In the Matter of the Welfare of: J. C. L., Child.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1018

In the Matter of the Welfare of: J. C. L., Child.

Filed April 25, 2022
Affirmed in part, reversed in part, and remanded
Slieter, Judge
Concurring specially, Cleary, Judge

Redwood County District Court
File No. 64-JV-19-38

Cathryn Middlebrook, Chief Appe llate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant J.C.L.)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Jenna M. Peterson, Redwood County Attorney, Redwood Falls, Minnesota; and

Travis J. Smith, Special Assi stant County Attorney, William C. Lundy (certified student
attorney), Slayton, Minnesota (for respondent State of Minnesota)

Considered and decided by Slieter, Pres iding Judge; Connolly, Judge; and Cleary,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
Appellant was adjudicated delinquent for disseminating and attempting to aid and
abet the dissemination of pornographic work , fifth-degree criminal sexual conduct, and

 Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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indecent exposure after he sent multiple nude pi ctures of himself to a 13-year-old victim
via Snapchat and asked the victim to send nude pictures of herself. Appellant argues that
(1) the pornographic-work statute does not proh ibit the act of a juvenile disseminating a
pornographic picture of themself and, ther efore, the two dissemination of pornographic
work adjudications should be re versed; (2) the district cour t erred by failing to obtain
appellant’s personal waiver of his right to testify and, therefore, all adjudications should be
reversed; (3) the district court erred by orde ring appellant to comply with the predatory-
offender-registration statute; and (4) the dist rict court erred by entering adjudications for
fifth-degree criminal sexual conduct and an included offense of indecent exposure, and
therefore, one adjudication should be reversed.
The plain language of th e pornographic-work statute prohibits juveniles from
creating and sending pornographic work of themselves. The di strict court did not err by
failing to obtain appellant’s personal waiver of his right to testify and ordering appellant to
comply with the predatory- offender-registration statute. However, because indecent
exposure is an included offense of fifth-degree criminal sexual conduct, the district court
erred by entering adjudications for both offenses. Therefore, we affirm in part, reverse in
part, and remand.
FACTS
The following facts are undisputed. Appellant J.C.L. and the victim were enrolled
at the same school in October 2018. The victim was 13 years old and in eighth grade and
J.C.L. was 17 years old and in twelfth grade.

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On October 2, 2018, J.C.L. and the vic tim were communicating “about sports” on
their telephones via Snapchat1 when J.C.L. asked the victim to send him “nude pictures”
of herself. J.C.L. asked for nu de pictures “15 to 20 times” and “was begging for them.”
The victim refused. The next morning, J. C.L. “Snapchatted” the victim and “apologized
for what he did,” claiming “he was under the influence and that he doesn’t realize what he
is doing when he is high.” The victim told J.C.L. “it was okay and not to do it again.”
That evening, J.C.L. again asked the vi ctim “[m]ultiple times ” to send him nude
pictures of herself. The victim again refuse d and told J.C.L. that “he would regret doing
that if he kept doing it” because she would block him if he did not stop asking. In response,
J.C.L. sent the victim an image of his peni s with the words “regre t what” superimposed
over it. The victim asked J.C.L. to stop but, instead, he sent the victim “multiple” images
of his penis, “approximately 20” in total. These images were deleted by the Snapchat app
after they were opened.
The victim later informed a school parapr ofessional about the Snapchat exchange
with J.C.L. Law enforcement was then informed and began an investigation.
J.C.L. was charged in May 2021 in an amended deli nquency petition with four
counts: (1) dissemination of pornographic work involving a minor, in violation of Minn.
Stat. § 617.247, subd. 3(a) (2018); (2) a ttempt to aid and abet the dissemination of

1 Through Snapchat, parties can communicate by sending images and text. Most messages
are “automatically deleted by default from [Snapc hat’s] servers after [Snapchat] detect[s]
they’ve been opened by all recipients or have expired.” Privacy Policy , Snap Inc.,
https://www.snap.com/en-US/privacy/privacy-policy (last visited Apr. 14, 2022).
Therefore, law enforcement is only able to recover messages which have not been deleted.

