                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-0307

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                               Joseph Nickolas Mousel,
                                      Appellant.

                               Filed January 20, 2015
                                      Affirmed
                                  Connolly, Judge

                            Dakota County District Court
                            File No. 19AV-CR-12-5402


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Alina Schwartz, Campbell Knutson, P.A., Lakeville City Attorney, Eagan, Minnesota
(for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Stephen L. Smith, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Connolly, Presiding Judge; Halbrooks, Judge; and

Bjorkman, Judge.
                        UNPUBLISHED OPINION

CONNOLLY, Judge

      On appeal from his convictions of indecent exposure and disorderly conduct,

appellant argues that insufficient evidence exists to sustain his conviction of indecent

exposure. Appellant also raises multiple issues in his pro se supplemental brief. Because

we hold that the evidence presented at trial is sufficient to sustain appellant’s indecent-

exposure conviction and that appellant’s pro se arguments are unpersuasive, we affirm.

                                         FACTS

      On March 13, 2012, at approximately 5:30 p.m., M.M. and E.R. were taking care

of a child in the nursery of Hosanna Lutheran Church in Lakeville, Minnesota. Shortly

after starting to work in the nursery, E.R. saw appellant Joseph Mousel “standing fairly

unusually close to the window with his pants down to his knees . . . and facing the other

direction.” E.R. pointed the man out to M.M., and M.M. also saw Mousel “standing

outside the window with his pants around his knees.” E.R. saw Mousel’s buttocks, and

M.M. saw his genitals. Mousel was standing approximately two feet away from the

window and five feet from where M.M. and E.R. were standing inside of the nursery.

Mousel was standing in an area with landscaping rocks and no sidewalk.

      M.M. and E.R. observed Mousel by the window with his pants down for 30 to 45

seconds before M.M. left the nursery to notify a supervisor. Before she left the nursery,

Mousel made eye contact with M.M. for five seconds, which made her feel

“uncomfortable.” E.R. stayed in the nursery with the child and saw Mousel wander




                                            2
around outside with his pants around his knees for three to four minutes and then attempt

to partially pull up his pants.

       When M.M. returned to the nursery, Mousel was no longer standing by the

window. M.M. and E.R. then saw Mousel drive away from the church in a red pick-up

truck. Mousel drove by the nursery on a one-way road, slowed down, and looked directly

at M.M. and E.R. inside of the nursery. Mousel maintained eye contact with them as he

drove away. E.R. testified that the eye contact from Mousel was not “an accident,” but

instead “an intentional, not-okay kind of thing.” M.M. said that the eye contact made her

feel “uncomfortable” and “suspicious.” E.R. thought that Mousel signaled his middle

finger at M.M. and E.R. as he drove away. After Mousel left the church’s property, both

M.M. and E.R. gave statements to the police reporting what they observed.

       Respondent State of Minnesota charged Mousel with indecent exposure and

disorderly conduct. See Minn. Stat. §§ 609.72, subd. 1, 617.23, subd. 1, 1(1) (2010). The

district court held a jury trial on the charges in October of 2013. M.M. and E.R. testified

at trial about their observations of Mousel, and the district court admitted their statements

to the police into evidence. Two Lakeville police officers also testified about their

investigation of the case, and Mousel testified in narrative form in his own defense that

he suffered from a “clothing malfunction” caused by medical problems with his back.

       The jury found Mousel guilty of indecent exposure and disorderly conduct. In

December of 2013, the district court sentenced Mousel on the indecent-exposure




                                             3
conviction, ordering him to serve an executed sentence of 90 days in jail, pay a fine of

$500, and a surcharge of $80.1 This appeal follows.

                                       DECISION

I.       Sufficiency of the Evidence

         Mousel asserts that “[t]he state’s evidence here fails to prove beyond a reasonable

doubt that Mousel wil[l]fully and lewdly exposed private parts of his body.” The state

responds that sufficient evidence exists in the record to support Mousel’s conviction of

indecent exposure, and we agree.

         When reviewing the sufficiency of the evidence supporting a conviction, our

review is limited to a painstaking analysis of the record to determine whether the

evidence, when viewed in the light most favorable to the conviction, is sufficient to allow

the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn.

1989). We review a sufficiency-of-the-evidence claim by determining whether legitimate

inferences drawn from the record evidence would allow a fact-finder to conclude that the

defendant was guilty beyond a reasonable doubt. State v. Pratt, 813 N.W.2d 868, 874

(Minn. 2012).      We assume “that the jury believed all of the state’s witnesses and

disbelieved any evidence to the contrary.” State v. Chambers, 589 N.W.2d 466, 477

(Minn. 1999). This court will not disturb the verdict if the jury, acting with due regard

for the presumption of innocence and the requirement of proof beyond a reasonable

doubt, could reasonably conclude the defendant was guilty of the charged offenses.

Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004). However, “[r]eversal is

1
    The district court did not pronounce sentence on the other charge.

                                               4
proper if facts proving an essential element . . . are left more to conjecture and

speculation than to reasonable inference.” State v. DeRosier, 695 N.W.2d 97, 108 (Minn.

2005).

         The jury convicted Mousel of indecent exposure under Minn. Stat. § 617.23,

subd. 1 (2010), which states:

               A person who commits any of the following acts in any
               public place, or in any place where others are present, is
               guilty of a misdemeanor:

                      (1) willfully and lewdly exposes the person’s body,
               or the private parts thereof;
                      (2) procures another to expose private parts; or
                      (3) engages in any open or gross lewdness or
               lascivious behavior, or any public indecency other than
               behavior specified in this subdivision.

         To prevail in a prosecution for indecent exposure, the state must show that the

charged conduct “was committed with the deliberate intent of being indecent or lewd.”

