This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



James Edward Large,


Filed July 20, 1999

Reversed and remanded

Thoreen, Judge[*]

Cass County District Court

File No. K2-98-331

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; and

Earl E. Maus, Cass County Attorney, Box 3000, Courthouse, Walker, MN 56484 (for appellant)

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN 55414-3230 (for respondent)

Considered and decided by Harten, Presiding Judge, Willis, Judge, and Thoreen, Judge.

U N P U B L I S H E D   O P I N I O N


After a jury acquitted respondent James Edward Large on three counts of criminal sexual conduct, but was unable to reach a verdict on the fourth count, Large moved to dismiss the remaining count. The trial court granted the motion, concluding that retrial of the fourth count was prohibited by Minn. Stat. §§ 609.035 and 609.04 (1998). The State of Minnesota appeals.

Because Minn. Stat. §§ 609.035 and 609.04 only bar multiple or further "prosecutions," retrial of a defendant on a count on which the jury was deadlocked is not prohibited. We therefore reverse and remand for retrial.


In 1998, a complaint was filed against Large charging him with four counts of criminal sexual conduct involving A.D. and her brother, L.D. Counts 1 and 2 involved A.D., and alleged that Large had committed offenses against A.D. between the fall of 1994 and March 1996. The jury acquitted Large on these two counts, and they are not the subject of this appeal.

The remaining two counts involved Large's alleged offenses against A.D.'s brother, L.D. The evidence on these counts presented at trial involved two incidents that allegedly occurred within two weeks of each other. The first incident involved Large allegedly fondling and touching L.D. while he was taking a bath; the second incident involved Large fondling L.D. and having L.D. perform oral sex on him.

Count 3 charged Large with first-degree criminal sexual conduct and alleged that Large had engaged in sexual penetration with L.D. between 1992 and 1994, when L.D. was under 13 years of age. Minn. Stat. § 609.342, subd. 1(a) (1992). Count 4 charged Large with second-degree criminal sexual conduct and alleged that Large had engaged in multiple acts of sexual contact with L.D. over an extended time period between 1992 and 1994, when L.D. was under 16 years of age and Large had a significant relationship with L.D. Minn. Stat. § 609.343, subd. 1(h)(iii) (1992). The jury acquitted Large on count 3, but could not reach a verdict on count 4 and was deadlocked.

In concluding that the jury's acquittal of Large on count 3 precluded his retrial on count 4, the trial court reasoned: "[T]he fourth count of the Complaint, under the language of the charged statute, requires multiple acts. Because an acquittal on Count 3 left only a single act of criminal sexual conduct, Count 4 cannot stand alone, and therefore cannot be retried."


The state's right to appeal in criminal cases is strictly construed. State v. Kivi, 554 N.W.2d 97, 100 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996); see also Minn. R. Crim. P. 28.04, subd. 1(1) (allows prosecutor to appeal from "any pretrial order * * * [except an order] dismissing a complaint for lack of probable cause to believe the defendant has committed an offense or * * * an order dismissing a complaint pursuant to Minn. Stat. § 631.21," which allows dismissal by a trial court in furtherance of justice). When a case is dismissed solely on a question of law and that dismissal would constitute a constitutional impediment to reissuance of the complaint, the state may properly appeal. See State v. Juelfs, 281 N.W.2d 148, 150 (Minn. 1979) (prosecutor's appeal proper where trial court dismissed reissued complaint based on doctrine of constitutional collateral estoppel). We therefore conclude the state's appeal in this case is proper.

The trial court dismissed the remaining count under Minn. Stat. §§ 609.035 and 609.04. Minn. Stat. § 609.035, subd. 1, provides, in pertinent part:

[I]f a person's conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them. All the offenses, if prosecuted, shall be included in one prosecution which shall be stated in separate counts.

(Emphasis added.) Minn. Stat. § 609.04, subd. 2 (1998), provides that "[a] conviction or acquittal of a crime is a bar to further prosecution of any included offense, or other degree of the same crime." (Emphasis added.)

The state argues a retrial is not a "prosecution" and is not barred by these statutes. We agree. In State v. Sater, 588 N.W.2d 512, 514 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999), the defendant was found not guilty of first-degree murder, but the jury was unable to reach a unanimous verdict on the three lesser murder charges arising from the same behavioral incident. On a certified question, this court held that Minn. Stat. §§ 609.035 and 609.04 did not bar retrial of the lesser-included offenses. Id. at 514. This court reasoned that while the state cannot file a new complaint to begin prosecution of any new charge, charges tried but unresolved are subject to retrial. Id. This court noted that "it is a common practice when a defendant has been acquitted of one criminal charge to retry on lesser charges on which the jury deadlocked" and that "[r]etrial is merely the continuation of an incomplete prosecution." Id. Thus, under the holding of Sater, Minn. Stat. §§ 609.035 and 609.04 only bar further "prosecution," not retrial, of charges on which a jury was deadlocked.

Sater also recognized that an exception exists when a defendant is acquitted of a lesser-included charge; in those circumstances, any subsequent retrial of more serious charges is barred. Id., 588 N.W.2d at 514 n.1. In essence, Large argues that the unusual circumstances of this case fit it within the exception recognized in Sater. He asserts that because the deadlocked count required proof of multiple acts and because the testimony and other evidence presented at trial referred to only two acts, one of which was the act forming the basis for the acquitted count, any retrial on the deadlocked count is barred.

Large's arguments are perhaps better characterized as based on collateral estoppel principles embodied in the Double Jeopardy Clause. The Supreme Court has held that the principle of collateral estoppel is embodied in the prohibition against double jeopardy to the extent that if an ultimate issue of fact is actually and necessarily decided in a defendant's favor, a second prosecution cannot be undertaken based on proof of the issue already decided. Asche v. Swenson, 397 U.S. 436, 443-44, 90 S. Ct. 1189, 1194-95 (1970); see also State v. McAlpine, 352 N.W.2d 101, 103 (Minn. App. 1984) (doctrine of collateral estoppel will bar prosecution where second prosecution requires relitigation of factual issues already resolved by first). Again, however, because there is no "second prosecution," collateral estoppel does not apply to any retrial of Large on the deadlocked count.

Even assuming collateral estoppel is available in this case, the burden is on Large to show that the jury's acquittal "necessarily decided" the issues to be raised on retrial. See State v. DeSchepper, 304 Minn. 399, 410, 231 N.W.2d 294, 300 (1975). The jury heard evidence relating to two incidents: the first involved Large touching L.D., and the second involved touching in addition to oral sex. Although the jury's acquittal of Large for first-degree criminal sexual conduct could be based on its finding that no sexual penetration occurred, that does not mean that the jury also necessarily found that no sexual contact or touching occurred during the second incident. Thus, the state is not collaterally estopped from presenting evidence of multiple incidents of sexual contact.

We therefore reverse the trial court's dismissal of the remaining count and remand for retrial on that count.

Reversed and remanded.

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