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pornographic work involving a minor, in viol ation of Minn. Stat. §§ 617.247, subd. 3(a),
609.17, subd. 1 (defining attempt), and 609.0 5, subd. 1 (defining aiding and abetting)
(2018); (3) fifth-degree criminal sexual conduc t, in violation of Minn. Stat. § 609.3451,
subd. 1(2) (2018); and (4) indecent exposure , in violation of Minn. Stat. § 617.23,
subd. 2(1) (2018).
J.C.L. did not testify during the court trial, and neither the district court nor counsel
inquired as to whether J.C.L. knowingly, intelligently, and voluntarily, waived his right to
testify. The district court found the stat e proved its case beyo nd a reasonable doubt, it
found J.C.L. guilty, and it adjudicated him delin quent of all four counts. Because J.C.L.
was 20 years old at the time of adjudication, the district court orde red “no disposition.”
However, the district court ordered that J. C.L. “comply with all predatory offender
registration requirements . . . for 10 years from the date of [the] order.” J.C.L. appeals.
DECISION
I. The pornographic-work statute proh ibits a juvenile from sending
pornographic work of themself.

J.C.L. argues that he “is not guilty of the dissemination of a pornographic work”
because the plain language of the pornographic-work statute reflects the legislature’s intent
to exclude from prosecution juveniles, such as J.C.L., who create and send sexually explicit
images of themselves. Therefore, J.C.L. argues, there is insufficient evidence to adjudicate
him of disseminating pornographic work.
Generally, when reviewing a sufficiency-o f-the-evidence claim, appellate courts
consider whether a reasonable jury could conclude that the defendant was guilty beyond a

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reasonable doubt. State v. Griffin, 887 N.W.2d 257, 263 (Minn. 2016). But we review de
novo sufficiency-of-the-e vidence claims that only present a question of statutory
interpretation “on the meaning of the statute under which a defendant has been convicted.”
State v. Pakhnyuk , 926 N.W.2d 914, 920 (Minn. 2019 ). During oral argument, J.C.L.’s
counsel confirmed that the sole basis for hi s insufficiency-of-the-evidence claim is the
meaning of the pornographic-work statute. Our de novo review follows.
“When interpreting a statute, the first ques tion is whether the language of a statute
is ambiguous.” Id. at 920. “The plain language of the statute controls when the meaning
of the statute is unambiguous.” State v. Boecker, 893 N.W.2d 348, 351 (Minn. 2017). To
determine a statute’s plain meaning, the st atute’s “words and ph rases are construed
according to rules of grammar and according to their common and approved usage.” Minn.
Stat. § 645.08(1) (2020). When determining whether a statute is ambiguous, we give words
and phrases their ordinary meaning. State v. Prigge, 907 N.W.2d 635, 638 (Minn. 2018).
“The statutory language in dispute is not examined in isolation; rather, all provisions in the
statute must be read and interpreted as whole.” Pakhnyuk, 926 N.W.2d at 920. It is
presumed that “the legislature intends the entire statute to be effective and certain.” Minn.
Stat. § 645.17(2) (2020).
The pornographic-work statute, of wh ich J.C.L. was adjudicated delinquent,
provides that “[a] person who disseminates pornographic wo rk to an adult or a minor,
knowing or with reason to kn ow its content and character, is guilty of a felony.” Minn.
Stat. § 617.247, subd. 3(a) (emphasis added). The statute does not define “person.” “In
the absence of a statutory definition, we look to dictionary definitions to determine the

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plain meaning of words” and “apply them in the context of the statute.” State v. Haywood,
886 N.W.2d 485, 490, 488 (Minn. 2016); see also State v. Serbus , 957 N.W.2d 84, 88
(Minn. 2021). The dictionary define s person as “[a] living human.” The American
Heritage Dictionary of the English Language 1317 (5th ed. 2018); see also Merriam-
Webster’s Collegiate Dictionary 924 (11th ed. 2014) (defini ng “person” as a “human”).
Therefore, based on this dictionary definition, the pornographic-work statute applies to all
humans, and J.C.L. is “a person” who is subject to this statute.
A review of other provisions in this statut e reinforces this interpretation because it
shows that the legislature will, when it so desires, differentiate between adults and minors.
First, the pornographic-work statute provide s an “affirmative defense to a charge of
violating this section [if] the pornogr aphic work was produced using only persons who
were 18 years or older.” Minn. Stat. § 617.247, subd. 8 (2018) (emphasis added). Second,
“pornographic work” is defined as, among other things, “any visual depiction . . . that: uses
a minor to depict actual or simulated sexual cond uct,” and a “minor” is defined as “any
person under the age of 18.” Minn. Stat. § 617.246, subd. 1(f)(2)(i) (emphasis added), (b)
(2018).
Moreover, were we to adopt J.C.L.’s interpretation of this statute as excluding from
criminal behavior a juvenile disseminatin g pornographic work of themself, it would
effectively “add words or meaning to a statut e that were intentionally or inadvertently

