1. The requirement for fifth-degree criminal sexual conduct that it be committed "in the presence of a minor" means that the conduct must be reasonably capable of being viewed by a minor.
2. In a prosecution for indecent exposure, an intent to be indecent may be inferred when the defendant's conduct is performed in a place so public and open that it is likely to be observed.
The opinion of the court was delivered by: Hanson, Justice
Heard, considered, and decided by the court en banc.
Appellant Kerry Dean Stevenson was charged with one count of indecent exposure and one count of fifth-degree criminal sexual conduct, which criminalizes certain conduct when performed "in the presence of a minor." The district court found Stevenson guilty of indecent exposure, not guilty of fifth-degree criminal sexual conduct (interpreting the "presence" requirement to mean the conduct, was "actually viewed by a minor"), but guilty of attempted fifth-degree criminal sexual conduct, because Stevenson had taken a substantial step toward having his conduct viewed by a minor. The court of appeals affirmed both convictions. We granted both parties' petitions for review and affirm both convictions, although we affirm the attempt conviction on other grounds because we interpret the "presence" requirement to mean "reasonably capable of being viewed by a minor."
On July 23, 2000, Abrian Carpenter was visiting the public park at Moore Lake Beach in Fridley, Minnesota. Walking near the parking lot, Carpenter noticed a silver pickup truck without a handicapped sticker parked in a handicapped spot. When he approached the driver's side window of the truck, Carpenter saw Stevenson sitting in the driver's seat, masturbating. Stevenson's truck was parked facing a playground area that was only 10 to 15 feet in front of the truck. Carpenter testified that 10 to 15 children, ranging in age from approximately 2 to 13, were playing in the playground.
Carpenter informed a lifeguard of what he had seen, and the lifeguard called the police, who arrested Stevenson. According to subsequent police measurements, the driver's side window of Stevenson's truck was about 3 1/2 feet from the ground. The district court found that the windshield and driver's side window of Stevenson's truck were not tinted.
Stevenson was charged with fifth-degree criminal sexual conduct and indecent exposure. Stevenson waived his right to a jury trial and agreed to a "paper trial" before the district court.*fn1 The district court found Stevenson guilty of indecent exposure but not guilty of fifth-degree criminal sexual conduct, because the court interpreted the presence requirement to mean actually viewed by a minor. The court then found Stevenson guilty of the lesser-included (though uncharged) crime of attempted fifth-degree criminal sexual conduct because he had taken substantial steps to be viewed by a minor. Stevenson was sentenced to 16 months in prison and was fined $1,000.
The court of appeals affirmed both convictions. State v. Stevenson, 637 N.W.2d 857, 862-64 (Minn. App. 2002). As to fifth-degree criminal sexual conduct, the court determined that the presence requirement was ambiguous because it could mean either "in proximity" or "in view" of a minor. Id. at 862. It applied the rule of lenity to adopt the narrower "in view" interpretation. Id. The court of appeals concluded that because no minor saw Stevenson's conduct, the completed crime had not been proven, but the evidence was sufficient to prove attempt. Id. at 863-64.
Stevenson petitioned for review of the sufficiency of the evidence supporting his convictions. The state cross-petitioned for review of the court of appeals' interpretation of the presence requirement in fifth-degree criminal sexual conduct. We granted both petitions.
Stevenson claims that there was insufficient evidence to convict him of attempted fifth-degree criminal sexual conduct. The fifth-degree ...