Defendant's voice-mail messages, telephone calls, and personal contact with a 13-year-old female child he met through a telephone dating service provided substantial, not inherently incredible, evidence admissible at trial that the defendant commanded, entreated, or attempted to persuade the child to engage in sexual conduct; therefore, the district court erred when it found there was no probable cause to charge the defendant with soliciting the child to engage in sexual conduct in violation of Minn. Stat. §á609.352, subd. 2 (2002).
The opinion of the court was delivered by: Anderson, Paul H., Justice
Heard, considered, and decided by the court en banc.
In the early morning hours of June 10, 2001, Travis Wade Koenig engaged in sexual activity with a 13-year-old girl whom he met through a telephone dating service. Koenig was subsequently charged with three counts of sexual misconduct, including child solicitation under Minn. Stat. §á609.352, subd. 2 (2002). The Hennepin County District Court dismissed the solicitation charge for lack of probable cause, finding that the child initiated contact with Koenig, willingly participated in multiple sexually-explicit conversations, and willingly decided to meet Koenig to engage in sexual activity. The court of appeals affirmed, concluding that the child's receptive attitude and conduct left no opportunity for Koenig to solicit the child for sexual conduct. We reverse.
On the evening of June 9, 2001, respondent Travis Wade Koenig, then 31 years old, was on duty as a police officer in the City of Minneapolis. While on duty, Koenig placed several calls from his department-issued cellular telephone to the Minnesota Casual Sex Dateline. The calls were not recorded, but through an administrative subpoena, the police were able to obtain Koenig's telephone records and verify that he had placed the calls to the dateline service. Koenig subsequently admitted that he made the calls and that he did so because he was in search of someone ready to have a sexual encounter. According to Koenig, users of this dateline service can post recorded messages to which other callers can then listen and respond if they choose.
Koenig was listening to messages posted by female callers when he heard a message posted by R.P. and J.L. According to Koenig, the message stated that the callers were two "hot chicks" from St. Louis Park who wanted to "party like rock stars," were into "sex parties," and could "go all night long." Koenig testified that the message also stated something to the effect that the listener should call "if you think that you can keep up." The message also stated that the callers were 18 and 19 years of age. At the time, R.P. was 13 and J.L. was 15.
Koenig responded to the message by leaving a voice-mail mentioning oral sex and stating that he would like to take the callers up on their offer. According to Koenig, R.P. replied by voice-mail, stating that she thought Koenig's voice was sexy, inquiring if Koenig was muscular, and also inquiring about the "type of sex stuff" he liked. This response started an exchange of approximately six or seven explicit voice-mail messages discussing various sexual acts. Koenig and R.P. then decided to talk live instead of via voice-mail. Koenig and R.P. talked by telephone for approximately 70-80 minutes. Koenig testified that R.P. told him about her sexual history and "what she likes and doesn't like." At some point, Koenig also briefly talked to J.L.
During one of the conversations, R.P. decided to take another call, which she termed a "booty call."*fn1 Koenig, thinking this was an excuse to end the conversation, told R.P. that he did not believe that she was going to call him back. Koenig testified that R.P. promised him that he could have any sexual favor he wanted if she did not call him back within five minutes. Koenig testified that it was R.P.'s idea to give a sexual favor because he "kept telling her" that he did not think she would call him back. R.P. called back about 20 minutes later.
Koenig stated that R.P. indicated she wanted to meet him and suggested a location for the meeting. They arranged to meet later that same night. Koenig called R.P. when he was leaving work sometime after 1:00 a.m. so she could be ready. He called again at approximately 2:00 a.m. when he arrived at the meeting place, a local gas station. After waiting 15 minutes and thinking that R.P. and J.L. had decided not to meet, Koenig called a third time. R.P. and J.L. responded to this call by indicating to Koenig that they still planned to meet him. Koenig subsequently testified that he was in a hurry because he did not want his wife to question why he had not come home after work.
Shortly thereafter, R.P. and J.L. arrived at the gas station and got into Koenig's car. Koenig then drove around, looking for a hotel that had a vacancy. At each hotel, he would leave R.P. and J.L. in the car while he inquired about a room. R.P. told the police that Koenig made them wait in the car. Koenig found a vacant room at the third hotel they visited and registered for a room under a pseudonym. R.P. told the police that Koenig made her and J.L. walk into the hotel separately because he did not want them to be seen together because they looked so young. Nevertheless, Koenig stated that, even upon seeing R.P. and J.L. in the light of the hotel room, he believed that they were 18 and 19 years of age.
