State v. GrahamState v. Graham
{¶ 3} Appellant timely appealed, setting forth one assignment of error for review.
{¶ 4}
In his sole assignment of error, appellant argues that
{¶ 5} Appellant was convicted of violating
"No person shall solicit another by means of a telecommunications device, as defined in section
"The other person is a law enforcement officer posing as a person who is thirteen years of age or older but less than sixteen years of age, the offender believes that the other person is thirteen years of age or older but less than sixteen years of age or is reckless in that regard, and the offender is four or more years older than the age the law enforcement officer assumes in posing as the person who is thirteen years of age or older but less than sixteen years of age."
{¶ 6} Appellant sets forth two arguments to support his proposition that
"Our second inquiry then becomes whether
"In order to serve its interest and still withstand constitutional scrutiny, the State must choose the least restrictive means to accomplish the compelling interest. Sable Communications,
"* * *
"Under the same logic of the Barrows case,
"Therefore, the statute is narrowly tailored and does not have a `chilling effect' on speech because the offender would have to believe that he is soliciting a minor for sexual activity, a criminal act, before his conduct would be regulated by
"Furthermore,
{¶ 8} Other appellate courts have also rejected the argument that
{¶ 9} Appellant cites Ashcroft v. The Free Speech Coalition
(2002),
"The only constitutional argument posed by Helle that was not addressed by this court in the Snyder case is that
"In Ashcroft, the principle question to be resolved by the Supreme Court was `whether the CPPA [Child Pornography Prevention Act of 1996] was constitutional where it proscribed a significant universe of speech that was neither obscene under Miller nor child pornography underFerber.' Id. at 240. In determining that the production and possession of sexually explicit images that appeared to depict minors but were actually produced without using real children was protected by the
"It appears that the Ashcroft court did not extend its ruling to protect actions prohibited by
{¶ 10} This Court agrees with the reasoning of the First, Third, and Twelfth Appellate Districts and finds that
{¶ 12} The First, Second, and Third Appellate Districts1 have concluded that the importuning statute does not unduly interfere with interstate commerce, and we agree with their reasoning.
"When a state does impose a regulation that unduly burdens interstate commerce and impedes free trade, it may violate the Commerce Clause, but where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it should be upheld unless the burden imposed is clearly excessive in relation to the putative local benefits. * * * If a legitimate local purpose is found, then the question becomes one of degree, and the extent of the burden that will be tolerated depends upon the nature of the local interest involved and on whether it could be promoted as well with a lesser impact on interstate activities. * * * InState v. Bolden, the Second Appellate District quoted with approval Hatchv. Superior Court of San Diego County: `While a ban on the simple communication of certain materials may interfere with an adult's legitimate rights, a ban on communication of specified matter to a minor for purposes of seduction can only affect the rights of the very narrow class of adults who intend to engage in sex with minors. We have found no case which gives such intentions or the communications employed in realizing them protection under the dormant commerce clause.' * * * TheBolden court concluded, `
{¶ 13} This Court notes that in the present case, appellant relies onAmerican Libraries Assn. v. Pataki (S.D.N.Y., 1997),
{¶ 14} Accordingly, appellant's sole assignment of error is overruled.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to appellant.
Exceptions.
Batchelder, J., Baird, J. Concur.
(Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to, § 6(C), Article IV, Constitution.)