State of Minnesota, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1366

State of Minnesota,
Appellant,

vs.

Jerad Michael Whitford,
Respondent.

Filed February 20, 2018
Reversed and remanded
Reilly, Judge

Morrison County District Court
File No. 49-CR-17-98

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Brian J. Middendorf, Morrison County Attorn ey, Todd L. Kosovich , Assistant County
Attorney, Little Falls, Minnesota (for appellant)

Mark D. Nyvold, Fridley, Minnesota (for respondent)

Considered and decided by Reilly, Presid ing Judge; Worke, Judge; and Rodenberg,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
In this pretrial appeal, a ppellant State of Minnesota ar gues that the district court
erred by granting respondent-d efendant Jerad Michael Whitford’s motion to dismiss a

2
third-degree murder charge for lack of probab le cause. We agree a nd, therefore, reverse
and remand.
FACTS
In January 2017, the State of Minnesota filed a criminal complaint against Whitford
asserting a charge of third-degree murder for selling, giving away, or distributing a
controlled substance classified as a schedule I or II substance, in violation of Minnesota
Statutes section 609.195(b) (2014). The charges stem from an incident in which Whitford
allegedly sold, gave away, or distributed heroin to Callie Statema, who in turn gave heroin
to her boyfriend, T.S. T.S. died from complications of opiate toxicity. Heroin is a schedule
I opioid drug. Minn. Stat. § 152.02, subd. 2(c)(11) (2014).
On June 14, 2016, Statema contacted Whitford to purchase heroin. Whitford
arranged to purchase heroin from Jason “J ay” White and accompanied Statema and her
friend, A.J.J., to Minneapolis to purchase the heroin. Statema gave money to Whitford to
purchase the heroin. Whitford met with White and gave him Statema’s money in exchange
for three grams of heroin, which Whitford then handed to Statema. Statema gave Whitford
and A.J.J. one-half of a gram of heroin in exchange for arranging the transaction. Whitford,
Statema, and A.J.J. returned to Statema’s home, and Statema shared the heroin with T.S.
Later that evening, T.S. lost consciousness and Statema called the police. T.S. was
transported to the hospital, where he was later pronounced dead from complications from
opiate toxicity.
The state charged Whitford with third-de gree murder. In Ma y 2017, Whitford
moved to dismiss the co mplaint for lack of probable caus e. The issue of probable cause

3
was submitted to the district court based on th e criminal complaint and the police report,
without testimony. The district court determin ed that probable cause did not support the
third-degree murder charge and dismissed the complaint, and the state now appeals.
D E C I S I O N
I. The district court’s pretrial dismissal order is appealable.
The state’s right to appeal in a criminal case is limited. The state may appeal a
dismissal for lack of probable cause if the dismissal is “based on questions of law,” Minn.
R. Crim. P. 28.04, subd. 1(1), and if “the district court’s alleged error, unless reversed, will
have a critical impact on the outcome of the trial,” id., subds. 1(1), 2(2)(b). We determine
that both elements are satisfied and the district court’s pretrial dismissal order is appealable.
The state may appeal as of right from “any pretrial order, including probable cause
dismissal orders based on quest ions of law,” whereas pretri al dismissals for lack of
probable cause premised solely on factual de terminations are not appealable. Minn. R.
Crim. P. 28.04, subd. 1(1). “[W]hether the dismissal is based on a legal or a factual
determination is a threshol d jurisdictional question.” State v. Ciurleo , 471 N.W.2d 119,
121 (Minn. App. 1991). Here, the material facts are undisputed and the district court’s
dismissal of the third-degree murder charge was based solely on the court’s interpretation
of Minnesota Statutes section 609.195(b). The interpretation and construction of a statute
is a question of law. State v. Kiminski, 474 N.W.2d 385, 389 (Minn. App. 1991), review
denied (Minn. Oct. 11, 1991). The appeal is therefore permissible under rule 28.04,
subdivision 1(1).

4
The state further satisfies the critical-i mpact test, which requires the prosecuting
authority to demonstrate “how the district court’s alleged error, unless reversed, will have
a critical impact on the outcome of the trial.” State v. Osorio , 891 N.W.2d 620, 626-27
(Minn. 2017) (quoting Minn. R. Crim. P. 28. 04, subd. 2(2)(b)). Dismissal of a complaint
satisfies the critical-impact requirement because it impairs the state’s ability to prosecute
the charged offense. State v. Trei , 624 N.W.2d 595, 597 (Minn. App. 2001), review
dismissed (Minn. June 22, 2001). Because the di strict court’s dismissal of the charge
precludes any trial in this case, the critical-impact test is satisfied and we therefore proceed
to a review on the merits. See State v. Lugo , 887 N.W.2d 476, 481-86 (Minn. 2016)
(permitting appellate review on the merits once critical impact is established).
II. The district court’s pretrial dismissal order is erroneous.
We next consider whether the district court erred by concluding that probable cause
does not support the criminal charge against Whitford. The primary function of a probable-
cause hearing is to “screen[ ] out cases which, for one reason or another, ought not to be
prosecuted” because the record as a whole contains an insufficient factual basis to support
the offense charged. State v. Florence, 306 Minn. 442, 447 n.4, 453-54, 239 N.W.2d 892,
896-97 n.4, 900 (1976). On a challenge to a district court’s pretrial probable-cause ruling,
appellate courts review the factual findings for clear error but review the application of the
probable-cause standard to the facts de novo. State v. Lopez, 778 N.W.2d 700, 703 (Minn.
2010). A charge should not be dismissed for lack of probab le cause if there is a fact
question on an element of the offense. Id. at 704.

