State of Minnesota v. Eloisa Rubi Plancarte

• Court: Court of Appeals of Minnesota
• Decided: February 5, 2024
• Docket: a230158
• Status: Published

Opinion

STATE OF MINNESOTA IN COURT OF APPEALS A23-0158

State of Minnesota, Respondent,

vs.

Eloisa Rubi Plancarte, Appellant.

Filed February 5, 2024 Affirmed Ross, Judge Concurring specially, Schmidt, Judge Dissenting, Bratvold, Judge

Olmsted County District Court File No. 55-CR-21-4279

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

Mark A. Ostrem, Olmsted County Attorney, James E. Haase, Assistant County Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Adam Lozeau, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Ross, Judge; and Schmidt,

Judge.

SYLLABUS

A woman’s intentional display of her fully exposed breasts in the parking lot of a

convenience store during routine business hours constitutes willful and lewd exposure of

her private parts under Minnesota Statutes section 617.23, subdivision 1(1) (2020). OPINION

ROSS, Judge

Police encountered a woman in a convenience store parking lot fully exposing her

breasts and possessing cocaine. The state charged Eloisa Plancarte with indecent exposure

and controlled-substance possession. She unsuccessfully moved the district court to

dismiss the charges, arguing that her breasts are not “private parts” under the indecent-

exposure statute and that prosecuting her for going topless but not prosecuting men who

go topless violates the Equal Protection Clause. The district court found Plancarte guilty as

charged and convicted her of indecent exposure. Plancarte appeals, arguing that the

evidence is insufficient to prove that she violated the indecent-exposure statute and,

alternatively, that prosecuting her for exposing her breasts violates her constitutional right

to equal protection. Because a woman’s fully exposed breasts are “private parts” under the

statute and intentionally exposing them in the parking lot of a convenience store constitutes

willful and lewd exposure, we reject her insufficient-evidence argument. And because a

woman fully exposing her breasts is not similarly situated with a man exposing his chest,

we reject her equal protection argument. We therefore affirm.

FACTS

Rochester police received a call at about 9:50 on a July 2021 evening, reporting that

a woman was walking around the parking lot of a Kwik Trip convenience store with her

breasts fully exposed. Officers arrived and saw Eloisa Plancarte, whom one of the officers

recognized from having encountered her engaging in the same conduct earlier that week,

walking in the lot with her shirt pulled up and her breasts fully exposed. Lights at the

2 gasoline pumps brightly illuminated the lot, and at least four cars were stationed at the

pumps. Plancarte answered the officer’s inquiry, “Why do you keep exposing yourself?”

by responding, “Catholic girls do it all the time.” She immediately added, “I dance at the

biker club; I’m a stripper.” The officer replied, “Well, you can’t strip in the middle of the

public.” The officer arrested Plancarte and took her to jail, where she searched Plancarte’s

purse and found a vial containing a substance that tested positive as cocaine.

The state charged Plancarte with fifth-degree controlled substance possession under

Minnesota Statutes section 152.025, subdivision 2(1) (2020), and indecent exposure under

section 617.23, subdivision 1(1), which criminalizes “willfully and lewdly expos[ing

one’s] body, or the private parts thereof.” Plancarte moved the district court to suppress the

evidence of her cocaine possession and to dismiss both charges, raising three arguments

premised on her contention that police improperly arrested her for violating the indecent-

exposure statute. She argued first that female breasts are not “private parts” under the

statute. She argued second that the statute is unconstitutionally vague. And she argued third

that penalizing her under the statute violates her right to equal protection because only

females are penalized for going topless in public. The district court expressly or implicitly

rejected each argument and denied the motion.

The parties agreed to try the case to the district court on stipulated evidence under

Minnesota Rule of Criminal Procedure 26.02, subdivision 3, preserving the issues

Plancarte now raises in this appeal. The district court evaluated the stipulated evidence,

including the body-camera footage of the arresting officer. It found Plancarte guilty on both

charges. It convicted Plancarte of indecent exposure but stayed adjudication on the

3 controlled-substance charge on probationary terms. It sentenced Plancarte to serve 90 days

in jail. Plancarte appeals.

ISSUES

I. Was the evidence sufficient to prove that Plancarte engaged in indecent exposure?

II. Did the state violate Plancarte’s constitutional right to equal protection by

prosecuting her for publicly displaying her fully exposed breasts?

ANALYSIS

Plancarte challenges her conviction of indecent exposure as unsupported by

sufficient evidence. She argues alternatively that her prosecution violated her constitutional

right to equal protection. Neither argument leads us to reverse.

I

We are not persuaded to reverse by Plancarte’s argument that the district court

received insufficient evidence to convict her of indecent exposure. We review an

appellant’s evidence-sufficiency challenge by examining the evidence in the light most

favorable to the guilty verdict to decide whether the facts and their inferences could permit

the fact-finder to reasonably find the defendant guilty beyond a reasonable doubt. State v.

Griffin, 887 N.W.2d 257, 263 (Minn. 2016). But Plancarte’s evidence-sufficiency

argument turns on the meaning of the statute of conviction, which calls us to interpret the

statute de novo. State v. Pakhnyuk, 926 N.W.2d 914, 920 (Minn. 2019). Relevant here, the

indecent-exposure statute establishes that “[a] person who commits . . . the following act[]

in any public place, or in any place where others are present, is guilty of a misdemeanor: . . .

willfully and lewdly exposes the person’s body, or the private parts thereof.” Minn. Stat.

4 § 617.23, subd. 1(1). Plancarte’s primary theory in the district court was that her breasts do

not fall under the category of “private parts,” and her primary theory on appeal is that her

mere public display of them does not satisfy the statutory term, “lewdly.” Plancarte did not

expose her body, but only parts of it, so she engaged in indecent exposure only if the parts

she exposed were “private parts” and she exposed them “willfully and lewdly.” Our de

novo review of these related elements leads us to reject her argument that her conduct did

not offend the statute.

A woman’s fully exposed breasts are “private parts” for the purpose of applying the indecent-exposure statute.

Plancarte asserts that she “disagrees” with the district court’s decision that a

woman’s fully exposed breasts are “private parts” under the indecent-exposure statute. She

deems the district court’s decision on this point “irrelevant” and does not directly challenge

it with a formal argument. The state defends the district court’s decision as a proper

application of the statute as a matter of law. We address the issue in this context.

The indecent-exposure statute nowhere defines “private parts.” And neither the

supreme court nor this court has directly addressed whether the term includes a woman’s

breasts. But we are confident that the legislature intended it to. Our objective when

interpreting a statute is to determine legislative intent, and we determine legislative intent

based on the statute’s language alone, if it is unambiguous. State v. Wiltgen, 737 N.W.2d

561, 570–71 (Minn. 2007). The intent of the indecent-exposure statute is clear on its

unambiguous language. And the policy of the statute is also clear: “to remedy the mischief

of people lewdly exposing themselves to others, that is, to curb the offense or annoyance

5 or even fear others may experience when they view lewd conduct.” Fordyce v. State, 994

N.W.2d 893, 900 (Minn. 2023) (emphasis omitted). We consider whether “private parts”

includes fully exposed breasts in this framework.

The statutory context of the term “private parts” in Minnesota’s indecent-exposure

prohibition satisfies us that it includes female breasts. We are aided here by the canon

against surplusage, an intrinsic canon that favors assigning each statutory word or phrase

a distinct meaning. State v. Thonesavanh, 904 N.W.2d 432, 436–37 (Minn. 2017); State v.

Prigge, 907 N.W.2d 635, 638 (Minn. 2018). The legislature expressly excludes public

breastfeeding from prosecution for indecent exposure in a subdivision of the same statutory

section. Minn. Stat. § 617.23, subd. 4 (2020) (“It is not a violation of this [indecent-

exposure] section for a woman to breastfeed.”). The breastfeeding exclusion is significant

for our analysis, because we must “interpret a statute as a whole so as to harmonize and

give effect to all its parts, and where possible, no word, phrase, or sentence will be held

superfluous, void, or insignificant.” Rushton v. State, 889 N.W.2d 561, 564 (Minn. 2017)

(quotation omitted). If, as Plancarte argued to the district court, female breasts are

categorically not “private parts,” the legislature would have no need to expressly except

breastfeeding from indecent exposure. That is, the caveat is meaningless unless breasts are

within the statute’s private-parts category. This distinction in Minnesota law draws us away

from those jurisdictions that have looked primarily to indecent exposure in the common

law to limit “private parts” to male and female genitalia. See, e.g., State v. Moore, 194 Or.

232, 240–41 (1952) (observing that because the term “private parts” commonly “refer[s]

6 to the genital organs,” “[a] woman’s breasts do not 1 come within the designation”).

Although this is a close issue, we hold that the district court correctly rejected Plancarte’s

contention that female breasts are not private parts under Minnesota’s indecent-exposure

law. 2

We refer to this as a close issue only because another source of statutory

interpretation—common usage—does not provide a clear answer here. Common usage is

usually a trusty guide to interpreting statutory terms, because we should construe statutorily

undefined words and phrases “according to their common and approved usage.” Minn.