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omitted.” Rohmiller v. Hart , 811 N.W.2d 585, 590 (Minn. 2012); see also State v.
Jorgenson, 946 N.W.2d 596, 607 (Minn. 2020). This we cannot do.2
In sum, the pornographic-work statut e is unambiguous and its plain language
reflects the legislature’s intent to prohib it juveniles from creating and disseminating
pornographic work of themselves. Therefore, there is sufficient evid ence to adjudicate
J.C.L. of disseminating pornographic work.3
II. Failing to obtain a knowing, intelligent, and voluntary waiver from J.C.L. of
his right to testify does not result in a new trial.

J.C.L. argues that the district court erred because it failed to advise him of his right
to testify and did not seek hi s knowing and voluntary personal waiver of that right before
proceeding with trial. As a result, J.C.L. requests that we vacate the adjudications and
remand for a new trial.

2 J.C.L. relies on the statute’s policy and purpos e statement in subdivision 1 to argue that
the statute unambiguously precludes criminalizing a juvenile for this behavior. See Minn.
Stat. § 617.247, subd. 1. We are not persuaded. The criminal elements are unambiguously
described in subdivision 3 of the statute, and the policy st atement does not contradict this
unambiguous language. J.C.L.’s reliance on State v. Rhoades , 690 N.W.2d 135, 139
(Minn. App. 2004), for this proposition is also unavailing. In Rhoades we concluded that
the statute’s policy statement “plainly establishes the legislature’s intent to punish
possession of child pornography as a crime that victimizes, or harms, the minor subject of
the pornographic work,” and, therefore, the di strict court is not precluded from imposing
more than one sentence for mult iple offenses committed in a si ngle behavioral incident.
690 N.W.2d at 138-40. Thus, the sentencing issue decided by Rhoades has no application
to the issue in this matter.
3 J.C.L. relies on the same argument to assert that there is insufficient evidence to adjudicate
him of attempting to aid and abet the dissemination of pornographic work. For the reasons
discussed, the pornographic-work statute pr ohibits a juvenile from sending pornographic
work of themself, and therefore, there is su fficient evidence to adjudicate J.C.L. of
attempting to aid and abet the dissemination of pornographic work.

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Determining whether the rules of criminal procedure have been properly interpreted
is a question of law subject to de novo review. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn.
1998); see also In re Welfare of M.E.M. , 674 N.W.2d 208, 214 (M inn. App. 2004). The
right of a defendant to testify on his or her own behalf is a fundamental constitutional right
and must be knowingly, intelligently, and voluntarily waived. M.E.M., 674 N.W.2d at 214.
The right is personal to the defendant and cannot be waived by his counsel. State v. Walen,
563 N.W.2d 742, 751 (Minn. 1997); see In re Gault, 387 U.S. 1, 31 (1967) (holding that
“due process and fair treatment” apply to juvenile proceedings) (quotation omitted).
In State v. Smith , the supreme court held that when the record is silent as to the
waiver of the right to testify, the reviewin g court “must presume that the decision not to
testify was made by [the] defendant volunta rily and intelligently.” 299 N.W.2d 504, 506
(Minn. 1980). We adopted this rule in juvenile delinquency proceedings in M.E.M.,
holding that, when “the record is silent re garding whether appellant waived his right to
testify . . . appellant is presumed to have personally waived his right to testify.” 674
N.W.2d at 214. We reiterated our adoption of this rule the following year in In re Welfare
of C.J.W.J., 699 N.W.2d 328, 334 (Minn. App. 2005).
The record is silent on J.C.L.’s waiver of his right to testify. Accordingly, the law
requires us to presume that the decision not to testify was made voluntarily and intelligently
and that J.C.L., therefore, properly waived his right to testify. M.E.M., 674 N.W.2d at 214;
C.J.W.J., 699 N.W.2d at 334.4

4 J.C.L. argues we should ig nore precedent and not apply Smith in juvenile cases. We
cannot do so. This court has repeatedly stated that its precedential opinions are binding on

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III. The district court did not err by ordering J.C.L. to comply with the predatory-
offender-registration statute pursuant to Minn. Stat. § 243.166 (2020).

