*3Opinion of the Court by

ACOBA, J.

We hold that Defendant-Appellant Pame Ann Mary Leilani Romano (Defendant) has not established, as she argues on appeal, that (1) “[Plaintiff-Appellee State of Hawai'i (the prosecution) ] failed to support a prima face [sic] case of prostitution because the [prosecution] failed to prove ... that Defendant was not a law enforcement officer,” (2) “the [prosecution] failed to present sufficient evidence to support a prima face [sic] case of prostitution,” (3) “there was insufficient evidence adduced to support a finding of guilt,” and (4) “Lawrence v. Texas[, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003),] renders Hawai'i Revised Statutes [ (HRS) ] § 712-1200 et seq. unconstitutional as applied in this case.” (Capitalization omitted.) Therefore, Defendant’s August 26, 2003 judgment of conviction and sentence by the district court of the first circuit (the court)1 for the offense of prostitution, HRS § 712-1200(1) (Supp.2006),2 is affirmed.

I.

A.

Trial began on August 13, 2003, and the evidence following was adduced. On January 18, 2003, Officer Jeffrey Tallion was on duty with the Narcotics/Vice Division of the Honolulu Police Department Morals Detail. He testified he was on assignment investigating prostitution in the Waikild area. Tallion related that the investigations involved “checking into hotel rooms and then ... either go[ing] on to the street or ... set[ting] up appointments either in the telephone book or ‘Pennysaver,’ ‘Midweek,’ or internet cases.”

In preparation for his undercover operation, Tallion obtained a hotel room at the Aston Waikiki Beach Hotel and dressed in civilian clothes. He browsed through the “Pennysaver” newspaper and called the phone number on a massage advertisement. When Defendant answered the phone call, Tallion asked if she did “out calls.” At this time, there was no discussion of any illicit conduct or sexual acts.

Tallion set up an appointment with Defendant and they met on the street in front of the Aston Waikiki Beach Hotel, but then moved to Tallion’s hotel room. In court, Tallion positively identified Defendant as the individual he met outside on January 18, 2003.

Upon arriving in the room, Tallion confirmed that the price of an out call was $100 and then asked Defendant whether “she did anything else.” Defendant responded, “Like what? Dance?” Tallion responded, “No,” so Defendant asked, ‘Well, what do you have in mind?”

Tallion then answered, “Well, I was referring to a blowjob.”3 Defendant replied, “No, hands only.” Tallion clarified, “So no blow-job, so handjob.” Defendant responded, “Yeah, I can do that.” Tallion asked the cost and Defendant responded, “Add 20.” Tallion reconfirmed with, “Oh, $20 for a handjob?” and Defendant replied, “Yes.” Tallion testified that a handjob is street vernacular commonly used in prostitution for “assisted masturbation.”

Following Defendant’s reply, Tallion “gave a pre-determined signal” and the arrest team *4entered the hotel room. Tallion apprised Honolulu police officer William Lurbe of the facts and Lurbe placed Defendant under arrest.

Tallion testified that he had been with the Morals Detail for three years; he was involved in 400 prostitution cases in 2002 as either the undercover or arresting officer; maybe five of the prostitution eases were initiated from “Pennysaver” ads; and after the talk about “handjob,” Defendant added $20.00 to her quoted $100.00 charge for the out-call service. On cross-examination, Tal-lion recounted that he found Defendant’s advertisement in “Pennysaver’s” Massage/Aeu-puncture Section and not the Adult Section. He also related that “hands only” could have meant what a masseuse actually does.

In his testimony, Lurbe testified that he arrested Defendant for prostitution on January 18, 2003, after being “informed by [Tal-lion] that he [had] obtained a prostitution violation from [Defendant], which was assisted masturbation for $20.” On cross-examination, Lurbe indicated that Tallion notified him of the violation via cellular’ phone.

Following Lurbe’s testimony, the prosecution rested. Defendant moved for a continuance “to subpoena, investigate and talk to witnesses who were in the room adjoining this, this room.” Over the prosecution’s objection, the court continued the case to August 26, 2003.

B.

On August 21, 2003, Defendant filed a “Motion to Dismiss.” In the memorandum attached to the motion, Defendant asserted that Lawrence “invalidate^] Hawaii’s prostitution statutes [and] thus[,] the [prosecution’s] case [against Defendant] must necessarily fail.”

At the start of the proceedings held on August 26, 2003, Defendant moved for a judgment of acquittal, arguing that the prosecution had failed to prove (1) that there was an offer and agreement to engage in sexual conduct for a fee; and (2) that Defendant was “not a police officer, a sheriff, works for the sheriffs department or law enforcement acting in the course or scope of her duties.” After hearing from the prosecution, the court denied Defendant’s motion.

Defendant’s “Motion to Dismiss” was then heard. The court denied the motion, stating that it “[did] not agree with the applicability of [Lawrence ] to the instant situation.”

Defendant took the witness stand in her own defense and testified that she was a self-employed license massage therapist, she had been a licensed massage therapist for “19 years, going on 20” and her license was current and up-to-date on January 18, 2003. She testified that she placed her ad under the “Body, Mind and Spirit,” “Massage,” or “Health and Fitness” sections and not under the “Personal” or “Adult” sections.

Defendant also recounted that on January 18, 2003, Tallion immediately asked for a blow job when she entered the hotel room. She explained that she was “caught off guard” because she was “not the typical person that men want this from,” as she was “overweight” and “old.”

She reported that after Tallion asked for the “blow job,” she put her hands up and stated, “Hey, I only do hands only.” She also declared that she was shaking her head “no” at the same time. Defendant then indicated that Tallion repeated his question again and also asked how much it would cost. Defendant again said, “No, hands only.” Defendant also maintained that Tallion was “loud,” “demanding,” and “boisterous.”

After Defendant repeated “hands only” again, Tallion asked about handjobs. Defendant claims that she had no intent to commit any kind of sexual contact with Tallion. She explained that she only gave Tallion a figure of $20 because she felt threatened and because of Tallion’s loud demands. She then testified about a 1983 incident where “[she] got beat up real bad by this person who [she] had gone' to for a job for telephone soliciting.”

On cross-examination, Defendant admitted that she “couldn’t remember [the conversation between Tallion and herself] word for word.” She also stated that Tallion did not block her way to the door leading to the hallway, Tallion did not tell her she could not leave the room, and she did not attempt to *5use the telephone or walk out of the room. Furthermore, Defendant indicated that she said “yes” when Tallion asked for a handjob, she knew that handjob could mean assisted masturbation, she told Tallion that the hand-job would cost $20.00 extra, and she said “yes” when Tallion reiterated $20.00 for a handjob. On redirect examination, Defendant claimed that she felt trapped because it was not her room, the room “didn’t have much room in it,” and “she was within aim’s reach of [Tallion].”

Following Defendant’s testimony, the defense rested. The court found Defendant guilty of the charged offense. Defendant was sentenced to six months’ probation and fined $500.00. Judgment was entered on August 26, 2003. Imposition of sentence was continued for thirty days for perfection of appeal.

The court instructed the prosecution to prepare written findings of facts and conclusions of law. The “Findings of Fact, Conclusions of Law, and Order Finding Defendant Guilty After Jury-Waived Trial” were filed on September 26, 2003. Notice of appeal was filed on September 19, 2003.

II.

As noted previously; Defendant raised four issues on appeal.4 In regard to issue (1), an exception to the offense of prostitution applies under HRS § 712-1200(5) for “any member of a police department, sheriff or other law enforcement officer acting in the course of and scope of duties.” State v. Nobriga, 10 Haw.App. 353, 357-58, 873 P.2d 110, 112-13 (1994), overruled on other grounds by State v. Maelega, 80 Hawai'i 172, 178-79, 907 P.2d 758, 764-65 (1995), is instructive. According to that case, “[t]he general and well-settled common law rule is that where an exception is embodied in the language of the enacting clause of a criminal statute, and therefore appears to be an integral part of the verbal description of the offense, the burden is on the prosecution to negative that exception, prima facie, as part of its main case.” Id. at 357, 873 P.2d at 112-13 (footnote and citation omitted). The Intermediate Court of Appeals (the ICA) further noted that “when the exception appears somewhere other than in the enacting clause, and is thus a distinct substantive exception or proviso, the burden is on the defendant to bring foiward evidence of exceptive facts that constitute a defense” and, in such an instance, “[t]he prosecutor is not required ... to negative, by proof in advance, exceptions not found in the enacting clause.” Id. at 358, 873 P.2d at 113 (citations omitted).5

In Nobriga, the defendant was cited under Revised Ordinances of Honolulu (ROH) § 7-2.3 (1990),6 “Animal nuisance,” for keeping numerous roosters at his home. Id. at 355, 873 P.2d at 112. At trial, the defendant *6moved for judgment of acquittal on the premise that the State had failed to prove defendant’s conduct did not fall within the exceptions to the animal nuisance law set forth in ROH § 7-2.4(a).7 Id. at 356, 873 P.2d at 112. The district court denied the motion. Id. at 357, 873 P.2d at 112. The ICA affirmed the denial, stating that the general prohibition against animal nuisance as set forth in ROH §§ 7-2.2 and 7-2.3 govern the elements of the case and “does not incorporate ROH § 7-2.4” as “the exceptions are located in a separate and distinct section of the ordinance.” Id. at 359, 873 P.2d at 113.

The ICA also indicated “the burden of proving exceptions to a criminal statute appear to be codified in the Hawai'i Penal Code” pursuant to HRS §§ 701-114(1)(a) (1985) and 702-205 (1985). Id. at 358, 873 P.2d at 113. The ICA declared that HRS § 701-114(1)(a) requires that “the State’s burden is to prove, beyond a reasonable doubt, each element of the offense,” id.; “the elements of an offense” include that which “[n]egative[s] a defense,” id.; “HRS § 701-115(1) (1985) defines a ‘defense’ as ‘a fact or set of facts which negatives penal liability,’ ” id.; but “ ‘[n]o defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented,’ ” id. at 358-59, 873 P.2d at 113 (quoting HRS § 701-115(2)(1985)).

In regard to the penal code requirements, the ICA reiterated that the prosecution “has the initial burden of negativing statutory exceptions to an offense only if the exceptions are incorporated into the definition of the offense.” Id. at 359, 873 P.2d at 113. However, as the ICA explained, “[i]f a statutoiy exception to an offense constitutes a separate and distinct defense, ... the State’s burden to disprove the defense beyond a reasonable doubt arises only after evidence of the defense is first raised by the defendant.” Id.

III.

Applying the foregoing formulation, the enacting clause for the offense of prostitution is HRS § 712-1200(1), because this clause “contains the general or preliminary description of the acts prohibited; i.e., proscribes the offensive deed.” State v. Lee, 90 Hawai'i 130, 138 n. 7, 976 P.2d 444, 452 n. 7 (1999) (citations omitted) (defining the term “enacting clause”). HRS § 712-1200(5) does not prescribe the offense, but states an exception to the offense for law enforcement officers acting “in the course and scope of duties.” Similar to Nobriga, then, the exception here, HRS § 712-1200(5), is not located in the same section, HRS § 712-1200(1), as the definition of the offense.8

As the exception in HRS § 712-1200(5) would negative the prostitution offense, it constitutes a defense. See Nobriga, 10 Haw. App. at 358, 873 P.2d at 113. In order to claim the benefit of this defense, then, evidence that Defendant fell within the exception must have been adduced. See id. However, Defendant did not adduce any such evidence at trial. Under Nobriga, the prosecution is not required to disprove the defense until there is evidence that the defendant falls within HRS § 712-1200(5). Id. Thus, the prosecution was not required to negate the defense. See HRS § 701-115(2) (1993) (“No defense may be considered by the trier of fact unless evidence of the specified fact or facts has been presented.”). There was, then, no defect in the proof of a prima facie ease.

IV.

As to issue (2), the prosecution must prove every element of a crime charged and the burden never shifts to the defendant. Territory v. Adiarte, 37 Haw. 463, 470-72 (1947). We recently stated that “ ‘[t]he test on appeal in reviewing the legal sufficiency of the evidence is whether, when viewing the evidence in the light most favorable to the *7prosecution, substantial evidence exists to support the conclusion of the trier of fact.’ ” State v. Agard, 151 P.3d 802, 805 (Haw.2007) (quoting State v. Bui, 104 Hawai'i 462, 467, 92 P.3d 471, 476 (2004) (other citation omitted). “Substantial evidence” is defined as “ ‘credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to reach a conclusion.’ ” Id. (ellipses points, brackets, and citations omitted)).

As indicated previously, HRS § 712-1200(1) provides in relevant part that prostitution is committed “if the person ... agrees ... to engage in ... sexual conduct with another person for a fee.” Under HRS § 712-1200(2), “sexual conduct” includes “sexual contact,” as that term is “defined in section 707-700.” In pertinent part, “sexual contact” meant any “touching of the sexual or other intimate parts of a person not married to the actor[.]” HRS § 707-700.

The evidence demonstrated that Defendant agreed to give Tallion a “handjob” for a fee of $20.00. Tallion confirmed with Defendant that the charge for the “out-call” was $100.00. When Tallion said, “So no blowjob, so handjob,” Defendant responded, “Yah, I can do that.” Tallion then asked whether “that cost extra,” and according to Tallion, Defendant answered, “Add 20.” Tal-lion testified he confirmed, “Oh, $20 for handjob,” and Defendant replied, “Yes.” This testimony indicates that the $20 added fee was9 for the handjob.

Defendant argues that agreement for a handjob does not necessarily involve sexual conduct. She contends that Tallion never defined “assisted masturbation” and that although Tallion equated a “handjob” with sexual contact, he did admit that another licensed masseuse had given him a hand massage and, thus, the meaning of “handjob” is not always sexual in nature. The phrase “assisted masturbation” would appear susceptible to common understanding. “Masturbation” is defined, inter alia, as “the stimulation, other than by coitus, of another’s genitals resulting in orgasm.” Random, House Dictionary of the English Language 883 (Unabr. ed.1973). Genitals describe “the reproductive organs, especially the external sex organs.” The American Heritage Dictionary of the English Language (4th ed.2000), available at http://www.bartleby. com/61/.

Tallion testified that “ ‘[hjandjob’ is street vernacular commonly used in prostitution for assisted masturbation.” Defendant also testified that she knew that the term “handjob” could mean assisted masturbation.10 As noted, the meaning of “sexual contact” in HRS § 712-1200(1) included “any touching of the sexual ... parts of a person[.]” HRS § 707-700. Plainly, the reference to “hand” in the term “handjob” connotes physical contact with genitals. Hence, considered in the strongest light for the prosecution, substantial evidence was adduced that would enable a person of reasonable caution to conclude, see Agard, 151 P.3d at 805, that Defendant agreed to engage in sexual contact with Tal-lion for a fee.

V.

As to issue (3), HRS § 702-231 (1993) provides in relevant part:

Duress. (1) It is a defense to a penal charge that the defendant engaged in the conduct or caused the result alleged because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.

(5) In prosecutions for any offense described in this Code, the defense asserted under this section shall constitute an affirmative defense. The defendant shall have the burden of going forward with the evidence to prove the facts constituting such defense, unless such facts are supplied by the testimony of the prosecuting witness or circumstance in such testimony, *8 and of proving such facts by a preponderance of the evidence pursuant to section 701-115.

(Emphases added.)

“The preponderance standard directs the factfinder to decide whether ‘the existence of the contested fact is more probable than its nonexistence.’ ” Kekona v. Abastillas, 150 P.3d 823, 829 (Haw.2006) (quoting E. Cleary, McCormick on Evidence § 339, at 957 (3d ed.1984)) (other citation omitted). Accordingly, “[t]o prevail, [the defendant] need only offer evidence sufficient to tip the scale slightly in his or her favor, and [the prosecution] can succeed by merely keeping the scale evenly balanced.” Id. (internal quotation marks and citations omitted).

Defendant contends her claims “meet the elements of the affirmative defense of duress by a preponderance of evidence.” She argues that because the duress claim was “unchallenged by the [prosecution] or the [c]ourt[,] preponderance of the evidence is indeed established.” However, the court considered Defendant’s affirmative defense of duress and concluded that Defendant did not meet her burden.

Specifically, in its oral finding, the court stated, “[A]s far as the duress defense, the burden—it becomes an affirmative defense and the burden then shifts to the [Defendant to prove that the duress did in fact occur by preponderance of the evidence, which the [c]ourt does not feel the [Defendant has met that burden.” In its written findings, the court found “Defendant failed to present an adequate defense to the charge.” “ ‘A trial court’s findings of fact are reviewed under the clearly erroneous standard.’ ” State v. Keliiheleua, 105 Hawai'i 174, 178, 95 P.3d 605, 609 (2004) (internal quotation marks and brackets omitted) (quoting Dan v. State, 76 Hawai'i 423, 428, 879 P.2d 528, 533 (1994)).

“ ‘A finding of fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is nonetheless left with a definite and firm conviction that a mistake has been made.’ ” Foo v. State, 106 Hawai'i 102, 112, 102 P.3d 346, 356 (2004) (quoting State v. Okumura, 78 Hawai'i 383, 392, 894 P.2d 80, 89 (1995)). The record indicates that there was substantial evidence to support the finding and that it is not clear that a mistake has been made. See id..

Defendant related that Tallion was “loud” and “demanding” and she only agreed to Tallion’s request for a “handjob” because she felt threatened. However, upon cross-examination, Defendant conceded that (1) Tallion had not blocked her egress from the hotel room; (2) Tallion was not holding a weapon when he asked about the “blowjob”; (3) Tal-lion never told her that she could not leave the room; and (4) she never attempted to use the phone or walk out of the room.

Matters of credibility and the weight of the evidence and the inferences to be drawn are for the fact finder. See Agard, 151 P.3d at 805 (stating that “ ‘appellate courts will give due deference to the right of the trier of fact to determine credibility, weigh the evidence, and draw reasonable inferences from the evidence adduced’ ” (quoting In re Doe, 107 Hawai'i 12, 19, 108 P.3d 966, 973 (2005) (other citation omitted)) (internal quotation marks omitted)). Defendant did not testify to any “use of, or a threat of use, unlawful force against [her] person[.]” HRS § 702-231(1). Defendant acknowledged Tallion did not block her exit and she did not attempt to leave. Under these circumstances and giving due deference to the court as fact finder, it cannot be said the court’s finding that Defendant failed to establish duress by a preponderance of the evidence was clearly erroneous. See Foo, 106 Hawai'i at 112, 102 P.3d at 356.

VI.

As to Defendant’s last issue, the dissent agrees with Defendant and argues that (1) “at the time of this court’s holding in [State v. Mueller, 66 Haw. 616, 671 P.2d 1351 (1983)], there was no federal precedent addressing whether the criminalization of an utterly private sexual activity (and its associated monetary component) abridged an individual’s right to privacy [but] Lawrence ere-*9ated just such a precedent, confirming that individual decisions by married and unmarried persons ‘concerning the intimacies of their physical relationship ... are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment!,]’ ” dissenting opinion at 17, 155 P.3d at 1118, and (2) “article I, section 6 does not abide the criminalization of wholly private, consensual sexual activity between adults without the state’s having demonstrated a compelling interest by way of ‘injury to a person or abuse of an institution the law protects,’ 539 U.S. at 568[, 123 S.Ct. 2472,]” dissenting opinion at 18, 155 P.3d at 1119. We must respectfully disagree with these propositions and discuss them herein.