Stat. § 645.08(1) (2022). One source to discern common usage is the dictionary, and

relying only on the dictionary might favor Plancarte. See Oxford English Dictionary 516

(2d ed. 1991) (defining private parts as “the external organs of sex, the pudenda”). But

investigating the common usage of the term “private parts” from additional sources leads

to mixed results. For example, looking to references in Minnesota caselaw, we see that

some individuals have used the term “private parts” in a manner that does not include

breasts, see State v. Morales-Mulato, 744 N.W.2d 679, 683 (Minn. App. 2008)

1 We observe a material distinction between two reporters regarding the quoted language. The version found within the regional reporter provides that a “woman’s breasts do come within the designation.” State v. Moore, 241 P.2d 455, 459 (Or. 1952) (emphasis added). But the official reporter provides that breasts “do not” constitute private parts. Moore, 194 Or. at 240–41 (emphasis added). We rely on the opinion as presented by the Oregon Supreme Court. 2 This opinion addresses only the legal issues presented in this appeal, and it therefore does not attempt to discuss the hypothetical, outlier factual circumstances raised in the dissenting and concurring opinions. That is, because this case involves the allegedly lewd conduct of an adult female with exposed, intact breasts, we have no occasion to discuss the “non-lewd conduct of a breast cancer survivor who had her breasts surgically removed” or the “non-lewd conduct” of any other classes referenced in those opinions.

7 (“Complainant testified that appellant touched her breasts and private parts . . . .”), rev.

denied (Minn. Apr. 29, 2008), while others have used the term so as to include breasts, see

State v. Bryant, 378 N.W.2d 108, 109 (Minn. App. 1985) (“By private parts, I mean her

breasts and her vaginal or crotch area[.]”), rev. denied (Minn. Jan. 23, 1986). Likewise,

indecency statutes of some other states expressly or implicitly include breasts within the

private-parts category, like South Carolina, see S.C. Code Ann. § 16-3-600 (2022)

(“‘Private parts’ means the genital area or buttocks of a male or female or the breasts of a

female.”), while others exclude them, like Ohio, see State v. Parenteau, 564 N.E.2d 505,

506 (Ohio 1990) (“Quite simply, a breast is not a ‘private part’ within the meaning of this

section.”). See also People v. Garrison, 412 N.E.2d 483, 490 (Ill. 1980) (reasoning that the

term “private parts” are those areas “of the person which instinctive modesty, human

decency, or common propriety require shall be customarily kept covered in the presence of

others” and concluding that “[t]hese areas include . . . female breasts”) (quotation omitted).

We therefore could not rely only on how the undefined term “private parts” is commonly

used to resolve our issue, and our choice not to treat the legislature’s breastfeeding caveat

as surplusage directs our holding.

A woman’s intentional display of her fully exposed breasts in the parking lot of a convenience store during routine business hours is lewd conduct that violates the indecent-exposure statute.

Plancarte’s statutory argument has evolved on appeal, as she contends that the

evidence was insufficient to prove that she engaged in indecent exposure because the state

proved only that she exposed her breasts, not that she exposed them lewdly. It is true, as

Plancarte argues, that we have previously held that to avoid running afoul of the right to

8 freedom of expression implied by the First Amendment, the state “must prove that conduct

that is alleged to be lewd, lascivious, or indecent is legally obscene under” the United States

Supreme Court’s obscenity standard, citing Miller v. California, 413 U.S. 15, 24 (1973).

State v. Botsford, 630 N.W.2d 11, 13 (Minn. App. 2001), rev. denied (Minn. Sept. 11,

2001); see also State v. Duncan, 605 N.W.2d 745, 750 (Minn. App. 2000), rev. denied

(Minn. Apr. 18, 2000) (concluding that “lewd and lascivious behavior is synonymous with

obscene behavior”). Although we did not say so explicitly, this implied obscenity element

applies to expressive conduct specifically, not to conduct that is not expressive. This is

because the First Amendment and article I, section 3, of the Minnesota Constitution protect

only speech and expressive conduct. See Koppinger v. City of Fairmont, 248 N.W.2d 708,

712 (Minn. 1976). And not all nude conduct is expressive, see City of Erie v. Pap’s A.M.,

529 U.S. 277, 289 (2000) (plurality opinion) (“Being ‘in a state of nudity’ is not an

inherently expressive condition.”). For our purposes, particularly in light of Plancarte’s

statement to police implicitly aligning her parking-lot conduct with her biker-bar dancing

and stripping, we will assume for the sake of this analysis that her conduct at issue here

was expressive. But we hold that her expressive conduct was nevertheless not

constitutionally protected from prosecution on the theory that it was not obscene.

Plancarte builds her argument on an apparent misunderstanding of law, resting on

the maxim that “nudity in and of itself is not obscene.” She cites State v. Casillas, 952

N.W.2d 629, 639 (Minn. 2020), for this proposition, and she maintains that her conduct

was not obscene because she “did not simulate sex acts, touch her breasts or body in a

suggestive way, engage in a sexualized performance” or otherwise accentuate that her

9 breasts were exposed. The dissent adopts the same error. Plancarte misapplies Casillas by

ignoring the circumstances of that case. The Casillas court stated that nudity is not by itself

obscene in the context of nudity that was depicted in images and disseminated to others,

id. at 634, not in the context of live, in-person nudity in a public place. In contrast to

depicted nudity, public nudity by itself is not typically protected conduct at all. Contrary

to Plancarte’s implied premise that public nudity requires some form of performance to

constitute obscenity, the state supreme court has instead stated, “[N]udity is not

[constitutionally] protected expression, but conduct.” Koppinger, 248 N.W.2d at 711. The

Koppinger court reasoned that public “[n]udity was a traditional common-law crime,”

adding that “[t]he state has a valid interest in prohibiting public nudity.” Id. As that court

further observed, for First Amendment purposes, a genuine practical and legal distinction

separates lewd public conduct from the “depiction of such conduct in print and film.” Id.

at 712. It therefore emphasized that the United States Supreme Court has “recognized a

greater power in legislatures to suppress lewd conduct than to suppress depictions of the

same conduct.” Id.

Consistent with the Koppinger court’s reasoning, we observe that the caselaw

presents a spectrum of circumstances involving nudity, with some circumstances inviting

significant constitutional protection and others having no protection at all. These

circumstances fall roughly into four categories. The first category involves circumstances

least likely to be held obscene and therefore most protected under the First Amendment:

print and video depictions of nudity. See, e.g., Ginsberg v. New York, 390 U.S. 629, 632–

34 (1968) (addressing pornographic “magazines [that] contained pictures which depicted

10 female nudity” and observing that they “are not obscene for adults”). The second category

receives less protection but is also unlikely to be treated as obscene. It involves live

theatrical performances where nudity occurs only briefly in the context of a larger

production, particularly where the nudity is subtle and presented in subdued fashion. See,

e.g., Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 555, 562 (1975) (prohibiting city from

denying a promotor’s request to present the theatrical performance Hair as an attempt to

prevent the show from reaching the public); Se. Promotions, Ltd. v. City of Atlanta, 334 F.

Supp. 634, 637 (N.D. Ga. 1971) (describing limited nudity in Hair).

The third category on the spectrum, which has some but little constitutional

protection, are in-person performances of nudity and sexualized behavior in liquor-serving

strip clubs, where nudity and sexualized conduct are central and where those present are

adults who know they will encounter this kind of behavior. In Knudtson v. City of Coates,

for example, the state supreme court held that nude dancing in bars is protected, expressive

conduct, but the court nevertheless validated a city ordinance requiring dancers to have

their “buttocks, anus, breast and genitals covered with a non-transparent material.” 519

N.W.2d 166, 167 n.2, 169 (Minn. 1994). And the United States Supreme Court put this

type of behavior at the limit of constitutionally protected expression, reasoning,

“[Barroom] nude dancing of the type at issue here is expressive conduct . . . [that] falls

only within the outer ambit of the First Amendment’s protection.” Erie, 529 U.S. at 289.

Fourth and finally are the cases that have resulted in no First Amendment protection at all.

These include circumstances involving a live display of nudity in a place where nudity is

abnormal and where unsuspecting members of the public, including minors, may be

11 present. See, e.g., State v. Prince, 206 N.W.2d 660, 660 (Minn. 1973) (affirming indecent-

exposure conviction of a man who “stood completely naked in the doorway of his home

and attracted the attention of three passing high school girls”). The unprotected treatment

of this latter circumstance follows the Supreme Court’s reasoning that no protection

extends to material that is “so offensive as to make it unacceptable under current

community mores.” Manual Enterprises, Inc. v. Day, 370 U.S. 478, 482 (1962). We can

see where Plancarte’s conduct, which is unacceptable under current community mores, fits

on this spectrum.

We are satisfied that a fact-finder could conclude that Plancarte’s conduct was

obscene and therefore lewd and subject to prosecution as indecent under the statute.

Although she referenced her biker-bar dancing and stripping to explain her behavior, the

charged behavior occurred in a far more public place. We hold that her conduct does not

draw even the low level of constitutional protection afforded to barroom nude dancing.

