In re L.Z.
61 N.E.3d 776
Ohio Ct. App.2016Background
- A 12-year-old girl sent a selfie showing her face and bare breasts to appellant L.Z.; she testified she was pressured after threats. L.Z. subsequently texted or showed the image to five other juveniles.
- L.Z. was charged in Knox County with four counts (of five charged) of delinquency for disseminating matter harmful to juveniles under R.C. 2907.31(A)(1); one count was dismissed. Separate related charges against the girl were dismissed.
- At trial L.Z. moved to dismiss arguing a photo of female breasts is not per se harmful/obscene; the court treated the filing as a motion and overruled it.
- The juvenile judge found L.Z. delinquent on four counts; disposition imposed probation, community service, house arrest, court costs, and juvenile sex-offender conditions.
- On appeal L.Z. argued (1) insufficient evidence that the image was "harmful to juveniles," (2) due process/vagueness as applied because he is a juvenile member of the protected class, and (3) equal protection/selective prosecution because others involved were not prosecuted. The Licking County court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the topless photo was "harmful to juveniles" under R.C. 2907.01(E) and support conviction under R.C. 2907.31(A)(1) | State: photo of a 12-year-old's bare breasts meets the three-part statutory test (appeals to prurient interest of juveniles; patently offensive to adult community standards re: suitability for juveniles; lacks serious value) | L.Z.: photo not obscene or harmful; normal juvenile sexual exploration; statute requires prurient/depraved element | Held: Sufficient evidence; image is "harmful to juveniles" — conviction affirmed |
| Whether application of R.C. 2907.31(A)(1) violated due process / was void for vagueness as applied to a juvenile who is also a recipient | — | L.Z.: statute targets juveniles; prosecuting a juvenile member of class the statute protects is absurd or vague as applied | Held: Rejected. Statute requires recklessness (mens rea), not strict liability; statute gives fair notice; not unconstitutionally vague as applied |
| Whether In re D.B. (void-for-vagueness/statutory-rape context) requires reversal here | — | L.Z.: relies on D.B. to argue similar arbitrary enforcement and equal protection problems when protected-class members are both involved | Held: D.B. inapplicable; D.B. involved strict liability statutory rape where both parties would be offenders; here recklessness mens rea and only L.Z. recklessly disseminated the photo |
| Whether L.Z. was denied equal protection or selectively prosecuted because other juveniles (including the girl) were not charged | — | L.Z.: others similarly situated not prosecuted; he was singled out | Held: Rejected. Court found prosecution decisions supported by evidence; no showing of invidious or arbitrary selection |
Key Cases Cited
- Miller v. California, 413 U.S. 15 (1973) (defines obscenity standards used in federal jurisprudence)
- Brockett v. Spokane Arcades, 472 U.S. 491 (1985) (discusses "prurient" as term of art in obscenity law)
- State v. Tooley, 114 Ohio St.3d 366 (2007) (state may regulate child pornography without proving obscenity)
- In re D.B., 129 Ohio St.3d 104 (2011) (void-for-vagueness and equal protection in statutory-rape context involving two children under 13)
- State v. Carrick, 131 Ohio St.3d 340 (2012) (vagueness doctrine and standards for facial and as-applied challenges)
- State v. Collier, 62 Ohio St.3d 267 (1991) (tripartite analysis for void-for-vagueness challenges)