A19-1113 A19-1115 A19-1116

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1112
A19-1113
A19-1115
A19-1116

State of Minnesota,
Appellant,

vs.

Dmitry Suspitsyn,
Respondent (A19-1112),

Michael John Mehr,
Respondent (A19-1113),

Ahmed Hassen Ahmed,
Respondent (A19-1115),

Ayanle Mohamoud Iman,
Respondent (A19-1116).

Filed March 16, 2020
Affirmed
Reilly, Judge

Kandiyohi County District Court
File No. 34-CR-19-216

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Shane D. Baker, Kandiyohi County Attorney, Aaron P. Welch, Assistant County Attorney,
Willmar, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, Drake D. Metzger, Metzger Law
Firm, LLC, Minneapolis, Minnesota (for respondents)

Considered and decided by Connolly, Presiding Judge; Hooten, Judge; and Reilly,
Judge.

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S Y L L A B U S
A person violates Minnesota Statutes section 609.324, subdivision 2(2) (2018), only
if, while in a public place, the person hires, offers to hire, or agrees to hire another person
to engage in sexual penetration or sexual contact.
O P I N I O N
REILLY, Judge
In these pretrial appeals, the State of Minnesota challenges the district court’s orders
dismissing charges of soliciting prostitution for lack of probable cause. Because the plain
language of Minnesota Statutes section 609.324, subdivision 2(2), requires a showing that
the solicitation occurred in a public place and the state failed to make such a showing, we
affirm.
FACTS
Between January and March 2019, law enforcement agents conducted a sting
operation in Willmar, targeting the demand for human trafficking. Officers created a
fictional “prostitute” identified as “Brittany ” for the operation. Brittany posted online
advertisements on electronic marketplaces offering to perform sexual services at a location
selected by Brittany. The advertisement included a phone number to contact Brittany by
text message. Respondents Michael John Mehr, Ahmed Hassen Ahmed, Ayanle
Mohamoud Iman, and Dmitry Suspitsyn each responded to Brittany seeking sexual contact
in exchange for money.
On January 24, Mehr texted Brittany seeking sexual contact . Brittany and Mehr
agreed that Mehr would pay $80 for half an hour of sexual contact from Brittany. Brittany

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provided Mehr with the address of a Willmar hotel and instructed him to meet her there.
Police officers observed Mehr stop at a gas station to pick up a requested item for Brittany
and then drive to the hotel parking lot.1 Officers arrested Mehr in the hotel parking lot and
the state charged him with soliciting prostitution.
On February 16, Ahmed texted Brittany seeking sexual contact. Ahmed and
Brittany agreed that he would pay her $100 for one hour of sexual contact . Brittany also
texted Ahmed the hotel room number and requested that he pick up an item for her at a gas
station. Officers observed Ahmed stop at a gas station to pick up the requested item for
Brittany. Officers arrested Ahmed after he arrived at the hotel parking lot. The state
charged Ahmed with soliciting prostitution and fifth-degree possession of a controlled
substance.
On February 20, Iman texted Brittany seeking sexual contact . Iman agreed to pay
$140 in exchange for one hour of sexual contact with Brittany. Officers observed Iman
stop at a gas station to pick up a requested item for Brittany. Brittany provided the name
of a hotel and a room number at the hotel, and Iman drove to the hotel parking lot. Iman
was arrested in the hotel parking lot and charged with soliciting prostitution.
On March 7, Suspitsyn texted Brittany seeking sexual contact . Brittany agreed to
provide Suspitsyn one hour of sexual contact in exchange for $120 . Police officers saw
Suspitsyn visit a gas station in Willmar. Brittany then sent a text message to Suspitsyn

1 Pursuant to their investigative protocol, Britt any asked each respondent to stop at a gas
station to pick up an item, such as a can of soda or a candy bar. Law enforcement agents
conducted surveillance at the gas station and identified each respondent before he arrived
at the hotel to meet Brittany.

