This opinion will be unpublished and 

may not be cited except as provided by 

Minn. Stat. § 480A.08, subd. 3 (2014). 

STATE OF MINNESOTA 

IN COURT OF APPEALS 

A15-1545 

State of Minnesota, 

Respondent, 

vs. 

Jeffrey Harris Wilensky, 

Appellant. 

Filed June 13, 2016 

Reversed 

Stauber, Judge 

St. Louis County District Court 

File No. 69DU-CR-15-883 

Lori Swanson, Attorney General, St. Paul, Minnesota; and 

Mark S. Rubin, St. Louis County Attorney, Victoria D. Wanta, Assistant County 

Attorney, Duluth, Minnesota (for respondent) 

Hillary B. Parsons, Minneapolis, Minnesota (for appellant) 

 Considered and decided by Connolly, Presiding Judge; Stauber, Judge; and Kirk, 

Judge. 

U N P U B L I S H E D O P I N I O N 

STAUBER, Judge 

 Appellant challenges his gross-misdemeanor conviction of patronizing a prostitute 

in a public place. Because the evidence is insufficient to prove beyond a reasonable 
2 

doubt that appellant agreed or offered to engage in sexual contact or penetration, we 

reverse. 

FACTS 

The Lake Superior Drug and Violent Crimes Task Force organized a prostitution 

sting at the Econolodge Motel in Hermantown. The task force posted the following 

advertisement on an internet website: 

Hey Guys>>>>looking for a fun erotic safe time??? 

BOOTYfull BuSTy BlOnde and CURVey ReDheaD. AsK 

about our 2 GIRL SpeCialS . . . enjoy a playful, “sin”sational 

experience that you won’t forget !! So what are you waiting 

for????? In call Only 80 1/2 120 hour 100% Discreet Only 

serious inquiries only, NO law enforcement or police allowed 

to call this ad!! 

On March 18, 2015, appellant Jeffrey Harris Wilensky, responded to the advertisement, 

and following text-message communications with undercover investigators, arrived at the 

Econolodge Motel. An undercover investigator walked appellant to a room, where he 

met two undercover female investigators who were posing as prostitutes; neither of the 

investigators was dressed provocatively. 

During the discussion that ensued between the female investigators and appellant, 

he described himself as “extremely tame,” expressed interest in “both girls,” and stated 

that in the past he had “only gotten body rubs, that kind of thing.” Because he claimed to 

have only $85 with him, he could afford only one woman and said that they could choose 

which one would be with him. When asked what service he wanted, appellant said, 

“[J]ust a body rub, and maybe see.” At no time did appellant explicitly ask for sexual 

contact or agree to it. But when asked whether he brought his own condoms if he later 
3 

decided he wanted more than a body rub, appellant replied that he had not. At this point, 

appellant was arrested. 

 The district court denied appellant’s motion to dismiss the complaint for lack of 

probable cause. Appellant then agreed to a bench trial on stipulated facts and was found 

guilty. The district court rejected appellant’s claim that there was no express or implied 

agreement that appellant would pay money for sex acts, stating that appellant’s argument 

was “contrary to the reasonable inferences that can be drawn from the essential facts.” 

Following sentencing, appellant sought further review in this court. 

D E C I S I O N 

 It is a gross misdemeanor for a person “while acting as a patron,” to intentionally 

“hire[], offer[] to hire, or agree[] to hire an individual 18 years of age or older to engage 

in sexual penetration or sexual contact.”1

 Minn. Stat. § 609.324, subd. 2(2) (2014). 

Appellant argues that the stipulated facts are insufficient to prove that he offered or 

agreed to hire one of the female investigators for sexual contact or penetration. 

