A Blaine man’s appeal of his conviction on a child pornography charge in 2015 has been rejected after bouncing around the Minnesota Court of Appeals and Minnesota Supreme Court for two years because of First Amendment constitutional issues.
Benjamin Marc Frauss, 51, entered a guilty plea Dec. 12, 2014 to an amended felony charge of communication of sexually explicit materials to children after originally being charged in 2013 with first-degree criminal sexual conduct.
At sentencing, Judge Tammi Fredrickson rejected Frauss’ request to withdraw his plea as invalid and put him on probation for three years after staying a 15-month prison term. He was also given credit of 32 days spent in jail, but was ordered to comply with predatory offender registration.
According to the complaint, law enforcement was notified in July 2013 that Frauss had child pornography on his laptop which he had a girl, then 11 years old, watch with him and then wanted the girl to do with him what was shown on the computer – both oral sex and intercourse.
When investigators executed a search warrant at Frauss’ home, they found that his computer hard drive had been wiped clean. But a forensic examination of the laptop revealed recent Internet traffic to a website that allows users to manufacture their own pornographic videos that focus on adults having intercourse with young females, the complaint states.
Frauss appealed the conviction to the court of appeals and it was reversed after the appeals court ruled in 2016 in another case (State v. Muccio in Dakota County) that the communication of sexually explicit materials to children charge under state statute was unconstitutional because it violated the First Amendment, upholding a Dakota County District Court decision.
The Anoka County Attorney’s Office appealed to the Minnesota Supreme Court and the petition for further review was granted pending the court’s decision on the Muccio case, which had been appealed earlier.
In March, the Supreme Court ruled that the charge is not unconstitutional it face under the First Amendment because the state statute was not substantially overbroad, vacating the appeals court decision in Frauss’ case and remanding it back to the appeals court for reconsideration.
Frauss’ appeal focused on two issues – that his guilty plea was invalid because it lacked adequate factual basis and he is not obligated to register as a predatory offender for life because his conviction is not on the list of enumerated offenses that trigger registration.
But Judge Peter Reyes, writing for the three-judge appeals court panel, affirmed the district court action, rejecting Frauss’ appeal.
On the inadequate factual basis issue, Frauss argued that although he admitted he viewed pornography himself the girl was exposed to pornography, he did not admit that he communicated the pornography to the girl or in any other way communicated with her about sexual conduct, according to Reyes.
But Reyes wrote that the Supreme Court held in its Muccio ruling that the phrase “engaging in communication with a child requires the adult to direct the prohibited content at a child” and that when questioned by the prosecutor in district court, Frauss acknowledged that he viewed pornography with the girl and he used it for sexual gratification when doing so.
The appeals court also ruled that Frauss forfeited his argument that he should not be required to register as a lifetime predatory offender because he only raised it on appeal, not in district court, according to Reyes.
Frauss’ contention also failed on its merits under “plain language” of state law, Reyes wrote.
According to court records, Frauss pleaded guilty in Anoka County District Court in January 2004 to a felony possession of child pornography and was placed on probation for five years.