VII.

The dissent’s first position is not tenable because it runs into the specific qualification in Lawrence that excludes prostitution as part of protected “liberty” under the federal due process clause.

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve p-ublic conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, rvith full and mutual consent from each other, engaged in' sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean them existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

539 U.S. at 578, 123 S.Ct. 2472 (emphases added).

Additionally, despite this clear exclusion, the dissent argues that a logical extension of Lawrence precludes the states from exercising their police power to curb prostitution.

[W]here two consenting adults swap money for sex in a transaction undertaken entirely in seclusion, the analysis of the Lawrence majority, despite the majority’s attempt to avoid the notion, leads inexorably to the conclusion that the state may not exercise its police power to criminalize a private decision between two consenting adults to engage in sexual activity, whether for remuneration or not.

Dissenting opinion at 18, 155 P.3d at 1119 (emphasis added). But, the dissent’s position is not supportable on this premise. The Court has in the past drawn legal boundaries around its decisions, despite the fact that arguably logic would “lead[ ] inexorably” beyond such strictures. Thus, in State v. Kam, 69 Haw. 483, 748 P.2d 372 (1988), this court recognized that although the Court had held a state “would not be able to prohibit an individual from possessing and viewing pornographic materials in the privacy of his or her own home[,]” id. at 489, 748 P.2d at 376 (citing Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), “[t]he ... Court ha[d] effectively ruled that the protected right to possess obscene material in the privacy of one’s home does not give rise to a correlative right to have someone sell or give it to others[,]” id. at 490, 748 P.2d at 376 (internal quotation marks and citation omitted), leading to the paradoxical conflict of a “citizenryf’s] ... right to read and possess material which it may not legally obtain!,]”) id. at 491, 748 P.2d at 377. Hence, although the Court’s language may seemingly point to broader application, that does not portend an extension of a given proposition especially when, as here, the Court expressly limits the scope of the liberty interest protected.11

Furthermore, the dissent misreads Lawrence. As mentioned above, prostitution, i.e., “swap[ping] money for sex,” dissenting opinion at 18, 155 P.3d at 1119, is expressly rejected as a protected liberty interest under Lawrence. Lawrence did not involve an ex*10change of money for sexual relations but focused on the specific sexual conduct, i.e., sodomy, as being outside the scope of legitimate government concern. It is important to remember that “[t]he question before the Court [was] the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct[,]” 539 U.S. at 562, 123 S.Ct. 2472, described as “(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object[,]” id. (quoting Texas Penal Code Ann. § 21.01(1) (2003)). Lawrence thus contains a lengthy dissertation on homosexual conduct and sodomy dating back to 1533. Id. at 568-77, 123 S.Ct. 2472. As the Court stated, the case involved “two adults who ... engaged in sexual practices common to a homosexual lifestyle.” Id. at 578, 123 S.Ct. 2472 (emphasis added).

Assuming, arguendo, that “Lawrence presupposed private sexual activity between two adults fully capable of giving valid consent[,]” dissenting opinion at 23, 155 P.3d at 1124, that does not mean Lawrence sanctioned prostitution in the “[n]arrow[er],” dissenting opinion at 23, 155 P.3d at 1124, form advocated by the dissent. Lawrence simply placed no qualification on excluding prostitution from its holding.

VIII.

In Lawrence, the Court reconsidered its earlier holding in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), where “Hardwick, in his own bedroom, [was observed] engaging in [sodomy] with another, adult male.” Lawrence, 539 U.S. at 566, 123 S.Ct. 2472. In doing so the majority adopted the dissent of Justice Stevens in Bowers, where a sodomy statute similar to that in Texas was upheld by the Boivers majority.12 In his dissent, Justice Stevens rested on two contentions.

First, the fact that the governing majority in a State has traditionally vieived a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even ivhen not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.

Bowers, 478 U.S. at 216, 106 S.Ct. 2841 (Stevens, J., dissenting) (footnote and citations omitted) (emphases added). The majority in Lawrence decided that “Justice Stevens’ analysis ... should have been controlling in Bowers and should control here.” 539 U.S. at 578, 123 S.Ct. 2472.

Thus, Lawrence invalidated a criminal statute prohibiting the “particular practice” of sodomy because it involved the “intimacies of ... physical relationship” and such “intimate choices” should be left to unmarried as well as married persons. Id. at 577-78, 123 S.Ct. 2472 (emphasis added). Lawrence, then, was concerned with specific conduct seemingly aimed at persons engaged in homosexual relationships. Consequently, Lawrence precludes government interference or regulation of intimate sexual practices or conduct with respect to homosexual as well as heterosexual adults. Such intimate practices or conduct are not at issue in the instant case or prohibited by HRS § 712-1200, the prostitution statute. Lawrence, then, is not federal precedent for the proposition that “private sexual activity” “associated [with a] monetary component,” “abridged” the “right to privacy” as the dissent argues. Dissenting opinion at 17, 155 P.3d at 1118.

*11IX.

As to the dissent’s second position, in our view Lawrence as construed above does not vitiate the holding in Mueller. In Mueller, the defendant was charged with “engag[ing] in, or agreeing] to engage in, sexual conduct with another person, in return for a fee, in violation of [HRS § ] 712-1200[,]” 66 Haw. at 618, 671 P.2d at 1354, as Defendant was so charged in the instant case. Somewhat similarly the question posed there was “whether the proscriptions of [HRS] § 712-1200 may be applied to an act of sex for a fee that took place in a private apartment.” Id. at 619-20, 671 P.2d at 1354. In affirming the conviction, this court said that “we are not convinced a decision to engage in sex for hire is a fundamental right in our scheme of ordered liberty, ... [therefore] we affirm [the defendant’s] conviction.” Id. at 618, 671 P.2d at 1353-54.

Unlike in the instant case, in Mueller “the activity in question took place in [defendant’s] apartment, the participants were willing adults, and there were ‘no signs of advertising!,] ’ ” 66 Haw. at 618-19, 671 P.2d at 1354 (emphasis added). Despite the dissent’s assertion “that the charged transaction,” dissent at 23, 155 P.3d at 1124, was “wholly private,” id., it is arguable in this ease that “public solicitation” was implicated, inasmuch as contact with Defendant was made by way of a newspaper ad soliciting members of the public and the assignation took place in a hotel as opposed to “the privacy of her own home.” Mueller, 66 Haw. at 618, 671 P.2d at 1354.

X.

As to the right of privacy in article I, section 6 of the Hawai'i Constitution, the Mtieller majority noted that (1) “a party challenging the statute has the burden of showing unconstitutionality beyond a reasonable doubt[,]” id. at 627, 671 P.2d at 1358 (internal quotation marks and citations omitted), (2) “only personal rights that can be deemed fundamental or implicit in the concept of ordered liberty are included in this guarantee of personal privacy[,]” id. at 628, 671 P.2d at 1359 (internal quotation marks and citations omitted), and (3) “[t]he defendant has directed us to nothing suggesting a decision to engage in sex for hire at home should be considered basic to ordered liberty[,]” id.

Mueller is precedent. “Precedent is an adjudged case or decision of a court, considered as furnishing an example of authority for an identical or similar case af-terwards arising or a similar question of law[ ] ... and operates as a principle of self-restraint ... with respect to the overruling of prior decisions.” State v. Garcia, 96 Hawai'i 200, 205, 29 P.3d 919, 924 (2001) (brackets, internal quotation marks, and citations omitted) (ellipses points in original). In this regard, “[t]he policy of courts to stand by precedent and not to disturb settled points is referred to as the doctrine of stare decisis[.]” Id. (brackets, internal quotation marks, and citation omitted).

While not having like “force ... in the context of constitutional interpretation,” id. at 206, 29 P.3d at 925, “[t]he benefit of stare decisis is that it furnishes a clear guide for the conduct of individuals, to enable them to plan their affairs with assurance against untoward surprise; eliminates the need to relit-igate every relevant proposition in every case; and maintains public faith in the judiciary as a source of impersonal and reasoned judgments[,]” id. at 205-06, 29 P.3d at 924-25 (brackets, internal quotation marks, citations, and ellipses points omitted).

Consequently, “a court should not depart from the doctrine of stare decisis without some compelling justification.” Id. at 206, 29 P.3d at 925 (internal quotation marks, citations and emphasis omitted). “[W]hen the court reexamines a prior holding, [then,] its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior ease.” Id. (internal quotation marks, citation, and brackets omitted).

There is no denying that “ ‘[w]hile the outer limits of this aspect of privacy have not been marked by the Court [or this court], it is clear that among the decisions that an *12individual may make without unjustified government interference are personal decisions relating to marriage ..., procreation ..., contraception ..., family relationships ..., and child rearing and education[,]’ ” Mueller, 66 Haw. at 627, 671 P.2d at 1359 (quoting Carey v. Population Servs. Int’l, 431 U.S. 678, 684-85, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (other citations omitted) (some internal quotation marks omitted)), and now qualified intimate sexual conduct between or among consenting adults.

The light to privacy has been expanded by the Court in discrete situations. See, e.g., Kyllo v. United States, 533 U.S. 27, 34, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (concluding that the government’s use of a thermal imaging device from a public street to detect relative amounts of heat within a private home, which would have been previously unknowable without physical intrusion, constitutes “a search” within the meaning of the Fourth Amendment, and is presumptively unreasonable without a warrant, in order to “assure[ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted”); Roe v. Wade, 410 U.S. 113, 154, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (concluding that “the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation”); Stanley, 394 U.S. at 568, 89 S.Ct. 1243 (holding that “the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime” because although “the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his [or her] own home”); Griswold v. Connecticut, 381 U.S. 479, 485-86, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (holding that a law which forbade the use of contraceptives unconstitutionally interfered with the “notions of privacy surrounding the marriage relationship”).

This court has also extended privacy rights under our own constitution. See, e.g., State v. Cuntapay, 104 Hawai'i 109, 110, 85 P.3d 634, 635 (2004) (holding that “under Article I, section 7 of the Hawaii Constitution, a guest of a homedweller is entitled to a right of privacy while in his or her host’s home” (footnote omitted)); State v. Detroy, 102 Hawai'i 13, 20-22, 72 P.3d 485, 492-94 (2003) (holding that Kyllo, 533 U.S. 27, 121 S.Ct. 2038, was dispositive of the defendant’s federal constitutional claim and, additionally, that the use of a thermal imager to measure heat emanating from the interior of the defendant’s apartment violated article I, section 7 of the Hawaii Constitution because “[i]t has long been recognized in Hawaii that generally, a person ‘has an actual, subjective, expectation of privacy in his or her home’ ” (quoting State v. Lopez, 78 Hawai'i 433, 442, 896 P.2d 889, 898 (1995))); State v. Bonnell, 75 Haw. 124, 146, 856 P.2d 1265, 1277 (1993) (holding that “the defendants had an objectively ‘reasonable privacy expectation that [they] would not be videotaped by government agents’ in the employee break room” (quoting United States v. Taketa, 923 F.2d 665, 677 (9th Cir.1991))); Kam, 69 Haw. at 496, 748 P.2d at 380 (declaring a statute that prohibited the promotion of pornographic adult magazines unconstitutional under article I, section 6 of the Hawaii Constitution “as applied to the sale of pornographic materials to a person intending to use those items in the privacy of his or her home”).

Thus conduct once denominated criminal has later been afforded constitutional protection under the privacy umbrella. See, e.g., Kyllo, 533 U.S. at 34, 40, 121 S.Ct. 2038; Roe, 410 U.S. at 154, 93 S.Ct. 705; Stanley, 394 U.S. at 568, 89 S.Ct. 1243; Griswold, 381 U.S. at 485-86, 85 S.Ct. 1678; Cuntapay, 104 Hawai'i at 110, 85 P.3d at 635; Detroy, 102 Hawai'i at 20-22, 72 P.3d at 492-94; Bonnell, 75 Haw. at 146, 856 P.2d at 1277; Kam, 69 Haw. at 496, 748 P.2d at 380. And while such expansion may not be without controversy, prostitution seems almost singularly unique in historical and social condemnation.

XI.

Mueller acknowledged the resiliency of prostitution laws as noted by the drafters of *13the penal code.13 This court declared that “[t]he drafters of the Hawaii Penal Code justified the enactment of HRS § 712-1200 on ‘the need for public order.’ [Thus this court] would not dispute that it was reasonable for the legislature to act on that basis.” 66 Haw. at 628-29, 671 P.2d at 1359-60 (footnote omitted). It was recognized that “[a] large segment of society undoubtedly regards prostitution as immoral and degrading, and the self-destructive or debilitating nature of the practice, at least for the prostitute, is often given as a reason for outlawing it. [Accordingly, w]e could not deem these views irrational.”14 Id. at 629, 671 P.2d at 1360.

XII.

It may be that non-injurious sexual conduct by consenting adults in a private place for a fee preceded by (veiled) public advertising may one day be drawn into the protective shelter of Hawaii’s privacy provision, as has other conduct once thought of as illegal. But “[t]he sum of experience,” id., as elucidated in the penal code presently, seems to the contrary. See supra note 13; cf. Janra Enters., Inc. v. City & County of Honolulu, 107 Hawai'i 314, 322, 113 P.3d 190, 198 (2005) (holding that “viewing adult material in an enclosed panoram booth on commercial premises is not protected by the fundamental *14right of privacy enshrined in article I, section 6 of the Hawaii Constitution”). Hence, “prudential and pragmatic considerations” do not compel a departure from the doctrine of stare decisis, Garcia, 96 Hawai'i at 206, 29 P.3d at 925, so as to justify overruling Mueller, much less based on the Court’s present express holding in Lawrence.

Of course the legislature may alter the law to allow non-injurious sexual contact by consenting adults in a private place for a fee, conduct that is presently proscribed by HRS § 712-1200(1). For,

[a]s a general rule, the role of the court in supervising the activity of the legislature is confined to seeing that the actions of the legislature do not violate any constitutional provision. We will not interfere with the conduct of legislative affairs in absence of a constitutional mandate to do so, or unless the procedure or result constitutes a deprivation of constitutionally guaranteed rights.

Schwab v. Ariyoshi, 58 Haw. 25, 37, 564 P.2d 135, 143 (1977) (citations omitted). We only decide that the considerations before us do not compel the legal conclusion that, on constitutional grounds, HRS § 712-1200 must be ruled invalid.

XIII.

Based on the foregoing, the court’s August 26, 2003 judgment is affirmed.

Dissenting Opinion by

LEVINSON, J.

I respectfully disagree with the majority’s treatment of the defendant-appellant Pame Ann Mary Leilani Romano’s argument that Hawaii Revised Statutes (HRS) § 712-1200(1) (Supp.1998),1 as applied to her in the present matter, violates both the federal right to privacy articulated by the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), and the state constitutional protection provided by Article I, section 6 of the Hawaii Constitution [hereinafter, “article I, section 6”].2 Accordingly, I would reverse the district court’s August 26, 2003 judgment.

1. BACKGROUND

Inasmuch as the disposition of the present matter relies significantly on its unique facts, I summarize them here.

The present matter arose out of an undercover operation conducted by the Morals Detail of the Honolulu Police Department (HPD) at the former Aston Waikiki Beach Hotel (the Aston). On August 13 and 26, 2003, the district court conducted a bench *15trial, at which the following relevant testimony was adduced.

A. The Prosecution’s Case

On January 18, 2003, HPD Officer Jeffrey Tallion checked into a room in the Aston to investigate prostitution activity. His assignment that evening was to “set up appointments” with suspected prostitutes advertising in the telephone book, in the PennySaver, in MidWeek,3 or on the internet.

Officer Tallion answered “a small little ad in the [PennySaver ] Classified[s] that advertised massage service.” The advertisement to which Officer Tallion responded read:

$30 1/2 HOUR

RELAXING/ACUPRESSURE MASSAGE BY PAM (PAME)

[telephone number]

SAME DAY APPOINTMENT

[two Honolulu addresses]

(Lie: [######])

(Emphases in original.)4 Officer Tallion “called the number for the massage” and spoke to a woman identifying herself as “Pame.” Officer Tallion arranged for an “out-call[ ]” for $100.00 per hour. Officer Tallion conceded on cross-examination that, during the telephone conversation arranging the appointment, there was no “conversation about any kind of illicit conduct such as sexual acts.”

Officer Tallion met Romano outside the Aston and confirmed that she was the woman he had spoken to earlier on the telephone. Romano was wearing neither “low-cut” nor “see-through” clothing but, rather, “regular clothes ... nothing revealing.” As Officer Tallion summarized, “[Romano] was not walking up and down the streets in any kind of revealing ... attire.” The two proceeded up to Officer Tallion’s hotel room. The record indicates no discussion concerning massage or any topic of a suggestive nature until Romano and Officer Tallion were in the hotel room. Once inside the hotel room, Officer Tallion testified, he

[confirmed that it was a hundred dollars for the out-call which was related ... when I first made the appointment; and then ... I asked if she did anything else. And she said, “Like what? Dance?” And I said, “No.” And then she goes, “Well, what did you have in mind?”

At that time, I said, “Well, I was referring to a blowjob[.”] And she goes, “No, hands only.” I go, “So no blowjob, so handjob.” She goes, ‘Yeah, I can do that.” So at that time I go, “Well, does that cost extra?” She goes, “Add 20[.”] So I go, “Oh, $20 for a handjob.” And she replied, ‘Yes[.”J

After the aforementioned dialogue, Officer Tallion gave a prearranged signal and other officers entered the room and arrested Romano. Officer Tallion estimated that their conversation inside the hotel room spanned ten minutes.

On cross-examination, Officer Tallion conceded that Romano never physically attempted to touch him sexually, nor did she exhibit a prophylactic, disrobe, or direct him to remove his clothing.

Officer Tallion further testified that, based on his knowledge and training as a police officer, Romano had offered him sexual conduct during their conversation: “ ‘Handjob’ is the street vernacular commonly used in prostitution for assisted masturbation.” He indicated that Romano did not have time to “make any motions towards [him] to suggest that she was going to commit any sexual act” because, after he “obtained the violation,” he signaled the arrest team. In other words, he “didn’t go for an overt act” because he “didn’t have to go that far.”

