By Dan Nienaber
Free Press Staff Writer
A prosecutor wants a judge to watch two videos Minnesota State University football coach Todd Hoffner made of his children dancing naked, then decide for herself whether he should go to trial for child pornography charges.
Briefs filed by attorneys from both sides of the case against Hoffner provide more information about what is in two short videos found on Hoffner's university-issued cellphone in August. The videos resulted in Hoffner being escorted off a football field during practice and placed on leave by the university and, later, his arrest by Blue Earth County sheriff's deputies.
Hoffner's defense attorney describes the videos as being innocent, showing Hoffner's children acting silly as they performed an unexpected "show" for their father. (Complete defense filing document) Mike Hanson, the assistant Blue Earth County attorney prosecuting the case, said the videos show masturbation and other lewd behavior. (Prosecution's complete filing document)
"These videos are not the proverbial baby in the bathtub photographs," Hanson said in a motion filed Wednesday afternoon. "This is not a case about nudity, but about masturbation and the lewd exhibition of genitals; acts that constitute sexual conduct by statute in Minnesota."
The videos show Hoffner's son and two daughters, between the ages of 5 and 9, dancing nude. One video lasts 92 seconds and the other lasts 10 seconds. At one point in the longer video the boy touches his penis and can be heard saying "wiggle, wiggle, wiggle," according to a brief filed last week by defense attorney Jim Fleming.
Although Hanson's brief said the boy's head was not in view during that portion of the video and the camera was pointed toward the boy's genitalia, the actions are not of a sexual nature, Fleming said. He also said Hanson didn't offer any additional evidence of a crime during a hearing before District Court Judge Krista Jass last month.
"There was no testimony or other evidence offered by the state that any of the children are sexually stimulated in any of the videos or that they are obtaining sexual gratification of any kind," Fleming's brief said.
Fleming also pointed out that an investigation by Holly Barkeim, a Blue Earth County Human Services social worker, found no evidence of sexual abuse in the Hoffners' Eagle Lake home. Barkeim's investigation included watching the videos. During the hearing, she said she didn't find that the children were being mistreated by their father.
Hanson's brief said Jass shouldn't use Barkeim's conclusion about abuse in the home, nor two affidavits Fleming filed from people saying what is in the videos is not child pornography, because that is a decision a jury should make. There was a reason Fleming didn't attempt to qualify Barkeim as an expert witness when she was called to testify during the hearing, Hanson said.
"That is because Ms. Barkeim is not an expert witness," he said. "Not an expert on what is and what is not child pornography, sexual conduct or lewd poses by children. The court cannot substitute Ms. Barkeim's opinion for that of a jury."
Fleming provides an in-depth description of the videos in his motion. He said the children are using a large ottoman as a stage as they sing, "something to the effect of "hey, whatchya doin naked!!!" At times the video only shows the children from the waist up.
In all, what the videos show isn't any different than what many parents likely have on their own cellphones, Fleming said. Pictures and videos of naked children at play are not illegal.
"It has never been uncommon or criminal for parents to have some pictures of their children naked," he said. "Today, nearly every person in America has a cellular phone, and nearly every cellular phone has a camera. It is not unreasonable to expect that some law-abiding and good parents have a photograph or two, or video, in which their children are not clothed."
There is also no point in the video where Hoffner can be heard asking the children to do their performance again, as was reported by Blue Earth County Sheriff's Deputy Jerry Billiar, Fleming said during a phone interview. That report was included in an affidavit requesting a search warrant for Hoffner's property when he was arrested in August.
"It's remarkable that they would put this in a search warrant when it does not appear in the video," Fleming said.
Hanson said, at this point, he is only required to show there is probable cause to move the case forward. Probable cause is a lower standard than the "proof beyond a reasonable doubt" that jurors are told to use before finding someone guilty.
"As the court is in possession of the videos and will view them in its determination of probable cause, I will offer only minimal commentary," Hanson said in his brief. "To break the videos down and rationalize them, as (Fleming) has done in his brief, is merely an attempt to desensitize the viewer before they have even seen the videos."
In his conclusion, Hanson used a well-known legal quote that United States Supreme Court Justice Potter Stewart used in a 1964 decision about obscenity. Stewart basically said he wouldn't attempt to define pornography that is obscene, but he would know it when he saw it.
Hanson asked Jass to make her own decision after watching Hoffner's videos.
"Your honor, the state has provided the evidence to you," Hanson said in the last line of his brief. "You will know it when you see it."
Jass said during last month's hearing that she planned to issue a ruling quickly.