State v. Sahr, No. A10–0074.

Decision Date25 April 2012
Docket NumberNo. A10–0074.
Citation812 N.W.2d 83
PartiesSTATE of Minnesota, Respondent, v. Michael William SAHR, Appellant.
CourtMinnesota Supreme Court


Syllabus by the Court

The trial court's dismissal, on its own motion and in the furtherance of justice, of the State's complaint charging appellant with first-degree criminal sexual conduct constituted an acquittal on the merits that bars the State's subsequent prosecution of the appellant for second-degree criminal sexual conduct arising from the same circumstances.

Lori Swanson, Attorney General, St. Paul, MN; and Janelle P. Kendall, Stearns County Attorney, Tom J. Harbinson, Carl O. Tvedten, Assistant County Attorneys, St. Cloud, MN, for respondent.

John M. Stuart, State Public Defender, Mark D. Nyvold, Special Assistant State Public Defender, St. Paul, MN, for appellant.


PAGE, Justice.

In May 2008, respondent State of Minnesota charged then 29–year–old appellant Michael William Sahr with first-degree criminal sexual conduct, in violation of Minn.Stat. § 609.342, subd. 1(a) (2010) (prohibiting a defendant from engaging in “sexual contact with a person under 13 years of age” 1 when the defendant is more than 36 months older than the person), arising out of conduct involving his then 8–year–old niece. The complaint alleged that Sahr had sexually assaulted his niece by touching and rubbing her bare vaginal area. After the jury was impaneled and sworn, defense counsel objected to the proposed jury instructions, which stated the first element of first-degree criminal sexual conduct as requiring the defendant to have touched the victim's bare genitals with his hand, and requested that the preliminary jury instructions reflect that first-degree criminal sexual conduct requires genital-to-genital conduct.

As a result, the State moved to amend the complaint to add a charge of second-degree criminal sexual conduct in violation of Minn.Stat. § 609.343, subd. 1(a), because the facts, as alleged in the complaint, if proved, would be insufficient to support the first-degree criminal sexual conduct offense previously charged. In support of its motion, the State argued that defense counsel had an obligation to raise the known defect in the complaint before jeopardy attached but failed to do so.2 The trial court denied the State's motion.

The following day, defense counsel moved the court to dismiss the complaint sua sponte in the furtherance of justice pursuant to Minn.Stat. § 631.21 (2010).3 On the same day, the State again moved for inclusion of a lesser-included offense of second-degree criminal sexual conduct. At the hearing on the parties' motions, the State argued that the trial court should characterize Sahr's motion to dismiss the complaint as a request for a mistrial. The trial court rejected the State's argument and dismissed the complaint with prejudice on its own motion and in the furtherance of justice. The State subsequently moved to file a new complaint charging Sahr with second-degree criminal sexual conduct. The trial court denied the State's motion on the basis that filing a new complaint charging second-degree criminal sexual conduct would violate double jeopardy.

The State petitioned the court of appeals for a writ of prohibition and mandamus. Without deciding the merits of the petition, the court of appeals remanded to the trial court for further proceedings regarding the dismissal of the complaint. Specifically, the court of appeals ordered the trial court to address “whether its dismissal order constituted a finding of insufficient evidence to convict” and “whether the offense charged in the new complaint is the ‘same offense’ as the dismissed count for double jeopardy purposes.”

On remand after a hearing, the trial court held that its earlier dismissal of the complaint was based on a finding of insufficient evidence to convict Sahr of first-degree criminal sexual conduct and that the offense set out in the proposed amended complaint was the “same offense” the court had dismissed in the original complaint. Based on those findings, and the fact that jeopardy had attached before the complaint was dismissed, the trial court further found that the “interests of justice” required that the complaint be dismissed under Minn.Stat. § 631.21, and that signing the proposed amended complaint would violate Minn.Stat. § 609.04, subd. 2 (2010) (“A conviction or acquittal of a crime is a bar to further prosecution of any included offense, or other degree of the same crime.”). On appeal, the court of appeals reversed, concluding that double jeopardy did not bar retrial. We granted Sahr's petition for review and now reverse the court of appeals.


In May 2008, Sahr was charged with first-degree criminal sexual conduct, in violation of Minn.Stat. § 609.342, subd. 1(a), based on a report by his niece that, at some point between June and July of 2006, when she was 6 years old, Sahr “touched her in her private area,” touched her vaginal area under her clothing, and rubbed her vaginal area. The case was set for jury trial on February 17, 2009. On that date, before voir dire, the district court prepared and distributed proposed jury instructions to both the State and defense counsel, including CRIMJIG 12.07.4 The State had previously requested that the first element of CRIMJIG 12.07 be phrased instead as “the defendant intentionally touched [victim]'s bare genitals with his hand,” which the district court included in the jury instructions at issue when trial commenced. After the jury was impaneled and sworn, but before the trial judge began to read the preliminary jury instructions, defense counsel asked that, instead of instructing the jury that an element of the offense was hand-to-genital contact—as the prosecutor had requested for the instructions—the jury be “give[n] the instruction which matches the charged offense” of first-degree criminal sexual conduct, requiring genital-to-genital contact. After this request, the district court adjourned for the day.

