concurring in part, dissenting in part.
I respectfully dissent from the majority's conclusion that Indiana Code § 35-49-3-3 is void for vagueness and with its decision to reverse Salter's convictions for dissemination of matter harmful to minors (Counts 47-51). I otherwise coneur with the majority.
A challenge to the validity of a statute must overcome a presumption that the statute is constitutional. Brown v. State, 868 N.E.2d 464, 467 (Ind.2007). The party challenging the statute has the burden of proving otherwise. Id.
Due process principles advise that a penal statute is void for vagueness if the statute does not clearly define its prohibitions. Id. A criminal statute may be invai-idated for vagueness for failing to provide notice enabling ordinary people to understand the conduct that it prohibits. Id. A related consideration is the requirement that a penal statute give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden so that "no man shall be held eriminally responsible for conduct which he could not reasonably understand to be proscribed." Id. (quotation omitted).
But a statute "is not void for vagueness if individuals of ordinary intelligence could comprehend it to the extent that it would fairly inform them of the generally proscribed conduct." Id. (quotation omitted). In addition, the statute need not specifical ly list all items of prohibited conduct; rather, it must inform individuals of the conduct generally proscribed. Id. The examination of a vagueness challenge is performed in light of the facts and cireum-stances of each individual case. Id.
Indiana Code § 35-49-8-8 provides, in pertinent part:
(a) Except as pfovided in subsection (b), a person who knowingly or intentionally:
(1) disseminates matter to minors that is harmful to minors;
(2) displays matter that is harmful to minors in an area to which minors have visual, auditory, or physical access, unless each minor is accompanied by the minor's parent or guardian;
Pa E3 * * * #
commits a Class D felony.
(b) This section does not apply if a person disseminates, displays, or makes available the matter described in subsection (a) through the Internet, computer electronic transfer, or a computer network unless:
(1) the matter is obscene under IC 35-49-2-1;
(2) the matter is child pornography under IC 35-42-4-4; or
(3) the person distributes the matter to a child less than eighteen (18) years of age believing or intending that the recipient is a child less than eighteen (18) years of age. I
It is undisputed that Salter disseminated or displayed "matter" to M.B. and that M.B. was a "minor," that is, an individual under the age of eighteen, for purposes of this statute. See Ind.Code §§ 35-49-1-3, -4. Nevertheless, the majority concludes that the statute is unconstitutionally vague because Salter was not on notice that the pictures he sent to M.B. of his genitals would be considered "harmful to minors" since a sixteen year old in this State can consent to sex, which necessarily involves some exposure of genitals.
*225In essence, the majority concludes that the phrase "harmful to minors" is void for vagueness as applied to sixteen and seventeen year olds because they can consent to sex. Therefore, the majority's reasoning continues, how can a picture of genitals be harmful to a sixteen or seventeen year old when they can engage in consensual sex? I, however, do not believe that the phrase "harmful to minors" is void for vagueness when applied to such minors because our legislature has explicitly defined the phrase. Specifically, Indiana Code § 85-49-2-2 provides:
A matter or performance is harmful to minors for purposes of this article if:
(1) it describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sado-masochistic abuse;
(2) considered as a whole, it appeals to the prurient interest in sex of minors;
(3) it is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for or performance before minors; and
(4) considered as a whole, it lacks serious literary, artistic, political, or scientific value for minors.
First, I think that the "harmful to minors" definition informs individuals of ordinary intelligence of the conduct generally proscribed. See Zitlaw v. State, 880 N.E.2d 724, 732 (Ind.Ct.App.2008) (addressing a vagueness challenge to Indiana Code § 35-49-2-2 and concluding that individuals of ordinary intelligence would comprehend the statute adequately enough to inform them of the proscribed conduct), trams. denied. Second, the implication that our legislature explicitly authorizes or even encourages sex at age sixteen is misleading. Rather, our legislature has simply chosen not to criminalize adults having sex with sixteen and seventeen year olds in the sexual misconduct with a minor statute. See Ind.Code § 35-42-4-9; see also Goodwin v. State, 573 N.E.2d 895, 899 (Ind.Ct.App.1991) (noting "the clear legislative intent to criminalize sexual conduct involving children under age sixteen"), trans. denied. It is the sexual misconduct with a minor statute from which we have gleaned the age of consent at sixteen. Just because our legislature has decided mot to criminalize adults having sex with sixteen and seventeen year olds does not mean that the legislature cannot enact a separate statute that protects all minors from harmful matter, including pictures of genitals. This policy decision does not make the statute vague. Further, the fact that our legislature has decided not to criminalize sex between adults and sixteen and seventeen year olds does not mean that an adult's dissemination or display of pictures of genitals to a minor is not patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for or performance before minors. I.C. § 35-49-2-2(3).11
In addition, Salter was not having sex with M.B. The fact that Salter may, hypothetically, have sex with a consenting sixteen year old does not change the fact that our legislature bas decided to criminalize disseminating or displaying matter that is harmful to all minors, regardless of whether they have consented to receiving such matter. See Baumgartner v. State, 891 N.E.2d 1131 (Ind.Ct.App.2008) ("[A] statute is void for vagueness only if it is vague as applied to the precise cireumstances of the present case.... The defendant is not *226at liberty to devise hypothetical situations which might demonstrate vagueness.") (citations omitted).
In sum, I believe that Indiana Code § 35-49-8-8 is clear: a person who knowingly or intentionally disseminates or displays matter to minors that is harmful to minors is guilty of a Class D felony. M.B. is a minor, and Indiana Code § 35-49-2-2 sufficiently defines "harmful to minors." Accordingly, I do not believe that "harmful to minors" is void for vagueness. I would therefore affirm Salter's convictions for dissemination of matter harmful to minors.12
. There is no real dispute in this case that the other three subsections have been satisfied.
. Salter also argues that Indiana Code § 35-49-3-3 is unconstitutionally overbroad. I believe that Salter's overbreadth argument fails as well.