State of Minnesota, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0606

State of Minnesota,
Appellant,

vs.

Donald Mark Gray,
Respondent.

Filed September 18, 2023
Reversed and remanded
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-21-12549

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mary F. Moriarty, Hennepin County Attorney, Minneapolis, Minnesota (for appellant)

David J. Risk, Halberg Criminal Defense, Bloomington, Minnesota (for respondent)

Considered and decided by Slieter, Presiding Judge; Smith, Tracy M., Judge; and
Frisch, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
The state appeals the district court’s pretrial dismissal of two counts of second-
degree criminal sexual conduct for lack of probable cause. Because we conclude that the
amended complaint establishes probable cause, we reverse and remand.
2
FACTS
On July 6, 2021, appellant State of Minnesota charged respondent Donald Mark
Gray with two counts of second-degree criminal sexual conduct based on an alleged
incident of sexual abuse of his granddaughter that occurred in Edina. See Minn. Stat.
§ 609.343, subd. 1(a) (complainant under 13 and actor more than 36 months older), (g)
(significant relationship and complainant under 16) (2014). In February 2022, the state
amended the complaint to include two additional counts of second-degree criminal sexual
conduct—counts III and IV—based on an alleged incident that occurred in the United
Kingdom. See id.
The probable-cause section of the amended complaint contains the following
allegations. In April 2021, Gray reported to Hennepin County Child Protection that he had
sexually abused his granddaughter A.G. —once in 2015 on a family trip to the United
Kingdom and once 6 to 12 months later in Minnesota. Gray reported that, during the second
incident, which occurred while Gray was staying in A.G.’s family’s residence in Edina,
Gray touched A.G.’s chest, “skin to skin.” In addition, A.G. disclosed to her parents and
during a forensic interview that Gray touched her chest and her vagina, “skin to skin,”
during a family trip to the U.K. in 2015. A.G. did not describe an incident in Edina. O n
May 12, 2021, Gray admitted both incidents to a police investigator. He told the
investigator that the Edina incident occurred in fall 2015 while he was staying with his
family.
Gray moved to suppress his May 12 statements to the investigator, moved to dismiss
counts I and II for lack of probable cause, and moved to dismiss counts III and IV for lack
3
of jurisdiction. As relevant to this appeal, Gray argued that there was not probable cause
for counts I and II because “the State has failed to establish the corpus delicti of the offenses
by evidence independent of Mr. Gray’s confession,” which he argued was required by
Minnesota Statutes section 634.03 (2022).1
The district court granted Gray’s motion to dismiss counts I and II for lack of
probable cause. 2 The district court concluded that, under Minnesota Statutes section
634.03, a confession “must be supported by other facts sufficient on their own to meet the
probable cause standard.” The district court rejected the state’s argument that confessions
can corroborate one another and determined that the state did not establish probable cause
for counts I and II “[b]ecause the state failed to present evidence that could independently
corroborate the Defendant’s confession.”
The state appealed. Gray moved to dismiss the appeal, arguing that the order was
not appealable under Minnesota Rule of Criminal Procedure 28.04. See Minn. R. Crim.
P. 28.04, subd. 1(1) (providing that “a pretrial order cannot be appealed if the court
dismissed a complaint for lack of probable cause premised solely on a factual
determination”). In a special-term order, this court determined that the probable-cause
dismissal of counts I and II was based solely on a factual determination and thus was not
appealable under rule 28.04. We dismissed the state’s appeal related to counts I and II.

