Appendix — White v. Minnesota

FILED

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j 3 4)

5% 3 JUN 13 199)

SUPREME COURT OF THE UNMEED Sr desteF*

October Term, 1990

No.

Eve White, a/k/a, Eve Cascio,

Petitioner,

VS.

State of Minnesota,

Respondent.

APPENDIX TO PETITION

FOR WRIT OF CERTIORARI

Randall D.B. Tigue

Attorney for Petitioner

2620 Nicollet Avenue

Minneapolis, Minnesota 55408

(612) 874-9903

APPENDIX INDEX

Complaint Ai

Petitioner’s Notice of Motion and

Motion to Dismiss Criminal Complaint A.21

Affidavit of Randall D.B. Tigue | A.25

Omnibus Hearing Order A.42

Petitioner’s Notice of Motion and

Motion for Judgment of Acquittal

Notwithstanding the Verdict A.53

Petitioner’s Memorandum in support

of Motion for Judgment of Acquittal A.56

Opinion of Minnesota Court of Appeals A.72

Order of Minnesota Supreme

Court denying Petition for Review A.87

Texts of Constitutional and

Statutory Provisions A.88

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF ST. LOUIS SIXTH JUDICIAL DISTRICT

STATE OF MINNESOTA

Plaintiff,

- COMPLAINT

VS.

Eve White a/k/a Eve Cascio,

Defendant.

The Complainant being duly sworn, makes complaint to the above-

named Court and states that there is probable cause to believe that the

Defendant committed the following offense(s). The complainant states

that the following facts establish PROBABLE CAUSE:

That your complainant is a Lieutenant with the Duluth Police

Department and is familiar with persons submitting reports in this_

matter, believes those persons to be reliable and their reports to be true

and correct.

On Friday, May 5, 1989, the Duluth Police Department Juvenile Bureau

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received a complaint that a 17-year-old female was performing/dancing

in the upstairs of the Wabasha Book Store located at 13 - 15 E.

Superior Street in downtown Duluth, Minnesota. This 17-year-old

female was identified by naiae and photograph as a minor from

Bloomington, Minnesota.

At approximately 8:40 p.m. on May 5, Duluth Police Officers

Christensen, Ells and Thamm went to the Wabasha Book Store to

investigate this complaint. Officers Ells and Thamm remained outside

the store while Officer Christensen went into the store. Officer

Christensen asked a clerk in the downstairs area of the store if they had

“girls performing”. He pointed to a door and said, "Through that door

and upstairs". Christensen then went to the upstairs area where he met

another clerk. Christensen asked this clerk if they had "girls

performing". The clerk replied, "Yes". The clerk stated that for $1

Christensen could get four tokens and that the tokens could then be

used in small viewing rooms in order to raise panels and observe the

dancers. Christensen purchased four tokens for $1 and went to a room

and entered. Christensen placed four tokens in a slot causing a panel

A.2

to rise. Christensen then observed a female start to dance. This woman

was dressed in panties and a sleeveless top. She had blond hair.

Christensen knew this was not the 17-year-old female previously

identified to him by name and photograph. The dancer came to the

window stating that she was "Nicki" and that Christensen needed to tip

her $1 before she would dance. Christensen then gave "Nicki" $1. She

started to dance, partially removing her top, exposing her breasts. She

then rubbed her breasts in a sexual manner. She then came back to the

window and stated she would like to meet Christensen in the "rap room".

Christensen asked if there were any other dancers, at which time the

panel covering the glass window went down.

Christensen went back to the upstairs clerk/ cashier and purchased eight

more tokens for $2. Christensen then went back to the viewing room

and placed four more tokens in the slot. Again, a panel went up.

Again, "Nicki", the blond-haired female came out to perform.

Christensen once again asked if there were any other dancers, and

within a short time, "Nicki" stopped dancing and another female entered.

This female Christensen recognized as the 17-year-old female he had

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seen a photograph of earlier. The panel then closed once again.

Christensen then inserted four more tokens, and the panel went up

again. The female whom Christensen believed to be the 17-year-old

from Bloomington, Minnesota came over to the window and told

Christensen he needed to tip her $1 before she would start dancing.

Christensen then gave her $1 and she started to dance. She wen dressed

in panties and a red top. Once she started dancing, she lowered her top

below her breasts and began to rub her breasts, caressing and stoking

them in what Christensen believed to be a sexual manner. She then

placed her right leg up alongside the window Christensen was looking

through. She then slid her panties to the side exposing her vagina. She

then with her left hand stroked her vagina in a sexual manner. She then

asked Christensen to meet her in the "rap booth", stating she would be

there at 9:00. The panel then closed and Christensen left and viewing

booth.

Christensen then went back downstairs and outside to meet Officers Ells

and Thamm. All three officers then went back into the Wabasha Book

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Store at approximately 9:00 p.m. Officer Thamm remained downstairs

getting information from the downstairs clerk. Officers Ells and

Christensen went upstairs to talk to the upstairs clerk. Officers Ells and

Christensen identified themselves as Duluth Police Officers and asked

to speak to the second dancer Christensen had just seen perform. The

upstairs clerk buzzed the door for the officers so they could enter an

"Employees Only" area.

In this area, Christensen and Ells again identified themselves as Duluth

Police Officers. They talked with the two dancers in this area: the

blond-haired dancer named "Nicki" later identified as 25-year-old V.J.S.

of Minneapolis, Minnesota; and 17-year-old R.A.R. of Bloomington,

Minnesota.

R.A.R. first identified herself to the officers by means of a false

Minnesota Identification Card as her 26-year-old sister, C.L.R.; however,

upon further questioning, R.A.R. admitted her true name and her true

age to be 17 years (dob: 4-16-72). Subsequently, Officer Christensen

obtained a certified copy of a birth certificate for R.A.R., in fact, stating

AS

her date of birth to be Apmi 16, 1972.

R.A.R. went to the Duluth Police Department with the officers on the

evening of May 5, 1989. There she talked with the officers and gave

them a written statement. In these statements, R.A.R. indicated that

she had started dancing approximately ten days earlier in Minneapolis.

R.A.R. indicated that she went to the Chicago and Lake Street book

store in Minneapolis and talked with a woman named "Eve" about

getting a job dancing. R.A.R. explained that she gave "Eve" he false ID

of her sister, C.L.R. "Eve" then hired R.A.R. to dance. "Eve" told

R.A.R. that the terms of employment were: be on time; no prostitution;

and $1.50 per hour wages with R.A.R. getting to keep all the tips she

made. R.A.R. explained that "Eve" also made out the work/dancing

schedule for her. R.A.R. said she would then get paid once a week

every Sunday. R.A.R. stated that she danced/performed four nights at

different stores in Minneapolis. Her dad then found out what she was

doing so she asked "Eve" if she could go to Duluth to work. "Eve" then

scheduled R.A.R. to dance/perform at the Wabasha Book Store in

Duluth starting Monday, May 1, 1989.

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R.AR. stated that during the week of May 1-5, 1989, at the Wabasha

Book Store in Duluth, she made the following amount of money: on

Monday, she worked eight hours and made $215 in tips; on Tuesday she

worked eight hours and made approximately $150 in tips; on Wednesday,

she worked two hours and made $75 in tips; on Thursday, she worked

cight hours and made $185 in tips; so far on this day, Friday, May 5,

before being arrested by police, she had worked a little over two hours

and had made $26 in tips. R.AR. explained that she was making

approximately the same amount of money when she was dancing at the

stores in the Minneapolis area, averaging about $175 in tips per night.

R.A.R. also told the officers that when she gave the false C.L.R. card to

"Eve" in order to be employed as a dancer, "Eve" stated that "I looked

younger". R.AR. also explained that "Eve" did all the hiring and

scheduling for all the girls dancing/performing at all the book stores in

the Minneapolis area and Duluth. R.A_R. stated that when she came to

Duluth, she went to one of the clerks at the Wabasha Book Store at 13-

1S E. Superior Street, asked for a time card, filled it out and then

started working on Monday, May 1. R.A.R. stated that while she was

A.7

in Duluth during the first week of May, she stayed at an apartment

owned by the Wabasha Book Store located at 633 E. 4th Street in

Duluth. R.A.R. explained that she paid $5 a day to live there, as did all

the dancers from the Twin Cities.

Follow-up investigation of this matter by Officer Christensen has

revealed the following additional facts. The manager of the Wabasha

Book Store located at 13-15 E. Superior Street in Duluth is the John

William Sarette. On May 26, Sarette talked with Officer Christensen at

the Duluth Police Department. Sarette indicated that he has worked at

the Wabasha Book Store in Duluth at several different locations for the

past 17 years. Sarette indicated that the owner of the Wabasha Book

Store is Ferris Jacob Alexander, Sr. Sarette indicated that female

dancers had been performing in the upstairs of the Wabasha Book Store

for about 2-1/2 months. Sarette indicated that Ferris Alexander made

the decision to have dancers at the Wabasha Book Store. Sarette

indicated that Alexander hired a construction company to remodel the

Wabasha Book Store by building a stage area for the dancers and

viewing books around the stage for customers to watch the dancers.

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Sarette went on to explain that the dancers at the Wabasha Book Store

were sent to Duluth by a female named "Eve" in Minneapolis. Sarette

stated that he did not know “Eve’s" last name. Sarette explained that

"Eve" sent a dancing schedule with the dancers. Sarette stated that

occasionally "Eve" would call him to ask how things are going and to tell

him the name of a dancer who would be coming to Duluth. Sarette

stated he did not know the dancers’ full names but only their "stage

names". Sarette explained that the dancers would come from

Minneapolis usually for two weeks at a time and then change. Sarette

explained that the dancers stayed at an apartment owned by the

Wabasha Book Store located at 633 E. 4th Street in Duluth. Sarette

explained that the dancers supposedly pay "Eve" for staying at this

apartment while staying in Duluth. Sarette stated that the dancers

receive $1.50 per hour wages. He stated that they are paid by check

which is sent from Minneapolis to the Wabasha in Duluth. The checks

are then handed out by Wabasha employees to the dancers. Sarette

stated that these checks are drawn on a News Paper Club checking

account in Minneapolis, and Sarette explained that these checks are

signed by Ferris Alexander. Sarette explained that the dancers get paid

Ag

once a week just as the other Wabasha employees.

Sarette told Officer Christensen that the dancers were hired by "Eve" to

do exotic dancing which in his explanation is similar to the strip-type

dancing they do at the Club Saratoga; however, Sarette went on to

explain that he had never watched the dancers at the Wabasha or at the

Saratoga so he did not know what type of dancing that was.

Sarette told Officer Christensen that he usually had four or five dancers

performing during a week, taking turns working different shifts.

Christensen asked Sarette if he (Sarette) knew the 17-year-old dancer

R.A.R. Sarette stated he had probably seen her in the book store, but

he (Sarette) did not know what her name was or anything about her.

Sarette explained that when a dancer comes to the Wabasha in Duluth,

she signs in with the upstairs clerk in the store and then goes in and

does her dancing. Sarette also told Officer Christensen that he had

received some complaints from customers at the Wabasha Book Store

that the dancers wanted too much in tips to dance. Sarette, on the

other hand, heard from customers at the Wabasha that the dancers were

A.10

very good and better than those at the Saratoga. Sarette went on to

explain that he did not know what that meant, as he did not ask the

customers for any further explanation.

