# Appendix — White v. Minnesota > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2228%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1991 - **Citation:** 502 U.S. 819 ## Text FILED m 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 A.l 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 A3 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 A.4 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. A.6 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. A8 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 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 A.15 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. A.23 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 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). A8l 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. A.82 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 A.83 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 A.84 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. A.86 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. A.88 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 A.89 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. A.90 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2228%3A2. Public record. Not legal advice.