5
The state charged Whitford with third-de gree murder in violation of Minnesota
Statutes section 609.1 95(b). A person is guilty of third- degree murder if that person,
“without intent to cause death, proximately causes the death of a human being by, directly
or indirectly, unlawfully selling, giving away, bartering, deliv ering, exchanging,
distributing, or administering a controlled substance classified in Schedule I or II.” Minn.
Stat. § 609.195(b). The district court determined that Whitford’s actions did not constitute
“selling” or “giving away” within the mean ing of section 609.195(b), and that Whitford
did not proximately cause T.S.’s death. We determine that both of the district court’s
determinations are erroneous.
Selling or Giving Away a Controlled Substance
We begin by analyzing the stat ute “primarily on its plain language in an effort to
discern and effectuate the legislature’s intent.” State v. Shimota , 875 N.W.2d 363, 366
(Minn. App. 2016), review denied (Minn. Apr. 27, 2016); see also Thong v. State , 892
N.W.2d 842, 846 (Minn. App. 2017) (stating principle that statute’s plain language controls
when meaning of statute is unambiguous), review denied (Minn. May 30, 2017). The
transactions prohibited in sec tion 609.195(b) include “selli ng, giving away, bartering,
delivering, exchanging, distributing, or administering a controlled substance.” Minn. Stat.
§ 609.195(b). “Selling” or “to sell” means “to give up (property) to another for money or
other valuable consideration.” Barrow v. State , 862 N.W.2d 686, 689 (Minn. 2015)
(quotation omitted). “Give away ” means “that the defendant must give up more than
temporary control of the item at issue,” and “deliver” means “to set free from restraint” or
to “yield possession or control of.” Id. at 690 (quotation omitted).

6

By its plain language, s ection 609.195(b) criminalizes the sale, giving away,
delivery, exchange, or distribution of certai n controlled substances when it proximately
causes death. It is undisputed that Whitfor d gave money to White in exchange for three
grams of heroin and then deliv ered the heroin from White to Statema. Given the plain
language of the statute, we conclude that probable cause exists as to whether Whitford
engaged in selling, giving away, and delivering heroin.
The district court determined that Whitford was not criminally liable because there
was “no evidence” that he shared his quarter-gram portion of the heroin with T.S. or that
his purchase of the drugs from White was “in any way a part of a continuing criminal
enterprise or drug distribution.” The district court premised its decision on State v.
Carithers, which presented the certified question: “When a married couple jointly acquires
a Schedule I controlled substanc e, and one of the partners uses that substance and
subsequently dies from a drug overdose, did the legislature intend that the surviving partner
be subject to prosecution under [section] 609.195(b)?” 490 N.W.2d 620, 620 (Minn. 1992).
The supreme court answered the certified question in the negative, explaining that because
each defendant acquired the heroin jointly with his or her spouse, “neither defendant can
be convicted of the predicate felony of furnishing or transferring or delivering heroin to a
spouse who already has constructive possession and therefore cannot be convicted . . .
under section 609.195(b).” Id. at 623. The Carithers court reasoned that “the legislative
enactment of section 609.195(b) was directed at the control of the commercial distribution

7
of controlled substances” and did not apply to the “joint acquisition and possession of
drugs.” Id. at 622, 624.
Our recent caselaw reaffirms the principle that “the holding in Carithers is narrow,
and the existence of a marriage relationship is an important el ement in establishing joint
acquisition and possession for purposes of a defense.” State v. Schnagl, ___ N.W.2d ___,
___, 2017 WL 6418215, at *7 (Minn. App. Dec. 18, 2017) (citing State v. Varner , 643
N.W.2d 298, 300, 307 (Minn. 2002) (determini ng that an exchange of sexual favors for
drugs constituted a sale and declining to apply Carithers because none of the parties
involved were married); and Barrow, 862 N.W.2d at 687, 690 n.2 (distinguishing Carithers
on the basis that, although Barrow gave drug s to his wife, the drug s had not been jointly
acquired)). Here, there is no evidence th at Statema and Whitford jointly acquired or
possessed the heroin as a married couple or partners, and, therefore, Carithers is not
persuasive authority. See Carithers, 490 N.W.2d at 622 (limiting holding to facts presented
in certified question of married couple jointly acquiring drugs).
Moreover, the district court’s determina tion that the state cannot charge Whitford
with third-degree murder because “[t]he hero in that [T.S.] used was that which was
purchased by Statema”—rather than Whitfor d’s own quarter-gram portion of heroin—
would render a portion of the statute meaningle ss. Section 609.195(b) articulates that a
person may be guilty of third-degree murder if he proximately causes another’s death by
“directly or indirectly, unlawfully selling . . . , delivering, exchanging, distributing, or
administering a controlled substance.” Minn. Stat. § 609.195(b). “A statute should be
interpreted, whenever possible, to give effect to all of its provisions, and no word, phrase,