Unlike the conduct in the barroom cases, Plancarte bared her breasts in the parking lot of a

convenience store during routine business hours. She did it in a place where ordinary

members of the public come to buy everyday merchandise. It is a place where nude

exhibitionism is so shockingly out of the ordinary that no one can be surprised that the

police were immediately summoned. Everyone doing business there would expect

everyone else to be fully clothed. Adult patrons, not uncommonly accompanied by their

children, regularly enter gas-station parking lots and conduct business both inside and

outside the store. Plancarte’s display of her private parts aligns with that of the appellant

in Prince, 206 N.W.2d at 660, whose indecent-exposure conviction for having stood nude

12 in his own doorway the supreme court affirmed—implicitly treating the conduct as lewd

and obscene. The district court had a sufficient factual and legal basis to treat Plancarte’s

exposure as lewd.

We decline Plancarte’s and the dissent’s urging to reach a different conclusion by

analyzing her conduct under Miller, where the Supreme Court established a three-factor

test to determine obscenity for expressive conduct:

[1] whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; [2] whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and [3] whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

413 U.S. at 24 (citations omitted). The Miller Court was addressing printed pornography,

which it described as “a mass mailing campaign to advertise the sale of illustrated books,

euphemistically called ‘adult’ material.” Id. at 16. It did not involve live, in-person public

nudity in a place where nudity is uncommon and unexpected under community norms, like

the conduct in this case, and the opinion does not suggest that the test should be applied in

this circumstance. By the terms of the test, the Miller factors apply to a “work” that “depicts

or describes” nudity or sexual behavior. Id. at 24; see also Minn. Stat. § 617.241 (2022)

(statutorily defining obscenity similarly as a “work” that, “as a whole, appeals to the

prurient interest in sex and depicts or describes” sexual conduct “in a patently offensive

manner”). Fifteen published Minnesota appellate decisions discuss or apply the Miller

test—all of them involving sexual depictions, descriptions, or performances in places

where adults gather in attendance. See, e.g., State v. Davidson, 481 N.W.2d 51, 54–55

13 (Minn. 1992) (applying Miller to sale of pornographic magazines depicting adults); State

v. Carlson, 216 N.W.2d 650, 651 (Minn. 1974) (applying Miller to film graphically

portraying explicit sexual contact); State v. Muccio, 890 N.W.2d 914, 925–26 (Minn. 2017)

(applying Miller to communication with a child describing sexual conduct); Knudtson, 519

N.W.2d at 169 (applying Miller to nude barroom dancing). None have applied the Miller

test to live, open, in-person public nudity.

We observe that even if we were to apply the Miller test here, we are certain the

result would be the same. The state supreme court specifically relied on Miller for the

proposition that undergirds our decision today: “Because nudity is prevalent in advertising,

movies and video, . . . it does not follow that nude dancing in bars should be similarly

allowed. What distinguishes the latter is its physical immediacy for the onlooker.”

Knudtson, 519 N.W.2d at 169 (citing Miller, 413 U.S. at 26 n.8). The Knudtson court then

characterized “[n]ude dancing in bars [as] expressive conduct, . . . a kind of ‘hybrid

speech,’” entitled to limited constitutional protection that is not violated even by a city

ordinance altogether prohibiting nude dancing in bars. Id. We are certain that if a city can

penalize or prohibit live, nude expressive conduct in an enclosed bar, the state can penalize

live, nude non-expressive exposure in a Kwik Trip parking lot. We hold that the evidence

was sufficient to allow the district court to find that Plancarte’s intentional full exposure of

her breasts in the convenience store parking lot during business hours was lewd conduct

that violates the indecent-exposure statute.

14 The dissent does not alter our conclusion that the evidence supports Plancarte’s conviction.

The dissenting opinion does not change our view that the evidence supports the

indecent-exposure guilty verdict. But its well-reasoned analysis merits our response to

highlight four points of departure.

The first point of departure is a matter of fact. The dissent bolsters its analysis by

emphasizing that “the record evidence . . . includes no testimony from anyone who saw

what Plancarte did” and stresses that the body-camera video of the arresting officer fails to

establish lewd exposure of Plancarte’s breasts. The dissent then expresses its “deep[]

concern[] about the district court’s decision to infer the exposure of Plancarte’s breasts in

their entirety” and suggests that we should more strictly scrutinize the evidence. But

Plancarte has not argued on appeal that the evidence of her exposure was purely

circumstantial. And we rely on the fact that the district court based its finding reasonably

on the caller’s report that a woman was in the parking lot with her breasts exposed, the

officer’s first-hand account corroborating that report, and the district court’s own

conclusions from the video recording. From this evidence the district court “reasonably

infer[red that] the entirety of Ms. Plancarte’s breasts had been exposed when the officer

first observed her.” The evidence also includes Plancarte’s apparent corroboration,

implicitly equating her parking-lot exposure to her conduct of dancing and stripping at a

bar when the officer asked for an explanation. We have no reason to sua sponte disregard

or question the district court’s reasonable characterization of the evidence.

15 The second point of departure concerns the dissent’s belief that our holding renders

superfluous the statutory elements of “lewdly” and “public place.” We believe, instead,

that the same conduct may prove multiple elements. While it might not be lewd for a

stripper to willfully expose her breasts in some public places, see, e.g., Botsford, 630

N.W.2d at 15, we are confident that a fact-finder may conclude that engaging in that

behavior is, by itself, obscene and therefore lewd when it occurs in a public place where

the general public does not expect it, particularly but not exclusively where children are

not uncommonly present. See, e.g., Prince, 206 N.W.2d at 660 (affirming indecent-

exposure conviction of man who merely “stood completely naked in the doorway of his

home and attracted the attention of three passing high school girls”); Ginsberg, 390 U.S.

at 634–35 (recognizing that state may ban the sale of magazines containing nudity to

children even though they may not be obscene for adults); Ashcroft v. Free Speech Coal.,

535 U.S. 234, 251–52 (2002) (observing that the government may “punish adults who

provide unsuitable materials to children”). We are satisfied that fully exposing one’s

breasts in a convenience store parking lot at once meets the lewd and public-place elements.

Third, we think the dissent’s analogy to dissimilar circumstances supports rather

than contradicts our rationale. The dissent’s discussion highlights the context-based

application of the statute. For example, the dissent posits whether breast exposure “to

varying degrees” at “the Academy Awards and New York Fashion Week” or “a woman

without nipples who exposes her breasts” constitutes lewd behavior. The question becomes

much easier if it is whether Plancarte’s conduct would constitute lewd or obscene behavior

if it had occurred at a school-bus stop or at an airport gate. Can we reasonably suppose that

16 the supreme court, which held that a man standing naked in the doorway of his home

violates the indecent-exposure statute, Prince, 206 N.W.2d at 660, would reach a different

conclusion if the naked man is instead walking or standing near a playground or in a

parking lot? We are confident that the answer is no, because location is necessarily an

essential part of the lewdness assessment. This is why the supreme court discussed the

location of the nude dancing in Knudtson, 519 N.W.2d at 169, and why the United States

Supreme Court discussed it in Erie, 529 U.S. at 289. As we have reasoned, location and

circumstance are critical factors in every analysis in cases involving alleged, nudity-based

obscenity.

And fourth, as a matter of fact and law, for largely the same reasons we disagree

with the dissent’s implication that Plancarte’s conduct falls short of lewd exposure because

the evidence “did not show that she directed attention to her breasts, lifted her shirt to show

her breasts, made sexual movements or sounds, touched her breasts, touched any other

person, or in any way tried to engage others.” As a matter of fact, the district court, sitting

as fact-finder in the stipulated-facts trial, observed that the district court judge in the

omnibus hearing had previously found that, “[u]pon arrival, Officer Schroder observed

Eloisa Plancarte . . . walking away from the Kwik Trip store towards the gas pumps with

her shirt pulled up and her breasts exposed.” The district court was free to infer that walking

around a convenience store parking lot in this manner during regular business hours is

conduct that proves Plancarte was directing attention to her breasts. Again, Plancarte’s own

statement resolves any doubt; by impliedly comparing her conduct to dancing and stripping

at a biker bar, she provided sufficient basis for the district court to infer that she was

17 intentionally drawing attention to her breasts. And more important, as a matter of law, we

reiterate that the maxim that “nudity in and of itself is not obscene” arose in the context of

depictions of nudity, Casillas, 952 N.W.2d at 639, not open, live, in-person, public nudity

in places where public nudity sharply contradicts societal norms of decency and

community mores.

II

Plancarte argues alternatively that the state violated her constitutional right to equal

protection by prosecuting her for exposing her breasts, while the state would not prosecute

a male for exposing his chest. The argument fails under established precedent. We have

already rejected a similar equal-protection argument even in a circumstance where less

modesty is expected than in a parking lot, holding that women who sunbathe topless are

not similarly situated with men who sunbathe topless. State v. Turner, 382 N.W.2d 252,

255, 256 (Minn. App. 1986), rev. denied (Minn. Apr. 18, 1986). Turner’s holding has

withstood the test of time, as “[t]he majority of courts considering equal protection

challenges have upheld [indecent-exposure] laws prohibiting women, but not men, from

exposing their breasts.” Free the Nipple - Springfield Residents Promoting Equal. v. City

of Springfield, 923 F.3d 508, 510 (8th Cir. 2019). Plancarte offers no convincing reason

for us to upset that precedent here.

DECISION

Plancarte’s fully exposed breasts are “private parts” for the purpose of applying the

indecent-exposure statute. Her intentional display of them in the parking lot of the Kwik

18 Trip constitutes lewd conduct that violates the indecent-exposure statute. And the state did

not violate her right to equal protection by prosecuting her.

