Defense: Charges against MSU football coach 'must be' dismissed - New York News

Defense: Child porn charges against MSU football coach 'must be' dismissed

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It's deadline day for the defense and the prosecution in the child pornography case against Mankato State University's head football coach, Todd Hoffner -- and the defense submitted five reasons for the judge to dismiss the charges.

In a defense briefing addressed to District Court Judge Krista Jass and Assistant Blue Earth County Attorney Michael Hanson, Hoffner's lawyer, James D. Fleming, argued the two charges leveled against him "must be dismissed" for lack of probable cause.

The reasons they gave are as follows:

  1. The videos do not depict the children engaging in "sexual conduct."
  2. Blue Earth County Human Services determined the children were not used in a "sexual performance" or "pornographic work."
  3. The videos are not a "lewd exhibition of the genitals."
  4. There is no evidence Hoffner intended the videos to be either a "sexual performance" or "pornographic work."
  5. The state did not offer any evidence that the videos are a "sexual performance" or "pornographic work."


Hoffner is facing one count of using a minor in a sexual performance or pornographic work and one count of possessing pornographic works involving minors.

The charges stem from cell phone videos found on his school-issued cell phone, and were discovered when he brought the device in for repairs.

Last week, Hoffner testified that the videos were innocent, and simply captured his children being silly after devising a skit in the bathtub. He added that his children asked him to make the recording, and he had not watched it.

No decision was made after that hearing despite Hoffner's request to dismiss the case. Instead, the judge told attorneys they had until Nov. 14 to file additional briefs.

Prosecutors filed their own brief on Wednesday, and they remain opposed to dismissal on the grounds of a lack of probable cause.

The state's memorandum paints a different picture of the footage than the characterization the Hoffners have put forth. In the filing, prosecutors argue the children are dancing in the nude, exposing themselves in a lewd way -- and even includes masturbation.

"These videos are not the proverbial baby in the bathtub photographs," the filing reads. "They are videos of a girl age 9, a girl age 5 and a boy age 8; all together, all stripping away their towels and dancing nude, then all taking lewd postures while the Defendant records it to his amusement. If these videos do not cross the line, then where is the line?"

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