State of Minnesota v. Mark Robert Moser

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-2017
State of Minnesota,
Respondent,
vs.
Mark Robert Moser,
Appellant.
Filed August 8, 2016
Reversed
Jesson, Judge
Hennepin County District Court
File No. 27-CR-14-37764
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Jeffrey C. Dean, Minneapolis, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and Jesson,
Judge.
SYLLABUS
1. By eliminating a mistake-of-age defense and imposing strict liability,
Minnesota Statutes section 609.352, subdivisions 2 & 3(a) (2014), as applied to solicitation
that occurs over the Internet, involves no face-to-face contact between the solicitor and the
child, and where the child represents to the solicitor that he or she is 16 or older, violates
substantive due process.
2. Defendants charged with violating Minnesota Statutes section 609.352,
subdivision 2, solely over the Internet and without any face-to-face contact, must be given
an opportunity to raise a mistake-of-age affirmative defense if the child represents to the
defendant that he or she is 16 or older.
OPINION
JESSON, Judge
Appellant Mark Moser challenges his felony conviction for soliciting a child in
violation of Minnesota Statutes section 609.352, subdivision 2 (the child-solicitation
statute). Moser argues that the child-solicitation statute violates due process as applied to
his conduct. Moser solicited a child for sex over the Internet. Moser never met the child
in person and the child told him that she was 16. Because we conclude that the statute,
when applied to Moser, violates substantive due process by imposing strict liability for a
felony offense, we reverse. Moser also argues that the statute implicates the First
Amendment, and he challenges the constitutionality of Minnesota Statutes section 609.352,
subdivision 2a (2014). Because Moser did not raise these issues before the district court
and was not convicted of violating Minn. Stat. § 609.352, subdivision 2a, we do not address
these claims.
FACTS
On September 17, 2014, police received a report that an adult male had used
Facebook.com in an attempt to solicit a 14-year-old girl for sex. Police met with the child,
and she identified 42-year-old Moser as the adult male.
2
The Facebook exchange between Moser and the child took place between
September 15 and September 21, 2014. Moser and the child never met in person. Early
on in their exchange, the child told Moser that she was 16, although she was actually 14.
Moser asked the child to send him pictures of herself. The child agreed but said that it
would have to wait until later. Moser repeatedly asked the child to send the pictures. He
and the child also discussed masturbation, and Moser made references to meeting up to
have sexual contact. At one point, Moser said, “What are you doing tonight?” He then
said, “When can I meet you and f--k that awesome pussy of yours?”
Based on this Facebook interaction, Moser was charged with solicitation of a child
to engage in sexual conduct in violation of Minnesota Statutes section 609.352, subdivision
2. Moser filed a “motion to declare [the] statute unconstitutional and to allow [the]
affirmative defense of mistake as to age.” Moser argued that, in cases where the only
interaction between the adult and the child is over the Internet, a defendant must be allowed
to raise a mistake-of-age defense. He claimed that by precluding the defense and failing
to require the state to prove that he had knowledge of the child’s age, the statute imposed
strict liability and violated substantive due process and his fundamental rights to a fair trial
and to present a full defense.
The district court denied Moser’s motion, determining that the imposition of strict
liability did not violate Moser’s due-process rights. Although the district court agreed with
Moser that the elimination of the mistake-of-age defense implicated Moser’s fundamental
rights, the district court determined that the statute was constitutional because it was
narrowly tailored to serve a compelling government interest.
3
After his motion was denied, Moser stipulated to the prosecution’s case to obtain
review of the district court’s pretrial ruling under Minnesota Rule of Criminal Procedure
26.01, subdivision 4. Moser waived his right to a jury trial and agreed to have the district
court determine his guilt based on the prosecution’s evidence. Moser and the prosecutor
also signed a written document acknowledging that the district court’s pretrial orders “in
which the court denied [Moser’s] Motion to Permit the Affirmative Defense of Reasonable
Mistake of Age [are] dispositive or that a trial will be unnecessary if [Moser] prevails on
appeal.” Based on the complaint and police reports presented by the state, the district court
found Moser guilty of violating Minnesota Statutes section 609.352, subdivision 2.
The district court stayed imposition of sentence for three years and placed Moser on
probation. This appeal follows.
ISSUE
Does substantive due process require that a defendant charged under the child-
solicitation statute be given the opportunity to raise a mistake-of-age defense, when the
solicitation occurred over the Internet, without face-to-face contact, and the child
represented to the defendant that he or she was 16 or older?
ANALYSIS
The child-solicitation statute makes it a felony punishable by up to three years in
prison for “[a] person 18 years of age or older” to solicit “a child or someone the person
reasonably believes is a child to engage in sexual conduct with intent to engage in sexual
conduct.” Minn. Stat. § 609.352, subds. 2, 4 (2014). Solicitation may occur “in person,
by telephone, by letter, or by computerized or other electronic means.” Id., subd. 1(c)
4
(2014) (emphasis added). The statute defines a “child” as “a person 15 years of age or
younger.” Id., subd. 1(a) (2014). The statute clearly states that “[m]istake as to age is not
a defense to a prosecution under this section.” Id., subd. 3(a) (2014).
