State of Minnesota, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0891

State of Minnesota,
Appellant,

vs.

Sahra Abdilahi Ahmed,
Respondent.

Filed December 17, 2018
Reversed and remanded
Rodenberg, Judge

Kandiyohi County District Court
File No. 34-CR-17-954

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

Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for appellant)

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

Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and
Klaphake, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
The state appeals from the district court’s order dismissing th ree counts of felony
nonconsensual dissemination of private sexual images against re spondent Sahra Abdilahi
Ahmed for want of probable cause. We reverse and remand.
FACTS
On September 12, 2017, Willmar Police Department Officer Zach Herzog
responded to a call from a young woman who reported that an ind ividual was posting
inappropriate pictures of her on social media. The caller, S.C , reported that an
acquaintance, C.J., had been pos ting an image of S.C. on variou s social-media accounts,
including Snapchat. The image showed S.C. fellating a man.1
Officer Herzog tried to contact C.J. by phone. After attempts failed, Officer Herzog
decided to go to C.J.’s home. Almost immediately after Officer Herzog arrived at C.J.’s
home, C.J. told Officer Herzog that she “already took the post down.” Officer Herzog
warned C.J. that she could be charged with a crime for posting the picture online and
warned her that if she posted the image again, she would be charged. He also advised her
that “if she knew of anybody else with the photograph to advise them of the same.”

1 The various incarnations of the image discussed in this case a ll appear to use the same
original picture. How and by whom the picture was originally m ade remains uncertain.
S.C.’s face is clearly visible and identifiable in the image. The image clearly depicts a sex
act. S.C. appears not to be looking at the camera, and nothing in the image evidences that
S.C. is aware of the image being created.

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Between the time that C.J. posted the image and police began in vestigating the
matter, respondent took a screen shot of the image that C.J. ha d shared and then posted it
to her own Facebook and Twitter ac counts. Respondent set the i mage as her Facebook
profile picture. This version of the image included rows of pi nk flowers at the top and
bottom, and the message, “More savage than me” was written over the flowers, with a
smiley-face emoji behind it.
S.C. became aware of the additional postings of the picture aft er a friend informed
her that respondent had set the image as her Facebook profile picture. Respondent began
posting the photo shortly after it appeared on C.J.’s Snapchat. C.J. is a friend of respondent.
S.C. contacted Officer Herzog to report respondent’s postings of the image, and sent
him screen shots of respondent’s Facebook page. The following morning, S.C. messaged
Officer Herzog and told him that respondent had also posted the image on Snapchat and
Twitter. S.C. sent Officer Herzog a screen shot of the Twitter post containing the picture
of S.C.
S.C. thrice messaged respondent and asked her to remove the pho tos. In the third
message, S.C. said, “it’s sad how your miserable—delete from ev erything.” Respondent
told S.C. to stop messaging her and to “get off my DM before I really post the video.”
Despite S.C.’s repeated requests for respondent to remove the image from social media and
delete it, respondent continued to display the picture on her social-media accounts.
S.C. sent Officer Herzog a copy of messages exchanged via Twitt er between S.C.
and respondent and told Officer Herzog that she was “100% certa in” that the account
belonged to respondent. Officer H erzog tried to reach responde nt by phone and tried to

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locate respondent at two of her recent addresses, but he was un able to make contact with
her.
Several days later, S.C. spoke w ith Willmar Police Department O fficer Benjamin
Hanneman. S.C. told Officer Hanneman that many people in the community had seen the
image of her. S.C. thought that the image was taken during the 2016-17 school year when
she had attended a party, but she could not recall any specific date. In another conversation
with Officer Herzog, S.C. stated that the penis in the picture is that of R.B., also a student
at the community college. S.C. did not know who took the pictu re, but she said that
whoever took it did so without her consent. She did not know h ow C.J. or respondent
obtained the image and did not know that the image had been tak en. Officer Herzog
attempted to contact R.B., but he was no longer a student at the community college and did
not return phone calls.
The state charged respondent with three counts of nonconsensual dissemination of
private sexual images under Minn. Stat. § 617.261 (2016). Respondent moved to dismiss
the charges as being unsupported by probable cause. After an omnibus hearing, the district
court dismissed the charges, finding that the state failed to e stablish probable cause. The
state appealed. In a special term order, we questioned jurisdiction. See Minn. R. Crim. P.
28.04, subd. 1(1) (providing that a pretrial order dismissing a case for lack of probable
cause cannot be appealed if the di smissal is premised solely on a factual determination).
After briefing, we accepted jurisdiction because the appeal presented a legal question.
This appeal followed.

