State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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
A22-1173

State of Minnesota,
Respondent,

vs.

Kevin Lee Baker,
Appellant.

Filed July 17, 2023
Reversed
Bryan, Judge

Anoka County District Court
File No. 02-CR-18-3924

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

Brad Johnson, Anoka County Attorney, Kelsey R. Kelley, Assistant County Attorney,
Anoka, Minnesota (for respondent)

Daniel S. Adkins, North Star Criminal Defense, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Smith, Tracy M. , Judge; and
Bryan, Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this direct appeal of his conviction for interference with the privacy of a minor
by surreptitiously installing or using a recording device “through the window or any other
aperture of a house,” Minn. Stat. § 609.746, subd. 1(b)(2) (2016), appellant disputes the
2
sufficiency of the evidence presented against him. Given the holding in State v.
McReynolds, 973 N.W.2d 314, 319 (Minn. 2022) —which reversed a conviction under the
same statute after interpreting the plain language to not prohibit the use of “ a recording
device inside the same room as the [] target”—we conclude that the evidence presented in
this case is likewise insufficient to establish the elements of the charged offense. We,
therefore, reverse the conviction.
FACTS
On June 13, 2018, respondent State of Minnesota charged appellant Kevin Lee
Baker with one count of interfering with the privacy of a minor. The complaint alleged
that in early 2017, Baker had installed video recording devices in the bathroom and
bedroom used by a twelve -year-old child. The case proceeded to trial, which included
testimony from the child, her older brother, her mother, and several law enforcement
officers from the Anoka County Sheriff’s Department. The evidence presented established
the following facts. The child testified that Baker was dating her mother at the time of the
offense and was at their house “the majority of the time.” One morning, the child was in
her bedroom when she heard a speaker in her bathroom turn on unexpectedly. That
evening, she discussed this with her mother and brother, went upstairs, and found the
speaker plugged into a USB charging block that was different from the one that originally
came with the speaker. The child also found a similar charging block in her bedroom.
The child’s brother, who was home when the child found the charging blocks,
described the devices as looking “like a regular USB charger block with a plug-in” but with
a small camera on the block above the USB port . The child’s mother testified that she had
3
left for work early that morning and that the child, the child’s brother, and Baker were the
only people at home. Several days later, the child’s mother received an email intended for
Baker asking Baker to rate his purchase of a “Wireless Spy Nanny Cam WIFI IP Pinhole
DIY Digital Video Camera Mini Micro DVR.” 1
After the child’s mother contacted law enforcement, a deputy sheriff came to the
house and took pictures of the places where the recording devices were plugged in, which
were admitted into evidence at trial. A detective also testified regarding an interview with
Baker, during which Baker claimed that he gave the charging blocks to the child but di d
not know they contained cameras. 2 The detective searched the recording devices f or
evidence and recovered seven videos on one of the devices and twelve on the other. He
noted that an individual shown grabbing the device in one of the videos resembled Baker.
An investigator testified that he obtained Baker’s eBay account history, which showed
three purchases of video recording devices between 2016 and 2017, including a purchase
of two devices that matched the ones found by the child.
On February 28, 2022, the jury found Baker guilty of the charged offense. Two
months later, the supreme court issued its decision in State v. McReynolds, interpreting the

