State of Minnesota, Respondent, vs. Jonathan B. Schad, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-03-270

 

State of Minnesota,

Respondent,

 

vs.

 

Jonathan B. Schad,

Appellant.

 

Filed October 15, 2003

Affirmed Willis, Judge Concurring specially, Shumaker, Judge

 

Anoka County District Court

File No. K6025384

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN  55303 (for respondent)

 

Jeffrey C. Dean, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN  55402 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            This appeal is from a judgment of conviction of dissemination of child pornography, in violation of Minn. Stat. § 617.247, subd. 3 (2000).  Appellant Jonathan Schad contends that the affirmative defense provided in Minn. Stat. § 617.247, subd. 8, is unconstitutional.  Because he has not shown that he could present such a defense, we affirm.

FACTS

            In July 2001, a California police officer, who was working with a Minnesota law-enforcement task force investigating crimes against children involving the Internet, entered an Internet chat room posing as a 13-year-old girl named Amber.  There, he began a conversation with an individual who used the "screen name" Gentlejon18.  During the conversation, Gentlejon18 e-mailed Amber pictures of girls who were represented as being the same age as Amber, involved in sexually explicit activities and poses.

            The California officer traced "Gentlejon18" to an address in Andover where appellant Schad lived.  The Anoka County Sheriff's Office was notified and obtained and executed a search warrant at Schad's residence.  There they found "numerous images of young girls, obviously under the age of 18, engaged in sexually suggestive poses and acts" saved on Schad's computer.  Schad gave a statement to the police in which he volunteered that the pornographic images stored on his computer were of girls under the age of 18.

            The state charged Schad with one count of dissemination of child pornography, in violation of Minn. Stat. § 617.247, subd. 3 (2000).  Schad moved to dismiss the charge, arguing that the statute violates his right to due process of law because Minn. Stat. § 617.247, subd. 8 (2000), which provides an affirmative defense that the "pornographic work" was made using only persons at least 18 years old, shifts the burden of proof to the accused on an element of the crime (i.e., that the pornographic work was made using only persons under the age of 18).  Schad also argued that Minn. Stat. § 617.247 violates his right to trial by jury because an accused who fails to meet his burden of production with respect to the affirmative defense could be deprived of a jury determination of the ages of persons depicted in the pornographic work, which is an element of the crime.

            The district court denied the motion to dismiss, relying on State v. Myrland, in which this court held that the affirmative defense provided in Minn. Stat. § 617.247, subd. 8, does not shift the burden of persuasion to the accused on the age of the person shown in the "pornographic work" and thus does not violate due process.  State v. Myrland, 644 N.W.2d 847, 851 (Minn. App. 2002), review denied (Minn. Aug. 6, 2002), cert. denied, 537 U.S. 1019 (2002).  The district court did not decide whether Minn. Stat. § 617.247 violates the right to trial by jury.

            Schad stipulated to the police reports and waived a jury trial.  Following a bench trial on stipulated facts, the district court convicted Schad of violating Minn. Stat. § 617.247, subd. 3.  Schad appeals, arguing that Minn. Stat. § 617.247 violates his rights to due process of law and to trial by jury guaranteed by the federal and Minnesota constitutions.

D E C I S I O N

            On appeal, Schad argues that the affirmative defense provided in Minn. Stat. § 617.247, subd. 8 (2000), violates his right to due process of law.  Whether a statute is constitutional is a question of law, which this court reviews de novo.  State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).

            The state charged Schad with violating Minn. Stat. § 617.247, subd. 3, which prohibits knowingly disseminating a "pornographic work," which is defined as material that either (1) displays a sexual performance involving a minor, (2) uses a minor to depict actual or simulated sexual conduct, (3) has been modified to appear that a minor is engaging in sexual conduct, or (4) is advertised or presented in a manner that conveys the impression that the work depicts a minor engaging in sexual conduct.  See Minn. Stat. §§ 617.246, subd. 1(f), .247, subd. 3.  The statute includes an affirmative defense "that the pornographic work was produced using only persons who were 18 years old or older."  Minn. Stat. § 617.247, subd. 8.

            Schad agues that Minn. Stat. § 617.247, subd. 8, violates due process by shifting the burden of proof on an element of the offense, namely the age of the person or persons depicted in a "pornographic work."

