This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In the Matter of the Welfare of:


Filed July 22, 1997


Holtan, Judge


Clay County District Court

File No. J19650224

Becky L. Erickson, Special Assistant State Public Defender, 3700 Piper Jaffray Tower, 222 South Ninth Street, Minneapolis, MN 55402 (for Appellant)

John M. Stuart, State Public Defender, Charlann E. Winking, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Todd Webb, Clay County Attorney, Scott Collins, Assistant County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561 (for Respondent)

Considered and decided by Huspeni, Presiding Judge, Willis, Judge, and Holtan, Judge.



Appellant M.A.B., a 12-year-old boy at the time of the offense, disputes the trial court's order staying adjudication, imposing disposition, and denying his motion for reconsideration of his motion to dismiss. Appellant asserts that his prosecution resulted from discriminatory enforcement of the law where he was charged with criminal sexual conduct in the third degree for having consensual sexual intercourse with a younger 12-year-old girl who was not similarly charged. Minn. Stat. § 609.344, subd. 1(a) (1996). Appellant also asserts that the trial court misconstrued Minn. Stat. § 609.344, subd. 1(a), by applying it to this case where he and the girl were both under 13 years of age. We affirm.


In late December 1995 or early January 1996, appellant M.A.B., then a 12-year-old male, and A.L.D., then a 12-year-old female, engaged in consensual sexual intercourse in the bathroom of a friend's apartment in the presence of another juvenile male. M.A.B.'s date of birth is November 27, 1983, and A.L.D.'s date of birth is December 8, 1983--making M.A.B. approximately 10 days older than A.L.D.

On March 11, 1996, the local police department received a report from a medical center intake worker that A.L.D. had had sexual intercourse with M.A.B. A police officer interviewed both juveniles, and M.A.B. admitted having intercourse with A.L.D. On March 15, 1996, the state filed a petition against M.A.B. for criminal sexual conduct in the third degree pursuant to Minn. Stat. § 609.344, subd. 1(a). A.L.D. was not similarly petitioned. On March 18, M.A.B. was also petitioned and subsequently adjudicated delinquent of three counts of criminal sexual conduct in the fourth degree in violation of Minn. Stat. § 609.345, subd. 1(a), for improperly touching three of his female classmates at his elementary school.

Prior to trial, appellant moved the court to dismiss the charge on the ground that his prosecution was the result of discriminatory enforcement of the law. This motion was denied. At trial, appellant questioned whether the state legislature intended the statute to apply to his situation where two consenting juveniles of similar age engage in consensual sexual intercourse. After an adjudicatory hearing, the court found that the state had proven the delinquency petition allegations beyond a reasonable doubt. As part of its findings, the trial court noted not only that the sexual penetration was "consensual," but also that appellant "did not coerce or force A.L.D. into engaging in sexual intercourse, but, instead was encouraged by A.L.D." The trial court stayed adjudication, imposed disposition, and denied appellant's motion for reconsideration of his motion to dismiss.


"Trial courts have broad discretion to order dispositions authorized by statute in delinquency cases." In re Welfare of M.A.C., 455 N.W.2d 494, 498 (Minn. App. 1990). Absent a clear abuse of discretion, this court will not disturb the trial court's disposition. Id.

Minn. Stat. § 609.344, subd. 1(a) (1996), provides as follows:

Subdivision 1. Crime defined. A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exist:

(a) the complainant is under 13 years of age and the actor is no more than 36 months older than the complainant. Neither mistake as to the complainant's age nor consent to the act by the complainant shall be a defense.[1]

This subdivision is part of a broader statutory framework that sanctions sexual penetration and contact between complainants and actors of various ages. For example, subdivision 1(b) of the same section applies where the complainant is "at least 13 but less than 16 years of age and the actor is more than 24 months older than the complainant." Subdivision 1(e) applies where the complainant is "at least 16 but less than 18 years of age and the actor is more than 48 months older than the complainant and in a position of authority over the complainant." In cases where the complainant is under the age of 13 and the actor is "more than 36 months older," more serious charges apply. See Minn. Stat. §§ 609.342, subd. 1(a) (1996) (criminal sexual conduct in the first degree) and 609.343, subd. 1(a) (1996) (criminal sexual conduct in the second degree).