1 The child’s brother also testified that, on the day that the family discovered the charging
blocks, he also saw Baker open the door to the child’s bathroom and look inside while she
was taking a shower. The state, however, only charged Baker under the portion of the
statute that criminalizes “surreptitiously install[ing] or us[ing] any device” to record
through an aperture of a dwelling, Minn. Stat. § 609.746, subd. 1(b)(2), not the portion that
prohibits “ surreptitiously gaz [ing], star[ing], or peep[ing]” into an aperture, Minn. Stat.
§ 609.746, subd. 1(a)(2) (2016).
2 Baker did not testify at trial. The defense called one witness, Baker’s daughte r, who
testified that Baker had limited technological skills and that she had never seen Baker do
anything inappropriate.
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statute under which Baker was convicted. 973 N.W.2d at 319. Baker moved to vacate the
judgment, arguing that his conduct did not violate the interference with privacy statute as
interpreted in McReynolds. The district court denied Baker’s motion. Baker now
challenges that decision and appeals from the judgment of conviction.
DECISION
Baker argues that there was insufficient evidence to convict him of interfering with
the privacy of a minor because the state failed to prove that he installed or used the
recording devices through the aperture of the home.3 Because we conclude that , like in
McReynolds, the evidence does not establish that the recording devices were installed or
used to record through an aperture, we reverse the conviction. 4
“When evaluating the sufficiency of the evidence, appellate courts carefully
examine the record to determine whether the facts and the legitimate inferences drawn from
them would permit the jury to reasonably conclude that the defendant was guilty beyond a
reasonable doubt of the offense of which he was convicted.” State v. Griffin , 887 N.W.2d
257, 263 (Minn. 2016) (quotations omitted) . We view the evidence in the light most
favorable to the verdict and assume that the fact -finder disbelieved any conflicting
evidence. Id. “Because the meaning of a criminal statute is intertwined with the issue of
whether the State proved beyond a reasonable doubt that the defendant violated the statute,

3 We decline to separately review Baker’s post-verdict motion. A post-verdict motion was
not required to preserve this issue for appeal and the notice of appeal indicates that Baker’s
appeal is from the district court’s judgment of conviction.
4 Because we reverse Baker’s conviction based on the insufficiency of the evidence , we
need not address Baker’s alternative argument regarding his motion to remove a juror.
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it is often necessary to interpret a criminal statute when evaluating an insufficiency -of-the-
evidence claim.” State v. Vasko, 889 N.W.2d 551, 556 (Minn. 2017). A sufficiency- of-
the-evidence claim that turns on the meaning of a statute is subject to de novo review. State
v. Pakhnyuk, 926 N.W.2d 914, 920 (Minn. 2019).
Under Minnesota Stat utes section 609.746, subdivision 1(b), a person commits a
gross misdemeanor if that person:
(1) enters upon another’s property;
(2) surreptitiously installs or uses any device for
observing, photographing, recording, amplifying, or
broadcasting sounds or events through the window or any other
aperture of a house or place of dwelling of another; and
(3) does so with intent to intrude upon or interfere with
the privacy of a member of the household.

Violating th is statute constitutes a felony-level offense if the person commits the offense
against a minor while “knowing or having reason to know that the minor is present.” Minn.
Stat. § 609.746, subd. 1(e)(2) (2016).
Baker concedes that, viewing the evidence in the light most favorable to the verdict,
a jury could reasonably conclude that Baker “intended to invade the privacy of the [ child]
through the lens of the camera in the charging blocks.” He argues, however, that he di d
not install or use the recording devices “through the window or any other aperture of ” the
child’s house as required by subdivision 1(b)(2), relying on McReynolds. See McReynolds,
973 N.W.2d at 318- 20 (interpreting the meaning of the word “aperture”). In that case,
McReynolds pleaded guilty to interfer ence with privacy after he used a cell phone to take
a video of a woman while she was sleeping. Id. at 316. McReynolds argued that his guilty
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plea was invalid because he was in the same room as the victim and did not record her
“through the window or any aperture of a house.” Id.
This court rejected McReynolds’s argument, concluding that the guilty plea was
valid because the term “aperture” in the statute included the aperture of the camera used to
record the victim. State v. McReynolds, No. A20-1435, 2021 WL 3611376, at *2-5 (Minn.
App. Aug. 16, 2021), rev’d, 973 N.W.2d 314 (Minn. 2022). The supreme court reversed,
however, holding that the aperture of the camera was not the “aperture” referred to in the
statute. McReynolds, 973 N.W.2d at 319. Instead, “[t]he phrase ‘aperture of a house or
place of dwelling of another’ . . . plainly means that the aperture belongs to or is connected
to the house or dwelling.” Id. (quoting Minn. Stat. § 609.746, subd. 1(b)(2)). The supreme
court explained that the statu tory language does not criminalize “installing or using a
recording device from inside the home, unless that installation or use itself is done through
an aperture—perhaps a threshold of a door, a keyhole, or a hole drilled into a wall of an
adjoining room.” Id. The supreme court acknowledged that “the result that the statute’s
plain meaning compels is oddly narrow in that a person does not violate the statute merely
by using a recording device inside the same room as their target ,” but observed that “[a]
bad policy outcome is not enough to justify departure from the plain language of a statute.”
Id. at 319-20.
Baker argues, and we agree, that McReynolds controls because the recording devices
were not installed or used through an aperture of the child’s house. The state attempts to
distinguish McReynolds because unlike McReynolds, Baker plugged the cameras into
electrical outlets . We are not convinced because the state’s argument conflicts with the
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basic analysis in McReynolds. The supreme court analyzed the meaning of the word
“through” and concluded that a person does not violate the statute if the recording device
is in the same room as the target :
The use of ‘through’ creates an adverbial phrase. As an
adverbial phrase, ‘through the window or any other aperture’
modifies the verbs preceding it (‘installs or uses’). Therefore,
the installing or using of the recording device itself must be
done through an aperture to satisfy the elements in Minn. Stat.
§ 609.746, subd. 1(b)(2) . . . .