Affirmed.

19 SCHMIDT, Judge (concurring specially)

I concur in the result. I write separately because I share many of the concerns

expressed by the dissent.

I would not decide whether a woman’s breasts constitute “private parts” under the

statute. Minn. Stat. § 617.23, subd. 1(1) (2020). Instead, I would affirm the district court’s

decision because I believe appellant “willfully and lewdly expose[d]” her “body.” Id. Such

a conclusion could apply equally to a shirtless man, depending on the actions of the

individual and the context of the exposure.

The majority and the dissent agree on the elements for a person to be guilty of

indecent exposure: a person intended to expose their body (“willfully”) + lewd conduct

(“lewdly”) + actually engaging in some form of exposure (“exposes the person’s body, or

private parts thereof”). The majority and the dissent part ways on the interpretation and

application of the statutory term “lewdly.”

I join in the result to affirm appellant’s conviction because “lewdly” cannot be

analyzed under a subjective standard given that the Minnesota Supreme Court has held

that “the offense of indecent exposure is a general-intent crime.” State v. Jama,

923 N.W.2d 632, 637 (Minn. 2019). A different conclusion would allow a person to avoid

criminal consequences under the indecent exposure statute by saying they are simply

enjoying the feeling of the fresh air as they walk around a public park with no pants and

underwear. Such conduct would clearly qualify as “lewd” under the indecent exposure

statute because the purpose of the statute “aims to protect those subjected to the lewd

conduct of others from being offended, annoyed, or fearful.” Fordyce v. State,

CS-1 994 N.W.2d 893, 901 (Minn. 2023). Given the supreme court’s broad reading of the

indecent exposure statute, id., I cannot agree that “lewdly” should be read such that the

state must prove the actor intended their conduct to be lewd.

The actions of appellant, combined with the context of her exposure, demonstrated

that she “willfully” and “lewdly” exposed her body. The stipulated evidence includes a

police report, which noted a police officer responded to “repeated calls for service”

reporting “a female exposing her breasts while walking around the parking lot.” The

exposure occurred at a gas station, which—unlike a private night club that includes age

restrictions—is open to the entire public without restriction. When the officer arrived on

the scene, he observed appellant “exposing her breasts.” The record further reflects that

the officer recognized appellant from “two similar exposure priors from the last week.”

When the appellant saw the officer on this occasion, the district court found that appellant

“quickly” tried to cover up her breasts.

In finding appellant guilty of indecent exposure, the district court specifically

determined that appellant “exposed her breasts ‘lewdly.’” In doing so, the district court

found appellant “is an exhibitionist,” a finding supported by the record given the officer

recognized appellant from two prior indecent exposure incidents from the last week. The

district court further found that “such exhibitionism is motivated by an urge for sexual

arousal / gratification.” Whether an act constitutes lewd conduct is a question to be found

by the fact finder. See Miller v. California, 413 U.S. 15, 24 (1973) (stating the “trier of

fact” must determine whether an act is obscene). In applying the sufficiency of the

CS-2 evidence standard and viewing the evidence in the light most favorable to the verdict, 1 I

cannot say that, on this record, the district court’s finding that appellant “lewdly” “exposed

her breasts” was unsupported by the evidence.

I also agree that we must reject appellant’s Equal Protection arguments under

binding precedent. We are bound by State v. Turner, which held that a citation for

sunbathing topless in violation of an ordinance that prohibited exposing “female breast[s]

below the top of the areola” did not violate the Equal Protection Clause. 382 N.W.2d 252,

253, 255-56 (Minn. App. 1986), rev. denied (Minn. Apr. 18, 1986). Since this court

decided Turner, the Minnesota Legislature has amended the statute at least five times. See

1994 Minn. Laws ch. 636, art. 2, § 54, at 2220; 1995 Minn. Laws ch. 226, art. 2, § 31, at

1795-96; 1996 Minn. Laws ch. 408, art. 3, § 37, at 650-51; 1998 Minn. Laws ch. 367, art.

3, § 14, at 710-11; 1998 Minn. Laws ch. 369, § 2, at 796-97. When the legislature does

not amend a judicial construction of a statute, the court’s construction stands. See

W. Union Tel. Co. v. Spaeth, 44 N.W.2d 440, 441 (Minn. 1950) (“The judicial construction

of a statute, so long as it is unreversed, is as much a part thereof as if it had been written

into it originally.” (quotation omitted)); State v. Anderson, 666 N.W.2d 696, 700 (Minn.

2003) (“We have recognized that when the legislature does not amend our construction of

a statute, the court’s construction stands.”). Given that the legislature has amended the

statute multiple times, yet refused to amend the law to provide for a blanket exemption for

the exposure of women’s breasts, I agree that we should not overturn Turner.

1 State v. Griffin, 887 N.W.2d 257, 263 (Minn. 2016).

CS-3 The legislature has, however, created an exemption in the statute for the exposure

of a woman’s breasts while breastfeeding. See 1998 Minn. Laws ch. 369, § 2, at 797. That

provision remains in the statute today. See Minn. Stat. § 617.23, subd. 4 (2022) (“It is not

a violation of this section for a woman to breastfeed.”). The exemption represents a

legislative policy decision to declare that neither the body part (a woman’s breasts) nor the

specific act (breastfeeding) constitutes “lewd” conduct. Because the statute provides an

exemption for the exposure of a woman’s breasts while breastfeeding but has not exempted

the exposure of a woman’s breasts in any other context, the legislature intended the statute

to apply to the circumstances in this case—a woman “willfully” and “lewdly” exposing her

body in public. Minn. Stat. § 617.23, subd. 1(1).

I add the above reasoning for context as to why I join in affirming appellant’s

conviction. I also write separately, however, because I share the valid and well-reasoned

concerns articulated by the dissent. Like the dissent, I am concerned that this statute could,

on its face, be improperly used to attack non-lewd conduct of transgender women and

transgender men. The statute could also be interpreted to criminalize non-lewd conduct of

a breast cancer survivor who had her breasts surgically removed. These specific issues are

not before us in this case because appellant did not contend the statute is “vague” or

“overbroad” in this appeal. Nonetheless, these concerns are not currently accounted for in

the statute. It may be time for the Minnesota Legislature to re-examine this law and

determine whether additional exemptions—beyond breastfeeding—are warranted. But

given the language of the current version of the statute, I concur in the result.

CS-4 BRATVOLD, Judge (dissenting)

I respectfully dissent. After a stipulated-evidence trial, the district court convicted

appellant Eloisa Rubi Plancarte of indecent exposure under Minn. Stat. § 617.23, subd. 1

(2020), and granted a stay of adjudication on fifth-degree unlawful possession of a

controlled substance under Minn. Stat. § 152.025, subd. 2(1) (2020). In this appeal,

Plancarte raises two legal challenges to her conviction for indecent exposure. I would

reverse.

First, to sustain Plancarte’s indecent-exposure conviction, the state must prove

beyond a reasonable doubt that she “willfully and lewdly” exposed her body or private

parts in a public place. Minn. Stat. § 617.23, subd. 1(1). The relevant statute and binding

precedent require the state to prove that Plancarte’s conduct was lewd and, more

specifically, obscene. The record evidence—which includes no testimony from anyone

who saw what Plancarte did—fails to prove that Plancarte’s exposure of her breasts was

lewd or obscene. Thus, I would reverse her conviction.

Second, Plancarte argues that the interpretation and application of Minn. Stat.

§ 617.23 (2020) to criminalize nude female breasts and not male breasts violates the right

to equal protection under the United States and Minnesota Constitutions. Because I would

reverse her conviction based on the legal insufficiency of the evidence, I need not reach

this issue. If I were to consider the issue, however, I would not rely on this court’s decision

in State v. Turner for reasons that I explain below. 382 N.W.2d 252 (Minn. App. 1986),

rev. denied (Minn. Apr. 18, 1986).

D-1 I. The evidence is not sufficient to sustain Plancarte’s conviction for lewdly exposing her “body, or the private parts thereof.”

Plancarte argues that the evidence is not sufficient to prove that she “lewdly”

exposed her breasts. We review an appellant’s sufficiency challenge by examining the

evidence in the light most favorable to the guilty verdict or finding to decide whether the

facts and the inferences from them could permit the fact-finder to reasonably find the

defendant guilty beyond a reasonable doubt. State v. Griffin, 887 N.W.2d 257, 263 (Minn.

2016). “A sufficiency-of-the-evidence claim that turns on the meaning of the statute under

which a defendant has been convicted” is a question of law that is reviewed de novo. State

v. Pakhnyuk, 926 N.W.2d 914, 920 (Minn. 2019).

Before determining the sufficiency of the evidence, I interpret the language of the

indecent-exposure statute. Second, I consider the majority’s interpretation of this statute.

Third, I review the record evidence to determine whether it is sufficient to sustain

Plancarte’s conviction.

A. The plain meaning of “lewdly exposes” in Minn. Stat. § 617.23, subd. 1, criminalizes obscene exposure of the body.

Minnesota’s indecent-exposure law provides: 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

D-2 (3) engages in any open or gross lewdness or lascivious behavior, or any public indecency other than behavior specified in this subdivision.

