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MOORHEAD – If two junior league hockey players are going to face felony charges for allegedly making and sharing sex videos of a 15-year-old girl, prosecutors should also charge the girl, defense attorneys argued here Thursday.

In a rarely seen motion, Minneapolis-based defense attorney Joe Friedberg said the case was an abuse of prosecutorial discretion and selective prosecution. It’s one of nearly a dozen pretrial motions by defense attorneys, many of which ask Clay County District Court Judge Michael Fritz to dismiss the charges.

The motions were debated for hours in a Thursday hearing that included testimony from law enforcement and others.

Friedberg argued the case is “upside down,” asserting that the 15-year-old is the predator in the case, having sent nude images of herself to entice the men into having sex with her at their Moorhead hotel after a game last February against the Fargo Force.

“What normal boy would not be interested?” said Friedberg, who represents player Brandon Nicholas Smith, 20, of Castaic, Calif. “She is a relatively attractive young lady.”

Defense attorneys also claim the case is a matter or teenage “sexting,” not of child pornography.

“They would be labeled sexual predators for the rest of their life,” Friedberg said. “That’s wrong.”

Clay County prosecutor Pam Harris said the legal arguments the defense is making are “archaic.”

“It’s getting a little bit tiresome to hear that boys will be boys, and the 15-year-old victim was the bad guy here,” she said.

Smith and Thomas Ryan Carey, 19, of Moorhead, are charged with three felonies in connection with the sex videos, the most serious of which is using a minor in a sexual performance. Upon conviction, state sentencing guidelines call for probation and a stayed prison term between two and four years if offenders have little or no criminal history.

The controversial case – and the defense’s repeated attempts to portray the alleged victim as the instigator – has led to numerous heated clashes between prosecution and defense attorneys. Fritz has even put a gag order in place, preventing lawyers from publicly discussing the case outside of the courtroom.

Carey’s attorney, Fargo-based Jade Rosenfeldt, said Thursday that the players didn’t understand that though the girl was old enough to consent to sex with them, she was not old enough, as a minor, to consent to having a sexual image taken. Carey was 18 at the time, and Smith was 19.

In Minnesota, the age of consent is 16, but juveniles from ages 13 to 15 can consent to sex with partners who are no more than four years older. But neither mistake of age nor consent are defenses in child pornography cases.

The men, to whom the girl claimed via text message to be variously 16 or 17, knew full well the girl was a minor, Harris told the court.

The defense claims the girl sent nude photos of herself via Snapchat to many players for United States Hockey League teams – including Carey and Smith – as part of a plan to have sex with a player from each of the 17 teams in the league.

Defense investigator Chuck Anderson testified Thursday that the girl has continued to send nude photos to about 20 to 30 other people since charges were filed in June. She has also been banned from the Scheels Arena in Fargo, where the Force play their games, Anderson said.

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Harris told the court that it was unclear whether the images the girl sent of herself were pornographic.

A Moorhead police detective who worked on the case, Seth Saarinen, testified that he found four different sex videos of the girl and Carey on Carey’s phone. Prosecutors allege Smith took the images of the girl and Carey having sex, then sent the images to Carey, who then sent them to another person.

The defense argued in another motion that the sex tape is not child porn, but rather “sexting,” which they said is constitutionally protected free speech.

Based on recent studies, prosecuting all teenagers who sext – or send sexually explicit images to each other – would make a third of all teens felons, Friedberg argued Thursday.

Harris said the allegations aren’t merely sexting, since that involves messages and images sent between people in mutual relationships, she said.

Sexting is not “sending your hockey buddies a video and apologizing the lighting is bad,” which Carey in this case is accused of doing before offering the girl’s phone number to another man, she said.

Fritz gave both sides until mid- to late March to file briefs on the motions and plans to rule 30 days after all briefs are filed.

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