STATE OF MINNESOTA

IN DISTRICT COURT

COUNTY OF BLUE EARTH FIFTH JUDICIAL DISTRICT ________________________________________________________________________ State of Minnesota,

File No: 07-CR-15-2484

Plaintiff, vs.

ORDER

James Thomas Adams,

Defendant. ________________________________________________________________________

This matter came before the Honorable Krista J. Jass of the above-named Court on

December 22, 2015, for a contested omnibus hearing. Plaintiff State of Minnesota was represented by Christopher D. Cain, Assistant City Attorney, Mankato, Minnesota. Defendant James Thomas Adams personally appeared and was represented by Valerie Sims, Heley, Duncan, & Melander PLLP, Minneapolis, Minnesota. The Court received final submissions on January 12, 2016 and took the matter under advisement at that time.

Upon the files, pleadings, and record herein, together with the arguments of counsel,

and the Court being otherwise advised: IT IS HEREBY ORDERED that Defendant’s motion to dismiss the complaint for lack of probable cause be, and the same is, GRANTED. IT IS SO ORDERED. The attached MEMORANDUM is made a part hereof. BY THE COURT: _______________________ Krista J. Jass Judge of District Court cc: Mr. Cain Ms. Sims

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************************************************************************ MEMORANDUM

State of Minnesota vs. James Thomas Adams Court File No.: 07-CR-15-2484

FACTS On May 5, 2015, at approximately 11:50 a.m., Mankato Police Department Officer

Katelyn Pierson responded to a report of theft of services at a mobile home community in

Blue Earth County, Minnesota. The complainant, the community’s property manager,

stated that Defendant had instructed his son to deposit garbage from his mobile home into

a nearby dumpster that was being used for refuse relating to the tear-down of a mobile

home. Another property manager took photographs of Defendant’s personal garbage in the

dumpster and talked to several residents about Defendant’s unauthorized use of the

dumpster.

On November 13, 2015, Mankato Police Department Officer Sam McGinnis

interviewed two new witnesses at the mobile home park regarding two different statements

Defendant made to a witness and Defendant’s son, though it is unclear when Defendant

made these alleged statements.

Defendant was charged with theft of services in violation of Minn. Stat. § 609.52

subd. 2(a)(3)(ii)1, and disorderly conduct in violation of Minn. Stat. § 609.72 subd. 1(3).

Neither party disputes that Defendant used the dumpster. Indeed, the State called three

1 The State has charged Defendant with violating Minn. Stat. § 609.52 subd. 2(a)(3)(ii), which relates to theft by false representation by a promise made with intent not to perform. However, the State references and defines Minn. Stat. § 609.52 subd. 2(a)(13), theft of services, in its brief. This Court must assume the State incorrectly charged Defendant with violating Minn. Stat. § 609.52 subd. 2(a)(3)(ii) instead of Minn. Stat. § 609.52 subd. 2(a)(13) and will analyze the correct theft of services statute because the outcome would be the same.

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witnesses to testify to that fact. However, Defendant now moves to dismiss both charges

based on lack of probable cause.

LAW / ANALYSIS

The purpose of a probable cause hearing is to “protect a defendant unjustly or

improperly charged from being compelled to stand trial.” State v. Florence, 239 N.W.2d

892, 900 (Minn. 1976); see Minn. R. Crim. P. 11.04, subd. 1 (2010). “[T]he test of probable

cause is whether the evidence worthy of consideration, in any aspect for the judicial mind

to act upon, brings the charge against the [defendant] within reasonable probability.”

Florence, 239 N.W.2d at 896. “A motion to dismiss for lack of probable should be denied

where ‘the facts appearing in the record, including reliable hearsay, would preclude the

granting of a motion for a directed verdict of acquittal if proved at trial.’” State v. Lopez,

778 N.W.2d 700, 703-04 (Minn. 2010) (citation omitted). “A motion for judgment of

acquittal is properly denied where the evidence, viewed in the light most favorable to the

State, is sufficient to sustain a conviction.” State v. Simion, 745 N.W.2d 830, 841 (Minn.

2008). However, where the State fails to establish probable cause for each element of the

charged offense, the charge must be dismissed. See State v. Costello, 646 N.W.2d 204,

211 (Minn. 2002) (“Due process requires that the state prove beyond a reasonable doubt

the existence of every element of the crime charged”).

I.

