Sean Michael Wocelka, petitioner, Appellant, vs. State of Minnesota, Respondent.
A22-1239
STATE OF MINNESOTA IN COURT OF APPEALS
Filed July 31, 2023
Ross,
Steele County District Court File No. 74-CR-15-2610
Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Daniel A. McIntosh, Steele County Attorney, Julia A. Forbes, Assistant County Attorney, Owatonna, Minnesota (for respondent)
Considered and decided by Bjorkman, Presiding Judge; Ross, Judge; and Reyes, Judge.
SYLLABUS
“Sexual contact” in Minnesota Statutes section 609.341, subdivision 11(a)(i) (2014), includes an actor touching a complainant’s intimate parts using a handheld object.
As we announced when we expressed our holding in State v. Ohrtman, 466 N.W.2d 1, 4 (Minn. App. 1991), in defining touching as “contact primarily by hand or fingers or other organ used for feeling,” we did not intend to say that touching is always so limited.
OPINION
ROSS, Judge
A jury found appellant Sean Wocelka guilty of second-degree criminal sexual conduct after his young daughter reported that he had touched her sexually using a children’s toy. He argues on appeal that the evidence is insufficient to support his conviction, maintaining that his behavior did not constitute “touching” because he used an object rather than part of his body. Wocelka did not directly appeal his conviction, but he argues that his late-filed petition for postconviction relief should be considered on the merits in the interests of justice. Because we hold that Wocelka’s sufficiency argument fails on the merits, we affirm the district court’s order denying his postconviction petition.
Teachers observed Sean Wocelka’s eight-year-old daughter, whom we will call Lisa to protect her privacy, exhibiting unusual behavior at school in December 2015. Teachers reported the behavior to child protective services and Lisa revealed that Wocelka had touched her sexually using a toy. She detailed in an interview that Wocelka touched her genitalia using a toy giraffe at night before she went to sleep. After she reported the abuse, police recovered the toy from Wocelka’s apartment. The state charged him with three counts of second-degree criminal sexual conduct.
Wocelka moved to dismiss the charges for lack of probable cause before trial, arguing that his behavior could not constitute “touching” because the state alleged that he used a toy rather than his hand or other body part. The district court denied the motion and the case proceeded to trial in January 2017. Lisa described the abuse at trial, testifying that
nearly every night she stayed at his apartment beginning when she was about five years old through when she was eight years old, Wocelka would enter the bedroom where she slept. She said that she wore a diaper overnight, and she testified that he repeatedly lifted her diaper and touched her genitalia with the toy giraffe.
The jury found Wocelka guilty of the second and third charged counts, which were based on incidents occurring between November 27 and December 22, 2015. The district court convicted Wocelka in May 2017 of count three alone. It sentenced him to serve a 36-month prison term, stayed on probationary conditions. The district court did not inform Wocelka of his right to appeal his sentence or his right to free representation of counsel in an appeal.
Wocelka violated his probation in May 2018 and May 2019. The district court executed his 36-month sentence after a violation hearing in June 2019. Wocelka filed a postconviction-relief petition two years later in June 2021, arguing as he did before trial that his behavior did not constitute “touching” under the second-degree criminal-sexual-conduct statute. He asked the district court to consider his petition despite his having filed it after the statutory deadline, arguing that the interests of justice required it because he had not been informed of his right to directly appeal until he was represented by counsel during his probation-violation proceedings and because he was unaware of his right to file a postconviction-relief petition until he entered prison in June 2019. The district court rejected Wocelka’s petition based both on its tardiness and on its merits.
Wocelka appeals.
ISSUE
Does an actor’s touching a complainant’s intimate parts with a handheld object constitute “touching” under the sexual-contact definition in
ANALYSIS
Wocelka argues on appeal that the district court erroneously determined both that the interests-of-justice exception to the postconviction-petition deadline does not apply and that his petition fails on the merits. Because we conclude that the petition fails on the merits, we do not address his deadline-exception argument.
Wocelka’s postconviction petition rests on his theory that the evidence introduced at trial was insufficient to support a conviction of criminal sexual conduct. When an appellant challenges the sufficiency of the evidence, we generally review the record “to determine whether the evidence, when viewed in the light most favorable to the conviction,” allows a jury to
Wocelka contends that his conduct cannot constitute “sexual contact” within the statutory framework of criminal sexual conduct. A person is guilty of second-degree criminal sexual conduct when he “engages in sexual contact with another person” under
statutorily defined circumstances, including that the complainant is under 13 years old and the offender is more than 36 months older than she is.
Wocelka invites us to adopt a stilted interpretation of the term “touching.” We interpret statutes to determine the legislative intent, and we determine legislative intent from the statute’s unambiguous language. Douglas v. State, 973 N.W.2d 925, 927 (Minn. App. 2022), aff’d, 986 N.W.2d 705 (Minn. 2023). This approach comports with the legislative urging for us to discern meaning based only on “the words of a law in their application to an existing situation” when the words are clear and unambiguous. Minn. Stat. § 645.16 (2022). For the following reasons, we understand touching in the context of second-degree criminal sexual conduct to include Wocelka’s intentionally pressing the handheld object against the child’s genitalia.
