This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-02-762

 

 

State of Minnesota,

Appellant,

 

 

vs.

 

Dennis Henry DePaulis,

Respondent.

 

 

Filed December 10, 2002

Affirmed

Robert H. Schumacher, Judge

 

St. Louis County District Court

File No. K601600870

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Alan L. Mitchell, St. Louis County Attorney, Leslie E. Beiers, Assistant County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for appellant)

 

David J. Malban, 425 Providence Building, 332 West Superior Street, Duluth, MN 55802 (for appellant)

 

Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, and Mulally, Judge.*

 

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant State of Minnesota charged respondent Dennis Henry DePaulis with hiring a 17-year-old for sex. The district court dismissed the charge for failure of proof because the individual DePaulis offered to hire was a 23-year-old police undercover agent. The state challenges the dismissal, arguing that because an offer to hire a 17-year-old for sex is an inchoate crime, its violation was not rendered impossible by the police agent's majority. We affirm.

FACTS

DePaulis was arrested in a police sting operation and charged with hiring a 17-year-old for sex in violation of Minn. Stat. 609.324, subd. 1(c)(2) (2000), a felony. The individual DePaulis offered to hire was in fact a 23-year-old police agent posing as a 17-year-old. DePaulis pleaded not guilty.

In a pretrial brief, the state argued that the actual age of the individual DePaulis offered to hire for sex did not defeat the charge because Minn. Stat. 609.324, subd. 1(c)(2) prohibits an attempt crime to which impossibility defenses are inapplicable. The district court rejected this argument, reasoning that the police agent's true age precluded the state from meeting its burden to prove every element of the crime charged beyond a reasonable doubt, as it must do in light of DePaulis's not-guilty plea. The court dismissed the felony charge for lack of probable cause.

D E C I S I O N

The state argues that Minn. Stat. 609.324, subd. 1(c)(2) (2000) defines an attempt, or inchoate, crime that cannot be defeated by an impossibility defense. See Minn. Stat. 609.17, subd. 2 (2000) (stating impossibility is no defense to attempt crime). Statutory interpretation is a question of law reviewed de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).

DePaulis did not raise an impossibility defense. He pleaded not guilty; the state therefore bore the burden of proving there was probable cause to require him to stand trial on the minor prostitution charge. State v. Larson, 358 N.W.2d 668, 671 (Minn. 1984). The district court dismissed the charge because the police agent's true age precluded the state from proving at trial the crime's first element, which is that the person hired for sex be 16 or 17 years old. See 10 Minnesota Practice, CRIMJIG 12.67(3) (1999). The state's argument lacks precision in that it focuses exclusively on the impossibility defense without addressing the failure of proof, which was the sole basis for the dismissal.

A crime is factually impossible when an actor is unable to accomplish it because of facts unknown to him and legally impossible when an actor will not have committed a crime even if he does everything he intended to do. See State v. Bird, 285 N.W.2d 481, 482 (Minn. 1979). Neither factual impossibility nor legal impossibility is a defense to attempt, conspiracy, or other so-called inchoate crimes incipient or anticipatory crimes leading to other crimes which require only that an individual intend to commit a crime and take a substantial step toward its completion. See Minn. Stat. 609.17, subd. 2 (2002) (eliminating legal impossibility as a defense to attempt crimes); Bird, 285 N.W.2d at 482 (noting effect of section 609.17); Black's Law Dictionary 761 (6th ed. 1990) (defining inchoate crimes).

The state does not dispute that it charged DePaulis with the substantive crime of hiring a 17-year-old for sex and not with an attempt to do so. Instead, the state argues that because Minn. Stat. 609.324, subd. 1(c)(2) proscribes an inchoate activity, DePaulis's intent and offer to hire a 17-year-old for sex constituted a substantive violation of the statute that was not rendered impossible by the police agent's actual age. We disagree.

It is true that the supreme court has held an offer to engage in sexual conduct with an adult for hire to be inchoate activity "requir[ing] neither completed sexual conduct nor a substantial act in furtherance of the endeavor." State v. Bennett, 258 N.W.2d 895, 897 (Minn. 1977) (footnotes omitted); see also Minn. Stat. 609.324, subd. 3(2) (2000) (prohibiting hiring or offering to hire individual 18 years of age or above for sex). But while an offer to hire a 16 or 17-year old for purposes of prostitution may be an inchoate crime with regard to the sexual conduct itself it is not an inchoate activity with respect to the victim's age, and the offense's age element may not be satisfied by an individual's erroneous belief as to the age of the person hired.

The essential element of the crime charged here is that the person hired be 16 or 17 years old. Minn. Stat. 609.324, subd. 1(c) (2); see also 10 Minnesota Practice, CRIMJIG 12.67(3) (1999) (listing elements of crime). The statute's plain language does not provide that the age element can be satisfied by the actor's belief concerning the age of the person hired. Cf. Minn. Stat. 609.352, subd. 2 (2000) (prohibiting solicitation of "child or someone [the actor] reasonably believes is a child"); State v. Coonrod, 652 N.W.2d 715, 723-24 (Minn. App. 2002) (holding there was sufficient evidence to prove defendant reasonably believed adult undercover officer was under 16).

We do not agree with the state's contention that Minn. Stat. 609.324, subd. 1 (c) (2) proscribes inchoate activity in the sense that it can be violated merely by an individual's intent to offer to hire a 17-year old for sex, despite the actual age of the person hired. Although respondent's conduct may be considered inchoate activity in that it can lead to prohibited sexual conduct with a minor, the activity proscribed by Minn. Stat. 609.324, subd. 1 (c) (2) is the prostitution agreement itself, not the sexual conduct. Cf. State v. Kelly, 379 N.W.2d 649, 652 (Minn. App. 1986) (holding that prostitution offense is complete upon an offer of sexual services for pay).

Even if DePaulis believed the police agent to be 17 at the time he offered to hire her for sex, and even if he had the requisite intent, the agent was in fact not then 17. Without proof of age, respondent's intent would be insufficient to support a conviction under section 609.324, subd. 3(2). DePaulis completed the act of offering to hire the undercover agent for sex, but that act would not be proscribed by the statute because the state could not prove that the agent was 16 or 17. We note that the true age of the police agent here would not preclude convicting DePaulis of attempting to hire a 17-year old for sex. But the state did not charge DePaulis with an attempt crime. The agent's age therefore made it impossible for the state to present probable cause to believe that respondent violated Minn. Stat. 609.324, subd. 1 (c) (2).

Finally, we address the state's assertion, quoting 9 Henry W. McCarr and Jack S. Nordby, Minnesota Practice 47.33 (2001), that this court's

recognition of [impossibility defenses] would * * * defeat virtually all undercover or "sting" operations and greatly impair the ability to prosecute drug crimes, prostitution, sale of stolen property and the like.

 

We note first that by affirming the district court's dismissal of the felony charge, we recognize not an impossibility defense, which DePaulis had not raised, but the fact that the state could not meet its burden to prove every element of the crime charged. We further observe that federal and state prosecutors using adult undercover agents in minor-prostitution sting operations typically bring attempt charges precisely in order to avoid impossibility defenses and dismissals for failure of proof. See, e.g., U.S. v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002) (concluding "that an actual minor victim is not required for an attempt conviction" under federal statute prohibiting enticing minor to engage in criminal sexual activity); People v. Sharif, 532 N.Y.S.2d 709, 710 (N.Y. City Crim. Ct. 1988) (holding actual majority of decoy policewoman irrelevant to charge of attempting to patronize prostitute under age of 17). The district court properly dismissed the substantive felony charge.

Affirmed.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.