This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-572

 

State of Minnesota,

Respondent,

 

vs.

 

Kenneth Stark,

Appellant.

 

Filed July 20, 2004

Reversed and remanded

Toussaint, Chief Judge

 

Dakota County District Court

File No. K2-03-2294

 

 

 

Mike Hatch, Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134; and

 

James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for respondent)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Halbrooks, Judge; and Anderson, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

TOUSSAINT, Chief Judge

            This appeal is from a conviction of felony fifth-degree criminal sexual conduct.  The district court denied appellant Kenneth Stark’s motion to dismiss the felony charge on the grounds that appellant’s 1992 Nebraska conviction for “sexual assault of a child” could not be used to enhance his Minnesota offense to a felony.  Because we conclude the Nebraska statute under which appellant was convicted was not “in conformity with” the relevant Minnesota statutes, we reverse and remand.   

D E C I S I O N

Appellant has been convicted of felony fifth-degree criminal sexual conduct under Minn. Stat. § 609.3451, subd. 3, which requires that a defendant have a previous conviction under subdivision 1, clause (2) of that statute, or under Minn. Stat. § 617.23, subd. 2(1), or under a “statute from another state in conformity with” either of those two Minnesota statutes.  Minn. Stat. § 609.3451, subd. 3 (2002).  Appellant argues that the Nebraska statute under which he was convicted is not a statute “in conformity with” either of the two Minnesota statutes.

Interpretation of a statute is a question of law subject to de novo review.  State v. Dendy, 598 N.W.2d 4, 6 (Minn. App. 1999), review denied (Minn. Sept. 28, 1999).

The felony fifth-degree criminal sexual conduct statute provides, in relevant part:

            Subdivision 1.  . . . A person is guilty of criminal sexual

            conduct in the fifth-degree:  . . .

 

(2)  [if] the person engaged in . . .  lewd exhibition of the

genitals in the presence of a minor under the age of 16, know-

ing or having reason to know the minor is present.

 

Subd. 3.  Felony.  A person is guilty of a felony . . .  if the

person violates subdivision 1, clause (2), after having 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).

Minn. Stat. § 609.3451 (2002) (emphasis added).  Minn. Stat. § 617.23, subd. 2(1) prohibits lewd exposure, or “open or gross lewdness or lascivious behavior,” or any other kind of “public indecency” in the presence of a minor under the age of 16.

            Appellant was charged with exposing himself to an eight-year-old girl near a park, in violation of Minn. Stat. § 609.3451, subd. 1(2).  The state alleged that appellant’s 1992 Nebraska conviction of criminal sexual assault of a child enhanced the offense to a felony under subdivision 3.[1]

            The Nebraska statute under which Stark was convicted in 1992 provided:

                        A person commits sexual assault of a child if he or she

                        subjects another person fourteen years of age or younger

                        to sexual contact and the actor is at least nineteen years

                        of age.

Neb. Stat. § 28-320.01(1) (1992) (emphasis added).  “Sexual contact” was defined as touching the victim’s intimate parts, either under or over the clothing, or causing the victim to touch the perpetrator’s intimate parts.  Neb. Stat. § 28-318(5) (1992).

            Thus, the Nebraska statute was not directed at exhibitionism or indecent exposure, as the Minnesota statutes at issue are, although it was intended to protect the same age group.  We conclude that the “in conformity with” requirement is not satisfied when statutes are generally aimed at the same type of conduct, here, inappropriate sexual behavior directed at children.

            There are no published cases construing the phrase “in conformity with,” as used in Minn. Stat. § 609.3451, subd. 3, or in the DWI statutes.  See Minn. Stat. § 169A.03, subds. 20(5), 21(4) (2002).  This court has addressed the issue of how to determine when out-of-state statutes are “similar” to Minnesota statutes for purposes of imposing life sentences on certain repeat sex offenders.  State v. Combs, 504 N.W.2d 248, 250-51 (Minn. App. 1993), review denied (Minn. Sept. 21, 1993); State v. Kornexl, 351 N.W.2d 26, 29 (Minn. App. 1984).  But statutes may be “similar” while not being “in conformity with” each other.

            “Sexual contact,” as required by the Nebraska statute, may be accomplished over the clothing and may involve no display or other use of the perpetrator’s intimate parts.  “[L]ewd exhibition of the genitals,” or indecent exposure, as prohibited by the Minnesota statutes, necessarily involves removal of at least part of the clothing of the perpetrator and some display of the perpetrator’s intimate parts.  We conclude that the Nebraska and Minnesota prohibitions are not “in conformity with” each other.  This conclusion recognizes that “sexual contact,” as required in Nebraska, could constitute “gross lewdness or lascivious behavior” under Minn. Stat. § 617.23, subd. 2(1).  But the presence of some congruence between statutes does not make them “in conformity with” each other.

            The factual summary of appellant’s 1992 Nebraska offense indicates appellant exposed himself to young children before and during the “sexual contact.”  But the facts underlying the offense do not alter the language of the statute under which appellant was convicted.  Under the plain and unambiguous language of Minn. Stat. § 609.3451, subd. 3, the only issue presented is whether the Nebraska statute under which appellant was convicted was “in conformity with” either of the two referenced Minnesota statutes.  See generally State v. Carpenter, 459 N.W.2d 121, 126 (Minn. 1990) (requiring the court to give effect to the plain and unambiguous language of the statute).  The legislature chose to enhance the sentences of those exhibitionists who repeatedly target minors under 16, as established by their criminal convictions.  Although appellant’s conduct in Nebraska may make him worthy of being treated as a recidivist exhibitionist, he was not convicted of violating a statute prohibiting that conduct.  And this court cannot supply language that the legislature has overlooked or purposely omitted.  State v. Coonrod, 652 N.W.2d 715, 723 (Minn. App. 2002), review denied (Minn. Jan. 21, 2003).

            We conclude that appellant’s felony conviction must be reversed and remanded for adjudication as a gross misdemeanor conviction and for resentencing.

            Reversed and remanded

           



[1] The pre-plea investigation lists a number of indecent exposure convictions from other states on appellant’s record.  The state, however, did not claim that any of these convictions satisfied the statutory requirement of a prior conviction under a statute “in conformity with” the Minnesota statutes.