Sarette ended his May 26 conversation with Officer Christensen by

stating that he (Sarette) did not agree with what was going on at the

Wabasha Book Store at this time, and because of this he (Sarette) was

presently looking for other work.

On May 26, 1989, Officer Christensen also interviewed Wabasha Book

Store employees Clifford Bergstrom and Danie! Engstrom. Bergstrom

was the downstairs clerk at the Wabasha Book Store on the evening of

May 5. 1989, and Engstrom was the upstairs clerk at the Wabasha Book

Store that evening when Officer Christensen came to the store and

observed 17-year-old R.A.R. dancing. Bergstrom indicated that he has

worked for Ferris Alexander in either a handyman or clerk capacity for

3-1/2 years. Engstrom indicated that he has worked at the Wabasha

Book Store in Duluth for approximately 2-1/2 years, working at a

number of different buildings that Ferris Alexander owned in Duluth.

A.ll

Both Bergstrom and Engstrom indicated during their separate interviews

that Ferris Alexander owns the Wabasha Book Store, and John Sarette

manages the store. Both men stated that the female exotic dancers have

been performing at the store for approximately 2-1/2 months. Both men

stated that Ferris Alexander hired a construction crew from the

Minneapolis area to do the remodeling work at the book store which

resulted in a stage tor the dancers and viewing booths for customers

around the stage being built. Bergstrom indicated that Ferris Alexander,

himself, came to the Wabasha Book Store in Duluth at least once to

check on how the construction of the stage and viewing booths was

going. Both Bergstrom and Engstrom indicated that the hiring and

scheduling of the dancers was done by a woman named "Eve" in

Minneapolis. Both men stated that back in February, 1989, "Eve" came

to Duluth from Minneapolis to interview local women to work as

dancers. Both men stated that "Eve" sends the girls up to Duluth along

with a schedule of when they are to perform. Both men told Officer

Christensen that the rules for the dancers including the following: no

prostitution/ propositioning allowed and no drugs or alcohol allowed.

Both Bergstrom and Engstrom stated that they had never personally

A.12

observed the dancers perform at the store. Bergstrom indicated that the

dancers received their pay by check which was sent from Minneapolis.

Bergstrom stated that these checks were drawn on the checking account

of the "News Paper Club". Bergstrom stated that these paychecks were

signed by Ferris Alexander.

On May 30 and June 12, 1989, Sgt. Scott Lyons of the Duluth Police

Department spoke with the manager of the apartments located at 633

E. 4th Street in Duluth. The manager’s name is Marcia Pitesa. Ms.

Pitesa indicated to Sgt. Lyons that on February 23, 1989, the manager

of the Wabasha Book Store in Duluth (John Sarette) came to her office

and paid a $100 deposit for rent of Apt. A at 633 E. 4th Street. On

March 1, 1989, and again on April 1, 1989, another $315 was obtained

in payment for this room from Sarette. Ms. Pitesa stated that Sarette

paid her in cash. Ms. Pitesa stated that girls who are working at the

Wabasha Book Store live at this apartment. Ms. Pitesa also indicated

that she has spoken with a woman named "Eve" over the phone several

times. "Eve" indicated that she ("Eve") would be sending money to Ms.

A.13

Te ee eh ee oe A. pal ae a ae < ee a oe

> lela =. vA = m ~ r re -

——s i. ss ie a a ph ala yee | — ef See Ee 8 8 OR eee oe ee a

Pitesa to pay for the rent of this apartment whenever that rent is past

due. One of the application forms for one of the dancers siaying in Apt.

A lists as a personal reference the above-named defendant, Eve White

of 741 E. Lake Street in Minneapolis, Minnesota.

Follow-up investigation reveals that 741 E. Lake Street in Minneapolis,

Minnesota is the location of the Chicago-Lake Book Store which is

owned by Ferris Alexander. Also, on the evening o May 5, 1989, when

R.A.R. was at the Duluth Police Department with officers Christensen,

Thamm and Ells, a woman identifying herself as Eve Cascio called the

Duluth Police Department and talked with Officer Ells. This woman

identifying herself as Eve Cascio stated she was an employee of the

News Paper Club. This woman identifying herself as Eve Cascio also

indicated to Officer Ells that she wanted to know what was happening

with R.ALR.

On June 15, 1989, Officer Christensen interviewed Duluth News Tribune

employee Liz Bardon. Ms. Bardon works in the advertising department

at the Duluth News Tribune. During this conversation, Ms. Bardon

A.14

indicated that in May of 1989, a man who said he was the manager of

the Wabasha Book Store in Duluth came to the Duluth News Tribune

Offices and requested that Ms. Bardon put an ad in the newspaper for

exotic dancing at the Wabasha Book Store located at 15 E. Superior

Street. Ms. Bardon described this "manager" as a heavy set man with

blond hair and bushy moustache. Given this description by Ms. Bardon

and his own knowledge of John William Sarette, Officer Christensen

believes that the individual who was placing the Wabasha advertisements

for exotic dancing in the paper is, in fact, John William Sarette. In

response to this request from Sarette, two advertisements were placed

in the Duluth News Tribune advertising: "Live, On Stage, Beautiful

Dancing Girls" at "The Wabasha" located at 15 E. Superior Street

between "10:00 a.m.-2:00 a.m." during May, 1989. These advertisements

appear in the May 26, 1989, and May 29, 1989, Duluth News Tribune.

In addition, the February 23, 24, and 25, 1989, editions for the Duluth

News-Tribune each contain the following "Grand Opening"

advertisement for "The Wabasha" located at 15 E. Superior Street:

"Grand Opening, Live on Stage, Beautiful Dancing Girls". Ms. Bardon

explained to Officer Christensen that these advertisements by the

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Wabasha Book Store are billed to A.Z. Adult Book Store located at 15

E. Superior Street in Duluth, Minnesota. Ms. Bardon explained that the

"A.Z. Adult Book Store" account was an old account for the same store

as Wabasha Book Store and to save paperwork, the name was not

changed.

On June 15, 1989, Officer Christensen also talked with Ms. Renee M.

Lucas of the accounting department at the Duluth News Tribune in

Duluth. Ms. Lucas indicated that payments of the advertising bills for

the Wabasha Book Store for April and May of 1989 had been received.

Ms. Lucas indicated that this advertising account had been paid by

check. Subsequently, Ms. Lucas forwarded a copy of an April 24, 1989,

check used to pay this advertising account at the Duluth News Tribune

to Officer Christensen. This April 24, 1989, check is Check #2417

drawn on the Union Bank and Trust Company of Minneapolis,

Minnesota, checking account of the News Paper Club located at 315 E.

Lake Street in Minneapolis, Minnesota. This check, payable to the

order of the Duluth News-Tribune in the amount of $2,132.67 bears the

signature of "Ferris Alexander" on the maker line of the check.

A.16

ees,

The above facts constitute the basis for believing the above-named

defendant between approximately February 15, 1989, and May 6, 1989,

at the City of Duluth in the above-named county committed the

following described

OFFENSE

Charge: Use of a Minor in Sexual Performance, in violation of

Section: 617.246, Subd. 2 with reference to 617.246, Subd. 1 and 617.246,

Subd. 5 and 609.05.

Maximum sentence: Five years and/or $10,000 for the first offense;

Five years and/or $20,000 for a second or

subsequent offense.

(description)

That the defendant, Eve White a/k/a Eve Cascio, while intentionally

aiding, abetting, advising, counselling or conspiring with or being aided

and abetted by others, did unlawfully promote, employ, use or permit a

minor, to-wit: R.A.R., to engage in posing or modeling alone or with

others in any sexual performance, said defendant knowing or having

reason to know that the intended conduct of R.AR. is a sexual

performance as defined by law.

A.17

THEREFORE, Complainant requests said Defendant, subject to bail or

conditions of release be:

(1) arrested or that other lawful steps be taken to obtain

defendant's appearance in court; or

(2) detained, if already in custody, pending further

proceedings;

and that said Defendant otherwise be dealt with according to law.

Complainant’s Name: Beverly Ecklund

Being duly authorized to prosecute the offense(s) charged, I

hereby approve this Complaint.

Date: June 23, 1989

Prosecuting Attorney:

Name/Title: John E. DeSanto

Assistant County Attorney

Address/Telephone: 100 N. Sth Ave.W., Rm 501

Duluth, MN 55802-1298

Tel: (218) 726-2323

FINDING OF PROBABLE CAUSE

A.18

From the above sworn facts, and any supporting affidavits or

supplemental sworn testimony, I, the Issuing Officer, have determined

that probable cause exists to support, subject to bail or conditions of

release where applicable, Defendant(s) arrest or other lawful steps be

taken to obtain Defendant(s) appearance in Court, or his detention, if

already in custody, pending further proceedings. The Defendant(s)

is/are thereof charged with the above-stated offense.

SUMMONS

THEREFORE You, THE ABOVE-NAMED DEFENDANT(S),

ARE HEREBY SUMMONED to appear on the day , 19 at

AM/PM before the above-named court at to answer this complaint.

IF YOU FAIL TO APPEAR in response to this SUMMONS,

a WARRANT FOR YOUR ARREST shail be issued.

WARRANT

To the sheriff of the above-named county; or other person

authorized to execute this WARRANT, I hereby order, in the name of

the State of Minnesota, that the above-named Defendant(s) be

apprehended and arrested without delay and brought promptly before

the above-named Court (if in session, and if not, before a Judge of

A.19

Judicial Officer of such Court without unnecessary delay, and in any

event not later than 36 hours after the arrest or as soon thereafter as

such Judge or Judicial Officer is available) to be dealt with according to

law.

ORDER OF DETENTION

Since the above-named Defendant(s) is/are already in custody;

I hereby order; subject to bail or conditions of release, that the

above-named Defendant(s) continue to be detained pending further

proceedings.

Bail: 10,000

Conditions of Release:

This COMPLAINT - WARRANT, was sworn to subscribed

before, and issued by the undersigned authorized Issuing Judicial Officer

this, 27 day of June, 1989.

Name: =

Title:

Sworn testimony has been given before the Judicial Officer by

the following witnesses:

A.20

_

Caption Cited

NOTICE OF MOTION

TO: The above-named Plaintiff, and Mr. John E. DeSanto, Assistant

County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth,

Minnesota 55802, its attorney:

PLEASE TAKE NOTICE that the above-named Defendant, by

the undersigned, will bring the attached motion for hearing before the

Omnibus Judge in his courtroom in the St. Louis County Courthouse,

Duluth, Minnesota, on August 16, 1989, at 1:30 p.m., or as soon

thereafter as counsel can be heard.

s/Randall D.B. Tigue

Randall D.B. Tigue

Attorney for Defendant

2620 Nicollet Avenue

Minneapolis, Minnesota 55408

(612) 874-9903

Minn. Sup.Ct. Lic.No. 110000

Dated: August 3, 1989.