*16B. Romano’s Motion To Dismiss

In her motion to dismiss, Romano argued that Laun-ence v. Texas effectively invalidated HRS § 712-1200(1), see supra note 1, as applied to Romano’s private sexual activity with a putatively consenting adult. In the written motion itself, Romano cited only article I, section 7 of the Hawaii Constitution and the fourth amendment to the United States Constitution (concerning searches and seizures) as authority, but her entire memorandum in support discussed Lawrence, which concerned the due process clause of the fourteenth amendment to the United States Constitution and, by implication, the other privacy-related amendments and their penumbras, see infra part II.B.1. In the August 26, 2003 hearing on the motion, Romano elaborated orally that the interpretation of Hawaii’s constitutional right to privacy in State v. Mueller, 66 Haw. 616, 671 P.2d 1351 (1983), “w[ouldj have to change” “in light of Lawrence.” (Boldface omitted.) The sum total of Romano’s argument was a challenge to HRS § 712-1200(1), not on its face but, rather, as applied to Romano’s particular conduct. She impliedly analogized the present matter to Mueller and urged that a materially similar ease should be resolved differently post-Lawrence, inasmuch as “this is not a situation of public conduct[;] ... [t]his is a private activity”:

[I]n ... Mueller, the defendant [Mueller] ... entertained individuals at her home. Police officers] under cover approached her ... in the privacy of her home....

... [I]f for argument’s sake ... the act was committed, ...

... she was not out on the street. There was not commercial activity in front of individuals. This was a private conversation taldng place in a room according to ... [Officer [Tallion],

(Boldface omitted.)

The prosecution asserted that the applicability of Lawrence, by its own language, was limited to “consenting adults where there is no fee included,” not prostitution. Moreover, the prosecution offered up as state interests in criminalizing sexual conduct between consenting adults for a fee the potential for “disruption to the marital contract” and “sexual diseases that might get passed through promiscuous sex.” Romano maintained that, in Laun-ence, “the ... State made the same arguments ... about ... sexually transmitted diseases ...; also, morality issues and the like,” but that the Laun-ence “Court said that doesn’t apply between consensual adults in the privacy of their own home.”

The district court denied Romano’s motion, stating that “the court does not agree with the applicability of Lawrence ... to the instant situation. What [Romano] is asking is for this court to prematurely second-guess the Hawai[‘]i Supreme Court as to how [it] would apply Lawrence to our particular' statute here in ... Hawai[‘]i.” (Boldface omitted.)

II. IN LIGHT OF LAWRENCE AND ARTICLE I, SECTION 6, ROMANO’S CONVICTION WAS UNCONSTITUTIONAL.

A. Lawrence Severely Undermined The Rationale Of State v. Mueller By Announcing A Federal Privacy Interest In Private Consensual Sex.

At first blush, this court’s decision in Mueller would appear to foreclose Romano’s position that HRS § 712-1200(1), see supra note 1, impermissibly abridged her constitutional right to privacy.5 Similarly, in Mueller, the alleged barter of sex for money “took place in ... Mueller’s apartment, the participants were willing adults, and there were ‘no signs of advertising’ anywhere in the apartment building.” 66 Haw. at 618-19, 671 P.2d at 1354. Mueller argued “that the activity’s private setting and the absence of public solicitation set her case apart ‘from every other prostitution case.’ And she maintained a decision to engage in sex with ‘a voluntary adult companion’ was ‘well within her constitutional right to privacy.’ ” 66 Haw. at 619, 671 P.2d at 1354. The district court rejected her argument, finding that the state had a *17“ ‘compelling interest in controlling prostitution in private residences as well as the streets.’ ” Id. This court affirmed on the basis that “we are not convinced a decision to engage in sex for hire is a fundamental right in our scheme of ordered liberty.” 66 Haw. at 618, 671 P.2d at 1353. The Mueller court phrased “[t]he sole issue posed on appeal” as “whether the proscriptions of ... [ ]HRS[ ] § 712-1200 may be applied to an act of sex for a fee that took place in a private apartment.” 66 Haw. at 619-20, 671 P.2d at 1354 (footnote omitted).

The Mueller court surveyed federal precedent construing an individual’s right to privacy as derived from the federal bill of rights in the context of marriage, contraception, abortion, and pornography. Mueller, 66 Haw. at 620-22, 671 P.2d at 1354-55 (quoting Roe v. Wade, 410 U.S. 113, 152-54, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Stanley v. Georgia, 394 U.S. 557, 565, 568-69, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Griswold v. Connecticut, 381 U.S. 479, 484-86, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)). Ultimately, however, the exercise was unhelpful inasmuch as the Mueller court determined that “there has been no clear and binding judicial statement on the matter of our present concern.” Mueller, 66 Haw. at 622, 671 P.2d at 1355. The Mueller court noted that, at least by 1983, “[w]hat little we ha[d] heard from the [United States Supreme] Court ... ha[d] been in the muted tones of a summary affirmance of the decision of a three-judge [panel] upholding the constitutionality of a state statute making sodomy a crime and by way of dicta in other decisions.” 66 Haw. at 622, 671 P.2d at 1355-56 (citing Doe v. Commonwealth’s Attorney for City of Richmond, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), aff'g 403 F.Supp. 1199 (E.D.Va.1975)). In short, at the time of this court’s holding in Mueller, there was no federal precedent addressing whether the criminalization of an utterly private sexual activity (and its associated monetary component) abridged an individual’s right to privacy.

Lawrence created just such a precedent, confirming that individual decisions by married and unmarried persons “concerning the intimacies of their physical relationship ... are a form of ‘liberty protected by the Due Process Clause of the Fourteenth Amendment.”6 539 U.S. at 578, 123 S.Ct. 2472. The Court thereby overruled Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), and, by implication, Commonwealth’s Attorney.

In Lawrence, the charged conduct, denominated in the challenged Texas statute as “ ‘deviate sexual intercourse with another individual of the same sex,’ ” was undertaken “in private and consensual[ly].” 539 U.S. at 562, 564, 123 S.Ct. 2472 (quoting Tex. Penal Code Ann. § 21.06(a) (2003)). The analysis of the majority opinion, authored by Justice Kennedy, centered on the private nature of the conduct in question and the protections afforded individuals “from unwarranted government intrusions into a dwelling or other private places,” as well as “liberty of the person ... in its more transcendent dimensions.” See id. at 562, 564, 123 S.Ct. 2472 (framing the question as “whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty”), 567, 123 S.Ct. 2472 (noting that “adults may choose to enter upon [a homosexual] relationship in the confines of their homes and their own private lives and still retain their dignity as free persons”).

Having overruled Bowers, the majority expressly limited the extent of its holding: “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not be easily refused. It does not involve public conduct or prostitution.” Id. at 578, 123 S.Ct. 2472 (emphases added). No further explanation of prostitution’s exclusion was forthcoming, but the thrust of the Lawrence majority’s analysis supports the conclusion that the Court was focused on addressing only private sexual activity among adults ca*18pable of consenting and, therefore, to the extent that prostitution involves public solicitation, it departed from the realm of the private and, hence, from the scope of the Lawrence analysis. However, where two consenting adults swap money for sex in a transaction undertaken entirely in seclusion, the analysis of the Lawrence majority, despite the majority’s attempt to avoid the notion, leads inexorably to the conclusion that the state may not exercise its police power to criminalize a private decision between two consenting adults to engage in sexual activity, whether for remuneration or not. See 539 U.S. at 590, 123 S.Ct. 2472 (Scalia, J., dissenting) (arguing that the majority’s recognition of “ ‘an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex’ (emphasis added),” 539 U.S. at 572, 123 S.Ct. 2472, renders prostitution laws based on morality unenforceable). Indeed, the Lawrence majority addressed the issue of consensual homosexual sex in the same terms many would use to describe prostitution:

The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood ... v. Casey, 505 U.S. 833, 850[, 112 S.Ct. 2791, 120 L.Ed.2d 674] (1992).

539 U.S. at 571, 123 S.Ct. 2472. In short, the analysis in Lawrence severely undermines this court’s federal constitutional analysis in Mueller, and article I, section 6, see supra note 2, casts further doubt on Mueller’s viability. Indeed, article I, section 6 does not abide the criminalization of wholly private, consensual sexual activity between adults without the state’s having demonstrated a compelling interest by way of “injury to a person or abuse of an institution the law protects,” id., 539 U.S. at 568, 123 S.Ct. 2472.

B. The Jurisprudence Of This Court And The Intent Of The Drafters Of Article I, Section 6, Require That The State’s Criminalization Of A Private Transaction Be Justified By A Compelling Interest In Preventing Harm To Others.

1. The fundamental right “to be left alone”

The Mueller court next turned to the privacy provision adopted in 1978 as article I, section 6 of the state constitution. First, the court acknowledged that the “terse language” of article I, section 6 required it to resort to extrinsic aids to construction. The Mueller court noted that the delegates to the constitutional convention had recorded “the[ir] intent ... to [e]nsure that privacy is treated as a fundamental right,” Comm. Whole Rep. No. 15, in 1 Proceedings of the Constitutional Convention of Hawai'i of 1978 [hereinafter, “Proceedings”] at 1024 (1980), but the court also implied that Hawaii’s newly codified privacy right was circumscribed by federal precedent. See 66 Haw. at 625-26, 671 P.2d at 1357-58. That is, the constitutional convention having mused that the watershed right to privacy “is similar to the privacy right discussed in cases such as Gris-wold ..., ... Baird, Roe, etc.” (emphasis added), this court apparently viewed that language as conclusive proof that article I, section 6 embodied no broader privacy right than what already existed on the federal level. The Mueller court summarily abandoned all hope of discerning meaning beyond the federal bill of rights and its penumbra, finding itself “led back to Griswold, [Baird ], and Roe and ... to have come full circle in our search for guidance on the intended scope of the privacy protected by the Ha-waif‘]i Constitution.” 66 Haw. at 626, 671 P.2d at 1358.

The Mueller court’s narrow construction of article I, section 6 has since been called into question:

*19“As the ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawaii Constitution, we are free to give broader privacy protection than that given by the federal constitution.” [State v.] Kam, 69 Haw. [483,] 491, 748 P.2d [372,] 377 [(1988)]. Moreover, unlike the federal constitution, our state constitution contains a specific provision expressly establishing the right to privacy as a constitutional right. Thus, ... the text of our constitution appear[s] to invite this court to look beyond the federal standards in interpreting the right to privacy.

State v. Malian, 86 Hawai'i 440, 448, 950 P.2d 178, 186 (1998) (emphases in original); see also Kam, 69 Haw. at 491, 748 P.2d at 377.

The roots of article I, section 6 extend deep into this court’s jurisprudence. State v. Lee, 51 Haw. 516, 465 P.2d 573 (1970), considered an individual’s liberty from unwarranted exercise of the state’s police power:

[W]here an individual’s conduct, or a class of individuals’ conduct, does not directly harm others the public interest is not affected and [such conduct] is not properly the subject of the police power of the' legislature. However, where the legislature has determined that the conduct of a particular’ class of people recklessly affects them physical well-being and that the consequent physical injury and death is so widespread as to be of grave concern to the public and where the incidence and severity of the physical harm has been statistically demonstrated to the satisfaction of th[is c]ourt, then the conduct of that class of people affects the public interest and is properly within the scope of the police power. Of course, where the conduct sought to be regulated is in furtherance of a specific constitutional right, a different situation arises.

51 Haw. at 521, 465 P.2d at 577. As it applied this rule to the facts of Lee, however, this court observed “that the continued viability of our society requires that [motorcycle users] protect themselves from physical injury or death,” that “[t]he burden imposed [ (i.e., wearing a helmet while operating a motorcycle) ] is directly and immediately related to the evil sought to be controlled,” and that “a narrower means to protect motorcyclists could hardly be conceived.” 51 Haw. at 522, 465 P.2d at 576-77. Justice Abe disagreed, implying that the helmet law “attempts to infringe upon and stifle fundamental personal liberties for one’s own safety and is not concerned with the preservation of public order, safety, health and morals, or for the public welfare. Then, the fact that the general public considers it foolhardy to ride a motorcycle without a safety helmet ... should not be used as a criterion for defining the non-use of a helmet a criminal offense.” See 51 Haw. at 528, 465 P.2d at 580 (Abe, J., dissenting).

Justice Abe’s concurring opinion in State v. Kantner, 53 Haw. 327, 334-39, 493 P.2d 306, 311-13 (1972) (Abe, J., concurring), in which the appellants appealed a conviction for marijuana possession, trumpeted the vitality of the principle that “one has a fundamental right of liberty to make a fool of [one]self as long as [one’s] act does not endanger others, and that the state may regulate the conduct of a person under pain of criminal punishment only when [the person’s] actions affect the general welfare—that is, where others are harmed or likely to be harmed.” 53 Haw. at 336-37, 493 P.2d at 312 (Abe, J., concurring) (citing Lee, 51 Haw. at 524-28, 465 P.2d at 578-80 (Abe, J., dissenting)). The plurality in Kantner did not contravert Abe’s assertion directly but, rather, began its analysis by noting that the appellants had conceded “that the State may properly regulate the possession of marihuana under the police power.” 53 Haw. at 328, 493 P.2d at 307. In the view of the Kantner plurality, the appellants essentially argued “that the State has so unreasonably and irrationally exercised its police power that the present statutory scheme for the prohibition of possession of marihuana violates the constitutional guarantees of equal protection and due process of law” by classifying marijuana as a narcotic despite uncontroverted evidence it did not scientifically meet the definition of dings in that class. 53 Haw. at 328-29, 493 P.2d at 307-08.

The Kantner plurality disposed of the appellants’ argument by employing a standard *20equal protection/due process analysis, concluding that use of the term “narcotic” was not “so misleading as to confuse legislators in their law-making activities or to confuse persons of common understanding in their effort to determine whether possession of marihuana constitutes a crime” and that the disparate treatment of alcohol and marijuana was justified on the basis that little was known of marijuana’s long-term health effects. 53 Haw. at 329-31, 493 P.2d at 308-09.

To the degree that the Kantner plurality did address the appellants’ contention that the personal use of marijuana implicated a fundamental liberty interest leading to a heightened standard of review, it merely stated that “[w]e doubt ... that the use of a mind[-]altering drug, absent an intimate connection with a ‘preferred freedom[,’] requires the standard of review which [the] appellants suggest” (emphasis added), concluding ultimately that “there is no fundamental guarantee protecting the use and possession of euphoric drugs,” basing its conclusion wholly on the definition of a preferred freedom extant at the time under the federal constitution as an activity that is “essential, not merely desirable, for the exercise of the specifically enumerated rights.” Id. (emphasis added) (summarizing Gris-wold ). The plurality, therefore, did not dispute Justice Abe’s assertions that individual liberty foreclosed the intrusion of the state’s police power into wholly private activity that did not harm others and that any infringement of that preferred freedom mandated heightened scrutiny. Rather, the Kantner plurality concluded that, under federal precedent at the time, the possession of marijuana was not a fundamental right and, hence, no “preferred freedom” was infringed. 53 Haw. at 333, 493 P.2d at 310 (emphasis added).

The Lee tenet of individual liberty was reaffirmed a year later in State v. Cotton, 55 Haw. 138, 139, 516 P.2d 709, 710 (1973) (“We accept now ... the fundamental tenet that the relationship between the individual and the state leaves no room for regulations which have as their purpose and effect solely the protection of the individual from his own folly.”). It was neglected, but not repudiated, over the following years by State v. Baker, 56 Haw. 271, 535 P.2d 1394 (1975), State v. Renfro, 56 Haw. 501, 542 P.2d 366 (1975), and State v. Bachman, 61 Haw. 71, 595 P.2d 287 (1979). In Baker, the defendants were charged with possession of marijuana, but the district court, evidently tracking the analysis of Lee, Cotton, and the concurring and dissenting trio in Kantner—Justices Abe, Bernard H. Levinson, and Kobayashi—see Mallan, 86 Hawai'i at 475 n. 26, 950 P.2d at 213 n. 26 (Levinson, J., dissenting), “placed on the State the burden of showing clearly and convincingly that the possession of marijuana ... constitutes a harm either to the individual or the community.” Baker, 56 Haw. at 276, 535 P.2d at 1397. This court reversed the ruling of the district court, asserting that beginning, as the district court did, by considering the “fundamental right of liberty of a human being to conduct himself in a manner which neither harms himself nor others” is “to begin with the wrong end of the stick.” 56 Haw. at 278-79, 535 P.2d at 1398. The Baker majority deferred to the legislature to determine the proper extent of the regulation of intoxicating substances, being careful, however, to distinguish its holding from the outcome in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), in which the confronted Georgia statute “ ‘infringe[d] ... fundamental liberties protected by the First and Fourteenth Amendments.’ ” 56 Haw. at 279-80, 535 P.2d at 1399 (quoting Stanley, 394 U.S. at 567, 568 & n. 11, 89 S.Ct. 1243). The Baker court implicitly rejected the appellants’ contention that the personal use of marijuana was a private act protected, as articulated in Griswold, 381 U.S. 479, 85 S.Ct. 1678, by the federal right to privacy. Cf. 56 Haw. at 285, 535 P.2d at 1402 (Kobayashi, J., dissenting).

The Baker majority further concluded that, “[w]hile our State Constitution has a right of privacy provision,7 we do not find in *21that provision any intent to elevate the right of privacy to the equivalent of a first amendment right,” 56 Haw. at 280, 535 P.2d at 1399 (one footnote omitted and one added). However, crucial to the present matter, the Baker court distinguished an opinion championed by the appellees: in Gray v. State, 525 P.2d 524 (Alaska 1974), the Alaska Supreme Court held that, under a newly enacted state constitutional amendment that expressly articulated a right to privacy,8 a statute that infringes on the right to privacy must demonstrate a compelling state interest to survive a constitutional challenge. Id. at 527. The Baker court conceded that, if a fundamental right to privacy were implicated in the possession of marijuana, “it would take away from our ... drug laws the presumption of constitutionality and require the showing of a compelling state interest before any of them could be enforced.” 56 Haw. at 280, 535 P.2d at 1400. However, there being no equivalent privacy interest articulated in the Hawai'i Constitution yet, the court did not reach that question.

Finally, the Baker majority, while “not unmindful ... ‘... that the concern for public health and safety is relevant only insofar as the actions of one individual may threaten the well-being of others,’ ” first sidestepped Justice Abe’s rationale on the basis that the appellees had conceded that the state’s police power could regulate marijuana possession and then woodenly distinguished Lee and Cotton as “inapplicable” because they dealt with motorcycle helmets and goggles and not marijuana. See 56 Haw. at 282, 535 P.2d at 1400-01 (quoting United States v. Kiffer, 477 F.2d 349, 354 (2d Cir.1973)). Renfro and Bachman subsequently relied on Baker to uphold the constitutionality of laws criminalizing marijuana possession in the face of similar challenges, see Renfro, 56 Haw. at 503, 542 P.2d at 368 (regurgitating the Baker court’s reasoning “that neither the federal nor Hawaii constitutions has elevated the right of privacy to the equivalent of a first amendment right”); Bachman, 61 Haw. at 72, 595 P.2d at 287 (“What we said in ... Baker and ... Renfro is still determinative ....”) (internal citations omitted).

Baker, Renfro and Bachman—and the federal grounds upon which Mueller in part relied—were rooted in the inability of this court, in considering the activity in question, to discern any infringement of a fundamental right similar to those emanating from and incorporated into the states through the first, third, fourth, , fifth, ninth, and fourteenth amendments to the United States Constitution, cf. Griswold, 381 U.S. at 484, 85 S.Ct. 1678. Inasmuch as the activities in those cases did not implicate a fundamental right, this court reasoned, the respective statutes criminalizing those activities could stand on mere rational bases. Lawrence renders that reasoning inapposite in the present matter by discerning, within the scope of the federal right to privacy, a fundamental right to private sexual relations.

