State v. Decker
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State v. Decker
Opinion of the Court
*386Daniel Decker was convicted of fifth-degree criminal sexual conduct and indecent exposure for sending a picture of his genitals to a minor via Facebook Messenger. He appeals, arguing that he did not meet the "presence" requirement of either crime because he and the victim were in different physical locations, and because he only sent a likeness of his genitals, rather than exposing his actual genitals. We hold that Decker's simultaneous electronic communications with a minor are sufficient to support his convictions. We therefore affirm the decision of the court of appeals.
FACTS
In the summer of 2014, 14-year-old M.J. babysat for a couple that she met through her sister. During that same summer, Decker moved into the couple's home, and he and M.J. became friends on Facebook. At the time, Decker was 34 years old, and was aware of M.J.'s age.
On September 8, 2014, Decker sent M.J. a video via Facebook Messenger at 12:51 a.m. The video showed only Decker's face, and he asked M.J., "[W]hat's up? Shouldn't you be in bed by now?" Decker explained that he was "just kicking it" and "fixing to go to sleep," and winked at the end of the video. Decker and M.J. then exchanged messages for roughly four minutes, until Decker informed her that he was going to finish "what [he] just started before [he] said hey." When M.J. asked what he meant, Decker explained that he was referring to his nightly ritual to de-stress before falling asleep. M.J. thought that Decker was referring to smoking marijuana, but asked what his ritual was, and he responded, "[i]t's embarrassing kinda." M.J. did not respond to that message, but one minute later, Decker sent M.J. a picture of his erect penis.
Decker was charged with and found guilty by a jury of fifth-degree criminal sexual conduct, under
ANALYSIS
Decker's appeal requires us to interpret
I.
Fifth-degree criminal sexual conduct includes "engag[ing] in ... lewd exhibition of the genitals in the presence of a minor under the age of 16, knowing or having reason to know the minor is present."
We have previously recognized that the term "presence" is ambiguous. See State v. Stevenson ,
The Legislature has recognized the harms of indecent exposure, and has determined that minors under the age of sixteen are entitled to additional protections.
*388Compare
In this case, Decker took several lewd images of himself in an aroused state at 12:49 a.m., and began a conversation with 14-year-old M.J. two minutes later. Decker knew that M.J. was 14, and he knew that she was awake and logged into Facebook Messenger. He specifically chose to engage in near-simultaneous conversation with M.J., and thus used technology to effectively enter M.J.'s private room. To end their conversation, Decker said that he would be resuming his nightly ritual, which he admitted was "embarrassing." One minute later, Decker sent M.J. a picture of his genitals. Decker chose to converse with M.J., who he knew was a minor under the age of 16, and he chose to send her a picture of his genitals right after implying that he had been masturbating before the conversation started. Decker's conduct meets the requirements of
II.
Decker also argues that
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
THISSEN, J., not having been a member of this court at the time of submission, took no part in the consideration or decision of this case.
Dissenting, Anderson, J., Gildea, C.J.
DISSENT
Decker took several pictures of his genitals at 12:49 a.m. on September 8, 2014. He did not send one of those pictures to M.J. until 1:03 a.m., and thus argues that the picture he sent is merely a likeness of his genitals.
The dissent argues that Stevenson 's holding that "presence" is ambiguous does not apply here, because the minors and the defendant in Stevenson were in the same physical location, whereas Decker and M.J. were not. We reject this argument for three reasons. First, "[o]ur previous interpretation of a statute guides us in determining its meaning." Engquist v. Loyas ,
Second, the very definitions that the dissent cites create reasonable but conflicting applications. See Webster's Third New International Dictionary 1793 (2002) (defining "presence," alternately, as "the state of being in front of or in the same place as someone or something" and "the condition of being within sight or call" (emphasis added) ). Through the aid of technology, such as telescopes, binoculars, drones, or the Internet, a person can be within sight, and therefore "present" without being "in the same place as someone." See
Third, the dissent's argument that the perpetrator and the victim must be face-to-face runs counter to our holding in Stevenson . In Stevenson , we rejected the argument that "presence" meant "proximity," and instead held that, on those facts, "presence" meant "reasonably capable of being viewed."
The dissent argues that
Section 609.352, subdivision 2a, requires proof of "the intent to arouse the sexual desire of any person," and the record does not reflect whether Decker had any such intent. Section 617.241 does criminalize the knowing exhibition and distribution of obscene material, including photographs, but neither mentions children nor provides increased penalties for disseminating obscene photographs to children. Thus, relying on the obscenity statute to prosecute this kind of case would deny effect to the Legislature's intent to punish adults who expose their genitals to children more harshly than adults who expose their genitals to non-consenting adults.
