State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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
A21-0118

State of Minnesota,
Respondent,

vs.

Jeffrey Scott Hurst,
Appellant.

Filed January 10, 2022
Affirmed
Slieter, Judge

Washington County District Court
File No. 82-CR-18-4030

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

Pete Orput, Washington County Attorney, Nicholas A. Hy dukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Michelle S. Margoles, Margoles & Margoles, Minneapolis, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Slieter, Judge; and
Gaïtas, Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant raises two issues on direct a ppeal from his conviction for third-degree
criminal sexual conduct, in violation of Mi nn. Stat. § 609.344, subd. 1(b) (2016), after
engaging in sexual penetration with a 15-year-old female when appellant was 47 years old.
2
First, appellant argues that, as applied to th ese facts, Minn. Stat. § 609.344, subd. 1(b),
violates substantive due process by precludi ng him from asserting the mistake-of-age
defense. Second, appellant argues that the district court abused its discretion by denying
his motion for a downward durational departure. Because there exists a rational basis for
the legislature to preclude the mistake-of-age defense for those who are more than ten years
older than a victim, the statute does not viol ate substantive due proc ess, and because the
district court considered the reasons for a downward durational departure before rejecting
those reasons and imposing a guidelines sentence, we affirm.
FACTS
Appellant Jeffrey Scott Hurst was charged with one count of third-degree criminal
sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(b). Because appellant was
more than ten years older than S.J.S. at the time of the o ffense, the statute prohibited a
mistake-of-age defense.
The parties agreed to a court trial based upon stipulated facts. See Minn. R. Crim.
P. 26.01, subd. 3(f). By the time S.J.S. personally met appellant, she had engaged in sexual
acts with “four men,” all of whom were eventually “convicted of criminal sexual conduct
offenses,” and appellant was the “fifth man to be criminally charged for having sex with
S.J.S.” S.J.S. “engaged in a pattern of deception” by “repeatedly portray[ing] herself as an
adult in order to meet and pursue sexual relationships with older men.”
Before meeting appellant in person, S.J.S. “liked” appellant’s online dating profile
using a fictitious profile. Appellant then fo und one of S.J.S.’s social media accounts and
the two began communicating. Appellant believed that S.J.S. was 19 years old, as she
3
portrayed herself online. Approximately tw o weeks after appellant “liked” her dating
profile, S.J.S. obtained a ride to appellant’s residence and the parties, over the next few
days, engaged in sexual intercourse and oral sex. During this time period, appellant
publicly appeared with S.J.S., including dates at a mall, restaurant, movie theater, and pool
hall. At the pool hall, S.J.S. met some of appellant’s friends and claimed to be 19 years
old but was later asked by staff to leave because she was not yet age 21.
Ultimately, S.J.S.’s father reported her as a runaway and S.J.S. was located when
law enforcement arrived at appellant’s residence and identified S.J.S., though she initially
denied her identity. It was at that time that appellant first discovered that S.J.S. had used a
fictitious identity and that she was 15 years old.
Before trial, appellant moved for an order declaring that his preclusion from raising
a mistake-of-age defense was unconstitutional. See Minn. Stat. § 609.344, subd. 1(b). The
district court denied appellant’s motion, concluding that the supreme court in State v.
Holloway, 916 N.W.2d 338 (Minn. 2018), “rejec ted the very same argument that
[appellant] advances.”
Based upon the stipulated facts, the district court found appellant guilty. Appellant
requested a downward durational departure to a gross misdemeanor sentence based upon
the claim that his offense was “less onerous than the typical Third Degree Criminal Sexual
Conduct case” because S.J.S. deceived appellant, appellant had no inte ntion or desire to
have sex with a minor, and S.J.S. demonstrated a pattern of entrapping men, at least four
previous, who faced similar charges as appellant.
4
The district court denied appellant’s de parture motion and stayed imposition of a
felony sentence, stating that “[e]ither you are going to get it or you are not, and within 10
years from today’s date you will be over the age of 50, almost 60 years old, and I am hoping
that by then you got everything.” This appeal follows.
DECISION
I. Minn. Stat. § 609.344, subd. 1(b) does no t, as applied to these facts, violate
substantive due process.