The following morning, the State moved to amend its complaint to add a count of second-degree criminal sexual conduct, which is defined in Minn.Stat. § 609.343, subd. 1(a). The State argued that its motion to amend should be granted pursuant to Rule 17.05, which provides that [t]he court may permit an indictment or complaint to be amended at any time before verdict or finding if no additional or different offense is charged and if the defendant's substantial rights are not prejudiced.” Minn. R.Crim. P. 17.05. In addition, the State argued that, because defense counsel knew that the allegations comported with second-degree criminal sexual conduct charges well before the start of trial, the defense had an obligation to bring a motion to dismiss pursuant to Minn. R.Crim. P. 17.06 and 10.01.5 The State also asked that the trial court include in its instructions the lesser-included offense of second-degree criminal sexual conduct.

In an order filed on February 18, 2009, the trial court rejected each of the State's arguments. The trial court concluded that granting the State's motion to amend the complaint would violate Minn. R.Crim. P. 17.05 because first-degree criminal sexual conduct—in requiring genital-to-genital contact—contains a different essential element than second-degree criminal sexual conduct—which does not require genital-to-genital contact—and therefore charged a “different offense.” Moreover, the trial court concluded that Sahr demonstrated prejudice because allowing the State to amend the complaint “would have affected the defense's trial tactic because the defense would have sought to retain their own expert, and would have made a motion to investigate other potential perpetrators of sexual abuse of the minor child.” The trial court also concluded that defense counsel did not have an obligation to bring a motion to dismiss pursuant to Minn. R.Crim. P. 17.06 and 10.01 because doing so “would shift the burden of responsibility in charging to the defendant.” Finally, the trial court rejected the State's request to include a lesser-included offense as premature because [a] request for a lesser included offense would typically be made at the conclusion of the trial.” However, the trial court granted the State's request to stay its order for one day to allow the State to seek an emergency extraordinary writ to the appellate courts pursuant to Minn. R. Civ.App. P. 121.01 and 121.02. The State's requested relief from the appellate courts was denied.

On February 19, 2009, Sahr asked the court to dismiss the complaint on the court's own motion in the furtherance of justice pursuant to Minn.Stat. § 631.21.6 At the same time, the State again moved for the inclusion of the lesser-included offense of second-degree criminal sexual conduct in the jury instructions. The trial court rejected the State's motion, finding that, based on the State's concession that it lacked sufficient evidence to prove first-degree criminal sexual conduct, the State's characterization of their anticipated motion for a lesser-included offense instruction is nothing more than a constructive amendment of the Complaint, which this Court has previously denied when presented to this Court pursuant to Minn. R.Crim. P. 17.05.” The trial court further noted that:

A prosecutor cannot sidestep the requirement of rule 17.05 simply by moving to charge additional violations, rather than by moving to amend the original complaint. Similarly, when the record demonstrates that a defendant is confronted with a different or an additional charge after trial has begun, such charge constitutes a constructive amendment of the complaint and must comply with the requirements of Minn. R. [Crim.] P. 17.05. Accordingly, this Court will not entertain the motion to add a lesser-included offense instruction to a sole charge that is currently not viable.

(Citations, internal quotation marks, and alterations omitted.)

The trial court also rejected the State...

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8 cases
  • State v. Struzyk, A13–0821.
    • United States
    • Minnesota Supreme Court
    • August 26, 2015
    ...instruction on the physical-assault element has no bearing on Struzyk's acquittal of the gross-misdemeanor charge. See State v. Sahr, 812 N.W.2d 83, 92 (Minn.2012) (stating that double-jeopardy principles preclude review of an erroneous legal ruling after an acquittal). Instead, it just mea......
  • State v. Berry
    • United States
    • Wisconsin Court of Appeals
    • April 26, 2016
    ...14 Berry relies on United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), State v. Sahr, 812 N.W.2d 83 (Minn.2012), and Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978), to support his argument that his double jeopardy rights......
  • State v. Bakken
    • United States
    • Minnesota Court of Appeals
    • November 9, 2015
    ...a defendant forfeits his double-jeopardy protections by failing to file a timely and proper pretrial motion to dismiss. State v. Sahr, 812 N.W.2d 83, 93 (Minn.2012). In Jeffries, however, the supreme court noted that "a counseled guilty plea does not bar a defendant from raising a double-je......
  • State v. Johnson, A14-0621
    • United States
    • Minnesota Court of Appeals
    • January 12, 2015
    ...analysis thus turns on the question whether Johnson was "acquitted" of the first-degree charge. Johnson relies on State v. Sahr, 812 N.W.2d 83 (2012), in arguing that the district court's grant of his mid-trialmotion to dismiss was an acquittal. The facts of Sahr are fairly similar to the f......
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