This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,






Steven Arthur Pinkal,




Filed January 23, 2001

Reversed and remanded

Toussaint, Chief Judge


Ramsey County District Court

 File No. TX9956391


 Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Clayton Robinson, St. Paul City Attorney, 500 City Hall, 15 West Kellogg Blvd., St. Paul, MN 55102 (for respondent)


Kyle David White, 600 Capital Centre, 386 North Wabasha, St. Paul, MN 55102; (for appellant)


Jerome A. Burg, Johnson Gulling Heltzer Burg, 250 Third Avenue North, Suite 650, Minneapolis, MN 55401 (Amicus for The Minnesota Lavender Bar Association)


Dean Allyn Lanz, 15 W. Kellogg Boulevard, Suite 500, St. Paul, MN 55102 (Amicus for Outfront Minnesota)




            Considered and decided by Toussaint, Chief Judge, Stoneburner, Judge, and Foley, Judge*.


U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge

Appellant Steven Pinkal challenges a jury verdict finding him guilty of indecent conduct on the grounds that the (1) indecency statute, Minn. Stat. § 617.23 (1998) is unconstitutionally overbroad and vague as applied to appellant; (2) trial court erred in allowing inflammatory evidence and an inflammatory closing argument; and (3) trial court erred in failing to order a discriminatory enforcement of law hearing.  Because the trial court erred in failing to order a discriminatory enforcement hearing, we reverse and remand.


On July 6, 1999, Pinkal went to Pieffer’s Beach, located south of Highway 94 just off Mississippi River Boulevard and north of the Lake Street Bridge in St. Paul.  Pieffer’s Beach is known as a place where gay individuals socialize.  An officer on routine patrol observed Pinkal masturbating and cited him with indecent conduct in violation of St. Paul Ordinance § 280.03 (1998) and Minn. Stat. § 617.23 (1998).  After a jury trial Pinkal was found guilty and sentenced.  This appeal followed.



Constitutionality of Minn. Stat. § 617.23.

Pinkal argues that his conviction should be vacated because Minn. Stat. § 617.23 (1998) is unconstitutionally vague and overbroad and, as such, is violative of his due process rights under the Fourteenth Amendment of the United States Constitution, and Article I, Section 7, of the Minnesota Constitution.  Constitutional issues are legal issues and therefore this court reviews those decisions de novo.  State v. Wicklund, 589 N.W.2d 793, 797 (Minn. 1999).  The indecency statute provides, in relevant part:

A person who * * * willfully and lewdly exposes the person's body, or the private parts thereof * * * or engages in any open or gross lewdness or lascivious behavior, or any public indecency * * * [is guilty of a misdemeanor].


Minn. State. § 617.23.  Because Pinkal’s conduct is not protected by the First Amendment and would be viewed as lewd conduct by a reasonable person, section 617.23 is not unconstitutionally overbroad or vague as applied to him.

A.         Overbreadth

Pinkal also argues that the ordinance "is facially unconstitutional as its broad sweep infringes substantial protected conduct."  A statute is overbroad when its terms sweep too far, regulating conduct which must be permitted. City of Mankato v. Fetchenhier, 363 N.W.2d 76, 78 (Minn. App. 1985) (citing Broadrick v. Oklahoma, 413 U.S. 601, 607, 93 S.Ct. 2908, 2913, (1973)). Under the overbreadth doctrine, a person can challenge an overly broad statute even though the specific conduct is unprotected and could be prevented by law drawn with the requisite specificity, so long as the statute reaches conduct protected by the First Amendment.  Fetchenhier, 363 N.W.2d at 78 (citing New York v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348, 3360, (1982)).

Here, appellant cannot identify any conduct protected under the First Amendment which section 617.23 purports to regulate.  The conduct described in the statute clearly enjoys no First Amendment protection. See State v. Duncan, 605 N.W.2d 745, 749-50 (Minn. App. 2000), review denied (Minn. April 18, 2000) (holding that obscene conduct is not protected by the First Amendment, and therefore, the conduct described in section 617.23 is not protected conduct).  Accordingly, appellant’s contention that section 617.23 is unconstitutionally overbroad, is unsupported under Minnesota law.  See Fetchenhier, 363 N.W.2d at 78 (holding that where a statute regulates conduct which is not protected by the First Amendment, a person cannot complain that the statute can conceivably be impermissibly applied to others).

