This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



William Anthony Moore,


Filed September 23, 1997


Thoreen, Judge


Olmsted County District Court

File No. KX-97-490

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

Raymond F. Schmitz, Olmsted County Attorney, Geoffrey A. Hjerleid, Assistant County Attorney, 515 Southwest Second Street, Rochester, MN 55902 (for appellant)

John M. Stuart, State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414, Mark D. Nyvold, Special Assistant Public Defender, 1030 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Kalitowski, Judge, and Thoreen, Judge.



The state challenges the district court's dismissal of a count charging William Anthony Moore with aggravated kidnapping. Minn. Stat. § 609.25, subds. 1(2), 2(2) (1996). The state contends that the district court clearly erred in determining that the victim was released in a safe place, and that dismissal of that count has a critical impact on the outcome of the prosecution. We affirm.


The complaint alleges that respondent William Anthony Moore entered the Ramada Inn in Rochester, Minnesota, and robbed the desk clerk of money from the register, from her purse, and from a bank bag. Moore then allegedly grabbed the victim's arm and demanded that she leave with him so she could not report the incident to the police. He threatened her, and made her walk against her will away from the hotel, telling her that he would let her go when they got far enough away. Meanwhile, police officers were responding to an unrelated complaint in the same area involving Moore. One of the officers knew Moore from previous incidents, and when he saw Moore and the victim he called out to him. When Moore saw the officer, he let go of the victim and fled. The victim ran to a nearby hotel to call 911. The officers pursued and apprehended Moore.

After a positive identification by the victim, Moore was charged with simple robbery and kidnapping. See Minn. Stat. §§ 609.24, 609.25, subds. 1(2), 2(2) (1996). Moore moved to dismiss the kidnapping charge, which included an enhancing element for not releasing the victim in a safe place, arguing that there was a lack of probable cause on this element. The district court granted the motion in part and denied it in part, finding there was probable cause to try Moore for kidnapping to facilitate flight from a felony, but there was not probable cause to show Moore failed to release the victim in a safe place.


In order to prevail in an appeal from a pretrial order, the state must show clearly and unequivocally that the district court erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial. State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977); State v. Jones, 518 N.W.2d 67, 69 (Minn. App. 1994), review denied (Minn. July 27, 1994).

The district court dismissed one count of a two-count complaint, finding a lack of probable cause to support the aggravated kidnapping charge. A dismissal for lack of probable cause is not appealable unless it is based on a legal determination. State v. Duffy, 559 N.W.2d 109, 110 (Minn. App. 1997); see Minn. R. Crim. P. 28.04, subd. 1(1) (stating general rule that probable cause dismissals are not appealable).

The dismissal of a complaint unquestionably has a critical impact on the outcome of a prosecution. See, e.g., State v. Ohrtman, 466 N.W.2d 1, 2 (Minn. App. 1991). This court has also found critical impact in pretrial appeals in which the district court has dismissed only some of the counts in the complaint, or has suppressed evidence relevant only to some counts. See, e.g., State v. Ault, 478 N.W.2d 797, 799 (Minn. App. 1991) (suppression of chemical test had critical impact in DWI prosecution in which defendant also charged with ordinary driving under the influence); State v. Poupard, 471 N.W.2d 686, 689 (Minn. App. 1991) (dismissal of single count weapons charge had critical impact); State v. Grohoski, 390 N.W.2d 348, 352 (Minn. App. 1986) (critical impact shown by suppression of evidence essential to proof of four DWI counts but not to two other counts), review denied (Minn. Aug. 27, 1986).

Here, the district court dismissed only the aggravated kidnapping count, while preserving the simple robbery count and finding that there was sufficient evidence to try Moore for ordinary kidnapping.

The trial court's order does not affect the state's ability to try Moore for simple robbery and ordinary kidnapping. It impacts only the potential sentence against Moore.[1] There is no authority holding that critical impact is shown merely by the potential sentencing impact of a pretrial order.

The general rule is that critical impact is shown if a pretrial order "significantly reduces the likelihood of a successful prosecution." State v. Joon Kyu Kim, 398 N.W.2d 544, 551 (Minn. 1987). A successful prosecution is achieved by a conviction, even if the state does not obtain the sentence it seeks. Although the prosecutor determines what charges to bring, the court ultimately has the authority to determine the appropriate sentence. See, e.g., State v. Olson, 325 N.W.2d 13, 18 (Minn. 1982) (legislature could not condition court's imposition of sentence on prosecutor's approval). In the present case, the district court might have ultimately reduced Moore's sentence for reasons similar to those given for the dismissal. See Minn. Sent. Guidelines II.D.2.a.(5) (substantial grounds mitigating offender's culpability support downward departure). We conclude that the critical impact test does not allow the state to bring a pretrial appeal, with the attendant delay in the prosecution, from an order impacting only the potential sentence.

We are also reluctant to categorize the district court's order as a dismissal based on a legal determination. The statutory language "released in a safe place," Minn. Stat. § 609.25, subd. 2(1), contains no legal terms of art, and calls for a factual rather than a legal determination. This is not a case in which the district court was construing a legal relationship. Cf. State v. Tolbert, 488 N.W.2d 11, 12 (Minn. App. 1992) (district court's order construing legal relationship between defendant and apartment lessee was appealable). The district court's analysis relates to the particular facts of this case. It is not a "legal determination" merely because the state disagrees with it, or because there are a number of similar prior cases that can be grouped together to support the state's argument.[2]

Whenever the district court decides whether a criminal offense can be proved by particular facts there will presumably be prior case law of some guidance. But essentially factual determinations cannot be construed as legal determinations simply to allow the state to appeal. The district court did not construe any legal terms in the statute, nor rule on the appropriate burden of proof or any other legal issue. Although this court might have made a different assessment of the facts for purposes of determining probable cause, that does not make the order appealable.


[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 This impact could be dramatic, the difference between a presumptive 21-month stayed sentence for ordinary kidnapping, and a 48-month executed sentence for aggravated robbery. See Minn. Sent. Guidelines IV (assuming zero criminal history score).

[ ]2 The state cites several cases in which a defendant has been convicted of aggravated kidnapping for not releasing the victim in a safe place. See State v. Heinkel, 322 N.W.2d 322 (Minn. 1982) (victim escaped when she saw another car coming); State v. Garcia, 302 N.W.2d 643 (Minn. 1981) (defendant pleaded guilty to aggravated kidnapping in which victim escaped), overruled on other grounds, State v. Owens, 544 N.W.2d 774 (Minn. 1996); Geer v. State, 406 N.W.2d 34 (Minn. App. 1987) (victim heard police car and escaped), review denied (Minn. July 15, 1987); State v. Titworth, 381 N.W.2d 510 (Minn. App. 1986) (victim escaped when someone opened basement door to investigate noise), review denied (Minn. July 15, 1987). Only Geer discusses the sufficiency of the evidence to prove that element, however, and it does so based on significantly different facts.