2. The genesis of article I, section 6

Concomitantly, this court has, in the past, recognized that the drafters of article I, section 6 intended that the right to be left alone be guarded by a compelling interest standard of scrutiny and, hence, a presumption against the constitutionality of criminalizing private behavior.

Kam, which quoted with approval the constitutional convention’s Committee on Bill of Rights, Suffrage and Elections, summarized the “harm to others” concept as the boundary between the state’s police power and the fundamental right to privacy:

Perhaps the most important aspect of privacy is that it confers upon people the most important right of all—the right to be left alone. As Justice Brandéis said in his now celebrated and vindicated dissent in Olmstead v. U[nited ] S[tates] 277 U.S. 438[, 479, 48 S.Ct. 564, 72 L.Ed. 944] (1928)[ (Brandeis, J., dissenting) ]:

*22“The makers of our Constitution ... conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the most valued by civilized [people].”

It gives each and every individual the right to control certain highly personal and intimate affairs of his own life. The right to personal autonomy, to dictate his own lifestyle, to be oneself are included in this concept of privacy. As Justice Abe stated in his concurring opinion in State v. Kantner, 53 Haw. 327, [336,] 493 P.2d 306[, 312] (1972)[ (Abe, J. concurring) ]: each person has the “fundamental right of liberty to make a fool of himself as long as his act does not endanger others, and that the state may regulate the conduct of a person under pain of criminal punishment only when his actions affect the general welfare— that is, where others are harmed or likely to be harmed.”

It should be emphasized that this right is not an absolute one but, because similar to the right of free speech, it is so important in value to society that it can be infringed upon only by the showing of a compelling state interest. If the State is able to show a compelling state interest, the right of the group will prevail over the privacy rights or the right of the individual. However, in view of the important nature of this right, the State must use the least restrictive means should it desire to interfere with the right.

... 1 Proceedings ... at 674-75 ... (emphases added).

Kam, 69 Haw. at 492-93, 748 P.2d at 378 (some emphases in original and some added). The Kam court proceeded to cite the report of the Convention’s Committee of the Whole: “ ‘[The right to privacy] is treated as a fundamental right subject to interference' only ivhen a compelling state interest is demonstrated. By inserting clear and specific language regarding this right into the Constitution, your Committee intends to alleviate any possible confusion over the source of the right and the existence of it.’ ” Kam, 69 Haw. at 493, 748 P.2d at 378 (emphasis in Kam) (quoting 1 Proceedings at 1024). The Kam court then concluded that, “[b]ased on the clear and unambiguous reports, a compelling state interest must exist before the government may intrude into those certain highly personal and intimate affairs of a person’s life.” Id. (internal quotations and brackets omitted).

In sum, the plain language of article I, section 6 compels the conclusion that the right to privacy, expressly including the right to harm oneself and oneself alone, is a fundamental right, an infringement upon which must manifest more than a mere rational basis. An honest articulation of the privacy interest at stake is a prerequisite, however, to any analysis that would purport to adhere to the intent of the drafters to protect individual liberties.

C. Rejecting The Fallacy Of Trivialization

To frame the question at bar as whether “a decision to engage in sex for hire is a fundamental right in our scheme of ordered liberty,” as did our predecessors in Mueller, 66 Haw. at 618, 671 P.2d at 1353-54, and as the majority appears to do in the present matter, majority opinion at 11, 155 P.3d at 1112, is to indulge in a “fallacy of trivialization,” see Mallan, 86 Hawai'i at 498, 950 P.2d at 236 (Levinson, J., dissenting), demean the crucial role individual liberty plays in the concept of ordered liberty, and pervert the article I, section 6 framers’ “intent ... to [e]nsure that privacy is treated as a fundamental right for purposes of constitutional analysis,” see 1 Proceedings at 1024.

The United States Supreme Court, in Lawrence, recognized the danger of the fallacy of trivialization when it asserted that the Bowers Court had “misapprehended the claim of liberty” at stake by framing the question as “whether there is a fundamental right to engage in consensual sodomy.” 539 U.S. at 567, 123 S.Ct. 2472. Similarly, the present ease is no more about a fundamental right “to engage in sex for hire” than Baird was about a fundamental right to engage in sex out of wedlock. The proper question before this court, rather, is whether Romano *23enjoys a fundamental right to freedom from the state’s interference in, and criminalization of, her private conduct without a compelling and narrowly tailored justification. I would hold that she does indeed enjoy such a right.

D. The Narrow Import Of My Analysis

The majority asserts that I argue “that a logical extension of Lawrence precludes the states from exercising their police power to curb prostitution.” Majority opinion at 9, 155 P.3d at 1110. The majority mischarac-terizes the import of my reasoning. My analysis draws a clear line between purely private behavior between consenting adults— requiring demonstration of a compelling state interest before criminal penalties may be imposed—and the public realm, where the state retains broad power to impose time/place/manner regulations. Adoption of my analysis by the majority, would not, therefore, compel the legalization of prostitution in its usual manifestations: streetwalk-ing, escort services, or even hostess bars.

I merely assert that HRS § 712-1200(1), see supra note 1, as applied to Romano in the present matter is unconstitutional. Romano’s prosecution and conviction reflect an extraordinarily cramped application of HRS § 712-1200(1). The uncontroverted evidence in the present matter demonstrates that Romano was held criminally accountable for wholly private, though admittedly sexual, behavior with another consenting adult. As its majority noted, Lawrence presupposed private sexual activity between two adults fully capable of giving valid consent. 539 U.S. at 578, 123 S.Ct. 2472. Neither the present matter nor Lawrence concerned “persons who might be injured or coerced or who are situated in relationships where consent might not be easily refused.” See id. And, as I have emphasized, this case does not implicate public solicitation, streetwalking, or salacious advertising, which are not private activities. Rather, the present record reflects that the charged transaction could not conceivably have hurt anybody other than Romano, which renders her conviction under HRS § 712-1200(1)—absent a showing of a compelling interest from the prosecution—a violation of her federal and state constitutional rights to privacy as articulated in Lawrence and by the drafters of article I, section 6.

With regard to demonstrating the necessary compelling interest, at the hearing on Romano’s motion to dismiss, the prosecution did speak generally to the state’s interest “in making prostitution illegal,” e.g., avoiding the “disruption to the marital contract,” and “any sexual diseases that might get passed through promiscuous sex.” However, such concerns as moral depravity, the salacious reputation of a community, and disease and their attendant impact on productivity, tourism, etc., are commonly trotted out in the name of the “general welfare,” are generally speculative and attenuated, and can be moderated through “less restrictive” time, place, and manner regulations.9 The prosecution’s unelaborated theory does not constitute evidence at all, let alone proof of a compelling state interest and narrow tailoring justifying Romano’s criminal conviction. As Justice Levinson wrote in his Kantner dissent, “it is self-evident that ‘[Regulation and prohibition are not coextensive.’ ” See generally Mallan, 86 Hawai'i at 473-74, 496 n. 55, 498, 504, 507, 950 P.2d at 211-12, 234 n. 55, 236, 242, 245 (Levinson, J., dissenting) (quoting Kantner, 53 Haw. at 346, 493 P.2d at 317 (Levinson, J., dissenting)).

In light of the foregoing analysis, I would reverse the district court’s August 26, 2003 judgment.

Justice White

delivered the opinion of the Court.

In order to combat child pornography, Ohio enacted Rev. Code Ann. § 2907.323(A)(3) (Supp. 1989), which provides in pertinent part:

“(A) No person shall do any of the following:

“(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, 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 person knows that the parents, guardian, or custodian has consented in writing to the photograph*107ing or use of the minor in a state of nudity and to the manner in which the material or performance is used or transferred.”

Petitioner, Clyde Osborne, was convicted of violating this statute and sentenced to six months in prison, after the Columbus, Ohio, police, pursuant to a valid search, found four photographs in Osborne’s home. Each photograph depicts a nude male adolescent posed in a sexually explicit position.1

The Ohio Supreme Court affirmed Osborne’s conviction, after an intermediate appellate court did the same. State v. Young, 37 Ohio St. 3d 249, 525 N. E. 2d 1363 (1988). Relying on one of its earlier decisions, the court first rejected Osborne’s contention that the First Amendment prohibits the States from proscribing the private possession of child pornography.

Next, the court found that § 2907.323(A)(3) is not unconstitutionally overbroad. In so doing, the court, relying on the statutory exceptions, read § 2907.323(A)(3) as only applying to depictions of nudity involving a lewd exhibition or graphic focus on a minor’s genitals. The court also found that scienter is an essential element of a §2907.323(A)(3) offense. Osborne objected that the trial judge had not insisted that the government prove lewd exhibition and scienter as elements of his crime. The Ohio Supreme Court rejected these contentions because Osborne had failed to object to the *108jury instructions given at his trial and the court did not believe that the failures of proof amounted to plain error.2

The Ohio Supreme Court denied a motion for rehearing, and granted a stay pending appeal to this Court. We noted probable jurisdiction last June. 492 U. S. 904.

I

The threshold question in this case is whether Ohio may constitutionally proscribe the possession and viewing of child pornography or whether, as Osborne argues, our decision in Stanley v. Georgia, 394 U. S. 557 (1969), compels the contrary result. In Stanley, we struck down a Georgia law outlawing the private possession of obscene material. We recognized that the statute impinged upon Stanley’s right to receive information in the privacy of his home, and we found Georgia’s justifications for its law inadequate. Id., at 564-568.3

Stanley should not be read too broadly. We have previously noted that Stanley was a narrow holding, see United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 127 (1973), and, since the decision in that case, the value of permitting child pornography has been characterized as “exceedingly modest, if not de minimis.” New York v. Ferber, 458 U. S. 747, 762 (1982). But assuming, for the sake of argument, that Osborne has a First Amendment interest in viewing and possessing child pornography, we nonetheless find this case distinct from Stanley because the interests underlying child pornography prohibitions far exceed the interests justifying the Georgia law at issue in Stanley. Every court to address the issue has so concluded. See, e. g., People v. Geever, 122 Ill. 2d 313, 327-328, 522 N. E. 2d 1200, 1206-1207 (1988); *109 Felton v. State, 526 So. 2d 635, 637 (Ala. Ct. Crim. App.), aff’d sub nom. Ex parte Felton, 526 So. 2d 638, 641 (Ala. 1988); State v. Davis, 53 Wash. App. 502, 505, 768 P. 2d 499, 501 (1989); Savery v. State, 767 S. W. 2d 242, 245 (Tex. App. 1989); United States v. Boffardi, 684 F. Supp. 1263, 1267 (SDNY 1988).

In Stanley, Georgia primarily sought to proscribe the private possession of obscenity because it was concerned that obscenity would poison the minds of its viewers. 394 U. S., at 565.4 We responded that “[wjhatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” Id., at 566. The difference here is obvious: The State does not rely on a paternalistic interest in regulating Osborne’s mind. Rather, Ohio has enacted §2907.323(A)(3) in order to protect the victims of child pornography; it hopes to destroy a market for the exploitative use of children.

“It is evident beyond the need for elaboration that a State’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.’ . . . The legislative judgment, as well as the judgment found in relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. That judgment, we think, easily passes muster under the First Amendment.” Ferber, 458 U. S., at 756-758 (citations omitted). It is also surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the prod*110uct, thereby decreasing demand. In Ferber, where we upheld a New York statute outlawing the distribution of child pornography, we found a similar argument persuasive: “The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation. Tt rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.’” Id., at 761-762, quoting Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949).

Osborne contends that the State should use other measures, besides penalizing possession, to dry up the child pornography market. Osborne points out that in Stanley we rejected Georgia’s argument that its prohibition on obscenity possession was a necessary incident to its proscription on obscenity distribution. 394 U. S., at 567-568. This holding, however, must be viewed in light of the weak interests asserted by the State in that case. Stanley itself emphasized that we did not “mean to express any opinion on statutes making criminal possession of other types of printed, filmed, or recorded materials .... In such cases, compelling reasons may exist for overriding the right of the individual to possess those materials.” Id., at 568, n. 11.5

Given the importance of the State’s interest in protecting the victims of child pornography, we cannot fault -Ohio for attempting to stamp out this vice at all levels in the distribution chain. According to the State, since the time of our decision in Ferber, much of the child pornography market has been driven underground; as a result, it is now difficult, if not impossible, to solve the child pornography problem by only attacking production and distribution. Indeed, 19 States *111have found it necessary to proscribe the possession of this material.6

Other interests also support the Ohio law. First, as Ferber recognized, the materials produced by child pornographers permanently record the victim’s abuse. The pornography’s continued existence causes the child victims continuing harm by haunting the children in years to come. 458 U. S., at 759. The State’s ban on possession and viewing encourages the possessors of these materials to destroy them. Second, encouraging the destruction of these materials is also desirable because evidence suggests that pedophiles use child pornography to seduce other children into sexual activity.7

Given the gravity of the State’s interests in this context, we find that Ohio may constitutionally proscribe the possession and viewing of child pornography.

II

Osborne next argues that even if the State may constitutionally ban the possession of child pornography, his convic*112tion is invalid because §2907.323(A)(3) is unconstitutionally overbroad in that it criminalizes an intolerable range of constitutionally protected conduct.8 In our previous decisions discussing the First Amendment overbreadth doctrine, we have repeatedly emphasized that where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only “real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep. ” Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973). Even where a statute at its margins infringes on protected expression, “facial invalidation is inappropriate if the ‘remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable . . . conduct. . . .’” New York v. Ferber, 458 U. S., at 770, n. 25.

The Ohio statute, on its face, purports to prohibit the possession of “nude” photographs of minors. We have stated that depictions of nudity, without more, constitute protected expression. See Ferber, supra, at 765, n. 18. Relying on this observation, Osborne argues that the statute as written is substantially overbroad. We are skeptical of this claim because, in light of the statute’s exemptions and “proper purposes” provisions, the statute may not be substantially overbroad under our cases.9 However that may be, Os*113borne’s overbreadth challenge, in any event, fails because the statute, as construed by the Ohio Supreme Court on Osborne’s direct appeal, plainly survives overbreadth scrutiny. Under the Ohio Supreme Court reading, the statute prohibits “the possession or viewing of material or performance of a minor who is in a state of nudity, where such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals, and where the person depicted is neither the child nor the ward of the person charged.” 37 Ohio St. 3d, at 252, 525 N. E. 2d, at 1368.10 By limiting the statute’s operation in *114this manner, the Ohio Supreme Court avoided penalizing persons for viewing or possessing innocuous photographs of naked children. We have upheld similar language against overbreadth challenges in the past. In Ferber, we affirmed a conviction under a New York statute that made it a crime to promote the “ ‘lewd exhibition of [a child’s] genitals.’ ” 458 U. S., at 751. We noted that “[t]he term ‘lewd exhibition of the genitals’ is not unknown in this area and, indeed, was given in Miller [v. California, 413 U. S. 15 (1973),] as an example of a permissible regulation.” Id., at 765.11

*115The Ohio Supreme Court also concluded that the State had to establish scienter in order to prove a violation of § 2907.323 (A)(3) based on the Ohio default statute specifying that recklessness applies when another statutory provision lacks an intent specification. See n. 9, supra. The statute on its face lacks a mens rea requirement, but that omission brings into play and is cured by another law that plainly satisfies the requirement laid down in Ferber that prohibitions on child pornography include some element of scienter. 458 U. S., at 765.

Osborne contends that it was impermissible for the Ohio Supreme Court to apply its construction of §2907.323(A)(3) to him — i. e., to rely on the narrowed construction of the statute when evaluating his overbreadth claim. Our cases, however, have long held that a statute as construed “may be applied to conduct occurring prior to the construction, provided such application affords fair warning to the defendant.” Dombrowski v. Pfister, 380 U. S. 479, 491, n. 7 (1965) (citations omitted).12 In Hamling v. United States, *116418 U. S. 87 (1974), for example, we reviewed the petitioners’ convictions for mailing and conspiring to mail an obscene advertising brochure under 18 U. S. C. § 1461. That statute makes it a crime to mail an “obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance.” In Hamling, for the first time, we construed the term “obscenity” as used in § 1461 “to be limited to the sort of ‘patently offensive representations or depictions of that specific “hard core” sexual conduct given as examples in Miller v. California.’” In light of this construction, we rejected the petitioners’ facial challenge to the statute as written, and we affirmed the petitioners’ convictions under the section after finding that the petitioners had fair notice that their conduct was criminal. 418 U. S., at 114-116.

Like the Hamling petitioners, Osborne had notice that his conduct was proscribed. It is obvious from the face of §2907.323(A) (3) that the goal of the statute is to eradicate child pornography. The provision criminalizes the viewing and possessing of material depicting children in a state of nudity for other than “proper purposes.” The provision appears in the “Sex Offenses” chapter of the Ohio Code. Section 2907.323 is preceded by §2907.322, which proscribes “[p]andering sexually oriented matter involving a minor,” and followed by §2907.33, which proscribes “[deception to obtain matter harmful to juveniles.” That Osborne’s photographs of adolescent boys in sexually explicit situations constitute child pornography hardly needs elaboration. Therefore, although § 2907.323(A)(3) as written may have been imprecise at its fringes, someone in Osborne’s position would not be surprised to learn that his possession of the four photographs at issue in this case constituted a crime.

Because Osborne had notice that his conduct was criminal, his case differs from three cases upon which he relies: Bouie v. City of Columbia, 378 U. S. 347 (1964), Rabe v. Washing *117 ton, 405 U. S. 313 (1972), and Marks v. United States, 430 U. S. 188 (1977). In Bouie, the petitioners had refused to leave a restaurant after being asked to do so by the restaurant’s manager. Although the manager had not objected when the petitioners entered the restaurant, the petitioners were convicted of violating a South Carolina trespass statute proscribing “ ‘entry upon the lands of another. . . after notice from the owner or tenant prohibiting such entry.’” 378 U. S., at 349. Affirming the convictions, the South Carolina Supreme Court construed the trespass law as also making it a crime for an individual to remain on another’s land after being asked to leave. We reversed the convictions on due process grounds because the South Carolina Supreme Court’s expansion of the statute was unforseeable and therefore the petitioners had no reason to suspect that their conduct was criminal. Id., at 350-352.

Likewise, in Rabe v. Washington, supra, the petitioner had been convicted of violating a Washington obscenity statute that, by its terms, did not proscribe the defendant’s conduct. On the petitioner’s appeal, the Washington Supreme Court nevertheless affirmed the petitioner’s conviction, after construing the Washington obscenity statute to reach the petitioner. We overturned the conviction because the Washington Supreme Court’s broadening of the statute was unexpected; therefore the petitioner had no warning that his actions were proscribed. Id., at 315.