B.         Vagueness

Pinkal also argues that the statute is void for vagueness because it uses vague language which opens the door for discriminatory enforcement of the law.

"[T]he void for vagueness doctrine requires that a penal statute define a criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."


Fetchenhier, 363 N.W.2d at 78 (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858 (1983)).  “[V]agueness must be judged in light of the conduct that is charged under the statute.”  Fetchenhier, 363 N.W.2d at 79 (citing U.S. v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, (1975)).

Here, appellant could have had no reasonable doubt that masturbating in a public park is lewd conduct.  See Fetchenhier, 363 N.W.2d at 79 (holding that defendant "could have had no reasonable doubt that his actions in fondling a woman's thigh and buttocks” were lewd).  Accordingly, the statute, in light of the conduct presented here, is not unconstitutionally vague.


Evidentiary Issues and Closing Arguments

Both the United States and Minnesota Constitutions guarantee a criminal defendant the right to a fair trial.  State v. Shoen, 578 N.W.2d 708, 713 (Minn. 1998); U.S. Const. Amends. V and XIV; Minn. Const. art. I, §§ 6, 7.  Even if an error at trial, standing alone, would not be sufficient to require reversal, the cumulative effect of the errors may compel reversal.  State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979). 

Where error may have prejudiced a close factual case, this court will order a new trial, even if the evidence is otherwise sufficient to support the verdict.


State v. Blasus, 445 N.W.2d 535, 541 (Minn. 1989).

A.         Evidentiary Issues

Pinkal argues that the trial court erred when it allowed the prosecution to question him on cross-examination about his religious beliefs, and about practices and his status as a homosexual male with HIV.

The question of whether to admit or exclude evidence rests within the broad discretion of the trial court and its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion.  Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party's ability to demonstrate prejudicial error. 


Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (citations omitted).  Because the state was permitted to elicit testimony that should have been excluded under the rules of evidence, the trial court abused its discretion in admitting the evidence.

1.         Religious Beliefs

Pinkal argues that the trial court should have excluded from evidence testimony elicited by prosecution pertaining to his religious beliefs.  Questions about a witness’s religious beliefs to impeach or bolster the witness’s credibility are prohibited.  See Minn. R. Evid. 610; see also State v. Krzywicki, 327 N.W.2d 5, 6 (Minn. 1982). But see Nelson v. State, 407 N.W.2d 729, 731 (Minn. App. 1987) (evidence of rape victim's religious beliefs properly admitted to show severe mental anguish, an element of the offense), review denied (Minn. Aug. 12, 1987).

When Pinkal was questioned on direct as to whether he was from a background that would indicate that it is important to tell the truth, he responded “Yeah. I was brought up very religious, Baptist, and went to church like five times a week [* * * ].”  On cross-examination, the prosecution asked the following questions:

Q:        You also testified that you went to a Baptist Church in your past; is that correct?


A:        Yes.


Q:        In fact, you said that sometimes you went up to five days a week; is that correct?


A:        Yes.


Q:        Does the Baptist church have any beliefs about homosexuality?


A:        Yes, they’re basically against it.


Q:        They’re against homosexuality. And are you still a member of a Baptist church?


A:        No.


Q:        So is it fair to say that you don’t follow all of the beliefs of the Baptist church?


A:        Yes.


Here, Pinkal introduced his religious beliefs to establish truthfulness, which is clearly inappropriate, and should have not been admitted into evidence under Minn. R. Evid. 610. See Krzywicki, 327 N.W.2d at 6 (finding it error for prosecutor to elicit from victim that he attended church regularly.)  Similarly, the prosecution’s questions aimed at impeaching Pinkal’s credibility based on his religious practices should not have been admitted into evidence under Minn. R. Evid. 610.  See id.  Furthermore, impeaching a witness on his truthfulness does not extend to questioning the witness whether the Baptist church condoned homosexual practices.  See State v. Sharich, 297 Minn. 19, 23 209 N.W.2d 907, 911 (Minn. 1973) (holding that “[b]y voluntarily testifying in his own behalf, the accused opens up only the issue of his credibility, not his general character”).