A.21

—

Caption Cited

MOTION TO DISMISS

CRIMINAL COMPLAINT

The above-named Defendant, by the undersigned, hereby moves

this Court for an order, pursuant to Rules 10 and 17 of the Minnesota

Rules of Criminal Procedure, dismissing the criminal complaint against

her on the following grounds:

I. Minnesota Statutes Section 617.246 is facially

unconstitutional and unconstitutional as applied to Defendant, to the

extent that it imposes absolute criminal liability upon the producer,

director, or publisher of a film, book, magazine or live performance

involving a sexual performance by a minor, regardless of the defense’s

knowledge or scienter of the minor’s age:

The elimination of the scienter requirement renders the

statute facially overbroad, as a violation of freedom of speech and of the

press, as guaranteed by the First and Fourteenth Amendments to the

United States Constitution, and Article 1 Section 3 of the Minnesota

Constitution.

B. The elimination of a scienter requirement deprives

A.22

re

Defendant of liberty without the process of law and of equal protection

of the laws, in violation of the Fourteenth Amendment to the United

States Constitution.

IT. The complaint fails to allege sufficient facts to enable a

neutral and detached magistrate to find probable cause to believe that

an offense has been committed or that Defendant committed the

offense, on the following grounds:

A. If the statute is construed to preserve its constitutionality,

sO as to incorporate a scienter requirement, the complaint is facially

insufficient, in that facts alleged in the complaint absolute negate the

presence of scienter.

B. The complaint fails to allege sufficient facts to enable a

neutral and detached magistrate to find probable cause to believe that

the Defendant named herein is the person who committed the offense.

ion The complaint fails to allege sufficient facts to enable a

neutral and detached magistrate to find probable cause to believe that

the Defendant promoted, employed, or used a minor to engage in a

sexual performance as that term is defined in Minnesota Statutes Section

617.246, Subds. 1(d), (e) and 2.

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The foregoing motion shall be based upon the criminal complaint

in the above-entitled matter, upon the attached affidavit and exhibits,

upon the attached memorandum of law, and upon all of the files,

records, and

proceedings herein.

s/Randall D.B. Tigue

Randall D.B. Tigue

Attorney for Defendant

2620 Nicollet Avenue

Minneapolis, Minnesota 55408

(612) 874-9903

Minn. Sup.Ct. Lic.No. 110000

Dated: August 3, 1989.

A.24

Caption Cited

AFFIDAVIT OF

RANDALL D.B. TIGUE

STATE OF MINNESOTA)

)SS

COUNTY OF HENNEPIN)

Randall D.B. Tigue, being first duly sworn on oath, hereby

deposes and says the following:

l. Your affiant is the attorney for Defendant in the above-

entitled matter.

2. Pursuant to a discovery request, your affiant has obtained

from the prosecutor in the above-entitled matter an investigation report

by Officer Christensen, dated 5/5/89, a copy of which is attached hereto

as Exhibit A, and a Statement of Rachelle Reynolds, the alleged minor

involved in the above-entitled matter, a copy of which is attached hereto

as Exhibit B.

3. Your affiant executes this affidavit in support of the

attached motion to dismiss the criminal complaint against Defendant.

A.25

Sworn to and suscribed to before

me this 10th day of August, 1989.

s/Marilee Kaeder

Marilee Kaeder, Notary Public

A.26

s/Randall D.B. Tigue

Randall D.B. Tigue

DULUTH POLICE DEPARTMENT

INVESTIGATION REPORT

Offense/Incident Misrepresentation of Age Date

Reported 05-05-89

Time Reported 2100 hrs.

Place of Occurrence The Wabasha Book Store

#13 E. Superior St.

(upstairs), Duluth

Date and Time of Occurrence 05-05-89, 2100 hrs.

Reported By Special Investigations Unit

Address Duluth Police Department

Subject/Suspect Rachelle Alayne Reynolds

D.O.B. 04-16-72 Age 17

Sex F HGT 506

WGT 118 RACE W

Home Address 9042 Highland Creek Road,

Bloomington, MN 55437

Home Phone 830-1241

SYNOPSIS:

On 05-05-89, Sgt. England, of the Juvenile Bureau, received information

A.27

-™

that a 17-year-old female, RACHELLE REYNOLDS, was performing

in the upstairs of the Wabasha Book Store. We are aware that the

Wabasha Book Store does have female who perform a burlesque-type

show. Officers then did go into the Wabasha Book Store, undercover,

observe the 17-year-old female performing, and subsequently arrested

her for misrepresentation of age. She was lodged at the Arrowhead

Juvenile Center and the vehicle she was in possession of was towed for

safekeeping.

DETAILS OF OFFENSE/INCIDENT

DETAILS:

On 05-05-89, Sgt. England, of the Juvenile Bureau, advised Juvenile

Officer Ells and myself (Christensen), of the Special Investigations Unit,

that he had received information that a 17-year-old female, RACHELLE

ALAYNE REYNOLDS, of Bloomington, Minnesota, was currently in

Duluth and dancing or performing upstairs of the Wabasha Book Store.

He produced a photograph of RACHELLE REYNOLDS which was

taken a few years ago while she attended Woodland Hills in Duluth.

Sgt. England advised that we should try and observe RACHELLE

REYNOLDS performing and then confront her, requesting some

A.28

identification. He stated if she produced a false identification, she

should be lodged at the Arrowhead Juvenile Center.

At approximately 2040 hours, Officers Ells and Thamm, of the Juvenile

Bureau, and myself (Christensen), of the Special Investigations Unit,

went to the Wabasha Book Store, #13 East Superior Street. Officers

Ells and Thamm remained outside and I (Officer Christensen) went into

the book store. There was a clerk in the downstairs area and I asked

him if they had girls performing. He pointed to a door and said,

"Through that door and upstairs". I then went to the upstairs area

where there was another clerk. I asked him if they had girls performing

and he said, "Yes", they did. He said that for $1.00 you got four tokens

and you were to go into one of a number of small rooms, place the coins

in the slot, and the panel covering the window would rise and you could

observe the dancers. I purchased four tokens for $1.00 and then went

to a room and entered. Upon placing my four tokens in the slot, the

panel did rise and a female started to dance. She was dressed in panties

and a sleeveless top. She had blonde hair and I knew she was not

RACHELLE REYNOLDS. She came over to the window, stating she

A.29

}

.

5

was "NICK", and that I needed to tip her $1.00 before she would dance.

I gave her $1.00 nd she started to dance, partially removing her top,

exposing her breasts, and then she rubbed her breast in a sexual manner.

She then came back to the window and stated she would like me to

meet her in the "rap" room. I then asked if there were any other

dancers, at which time the panel covering the giass went back down.

I went back to the cashier/clerk and purchased eight more tokens and

went back to the room. I placed four more tokens in the slot and again

the panel went up and once again "NICKI", the blonde haired female,

came Out to perform. I once again asked if there were any other

dancers, and within a short time she stopped dancing and another female

entered. This female I recognized through the photograph as being

RACHELLE REYNOLDS. The panel then closed once again and I

inserted four more tokens and when the panel rose again, the female

who I believed to be RACHELLE REYNOLDS came over to the

window and told me I needed to tip her $1.00 before she would start

dancing. I asked her what her name was and she said her name was

"CHERYL". I gave her $1.00 and then she started to dance. She was

A.30

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dressed in panties and a red top. Once she started dancing, she lowered

her top below her breasts and began to rub her breasts, caressing and

stoking them in what I believed to be a sexual manner. She then placed

her right leg up alongside the window and then sliding her panties,

exposed her vagina. She then with her left hand stroked her vagina in

a sexual manner. She then came up to the window and asked me to

meet her in the "rap" booth stated she would be there at nine o’clock.

The panel then closed and I left the booth.

I went back downstairs and outside, and met Officers Ells and Thamm.

I advised them that I did observe the 17-year-old female, and it was

decided we would go back upstairs at approximately 2100 hours and

confront her.

At approximately 2100 hours, I then entered the Wabasha Book Store

and went back upstairs to the clerk. Officers Thamm and Ells entered

within a few seconds. Officer Thamm remained downstairs getting

information from the downstairs clerk, and Officer Ells and I spoke with

the upstairs clerk. (For further information regarding the identity of the

A3l

a

te at he, a Siuisd SL ita ND

clerks, see Officer Thamm’s supplemental report.) We identified

ourselves as Duluth Police officers and told him we needed to speak

with the dancer named "CHERYL". He then buzzed the door for us

and we entered the "employees only" area where we found the dancer

who was later identified as VALERIE JOANNE SUNDIN, DOB 02-16-

64, of 328 East 46th Street, Minneapolis, Minnesota.

We identified ourselves once again as Duluth Police officers to these

two dancers and asked for some identification from RACHELLE

REYNOLDS. She produced a Minnesota identification card in the

name of CHERYL LYNN REYNOLDS, DOB 01-26-63, of 3908 -

113th Street, Bloomington, Minnesota 55438. I questioned

RACHELLE REYNOLDS about the Minnesota identification card and

she answered the questions correctly. I then gave the Minnesota

identification card to Officer Ells who was going to call in a query

through the computer. I then said to RACHELLE REYNOLDS, "You

are not Cheryl, you are Rachelle, aren’t you?", and she said, "Yes". I

asked her how old she was and she said 17 years old. I asked her if

CHERYL LYNN REYNOLDS was her sister and she said, "Yes". I

A.32

asked her if she had any other identification showing that she was

RACHELLE ALAYNE REYNOLDS, and she said, "No", that her

driver's license had been taken away. I told her she was under arrest for

misrepresentation of age and that she would have to come with us. She

was then allowed to dress. Before leaving, we went through her purse

and found inside an address book with her name, RACHELLE

REYNOLDS, and a few other items with her proper name. Prior to

leaving, RACHELLE said she had over $800 in her car parked out back

of the store. She asked if she could get it and we went with her to a

silver Chevrolet Monte Carlo, Minnesota license 835-AGV.

RACHELLE was unable to get into the car because the locks were

frozen. We then transported RACHELLE REYNOLDS back to the

Duluth Police Department where I interviewed her in the Special

Investigations Unit office.

At approximately 2130 hours, I advised RACHELLE REYNOLDS of

her rights per Miranda, which she stated she understood and was willing

to talk to me. I asked her when she started dancing and she said that

approximately ten days ago, she went to one of the book stores in the

A.33

Minneapolis area, the name of which she can’t remember, but said it was

at 741 South Lake in Minneapolis. She told one of the clerks she was

looking for a job. She was then told to talk to a female whose first

name she knew as "EVE", and "EVE" talked to her and asked for an

I.D. card. RACHELLE said she showed "EVE” her Minnesota

identification card in the name of CHERYL LYNN REYNOLDS and

was then hired. She said she danced for the different book stores in the

Minneapolis. area, and on this past Monday, 05-01-89, she came to

Duluth to dance at the Wabasha Book Store. I asked her where she got

the Minnesota identification card and she said she took her sister’s birth

certificate and went and applied for the identification card, but the

photo on it is of her.

I asked RACHELLE how much she made working for the book stores

and she said they pay $1.50 an hour and the dancers can keep all their

tips. [ asked how much she has made since being in Duluth on Monday,

and she said on Monday she worked eight hours and made $215 in tips.