And, in Marks v. United States, supra, we held that the retroactive application of the obscenity standards announced in Miller v. California, 413 U. S. 15 (1973), to the potential detriment of the defendant violated the Due Process Clause because, at the time that the defendant committed the challenged conduct, our decision in Memoirs v. Attorney General of Massachusetts, 383 U. S. 413 (1966), provided the governing law. The defendant could not suspect that his actions would later become criminal when we expanded the range of constitutionally proscribable conduct in Miller.

*118Osborne suggests that our decision here is inconsistent with Shuttlesworth v. Birmingham, 382 U. S. 87 (1965). We disagree. In Shuttlesworth, the defendant had been convicted of violating an Alabama ordinance that, when read literally, provided that “a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city.” Id., at 90. We stated that “[t]he constitutional vice of so broad a provision needs no demonstration.” Ibid. As subsequently construed by the Alabama Supreme Court, however, the ordinance merely made it criminal for an individual who was blocking free passage along a public street to disobey a police officer's order to move. We noted that “[i]t is our duty, of course, to accept this state judicial construction of the ordinance. ... As so construed, we cannot say that the ordinance is unconstitutional, though it requires no great feat of imagination to envisage situations in which such an ordinance might be unconstitutionally applied.” Id., at 91. We nevertheless reversed the defendant’s conviction because it was not clear that the State had convicted the defendant under the ordinance as construed rather than as written. Id., at 91-92.13 Shuttlesworth, then, stands for the proposition that where a State Supreme Court narrows an unconstitutionally overbroad statute, the State must ensure that defendants are convicted under the statute as it is subsequently construed and not as it was originally written; this proposition in no way conflicts with our holding in this case.

Finally, despite Osborne’s contention to the contrary, we do not believe that Massachusetts v. Oakes, 491 U. S. 576 (1989), supports his theory of this case. In Oakes, the petitioner challenged a Massachusetts pornography statute as *119overbroad; since the time of the defendant’s alleged crime, however, the State had substantially narrowed the statute through a subsequent legislative enactment — an amendment to the statute. In a separate opinion, five Justices agreed that the state legislature could not cure the potential over-breadth problem through the subsequent legislative action; the statute was void as written. Id., at 585-586.

Osborne contends that Oakes stands for a similar but distinct proposition that, when faced with a potentially overinclusive statute, a court may not construe the statute to avoid overbreadth problems and then apply the statute, as construed, to past conduct. The implication of this argument is that if a statute is overbroad as written, then the statute is void and incurable. As a result, when reviewing a conviction under a potentially overbroad statute, a court must either affirm or strike down the statute on its face, but the court may not, as the Ohio Supreme Court did in this case, narrow the statute, affirm on the basis of the narrowing construction, and leave the statute in full force. We disagree.

First, as indicated by our earlier discussion, if we accepted this proposition, it would require a radical reworking of our law. Courts routinely construe statutes so as to avoid the statutes’ potentially overbroad reach, apply the statute in that case, and leave the statute in place. In Roth v. United States, 354 U. S. 476 (1957), for example, the Court construed the open-ended terms used in 18 U. S. C. § 1461, which prohibits the mailing of material that is “obscene, lewd, lascivious, indecent, filthy or vile.” Justice Harlan characterized Roth in this way:

“The words of §1461, ‘obscene, lewd, lascivious, indecent, filthy or vile,’ connote something that is portrayed in a manner so offensive as to make it unacceptable under current community mores. While in common usage the words have different shades of meaning, the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex. Although the *120statute condemns such material irrespective of the effect it may have upon those into whose hands it falls, the early case of United States v. Bennet, 24 Fed. Cas. 1093 (No. 14571), put a limiting gloss upon the statutory language: the statute reaches only indecent material which, as now expressed in Roth v. United States, supra, at 489, ‘taken as a whole appeals to prurient interest.’” Manuel Enterprises, Inc. v. Day, 370 U. S. 478, 482-484 (1962) (footnotes omitted; emphasis in original).

See also, Hamling, 418 U. S., at 112 (quoting the above). The petitioner’s conviction was affirmed in Roth, and federal obscenity law was left in force. 354 U. S., at 494.14 We, moreover, have long respected the State Supreme Courts’ ability to narrow state statutes so as to limit the statute’s, scope to unprotected conduct. See, e. g., Ginsberg v. New York, 390 U. S. 629 (1968).

Second, we do not believe that Oakes compels the proposition that Osborne urges us to accept. In Oakes, Justice Scalia, writing for himself and four others, reasoned:

“The overbreadth doctrine serves to protect constitutionally legitimate speech not merely ex post, that is, after the offending statute is enacted, but also ex ante, that is, when the legislature is contemplating what sort of statute to enact. If the promulgation of overbroad laws affecting speech was cost free . . . that is, if no conviction of constitutionally proscribable conduct would be *121lost, so long as the offending statute was narrowed before the final appeal . . . then legislatures would have significantly reduced incentive to stay within constitutional bounds in the first place. When one takes ac-' count of those overbroad statutes that are never challenged, and of the time that elapses before the ones that are challenged are amended to come within constitutional bounds, a substantial amount of legitimate speech would be ‘chilled’. . . .” 491 U. S., at 586 (emphasis in original).

In other words, five of the Oakes Justices feared that if we allowed a legislature to correct its mistakes without paying for them (beyond the inconvenience of passing a new law), we would decrease the legislature’s incentive to draft a narrowly tailored law in the first place.

Legislators who know they can cure their own mistakes by amendment without significant cost may not be as careful to avoid drafting overbroad statutes as they might otherwise be. But a similar effect will not be likely if a judicial construction of a statute to eliminate overbreadth is allowed to be applied in the case before the court. This is so primarily because the legislatures cannot be sure that the statute, when examined by a court, will be saved by a narrowing construction rather than invalidated for overbreadth. In the latter event, there could be no convictions under that law even of those whose own conduct is unprotected by the First Amendment. Even if construed to obviate overbreadth, applying the statute to pending cases might be barred by the Due Process Clause. Thus, careless drafting cannot be considered to be cost free based on the power of the courts to eliminate overbreadth by statutory construction.

There are also other considerations. Osborne contends that when courts construe statutes so as to eliminate over-breadth, convictions of those found guilty of unprotected conduct covered by the statute must be reversed and any fur*122ther convictions for prior reprehensible conduct are barred.15 Furthermore, because he contends that overbroad laws implicating First Amendment interests are nullities and incapable of valid application from the outset, this would mean that judicial construction could not save the statute even as applied to subsequent conduct unprotected by the First Amendment. The overbreadth doctrine, as we have recognized, is indeed “strong medicine,” Broadrick v. Oklahoma, 413 U. S., at 613, and requiring that statutes be facially invalidated whenever overbreadth is perceived would very likely invite reconsideration or redefinition of the doctrine in a way that would not serve First Amendment interests.16

III

Having rejected Osborne’s Stanley and overbreadth arguments, we now reach Osborne’s final objection to his conviction: his contention that he was denied due process because it is unclear that his conviction was based on a finding that each of the elements of § 2907.323(A)(3) was present.17 According *123to the Ohio Supreme Court, in order to secure a conviction under § 2907.323(A)(3), the State must prove both scienter and that the defendant possessed material depicting a lewd exhibition or a graphic focus on genitals. The jury in this case was not instructed that it could convict Osborne only for conduct that satisfied these requirements.

The State concedes the omissions in the jury instructions, but argues that Osborne waived his right to assert this due process challenge because he failed to object when the instructions were given at his trial. The Ohio Supreme Court so held, citing Ohio law. The question before us now, therefore, is whether we are precluded from reaching Osborne’s due process challenge because counsel’s failure to comply with the procedural rule constitutes an independent state-law ground adequate to support the result below. We have no difficulty agreeing with the State that Osborne’s counsel’s failure to urge that the court instruct the jury on scienter constitutes an independent and adequate state-law ground preventing us from reaching Osborne’s due process contention on that point. Ohio law states that proof of scienter is required in instances, like the present one, where a criminal statute does not specify the applicable mental state. See n. 9, supra. The state procedural rule, moreover, serves the State’s important interest in ensuring that counsel do their part in preventing trial courts from providing juries with erroneous instructions.

With respect to the trial court’s failure to instruct on lewdness, however, we reach a different conclusion: Based upon our review of the record, we believe that counsel’s failure to object on this point does not prevent us from considering Osborne’s constitutional claim. Osborne’s trial was brief: The State called only the two arresting officers to the stand; the defense summoned only Osborne himself. Right before trial, Osborne’s counsel moved to dismiss the case, contending *124that § 2907.323(A)(3) is unconstitutionally overbroad. Counsel stated:

“I’m filing a motion to dismiss based on the fact that [the] statute is void for vagueness, overbroad . . . The statute’s overbroad because ... a person couldn’t have pictures of his own grandchildren; probably couldn’t even have nude photographs of himself.

“Judge, if you had some nude photos of yourself when you were a child, you would probably be violating the law ....

“So grandparents, neighbors, or other people who happen to view the photograph are criminally liable under the statute. And on that basis I’m going to ask the Court to dismiss the case.” Tr. 3-4.

The prosecutor informed the trial judge that a number of Ohio state courts had recently rejected identical motions challenging § 2907.323(A)(3). Tr. 5-6. The court then overruled the motion. Id., at 7. Immediately thereafter, Osborne’s counsel proposed various jury instructions. Ibid.

Given this sequence of events, we believe that we may reach Osborne’s due process claim because we are convinced that Osborne’s attorney pressed the issue of the State’s failure of proof on lewdness before the trial court and, under the circumstances, nothing would be gained by requiring Osborne’s lawyer to object a second time, specifically to the jury instructions. The trial judge, in no uncertain terms, rejected counsel’s argument that the statute as written was overbroad. The State contends that counsel should then have insisted that the court instruct the jury on lewdness because, absent a finding that this element existed, a conviction would be unconstitutional. Were we to accept this position, we would “Torce resort to an arid ritual of meaningless form,’. . . and would further no perceivable state interest.” James v. Kentucky, 466 U. S. 341, 349 (1984), quoting Staub v. City of Baxley, 355 U. S. 313, 320 (1958), and citing Henry *125v. Mississippi, 379 U. S. 443, 448-449 (1965). As Justice Holmes warned us years ago, “[w]hatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.” Davis v. Wechsler, 263 U. S. 22, 24 (1923).

Our decision here is analogous to our decision in Douglas v. Alabama, 380 U. S. 415 (1965). In that case, the Alabama Supreme Court had held that a defendant had waived his Confrontation Clause objection to the reading into evidence of a confession that he had given. Although not following the precise procedure required by Alabama law,18 the defendant had unsuccessfully objected to the prosecution’s use of the confession. We followed “our consistent holdings that the adequacy of state procedural bars to the assertion of federal questions is itself a federal question” and stated that “[i]n determining the sufficiency of objections we have applied the general principle that an objection which is ample and timely to bring the alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to serve legitimate state interests, and therefore sufficient to preserve the claim for review here.” Id., at 422. Concluding that “[n]o legitimate state interest would have been served by requiring repetition of a patently futile objection,” we held that the Alabama procedural ruling did not preclude our consideration of the defendant’s constitutional claim. Id., at 421-422. We reach a similar conclusion in this case.

IV

To conclude, although we find Osborne’s First Amendment arguments unpersuasive, we reverse his conviction and re*126mand for a new trial in order to ensure that Osborne’s conviction stemmed from a finding that the State had proved each of the elements of § 2907.323(A)(3).

So ordered.

Justice Blackmun,

concurring.

I join the Court’s opinion. I write separately only to express my agreement with Justice Brennan, see post, at 146, n. 20, that this Court’s ability to entertain Osborne’s due process claim premised on the failure of the trial court to charge the “lewd exhibition” and “graphic focus” elements does not depend upon his objection to this failure at trial.

Justice Brennan,

with whom Justice Marshall and Justice Stevens join,-dissenting.

I agree with the Court that appellant’s conviction must be reversed. I do not agree, however, that Ohio is free on remand to retry him under Ohio Rev. Code Ann. §2907.323(A)(3) (Supp. 1989) as it currently exists. In my view, the state law, even as construed authoritatively by the Ohio Supreme Court, is still fatally overbroad, and our decision in Stanley v. Georgia, 394 U. S. 557 (1969), prevents the State from criminalizing appellant’s possession of the photographs at issue in this case. I therefore respectfully dissent.

I

A

As written, the Ohio statute is plainly overbroad. Section 2907.323(A)(3) makes it a crime to “[pjossess or view any material or performance that shows a minor who is not the person’s child or ward in a state of nudity.” Another section 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 *127below the top of the nipple, or of covered male genitals in a discernibly turgid state.” §2907.01(H).

In short, §§2907.323 and 2907.01(H) use simple nudity, without more, as a way of defining child pornography.1 But as our prior decisions have made clear, “ ‘nudity alone’ does not place otherwise protected material outside the mantle of the First Amendment.” Schad v. Mount Ephraim, 452 U. S. 61, 66 (1981) (quoting Jenkins v. Georgia, 418 U. S. 153, 161 (1974)); see also FW/PBS, Inc. v. Dallas, 493 U. S. 215, 224 (1990) (plurality opinion); id., at 238, n. 1 (Brennan, J., concurring in judgment); Doran v. Salem Inn, Inc., 422 U. S. 922, 932-933 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557-558 (1975); California v. LaRue, 409 U. S. 109, 118 (1972). In Erznoznik v. City of Jacksonville, 422 U. S. 205, 213 (1975), for example, we invalidated an ordinance that “would [have] bar[red] a film containing a picture of a baby’s buttocks, the nude body of a war victim, or scenes from a culture in which nudity is indigenous. The ordinance also might [have] prohibited] newsreel scenes of the opening of an art exhibit as well as shots of bathers on a beach.” The Ohio law as written has the same broad coverage and is similarly unconstitutional.2

*128B

Wary of the statute’s use of the “nudity” standard, the Ohio Supreme Court construed § 2907.323(A)(3) to apply only “where such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals.” State v. Young, 37 Ohio St. 3d 249, 252, 525 N. E. 2d 1363, 1368 (1988). The “lewd exhibition” and “graphic focus” tests not only fail to cure the over-breadth of the statute, but they also create a new problem of vagueness.

1

The Court dismisses appellant’s overbreadth contention in a single cursory paragraph. Relying exclusively on our previous decision in New York v. Ferber, 458 U. S. 747 (1982),3 *129the majority reasons that the “lewd exhibition” standard adequately narrows the statute’s ambit because “[w]e have upheld similar language against overbreadth challenges in the past.” Ante, at 114. The Court’s terse explanation is unsatisfactory, since Ferber involved a law that differs in crucial respects from the one here.

The New York law at issue in Ferber criminalized the use of a child in a “‘[sjexual performance,”’ defined as “‘any performance or part thereof which includes sexual conduct by a child less than sixteen years of age.’” 458 U. S., at 751 (quoting N. Y. Penal Law § 263.00(1) (McKinney 1980)). “‘ “Sexual conduct’”” was in turn defined as “‘actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.’” 458 U. S., at 751 (quoting §263.00 (3)). Although we acknowledged that “nudity, without more[,] is protected expression,” id., at 765, n. 18, we found that the statute was not overbroad because only “a tiny fraction of materials within the statute’s reach” was constitutionally protected. Id., at 773; see also id., at 776 (Brennan, J., concurring in judgment). We therefore upheld the conviction of a bookstore proprietor who sold films depicting young boys masturbating.

The Ohio law is distinguishable for several reasons. First, the New York statute did not criminalize materials with a “graphic focus” on the genitals, and, as discussed further below, Ohio’s “graphic focus” test is impermissibly capacious. Even setting aside the “graphic focus” element, the Ohio Supreme Court’s narrowing construction is still overbroad because it focuses on “lewd exhibitions of nudity” rather than “lewd exhibitions of the genitals” in the context of sexual conduct, as in the New York statute at issue in Ferber.4 *130Ohio law defines “nudity” to include depictions of pubic areas, buttocks, the female breast, and covered male genitals “in a discernibly turgid state,” as well as depictions of the genitals. On its face, then, the Ohio law is much broader than New York’s.

In addition, whereas the Ohio Supreme Court’s interpretation uses the “lewd exhibition of nudity” test standing alone, the New York law employed the phrase “‘lewd exhibition of *131the genitals’” in the context of a longer list of examples of sexual conduct: ‘“actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, [and] sado-masochistic abuse.’” 458 U. S., at 751. This syntax was important to our decision in Ferber. We recognized the potential for impermissible applications of the New York statute, see id., at 773, but in view of the examples of “sexual conduct” provided by the statute, we were willing to assume that the New York courts would not “widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on ‘lewd exhibition^] of the genitals.’” Ibid, (emphasis added). In the Ohio statute, of course, there is no analog to the elaborate definition of “sexual conduct” to serve as a similar limit. Hence, while the New York law could be saved at least in part by the notion of ejusdem generis, see 2A C. Sands, Sutherland on Statutory Construction §47.17, p. 166 (4th ed. 1984), the Ohio Supreme Court’s construction of its law cannot.

Indeed, the broad definition of nudity in the Ohio statutory scheme means that “child pornography” could include any photograph depicting a “lewd exhibition” of even a small portion of a minor’s buttocks or any part of the female breast below the nipple. Pictures of topless bathers at a Mediterranean beach, of teenagers in revealing dresses, and even of toddlers romping unclothed, all might be prohibited.5 Fur*132thermore, the Ohio law forbids not only depictions of nudity per se, but also depictions of the buttocks, breast, or pubic area with less than a “full, opaque covering.” Thus, pictures of fashion models wearing semitransparent clothing might be illegal,6 as might a photograph depicting a fully clad male that nevertheless captured his genitals “in a discernibly turgid state.” The Ohio statute thus sweeps in many types of materials that are not “child pornography,” as we used that term in Ferber, but rather that enjoy full First Amendment protection.

It might be objected that many of these depictions of nudity do not amount to “lewd exhibitions.” But in the absence of any authoritative definition of that phrase by the Ohio Supreme Court, we cannot predict which ones. Many would characterize a photograph of a seductive fashion model or alluringly posed adolescent on a topless European beach as “lewd,” although such pictures indisputably enjoy constitutional protection. Indeed, some might think that any nudity, especially that involving a minor, is by definition “lewd,” yet this Court has clearly established that nudity is not ex-*133eluded automatically from the scope of the First Amendment. The Court today is unable even to hazard a guess as to what a “lewd exhibition” might mean; it is forced to rely entirely on an inapposite case — Ferber—that simply did not discuss, let alone decide, the central issue here.