8
or sentence should be deemed superfl uous, void, or insignificant.” State v. Larivee, 656
N.W.2d 226, 229 (Minn. 2003) (quotations omitted). To accept the district court’s decision
that Whitford cannot be held liable for T.S.’s death because T.S. used Statema’s portion of
the drug—rather than Whitford’s portion of the drug—would effectively read the word
“indirectly” out of the statute. Based on a plain reading, section 609.195(b) contemplates
liability for an individual who acts as an in termediary and delivers a controlled substance
to another individual, who in turn gives the drug to someone who later dies. We conclude
that the district court erred by determining th at Whitford cannot be held criminally liable
for T.S.’s death because his conduct did not constitute “selling” or “giving away” drugs
within the meaning of section 609.195(b).
Proximate Causation
In a homicide prosecution, the state must establish that “the act of defendant must
have been the proximate cause of the death of [the victim] without the intervention of an
efficient independent force in which defendan t did not participate or which he could not
reasonably have foreseen.” State v. Schaub, 231 Minn. 512, 517, 44 N.W.2d 61, 64 (1950).
While section 609.195(b) does not specifically define “proximate causation,” causation in
a homicide case is established by proof that the defendant’s conduct was a “substantial
causal factor” in bringing about the victim’s death. State v. Hofer, 614 N.W.2d 734, 737
(Minn. App. 2000), review denied (Minn. Aug. 15, 2000); see State v. Gatson, 801 N.W.2d
134, 146 (Minn. 2011) (explaining that when “cause” is used in homicide statute,
prosecution must prove that defendant’s acts were a “substantial causal factor” resulting in
death); State v. Olson, 435 N.W.2d 530, 531, 534 (Minn. 1989) (“To prove defendant guilty

9
of [second-degree murder and first-degree manslaughter], the state must prove the
defendant’s acts were a ‘substantial causal factor’ in causing the [victim’s] death.”); State
v. Sutherlin , 396 N.W.2d 238, 239-41 (Minn. 1986 ) (sustaining first-degree murder
conviction when state’s evidence established that defendant’s premeditated shooting “was
a substantial causal factor in the deaths”); see also State v. Nelson, 806 N.W.2d 558, 562
(Minn. App. 2011) (explaining that in vehicular homicide case state must show defendant’s
conduct was a “substantial factor ” in bringing about the death), review denied (Minn.
Feb. 14, 2012); State v. Jaworsky, 505 N.W.2d 638, 643 (Minn. App. 1993) (holding that
district court did not abuse its discretion by instructing jury that causation required a
showing that defendant’s conduct was a “substan tial part in bringing about the death” in
vehicular homicide case), review denied (Minn. Sept. 30, 1993).
The state argues that Whitford’s actions proximately caused T.S.’s death because
Whitford contacted White to arrange the heroin purchase, gave Statema’s money to White
in exchange for three grams of heroin, and handed the heroin to Statema. Whitford claims
that, when he delivered the he roin to Statema, it was not reasonably fore seeable that
Statema would later share the heroin with T.S. because she was “greedy” with drugs. But
the district court also made a factual finding that “[T.S.] knew that Statema was driving to
Minneapolis to buy heroin” and “sent as many as [10] text messages to Statema seeking to
share some of the anticipate d heroin when she returned [home].” There are factual
questions outstanding re garding proximate causation, and proximate causation is a fact
question for the jury unless reasonable minds can arrive at only one conclusion. See State
v. Smith, 264 Minn. 307, 322, 119 N.W.2d 838, 849 (1962) (affirming homicide conviction

10
when issue of causation properly submitted to jury); see also Jaworsky, 505 N.W.2d at 643
(affirming conviction when question of causation submitted to jury); State v. Olson, 459
N.W.2d 711, 716 (Minn. App. 1990) (same), review denied (Minn. Oct. 25, 1990); cf. State
v. Smith, 835 N.W.2d 1, 7 (Minn. 2013) (noting that existence of a superseding cause may
be a jury question if the evidence is such that reasonable minds could differ).
A district court errs by dismissing a crim inal complaint for lack of probable cause
if there is a fact question on an element of the offense. See Lopez, 778 N.W.2d at 704.
Here, there are fact questions regarding whether Whitford directly or indirectly participated
in the selling or giving away of heroin and whether Wh itford’s participation was a
proximate cause of T.S.’s death. Both are elements of the offense under section 609.195(b)
and the district court erred by dismissing the charge for lack of probable cause. We
therefore reverse the district court’s pretrial dismissal order and remand for further
proceedings.
Reversed and remanded.