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directing him to go to a hotel room in Willmar. Officers observed Suspitsyn enter the hotel
and a rrested him at the hotel -room door. The state charged Suspitsyn with soliciting
prostitution and with providing a false name.
Each respondent was charged with soliciting prostitution pursuant to Minn. Stat.
§ 609.324, subd. 2(2), a gross misdemeanor. Respondents moved to dismiss the charges
for lack of probable cause. The district court issued an order dismissing the soliciting-
prostitution charges against each respondent for lack of probable cause on the ground that
the record did not establish that re spondents were in a public place when they solicited
prostitution. The district court reasoned that although the sexual acts themselves were
intended to take place in a hotel, which qualifies as a public place, there was no evidence
that the solicitation of those sexual acts occurred in public. Accordingly, the district court
determined that there was “no probable cause to find that the solicitation was public” and
dismissed the soliciting-prostitution charges. The state appeal s the dis trict court’s
dismissal order.2
ISSUES
I. Does the district court ’s dismissal order have a critical impact on the state’s
ability to prosecute?

II. Does Minn. Stat. § 609.324, subd. 2(2) require a showing that the solicitation of
prostitution occurred in a public place?

2 The state also moved to consolidate the appeals. We agreed and consolidated the appeals
for judicial economy.

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ANALYSIS
I.
We first consider as a threshold issue whether the state is entitled to appellate
review. State v. Lugo, 887 N.W.2d 476, 481 (Minn. 2016). The state’s ability to appeal in
a criminal case is limited. Id. (citation omitted). T he state must demonstrate that unless
the district court’s ruling is reversed, the alleged error will have a “critical impact” on the
outcome of the trial. State v. Trei, 624 N.W.2d 595, 597 (Minn. App. 2001). Dismissal of
the charges satisfies the critical -impact requirement. State v. Stavish , 868 N.W .2d 670,
674 (Minn. 2015). Because the district court dismissed the soliciting-prostitution charges,
the state has satisfied the threshold requirement that the district court’s ruling has a critical
impact on the state’s ability to prosecute. See id.
II.
A.
When a probable-cause dismissal is based on statutory construction or another legal
issue, a question of law is presented for appeal. State v. Tice, 686 N.W.2d 351, 353 (Minn.
App. 2004), review denied (Minn. Nov. 16, 2004). “[T]he test of probable cause is whether
the evidence worthy of consideration . . . brings the charge agains t the [defendant] within
reasonable probability.” State v. Dunson, 770 N.W.2d 546, 552 (Minn. App. 2009) (citing
State v. Florence, 239 N.W.2d 892, 896 (Minn. 1976)). Probable cause exists if “the facts
appearing in the record, including reliable hearsay, would preclude the granting of a motion
for a directed verdict of acquittal if proved at trial.” Florence, 239 N.W.2d at 903.
Probable cause is required for every element of the crime charged. State v. Lopez , 778

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N.W.2d 700, 704 (Minn. 2010). On appe al from a district court’s pretrial probable -cause
ruling, an appellate court reviews factual findings for clear error and reviews the
application of the probable-cause standard to the facts de novo. Id. at 703. A charge should
not be dismissed for lack of probable cause if there is a fact question on an element of the
offense. Id. at 704.
B.
The facts here are undisputed and the only question presented is one of statutory
interpretation. Statutory interpretation is a question of law reviewed de novo. State v.
S.A.M., 891 N.W.2d 602, 604 (Minn. 2017). “The objective of statutory interpretation is
to ascertain and effectuate the Legislature’s intent.” State v. Haywood, 886 N.W.2d 485,
488 (Minn. 2016) (quotation omitted). “If the Legislature’s intent is clear from the statute’s
plain and unambiguous language, then [a court] interpret[s] the statute according to its plain
meaning” without engaging in further construction. Id.; see Minn. Stat. § 645.16 (2018)
(articulating canons of statutory construction). A reviewing court presumes that the
legislature does not intend absurd or unreasonable results, Minn. Stat. § 645.17(1) (2018),
and we “ give a reasonable and sensible constructio n to criminal statutes ,” State v.
Greenman, 825 N.W.2d 387, 390 (Minn. App. 2013) (quotation omitted).
The state charged respondents with gross misdemeanor soliciting prostitution in a
public place in violation of Minn. Stat. § 609.324, subd. 2(2). The statute provides:
Whoever, while acting as a patron, intentionally does
. . . the following while in a public place is guilty of a gross
misdemeanor: . . . hires, offers to hire, or agrees to hire an
individual 18 years of age or older to engage in sexual
penetration or sexual contact.