The Ohio Supreme Court provided few clues as to the meaning of the phrase “lewd exhibition of nudity.” The court distinguished “child pornography” from “obscenity,” see 37 Ohio St. 3d, at 257, 525 N. E. 2d, at 1372, thereby implying that it did not believe that an exhibition was required to be “obscene” in order to qualify as “lewd.”7 But it supplied no authoritative definition — a disturbing omission in light of the absence of the phrase “lewd exhibition” from the statutory definition section of the Sex Offenses chapter of the Ohio Revised Code. See §2907.01.8 In fact, the word *134“lewd” does not appear in the statutory definition of any crime involving obscenity or other sexually oriented materials in the Ohio Revised Code. See §§2907.31-2907.35. *135Thus, when the Ohio Supreme Court grafted the “lewd exhibition” test onto the definition of nudity, it was venturing into uncharted territory.9

Moreover, there is no longstanding, commonly understood definition of “lewd” upon which the Ohio Supreme Court’s construction might be said to draw that can save the “lewd exhibition” standard from impermissible vagueness.10 At *136common law, the term “lewd” included “any gross indecency so notorious as to tend to corrupt community morals,” Collins v. State, 160 Ga. App. 680, 682, 288 S. E. 2d 43, 45 (1981), an approach that was “subjective” and dependent entirely on a speaker’s “social, moral, and cultural bias.” Morgan v. Detroit, 389 F. Supp. 922, 930 (ED Mich. 1975).11 Not surprisingly, States with long experience in applying indecency laws have learned that the word “lewd” is “too indefinite and uncertain to be enforceable.” Courtemanche v. State, 507 S. W. 2d 545, 546 (Tex. Cr. App. 1974). See also Attwood v. Purcell, 402 F. Supp. 231, 235 (Ariz. 1975); District of Columbia v. Walters, 319 A. 2d 332, 335-336 (D. C. 1974). The term is often defined by reference to such pejorative synonyms as “‘lustful, lascivious, unchaste, wanton, or loose in morals and conduct.’” People v. Williams, 59 Cal. App. 3d 225, 229, 130 Cal. Rptr. 460, 462 (1976). But “the very phrases and synonyms through which meaning is purportedly ascribed serve to obscure rather than clarify.” State v. Kueny, 215 N. W. 2d 215, 217 (Iowa 1974). “To instruct the jury that a ‘lewd or dissolute’ act is one which is morally ‘loose,’ or ‘lawless,’ or ‘foul’ piles additional un*137certainty upon the already vague words of the statute. In short, vague statutory language is not rendered more precise by defining it in terms of synonyms of equal or greater uncertainty.” Pryor v. Municipal Court for Los Angeles, 25 Cal. 3d 238, 249, 599 P. 2d 636, 642 (1979).

The Ohio Supreme Court, moreover, did not specify the perspective from which “lewdness” is to be determined. A “reasonable” person’s view of “lewdness”? A reasonable pedophile’s? An “average” person applying contemporary local community standards? Statewide standards? Nationwide standards? Cf. Sable Communications of California, Inc. v. FCC, 492 U. S. 115, 133-134 (1989); Pope v. Illinois, 481 U. S. 497, 500-501 (1987); Pinkus v. United States, 436 U. S. 293, 302-303 (1978); Smith v. United States, 431 U. S. 291, 300, n. 6 (1977); Miller v. California, 413 U. S. 15, 24 (1973); Mishkin v. New York, 383 U. S. 502, 508 (1966). In sum, the addition of a “lewd exhibition” standard does not narrow adequately the statute’s reach. If anything, it creates a new problem of vagueness, affording the public little notice of the statute’s ambit and providing an avenue for “ ‘policemen, prosecutors, and juries to pursue their personal predilections.’” Kolender v. Lawson, 461 U. S. 352, 358 (1983) (quoting Smith v. Goguen, 415 U. S. 566, 575 (1974)); see also Houston v. Hill, 482 U. S. 451, 465, and n. 15 (1987).12 Given the important First Amendment interests *138at issue, the vague, broad sweep of the “lewd exhibition” language means that it cannot cure § 2907.323(A)(3)’s overbreadth.

2

The Ohio Supreme Court also added a “graphic focus” element to the nudity definition. This phrase, a stranger to obscenity regulation, suffers from the same vagueness difficulty as “lewd exhibition.” Although the Ohio Supreme Court failed to elaborate what a “graphic focus” might be, the test appears to involve nothing more than a subjective estimation of the centrality or prominence of the genitals in a picture or other representation. Not only is this factor dependent on the perspective and idiosyncrasies of the observer, it also is unconnected to whether the material at issue merits constitutional protection. Simple nudity, no matter how prominent or “graphic,” is within the bounds of the First Amendment. Michelangelo’s “David” might be said to have a “graphic focus” on the genitals, for it plainly portrays them in a manner unavoidable to even a casual observer. Similarly, a painting of a partially clad girl could be said to involve a “graphic focus,” depending on the picture’s lighting and emphasis,13 as could the depictions of nude children on the friezes that adorn our courtroom. Even a photograph of a child running naked on the beach or playing in the bathtub might run afoul of the law, depending on the focus and camera angle.

In sum, the “lewd exhibition” and “graphic focus” tests are too vague to serve as any workable limit. Because the stat*139ute, even as construed authoritatively by the Ohio Supreme Court, is impermissibly overbroad, I would hold that appellant cannot be retried under it.14

II

Even if the statute was not overbroad, our decision in Stanley v. Georgia, 394 U. S. 557 (1969), forbids the criminalization of appellant’s private possession in his home of the materials at issue. “If the First Amendment means anything, it means that the State has no business telling a mán, sitting alone in his own house, what books he may read or what films he may watch.” Id., at 565. Appellant was convicted for possessing four photographs of nude minors, seized from a desk drawer in the bedroom of his house during a search executed pursuant to a warrant. Appellant testified that he had been given the pictures in his home by a friend. There was no evidence that the photographs had been produced commercially or distributed. All were kept in an album that appellant had assembled for his personal use and had possessed privately for several years.

In these circumstances, the Court’s focus on Ferber rather than Stanley is misplaced. Ferber held only that child pornography is “a category of material the production and distribution of which is not entitled to First Amendment protection,” 458 U. S., at 765 (emphasis added); our decision did not extend to private possession. The authority of a State to regulate the production and distribution of such materials is *140not dispositive of its power to penalize possession.15 Indeed, in Stanley we assumed that the films at issue were obscene and that their production, sale, and distribution thus could have been prohibited under our decisions. See 394 U. S., at 559, n. 2. Nevertheless, we reasoned that although the States “retain broad power to regulate obscenity” — and child pornography as well — “that power simply does not extend to mere possession by the individual in the privacy of his own home.” Id., at 568. Ferber did nothing more than place child pornography on the same level of First Amendment protection as obscene adult pornography, meaning that its production and distribution could be proscribed. The distinction established in Stanley between what materials may be regulated and how they may be regulated still stands. See United States v. Miller, 776 F. 2d 978, 980, n. 4 (CA11 1985) (per curiam); People v. Keyes, 135 Misc. 2d 993, 995, 517 N. Y. S. 2d 696, 698 (1987). As Justice White remarked in a different context: “The personal constitutional rights of those like Stanley to possess and read obscenity in their homes and their freedom of mind and thought do not depend on whether the materials are obscene or whether obscenity is constitutionally protected. Their rights to have and view that material in private are independently saved by *141the Constitution.” United States v. Reidel, 402 U. S. 351, 356 (1971).

The Court today finds Stanley inapposite on the ground that “the interests underlying child pornography prohibitions far exceed the interests justifying the Georgia law at issue in Stanley.” Ante, at 108. The majority’s analysis does not withstand scrutiny.16 While the sexual exploitation of children is undoubtedly a serious problem, Ohio may employ other weapons to combat it. Indeed, the State already has enacted a panoply of laws prohibiting the creation, sale, and distribution of child pornography and obscenity involving minors. See n. 1, supra. Ohio has not demonstrated why these laws are inadequate and why the State must forbid mere possession as well.

The Court today speculates that Ohio “will decrease the production of child pornography if it penalizes those who *142possess and view the product, thereby decreasing demand.” Ante, at 109-110. Criminalizing possession is thought necessary because “since the time of our decision in Ferber, much of the child pornography market has been driven underground; as a result, it is now difficult, if not impossible, to solve the child pornography problem by only attacking production and distribution.” Ante, at 110-111. As support, the Court notes that 19 States have “found it necessary” to prohibit simple possession. Ibid. Even were I to accept the Court’s empirical assumptions,171 would find the Court’s *143approach foreclosed by Stanley, which rejected precisely the same contention Ohio makes today:

“[W]e are faced with the argument that prohibition of possession of obscene materials is a necessary incident to Statutory schemes prohibiting distribution. That argument is based on alleged difficulties of proving an intent to distribute or in producing evidence of actual distribution. We are not convinced that such difficulties exist, but even if they did we do not think that they would justify infringement of the individual’s right to read or observe what he pleases. Because that right is so fundamental to our scheme of individual liberty, its restriction may not be justified by the need to ease the administration of otherwise valid criminal laws.” 394 U. S., at 567-568.

At bottom, the Court today is so disquieted by the possible exploitation of children in the production of the pornography that it is willing to tolerate the imposition of criminal penalties for simple possession,18 While I share the majority’s *144concerns, I do not believe that it has struck the proper balance between the First Amendment and the State’s interests, especially in light of the other means available to Ohio to *145protect children from exploitation and the State’s failure to demonstrate a causal link between a ban on possession of child pornography and a decrease in its production.19 “The existence of the State’s power to prevent the distribution of obscene matter” — and of child pornography — “does not mean that there can be no constitutional barrier to any form of practical exercise of that power.” Smith v. California, 361 U. S. 147, 155 (1959).

Ill

Although I agree with the Court’s conclusion that appellant’s conviction must be reversed because of a violation of due process, I do not subscribe to the Court’s reasoning regarding the adequacy of appellant’s objections at trial. See ante, at 122-125. The majority determines that appellant’s due process rights were violated because the jury was not instructed according to the interpretation of § 2907.323(A)(3) adopted by the Ohio Supreme Court on appeal. That is to say, the jury was not told that “the State must prove both scienter and that the defendant posssessed material depicting a lewd exhibition or a graphic focus on genitals.” Ante, at 123. The Court finds that appellant’s challenge to the trial court’s failure to charge the “lewd exhibition” and “graphic focus” elements is properly before us, because appellant objected at trial to the overbreadth of § 2907.323(A)(3). See *146 ante, at 123-124. I agree with the Court’s conclusion that we may reach the merits of appellant’s claim on this point.20

But the Court does not rest there. Instead, in what is apparently dictum given its decision to reverse appellant’s conviction on the basis of the first due process claim, the Court maintains that a separate due process challenge by appellant arising from the Ohio Supreme Court’s addition of a scienter element is procedurally barred because appellant failed to ob-. ject at trial to the absence of a scienter instruction. The Court maintains that §2907.323(A)(3) must be interpreted in light of § 2901.21(B) of the Ohio Revised Code, which provides that recklessness is the appropriate mens rea where a statute ‘“neither specifies culpability nor plainly indicates a purpose to impose strict liability.’” Ante, at 113, n. 9, and *147122-123. I cannot agree with this gratuitous aspect of the Court’s reasoning.

First, the overbreadth contention voiced by appellant must be read as fairly encompassing an objection both to the lack of an intent requirement and to the definition of “nudity.” Appellant objected to, inter alia, the criminalization of the “mere possession or viewing of a photograph,” without the need for the State to show additional elements. Tr. 4. A natural inference from this language is that intent is one of the additional elements that the State should have been required to prove. There is no need to demand any greater precision from a criminal defendant, and in my judgment the overbreadth challenge was sufficient, as a matter of federal law, to preserve the due process claim arising from the addition of a scienter element. As the majority acknowledges, our decision in Ferber mandated that “prohibitions on child pornography include some element of scienter.” Ante, at 115 (citing Ferber, 458 U. S., at 765). In Ferber we recognized that adding an intent requirement was part of the process of narrowing an otherwise overbroad statute, and appellant’s contention that the statute was overbroad should be interpreted in that light. I find the Ohio Supreme Court’s logic internally contradictory: In one breath it adopted a scienter requirement of recklessness to narrow the statute in response to appellant’s overbreadth challenge, and then, in the next breath, it insisted that appellant had failed to object to the lack of a scienter element.

Second, even if appellant had failed to object at trial to the failure of the jury instructions to include a scienter element, I cannot agree with the reasoning of the Ohio Supreme Court, unquestioned by the majority today, that “the omission of the element of recklessness [did] not constitute plain error.” 37 Ohio St. 3d, at 254, 525 N. E. 2d, at 1370. To the contrary, a judge’s failure to instruct the jury on every element of an offense violates a “‘bedrock, “axiomatic and elementary” [constitutional] principle,’” Francis v. Franklin, 471 U. S. *148307, 313 (1985) (quoting In re Winship, 397 U. S. 358, 363 (1970)), and is cognizable on appeal as plain error. Cf. Carella v. California, 491 U. S. 263, 268-269 (1989) (Scalia, J., concurring in judgment); Rose v. Clark, 478 U. S. 570, 580, n. 8 (1986)); Connecticut v. Johnson, 460 U. S. 73, 85-86 (1983) (plurality opinion); Jackson v. Virginia, 443 U. S. 307, 320, n. 14 (1979). “[W]here the error is so fundamental as not to submit to the jury the essential ingredients of the only offense on which the conviction could rest,... it is necessary to take note of it on our own motion.” Screws v. United States, 325 U. S. 91, 107 (1945) (plurality opinion).

Thus, I would find properly before us appellant’s due process challenge arising from the addition of the scienter element, as well as his claim stemming from the creation of the “lewd exhibition” and “graphic focus” tests.

IV

When speech is eloquent and the ideas expressed lofty, it is easy to find restrictions on them invalid. But were the First Amendment limited to such discourse, our freedom would be sterile indeed. Mr. Osborne’s pictures may be distasteful, but the Constitution guarantees both his right to possess them privately and his right to avoid punishment under an overbroad law. I respectfully dissent.

*162Justice O’Connor

delivered the opinion of the Court.

Petitioners were convicted of manufacturing and conspiring to manufacture “Euphoria,” a drug temporarily designated as a schedule I controlled substance pursuant to § 201(h) of the Controlled Substances Act, 98 Stat. 2071, 21 U. S. C. § 811(h). We consider whether § 201(h) unconstitutionally delegates legislative power to the Attorney General and whether the Attorney General’s subdelegation to the Drug Enforcement Administration (DEA) was authorized by statute.

I

In 1970, Congress enacted the Controlled Substances Act (Act), 84 Stat. 1242, as amended, 21 U. S. C. §801 et seq. The Act establishes five categories or “schedules” of controlled substances, the manufacture, possession, and distribution of which the Act regulates or prohibits. Violations involving schedule I substances carry the most severe penalties, as these substances are believed to pose the most serious threat to public safety. Relevant here, § 201(a) of the Act authorizes the Attorney General to add or remove substances, or to move a substance from one schedule to another. § 201(a), 21 U. S. C. § 811(a).

When adding a substance to a schedule, the Attorney General must follow specified procedures. First, the Attorney General must request a scientific and medical evaluation from the Secretary of Health and Human Services (HHS), together with a recommendation as to whether the substance should be controlled. A substance cannot be scheduled if the Secretary recommends against it. § 201(b), 21 U. S. C. § 811(b). Second, the Attorney General must consider eight factors with respect to the substance, including its potential for abuse, scientific evidence of its pharmacological effect, its psychic or physiological dependence liability, and whether the substance is an immediate precursor of a substance already controlled. § 201(c), 21 U. S. C. § 811(c). Third, the Attorney General must comply with the notice-and-hearing *163provisions of the Administrative Procedure Act (APA), 5 U. S. C. §§551-559, which permit comment by interested parties. § 201(a), 21 U. S. C. § 811(a). In addition, the Act permits any aggrieved person to challenge the scheduling of a substance by the Attorney General in a court of appeals. §507, 21 U. S. C. §877.

It takes time to comply with these procedural requirements. From the time when law enforcement officials identify a dangerous new drug, it typically takes 6 to 12 months to add it to one of the schedules. S. Rep. No. 98-225, p. 264 (1984). Drug traffickers were able to take advantage of this time gap by designing drugs that were similar in pharmacological effect to scheduled substances but differed slightly in chemical composition, so that existing schedules did not apply to them. These “designer drugs” were developed and widely marketed long before the Government was able to schedule them and initiate prosecutions. See ibid.

To combat the “designer drug” problem, Congress in 1984 amended the Act to create an expedited procedure by which the Attorney General can schedule a substance on a temporary basis when doing so is “necessary to avoid an imminent hazard to the public safety.” §201(h), 21 U. S. C. § 811(h). Temporary scheduling under § 201(h) allows the Attorney General to bypass, for a limited time, several of the requirements for permanent scheduling. The Attorney General need consider only three of the eight factors required for permanent scheduling. § 201(h)(3), 21 U. S. C. § 811(h)(3). Rather than comply with the APA notice-and-hearing provisions, the Attorney General need provide only a 30-day notice of the proposed scheduling in the Federal Register. § 201(h)(1), 21- U. S. C. § 811(h)(1). Notice also must be transmitted to the Secretary of HHS, but the Secretary’s prior approval of a proposed scheduling order is not required. See § 201(h)(4), 21 U. S. C. § 811(h)(4). Finally, § 201(h)(6), 21 U. S. C. § 811(h)(6), provides that an order to schedule a substance temporarily “is not subject to judicial review.”

*164Because it has fewer procedural requirements, temporary scheduling enables the Government to respond more quickly to the threat posed by dangerous new drugs. A temporary scheduling order can be issued 30 days after a new drug is identified, and the order remains valid for one year. During this 1-year period, the Attorney General presumably will initiate the permanent scheduling process, in which case the temporary scheduling order remains valid for an additional six months. § 201(h)(2), 21 U. S. C. § 811(h)(2).

The Attorney General promulgated regulations delegating to the DEA his powers under the Act, including the power to schedule controlled substances on a temporary basis. See 28 CFR § 0.100(b) (1990). Pursuant to that delegation, the DEA Administrator issued an order scheduling temporarily 4-methylaminorex, known more commonly as “Euphoria,” as a schedule I controlled substance. 52 Fed. Reg. 38225 (1987). The Administrator subsequently initiated formal rulemaking procedures, following which Euphoria was added permanently to schedule I.

While the temporary scheduling order was in effect, DEA agents, executing a valid search warrant, discovered a fully operational drug laboratory in Daniel and Lyrissa Touby’s home. The Toubys were indicted for manufacturing and conspiring to manufacture Euphoria. They moved to dismiss the indictment on the grounds that § 201(h) unconstitutionally delegates legislative power to the Attorney General, and that the Attorney General improperly delegated his temporary scheduling authority to the DEA. The United States District Court for the District of New Jersey denied the motion to dismiss, 710 F. Supp. 551 (1989); and the Court of Appeals for the Third Circuit affirmed petitioners’ subsequent convictions, 909 F. 2d 759 (1990). We granted certiorari, 498 U. S. 1046 (1991), and now affirm.

II

The Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United *165States.” U. S. Const., Art. I, § 1. From this language the Court has derived the nondelegation doctrine: that Congress may not constitutionally delegate its legislative power to another branch of Government. “The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government.” Mistretta v. United States, 488 U. S. 361, 371 (1989).

We have long recognized that the nondelegation doctrine does not prevent Congress from seeking assistance, within proper limits, from its coordinate Branches. Id., at 372. Thus, Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors. So long as Congress “lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power.” J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409 (1928).