J.C.L. argues that the district court e rred in ordering him to comply with the
predatory-offender-registration statute.
“The interpretation of the predatory se x-offender registration statute, like
interpretation of all statutes, is a question of law which we review de novo.” In re Welfare
of J.R.Z., 648 N.W.2d 241, 247 (Minn. App. 2002), rev. denied (Minn. Aug. 20, 2002). In
Minnesota, the requirement to register as a predatory offender is a collateral consequence
of a conviction or adjudication. See State v. Ellis-Strong , 899 N.W.2d 531, 536 (Minn.
App. 2017) (stating that registration is a co llateral consequence of a guilty plea). The
mandatory registration requirement is regulatory and not punitive. In re Welfare of C.D.N.,
559 N.W.2d 431, 433 (Minn. App. 1997), rev. denied (Minn. May 20, 1997); see also
Werlich v. Schnell, 958 N.W.2d 354, 362-63 (Minn. 2021) (allowing some “constitutional
challenges to the expanded statutory conseque nces of predatory o ffender registration”
without questioning the nonpunitive nature of the underlying registration).
We note that the district court merely ordered appellant to “comply with all
predatory offender registration requirements. ” This is not an error. The predatory-
offender-registration statute requires a person to register if the person “was charged with
or petitioned for a violati on of, or attempt to violate, or aiding, abetting, or conspiring to

this court and on the district courts. See, e.g., State v. Chauvin, 955 N.W.2d 684, 689-90
(Minn. App. 2021), rev. denied (Minn. Mar. 10, 2021); State v. Peter , 825 N.W.2d 126,
129 (Minn. App. 2012), rev. denied (Minn. Feb. 27, 2013); State v. M.L.A., 785 N.W.2d
763, 767 (Minn. App. 2010), rev. denied (Minn. Sept. 21, 2010).

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commit” an enumerated offens e “and convicted of or adjudi cated delinquent for that
offense or another offense arising out of th e same set of circumstances.” Minn. Stat.
§ 243.166, subd. 1b(a)(1). And when a person is required to register pursuant to that
statutory provision, “the court shall tell the person of the duty to register under this section.”
Id., subd. 2. Moreover, a person required to register must do so with their “corrections
agent” or “with the law enforc ement authority that has juri sdiction in the area of the
person’s primary address.” Id., subd. 3(a). Therefore, the district court’s order to “comply
with all predatory offender registration requirements” was not an error.
Furthermore, J.C.L. was adjudicated de linquent of dissemina tion of pornographic
work pursuant to Minn. Stat. § 617.247, subd. 2(a). This is an offense enumerated for
predatory registration. Minn. Stat. § 243.1 66, subd. 1b(a)(2)(vii). Thus, J.C.L. was
statutorily required to register as a predatory offender.
Therefore, the district court did not err by ordering J.C.L. to comply with the
predatory-offender-registration statute.
IV. The district court erred by entering ad judications for both indecent exposure
and fifth-degree criminal sexual conduct.

J.C.L. argues that the district court e rred by adjudicating hi m delinquent of both
indecent exposure and fifth-degree criminal sexual conduct because “indecent exposure is
an included offense of fifth-degree criminal sexual conduct.”
Minnesota law provides that “[u]pon pr osecution for a crime, the actor may be
convicted of either the crime charged or an included offens e, but not both.” Minn. Stat.
§ 609.04, subd. 1 (2018). The Minnesota Supreme Court has interpreted Minn. Stat.

