By Emily Welker / The Forum
MOORHEAD, Minn. – Two former junior hockey players charged with creating and sending a video of sex with a 15-year-old girl here are arguing in court the girl was actually the predator.
Attorneys for the 19-year-olds, Thomas Ryan Carey of Moorhead and Brandon Nicholas Smith of Castaic, Calif., said in a dismissal motion filed in Clay County District Court on Monday that the girl asked them to shoot video of her having sex with them while they were in Moorhead for a game against the Fargo Force junior hockey team last February.
The 15-year-old girl was trying to have sex with a member of each team in the U.S. Hockey League to outdo a woman in Waterloo, Iowa, known as “the Legend,” lawyers claimed in the motion. Carey and Smith were playing for the Lincoln (Neb.) Stars.
The defense claims in the motion that the girl described herself using a gender-based sexual slur for a hockey groupie, and wooed the men with nude photos of herself sent on Snapchat. Snapchat is a phone app that erases messages and images within seconds after the recipient opens them.
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After she discovered the men were sending the video to her peers at school and their friends in the hockey league, she told them to send her the images, the former players claim in the motion. When they did not, she later texted them that she would drop the charges if they got her team memorabilia signed by every member of the Lincoln Stars, they claim.
In an affidavit, defense investigator Chuck Anderson said the girl admitted in a text message sent to another hockey player she had lied about not knowing she was being videotaped having sex with the men.
In a text message submitted with the affidavit, one reads, “The truth is I knew the pictures and videos were being taken. But I was led to believe it was on Snapchat. I didn’t know they had saved them until the morning after I texted them both often trying to get them to stop sending it around.”
The message, allegedly sent by the victim, says she began to be harassed by two girls in her peer group about the video, and she told authorities in hopes of stopping the harassment.
The motions accuse Clay County prosecutor Pam Harris of abuse of her prosecutorial discretion, and ask for the case to be dismissed on those grounds.
Clay County Attorney Brian Melton said there are no grounds for the dismissal.
“There really is no method for them to dismiss a case using prosecutorial discretion,” he said. “Really, it’s been about trying to attack our office.”
Carey’s defense attorney, Jade Rosenfeldt, disagreed with Melton’s take on the law, and said while it would be exceptional, there is existing authority in the state of Minnesota for the court to dismiss the case.
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Melton described Rosenfeldt as a “hatchet woman” to other media outlets Tuesday, saying the allegations in the motion were a personal attack on the 15-year-old girl. He also said the information included in the motion would have a chilling effect on child pornography cases, making it less likely for victims to come forward.
Responding Wednesday, Rosenfeldt said Melton should apologize, saying his comment directed at her damaged his credibility.
“This is crazy,” she said. “I would never have imagined I’d be called personal names.”
Rosenfeldt said she’s not going to “resort to any name-calling,” as she thinks it’s “unprofessional and unethical.”
“She said she was offended I called her names. I thought, how ironic,” Melton said Wednesday. “She’s offended I called her names after she called a 15-year-old girl a (gender-based sexual slur).”
Rosenfeldt noted that prosecutors had already included numerous salacious details about the incident in court records. She said the 15-year-old girl is “no victim.”
“She engaged in what we believe is dissemination of child pornography herself,” the defense attorney said. “She had a plan.”
Carey and Smith face a charge of using a minor in a sexual performance as well as possessing and distributing child pornography, all felonies.
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Charging documents in the case allege both men told Moorhead investigators the girl consented to a video of her having sex with Carey, though Minnesota law states neither consent nor a mistake about a victim’s age are defenses against a charge of using a minor in a sexual performance.
Using a minor in a sexual performance is the most serious of the three charges Carey and Smith face, with a maximum penalty upon conviction of 10 years in prison. Minnesota sentencing guidelines, however, call for probation and a stayed prison term between two and four years for offenders with little or no criminal histories.
