This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-96-1063

State of Minnesota,

Appellant,

vs.

Douglas Andrew Anderson,

Respondent.

Filed December 17, 1996

Affirmed

Schumacher, Judge

Clay County District Court

File No. K796153

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

Todd S. Webb, Clay County Attorney, Thomas P. Martin, Special Assistant County Attorney, 915 Ninth Avenue North, Moorhead, MN 56561 (for Appellant)

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Special Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for Respondent)

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

The State of Minnesota appeals a pretrial order suppressing evidence of prior acts by respondent Douglas Andrew Anderson, arguing that double jeopardy does not bar use of the evidence in prosecuting the current offense. We affirm.

FACTS

On July 25, 1995, Anderson pleaded guilty to pattern harassing conduct in violation of Minn. Stat. § 609.749, subd. 5 (1996). His guilty plea was accepted based on the following two acts involving the same victim, B.L.: (1) a conviction for fifth-degree assault on December 19, 1994, and (2) 59 harassing phone calls made between December 20 and December 30, 1994.

On January 25, 1996, Anderson allegedly telephoned B.L.'s home and made harassing statements to her son. The next day, Anderson was charged with two counts of terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (1996). The complaint was amended on March 6, 1996, to include charges of pattern harassing conduct, in violation of Minn. Stat. § 609.749, subd. 5 (1996), and felony harassment and stalking, in violation of Minn. Stat. § 609.749, subds. 2, 4 (1996). The pattern harassing conduct was based on: (1) the December 19, 1994 fifth-degree assault conviction, (2) the 59 phone calls, and (3) the January 25, 1996 phone call.

On April 15, 1996, the two counts of terroristic threats were dismissed. A week later, at the state's request, the felony harassment and stalking count was dismissed. Thus, the only count remaining was that of pattern harassing conduct. Anderson moved to suppress the evidence that was the basis of his 1995 conviction for pattern harassing conduct, arguing that the state's reliance on it as evidence of the current charge violated double jeopardy. The trial court granted the motion to suppress and the state brought this pretrial appeal pursuant to Minn. R. Crim. P. 28.04.

D E C I S I O N

As an initial matter, we reject Anderson's argument that this appeal should be dismissed because the state did not timely comply with Minn. R. Crim. P. 28.04, subd. 2(2). Any minor delay concerning transcript delivery does not warrant dismissal in this case.

When the state appeals a pretrial order, it must show that the district court clearly and unequivocally erred and that, without reversal, "the error will have a critical impact on the outcome of the trial." State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977). The supreme court has stated:

Critical impact has been shown not only in those cases where the lack of the suppressed evidence completely destroys the state's case, but also in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.

State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987). In the absence of critical impact, we will affirm the trial court. See, e.g., State v. Carlin, 423 N.W.2d 741, 744 (Minn. App. 1988).

Minn. Stat. § 609.749 (1996) is structured so that in instances such as this, a repeat offender may be charged with a felony rather than a gross misdemeanor. Subdivision 2 of the statute lists the acts for which a person may be charged with gross misdemeanor harassment and stalking. See Minn. Stat. § 609.749, subd. 2. If a person violates any provision of subdivision 2 and has been convicted within the last 10 years of harassment and stalking, assault, violating a restraining order or order for protection, or terroristic threats, he may be charged with felony harassment and stalking under subdivsion 4. See Minn. Stat. § 609.749, subd. 4.

Anderson had been charged under both subdivisions 4 and 5 of the statute. (Subdivision 5 is the pattern harassing conduct provision.) The state moved to dismiss the count under subdivision 4 and proceeded strictly on the charge of pattern harassing conduct. Given Anderson's previous conviction for pattern harassing conduct, however, he could be prosecuted for felony harassment pursuant to subdivision 4 based only on the conduct of his January 26, 1996 telephone call. Because the state could prosecute Anderson for a felony without encountering the double jeopardy concerns raised in this case, it has not shown that the district court's suppression ruling will have a critical impact on the outcome of the trial. Our ruling makes it unnecessary to reach the issue of double jeopardy.

Finally, we note that the trial court dismissed the charge under subdivision 4 "with prejudice." In a criminal case, however, the use of the phrase "with prejudice" is inconsequential unless jeopardy has attached. City of St. Paul v. Hurd, 299 Minn. 51, 55-56, 216 N.W.2d 259, 262 (1974).

Affirmed.