On Tuesday she worked eight hours and made approximately $150 in

tips, on Wednesday she worked two hours and made approximately $75

in tips, and on Thursday she worked eight hours and during the day from

10 a.m. to 6 p.m. and made $185 in tips. She said that so far this day,

Friday, for a little over two hours she had made $26 in tips. I asked

RACHELLE how much she was making in the Minneapolis area and

she said she was making approximately the same amount of money

there.

I asked RACHELLE if she knew any of the people who worked at the

Wabasha Book Store and she said when she came to Duluth, she went

to one of the clerks, asked for a time card, filled it out, and then started

working on Monday. She said she did not know any of the employees

names and they were expecting her because "EVE" does all the hiring

and scheduling for all the girls at all the book stores.

Officer Ells then came into the office advising he had just spoken over

the telephone with a female who identified herself as EVE CASCIO, of

the Newspaper Club, phone 825-1909, 224-5651, wanting to know what

was happening with CHERYL. He said he told her what he could for

now.

A.35

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I asked RACHELLE how she got to Duluth and she said she came in

the Monte Carlo which belongs to her friend, ROSS LOADER, of 3908

- 113th Street, Bloomington, Minnesota, and that was the car parked

behind the Wabasha Book Store in the alley which contains

approximately $800 she had spoken about earlier. I asked her where she

has been staying since she has been in Duluth. She said she stays at an

apartment owned by the Wabasha which is at 7th Avenue East and 4th

Street. She said she pays $5 a day and all the dancers from the Cities

stay there. She said currently staying there are "NICKI", "TIFFANI",

and herself, and a female named "LISA" had been staying there also.

I asked RACHELLE if the people at the Wabasha Book Store here in

Duluth asked for her I.D. when she came up and filled out the time

card, and she said, "No", they didn’t. I asked her once again if she was

requested to show her I.D. when she applied for the job in Minneapolis

and she said, "Yes", that "EVE" had asked for her I.D.

I asked RACHELLE where the money came from that was currently in

the car and she said it was all from dancing and tips. She said when she

A.36

fila RMP dit NR SO CIAL BO CONE IE Sp da ae Bf ali a alibi ae

came up here from Minneapolis, she brought approximately $350 with

her and she has earned he rest of that and spent approximately $300

since she has been here. She said she has done a lot of shopping and

bought quite a bit of clothing.

I told RACHELLE that because of the money in the car and the

location it was parked at, and also the fact that she didn’t own it, we

would tow it for safekeeping. She agreed that would be best.

The interview then ended at approximately 2210 hours. Officers Ells

and Thamm transported her to the apartment at 7th Avenue East and

4th Street where she picked up some clothing and then transported her

to the Arrowhead Juvenile Center where she was lodged. Officers Ells

and Thamm also made arrangements with a squad to have the Monte

Carlo towed for safekeeping.

ro eT

ater hathe at all O

1s hal Ol i eat SEAS A Wid a Cae Mec

DULUTH POLICE DEPARTMENT

WRITTEN STATEMENT

Date 05-05-89

Time 1116

Place AJC

I, Rachelle Reynolds, date of birth 4-16-77 and now residing at 9042

Hyland Creed Road have been advised of my rights:

l. To remain silent and not make any statements.

2. That anything I say can be used against me in Court.

3. That I have the right to talk to a lawyer and to have a

lawyer with me during questioning, and that if I cannot

afford a lawyer, one will be appointed to represent me.

I have read the above statements; I understand what they mean and I

wish to give up these rights. I am willing to make a statement freely and

voluntarily to Officers E. Thamm - Ells.

No promises or threats have been made to me.

Signatures/Rachelle Reynolds

"[ had a boyfriend whos (sic) old girlfriend that (sic) danced and she

made big bucks. And I needed money because I didn’t live with my

A.38

parents & I didn’t have a steady job. So I went to a bookstore to geta

job. I told the clerk that I need a job, he called Eve. Eve said come

back tomorrow when I am there. I went back. Showed her my I.D.

She asked me if I danced before, I lied and said yes and I hang (sic)

around to see what it was like. So I worked 4 nights. Then my dad hit

me and [ told Eve I could work in Duluth. So I came to Duluth. I took

my sisters (sic) birth certificate to get a fake I.D. I went to Hennepin

county R.R. police library. I had fake I.D.’s before. I did the same

before. 1 had 3 I.D.’s taken before, I had one from a checks cashed. I

showed them a birth certificate too. I got the I.D.’s to get into the bars.

| used my sisters (sic) birth certificates. Janice who is 24 and Sheryls

(sic) who is 26.

When I spoke to Eve she told me what terms of employment

were. Which was be on time, no prositution (sic) R.R. always I was paid

$1.50 per hour & I get to keep my tips. Eve made out our schedule.

5-6 I work 10 AM-2AM because Sonya was sick so I told her I would

cover for her. &.R. S—I get paid every Sunday. I get a check a week

behind so I don’t have one yet."

To the best of my knowledge this is a true statement.

ba

A.39

Signature

RECEIPT

I have written and/or read the above statement consisting of pages

and have signed each page, corrections, if any bear my initials, and I

have received one copy of this statement from:

Witnessed Date Time

AM PM

Witnessed

Signature for receipt of copy.

RR She asked about an I.D. card I should (sic) her mine, or Sheryls

(sic). She said "I looked younger" & said "Oh". She asked for a social

security number or card. I told her I have it at home & I would call her.

I called her and gave Eve a phony one & a phony address.

Eve is 51, long dark brown hair, 8-1/2 months pregnant, 35 years

old, brown eyes. I came in contact at chicago (sic) & lake street (sic)

store. We went to different stores each night. I made about $1300-

$1400 dollars each night. I averaged about $175 a night. RR

A.40

To the best of my knowledge this is a true statement.

Signature s/Rachelle Reynolds

RECEIPT

I have written and/or read the above statement consisting of 3 pages and

} have signed each page, corrections, if any bear my initials, and I have

received one copy of this statement from: Officer E. Thamm

Witnessed s/Edward Thamm_ Date 05-06-89 Time 0004 AM PM

Witnessed s/John Ells

s/Rachelle Reynolds

sa Ni ati

Signature for receipt of copy.”

~~. ea - y: a

A4l

Captioned Cited

OMNIBUS HEARING ORDER

The above-entitled matters came on before the above-named

Court for an Omnibus Hearing on the 16th day of August, 1989.

a

Appearing-i#-bétialf of plaintiff was John E. DeSanto, Assistant St.

Louis County Attorney. Defendant John William Sarette (File #18413)

appeared personally and with his attorney, Arthur Albertson. Defendant

Eve White a/k/a Eve Cascio (File #18417) appeared personally and with

her attorney, Randall T.B. (sic) Tigue; and defendant Ferris Jacob

Alexander, Sr. (File #18420) appeared personally and with his attorney,

Douglas Thomson.

The State submitted the issue of probable cause upon the

reports contained in the instant files. There was no testimony offered

by or in behalf of plaintiff and/or defendants. The sole Rasmussen issue

related to a statement made by Defendant Sarette (File #18413) on

May 25th, 1989, to Officer John Christensen of the Duluth Police

Department. Defendant Sarette by and through his attorney, Mr.

Arthur Albertson, did not make any constitutional challenge as to the

admissability (sic) of said statement. The defendants requested the

x

)

opportunity to submit written briefs in support of their joint motions to

dismiss the complaint against their respective clients on the grounds that

Minnesota Statute Sec. 617.246 is unconstitutional on its face and

unconstitutional as applied to their respective clients. Defendants also

moved the Court to dismiss the charges against the respective clients on

the grounds that there was insufficient probable cause to believe their

client committed the offense charged.

The Court orally ruled that the statements made on May 2Sth,

1989, by Defendant Sarette (File #18413) to Officer Christensen were

admissible over constitutional objection at the trial of Defendant Sarette.

The Court entered provisional pleas of not guilty on behalf of each of

the respective defendants. The Court in response to the request of

plaintiff afforded plaintiff the opportunity to submit a written brief and

memoranda before August 25th, 1989, and afforded the defendants the

Opportunity to reply within a period of one week thereafter. The wan

of probable cause and the constitutionality of the statute in question

were taken under advisement by the Court.

Upon the arguments of counsel, the written briefs and

memorandum submitted, and upon the file and record herein, the Court

A.43

now makes the following:

FINDINGS OF FACT

i The motion of each defendant regarding an insufficient

| showing of probable cause to believe that said defendant committed the

crime charged is respectfully denied.

y The following items of evidence shall be admissible

4 against defendant John Sarette upon the trial of the above-captioned

| File #18413.

(a) The statements made on May 25th, 1989, by

Defendant Sarette to Officer John Christensen of the Duluth Police

Department.

3. That the motion of each of the defendants to dismiss the

complaint against them is respectfully denied.

4. A plea of not guilty is hereby entered by the Court in

behalf of each of the said defendants, and the within matters are set for

trial.

Let the hereto attached Memorandum be made a part of this

order.

@ Dated at Duluth, Minnesota

A.44

this 10 day of October, 1989.

BY THE COURT:

s/Jack L. Litman

Jack L. Litman

Judge of the District Court

A.45

MEMORANDUM

Each of the three above-named defendants is charged with a

single count of Using a Minor In A Sexual Performance in violation of

Minn. Stat. 617.246, subd. 2 with reference to subdivisions 1 and 5(1988)

# and 609.05. Defendants are accused of unlawfully promoting, employing,

using, Or permitting a minor to engage in posing or modeling alone or

' with others in a sexual performance, when the defendant knew or had

reason to know that the conduct intended was a sexual performance.

The definition of "sexual performance" includes a dance or other

exhibition presented before an audience which depicts sexual conduct.

"Sexual conduct" includes masturbation or lewd exhibitions of the

» genitals; and simulated or actual physical contact with the pubic area or

® breasts of a female indicating sexual stimulation or gratification when the

; depiction involves a minor.

Defendants now move for dismissal of the criminal complaints

3 against them on the grounds that said statute is unconstitutionally

: overbroad and violates the right to due process of law. In addition, all

4 defendants challenge sufficiency of probable cause to believe that they

} committed the offense charge.

A.46

The Minnesota Court of Appeals decided a case which

challenged the unconstitutionality of the same statute. The Court ruled

that the prohibition against using minors in sexual performances is not

substantially overbroad or unconstitutionally vague. State v. Fan, No.

CX-88-2467, slip opinion at 2 (Minn. App. Sept. 5, 1989).

In Fan, he defendant was convicted of employing and permitting

a 14-year old to engage in a sexual performance. Fan owned and

operated the Belmont Club which featured nude dancing. He was

present when the minor auditioned and she was hired upon his approval.

Fan did little to ascertain her actual age. The only identi- fication

provided by the minor was an Unbank card which is summarily issued

without requiring proof of age. The Court of Appeals affirmed Fan’s

conviction.

Facts

In this case, the minor involved (herein-after referred to as

RAR) was born April 16, 1972. In April of this year, at the age of 17,

she sought employment as a nude dancer and was hired by defendant

White. At White’s request, RAR presented an identification card issued

by the State of Minnesota, bearing her picture and indicating her date

A.47

of birth as 01-26-63. At the time, White commented that RAR "looked

younger." Apparently, RAR had used her older sister’s birth certificate

to acquire the false identification card.