Typically, criminal offenses require both a volitional act and a criminal intent,
referred to as mens rea. Wayne R. LaFave, Criminal Law § 5.1, at 253 (5th ed. 2010). A
statute imposes strict liability when it dispenses with mens rea by failing to “require the
defendant to know the facts that make his conduct illegal.” State v. Ndikum, 815 N.W.2d
816, 818 (Minn. 2012) (quoting Staples v. United States, 511 U.S. 600, 605, 114 S. Ct.
1793, 1797 (1994)). The state argues that the child-solicitation statute does not impose
strict liability because it requires an “intent to engage in sexual conduct.” Minn. Stat.
§ 609.352, subd. 2 (emphasis added). But it is the intent to engage in sexual conduct with
a child that makes the conduct illegal, not the intent to engage in sexual conduct generally.
See United States v. X-Citement Video, Inc., 513 U.S. 64, 73, 115 S. Ct. 464, 469 (1994)
(stating in child pornography case that “the age of the performers is the crucial element
separating legal innocence from wrongful conduct”). The child-solicitation statute
imposes strict liability because it does not require the state to prove that the defendant had
knowledge of the child’s age (the fact that makes the conduct illegal), and it prohibits the
defendant from raising mistake of age as a defense.
Strict-liability crimes are generally disfavored, but states may enact them within the
boundaries of the Constitution. United States v. United States Gypsum Co., 438 U.S. 422,
437-38, 98 S. Ct. 2864, 2873-74 (1978). The question before us is whether Moser’s
constitutional right to due process requires that he be permitted to raise a mistake-of-age
5
defense.1 The constitutionality of a statute presents a question of law, which we review de
novo. State v. Melde, 725 N.W.2d 99, 102 (Minn. 2006). In doing so we presume that
Minnesota statutes are constitutional and will strike down a statute only if the challenging
party proves that it is invalid. Skeen v. State, 505 N.W.2d 299, 312 (Minn. 1993).
To determine whether Moser’s due-process rights were violated, we first address
the long history of criminal jurisprudence discussing mens rea requirements. We then
consider the exceptions allowing for limited strict-liability crimes that have been carved
out over time. Finally, we consider whether, given the requirements of due process, Moser
was entitled to raise a mistake-of-age defense.
We embark on this analysis acknowledging that neither the United States nor the
Minnesota Supreme Court “has undertaken to delineate a precise line or set forth
comprehensive criteria for distinguishing between crimes that require a mental element and
crimes that do not.” Staples, 511 U.S. at 619-20, 114 S. Ct. at 1804 (quotation omitted).
We also do not attempt this task. Rather we address the narrow issue of whether due
process requires a defendant charged under the child-solicitation statute to have the
opportunity to raise a mistake-of-age defense, when the solicitation occurred over the
Internet, without face-to-face contact, and when the defendant was specifically told that
the child was 16.
1
Moser also raises First Amendment arguments. Moser did not raise these issues before
the district court, and we do not consider them on appeal. See Roby v. State, 547 N.W.2d
354, 357 (1996). We also note that, pursuant to Minnesota Rule of Criminal Procedure
26.01, subdivision 4(f), Moser acknowledged appellate review would only be of the issue
specifically addressed by the district court. Accordingly, our review is limited to the due-
process claim that was actually decided by the district court.
6
I. Criminal liability has historically required mens rea.
The concept that wrongdoing must be conscious in order to be criminal is
fundamental to our justice system. As Justice Jackson wrote in Morissette v. United States:
The contention that an injury can amount to a crime only when
inflicted by intention is no provincial or transient notion. It is
as universal and persistent in mature systems of law as belief
in freedom on the human will and a consequent ability and duty
of the normal individual to choose between good and
evil. . . . Unqualified acceptance of this doctrine by English
common law in the Eighteenth Century was indicated by
Blackstone’s sweeping statement that to constitute any crime
there must first be a “vicious will.”
342 U.S. 246, 250-51, 72 S. Ct. 240, 244 (1952). In a more recent decision, the United
States Supreme Court reinforced this rule that the imposition of criminal liability generally
requires proof of mens rea. Staples, 511 U.S. at 605, 618, 114 S. Ct. at 1797, 1804. Staples
interpreted a federal statute criminalizing possession of an unregistered machine gun that
required the state to prove that the defendant knew the weapon he possessed had the
characteristics that made it a machine gun. Id. at 602, 114 S. Ct. at 1795. The Court’s
holding was based on a “presumption that a defendant must know the facts that make his
conduct illegal.” Id. at 619, 114 S. Ct. at 1804.
The Minnesota Supreme Court, when it held that the state was required to prove, as
an element of possession of a pistol without a permit, that a defendant knew he possessed
the pistol, stated that “[t]he mens rea requirement is firmly embedded in the common law.”
Ndikum, 815 N.W.2d at 818 (quotation omitted). Similarly, in In re Welfare of C.R.M., the
supreme court interpreted a statute criminalizing possession of a knife on school property
to require the state to prove that the defendant knew that he possessed the knife on school
7
property. 611 N.W.2d 802, 810 (Minn. 2000). In doing so, the court noted that “[t]he
rulings of the United States Supreme Court and this court . . . highlight the long established
principle of American criminal jurisprudence that in common law crimes and in felony
level offenses mens rea is required.” Id. at 808.
