may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Jennifer Leigh Anderson,
Filed March 9, 1999
Hennepin County District Court
File No. 98048391
Elliott B. Knetsch, Matthew K. Brokl, Campbell Knutson, P.A., 317 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN 55121 (for appellant)
Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and
James H. Peterson, 812 Meander Drive, Medina, MN 55340 (for respondent)
Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
Jennifer Leigh Anderson, a hostess at the Green Mill restaurant in Plymouth, was charged with a violation of Minn. Stat. § 609.685, subd.1a(a) (1998), for the sale of tobacco to a person under the age of 18. At the omnibus hearing, Anderson presented an entrapment defense. On appeal from dismissal, the state argues the trial court erred in finding entrapment existed. We dismiss the state's appeal under the Double Jeopardy Clause.
A defendant who intends to rely on the defense of entrapment must elect whether to have the defense submitted to the trial court or to the jury. See Minn. R. Crim. P. 9.02, subd. 1(3)(e) (defining election procedure and requiring waiver of jury trial upon submission of entrapment issue to court); see also Minn. R. Crim. P. 26.01, subd. 1(2) (defining waiver of trial by jury). The Double Jeopardy Clause protects a criminal defendant from a second prosecution for the same offense after acquittal. State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998); see U.S. Const. amend. V (federal Double Jeopardy Clause); Minn. Const. art. I, § 7 (state Double Jeopardy Clause). Under the Double Jeopardy Clause, if the trial court "decides that there was entrapment, that ends the prosecution and constitutes an acquittal from which the state may not appeal." State v. Abraham, 335 N.W.2d 745, 749 (Minn. 1983) (noting State v. Grilli, 304 Minn. 80, 95, 230 N.W.2d 445, 455 (1975), under which state could appeal finding of entrapment, is contrary to current law).
The state argues this appeal is not barred under the Double Jeopardy Clause because the entrapment issue was determined as a matter of law and did not factually relate to the defendant's criminal culpability. But on waiver of a jury trial and submission of the entrapment issue, the trial court decides the issue as a finder of fact. State v. Ford, 276 N.W.2d 178, 183 (Minn. 1979) (recognizing that, when defendant elects court to decide entrapment issue, court decides issue as trier of fact). Moreover, the issue of entrapment directly relates to criminal culpability. United States v. Scott, 437 U.S. 82, 97-98, 98 S. Ct. 2187, 2197 (1978) (noting government appeal of acquittal based on entrapment defense is barred by Double Jeopardy Clause because defense, if proven, necessarily establishes lack of criminal culpability).
Anderson elected to submit the entrapment issue to the trial court and waived a jury trial on that issue. The trial court found entrapment existed. Under these circumstances, we conclude the state is barred from appealing the trial court's finding under the Double Jeopardy Clause. Abraham, 335 N.W.2d at 749.