                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-1545

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                  Jeffrey Harris Wilensky,
                                         Appellant.

                                    Filed June 13, 2016
                                         Reversed
                                      Stauber, Judge

                              St. Louis County District Court
                                File No. 69DU-CR-15-883

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Victoria D. Wanta, Assistant County
Attorney, Duluth, Minnesota (for respondent)

Hillary B. Parsons, Minneapolis, Minnesota (for appellant)

         Considered and decided by Connolly, Presiding Judge; Stauber, Judge; and Kirk,

Judge.

                          UNPUBLISHED OPINION

STAUBER, Judge

         Appellant challenges his gross-misdemeanor conviction of patronizing a prostitute

in a public place. Because the evidence is insufficient to prove beyond a reasonable
doubt that appellant agreed or offered to engage in sexual contact or penetration, we

reverse.

                                           FACTS

       The Lake Superior Drug and Violent Crimes Task Force organized a prostitution

sting at the Econolodge Motel in Hermantown. The task force posted the following

advertisement on an internet website:

             Hey Guys>>>>looking for a fun erotic safe time???
             BOOTYfull BuSTy BlOnde and CURVey ReDheaD. AsK
             about our 2 GIRL SpeCialS . . . enjoy a playful, “sin”sational
             experience that you won’t forget !! So what are you waiting
             for????? In call Only 80 1/2 120 hour 100% Discreet Only
             serious inquiries only, NO law enforcement or police allowed
             to call this ad!!

On March 18, 2015, appellant Jeffrey Harris Wilensky, responded to the advertisement,

and following text-message communications with undercover investigators, arrived at the

Econolodge Motel. An undercover investigator walked appellant to a room, where he

met two undercover female investigators who were posing as prostitutes; neither of the

investigators was dressed provocatively.

       During the discussion that ensued between the female investigators and appellant,

he described himself as “extremely tame,” expressed interest in “both girls,” and stated

that in the past he had “only gotten body rubs, that kind of thing.” Because he claimed to

have only $85 with him, he could afford only one woman and said that they could choose

which one would be with him. When asked what service he wanted, appellant said,

“[J]ust a body rub, and maybe see.” At no time did appellant explicitly ask for sexual

contact or agree to it. But when asked whether he brought his own condoms if he later


                                             2
decided he wanted more than a body rub, appellant replied that he had not. At this point,

appellant was arrested.

       The district court denied appellant’s motion to dismiss the complaint for lack of

probable cause. Appellant then agreed to a bench trial on stipulated facts and was found

guilty. The district court rejected appellant’s claim that there was no express or implied

agreement that appellant would pay money for sex acts, stating that appellant’s argument

was “contrary to the reasonable inferences that can be drawn from the essential facts.”

Following sentencing, appellant sought further review in this court.

                                      DECISION

       It is a gross misdemeanor for a person “while acting as a patron,” to intentionally

“hire[], offer[] to hire, or agree[] to hire an individual 18 years of age or older to engage

in sexual penetration or sexual contact.”1 Minn. Stat. § 609.324, subd. 2(2) (2014).

Appellant argues that the stipulated facts are insufficient to prove that he offered or

agreed to hire one of the female investigators for sexual contact or penetration.

              In reviewing the sufficiency of evidence in a criminal case, we
              are limited to ascertaining whether, given the facts in the record
              and the legitimate inferences that can be drawn from those
              facts, a [factfinder] could reasonably conclude that the
              defendant was guilty of the offense charged. We will not
              disturb the verdict if the [factfinder], acting with due regard for
              the presumption of innocence and for the necessity of
              overcoming it by proof beyond a reasonable doubt, could
              reasonably conclude that a defendant was proven guilty of the


1
  Minnesota statutes define the conduct that amounts to sexual contact as “(i) the
intentional touching by an individual of a prostitute’s intimate parts; or (ii) the intentional
touching by a prostitute of another individual’s intimate parts.” Minn. Stat. § 609.321,
subd. 10 (i-ii) (2014).

                                               3
              offense charged. We consider the evidence in the light most
              favorable to the verdict.

Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004) (quotations and citations

omitted).

       Appellant acknowledges that an offer or agreement for sexual contact or

penetration may be implied from conduct. Under State v. Oanes, 543 N.W.2d 658, 662

(Minn. App. 1996), “[A]n offer [to hire for sexual contact or penetration] need not be

explicit, but may be implied by the defendant’s words and actions.” In construing an

earlier prostitution statute, the supreme court considered the types of conduct that may

constitute either an explicit or implied offer to engage in sexual contact, stating:

              By defining an offer to engage for hire in intercourse or
              sodomy as illegal conduct, the statute requires neither
              completed sexual conduct nor a substantial act in furtherance
              of the endeavor. But because it proscribes inchoate activity,
              the statute is likely to be applied to conduct which is in some
              degree ambiguous. Two principles are in tension here. First,
              to prevent ready circumvention of the statute, the offer need
              not be express or in the language of the statute, but may be
              implied from the words and actions of the defendant taken in
              context. Secondly, however, in these situations the danger
              exists that the defendant’s offer is innocent or ambiguous. The
              evidence must demonstrate, beyond a reasonable doubt, the
              defendant’s intent to engage for hire in sexual activity. Mere
              suspicion by the arresting officer is insufficient.

State v. Bennett, 258 N.W.2d 895, 897 (Minn. 1977) (emphasis added) (footnotes

omitted) (citations omitted). In Bennett, the supreme court found that the prostitute’s

“explicit cataloging of available services” was sufficient to prove an offer of sexual

conduct for hire, stating that “[t]he absence of an accompanying profferal of sexual

services does not alter the result, for the statute proscribes not attempts but offers.” Id.


                                               4
       Under the facts stipulated to by the parties, we must determine whether the

evidence is sufficient to prove beyond a reasonable doubt that appellant offered to or

agreed to hire one of the female investigators for sexual contact. The advertisement that

drew appellant to the motel may suggest an erotic experience but does not include an

explicit offer of sexual contact. Once appellant arrived at the motel, he stated to the

modestly dressed investigators that his past experiences included only “body rubs, that

kind of thing,” and that he wanted a body rub, and “maybe see.” The crucial “maybe

see” statement is ambiguous. When viewed in context, this language could refer to non-

sexual conduct, such as a specialized massage, or could possibly refer to sexual contact.

As such, the statement is far too indefinite to establish beyond a reasonable doubt that

appellant intended to agree to or make an offer of sexual contact.

       Finally, when asked whether he had a condom if he decided he wanted more than

just a body rub, appellant replied that he did not. This response also suggests that

appellant did not plan on sexual contact, and does not appear to modify his agreement to

receive only a body rub. While reference to a condom may suggest sexual activity, the

implication of appellant’s answer that he did not have a condom is also too ambiguous to

allow a clear inference that he would need one and insufficient to alter the indefiniteness

of his “maybe see” statement.2




2
  Appellant asks this court to apply a heightened standard of review, rather than the
harmless-error standard. Because we are reversing appellant’s conviction, we do not
reach this issue.

                                             5
       By our decision today, we do not mean to diminish the seriousness of sexual

trafficking or prostitution. Nevertheless, we are obligated to follow the law.

       Reversed.




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