State v. Michael G. Kovacevich, 88-LW-0715

• Decision Date: 09 March 1988
• Docket Number: 88-LW-0715,13279
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Michael G. KOVACEVICH, Defendant-Appellant.
• Court: Ohio Court of Appeals

STATE of Ohio, Plaintiff-Appellee, v. Michael G. KOVACEVICH, Defendant-Appellant.

No. 13279.

88-LW-0715 (9th)

Court of Appeals of Ohio, Ninth District Summit

March 9, 1988

Appeal From Judgment Entered in the Common Pleas Court County of Summit, Ohio. Case No. CR 87 04 0449.

Lynn Slaby, Prosecuting Attorney, Marc R. Wolff, Asst. Prosecuting Attorney, Akron, for plaintiff.

Daniel T. Wilson and Michael A. Dibble, Akron, for defendant.

DECISION AND JOURNAL ENTRY

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

CACIOPPO Judge.

Defendant-appellant, Michael Kovacevich, was indicted on one count of Illegal Use of a Minor in Nudity-Oriented Material or Performance, R.C. 2907.323(A)((1), to which he pleaded not guilty. Kovacevich changed his plea to no contest after the trial court overruled his motion to dismiss the indictment on the grounds that the statute was unconstitutional. The trial court entered a finding of guilty and a sentence was imposed. Kovacevich now appeals.

ASSIGNMENTS OF ERROR

"I.Ohio Rev.Code Section 2907.323(A)(1) is facially unconstitutional because it criminalizes conduct which is protected under the First and Fourteenth Amendments.

"II.Ohio Rev.Code Section 2907.232(A)(1)'s references to materials meant for "other proper purpose(s)" by persons "having a proper interest' render the statute void for vagueness under the due process clause of the Fourteenth Amendment."

Because the issues assigned as error are related, they will be combined for discussion.

Kovacevich makes alternative arguments under his assignments of error. Initially, he contends that R.C. 2907.323(A)(1) is facially unconstitutional because it regulates depictions of nudity per se, which would include materials afforded protection under the First and Fourteenth Amendments. Alternatively, he urges that should we find the statute facially constitutional, we should nevertheless declare it invalid under the overbreadth and/or vagueness doctrines.

R.C. 2907.323(A) provides:

"No person shall do any of the following:

"(1) Photograph any minor who is not the person's child or ward in a state of nudity, or create, direct, produce, or transfer any material or performance that shows the minor in a state of nudity, unless both of the following apply:

"(a) The material or performance is, or is to be, sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psycholgist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance;

"(b) The minor's parents, guardian, or custodian consents in writing to the photographing of the minor, to the use of the minor in the material or performance, or to the transfer of the material and to the specific manner in which the material or performance is to be used.

"(2) Consent to the photographing of his minor child or ward, or photograph his minor child or ward, in a state of nudity or consent to the use of his minor child or ward in a state of nudity in any material or performance, unless the material or performance is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance;

"(3) Possess or view any material or performance that shows a minor who is not the person's child or ward in a state of nudity, unless one of the following applies;

"(a) the material or performance is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide artistic, medical, sccientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance.

"(b) The person knows that the parents, guardian, or custodian has consented in writing to the photographing or use of the minor in a state of nudity and to the manner in which the material or performance is used or transferred."

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In State v. Robinson (1986), 28 Ohio St.3d 65, the Ohio Supreme Court reversed an appellate court ruling that R.C. 2907.323(A)(1), (2), and (3) were facially unconstitutional.®1¯ The decision in Robinson was based on the ruling in State v. Meadows (1986), 28 Ohio St.3d 43. The opinion in Meadows provides a thorough and articulate discussion of the state's compelling interest in prohibiting the exploitation of children caused by child pornography, making it unnecessary for us to address those issues here. The first prong of appellant's argument rejected, we now turn to the second prong.

In the application of the overbreadth doctrine to First Amendment issues where conduct and not merely speech is involved, the overbreadth of a statute must not only be real, but substantial as well, when judged in relation to the statute's plainly legitimate sweep. Broadrick v. Oklahoma (1973), 413 U.S. 601, 615. Kovacevich asserts that R.C. 2907.323(A)(1) is substantially overbroad because of the broad definition of nudity contained in R.C. 2907.01(H) and the constitutional protection traditionally afforded depictions of mere nudity. As such, Kovacevich argues, the law proscribes a large body of constitutionally protected material. We disagree.

None of the cases appellant cites for the proposition that nudity is protected involve minors. R.C. 2907.01(H) provides:

" "Nudity' means the showing, representation, or depiction of human male or female genitals, pubic area, or buttocks with less than a full, opaque covering, or of a female breast with less than a full, opaque covering of any portion thereof below the top of the nipple, or of covered male genitals in a discernibly turgid state."

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In light of the state's compelling interest in protecting its children from abuse and exploitation, Meadows supra, we do not consider R.C. 2907.323(A)(1) to be overbroad. The...