. . . . [A] person does not violate the statute merely by using a
recording device inside the same room as their target .

Id. at 319 (quotations and citations omitted) .
The s tate argues that this case differs from McReynolds because the recording
devices were plugged into electrical outlets and those outlets contained openings that
satisfy the definition of the statutory term “aperture.” We are not convinced for two, related
reasons. First, while an electrical outlet contains openings, Baker did not install the
recording device “through” the openings in the outlet. Id. (concluding that because
“through” modifies “installs” and “uses,” the installing or using “must be done through an
aperture”); see also The American Heritage Dictionary 1814 (5th ed. 2011) (defining the
word “through,” used as an adverb, to mean “[f] rom one end or side to another or an
opposite end or side ”). Nothing in the analysis of McReynolds indicates that the outcome
would be different had McReynolds recorded his target while his camera was connected to
a charger that in turn was plugged into the wall.
Second, Baker did not record the child through the openings in the outlet.
McReynolds, 973 N.W.2d at 319 (concluding that McReynolds did not use the recording
8
device through an aperture because he was in the same room as the person he was
recording). To further illustrate this interpretation, the supreme court in McReynolds
distinguished the facts of McReynolds from State v. Perez , 779 N.W.2d 105, 107 (Minn.
App. 2010) . McReynolds, 973 N.W.2d at 319. The supreme court referenced the
conclusion in Perez and noted that in that case, the offender “videotaped his wife in their
shared bathroom through a hole in their bathroom wall .” McReynolds, 973 N.W.2d at 319
(citing Perez, 779 N.W.2d at 107). The statute was not violated by McReynolds’ conduct,
but it was violated by Perez’s conduct because the recording device used in Perez and the
target were not in the same room but on different sides of the aperture . Here, as in
McReynolds and unlike in Perez, the recording device and the victim were both in the same
room, not separated by any aperture .5
Because the installation itself was not done through the outlet openings and because
the recording device and the child were in the same room, the evidence does not establish
that Baker violated the statute as interpreted in McReynolds.
Reversed.

5 To the extent that portions of the state’s brief can be construed as arguing that Baker
violated the statute when he walked through the bathroom and bedroom doors to place the
recording device in the room with the victim, McReynolds also forecloses this a rgument:
“The statutory language does not criminalize accessing a home through an aperture and
then installing or using a recording device from inside the home, unless that installation or
use itself is done through an aperture.” 973 N.W.2d at 319. Simil arly, although the state
does not expressly argue that the recording device became a part of the house when it was
plugged into an outlet, to the extent this could be inferred from the state’s brief , this
argument is undermined by the language in McReynolds. Id. (“[A] a cell phone camera
cannot be connected to a house.”). Given the analysis in McReynolds, we are not persuaded
to conclude that a recording device becomes a part of the house only during those moments
in time when it is connected by a cable t o an outlet.