Most United States Supreme Court and Minnesota Supreme Court cases addressing
strict-liability statutes involve the interpretation of legislation that is silent on the issue of
criminal intent. See, e.g., Elonis v. United States, 135 S. Ct. 2001, 2008, 2012 (2015)
(holding that, when statute prohibiting communication of threat in interstate commerce was
silent on the issue, government was required to prove that defendant intended to issue
threats or knew that communications would be viewed as threat in order to obtain
conviction); Staples, 511 U.S. at 605, 114 S. Ct. at 1796-97 (“[W]e have long recognized
that determining the mental state required for commission of a federal crime requires
construction of the statute and . . . inference of the intent of Congress.”) (quotation
omitted); Ndikum, 815 N.W.2d at 820-22 (discussing whether to impute criminal intent
into statute that was silent on the issue); C.R.M., 611 N.W.2d at 809 (reading criminal
intent requirement into felony statute because legislative intent to eliminate it was not
clear).2 Because strict liability is disfavored, and the “rule of lenity” requires that penal
2
In another case, State v. Garcia-Gutierrez, the Minnesota Supreme Court declined to
interpret a statute prohibiting first-degree burglary with a dangerous weapon to require the
state to prove that the defendant knew he possessed a dangerous weapon. 844 N.W.2d 519(Minn. 2014). The court reasoned that the statute did not impose strict liability because it
required the state to prove mens rea for the underlying crime of burglary. Id. at 523-25.
The additional element of possession of a dangerous weapon was not what made the
defendant’s conduct illegal; it merely increased the penalty. Id. at 526.
8
statutes be construed in favor of criminal defendants, courts generally must interpret
statutes that are silent as to criminal intent to contain a mens rea requirement. C.R.M., 611
N.W.2d at 805. Minnesota’s child-solicitation statute, however, explicitly eliminates the
mistake-of-age defense. Minn. Stat. § 609.352, subd 3(a); see also Minn. Stat. § 609.02,
subd. 9(6) (2014) (“Criminal intent does not require proof of the age of a minor even though
age is a material element in the crime in question.”). As a result, these cases construing
statutes that are silent on the issue of intent are instructive, but do not dictate the result in
this matter.
Criminal intent is embedded in our justice system. It is a rare case where the
legislature explicitly excludes a mens rea requirement for a felony offense so that the
analysis is one of constitutional viability, rather than statutory construction. See LaFave,
§ 5.5(a), at 290 (“It is rare if ever that the legislature states affirmatively in a statute that
described conduct is a crime though done without fault.”). But that is the case before us.
II. Exceptions to the mens rea requirement permit limited strict-liability
crimes.
There are certain areas, however, where strict liability is accepted: public welfare
offenses and crimes where the circumstances make it reasonable to charge the defendant
with knowledge of the facts that make the conduct illegal.
As Congress and state legislatures moved during the Industrial Revolution to use
criminal penalties not just to punish behavior, but as a means of regulation, the category of
“public welfare offenses” emerged. Morissette, 342 U.S. at 253-55, 72 S. Ct. at 245-46.
Unlike prior common-law offenses, these public welfare offenses do not involve
9
aggression or action, but are based on “neglect where the law requires care, or inaction
where it imposes a duty.” Id. at 255, 72 S. Ct. at 246. This court has held, for example,
that the misdemeanor offense of failing to produce proof of insurance on an automobile is
a public welfare offense. State v. Mayard, 573 N.W.2d 707, 710 (Minn. App. 1998), review
denied (Minn. Mar. 19, 1998). Similarly, the Minnesota Supreme Court has indicated that
possession of an open alcohol bottle in a vehicle is a public welfare offense. State v. Loge,
608 N.W.2d 152, 157 (Minn. 2000). Other examples of public welfare offenses include
the sale of contaminated or adulterated foods or drugs and the possession of certain illegal
weapons. See, e.g., United States v. Park, 421 U.S. 658, 95 S. Ct. 1903 (1975) (sale of
contaminated foods); United States v. Freed, 401 U.S. 601, 91 S. Ct. 1112 (1971)
(possession of unregistered hand grenades); United States v. Dotterweich, 320 U.S. 277,
64 S. Ct. 134 (1943) (sale of mislabeled drugs).
As the Minnesota Supreme Court has noted when reviewing public welfare
offenses, the lack of a mens rea requirement is justified because these offenses regulate
potentially harmful items, such as dangerous devices, products, or waste materials.
Ndikum, 815 N.W.2d at 819-20. The items regulated by public welfare statutes are so
inherently dangerous that the defendant is on notice of the possibility of strict regulation.
Id. at 820.