At RAR’s request, White scheduled her to perform at the

Wabasha book store in Duluth. On Friday, May 5, 1989, the Duluth

Police Depart-ment received a complaint that RAR was performing

there. Upon investigation, one of the officers observed RAR perform.

She was dressed in panties and a red top. As RAR danced, she lowered

her top below her breasts and began to rub them in what the officer

believed to be a sexual manner. With her right leg placed along the

viewing window, RAR slid her panties to the side exposing her vagina.

She then stroked her vagina with her left hand. Shortly thereafter, RAR

was arrested by Duluth police officers.

Defendant White, who hired RAR, is employed by defendant

Alexander. Alexander owns the adult book store where RAR was hired

and the Wabasha adult book store where she was ultimately arrested.

Defendant Sarette manages the Wabasha book store.

Overbreadth

Defendants argue that elimination of the scienter requirement

with respect to a minor’s age renders the statute unconstitutionally

overbroad. Yet, it is well established that overbreadth scrutiny is limited,

particularly when conduct rather than pure speech is involved. New

York v. Ferber, 458 U.S. 747, 770 (1982); Broadrick v. Oklahoma, 413

U.S. 601, 615 (1973). A statute will not be held facially invalid as long

as its legitimate reach "dwarfs its arguably impermissible applications."

Ferber, 458 U.S. at 774.

In Fan, the Minnesota Court of Appeals concluded that Minn.

Stat. 617.246 permissibly prohibits the use of minors in sexual per-

formances. Fan, slip opinion at 5. Any possibility that the statute might

abrogate valid first amendment applications was characterized as

marginal. Id. at 5-6. The Fan Court concluded that any actual

infringement of constitutional rights should be decided on a case by case

basis. Clearly, no such infringement has occurred here. RAR’s per-

formance constituted neither artistic nor educational expression which

might otherwise be protected.

Due Process

Defendant also argue that excluding knowledge of the minor’s

age as an element of the offense imposes strict liability in violation of

A.49

the right to due process. This argument, however, was rejected in Fan.

Due process analysis requires a balancing of competing interests.

Here, the interest of requiring mens rea must be weighed against the

interest of protecting children eens sexual abuse. Interpreting the _

legislature's express exclusion of a mistake-of-age defense as a statement

of public policy, the Court of Appeals found the latter interest more

compelling.

Defendants also argue that the Fan Court limited the holding to

the facts of that case. Although the facts of the instant case are

distinguished from those in Fan, this Court interprets any language in

the opinion which purports to narrow its application as mere dicta.

Probable Cause

A defendant has the right to a deter-mination of probable cause

which protects him from being unjustly compelled to stand trial. Minn.

R. Crim. P. 11.03; State v. Florence, 306 Minn. 442, 454, 239 N.W. 2d

892, 900 (1976), modified, State v. Rud, 359 N.W. 2d 573 (Minn. 1984).

The standard for granting a motion to dismiss for lack of probable cause

is whether "the facts appearing on the record, including reliable hearsay,

would preclude the court from granting a motion for a directed verdict

A.50

of acquittal at trial." State v. Diedrich, 410 N.W. 2d 20, 22 (Minn. App.

1987). The standard for granting a directed verdict requires "the

determination of whether, as a matter of law, the evidence is sufficient

to present a fact question for the jury’s consideration." Paradise v. City

of Minneapolis, 297 N.W. 2d 152, 156 (Minn. 1980).

Based upon the complaints, the police reports, and statements

of the witnesses, the Court concludes that the State of Minnescta has

offered sufficient evidence to show with reasonable probability that each

1 defendant committed the offense charged.

Defendant White hired RAR, scheduled her performances at the

Wabasha book store, and informed RAR that she was not to engage in

prostitution. Defendant Sarette managed the Wabasha book store, was

aware of the occurrence of nude dancing, and placed advertisements in

the local newspaper promoting the performances. Defendant Alexander

owns the adult book store in Minneapolis where RAR was hired, owns

the Wabasha adult book store in Duluth where she was arrested, signed

her pay checks, and paid for the local newspaper promotions.

| | Furthermore, with their extensive experience in the adult entertainment

industry, all of the defendants were keenly aware that the kind of

A5S1

conduct for which RAR was being hired was a sexual performance.

Consequently, defendants’ motions to discuss for lack of probable

cause and upon grounds that Minn. Stat. 617.246 is unconstitutional are

respectfully denied.

JD lin

A.52

Caption Cited

NOTICE OF MOTION

TO: The above-named Plaintiff, and Mr. John DeSanto, Assistant

County Attorney, 100 North Sth Avenue West, Suite 501, Duluth,

Minnesota 55802, its attorney:

PLEASE TAKE NOTICE that the above-named Defendant, by

the undersigned, will bring the attached motion for hearing before the

Honorable Jack Litman, Judge of the above-named Court, in his

courtroom at the St. Louis County Courthouse, Duluth, Minnesota, on

February 23, 1990, at 9:00 a.m., or as soon thereafter as counsel can be

heard.

s/

Randall D. B. Tigue

Attorney for Defendant

Eve White

2620 Nicollet Avenue

Minneapolis, Minnesota 55408

! (612) 874-9903

Minn.Sup.Ct.Lic. No. 110000

} Dated: February 5, 1990.

A.53

Caption Cited

MOTION FOR JUDGMENT OF

ACQUITTAL NOTWITHSTANDING

THE VERDICT AND ALTERNATIVE

MOTION FOR NEW TRIAL

The above-named Defendant, by the undersigned, hereby moves this

Court, for an order, pursuant to Rule 26.03, Subd. 17(3) of the

Minnesota Rules of Criminal Procedure, granting to Defendant a

judgment of acquittal notwith-standing the verdict on the ground that

the undisputed evidence plainly established Defendant’s entitlement to

a defense of reasonable mistake as to fact, barring her conviction as a

matter of law.

In the alternative, Defendant moves for an order, pursuant to

Rule 26.04, Subd. 1 of the Minnesota Rules of Criminal Procedure

granting to Defendant a new trial on the following grounds:

I. The verdict was not justified by the evidence.

II. The court committed errors of law at trial, justifying a new

trial, to-wit: refusal to instruct the jury as to reasonable mistake of

A.54

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identity as a defense.

The foregoing motion shall be based on the attached

memorandum of law, and upon the files, exhibits, and minutes of the

Court.

s/

Randall D. B. Tigue

Attorney for Defendant

Eve White

2620 Nicollet Avenue

Minneapolis, Minnesota 55408

(612) 874-9903

Minn.Sup.Ct. Lic. No. 110000

Dated: February 5, 1990.

A.5S5

Caption Cited

MEMORANDUM OF POINTS

AN

AND AUTHORITIES IN SUPPORT

OF EVE WHITE’S MOTION FACTS

Defendant Eve White in the above-entitled matter was convicted

by a jury on January 29, 1990 of a single count of using a minor in a

sexual performance, in violation of Minnesota Statutes Section 617.247,

Subd. 2, which provides, in pertinent part, as follows:

pti it icitatarsadibeasid \ alata

"It is unlawful for a person to promote,

employ, use or permit a minor to engage

in or assist others to engage in posing or

modeling alone or with others in any

sexual per-formance if the person knows

or has reason to know that the conduct

intended is a sexual performance."

The term "minor" is defined in Section 617.246, Subd. 1(b) as

"any person under the age of 18." The term "sexual performance" is

defined in Section 617.246, Subd. 1(d) as follows:

"Sexual performance’ means any play, dance, or other

exhibition presented before an audience or for purposes

of visual or mechanical reproduction which depicts sexual

conduct as defined by clause (e)."

The term "sexual conduct" is further defined in clause (e) of the

same section as follows:

Sexual conduct’ means any of the following if the

depiction involves a minor:

A.56

(i) 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 human beings and an animal.

(ii) Sadomasochistic abuse, meaning flagellation, torture,

or similar demeaning acts inflicted by or upon a person

who is nude or clad in under-garments or in a revealing

costume, or the condition of being fettered, bound or

otherwise physically restrained on the part of one so

clothed.

(iii) Masturbation or lewd exhibition of the genitals.

(iv) 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 human beings and animals in an

act of apparent sexual stimulation or gratification."

Subdivision 5 of the same section also provides as follows:

"Neither consent to sexual per-formance by a minor or

the minor’s parent, guardian, or custodian nor mistake as

to the minor’s age is a defense to a charge of violation

1 of this section."

The undisputed evidence at trial was that Defendant Eve White

hired one Rachelle Reynolds, age 17, to work as a nude dancer in adult

_ book-stores in both the City of Minneapolis and the City of Duluth.

' The further undisputed testimony was that Defendant hired Ms.

Reynolds only because Ms. Reynolds successfully passed herself off as

} being, not Rachelle Reynolds, age 17, but rather Cheryl Reynolds,

A.57

Rachelle Reynolds’ 26-year-old sister. The undisputed testimony was

that Rachelle Reynolds did so by stealing Cheryl’s birth certificate, and

taking that birth certificate to the Hennepin County Library, wherein

she managed to convince state officials that she was her 26-year-old

sister, on the basis of the birth certificate, and had issued to her a

Minnesota State Identification Card bearing Rachelle’s photograph, but

also bearing her sister Cheryl’s name and date of birth. The testimony

at trial was that she so managed to convince the state that she was her

26-year-old sister on at least two occasions.!

On one occasion, the false identification card was mailed to

Rachelle Reynolds’ home address and confiscated by her father. On the

occasion which led to Defendant Eve White’s prosecution, however,

Rachelle Reynolds guarded against that by having the false identification

sent to the address of a friend, Ross Loader, who was a co-participant

in the fraud.

‘The Court excluded from evidence testimony

as to the exact number of prior occasions in

which Rachelle Reynolds perpetrated the above-

mentioned fraud on the State of Minnesota.

However, her post-arrest statement, considered

by the Court in connection with Defendants’ pre-

trial motions to dismiss, indicated that she did

so on at least three occasions.

A.58

Thus, Defendant Eve White hired Rachelle Reynolds, not out

of a mistaken belief that Rachelle Reynolds was 26 years of age, which

would have been a mistake of age, prohibited as a defense by statute,

but rather because she believed Rachelle Reynolds was in fact Cheryl

Reynolds, another person, who happened to be 26 years of age. Equally

important was that the representation to Defendant that the person

seeking employment was not Rachelle Reynolds, but rather Cheryl

Reynolds, was made not only by Rachelle Reynolds, but was also made

by the State of Minnesota, which issued Rachelle Reynolds an official

State of Minnesota Identification Card declaring her to be Cheryl

Reynolds, age 26.

At the end of the state’s case-in-chief, Defendant Eve White

moved for a judgment of acquittal, on the ground that the evidence

established the presence of a reasonable mistake of fact defense, to-wit:

a mistake as to identity, not a mistake as to age. The motion was

' denied.

Defendant White further requested that while the jury be

instructed that mistake as to age is not permissible as a defense, other

mistake as to fact would be a defense. The requested instructions were

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denied.

On the basis of these facts, Defendant moves for judgment of

acquittal, notwithstanding the verdict, or, in the alternative, for a new

trial.

