[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.
