Opinion
No. C7-99-350.
Filed July 27, 1999.
Appeal from the District Court, Hennepin County, File No. 98098720.
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, (for appellant)
William E. McGee, Hennepin County Public Defender, Renee J. Bergeron, Assistant Public Defender, (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Amundson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
The state appeals from the district court's dismissal, for lack of probable cause, of a felony charge of use of a minor in a sexual performance in violation of Minn. Stat. § 617.246 (1998). The state argues the district court erroneously ruled a minor is a person under the age of 16 and the conduct alleged could not constitute a sexual performance. We reverse and remand.
FACTS
The complaint alleges that when the police executed search warrants in September 1998 at the residence of respondent Mandeil Louis Stamper they found nude photos of his girlfriend, T.K., displaying her genitals. At the time T.K., born October 6, 1980, was 17, and Stamper, born August 16, 1977, was 21. The state charged Stamper with the felony of using a minor in a sexual performance in violation of Minn. Stat. § 617.246. At the probable cause hearing, the district court dismissed the charge, ruling that for the purposes of Minn. Stat. § 617.246 a minor is a person under the age of 16. The court further ruled that the alleged conduct could not constitute a sexual performance under Minn. Stat. § 617.246 because there was no presentation or exhibition. The state appeals. The district court also dismissed a gross misdemeanor charge of possession of a pictorial representation of a minor in violation of Minn. Stat. § 617.247 (1998), which the state does not appeal.
DECISION
Probable cause exists where the facts would lead a person of ordinary care and prudence to hold an honest and strong suspicion that the person under consideration is guilty. State v. Carlson , 267 N.W.2d 170, 173 (Minn. 1978). A dismissal for lack of probable cause is appealable if it is based on a legal determination. State v. Ciurleo , 471 N.W.2d 119, 121 (Minn.App. 1991). Interpretation of a statute is a question of law subject to de novo review. State v. Lindholm , 557 N.W.2d 601, 602 (Minn.App. 1996), review denied (Minn. Feb. 26, 1997).
Section 617.246 is part of chapter 617 provisions covering obscenity. Subdivision 2 provides:
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.
Any person who violates this subdivision is guilty of a felony * * *.
Minn. Stat. § 617.246, subd. 2. Subdivision 1 sets out 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.
* * * *
(d) "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).
(e) "Sexual conduct" means any of the following if the depiction involves a minor:
* * * *
(iii) Masturbation or lewd exhibitions of the genitals. Minn. Stat. § 617.246, subd. 1 (emphasis provided).
1. The state contends the district court erred in ruling that "minor" for purposes of section 617.246 means any person under the age of 16. "When the words in a statute are clear and unambiguous, a court must give effect to the plain meaning of the language." State v. Wetsch , 511 N.W.2d 490, 491 (Minn.App. 1994) (citation omitted), review denied (Minn. Apr. 19, 1994); see Minn. Stat. § 645.16 (1998) (courts must give effect to statute's plain language). Here, the plain language of section 617.246 states that the definition of a minor is any person under the age of 18. Minn. Stat. § 617.246, subd. 1(b). The district court supported its conclusion that the correct definition of minor is any person under the age of 16 by citing the definition of a minor in Minn. Stat. § 617.245 (1998), and Doe v. Brainerd Int'l Raceway, Inc. , 514 N.W.2d 811 (Minn.App. 1994), rev'd 533 N.W.2d 617 (Minn. 1995).
Section 617.245 provides for a civil cause of action for use of a minor in a sexual performance. Minn. Stat. § 617.245 (1998). Section 617.245 generally tracks the language of section 617.246 but differs in that it defines minor as "any person who, at the time of use in a sexual performance, is under the age of 16." Minn. Stat. § 617.245, subd. 1(b). In Doe , this court noted section 617.245 "demonstrates a legislative intent to restrict any cause of action existing under Minn. Stat. § 617.246 to persons who have not yet reached the age of 16." 514 N.W.2d at 817 n. 1 (emphasis provided). This court concluded that section 617.246 itself authorizes a civil cause of action. 514 N.W.2d at 817. But the supreme court reversed, concluding that section 617.245, not section 617.246, provides the civil cause of action. 533 N.W.2d at 621.
In this case, for example, T.K. would not be able to bring a civil action against Stamper under section 617.245 because she was not under the age of 16 at the time of the photos. But the state may charge a defendant for violation of section 617.246 so long as the person involved is under 18. Consistent with the definition of a minor found at Minn. Stat. § 617.246, subd. 1(b), this court has upheld the application of section 617.246 to cases involving persons 16 and 17 years old. See State v. White , 464 N.W.2d 585, 586 (Minn.App. 1990), review denied (Minn. March 15, 1991); State v. Borden , 455 N.W.2d 482, 483 (Minn.App. 1990), review denied (Minn. July 13, 1990).
2. The state contends that the district court further erred in ruling that the alleged conduct could not constitute sexual performance within the meaning of Minn. Stat. § 617.246. The district court asserted that privately taking nude photographs is not sexual performance because there is no requisite exhibition or presentation. We conclude, however, that displaying genitals for the purposes of photographic reproduction meets the definition of sexual performance found at Minn. Stat. § 617.246, subd. 1(d), as it is an exhibition "for purposes of visual or mechanical reproduction" of sexual conduct. Sexual conduct includes "lewd exhibitions of the genitals." Minn. Stat. § 617.246, subd. 1(e)(iii); see State v. Fan , 445 N.W.2d 243, 246 (Minn.App. 1989) (upholding constitutionality of standard), review denied (Minn. Oct. 31, 1989).