ARGUMENT

I. DEFENDANT IS ENTITLED TO A JUDGMENT OF

ACQUITTAL NOTWITHSTANDING THE VERDICT, GIVEN THE

OBVIOUS PRESENCE OF A DEFENSE AS TO MISTAKE OF

IDENTITY AS OPPOSED AS TO MISTAKE AS TO AGE.

A. MINNESOTA STATUTES SECTION 617.246, SUBD. 5

DOES NOT BAR THE DEFENSE AS TO MISTAKE OF IDENTITY,

AS OPPOSED TO MISTAKE AS TO AGE.

Although there appear to be no Minnesota appellate court

decisions On point, it has long been the law throughout the United

States that a reasonable mistake as to fact constitutes a defense to a

criminal charge, where a mistake as to fact would negate the criminal

state of mind necessary to the commission of the offense. See, for

example, 22 C.J.S. Criminal Law, Section 93, and the cases cited therein.

According to those cases, in order to be a valid defense, the mistake

of fact must be honest and reasonable, must be about a matter of fact,

and serve to negate the kind of culpability required for the commission

of the offense. For example, one who purchases a package of powdered

A.60

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sugar, believing it to contain powdered sugar, when it in fact contains

heroin, does not commit the offense of possessing heroin, so long as his

mistake of fact is honest and reasonable, and goes to the culpability

required for the com-mission of the offense.

In fact, Minnesota Statutes Section 617.246, Subd. 5 itself

appears implicitly to recognize the existence of a mistake of fact defense,

since it specifically excludes one particular mistake of fact defense, to-

wit: mistake as to a minor’s age.

The mistake of fact defense raised by Defendant Eve White in

the instant case, however, is not mistake of fact as to Rachelle Reynold’s

age; rather, it is a mistake as to her identity. Defendant hired Rachelle

Reynolds, not on the mistaken belief that Rachelle Reynolds, age 17,

was in fact age 26; rather, she hired Rachelle Reynolds upon the

mistaken belief that she was not Rachelle Reynolds at all, but rather was

Cheryl Reynolds, who was indisputably 26 years of age at the time of the

incident giving rise to Defendant’s prosecution. Nothing in either

the language of the statute itself, nor in the leading case con-struing the

Statute, State v. Fan, 445 N.W. 2d 243 (Minn. App. 1989), reviewed

denied (1989), compels a different result. In Fan, the Defendant hired

A.61

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a 13-year-old minor to engage in nude dancing, without requiring any

identi-fication at all. Before the individual was put to work, Defendant

was shown an Unbank Card, used for check cashing identification,

correctly identifying the minor as to name, but falsely listing her age as

18.2. Thus, Fan was a pure mistake as to age case, without involving

a mistake of identity in any manner whatsoever.

Moreover, recognizing a mistake of identity, as opposed as to a

mistake of age, defense would clearly be consistent with the purpose

underlying Minnesota Statutes Section 617.246, Subd. 5. In Fan, the

court stated that purpose to be “a more thorough investigation of

[erotic] dancers’ ages (footnote omitted)." Id. at 247.

In his dissenting opinion in United States v. United States

District Court, 858 F. 2d 534, 546 (9th Cir. 1988), Judge Beezer in

urging the elimination of the mistake of age defense, asserted the

following:

"A pornographer acts at his peril if he fails to complete

an accurate investigation of the age of the subjects he

*See 445 N.W. 2d at 245. The court also

pointed out that the Unbank card was "obtained

by filling out a form for which no documentation

was required." Id. at 245.

A.62

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employs to produce sexually expiicit material. An

accurate investigation could be based upon reputation,

first-hand testimony, and _ especially, documents.

Documents establish age. While documents may be

counterfeited, the originals exist somewhere. It would be

simple for a pornographer to write his subject’s

birthplace for a certified copy of the subject’s birth

certificate. | A pornographer might even go see the

original himself. By obtaining proof in this fashion, or a

pornographer could eliminate all doubt about the

subject’s age."

In point of fact, the evidence in this case plainly established that

had Defendant Eve White conducted such an investigation as to Cheryl

Reynolds, whom she believed she was hiring, the investigation would

have done nothing but con-firm her belief that she was hiring someone

over the age of 18. The false identification was obtained as a result of

a stolen birth certificate. Had Eve White demanded a certified copy of

Cheryl Reynolds’ birth certificate, or even seen the original, it would

have done nothing but reinforce her belief as to the age of the person

she was hiring. This plainly indicates that while a mistake as to age

should be eliminated as a defense, there was no legislative intent to

eliminate the defense as to mistake of identity.

Moreover, a mistake of identity defense plainly comports with

fundamental rules of statutory construction embodied in Minnesota

A.63

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Statutes Section 645.17(1), in which the Legislature declared that it

"does not intend a result that is absurd, impossible of execution, or

unreasonable...”

In a virtually identical situation, the Minnesota Supreme Court

has held a similar mistake of fact defense to be compelled as a matter

of statutory construction. In State v. Neisen, 415 N.W. 2d 326 (Minn.

1987), the Minnesota Supreme Court reversed a decision of a Court of

Appeals holding that a reasonable mistake of age defense was not a

defense to a criminal charge of selling liquor to a minor, even though

the legislature had repealed statutory language specifically permitting

such a defense. Among the reasons set forth by the legislature in

construing the statute so as not to eliminate a mistake of age defense

was the fact that the elimination of such a defense would be absurd and

unreasonable. The Minnesota Supreme Court stated:

"We must keep in mind...that the legislature does not

intend an unreasonable result and that the legislature

intends an entire statute to be effective and certain.

Minnesota Statutes Section 645.17 (1986). Finally, we

are guided by the public policy that a criminal liability,

particularly gross misdemeanor of felony liability, is to be

imposed for conduct unaccompanied by fault, the

legislative intent to do so should be clear." Id. at 329.

Clearly it is far more absurd and unjust to impose felony liability

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and the label of "child pornographer" upon a Defendant who reasonably

believes he is hiring, not the person actually seeking employment, but

her 26-year-old sister, than it is to impose gross misdemeanor liability for

sclling liquor to a minor, being reasonably mistaken as to the minor’s

age. Clearly Neisen stands for the proposition that the imposition of

criminal liability, in the absence of mens rea, should be narrowly limited.

The legislature, in enacting Section 617.246, Subd. 5, eliminated only

mistake as to age, not mistake as to identity as a defense.

It was plainly error for the court to construe the statute to

eliminate a mistake as to identity, to grant a judgment of acquittal based

upon that defense.

B. THE MISTAKE OF IDENTITY DEFENSE IS

CONSTITUTIONALLY COMPELLED UNDER THE FACTS OF THE

INSTANT CASE, WHERE THE STATE OF MINNESOTA ITSELF

AFFIRMATIVELY PARTICIPATED IN THE MISREPRESENTATION

RELIED UPON BY DEFENDANT LEADING TO HER

PROSECUTION.

In determining the availability of a mistake of a mistake of

identity defense, a critical factor is that Rachelle Reynolds did not act

alone in misrepresenting her identity to Defendant Eve White. The

_ State of Minnesota was an active and crucial participant in that misre-

| presentation. In granting employment to Rachelle Reynolds, Defendant

AGS

Eve White plainly relied upon an identification card issued by the State

of Minnesota, plainly for the purpose of establishing an individual's

identity and date of birth. The issuance of the card is mandated by

Minnesota Statutes Section 171.07, Subd. 3, which provides as follows:

"Upon payment of the required fee the department [of

Public Safety] shall (emphasis supplied) issue to every

applicant therefor a Minnesota Identification Card. The

department may not issue a Minnesota identifi-cation

card to a person who has a driver’s license, other than an

instruction permit. The card must bear a distinguishing

number, assigned to the applicant, a colored photograph,

the full name, date of birth, residence address, a

description of the applicant in a manner the commission

deems necessary, and a space upon which the applicant

shall write the usual signature and date of birth of the

applicant with pen and ink.

Each Minnesota Identification Card must be plainly marked

‘Minnesota Identification -- not a driver's license.’ The fee for

a Minnesota Identification Card issued to a person who is

mentally retarded, as defined in Section 252.A.02, Subdivision 2

is 50 cents."

Plainly, the statute is intended for the purpose of according every

person who is not a licensed driver a state-sanctioned method of

establishing his identification and date of birth. In fact other Minnesota

Statutes specifically establish the Minnesota Identi-fication Card as

sufficient proof of identification and age to qualify for senior citizens

benefits,? and for the purpose of purchasing liquor.*

Plainly then, when the State of Minnesota issued Rachelle

Reynolds an official identification card, identifying her as Cheryl

Reynolds, age 26, it did so plainly for the purpose of permitting her to

establish her identity and age for all lawful purposes, including

employment. Equally clear is the fact that due process of law precludes

the state, as a matter of law, from imposing criminal liability upon

Defendant Eve White for her reliance upon the state’s own

misrepresentations.

In Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed. 2d 1344

(1959), the United States Supreme Court reversed contempt convictions

lor witnesses appearing before the Ohio Un-American Activities

Commission, in a situation in which the chairman and members of the

commission affirmatively represented that the witnesses had a privilege

not to answer questions they believed would incriminate them. Despite

exercising the privilege commission members had indicated was available

3See Minnesota Statutes Section 171.07,

Subd. 3a.

“See Minnesota Statutes Section 340A.53.

A.67

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to them, the Defendants were prosecuted under the theory that the

Ohio Immunity Statute removed the threat of criminal prosecution, thus

making a self-incrimination claim unavailable to them. In holding it to

be a violation of the due process to convict Defendants under these

circumstances, the United States Supreme Court stated:

"{H]ere the chairman of the commission who clearly

appeared to be the agent of the state in a position to

give such assurances apprised three of the appellants

that the privilege in fact existed, and by his behavior

toward the fourth obviously gave the same impression.

Other members of the commission and its counsel made

statements which were totally inconsistent with any belief

in the applicability of the immunity statute, and it is fair

to characterize the whole conduct of the inquiry as to

the r «rth, as identical with what it would have been if

Oluo had no immunity status at all. Yet here the crime

said to have been committed by the appellants, as

defined by the State Supreme Court, was simply that of

declining to answer any relevant question on the ground

of possible self-incrimination. This was because the

Court held that the Ohio Immunity Statute automatically

removed any basis for a valid claim of privilege, which

generally exists under Ohio law (footnote omitted).

[Citation omitted.) Accordingly, any refusal to answer,

based on a claim of privilege, was said to constitute the

offense. While there is no suggestion that the

commission had any intent to deceive the appellants, we

repeat that to sustain the judgment of the Ohio Supreme

Court on such a basis after the commission acted as it

did would be to sanction the most indefensible sort of

entrapment by the state --convicting a citizen for

exercising a privilege which the state clearly had told him

A.68

was available to him." 360 U.S. at 437-438, 3 L.Ed. 2d at

1355.

