lewd exhibition of [a

      child’s] genitals.’” 458 U.S., at 751, 102 S.Ct., at 3351. We noted that “[t]he

      term ‘lewd exhibition of the genitals’ is not unknown in this area and, indeed,

      was given in Miller [v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d

      419 (1973),] as an example of a permissible regulation.” Id., at 765, 102

      S.Ct., at 3359.

Osborne, 495 U.S. 103 at 112–114, 110 S.Ct. 1691, 109 L.Ed.2d 98. Accord, State v.

Hosseinipour, 2014-Ohio-1090, ¶14.

      {¶18} Upon review, we find R.C. 2907.323(A)(3) is constitutional, and is not void

for vagueness or overbreadth.

      {¶19} Bronkar’s First and Second Assignments of Error are overruled.

                                               III.

      {¶20} In his Third Assignment of Error, Bronkar contends that there was

insufficient evidence to convict him and /or the court’s findings are against the manifest

weight of the evidence.
Muskingum County, Case No. CT2018-0041                                                   11


       STANDARD OF APPELLATE REVIEW.

       {¶21} The Sixth Amendment provides, “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570

U.S. __, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616,

621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a

question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409,

2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements

of the charged offense and a review of the state's evidence.” State v. Richardson, 150

Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.

       {¶22} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus; Walker, at ¶30. “The relevant inquiry

is whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond

a reasonable doubt.” Jenks at paragraph two of the syllabus. Emphasis added. State v.

Poutney, 152 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for

evidentiary sufficiency we do not second-guess the jury's credibility determinations;

rather, we ask whether, ‘if believed, [the evidence] would convince the average mind of

the defendant's guilt beyond a reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516,

543, 747 N.E.2d 765 (2001), quoting Jenks at paragraph two of the syllabus (emphasis

added); Walker at ¶31. We will not “disturb a verdict on appeal on sufficiency grounds
Muskingum County, Case No. CT2018-0041                                                  12


unless ‘reasonable minds could not reach the conclusion reached by the trier-of-fact.’”

State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State

v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148

Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.

      ISSUE FOR APPEAL

      A. Whether, after viewing the evidence in the light most favorable to the

prosecution, the evidence, “if believed, would convince the average mind of the

defendant's guilt on each element of the crime beyond a reasonable doubt.”

      {¶23} In the case at bar, Bronkar entered a plea of no contest to one count of

Illegal Use of a Minor in Nudity Orientated Material or performance in violation of R.C.

2907.323(A)(1). That section provides,

             (A) No person shall do any of the following:

             (1) Photograph any minor who is not the person’s child or ward in a

      state of nudity, or create, direct, produce, or transfer any material or

      performance that shows the minor in a state of nudity, unless both of the

      following apply:

             (a) The material or performance is, or is to be, sold, disseminated,

      displayed, possessed, controlled, brought or caused to be brought into this

      state, or presented for a bona fide artistic, medical, scientific, educational,

      religious, governmental, judicial, or other proper purpose, by or to a

      physician, psychologist, sociologist, scientist, teacher, person pursuing

      bona fide studies or research, librarian, member of the clergy, prosecutor,
Muskingum County, Case No. CT2018-0041                                                     13


       judge, or other person having a proper interest in the material or

       performance;

              (b) The minor’s parents, guardian, or custodian consents in writing

       to the photographing of the minor, to the use of the minor in the material or

       performance, or to the transfer of the material and to the specific manner in

       which the material or performance is to be used.

       1). No Contest Plea.

