This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-95-2558

State of Minnesota,

Appellant,

vs.

Richard NMN Ward, Harvey Lee Ward,

Eugene Michael Nelson,

Defendants.

James Edward White,

Respondent.

Filed May 28, 1996

Reversed

Norton, Judge

Hennepin County District Court

File No. 95067642

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Appellant)

Michael O. Freeman, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Appellant)

John M. Stuart, State Public Defender, 95 Law Center, University of Minnesota, Minneapolis, MN 55455 (for Defendants)

William R. Kennedy, Hennepin County Public Defender, Warren R. Sagstuen, Assistant Public Defender, 317 Second Avenue South, Minneapolis, MN 55401 (for Defendants)

A. Demetrius Clemons, 425 South Third Street, Minneapolis, MN 55415 (for Defendants)

J. Anthony Torres, Torres Law Offices, Inc., 1401 West 76th Street, Suite 400, Richfield, MN 55423 (for Respondent White)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

NORTON, Judge

The state charged respondent and three other defendants with criminal sexual conduct and false imprisonment. In this pretrial prosecution appeal, the state challenges the trial court's order denying its motion to add a count charging respondent James White with kidnapping. We reverse and remand for trial.

FACTS

The state relied on the following facts, set forth in the officer's sworn statement contained in the criminal complaint, as the probable cause basis for its amended complaint of kidnapping, which is the subject of this appeal.

On the morning of August 3, 1995, the victim, J.W., encountered respondent James White and defendants Harvey and Richard Ward, who asked her where they could purchase some beer. J.W. offered to sell them a case of beer and then accompanied the three to their apartment when the men claimed that they had to go home to get their money.

Once in the apartment, White summoned J.W. toward the bathroom, indicating he wanted to talk to her. He then pushed J.W. into the bathroom, closed the door, threatened her with an object that looked like a club, and pulled down his pants. When White went to put on a condom, J.W. escaped from the bathroom and ran for the apartment door, but Richard Ward would not let her out. White then brought J.W. back into the bathroom, put on the condom, ripped her clothes, and had forcible intercourse with her. Harvey and Richard Ward each had forcible intercourse with J.W. in the bathroom after White was done. Defendant Eugene Nelson was present in the apartment during these events.

All four defendants were arrested for criminal sexual conduct and false imprisonment. The state filed a complaint charging Nelson with aiding and abetting false imprisonment, and White and both Wards with first- and third-degree criminal sexual conduct and false imprisonment. The state later moved to amend the complaint to dismiss the false imprisonment charges against White and the Wards and add a kidnapping charge against them. When the trial court denied the motion to amend the complaint, the state brought this pretrial appeal.

White and the Wards moved to dismiss this prosecution pretrial appeal, arguing that the order was not appealable because it was based on lack of probable cause. This court denied the motion to dismiss, holding the order is appealable because it is based upon a legal determination. State v. Ward, No. C9-95-2558 (Minn. App. Feb. 13, 1996) (order op.).

After briefing was completed, the parties jointly moved to dismiss Nelson and the Wards as parties to this appeal; this court granted that motion.

D E C I S I O N

In a pretrial appeal, this court will reverse the trial court's decision

only if the state demonstrates clearly and unequivocally, first, that the trial court erred in its judgment and, second, that unless reversed, the error will have a critical impact on the outcome of the trial.

State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987).

Generally, the state may not appeal a pretrial order "dismissing a complaint for lack of probable cause to believe defendant has committed an offense * * *." Minn. R. Crim. P. 28.04, subd. 1(1). Case law has created an exception, however, when a probable cause dismissal is based on a legal determination. State v. Tolbert, 488 N.W.2d 11, 12 (Minn. App. 1992). This exception applies here.

The trial court's denial of the state's motion to amend is primarily an interpretation of the relationship of the kidnapping and false imprisonment statutes. Specifically, the trial court stated that, as a matter of law, it could not "allow a kidnapping charge and still say there was such a thing as false imprisonment." Dismissal based on interpretation of a statute is a question of law subject to de novo review. State v. Kiminski, 474 N.W.2d 385, 389 (Minn. App. 1991), review denied (Minn. Oct. 11, 1991).

