Attorney for Todd Hoffner says there's no evidence that the videos on the Mankato football coach's phone are pornographic.
The attorney for a Mankato football coach facing two felony counts of child pornography has asked the judge overseeing the case to dismiss it.
Jim Fleming, who represents Minnesota State University, Mankato football coach Todd Hoffner, filed a motion for dismissal in Blue Earth County District Court this week in advance of a hearing Wednesday before Judge Krista Jass.
Fleming's motion asks Jass to dismiss the charges because the videos presented by prosecutors as evidence against Hoffner are "not child pornography."
"There is absolutely no evidence Todd Hoffner intended the videos to be or knew or had reason to know the videos would be alleged a sexual performance or pornographic work," Fleming's motion said.
Hoffner, 46, was arrested and charged in late August after three videos of his three children dancing naked and touching themselves were found on a campus-issued cell phone.
According to court records, the coach brought the phone to the university's IT department Aug. 10 after it had malfunctioned. He has been on paid administrative leave from the school pending the outcome of a school investigation.
Fleming declined Friday to elaborate on his motion.
Prosecutor Michael Hanson, who has repeatedly declined to discuss the case, was out of the office and could not be reached for comment.
County Attorney Ross Arneson also has consistently declined to discuss it.
"I will not comment about this specific case, as any comments from me could increase pretrial publicity," he said in an e-mail this week.
Schools find nothing
Heading into Wednesday's hearing, investigators appear to have gathered no evidence beyond the videos to support their case.
When a search of computers, videos and electronic equipment taken by investigators from Hoffner's home and car in August turned up no evidence, Fleming appealed to prosecutors to drop the charges.
"Let's have reasonable people reevaluate this thing and quit looking at this in the most cynical way," he said at the time.
Late last month, County Human Services notified Hoffner by letter that their investigation into a report that he may have sexually abused his children found no evidence that it occurred.
"We did not determine that maltreatment occurred or that child protective services are needed," wrote Holly Barkeim, a social worker. "An offer of services was extended to your family, but at this time Blue Earth County Human Services is not determining that child protective services are needed."
In recent weeks, officials at three colleges where Hoffner coached -- the University of Wisconsin-Stevens Point, the University of Wisconsin-Eau Claire and the University of South Dakota -- before taking the Mankato job in 2008 cleared him of any wrongdoing after reviewing computer and cellphone records from his time at those schools.
"We didn't find anything," said Kate Worster, a spokeswoman for UW-Stevens Point, which completed its review this week.
Fleming said weeks ago that he was confident nothing would be found. "My client is innocent," he said in August. "We will fight this to the very end."
While prosecutors have argued that the cellphone videos are pornographic, Fleming has consistently said the images were nothing more than "private family moments" that contained nothing graphic or abusive.
Two of the videos, shot the same day in June, lasted about a minute. They showed the children, ages 5 to 9, dropping towels and jumping around nude. In one, Hoffner's 8-year-old son fondles himself and his daughters bend over and spread their buttocks. In another video, shot in August, one daughter is awakened in her bed and told by a male voice to go to the bathroom. As she is followed to the bathroom, the camera is focused on her underwear.
Hoffner's wife, Melodee, has said publicly that the charges against him are "ridiculous and baseless" and that the videos were "innocent videos of typical kids being silly."
She also has said the video showing her daughter walking to the bathroom was taken to show to the girl, who was so sleepy when awakened that she did not remember the moment.
As Hoffner heads to court next week fighting for his job and reputation, his football team is undefeated and nationally ranked. Because of the university investigation, however, he is not allowed to attend games, and has instead spent his days officiating with a local youth football program, Fleming said.
"Hoffner has been through the wringer," the Eau Claire Leader-Telegram wrote in an editorial this month. "He learned an expensive lesson in the proper use of a university cellphone -- any cellphone -- for which he has paid a huge price.
"But does he deserve to lose his job and be prosecuted as a producer of pornographic material? Based on the follow-up investigating made public, no. ...
"Reasonable minds need to get together and put an end to this nightmare for the Hoffner family."
Richard Meryhew 612-673-4425
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