This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994)

                          State of Minnesota
                            in Court of Appeals

     State of Minnesota


Richard Henry Scheffler,

Filed October 15, 1996
Affirmed in part, Reversed in part and Remanded
Schumacher, Judge

Kandiyohi County District Court

File No. TX95002310

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota
Street, St. Paul, MN 55101 (for Respondent)

Richard L. Ronning, Willmar City Attorney, 401 Southwest Fifth Street, Post
Office Box 971, Willmar, MN 56201 (for Respondent)

Maureen Williams, Barristers Trust Building, 247 Third Avenue South,
Minneapolis, MN 55415 (for Appellant)

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief
Judge, and Klaphake, Judge.

                        Unpublished Opinion

SCHUMACHER, Judge (Hon. Donald M. Spilseth, District Court Trial

Richard Henry Scheffler appeals from a conviction for indecent exposure and
disorderly conduct, arguing the evidence was not sufficient to support the
verdicts, and the trial court erred in ordering him to provide a DNA sample
and in sentencing him to concurrent sentences for the same behavioral
incident. We affirm in part, reverse in part, and remand.


On May 30, 1995, Scheffler was shopping at Center Point Mall in Willmar.
Scheffler entered Ken's Casuals where Pamela Jo Klein was working.
Scheffler was wearing a shirt and shorts but no underwear. Scheffler walked
around the store, shopping and talking with Klein. During his time in Ken's
Casuals, the zipper to Scheffler's shorts was completely unzipped. Klein
thought Scheffler was exposing himself and called the police from the store

One witness testified that she saw Scheffler's zipper was open, but could
not see his private parts. Another witness testified she saw Scheffler, but
that she did not see if the zipper was down. Scheffler then went into
Erickson's Furniture store, where a third witness testified he saw
Scheffler's open zipper. When he told Scheffler his zipper was down,
Scheffler zipped it up, saying, ``Oh, my gosh.'' The police found Scheffler
in Erickson's and arrested him for indecent exposure and disorderly

In Klein's statement to police and trial testimony, she said Scheffler's
open fly was in the shape of an ``O'' approximately five or six inches in
diameter and that his private parts were ``most[ly] * * * outside of the
shorts.'' Klein stated she thought Scheffler was intentionally exposing
himself to her because he tried to face her at every opportunity and stood
in front of a three-way mirror for several seconds.

Scheffler testified that he did not wear underwear because he was going to
a massage therapist for treatment of an injury. Scheffler testified he did
not know his zipper was open and that he did not intend to expose himself.
Scheffler argued that the large quantity of cash and change he was carrying
in his shorts pockets made the zipper unintentionally gape open.

Scheffler's expert psychological witness, Dr. Edmund Nadolny, testified
that Scheffler did not fit the profile of an exhibitionist because he did
not have any indications of past similar behavior. Dr. Nadolny testified
that Scheffler did not have any level of impairment or stressors to
indicate such behavior. Dr. Nadolny testified exhibitionists usually
masturbate or seek some other sexual relief, but that Scheffler did not.

The jury found Scheffler guilty of indecent exposure and disorderly
conduct. Scheffler was given concurrent sentences and ordered to provide a
biological sample for DNA testing. Scheffler appeals.

1. Evidence is sufficient to support a conviction if, given the facts in
the record and any legitimate inferences to be drawn from those facts, a
jury could reasonably find that the defendant committed the crime. State
v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995). This court reviews the
evidence in the light most favorable to the verdict and assumes that the

jury believed the state's witnesses and disbelieved any evidence to the
contrary. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). The
jury determines the weight and credibility of witnesses' testimony.
State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

Indecent exposure is ``willfully and lewdly expos[ing] [a] person's body,
or the private parts thereof * * *'' in any public place. Minn. Stat.
𨻁.23 (1994).

Here, the evidence and testimony support an inference that Scheffler
intentionally exposed himself. Klein testified that Scheffler's private
parts were exposed and hanging out of his zipper and that he tried to face
her at every opportunity. She also testified that he must have known his
private parts were hanging out because he faced a three-way mirror for a
number of seconds. Two other witnesses also testified that Scheffler's
zipper was down. The jury was in the best position to weigh the evidence
and the witnesses' credibility, and it could have reasonably found that
Scheffler committed the offense.

Scheffler also argues the evidence is insufficient to support the
conviction for disorderly conduct. A person is guilty of disorderly conduct
if the person engages in offensive or obscene conduct
        in a public or private place, * * * knowing, or
        having reasonable grounds to know that it will, or
        will tend to, alarm, anger or disturb others or
        provoke an assault or breach of the peace * * *.

Minn. Stat. 𨺹.72, subd. 1(3) (1994). Based on the above analysis,
the jury could have reasonably found Scheffler committed the offense.

Scheffler's conviction for disorderly conduct, however, was based on the
same behavioral incident as the indecent exposure conviction. See
Minn. Stat. 𨺹.035, subd. 1 (1994) (defendant may only be sentenced
for one crime based on same behavioral incident). We remand to the trial
court to vacate one of the sentences.

2. The trial court ordered Scheffler to provide a biological specimen for
DNA analysis. The requisite statute says that the trial ``court shall order
[upon sentencing] an offender to provide a biological specimen for the
purpose of DNA analysis'' when

(1) the court sentences a person charged with violating or attempting to
violate section 609.342, 609.343, 609.344, or 609.345, [first through
fourth degree criminal sexual conduct] who is convicted of violating one of
those sections or of any offense arising out of the same set of

(2) the court sentences a person as a patterned sex offender under section
609.1352; * * *

Minn. Stat. 𨺹.3461, subd. 1 (1994).

The statute is specific. Scheffler was not convicted of one of the
enumerated offenses. We conclude it was an abuse of discretion for the
trial court to order the DNA sample, and that part of the sentencing order
is reversed.
Affirmed in part, reversed in part, and remanded.