State v. Wynn Bibbs and Phyllis Harris, 88-LW-2752
| Decision Date | 23 June 1988 |
| Docket Number | 53803,54894,88-LW-2752 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Wynn BIBBS and Phyllis Harris, Defendants-Appellants. |
| Court | United States Court of Appeals (Ohio) |
Criminal Appeal From the Court of Common Pleas Case No. 211588.
John T Corrigan, Cuyahoga County Prosecutor, Michael Horn, Assistant County Prosecutor, Cleveland, for plaintiff-appellee.
Robert M. Ingersoll, Cleveland, for defendant-appellant, Phyllis Harris.
Patricia Walsh, Cleveland, for defendant-appellant, Wynn Bibbs.
JOURNAL ENTRY AND OPINION
In their consolidated appeals, co-appellants Wynn Bibbs and Phyllis Harris are contesting the constitutionality of Section 2907.323(A)(1) and (B) of the Ohio Revised Code. The appellants argue that the statute is unconstitutionally vague and overbroad.
Each of the appellants was indicted on October 21, 1986 for three counts of illegal use of a minor in nudity-oriented material or performance, in violation of R.C. 2907.323(A)(1). Ms Harris was charged with having assisted her co-appellant, Wynn Bibbs, in photographing three minors in a "state of nudity."
At his arraignment on November 5, 1986, Wynn Bibbs pled not guilty to all counts of the indictment. On February 19, 1987, Bibbs withdrew his plea and entered a no contest plea after his motion to dismiss on constitutional grounds was overruled. Upon being found guilty by the court, the appellant was sentenced to three to fifteen years on each count and fined $300 and costs, with the time suspended. He was then placed on one year probation.
Initially, Phyllis Harris pled not guilty to the three charges against her. On September 14, 1987, she withdrew her pleas and entered guilty pleas to the second and third counts of the indictment, after her motion to dismiss on constitutional grounds was overruled. The state nolled count one.
On October 29, 1987, Ms. Harris was sentenced to two concurrent terms of incarceration for five to fifteen years. However, the sentence was suspended and Ms. Harris was placed on two years of probation on the condition that she serve five consecutive weekends in the workhouse.
Phyllis Harris and Wynn Bibbs have both timely appealed, claiming one assignment of error:
OHIO REVISED CODE SEC. 2907.323(A) AND (B) IS OVERBROAD AND VOID FOR VAGUENESS AND AS SUCH IS VIOLATIVE OF APPELLANT'S FIRST, FIFTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION.
This assignment of error is overruled.
This statute under which the appellants pled and were found guilty, R.C. 2907.323(A)(1), criminalizes certain conduct^the photographing of children "in a state of nudity." On appeal, the appellants now contend that the statute is unconstitutionally overbroad and void for vagueness, since it criminalizes conduct which otherwise may be construed as innocent and acceptable. We disagree with this contention.
At issue before us are Sections (A)(1) and (B) of R.C. 2907.323, which state:
(A) 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, 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 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.
********************************
(B) Whoever violates this section is guilty of illegal use of a minor in a nudity-oriented material or performance. Whoever violates division (A)(1) and (2) of this section is guilty of a felony of the second degree.
Revised Code 2907.01(H) defines "nudity" as
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.
Nudity, without more, is protected expression. New York v. Ferber (1982), 458 U.S. 747, 765 n. 18 (citing Erznoznik v. Jacksonville (1975), 422 U.S. 205, 213). The appellants in the instant case, however, are not claiming that the state has encroached upon their right to express themselves through nudity. Rather, they seek to broaden their claimed right to encroach upon the rights of children through pornographic photography.
However, in Ferber, the Supreme Court recognized that "the States are entitled to greater leeway in the regulation of pornographic depictions of children." Ferber, 458 U.S. at 756. The Court reasoned that the photographic recording of sexual performances of a child results in an invasion of the child's own privacy interests. Ferber, 458 U.S. at 758 n. 9. Accordingly, the Court denied First Amendment protection to the possession and sale of child pornography as defined and prohibited by a New York statute, N.Y. Penal Law, Art. 263 (McKinney 1980).
In Ferber, the Court was not swayed by the defendant-respondent's overbreadth challenge. The Court looked to Broadrick v. Oklahoma (1973), 413 U.S 601, where it had recognized that the overbreadth doctrine is "strong medicine" and should only be employed as a "last resort." Id. at 613. Consequently, the Court narrowed the application of the doctrine holding that "particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." I...
To continue reading
Request your trial