Solicitation of a Child Charge Must Arise to the Level of Probable Cause
When the Minnesota government charges a criminal defendant with Solicitation of a Child to Engage in Sexual Conduct, they must have probable cause that the crime was committed. The statute states:
A person 18 years of age or older who solicits a child or someone the person reasonably believes is a child to engage in sexual conduct with intent to engage in sexual conduct is guilty of a felony and may be sentenced as provided in subdivision 4.
MINN. STAT. § 609.352, subdiv. 2. In order to succeed at trial, the government must prove the following:
First, the defendant was eighteen years of age or older.
Second, the victim was fifteen years of age or younger. Mistake as to the victim’s age is not a defense.
Third, the defendant solicited the victim to engage in sexual conduct. “To solicit” means to command, entreat, or attempt to persuade by computerized or other electronic means.
“Sexual conduct” means:
[1] Sexual contact with the individual’s primary genital area.
[2] Sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, into the genital or anal openings of the child’s body or any part of the defendant’s body with any object used by the defendant for this purpose. [Emission of semen is not necessary to accomplish this element.]
[3] Performance in any play, dance, or other exhibition presented before an audience or for purposes of visual or mechanical reproduction that depicts any of the following:
[A] An act of sexual intercourse, normal or perverted, actual or simulated, including genital-genital, anal-genital, or oral-genital intercourse, whether between human beings or between a human being and an animal.
[B] Sadomasochistic abuse, meaning flagellation, torture, or similar demeaning acts inflicted by or upon a person who is nude or clad in undergarments or in a revealing costume, or the condition of being fettered, bound, or otherwise physically restrained on the part of one so clothed.
[C] Masturbation or lewd exhibitions of the genitals.
[D] Physical contact or simulated physical contact with the clothed or unclothed pubic areas or buttocks of a human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.
Fourth, the defendant acted with the intent that the victim engage in sexual conduct.
Fifth, the defendant’s act took place on (or about) date in county County.
CRIMJIG 12.76—Solicitation of a Child to Engage in Sexual Conduct—Elements.
A defendant can challenge the charge on probable cause grounds. The Minnesota Rules of Criminal Procedure state:
(a) The court must determine whether probable cause exists to believe that an offense has been committed and that the defendant committed it.
(b) The prosecutor and defendant may offer evidence at the probable cause hearing.
(c) The court may find probable cause on the face of the complaint or the entire record, including reliable hearsay. Evidence considered on the issue of probable cause is subject to the requirements of Rule 18.05, subd. 1.
MINN. R. CRIM. P. 11.04, subdiv. 1.
In State v. Coonrod, the defendant was charged with soliciting a child to engage in sexual conduct when he chatted online with an undercover postal inspector. 652 N.W.2d 715, 717 (Minn. Ct. App. 2002). The postal inspector posed as a 14-year-old girl (“Jaime14”), the defendant sent sexually explicit messages to Jaime14, including asking Jaime14 to meet at his apartment to have sex, and then was arrested at their arranged meeting. Id. The postal inspector posing as the girl online and another undercover officer posing as the girl in person testified about the sting, the conversations between them, the exchange of pictures, the arranging of meetings, and the meeting that led to the arrest. Id. at 717–18. Another officer testified that the defendant’s computer revealed that he had a sexual interest in teenagers, though nothing else found was illegal. Id. at 718–19. The defendant testified that he did not know the girl’s age even though he asked her “Just 14 and fun?” and that he sent her many sexually explicit emails. Id. at 719. The court affirmed the jury’s conviction. Id. at 724.
In State v. Levie, the evidence supported the convictions of Solicitation of a Child to Engage in Sexual Conduct. 695 N.W.2d 619, 629 (Minn. Ct. App. 2005). The appellate court summarized the trial evidence:
Here, the district court relied on both S.M.s [the victim] testimony at trial and her out-of-court statements, which were recorded by [Officer] Badker on January 7 and 16, 2003. At trial, S.M. testified that appellant first asked her if he could take nude photos of her when she was eight years old, and she agreed to allow such photos when she was nine years old. S.M. also testified at trial that appellant would ask her to pose on the bed or ‘[s]itting on a stool with my hands like this, pushing on the stool, and my legs out,’ while wearing nothing, and that appellant asked her to take ‘the gymnastics’ pictures without her clothes on ‘[f]our or five times.’ And S.M. testified that appellant, on numerous occasions, offered her between $5 and $100 to pose nude for him.