A person commits the crime of kidnapping when he or she

confines or removes from one place to another, any person without the person's consent * * * to facilitate commission of any felony or flight thereafter * * *.

Minn. Stat. ' 609.25, subd. 1(2) (1994). The essential elements of the crime of kidnapping "are holding the person from the moment of seizure and the intent accompanying such holding." State v. Dooley, 380 N.W.2d 582, 584 (Minn. App. 1986), review denied (Minn. Mar. 27, 1986). The supreme court has made it clear that a defendant may be convicted of kidnapping for even the slightest confinement or removal committed in the course of a sexual assault. State v. Crocker, 409 N.W.2d 840, 844 (Minn. 1987).

A person commits the crime of false imprisonment when he or she "intentionally confines or restrains" another person without that person's consent and without the lawful authority to do so. Minn. Stat. ' 609.255, subd. 2 (1994). False imprisonment is a lesser included offense of the crime of kidnapping. State v. Niska, 514 N.W.2d 260, 266 (Minn. 1994). The crime of kidnapping requires proof of an additional element: intent to confine for the purpose of committing an additional felony. See Minn. Stat. ' 609.25, subd. 1(2) (elements of kidnapping).

The trial court found probable cause for the false imprisonment charge. The state dismissed that charge when it sought to amend the complaint with a kidnapping charge. In denying the state's motion to amend, the trial court expressed its willingness to reinstate the false imprisonment charge. The trial court also had found probable cause to believe White committed the felony crime of criminal sexual conduct in the first and second degrees. The court determined that the kidnapping charge could not stand because J.W. voluntarily accompanied White and the Wards to the apartment where the sexual assault later occurred. As the state notes, the trial court's interpretation of the statute appears to require that confinement necessary for kidnapping be present from the initial moment of contact between the defendant and victim. This is contrary to Crocker, where the victim voluntarily went to the defendant's apartment and was later confined by the defendant for the purpose of rape. 409 N.W.2d at 842, 845.

In noting that J.W. voluntarily went to respondent's apartment, the trial court appears also to have concluded that the kidnapping charge must be based on "removal" of J.W. to the apartment. We disagree. The statute refers to conduct where a defendant "confines or removes" the victim. Minn. Stat. ' 609.25, subd. 1(2) (emphasis added). "Removing" a person "from one place to another" is only one means to commit the crime of kidnapping. Id.

If the trial court meant to rule that confining the victim in the bathroom to commit a sexual assault could not be a kidnapping, that ruling would be so contrary to Crocker and other cases as to amount to an error of law. Cf. Crocker, 409 N.W.2d at 842, 845 (affirming kidnapping conviction; victim voluntarily went to defendant's apartment and partied; defendant eventually pushed her into his bedroom and raped her); Dooley, 380 N.W.2d at 583, 585 (affirming conviction for second-degree criminal sexual conduct and kidnapping that occurred in victim's home after she voluntarily opened door to allow defendant to apologize "face to face"). The supreme court has recognized that Dooley and Crocker are cases where "the only `removal' or `confinement' of the victim was that connected with the commission of the rape * * *." Crocker, 409 N.W.2d at 845.

The factual basis for the complaint demonstrates that White pushed J.W. into the bathroom and confined her there for the purposes of committing the felony of criminal sexual conduct. When J.W. asked White why he closed the bathroom door, White responded that he thought they had an "agreement." White pulled his pants down, attempted to force J.W.'s clothes off, and threatened her with physical harm. After J.W. escaped from the bathroom, another defendant refused to let her out of the apartment. White then took J.W. back into the bathroom, confined her there, and forced her to engage in sexual intercourse against her will. These facts, as a matter of law, form the basis for a charge of kidnapping. Id. at 844; Dooley, 380 N.W.2d at 583, 585.

Reversed.