State v. Sheperd, 2017 ND 260

On June 29, 2016, Sheperd responded to an online ad placed by law enforcement in a multi‑agency sting; an undercover officer posed as a female and negotiated rates for sex.
In text messages the undercover officer said she was almost 17; Sheperd arrived at a Fargo hotel and knocked on the room door and was arrested.
Sheperd was charged under N.D.C.C. § 12.1‑41‑06(1)(a) (patronizing a minor for commercial sexual activity).
He waived a jury trial and was convicted after a bench trial on stipulated facts admitting he agreed to pay for sexual activity and that he learned the purported age was 16.
On appeal Sheperd argued the statute requires the actual presence of a minor, so conviction was unsupported because the person was an undercover adult.
The State argued the statute does not require an actual minor; this Court had recently addressed the same question in State v. Davison.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether N.D.C.C. § 12.1‑41‑06(1)(a) requires an actual minor to be present	The State: statute criminalizes intent/agreement to obtain sexual activity with a minor even if the person is not actually a minor	Sheperd: statute requires presence of an actual minor; conviction unsupported here because undercover agent was an adult	Court affirmed: statute does not require actual minor be present; conviction supported

State v. Davison, 2017 ND 188, 900 N.W.2d 66 (statute does not require presence of an actual minor; focuses on intent to procure minors)
State v. Backlund, 2003 ND 184, 672 N.W.2d 431 (interpreting related prostitution/luring statutes)
State v. Brown, 2009 ND 150, 771 N.W.2d 267 (standard of review for statutory interpretation is de novo)
Zajac v. Traill Cty. Water Res. Dist., 2016 ND 134, 881 N.W.2d 666 (statutory language given plain, ordinary meaning unless ambiguous)