       {¶24} R.C. 2937.07 sets forth the procedure for taking a no-contest plea in a

misdemeanor case: “A plea to a misdemeanor offense of ‘no contest’ or words of similar

import shall constitute an admission of the truth of the facts alleged in the complaint and

that the judge or magistrate may make a finding of guilty or not guilty from the explanation

of the circumstances of the offense.” See State v. Waddell, 71 Ohio St.3d 630, 631, 646

N.E.2d 821(1995). Crim.R. 11 reiterates that “[t]he plea of no contest is not an admission

of defendant’s guilt, but is an admission of the truth of the facts alleged in the indictment,

information, or complaint.” A no contest plea may not be the basis for a finding of guilt

without an explanation of circumstances that includes a statement of the facts that support

all of the essential elements of the offenses. Cuyahoga Falls v. Bowers, 9 Ohio St.3d

148, 151, 459 N.E.2d 532(1984).The right to an explanation of circumstances is not

abrogated by Crim.R. 11. Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148, 150, 459 N.E.2d

532(1984).

       2). R.C. 2907.323.

       {¶25} “The Ohio statute, on its face, purports to prohibit the possession of “nude”

photographs of minors. We have stated that depictions of nudity, without more, constitute
Muskingum County, Case No. CT2018-0041                                                  14

protected expression. See Ferber, supra, at 765, n. 18, 102 S.Ct., at 3359, n. 18.”

Osbourne v. Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, 109 L.Ed.2d 98(1990). The United

States Supreme Court recognized that the Ohio Supreme Court’s interpretation of R.C.

2907.323 has engrafted an element onto the statute,

             Under the Ohio Supreme Court reading, the statute prohibits “the

      possession or viewing of material or performance of a minor who is in a

      state of nudity, where such nudity constitutes a lewd exhibition or involves

      a graphic focus on the genitals, and where the person depicted is neither

      the child nor the ward of the person charged.” [State v. Young] 37 Ohio

      St.3d, at 252, 525 N.E.2d, at 1368. By limiting the statute’s operation in this

      manner, the Ohio Supreme Court avoided penalizing persons for viewing or

      possessing innocuous photographs of naked children.

495 U.S. at 113-114, 110 S.Ct. 1691, 109 L.Ed.2d 98 (footnote omitted). In State v.

Young, the Ohio Supreme Court held at paragraph one of the syllabus,

             1. R.C. 2907.323(A)(3) prohibits the possession or viewing of

      material or performance of a minor who is in a state of nudity, where such

      nudity constitutes a lewd exhibition or involves a graphic focus on the

      genitals, and where the person depicted is neither the child nor the ward of

      the person charged.

      {¶26} The Ohio Supreme Court reached this conclusion observing,

             It is true that R.C. 2907.323(A)(3) does not expressly limit the

      prohibited state of nudity to a lewd exhibition or a graphic focus on the

      genitals. Furthermore, we are aware that “* * * nudity, without more is
Muskingum County, Case No. CT2018-0041                                                     15

        protected expression * * *,” even where the subject depicted is a child. New

        York v. Ferber (1982), 458 U.S. 747, 765, fn. 18, 102 S.Ct. 3348, 3349 fn.

        18, 73 L.Ed.2d 1113. However, when the “proper purposes” exceptions set

        forth in R.C. 2907.323(A)(3)(a) and (b) are considered, the scope of the

        prohibited conduct narrows significantly.       The clear purpose of these

        exceptions, quoted supra, is to sanction the possession or viewing of

        material depicting nude minors where that conduct is morally innocent.

        Thus, the only conduct prohibited by the statute is conduct which is not

        morally innocent, i.e., the possession or viewing of the described material

        for prurient purposes. So construed, the statute’s proscription is not so

        broad as to outlaw all depictions of minors in a state of nudity, but rather

        only those depictions which constitute child pornography.

Young, 37 Ohio St.3d at 251-252, 525 N.E.2d 1363. See also, Osbourne v. Ohio, 495

U.S. 103, 113, n.10, 110 S.Ct. 1691, 109 L.Ed.2d 98. The Ohio Supreme Court therefore

held,

               In the area of child pornography, the United States Supreme Court

        has directed that “[a]s with all legislation in this sensitive area, the conduct

        to be prohibited must be adequately defined by the applicable state law, as

        written or authoritatively construed.” (Emphasis added.) Ferber, supra, at

        764, 102 S.Ct. at 3358. As we construe it today, R.C. 2907.323(A)(3)

        prohibits the possession or viewing of material or performance of a minor

        who is in a state of nudity, where such nudity constitutes a lewd exhibition
Muskingum County, Case No. CT2018-0041                                                  16


       or involves a graphic focus on the genitals, and where the person depicted

       is neither the child nor the ward of the person charged.