The legislature used plain and simple terms in the statute describing “sexual contact.” We can understand the scope of the touching that constitutes sexual contact by looking first at the ordinary meaning of the word “touching” and especially by considering the word in the context of the two phrases that modify it.
The legislature defined “sexual contact” to mean “touching” in 1975, and the relevant definition has remained unchanged. 1975 Minn. Laws ch. 374, § 2, at 1245. (“‘Sexual contact’ includes . . . [t]he intentional touching by the actor of the complainant’s intimate parts . . . .”). At that time, the word “touch” had two basic definitions relevant here. It meant “[t]o cause or permit a part of the body to come in contact with so as to feel,” which closely resembles the definition Wocelka urges us to apply exclusively. See The American Heritage Dictionary of the English Language 1357 (1980 ed. 1969). But it also meant “[t]o bring something into contact with.” Id. This is the part Wocelka would have us ignore. Nothing in the statutory language or what we can presume was generally understood about the broad and deviant imagination of sex offenders would lead us to suppose that the legislature intended only the first definition and not the second. We are confident that the word “touch” is generally understood to carry the broad meaning that Wocelka resists. Imagine a sign at the entry of a museum’s porcelain sculpture exhibit: “Do Not Touch.” Would any patron think it means, “Do Not Touch Using Any Part of Your Body but Swing Your Umbrella Freely?”
Recognizing that the common meaning of “touching” has broad application informs our decision, but we find further support from the context. Here we consider the word in relation to the two prepositional phrases that immediately follow and modify it: “by the actor” and “of the complainant’s intimate parts.”
It is true that, unlike the “sexual contact” definition, the “sexual penetration” definition in the next subdivision of the same section expressly includes the use of “any object” to commit the criminal offense.
various forms, including, among other violating behavior, “any part of the actor’s body or any object used by the actor” being applied for oral–genital contact with or genital or anal intrusion of the victim. Id. If the statute had instead defined “sexual penetration” with the terms it used to define “sexual contact,” one might mistakenly infer that the legislature meant to limit unlawful “sexual penetration” only to the common meaning, forced intercourse. “Touching” carries no similar limiting inference.
The statutory context leads to an additional point. The legislature instructs that, “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn. Stat. § 645.16. But the most satisfying statutory interpretations are those that find the letter and spirit in harmony. And in this case, the letter and the spirit align only under our interpretation, not Wocelka‘s. It is self-evident that, in spirit, the statute seeks to prohibit nonconsensual sexual contact. It would be absurd, then, when construing the letter of the law, to read
We are not persuaded otherwise by Wocelka‘s reliance on our decision in State v. Ohrtman, 466 N.W.2d 1. In Ohrtman, we affirmed the district court‘s order dismissing a complaint against a pastor charged with fourth-degree criminal sexual conduct after he hugged a parishioner during a counseling session. 466 N.W.2d at 1. We considered whether a hug, without more, is “touching” under the statutory definition of “sexual contact.” Id. at 3 (interpreting Minnesota Statutes section 609.341, subdivision 11(a)(i) (1990), which contains identical language to the 2014 version of the statute analyzed here). In determining that the hug in that case was not the kind of “touching” the statute prohibited, we looked to the dictionary definition, but we expressly restrained our holding, saying that “[i]t seems appropriate . . . in this circumstance to limit touching to contacts designed primarily to create the sensory feeling of touch.” Id. at 4 (emphasis added). We were careful to avoid suggesting that our holding should apply outside the hugging context:
An interpretation of touching which requires contact primarily by hand or fingers or other organ used for feeling, like mouth or penis, seems the likely legislative intent. It also seems likely the legislature meant to limit unlawful touching to conduct that, unlike hugging, has no analogue of polite conduct. To so limit the meaning of touching also avoids most vagueness problems. We do not now say that touching is always so limited, but we can say that the chest is not a part of the body generally used to reach out for purposes of “feeling.” The inclusion of contact with chest within touching seems too intrusive; in this case it goes too far. To make touching include hugs, and thereby to make hugging criminal sexual conduct, raises in our view excessive vagueness in the context of this case.
Id. (emphasis added). By emphasizing that it “seems likely the legislature meant to limit unlawful touching to conduct that, unlike hugging, has no analogue of polite conduct,” we were implicitly defining an unambiguous statutory term within its “application to an existing situation.” See Minn. Stat. § 645.16. Wocelka‘s sexually contacting the child using a plastic toy, unlike hugging a person, “has no analogue of polite conduct.” Indeed, its only close analogue is to criminal sexual conduct, since, as we have seen, illegal sexual penetration includes intrusion of a child‘s vagina using any object.
DECISION
Because Wocelka‘s postconviction petition fails on the merits, we do not address the district court‘s other reason for rejecting the petition. We affirm the district court‘s order refusing to grant postconviction relief.
Affirmed.