In the January 7 interview, S.M. stated that appellant told her he wanted to take a ‘straight-on’ photograph of her vagina ‘the time before last.’ The record indicates that S.M.s reference to ‘the time before last’ meant the second to last time that she visited appellants home, which, as the state points out, would have been in December 2002. In the January 16 interview, S.M. also stated that, in November 2002, appellant took pictures of her without her clothes on and ‘was telling [her] to do poses’ while she was behind a white curtain.
Id. at 627. In addition, S.M.’s mother and the investigating officer testified. Id. at 623. S.M.’s mother testified about S.M.’s relationship with the defendant and how she learned about the incidents. Id. Based on all the testimony, the court concluded that the evidence supported the convictions. Id. at 628.
Minnesota statutes define “solicitation” as “commanding, entreating, or attempting to persuade a specific person in person, by telephone, by letter, or by computerized or other electronic means.” MINN. STAT. § 609.352, subdiv. 1(c). In State v. Koenig, the supreme court analyzed “solicitation” in the context of solicitation of a minor. 666 N.W.2d 366 (Minn. 2003). The court analyzed:
Here, under a plain meaning analysis, we must examine the definition given by the statute for the term solicitation. ‘Solicit’ is defined as ‘commanding, entreating, or attempting to persuade a specific person.’ Minn. Stat. § 609.352, subd. 1(c) (2002). The dictionary definition of ‘solicit’ is ‘[t]o seek to obtain by persuasion, entreaty, or formal application.’ The American Heritage Dictionary 1163 (2d College ed.1982). While we do not rely on this definition of solicit because the statute provides a definition, we note that the statute’s definition appears to be in accord with the general understanding of the word ‘solicit.’ ‘Entreat’ is defined as ‘[t]o make an earnest request of.’ Id. at 457. ‘Earnest’ is defined as ‘[m]arked by or showing deep sincerity or seriousness.’ Id. at 434. Regarding an attempt to persuade, an ‘attempt’ is defined as ‘[a]n effort or try.’ Id. at 139. ‘Persuade’ means ‘[t]o cause (someone) to do something by means of argument, reasoning, or entreaty.’ Id. at 926. ‘Command’ means ‘[t]o direct with authority; give orders to.’ Id. at 296. The statute requires that the acts of commanding, entreating, or attempting to persuade be directed at a specific person. Minn. Stat. § 609.352, subd. 1(c).
Id. at 373. The court continued, “The common meaning of entreat requires an element of seriousness in the request.” Id. at 374. The court also included some legislative intent:
Legislative research indicates that Representative David Bishop, the House author of the bill, wished to criminalize the mere request for sexual activity so long as the request was accompanied by a sincere intent to engage in sexual activity. See Hearing on H.F. 1835, H. Comm. Fam. and Crim. L., 74th Minn. Leg., February 19, 1986 (audio tape) (comments of Rep. Bishop). The legislature added the ‘intent to engage in sexual conduct’ language as part of the prohibited act in order to increase the state’s burden of proof. Id. Requiring the state to show intent was added to eliminate the potential that joking or frivolous offers would be subject to prosecution. Id. The intent element makes solicitation an act rather than speech, i.e., the act of attempting to persuade a child to engage in sexual activity. See Senate debate on S.F. 1592, 74th Minn. Leg., March 17, 1986 (audio tape) (comments of Sen. Reichgott, sponsor of Senate bill).
Id. at 375 (emphasis added). In Koenig, the defendant had left sexually explicit voice mail messages for a minor, including comments about oral sex and other sex acts, arranged a meeting, picked up the victims, and drove to a hotel for sex. Id. at 368–69. The supreme court found there was enough evidence to go forward with the case. Id. at 375–76.
The attorneys at Ryan Garry, Attorney, LLC raised this issue before a Minnesota County District Court in 2014. In that case, there was not a clear invocation to engage in sexual activity. The judge agreed with the defense and dismissed the charge. This was a huge win. If you have a solicitation of a minor case, call the Minnesota criminal defense attorneys at Ryan Garry, Attorney, LLC at 612-436-3051.