In defining the “public welfare offense,” it is also helpful to look at cases concluding
that a certain statute does not create such an offense. In Morissette, the United States
Supreme Court dealt with a defendant who had taken spent bomb casings from a
government practice-bombing range and, as a result, was convicted of converting
10
government property. 342 U.S. at 247-50, 72 S. Ct. at 241-43. The defendant testified that
he believed the casings had been abandoned and that he had no intent to steal them. Id. at
249, 72 S. Ct. at 242. The district court, however, instructed the jury that, under the relevant
statute, this innocent intent was not a defense. Id. at 249, 72 S. Ct. at 242-43. The Supreme
Court reversed Morissette’s conviction and concluded that Congress did not mean to
eliminate the common-law requirement of criminal intent. Id. at 263-73, 72 S. Ct. at 250-
55. In so doing, the Court declined to interpret the crime of conversion, with its common-
law roots, as a public welfare offense. Id.Similarly, in Staples, the Supreme Court held that possession of an unregistered
machine gun was not a public welfare offense. 511 U.S. at 602, 114 S. Ct. at 1795. The
court reasoned that, because gun ownership is so widespread, the mere possession of a
firearm does not put an owner on notice that he or she is engaging in an inherently
dangerous activity. Id. at 610-11, 114 S. Ct. at 1799-1800. Likewise, in C.R.M., the
Minnesota Supreme Court refused to interpret the crime of carrying a knife on school
grounds to be a public welfare offense. 611 N.W.2d at 810. Instead of applying the statute
as written, without any mens rea requirement, the court read an element into the statute
requiring the defendant to have “knowledge of possession of the knife while on school
property.” Id. In doing so, the court noted that “knives as common household utensils are
clearly not inherently dangerous, as they can be used for a myriad of completely benign
purposes.” Id. The court also stated the importance of not “interpreting statutes as
eliminating mens rea where doing so criminalizes a broad range of what would otherwise
be innocent conduct.” Id. at 809.
11
Besides placing defendants on notice of the possibility of strict regulation, public
welfare offenses also typically carry only minimal criminal penalties and do not subject a
defendant’s reputation to serious damage. Morissette, 342 U.S. at 255-56, 72 S. Ct. at 246.
Courts have therefore been far less likely to approve the imposition of strict liability for
offenses that impose felony-level penalties. See, e.g., Ndikum, 815 N.W.2d at 822 (“We
have also considered the severity of the penalty for a crime to be an important factor in
determining whether the Legislature intended to dispense with mens rea as an element of
that crime.”); C.R.M., 611 N.W.2d at 810 (discussing the omission of a mens rea
requirement and noting a “heightened concern when it relates to felony level crimes”).
In addition to public welfare offenses, select crimes have also been excluded from
the normal mens rea requirement where the circumstances make it reasonable to charge the
defendant with knowledge of the facts that make the conduct illegal. Laws prohibiting
sexual conduct with children below the age of consent are a long-standing example.
Morissette, 342 U.S. at 251 n.8, 72 S. Ct. at 244 n.8. The victim’s actual age is
determinative, regardless of whether the defendant reasonably believed the victim to have
reached the age of consent. Id.; State v. Morse, 281 Minn. 378, 384, 161 N.W.2d 699, 703
(1968). Similarly, in production-of-child-pornography cases, where the defendant
confronts the under-age victim personally, strict liability may be imposed. X-Citement
Video, Inc., 513 U.S. at 72 n.2, 115 S. Ct. at 469 n.2; State v. Peterson, 535 N.W.2d 689(Minn. App. 1995), review denied (Minn. Oct. 10, 1995). A defendant can reasonably be
required to ascertain the age of a person the defendant meets in person.
12
While the legislature may impose strict liability, its ability to do so is not without
limits. Strict liability has only been accepted in two narrow areas: public welfare offenses
and crimes where it is reasonable to place the burden on the defendant to discover the facts
that make the conduct criminal. Public welfare offenses generally involve items or conduct
that by their very nature inform the defendant that his conduct may be subject to strict
regulation. These offenses also usually carry only small penalties. The other category of
offenses involves cases like the sexual assault of underage children and production of child
pornography, where the defendant comes face to face with the victim and is therefore
presumed to be able to ascertain the victim’s age.
III. The child-solicitation statute violates substantive due process as applied
to solicitation that occurs solely over the Internet, without any face-to-
face contact, and where the person solicited represents to the defendant
that he or she is 16 or older.
The Due Process Clauses of the United States and Minnesota Constitutions provide
guarantees of fair procedures, prohibiting the deprivation of life, liberty, or property
without due process of law. U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 7.3 In
addition, substantive due process protects individuals from “certain arbitrary, wrongful
government actions regardless of the fairness of the procedures used to implement them.”
In re Linehan, 594 N.W.2d 867, 872 (Minn. 1999) (quotations omitted). When a statute is
challenged under substantive due process, we begin our analysis by determining whether a
fundamental right is infringed. SooHoo v. Johnson, 731 N.W.2d 815, 821 (Minn. 2007).
3
The Due Process Clause of the Minnesota Constitution provides no more protection than
the Due Process Clause of the United States Constitution. Kahn v. Griffin, 701 N.W.2d
815, 826 (Minn. 2005).
13
If so, the burden shifts to the state to demonstrate that the statute advances a compelling
state interest. Linehan, 594 N.W.2d at 872. If a compelling interest exists, we examine
whether the statute is narrowly tailored to serve that interest. Id. We address each step in
this analysis in turn.
Fundamental rights are those “deeply rooted in this Nation’s history and tradition,
and implicit in the concept of ordered liberty, such that neither liberty nor justice would
exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct.
