This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Duane G. Elliot,




Filed February 7, 2006

Affirmed as modified
Klaphake, Judge


Wright County District Court

File No. K3-02-1554



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


Thomas N. Kelly, Wright County Attorney, Anne L. Mohaupt, Assistant County Attorney, Wright County Government Center, Ten Second Street NW, Buffalo, MN  55313 (for respondent)


John M. Stuart, State Public Defender, Philip Marron, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Duane Gene Elliot challenges the district court’s denial of his request for jail credit for all time spent in custody since April 22, 1990, which he claims is the date on which the state had probable cause to arrest him for the current offense.  Because the information reportedly received by law enforcement was insufficient to provide authorities with probable cause to arrest or charge appellant in 1990, we affirm the district court’s denial of appellant’s request for jail credit from 1990.  But, because probable cause existed as of January 24, 2002, when the victim reported the crime to authorities, we modify the district court’s decision and grant jail credit as of that date.


            On January 24, 2002, K.N.E. contacted the Wright County Sheriff’s Department to report that between 1984 and 1987, when she was between eight and nine years old, she was sexually abused on at least three occasions by appellant, who is her uncle.  K.N.E. explained that she sought counseling over the years and that she wanted to report the incidents for closure.  A complaint was signed on April 30, 2002, charging appellant with first- and second-degree criminal sexual conduct.

            On November 18, 2003, appellant pleaded guilty to second-degree criminal sexual conduct and the remaining count was dismissed.  In January 2004, appellant was sentenced to a stayed term of 44 months and placed on probation for 25 years subject to a number of conditions, including that he serve one year in the Wright County Jail and refrain from the use of alcohol.  Appellant had already served the one year probationary jail term by the time of sentencing and was released on probation.

            On September 8, 2004, a probation violation report was filed against appellant after he failed to abstain from the use of alcohol.  The report recommended that appellant obtain a further chemical use assessment, follow the recommendations of that assessment, and serve an additional 120 days in the county jail.

            At a September 30, 2004 hearing, appellant requested execution of his 44-month sentence.  He also requested that he be given jail credit for time that he served on unrelated offenses that were committed after the current offense; appellant had been sentenced to 41 months in 1989 and to 36 months in 1990 on criminal sexual conduct convictions involving other victims in Hennepin and Anoka counties.[1]  With credit for time served on these unrelated offenses, appellant’s sentence on the current offense would be satisfied, and he would serve no additional time.

            In support of his request for jail credit, appellant submitted two documents prepared by defense investigator Jeff Shaw.  The first document summarized Shaw’s interview of K.N.E.’s mother, Jeanette Hendrickson.  Hendrickson told Shaw that she had called the sheriff’s office in the late 1980’s or early 1990’s to report that K.N.E. had been sexually assaulted by appellant.  According to Shaw, Hendrickson informed the person on the other end of the line about “all the facts involved in this sexual assault, where it may have occurred, [that K.N.E.] was around 10 years old at the time of the offense and parties involved.”  When the person erroneously informed Hendrickson that the matter could not be prosecuted because the statute of limitations had run, Hendrickson did not pursue the matter further.

            In the second document, Shaw explained that when he contacted the Wright County Sheriff’s Office, no records could be located pertaining to Hendrickson’s complaint.  However, Shaw was able to obtain a copy of a statement given by K.N.E.’s cousin, A.E., on April 22, 1990, in which A.E. reported that appellant had sexually assaulted her and that appellant “did stuff to my cousin [K.N.E.] too.”

            In denying appellant’s request for jail credit, the district court concluded that appellant failed to present sufficient evidence to show that probable cause existed as of April 22, 1990, which is the date that K.N.E.’s cousin gave her statement to authorities in Anoka County.  The court explained that “[t]his statement is too vague to supply probable cause” because “it is not clear that the word ‘stuff’ describes activities that rise to the level of criminal sexual conduct” and because it “fails to establish the age of K.N.E.”

            With respect to the information provided to authorities by K.N.E.’s mother, the district court concluded that because “it is not clear on the record [here] what was actually said during this conversation,” appellant failed to prove that the state had probable cause in 1990.  The district court determined that appellant was entitled to jail credit from April 30, 2002, which is the date that the prosecutor signed the complaint.


            Determinations of jail credit are not discretionary with the district court.  State v. Parr, 414 N.W.2d 776, 778 (Minn. App. 1987), review denied (Minn. Jan. 15, 1998); State v. Doyle, 386 N.W.2d 352, 354 (Minn. App. 1986).  A defendant is entitled to credit for all time spent in custody, including time spent in custody on other charges, beginning with the date the prosecution acquired probable cause to charge the current offense.  State v. Fritzke, 521 N.W.2d 859, 861-62 (Minn. App. 1994).  Probable cause exists when police “reasonably could have believed that a crime had been committed by the person to be [charged or] arrested.”  State v. Morales, 532 N.W.2d 268, 270 (Minn. App. 1995) (quoting State v. Olson, 436 N.W.2d 92, 94 (Minn. 1989)).

            The burden is on the defendant to prove probable cause and entitlement to jail credit.  State v. Willis, 376 N.W.2d 427, 428 n.1 (Minn. 1985).  Probable cause generally does not exist until police investigation is complete, but any ambiguity regarding when investigation is complete is to be resolved in favor of the defendant.  Morales, 532 N.W.2d at 270; State v. Folley, 438 N.W.2d 372, 374-75 (Minn. 1989).

            The district court determined that the evidence presented by appellant was insufficient to establish that probable cause existed in 1990.  We agree.  From Shaw’s summary of his interview with Hendrickson, one cannot ascertain exactly what was said during Hendrickson’s conversation with the unidentified person at the sheriff’s office.  Similarly, the transcribed statement given by A.E. to authorities is vague and lacks the specificity necessary to establish probable cause.  While the evidence presented here might have given authorities a basis to investigate the matter further, it lacks the requisite detail and reliability which are necessary components for probable cause.  We therefore affirm the district court’s denial of appellant’s request for jail credit from 1990.

            Nevertheless, we note that the district court granted appellant jail credit only from April 30, 2002, the date the prosecutor signed the complaint, rather than from January 24, 2002, the date that K.N.E. reported the crime to authorities.  Because any ambiguity must be resolved in favor of appellant, we conclude that once authorities received this detailed and reliable information from K.N.E., probable cause existed.  We therefore modify the district court’s decision to grant jail credit from January 24, 2002.

            Affirmed as modified.

[1]  The Anoka County conviction arose out of criminal sexual conduct against K.N.E.’s cousin, A.E.