In third-degree criminal sexual conduct cases pursuant to Minn. Stat. § 609.344,
subd. 1(b),1 if a victim “is at least 13 but less than 16 years of age” and “the actor is no
more than 120 months older” th an the victim, then “mistake as to the [victim’s] age shall
not be a defense.” Appellant argues that this law, as applied to his case, is a substantive
due-process violation because S.J.S. “intenti onally and purposefully” lied to him about
being 19 years old, he had no reason to believe S.J.S. was underage, and S.J.S. had sexual
intercourse with multiple other men who were also convicted of criminal sexual conduct.
We are not persuaded.
“Minnesota statutes are presumed constitutional and [the] power to declare a statute
unconstitutional must be exercised with ex treme caution and only when absolutely

1 We note that Minn. Stat. § 609.344, subd . 1(b) was amended du ring the 2021 regular
legislative session. See 2021 Minn. Laws ch. 11, art. 4, § 18, at 2044 (creating new
subdivision and changing the relevant ages where mistake of age is not a defense in third-
degree criminal sexual conduct cases). Because the amendments were “effective
September 15, 2021, and appl[y] to crimes committed on or afte r that date,” these
amendments do not affect our analysis. Id. at 2046. Also, the amendments do not benefit
appellant because it further limits the availability of the mistake-of-age affirmative defense
to actors five years older than the victim from ten years previously.
5
necessary.” Holloway, 916 N.W.2d at 344 (quotation and alteration omitted). The federal
and state constitutions provide that the governme nt shall not deprive any person of “life,
liberty, or property w ithout due process of law.” U.S. Const. amend. XI V, § 1; Minn.
Const. art. I, § 7. These provisions proh ibit “certain arbitrary, wrongful government
actions, regardless of the fairness of the procedures used to implement them.” Zinermon
v. Burch, 494 U.S. 113, 125 (1990) (quotation omitted).
The district court, in de nying appellant’s constitutional claim, cited the supreme
court’s decision in Holloway, which addressed the same st atutory language. Appellant
claims, however, that the Holloway decision is not controlling because that case considered
a facial constitutional challenge to this st atute and this case involves an as-applied
challenge. Additionally, appellant in his brief argues that we must apply strict scrutiny to
the statute.2
There are two types of challenges to the constitutionality of a statute: facial and as-
applied. See Rew v. Bergstrom, 845 N.W.2d 764, 778 (Minn. 2014). “A facial challenge
to the constitutionality of a statute requires a showing that no set of circumstances exists
under which the [statute ] would be valid.” SooHoo v. Johnson , 731 N.W.2d 815, 821
(Minn. 2007) (quotation omitted). In an as-applied challenge, “[w]e examine the
constitutionality of the statute, limited to th e ‘context of the specific circumstances’
presented in the case.” State v. Final Exit Network, Inc., 889 N.W.2d 296, 304 (Minn. App.
2016) (quoting Rew, 845 N.W.2d at 780), rev. denied (Minn. Mar. 14, 2017). The