After entering the hotel room, J.L. went into the bathroom and stayed there because she did not want to participate in any sexual activity. Koenig then asked R.P. if he could have the sexual favor she had promised and he testified that she responded by saying, "No problem." The sexual favor he requested was for R.P. to perform oral sex while she was restrained by his handcuffs. R.P. complied with the request. Koenig and R.P. also engaged in anal sex. R.P. then told J.L. she could come out of the bathroom because they were finished. After J.L. came out of the bathroom, Koenig turned on a pornographic movie for the three of them to watch. During the movie, Koenig and R.P. had oral and vaginal sex while J.L. remained in the room.
As to these events, R.P. told the investigating officer that she felt forced into having sex with Koenig, felt scared, thought that Koenig was a creep and too old, and was afraid that if she did not do what he wanted, he would hurt her or J.L. J.L. initially told the police that she and R.P. went to the hotel willingly with Koenig and were not forced. However, in a later interview with an investigating officer and an Assistant Hennepin County Attorney, J.L. said that R.P. pressured her into accompanying her to the meeting with Koenig, that J.L. was scared, and that R.P. told J.L. that she was scared. J.L. also said that while she and R.P. were waiting in the car at one of the hotels, they discussed leaving before Koenig returned from the hotel, but he returned before they could leave. J.L. added that after the events in the hotel room, she wanted to run away and return to her home because she was uncomfortable and afraid. Nevertheless, she did not run away and Koenig drove both R.P. and J.L. home.
The encounter between Koenig, R.P., and J.L. came to light because of a subsequent report of a sexual assault of R.P. by one or more other males which occurred a few hours after R.P.'s meeting with Koenig. Following this assault, R.P. was taken to a medical center for a sexual assault examination. The nurse examining R.P. stated that R.P. told her that she had sexual intercourse with two other males before being raped by the men who had been arrested. Later that same day, an investigating officer interviewed R.P. about the sexual assault.
During the interview with R.P., the investigator inquired about the two other males with whom she had sexual intercourse earlier that morning. R.P. was only able to identify Koenig by his first name, but she gave the investigator Koenig's cellular telephone number, through which the police tracked him down. When contacted, Koenig agreed to be interviewed. When interviewing Koenig on July 27, 2001, the police verified R.P.'s story about her meeting with him to engage in sexual activity. Koenig emphasized that the encounter was consensual, and vigorously denied that he knew R.P. and J.L.'s actual ages. Koenig also stated in the interview that R.P. left him a message the next day indicating that she wanted to meet again. Koenig said he called her back and lied about being out of town because he was feeling guilty about cheating on his wife. However, Koenig said that a few days later, on June 14, he attempted to reach R.P. again to have another sexual encounter, but was unable to reach her.
A criminal complaint was filed against Koenig on August 27, 2001, charging him with: (1) third-degree criminal sexual conduct for having sex with a minor (Minn. Stat. §á609.344, subd. 1(b) (2002)), a felony for which the penalty is imprisonment for not more than 15 years and/or payment of a fine of not more than $30,000 (Minn. Stat. §á609.344, subd. 2 (2002)); (2) solicitation of a child to engage in sexual conduct (Minn. Stat. §á609.352, subd. 2), a felony for which the penalty is imprisonment for not more than three years and/or payment of a fine of not more than $5,000 (Minn. Stat. §á609.352, subd. 2); and (3) fifth-degree criminal sexual conduct for engaging in sexual activity in the presence of a minor (Minn. Stat. § 609.3451, subd. 1 (2) (2002)), a gross misdemeanor for which the penalty is imprisonment for not more than one year and/or payment of a fine of not more than $3,000 (Minn. Stat. §á609.3451, subd. 2). Koenig may present an affirmative defense to the sex-with-a-minor charge by showing by a preponderance of evidence that he believed R.P. was over the age of 16. Minn. Stat. §á609.344, subd. 1(b).
In December 2001, Koenig filed a motion to dismiss all three counts for lack of probable cause. A Florence hearing was held to determine whether there was sufficient probable cause to support the charges.*fn2 The investigating officer and Koenig provided testimony at the hearing. Koenig described his contacts and meeting with R.P. and J.L. There was also extensive testimony as to Koenig's knowledge of the girls' ages. Koenig testified that the dateline service states that callers have to be 18 years old to use the service. He testified that R.P. told him that she was 18 and that J.L. was 19. However, Koenig testified that during one of their telephone conversations, R.P. asked, ...