State v. Stevenson, 656 N.W.2d 235, 240 (Minn. 2003) (quoting State v. Peery, 224

Minn. 346, 351, 28 N.W.2d 851, 854 (1947)). “Lewd” means “obscene” or “openly

lustful or indecent.” State v. Botsford, 630 N.W.2d 11, 17 (Minn. App. 2001), review

denied (Minn. Sept. 11, 2001); City of Mankato v. Fetchenhier, 363 N.W.2d 76, 79

(Minn. App. 1985); see also Black’s Law Dictionary 991 (9th ed. 2009) (defining “lewd”

as “[o]bscene or indecent; tending to moral impurity or wantonness”). “Indecent” is

defined as “[o]ffensive to public morals; immodest.” The American Heritage College

Dictionary 704 (4th ed. 2007). “The exposure becomes ‘indecent’ only when [appellant]

indulges in such practices at a time and place where, as a reasonable person, he knows, or



                                            5
ought to know, his act is open to the observation of others.” Peery, 224 Minn. at 351, 28

N.W.2d at 854 (quotation omitted).

       Mousel argues that insufficient evidence exists in the record to sustain his

conviction under Minn. Stat. § 617.23, subd. 1(1), because the record does not show that

he “wil[l]fully and lewdly exposed private parts of his body.” “Intent may be proved by

circumstantial   evidence,    including   drawing   inferences   from    the   [appellant’s]

conduct, . . . and the events occurring before and after the crime.” In re Welfare of

T.N.Y., 632 N.W.2d 765, 769 (Minn. App. 2001) (citing Davis v. State, 595 N.W.2d 520,

525-26 (Minn. 1999)).        When reviewing a conviction sustained by circumstantial

evidence, we first identify the circumstances proved, deferring to the jury’s acceptance of

these facts and assuming that the jury rejected all contrary facts. State v. Silvernail, 831

N.W.2d 594, 598-99 (Minn. 2013). Second, we determine whether the circumstances

identified as proved are inconsistent with any rational hypothesis other than guilt. Id. at

599. “We give no deference to the fact finder’s choice between reasonable inferences.”

Id. (quotation omitted).

       The circumstances proved here are that: (1) M.M. and E.R. saw Mousel standing

outside of a church window with his pants around his knees, exposing his buttocks and

genitals, for three to four minutes; (2) while Mousel was standing approximately five feet

away from M.M. and E.R., he made eye contact with M.M. for five seconds, which made

her feel “uncomfortable”; (3) Mousel walked around outside with his pants down and

made a half-hearted attempt to pull up his pants; and (4) Mousel made and maintained




                                             6
eye contact with M.M. and E.R. as he drove away from the church, making them feel

“uncomfortable” and “suspicious.”

         Based on the circumstances proved by the state at trial, we conclude that Mousel

“willfully and lewdly” exposed his body in a public place. See Minn. Stat. § 617.23,

subd. 1(1). The intent element in indecent exposure cases “may be inferred from the

manner of the exposure or from recklessness.” Peery, 224 Minn. at 351, 28 N.W.2d at

854 (quotation omitted). Mousel exposed his buttocks and genitals for three to four

minutes outside of a church, near the church’s windows, showing that the exposure was

not an accidental wardrobe malfunction. He also made eye contact with M.M. while his

pants were down and then maintained eye contact with both M.M. and E.R. as he drove

away, making them both feel uncomfortable. He walked around the church property with

his pants down and made a half-hearted attempt at pulling his pants up as he walked to

his truck, showing that he was aware that his pants were down. Mousel’s prolonged,

public    exposure   of   his   buttocks   and   genitals   was   lewd   because   it   was

“openly . . . indecent” and he reasonably should have known that “his act [was] open to

the observation of others.”2 Id. (quotation omitted); Botsford, 630 N.W.2d at 17. We

hold that the only reasonable hypothesis from the circumstances proved is that Mousel


2
  Mousel asserts that this conduct was not lewd because it did not have a “sexual
component,” and he cites an unpublished case of this court, State v. Maring, No. A04-
0917 (Minn. App. Apr. 26, 2005), to support his contention that a conviction of indecent
exposure requires the state to prove a “sexual component.” As the state highlights in its
brief, Mousel misconstrues this case. Besides being unpublished, and therefore not
binding precedent, Maring did not hold that indecent exposure must include a “sexual
component,” and the case analyzes indecent exposure under § 617.23, subd. 1(3), not
1(1).

                                             7
“willfully and lewdly” exposed his buttocks and genitals in public and affirm Mousel’s

conviction.3 See Minn. Stat. § 617.23, subd. 1(1).

II.    Pro Se Arguments

       In his pro se supplemental brief, Mousel raises numerous reasons why his

conviction should be reversed. He argues (1) the district court improperly instructed the

jury on indecent exposure; (2) the district court violated his Sixth Amendment right to

counsel by denying his request to have a nonattorney represent him at trial; (3) the district

court and prosecutor confused the jury by using terms such as crime, statute, law, rule of

law, and constitution; (4) the prosecutor made misleading statements in closing argument

because he called himself “scatter-brained”; (5) the prosecutor incorrectly explained what

indecent exposure meant; and (6) the district court erred by confusing the jury during jury

selection by saying, “I’m not trying to trick you.” After carefully considering each of

these arguments, we conclude that none has merit.

       Affirmed.




3
  Mousel also contends that the state only charged him under Minn. Stat. § 617. 23, subd.
1(1), and that his conviction cannot be sustained under Minn. Stat. § 617. 23, subd. 1(3).
Because we affirm his conviction under § 617.23, subd. 1(1), we need not address this
issue.

                                             8
