In the Matter of the Welfare of: N. R. C.-A., Child.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1352

In the Matter of the Welfare of: N. R. C.-A., Child.

Filed December 6, 2021
Affirmed
Smith, Tracy M., Judge

Itasca County District Court
File No. 31-JV-17-721

Cathryn Middlebrook, Chief Appe llate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant N.R.C.-A.)

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

Matti R. Adam, Itasca County Attorney, Rachel A. Evenson, Assistant County Attorney,
Grand Rapids, Minnesota (for respondent State of Minnesota)

Considered and decided by Smith, Tracy M ., Presiding Judge; Segal, Chief Judge;
and Halbrooks, Judge.

NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
After juvenile appellan t N.R.C.-A. was charged with possession of child
pornography for engaging in voluntary “sexting” with a teen two years his junior, he agreed
to a continuance for dismissal, which was ev entually terminated, and he was adjudicated
delinquent. In this appeal, N.R.C.-A. argues that his adjudication should be reversed

 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
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because (1) the district court erred when it c oncluded that N.R.C.-A. materially violated
the continuance-for-dismissal ag reement; (2) the district court erred when it denied his
motion to dismiss based on selective prosecutio n; (3) the child-pornography statute, as
applied to teenage couples engaging in vol untary sexting, violat es fundamental due-
process rights; and (4) the evidence is insufficient to adjudicate him delinquent because the
child-pornography statute does not criminalize voluntary teen sexting.
We conclude that the district court did no t err in its ruling that N.R.C.-A. materially
violated the continuance-for-dismissal agr eement or its ruling that N.R.C.-A. was
selectively prosecuted based on his gender. We decline to address N.R.C.-A.’s as-applied
due-process challenge because N. R.C.-A. did not raise the issu e in the district court.
Finally, we conclude that the evidence is sufficient to support N.R.C.-A.’s delinquency
adjudication under the plain language of th e child-pornography statute. We therefore
affirm.
FACTS
In March 2017, respondent State of Minne sota filed a juvenile-delinquency petition
charging then 16-year-old N.R.C.-A. with possession of child pornography based on
sexually explicit images of then 14-year-old D.B. found on N.R.C.-A.’s phone and tablet
computer. The images were from spring 2016, when the two teens had engaged in sexting
with each other, sending each ot her nude and sexua lly explicit images. D.B. was not
charged.
In April 2017, N.R.C.-A. en tered into a continuance-for-dismissal agreement with
the state under Minn. R. Juv. Delinq. P. 14. That agreement wa s conditioned on N.R.C.-
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A.’s compliance with the general terms of probation and the completion of a psychosexual
evaluation, including following all recommendations of that evaluation. The district court’s
jurisdiction continued until N.R.C.-A.’s 19th birthday.
Starting immediately after his entry into the continuance-for-dismissal agreement,
N.R.C.-A. committed probation violations. In May and July, 2017, he admitted violations
involving marijuana and alcohol.
A psychosexual evaluation performed in J une 2017 recommended that N.R.C.-A.
be required to complete a residential sex-of fender treatment program. The district court
then incorporated this reco mmendation into an order, and N.R.C.-A. began residential
treatment in August 2017. While in the residential treatment program, N.R.C.-A. engaged
in further probation violations, including, when he was 18, engaging in sexual conduct with
a minor.
As his 19th birthday a pproached in September 2018 , N.R.C.-A. was still in the
residential treatment program. The program reported that his lack of progress was
concerning. N.R.C.-A. was offered the opportunity to continue in the residential treatment
program after his 19th birthday, but he declined. N.R.C.-A. was unsuccessfully discharged
from the program. Twelve days before N.R.C.-A.’s birthday, the state moved to terminate
the continuance for dismissal, alleging that N.R.C.-A. materially violated the conditions of
the agreement by failing to complete sex-offender treatment. The district court granted this
motion, and the state resumed prosecution.
Prior to trial, N.R.C.-A. moved for dism issal of the charge based on selective
prosecution, alleging that the state violated his equal-protection rights by prosecuting him
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and not D.B. based on gender. The district court denied that motion. The court determined
that the state’s gender-neutral reason for its prosecution decision––the age difference
between N.R.C.-A. and D.B.––was rational, and that N.R.C.-A. had not proven intentional
discrimination. After a bench trial, the district court adjudicated N.R.C.-A. delinquent for
possession of child pornography.
N.R.C.-A. appeals.
DECISION
I. The district court did not err when it concluded that N.R.C.-A. materially
violated the continuance-for-dismissal agreement.

