Appeal from District Court, St. Louis County; Hon. Jack J. Litman, Judge.
Considered and decided by Short, Presiding Judge, Lansing, Judge, and Gardebring, Judge.
The opinion of the court was delivered by: Lansing
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.
In State v. Fan, 445 N.W.2d 243 (Minn. App. 1989), pet. for rev. denied (Minn. Oct. 31, 1989), cert. denied, 494 U.S. 1030, 110 S. Ct. 1480, 108 L. Ed. 2d 617 (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.
A St. Louis County jury convicted Eve White of using 17-year-old R.A.R. to engage in a sexual performance. The facts surrounding 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 testified 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 falsely identifying R.A.R. as her 26-year-old sister. White asked R.A.R. to repeat the information 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.A.R. 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 R.A.R.'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 the constitutionality of the statute and the court's preclusion of a defense based on mistake of age.
1. Does the preclusion of a mistake of age defense to Minn. Stat. § 617.246 impermissibly 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?
The United States Supreme Court, in analyzing a New York statute *fn1 prohibiting the same conduct as Minn. Stat. § 617.246, *fn2 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, 494 U.S. 1030, 110 S. Ct. 1480, 108 L. Ed. 2d 617 (1990). Because the conduct of the promoter in Fan differs somewhat from Eve White's ...