This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,


Abdi Salah Adan,


Filed December 30, 2003

Appeal dismissed

Minge, Judge


Kandiyohi County District Court

File No. K8-02-70


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Boyd Beccue, Kandiyohi County Attorney, Fred Inman, Assistant County Attorney, 415 Southwest Sixth Street, P.O. Box 1126, Willmar, MN 56201 (for appellant)


Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for respondent)


            Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N


MINGE, Judge

            The state appeals the dismissal of first-degree burglary and fifth-degree assault charges against respondent.  The district court made a factual determination that there was no probable cause to find that respondent intended to commit an assault.  Because the state may not appeal an order based solely on a factual determination, we dismiss.  



The state may appeal an order dismissing a criminal complaint for lack of probable cause if the dismissal is based on a legal determination.  State v. Ciurleo, 471 N.W.2d 119, 121 (Minn. App. 1991).  Appeal by the state of a dismissal order based on lack of probable cause is only proper if the determination by the district court is based on questions of law.  State v. Kiminski, 474 N.W.2d 385, 388-89 (Minn. App. 1991), review denied (Minn. Oct. 11, 1991).  An order is not appealable by the state “if it is based solely on a factual determination dismissing a complaint for lack of probable cause to believe the defendant has committed an offense.”  Minn. R. Crim. P. 28.04, subd. 1(1)(a).  The rationale for precluding state appeals of dismissal orders based on factual determinations is that the state may reinstate its case by other means.  State v. Duffy, 559 N.W.2d 109, 110 (Minn. App. 1997).  It may charge a different offense, or “if the State can obtain other evidence that establishes sufficient probable cause to prosecute, it is free to reissue the complaint.”  Id.  Further, the state may not make dismissal for lack of probable cause appealable by simply redefining a factual issue as a legal issue.  Id. at 110-11.

Here, the district court dismissed for lack of probable cause a complaint charging respondent Adan with first-degree burglary and fifth-degree assault.  Minnesota law provides that first-degree burglary occurs if one “enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building” and “the building is a dwelling and another person, not an accomplice, is present . . . .”  Minn. Stat. § 609.582, subd. 1(a) (2002).  In this appeal, the independent “crime” is assault in the fifth degree.  Fifth-degree assault is committed if one “commits an act with intent to cause fear in another of immediate bodily harm or death.”  Minn. Stat. § 609.224, subd. 1(1) (2002).  Alternatively, fifth-degree assault occurs if one “intentionally inflicts or attempts to inflict bodily harm upon another.”  Id., subd. 1(2) (2002).  The intent requirement is met if “the actor either has a purpose to do the thing or cause the result specified” or “believes that the act” performed by the actor, “if successful, will cause that result . . . .”   Minn. Stat. § 609.02, subd. 9(3), (4) (2002).

Intent is a subjective state of mind established by reasonable inferences drawn from surrounding circumstances.  State v. Obasi, 427 N.W.2d 736, 738 (Minn. App. 1988).  Generally, a person’s intent must be inferred from the person’s words and actions in light of the surrounding circumstances.  State v. Hardimon, 310 N.W.2d 564, 566 (Minn. App. 1981).  Whether the actor has the requisite intent to be guilty of an assault is a question for the fact-finder.  State v. Ott, 291 Minn. 72, 75, 189 N.W.2d 377, 379 (1971). 

Here, the state argues that the district court employed an erroneous interpretation of “intent” under Minn. Stat. § 609.224, subd. 1(1), by finding that the alleged victim did not experience fear of immediate bodily harm and suffered no injury.  In turn the respondent argues that there was not intent.  Thus, the appeal focuses on the legal meaning of intent and whether the district court erred in this regard.  In making their arguments, the parties attempt to create a legal issue.  See Duffy, 559 N.W.2d at 110.  They ignore the district court’s conclusions that defendant’s conduct “may have been the result of his effort to gain entry into [the] apartment rather than an act intended to cause fear of immediate bodily harm.”  Further, the district court found that “the State lack[ed] substantial evidence to establish that defendant intended to cause . . . fear [of] immediate bodily harm or death.”  Therefore, the district court found that “[a]lthough the state established that defendant entered Ms. Knutson’s apartment without consent, it failed to establish that defendant entered with the intent to commit a crime therein or committed a crime other than trespass.” 

We conclude that dismissal of the complaint for lack of probable cause was based on the district court’s determination that respondent lacked intent.  This is a factual determination.  Under the rules of criminal procedure, the state may not appeal a district court dismissal based on a factual determination that there is a lack of probable cause.  Minn. R. Crim. P. 28.04, subd. 1(1)(a).  Since the district court’s dismissal does not preclude the state from further prosecution of respondent, the state may not appeal the order of dismissal.

Appeal dismissed.