Similarly, in Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13

L.Ed. 2d 487, rehearing denied, 380 U.S. 926, 85 S.Ct. 879, 13 L.Ed. 2d

814 (1965), the Court reversed the conviction of a civil rights leader who

was convicted of violating an East Baton Rouge, Louisiana ordinance

prohibiting picketing "near a courthouse." The facts giving rise to the

arrest were that the leader had conducted a demonstration

approximately 101 feet from the courthouse, across the street, in a

location for which permission to picket had been specifically granted by

city officials, including the police chief. The Court held, relying on

Raley v. Ohio, supra, that the permission granted by the highest police

officials to hold the demon-stration where it was held constituted a

representation that holding the demonstration at that location did not

constitute demonstrating "near" a courthouse, within the meaning of the

ordinance.

Similarly, when the State of Minnesota represented to Defendant

Eve White that the person she was hiring was Cheryl Reynolds, age 26,

it should similarly be barred, as a matter of law, from criminally

prosecuting Defendant Eve White from relying on_ that

A.69

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misrepresentation.

Obviously, nothing in State v. Fan, supra, 448 N.W. 243 (Minn.

App. 1989, reviewed denied (1989), compels a contrary result. As

already noted, supra, the only identification presented by the minor in

that case was an Unbank Card, not an official State of Minnesota

identification.

II. IN THE ALTERNATIVE, DEFENDANT SHOULD BE

ACCORDED A NEW TRIAL.

Even assuming Defendant were not entitled to a judgment of

acquittal notwithstanding the verdict, based upon a mistake as to

identity defense, the availability of that defense should at least compel

the granting of a new trial, wherein the defense could be presented to

the jury, by way of both jury instruction and argument, something

Defendant was preciuded from doing by the rulings of the Court in this

case.

CONCLUSION

For all of the foregoing reasons, Eve White’s motion for

judgment of acquittal, notwithstanding the verdict should be granted. In

the alternative, Defendant should be awarded a new trial, at which she

should be able to present to a jury the defense of mistake as to identity.

A.70

Respectfully submitted,

s/.

Randall D. B. Tigue

Attorney for Defendant

2620 Nicollet Avenue

Minneapolis, Minnesota 55408

(612) 874-9903

Minn.Sup.Ct. Lic. No. 110000

Dated: February 6, 1990.

A.71

Caption Cited

SYLLABUS

Excluding mistake of age as a defense to prosecution for use of

minors in sexual performances does not invalidate Minn. Stat. § 617.246

(1988) on first amendment or due process grounds.

Affirmed.

Considered and decided by Short, Presiding Judge, Lansing,

Judge, and Gardebring, Judge.

OPINION

LANSING, Judge

In State v. Fan, 445 N.W. 2d 243 (Minn. App. 1989), pet. for rev.

denied (Minn. Oct. 31, 1989), cert.denied, _ US. 110 S. Ct. 1480

(1990), we upheld the constitutionality of Minn. Stat. § 617.246,

prohibiting the use of minors in sexual performances, against general

first amendment and due process claims. In this appeal, Eve White

specifically challenges the constitutionality of the statute’s exclusion of

mistake of age as a defense.

FACTS

A St. Louis County jury convicted Eve White of using 17-year-

old R.ALR. to engage in a sexual performance. The facts surrounding

A.72

Eve White’s arrest and conviction are undisputed. White, the manager

of several adult bookstores, hired 17-year-old R.A.R. to perform as a

nude dancer on a bookstore dance floor. White testi-fied that she knew

performers must be at least 18 years of age but mistakenly believed that

R.A.R. was 26 years old.

White based her mistaken belief on R.A.R.’s presentation of a

Minnesota identification card faisely identifying R.A.R. as her 26-year-

old sister. White asked R.A.R. to repeat the infor-mation on the

identification card and compared R.A.R.’s signature on her W-4 form

with her signature on the card. She also asked her for additional

identification and a social security number. R.ALR. said she did not have

additional identification and that she had left her social security card at

home. R.A.R. later telephoned White and gave a false social security

number. White did not ask to see R.A.R.’s social security card after

hiring her. White does not dispute the sexually explicit nature of

RAR's performance or deny knowledge of its character and content.

Adhering to the statute over White’s objection, the trial court

refused to instruct the jury that a good faith mistake of fact constituted

a defense to the charges. White brought post-trial motions challenging

A.73

the constitutionality of the statute and the court’s preclusion of a

' defense based on mistake of age.

ISSUES

1. Does the preclusion of a mistake of age defense to Minn.

Stat. § 617.246 imper-missibly constrain the first and fourteenth

amendments to the United States Constitution?

2. Did the trial court incorrectly apply Minn. Stat. §

617.246, subd. 5 to exclude a mistake of identity?

ANALYSIS

I

The United States Supreme-.Court, in analyzing a New York

l

statute’ prohibiting the same conduct as Minn. Stat. § 617.2462,

IN.Y. Penal Law § 263.15 (McKinney 1980).

>The statute provides in relevant part:

Subdivision 2. Use of Minor. It is unlawful for a person to

promote, employ, use or permit a minor to engage in or assist others to

engage in posing or modeling alone or with others in any sexual

performance if the person knows or has reason to know that the conduct

intended is a sexual performance.

Subdivision 5. Consent; mistake. Neither consent to sexual

pertormance by a minor or the minor's parent, guardian, or custodian nor

mistake as to the minor’s age is a defense to a charge of violation of this

A.74

declared the New York statute valid against a first amendment

challenge. New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L.Ed.

2d 1113 (1982). Ferber provided the basic authority for upholding

Minn. Stat. § 617.246 against earlier constitutional challenges. State v.

Fan, 445 N.W. 2d 243 (Minn. App. 1989), pet. for rev. denied (Minn.

Oct. 31, 1989), cert. denied, __ US. __, 110 S. Ct. 1480 (1990).

Because the conduct of the promoter in Fan differs somewhat from Eve

White’s conduct, we undertake a fuller analysis of the overbreadth

doctrine and the due process clause as they relate to Minnesota’s

preclusion of the defense of mistake of age.

The first amendment is not violated by a state’s prohibiting the

use of a minor in a sexual performance, whether or not the per-

formance is obscene, because child pornography is not entitled to first

amendment protection. Ferber, 458 U.S. at 763-64, 102 S. Ct. at 3358.

Even though the New York statute may suppress some protected

expression, the court upheld its constitutionality because it is not sub-

stantially overbroad. Id. at 773-74, 102 S. Ct. 3363. White contends that

the differences between the New York and Minnesota statutes undercut

section.

A.75

Ferber’s precedential effect on her overbreadth challenge to the

Minnesota statute.

The Minnesota and New York statutes differ in a significant

respect. Under the Minnesota statute, White did not have available the

defense that she "in good faith reasonably believed the person appearing

in the [sexual] performance was [not a minor]." See 39 N.Y. Penal Law

§ 263.20 (McKinney 1980). Essentially, White’s constitutional challenge

asks whether the unavailability of the mistake of age defense, leading to

the exclusion of her evidence of a good faith attempt to determine age,

requires a different constitutional analysis or result from Ferber.

The relationship between a criminal act and the mental state of

the person charged with the crime provides the rational basis for our

system of criminal prosecution. See Morrissette v. U.S., 342 U.S. 246,

72 S. Ct. 240 (1952); Dennis v. United States, 341 U.S. 494, 500, 71 S.

Ct. 857, 862 (1951). However, as we recognized in Fan, the existence

of mens rea is not consti-tutionally mandated. Fan, 445 N.W. 2d at 246-

47 n.3. States may create strict liability by defining criminal offenses

without an element of scienter. See Smith v. California, 361 U.S. 147,

150, 80 S. Ct. 215, 217 (1959).

A well-established body of case law upheld statutes that exclude

mistake of age as a defense to sexual conduct between adult and a child

under the statutory age of consent. See State v. Morse, 281 Minn. 378,

161 N.W. 2d 699 (1968); State v. Silva, 53 Haw. 232, 491 P.2d 1216

(1971); State v. Stiffler, 117 Idaho 405, 788 P.2d 220 (1990); Toliver v.

State, 267 Ind. 575, 371 N.E.2d 452 (1978); Commonwealth v. Miller

358 Mass. 521, 432 N.E.2d 463 (1982); State v. Moore, 105 N.J. Super.

567, 253 A.2d 579 (1969); State v. Randolph, 12 Wash. App. 138, 528

P.2d 1008 (1974). But see People v. Hernandez, 61 Cal. 2d 529, 39 Cal.

Rptr. 361, 393 P.2d 673 (1964); State v. Guest, 583 P.2d 836 (Alaska

1978). This exclusion has also been upheld in forbidding interstate

transportation of persons to engage in immoral practices. See U.S. v.

Hamilton, 456 F.2d 171 (3d Cir.), cert. denied, 406 U.S. 947, 925 S. Ct.

2051 (1972).

An additional body of case law has upheld strict liability offenses

in the area of public welfare, including food and drug legislation. See,

e.g., United States v. Freed, 401 U.S. 601, 91 St. Ct. 1112 (unregistered

hand grenades), reh’g denied, 403 U.S. 912, 91 S. Ct. 2201 (1971);

United States v. Dotterweich, 320 U.S. 277, 64 S. Ct. 134 (adulterated

A.77

drugs), reh’g denied, 320 U.S. 815, 64 S. Ct. 367 (1943); United States

vy. Behrman, 258 U.S. 280, 42 S. Ct. 303 (1922) (Narcotics Act

violations); United States v. Balint, 258 U.S. 250, 42 S. Ct. 301 (1922)

(sale of narcotics covered by the Narcotics Act).

As these cases illustrate, there is no absolute, constitutional

prohibition on imposing strict criminal liability. However, none of these

cases specifically address the first amendment issues raised by White.

Because first amendment attacks on overly broad statutes may be

premised on predictable as weli as personal violations of constitutional

rights, we must analyze the statute’s effect on the protected speech or

conduct of others as well as White. See Broadrick v. Oklahoma, 413

U.S. 601, 612, 93 S. Ct. 2908, 2916, 37 L.Ed. 2d 830 (1973).

The overbreadth doctrine narrows as it moves from "pure

speech" toward expressive conduct. Id. at 614-15, 93 S. Ct. at 2917.

Recognizing that states have greater power to regulate expressive

conduct, the Supreme Court has determined that, in such cases, a consti-

tutional infirmity caused by overbreadth must not only be real, but

substantial. Id. at 615, 93 S. Ct. at 2918.

The United States Supreme Court and the Minnesota Supreme

A.78

Court have held that nude dancing in some circumstances is a form of

constitutionally protected expression. See California v. LaRue, 409 U.S.

109, 93 S. Ct. 390 (1972); Dorn v. Salem Inn, Inc., 422 U.S. 922, 95 S.

Ct. 2561 (1975); Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101 S.

Ct. 2176 (1982); Koppinger v. City of Fairmont, 311 Minn. 186, 298

N.W. 2d 708 (1976).> White contends that Minnesota’s imposing

criminal liability for promotion of sexual performances of minors,

irrespective of a good faith mistake, will eliminate all hiring for nude

dancing, despite its constitutional protection.

In evaluating White’s claim to overbreadth, we note first that, by

removing the mistake of age defense, the Minnesota legislature did not

extend the reach of the statute into a larger area of protected first

amendment conduct. The statute specifically requires that a person

subject to its enforcement must know or have reason to know that the

conduct intended is a sexual performance. Minn. Stat. § 617.246, subd.

