Court of Appeals of Ohio, Second District, Montgomery
from Common Pleas Court-Juvenile Division Trial Court No.
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No.
0095826, Assistant Prosecuting Attorney, Montgomery County
Prosecutor's Office, Appellate Division, Montgomery
County Courts Building, 301 West Third Street, Dayton, Ohio
45422 Attorney for Appellee, Montgomery County Children
VICTORIA A. BADER, Atty. Reg. No. 0093505, Assistant State
Public Defender, 250 East Broad Street, Suite 1400, Columbus,
Ohio 43215 Attorney for Appellant, A.Y.
1} Defendant-appellant A.Y. appeals from a judgment
of the Montgomery County Court of Common Pleas, Juvenile
Division, which accepted her no contest plea to pandering
sexually oriented material involving a minor and adjudicated
her to be a delinquent child. For the reasons that follow, we
affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
Facts and Procedural History
2} A.Y. is a minor who was born in 2004. In May
2017, when A.Y. was 12 years old, Dayton Police became aware
of a sexual assault complaint involving A.Y. and an
18-year-old male with whom she had engaged in sexual
intercourse. A short time later, while on diversion for a
previous adjudication as an unruly child, A.Y. ran away from
home. She was discovered in an abandoned home with two adult
males with whom she admitted to having sexual relations.
Following an investigation, it was discovered that A.Y. had
numerous accounts on Facebook and that she had used these
accounts to initiate contact with adult males, including a
33-year-old married man who had requested that she text him
pictures of herself. Using her Facebook accounts, A.Y.
transmitted pictures of her breasts and vagina and a video
showing her masturbating.
3} In June 2017, A.Y. was charged with pandering
sexually oriented material involving a minor, in violation of
R.C. 2907.322(A)(1), a felony of the second degree if
committed by an adult. In September 2017, A.Y. filed a motion
to dismiss the pandering charge, arguing that R.C.
2907.322(A)(1) is unconstitutional as applied to minors. The
motion was denied. In October 2017, A.Y. entered an admission
to the charge. However, in November, she filed a motion to
withdraw the admission. The court permitted the withdrawal.
That same month, A.Y. entered a plea of no contest to the
pandering charge. The magistrate adjudicated her delinquent;
she was placed on probation for one year and given a
suspended commitment to the Department of Youth Services
(DYS) for a minimum term of one year up until her 21st
birthday. A.Y. filed timely objections, which were overruled
by the juvenile court.
4} A.Y. appeals.
Due Process and Equal Protection
5} A.Y.'s first assignment of error states as
THE MONTGOMERY COUNTY JUVENILE COURT ERRED IN NOT FINDING
R.C. 2907.322(A)(1) UNCONSTITUTIONAL AS APPLIED TO AY.
BECAUSE APPLICATION OF THIS STATUTE TO HER CASE VIOLATES HER
RIGHT TO DUE PROCESS AND EQUAL PROTECTION. FIFTH AND
FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, AND ARTICLE
I, SECTION 10, OHIO CONSTITUTION.
6} A.Y. contends that R.C. 2907.322(A)(1), as
applied to minors, violates both the due process and equal
protection clauses of the United States and Ohio
Constitutions. Specifically, she contends that the statute is
vague because it permits arbitrary and discriminatory
enforcement of the law by criminalizing conduct committed by
a member of the statute's protected class, victimized
minor children, thereby producing an absurd result in this
case. She further contends that the statute violates her
right to equal protection of the law because it criminalizes
behavior that would not be criminal if done by an adult.
7} An enactment of the Ohio General Assembly is
presumed to be constitutional. State v. Ferguson,
120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 12,
citing State ex rel. Jackman v. Cuyahoga Cty. Court of
Common Pleas, 9 Ohio St.2d 159, 161, 224 N.E.2d 906
(1967). Before a court may declare a statute
unconstitutional, "it must appear beyond a reasonable
doubt that the legislation and constitutional provisions are
clearly incompatible." State ex rel. Dickman v.
Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955),
paragraph one of the syllabus.
8} R.C. 2907.322(A)(1) provides that "[n]o
person, with knowledge of the character of the material or
performance involved, shall * * * [c]reate, record,
photograph, film, develop, reproduce, or publish any material
that shows a minor or impaired person participating or
engaging in sexual activity, masturbation, or
9} We begin with A.Y.'s claim that R.C.
2907.322(A)(1) is impermissibly vague. The Ohio Supreme Court
has recognized that "[a] statute can be impermissibly
vague for either of two independent reasons. First, if it
fails to provide people of ordinary intelligence a reasonable
opportunity to understand what conduct it prohibits. Second,
if it authorizes or even encourages arbitrary and
discriminatory enforcement." (Internal citation
omitted.) In re D.B., 129 Ohio St.3d 104,
2011-Ohio-2671, 950 N.E.2d 528, ¶ 22, citing Hill v.
Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d
597 (2000). The second reason has been identified by the
United States Supreme Court as the more important aspect of
the vagueness doctrine. Id.
10} A.Y. does not claims that R.C. 2907.322(A)(1) is
unclear or that it is difficult to understand. Instead, her
focus is on the second safeguard. A.Y. argues that the
statute permits the State to prosecute her as an offender
even though, as a minor, she is in the class which the
statute seeks to protect. To support this argument, A.Y.
cites to the holding in In re D.B., which involved a
12-year-old who was adjudicated a delinquent child in
connection with five counts of "statutory rape"
under R.C. 2907.02(A)(1)(b) arising from sexual conduct
occurring with an 11-year-old. Id. at ¶ 13.
This subsection of the statute criminalizes what is known as
statutory rape and holds the offender strictly liable for any
sexual conduct with persons under the age of 13. Id.
The Supreme Court reversed the adjudication. In so doing, the
court stated that R.C. 2907.02(A)(1)(b) is
"unconstitutional as applied to a child under the age of
13 who engages in sexual conduct with another child under
13." Id. at syllabus. The court stated that
"because the statute authorizes and encourages arbitrary
and discriminatory enforcement," the statute is
unconstitutionally vague. Id. at ¶ 24. The
court emphasized that "when two children under the age
of 13 engage in sexual conduct with each other, each child is
both an offender and a victim, and the distinction between
those two terms breaks down." Id. The court
also concluded that the application of R.C. 2907.02(A)(1)(b)
violated the equal protection clause because both children
engaged in sexual conduct with a person under the age of
thirteen, but only D.B. was charged. Id. at ¶
11} We find In re D.B. inapplicable here
because, in that case, both of the juveniles violated R.C.
2907.02(A)(1)(b) and both were victims under the terms of the
statute. Here, in contrast, A.Y.'s actions violated R.C.
2907.322(A)(1), but, based upon the statutory language, she
was not also a victim. Thus, since A.Y. was the only actor to
have violated R.C. 2907.322(A)(1), we cannot conclude that
the statute authorizes or encourages arbitrary and
12} A.Y. also contends that application of R.C.
2907.322(A)(1) to the facts of this case creates an absurd
result, which violates her due process rights. A.Y. argues
that, since she is both the "person" who created
and published the photographs and the video and the
"minor depicted by the photographs and the video that
"a literal [statutory interpretation] * * * create[s] an
absurd result - by punishing a 12 year old as an offender
rather than a victim of sexual exploitation." Though we
may question the wisdom of A.Y.'s adjudication, since
this is a result produced by the unambiguous statutory
language, we cannot conclude that the result is
unconstitutionally absurd. If this is not a result the
legislature sanctions, it is for that body to address. We
cannot say that enforcement of the statute as applied to
juveniles results in arbitrary or discriminatory enforcement.
Thus, we conclude that A.Y. has not demonstrated that R.C.
2907.322(A)(1) is unconstitutionally vague or that its
application in this case otherwise violates A.Y.'s right
to due process of law.
13} We next examine whether the statute violates the
right to equal protection. The United States Constitution and
the Ohio Constitution both forbid the making and enforcing of
laws that deny equal protection to those to whom they are
made applicable. Stated differently, "[s]o long as the
laws are applicable to all persons under like circumstances
and do not subject individuals to an arbitrary exercise of
power and operate alike upon all persons similarly situated,
it suffices the constitutional prohibition against the denial
of equal protection of the laws." Conley v.
Shearer, 64 Ohio St.3d 284, 288-289, 595 N.E.2d 862
14} A.Y. argues that an adult can lawfully take
photographs or create videos of herself engaging in sexual
activity or masturbation without committing the offense of
pandering as set forth in R.C. 2907.322(A)(1), but a minor
cannot lawfully engage in the same conduct. A.Y. argues that
this disparity demonstrates that the statute results in
punishment for minors but not their similarly-situated adult
15} We find this argument unavailing as it
necessarily hinges upon the conclusion that the same conduct
violates the statute if committed by a minor but not if
committed by an adult. However, the proscribed conduct is not
creating or recording material that shows oneself engaged in
sexual activity. The proscribed activity, instead, is
creating such material when it depicts a minor. The mere fact
that a minor is the one creating the material of herself does
not change the nature of the conduct prohibited. Arguably, a
minor could take pictures and make videos of an adult
engaging in sexual activity without committing a violation of
R.C. 2907.322(A)(1). Likewise, an ...