Petitioners wisely concede that Congress has set forth in § 201(h) an “intelligible principle” to constrain the Attorney General’s discretion to schedule controlled substances on a temporary basis. We have upheld as providing sufficient guidance statutes authorizing the War Department to recover “excessive profits” earned on military contracts, see Lichter v. United States, 334 U. S. 742, 778-786 (1948); authorizing the Price Administrator to fix “fair and equitable” commodities prices, see Yakus v. United States, 321 U. S. 414, 426-427 (1944); and authorizing the Federal Communications Commission to regulate broadcast licensing in the “public interest,” see National Broadcasting Co. v. United States, 319 U. S. 190, 225-226 (1943). In light of these precedents, one cannot plausibly argue that § 201(h)’s “imminent hazard to the public safety” standard is not an intelligible principle.

Petitioners suggest, however, that something more than an “intelligible principle” is required when Congress authorizes another Branch to promulgate regulations that con*166template criminal sanctions. They contend that regulations of this sort pose a heightened risk to individual liberty and that Congress must therefore provide more specific guidance. Our cases are not entirely clear as to whether more specific guidance is in fact required. Compare Fahey v. Mallonee, 332 U. S. 245, 249-250 (1947), cited in Mistretta, supra, at 373, n. 7, with Yakus, supra, at 423-427, and United States v. Grimaud, 220 U. S. 506, 518, 521 (1911). We need not resolve the issue today. We conclude that § 201(h) passes muster even if greater congressional specificity is required in the criminal context.

Although it features fewer procedural requirements than the permanent scheduling statute, § 201(h) meaningfully constrains the Attorney General’s discretion to define criminal conduct. To schedule a drug temporarily, the Attorney General must find that doing so is “necessary to avoid an imminent hazard to the public safety.” § 201(h)(1), 21 U. S. C. § 811(h)(1). In making this determination, he is “required to consider” three factors: the drug’s “history and current pattern of abuse”; “[t]he scope, duration, and significance of abuse”; and “[w]hat, if any, risk there is to the public health.” §§201(c)(4)-(6), 201(h)(3), 21 U. S. C. §§ 811(c)(4)-(6), 811(h)(3). Included within these factors are three other factors on which the statute places a special emphasis: “actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution.” § 201(h)(3), 21 U. S. C. § 811(h)(3). The Attorney General also must publish 30-day notice of the proposed scheduling in the Federal Register, transmit notice to the Secretary of HHS, and “take into consideration any comments submitted by the Secretary in response.” §§ 201(h)(1), 201(h)(4), 21 U. S. C. §§ 811(h)(1), 811(h)(4).

In addition to satisfying the numerous requirements of § 201(h), the Attorney General must satisfy the requirements of § 202(b), 21 U. S. C. § 812(b). This section identifies the criteria for adding a substance to each of the five schedules. *167As the United States acknowledges in its brief, § 202(b) speaks in mandatory terms, drawing no distinction between permanent and temporary scheduling. With exceptions not pertinent here, it states that “a drug or other substance may not be placed in any schedule unless the findings required for such schedule are made with respect to such drug or other substance.” §202(b), 21 U. S. C. § 812(b). Thus, apart from the “imminent hazard” determination required by § 201(h), the Attorney General, if he wishes to add temporarily a drug to schedule I, must find that it “has a high potential for abuse,” that it “has no currently accepted medical use in treatment in the United States,” and that “[t]here is a lack of accepted safety for use of the drug . . . under medical supervision.” § 202(b)(1), 21 U. S. C. § 812(b)(1).

It is clear that in §§ 201(h) and 202(b) Congress has placed multiple specific restrictions on the Attorney General’s discretion to define criminal conduct. These restrictions satisfy the constitutional requirements of the nondelegation doctrine.

Petitioners point to two other aspects of the temporary scheduling statute that allegedly render it unconstitutional. They argue first that it concentrates too much power in the Attorney General. Petitioners concede that Congress may legitimately authorize someone in the Executive Branch to schedule drugs temporarily, but argue that it must be someone other than the Attorney General because he wields the power to prosecute crimes. They insist that allowing the Attorney General both to schedule a particular drug and to prosecute those who manufacture that drug violates the principle of separation of powers. Petitioners do not object to the permanent scheduling statute, however, because it gives “veto power” to the Secretary of HHS. Brief for Petitioners 20.

This argument has no basis in our separation-of-powers jurisprudence. The principle of separation of powers focuses on the distribution of powers among the three coequal *168Branches, see Mistretta, 488 U. S., at 382; it does not speak to the manner in which authority is parceled out within a single Branch. The Constitution vests all executive power in the President, U. S. Const., Art. II, § 1, and it is the President to whom both the Secretary and the Attorney General report. Petitioners’ argument that temporary scheduling authority should have been vested in one executive officer rather than another does not implicate separation-of-powers concerns; it merely challenges the wisdom of a legitimate policy judgment made by Congress.

Petitioners next argue that the temporary scheduling statute is unconstitutional because it bars judicial review. They explain that the purpose of requiring an “intelligible principle” is to permit a court to “‘ascertain whether the will of Congress has been obeyed.’” Skinner v. Mid-America Pipeline Co., 490 U. S. 212, 218 (1989), quoting Yakus, supra, at 426. By providing that a temporary scheduling order “is not subject to judicial review,” § 201(h)(6), the Act purportedly violates the nondelegation doctrine.

We reject petitioners’ argument. Although § 201(h)(6), 21 U. S. C. § 811(h)(6), states that a temporary scheduling order “is not subject to judicial review,” another section of the Act plainly authorizes judicial review of a permanent scheduling order. See § 507, 21 U. S. C. § 877. Thus, the effect of § 201(h)(6) is merely to postpone legal challenges to a scheduling order for up to 18 months, until the administrative process has run its course. This is consistent with Congress’ express desire to permit the Government to respond quickly to the appearance in the market of dangerous new drugs. Even before a permanent scheduling order is entered, judicial review is possible under certain circumstances. The United States contends, and we agree, that § 201(h)(6) does not preclude an individual facing criminal charges from bringing a challenge to a temporary scheduling order as a defense to prosecution. See Brief for United States 34-36. This is sufficient to permit a court to “ ‘ascertain whether the will of *169Congress has been obeyed.’” Skinner, supra, at 218, quoting Yakus, 321 U. S., at 426. Under these circumstances, the nondelegation doctrine does not require, in addition, an opportunity for preenforcement review of administrative determinations.

Ill

Having concluded that Congress did not unconstitutionally delegate legislative power to the Attorney General, we consider petitioners’ claim that the Attorney General improperly delegated his temporary scheduling power to the DEA. Petitioners insist that delegation within the Executive Branch is permitted only to the extent authorized by Congress, and that Congress did not authorize the delegation of temporary scheduling power from the Attorney General to the DEA.

We disagree. Section 501(a) of the Act states plainly that “[t]he Attorney General may delegate any of his functions under [the Controlled Substances Act] to any officer or employee of the Department of Justice.” 21 U. S. C. § 871(a). We have interpreted § 501(a) to permit the delegation of any function vested in the Attorney General under the Act unless a specific limitation on that delegation authority appears elsewhere in the statute. See United States v. Giordano, 416 U. S. 505, 512-514 (1974). No such limitation appears with regard to the Attorney General’s power to schedule drugs temporarily under § 201(h).

The judgment of the Court of Appeals is

Affirmed.

Justice Marshall,

with whom Justice Blackmun joins, concurring.

I join the Court’s opinion but write separately to emphasize two points underlying my vote. The first is my conclusion that the opportunity of a defendant to challenge the substance of a temporary scheduling order in the course of a criminal prosecution is essential to the result in this case. Section 811(h)(6) of Title 21 U. S. C. expressly prohibits di*170rect review of a temporary scheduling order in the Court of Appeals but says nothing about judicial review of such an order in other settings. Under established rules of construction, we must presume from Congress’ silence on the matter that it did not intend to foreclose review in the enforcement context. See Estep v. United States, 327 U. S. 114, 120-122 (1946). See generally McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 496 (1991); Abbott Laboratories v. Gardner, 387 U. S. 136, 140-141 (1967). An additional consideration reinforces this principle here. As the Court notes, judicial review perfects a delegated-lawmaking scheme by assuring that the exercise of such power remains within statutory bounds. See, e. g., Skinner v. Mid-America Pipeline Co., 490 U. S. 212, 218-219 (1989). Because of the severe impact of criminal laws on individual liberty, I believe that an opportunity to challenge a delegated lawmaker’s compliance with congressional directives is a constitutional necessity when administrative standards are enforced by criminal law. Cf. United States v. Mendoza-Lopez, 481 U. S. 828, 837-839 (1987); Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1379-1383 (1953). We must therefore read the Controlled Substances Act as preserving judicial review of a temporary scheduling order in the course of a criminal prosecution in order to save the Act’s delegation of lawmaking power from unconstitutionality. Cf. Webster v. Doe, 486 U. S. 592, 603-604 (1988).

The second point that I wish to emphasize is my understanding of the breadth of the Court’s constitutional holding. I agree that the separation of powers doctrine relates only to the allocation of power betiveen the Branches, not the allocation of power within a single Branch. But this conclusion by no means suggests that the Constitution as a whole is indifferent to how permissibly delegated powers are distributed within the Executive Branch. In particular, the Due Process Clause limits the extent to which prosecutorial and *171other functions may be combined in a single actor. See, e. g., Morrissey v. Brewer, 408 U. S. 471, 485-487 (1972). Petitioners raise no due process challenge in this case, and I do not understand anything in today’s decision as detracting from the teachings of our due process jurisprudence generally.

OPINION

HANSON, Justice.

Appellant was convicted of third-degree possession of a controlled substance within a school zone. He argues that punishing possession within a school zone more harshly than possession outside a school zone violates the equal protection guaranty of the Minnesota Constitution. Alternatively, he argues that a conviction of this crime requires proof that he either knew he was in a school zone or intended to commit the crime in a school zone. Because there is a rational basis to enhance the crime where possession occurs within a school zone, and the plain language of the statute does not impose a mens rea requirement on the location element of the crime, we affirm.

On December 17, 2001, at approximately 11:00 p.m., police officer John Fishbauger noticed appellant Steven Allen Benniefield walking at the corner of 7th Avenue and 6th Street Southeast in Rochester, Minnesota, within approximately 61 feet of the Riverside School property line. The officer recognized Benniefield from previous encounters and checked with police dispatch to see if there were any outstanding warrants for his arrest. After being informed that there was an outstanding warrant for Benniefield, Officer Fishbauger stopped Benniefield and placed him under arrest. During a pat-down search, the officer discovered a makeshift crack pipe in Benniefield’s pocket.

Benniefield was placed in another officer’s squad car and taken directly to the adult detention center. When the transporting officer searched his squad car, he found a baggie containing small off-white colored “rocks.” These rocks were later identified as containing 1.10 grams of cocaine.

Benniefield was charged with violation under Minn.Stat. § 152.023, subd. 2(4) (2000), a third-degree controlled substance offense for possession of any amount of a Schedule II narcotic drug “in a school zone, a park zone, a public housing zone, or a drug treatment facility.” Cocaine is a Schedule II narcotic drug. Minn.Stat. § 152.01, subd. 10 (2002). A school zone is defined as:

(1) any property owned, leased, or controlled by a school district or an organization operating a nonpublic school, as defined in section 123B.41, subdivision 9, where an elementary, middle, secondary school, secondary vocational center or other school providing educational services in grade one through *45grade 12 is located, or used for educational purposes, or where extracurricular or cocurricular activities are regularly provided;

(2) the area surrounding school property as described in clause (1) to a distance of 300 feet or one city block, whichever distance is greater, beyond the school property; and

(3) the area within a school bus when that bus is being used to transport one or more elementary or secondary school students.

Minn.Stat. § 152.01, subd. 14a (2002).

Benniefield represented himself at trial. In his opening statement, Benniefield informed the jury that he had not intended to be in a school zone, that he was merely on his way home from work, and that this was the most direct route to his home. The state filed a motion in limine requesting that the court not allow Benniefield to argue that intent to be in a school zone or knowledge of being in the school zone was a necessary element of the crime. The district court granted the motion in limine. Benniefield presented no witnesses and did not testify himself.

The jury returned a verdict of guilty. The court denied Benniefield’s motion for a new trial and sentenced him to 37 months in prison for third-degree possession, a severity VI level offense. According to the sentencing guidelines in effect at that time, the presumptive sentence with a criminal history score of 3 was from 37 to 41 months. See Minnesota Sentencing Guidelines IV.

On direct appeal, Benniefield argued that punishing for possession of a controlled substance in a school zone more harshly than possession outside a school zone violates equal protection and that the district court erred in failing to instruct the jury that the offense required proof of intent to be in a school zone. See State v. Benniefield, 668 N.W.2d 430, 433 (Minn.App.2003). The court of appeals affirmed the conviction.1 Id. at 435-38.

I.

Benniefield challenges the constitutionality of Minn.Stat. § 152.023, subd. 2(4), on equal protection grounds. Unless a fundamental right or suspect class is involved, statutes are presumed to be constitutional. Rio Vista Non-Profit Housing Corp. v. Ramsey County, 335 N.W.2d 242, 245 (Minn.1983). We will hold a statute unconstitutional “only when absolutely necessary.” State v. Behl, 564 N.W.2d 560, 566 (Minn.1997). We review the constitutionality of a statute de novo. State v. Machholz, 574 N.W.2d 415, 419 (Minn.1998). A defendant, claiming that a statute is unconstitutional, bears the burden of showing that the statute is unconstitutional beyond a reasonable doubt. Scott v. Minneapolis Police Relief Ass’n, Inc., 615 N.W.2d 66, 73 (Minn.2000).

Benniefield did not challenge the constitutionality of the statute at trial. We need not consider issues that were not presented to the district court but may choose to do so where the interests of justice so require. State v. Sorenson, 441 N.W.2d 455, 457 (Minn.1989). The court of appeals considered the equal protection claim in the interests of justice. Benniefield, 668 N.W.2d at 435. We do likewise.

Benniefield argues that MinmStat. § 152.023, subd. 2(4), “violates the equal protection component of the Minnesota *46Constitution because there is no genuine and substantial distinction between those who receive longer sentences for possession of a controlled substance in a school zone and those who possess the substance outside such a zone.” Benniefield reinforces his argument by pointing out that the statute does not require that school children actually be present and does not distinguish between mere possession and the manufacture or sale of drugs in a school zone. Benniefield concludes, “[without some greater connection to the statute’s purpose, such as children being present or a requirement tied to the time of day, the greater penalty for mere possession in the school zone does not relate to the purported goals to be achieved, that is protecting children.”

Benniefield acknowledges that federal courts have determined that similar federal drug statutes that enhance drug crimes 'that occur within a school zone are constitutional. He argues that the Minnesota Constitution provides greater protection than the federal constitution when reviewing equal protection challenges and the federal enhancement statute is distinguishable because it requires the sale, distribution or manufacture of drugs within the school zone, not mere possession.

The state counters that drug activity in a school zone, even at times when children are not present, can have adverse consequences for children and thus the enhancement of the crime for possession in a school zone has a rational basis. The state suggests the example that if Benniefield had disposed of the drugs when he was first observed by the officer, the drugs could have later been found and used by children. The state concludes that the possible consequences of the presence of any kind of drug activity in a school zone provides “a rational basis for the legislature trying to deter possession or use of drugs in a school zone at any time of day.”

When a statute does not involve a suspect classification or a fundamental right, this court reviews the constitutional challenge to the statute under a rational-basis test. Scott, 615 N.W.2d at 74. Ben-niefield does not claim that Minn.Stat. § 152.023, subd. 2(4), involves a suspect classification or a fundamental right. Thus, Minn.Stat. § 152.023, subd. 2(4), will be presumed to be constitutional and should be sustained “if the classification drawn by it is rationally related to a legitimate governmental interest.” Kolton v. County of Anoka, 645 N.W.2d 403, 411 (Minn.2002).

This court employs a three-pronged rational-basis test as follows:

(1) The distinctions which separate those included within the classification from those excluded must not be manifestly arbitrary or fanciful but must be genuine and substantial, thereby providing a natural and reasonable basis to justify legislation adapted to peculiar conditions and needs; (2) the classification must be genuine or relevant to the purpose of the law; that is there must be an evident connection between the distinctive needs peculiar to the class and the prescribed remedy; and (3) the purpose of the statute must be one that the state can legitimately attempt to achieve.

State v. Russell, 477 N.W.2d 886, 888 (Minn.1991).

Benniefield does not claim that the definition of a school zone is arbitrary or capricious, but that the imposition of a more severe sentence for third-degree possession, based solely on the location in a school zone and with no limitations as to the time of day or the actual presence of children, does not further the public safety *47goal of the legislature.2 It is true that conviction of third-degree possession under Minn.Stat. § 152.023, subd. 2(4), carries a significantly greater penalty than conviction of fifth-degree possession for possession of the same quantity of drugs outside a school zone. The maximum prison term for third-degree possession is 20 years and the presumptive sentence, with a criminal history score of 2, is 33 months. Minn.Stat. § 152.023, subd. 3; Minnesota Sentencing Guidelines IV. The maximum prison sentence for fifth-degree possession is 5 years and the presumptive sentence, with a criminal history score of 2, is 13 months stayed. Minn.Stat. § 152.025, subd. 3(a) (2002); Minnesota Sentencing Guidelines IV, V.

Applying the three-prong test, we must first determine whether there is a genuine or substantial reason to differentiate between those who possess drugs within a school zone and those who possess drugs outside a school zone. See Russell, All N.W.2d at 888. We conclude that there is a rational connection between the goal of protecting children from drugs and deterring the possession of drugs in a school zone. There is a genuine risk that those involved in illegal drug use, whether selling or merely possessing a controlled substance, could bring the dangers associated with illegal drugs into school zones. For example, abandoned drugs or discarded drug paraphernalia might be found in or around areas of drug use. The desire to provide an area for schoolchildren, free of illegal drags and the possible accessories that go with illegal drug use, is a genuine and substantial reason for enhancing the crime to deter criminals who choose to bring illegal drugs within 300 feet of school property. See, e.g., Polk v. State, 683 N.E.2d 567, 571 (Ind.1997) (concluding that “it is within the legislature’s prerogative to determine that a drug-free zone deters possible spillover effects, and to provide enhanced penalties for controlled substance violations in proximity to schools.”).

We must next determine whether differentiating between those who possess controlled substances in a school zone and those who possess them outside a school zone is relevant to the purpose of the law. See Russell, All N.W.2d at 888. Both parties acknowledge that the purpose of the statute is to provide for public safety, especially that of schoolchildren on their way to or while at school. Preventing illegal drugs from being present near schools is relevant to the purpose of protecting school children from the dangers associated with illegal drug use.

Finally, we must determine whether the objective of achieving a safe area for school children is a legitimate one for the state. Id. Benniefield concedes, and it is apparent, that the state can legitimately take measures to provide a safe area for children to attend school.

