State v. RobinsonState v. Robinson
Timothy A. Smith, 810 Sycamore Street, 5th Floor, Cincinnati, Ohio 45202, for defendant-appellant
O P I N I O N
BRESSLER, P.J.
{¶1} Defendant-appellant, Aaron M. Robinson, appeals his convictions in the Warren County Court of Common Pleas for importuning and sexual imposition.
{¶2} From August through October 2007, appellant, who was 19 years old at the time, used his computer to communicate with a 13-year-old girl. During this time, appellant solicited the girl to engage in sexual activity with him, sent digital photographs of his genitalia to her, and grabbed her buttocks and breasts when he met her.
{¶3} Appellant was indicted on one count of importuning in violation of
{¶4} Appellant appeals, raising the following assignment of error:
{¶5} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING APPELLANT‘S MOTION TO DISMISS THE CHARGE OF IMPORTUNING.”
{¶6} In his first assignment of error, appellant argues that
{¶7} This court‘s inquiry begins with the fundamental understanding that a statute enacted in Ohio is presumed to be constitutional. State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, ¶12. “[B]efore a court may declare [an enactment of the General Assembly] 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. Because legislative enactments enjoy a presumption of constitutionality, “the courts must apply all presumptions and pertinent rules of construction so as to uphold, if at all possible, a statute or ordinance assailed as unconstitutional.” State v. Dorso (1983), 4 Ohio St.3d 60, 61.
{¶8} Appellant argues that
{¶9}
{¶10} “No person shall solicit another by means of a telecommunications device, as defined in section 2913.01 of the Revised Code, to engage in sexual activity with the offender when the offender is eighteen years of age or older and either of the following applies:
{¶11} “(1) The other person is thirteen years of age or older but less than sixteen years of age, the offender knows 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 other person.”
{¶12} Appellant cites Ashcroft v. The Free Speech Coalition (2002), 535 U.S. 234, 122 S.Ct. 1389, to support his argument that
{¶13} As the First Appellate District stated in Tarbay at ¶13-14:
{¶14} ”Ashcroft is distinguishable from the case at bar. In Ashcroft, the court
{¶15} “Second, the rationale set forth by the government in Ashcroft, that there was the attenuated potential at some unspecified time in the future that a hypothetical pedophile might use the material considered protected speech to arouse himself or to improve his chances of engaging in sexual activity with a child, is not present in the case at bar. Here, the immediate potential for a person to use the anonymity of the Internet and unprotected speech to directly solicit a minor to engage in illegal sexual activity is very significant. * * *” (Footnotes and internal citations omitted.)
{¶16} Further, the court stated in Tarbay at ¶15-17:
{¶17} ”Tarbay also seems to argue that the importuning statute is not narrowly tailored to serve the state‘s interest, because it applies only to an adult offender who is four years older than the age assumed by the officer posing as a minor. We believe that it is reasonable for the state to find that the impact of a direct solicitation for sex on an adolescent from a much older adult is more damaging than such a solicitation from a person closer in age. The older adult is more likely to be more sophisticated and better
{¶18} “Because [
{¶19} “Finally, Tarbay raises the argument that [
{¶20} In applying the reasoning of Tarbay to this case, we hold that
{¶21} Appellant‘s assignment of error is overruled.
{¶22} Judgment affirmed.
YOUNG and RINGLAND, JJ., concur.