State v. Huffman
| Decision Date | 10 March 2006 |
| Docket Number | No. C-050044.,C-050044. |
| Citation | 847 N.E.2d 58,2006 Ohio 1106,165 Ohio App.3d 518 |
| Parties | The STATE of Ohio, Appellee, v. HUFFMAN, Appellant. |
| Court | Ohio Court of Appeals |
Joseph T. Deters, Hamilton County Prosecuting Attorney, and James Michael Keeling, Assistant Prosecuting Attorney, for appellee.
Ravert J. Clark, for appellant.
{¶ 1} Defendant-appellant, Mark A. Huffman, appeals his convictions for illegal use of a minor in nudity-oriented material, voyeurism, and pandering sexually oriented matter involving a minor. For the reasons that follow, we affirm the trial court's judgment with the exception of Huffman's felony sentences, which we vacate. We remand the cause for resentencing.
{¶ 2} A young man and his parents contacted Reading Police Detective Terry Zimmerman to report a possible hidden camera in a tanning room at the Maximum Exposure Tanning Salon. The young man showed the detective a photograph of what appeared to be a camera lens hidden behind a circular fan.
{¶ 3} That afternoon, Detective Zimmerman went to the salon, where he encountered Huffman, the owner of the business. Detective Zimmerman pretended that he was interested in purchasing a tanning package for his wife. Huffman described the available tanning procedures and showed the detective the rooms where the procedures took place. As the detective entered one of the tanning rooms, he saw a camera hidden behind a circular fan in the wall, just as the young man's report had indicated.
{¶ 4} Detective Zimmerman obtained a search warrant for the salon and executed it that evening with other police officers. During their search, the officers found a wireless camera mounted behind the wall fan, as the detective had earlier observed. Another wireless camera was hidden behind a hole in the wall of a tanning-spray room. The officers determined that signals from the two cameras were fed through a wireless receiver into one of Huffman's DVD players.
{¶ 5} The officers recovered camera equipment as well as numerous DVDs containing videos of female patrons using the tanning rooms. The officers compared the recording dates and times of the videos with the tanning-visit dates on the salon's patron cards to identify Huffman's victims. The officers also recovered several DVDs that contained pornographic images of children.
{¶ 6} As a result of the investigation, Huffman was indicted for three counts of illegal use of a minor in nudity-oriented material or performance, in violation of R.C. 2907.323(A)(1); three counts of voyeurism involving a minor, in violation of R.C. 2907.08(C); two counts of voyeurism, in violation of R.C. 2907.08(B); 20 counts of pandering sexually oriented matter involving a minor, in violation of R.C. 2907.322(A)(1); and one count of illegal cultivation of marijuana, in violation of R.C. 2925.04(A).
{¶ 7} Huffman filed a motion to dismiss the pandering counts, arguing that the pandering statute, R.C. 2907.322(A)(1), was unconstitutional. The trial court denied the motion.
{¶ 8} Huffman then waived his right to a jury trial, and the case proceeded to a bench trial. The court found Huffman guilty of two counts of illegal use of a minor, each of the five voyeurism counts, and two of the pandering counts. Huffman was acquitted of the remaining counts.
{¶ 9} The court imposed three-year prison terms on both counts of illegal use of a minor, and four-year prison terms on both counts of pandering. The court imposed 180 days' incarceration on three of the voyeurism counts and 60 days' incarceration on two of the voyeurism counts. The court ordered the sentences to be served concurrently, for an aggregate term of four years in prison.
{¶ 10} On appeal, Huffman now challenges the trial court's denial of his motion to dismiss, the sufficiency and manifest weight of the evidence upon which he was convicted, and the trial court's imposition of more than the minimum prison terms.
{¶ 11} R.C. 2907.322 prohibits the pandering of sexually oriented matter involving minors. Huffman was convicted of violating R.C. 2907.322(A)(1), which provides, "No 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 participating or engaging in sexual activity, masturbation, or bestiality."
