FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JUNE 3, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 93
State of North Dakota, Plaintiff and Appellant
v.
Donald James Dean Mitchell, Defendant and Appellee
No. 20200306
Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Douglas L. Mattson, Judge.
REVERSED.
Opinion of the Court by Tufte, Justice.
Leah J. Viste, Assistant State’s Attorney, Minot, N.D., for plaintiff and
appellant.
Kasey M. McGough, Minot, N.D., for defendant and appellee.
State v. Mitchell
No. 20200306
Tufte, Justice.
[¶1] The State appeals from a district court order dismissing without
prejudice a charge of gross sexual imposition against Donald Mitchell. On
appeal, the State argues the court erred in finding that the testimony
submitted was insufficient for a finding of probable cause. We reverse the
district court order.
I
[¶2] The State charged Mitchell with gross sexual imposition. At the
preliminary hearing, Officer Brian Williams was the only witness. He was not
the investigating officer, and before the preliminary hearing, he had not had
any contact with Mitchell. The basis for Officer Williams’ testimony was his
familiarity with a report prepared by another officer. He testified that there
was video evidence and that he had been told it showed sexual intercourse
between Mitchell and the alleged victim. Officer Williams also testified that
the alleged victim was under the age of 15 at the time of the incident.
[¶3] The district court concluded that there was not probable cause because
the officer did not have first-hand knowledge and he “failed to give any type of
an assertive ID.” The court dismissed the case without prejudice. An order of
dismissal without prejudice was filed, and the State timely appealed.
II
[¶4] The State argues the evidence it presented was sufficient to support a
finding of probable cause that Mitchell committed the offense. The State asks
this Court to reverse the district court’s order of dismissal and remand for
further proceedings. Mitchell argues the court properly dismissed the charge.
[¶5] “The State’s right to appeal must be expressly granted by statute.” State
v. Goldmann, 2013 ND 105, ¶ 6,
831 N.W.2d 748. “[A]n order dismissing a
criminal complaint, information, or indictment is the equivalent of an order
quashing an information or indictment and is therefore appealable under the
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statute.” Id. (quoting State v. Gwyther,
1999 ND 15, ¶ 11,
589 N.W.2d 575).
This Court has held that section 29-28-07(1), N.D.C.C., does not specifically
limit appealability to an order quashing with prejudice and therefore an order
quashing without prejudice is appealable.
Id. The State may either appeal an
adverse ruling on probable cause or issue a new complaint upon the offer of
additional evidence or other good cause. Walker v. Schneider,
477 N.W.2d 167,
174-75 (N.D. 1991). Accordingly, we have jurisdiction over the State’s appeal
from the district court order dismissing without prejudice a charge of gross
sexual imposition.
[¶6] “A preliminary hearing is a screening tool ‘to determine the existence or
absence of probable cause.’” Goldmann,
2013 ND 105, ¶ 8 (quoting State v.
Blunt,
2008 ND 135, ¶ 17,
751 N.W.2d 692). “Whether facts found by a district
court reach the level of probable cause is a question of law, fully reviewable on
appeal.” State v. Midell,
2011 ND 114, ¶ 10,
798 N.W.2d 645 (citations omitted).
The standard of probable cause at the preliminary hearing is the
same standard of probable cause required for a valid arrest. Under
that standard, probable cause exists when the facts and
circumstances are sufficient to warrant a person of reasonable
caution in believing an offense has been or is being committed, and
knowledge of facts sufficient to establish guilt is not necessary to
establish probable cause.
Id. at ¶ 11 (citation omitted). Probable cause requires the officer to possess
“knowledge that would furnish a prudent person with reasonable grounds for
believing a violation has occurred” and does not require knowledge of facts
sufficient to establish guilt. Goldmann, at ¶ 8 (quoting State v. Berger, 2004
ND 151, ¶ 11,
683 N.W.2d 897).
[¶7] Because a preliminary hearing is not an actual trial, “[t]he finding of
probable cause may be based on hearsay evidence” and “evidence that would
be inadmissible at the trial.” N.D.R.Crim.P. 5.1(a). Except for rules relating to
privilege, the North Dakota Rules of Evidence do not apply to preliminary
hearings in criminal cases. N.D.R.Ev. 1101(d)(3)(C). If, after hearing the
evidence, the court finds “either a public offense has not been committed or
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there is not sufficient cause to believe the defendant guilty of the offense, the
magistrate must discharge the defendant.” N.D.R.Crim.P. 5.1(b).
[¶8] “The State is not required to prove with absolute certainty or beyond a
reasonable doubt that a crime occurred, but rather need only produce sufficient
evidence to satisfy the court that a crime has been committed and that the
accused is probably guilty.” State v. Gratton, 2020 ND 41, ¶ 9,
938 N.W.2d 902
(quoting Blunt,
2008 ND 135, ¶ 15). Under N.D.C.C. § 12.1-20-03(1), a person
is guilty of gross sexual imposition if he “engages in a sexual act with another”
and “(d) [t]he victim is less than fifteen years old.”
“Sexual act” means sexual contact between human beings
consisting of contact between the penis and the vulva, the penis
and the anus, the mouth and the penis, the mouth and the vulva,
or any other portion of the human body and the penis, anus, or
vulva; or the use of an object which comes in contact with the
victim’s anus, vulva, or penis. For the purposes of this subsection,
sexual contact between the penis and the vulva, the penis and the
anus, any other portion of the human body and the anus or vulva,
or an object and the anus, vulva, or penis of the victim, occurs upon
penetration, however slight. Emission is not required.
N.D.C.C. § 12.1-20-02(4). “The statutory definition of ‘sexual act’ includes
sexual intercourse.” State v. Moe, 2010 ND 90, ¶ 6,
782 N.W.2d 624 (citing
N.D.C.C. § 12.1-20-02(4)).
[¶9] To satisfy its burden that an offense has been committed, the State must
present reasonable grounds to believe that a person engaged in a sexual act
with a victim less than fifteen years old. The officer testified that the alleged
victim’s school counselor or principal informed him there was some kind of
sexual intercourse incident that occurred at a residence in Minot and was
passed around on social media. The officer testified that the alleged victim was
14 years old on December 1, 2018, when the incident occurred and that a video
of the incident had been obtained from the alleged victim. The State must also
present evidence that Mitchell is probably guilty of the offense. The officer
testified he had been “told that [the] video contained sexual intercourse
between” Mitchell and the alleged victim.
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[¶10] The State presented testimony that there was a video obtained from the
alleged victim showing Mitchell engaging in sexual intercourse with the
alleged victim and that she was 14 years old at the time. Although the
testifying officer had not personally viewed the video, his testimony contained
sufficient information to establish probable cause to believe that Mitchell had
engaged in a sexual act with a victim less than 15 years old in violation of
N.D.C.C. § 12.1-20-03(1).
III
[¶11] We conclude the district court erred in concluding the evidence failed to
establish probable cause, and we reverse the district court order dismissing the
charge.
[¶12] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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