Additionally, the Baptist church’s views on homosexuality are not relevant to the charged crime of indecent conduct, and therefore, are inadmissible.  See Minn. R. Evid. 402 (requiring evidence to be relevant in order to be admissible); see also State v. Lubenow, 310 N.W.2d 52, 56 (Minn. 1981) (holding that evidence not related to the crime is irrelevant and inadmissible).  The state has a compelling interest in conducting a trial in a secular, impartial and orderly manner.  See Minn. R. Evid. 610 (evidence of a witness' religious beliefs cannot be used to enhance or impair credibility).  By eliciting evidence of a religious sect’s viewpoint on an issue, the prosecution compromised the state’s interest in conducting a secular and impartial trial.  Therefore, the trial court erred when it failed to exclude from evidence the testimony related to Pinkal’s religious beliefs and the beliefs and practices of the Baptist Church.

2.         Homosexual male with HIV

Pinkal argues that evidence related to his status as a homosexual male with HIV was inadmissible character evidence, irrelevant, and highly prejudicial. A court must ascertain whether testimony is relevant, and whether its prejudicial effect substantially outweighs its probative value.  See Minn. R. Evid. 402-03, 404(a).

On direct examination, in response to being questioned as to whether he was working, Pinkal testified that he is “currently disabled by a doctor through depression and HIV complications.”  On cross-examination, the prosecution asked Pinkal:

Q:        Now you … I’ll ask you what stage of HIV are you in?


A:        I would say middle, I suppose.


* * * *

Q:        Are you still contagious ***?


A:        If you have unprotected sex, yeah.


Q:        Now, I’m assuming that you’d prefer not to spread the HIV virus to anyone else ***?


A:        Yes.


Q:        And you would agree that masturbation is one of the safer forms of sex that you could have?


A:        Yeah, I suppose.


Q:        And so the chances of spreading the HIV virus would be much slimmer through masturbation ***?


A:        Yeah -- or yes.


Respondent asserts that questioning Pinkal about his HIV status was necessary for the purposes of establishing a motive or the likelihood that Pinkal was in fact masturbating.  Evidence of a person’s character or trait of character, offered as circumstantial evidence to prove an action in conformity with the character, is generally not admissible.  See Minn. R. Evid. 404(a).   Furthermore, a general statement by Pinkal that he is not working because he has HIV complications does not put his character into issue; nor does it permit the prosecution to attack his character in respect to the trait involved in the crime alleged at bar.  See Sharich, 297 Minn. at 23, 209 N.W.2d at 911 (holding that mere comments that defendant had prostituted on occasion did not permit inquiries into her sexual practices). 

It was error for the court to permit the prosecutor to elicit testimony that persons with HIV are more likely to masturbate.  See Minn. R. Evid. 402.  Circumstantial evidence should be admitted only if “in some degree it advances the inquiry.”  State v. Carlson, 268 N.S.2d 553, 559 (Minn. 1978).

Finally, even if the evidence was viewed as relevant, its probative value must also outweigh any danger of unfair prejudice.  Minn. R. Evid. 403.  Unfair prejudice has been defined as an undue tendency to suggest decision on an improper basis; or, the unfair advantage that results from the capacity of the evidence to persuade the jury by illegitimate means.  State v. Sanders, 376 N.W.2d 196, 200 n.2 (Minn. 1985);  State v. Bottl, 310 Minn. 331, 338, 246 N.W.2d 48, 53 n. 3 (1976).  Persons who are HIV positive often suffer from prejudicial treatment arising out of fear.  See, e.g., K.A.C v. Benson, 527 N.W.2d 553, 560 (Minn. 1995) (denying recovery to the patient of an HIV-infected doctor based on a fear of contracting HIV); State by Beaulieu v. Clausen, 491 N.W.2d 662, 668 (Minn. App. 1992) (finding that dentist had violated the Minnesota Human Rights Act when he refused to treat an HIV positive patient).  The relevancy of the testimony in this case is substantially outweighed by the prejudicial nature.  Accordingly, it was error for the trial court to permit the prosecutor to cross-examine Pinkal on his HIV status.