We conclude that there is a rational basis for the legislature to enhance the crime for those who possess illegal drugs in a place where children are likely to be present on a regular basis in order to protect children from discarded drugs or drug paraphernalia. Thus, we conclude that Minn.Stat. § 152.023, subd. 2(4), as applied to the present facts, does not vio*48late the guaranty of equal protection contained in the Minnesota Constitution.

II.

Benniefield argues that the district court erred in not allowing him to argue lack of intent to be in a school zone and in not including intent to be in a school zone as a necessary element of the crime in the jury instructions. Benniefield argues that the dramatic increase in the penalty associated with possession of a controlled substance in a school zone compels the court to imply the requirement that the state prove not only the intent to possess but also the intent to possess in this particular location. The state argues that the plain language of the statute does not require proof of an intent to be in a school zone. The state points out that the statute does have a mens rea requirement, the intent to possess an illegal drug, and argues that a mens rea requirement need not attach to every element of the crime.

In In re C.R.M., 611 N.W.2d 802 (Minn.2000), we examined the language of a somewhat similar criminal statute that makes it a felony offense to possess a dangerous weapon on school property. At that time, the statute was silent on any mens rea requirement.3 MinmStat. § 609.66, subd. Id (1998). A juvenile was convicted of the crime based on his possession on school property of a folding knife with a 4-inch blade. C.R.M., 611 N.W.2d at 803. We observed that knives are not inherently dangerous or anti-social and thus that the possessor would not necessarily be put on notice that mere possession could be a crime. Id. at 809-10. We declared that “great care is taken to avoid interpreting statutes as eliminating mens rea where doing so criminalizes a broad range of what would otherwise be innocent conduct.” Id. at 809. We concluded that the state was required to prove that the appellant “knew he possessed the knife on school property.” Id. at 810.

In re C.M.R. can be distinguished from the present case and is not controlling. In fact, in In re C.M.R. we distinguished possession that only becomes criminal in certain locations from possession that is criminal independent of the location. We observed that items such as knives “are certainly not as inherently anti-social as illegal drugs and hand grenades.” Id. (emphasis added). Because the mere possession of illegal drugs is a crime, the possessor is already on notice of the illegality of his actions, without regard to location.

We have implied a mens rea requirement for the possession of a controlled substance. In State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975), a case charging the defendant with possession of cocaine, we held that the “state must prove that defendant consciously possessed * ⅜ ⅜ the substance and that defendant had actual knowledge of the nature of the substance.” Having established that mens rea is an implied element in the statute with respect to possession, we see no basis for requiring the state to demonstrate an additional mens rea element with respect to location. See Florine, 303 Minn, at 104, 226 N.W.2d at 610. The possessor of the illegal drug who is already on notice that his conduct is criminal can reasonably be expected to assume the risk that he might enter a location that will make the consequences of his crime more severe. Polk, 683 N.E.2d at 572.

Finally, we recognize that proof of a defendant’s intent to be in a specified loca*49tion would be difficult. Benniefield was charged with possession of a controlled substance for which possession was a crime even outside the protected area. The district court correctly ruled that the state was not required to prove that Ben-niefield also knew that he was in a school zone or intended to commit the crime in a school zone.

This conclusion is consistent with federal and other state decisions that have consistently held that, although the government must prove an intent to sell illegal drugs, it need not prove an intent to do so in the prohibited location of a school zone. See, e.g., United States v. Dimas, 3 F.3d 1015, 1022 (7th Cir.1993); United States v. Falu, 776 F.2d 46, 50 (2d Cir.1985); State v. Denby, 235 Conn. 477, 668 A.2d 682, 685 (1995). See also Tracy A. Bateman, Validity, Construction and Application of State Statutes Prohibiting Sale or Possession of Controlled Substances Within Specified Distance of Schools, 27 A.L.R. 5th 593 § 31 (1995 & Supp.2003) (compiling cases from Florida, Indiana, Ohio, and Pennsylvania holding that intent to be or knowledge of being in a school zone is not necessary for conviction).

We hold that Minn.Stat. § 152.023, subd. 2(4), does not require proof that a defendant intended to be or knew that he was in a school zone.

Affirmed.

OPINION

ROSS, Judge.

Naser Omer Ali appeals from his conviction of possessing cathinone, a controlled substance, arguing that the evidence was insufficient to prove beyond a reasonable doubt that he knew that the substance he possessed contained cathinone. He also argues that the district court erroneously allowed drug-test results to be presented to the jury without first conducting a hearing to determine that the testing method was reliable. Finally, Ali contends that the statute criminalizing the possession of cathinone is unconstitutionally vague by failing to specify the prohibited substance. Because the evidence is sufficient to prove that Ali knowingly possessed a controlled substance, because the lack of a pretrial hearing on the reliability of the drug-testing method did not affect Ali’s substantial *917rights, and because the statute as judicially construed provided adequate notice that Ali’s conduct was criminal, we affirm.

FACTS

In June 2006, Deputy Christofer Nybeck executed a search warrant at a storage unit that Ali was renting in south Minneapolis. Deputy Nybeck found fifteen shipping boxes containing dried khat, a plant grown in Africa. The plant contains two stimulants: cathinone and cathine. Cathi-none is present in greater quantities in fresh khat but begins to degrade into the less potent cathine within days of harvest. Ali’s khat tested positive for cathinone.

The state charged Ali with knowingly possessing cathinone, a fifth-degree controlled substance crime. Ali pleaded not guilty. A jury considered evidence that supported the following factual scenario.

Ali received fifteen FedEx shipments of dried khat from three different sources in two cities in Kenya between June 2005 and March 2006. Drug dealers commonly ship illegal drugs through commercial courier services such as FedEx and make shipments on multiple dates. Drug distributors also commonly purchase their drugs from multiple sources.

All of the seized khat shipments were addressed to Ali at 1700 22nd Street in Minneapolis. This address differs from the address Ali listed for himself on the storage-unit lease — 394 Pierce Street in St. Paul — and the address on his Minnesota driver’s license — 1900 Sheridan Avenue in St. Paul. Each box contained 4 to 17 pounds of khat for a total weight of roughly 140 pounds. The khat had an estimated street value of $13,000. Two of the boxes each contained approximately 25 quarter-pound baggies of individually packaged khat. And two of the shipping boxes had been falsely labeled as “herbal body dye.”

Becky Willis, the chemist who tested Ali’s khat for the Minneapolis Police Department, testified without objection about her testing method. She used acid to dissolve some of the khat and then analyzed the solution with a gas chromatograph and mass spectrometer (GCMS). Willis’s test indicated that the khat sample contained cathinone. She explained that her testing method could detect an amount of cathi-none that might be imperceptible to human scent. She could not quantify the amount of cathinone present in Ali’s khat, and not all scientific studies agree on the rate at which cathinone degrades in harvested khat. A chemist from the St. Paul Police Department’s crime lab testified that she had never been able to detect cathinone in dried khat using the GCMS method.

The jury convicted Ali of knowingly possessing cathinone. This appeal follows.

ISSUES C

I. Was the evidence sufficient to support Ali’s conviction of knowingly possessing cathinone under Minnesota Statutes section 152.025?

II. Did the district court plainly err by failing to hold an evidentiary hearing sua sponte to establish the reliability of the state’s unobjected-to drug-testing method?

III. Does Minnesota Statutes section 152.025 as construed by caselaw provide constitutionally sufficient notice that possessing khat is criminal?

ANALYSIS

I

Ali first argues that the jury received insufficient evidence to prove that he knew the khat in his storage unit contained cathinone. We therefore will scrutinize the record to determine whether the *918evidence, viewed in the light most favorable to the conviction, supports the-guilty verdict. See State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably have concluded that Ali was guilty of the charged offense. See Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn.2004).

The operative statute provides that “[a] person is guilty of controlled substance crime in the fifth degree if ... the person unlawfully possesses one or more mixtures containing a controlled substance classified in schedule I, II, III, or IV.” Minn.Stat. § 152.025, subd. 2 (2006). Cathinone is a schedule I controlled substance. Minn.Stat. § 152.02, subd. 2(6) (2006). Possession crimes require proof that the defendant “had actual knowledge of the nature of the substance” in his possession. State v. Papadakis, 643 N.W.2d 349, 354 (Minn.App.2002) (quotation omitted).

Ali argues that the evidence was not sufficient to establish that he knew that his khat contained cathinone. The state responds that Ali’s conduct shows that he knew he possessed an illegal controlled substance.

Our supreme court has not had occasion to clarify whether Minnesota’s actual-knowledge requirement may be satisfied by proof that the defendant knew that the substance he possessed was illegal. This is the position taken by most federal courts of appeals. See United States v. Hussein, 351 F.3d 9, 18 (1st Cir.2003) (observing that the federal cases are “legion” that hold that knowledge of a substance’s illegality is sufficient mens rea for drug-possession crimes, and citing cases); see also United States v. Abdulle, 564 F.3d 119, 125 (2d Cir.2009) (“[T]he law is settled that a defendant need not know the exact nature of a drug in his possession to violate [federal controlled substance law]; it is sufficient that he ... be aware that he ... possesses some controlled substance.”) (quotation omitted); United States v. Village, 323 F.3d 435, 439 (6th Cir.2003) (“[D]rug type and quantity are irrelevant to the mens rea element of [the federal controlled substance statute], which requires nothing more specific than an intent to distribute a controlled substance.”); United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) (“[A] defendant can be convicted [of possessing a controlled substance] if he believes he has some controlled substance in his possession.”) (quotation omitted); United States v. Barbosa, 271 F.3d 438, 458 (3d Cir.2001) (“[I]t is well settled that the Government must show that the defendant knew that the substance in which he trafficked was a controlled substance.”); United States v. Carrera, 259 F.3d 818, 830 (7th Cir.2001) (“The government need only prove that the defendant was aware that some controlled substance was involved.”); United States v. Sheppard, 219 F.3d 766, 769 (8th Cir.2000) (holding that the government need not prove that the defendant “actually knew the exact nature of the substance” to establish mens rea; knowledge of drug’s illegality is sufficient) (quotation omitted); United States v. Valencia-Gonzales, 172 F.3d 344, 345 (5th Cir.1999) (holding that mens rea required for possession of a controlled substance is knowledge that defendant possessed a controlled substance); United States v. Leavitt, 878 F.2d 1329, 1337 (11th Cir.1989) (“[T]he government need not prove that [defendant] actually knew that the substance involved was methaqualone as long as he knew he was importing a controlled substance.”).

*919State courts have followed the same approach. See, e.g., People v. Martin, 25 Cal.4th 1180, 108 Cal.Rptr.2d 599, 25 P.3d 1081, 1083-84 (2001) (holding that a defendant’s knowledge of the presence of the controlled substance and its nature as a restricted dangerous drug requires no further showing of a subjective mental state); State v. Sartin, 200 Wis.2d 47, 546 N.W.2d 449, 455 (1996) (“[T]he only knowledge [required] in a possession of a controlled substance case is the defendant’s knowledge or belief that the substance was a controlled or prohibited substance. The State is not required to prove the defendant knew the exact nature or precise chemical name of the substance.”); Commonwealth v. Rodriguez, 415 Mass. 447, 614 N.E.2d 649, 653 (1993) (“Proof that the defendant knew the exact nature of the controlled substance is not an element of the crime [of trafficking].”); People v. Bolden, 62 Ill.App.3d 1009, 20 Ill.Dec. 79, 379 N.E.2d 912, 916 (1978) (holding that “it was not necessary for the State to prove that the defendant knew the precise nature of the controlled substance” he was convicted of delivering when evidence established that he knew it was a controlled substance).

Consistent with this precedent from other states and the overwhelming majority of federal circuits, we hold that when a defendant is prosecuted for possessing cathinone-containing khat, proof that the defendant was aware that he possessed a controlled substance satisfies the statute’s actual-knowledge requirement.

Since Ali did not testify to his state of mind, there was only circumstantial evidence that he knew the khat contained a controlled substance. It is true that “a conviction based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.” State v. Jones, 516 N.W.2d 545, 549 (Minn.1994). But Ali’s conviction was not based entirely on circumstantial evidence. The direct evidence of scientific testing proved that Ali possessed cathi-none. The only element proven by circumstantial evidence was Ali’s mens rea regarding the nature of the substance. Knowledge is customarily determined from circumstantial evidence. See State v. Mauer, 741 N.W.2d 107, 115 (Minn.2007) (“We have long held that the proof of knowledge may be made by circumstantial evidence.”). And because the fact-finder is in the best position to weigh circumstantial evidence, its verdict is entitled to deference on review. Webb, 440 N.W.2d at 430.

We conclude that the evidence is consistent with the hypothesis that Ali knew that his khat contained an illegal drug and is inconsistent with any other rational hypothesis. The jury could have inferred from the surreptitious manner of Ali’s receipt and storage of the khat that he was distributing it secretly, taking careful steps to conceal both his possession and distribution. This supports a rational finding that Ali knew that his dried khat contained a controlled substance.

Ali argues that the evidence was inconsistent with the state’s theory that he knew he possessed cathinone. He maintains that his possession of khat was “blatant” and open and therefore not indicative of criminal intent. He emphasizes that he received the shipments and rented the storage unit under his actual name, that he made no effort to mask the khat’s distinctive smell and kept it in boxes in his own storage unit, and that he was not personally involved in mislabeling the boxes shipped to him from Africa. But the jury could have reasoned that the “blatant” and somewhat open nature of Ali’s possession demonstrates audacity or naiveté instead of innocence. That his concealment effort was flawed and unsuccessful does not require a finding that his motives were inno*920cent or render the jury verdict unreasonable. And although Ah may not have been personally involved in mislabeling the boxes shipped to him from Africa, their obvious mislabeling bolsters the implicit finding that he recognized that the khat constituted or contained an illegal substance.

Ali highlights that cathinone is not detectable by human senses alone and that he took no steps to preserve the cathinone using any customary preservation method, such as refrigerating the khat or wrapping it in banana leaves. But as we have already observed, the state need not prove that Ali knew the exact chemical nature of the substance so long as it has proved that he knew he possessed an illegal substance. The evidence supports the jury’s implied finding that Ali illegally possessed khat for the stimulant effect of its cathinone.

II

Ali next argues that the district court erred by failing to conduct an evi-dentiary hearing to determine whether the GCMS method used by the chemist is reliable for detecting cathinone in khat. Expert testimony is admissible if it will “assist the trier of fact to understand the evidence.” Minn. R. Evid. 702. Before evidence derived from a novel scientific technique may be admitted, the district court must find (1) that “experts in the field widely share the view that the results of scientific testing are scientifically reliable” and (2) that “the laboratory conducting the tests in the individual case complied with appropriate standards and controls.” State v. Roman Nose, 649 N.W.2d 815, 819 (Minn.2002). Ordinarily, the district court holds a pretrial eviden-tiary hearing, known as a Frye-Mack hearing, to determine these two issues. Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn.2000).

But Ali did not ask the district court for a Frye-Mack hearing or object to Willis’s testimony. An appellate court has the discretion to review unobjected-to errors that are “plain” and “affeet[ ] substantial rights.” Minn. R.Crim. P. 31.02. Ali therefore can prevail in his challenge only if he can establish that the district court plainly erred by not conducting a Frye-Mack hearing sua sponte.

Ali cannot establish plain error because the district court’s alleged omission did not affect his substantial rights. A defendant may have various practical and strategic reasons to challenge an expert opinion on the merits through cross-examination rather than to challenge the opinion’s foundation in an early proceeding. See Schneider v. State, 725 N.W.2d 516, 521-22 & n. 3 (Minn.2007) (discussing strategic bases for defendant to forgo a Frye-Mack hearing and to save the challenge for a vigorous cross-examination of the state’s experts). Ali vigorously cross-examined Willis to establish that cathinone degrades rapidly, that the testing lab lacks accreditation, and that there are conflicting approaches to testing khat, among other things. That Ali did not request a Frye-Mack hearing or object to the evidence at trial fits a plausible strategy to discredit the lab and its testing method openly, in front of the jury, as Ali attempted. The district court’s failure to conduct a hearing sua sponte therefore was not plain error.

Ill

Finally, Ali argues that Minnesota Statutes sections 152.025, subdivision 2 and 152.02, subdivision 2(6), which together criminalize possession of cathinone, are unconstitutionally vague. He contends that because the controlled substance schedules list cathinone but not khat, an ordinary person would not understand that possessing khat violates the law. We re*921view constitutional challenges de novo. State v. Johnson, 689 N.W.2d 247, 253 (Minn.App.2004), review denied (Minn. Jan. 20, 2005).

The United States and Minnesota constitutions provide that no person shall “be deprived of ... liberty ... without due process of law.” U.S. Const, amends. V, XIV; Minn. Const. art. I, § 7. To comport with due process, criminal statutes must provide defendants with “fair warning” by defining crimes clearly enough that an ordinary person can understand what conduct is prohibited. State v. Reha, 483 N.W.2d 688, 690-91 (Minn.1992). The key to the fair-warning requirement is that “the statute, either standing alone or as construed, [must make] it reasonably clear at the relevant time that the defendant’s conduct was criminal.” United States v. Lanier, 520 U.S. 259, 267, 117 S.Ct. 1219, 1225, 137 L.Ed.2d 432 (1997) (emphasis added).

This court has previously addressed the issue of whether possessing khat is criminal. In State v. Ali, we stated that “khat ... contains cathine and cathinone, both controlled substances under Minnesota law.” 613 N.W.2d 796, 797 (Minn.App.2000), review denied (Minn. Sept. 13, 2000); see also Minn.Stat. § 152.02, subd. 7 (2008) (empowering the Board of Pharmacy to list additional controlled substances not in the statute); Minn. R. 6800.4240(E)(1) (codifying pharmacy regulation listing the positive isomer of cathine as a schedule IV substance). All’s judicial pronouncement that khat contains the controlled substances cathine and cathinone, which rested on the plain meaning of the statute and the referenced pharmacy regulations, gives a person possessing khat fair warning of possible criminal prosecution under the statute. See Lanier, 520 U.S. at 267, 117 S.Ct. at 1225 (stating that judicial interpretations of a statute may provide fair warning by clarifying a statute’s meaning). And because both cathine and cathi-none are controlled substances, that cathi-none might eventually transform entirely into cathine as the plant decomposes does not render unclear the unlawfulness of possessing khat.

Minnesota’s requirement that drug possession be knowing mitigates any lingering vagueness concerns. Because the state must prove beyond a reasonable doubt that a defendant knew he possessed an illegal substance, there is little danger of arbitrary enforcement. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982) (recognizing that a scienter requirement may mitigate a statute’s vagueness). We conclude that Ali had adequate notice that his possession of khat subjected him to prosecution for possession of a controlled substance.

DECISION

The evidence is sufficient to prove that Ali knowingly possessed a controlled substance. The district court’s failure to conduct a Fry e-Mack hearing sua sponte was not plain error. And Minnesota Statutes sections 152.025 and 152.02 are not unconstitutionally vague in criminalizing cathi-none possession.

Affirmed.