Wednesday, August 8, 2018

The Meaning Of Presence And Online Pics

The Minnesota Supreme Court affirmed a conviction

Daniel Decker was convicted of fifth-degree criminal sexual conduct and indecent exposure for sending a picture of his genitals to a minor via Facebook Messenger. He appeals, arguing that he did not meet the “presence” requirement of either crime because he and the victim were in different physical locations, and because he only sent a likeness of his genitals, rather than exposing his actual genitals. We hold that Decker’s simultaneous electronic communications with a minor are sufficient to support his convictions.


In the summer of 2014, 14-year-old M.J. babysat for a couple that she met through her sister. During that same summer, Decker moved into the couple’s home, and he and M.J. became friends on Facebook. At the time, Decker was 34 years old, and was aware of M.J.’s age.

On September 8, 2014, Decker sent M.J. a video via Facebook Messenger at 12:51 a.m. The video showed only Decker’s face, and he asked M.J., “[W]hat’s up? Shouldn’t you be in bed by now?” Decker explained that he was “just kicking it” and “fixing to go to sleep,” and winked at the end of the video. Decker and M.J. then exchanged messages for roughly four minutes, until Decker informed her that he was going to finish “what [he] just started before [he] said hey.” When M.J. asked what he meant, Decker explained that he was referring to his nightly ritual to de-stress before falling asleep. M.J. thought that Decker was referring to smoking marijuana, but asked what his ritual was, and he responded, “[i]t’s embarrassing kinda.” M.J. did not respond to that message, but one minute later, Decker sent M.J. a picture of his erect penis.

The court found that the "presence" element of the crimes was established.

Justice Anderson dissented

The question presented in this appeal turns on the meaning of the phrase “in the presence of a minor.” Because the common and ordinary meaning of “presence” requires a shared physical location between the defendant and the minor, and there was no shared physical location here, I would reverse the convictions. The court’s contrary conclusion— that a photograph sent via a text message satisfies physical presence—does not square with relevant dictionary definitions or rules of grammar. And the conclusion is not consistent with the common and ubiquitous use of texting (and other means of electronic transmission) to send photographs of family members, athletic events, and other daily occurrences, precisely because the sender and the recipient are not in the same location.

The statutes at issue in this case—the fifth-degree-criminal-sexual-conduct statute and the indecent-exposure statute—prohibit a person from lewdly exposing or exhibiting his or her genitals “in the presence of a minor under the age of 16.” Minn. Stat. §§ 609.3451, subd. 1(2), 617.23, subds. 1(1), 2(1) (2016). Appellant Danial Decker and the child were not in the same physical location when the alleged crimes occurred. Instead, each was at their own home when Decker took a photograph of his genitals and sent it, via text message, to a 14-year-old girl. The plain meaning of the phrase “in the presence of a minor under the age of 16” requires the defendant and the child to be in the same physical location when the defendant exposes or exhibits his or her genitals. Decker’s conduct was certainly deplorable, but it did not violate either of these statutes. As a result, I respectfully dissent.

Chief Justice Gildea joined the dissent. (Mike Frisch)

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