Defendant is charged under Minn. Stat. §609.52 subd. 2(a)(3)(2)(ii), which makes

it a crime to obtain performance of services by a third person by intentionally deceiving

the third person with a false representation which is known to be false, made with intent to

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defraud, and which does defraud the person to whom it is made due to a promise made

with intent not to perform. Minn. Stat. §609.52 subd. 2(a)(3)(ii). But, the State submitted

that Defendant should have been charged with Minn. Stat. §609.52 subd. 2(a)(13), which

criminalizes obtaining the services of another with the intention of receiving those services

without making the agreed or reasonably expected payment of money or other

consideration.

Here, Defendant disposed of his garbage into a dumpster that was being used for the

debris connected with tearing down a mobile home. Defendant contends that his written

lease agreement (Exhibit 1) and the trailer park Rule and Regulations (Exhibit 2) are proof

that Defendant’s actions were not unlawful and that he was entitled to dispose of his

garbage in the dumpster utilized, at no extra charge. Additionally, Defendant argues that

the evidence does not establish a “theft” of any value, nor does it support any intent to steal

services. The State counters that Defendant was provided with a separate trash receptacle

for his use at no charge, but his use of the dumpster designated for the “tear down” of a

mobile home was not allowed under the lease, and he did not make payment for the use,

thereby constituting theft of services. The Court concludes that Defendant’s conduct does

not amount to the criminal charge of theft.

There is no evidence in the record that Defendant made any promise or false

representation in connection with his use of the dumpster. As a result, Minn. Stat. § 609.52

subd. 2(a)(3)(ii) does not apply to this case. Regarding Minn. Stat. §609.52 subd. 2(a)(13),

Defendant did obtain services, that is, the use of the dumpster, but did not do so without

making the agreed or reasonably expected payment of money. According to the lease

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agreement, Defendant had a legal right to use a dumpster. His payment of monthly rent

included trash service and the State’s witness, the property manager, testified that a

dumpster is an appropriate receptacle for garbage. Simply because Defendant used the

incorrect dumpster for his garbage may imply that he broke a rule within the residential

community, but it does not follow that using the wrong dumpster within the community

constitutes the crime of theft of services. Further, the State failed to establish any value

could be attributed to Defendant’s use of the dumpster. It is not alleged that Defendant

disposed of a large amount of garbage, such that an additional dumpster was needed for

the tear down; nor was it alleged the mobile home park needed to pay anything additional

for the dumpster due to Defendant’s use. Therefore, Count I must be dismissed for lack of

probable cause.

II.

Defendant was also charged the day prior to the contested pre-trial, pursuant to an

amended complaint, with disorderly conduct in violation of Minn. Stat. §609.72 subd. 1(3),

which makes it a crime to knowingly, or having reasonable grounds to know that it will, or

will tend to, alarm, anger, or disturb others, or provoke an assault or breach of the peace,

engage in offensive, obscene, abusive, boisterous, or noisy conduct, or in offensive,

obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in

others. Minn. Stat. §609.72 subd. 1(3). It is alleged Defendant made threatening statements

to a witness, such as “I’m going to get you” and called her “trailer trash.” The State’s

statement of probable cause does not contain any specific date relating to the amended

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charge except the interview date, which is listed as November 13, 2015, over six months

after the alleged offense date for the theft.

“[T]hreats punishable consistently with the First Amendment [are] only those

which according to their language and context convey[] a gravity of purpose and likelihood

of execution so as to constitute speech beyond the pale of protected ‘vehement, caustic . .

. [or] unpleasantly sharp’ [speech]”. United States v. Kelner, 534 F.2d 1020, 1026 (2nd Cir.

1976) cert. denied 429 U.S. 1022 (1976). It is only when the person communicates a

present intent to act on his iniquitous thoughts, immediately or at some point in the future,

that the law intervenes. In determining whether any given statement constitutes a threat,

context is paramount. This is because words may be objectively threatening, but their

context may supply a harmless denotation. Likewise, an intimidating context may confer

threatening meaning to otherwise innocent words. Unfortunately, the record contains little

evidence of context and no evidence to support what the date of offense was. Whether the

alleged statements occurred on the same date as the alleged theft of services charge or six

months after the charged offense date when law enforcement interviewed the witnesses, or

sometime in between is unknown. Without more evidence supporting a specific occurrence

of disorderly conduct, instead of general statements made by Defendant without a date or

time associated with them, a charge of disorderly conduct must be dismissed for lack of

probable cause.

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CONCLUSION

For all of these reasons, Defendant’s motion to dismiss is GRANTED and the

complaint is DISMISSED. This MEMORANDUM is made a part of the hereto attached

ORDER.

*** K.J.J.