Minnesota Lawyer
The state does not have to prove that a child actually is in need of protection or services to convict a defendant of encouraging that need, the Minnesota Supreme Court ruled in the case of a man with a “delusional fantasy” about marrying a 10-year-old girl.
Michael James Boss of Springfield was 48 when he allegedly attempted to lure the girl from her home late at night in December 2017 to meet him at an abandoned property.
Boss had sent the girl a Christmas stocking containing candy and a note imploring her to meet him. Boss had his daughter, who was friends with the girl, deliver the stocking to her.
The girl instead showed Boss’ note — with a hand-drawn map of where he wanted her to meet him — to her aunt, who took it to police. The aunt received a harassment restraining order against Boss. Boss then sent multiple emails to a Brown County Human Service employee. He detailed plans to adopt her despite her aunt’s opposition and his understanding of “God’s plan” for the girl, which means putting her “‘in his care for the rest of his life’ with eventual marriage as ‘an option,’” documents stated.
The Brown County employee forwarded the emails to police, and the state charged Boss with a gross misdemeanor count of contributing to the need for protection or services.
At the end of his trial, Boss moved for a judgment of acquittal, asserting that “there was no inappropriate contact, that there was not a dangerous or injurious condition that ever existed” with regard to the girl and that “nothing inappropriate actually occurred.” The girl was never in danger and he was not charged with attempt to make her a child in need of protection or services or charged with conspiracy to do so.
The District Court found Boss guilty of contributing to the child’s need for protection or services. The court found that Boss encouraged her to leave home without her guardian’s permission, to meet with an adult who had a “delusional fantasy” about marrying her, which would put her in a dangerous or injurious environment. Even though she did not meet Boss “it was sufficient that he encouraged her to do so.” The court sentenced Boss to 365 days in jail with 275 days stayed for two years.
The Court of Appeals reversed Boss’ conviction, concluding that the evidence was insufficient to prove that the girl was “actually in need of protection or services.” The appeals court, however, found that the evidence was sufficient to find Boss guilty of attempt, it reduced his conviction to attempt and remanded to District Court for sentencing on that offense.
The Court of Appeals concluded that the statute “criminalizes an individual’s acts, words or omissions that incite a child to act in a manner that would result in his/her need for protection or services” even though the child may decide “on his/her own volition not to act in accordance with the defender’s encouragement.”
That conclusion, the state argued, rendered the word “encourage” superfluous because the statute criminalizes actions that cause a child to need protection or services or contribute to that need. Actions that encourage a need for services must mean something other than an actual need for services.
In the Supreme Court’s analysis, Justice Anne K. McKeig focused on the word “encourage” in interpreting the language of the statute at issue, which states: “Any person who by act, word, or omission encourages, causes or contributes to the need for protection or services is guilty of a gross misdemeanor.” (Justice Margaret H. Chutich did not take part in considering or deciding the case.)
“The essence of the word ‘encourage’ is an effort to persuade the listener, to overcome,” McKeig wrote. “Whether the recipient of the encouragement acts on that effort does not change the fact that the encouragement occurred.”
“Requiring the state to prove that the child actually needed services as a result of the defendant’s encouragement converts ‘encourages’ into the equivalent of ‘causes,’” McKeig continued. “By concluding that the encouragement has to result in actual services, the Court of Appeals effectively inserted ‘actual’ as a qualifier into the need-for-services phrase in the statute…”
Brown County Attorney Charles Hanson said the Supreme Court’s opinion clarifies that “the intent of the Legislature wasn’t to make kids be put into a potentially dangerous, life threatening situation before we can do anything about it. We’d rather have the opportunity to head that off before it happens.”
Daniel Kalk, assistant Brown County attorney, said the appeals court’s reading made the word “encourages” redundant in the statute because the encouragement already had occurred if a child is in need of protection or services.
Hanson thanked Murray County Attorney Travis Smith for stepping in to handle the state’s appeal to the Supreme Court. Smith said he is one of 20 to 30 members of the appellate committee of the Minnesota County Attorneys Association who assist other counties in such matters.
The Supreme Court, Smith said, underscored that the statute exists “to discourage people from engaging in conduct that would result in a child becoming in need of protection or services. If we always have to wait until that happens, then I think we’ve missed the point.”
Boss’ attorneys — Jacob Birkholz and Michelle Olsen — said in a written response to questions that the Supreme Court’s opinion interprets the statute so broadly that it criminalizes “otherwise innocuous, playful, or innocent behavior that never puts the child in actual harm or is a runaway” and removes all mitigating factors, including the child’s own actions.
The ruling “has created criminal liability for any Minnesotan who asks a person under 18 to come outside in the snowy Minnesota weather and does not get the express permission of the parent,” Boss’ attorneys wrote. “A conversation, text message, a snap, or an email is now ‘encouragement’ of a child in need of protection or services.”
Based on the Supreme Court’s precedent, “simply asking a neighbor’s child to come play with your children without first talking to their parent is ‘encouraging’ a child to be a runaway,” according to Olsen and Birkholz.
“The Minnesota Legislature should act quickly to remedy such a broad reading that was never intended,” they concluded.