            This court, however, rejected that argument in State v. Myrland, 644 N.W.2d 847, 851 (Minn. App. 2002).  In Myrland, this court adopted a saving construction of Minn. Stat. § 617.247, subd. 8, under which that provision placed on defendants only the burden of production, not the burden of persuasion.  But Schad argues that Myrland was wrongly decided.

            The doctrine of stare decisis counsels adherence to prior decisions, which should not be lightly overruled.  State v. Victorsen, 627 N.W.2d 655, 662 n.2 (Minn. App. 2001).  Although the rule is not inflexible, id., we decline Schad's invitation to overrule it, particularly considering the facts of this case.

            The general rule is that a defendant seeking reversal of his conviction must show not only error but also resulting prejudice.  See generally State v. Shoen, 598 N.W.2d 370, 375 (Minn. 1999) (discussing exceptions to general rule that error may be considered harmless).    A person challenging the constitutionality of a statute may not do so solely on the ground that it may be applied unconstitutionally to others.  State v. Mireles, 619 N.W.2d 558, 561 (Minn. App. 2000).  This court has declined to reverse a conviction for the failure to allow a defense that the evidence overwhelmingly negated.  State v. Soukup, 656 N.W.2d 424, 431 (Minn. App. 2003).  Similarly, here, even assuming the statutory defense unconstitutionally imposes a burden of persuasion, reversal would not be warranted because the stipulated evidence overwhelmingly shows that the pictures were "pornographic works" depicting girls under the age of 18, and Schad did not attempt to produce evidence showing they were not. 

            Schad did not give pretrial notice of an affirmative defense that the girls depicted were at least 18 years old.  After the district court denied Schad's motion to dismiss, he stipulated to the facts and waived his right to a jury trial to expedite appellate review of the affirmative-defense issue.  See State v. Lothenbach, 296 N.W.2d 854, 858 (Minn. 1980).  The Lothenbach procedure is used when the district court's pretrial ruling is virtually dispositive of the case, making trial an unnecessary delay and a waste of judicial resources.  See id; State v. Pendleton, 427 N.W.2d 272, 273 (Minn. App. 1988).  But Schad's use of the Lothenbach procedure does not establish that the affirmative-defense ruling is dispositive of this case or even that Schad can show prejudice from it.

            The stipulated record establishes that Schad sent by e-mail to a police officer posing as a 13-year-old girl pornographic pictures of girls who Schad himself represented to be about the same age as he understood the recipient to be.  At one point, Schad e-mailed the recipient that he had photographs of a 14-year-old and a 15-year-old.  Schad told the police at least some of the pictures were of girls under the age of 18.  And the police reports, to which Schad stipulated, state the girls depicted were "obviously" under 18.  In contrast to this abundant evidence showing how the state might meet its burden of proof on the element of age, the stipulation includes no evidence that the defense proposed to submit on the element of age.  Therefore, even if Schad could show, despite Myrland, that the affirmative defense provided in Minn. Stat. § 617.247, subd. 8, is unconstitutional, there would be no ground to reverse his conviction.

            Schad also claims that Minn. Stat. § 617.247, subd. 8, deprives him of his right to a jury trial on the age issue.  That claim is largely a reframing of his due-process argument.  It also presumes that if no affirmative defense is offered under subdivision 8 the jury will not be instructed on the element of age and therefore will make no determination of that issue.  That is not a reasonable construction of the statute or a reasonable expectation regarding jury instructions, as the standard jury instruction for the closely related offense of disseminating a work depicting minors in a sexual performance for profit makes clear.  See 10 Minnesota Practice CRIMJIG 12.82 (stating as an element that the person depicted was less than 18 years old).

            Affirmed.

           

 

GORDON W. SHUMAKER, Judge (concurring specially)

 

I concur in the result the majority reaches in this case because Schad admitted that the images on his computer were of underage girls and because he stipulated to police reports that contained evidence that Schad possessed pornographic images of underage girls.

But I write separately to note that State v. Myrland, 644 N.W.2d 847 (Minn. App. 2002), review denied (Minn. Aug. 6, 2002), cert. denied, 537 U.S. 1019 (2002), likely does not save Minn. Stat. § 617.247, subd. 8 (2000), from the constitutional infirmity of shifting to a defendant charged with this age-related crime the burden of persuasion on an essential element of the crime.  Unlike the Myrland court, I find nothing ambiguous about the firmly rooted concept of "affirmative defense."