2258, 2268 (1997) (quotations and citations omitted). When we look for “guideposts for
responsible decisionmaking” regarding substantive due process, we consider “our Nation’s
history, legal traditions, and practices.” Id. at 721, 117 S. Ct. at 2268 (quotation omitted).
While courts have expressed reluctance to expand the doctrine of substantive due process,
it is not an expansion to determine that a person’s right to be free from bodily restraint is
fundamental. In re Blodgett, 510 N.W.2d 910, 921 (Minn. 1994); see, e.g., State v.
Guminga, 395 N.W.2d 344, 345-46 (Minn. 1986) (conducting a substantive-due-process
analysis of a statute involving intrusion on personal liberty); State v. Tibbetts, 281 N.W.2d
499, 501 (Minn. 1979) (discussing the high stakes of loss of liberty upon criminal
conviction). Moreover, the rights to a fair trial and to present a complete defense also have
long been at the core of due-process protections. See State v. Beecroft, 813 N.W.2d 814,
838-39 (Minn. 2012) (stating that the “right of a defendant to present a complete defense
is an essential principle of our criminal justice system and is guaranteed by the Due Process
Clause of both the United States Constitution and the Minnesota Constitution”); State v.
Dorsey, 701 N.W.2d 238, 252 (Minn. 2005) (stating that “[i]n Minnesota, we have long
14
recognized that a criminal defendant has a fundamental right to a fair trial before an
impartial judge”).
Because Moser’s fundamental rights are infringed by the child-solicitation statute’s
prohibition on presenting a mistake-of-age defense and its criminal penalties, we next
consider whether this law serves a compelling state interest. We conclude that it does.
The purpose of the statute is to “prohibit any persuasive conduct by adults that might
entice children to engage in sexual activity.” State v. Coonrod, 652 N.W.2d 715, 723
(Minn. App. 2002) (quotation omitted). The legislature determined that there was a need
to criminalize child solicitation because it often leads to abuse, kidnapping, and
prostitution, which are commonly connected to sexual conduct. State v. Koenig, 666
N.W.2d 366, 375 (Minn. 2003).4 The legislature wanted to protect vulnerable children,
particularly runaways and truants, from these situations. Id.When the child-solicitation statute was originally enacted in 1986, its focus was on
in-person solicitation. 1986 Minn. Laws ch. 445, § 3, at 779. As times changed, the statute
was amended to expand the meaning of “solicits” to include solicitation “by telephone, by
letter, or by computerized or other electronic means.” 2000 Minn. Laws ch. 311, art. 4,
4
The legislature decided to eliminate the mistake-of-age defense after hearing testimony
from a county attorney. Koenig, 666 N.W.2d at 375. The county attorney argued that even
if a victim lies about his or her age, the adult should not be allowed to hide behind a
mistake-of-age defense because the safety and protection of children are at issue. Id. The
county attorney also maintained that when a person engages in sexual activities with
someone in a youthful age range, that person assumes the risk of criminal sanctions if he
or she fails to take adequate measures to verify the solicited person’s age. Id.
15
§ 3, at 212.5 There can be no question, as the district court stated, that protecting the safety
of children from sexual predators is a compelling government interest. New York v. Ferber,
458 U.S. 747, 761, 102 S. Ct. 3348, 3356 (1982). The goals behind the child-solicitation
statute are as compelling today as they were in 1986, when the law first passed.
We next examine whether the law is narrowly tailored to serve this compelling
interest of protecting children. The district court concluded, and the state argues, that the
statute is narrowly tailored to serve the compelling state interest because it places the onus
on the adult to ensure that the person solicited online is not a child.
Criminal liability generally requires proof of mens rea: that a defendant must “know
the facts that make his conduct illegal.” Staples, 511 U.S. at 605, 114 S. Ct. at 1797. To
examine whether excluding mens rea in this statute is the least burdensome way to protect
the public interest, we first look at Minnesota Supreme Court decisions addressing due-
process limitations on strict-liability statutes. Next, we consider caselaw interpreting the
two exceptions that permit strict-liability statutes in limited areas, as applied to this case,
and the inchoate nature of solicitation. We conclude that the child-solicitation statute, as
applied to Moser, violates the Due Process Clauses of the Minnesota and the United States
5
In 2007 the statute was further amended, to add subdivision 2a, the purpose of which was
to further protect children from Internet predators and to prohibit “grooming,” the method
sexual predators use to form a relationship with a child and begin discussing sexual topics,
in an attempt to increase the child’s willingness to engage in sexual contact. 2007 Minn.
Laws ch. 54, art. 2, § 7, at 239; State v. Muccio, __ N.W.2d __, __, 2016 WL 3376041, at
*3 (Minn. App. June 20, 2016). Moser also attempts to challenge subdivision 2a. But
Moser was not charged with violating subdivision 2a and has no standing to challenge that
portion of the statute. See State v. Jaworsky, 505 N.W.2d 638, 644 (Minn. App. 1993),
review denied (Minn. Sept. 30, 1993).
16
Constitutions because, given the infringement of Moser’s rights, there are less burdensome
ways to protect the public interest.
