62-CR-14-6613

STATE OF MINNESOTA

Filed in Second Judicial District Court

11/6/2014 4:36:46 PM
Ramsey County Criminal, MN

DISTRICT COURT

COUNTY OF RAMSEY
________________________________

SECOND JUDICIAL DISTRICT

Court File No.: 62-CR-14-6613

State of Minnesota,
Plaintiff.
vs.

ORDER GRANTING
MOTION TO DISMISS

John Robert Lind,

Defendant.
_________________________________

This matter comes before the court on Defendants motion to dismiss for lack of probable
cause. Defendant was represented by his attorney Mark D. Kelly. The State was represented by
Daniel Vlieger. The parties filed written memoranda setting forth their respective arguments.
Based upon the records in this case and the arguments of the parties, Defendants motion is
GRANTED.
FACTS
For purposes of the motion, the court accepts as true the allegations contained in the
complaint. Count 1 of the complaint charges Defendant with Criminal Sexual Conduct in the
Fifth Degree in violation of Minnesota Statutes section 609.3451, subd. 1. Count 2 charges
Defendant with an attempt to commit that same crime. As probable cause supporting the
charges, the complaint alleges that on August 26, 2014, PM a known female over the age of 18,
returned to her work space and discovered Defendant standing at her desk with his back turned
toward PM. Defendant had both hands in front of him near his genitals. When Defendant
noticed PMs presence, Defendant looked at PM with a dear in the headlights expression and

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quickly entered another room, slamming the door behind him. About ten seconds later,
Defendant came out of the room and said I had a question for you, but I forgot it.
The complaint alleges that PM inspected her desk and noted a strong odor that resembled
urine, but was different and strange. PM smelled her coffee mug sitting on her desk and noted
the same odor coming from it. PM said that she had an ongoing issue with a foul taste in her
coffee but had not before considered that a person tampered with her coffee. PM also noted a
large amount of clear liquid on top of her desk and dripping onto the floor. PM believed the
liquid was either urine or semen. PM had a hair scrunchy on top of her desk that had absorbed
some of the liquid. PM placed the scrunchy in a plastic bag.
The police were called. PM told the police that she had had ongoing issues with
Defendant for the past several months. PM said that she regularly came across defendant at
work while he had the zipper of his pants down. PM had told Defendant that she would report
him if he approached her one more time with his zipper down. Police collected the coffee mug,
coffee, and scrunchy for processing.
On August 28, 2014, Defendant met with police. Defendant told police that he likes PM
and is attracted to her. Defendant admitted that he ejaculated on PMs desk and in her coffee on
August 26, 2014. Defendant denied that he did so out of revenge because PM had threatened to
report his behavior. When told PM reported her coffee tasted odd for a couple of months,
Defendant admitted that he had ejaculated into PMs coffee twice within the last six months.
Defendant also said he had ejaculated on PMs desk or other items on four separate occasions
and admitted to using PMs hair scrunchy to wipe up his ejaculate. Defendant said that he knew
it was wrong, but did it anyway and that he thought it was a way to get PM to notice him.

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CONCLUSIONS
Defendant is charged with fifth-degree criminal sexual conduct and attempted fifth
degree criminal sexual conduct. The fifth-degree criminal sexual conduct statute makes it a
gross misdemeanor crime for a person to engage in nonconsensual sexual contact. Minn. Stat.
609.3451, subd. 1(1) (2014). The statute contains a specific definition of sexual contact. In
relevant part, the phrase has the meaning given in section 609.341, subdivision 11, paragraph
(a) clauses (i) and (iv). Id., subd. 1. Section 609.341, subdivision 11, paragraph (a) clause (i)
defines sexual contact as the intentional touching by the actor of the complainants intimate
parts. Clause (iv) defines sexual contact as touching of the clothing covering the immediate
area of the intimate parts. Clauses (i) and (iv) are the only clauses in the general definition of
sexual contact imported into the fifth-degree crime. See id.
Section 609.341 subdivision 11, paragraph (a) clause (v) defines sexual contact as the
intentional touching with seminal fluid or sperm by the actor of the complainants body or the
clothing covering complainants body. Importantly for this case, the fifth-degree criminal
sexual conduct definition of sexual contact does not include clause (v) (touching with seminal
fluid or sperm) in its definition of sexual contact. This court finds that the legislature has chosen
to define sexual contact by seminal fluid or sperm in clause (v) of section 609.341 subdivision
11(a). The legislature has, by omission, also chosen not to include clause (v) in the definition of
sexual contact for purposes of fifth-degree criminal sexual conduct. This court cannot supply
what the legislature has chosen to omit. The definition of sexual contact in the fifth-degree
criminal sexual conduct statute does not include contact by sperm or seminal fluid.

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The State notes the omission but contends that, under the circumstances, semen
constitutes an intimate part. Minnesota Statutes section 609.341, subdivision 5, describes
intimate parts as including the primary genital area, groin, inner thigh, buttocks, or breast of a
human being. The definition does not mention sperm, semen, or seminal fluid. The plain
language of the general intimate parts definition does not include such bodily fluid.
Moreover, even if the definition of intimate parts were to include sperm or seminal fluid,
clause (i) of section 609.341 subdivision 11, paragraph (a), a clause which is imported by
reference into the fifth-degree crime, defines sexual contact as the intentional touching by the
actor of the complainants intimate parts. Even if sperm or seminal fluid were considered an
intimate part, it was the actors intimate part, not the complainants. The complaint contains no
allegation that defendants semen touched an intimate part (as defined in section 609.341, subd.
11).
To be clear, on this motion to dismiss for lack of probable cause, it is the courts role to
examine the specific charges brought by the State and to determine whether probable cause
exists to support those charges. It is not for the court to determine whether other charges might
be appropriately brought or what those charges might be. In making this ruling, the court simply
finds that the facts as set forth in the complaint do not state probable cause to support a fifthdegree criminal sexual conduct charge or an attempt to commit the same.
Defendants motion to dismiss for lack of probable cause is GRANTED.

____________________________
Patrick C. Diamond
Judge of District Court