N.R.C.-A. argues that the district court erred when it terminated the continuance-
for-dismissal agreement because (1) the prosec ution did not adequately state the facts
supporting its motion to terminate as required under Minn. R. Juv. Delinq. 14 and (2) there
was not a material violation because the agreement did not require N.R.C.-A. to complete
treatment before his 19th birthday.
A. The Prosecution’s Statement of Facts
We begin with N.R.C.-A.’s argument regard ing the adequacy of the statement of
facts in the state’s motion to terminate under rule 14. Because N.R.C.-A. did not challenge
the adequacy of the state’s motion at the district court, we apply the plain-error standard of
review. See State v. Myhre, 875 N.W.2d 799, 804 (Minn. 20 16). Under this test, N.R.C.-
A. must show (1) that there was an error, (2) that this error was plain, and (3) that the error
affected his “substantial rights.” Id. “An error is plain if it is clear or obvious, which is
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typically established if the error contravenes ca se law, a rule, or a standard of conduct.”
State v. Webster, 894 N.W.2d 782, 787 (Minn. 2017) (quotation omitted).
Under rule 14, a child and the state can ag ree to a continuance for dismissal. Under
this agreement, the state ag rees to suspend prosecution for a period of time “without a
finding that the allegations of the char ging document have been proved” and will
eventually dismiss the offense if the child complies with certain conditions. Minn. R. Juv.
Delinq. P. 14.01. The court can terminate this agreemen t if, “upon motion of the
prosecuting attorney stating facts supporting the motion and upon hearing,” the court finds
that the child or their counsel misrepresented material facts or the child materially violated
the agreement. Minn. R. Juv. Delinq. P. 14.04, subd. 2.
Here, the state’s motion to terminate the continuance-for-d ismissal agreement
alleged that N.R.C.-A. violated it “by faili ng to complete sex o ffender treatment as
required.” At the motion hearing, the state again reiterated that N.R.C.-A. “was not able to
complete his treatment obligations.”
The state adequately stated the factual ba sis for its motion unde r rule 14. N.R.C.-
A.’s agreement explicitly required him to complete a psychosexual evaluation and follow
all recommendations. That evaluation recomm ended that he successfully complete
residential sex-offender treatment. N.R.C.-A. did not successfully complete the program.
All this information was known to N.R.C.-A. The state’s motion sufficiently informed him
that that was the reason for its motion to terminate. The dist rict court did not err—much
less plainly err—by proceeding to resolution of the motion to terminate.
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B. The Material Violation
N.R.C.-A. next asserts that he did not ma terially violate the agreement because he
was not required to complete treatment before his 19th birthday. Therefore, he argues,
because he remained in tr eatment until his 19th birthday— when the district court’s
jurisdiction over his case expired—he did not materially violate the continuance-for-
dismissal agreement.
N.R.C.-A. briefed this issue under the plain- error standard of review because he did
not challenge the state’s motion to terminat e the agreement on subs tantive grounds. The
district court observed that N.R.C.-A. did not present evidence or argument refuting the
state’s claim that he materially violated the terms of the agreement, but the district court
made its finding of material violation based on the fact s in the record. In these
circumstances, we decide to apply the clear-error standard of review, which is less onerous
to N.R.C.-A. See State v. Andersen , 784 N.W.2d 320, 334 (Min n. 2010) (observing that
factual findings will not be set aside “unless clearly erroneous”). Findings of fact are clearly
erroneous when we “are left with the definite and firm conviction that a mistake occurred.”
Id.
The district court did not clearly err when it determined that N.R.C.-A. materially
violated his agreement. The agreement stated that the district court’s jurisdiction continued
until N.R.C.-A.’s 19th bi rthday. The agreement required co mpletion of the conditions of
the agreement by that da te. One of the conditions was compliance with the
recommendations of a psychosexual evalua tion. N.R.C.-A.’s psychosexual evaluation
recommended completion of a residential se x-offender treatment program. N.R.C.-A.
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entered residential treatment in August 2017. During his time there, he reoffended with a
minor and, according to the program’s discharge summary, had not actively participated in
treatment, resulting in “a limited demonstrati on of an understandin g of his offending
patterns.” N.R.C.-A. was unsuccessfully discha rged from the program. The district court
observed that N.R.C.-A. had begun to show ge nuine progress in the latter months of the
program and was offered the opportunity to re main in it to attempt successful completion
but had declined that opportunity. The record supports the finding that N.R.C.-A. failed to
complete treatment as required by the agreement. The district court did not clearly err by
finding a material violation and terminating the continuance-for-dismissal agreement.
II. The district court did not clearly err by denying N.R.C.-A.’s motion to dismiss
based on selective prosecution.

