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State v. Levie

May 3, 2005


Hennepin County District Court File No. K2-03-106.

Considered and decided by Randall, Presiding Judge; Minge, Judge; and Wright, Judge.


Under Minn. Stat. § 609.04, subd. 1(4) (2002), a defendant cannot be convicted of both attempted use of a minor in a sexual performance and solicitation of a child to engage in sexual conduct where the criminal complaint alleges essentially the same set of facts for both charges, and the trial record shows the convictions were based on the same criminal conduct.

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

Affirmed in part, reversed and vacated in part, and remanded


Appellant was charged with two counts of attempted use of a minor in a sexual performance, in violation of Minn. Stat. §§ 617.246, subd. 2, 609.17, subd. 1, 4(2) (2002), and two counts of solicitation of a child to engage in sexual conduct, in violation of Minn. Stat. § 609.352 (2002). Appellant waived his right to a jury trial and was convicted on all four counts by the district court. On appeal, appellant argues that the district court erred in admitting evidence of appellant's internet use and the encryption capability of his computer. Appellant also argues that the victim's testimony was too vague to support the charges against him and, specifically, the victim's testimony that she refused appellant's request to take nude photos of her was insufficient to prove an attempt. Further, appellant argues that the court improperly referred to matters outside the record, and erred by basing its finding of guilt on simulated physical conduct that was not charged in the complaint. Finally, appellant argues that all four counts were part of the same behavioral incident and, thus, separate sentences for each count were inappropriate.


Prior to the start of his trial, appellant objected to the admission of a forensic report on the contents of his computer known as an EnCase Report (report).*fn1 Appellant argued that the report was irrelevant because it showed only that appellant may have received a lot of junk-email, and that a search of "80 or 90 percent of all computers in the State" would produce similar results. But the district court determined that sections of the report were admissible, and stated, "[i]t is important for the State to be able to follow-up with that evidence to show . . . what the Defendant allegedly did, how he allegedly did it, and what [the author of the report] may have found." The court went on to state that sections of the report regarding search terms such as "Lolitas" were relevant because "such a term may be aimed toward the uncovering of materials that are directed to the subject matter of sex with minors." For appellant, the district court did exclude other and more inflammatory search terms and phrases because it found them more prejudicial than probative.

At trial, the district court heard testimony from a number of witnesses, including: the victim (S.M.), her mother, the police officer who conducted the investigation, Peter Badker (Badker), and the retired police officer who authored the EnCase Report, Brooke Schaub (Schaub).

S.M.'s mother testified mainly about S.M.'s relationship with appellant and the circumstances in which she learned of appellant's improper behavior with her daughter. Specifically, S.M.'s mother testified that S.M. "froze" one night in the middle of the grocery store when she defined child pornography in the context of a story about a relative. S.M.'s mother testified that she later called social services and reported that S.M. told her appellant "had offered her money to take nude photographs."

S.M. then testified at length about her experiences with appellant, who is her uncle. And S.M. was cross-examined at length regarding inconsistencies between her trial testimony and her videotaped statements to Officer Badker. Further specifics regarding S.M.'s testimony will be discussed below.

Badker next testified that, on January 7, 2003, he was contacted by Social Services and given a report that stated, "maternal uncle is soliciting the victim to let him take nude photos of her and offering her money if she complied." Badker conducted a video-recorded interview with S.M. on the same day. The videotape of the January 7, 2003 interview was admitted without objection and played in its entirety for the district court. Badker conducted a second video-recorded interview of S.M. on January 16, 2003. The January 16 tape was also admitted without objection, and was played in its entirety for the district court.

Finally, Schaub testified that, in a file entitled "research," he found the text of Minn. Stat. § 617.246, which included "the definition of minor sexual performance, sexual conduct, things of that nature." He also testified that he found an encryption program, PGP, on appellant's computer; PGP "can basically encrypt any file;" and, "other than the National Security Agency," he was not aware of anyone who could break such an encryption. But Schaub also admitted that the PGP program may be included on every Macintosh computer that comes out today, and appellant may have had the text of Minn. Stat. § 617.246 in his computer because of prior allegations against him.

Appellant did not call any witnesses in his defense, and waived his right to testify. After closing arguments and an adjournment, the court explained its findings orally, noting that: appellant frequently hosted sleepovers for 8 to 10-year old girls; appellant's relationship with S.M. had qualities of a "fixation;" the physical evidence presented was not sufficient to support a conviction, but such evidence was "taken into account;" the "evidence tends to show that an encrypting capability was employed by the Defendant;" and there are "occasions that indicate that there was advance notice of that so called surprising and thorough search warrant" executed at appellant's home.

The court found that the statements of S.M. were "[c]ritically important for the court's determination," and acknowledged that it "spent the most time" examining S.M.'s testimony. Further, the court noted that "the poses which [S.M.] described are very specific." And the court stated that "there is a consistency that runs from the first time she's reporting it on through to when she gets off of the stand. In her testimony, the consistency is what is happening to her. It gets amplified; it gets changed in terms of numbers of times, but basic things, is the same." And "she's consistent in many respects even on the stand, regarding frequencies, numbers of times it has happened, and as I sense, not telling the whole story still. But she's telling the truth about the guts of this case, absolutely."

Finally, the district court found that there was evidence corroborating S.M.'s testimony. The court cited "some evidence of grooming from the photos;" appellant's "computer knowledge and skills;" and that S.M. "talk[ed] about [appellant] placing stickers on her nipples."

The district court subsequently found appellant guilty on all four counts. Appellant was sentenced to a stayed sentence on each of the four counts "with concurrent probation and conditions on each count." This appeal followed.


1. Did the district court err in admitting evidence concerning appellant's internet usage and encryption capability for his computer?

2. Is there sufficient evidence to support appellant's conviction for two counts of Attempted Use of a Minor in a Sexual Performance and two counts of ...

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