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