Our touchstone in this analysis is Guminga, in which the Minnesota Supreme Court
invalidated a strict-liability statute on due-process grounds. 395 N.W.2d at 344. Guminga
dealt with a statute that imposed vicarious criminal liability on the owner of a bar whose
employee sold alcohol to underage persons. Id. at 345-46. The owner was liable even if
the employee was expressly forbidden from selling to underage persons and the owner had
no knowledge of the illegal sale. Id. at 345-46. The supreme court concluded that the
statute violated substantive due process. Id. at 346-49. The Guminga court was concerned
that the violation was punishable as a gross misdemeanor; thus, conviction could result in
imprisonment and could affect the defendant’s criminal-history score, should he be
convicted of a felony in the future. Id. at 346. The supreme court concluded that “no one
can be convicted of a crime punishable by imprisonment for an act he did not commit, did
not have knowledge of, or give express or implied consent to the commission thereof.” Id.
at 349. It quoted with approval a provision of the Model Penal Code, stating:
Crime does and should mean condemnation and no court
should have to pass that judgment unless it can declare that the
defendant’s act was culpable. This is too fundamental to be
compromised. The law goes far enough if it permits the
imposition of a monetary penalty in cases where strict liability
has been imposed.
Id. at 347-48 (quotation omitted).
In Guminga, the supreme court determined that there were “less burdensome ways
to protect the public interest” than criminal penalties, pointing to alternatives such as civil
17
fines. Id. at 345-46. While the compelling interest in Guminga differs from the interest of
protecting children at issue here, the court’s substantive due process analysis applies to this
case. And while the compelling interest of protecting children from sexual exploitation is
stronger than the interest of prohibiting the sale of liquor to minors in Guminga, the
supreme court in that case held that a gross misdemeanor conviction was a violation of
substantive due process and that only civil penalties would be constitutional. Id. at 346.
Here, the penalties are substantially harsher.6
This approach is consistent with Minnesota decisions that have addressed when the
state must prove the existence of mens rea in the statutory-construction context. These
decisions emphasize the importance of mens rea in criminal cases. E.g., Ndikum, 815
N.W.2d at 818; C.R.M., 611 N.W.2d at 805. They read mens rea requirements into statutes
“[b]ased on the strength of the common law rule requiring a mens rea element in every
crime.” Ndikum, 815 N.W.2d at 818. And they instruct us that “[t]he rulings of the United
States Supreme Court and this court thus highlight the long established principle of
6
In State v. Shevlin-Carpenter Co., the Minnesota Supreme Court was asked to declare a
statute unconstitutional on due-process grounds because it created both civil penalties and
a strict-liability felony for harvesting timber on state land without a valid license. 99 Minn.
158, 160-61, 108 N.W. 935, 935 (1906). The supreme court upheld the statute, stating that
“[i]f the language and subject-matter of the statute show clearly that [the legislature
intended to impose strict liability], the courts must give it effect, however harshly the
statute may seem to operate in the particular instance.” Id. at 165, 108 N.W. at 937. The
supreme court’s holding was affirmed by the United States Supreme Court. Shevlin-
Carpenter Co. v. Minnesota, 218 U.S. 57, 69-70, 30 S. Ct. 663, 666-67 (1910). Shevlin-
Carpenter Co. is distinguishable from the child-solicitation statute at issue here. It was
decided long before Morissette, which lays the modern framework for the requirement of
mens rea. Morissette, 342 U.S. at 246, 72 S. Ct. at 240. It also preceded Guminga. 395
N.W.2d at 344.
18
American criminal jurisprudence that in common law crimes and in felony level offenses
mens rea is required.” C.R.M., 611 N.W.2d at 808. A state’s enactment of a statute that
does not include an element of intent does not necessarily violate due process. State v.
Rohan, 834 N.W.2d 223, 229 (Minn. App. 2013), review denied (Minn. Oct. 15, 2013).
Our holding in Rohan, however, does not mean that every strict-liability statute necessarily
falls within constitutional bounds. Moreover, the criminal strict-liability statute at issue in
Rohan, which prohibited serving alcoholic beverages to a person under 21 years of age, is
distinguishable from the child-solicitation statute. Id. at 225. Unlike this case, Rohan did
not involve a felony offense or an offense requiring predatory-offender registration. Id. at
232-33 (Johnson, J., dissenting).7
The failure to narrowly tailor the penalties in the child-solicitation statute to the
interest of protecting children is further highlighted by the fact that the statute does not fit
within either of the generally accepted limited uses for strict-liability crimes: public
welfare offenses or situations where there is a reasonable duty and opportunity to ascertain
relevant facts.
7
Other states have similarly held that mens rea is generally required by due process.
Hentzner v. State, 613 P.2d 821, 827 (Alaska 1980). In Hentzner, the Alaska Supreme
Court noted that “criminal intent in the sense of consciousness of wrongdoing should be
regarded as a separate element of the offense, unless the public welfare exception . . .
applies.” Id. at 826. The Alaska Supreme Court has also held that “strict criminal liability
may not constitutionally be imposed for serious crimes.” Id. at 829. In addition, the
Louisiana Supreme Court, in State v. Brown, struck down a strict-liability statute that
criminalized the “unknowing” possession of a dangerous drug. 389 So. 2d 48 (La. 1980).