In reviewing the sufficiency of evidence in a criminal case, we 

are limited to ascertaining whether, given the facts in the record 

and the legitimate inferences that can be drawn from those 

facts, a [factfinder] could reasonably conclude that the 

defendant was guilty of the offense charged. We will not 

disturb the verdict if the [factfinder], acting with due regard for 

the presumption of innocence and for the necessity of 

overcoming it by proof beyond a reasonable doubt, could 

reasonably conclude that a defendant was proven guilty of the 

 

1

 Minnesota statutes define the conduct that amounts to sexual contact as “(i) the 

intentional touching by an individual of a prostitute’s intimate parts; or (ii) the intentional 

touching by a prostitute of another individual’s intimate parts.” Minn. Stat. § 609.321, 

subd. 10 (i-ii) (2014). 
4 

offense charged. We consider the evidence in the light most 

favorable to the verdict. 

Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004) (quotations and citations 

omitted). 

 Appellant acknowledges that an offer or agreement for sexual contact or 

penetration may be implied from conduct. Under State v. Oanes, 543 N.W.2d 658, 662 

(Minn. App. 1996), “[A]n offer [to hire for sexual contact or penetration] need not be 

explicit, but may be implied by the defendant’s words and actions.” In construing an 

earlier prostitution statute, the supreme court considered the types of conduct that may 

constitute either an explicit or implied offer to engage in sexual contact, stating: 

By defining an offer to engage for hire in intercourse or 

sodomy as illegal conduct, the statute requires neither 

completed sexual conduct nor a substantial act in furtherance 

of the endeavor. But because it proscribes inchoate activity, 

the statute is likely to be applied to conduct which is in some 

degree ambiguous. Two principles are in tension here. First, 

to prevent ready circumvention of the statute, the offer need 

not be express or in the language of the statute, but may be 

implied from the words and actions of the defendant taken in 

context. Secondly, however, in these situations the danger 

exists that the defendant’s offer is innocent or ambiguous. The 

evidence must demonstrate, beyond a reasonable doubt, the 

defendant’s intent to engage for hire in sexual activity. Mere 

suspicion by the arresting officer is insufficient. 

State v. Bennett, 258 N.W.2d 895, 897 (Minn. 1977) (emphasis added) (footnotes 

omitted) (citations omitted). In Bennett, the supreme court found that the prostitute’s 

“explicit cataloging of available services” was sufficient to prove an offer of sexual 

conduct for hire, stating that “[t]he absence of an accompanying profferal of sexual 

services does not alter the result, for the statute proscribes not attempts but offers.” Id. 
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 Under the facts stipulated to by the parties, we must determine whether the 

evidence is sufficient to prove beyond a reasonable doubt that appellant offered to or 

agreed to hire one of the female investigators for sexual contact. The advertisement that 

drew appellant to the motel may suggest an erotic experience but does not include an 

explicit offer of sexual contact. Once appellant arrived at the motel, he stated to the 

modestly dressed investigators that his past experiences included only “body rubs, that 

kind of thing,” and that he wanted a body rub, and “maybe see.” The crucial “maybe 

see” statement is ambiguous. When viewed in context, this language could refer to nonsexual conduct, such as a specialized massage, or could possibly refer to sexual contact. 

As such, the statement is far too indefinite to establish beyond a reasonable doubt that 

appellant intended to agree to or make an offer of sexual contact. 

Finally, when asked whether he had a condom if he decided he wanted more than 

just a body rub, appellant replied that he did not. This response also suggests that 

appellant did not plan on sexual contact, and does not appear to modify his agreement to 

receive only a body rub. While reference to a condom may suggest sexual activity, the 

implication of appellant’s answer that he did not have a condom is also too ambiguous to 

allow a clear inference that he would need one and insufficient to alter the indefiniteness 

of his “maybe see” statement.2

 

 

2

 Appellant asks this court to apply a heightened standard of review, rather than the 

harmless-error standard. Because we are reversing appellant’s conviction, we do not 

reach this issue. 
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By our decision today, we do not mean to diminish the seriousness of sexual 

trafficking or prostitution. Nevertheless, we are obligated to follow the law. 

Reversed.