This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-01-1047

 

 

State of Minnesota,

Respondent,

 

vs.

 

Mark Allen Sihler,

Appellant.

 

Filed April 9, 2002

Affirmed

Robert H. Schumacher, Judge

 

Clay County District Court

File No. KX001545

 

 

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Lisa Borgen, Clay County Attorney, Clay County Courthouse, Post Office Box 280, Moorhead, MN 56561 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Schumacher, Presiding Judge, Hanson, Judge, and Huspeni, Judge.*

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Mark Allen Sihler challenges his conviction of two counts of fifth-degree criminal sexual conduct, contending that the evidence was insufficient and that the convictions were improperly enhanced from gross misdemeanors to felonies. We affirm.

FACTS

On August 26, 2000, S.S. and her brother A.S. went to the Moorhead Public Library with their parents. After entering the library, S.S. and A.S. went into the children's section to look at books. In the children's section, they saw a man kneeling down and "wiggling his penis." The man could be seen between a gap in the books. S.S. observed the man place his penis on a book. A.S. saw the man "wiggling his penis to find a book." The children reported to their father what they had seen. Their father then asked a librarian to call the police.

Shortly thereafter, officer Bryce Forsythe arrived on the scene, talked to S.S. and her father, and received a description of the suspect. Subsequently, Forsythe searched the library and found a person matching the description. This person was identified as Sihler and he was arrested. S.S. testified that she had also seen Sihler exposing himself in the children's section on a prior occasion. Based on the receipts his family had from previous library visits, the father thought that the prior incident had occurred on August 2, 2000.

A jury found Sihler guilty of two counts of fifth-degree criminal sexual conduct. Fifth-degree criminal sexual conduct is normally considered to be a gross misdemeanor. Minn. Stat. 609.02, .3451, subd. 2 (2000). The convictions, however, were enhanced to felonies in accordance with subdivision 3 of section 609.3451 because Sihler had a previous out-of-state conviction for a similar offense.

D E C I S I O N

1. Sihler contends the evidence at trial was insufficient to support his conviction. When considering a claim of insufficient evidence, this court's review is limited to the painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach their verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We must assume that the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

The evidence in the record supports the jury's verdict. S.S.'s description at trial of the man whom she saw "wiggling his penis" closely matches Sihler's appearance on the day of the incident. While there were some discrepancies between S.S.'s description and Sihler's appearance, these discrepancies are minor. See State v. Yang, 627 N.W.2d 666, 673 (Minn. App. 2001) ("Any discrepancy regarding the description of appellant's clothing is minor."), review denied (Minn. July 24, 2001). Also, S.S.'s father testified that when his children ran up to him to tell him what they had seen, he saw a man walking rapidly towards the back of the library. The father's description of the man he saw matched S.S.'s description and Sihler's appearance. Moreover, a library surveillance tape was played at trial that showed Sihler, at various times after the time of the incident, in the back of the library kneeling down and leaning forward behind bookshelves. Viewing the evidence in the light most favorable to the convictions, there was sufficient evidence to allow the jury to find beyond a reasonable doubt that Sihler committed two counts of fifth-degree criminal sexual conduct as charged.

2. Sihler also contends the district court erroneously enhanced his gross misdemeanor convictions to felony convictions. Sihler was convicted of two counts of fifth-degree criminal sexual conduct in violation of Minn. Stat. 609.3451 (2000), which states:

A person is guilty of criminal sexual conduct in the fifth degree:

(1) if the person engages in nonconsensual sexual contact; or

(2) the person engages 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.

 

Minn. Stat. 609.3451, subd. 1. While violation of this statute is normally a gross misdemeanor, the statute allows a conviction to be enhanced to a felony if the guilty party has been previously convicted of violating "a statute from another state in conformity with subdivision 1, clause (2), or section 617.23, subdivision 2, clause (1)." Id., subd. 3. Sihler was convicted in 1994 by a Pennsylvania court for grabbing the buttocks of a 15-year-old girl in 1989 without her consent, in violation of 18 Pa. Cons. Stat. Ann.  3126.

An out-of-state statute is in conformity with a Minnesota statute when the statutes are substantively similar. State v. Combs, 504 N.W.2d 248, 250 (Minn. App. 1993), review denied (Minn. Sept. 21, 1993); State v. Kornexl, 351 N.W.2d 26, 27-28 (Minn. App. 1984). The "statutes need not be congruent; it is necessary only that both cover the prior offense." Combs, 504 N.W.2d at 250-51. Every action included within the out-of-state statute need not be included within the Minnesota statute. Id. at 250. Contemporaneous evidence of the nature of the prior offense may also be examined. Cf. Hill v. State, 483 N.W.2d 57, 61-62 (Minn. 1992) (holding that, in deciding whether out-of-state convictions can be treated as felonies for determining sentencing guidelines criminal-history score, court may look to definition of offense, nature of offense, and sentence received).

Among other things, subdivision 2(1) of section 617.23 prohibits persons from willfully and lewdly exposing private body parts or engaging in "any open or gross lewdness or lascivious behavior" in the presence of a minor under the age of 16. This court has previously held that the touching of the buttocks through clothing constituted lewd or lascivious behavior in violation of section 617.23. City of Mankato v. Fetchenhier, 363 N.W.2d 76, 79 (Minn. App. 1985). Thus, it is clear that section 617.23 also covers the prior Pennsylvania offense.

Sihler, however, argues that 18 Pa. Cons. Stat. Ann. 3126 is not in conformity with section Minn. Stat. 617.23 because at the time of his previous conviction the Pennsylvania statute did not proscribe conduct involving minors. While Sihler is correct that in 1989, 18 Pa. Cons. Stat. Ann. 3126 did not specifically proscribe conduct involving minors, he fails to mention that concurrent with his conviction for violating 18 Pa. Cons. Stat. Ann. 3126, he was also convicted for corruption of minors in violation of 18 Pa. Cons. Stat. Ann. 6301. This statute prohibited conduct that "corrupts or tends to corrupt the morals of any minor less than 18 years of age."

Both Pennsylvania statutes, read together, are clearly in conformity with the Minnesota statute. It is also clear that Sihler's underlying conduct, which resulted in the previous convictions, is such that it would be a violation of Minnesota law. The district court did not err by enhancing Sihler's conviction to a felony.

Sihler also argues that even if his prior conviction qualifies for the purposes of enhancement, it cannot be used for enhancement in this case because Minnesota did not have a statute in effect in 1989 that proscribed fifth-degree criminal sexual conduct or indecent exposure in the presence of a minor under the age of 16. Whether Sihler's previous conduct would have been in violation of a Minnesota statute at that time is irrelevant. The clear language of section 609.3451, subdivision 3, provides that for purposes of enhancement, the question is whether the out-of-state statute is in conformity with the current version of section 617.23. When the Minnesota legislature added the enhancement provision to section 609.3451 in 1996, Sihler was put on notice that his Pennsylvania conviction could be used for enhancement.

3. Finally, we have reviewed the additional arguments raised in Sihler's pro se supplemental brief and find them to be without merit.

Affirmed.



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