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Id.
A “patron” is “an individual who engages in prostitution by hiring, offering to hire,
or agreeing to hire another individual to engage in sexual penetration or sexual contact.”
Minn. Stat. § 609.321, subd. 4 (2018). “Sexual contact” includes “the intentional touching
by an individual of a prostitute’s intimate parts” or “the intentional touching by a prostitute
of another individual’s intimate parts” for the purpose of satisfying the actor’s sexual
impulses. Id., subd. 10 (2018). A “public place” is defined as:
a public street or sidewalk, a pedestrian skyway system . . . , a
hotel, motel, steam room, sauna, massage parlor, shopping
mall and other public shopping areas, or other place of public
accommodation, a place li censed to sell intoxicating liquor,
wine, nonintoxicating malt beverages, or food, or a motor
vehicle located on a public street, alley, or parking lot
ordinarily used by or available to the public though not used as
a matter of right and a driveway connecting such a parking lot
with a street or highway.
Id., subd. 12 (2018).
The district court dismissed the gross misdemeanor soliciting-prostitution charges
on the ground that “the record does not provide facts supporting probable cause that
[respondents were] soliciting prostitution ‘while in a public place.’” We agree. The plain
and unambiguous language of the statute criminalizes the acts of hiring, offering to hire, or
agreeing to hire a person for sexual contact when done in a public place. The statute does
not define the phrase “hires, of fers to hire, or agrees to hire. ” In the absence of an
applicable statutory definition we “generally give statutory terms their common meaning.”
State v. Rick , 83 5 N.W.2d 478, 483 (Minn. 2013). We may also “look to dictionary
definitions to determine the plain meaning of words.” Haywood, 886 N.W.2d at 490.

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“Hire” means “[t]o engage the labor or services of another for wages or other payment,” or
“[t]o grant the temporary use of services.” Black’s Law Dictionary 847 (10th ed. 2014).
In State v. Kelly, we held that an act of soliciting prostitution is complete when the original
offer is made. 379 N.W.2d 649, 652 (Minn. App. 1986). The defendant in Kelly was
charged with prostitution under an older version of the statute for offering to engage in sex
with an undercover police officer for $50. Id. at 650 -51. The defendant later became
suspicious and told the officer that he did not need to pay for sex. Id. at 651. On appeal,
the defendant argued that she could not be found guilty of prostitution because she
withdrew her offer to have sex with the police officer. Id. at 652. We rejected this
argument, determining that prostitution is an “inchoate offense” such that the defendant’s
“criminal act was complete when she offered sexual services for pay.” Id. Here, similarly,
the solicitation activity occurred entirely on -line and via text messages. R espondents’
criminal acts of soliciting prostitution were complete when they sent the ir initial text
messages offering to pay Brittany for sexual contact. Each respondent’s location during
these initial exchanges is unknown. There are no facts alleged in the record demonstrating
that respondents were in a public place when the solicitation occurred. Accordingly, the
district court properly determined that the criminal charges were not supported by probable
cause.3

3 The state argued in its appellate brief that the statute criminalizes sexual activity occurring
in a public place, regardless of the patron’s location when the patron initially solicited for
sex. The state abandoned this position at oral argument.

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The district court’s decision was further guided by State v. White, which involved
the 2002 version of Minn. Stat. § 609.324 (2002). 69 2 N.W.2d 749, 750 (Minn. App.
2005), review dismissed (Minn. June 14, 2005). In that case, White entered an undercover
officer’s vehicle and negotiated a price for a sexual act. Id. The state charged White with
gross-misdemeanor prostitution. Id. The district court dismiss ed the charge for lack of
probable cause and we affirmed the district court, determining that the inside of a mo tor
vehicle on a public street was not a “public place” for purposes of the gross -misdemeanor
prostitution statute. Id. at 750, 753. The state appealed to the supreme court, but the appeal
was dismissed after the Minnesota Legislature amended Minn. Stat. § 609.321, subd. 12,
to include the phrase “or a motor vehicle located on a public street,” effectively resolving
the issue raised on appeal. See 2005 Minn. Laws ch. 136, art. 17, § 23, at 1134. Here, the
district court reasoned that given the analysis in White, “the phrase ‘agreeing to hire’ is
narrowly construed to concern the actual solicitation and negotiation of prostitution.” We
discern no error in the district court’s determination, which is consistent with the Kelly and
White decisions.
The state urges us to construe the gross misdemeanor soliciting-prostitution statute
broadly to allow for better targeting of human-trafficking-related offenses. While we do
not rely on legislative history to determine the meaning of Minn. Stat. § 609.324, the
history of this statute supports our view that the district court did not err by determining
that the plain language of the statute required dismissal of the charges , despite the state’s
public policy arguments. See City of Cloquet v. Crandall , 824 N.W.2d 648, 653 (Minn.
App. 2012) (noting that while court does not review legislative history when statutory