The court concluded that it would be unreasonable to charge an individual with knowledge
of the nature of a substance that may have only been in his or her possession briefly. Id. at
51.
19
While it is questionable whether the act of child solicitation could fall within the
public welfare exception,8 we are persuaded that the child-solicitation statute does not
create a public welfare offense because of the harsh penalties it imposes. Public welfare
offenses typically carry light penalties and do not subject a person’s reputation to serious
harm. Morissette, 342 U.S. at 256, 72 S. Ct. at 246. Violation of the child-solicitation
statute, on the other hand, is a felony punishable by up to three years in prison and a $5,000
fine. Minn. Stat. § 609.352, subd. 4. In Staples, the Supreme Court stated that “punishing
a violation as a felony is simply incompatible with the theory of the public welfare offense.”
Staples, 511 U.S. at 618, 114 S. Ct. at 1804. The Minnesota Supreme Court has also said
that it “consider[s] sentences of 1 year in prison and fines of $3,000 to be severe
punishments incompatible with a public welfare offense.” Ndikum, 815 N.W.2d at 822.
The penalties associated with a violation of the Minnesota child-solicitation statute are
clearly not consistent with the theory of public welfare offenses.
Further, the child-solicitation statute imposes an unreasonable duty on defendants
to ascertain the relevant facts. In cases where the defendant encounters the victim in
person, it is reasonable to require the defendant to ascertain the victim’s age. For example,
it does not offend due process to charge the child pornography producer, in-person child
solicitor, or child rapist, with knowledge of the victim’s age. X-Citement Video, Inc., 513
U.S. at 72 n.2, 115 S. Ct. at 469 n.2; Morse, 281 Minn. at 378, 384, 161 N.W.2d at 703.
8
As stated above, public welfare offenses “typically regulate potentially harmful or
injurious items.” C.R.M., 611 N.W.2d at 806 (quotation omitted). The child-solicitation
statute is clearly intended to protect the welfare of children, but it regulates the act of
solicitation, not harmful or injurious items.
20
Where solicitation occurs solely over the Internet, however, it is extremely difficult to
determine the age of the person solicited with any certainty. 9 Moser solicited the child
solely over the Internet and never met her in person.10
We are especially concerned with the imposition of strict liability in this statute
because of the inchoate nature of the crime of solicitation. As we stated in State v.
McGrath, solicitation is “an inchoate activity which permits application of [the child-
solicitation statute] to conduct that is in some degree ambiguous.” 574 N.W.2d 99, 102
(Minn. App. 1998) (quotation omitted), review denied (Minn. Apr. 14, 1998). Inchoate
offenses are incipient acts that are criminal only because they are likely to lead to the
9
The state argues that because Moser had the opportunity to question the child about her
age, it is reasonable to require him to verify her age before engaging in solicitation. The
state quotes our decision in State v. Fan, in which we stated that defendants “must simply
direct their energies toward a more thorough investigation of . . . ages.” 445 N.W.2d 243,
247 (Minn. App. 1989), review denied (Minn. Oct. 31, 1989). But Fan dealt with a statute
that prohibited employing a minor to engage in a sexual performance, and the defendant in
Fan met the child in person. Id. at 244-45. Moser had no such opportunity. Moreover,
Moser did question the child about her age, and she told him that she was 16.
10
In State v. Wenthe, 865 N.W.2d 293 (Minn. 2015), the Minnesota Supreme Court
interpreted the clergy-criminal-sexual-conduct statute. The court determined that the
statute did not require the state to prove that a clergy member had knowledge that the victim
sought or received religious or spiritual advice, aid, or comfort. Id. at 305. Despite that
fact, the court concluded that because the statute required sexual penetration to be
intentional, it did not create a strict-liability offense. Id. at 303. The state makes a similar
argument in regard to the child-solicitation statute’s requirement that the solicitation be
done “with intent to engage in sexual conduct.” Minn. Stat. § 609.352, subd. 2. Wenthe,
however, is distinguishable. The defendant in that case had reason to know that his conduct
was illegal because the victim went to his church, he acted as the victim’s confessor, he
had conversations with the victim about religion and spirituality, and the initial penetration
occurred on church grounds. 865 N.W.2d at 305. Accordingly, it was reasonable to hold
Wenthe responsible for determining whether the victim sought or received religious or
spiritual advice, aid, or comfort. Moser, on the other hand, never met the child in person,
and the child told him she was 16. It is not reasonable to hold him responsible for verifying
the child’s age.
21
commission of another offense. See Black’s Law Dictionary 1250 (10th ed. 2014)
(defining “inchoate offense” as “[a] step toward the commission of another crime, the step
in itself being serious enough to merit punishment”). With inchoate crimes, we criminalize
behavior that is preliminary or anticipatory in nature. Id. In Moser’s case, by making
preliminary behavior a felony, without requiring criminal intent, the constitutional
boundary of due process has been crossed.
To be narrowly tailored, a statute must be “neither overinclusive nor underinclusive;
rather, it must be precisely tailored to serve the compelling state interest.” In re Welfare
of Child of R.D.L., 853 N.W.2d 127, 135 (Minn. 2014) (quotation omitted). We conclude
that the penalties imposed by the statute are more burdensome than necessary to serve the
government interest.
