Filed July 5, 2005

Appeal dismissed

Toussaint, Chief Judge

Anoka County District Court

File No. J0-04-0526

Robert D. Goodell, Anoka County Attorney Office, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for appellant)

Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101 (for respondent)

Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Halbrooks, Judge.

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

TOUSSAINT, Chief Judge

The state challenges the district court’s dismissal of a juvenile delinquency petition for lack of probable cause. Because the district court did not dismiss the petition based on a question of law and because further prosecution is not effectively barred, the appeal is dismissed.

D E C I S I O N

In a juvenile delinquency case, a prosecutor may appeal from an order dismissing a petition for lack of probable cause when the dismissal is based solely on a question of law. Minn. R. Juv. Delinq. P. 21.04, subd. 1(D). Where the district court dismisses for lack of probable cause based on insufficient evidence, the proper remedy is to gather additional evidence and reissue the complaint. State v. Schroeder, 300 N.W.2d 790, 791 (Minn. 1981); State v. Duffy, 559 N.W.2d 109, 110 (Minn. App. 1997). But the state may alsoappeal whendismissal for lack of probable cause would make reissuing the complaint pointless and further prosecution effectively barred. State v. Olson, 382 N.W.2d 279, 281 (Minn. App. 1986). The state must show plainly and affirmatively that jurisdiction exists from the record presented. State v. Ciurleo, 471 N.W.2d 119, 121 (Minn. App. 1991).

At a probable cause hearing, the district court must decide if it is fair and reasonable to require the defendant to stand trial. State v. Florence, 306 Minn. 442, 457, 239 N.W.2d 892, 902 (Minn. 1976). If the facts on the record, including reliable hearsay, would preclude the granting of a motion for a directed verdict of acquittal would be denied, probable cause exists. Id.at 459, 239 N.W.2d at 903. A motion for judgment of acquittal will be granted “if the evidence is insufficient to sustain a conviction” of the charged offense. Minn. R. Crim. P. 26.03, subd. 17(1).

This case arises out of a fight that occurred on September 9, 2004. M.L.C., a male who was fifteen-years-old at the time of the offense, was charged with disorderly conduct in violation of Minn. Stat. § 609.72, subd. 1(1) (2004). M.L.C contended that the petition should be dismissed for lack of probable cause at his initial appearance, arguing that there must be some intent to want to participate in the fight and that his behavior was reasonable because there was no evidence that he did anything physical except strike back after the initial punch was thrown. The district court observed that, although the delinquency petition indicated that M.L.C. punched M.R. back, the actual beating of M.R. was done by M.L.C.’s friends. The district court then noted that the circumstances were not favorable to finding M.L.C. culpable and stated “from the point of judicial efficiency and accomplishing anything, the chances of there being a conviction out of this mess is pretty small. I’m going to find that there is not probable cause and dismiss the charges.”

The state argues that it can appeal the dismissal because the dismissal was based on a question of law, namely that the district court used the reasonable doubt standard rather than the probable cause standard. The state contends that the district court’s statement that “the chance . . . of a conviction out of this mess is pretty small” and its reference to judicial efficiency demonstrate that the standard used was proof beyond a reasonable doubt, not probable cause.

The state relies on State v. Lindell, an unpublished decision of this court. No. C0-89-656, 1989 WL 94459 (Minn. App. Aug. 22, 1989).[1] But Lindell is distinguishable. In that case, the complaint was dismissed after a probable cause hearing finding that “[t]he evidence produced by the State meets the most minimal probable cause requirement and would not meet the more demanding burden of proof beyond a reasonable doubt.” Id. at *1. This court held that the district court clearly erred by requiring the state to prove guilt beyond a reasonable doubt at the probable cause hearing. Id. Here, the district court explicitly found that there was no probable cause. Moreover, the statement about the low chance of conviction does not contradict the finding that the evidence on the record did not create probable cause to try M.L.C. If the evidence, including reasonable hearsay, could not sustain a conviction, there was no probable cause for a trial.

The district court focused on a lack of factual evidence rather than a legal reason when concluding that there was no probable cause. This court will not find jurisdiction based on an inference that the district court erroneously used a standard of reasonable doubt when it explicitly found there was no probable cause. See generally State v. Duffy, 559 N.W.2d 109, 110-11 (Minn. App. 1997) (rejecting state’s attempt to create a legal issue to support an appeal of a pretrial dismissed for lack of probable cause).

The state also argues that further prosecution is effectively barred because it would be pointless to reissue the petition. But, the state has not explained why it cannot gather more evidence to support the charge and reissue the petition. The record in this case consists only of a two-page charging petition that includes brief statements from several witnesses. The state is free to expand that record, perhaps by more extensive interviews of the witnesses. Because future prosecution is not effectively barred and the state can reissue the petition, the state has not shown plainly and affirmatively that jurisdiction exists to appeal the dismissal of the petition.

Appeal dismissed.

[1] Unpublished decisions of this court are not precedential, but may be persuasive in certain situations. Minn. Stat. § 480A.08, subd. 3(c) (2004); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn. App. 1993).