B.         Closing Argument

            Pinkal asserts that the trial court erred in permitting the prosecution to make a closing argument that included his religious beliefs and his status as a homosexual male with HIV.  Although defense counsel did not object to the prosecutor’s statements during the closing argument, appellate courts can reverse a conviction if statements are egregious enough and prejudicial enough.  See State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980) (finding that even if the attorney failed to object at trial, to preserve the issue, this court could review if error is sufficient); see also State v. Salitros, 499 N.W.2d 815, 820 (Minn. 1993) (stating the trial court retains option of reversing prophylactically or in interests of justice).

            The prosecutor's closing arguments must not "distract the jury from its proper role of deciding whether the state has met its burden."  State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997) (citation omitted).  But the prosecutor's argument "must be taken as a whole to determine if it provides a basis for reversal."  State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983) (citation omitted).

Based on the testimony elicited in his cross-examination, the prosecutor argued to the jury that:

I should also mention something for you to consider in terms of whether he engaged in public indecency.  We had heard defendant testimony that he is HIV positive.  Unfortunately, that disease is contagious or that virus is contagious.  And defendant told us that he does not want to spread the disease or the virus.  And, of course, that’s understandable; nobody would want to spread that virus.


He also told us then that masturbation is a safer form of sex. You’re not going to be able to pass on the HIV virus with masturbation because masturbation is, in essence, sex with yourself, so you’re not going to be able to pass the virus on to anyone.  That would give defendant a motive to masturbate.  And here he masturbated in a public spot, which is not permitted under the statutes.


In addition, the prosecutor argued:

So I would submit to you even though he is or was a Baptist and had those beliefs, that he doesn’t anymore, that his homosexuality is not accepted by his religion, so he’s not bound by what his religion told him to do and hence, that would not prevent him from masturbation in a public park.  His religion was not so strong that he would not use that as a reason why he would not masturbate in public.


Pinkal asserts that these statements improperly inflamed the passions and prejudices of the jury because (1) it preys upon the public’s fear of HIV; and (2) suggests that because homosexuality is rejected by his religion, it is therefore a sin and he a sinner.  Pinkal complains about two statements made in the context of a 20-page closing argument.  Therefore, this court cannot say that the closing argument was so egregious as and prejudicial as to warrant dismissal.  See State v. Glaze, 452 N.W.2d 655, 662 (Minn. 1990) (holding no error where potentially inappropriate remarks are brief and isolated).

Reviewing each of the claimed errors, Pinkal has not demonstrated that the cumulative effect of the errors was to deny him his constitutional right to a fair trial.   Here, any error by the trial court was harmless.  On direct examination, Pinkal introduced that he was a Baptist, homosexual, and HIV positive.  The inappropriate remarks made by prosecution in his closing argument were limited, taking the argument as a whole.             Furthermore, Pinkal’s argument, although not seriously contended, that the trial court also erred in allowing the state 15 motions in limine and to amend its complaint is without merit.  See State v. McRae, 494 N.W.2d 252, 259 (Minn. 1992) (holding that it is proper to bring a motion in limine to suppress evidence that relates to issues that have been previously decided upon or are only properly before a court pretrial); Minn. R. Crim. P. 17.05 (allowing state to amend complaint once jeopardy attaches). 

Accordingly, the cumulative impact of the errors at trial was not so great as to warrant a new trial.  See State v. Shoen, 598 N.W.2d 370, 377 (Minn. 1999) (reversal is not required if the court determines that the error is harmless). 


Discriminatory Enforcement Hearing

Pinkal argues that the trial court erred when it failed to order a discriminatory enforcement hearing.  There is no Minnesota case law that establishes which standard of review this court should apply in reviewing a trial court’s denial of a defendant’s motion for a pre-trial discriminatory enforcement hearing.  Because the decision to deny a discriminatory enforcement hearing is similar to an evidentiary ruling, this court should not overturn that decision absent an abuse of discretion.  See State v. Naylor, 474 N.W.2d 314, 318-19 (Minn. 1991) (holding admission of evidence is reviewed under the abuse of discretion standard).