Young, 37 Ohio St.3d at 252, 525 N.E.2d 1363.

       {¶27} In State v. Hosseinpour, 5th Dist. Delaware No. 13 CAA 05 0046, 2014-

Ohio-1090, we found R.C. 2907.323(A)(1) to which Bronkar pled in the case at bar and

R.C. 2907.323(A)(3) discussed in Osbourne refer to a “state of nudity.”          We held,

“Although we are only concerned with a violation under R.C. 2907.323(A)(1), we find the

Osborne case to be definitive and binding upon the constitutional issues presented sub

judice.” ¶13.

       {¶28} The only evidence concerning the pictures came from the testimony of

Detective Scott Blanton. T., Aug. 18, 2017 at 10; T. Aug. 23, 2017 at 12. The substance

of Detective Blanton’s testimony is that the pictures depict pre-pubescent children in a

state of nudity. T. Aug. 18, 2017 at 12; T. Aug. 23, 2017 at 14. The pictures also depicted

adults and families. T. Aug. 18, 2017 at 19; 21. Detective Blanton testified that the

pictures do no depict any children involved in sexual activity. T. Aug. 18, 2017 at 17. Nor

do the photographs depict close-ups of any child’s genitals. Id. at 17-18. Detective

Blanton testified that the children depicted were not posing in a lewd manner. T. Aug. 18,

2017 at 18. The photographs appeared to be taken at a resort in France depicting adults,

teenagers and children some of whom were dressed. T. Aug. 17, 2017 at 20-21. Other

photographs appeared to have been taken at a European or Mediterranean beach. T.

Aug. 18, 2017 at 21-22.

       {¶29} In the case at bar, no photographs, video depictions, binders or computer

files were admitted into evidence. The trial court made no finding that the photographs
Muskingum County, Case No. CT2018-0041                                                   17


depicted a “minor who is in a state of nudity, where such nudity constitutes a lewd

exhibition or involves a graphic focus on the genitals.” There is no evidence that Bronkar

created, photographed, directed or produced any of the photographs.

       {¶30} The record contains no evidence that any photograph depicted a minor in a

state of nudity where such nudity constitutes a lewd exhibition or involves a graphic focus

on the genitals. As both the United States Supreme Court and the Ohio Supreme Court

has found this to be an essential element of the crime to which Bronkar pled, we find the

record contains insufficient evidence to convict Bronkar of Illegal Use of a Minor in Nudity

Orientated Material or performance in violation of R.C. 2907.323(A)(1).

       {¶31} Bronkar’s Third Assignment of Error is sustained.

       CONCLUSION.

       {¶32} Ohio’s statute, R.C. 2907.323, passes constitutional muster on all issues of

vagueness and overbreadth. Therefore, Bronkar’s First and Second Assignments of

Error are overruled.

       {¶33} The record contains no evidence that any photograph depicted a minor in a

state of nudity where such nudity constitutes a lewd exhibition or involves a graphic focus

on the genitals. As both the United States Supreme Court and the Ohio Supreme Court

has found this to be an essential element of the crime to which Bronkar pled, we find the

record contains insufficient evidence to convict Bronkar of Illegal Use of a Minor in Nudity

Orientated Material or performance in violation of R.C. 2907.323(A)(1).

       {¶34} Section 3(B) (2), Article IV of the Ohio Constitution gives an appellate court

the power to affirm, reverse, or modify the judgment of an inferior court.
Muskingum County, Case No. CT2018-0041                                               18


      {¶35} The judgment of the Muskingum County Court of Common Pleas is

reversed. Bronkar’s conviction, sentence and sexual offender classification are vacated.

By: Gwin, P.J.,

Delaney, J., and

Wise, Earle, J., concur