N.R.C.-A. contends that the district cour t erred when it denied his motion to dismiss
based on selective prosecution because the st ate prosecuted him, a male, and not D.B., a
female, even though they engaged in the same behavior.
The Fourteenth Amendment “forbids the discriminatory enforcement of
nondiscriminatory laws.” City of Minneapolis v. Buschette , 240 N.W.2d 500, 502 (Minn.
1976). Both the United States Constitution a nd the Minnesota Constitution require equal
treatment of “all similarly situated individu als,” but only “invidious discrimination” is
considered “constitutionally offensive.” In re Welfare of B.A.H. , 845 N.W.2d 158, 165
(Minn. 2014) (quotations and citations omitted). An invidiously discriminatory decision is
based on an impermissible considera tion, like race, religion, or sex. Id. at 165 (citation
omitted); State v. L’Italien, 363 N.W.2d 490, 492 (Minn. App. 1985), rev. denied (Minn.
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Apr. 26, 1985). To succeed on a selective-prosecution claim, the defendant has the “burden
of establishing, by a preponder ance of the evidence, that the decision to charge [the
defendant] and not [another person] was invidious.” B.A.H., 845 N.W.2d at 165 (quotations
and citations omitted). In the absence of a claim of intentional discrimination based on an
impermissible consideration such as sex, a charging decision need only be rational. Id.1
We review the district court’s determ inations of purposeful or intentional
discrimination and of a rational basis for a charging decision for clear error. See L’Italien,
363 N.W.2d at 492.
As a threshold matter, the state conceded that N.R.C.-A. and D.B. were similarly
situated, so the key question is whether the district court clear ly erred when it found that
N.R.C.-A. did not establish in tentional discriminatory pros ecution based on gender. In
support of his motion, N.R.C.-A. argued that the state intentionally discriminated against
him because he engaged in the same behavior as D.B., the sexting between him and D.B.
was voluntary, and the state only targeted N. R.C.-A., a male, and not D.B., a female.
N.R.C.-A. did not offer any evidence of affi rmative discrimination and instead relied on
evidence that could establish an inference of discrimination. The state responded by

1 At oral argument, N.R.C.-A. argued that, in a selective-prosecution claim, the defendant
only has the burden to make a prima facie showing of discrimination and then the state has
the burden of proving nondiscrimination. But, in B.A.H., the supreme court stated that the
defendant bears “the burden of establishing”—in other words, proving—that the decision
to charge the defendant was based on invidious discrimination. B.A.H., 845 N.W.2d at 165.
While earlier supreme court cases discuss the defendant having the “heavy burden of
establishing, at least prima facie,” invidious discrimination, State v. Russell, 343 N.W.2d
36, 37 (Minn. 1984), and the “burden of producing evidence of discrimination,” Buschette,
240 N.W.2d at 503, those cases do not go on to state that the ultimate burden of proof shifts
to the state once a prima facie case is established.
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asserting that the charging decision was ra tionally based on the age difference between
N.R.C.-A. and D.B.
The district court did not clearly err by determining that the age difference was a
rational basis and a gender-neutral reason for prosecuting only N.R.C.-A. At the time of
the prosecuted conduct, D.B. was only 14 years old and wa s two-and-one-quarter years
younger than N.R.C.-A. In his brief to this court, N.R.C.-A. cites to scientific literature on
the differences in maturity levels between te en boys and teen girls, but not only was that
information not presented to the district court, it is not speci fic to the individuals in the
case at hand. On the record be fore it, the district did not err by deciding that N.R.C.-A.
failed to meet his burden to establish discriminatory prosecution.
III. Because N.R.C.-A. did not raise his due-process claim at the district court, we
decline to reach this issue.

N.R.C.-A. argues that application of the pornographic-works statute to his
conduct—specifically, to “vol untary teenage sexting”—vio lates his fundamental due-
process rights to personal and sexual autonomy . N.R.C.-A. did not rais e this issue in the
district court.
As a general rule, appellate courts will not consider matters not argued to and
considered by the district court. Roby v. State , 547 N.W.2d 354, 357 (Minn. 1996).
Appellate courts may, in their discretion, address issues not raised at the district court
“when the interests of justice require consideration of such issues and doing so would not
unfairly surprise a party to the appeal.” Id. A key consideration in deciding whether to
address an issue first raised on appeal is whet her the issue involves qu estions of fact that
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were not developed in the district court. See State v. Johnson, 851 N.W.2d 60, 64 (Minn.
2014).
N.R.C.-A. challenges the child -pornography statute as applied to him. This type of
challenge “argues that the statute is unconstitutional as applied to the individual’s conduct.”
State v. Bussmann, 741 N.W.2d 79, 100 (Minn. 2007). An as-applied challenge depends
on the specific circumstances of the case. See Rew v. Bergstrom, 845 N.W.2d 764, 780-81
(Minn. 2014). We cannot conclude that, if N. R.C.-A. had raised his as-applied challenge
in the district court, the factual record regarding the relevant circumstances would not have
been further developed. We therefore decline to consider N.R.C.-A.’s as-applied challenge.
IV. The evidence is sufficient to prove beyond a reasonable doubt that appellant
was guilty of possession of child pornography.

