This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Chong Sun Kerling, f/k/a Chong Sun Kauffman,


Filed August 31, 1999

Reversed and remanded

Schumacher, Judge

Hennepin County District Court

File No. 97079854

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Jay M. Heffern, Minneapolis City Attorney, Judd E. Gushwa, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)

Randall D.B. Tigue, 2620 Nicollet Avenue South, Minneapolis, MN 55408 (for appellant)

Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Amundson, Judge.



Appellant Chong Sun Kerling, f/k/a Chong Sun Kauffman, challenges her conviction for prostitution in violation of Minn. Stat. § 609.324, subd. 3(1) (1996). She claims the statute violates her constitutional right to privacy, is unconstitutionally vague, is an unconstitutional establishment of religion, and violates equal protection. She also argues the evidence is insufficient to support the conviction and the jury instructions were erroneous. Because we find the jury instructions were erroneous, we reverse and remand for a new trial.


Kerling was arrested in an undercover sting operation and convicted of prostitution. At trial, the undercover officer testified that he entered Sauna 27 for the purpose of investigating possible prostitution. He was equipped with a recording device that was monitored by other officers. When he arrived, Kerling offered him a massage for $60. For about 30 minutes, Kerling and another woman massaged him but nothing illegal took place.

When the other woman left the room, the officer asked if he could massage Kerling, and she said yes. He asked how much, and she asked, "How much do you want to pay?" He offered $40, and she accepted. The officer testified that after massaging her back, he asked if he could undue her bra and remove her underwear. Kerling said he could. She removed her bra, and the officer laid back on the table. She stood up and poured baby oil onto his chest and penis, put his hand on his penis, and indicated for him to masturbate. He asked her to do it, but she said no. Eventually she moved his hand up and down and massaged his testicles with her other hand. He then gave a pre-arranged signal to his fellow officers to arrive.

Kerling's testimony was similar in many respects, but she claims she resisted the officer's attempts to remove her clothing, telling him no. She claimed the officer gestured that he wanted to have sex with her, so she offered to massage him again. He gestured he wanted her to use her hand on his genitals, but she said no. She finally told him to "do himself" and poured baby oil on his hands and genitalia. She denied ever touching his testicles.

The defense objection to the jury instructions was overruled, and Kerling was convicted on one count of prostitution. The defense motion for a new trial was denied. Kerling appeals.


1. When reviewing a challenge to the sufficiency of the evidence, the court is limited to analyzing the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit jurors to reach the verdict they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The construction of a statute, however, is a question of law reviewed de novo by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

Kerling argues that the definition in Minn. Stat. § 609.321, subd. 10 (1996), of "sexual contact" excludes the acts alleged in the complaint, and the state's evidence, even if believed, does not constitute a violation of the statute. This court must interpret "sexual contact" under the statute.

The language of Minn. Stat. § 609.321, subd. 10, prohibits "sexual contact" for hire, stating:

"Sexual contact" means any of the following acts, if the acts can reasonably be construed as being for the purpose of satisfying the actor's

sexual impulses:

(i) The intentional touching by an individual of a prostitute's intimate parts; or

(ii) The intentional touching by a prostitute of another individual's intimate parts.

Id. Kerling contends that "actor" can only mean the person doing the touching and in this case would mean Kerling herself. Therefore, unless Kerling touched the officer to satisfy her own sexual impulses, she cannot be in violation of this statute.

Kerling draws an analogy between the meaning of "actor" in Minn. Stat § 609.321, subd. 10, and the meaning of the same term in the criminal sexual conduct statutes. Kerling cites State v. Mar, 291 N.W.2d 223, 224 (Minn. 1980), which implies that, under the definition of criminal sexual conduct, "actor" is the person doing the touching. The district court pointed out that the two statutes serve wholly different purposes and prostitution involves two willing participants, or two possible "actors," while criminal sexual conduct involves only one willing participant, or possible "actor."

Nevertheless, we agree with Kerling that under the part of the statute charged here, involving the "intentional touching by a prostitute," Minn. Stat § 609.321, subd. 10(ii) (emphasis added), she was the "actor." But Kerling erroneously assumes the statute does not apply to her without evidence that she was performing the touching to satisfy her own sexual impulses. The state did not need to prove that Kerling was acting to satisfy her sexual impulses, but only that her actions "could reasonably be construed" that way. Id. In other words, the state had to prove the touch was sexual in nature and not for some other purpose, such as a medical examination.

Kerling also argues that the statute's language is unconstitutionally vague. A statute is not unconstitutional unless its invalidity is shown beyond a reasonable doubt. Minnesota Higher Ed. Facilities Auth. v. Hawk, 305 Minn. 97, 103, 232 N.W.2d 106, 110 (1975). In addition, when a statute is subject to multiple interpretations, the courts will choose one that is constitutional. State v. Crims, 540 N.W.2d 860, 867 (Minn. App. 1995), review denied (Minn. Jan. 23, 1996). Courts may give reasonable and sensible construction to criminal statutes in order to determine whether the language conveys sufficiently definite warnings as to the proscribed conduct when measured by common understanding and practice. State v. Suess, 236 Minn. 174, 179-80, 52 N.W.2d 409, 413-14 (1952).

