This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Daniel John Shetka,



Filed October 29, 2002


Hudson, Judge


Ramsey County District Court

File No. K7011964


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


Susan Gaertner, Ramsey County Attorney, Tracy Thompson Braun, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102-1657 (for respondent)


John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Peterson, Presiding Judge, Anderson, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Daniel John Shetka argues that, as a matter of law, evidence that he partially exposed himself in the presence of his girlfriend’s eight-year-old daughter was insufficient to satisfy the elements of fifth-degree criminal sexual conduct (masturbation or lewd exhibition of the genitals).  Because we conclude that appellant’s conduct met the statutory elements of Minn. Stat. § 609.3451, subd. 1(2) (2000), we affirm.


            While seated next to eight-year-old R.M.S., Shetka placed his hand inside his pants and “play[ed] with himself,” moving his hand around over the area of his penis.  R.M.S. told Shetka, “[s]top messing with yourself,” and continued watching television.  About five minutes later, R.M.S. observed that Shetka was still rubbing his now-exposed penis.  R.M.S. said, “[p]ull your pants up.”  Shetka stopped and left the room without comment.

            Four days later, R.M.S. was evaluated at Midwest Children’s Resource Center.  She told the evaluator that out of the corner of her eye, she saw Shetka “playing with himself like this” (indicating scratching motion to groin area). R.M.S. also stated that Shetka had his

hand in his pants wiggling [his penis around] and then he pulls up [his penis].  I told him to pull his pants up and he pulled ’em up to there, * * * then he walked upstairs.


The evaluator asked R.M.S. to draw a line on an anatomically correct doll showing where Shetka’s pants were, and she drew a line showing that Shetka’s pants were below the waist area and stated that “[t]hen he pulled his penis up, messing around with it and stuff.” 

            The trial court found Shetka guilty of fifth-degree criminal sexual conduct, finding that Shetka “exposed his penis to R.M.S. while beginning to masturbate.”  The trial court concluded that “[Shetka’s] exhibition of his penis to [the victim] was lewd, deliberate and done while [Shetka] was masturbating.”  Shetka does not challenge the evidence presented to the trial court or the court’s factual findings, but rather the legal conclusion that Shetka was masturbating.


            We interpret statutory construction as a question of law.  State v. Larson, 605 N.W.2d 706, 713 (Minn. 2000).   Whether conduct violates a criminal statute is a matter of statutory construction.  State v. Tomlin, 622 N.W.2d 546, 548 (Minn. 2001).  We construe a criminal statute by its plain language.  State v. Colvin, 645 N.W.2d 449, 452 (Minn. 2002).  We are guided by the “natural and most obvious meaning” of statutory language.  State v. Richardson, 633 N.W.2d 879, 884 (Minn. App. 2001). “Accordingly, the plain meaning and language of a statute will normally end our inquiry.”  Larson, 605 N.W.2d at 714. 

            Shetka argues that his conduct does not violate Minn. Stat. § 609.3451, subd. 1(2) because there was no evidence that his penis was erect or that he touched his penis with the intent to gratify his sexual desires.  We disagree.  Minn. Stat. § 609.3451, subd. 1(2) provides:

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

[if] 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.


American Heritage Dictionary defines “masturbation” as “excitation of the genital organs, usually to orgasm, by means other than sexual intercourse.”  American Heritage Dictionary 1016 (3d ed. 1992). 

            First, nothing in Minn. Stat. § 609.3451, subd. 1(2) requires that the state prove Shetka’s penis was erect.  Second, the fact-finder infers intent from the defendant’s behavior and surrounding circumstances.  State v. Whisonant, 331 N.W.2d 766, 768 (Minn. 1983).  Here, the stipulated facts support the trial court’s finding that Shetka exposed his penis while masturbating in R.M.S.’s presence.  R.M.S. reported that Shetka “play[ed] with himself,” and moved his “hand in his pants wiggling [his penis around] and then he pulls up [his penis].”  Shetka does not contest that he exposed his penis during this incident.  Shetka’s self-stimulation, that is rubbing his penis with his hand inside his pants, is commonly understood as “masturbation.”  Applying a plain reading of this word, we hold that Shetka’s conduct constitutes fifth-degree criminal sexual conduct, a violation of Minn. Stat. § 609.3451, subd. 1(2) (prohibiting masturbation in presence of minor).