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language is unam biguous, a review of statute’s history may “ confirm[] [the court’s]
understanding, which we derive from the statute ’s plain and unambiguous language”).
Here, the legislature enacted section 609.324 in 1979. See 1979 Minn. Laws ch. 255, § 4,
at 541. The White court addressed the legislative intent of this section and concluded that
“the intent behind this gross-misdemeanor prostitution statute was to further discourage the
solicitation and negotiation of prostitution in open view of the public.” 692 N.W.2d at 751.
The Minnesota Court of Appeals noted that although the prostitution statute does not
include a statement of intent, it can be inferred from the language that “it is the publicly
visible nature of much prostitution activity that prompts criminal enforcement.” Id.; see
also State v. Pe ery, 28 N.W.2d 851, 854 (Minn. 1947) (stating in context of indecent -
exposure case that an act is “indecent” when it is “open to the observation of others”).
The legislature has not substantially changed the language or express intent of the
statute in its forty -year history .4 If the legislature intended to prohibit a patron from
soliciting prostitution in an effort to curb human trafficking, it could redraft the language
of the statute to reflect that intent. But it is not the prerogative of this court to “add language
that is not present in the statute or supply what the legislature purposely omits or
inadvertently overlooks.” Kutscheid v. Emerald Square Props., Inc., 770 N.W.2d 529, 533
(Minn. App. 2009) (quotation omitted). The state’s argument urging us to expand section

4 The text of the 1979 law provided: “Whoever solicits or accepts a solicitation to engage
for hire in sexual penetration or sexual contact while in a public place may be sentenced to
imprisonment for not more than one year or to payment of a fine . . . or both.” Minn. Stat.
§ 609.324, subd. 2 (1979) (current version at Minn. Stat. § 609.324, subd. 2(2) (2020)).
Subdivision 2(2) was last amended in 2011 to clarify that a patron who solicits prostitution
is guilty of a gross misdemeanor. See 2011 Minn. Laws ch. 1, art. 5, § 4, at 21.

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609.324, subd. 2(2) , is more properly directed to the legislature. See State v. Richmond ,
730 N.W.2d 62, 70 (Minn. App. 2007) (cautioning that it is not for appellate courts to “fix”
a statutory scheme by adding or removing language), review denied (Minn. June 19, 2007);
see also State v. Anderson, 159 N.W.2d 892, 894 (Minn. 1968) (recognizing that definition
of crimes lies within exclusive province of legislature).5
By our decision to day, we do not intend to minimize the seriousness of human
trafficking. Nevertheless, we are obligated to follow the law. Given the record before us
and the plain language of the statute, we determine that the district court did not err by
granting respondents’ pretrial motions to dismiss for lack of probable cause.
D E C I S I O N
Under the plain language of Minnesota Statutes section 609.324, subdivision 2(2),
a violation of the statute occurs only if a person engages in the prohibited solicitation while
in a public place. Because the state did not allege that respondents’ solicitation for sexual

5 The district court noted that the communications between respondents and Brittany
occurred entirely via text messages and “such electronic communication is unlikely
public.” We recognize that “[t]echnological advances such as the Internet and mobile
smart phones have made sex trafficking . . . a more convenient worldwide marketing
channel” and “heighten[] the dangers and risks associated with sexual exploitation.” Sona
Movsisyan, Human Trafficking in A Digital Age: Who Should Be Held Accountable ?, 27
Mich. St. Int’l L. Rev. 539, 547 (2019) (citations and quotation omitted). Further, “the lack
of prosecution of johns, combined with the uncertainty of treating adults in prostitution as
victims, has allowed commercial sex to continue to flourish in Minnesota.” Erinn B.
Valine, The Demand Side of Sex Trafficking in Minnesota: The Who, Where, and Why—
And What We Can Do About It , 45 Mitchell Hamline L. Rev. 79, 115 (2019). We are
sensitive to the state’s argument that Minnesota’s public policy has evolved from
prohibiting visible prostitution to combating human trafficking, and that the law has no t
kept up with technological changes. But it is for the legislature —not this court—to make
any appropriate statutory amendments.

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services occurred in a public place, the district court did not err by dismissing the state’s
charges for lack of probable cause.
Affirmed.