'I shouldn't be in this jail,' says sex-case suspect

In jail, Samuel Josiah Benda said he's being treated like he's a 19-year-old sex offender.

But Benda, who was adopted from Sierra Leone, said he's really 17 and is being unjustly charged as an adult for having consensual sex with his underage ex-girlfriend and having nude photos on his phone of another minor teenage girl -- one he had taken to senior prom.

"I'm 17," Benda said Friday from the Dakota County Jail in Hastings. "I shouldn't be in this jail."

Prosecutors charged Benda with child pornography possession and a pair of felonies involving the alleged sex crime, according to a criminal complaint. He's now serving a 90-day adult jail sentence for an assault conviction stemming from a school fight.

In the sex case, Benda's attorney this week presented Dakota County District Judge Robert King with a copy of his Sierra Leone birth certificate that states he's 17. King questioned its authenticity and suggested the defense find his original birth certificate, Benda's parents said.

The judge has up to three months to rule on Benda's age.

If the judge determines Benda is only 17, he wouldn't face an adult sex charge because he was not more than two years older than the alleged 15-year-old victim, his defense has argued. If guilty of the more-serious third-degree criminal sexual conduct charge, he could serve up to 15 years in prison.

"I shouldn't be here, legally," Benda said.

In cases where the age of a defendant is disputed, the burden tends

to fall on the defense to prove the person's age, said Carolina Lamas, executive director of the Neighborhood Justice Center, a nonprofit law office helping low-income people.

"That's the part that concerns me in these cases," Lamas said.

While the age issue is being argued, Benda, of Burnsville, remains in custody as an adult.

When he was adopted in 2005, Benda said he was 11 years old. Shortly afterward, though, he told his parents he was two years older than his birth certificate said he was. Benda, who was in sixth grade at the time, said he was being bullied at school and wanted to move up two grades so he would be in high school.

A doctor who evaluated Benda at the time estimated he was between 13 and 14 years old. His parents accepted the doctor's evaluation and applied for a Minnesota birth certificate, stating he was 13 years old instead of 11.

A court order is required to change a person's birth year on a birth certificate -- not a doctor's recommendation alone, said Steve Elkins, state registrar of vital records at the Department of Health.

"It's extremely rare for any type of amendment for a year of birth," he said.

Kae Martin, Benda's adoptive mother, said she didn't recall the specific process required to change Benda's age. She said his Sierra Leone birth certificate, a U.S. visa and a Social Security card said he was born in 1993 and was 11 years old when he was adopted.

But according to Benda's Minnesota birth certificate, driver's license, school records and documents from Dakota County social services, he was born in 1991.

Attorney Amadu Swaray, a native of Sierra Leone who specializes in immigration cases, said he has reviewed and helped order many birth certificates from his country. Sierra Leone usually keeps accurate and up-to-date records of its citizens, he said.

On Friday, Swaray reviewed a faxed copy of Benda's Sierra Leone birth certificate.

The document, from the country's registrar of births and deaths, says Benda was born in 1993 and includes the country's emblem, a registration number used to track the original record and a familiar signature, Swaray said. But Swaray, who does not legally represent Benda, said he couldn't officially vouch for its authenticity as an attorney.

But "it looks like a Sierra Leone birth certificate," he said.

Benda, who suffers from behavioral problems, said he's been struggling with suicidal thoughts in jail. He's been attending church every day and taking anger-management classes. Benda also said he spends time writing songs.

Even in jail, Benda said, he still remembers why he came to America.

"I came here for a healthy family. I came here to America to have a life," he said. "I want to pursue that dream. I'm going to get it."

Distributed by McClatchy-Tribune Information Services.