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12/18/90 STATE MINNESOTA v. EVE WHITE

December 18, 1990

STATE OF MINNESOTA, RESPONDENT,
v.
EVE WHITE, A/K/A EVE CASCIO, APPELLANT



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.

FACTS

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.

ISSUES

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?

ANALYSIS

I

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 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 performance 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 substantially overbroad. Id. at 773-74, 102 S. Ct. at 3363. White contends that the differences between the New York and Minnesota statutes undercut 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 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 Morissette v. U.S., 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952); Dennis v. United States, 341 U.S. 494, 500, 71 S. Ct. 857, 862, 95 L. Ed. 1137 (1951). However, as we recognized in Fan, the existence of mens rea is not constitutionally mandated. Fan, 445 N.W.2d at 246-47 n.3. States may create strict liability by defining criminal ...


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