A common sense reading of this statute reveals that the acts Kerling engaged in were proscribed acts. The language of the statute prohibits sexual contact for hire. Kerling was paid money and engaged in sexual contact. The statute sufficiently warns the public that sexual contact by either actor when done for payment constitutes prostitution. Kerling has not shown beyond a reasonable doubt that the statute is unconstitutional. Nor has she shown that the statute does not apply to her actions.

2. Kerling's motion for a new trial based on the jury instructions was denied. The court's decision to grant or deny a new trial will not be disturbed absent an abuse of discretion. Wieland v. State, 457 N.W.2d 712, 714 (Minn. 1990). The refusal to give a requested jury instruction lies within the discretion of the trial court and no error results if no abuse of discretion is shown. State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989).

Kerling specifically objected to the jury instructions given. The instructions followed the statute and stated that the act is prohibited sexual contact if it could "reasonably be construed as being for the purpose of satisfying the actor's sexual impulses." Minn. Stat. § 609.321, subd. 10 (emphasis added). Kerling claims that the "reasonably be construed" language unconstitutionally reduces the burden of proof below "beyond a reasonable doubt."

In State v. Tibbetts, 281 N.W.2d 499 (Minn. 1979), the Minnesota Supreme Court reversed a conviction based on jury instructions for criminal sexual conduct that used substantially the same language as the statute under review here, stating:

By instructing the jury that "the touching could reasonably be construed as being for the purpose of satisfying the defendant's sexual impulses" the degree of proof was shifted from acts which must be proved beyond a reasonable doubt to acts which could reasonably be construed or interpreted to be for an improper purpose. * * * In other words, by failing to charge that the proof of guilt must be beyond a reasonable doubt and by charging instead that it could merely be a reasonable construction of the evidence the protection afforded an accused is emasculated and the jury is invited to select one of several possible conclusions if each of them can be logically supported.

Id. at 500.

The state argues that because the jury was instructed that they had to find each element beyond a reasonable doubt, any misdirection the jury may have been given by the language of the statute was cured. The jury was similarly instructed in Tibbetts, however. Id. at 500. The jury instructions in this case are the same as in Tibbetts. We reverse and remand for a new trial with jury instructions that require all elements of the crime to be proven beyond a reasonable doubt. Kerling also argues the verdict was not supported by the evidence. We conclude from the record, however, that there was sufficient evidence for the jury to convict.

3. Kerling also claims that the statute is unconstitutional on several grounds in addition to her vagueness claim. We find these arguments unpersuasive. The constitutionality of a statute is a question of law and thus given de novo review. See In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993). "Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary." In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989) (citation omitted). When a party challenges the constitutionality of a statute, that party bears the burden of showing a violation of the constitution beyond a reasonable doubt. Id.

Kerling argues that the Minnesota prostitution statute, as it applies only to sexual contact, violates the right to privacy. The Minnesota Supreme Court has already declared that the prostitution statute does not violate the constitutional right to privacy in State v. Gray, 413 N.W.2d 107, 114 (Minn. 1987). We find no legal distinction between that case and the one before us.

Kerling argues that the statute is motivated purely by religious tenets and therefore violates the First Amendment as an establishment of religion. Kerling's claim that the statute is religiously motivated is unfounded. The test set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971), is applicable. The law must have a secular purpose, the primary effect of the law must neither assist nor harm religion, and the law may not foster excessive government entanglement with religion. Id. at 612-13, 91 S. Ct. at 2111.

A community may have many reasons for prohibiting prostitution that have no religious motivation. See, e.g., Acara v. Cloud Books Inc., 478 U.S. 697, 707, 106 S. Ct. 3172, 3177 (1986) (laws aimed at eradicating premises in which prostitution occurs are designed to protect "environment of the community"); State v. Dailey, 284 Minn. 212, 214-15, 169 N.W.2d 746, 748 (1969) (laws that prohibit prostitution are designed to eliminate conditions that diminish quality of life). Kerling has not shown that the statute violates the First Amendment.

Kerling also argues that the statute violates her right to equal protection of the law under the Fourteenth Amendment. Kerling's argument fails because only certain suspect classes are recognized as needing protection under this amendment, and Kerling has not identified herself as belonging to a suspect class. See State v. Behl, 564 N.W.2d 560, 568 (Minn. 1997) (must treat similarly situated people alike, but "facial distinctions based on age and charged offenses do not create suspect classifications" (citation omitted)).

Kerling's final argument that the "justifications for the prohibition given by the trial court are inadequate as a matter of law" is baseless. Her argument that the trial court's reasons for rejecting her constitutional claims are inadequate is the same as reasserting her constitutional claims already addressed. Furthermore, Kerling has the burden of showing the law is unconstitutional beyond a reasonable doubt. In re Haggerty, 448 N.W.2d at 364. She has failed to do so.

Based on erroneous jury instructions, we reverse and remand for a new trial.

Reversed and remanded.