Minn. Stat. § 617.23, subd. 1 (emphasis added). This is a general-intent crime, which

means that the state must “prove that the offender committed the prohibited act volitionally

or deliberately, as opposed to accidentally.” State v. Jama, 923 N.W.2d 632, 637 (Minn.

2019) (interpreting Minn. Stat. § 617.23, subd. 1(3) (2018)).

The state charged Plancarte under subdivision 1(1). As generally explained in the

concurrence, the crime of indecent exposure in subdivision 1(1) has four elements:

(1) willful exposure, (2) lewd exposure, (3) of the person’s body or private parts, (4) in any

public place or any place where others are present. Minn. Stat. § 617.23, subd. 1(1). On

appeal, Plancarte does not dispute the first, third, or fourth elements. Plancarte challenges

only whether the state sufficiently proved that she “lewdly expose[d]” her breasts. Id. Her

challenge, therefore, requires this court to interpret what it means to “lewdly” expose the

body under Minn. Stat. § 617.23.

The legislature has not defined “lewdly.” “[O]ur objective in statutory interpretation

is to effectuate the intent of the legislature.” State v. Stay, 935 N.W.2d 428, 430 (Minn.

2019) (quotation omitted); accord Minn. Stat. § 645.16 (2022). If “the legislature’s intent

is clearly discernable from plain and unambiguous language, statutory construction is

neither necessary nor permitted and [appellate courts] apply the statute’s plain meaning.”

Stay, 935 N.W.2d at 430 (quotation omitted). “To determine whether a statute is

ambiguous, we first construe words and phrases in the statute according to rules of

grammar and according to their common and approved usage.” Fordyce v. State,

D-3 994 N.W.2d 893, 897 (Minn. 2023) (quotations omitted). “When a statute does not define

terms, we may look to the dictionary definitions of those words and apply them in the

context of the statute to determine whether the phrase has a plain and unambiguous

meaning.” Id. (quotation omitted).

Our caselaw has identified a dictionary definition of lewd and applied it to a law

similar to section 617.23. In State v. Botsford, we “concluded that the terms lewd and

lascivious are synonymous with obscene” by relying on a definition from Black’s Law

Dictionary. 630 N.W.2d 11, 17 (Minn. App. 2001), rev. denied (Minn. Sept. 11, 2001). 1

Botsford was a dancer at a nightclub charged with violating a city ordinance that

criminalized “lewd or lascivious conduct” or “indecent or lascivious exposure of the human

body or any part thereof.” Id. at 14. The district court denied Botsford’s motion to dismiss

the charge and certified a question to this court—whether the state was required “to prove

that her performance was legally obscene under Miller v. California,” 413 U.S. 15 (1973).

Id.

This court answered affirmatively, holding first that the regulation of lewd and

lascivious conduct “must conform to the guidelines set forth in Miller.” Id. at 17. We then

noted that “[s]omething that is sexually expressive is not necessarily obscene,” and

therefore, “application of the Miller obscenity standards is the only way to ensure that the

1 Using another dictionary, this court rejected a vagueness challenge to the “open or gross lewdness or lascivious behavior” language in Minn. Stat. § 617.23 (1984) and reasoned that the “commonly accepted definition of lewdness is the quality of being openly lustful or indecent.” City of Mankato v. Fetchenhier, 363 N.W.2d 76, 79 (Minn. App. 1985) (citing Webster’s New Universal Unabridged Dictionary 1041 (2d ed. 1983)).

D-4 regulation . . . conforms to the constitution.” 2 Id. We affirmed that the “test for obscenity”

is set out in Miller and “must be applied to all cases involving allegations of lewd and

lascivious behavior.” Id. at 16 (emphasis added) (citing Miller, 413 U.S. 15.). 3

Based on the statutory language and prior precedent from this court, I conclude that

the second element of the crime of indecent exposure requires the state to prove beyond a

reasonable doubt that Plancarte’s intentional exposure of her breasts in a store parking lot

was obscene. Below, I discuss relevant caselaw about what is evidence of obscene conduct.

Before I turn to the evidence, however, I examine the majority’s interpretation of the

indecent-exposure statute.

B. The majority’s interpretation does not comport with the plain meaning of “lewdly exposes” in Minn. Stat. § 617.23, subd. 1.

The legislature’s decision to require lewd conduct for the crime of indecent

exposure is significant. The legislature could have criminalized public nudity in all forms,

2 In Botsford, we noted that “displays of nonobscene, sexual conduct are [not] beyond the reach of government regulation” when there are “sufficiently important governmental interest[s] in regulating the nonspeech,” but in doing so, we narrowly pointed to statutes regulating “the exchange of money for certain sexual acts.” Id. at 17-18 (quotation omitted). 3 While Botsford explained its reasoning by quoting Miller, other Minnesota precedent reached the same conclusion without discussing Miller. In State v. Duncan, this court considered whether Minn. Stat. § 617.23(a)(3) (1996) was unconstitutionally overbroad for prohibiting “open or gross lewdness or lascivious behavior.” 605 N.W.2d 745, 747 (Minn. App. 2000), rev. denied (Minn. Apr. 18, 2000). We reasoned that the nude dancers and patrons convicted under the statute were not engaged in “protected First Amendment conduct” because we could not distinguish “lewd and lascivious behavior from what is otherwise identified as obscene.” Id. at 749. We specifically cited Black’s Law Dictionary, which defined both “lewd” and “lascivious” as “obscene.” Id. Because obscene behavior, conduct, or speech is not protected, we reasoned that it may be regulated. Id. at 750.

D-5 but it chose to criminalize willfully and lewdly exposing the body in public. Yet the

majority opinion does not attempt to articulate the plain meaning of lewd. I disagree that

Minn. Stat. § 617.23 (2020) criminalizes a “live display of nudity in a place where nudity

is abnormal and where unsuspecting members of the public, including minors, may be

present” as the majority opinion contends. In my opinion, the majority’s conclusion misses

the mark for four reasons.

First, I believe that the majority’s interpretation excises “lewdly” from the

indecent-exposure statute and renders the term void because “lewdly exposes” is simply

“exposes” in public. Minn. Stat. § 617.23, subd. 1(1). Yet caselaw requires that we

“interpret a statute as a whole so as to harmonize and give effect to all its parts, and where

possible, no word, phrase, or sentence will he held superfluous, void, or insignificant.”

Rushton v. State, 889 N.W.2d 561, 564 (Minn. 2017) (quotations omitted). The

indecent-exposure statute has four elements. I read the majority’s rule of law as “zeroing

out” the lewd-exposure element.

Second, the majority’s interpretation of the statute conflates the public-place

element with the lewd-exposure element. The legislature defined this crime to have both a

public-place element and a lewd-exposure element. “Though the

sufficiency-of-the-evidence standard is very deferential to the verdict, the due process

clause still requires that each element of the charged crime be proven beyond a reasonable

doubt.” State v. King, 990 N.W.2d 406, 416 (Minn. 2023). By choosing the word “lewdly,”

the legislature has required more than that a person intend to be nude in public.

D-6 Third, I cannot subscribe to a rule of law that holds a “woman’s intentional display

of her fully exposed breasts” in a public place “constitutes willful and lewd exposure of

her private parts” under Minn. Stat. § 617.23, subd. 1(1), as the majority opinion does.

Setting aside equal-protection concerns about adding a gender classification to neutral

language as part of our statutory interpretation, this rule raises more questions about

criminal conduct than it clarifies.

What are “fully exposed” breasts? Does “fully” require that the nipple be exposed?

If so, how much of the nipple? What if the nipple is visible through sheer clothing? Every

year, viewers of the Academy Awards and New York Fashion Week observe a variety of

fashions that expose breasts to varying degrees. Is a woman wearing similar clothing in a

convenience-store parking lot lewdly exposing her body? How does the majority’s rule

apply to a person whose gender identity differs from their sex assigned at birth? Or to a

person whose breasts have been surgically altered, which happens for a wide variety of

reasons? Is a woman without nipples who exposes her breasts lewdly exposing them? Is a

transgender woman who has not physically transitioned her breasts engaged in criminal

conduct when going topless?

Fourth, because there is ample Minnesota authority holding that lewd is

synonymous with obscene, I would follow this precedent to test the sufficiency of the

evidence against Plancarte. I am not convinced that the legislature intended to criminalize

exposed breasts because it adopted a breastfeeding exemption. Minn. Stat. § 617.23,

subd. 4 (“It is not a violation of this section for a woman to breastfeed.”). The legislature’s

decision to exempt breastfeeding from criminal sanction means that breastfeeding is not

D-7 lewd. The legislature did not say that nude breasts are lewd if those breasts are not involved

in breastfeeding.

I do not believe that Botsford is limited to nude dancing. The Minnesota Supreme

Court has used the Miller test to interpret criminal statutes recently and for decades. See,

e.g., State v. Muccio, 890 N.W.2d 914, 925 (Minn. 2017) (applying the Miller standard for

obscenity and holding that a criminal statute was not overbroad). It is true that caselaw has

accorded greater protection to depictions of nudity and nude dancing under the First

Amendment than it has to mere nudity by holding that a blanket prohibition on public

nudity is constitutional as a content-neutral restriction on symbolic speech. See, e.g., Erie

v. Pap’s A.M., 529 U.S. 277, 301-02 (2000) (plurality opinion) (upholding a ban on public

nudity as content neutral, including a law requiring that “pasties” and “G-strings” be worn

over specific body parts); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-67 (1991)

(plurality opinion) (upholding ban on public nudity). 4

But the state’s ability to constitutionally prohibit all public nudity does not guide a

court’s analysis of this indecent-exposure statute because it is not content neutral.