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§ 609.04 to “bar[] multiple convictions under di fferent sections of a criminal statute for
acts committed during a single behavioral incident.” State v. Jackson, 363 N.W.2d 758,
760 (Minn. 1985). Whether a conviction violates Minn. Stat . § 609.04 (2018) is a legal
question that we review de novo. State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).
Definitions of an “included offense” include “a lesser degree of the same crime”
and “a crime necessarily proved if the crime charged were proved.” Minn. Stat. § 609.04,
subd. 1(1), (4). Another way to describe it is that “[a] lesser offense is necessarily included
in a greater offense if it is impossible to commit the latter without also committing the
former.” State v. Roden, 384 N.W.2d 456, 457 (Minn. 1986). “In determining whether an
offense is a necessarily included offense, we must look at the elements of the offense rather
than the facts of the particular case.” Id.
J.C.L. was adjudicated delinquent of gr oss misdemeanor indecent exposure, in
violation of Minn. Stat. § 617.23, subd. 2(1), and gross misdemeanor fifth-degree criminal
sexual conduct, in violation of Minn. Stat. § 609.3451, su bd. 1(2). Gross misdemeanor
indecent exposure requires proof that a person “willfully and lewdly exposes the person’s
body, or the private parts thereof . . . in the presence of a minor under the age of 16.” Minn.
Stat. § 617.23, subds. 1(1)-2(1) (2018). Gro ss misdemeanor fifth-degree criminal sexual
conduct requires proof that a “person engages in . . . lewd exhibition of the genitals in the
presence of a minor under the age of 16, know ing or having reason to know the minor is
present.” Minn. Stat. § 609.3451, subd. 1(2).
Both offenses require the mens rea element of either willfulness or knowledge that
the defendant knew the facts that made his conduct illegal. Minn. Stat. §§ 609.3451,

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subd. 1(2), 617.23, subds. 1(1)-2(1); see State v. Ndikum , 815 N.W.2d 816, 818 (Minn.
2012) (“Mens rea is the element of a crime that requires the defendant know the facts that
make his conduct illegal.” (quotation omitted)). And both offenses require lewd exposure
or exhibition of private parts, which include genitals, in the presence of a minor under age
16. Minn. Stat. §§ 609.3451, subd. 1(2), 617.23, subds. 1(1)-2(1).5 Therefore, one cannot
commit the elements of fifth-degree crim inal sexual conduct without necessarily
committing the elements of indecent exposure.
Thus, the district court erred by adjudicating J.C.L. delinquent of both offenses. We
remand to the district court for its discretionary determination as to which adjudication to
vacate.
Affirmed in part, reversed in part, and remanded.

5 The state claims that the criminal statute Minn. Stat. § 609.04 does not apply to juvenile
delinquency proceedings, and contends that In re Welfare of K.A.Z., 266 N.W.2d 167, 170
(Minn. 1978), which held that Minn. Stat. § 609.04 “applies in juvenile proceeding,” is
merely “dictum and not binding.” We disagree. The K.A.Z. court directly addressed the
same issue involving Minn. Stat. § 609.04 and, citing In re Welfare of Raino, 255 N.W.2d
398, 399 (Minn. 1977), stated “[t]he statute a pplies to juvenile proceedings.” This is not
dicta and we are bound by its precedence. See Chauvin, 955 N.W.2d at 689-90.

CS-1
CLEARY, Judge (concurring specially)
While I agree with the majo rity as to affirming in pa rt, reversing in part, and
remanding, I write specially to highlight my disagreement with the current state of the law
as to the significance of the failure to obtai n a knowing, intelligent, and voluntary waiver
of the right to testify, particularly when the defendant is a juvenile. The right is personal to
the defendant and cannot be waived by his counsel. State v. Walen, 563 N.W.2d 742, 751
(Minn. 1997). Here, it appears that the district court failed to advise J.C.L. of his personal
right to testify and did not seek to elicit his waiver of that right. Not making a record is
particularly egregious when the defendant is a juvenile, as in this case. Because the record
is silent as to any waiver, we are bound by an opinion that is four decades old, State v.
Smith, 299 N.W.2d 504, 506 (Minn. 1980), to presume that the decision not to testify was
made by the defendant in a knowing, voluntary, and intelligent manner.
It appears to me that pr esuming that a fundamental constitutional right has been
properly waived in the face of a silent reco rd is illogical and counterintuitive. Rather, the
presumption should be otherwise. I do not believe that it is asking too much of the district
courts to take a few minutes to inquire of the defendant on the record as to his decision not
to testify, outside the hearing of the jury, to ensure that this fundamental constitutional right
is being honored appropriately. It has long b een acknowledged that it is the best practice
for a district court to do so. It is time to make it a requirement.

CS-2

When the record is silent due to the failure of the court to make a brief record of a
waiver, the presumption should be that a knowing, voluntar y, and intelligent waiver has
not occurred. I believe that making inquiry in to waiver a required duty is necessary when
a fundamental constitutional right is at stake.