Pinkal asserts that while the indecent conduct statute, section 617.23, applies to all persons, this neutral statute is selectively enforced against gay men.  The equal protection clause of the Fourteenth Amendment proscribes the discriminatory enforcement of nondiscriminatory laws.  City of Minneapolis v. Buschette, 240 N.W.2d 500, 502 (Minn. 1976) (citing Yick Wo v. Hopkins, 118 U.S. 356 6 S.Ct. 1064 (1886)). The defense of discriminatory enforcement is appropriately raised in a pretrial motion.  Buschette, 240 N.W.2d at 503 (Minn. 1976) (citing Sharich, 297 Minn. at 26, 209 N.W.2d at 913).  However, mere assertion of discriminatory enforcement does not entitle Pinkal to a pretrial hearing evidentiary hearing on the question of discriminatory enforcement of law.  State v. Hyland, 431 N.W.2d 868, 872-73 (Minn. App. 1988).  Rather, in order to trigger the pretrial hearing, a criminal defendant must “allege sufficient facts to take the question past the frivolous state and to raise a reasonable doubt as to the prosecutor’s purpose.”  Id. at 373.

To take a claim of discriminatory enforcement beyond the frivolous state, the defendant must allege facts which show that he was [1] singled out for enforcement, and [2] that his selection was invidious or in bad faith. 


Id. (citing State v. Russell, 343 N.W.2d 36, 37 (Minn. 1984)).  A claim may be taken beyond the frivolous state even if no affidavits have been submitted.  See Sharich, 297 Minn. at 26, 209 N.W.2d at 913 (holding that a pre-trial hearing may be held “if need be, and without the prior requirement of affidavits from prospective witnesses, who defendant claims are identified with that alleged state discriminatory conduct *** ”).

Here, the trial court abused its discretion when it held that a discriminatory enforcement hearing was not warranted.  The trial court found that in seeking a discriminatory enforcement hearing, Pinkal had presented the following evidence: (1) a list of all the indecent conduct citations issued by the City of St. Paul in the past three years, which showed a greater number of citations being issued in the Pieffer park area than issued in other areas of St. Paul; (2) an affidavit swearing to statements made by a St. Paul City Attorney that gay men convicted for indecent conduct should be compelled to register as sex offenders, and that the City Attorney’s Office no longer follows the previous practice of continuing such cases for dismissal and referring defendants to diversion programs; (3) an affidavit swearing to statements made by a former St. Paul Police Officer that heterosexuals are not charged for indecent conduct; and (4) newspaper articles that alleged discriminatory enforcement of the indecent conduct statute in areas like Pieffer beach where gay men tend to congregate.  Citing the evidence presented, the trial court concluded that the evidence, which was nothing “other than unattributed opinions” and a statistical report, fell “far short of meeting the burden that defendant shoulders in this case of proving discriminatory enforcement by a clear preponderance of the evidence.”

To be entitled to a pretrial discriminatory enforcement hearing, Pinkal must allege sufficient facts to take the question past the frivolous state, and to raise a reasonable doubt as to the prosecutor’s purpose, not prove discriminatory enforcement by a clear preponderance of the evidence.  Hyland, 431 N.W.2d  at 873.  Pinkal was not required to provide the court with affidavits, nor statistics in order to take the claim beyond the frivolous state.  See Sharich, 297 Minn. at 26, 209 N.W.2d at 913 (holding that pretrial hearing may be held without requirement of witness affidavit).  Because the trial court applied a higher standard when considering Pinkal’s pretrial motion than should have been applied, the trial court abused its discretion.

Pinkal needed to “take a claim of discriminatory enforcement beyond the frivolous state,” by alleging facts which show that he was (1) singled out for enforcement; and (2) that his selection was invidious or in bad faith.  Pinkal has done so.  Through statistical evidence, Pinkal has shown that there is a higher incidence of indecent conduct citations issued in an area where gay men tend to gather.  By way of affidavit, Pinkal demonstrated to the trial court that there are witnesses, who, if subpoenaed, should be able to testify that laws proscribing indecent conduct are selectively enforced against gay men because of anti-homosexuality sentiment.  Because Pinkal had alleged sufficient facts to take his claim of discriminatory enforcement beyond the frivolous state, he was entitled to a discriminatory enforcement hearing, his conviction is reversed, and this case is remanded for such a hearing.

Reversed and remanded.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.