This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






State of Minnesota,





Jeffrey Allen Greene,



Filed July 3, 2000

Reversed and remanded

Willis, Judge


Dakota County District Court

File No. K9982440


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for appellant)


Leslie J. Rosenberg, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for respondent)


            Considered and decided by Lansing, Presiding Judge, Willis, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N


            Respondent Jeffrey Allen Greene pleaded guilty to criminal sexual conduct in the fifth degree, in violation of Minn. Stat. § 609.3451, subd. 1(1) (1998).  The district court stayed adjudication, and the state appeals.  We reverse and remand.


On the evening of August 15, 1998, J.M. was in her living room getting her three-year-old son, T.M., ready for bed.  J.M.’s mother was lying on the living-room sofa watching television.  While J.M. was changing T.M.’s clothes, T.M. ran to his grandmother and pressed his genitals to her face, saying, “I put my peter in your mouth.”  J.M. called a crisis center to ask what the signs of sexual abuse were, and then asked T.M., “Who did this to you?  Where did you learn this?”  T.M. ultimately answered “Jet,” his name for Greene, who was J.M.’s boyfriend. 

            In September 1998, Greene was charged with second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (1998).  In June 1999, the state moved to amend its complaint to include the charge of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (1998).  In October 1999, the state and Greene, who had previously waived his right to a jury trial, reached an agreement by which Greene agreed to plead guilty to gross misdemeanor fifth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.3451, subd. 1(1) (1998), while continuing to maintain his innocence, pursuant to State v. Goulette, 258 N.W.2d 758 (Minn. 1977), and North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970). 

At the sentencing hearing, the district court noted:  (1) that it “seems to me that the police did a pretty minimal job, as far as any investigation is concerned”; (2) that J.M. “came to this court and sat there under oath * * * [and] testified as to some conduct that she openly and admittedly advised the court she had engaged in with Mr. Greene, and that the boy was present” which the court found “disconcerting * * *, not the act, but that the child may have witnessed that”; (3) that T.M. was not competent to testify because he “didn’t hardly remember what he’d had for breakfast that morning”; and (4) that the court would likely have allowed J.M. to testify to her claim that T.M. recanted his prior statements that Greene had engaged in inappropriate sexual conduct.

The court explained that under the plea agreement, the state “would take a plea to the gross misdemeanor [fifth-degree criminal sexual conduct], dismiss the felony charges, and not bring the criminal sex one before the court.”[1]  The court stated that it is “not fair for the court to in any way second-guess the county attorney.  I don’t think the court has the right to try and determine what motivated the county attorney to decide at that point in time * * * why they would take the gross misdemeanor.”  And the court noted, “I don’t say in any way that our county attorney’s office steadfastly took a course of conduct that was going to abuse their prosecutorial discretion.” 

But the court felt that the prosecution “recognized there were some problems over this matter [and that] proof beyond a reasonable doubt may have been a concern to them, especially in a trial to the court.”  The court reasoned that given the above and that the motion to amend the charges placed Greene in the position of choosing between “prison for 86 months” or pleading to the gross misdemeanor, Greene’s case was “a case that cries out for special treatment.”  Thus, the court stayed adjudication.  The state now appeals.


The state argues that the district court exceeded its authority by staying adjudication.  Neither this court nor the supreme court has established the standard of review that should be applied in reviewing stays of adjudication.  See State v. Thoma, 569 N.W.2d 205, 208 (Minn. App.), aff’d mem. 571 N.W.2d 773 (Minn. 1997).  But we need not decide here the appropriate standard of review because we conclude that we must reverse the district court’s stay of adjudication under either a de novo or an abuse-of-discretion standard.  See id.

The supreme court addressed stays of adjudication in State v. Krotzer, 548 N.W.2d 252 (Minn. 1996), where the district court stayed adjudication of a charge of criminal sexual conduct against a 19-year-old defendant in which his sexual relationship with a 14-year-old girl was consensual, the mother of the minor was made aware of the relationship, the accused and the minor continued a non-sexual relationship with the mother’s blessing, and the mother opposed the prosecution of the defendant.  548 N.W.2d at 253 & n.2.  The supreme court held that a district court’s decision to stay adjudication fell within its “inherent judicial power.”  Id. at 254-55. 

But the supreme court soon revisited the issue of stays of adjudication in State v. Foss, 556 N.W.2d 540 (Minn. 1996).  The court, in construing Krotzer, stated that 

it was our intention that the inherent judicial authority recognized in that case be relied upon sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor’s clear abuse of discretion in the exercise of the charging function.


Foss, 556 N.W.2d at 541; see also Thoma, 569 N.W.2d at 208 (holding that stay of adjudication over the state’s objection “is justified only if the [district] court, after reviewing the circumstances of the case, determines that the prosecutor’s charging decision was a clear abuse of discretion”).  

            Here, the district court stated, “I don’t say in any way that our county attorney’s office steadfastly took a course of conduct that was going to abuse their prosecutorial discretion.”  Thus, any injustice the district court believed existed here was not the result of a clear abuse of prosecutorial discretion in the exercise of the charging function.  We therefore reverse the stay of adjudication and remand for further proceedings.    

            Reversed and remanded.


                * Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The court had not yet ruled on the state’s June 1999 motion to amend the complaint to include a charge of first-degree criminal sexual conduct.