This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Bryan Ross Skaalerud,



Filed December 26, 2006


Kalitowski, Judge


Kandiyohi County District Court

File No. 34-CR-05-1100


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


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


Mark D. Nyvold, Special Assistant State Public Defender, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101 (for respondent)


            Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N


            Following a mental examination in which respondent Bryan Ross Skaalerud was found competent to stand trial, appellant State of Minnesota challenges the district court’s denial of its pretrial motion to exclude psychiatric evidence of respondent’s limited intellectual ability.  We affirm.


            Respondent is charged with theft by swindle or trick under Minn. Stat. § 609.52, subds. 2(4), 3(3)(a) (2004), for depositing two fraudulent money orders.  Respondent has raised as a defense that he was unaware that the money orders were fraudulent due to his limited intellectual ability, and as a result, he did not form the requisite intent to commit theft by swindle. 

            At respondent’s request, the district court ordered a mental examination to determine respondent’s competency for trial and the possibility of any mental illness defense.  The evaluating psychologist concluded that respondent was competent to stand trial and did not meet the M’Naughten standard for insanity, but noted that respondent has mild mental retardation, reads at a second-grade level, and has an intelligence quotient (IQ) composite index of 67.  The psychologist noted that it was difficult to say “that [respondent] specifically formed criminal intent” and “[u]nder the circumstances, it appears this fellow simply missed the point that what he was doing was wrong.”       

            The district court denied appellant’s pretrial motion to exclude the psychologist’s expert testimony.  In a pretrial appeal, we will not reverse the determination of the district court unless the appellant clearly and unequivocally demonstrates (1) “that unless reversed, the error will have a critical impact on the outcome of the trial”; and (2) “that the trial court erred in its judgment.”  State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987).  “Critical impact is a threshold issue and [i]n the absence of critical impact we will not review a pretrial order.”  State v. McLeod, 705 N.W.2d 776, 784 (Minn. 2005) (quotation omitted).  To satisfy the critical impact threshold, an appellant must demonstrate that the decision being appealed “significantly reduces the likelihood of a successful prosecution.”  Joon Kyu Kim, 398 N.W.2d at 551.  “Critical impact is intended to be a demanding standard.”  McLeod, 705 N.W.2d at 784 (quotation omitted).

            Here, appellant has failed to demonstrate how the admission of the challenged evidence would have a critical impact on its case.  Appellant argues that since the state intends to prove respondent’s intent through circumstantial evidence, admission of the psychological evidence will have a critical impact.  In its order denying the motion, the district court noted that respondent intended to testify at trial that due to his limited intelligence, he did not form the requisite intent to defraud.  The district court, while explicitly stating that it was “cognizant of the slippery slope” this type of ruling could create, found that respondent should be able to introduce psychological evidence to corroborate his own testimony. 

            In arguing critical impact appellant seems to contend that corroboration by an expert of respondent’s anticipated testimony that he did not form the requisite intent due to limited intelligence will be too difficult for the state to overcome.  We disagree.

            We note that the district court has specifically limited the scope of expert testimony to opinions about respondent’s intellectual functioning as related to his diagnosis of mild mental retardation for the sole purpose of corroborating respondent’s own anticipated testimony.  And as noted by the district court, the state will have the opportunity to cross-examine the psychologist regarding his opinion that respondent is competent to stand trial and not eligible for a mental illness defense.  Furthermore, the record indicates that appellant has evidence that respondent was going to turn the money orders over to law enforcement until his brother-in-law persuaded him to deposit them instead.

            We note that our conclusion here is consistent with State v. Barsness, 473 N.W.2d 828 (Minn. 1990), in which the supreme court reversed this court’s decision excluding IQ evidence for the purpose of determining intent as a fact issue on a pretrial appeal because the state failed to show that the admission of such evidence would have a critical impact.           Because the psychological evidence in question may only be used for corroboration of respondent’s anticipated statement, we conclude that appellant has failed to demonstrate that such evidence will have a critical impact on its case.