2 During oral argument, appellant conceded th at “we do need to apply the rational-basis
test,” in light of the Holloway decision.
6
Holloway court did not identify the type of constitutional challenge it analyzed.
Nevertheless, we need not resolve that issue because its conclusion that the statute must be
reviewed based upon rational ba sis is binding on our court and applying an as-applied
analysis does not result in a constitutional infirmity.
Rational-basis test
If a statute implicates a fundamental right, we apply strict-scrutiny review and “will
only find a statute constitutional if it advances a compelling state interest and is narrowly
tailored to further that interest.” Holloway, 916 N.W.2d at 344 (quotation and alteration
omitted). However, “[i]f a statute does not im plicate a fundamental right, rational-basis
review applies, which requires only that the statute not be arbitrary or capricious; in other
words, the statute must provide a reasona ble means to a permissible objective.” Id. at
344-45 (quotation omitted).
In concluding that the correct constitutio nal review of Minn. Stat. § 609.344,
subd. 1(b) is rational basis, the supreme court in Holloway observed that “Minnesota
historically has not permitted a mistake-of-age defense. What has been known as statutory
rape—sexual conduct with a person not of the age of consent—has been a crime in
Minnesota since it was first organized as a territory.” Id. at 345. After analyzing Minn.
Stat. § 609.344, subd. 1(b), the supreme court concluded that “[i]t cannot be said that
Minnesota has a historical practice of recogn izing a mistake-of-age defense in statutory
rape cases,” and therefore, there is no fundam ental right to a mistake-of-age defense. Id.
at 345-46.
7
We are bound by the supreme court’s preced ent, and we thus review appellant’s
constitutional challenge to Minn. Stat. § 609.344, subd. 1(b), for a rational basis. See Final
Exit Network, 889 N.W.2d at 303 (relying on Minneso ta Supreme Court precedent that a
challenged statute survives a strict scrutiny facial challenge); State v. Rohan, 834 N.W.2d
223, 227 (Minn. App. 2013) (“[W]hen the s upreme court has already construed a statute,
this court is bound by that interpretation.”), rev. denied (Minn. Oct. 15, 2013).
As-applied challenge
“An as-applied challenge uses the same s ubstantive [constitutional] standards as a
facial challenge but involves a judgment as to the constitutionality of a statute based on the
harm to the litigating party.” Final Exit Network, 889 N.W.2d at 30 3-04 (quotation and
citation omitted). Appellant argues that, a pplying the rational-basi s test, Minn. Stat.
§ 609.344, subd. 1(b), is unconstitutional beca use the “rational basis” for the statute
discussed in Holloway—“the prevention of sexual explo itation and abuse of children”—
does not apply to the facts of this case. Id. at 346 (quoting New York v. Ferber, 458 U.S.
747, 757(1982)). Here, accordi ng to appellant, allowing him to assert a mi stake-of-age
defense “would not enable teens to be ex ploited; it will simply prevent teens from
exploiting adults, as S.J.S. di d in this case.” Appellant misapprehends the scope of a
rational-basis review in this as-applied challenge.
Rational-basis review “requires only that th e statute not be arbitrary or capricious;
in other words, the statute must provide a reasonable means to a permissible objective.”
Boutin v. LaFleur, 591 N.W.2d 711, 716 (Minn. 1999 ). Protecting children from sexual
abuse and exploitation is a legiti mate legislative objective. State v. Muccio, 890 N.W.2d
8
914, 928 (Minn. 2017). The United States Supreme Court, and many other courts,
recognize a legitimate government interest in protecting children from criminal sexual
activity. Holloway, 916 N.W.2d at 346. The Holloway court concluded:
Plainly, it is not irrational for the Legislature to provide
a mistake-of-age defense for onl y some, but not all, adults.
Indeed, one of the purposes of the criminal-sexual-conduct
statutes is to protect children from being subjected to sexual
penetration or sexual contact with adults, a permissible
objective. A reasonable way to deter or sanction such
conduct—and thereby protect children—is to preclude a
mistake-of-age defense for certain adults.

Id. at 346-47. Thus, even when applied to these facts, it is reasonable for the legislature to
deter or sanction the prohibited conduct, th ereby protecting child ren, by precluding a
mistake-of-age defense for appellant and placing the responsibility on appellant to ascertain
S.J.S.’s age. Id.; see also State v. Moser , 884 N.W.2d 890, 899 (M inn. App. 2016) (“A
defendant can reasonably be required to ascertain the age of a person the defendant meets
in person.”). Therefore, because precluding the mistake-of-age defense for certain adults
is neither arbitrary nor capricious and is a reasonable means to achieve a permissible
objective, Minn. Stat. § 609.344, subd. 1(b), does not violate appellant’s substantive due-
process right as applied to him. Holloway, 916 N.W.2d at 347.
II. The district court properly exercised its discretion to deny appellant’s motion
for a downward durational departure.

