The Free Press, Mankato, MN

October 31, 2012

UPDATE: (VIDEO) Hoffner testifies that his kids asked him to videotape their show

By Dan Nienaber
Free Press Staff Writer

MANKATO — Todd Hoffner looked directly at District Court Judge Krista Jass frequently Wednesday as he described the evening in June when he made two videos that led to his arrest for creating child pornography.

The head coach for Minnesota State University’s football team was preparing for the upcoming season when he sent his son and two daughters off to the Jacuzzi tub in his master bathroom to take a bath.

“I instructed them to go take a bubble bath,” Hoffner said during the hearing, which Jass will use to help determine if there is enough probable cause to support the charges. “They usually last longer and I can get some work done.”

Apparently his children, who were between the ages of 4 and 9, spent their time in the tub working on a “show,” he said. When they got out and headed down to the living room in their towels, they asked him to make a video. Hoffner said he didn’t know what they were about to do.

He grabbed the Blackberry cell phone that had been issued to him by the university and started recording. During the next 92 seconds his children dropped their towels as they sang, danced and laughed.

At one point it was clear his son was trying to ruin the show by messing around and making the girls mad, Hoffner said. It was around that point that the boy grabbed his penis for about five seconds and all of the children exposed their anuses for the camera. The girls also told Hoffner their brother “wasn’t doing the show right” and asked him to make him follow their plan.

Hoffner said he eventually told them the show was over so he could get back to work. A short time later his daughters said they wanted to do another video on their own, so Hoffner agreed. That resulted in the 10-second video that ended quickly because, again, the boy interfered. This time he ran through wearing only a football helmet, which resulted in a chuckle from Hoffner before he shut the camera off a second time.

Hoffner’s attorney, Jim Fleming, asked him if he remembered ever watching those videos again before he was suspended from his job two months later, arrested and charged with making and possessing child pornography.

“I did not look at those videos again,” Hoffner said.

“Did you even remember they were on the phone?” Fleming asked.

“I did not,” he said.



Opinions differ

The videos, along with a third video showing one of the daughters being awakened and sent to the bathroom, were found on Hoffner’s phone when he turned it in to a technician at the university for repairs. The videos were turned over to administrators who placed Hoffner on administrative leave and called the Mankato Police Department. Mankato investigators turned the case over to the Blue Earth County Sheriff’s Department after learning the videos had been created at Hoffner’s house in Eagle Lake.

Fleming also called Mankato Det. Cmdr. Matt DuRose, and detective Jerry Billiar and Capt. Rich Murry of the Sheriff’s Department as witnesses for the hearing.

DuRose said he was concerned enough about the videos to ask the Sheriff’s Department to continue the investigation. He also said he didn’t see a reason to arrest Hoffner after he watched the videos, even though possessing child pornography in Mankato would be a crime within his jurisdiction.

Billiar and Murry both said they were disturbed by the video but wanted to consult with Blue Earth County Attorney Michael Hanson before determining the videos were child pornography. Billiar said he asked for Hanson’s opinion again before making an arrest when Hoffner’s house was searched on Aug. 21.

Hanson, who didn’t call any witnesses for the hearing, said it’s common for law enforcement officers to consult with county attorneys during investigations. He also told Jass the fact that university officials, DuRose and sheriff’s investigators were concerned enough to keep moving the case forward showed there is enough probable cause to support the charges.

“Adults should not make lewd videos of children,” Hanson said. “And there’s no parental exception.”

Fleming said the progression of the case shows Hanson is the only person who considers the videos to be pornography. He also pointed out the bathroom video was included in the criminal complaint even though Hanson had told investigators it wasn’t pornography.

“He’s the only person — the only one who can say this is child pornography,” Fleming said. “This is it. Him.

“These are (Hoffner’s) children. He loves his children. He’s doing something they asked him to do, then he forgets it.”



No abuse

Another witness Fleming called Wednesday was Holly Barkeim, a child protection investigator for Blue Earth County Human Services who has watched the videos. She sent a letter to Hoffner and his wife, Melodee, in September saying her investigation found the Hoffners’ children had not been abused and there was no need for child protective services.

During the hearing, Fleming had Barkeim provide a more in-depth explanation for her decision. Barkeim said if she had determined Hoffner had used his children to create child pornography that would be considered sexual abuse under the state statutes she follows for her job.

She also said her office uses what she described as a 50-50 threshold to decide if children are being abused or mistreated in their home. Barkeim explained that even if there was a 51 percent concern that the children were being abused, the protective services process would have been started.

The videos didn’t reach that threshold, she said.

Fleming told Jass that Barkeim should be the person Hanson turns to for expert advice in this type of case. Someone in her position would usually be called as a witness for prosecutors if a similar case goes to trial.

It is significant that Barkeim didn’t come to the conclusion that the videos were child pornography, Fleming said.

“That is the community standard of obscenity: What Human Services thinks. That’s the significance of that testimony.

“There is nothing in here. These kids are laughing and dancing and having fun.”

Jass, who will watch the video before making a decision, told Fleming to complete a written argument by Nov. 7. Hanson will have until Nov. 14 to respond. Jass said she will issue a ruling as quickly as possible after that and, if necessary, schedule the next hearing at that time.