1 Because this statute has not been amended during these proceedings, we cite the most
recent version of the statute.

2 The district court also granted Gray’s motion to dismiss counts III and IV for lack of
jurisdiction and declined to address Gray’s motion to suppress as moot. The state dismissed
its appeal of the dismissal of counts III and IV and thus those counts are not at issue.
4
The state filed a petition for further review, which the supreme court granted. The
supreme court held that the order was appealable because the probable-cause dismissal was
based, in part, on the district court’s interpretation of Minnesota Statutes section 634.03,
which was a legal determination. State v. Gray, 987 N.W.2d 563 (Minn. 2023). The
supreme court reversed and remanded for this court to consider the merits of the state’s
appeal under State v. Dixon, 981 N.W.2d 387 (Minn. 2022).
DECISION
The state appeals the portion of the district court’s pretrial order dismissing counts
I and II for lack of probable cause. In a state pretrial appeal, the state “must show clearly
and unequivocally (1) that the district court’s ruling was erroneous and (2) that the ruling
will have a ‘critical impact’ on the State’s ability to prosecute the case.” State v. Serbus,
957 N.W.2d 84, 87 (Minn. 2021). The state has established critical impact here because
the counts were dismissed. See id. Thus, the only issue is whether the district court erred
by ruling that the complaint lacked probable cause.
“When a district court dismisses a criminal complaint for lack of probable cause
based on a legal determination, [appellate courts] review that decision de novo.” Dixon,
981 N.W.2d at 392. If “the defendant does not produce witnesses subject to cross-
examination or offer any evidence directed at the credibility of the facts appearing in the
record,” the district court “should deny a motion to dismiss the charge for lack of probable
cause if it is ‘satisfied that the facts appearing in the record, including reliable hearsay,
would preclude the granting of a motion for a [judgment] of acquittal if proved at trial.’”
Id. at 392-93 (alteration in original) (quoting State v. Florence, 239 N.W.2d 892, 903
5
(Minn. 1976)). The district court properly denies a motion to acquit if “the state’s evidence,
when viewed in the light most favorable to the state, [is] sufficient to sustain a conviction.”
State v. Slaughter, 691 N.W.2d 70, 75 (Minn. 2005).
The state argues that Gray’s confessions are sufficient for probable cause under
State v. Dixon, 981 N.W.2d 387 (Minn. 2022), and that the district court erred by requiring
the state to provide other evidence under Minnesota Statutes section 634.03 to establish
probable cause. In Dixon, the supreme court considered whether Minnesota Statutes section
634.03 applies to a probable-cause determination. 981 N.W.2d at 393-94. That statute
provides that “[a] confession of the defendant shall not be sufficient to warrant conviction
without evidence that the offense charged has been committed.” Minn. Stat. § 634.03. But,
“under Minnesota law, ‘a finding of probable cause could be based on testimony which
would not support a conviction.’” Id. at 393 (quoting Florence, 239 N.W.2d at 897). Thus,
the Dixon court held that “a finding of probable cause can be based on an uncorroborated
confession of a defendant, which would be insufficient to sustain a conviction at trial
without evidence independent of the confession that reasonabl y tends to prove that the
specific crime charged in the complaint actually occurred.” Id. at 394.
As an initial matter, we address Gray’s contention that the state forfeited its Dixon
argument. Gray asserts that the state failed to argue “that an uncorroborated confession,
alone, was sufficient to support probable cause” and therefore cannot rely on Dixon now.
Generally, “[a] party may not ‘obtain review by raising the same general issue litigated
below but under a different theory.’” State v. McMurray, 860 N.W.2d 686, 689 n.2 (Minn.
2015 (quoting Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988)). Gray is correct that the
6
state did not argue that section 634.03 does not apply at the probable-cause stage or that a
single uncorroborated confession is sufficient for probable cause. But we are not convinced
that forfeiture applies. The state argued in district court that the confessions identified in
the amended complaint—Gray’s report to child protection and his May 12 statements to
the investigator— establish probable cause, regardless of its other evidence. Dixon was
decided after the supreme court heard oral argument in this case, and thus neither the parties
nor the district court had the benefit of that case during the district court proceedings.
Moreover, the supreme court explicitly directed this court to consider the merits of the
state’s appeal in light of Dixon. We therefore do not consider the state’s Dixon argument
barred.
We turn to whether the district court erred by dismissing counts I and II for lack of
probable cause. Specifically, we consider whether there is sufficient evidence that Gray
had “sexual contact” with A.G. and that the sexual contact occurred in Hennepin County.
3
“Sexual contact” includes “intentional touching” of the complainant’s “primary genital
area, groin, inner thigh, buttocks, or breast.” Minn. Stat. § 609.341, subds. 5, 11 (2014).
The amended complaint alleges that (1) in his report to child protection, Gray stated
that he touched A.G.’s chest, “skin to skin”, while at A.G.’s home in Edina and (2) in his
statement to the investigator, Gray “admitted to both instances of sexual abuse” and said
the “offense in Edina occurred in the ‘fall of 2015’ while he was staying with his family.”

3 It is undisputed that other elements of counts I and II—that A.G. was younger than 13
and Gray was more than 36 months older and that Gray, as A.G.’s grandfather, had a
significant relationship with her—were satisfied. See Minn. Stat. § 609.343, subd. 1(a), (g).
7
Both Gray’s report to child protection and his statements to the investigator are direct
evidence of guilt, see Dixon, 981 N.W.2d at 394, establishing that he engaged in “sexual
contact” with A.G. in Hennepin County. Under Dixon, the state was not required to provide
additional evidence to survive Gray’s motion to dismiss, even if Gray’s confessions could
not sustain a conviction under section 634.03. As a result, the amended complaint
establishes probable cause, 4 and the district court erred when it granted Gray’s motion to
dismiss counts I and II.5
Reversed and remanded.

4 The parties dispute the scope of the record on appeal. Because the amended complaint is
part of the record, and we conclude that the amended complaint alone establishes probable
cause, we do not address those arguments.

5 Because we conclude that the district court erred by dismissing counts I and II under
Dixon, we do not reach the state’s alternative argument that one confession can be evidence
independent of another confession to sustain a conviction under Minnesota Statutes section
634.03.