MOORHEAD – Attorneys for two junior hockey players accused of recording and distributing video of sex with a 15-year-old girl are asking a judge to throw out evidence police seized from one of the players’ cell phone.
Thomas Ryan Carey, of Moorhead, and Brandon Nicholas Smith, of Castaic, Calif., are accused of recording a video of Carey having sex with the 15-year-old in a Moorhead hotel room after a game against the Fargo Force on Feb. 14. Both men played for the Lincoln (Neb.) Stars and have been suspended from the team.
Their attorneys have filed motions to suppress a statement that Smith made to police on March 20 as well as the seizure and search of Smith’s cell phone and all evidence obtained by search warrants.
They also hope to disclose the girl's school and disciplinary records.
Smith and Carey are charged in Clay County District Court with creating, possessing and disseminating child pornography, all felonies.
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A judge has not ruled on the motion, the latest in a series of pre-trial evidentiary issues in the case.
Attorneys in the case also have clashed over claims by the defense that the 15-year-old girl was more of a predator in the incident and that the charges were an abuse of prosecutorial discretion. That led a judge to issue a gag order prohibiting attorneys from making any further public comments on the case.
Charging documents in the case allege both men told Moorhead investigators the girl consented to a video of her having sex with Carey. Minnesota law states neither consent nor a mistake about a victim’s age is a defense 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 of 10 years in prison. Minnesota sentencing guidelines, however, call for probation and a suspended prison term of two to four years for offenders with little or no criminal histories.