Section 617.23 does not prohibit all public nudity. Minnesota has criminalized “lewdly”

exposing a person’s body in public. Minn. Stat. § 617.23, subd. 1(1). Nor is it helpful to

focus on whether the alleged lewd exposure is “live, open, in-person” nudity or in print or

video, as does the majority. The indecent-exposure statute governs lewd or obscene

4 I note that the Minnesota Supreme Court has struck down as unconstitutionally overbroad a law prohibiting all nudity in places for dancing and tobacco sales, among other places. Koppinger v. City of Fairmont, 248 N.W.2d 708, 709-10 (Minn. 1976) (holding that city ordinance was “unconstitutional on its face because of substantial over-breadth”).

D-8 exposure of the body—whether via depictions, dancing, or otherwise. Indeed, our supreme

court has specifically held that an adult who transmits a likeness of the adult’s own genitals

during simultaneous online communication may be convicted for lewd exposure under

section 617.23, subdivision 1. State v. Decker, 916 N.W.2d 385, 388-89 (Minn. 2018). The

supreme court rejected the argument that indecent exposure criminalizes only exposure of

“actual genitals.” Id. at 388.

For the reasons stated, I would examine the sufficiency of the state’s evidence

against Plancarte to determine whether the state proved her conduct was obscene.

C. The evidence against Plancarte is not sufficient to sustain the conviction.

To determine whether speech is obscene, Minnesota courts apply the three-part test

the Supreme Court articulated in Miller. Botsford, 630 N.W.2d at 16-17. Under this test,

the fact-finder must determine

(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. 5

Miller, 413 U.S. at 24 (quotations omitted); accord Botsford, 630 N.W.2d at 17.

Fundamentally, the Miller test, along with related caselaw, makes a simple point

very clear: Nude is not lewd. Both the U.S. and the Minnesota Supreme Court have held

5 Plancarte raises no challenge to the district court’s determination of the third part of Miller, artistic value, but she maintains that the district court erred in its findings relating to the first two parts of Miller: that her conduct appealed to the prurient interest and that it was patently offensive.

D-9 that “nudity alone is not enough to make material legally obscene under the Miller

standards.” Jenkins v. Georgia, 418 U.S. 153, 161 (1974); accord State v. Casillas,

952 N.W.2d 629, 639 (Minn. 2020) (“[N]udity ‘in and of itself is not obscene.’” (quoting

Koppinger, 248 N.W.2d at 712 n.3)). A fact-finder’s finding of obscenity is “subject in

borderline cases . . . [to an appellate] court’s ultimate power independently to review

constitutional claims.” State v. Welke, 216 N.W.2d 641, 647 (Minn. 1974); see also

Jenkins, 418 U.S. at 160 (“Even though questions of appeal to the prurient interest or of

patent offensiveness are essentially questions of fact, it would be a serious misreading of

Miller to conclude that juries have unbridled discretion in determining what is patently

offensive.” (quotation marks omitted)).

I conclude that the state’s evidence—at best—proved only that Plancarte willfully

exposed nude breasts in public. No record evidence establishes that the exposure was lewd.

The state’s stipulated evidence of Plancarte’s conduct on July 28, 2021, was twofold. First,

the state submitted a police report that briefly describes an anonymous report to law

enforcement “of a female exposing her breasts while walking around the parking lot” of a

convenience store. This is the entirety of what was reported about Plancarte’s conduct

before the officer arrived. The police report also includes the officer’s observations of

Plancarte, repeating that she was “exposing her breasts.” The police report does not

mention Plancarte raising or lowering her shirt. Thus, the police report does not prove how

much of Plancarte’s breasts were exposed, for how long, or what she was doing apart from

D-10 walking in a parking lot. Even the district court appears to have recognized that this was

not lewd exposure. 6

The district court relied heavily on a second piece of evidence, the police officer’s

body-camera video, to find that Plancarte exposed her entire breast, which led it to

conclude that the exposure was lewd. The district court found that the video does not

“clearly” show Plancarte’s exposed breasts. The district court stated that the body-camera

video depicts Plancarte “after dark, from the side and at a distance.” In my opinion, the

video includes close-ups of Plancarte and shows—throughout Plancarte’s interaction with

the arresting officer—that Plancarte was fully clothed and her breasts were not visible.

I acknowledge that the state does not need to rely on the body-camera video. A

caller reported seeing Plancarte’s exposed breasts. But in the absence of sufficient evidence

of lewd conduct from the caller’s report, of which we have only a written summary in the

police report, it is significant the district court inferred that Plancarte exposed her entire

breast based on the body-camera video. The district court first found the body-camera

video shows that Plancarte “quickly pulled down her shirt when she saw” the officer.

(Emphasis added.) From this, the district court stated that “one reasonably infers the

entirety of Ms. Plancarte’s breasts had been exposed when the officer first observed her.” 7

(Emphasis added.)

6 The district court stated that “[p]ublic exposure of some parts of women’s breasts is plainly not criminal. If the law were otherwise, the annual display of decolletage at the Academy Awards would result in mass arrests.” 7 Plancarte’s brief to this court states that “this court may accept for purposes of sufficiency review that her entire breast was uncovered.” While I respect her decision to concede an

D-11 This is very thin reasoning given neither the caller, nor the police officer, nor the

video describes or depicts Plancarte’s “entire” breast as exposed. Because the district court

inferred that Plancarte exposed her breasts from her subsequent conduct, the state proved

its case, in part, using circumstantial evidence. Under applicable caselaw, appellate courts

scrutinize the sufficiency of circumstantial evidence to ascertain whether it supports the

verdict and will reverse if the evidence also supports a reasonable alternative hypothesis.

State v. Harris, 895 N.W.2d 592, 601 (Minn. 2017) (“To sustain the conviction, the

circumstances proved, when viewed as a whole, must be consistent with a reasonable

inference that the accused is guilty and inconsistent with any rational hypothesis except

that of guilt.”). This court should, at a minimum, examine the record evidence in light of

this caselaw and consider whether Plancarte pulled down her shirt for another reason, such

as tucking her shirt into her skirt.

The majority relies on a different part of the body-camera recording to conclude that

Plancarte’s conduct was lewd: the arresting police officer’s conversation with Plancarte.

The majority describes this conversation as showing that Plancarte “implicitly align[ed]

her parking-lot conduct with her biker-bar dancing and stripping.” I disagree with this

issue, I am deeply concerned about the district court’s decision to infer the exposure of Plancarte’s breasts in their entirety based on this extremely limited circumstantial evidence. I consider whether the record supports this characterization of the evidence because I believe doing so is consistent with the standard of review for sufficiency of the evidence. See Lapenotiere v. State, 916 N.W.2d 351, 360-61 (Minn. 2018) (describing our review of direct evidence as “painstaking” (quotation omitted)); State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010) (describing our review of circumstantial evidence as “heightened”).

D-12 description of the record. I first note that the district court’s factual findings do not mention

what Plancarte said to the officer.

Second, the body-camera video shows that, when the officer approached Plancarte,

Plancarte said that she had no warrants and the officer responded that Plancarte was “doing

the same thing that you’ve been doing.” Plancarte stated that she would “just go to jail

freely.” Plancarte then walked with the officer to the squad car and asked if the officer

wanted to “check” her. As the officer patted her down, they continued to talk.

OFFICER: Why do you keep exposing yourself? PLANCARTE: I think Catholic girls do it all the time . . . . OFFICER: I don’t think that’s how it works. .... PLANCARTE: Can you just tell me if I have to walk home . . . ? OFFICER: Yeah, well your breasts were just hanging out. PLANCARTE: I dance, I dance at the biker club, I’m a stripper. OFFICER: Well, you can’t strip in the middle of public. PLANCARTE: They should account for me . . . They should account for me at the club, shouldn’t they?

In my opinion, Plancarte’s remarks to the officer do not show that she admitted to obscene

behavior similar to stripping in the parking lot. Plancarte’s comment about being a stripper

seems to relate to being comfortable with her breasts “hanging out” or concern about going

to jail and missing work—although all court documents in this record state that Plancarte

is homeless and unemployed. 8 At the very most, this conversation is circumstantial

8 Indeed, in a September 2022 order following an examination under Minn. R. Crim. P. 20.01, the district court concluded that it had reason to doubt Plancarte’s competency and suspended proceedings against Plancarte while a second examiner was appointed. Based on the second examination, the district court allowed proceedings to resume.

D-13 evidence about what Plancarte was doing in the parking lot. Because it is reasonable to

infer from the stripper comment that Plancarte was not referring to her parking-lot conduct

at all, I conclude that the comment is not sufficient evidence of her guilt.

To summarize my view of the evidence, after reviewing the police report and

viewing the body-camera video, I conclude that the state failed to prove beyond a

reasonable doubt that Plancarte’s conduct was obscene. 9 Under Miller, the state must show

that Plancarte’s conduct “appeal[ed] to the prurient interest” or was “patently offensive.”

