State of Minnesota,
Respondent,

vs.

Rodney Lee Erickson,
Appellant.

St. Louis County District Court
File No. T9-98-603069

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

William P. Dinan, Duluth City Attorney, Mary E. Asmus, Assistant City Attorney, 410 City Hall, Duluth, MN 55802 (for respondent)

Thomas M. Kelly, Julie A. Matonich, Kelly & Jacobson, 220 South 6th Street, Suite 215, Minneapolis, MN 55402 (for appellant)

Considered and decided by Lansing, Presiding Judge, Willis, Judge, and Halbrooks, Judge.

HALBROOKS, Judge

Appellant Rodney Lee Erickson appeals from his conviction of indecent exposure and disorderly conduct. Erickson contends that there is insufficient evidence to support the convictions. We affirm.

Appellant Rodney Erickson was arrested on February 26, 1998, for an indecent-exposure incident that occurred at a motel in Duluth, Minnesota. The incident was witnessed by at least two individuals. Both of the witnesses testified at trial. Erickson was staying in a poolside room at the motel. The incident occurred while the witnesses were in the pool area and Erickson was standing unclothed in front of the large window in his room that overlooked the pool area.

Prior to trial, the state added a charge of disorderly conduct. Following a two-day trial, the jury returned guilty verdicts on both the indecent exposure and disorderly conduct counts.

D E C I S I O N

Erickson argues on appeal that there is insufficient evidence to sustain his convictions. This court’s review is

limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.

State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989) (citation omitted). We assume "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) (citation omitted). It is within the jury’s power to determine "[t]he weight and credibility of the testimony of the individual witnesses." Id.

Erickson was convicted of one count of indecent exposure in violation of Minn. Stat. § 617.23 (1998). That statute provides that a person is guilty of a misdemeanor if he "willfully and lewdly exposes the person’s body, or the private parts thereof" in a public place or where others are present. Minn. Stat. § 617.23, subd. 1(1). Erickson does not deny that the witnesses saw his unclothed body. Rather, he contends that there is insufficient evidence to prove that he had the "deliberate intent of being indecent or lewd." State v. Peery, 224 Minn. 346, 351, 28 N.W.2d 851, 854 (1947).

Erickson relies heavily on Peery and contends that it is factually analogous to his case. In Peery, the defendant was alleged to have exposed himself to others from inside his ground-floor college-dormitory room. Id. at 348, 28 N.W.2d at 853. The court held that the exposure was accidental and not intended to be indecent or lewd. Id. at 353, 28 N.W.2d at 855. We find Peery, however, to be distinguishable from this case.

Unlike the defendant in Peery, Erickson was not simply changing his clothes when the witnesses observed him. He made a conscious decision to stand on a chair, while fully unclothed, in front of the large window that faced the pool area. It was reasonable for the jury to conclude on the basis of Erickson’s actions that he desired and expected to be seen.

Furthermore, there was evidence introduced at trial that supports the jury’s determination that Erickson intended to be indecent or lewd. One of the witnesses testified that she saw Erickson’s hand on his genitals moving "up and down." The other witness testified that Erickson was holding his genitals and that as she walked by his room he stared at her and did nothing to retreat from the situation.

Viewing all of the evidence presented at trial in the light most favorable to the conviction, there is sufficient evidence to support the conviction of indecent exposure.

Erickson was also convicted of disorderly conduct in violation of Minn. Stat. § 609.72, subd. 1(3) (1998). That statute prohibits one from engaging in "offensive [or] obscene * * * conduct * * * tending reasonably to arouse alarm, anger or resentment in others." Id.

The question of whether particular conduct constitutes disorderly conduct depends on the facts and circumstances of each case. State v. Klimek, 398 N.W.2d 41, 43 (Minn. App. 1986). The conduct must have a reasonable tendency to alarm, anger, or disturb others. State v. Korich, 219 Minn. 268, 271, 17 N.W.2d 497, 498 (1945). Additionally, some member of the public must in fact be disturbed. In re M.A.H., 572 N.W.2d 752, 757 (Minn. App. 1997). The state contends that Erickson’s conduct had a reasonable tendency to alarm, anger, or disturb other guests at the motel and that the two witnesses were in fact disturbed.

The evidence presented at trial was sufficient for the jury to conclude that people could be, and in fact were "disturbed or provoked to resentment" by Erickson’s actions. State v. Reynolds, 243 Minn. 196, 200, 66 N.W.2d 886, 889 (1954) (citations omitted). The conviction of disorderly conduct, therefore, is also affirmed.

Affirmed.