Dissenting Opinion
The question presented in this appeal turns on the meaning of the phrase "in the presence of a minor." Because the common and ordinary meaning of "presence" requires a shared physical location between the defendant and the minor, and there was no shared physical location here, I would reverse the convictions. The court's contrary conclusion-that a photograph sent via a text message satisfies physical presence-does not square with relevant dictionary definitions or rules of grammar. And the conclusion is not consistent with the common and ubiquitous use of texting (and other means of electronic transmission) to send photographs of family members, athletic events, and other daily occurrences, precisely because the sender and the recipient are not in the same location.
The statutes at issue in this case-the fifth-degree-criminal-sexual-conduct statute and the indecent-exposure statute-prohibit a person from lewdly exposing or exhibiting his or her genitals "in the presence of a minor under the age of 16."
I.
The issue presented in this case is the meaning of the phrase "in the presence of a minor." Decker was convicted of fifth-degree criminal sexual conduct for "engag[ing] in masturbation or lewd exhibition of the genitals in the presence of a minor under the age of 16, knowing or having reason to know the minor is present."
Statutory interpretation begins with an assessment of whether a statute is ambiguous.
*390See State v. Thonesavanh ,
A.
The court concludes that the phrase "in the presence of a minor" is ambiguous, and using the canons of construction, construes it to "extend[ ] to simultaneous online communication." The court does not explain how the words in the phrase could be interpreted, let alone reasonably interpreted, to mean "simultaneous online communication with a minor." Instead, the court declares that we have already determined "that the term 'presence' is ambiguous."
The court's ambiguity conclusion ignores well-settled law regarding statutory interpretation. Our case law is clear-the ambiguity of a statute is determined based on the specific factual circumstances presented. See, e.g. , Sorchaga v. Ride Auto, LLC ,
The court's premise is based entirely on State v. Stevenson ,
*391B.
As used in the relevant statutes, the phrase "in the presence of a minor" is a prepositional phrase that modifies the respective verb clauses, which are to "engage in ... the lewd exhibition of the genitals" or to "willfully and lewdly expose[ ] the person's" genitals. See
I first consider whether the phrase "in the presence of a minor" is ambiguous as applied to the facts of this case-taking a lewd photograph of genitals and sending it, via text message, to a minor in another physical location. To resolve this issue, I look to the common and ordinary meaning of the phrase "in the presence of a minor." See State v. Haywood ,
While the noun "presence" has several meanings, the definition that applies to the circumstances of this case is "the state or fact of being present; the state of being in one place and not elsewhere; the condition of being within sight or call, at hand, or in a place thought of; the state of being in front of or in the same place as someone or something."
Based on the common meaning of "presence," the only reasonable interpretation of the phrase "in the presence of a minor" is that the conduct that prepositional phrase modifies must occur in the same physical location as the child. That conduct is the defendant's exposure or exhibition of his or her genitals. See
My interpretation is consistent with that reached by other courts, which have concluded *392that the phrase "in the presence of a child" requires the defendant to be in the same physical location as the child when the prohibited conduct occurs.
The court claims that if we were to interpret the phrase "in the presence of a minor" to mean in the same physical location, it "would effectively create an exception where adults could expose themselves to minors via the Internet without consequence." The court is wrong. Other criminal statutes, which prohibit sexually explicit electronic communications with minors and the distribution of obscene material, apply to such conduct.
In this case, it is undisputed that Decker was at his residence when he took a photograph of his penis. He then sent the photograph, via text message, to a 14-year-old girl who was at her home. Because Decker and the child were not in a shared physical location, Decker did not exhibit or expose his genitals "in the presence of a minor under the age of 16." As a result, I would reverse Decker's convictions.
For the foregoing reasons, I respectfully dissent.
Because the private parts of one's body include the genitals, I will use the term "genitals" in this dissent.
The court claims Stevenson 's conclusion that "presence" was ambiguous applies to the different factual circumstances of this case. As support, it relies on our statement from Engquist v. Loyas ,
The court concludes that there is more than one reasonable interpretation of "presence" by plucking a few words out of a portion of one of these definitions-"the condition of being within sight or call." According to the court, through the use of technology, including the Internet, a person can be " 'within sight' and therefore 'present' without being 'in the same place as someone.' " This conclusion is flawed for two reasons. First, it ignores the rest of the definition, which when viewed as a whole clearly indicates a shared physical location. See Webster's , supra , at 1793 (defining "presence," in part as "the condition of being within sight or call, at hand , or in a place thought of") (emphasis added). Second, it ignores the facts of this case. While Decker and the child were texting each other from their respective homes, neither could see the other. They were not "within sight" of each other when Decker took a photo of his genitals and texted it to the victim. An act does not occur in the "presence" of someone simply because he or she is sent a photograph of that act.
Citing Rabuck v. State ,
The court claims that "relying on the obscenity statute to prosecute this kind of case would deny effect to the Legislature's intent to punish adults who expose their genitals to children more harshly than adults who expose their genitals to non-consenting adults." This is simply not the case. Decker was convicted of gross misdemeanors, see
Dissenting Opinion
I join in the dissent of Justice Anderson.
Reference
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- STATE of Minnesota v. Daniel Joseph DECKER
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