Botsford, 630 N.W.2d at 17. Here, the state proved only that Plancarte exposed her breasts

and did not prove that she lewdly exposed her breasts. I disagree with the concurrence that

this view of the evidence focuses on Plancarte’s subjective intent and implies that a

defendant may excuse obscene conduct by saying they are “enjoying the feeling of the

fresh air as they walk around a public park with no pants and underwear.” The Miller test,

as explained in Botsford, examines a defendant’s conduct, not their subjective intent. Id.

The state’s case against Plancarte is deficient because it failed to prove obscene conduct.

This is best seen by comparing the state’s evidence against Plancarte with the conduct of

others whose convictions for indecent exposure were reviewed on appeal and affirmed.

In Jama, the appellant was convicted of indecent exposure for “approach[ing] a

family gathering in the front yard of a home” and “pull[ing] out his penis and fondl[ing] it

9 See Jenkins, 418 U.S. at 161 (“Our own viewing of the film satisfies us that ‘Carnal Knowledge’ could not be found under the Miller standards to depict sexual conduct in a patently offensive way . . . . There is no exhibition whatever of the actors’ genitals, lewd or otherwise, during these scenes [of sexual conduct]. There are occasional scenes of nudity . . . .”).

D-14 with his hands as he gyrated his body in a manner that simulated sexual intercourse.”

923 N.W.2d at 634, 637 (holding that the indecent-exposure statute creates a general-intent

crime). In State v. Stevenson, the appellant was convicted of indecent exposure for

masturbating while sitting in the driver’s seat of his parked car facing a playground area

only ten to 15 feet away. 656 N.W.2d 235, 237 (Minn. 2003) (holding that intent to be

indecent may be inferred when conduct is performed in a place so public and open that it

is likely to be observed). In Duncan, dancers were convicted of indecent exposure for being

fully nude and making “intimate physical contact on or near the patrons’ faces, including

contacts while wrapping their legs around the patrons’ necks.” 605 N.W.2d at 747 (holding

that the indecent-exposure statute does not require specific intent to offend an unwilling

audience). In State v. Schramel, dancers were convicted of indecent exposure for

“rub[bing] their bare breasts on the face or head of the patron or wrap[ping] their legs

around the patron’s head.” 581 N.W.2d 400, 401, 403 (Minn. App. 1998) (holding that

intent to offend the sensibilities of others is not an element of indecent exposure), rev.

denied (Minn. Sept. 22, 1998). The state’s case against Plancarte did not prove any obscene

conduct analogous to that discussed in other Minnesota caselaw enforcing the

I also do not believe that the evidence in Plancarte’s case is sufficient based on the

supreme court’s analysis in State v. Prince, a per curiam opinion affirming an

indecent-exposure conviction based on evidence that the appellant “stood completely

naked in the doorway of his home and attracted the attention of three passing high-school

girls by saying, ‘Hi, girls.’” 206 N.W.2d 660, 660 (Minn. 1973). As described in Prince,

D-15 the appellant was “completely naked” and “endeavored to attract the attention of

passers-by.” Id. There is no parallel evidence against Plancarte.

The district court found that Plancarte was “not engaged in any type of overt public

sexual activity or sexual contact with others in addition to the exposure itself.” This finding

is inconsistent with the district court’s comparison of Plancarte’s conduct with that of a

male “flasher” who, according to the district court, “opens his overcoat to surprise

passers-by with a view of his unclothed genitalia.” This hypothetical is like the appellant

in Prince and unlike Plancarte—a “flasher” attempts to force others to look at genitalia.

Flashing is patently offensive conduct well beyond nudity. The state’s evidence against

Plancarte did not show that she directed attention to her breasts, lifted her shirt to show her

breasts, made sexual movements or sounds, touched her breasts, touched any other person,

or in any way tried to engage others. 10

10 The district court also erred in its analysis of the state’s evidence against Plancarte because it appears to have equated obscene with sexual. Caselaw defines the first part of Miller—prurient interest—as a “morbid, shameful interest in sex.” State v. Davidson, 481 N.W.2d 51, 59 (Minn. 1992); see also Jenkins, 418 U.S. at 161 (holding that the film Carnal Knowledge was not obscene because it did not “depict sexual conduct in a patently offensive way”); Casillas, 952 N.W.2d at 639 (“‘Sexual expression’ can be ‘indecent but not obscene’ and therefore ‘protected by the First Amendment.’” (quoting Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989)). The district court found that Plancarte “is an exhibitionist” and stated that “one gathers from the evidence that she feels some compulsion to publicly expose her sexual parts—on this occasion her breasts.” Without citing any evidence, the district court then offered the opinion that “sexual arousal and/or gratification underlies and explains the behavior” and described it as “something of a prurient, sexual nature.” I agree with the concurrence that the district court appears to have based this finding on evidence that Plancarte previously has been charged with indecent exposure. Because caselaw instructs that sexual conduct is not necessarily obscene conduct, the district court erred in its reasoning.

D-16 Because this court has repeatedly defined lewd to mean obscene and has adopted

the Miller three-part test to determine whether conduct is lewd, I would apply this standard

to the state’s evidence against Plancarte and, finding the evidence insufficient to sustain

her conviction, reverse.

II. Plancarte’s equal-protection challenge is not resolved by existing precedent.

Under the United States and Minnesota Constitutions, all individuals are guaranteed

the right to “equal protection of the laws.” State v. Johnson, 813 N.W.2d 1, 11 (Minn.

2012) (quotation omitted); see also U.S. Const. amend. XIV; Minn. Const. art. I, § 2. The

constitutionality of a statute is determined de novo. State v. Lee, 976 N.W.2d 120, 126

(Minn. 2022). Plancarte argues that her equal-protection rights were violated by her

conviction for indecent exposure of her breasts because men are “routinely allowed to

engage” in similar conduct “all across Minnesota” without any concern or prosecution for

violating the same statute. She is making an “as-applied” challenge. State v. Richmond,

730 N.W.2d 62, 71 (Minn. App. 2007) (quotation marks omitted), rev. denied (Minn.

June 19, 2007).

An appellate court, however, need “not reach constitutional issues if the appeal can

be resolved on other grounds.” Kimberly-Clark Corp. v. Comm’r of Revenue, 880 N.W.2d

844, 849 (Minn. 2016). Because I would reverse Plancarte’s conviction for indecent

exposure on sufficiency-of-the-evidence grounds, I need not reach the constitutional issue.

The majority, however, specifically interprets the relevant statute to mean that “a woman’s

fully exposed breasts are private parts” and may not be willfully and lewdly exposed. This

holding is concerning for two reasons related to Plancarte’s equal-protection argument.

D-17 First, Minn. Stat. § 617.23, subd. 1(1), criminalizes lewdly exposing the “person’s

body”; therefore, I believe that this court need not interpret “private parts” to include a

gender classification. This court may simply determine whether the evidence is sufficient

to prove that Plancarte lewdly exposed her body. By defining “private parts” to include

women’s breasts, the majority’s interpretation of the indecent-exposure statute prescribes

one rule for women, requiring them to cover their breasts, and a different rule for men,

allowing them to go topless. This adds a gender classification not otherwise found in the

Second, in my opinion, by criminalizing nude female breasts under Minn. Stat.

§ 617.23 as applied to Plancarte, the majority’s interpretation squarely raises whether the

statute violates the Equal Protection Clause. I am not satisfied that this issue is resolved by

existing precedent.

I recognize that this court in Turner considered and rejected an equal-protection

challenge to a park ordinance that expressly included a gender classification, criminalized

exposure by persons ten years of age and older of the “female breast below the top of the

areola,” and required “a fully opaque covering in or upon any park or parkway.”

382 N.W.2d at 253, 255-56 (quoting Minneapolis, Minn., Park Board Ordinance PB2-21

(1982)).

I am not persuaded, however, that Turner is binding precedent for the

indecent-exposure statute because the park ordinance was considerably narrower than the

majority’s interpretation of section 617.23. As this court explained in Turner when it

rejected an overbreadth challenge to the park ordinance: the park ordinance “specifically

D-18 states what parts of the body must be covered, the kind of covering necessary, and the age

group affected. It does not purport to regulate speech. It contains an exception for nudity

in artistic performance.” Id. at 255. Based on the differences in the language used in the

park ordinance and in the indecent-exposure statute, I would not resolve Plancarte’s

challenge by applying Turner.

I also question whether Turner’s reasoning is sound based on intervening precedent

of the United States Supreme Court. Minnesota appellate courts are “extremely reluctant

to overrule our precedent under principles of stare decisis and require a compelling reason

before overruling a prior decision.” Daniel v. City of Minneapolis, 923 N.W.2d 637, 645

(Minn. 2019) (quotation omitted); see also State v. Chauvin, 955 N.W.2d 684, 690 (Minn.

App. 2021), rev. denied (Minn. Mar. 10, 2021). “But we are not bound to unsound

principles.” Daniel, 923 N.W.2d at 645 (quotation omitted). 11

Turner analyzed the park ordinance in two steps: (1) an equal-protection analysis

did not apply because “men and women are not similarly situated”; and (2) the challenged

park ordinance served “important governmental objectives.” 382 N.W.2d at 256. First, I

examine relevant constitutional principles and then explain why I question the legal

soundness of Turner’s conclusion.