3For a comprehensive history of nude dancing as expressive activity,

compare Miller v. Civil City of South Bend, 904 F.2d 1081 (7th Cir.),

cert. granted subd. nom., Barnes v. Glen Theatre, Inc. US. ,111

S. Ct. 38 (1990), with Walker v. City of Kansas City, Missouri, 911 F.2d

80 (arguing that nude dancing is not protected, expressive activity), reh’g

denied, F.2d __ (8th Cir. 1990).

A.79

2. The Ferber court referred to this aspect of knowledge when it

emphasized:

As with obscenity laws, criminal responsibility may not be

imposed without some element of scienter on the part of

the defendant.

Ferber, 458 U.S. at 765, 102 S. Ct. at 3358.

The specific effect of removing the mistake of age defense is to

put the promoter of a sexual performance at greater peril. Although the

severity of the penalty factors into the overbreadth analysis, it does not

compel a finding that the statute is overbroad. The standard remains

the same as that established in Broadrick; overbreadth must be real and

substantial.

Neither Broadrick nor Ferber identify a specific test to apply in

determining substantial overbreadth. The term "substantial" obviously

entails the amount of protected conduct that may be inhibited and the

number of instances in which the inhibition would occur. Determining

what is lost by the inhibition and what steps are available to ameliorate

the inhibition are other important considerations.

The Ferber court used a comparative evalu-ation, reasoning that

the reach of the New York statute is directed at the hard core of child

pornography and that the legitimate sweep of the statute “dwarfs its

arguably impermissible applications." Ferber, 458 U.S. at 773, 102 S. Ct.

at 3363. Ferber noted that some protected expression, ranging from

medical textbooks to pictorials in the National Geographic could fall

prey to the statute. In this regard, the Minnesota statute is no more

punitive than the New York enactment because Minnesota does not

prohibit the defense of mistake of age in prose-cutions for possession or

distribution of pictorial representation of sexual conduct involving a

minor. Minn. Stat. § 617.247 (1988).*

The additional overreach of Minnesota’s Statute is the inhibition

on adult nude dancing. Because age can be determined to some extent

by observation of the individual and examination of original

*This distinction addresses to some extent the reservations expressed

in the Ninth Circuit Court of Appeals’ holding that precluding a mistake

of age defense invalidated the Feueral Child Protection Act, 18 U. S.C.

§ 2251. Unit tes v. ict

California, 858 F.2d 534, 540-43 (9th Cir. 1988). It is also significant

that the federal act does not explicitly eliminate the defense of mistake

of age. In a 2-1 opinion, the Ninth Circuit concluded that Congress had

deliberately deleted such a provision. A specific statutory provision

precluding a mistake of age defense presents a different set of facts

which can result in a different holding. See, e.g., Comment, United

States v. United States District Court (Kantor): Protecting Children from

Sexual Exploitation or Protecting the Pornography Producer, 20 Pacific

Law Journal 1343 (1989).

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identification documents, all adult nude dancing would not be

suppressed. White’s initial response to R.A.R.’s identification was that

R.ALR. looked younger, but White then accepted R.A.R.’s excuse that

she had left her social security card at home. The suppressive affect

would be greatest in the age group closest to 18 because visual

confirmation does not provide as reliable a check to forged identity.

We do not deny the harshness of the statute as it applies to

promoters of nude dancing. The Minnesota legislature has chosen to

place a heavy burden on those who hire individuals to perform in sexual

performances, requiring them to make a thorough, perhaps exhaustive

investi-gation of their performers’ ages. However, sexual exploitation of

children has historically provoked strong regulation. As the Eighth

Circuit reasoned in a case prohibiting the use of children in the

distribution of a controlled substance, to permit a defense of lack of

knowledge of the child’s age would allow dealers "to close their eyes as

to the age of the minors who become part of the operation, without feat

of reprisal." U.S. v. Carter, 854 F.2d 1102, 1109 (8th Cir. 1988).

Despite the severity of excluding a good faith defense of mistake

of age, we conclude that the statute is not unconstitutionally over-broad.

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We reach this conclusion because the statute affects expressive conduct

rather than speech, contains a scienter requirement for the content of

the performance, and potentially deters only a limited amount of

conduct.

II

White’s due process challenge to Minn. Siat. § 617.246 is less

clearly defined, but rests generally on the precept that imposing strict

criminal liability on White, who lacked the requisite knowledge to avoid

the criminality of her act, violates White’s state and federal due process

rights. These arguments are partially answered by the cases upholding

the exclusion of mistake of age defenses in sexual misconduct

prosecutions and transportation of persons for immoral purposes. White

cites four additional cases as authority for her due process arguments.

White’s federal due process argument is premised on the

holdings of Morissette v. U.S., 342 U.S. 246, 72 S. Ct. 240 (1952) and

Liparota v. U.S., 471 U.S. 419, 105 S. Ct. 2084 (1985). In Morissette,

the Supreme Court refused to construe a newly-recodified larceny

statute to eliminate proof of criminal intent when such intent was not

specifically required by the statute. Similarly, in Liparota, the Supreme

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Court held that, absent indication of a contrary purpose in the language

or the legislative purpose of the statute, a criminal statute will be

construed to require a mens area. The Minnesota statute, however, is

not silent on the mistake of age defense; it specifically pre-cludes it.

The clear legislative exclusion distinguishes White’s circumstances from

Morissette and Liparota.

The same distinction applies to the Minnesota cases that White

advances as authority for the state due process violation. In State v.

Neisen, 415 N.W.2d 326 (Minn. 1987), the supreme court declined to

eliminate the "carding defense" to the liquor sales statute. The court

stressed that to impose criminal liabilities for conduct unaccompanied by

fault, "the legislative intent to do so should be clear." Id. at 329. The

legislature’s intent in section 617.246, subd. 5 is clear.

White also relies on State v. Guminga, 395 N.W.2d 344 (Minn.

1986), in which the court invalidated a statutory provision imposing

vicarious liability on an employer for an employee’s illegal liquor sale.

We do not read Guminga as broadly as White recommends. White’s

responsibility was direct rather than vicarious and is not unconstitutional

under Guminga. White has failed to establish a due process violation of

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either the state or federal constitutions.

Il

White argues that her proferred defense at trial was improperly

excluded because she hired R.A.R., not on the mistaken belief that

R.A.R. was 26, but on the mistaken belief that R.A.R. was her sister

who was indisputably 26 years old. This distinction between mistake of

age and mistake of identity is more verbally facile than legally significant.

White acknowledged that she was not concerned about the true identity

of the performers, but only their age. it is highly unlikely that the

Minnesota Legislature intended that its express prohi-bition of a mistake

of age defense could so easily be defeated by simply calling such a

defense a mistake as to identity.

We also reject White’s final due process argument that the state

may not penalize her for relying on R.A.R.’s Minnesota identification

card. Prosecution may be precluded where actions are taken in reliance

on certain repre-sentations. See Raley v. Ohio, 360 U.S. 423, 79 S. Ct.

1257 (1959) (affirmative representation that the witnesses had a privilege

not to answer incriminating questions invalidated contempt conviction);

Cox v. Louisiana, 379 U.S. 559, 85 S. Ct. 476 (city officials’ permission

¥

to picket in an area defeated a prosecution for prohibited picketing),

reh’g denied, 380 U.S. 926, 85 S. Ct. 879 (1965); United States v. Brady,

710 F. Supp. 290 (D. Colo. 1989) (state court judge’s indication that

defendant could possess a firearm invalidated unlawful possession

conviction). Minnesota’s issuance of an identification card based on

forged documents, however, does not create a reliance which invalidates

White's criminal conviction. Unlike the presentations in Raley, Cox and

Brady, the state of Minnesota did not affirmatively parti-cipate in the

conduct which lead to the criminal violation.

DECISION

Minn. Stat. § 617.246 does not sub-stantially prohibit

constitutionally protected expression and is not facially overbroad, even

though it permits no defense of mistake as to age. The statute violates

no due process rights, and any attempted distinction between mistake of

age from mistake of identity is legally insufficient to create such a

violation.

Affirmed.

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Caption Cited

ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the petition of Eve White

a/k/a Eve Cascio for further review be, and the same is, denied.

Dated: 3/15/1991

BY THE COURT:

s/A.M. Keith

Chief Justice

GARDEBRING, J. took no part.

TEXTS OF CONSTITUTIONAL AND

STATUTORY PROVISIONS

AMENDMENT I.

Freedom of religion, speech and press; peaceful assemblage; petition of

grievances

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the press; or the right of the people peaceably

to assemble, and to petition the Government for a redress of grievances.

AMENDMENT XIV.

§ 1. Citizenship rights not to be abridged by states

Section 1. All persons born or naturalized in the United States,

and subject to the juris-diction thereof, are citizens of the United States

and of the State wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

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MINN. STAT. SEC. 617.246

617.246. Use of minors in sexual performance prohibited

Subdivision 1. Definitions. (a) For the purpose of this section,

the terms defined in this subdivision have the meanings given them.

(b) “Minor” means any person under the age of 18.

(c) "Promote" means to produce, direct, publish, manufacture, issue, or

advertise.

(d) "Sexual performance" means any play, dance or other exhibition

presented before an audience or for purposes of visual or mechanical

repro-duction which depicts sexual conduct as defined by clause (e).

(e) "Sexual conduct” means any of the following if the depiction involves

a minor:

(i) 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.

(ii) Sadomasochistic abuse, meaning flagel-lation, 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

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fettered, bound or otherwise physically restrained on the part of one so

clothed.

(iii) Masturbation or lewd exhibitions of the genitals.

(iv) Physical contact or stimulated physical contact with the clothed or

unclothed pubic area 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.

(f) "Work" means an original or reproduction of a picture, film,

photograph, negative, slide, videotape, videodisc, or drawing.

Subd. 2 Use of minor. It is unlawful for a person to promote,

employ, use or permit a minor to engage in or assist others to engage in

posing or modeling alone or with others in any sexuai performance if the

person knows or has reason to know that the conduct intended is a

sexual performance.

Any person who violates this subdivision is guilty of felony and

may be sentenced to imprisonment for not more than five years or to

payment of a fine of not more than $10,000 for the first offense and

$20,000 for a second or subsequent offense, or both.

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Subd. 3. Operation or ownership of business. A person who

Owns Or operates a business in which a work depicting a minor in a

sexual performance, as defined in this section, is disseminated, and who

knows the content and character of the work disseminated, is guilty of

a felony and may be sentenced to imprisonment for not more than five

years, Or to payment of a fine of not more than $10,000 for the first

offense and $20,000 for a second or subsequent offense, or both.

Subd. 4. Dissemination. A person who, knowing or with reason

to know its content and character, disseminates for profit a work

depicting a minor in sexual performance, as defined in this section, is

guilty of a felony and may be sentenced to imprisonment for not more

than five years, or to payment of a fine of not more than $10,000 for the

first offense and $20,000 for a second or subsequent offense, or both.

Subd. 5. Consent, mistake. Neither consent to sexual

performance by a minor or the minor’s parents, guardian, or custodian

nor mistake as to the minor’s age is a defense to a charge of violation

of this section.