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In re A.Y.

Court of Appeals of Ohio, Second District, Montgomery

June 28, 2019

IN RE: A.Y.

          Appeal from Common Pleas Court-Juvenile Division Trial Court No. 2017-3762

          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 Services

          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.

          OPINION

          TUCKER, J.

         {¶ 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.

         I. 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.

         II. Due Process and Equal Protection

         {¶ 5} A.Y.'s first assignment of error states as follows:

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 bestiality."

         {¶ 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.[1] 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 ¶ 31-32.

         {¶ 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 discriminatory enforcement.

         {¶ 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 (1992).

         {¶ 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 counterparts.

         {¶ 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 ...


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