N.R.C.-A.’s final argument is that the st ate failed to prove beyond a reasonable
doubt that he was guilty of possession of child pornography. His argument depends on an
interpretation of Minn. Stat § 617.247 (2014), which, he asse rts, does not criminalize the
possession of sexually explicit images obtained in the course of voluntary sexting between
teenagers.
When reviewing the sufficiency of the ev idence to support a conviction, appellate
courts “carefully examine th e record to determine whet her the facts and legitimate
inferences drawn from them” would permit a reasonable fact-finder to conclude that the
defendant was guilty beyo nd a reasonable doubt. State v. Griffin , 887 N.W.2d 257, 263
(Minn. 2016). The evidence is vi ewed in the light most favorab le to the verdict, and it is
assumed that the fact-finder disbelieved any evidence that conflicted with the verdict. Id.
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However, if we must interpret a criminal statute in order to evaluate whether the evidence
is sufficient to support a conviction, we review the issue of statutory interpretation de novo.
See State v. Vasko, 889 N.W.2d 551, 556 (Minn. 2017).
The object of statutory interpretation is to “effectuate the intent of the legislature.”
State v. Smith, 876 N.W.2d 310, 336 (Minn. 2016) (quotation and citation omitted). When
interpreting a statute, we first ask whether the language of the statute is ambiguous. State
v. Pakhnyuk , 926 N.W.2d 914, 920 (Minn. 2019). If the meaning of the statute is
unambiguous, then the plain langu age of the statute controls. Id. If the plain language of
the statute is subject to more than one reasonable interpre tation, then the statute is
ambiguous. Id. We may then use the canons of construction to resolve ambiguity. See id.
N.R.C.-A. was adjudicated delinquent unde r Minn. Stat. § 617.247. Subdivision
4(a) of that statute provides that a person commits a felony if the person “possesses a
pornographic work” or any sort of electroni c or other storage system “containing a
pornographic work, knowing or with reason to know its content and character.” See Minn.
Stat. § 617.247, subd. 4(a). A “pornographic work” is statutorily defined as a work showing
“sexual performance involving a minor” or a wo rk that “uses a minor to depict actual or
simulated sexual conduct.” Minn. Stat. § 617.246, subd. 1(f) (2014) (incorporated by Minn.
Stat. § 617.247, subd. 2). Cons ent of the minor is not a de fense. Minn. Stat. § 617.247,
subd. 6.
N.R.C.-A. does not argue that, on th eir face, the elements identified by
subdivision 4(a) are not satisfied by sufficien t evidence. Rather, he argues that, when the
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statute is read as a whole, it is plain that the legislature did not intend to criminalize
consensual teenage sexting.
N.R.C.-A. hinges his argument on subdivision 1 of section 617.247. Subdivision 1
identifies the “policy of the le gislature in enacting” section 617.247 as protecting minors
from the “physical and psychological damage” of child pornography. It further states that
it is the “intent of the legislature” to penalize the possession of child pornography in order
“to protect the identity of minors who are vi ctimized by involvement in the pornographic
work” and to protect minors “from future involvement” in child pornography. Minn. Stat.
§ 617.247, subd. 1.
Based on this language, N.R.C.-A. argues that section 617.247 criminalizes only the
possession of child pornography when the child suffered “physical and psychological
damage” such that the child was “victimized,” and that “[w]hen teenagers voluntarily send
. . . sexually explicit material involving themselves to other teenagers, they are not harmed
or victimized.” Based on this interpretation of the statute, N.R.C.-A. argues that the
evidence is insufficient to support conviction because D.B. voluntarily engaged in sexting
with N.R.C.-A.
We are not persuaded by N. R.C.-A.’s argument regarding the meaning of section
617.247. The plain language of subdivision 4(a) clearly states the elements of the offense:
(1) possession of child pornography and (2) know ledge of its content and character. The
policy and purpose statement in subdivision 1 is broadly written to identify the motivation
of the legislature in enacting all of section 617.247. We do not read that subdivision as, in
essence, creating a new element of “victimization” to be pr oved by the state in child-
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pornography possession cases involving teenage offenders. See State v. Bakken , 883
N.W.2d 264, 267 (Minn. 2016) (discussing provisions of subdivision 4(a) when describing
conduct that is criminalized by section 617.247); State v. Cannady, 727 N.W.2d 403, 406
(Minn. 2007) (same). We thus conclude that th e legislature has not defined the offense to
exclude voluntary sexting between teenagers.
Again, N.R.C.-A. does not challenge the su fficiency of the evid ence to satisfy the
elements of subdivision 4(a). And our review of the record confirms that, through the
testimony of N.R.C.-A. and D.B., the state proved beyond a reasonable doubt that N.R.C.-
A. violated section 617.247, subdivision 4(a). N.R.C.-A.’s sufficiency-of-the-evidence
argument therefore fails.
Affirmed.