The following factors are appropriate for de minimis analysis: the background, experience and character of the defendant which may indicate whether he knew or ought to have known of the illegality; the knowledge of the defendant of the consequences to be incurred upon violation of the statute; the circumstances concerning the offense; the resulting harm or evil, if any, caused or threatened by the infraction; the probable impact of the violation upon the community; the seriousness of the infraction in terms of punishment, bearing in mind that punishment can be suspended; mitigating circumstances as to the offender; possible improper motives of the complainant or prosecutor; and any other data which may reveal the nature and degree of the culpability in the offense committed by the defendant.
Defendant, an Afghani refugee, babysat a young neighbor. While the neighbor was there, she witnessed defendant kiss his 18-month-old son's penis. When she was picked up by her mother, the girl told her mother what she had seen. The mother had previously seen a picture of defendant kissing his son's penis in defendant's family photo album. After the girl told her mother what she had seen, the mother called the police. The police executed a search warrant of defendant's home and arrested him when they found the picture referred to by the mother. Prior to the trial, defendant moved for a dismissal, pursuant to the de minimis statute. Defendant argued that kissing the penis of a young son was a common practice in his culture to show love for the child, and no sexual feelings were involved. Experts on Afghani culture testified and supported defendant's account. The trial court convicted defendant of two counts of gross sexual assault. On appeal, the state supreme court vacated and remanded the trail court’s judgment.
Did the trial court err when it denied defendant Afghani refugee’s motion to dismiss pursuant to the de minimis statute?
The trial court erred as a matter of law when it did not find defendant’s culture, lack of harm, and innocent state of mind irrelevant to its de minimis analysis of whether he was guilty.