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D E C I S I O N
I. We have j urisdiction over this appeal, be cause the state’s a ppeal presents a
legal question and requires consideration of what conduct Minn. Stat.
§ 617.261 prohibits.

The parties disagree about whether the district court’s probabl e-cause dismissal is
appealable. Respondent continues to argue that, despite our pr evious special-term order
accepting jurisdiction, we should c onclude that the state’s app eal should be dismissed
because the issue is fact-based.
“When the state appeals a pre- trial order, we will only reverse if the state clearly
and unequivocally shows (1) that the ruling was erroneous and (2) that the order will have
a critical impact on its ability to prosecute the case.” State v. Barker, 888 N.W.2d 348, 352
(Minn. App. 2016) (quotation omitted). “Critical impact is a threshold showing that must
be made in order for an appellate court to have jurisdiction.” State v. Gradishar , 765
N.W.2d 901, 902 (Minn. App. 2009) (citing State v. Kim , 398 N.W.2d 544, 550 (Minn.
1987)).
In our special-term order, we det ermined that the district cour t appears to have
considered only the direct evidence of what respondent knew concerning the image. The
plain language of the statute requires consideration of both what respondent knew and what
respondent reasonably should have known. Id. In our special-term order, we determined
that “the probable-cause dismissal presents a legal question be cause it requires
consideration of what conduct the statute prohibits. Accordingly, this court has jurisdiction
to consider the merits of the appeal.” That holding is now the law of the case. See Dobrin
v. Dobrin, 569 N.W.2d 199, 201 (Minn. 1997) (“[A]s a general rule, an ap pellate court

6
decision on a particular issue establishes the law of the case, not subject to reexamination
on a second appeal of the same case.” (quotation omitted)); see also State ex rel. Leino v.
Roy, 910 N.W.2d 477, 481 (Minn. App. 2018) (“We have applied [Minn . R. Civ. App. P.
140.01] to foreclose reconsideration of an issue that a special term panel of this court
decided prior to considering the merits of an appeal.”).2
We turn to the merits of the state’s appeal.

2 Moreover, and even if our special -term order were not regarded as the law of the case,
we independently consider the i ssue raised by the state’s argum ent concerning the
construction of section 617.261 to be a question of law. In di smissing the complaint, the
district court found that there w as insufficient evidence to su pport probable cause under
parts (2) and (3) of Minn. Stat. § 617.261, subd. 1. The district court found that there was
insufficient evidence to support that respondent should have kn own that S.C. did not
consent to the images being put onto social media, because “[t]he origins of the image are
even unknown by [S.C.] herself, let alone as to where [C.J.] go t the image, which led to
[respondent’s] use of the image.”

The state’s right to appeal in cr iminal cases includes “probabl e cause dismissal orders
based on questions of law.” Minn. R. Crim. P. 28.04, subd. 1(1); see also State v. Dunson,
770 N.W.2d 546, 549 (Minn. App. 2009), review denied (Minn. Oct. 20, 2009).
Conversely, “a pretrial order cannot be appealed if the court dismissed a complaint for lack
of probable cause premised solely on a factual determination.” Minn. R. Crim. P. 28.04,
subd. 1(1). Whether the dismissal is based on a legal or factual determination is a threshold
jurisdictional question. Dunson, 770 N.W.2d at 549.

The statute prohibiting dissemination of private sexual images requires the state to prove
that the actor “knows or reasonably should know that the person depicted in the image does
not consent to the dissemination” and that the “image was obtai ned or created under
circumstances in which the actor knew or reasonably should have k n o w n t h e p e r s o n
depicted had a reasonable expectation of privacy.” Minn. Stat. § 617.261, subd. 1(2), (3).
To determine what conduct is prohibited under the statute, we m ust determine the
significance of the reasonably-shou ld-have-known language in pa rts (2) and (3) of
subdivision 1. While probable-cause determinations are mixed questions of law and fact,
“once the facts have been found, the court must apply the law t o determine whether
probable cause exists.” State v. Moe, 498 N.W.2d 755, 758 (Minn. App. 1993).

7
II. The district court erroneously dismissed the charges agains t respondent under
Minn. Stat. § 617.261 for lack of probable cause by failing to consider the
circumstantial evidence of what respondent reasonably should have known.

