dissenting.
The majority assumes that Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 419A(c) operates as a strict liability crime and then holds that such a construction does not offend the First Amendment. Op. at 34, 38. It also holds that the First Amendment does not require that a defendant be afforded a reasonable mistake of age defense.1 I, of course, consistent with my dissenting opinion in Garnett v. State, 332 Md. 571, 593, 632 A.2d 797, 807 (1993), do not agree. Indeed, from my perspective, this case is even stronger than Garnett; it has what Garnett did not, First Amendment implications, the potential chilling effect on speech, which the majority itself acknowledges. Op. at 35. Thus, for the reasons stated in my dissent in Garnett, I respectfully dissent from Part III of the majority opinion.
In Part IV of its opinion, the majority undertakes the construction of § 419A(c). The majority concludes, on the basis of the plain language and its reading of the Legislative history, that knowledge of age is not an element of the offense. My disagreement with this conclusion has already been indicated supra. Conceding that an ambiguity existed as to whether the Legislature intended § 419A(c) to be a strict liability offense or whether it contemplated that a reasonable mistake of age defense would be available, the majority undertook “a detailed analysis of the legislative history,” looking for “important insight into the Legislature’s true intent.” Op. at 45. It agreed with the Court of Special Appeals, based on the amendment of H.B. 243, to delete a provision which would have made clear that mistake of age was not a defense, that “it is arguable that the Legislature did not want to eliminate the availability of a mistake of age defense, but rather intended to *54permit a defendant indicted under § 419A(c) to argue that he was reasonably mistaken about a child’s age.” Id. at 47. It also recognized that the weight of authority is in favor of allowing the defense. Id. at 47-48 n. 18 & 19. The majority then proceeds to reject the proposition that proof of age and the mistake of age defense must co-exist. It noted, in that regard, that scienter may not be an element of a crime, a defense to which may be a reasonable mistake of age. It goes on expressly to reject the argument that it is unconstitutional for the State to allocate, by presumptions, the initial burden of production, and expressly to endorse the placement on the defendant of the burden to generate the mistake of age issue. But it never explicitly decides, so far as I have been able to determine, that the mistake of age defense was not contemplated by the Legislature when it enacted § 419A(c).
To the extent that the majority opinion can be read as holding that the mistake of age defense applies to § 419A(c), I would concur. The majority has accurately stated my position in that regard. Op. at 51. If it cannot be so read, then, of course, I dissent from this part of the opinion, as well.
The majority concludes that Outmezguine “failed to raise the issue of mistake of age and therefore has waived this defense” because, in testimony, he said only that he “did not know how old she was.” Op. at 51-52. I agree with the petitioner that the issue was adequately preserved for appellate review; there was in the record sufficient evidence to generate the claim of reasonable mistake of fact.
We recently considered “under what circumstances imperfect self-defense may be generated by evidence other than the defendant’s testimony,” that is to say, whether the source of the evidence to establish a claim of mistake of fact, because it is necessarily subjective and provable only by circumstantial evidence, see State v. Jenkins, 307 Md. 501, 513-15, 515 A.2d 465, 471-72 (1986), must be the defendant’s testimony. State v. Martin, 329 Md. 351, 358-59, 619 A.2d 992, 995-96 (1993). We noted, as we had done in earlier cases, that, to generate the defense, all that was required was ‘ “some evidence’ of the *55issue of mitigation or self-defense (or [rely] upon evidence produced by the State),” id. at 358, 619 A.2d at 995, quoting State v. Evans, 278 Md. 197, 208, 362 A.2d 629, 635 (1976), and that:
“Some evidence is not strictured by the test of a specific standard. It calls for no more than what it says—“some,” as that word is understood in common, everyday usage. It need not rise to the level of “beyond reasonable doubt” or “clear and convincing” or preponderance.” The source of the evidence is immaterial; it may emanate solely from the defendant. It is of no matter that the self-defense claim is overwhelmed by evidence to the contrary. If there is any evidence relied on by the defendant which, if believed, would support his claim that he acted in self defense, the defendant has met his burden. Then the baton is passed to the State. It must shoulder the burden of proving beyond a reasonable doubt to the satisfaction of the jury that the defendant did not kill in self defense.”
329 Md. at 359, 619 A.2d at 995-96, quoting Dykes v. State, 319 Md. 206, 571 A.2d 1251, 1257 (1990). (emphasis added). We explained that that evidence, to be sufficient to generate the issue of mistake of fact, must be of circumstances permitting an inference to be drawn as to the defendant’s state of mind at the time of the act, ie., evidence tending affirmatively to prove what the defendant felt or believed at the relevant time. Id., 329 Md. at 367-68, 619 A.2d at 1000. Cf. Dykes, 319 Md. 206, 571 A.2d 1251 (defendant is entitled to an instruction on imperfect self-defense as long as there is “any” evidence in the case from which a jury could conclude that the defendant had the subjective belief that the use of deadly force was necessary). The source of that evidence ordinarily is, but need not be, the defendant’s testimony. Martin, 329 Md. at 361-62, 619 A.2d at 997.
In this case, the combination of the appearance of the victim, the jury’s question regarding the mistake of age defense, and the petitioner’s conceded lack of knowledge of the victim’s age coalesce to generate the issue. The petitioner testified at trial that “I did not know how old she was.” *56Photographs of the victim at fifteen years of age were introduced into evidence and, presumably, on the basis of those pictures, the jury inquired of the trial court whether mistake of age was a defense. This was sufficient to satisfy the “some evidence” requirement to generate the mistake of age defense. The trial court was therefore required to instruct the jury in accordance with the petitioner’s request on mistake of age. See Maryland Rule 4-325. Its failure to so instruct was also reversible error.
. Generally, mistake of fact may negate the mental state required to establish a material element of a crime. Wayne R. LaFave and Austin W. Scott, Jr., Criminal Law, § 47, at 356 (1972). A person who engages in proscribed conduct is relieved of criminal liability if, because of ignorance or mistake of fact, he or she did not have the requisite culpable mental state. See Wharton's Criminal Law § 76 at 369-70 (14th ed. 1978).