State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1537

State of Minnesota,
Respondent,

vs.

Nur Idor Elmi,
Appellant.

Filed August 27, 2018
Affirmed
Reilly, Judge

Stearns County District Court
File No. 73-CR-16-4822

Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St.
Paul, Minnesota; and

Janelle Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

Eric L. Newmark, Newmark Storms Law Office LLC, Minneapolis, Minnesota (for
appellant)

Considered and decided by Reilly, Presiding Judge; Larkin, Judge; and Bjorkman,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Nur Idor Elmi challenges his conviction for third-degree criminal sexual
conduct on the ground that Minn. Stat. § 609.34 4, subd. 1(b) (2016), violates his equal-

2
protection and substantive-due- process rights by limiting the mistake-of-age defense to
defendants no more than 120 months older than their victims. We affirm.
D E C I S I O N
Appellant challenges the constitutionality of Minn. Stat. § 609.344, subd. 1(b), on
equal-protection and substantive-due-process grounds. The equal protection clause of the
United States Constitution “requires the state to treat similarly situated individuals alike,”
while “[d]ue process demands that a statute not be an unreasonable, arbitrary or capricious
interference and requires at minimum that the statute bear a rational relation to the public
purpose sought to be served.” Studor, Inc. v. State, 781 N.W.2d 403, 408, 410 (Minn. App.
2010) (quotations and citations omitted). Th e constitutionality of a statute presents a
question of law subject to de novo review. State v. Melde , 725 N.W.2d 99, 102 (Minn.
2006). A reviewing court pres umes that “Minnesota statut es are constitutional and will
strike down a statute as unconstitutiona l only if absolutely necessary.” State v. Cox, 798
N.W.2d 517, 519 (Minn. 2011 ) (citation omitted). “To prevail, a party challenging the
constitutionality of a statute must demonstrate beyond a reasonable doubt that the statute
violates a constitutional provision.” Id.
Appellant does not satisfy that burden he re. In May 2016, appellant, who was 26
years old, had sexual intercourse with a 15-year-old child. The state charged appellant with
third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, which provides:
A person who engages in sexu al penetration with another
person is guilty of criminal sexua l conduct in the third degree
if . . . the complainant is at le ast 13 but less than 16 years of
age and the actor is more th an 24 months older than the
complainant. In any such case if the actor is no more than 120

3
months older than the complainan t, it shall be an affirmative
defense, which must be proved by a preponderance of the
evidence, that the actor reasonably believes the complainant to
be 16 years of age or older. In all other cases, mistake as to the
complainant’s age shall not be a defense.
Id., subd. 1(b).
Appellant waived his right to a jury trial and filed a motion seeking to present a
mistake-of-age defense. Following a court tria l, the district court found appellant guilty
beyond a reasonable doubt. The court foun d that a preponderance of the evidence
supported a determination that appellant, who was born in January 1990, was 131 months
older than the victim, who was born in December 2000. Based on that finding, the district
court rejected appellant’s motion to assert a mistake-of-age defense, reasoning that because
appellant was 131 months ol der than the victim, the mistake-of-age defense was
unavailable to him under a plain reading of the statute. Ap pellant does not challenge the
district court’s factual findings on appeal, but instead argues that the statute denies him due
process and equal protection of the law.
Appellant’s argument is unavailing. A r ecent Minnesota Supreme Court decision
holds unequivocally that section 609.344, subdivision 1(b), does not violate a defendant’s
substantive-due-process or equal-protection rights by limiting the mistake-of-age defense
to defendants who are less than 120 mo nths older than their child-victims. State v.
Holloway, ___ N.W.2d ___, ___, 2018 WL 3637371, at *5-7 (Minn. 2018). The 44-year-
old defendant in Holloway was charged with third- and fourth-degree criminal sexual
conduct for engaging in sexual acts with a 14-year-old child. Id. at ___, 2018 WL 3637371,
at *2. The defendant challenged his conviction on the ground that the statutes violated his

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substantive-due-process and equal-protection rights. Id. at ___, 2018 WL 3637371, at *3.
The supreme court rejected his argument and c oncluded that the statutes did not violate
Holloway’s substantive-due-process or equal-protection rights. Id. at ___, 2018 WL
3637371, at *5-7. In light of the Holloway decision, we conclude that Minn. Stat.
§ 609.344, subd. 1(b), does not violate appe llant’s substantive-due-process or equal-
protection rights, and we therefore affirm his conviction.
Affirmed.