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State v. Fingal

July 29, 2003

STATE OF MINNESOTA, RESPONDENT,
v.
KRISTOPHER GERALD FINGAL, APPELLANT (C4-02-1967), DENNIS JAY FRANKE, APPELLANT (C3-03-254).



Hennepin County District Court File No. 67807

Considered and decided by Minge, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

SYLLABUS BY THE COURT

1. Because the definitions of "pornographic work" set forth in Minn. Stat. §á617.246, subd. 1(f)(1), (2)(i), 2(ii) (2000), all refer to "a minor" or "an identifiable minor," and because "minor" is defined by Minn. Stat. §á617.246, subd. 1(b) (2000), as "any person under the age of 18," the definitions are not unconstitutional for vagueness and overbreadth.

2. Those to whom a statute may constitutionally be applied, lack standing to raise due process challenges to statutory application to situations not before the court.

3. The definitions of "pornographic work" set forth in Minn. Stat. §á617.246, subd. 1(f)(1), (2)(i), (2)(ii), are not unconstitutional for violations of due process of law.

The opinion of the court was delivered by: Harten, Judge

Affirmed

Concurring specially, Minge, Judge

OPINION

Appellants were tried separately on stipulated facts and convicted separately under Minn. Stat. §á617.247 (1999) of possession of pictorial representations of minors. In this consolidated appeal, both challenge the constitutionality of that statute.

FACTS

Appellant Kristopher Fingal was charged with possessing child pornography in violation of Minn. Stat. §á617.247 (2000). He moved to dismiss the charges on the ground that Minn. Stat. §á617.247 is unconstitutional. The district court, relying on Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389 (2002) (definition of pornographic work appearing in Minn. Stat. §á617.246, subd. 1(f)(2)(iii) (2000), and referenced in Minn. Stat. §á617.247, unconstitutionally void for overbreadth), concluded that, although Minn. Stat. §á617.246, subd. 1(f)(2)(iii), was unconstitutional, it was severable, and ordered respondent State of Minnesota to file notice of its intent to proceed against Fingal under the surviving provisions of the statute. The state complied and amended its complaint to charge Fingal with possessing child pornography as defined in Minn. Stat. §á617.246, subd. 1(f)(1) (2000), and/or Minn. Stat. §á617.246, subd. 1(f)(2)(i), (ii) (2000). Fingal unsuccessfully moved to dismiss the complaint. He was convicted on stipulated facts, among them an admission that the depictions in his possession were of "real, identifiable children."*fn1

Appellant Dennis Franke was charged under the same statutory provisions. He also was convicted on stipulated facts including an admission that the images were of real, identifiable children.*fn2 Both appellants filed appeals, which this court consolidated. The Minnesota Civil Liberties Union filed an amicus curiae brief on behalf of appellants.*fn3

ISSUES

1. Are the definitions of "pornographic work" set forth in Minn. Stat. §á617.246, subd. 1(f)(1), (2)(i), (2)(ii) (2000), unconstitutional for vagueness and overbreadth?

2. Do appellants have standing to challenge on due process grounds the constitutionality of the definitions of "pornographic work" set forth in Minn. Stat. ...


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