District courts have great discretion wh en imposing sentences, and we reverse
sentencing decisions only when the dist rict court abuses its discretion. State v. Soto, 855
N.W.2d 303, 307-08 (Minn. 2014). A district court abuses its discretion when its decision
is premised on legal errors or clea rly erroneous findings of fact. State v. Solberg , 882
9
N.W.2d 618, 623 (Minn. 2016). The Minn esota Sentencing Guidelines establish
presumptive sentences for felony offenses . Minn. Stat. § 244.09, subd. 5 (2020). A
sentence prescribed by the sentencing gu idelines is presumed appropriate. Soto, 855
N.W.2d at 308. A district court may depart from the pr esumptive sentence only when
“there exist identifiable, substantial, and compelling circumstances to support a departure.”
Minn. Sent. Guidelines 2.D.1 (2016). “[D]ep artures from the guidelines are discouraged
and are intended to apply to a small number of cases.” Solberg, 882 N.W.2d at 623. We
will reverse the district court’s refusal to de part from the presumptive sentence only in a
“rare” case. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Appellant moved for a downward durational departure by asking that the district
court impose a gross misdemeanor sentence. Wh en the district court imposes a sentence
for a felony offense with a duration that is within misdemeanor or gross-misdemeanor
limits, Minn. Stat. § 609.13, subd. 1(1) (2020), it is a departure that must be supported by
substantial and compelling factors. See State v. Bauerly, 520 N.W.2d 760, 762-63 (Minn.
App. 1994) (affirming departure from felony conviction to gross misdemeanor sentence
based on mitigating factors), rev. denied (Minn. Oct. 27, 1994).
The district court is not required to pr ovide reasons for denying a departure. State
v. Van Ruler , 378 N.W.2d 77, 80 (Minn. App. 1985) (“Although the [district] court is
required to give reasons for departure, an explanation is not required when the court
considers reasons for departure but elects to impose the presumptive sentence.”). Even if
there are grounds to support a departure, the district court is not required to depart. State
v. Olson, 459 N.W.2d 711, 716 (Minn. App. 1990), rev. denied (Minn. Oct. 25, 1990). The
10
district court must simply demonstrate that it exercised its discretion by considering the
reasons for and against departure. Van Ruler, 378 N.W.2d at 81.
The record demonstrates that the district court did not abuse its discretion when it
denied appellant’s motion for a downward du rational departure to a gross misdemeanor
sentence and stayed the imposition of a felony sentence.3 The district court acknowledged
hearing “all the arguments,” and found that th e case “is about as typical as you get in a
statutory rape case” except the “vast . . . age difference” between S.J.S. and appellant. And
the fact that “multiple men [were] involved with a child who [had] chronic issues . . . [was]
not enough . . . to justify a durational departure in a case such as this.” The district court
concluded that “as far as a departure is concerned . . . [t]here just isn’t a legal basis.”
Therefore, the district court properly exercised its discretion by denying appellant’s
motion for a downward durational departure and staying the imposition of his sentence.
Affirmed.

3 “A ‘stay of imposition’ occu rs when the court accepts and records a finding or plea of
guilty, but does not impose (or pronounce) a prison sentence. If the offender successfully
completes the stay, the case is discharged, and the conviction is deemed a misdemeanor
under Minnesota Statutes, section 609.13 . . . .” Minn. Sent. Guidelines 1.B.19.a (2016).
Nevertheless, the offender is still assigned a felony conviction for purposes of calculating
criminal history score. Id.