Sean Michael Wocelka, petitioner, Appellant,

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1239

Sean Michael Wocelka, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 31, 2023
Affirmed
Ross, Judge

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.
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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.
FACTS
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
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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.
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ISSUE
Does an actor’s touching a complainant’s intimate parts with a handheld object
constitute “touching” under the sexual-contact definition in Minnesota Statutes section
609.341, subdivision 11(a)(i)?
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 conclude that the defendant was guilty beyond a reasonable
doubt. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012) (quotation omitted). But when
the appellant contends, as Wocelka contends, that his conduct does not violate the statute
of conviction as a matter of law , we first must consider and interpret the statute de novo.
State v. Vasko, 889 N.W.2d 551, 556 (Minn. 2017). Interpreting the statute and applying it
in the context of Wocelka’s behavior, we conclude that his argument fails.
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
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statutorily defined circumstances, including that the complainant is under 13 years old and
the offender is more than 36 months older than she is. Minn. Stat. § 609.343, subd. 1(a)
(2014). “Sexual contact” includes “the intentional touching by the actor of the
complainant’s intimate parts.” Minn. Stat. § 609.341, subd. 11(a)(i). Wocelka maintains
that the evidence against him was insufficient because he touched Lisa with a toy rather
than his hand or other body part, meaning that he never touched Lisa within the meaning
of the statute. We are convinced that Wocelka asks us to read the statute more narrowly
than intended.
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 Wocel ka’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.
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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?” The word is so commonly understood that
even a young child would not misunderstand his mother to be referring to the use of his
hands when she scolds, “You haven’t even touched your vegetables.”
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.” Minn. Stat. § 609.341, subd. 11(a)(i). The
first phrase places the focus primarily on the source of the crime, “the actor,” with no hint
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that the legislature intended the offense to be limited by the thing the actor might use to
effectuate the touching. In contrast to the first phrase’s focus on the actor rather than any
instrument of the touching, the second phrase focuses on the specific target of the offense—
the anatomy of the victim, including “the primary genital area, groin, inner thigh, buttocks,
or breast.” Id., subd. 5 (2014) (defining “intimate parts”). We will not add words or phrases
into an unambiguous statute. State v. Ortega-Rodriguez, 920 N.W.2d 642, 645 (Minn.
2018). If the legislature wanted to limit the definition of “touching” to the actor’s body
parts in the same way it limited the term to parts of the victim’s anatomy, we presume it
would have said so.
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. Minn. Stat. § 609.341, subd. 12 (2014). But we do
not read this distinction to mean that the legislature wanted to limit the meaning of
“touching” by omitting the “any object” language when defining “sexual contact.” Quite
the contrary. We have already explained that the statutory term “touching” incorporates
into the definition both the actor’s causing bodily contact so as to feel and the actor’s
bringing something into contact with specific parts of the victim’s anatomy. Expressly
stating the two meanings therefore would have been redundant. Unlike the word “touch,”
however, the word “penetration” needs further description to effectuate the broad meaning
the legislature clearly intended for both offenses. The thing that is penetrating and the area
being penetrated must be specified to sufficiently describe the conduct that constitutes the
penetration crime. The legislature therefore necessarily detailed “sexual penetration” in its
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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 out of the prohibition a natural and accepted
meaning of the word “touching” so as to immunize a broad category of nonconsensual
sexual contact. We presume that a victim of sexualized contact is no less harmed, and the
offender is no less culpable, when the offender’s instrument is a handheld object rather
than his hand itself. Based on the statute’s plain language, we hold that the legislature
intended to include Wocelka’s behavior—bringing the handheld object into contact with
the child’s genitalia—when it criminalized having sexual contact with a minor.
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
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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
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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. Minn. Stat. § 609.341,
subd. 12. We were careful to recognize the uniquely nonsexual nature of the conduct in
that case and to foreshadow a different result by saying, “[w]e do not now say that touching
is always so limited.” Ohrtman, 466 N.W.2d at 4. Ohrtman does not bind our decision.
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.