State of Minnesota v. Jeffrey Harris Wilensky ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1545
State of Minnesota,
Respondent,
vs.
Jeffrey Harris Wilensky,
Appellant.
Filed June 13, 2016
Reversed
Stauber, Judge
St. Louis County District Court
File No. 69DU-CR-15-883
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark S. Rubin, St. Louis County Attorney, Victoria D. Wanta, Assistant County
Attorney, Duluth, Minnesota (for respondent)
Hillary B. Parsons, Minneapolis, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Stauber, Judge; and Kirk,
Judge.
UNPUBLISHED OPINION
STAUBER, Judge
Appellant challenges his gross-misdemeanor conviction of patronizing a prostitute
in a public place. Because the evidence is insufficient to prove beyond a reasonable
doubt that appellant agreed or offered to engage in sexual contact or penetration, we
reverse.
FACTS
The Lake Superior Drug and Violent Crimes Task Force organized a prostitution
sting at the Econolodge Motel in Hermantown. The task force posted the following
advertisement on an internet website:
Hey Guys>>>>looking for a fun erotic safe time???
BOOTYfull BuSTy BlOnde and CURVey ReDheaD. AsK
about our 2 GIRL SpeCialS . . . enjoy a playful, “sin”sational
experience that you won’t forget !! So what are you waiting
for????? In call Only 80 1/2 120 hour 100% Discreet Only
serious inquiries only, NO law enforcement or police allowed
to call this ad!!
On March 18, 2015, appellant Jeffrey Harris Wilensky, responded to the advertisement,
and following text-message communications with undercover investigators, arrived at the
Econolodge Motel. An undercover investigator walked appellant to a room, where he
met two undercover female investigators who were posing as prostitutes; neither of the
investigators was dressed provocatively.
During the discussion that ensued between the female investigators and appellant,
he described himself as “extremely tame,” expressed interest in “both girls,” and stated
that in the past he had “only gotten body rubs, that kind of thing.” Because he claimed to
have only $85 with him, he could afford only one woman and said that they could choose
which one would be with him. When asked what service he wanted, appellant said,
“[J]ust a body rub, and maybe see.” At no time did appellant explicitly ask for sexual
contact or agree to it. But when asked whether he brought his own condoms if he later
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decided he wanted more than a body rub, appellant replied that he had not. At this point,
appellant was arrested.
The district court denied appellant’s motion to dismiss the complaint for lack of
probable cause. Appellant then agreed to a bench trial on stipulated facts and was found
guilty. The district court rejected appellant’s claim that there was no express or implied
agreement that appellant would pay money for sex acts, stating that appellant’s argument
was “contrary to the reasonable inferences that can be drawn from the essential facts.”
Following sentencing, appellant sought further review in this court.
DECISION
It is a gross misdemeanor for a person “while acting as a patron,” to intentionally
“hire[], offer[] to hire, or agree[] to hire an individual 18 years of age or older to engage
in sexual penetration or sexual contact.”1 Minn. Stat. § 609.324, subd. 2(2) (2014).
Appellant argues that the stipulated facts are insufficient to prove that he offered or
agreed to hire one of the female investigators for sexual contact or penetration.
In reviewing the sufficiency of evidence in a criminal case, we
are limited to ascertaining whether, given the facts in the record
and the legitimate inferences that can be drawn from those
facts, a [factfinder] could reasonably conclude that the
defendant was guilty of the offense charged. We will not
disturb the verdict if the [factfinder], acting with due regard for
the presumption of innocence and for the necessity of
overcoming it by proof beyond a reasonable doubt, could
reasonably conclude that a defendant was proven guilty of the
1
Minnesota statutes define the conduct that amounts to sexual contact as “(i) the
intentional touching by an individual of a prostitute’s intimate parts; or (ii) the intentional
touching by a prostitute of another individual’s intimate parts.” Minn. Stat. § 609.321,
subd. 10 (i-ii) (2014).
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offense charged. We consider the evidence in the light most
favorable to the verdict.
Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004) (quotations and citations
omitted).
Appellant acknowledges that an offer or agreement for sexual contact or
penetration may be implied from conduct. Under State v. Oanes, 543 N.W.2d 658, 662
(Minn. App. 1996), “[A]n offer [to hire for sexual contact or penetration] need not be
explicit, but may be implied by the defendant’s words and actions.” In construing an
earlier prostitution statute, the supreme court considered the types of conduct that may
constitute either an explicit or implied offer to engage in sexual contact, stating:
By defining an offer to engage for hire in intercourse or
sodomy as illegal conduct, the statute requires neither
completed sexual conduct nor a substantial act in furtherance
of the endeavor. But because it proscribes inchoate activity,
the statute is likely to be applied to conduct which is in some
degree ambiguous. Two principles are in tension here. First,
to prevent ready circumvention of the statute, the offer need
not be express or in the language of the statute, but may be
implied from the words and actions of the defendant taken in
context. Secondly, however, in these situations the danger
exists that the defendant’s offer is innocent or ambiguous. The
evidence must demonstrate, beyond a reasonable doubt, the
defendant’s intent to engage for hire in sexual activity. Mere
suspicion by the arresting officer is insufficient.
State v. Bennett, 258 N.W.2d 895, 897 (Minn. 1977) (emphasis added) (footnotes
omitted) (citations omitted). In Bennett, the supreme court found that the prostitute’s
“explicit cataloging of available services” was sufficient to prove an offer of sexual
conduct for hire, stating that “[t]he absence of an accompanying profferal of sexual
services does not alter the result, for the statute proscribes not attempts but offers.” Id.4
Under the facts stipulated to by the parties, we must determine whether the
evidence is sufficient to prove beyond a reasonable doubt that appellant offered to or
agreed to hire one of the female investigators for sexual contact. The advertisement that
drew appellant to the motel may suggest an erotic experience but does not include an
explicit offer of sexual contact. Once appellant arrived at the motel, he stated to the
modestly dressed investigators that his past experiences included only “body rubs, that
kind of thing,” and that he wanted a body rub, and “maybe see.” The crucial “maybe
see” statement is ambiguous. When viewed in context, this language could refer to non-
sexual conduct, such as a specialized massage, or could possibly refer to sexual contact.
As such, the statement is far too indefinite to establish beyond a reasonable doubt that
appellant intended to agree to or make an offer of sexual contact.
Finally, when asked whether he had a condom if he decided he wanted more than
just a body rub, appellant replied that he did not. This response also suggests that
appellant did not plan on sexual contact, and does not appear to modify his agreement to
receive only a body rub. While reference to a condom may suggest sexual activity, the
implication of appellant’s answer that he did not have a condom is also too ambiguous to
allow a clear inference that he would need one and insufficient to alter the indefiniteness
of his “maybe see” statement.2
2
Appellant asks this court to apply a heightened standard of review, rather than the
harmless-error standard. Because we are reversing appellant’s conviction, we do not
reach this issue.
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By our decision today, we do not mean to diminish the seriousness of sexual
trafficking or prostitution. Nevertheless, we are obligated to follow the law.
Reversed.
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