To determine whether the distric t court properly dismissed the complaint for want
of probable cause, we must first determine what conduct is proh ibited under Minn. Stat.
§ 617.261. We review de novo a district court’s dismissal of a complaint based on the
construction of a statute. State v. Hanson, 583 N.W.2d 4, 6 (Minn. App. 1998) (citation
omitted), review denied (Minn. Oct. 29, 1998). “When interpreting a statute, we must first
determine whether the statute’s language, on its face, is clear or ambiguous.” State v. Fleck,
810 N.W.2d 303, 307 (Minn. 2012) (quotation omitted). “We construe words and phrases
according to their plain and ordinary meaning.” State v. Randolph, 800 N.W.2d 150, 154
(Minn. 2011) (quotation omitted). A statute is ambiguous only when the statutory language
is subject to more than one reasonable interpretation, and if the statute is unambiguous, we
apply the statute’s plain meaning. Fleck, 810 N.W.2d at 307. We give a “reasonable and
sensible construction to criminal statutes.” State v. Greenman , 825 N.W.2d 387, 390
(Minn. App. 2013) (quotation omitted).
Minn. Stat. § 617.261 provides that it is a crime to intention ally disseminate an
image of another person who is depicted in a sexual act or whos e intimate parts are
exposed, in whole or in part, when (1) the person is identifiab le, (2) “the actor knows or
reasonably should know that the person depicted in the image do es not consent to the
dissemination,” and (3) “the image was obtained or created under circumstances in which
the actor knew or reasonably shoul d have known the person depic ted had a reasonable
expectation of privacy.” Minn. Stat. § 617.261, subd. 1. The statute does not further define

8
the words “reasonably should know.” The offense is a felony if “the actor posts the image
on a Web site” or if “the actor disseminates the image with int ent to harass the person
depicted.” Id., subd. 2(b)(4), (5).
“While statutory construction focuses on the language of the provision at issue, it is
sometimes necessary to analyze that provision in the context of surrounding sections.” Am.
Family Ins. Grp. v. Schroedl , 616 N.W.2d 273, 278 (Minn. 2000). “Know” is defined in
chapter 609 as requiring “only that the actor believes that the specified fact exists.” Minn.
Stat. § 609.02, subd. 9(2) (2016). The supreme court has defined “reason to know,” in the
context of possession of child pornography under chapter 617, as a recklessness standard—
that the possessor is subjectively aware of a substantial and unjustifiable risk that the work
involves a minor. State v. Mauer, 741 N.W.2d 107, 115 (Minn. 2007) (interpreting Minn.
Stat. § 617.247, subd. 4(a)). In Mauer, the supreme court stated that “reason to know” may
be proved by circumstantial evidence. Id.
The state argues that, while the district court seems to have considered the available
circumstantial evidence, it appears to have considered that evidence only as it might have
indicated respondent’s actual knowledge of S.C.’s nonconsent to dissemination and her
reasonable expectation of privacy. But the statute prohibits d issemination not only when
the actor actually knew of the depicted person’s nonconsent and her privacy expectations;
it also prohibits dissemination based on what the actor reasonably should know.
To be sure, the record here includes no direct evidence that, at the time respondent
initially posted the image in que stion, she actually knew that S . C . d i d n o t c o n s e n t t o
dissemination or that respondent h a d a c t u a l k n o w l e d g e o f S . C . having asserted an

9
expectation of privacy. But on this record, there is evidence sufficient to establish probable
cause that respondent should have known of S.C.’s nonconsent an d her expectation of
privacy during the time period over which respondent disseminated the image using several
social-media accounts.
In finding that there was insufficient probable cause to suppor t the charges, the
district court focused on the fact that “[t]he origins of the image are even unknown by the
victim herself, let alone as to where [C.J.] got the image, whi ch led to [respondent’s] use
of the image.” But the state need not prove precisely how the image was created. The
statute prohibiting dissemination of sexual images does not require proof of how the image
was created or that the actor is subjectively aware of precisely how and when it was created.
Rather, the statute prohibits dissemination in circumstances wh ere the actor “reasonably
should know” that the depicted individual did not consent to th e dissemination of the
images and had a reasonable expectation of privacy. On this record, there is circumstantial
evidence to indicate that respondent reasonably should have kno w n t h a t S . C . d i d n o t
consent to the dissemination of the images.
S.C. contacted police after the image was posted and S.C. told respondent multiple
times to remove the image from social media. The circumstantial evidence is sufficient to
support a conclusion that respondent knew that the image was no t posted by the woman
depicted in the image. Police also told C.J., respondent’s friend, to stop posting the picture
and told her to tell her friends as well. Police warned C.J. t hat she and her friends could
be charged with a crime for posting the image online. After this conversation between C.J.
and police, respondent messaged S.C. stating that, “Calling the cops on [C.J.] won’t change