11 I am unconvinced by the legislature’s failure to amend the indecent-exposure statute to “provide for a blanket exemption for the exposure of women’s breasts,” as explained in the concurrence. The concurrence relies on caselaw about “judicial construction” and the legislature’s decision to otherwise amend the indecent-exposure statute five times since Turner was decided. But judicial-construction caselaw refers to decisions by the Minnesota Supreme Court. The concurrence does not cite any judicial-construction caselaw stating that judicial construction applies to decisions of this court.

D-19 A. Whether men and women are similarly situated in all relevant respects under the indecent-exposure statute is a threshold determination.

Plancarte maintains that she is similarly situated to men in all relevant respects. This

court heard and rejected a similar argument in Turner, in which we recognized that there

is a difference between male and female breasts. Id. at 255. We observed that “female

breasts . . . unlike male breasts, constitute an erogenous zone and are commonly associated

with sexual arousal. Common knowledge tells us that there is a real difference between the

sexes with respect to breasts.” Id. (quoting City of Seattle v. Buchanan, 584 P.2d 918, 920

(Wash. 1978)). Neither Turner nor the foreign jurisdiction it cited relied on any objective

information or data to support its analysis of what is erogenous. Plancarte’s brief to this

court refers to social-science data from 2006 that suggests otherwise or at least that some

social change is ongoing. 12 Regardless, Turner’s reliance on “common knowledge” and

“real differences” begs for reexamination under today’s societal understandings and norms.

Caselaw postdating Turner supports the view that we must revisit assumed

differences between the exposure of female breasts and male breasts. 13 I understand

Supreme Court precedent to caution that appellate courts must not mechanically apply

precedent to resolve equal-protection issues. In Sessions v. Morales-Santana, the supreme

12 According to Plancarte, nearly one in five women do not consider their breasts to be erogenous and over half of men consider their own chests to be erogenous. Roy Levin & Cindy Meston, Nipple/Breast Stimulation and Sexual Arousal in Young Men and Women, 3 J. Sexual Med. 450 (2006). 13 I note that males have breasts and may get breast cancer. See Mayo Clinic, Male Breast Cancer, https://www.mayoclinic.org/diseases-conditions/male-breast-cancer/symptoms- causes/syc-20374740 [https://perma.cc/G7SC-7V4P].

D-20 court instructed that appellate courts must evaluate gender classifications to determine

whether they “substantially serve an important governmental interest today, for ‘in

interpreting the [e]qual [p]rotection [g]uarantee, [we have] recognized that new insights

and societal understandings can reveal unjustified inequality . . . that once passed

unnoticed and unchallenged.’” 582 U.S. 47, 59 (2017) (quoting Obergefell v. Hodges,

576 U.S. 644, 673 (2015)). 14

As to the crime of indecent exposure, our legislature has recognized one physical

difference between men’s and women’s breasts—women can breastfeed, and doing so is

not lewd exposure. Minn. Stat. § 617.23, subd. 4; see also Free the Nipple-Fort Collins v.

City of Fort Collins, 916 F.3d 792, 801 (10th Cir. 2019) (recognizing one “inherent

physical difference[] . . . between women’s and men’s breasts” is “the unique potential to

nourish children”). Because the legislature created a statutory exemption for this genuine

distinction between men and women as not criminal, it is not clear why any further gender

classification is appropriate. In other words, the “real differences” between men and

women that Turner relied upon may have been addressed by the breastfeeding exemption,

which was adopted in 1998 after Turner was decided. 1998 Minn. Laws ch. 369, § 2, at

796-97.

14 In Cabon v. Mohammed, for example, the Supreme Court rejected the view that “unwed fathers [are] invariably less qualified and entitled than mothers” to take responsibility for nonmarital children. 441 U.S. 380, 382, 394 (1979); see also Morales-Santana, 582 U.S. at 76 (striking down a gender-based framework for how children born abroad acquire U.S. citizenship from birth by as violating the Equal Protection Clause).

D-21 Because Turner did not examine the indecent-exposure statute or consider the

breastfeeding exemption, I would therefore conclude that Turner does not resolve whether

men and women are similarly situated in all relevant respects under the indecent-exposure

statute.

B. The indecent-exposure statute may not survive intermediate scrutiny.

Constitutional challenges related to gender-based classifications must survive

intermediate scrutiny. See United States v. Virginia, 518 U.S. 515, 532-33 (1996)

(describing the development of the review standard after Reed v. Reed, 404 U.S.71, 73

(1971)). Appellate courts give heightened scrutiny to differential treatment based on gender

because gender “generally provides no sensible ground for differential treatment.” City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). In other words, the

gender-based classification “must serve important governmental objectives and must be

substantially related to achievement of those objectives.” Craig v. Boren, 429 U.S. 190,

197, 210 (1976) (striking down a gender-based differential for the age at which men and

women could legally buy 3.2% beer). The Supreme Court has held that when a statute

creates a gender-based classification, the burden of showing that the classification is

justified “is demanding and it rests entirely on the State.” Virginia, 518 U.S. at 532-33.

Indeed, the required justification for a gender classification must be “exceedingly

persuasive.” Id. at 524 (quotation omitted).

Turner upheld the park ordinance, in part, by recognizing the state’s interest in

“controlling public nudity and preserving society norms” and further that “[t]he gender

D-22 classification is substantially related to achieving those objectives.” 382 N.W.2d at 256. I

am unconvinced that Turner’s analysis is sound.

First, relying on “society norms” as an important government objective is one way

of saying the indecent-exposure law is “grounded in stereotypes about the way women

are.” Fort Collins, 916 F.3d at 803; see also Morales-Santana, 582 U.S. at 63 (observing

that generalizations “have a constraining impact, descriptive though they may be of the

way many people still order their lives,” because they “may create a self-fulfilling cycle of

discrimination” (quotation omitted)); Virginia, 518 U.S. at 550 (stating that

“generalizations about ‘the way women are’” typically serve no important governmental

objective).

Second, “controlling” public nudity is at best a limited government objective given

the legislature’s express exemption for breastfeeding. See Fort Collins, 916 F.3d at 802

(discussing a breastfeeding exemption to a public-nudity ordinance and noting that “even

children who weren’t exposed to their mothers’ breasts as breastfeeding infants may still

see a naked female breast if they pass a woman breastfeeding in public”).

In briefing to this court, the state appears to assume that the indecent-exposure

statute discourages public nudity that would occur in the absence of the statute—an

assumption for which there is no record support. Even if I accept this assumption,

applicable caselaw requires that the state establish a substantial justification for controlling

public nudity through a gender-based classification. In other contexts, the Supreme Court

has concluded that when the state’s interest would be “as well served by a gender-neutral

classification as one that gender classifies and therefore carries with it the baggage of

D-23 sexual stereotypes, the State cannot be permitted to classify on the basis of sex.” Orr v.

Orr, 440 U.S. 268, 283 (1979). Applying this reasoning, the Supreme Court rejected

statutory distinctions that imposed a burden upon on one gender to attain a government

goal, describing the statutes as “underinclusive.” Id. at 271-72, 278 (striking down statutory

scheme that imposed alimony obligations on husbands but not wives as a violation of the

Equal Protection Clause). Here, as a way of controlling public nudity, the

indecent-exposure statute may be underinclusive. The government can achieve its objective

by prohibiting public nudity without a gender distinction.

For the reasons stated, I reject the conclusion that this court should uphold

Plancarte’s equal-protection challenge to the indecent-exposure conviction based on

Turner. I distinguish the opinion based on its facts, intervening caselaw, and subsequent

changes in statutory law, such as adoption of the breastfeeding exemption.

I recognize that most federal courts that have considered the issue have rejected

equal-protection challenges to female-only bans on exposed breasts. 15 But some disagree.

See, e.g., Fort Collins, 916 F.3d at 805 (holding that plaintiffs made a strong showing on

likelihood of success on the merits for an equal-protection challenge to an ordinance that

imposed criminal penalties for females who exposed breasts in public); People v.

Santorelli, 600 N.E.2d 232, 237 (N.Y. 1992) (Titone, J., concurring) (stating “the

15 See, e.g., United States v. Biocic, 928 F.2d 112, 115 (4th Cir. 1991) (holding that a local ordinance prohibiting the public exposure of female, but not male, breasts did not deny women equal protection); Tagami v. City of Chicago, 875 F.3d 375, 380 (7th Cir. 2017) (same); Free the Nipple-Springfield v. City of Springfield, 923 F.3d 508, 512 (8th Cir. 2019) (same).

D-24 gender-based classification” in an ordinance criminalizing exposure of private parts as

applied to women’s breasts “violates appellants’ equal protection rights”). This court—or

the Minnesota Supreme Court—should consider the issue and decide this important

question about gender discrimination.

Thus, I dissent because I conclude that the state’s evidence is insufficient to prove

lewd exposure of Plancarte’s breasts beyond a reasonable doubt. The state’s evidence

proved nude—but not lewd—conduct, despite the legislature’s plainly stated intent to

require lewd conduct before imposing criminal penalties. Plancarte’s conviction for

indecent exposure therefore should be reversed. While I need not decide the

equal-protection issue, I conclude that Turner is not binding precedent on the issue and

would not reject Plancarte’s constitutional challenge on that basis.

D-25