Brown, J.
Frank Grecco, III, appeals the trial court’s order denying his motion to dismiss two charges of possession of child pornography as level 6 felonies. We reverse.
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Grecco argues this case involves a form of simulated child pornography that is “in the form of manga (comic books) and anime (cartoons).” Appellant’s Brief at 10. He contends the images are drawn and do not use actual children in their production. He asserts that Indiana’s law prohibiting the possession or access of simulated child pornography violates the First Amendment of the United States Constitution and Article 1, Section 9 of the Indiana Constitution. He acknowledges the Supreme Court’s opinion in Osborne v. Ohio, 495 U.S. 103, 110 S. Ct. 1691 (1990), which held that the State of Ohio could constitutionally proscribe the possession and viewing of child pornography. He argues that Ind. Code § 35-42-4-4(d) “is unconstitutional because it violates one’s First Amendment right,” “[simulated child pornography] does not involve real children….He also asserts that “[t]he Court held in [Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389 (2002),] that [simulated child pornography] is protected by the First Amendment, and [Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243 (1969)] holds that, even if material is obscene, a person has the right to possess (and view) such material in the privacy of his home.” Id. at 16-17.
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The State agrees that Grecco’s motion to dismiss should have been granted. It acknowledges that Grecco need only show that the statute is unconstitutional on the facts of the particular case because he makes an as-applied challenge. It concedes that “established federal precedent precludes his prosecution for accessing or possessing obscene virtual child pornography within his own home.” Appellee’s Brief at 7. It also acknowledges that “there is . . . no question that the images Grecco is alleged to have accessed do not involve actual children.” Id. at 9. It states that “pursuant to Stanley and Free Speech Coalition, Grecco’s conduct of accessing obscene animated child pornography from his own home is protected conduct under the First Amendment.” Id. The State notes that, given the advancements in technology and the ability to produce “hyper-realistic images that use actual children’s faces, the line between real and virtual child pornography is no longer clear and the existing case law does not answer the question of whether virtual child pornography produced using images of actual children is protected under the First Amendment,” and that “that issue is not presented in this case.” Id. at 9 n.1. It also contends that “[t]he animated images at issue here are clearly covered by the holding in” Free Speech Coalition. Id.
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In light of the precedent from the United States Supreme Court and under these circumstances in which the State conceded before the trial court that the materials Grecco was charged with possessing did not depict actual children, as well as the State’s agreement on appeal that Grecco’s motion to dismiss should have been granted, we reverse.
For the foregoing reasons, we reverse the trial court’s denial of Grecco’s motion to dismiss.
Reversed.
May, J., and Pyle, J., concur.