In both criminal and civil statutes, the legislature sets age requirements with respect to legal participation in certain activities for public policy reasons. As a result, individuals who are not of age for a certain activity violate the law if they nonetheless engage in such an activity. For example, this is true with respect to the crimes listed above, and in the cases of the right to marry, use tobacco, consume alcohol, and vote. See Minn. Stat. § 517.02 (1996) (requiring that a person be at least 18 to contract marriage without a parent or guardian's consent); Minn. Stat. § 609.685, subd. 3 (1996) (making it a petty misdemeanor to use tobacco while under 18); Minn. Stat. § 340A.503, subd. 1(2) (1996) (making it unlawful to consume alcoholic beverages while under 21), Minn. Stat. § 201.014, subd. 1(a) (1996) (requiring that an individual be 18 or older to vote).

1. Discriminatory Enforcement

So long as the prosecutor has probable cause to believe that an accused committed an offense defined by statute, the decision of whether or not to prosecute generally rests in the prosecutor's discretion. Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668 (1978). The "conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation" so long as "the selection was [not] based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Id. (citing Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 506 (1962)); see also State v. Krotzer, 548 N.W.2d 252, 254 (1996) (citations omitted) (stating that pursuant to the separation of powers doctrine, absent evidence of selective or discriminatory prosecutorial intent or an abuse of prosecutorial discretion, the "judiciary is powerless to interfere with the prosecutor's charging authority").

A defendant can raise the defense of discriminatory enforcement by law enforcement official on all levels of state criminal laws. City of Minneapolis v. Buschette, 307 Minn. 60, 66, 240 N.W.2d 500, 503 (1976). To succeed in this claim, appellant must show by a clear preponderance of the evidence that (1) others similarly situated have not been charged for the same type of conduct and that he was singled out; and (2) he was singled out for prosecution out of invidiousness or in bad faith, i.e., based on impermissible considerations such as race, religion, or the desire to prevent his exercise of constitutional rights. Id. at 71-72, 240 N.W.2d at 506 n.8 (stating that these two elements are sometimes referred to as "intentional and purposeful discrimination"); State v. Russell, 343 N.W.2d 36, 37 (Minn. 1984); see also State v. L'Italien, 363 N.W.2d 490, 492 (Minn. App. 1985), review denied (Minn. Apr. 26, 1985) (applying the clearly erroneous standard to trial court's finding that defendant failed to prove purposeful discrimination). Prosecution based on gender is an "impermissible consideration." See Buschette, 307 Minn. at 64-69, 240 N.W.2d at 502-05 (considering a defense of discriminatory enforcement of prostitution laws based on gender).

Equal protection requires that persons similarly situated be treated similarly. Lidberg v. Steffen, 514 N.W.2d 779, 784 (Minn. 1994). However, selective prosecution of a statute will be upheld if there is a rational basis shown for the selectivity. See Buschette, 307 Minn. at 68-69, 240 N.W.2d at 505. If the defendant meets his or her burden of showing discriminatory enforcement, the court has the remedy of dismissing the charge against the defendant. Buschette, 307 Minn. at 66, 240 N.W.2d at 503-04. Appellant contends that he has shown intentional and purposeful discrimination by the state. Appellant argues that he and A.L.D. were similarly situated, both being of similar age, but that he was singled out for prosecution and she was not. Appellant concludes that his "gender is the only logical explanation for the State's action."

In this case we find no evidence that the law was not applied uniformly. Appellant is approximately 10 days older than A.L.D. Minn. Stat. § 609.344, subd. 1(a), clearly states that it applies to those situations where a "complainant is under 13 years of age and the actor is no more than 36 months older than complainant." In this case A.L.D. was under 13 years of age, and appellant was "no more than 36 months older" than she was at the time. Although it is true that both juveniles are of similar age, the fact remains that appellant is older, and he clearly fits within the statute's provisions. The statute does not require that the actor be older than complainant by a minimum amount of time--only that he or she be "no more than 36 months older."

We also note that M.A.B.'s interaction with A.L.D. was not an isolated incident of alleged misconduct at the time he was petitioned for third-degree criminal sexual conduct. The record reveals that on or about March 1, 1996, local police were aware of and actively investigating allegations that M.A.B. had improperly touched his female classmates--two weeks prior to appellant being petitioned for the third-degree charge.

2. Application of Minn. Stat. § 609.344, subd. 1(a)

The construction of a statute is clearly a question of law and thus fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). Penal statutes must be strictly construed so as to guard against the creation of criminal offenses outside the contemplation of the legislature under the guise of "judicial construction." State v. Soto, 378 N.W.2d 625, 628 (Minn. 1985) (citations omitted). In any case where doubt exists as to legislative intent in a penal statute, doubts must be resolved in favor of the defendant. State v. Serstock, 402 N.W.2d 514, 516 (Minn. 1987).

Appellant asserts that Minn. Stat. § 609.344, subd. 1(a), is ambiguous because while it limits the age of the complainant to under 13 years, its only reference to the age of the actor is that he or she be "no more than 36 months older than the complainant." According to appellant, this leaves open the possibility that the actor could be younger than the complainant. This ambiguity, appellant asserts, requires that this court interpret the statute. We do not agree. The statute clearly applies to actors who are older than the complainant, but are no more than three years older than the complainant.

Appellant also argues that the application of Minn. Stat. § 609.344, subd. 1(a), to this case produces an absurd result. He asserts that his adjudication under the statute is absurd in light of the trial court's findings that (1) A.L.D. not only consented to sexual intercourse with appellant, but encouraged him, (2) under the subdivision, A.L.D. could not legally consent, (3) as a 12-year-old, appellant was also protected by the subdivision and could not legally consent, and (4) nonetheless, appellant's actual consent could be used to prosecute him. Appellant asserts that application of the statute to him "contradicts any possible legislative intent to protect juveniles from their own inability to consider fully the consequences of their actions." See Krotzer, 548 N.W.2d at 256 (Minn. 1996) (Coyne, J., dissenting) (stating that "statutory rape" statutes are based on the fact that young girls and boys are incapable of understanding the long-term consequences of their actions so that they are incapable of giving meaningful consent to sexual intercourse).

We do not agree. Appellant was properly charged because he is no more than 36 months older than A.L.D., he engaged in sexual penetration with A.L.D. who was under 13 years, and her consent is irrelevant because consent is not available as a defense. The fact that appellant was not old enough to consent is also not important because the statute is written such that it will always apply to actors under the age of 16--none of whom would be capable of consent.

The statute is clear, and we interpret it according to its plain language. Minn. Stat. § 645.16 (1996), see Kirkwold Constr. Co. v. M.G.A. Constr., Inc. 513 N.W.2d 241, 244 (Minn. 1994) (stating that plain language of a statute should not be disregarded if meaning is clear). Further, because we are required to construe criminal statutes strictly, we cannot interpret Minn. Stat. § 609.344, subd. 1(a), to theoretically allow the petitioning of A.L.D.--the younger of the two juveniles.[1] Accordingly, only M.A.B. could have been petitioned under the statute and, therefore, it was not selective prosecution to prosecute him and not A.L.D. Even if we assume that either party can be petitioned, M.A.B.'s similar, and nearly contemporaneous, offenses justify this petition. It is not this court's role to decide where to draw the line with respect to age limitations or requirements in statutes. Such decisions are for legislative, and not judicial, determination.


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

[ ]1 "Actor" is defined as a "person accused of criminal sexual conduct." Minn. Stat. § 609.341, subd. 2 (1996). "Complainant" is defined as a "person alleged to have been subjected to criminal sexual conduct." Id., subd. 13.

[ ]1 Assuming ambiguity, the construction we give to this statute is amply supported by the statutory scheme mentioned above, which requires the actor to be older than the complainant. The scheme assumes as a general rule that the older party is more mature and responsible.