10
anything.” A fact finder might infer from the language accompa nying the image—“more
savage than me”—that respondent knew or should reasonably have known that S.C. did
not consent to the image’s postin g. Accordingly, the evidence of record is sufficient for
probable-cause purposes to satis fy the reasonably-should-know l anguage in the statute,
concerning the issue of S.C.’s nonconsent to dissemination.
Similarly, the record evidence is sufficient to establish proba ble cause that
respondent reasonably should have k n o w n t h a t S . C . h a d a r e a s o n able expectation of
privacy when the image was obtained or created. S.C. stated th at she and the male in the
photo went into a bedroom before she fellated him, but that she was unaware of anyone
else having been present in the room with them. S.C. said that R.B. probably captured the
image. And the image itself depicts nothing negating the ordin ary expectation of privacy
that attends sexual activity.3 S.C. immediately contacted the police when she was aware
that the photo had been posted onto both C.J.’s and respondent’s social-media accounts.
We also conclude that responde nt’s conduct of allowing the alre ady-posted image
to remain on social media constitu tes continuing “dissemination ” under the statute from
the time of the original posting until the image was removed. “Dissemination” is defined
as “distribution to one or more p ersons, other than the person depicted in the image, or
publication by any publicly available medium.” Minn. Stat. § 617.261, subd. 7(b) (2016).

3 Respondent’s counsel seemed to argue at oral argument that the image itself suggests that
S.C. had no reasonable expectation of privacy. There are some images from which it is
evident either that the subject m ade the image herself—a “selfi e”—or is clearly aware of
the image being created. But in this image, S.C. is not lookin g at the camera and nothing
about the image suggests that she was aware of the image being created or that she was not
expecting privacy.

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In the context of social-media postings, dissemination continues for the period of time that
the posting remains available on s o c i a l m e d i a . I n o t h e r w o r d s , u s i n g s o c i a l m e d i a t o
distribute a picture is fundamentally different than handing a piece of paper to one person.
Cf. State v. Johnson, No. A18-0112, 2018 WL 2770368, at *4 (Minn. App. June 11, 2018)
(concluding that appellant’s conduct of delivering the images in a closed envelope to one
person, the victim’s significant other, “seems to have met the minimum conduct necessary
to be dissemination”). Social-media posts, an “image on a web page,” remain available.
See Minn. Stat. § 617.261, subd. 2(b)(3). The dissemination of an image by social media
continues while the image remai ns available on social media and ends when the person
takes down the posting or image.
Importantly, the record here supports the inference that respondent knew or should
have known after posting and before she deleted the posts that S.C. did not consent to the
dissemination and was affirmativ ely asserting a reasonable expe ctation of privacy. In a
later message while the image remained available for viewing, r espondent expressed that
getting the “cops” involved was not going to change anything. This comment evidences
actual awareness by respondent that S.C. was objecting to the c ontinued dissemination of
the picture.
Respondent also argues that our decisions in State v. Duffy, 559 N.W.2d 109 (Minn.
App. 1997), and State v. Estrella , 700 N.W.2d 496 (Minn. App. 2005), review denied
(Minn. Nov. 15, 2005), support dismissal here. But in those cases, there was no evidence
to support a finding of probable cause. In Duffy, we dismissed the state’s pretrial appeal
because there was no evidence, direct or circumstantial, of an overt act in actual furtherance

12
of a drug sale or conspiracy t o sell drugs. 559 N.W.2d at 111. Similarly, in Estrella, the
district court dismissed the char ges against the defendant afte r finding that “there is no
evidence of a criminal enterprise between [respondent] and his parents.” 700 N.W.2d at
499. In Estrella, we dismissed the state’s pretrial appeal because the issue was fact-based,
and we noted that the state could “gather more evidence against respondent and re-file if it
so choses.” Id. at 499-500.
This case is unlike Duffy and Estrella . Here, the evidence is what it is—
circumstantial evidence of what respondent knew or reasonably should have known about
S.C.’s consent and her expectation of privacy—both at the time of the initial posting, and
during the time that the posting remained available on social m edia. Respondent’s
inflammatory comments that attended the posts are evidence that she knew or should have
known that S.C. was not consenting to the continuing dissemination of the image and was
asserting a reasonable expectation of privacy.
Our analysis here is, of course, limited to the question of probable cause. It remains
t o b e s e e n w h e t h e r t h e s t a t e c a n p r o v e t h e e l e m e n t s o f t h e c h a rged offenses beyond
reasonable doubt. The question before us is limited to whether , properly construing the
statute, there is probable cause to believe that respondent committed the charged offenses.
We conclude that the record evidence is sufficient to establish probable cause, and we
therefore reverse and remand for further proceedings.
Reversed and remanded.