“Felony” is “as bad a word as you can give to man or thing.” Morissette, 342 U.S.
at 260, 72 S. Ct. at 248. Under the child-solicitation statute, Moser is labeled a felon,
subject to a three-year prison sentence, required to register as a predatory offender for the
next ten years, and assigned one criminal-history point for his conviction. Minn. Stat.
§§ 609.352; 243.166, subds. 1b(2), 6; Minn. Sent. Guidelines 2.B.1.b, 4.B (2014). All of
these penalties accrue without Moser being able to defend himself by saying that he did
not know he was soliciting a child. Minn. Stat. § 609.352, subd. 3(a). That the child lied
and told him that she was 16 years old is no defense under a strict application of the statute
as written. Although we take no position on the precise penalty that would bring the statute
within constitutional bounds, felony liability and predatory-offender registration exceed
what is permissible for the strict-liability offense at issue in this case.
22
Further, by eliminating the mistake-of-age defense and imposing strict liability, the
child-solicitation statute includes within its ambit adults who have no desire to have sexual
contact with children but instead believe that the person who they are soliciting over the
Internet is another adult. If the Internet solicitation ever reached the point of an in-person
meeting for sexual contact, the adult would presumably realize the individual was a child
and end the encounter before any sexual activity occurred. Subjecting these adults to
criminal liability does not serve the statute’s purpose of protecting children from sexual
exploitation. The statute, as applied to Moser, is also overinclusive and cannot survive
strict scrutiny.
In summary, as applied to Moser and in other cases where the defendant has no in-
person contact with the child and the child represents to the defendant that he or she is 16
or older, Minnesota Statutes section 609.352, subdivisions 2 and 3(a), violate due process
by imposing strict liability and eliminating a mistake-of-age defense. The child-solicitation
statute infringes on Moser’s fundamental rights to liberty, to a fair trial, and to present a
complete defense. It cannot survive strict scrutiny. Although the statute imposes strict
liability, it has none of the characteristics that usually accompany strict-liability offenses.
The statute does not create a public welfare offense, and it is not reasonable to require a
defendant in Moser’s position, engaging in solicitation solely over the Internet without any
face-to-face contact, to verify the actual age of the person solicited. The statute does not
survive strict scrutiny because, given its harsh penalties, it is not narrowly tailored to serve
the compelling government interest of protecting children from sexual exploitation.
Because the child told Moser she was 16 years old, Moser may have reasonably believed
23
that she was not a child as defined by the statute. We therefore conclude that the district
court erred by denying Moser the opportunity to raise a mistake-of-age affirmative defense.
Moser argues that due process requires the state to prove knowledge of age, rather
than merely necessitating that he be permitted to raise a mistake-of-age affirmative defense.
We disagree. Due process prohibits placing the burden on the defendant to disprove any
essential element of the crime. State v. Cannady, 727 N.W.2d 403, 407-08 (Minn. 2007).
Knowledge of the child’s age is not an essential element of child solicitation. Minn. Stat.
§ 609.352, subd. 2. Accordingly, we do not hold that the state must prove the defendant
knew that the child was 15 or younger. We hold only that, in the limited situation we have
identified, the defendant must be allowed to raise an affirmative defense of mistake of age.
See generally State v. Kramer, 668 N.W.2d 32 (Minn. App. 2003) (discussing the
affirmative mistake-of-age defense to third-degree criminal sexual conduct), review denied
(Minn. Nov. 18, 2003). As with any affirmative defense, to receive a jury instruction and
have an opportunity to assert the defense, the defendant must meet a burden of production
by making a prima facie showing that the defense applies. Cannady, 727 N.W.2d at 407-
08. Here, Moser met this burden by presenting evidence that the child told him she was
16. Although we conclude that Moser should have been permitted to present the defense
at trial, we take no position on whether a mistake-of-age defense would have succeeded.
That is the province of a jury.
Typically, we would reverse Moser’s conviction and remand for a new trial at which
Moser would be given the opportunity to raise the affirmative defense. In this case,
however, the parties proceeded according to Minnesota Rules of Criminal Procedure 26.01,
24
subd. 4. As required by that rule, Moser and the state acknowledged in writing that the
district court’s pre-trial orders denying Moser’s motion to raise the affirmative defense of
mistake of age were dispositive or that a trial would be unnecessary if Moser prevailed on
appeal. Minn. R. Crim. P. 26.01, subd. 4(c). The state is bound by this agreement.
Therefore, we reverse Moser’s conviction without remanding for a new trial.
DECISION
There are weights and balances in the scales of justice. Sexual solicitation of
children is a grave concern. But the concept that wrongdoing must be conscious in order
to be criminal and subject an offender to years of imprisonment has long been a foundation
of our justice system. When the person solicited represents that he or she is 16 or older,
the solicitation occurs over the Internet, and there is no in-person contact between the
defendant and the person solicited, the prohibition in Minnesota Statutes section 609.352,
subdivision 3(a), on a person charged under the child-solicitation statute raising the
affirmative defense of mistake of age violates substantive due process. The district court
erred by denying Moser’s motion to raise that defense.
Reversed.
25