State of Minnesota Respondent, vs. Richard Henry Scheffler, Appellant.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480 A. 08, subd. 3 (1994) State of Minnesota in Court of Appeals C2-95-2188 State of Minnesota Respondent, vs. Richard Henry Scheffler, Appellant. Filed October 15, 1996 Affirmed in part, Reversed in part and Remanded Schumacher, Judge Kandiyohi County District Court File No. TX95002310 Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent) Richard L. Ronning, Willmar City Attorney, 401 Southwest Fifth Street, Post Office Box 971, Willmar, MN 56201 (for Respondent) Maureen Williams, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for Appellant) Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Klaphake, Judge. Unpublished Opinion SCHUMACHER, Judge (Hon. Donald M. Spilseth, District Court Trial Judge) Richard Henry Scheffler appeals from a conviction for indecent exposure and disorderly conduct, arguing the evidence was not sufficient to support the verdicts, and the trial court erred in ordering him to provide a DNA sample and in sentencing him to concurrent sentences for the same behavioral incident. We affirm in part, reverse in part, and remand. Facts On May 30, 1995, Scheffler was shopping at Center Point Mall in Willmar. Scheffler entered Ken's Casuals where Pamela Jo Klein was working. Scheffler was wearing a shirt and shorts but no underwear. Scheffler walked around the store, shopping and talking with Klein. During his time in Ken's Casuals, the zipper to Scheffler's shorts was completely unzipped. Klein thought Scheffler was exposing himself and called the police from the store phone. One witness testified that she saw Scheffler's zipper was open, but could not see his private parts. Another witness testified she saw Scheffler, but that she did not see if the zipper was down. Scheffler then went into Erickson's Furniture store, where a third witness testified he saw Scheffler's open zipper. When he told Scheffler his zipper was down, Scheffler zipped it up, saying, ``Oh, my gosh.'' The police found Scheffler in Erickson's and arrested him for indecent exposure and disorderly conduct. In Klein's statement to police and trial testimony, she said Scheffler's open fly was in the shape of an ``O'' approximately five or six inches in diameter and that his private parts were ``most[ly] * * * outside of the shorts.'' Klein stated she thought Scheffler was intentionally exposing himself to her because he tried to face her at every opportunity and stood in front of a three-way mirror for several seconds. Scheffler testified that he did not wear underwear because he was going to a massage therapist for treatment of an injury. Scheffler testified he did not know his zipper was open and that he did not intend to expose himself. Scheffler argued that the large quantity of cash and change he was carrying in his shorts pockets made the zipper unintentionally gape open. Scheffler's expert psychological witness, Dr. Edmund Nadolny, testified that Scheffler did not fit the profile of an exhibitionist because he did not have any indications of past similar behavior. Dr. Nadolny testified that Scheffler did not have any level of impairment or stressors to indicate such behavior. Dr. Nadolny testified exhibitionists usually masturbate or seek some other sexual relief, but that Scheffler did not. The jury found Scheffler guilty of indecent exposure and disorderly conduct. Scheffler was given concurrent sentences and ordered to provide a biological sample for DNA testing. Scheffler appeals. Decision 1. Evidence is sufficient to support a conviction if, given the facts in the record and any legitimate inferences to be drawn from those facts, a jury could reasonably find that the defendant committed the crime. State v. Wilson, 535 N.W.2d 597, 605 (Minn. 1995). This court reviews the evidence in the light most favorable to the verdict and assumes that the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Merrill, 274 N.W.2d 99, 111 (Minn. 1978). The jury determines the weight and credibility of witnesses' testimony. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). Indecent exposure is ``willfully and lewdly expos[ing] [a] person's body, or the private parts thereof * * *'' in any public place. Minn. Stat. 𨻁.23 (1994). Here, the evidence and testimony support an inference that Scheffler intentionally exposed himself. Klein testified that Scheffler's private parts were exposed and hanging out of his zipper and that he tried to face her at every opportunity. She also testified that he must have known his private parts were hanging out because he faced a three-way mirror for a number of seconds. Two other witnesses also testified that Scheffler's zipper was down. The jury was in the best position to weigh the evidence and the witnesses' credibility, and it could have reasonably found that Scheffler committed the offense. Scheffler also argues the evidence is insufficient to support the conviction for disorderly conduct. A person is guilty of disorderly conduct if the person engages in offensive or obscene conduct in a public or private place, * * * knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace * * *. Minn. Stat. 𨺹.72, subd. 1(3) (1994). Based on the above analysis, the jury could have reasonably found Scheffler committed the offense. Scheffler's conviction for disorderly conduct, however, was based on the same behavioral incident as the indecent exposure conviction. See Minn. Stat. 𨺹.035, subd. 1 (1994) (defendant may only be sentenced for one crime based on same behavioral incident). We remand to the trial court to vacate one of the sentences. 2. The trial court ordered Scheffler to provide a biological specimen for DNA analysis. The requisite statute says that the trial ``court shall order [upon sentencing] an offender to provide a biological specimen for the purpose of DNA analysis'' when (1) the court sentences a person charged with violating or attempting to violate section 609.342, 609.343, 609.344, or 609.345, [first through fourth degree criminal sexual conduct] who is convicted of violating one of those sections or of any offense arising out of the same set of circumstances; (2) the court sentences a person as a patterned sex offender under section 609.1352; * * * Minn. Stat. 𨺹.3461, subd. 1 (1994). The statute is specific. Scheffler was not convicted of one of the enumerated offenses. We conclude it was an abuse of discretion for the trial court to order the DNA sample, and that part of the sentencing order is reversed. Affirmed in part, reversed in part, and remanded.