{¶ 12} In his first assignment of error, Huffman argues that R.C. 2907.322(A)(1) is unconstitutionally overbroad and vague. In analyzing a constitutional challenge to a statute, we are mindful that legislative enactments enjoy a strong presumption of constitutionality.1 To overcome this presumption, a person challenging a statute must prove that the statute is unconstitutional beyond a reasonable doubt.2
{¶ 13} The First Amendment does not protect child pornography. In New York v. Ferber,3 the United States Supreme Court held that states may constitutionally proscribe the distribution of child pornography. The court held that this limitation on the freedom of speech is justified by the state's compelling interest in safeguarding the well-being of its children.4 The court found that the distribution of child pornography is intrinsically linked to sexual abuse in two ways. First, the material survives as a permanent record of the victimization and abuse of a child.5 Second, prohibitions on the material's distribution act as a means of controlling its production, thus preventing future abuse.6
{¶ 14} In State v. Meadows,7 the Ohio Supreme Court applied Ferber's reasoning in its consideration of R.C. 2907.322(A), the statute at issue here. Meadows was convicted of violating subsection (A)(5), which prohibits the possession or control of child pornography. The court held that the same child-protection interests recognized in Ferber to justify a ban on the distribution of child pornography justified a ban on its possession as well.8 As a result, the court held that the statute did not violate the First Amendment.9
{¶ 15} The United States Supreme Court considered another of Ohio's child-pornography statutes10 in Osborne v. Ohio.11 The Osborne court concluded, as the Meadows court had, that the interests described in Ferber warranted prohibitions on the possession and viewing of child pornography.12
{¶ 16} While the interests recognized by Ferber and Osborne justify prohibitions of pornography created using children, the United States Supreme Court later held that those interests are not implicated by pornography created without using children, material that has been termed "virtual child pornography."
{¶ 17} In Ashcroft v. Free Speech Coalition,13 the United States Supreme Court considered the constitutionality of the Child Pornography Prevention Act of 1996 ("CPPA"), which prohibited the possession or distribution of child pornography.14
{¶ 18} Under Section 2256(8) of the CPPA, child pornography was defined to include any visual depiction of sexually explicit conduct where "(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct."15 (Emphasis added.)
{¶ 19} The "appears to be" prohibition of Section 2256(8)(B) reached a variety of visual depictions, including "virtual child pornography" created without the use of children.16 The proscription of Section 2256(8)(D) went further by encompassing sexually explicit works pandered as child pornography, irrespective of their content.17
{¶ 20} The plaintiffs in Ashcroft challenged subsections (B) and (D) of Section 2256(8) as unconstitutionally overbroad. The plaintiffs argued that the "appears to be" and "conveys the impression" provisions of the subsections created a chilling effect on the production of sexually explicit works protected by the First Amendment.
{¶ 21} The court noted that its earlier decisions in Ferber and Osborne had upheld state bans on child pornography because of the state's interest in protecting children exploited by the pornography production process.18 But, the court reasoned, "[i]n contrast to the speech in Ferber, speech that is itself the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production."19 As a result, the court struck down subsections (B) and (D) as overbroad. The court held that the prohibitions on pornography created without using real children encompassed materials beyond those described in Ferber, resulting in the abridgement of "the freedom to engage in a substantial amount of lawful speech."20
{¶ 22} Huffman argues that R.C. 2907.322(A)(1) is unconstitutionally overbroad because its proscriptions encompass virtual child pornography, which Ashcroft held to be protected by the First Amendment. Huffman contends that virtual child pornography so closely resembles pornography depicting real children that the state's proscription tends to inhibit lawful speech. Huffman reads Ashcroft too broadly.
{¶ 23} Ashcroft struck down a federal ban on virtual child pornography. But Ashcroft did not alter the Supreme Court's child-pornography jurisprudence: child pornography depicting real children remains unprotected speech.21
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