State v. Moser

• Citation: 884 N.W.2d 890
• Decision Date: 08 August 2016
• Docket Number: No. A15–2017.,A15–2017.
• Parties: STATE of Minnesota, Respondent, v. Mark Robert MOSER, Appellant.
• Court: Court of Appeals of Minnesota

884 N.W.2d 890

STATE of Minnesota, Respondent,

v.Mark Robert MOSER, Appellant.

No. A15–2017.

Court of Appeals of Minnesota.

Aug. 8, 2016.

Lori Swanson, Attorney General, St. Paul, MN; and Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, MN, for respondent.

Jeffrey C. Dean, Minneapolis, MN, for appellant.

Considered and decided by HOOTEN, Presiding Judge; HALBROOKS, Judge; and JESSON, Judge.

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.

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.

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) (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, 128 L.Ed.2d 608 (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, 130 L.Ed.2d 372 (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, 57 L.Ed.2d 854 (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 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.

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, 96 L.Ed. 288 (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...