n26 R.C. 2907.01(M). n27 State v. Anderson, 151 Ohio App.3d 422, 2003 Ohio 429, 784 N.E.2d 196; State v. Eichorn, 5th Dist. No. 02 CA 953, 2003 Ohio 3415; State v. Morris, 9th Dist. No. 04CA0036, 2005 Ohio 599. [**P27] Only one Ohio court has sustained an overbreadth challenge to R.C. 2907.322(A)(5).
n27 State v. Anderson, 151 Ohio App.3d 422, 2003 Ohio 429, 784 N.E.2d 196; State v. Eichorn, 5th Dist. No. 02 CA 953, 2003 Ohio 3415; State v. Morris, 9th Dist. No. 04CA0036, 2005 Ohio 599.
For example, if the material is sold or transferred via the internet, the State may not even be able to determine the name of the depicted individual, where the individual lives, or his or her age at the time the material was produced. See State v. Michael J. Morris, No. 04CA0036, 2005 Ohio App. LEXIS 621 (Ohio Ct. App. Feb. 16, 2005). Therefore, this subsection makes clear that the State may meet its evidentiary burden by the presentation of circumstantial evidence, which in many cases may be the only proof available to the prosecution.
Recently, however, another state has rejected a post-Free Speech Coalition challenge to the constitutionality of its child pornography statutes based on language that is virtually identical to subsection (b) of Tennessee's sexual exploitation of a minor statute. In State v. Michael J. Morris, No. 04CA0036, 2005 WL 356801, at *3 (Ohio Ct.App. Feb. 16, 2005), the Ohio Court of Appeals considered whether its child pornography statutes were rendered unconstitutionally overbroad due to the following language, contained in sections 2907.321(B)(3) and 2907.322(B)(3) of the state's Revised Code: "In a prosecution under this section, the trier of fact may infer that a person in the material or performance involved is a minor if the material or performance, through its title, text, visual representation, or otherwise, represents or depicts the person as a minor." After first observing that the wording of the statutes limited its application to material in which an actual child was used, the Ohio court concluded that the provision at issue merely allowed for the State to prove its case through circumstantial evidence and, thus, did not violate the holding in Free Speech Coalition: