State of Minnesota, Respondent,

STATE OF MINNESOTA
IN COURT OF APPEALS
A23-1657

State of Minnesota,
Respondent,

vs.

Alan James Bear,
Appellant.

Filed July 1, 2024
Affirmed
Reyes, Judge

Polk County District Court
File No. 60-CR-22-20

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

Greg Widseth, Polk County Attorney, Tanner Hermanson, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Alexander F. Reichert, Reichert Law Office, Grand Forks, North Dakota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Reyes ,
Judge.
SYLLABUS
Minnesota Statutes section 609.045 (2020) does not bar the state from prosecuting
the offense of fleeing a peac e officer committed while in Minnesota when the defendant
has been convicted of a similar offense committed while in North Dakota arising from the
same course of conduct because the elements of both law and fact between the two offenses
are not identical.

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OPINION
REYES, Judge
In this direct appeal from his conviction of fleeing a peace officer in a motor vehicle
in Minnesota, appellant argues that Minn. Stat. § 609.045 precluded the State of Minnesota
from prosecuting the offense because he had been convicted of the same offense in North
Dakota arising from the same course of conduct. We affirm.
FACTS
The parties do not dispute the facts. On September 11, 2020, the Grand Forks Police
Department (GFPD) received a report of a hit-and-run crash in Grand Forks, North Dakota.
The vehicle involved in the crash left the scene, and a Grand Forks County Sheriff’s deputy
who had witnessed the crash followed it. The deputy observed the driver of the vehicle
commit numerous traffic violations and attempted to conduct a traffic stop, but the vehicle
fled. The deputy pursued the vehicle, and GFPD officers joined in. During the chase, the
driver of the vehicle drove into East Grand Forks, Minnesota. East Grand Forks Police
Department (EGFPD) officers joined the pursuit, observed the driver of the vehicle commit
multiple traffic violations, and became the lead pursuers. The vehicle later crossed back
into Grand Forks and GFPD officers resumed leading the pursuit. GFPD officers
eventually stopped the vehicle and identified the driver as appellant Alan James Bear.
A few days later, the State of North Dakota charged appellant with several offenses,
including fleeing a peace officer in violation of N.D. Cent. Code §§ 39-10-71(1)(a) (2019),
39-10-71(2) (2019), and 12.1-32-01(5) (2019). A North Dakota district court convicted

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appellant of that charge, among others, and sentenced him to 360 days at a correctional
center.
In January 2022, respondent State of Minnesota charged appellant with fleeing a
peace officer in a motor vehicle under Minn. Stat. § 609.487, subd. 3 (2020). Appellant
filed a motion to dismiss, arguing that Minn. Stat. § 609.045 barred his prosecution in
Minnesota following his conviction in North Dakota based on the same incident. The
district court denied appellant’s motion.
Appellant waived his right to a jury trial, and the case proceeded to a bench trial on
stipulated evidence under Minn. R. Crim. P. 26.01, subd. 4, to preserve the dispositive
pretrial ruling. The district court found appellant guilty, stayed imposition of sentence, and
placed him on supervised probation for three years.
This appeal follows.
ISSUE
Does Minn. Stat. § 609.045 bar the state’s prosecution of appellant for fleeing a
peace officer in a motor vehicle while in Minnesota because he was previously convicted
of a similar offense committed while in North Dakota based upon a continuing pursuit by
police in both jurisdictions?
ANALYSIS
Appellant argues that the district court erred by determining that Minn. Stat.
§ 609.045 did not bar his prosecution in Minnesota because it relied on venue as the only
differentiating element, which he argues nullif ies the statute’s effectiveness. We are not
persuaded.

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The scope of this appeal is governed by Minn. R. Crim. P. 26.01, subd. 4, “which
allows the preservation and appeal of a district court’s pretrial ruling.” State v. Galvan-
Contreras, 980 N.W.2d 578, 586 (Minn. 2022). “Appellate review [of appeals made under
subdivision 4 of rule 26.01] is limited to consideration of the dispositive pretrial ruling.”
Id.
Here, the district court based its pretrial ruling upon its interpretation of Minn. Stat.
§ 609.045 as applied to the facts of the case. Appellate courts review legal issues, including
statutory interpretation, de novo, State v. Anderson, 941 N.W.2d 724, 727 (Minn. 2020),
and a district court’s factual findings for clear error, State v. Garcia, 927 N.W.2d 338, 342
(Minn. App. 2019). The first step in interpreting a statute is to determine whether it is
ambiguous. Galvan-Contreras, 980 N.W.2d at 583. If a statute is not ambiguous, appellate
courts interpret the statute according to its plain meaning. Id.
Minnesota statutes section 609.045 provides:
If an act or omission in this state constitutes a crime under both
the laws of this state and the laws of another jurisdiction, a
conviction or acquittal of the crime in the other jurisdiction
shall not bar prosecution for the crime in this state unless the
elements of both law and fact are identical.

(Emphasis added.)
The district court determined that, while the facts underlying the Minnesota charge
and appellant’s North Dakota conviction overlapped and stemmed from the same pursuit,
they were not identical. The district court reasoned that appellant’s conduct in each state
was “separate and distinct.” We agree with the district court.

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A defendant bears the burden of establishing a double-jeopardy claim under Minn.
Stat. § 609.045. See State v. Alvarez, 820 N.W.2d 601, 612 (Minn. App. 2012) (classifying
Minn. Stat. § 609.045 as “Minnesota’s double-jeopardy statute”), aff’d sub nom. State v.
Castillo-Alvarez, 836 N.W.2d 527 (Minn. 2013); State v. Jeffries, 806 N.W.2d 56, 64
(Minn. 2011) (acknowledging that double jeopardy is affirmative defense and considering
whether appellant waived double-jeopardy claim by entering second guilty plea); State v.
Fredlund, 273 N.W. 353, 355 (Minn. 1937) (“Before [a] defendant may avail [themself] of
the plea of former jeopardy it is of course necessary that [they] show that the present
prosecution is for the identical act and that the crime both in law and fact were settled by
the first prosecution.”).
Here, appellant has failed to satisfy his burden of demonstrating that the elements
of both law and fact are identical between the two offenses. Although existing precedential
caselaw interpreting and applying Minn. Stat. § 609.045 does not address facts comparable
to this case,1 our application of the plain language of the statute is dispositive. First, North
Dakota’s statute does not criminalize fleeing a peace officer within the state of Minnesota,
nor does Minnesota’s statute criminalize fleeing a pea ce officer within the state of North
Dakota. See N.D. Cent. Code §§ 29-03 (2019), 39-10-71 (2019); Minn. Stat. §§ 609.025(1)
(2020), .487, subd. 3. The criminal conduct must occur within each state to be prosecuted

1 See State v. Aune, 363 N.W.2d 741, 746 (Minn. 1985) (interpreting Minn. Stat. § 609.045
as applied to federal and state charges to conclude that prior federal prosecution bars
prosecution in Minnesota only if state prosecution is for same act and if state crime and
federal crime are same both in law and in fact); Castillo-Alvarez, 836 N.W.2d at 533-34
(applying Minn. Stat. § 609.045 to conclude that appellant’s reversed convictions in Iowa
did not qualify as “convictions” to preclude subsequent prosecution in Minnesota).

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under each state’s laws. In addition, Minnesota’s fleeing statute explicitly requires the
state to prove that a defendant knew or reasonably should have known that they were
fleeing from a peace officer, an element which is not enumerated in North Dakota’s statute.
Compare N.D. Cent. Code § 39-10-71, with Minn. Stat. § 609.487, subd. 3. The elements
of law are therefore not identical. Consequently, appellant cannot satisfy the condition in
Minn. Stat. § 609.045 that “the elements of both law and fact [be] identical.”
Further, we are not persuaded by appellant’s argument that, because the district
court’s order “relied heavily on the venue aspect of the criminal complaint” and “did not
make any other differentiations in its order[,] [i]t stands to reason [that] the [district court]
determined the [Minnesota and North Dakota] laws to be identical and based its decision
on this factual determination.” The district court did not discuss, analyze, or make any
other determination of whether the laws are identical, and that determination is not implicit.
Moreover, based on our de novo review, we have concluded that the elements of law
between the states’ fleeing statutes are not identical. We also note that, because Minn. Stat.
§ 609.045 uses the conjunctive term “and” when referring to proving that the elements of
both law and of fact must be identical, the district court did not need to analyze whether
the elements of law were identical after it had determined that the elements of fact were
not identical.
Second, although appellant argues that the elements of fact underlying his
Minnesota and North Dakota convictions are identical, the record does not support this
assertion.

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The supreme court has concluded that Minn. Stat. § 609.045 contemplates a
Blockburger test. Aune, 363 N.W.2d at 745-46 (citing Blockburger v. United States, 284
U.S. 299 (1932)). Blockburger provides that “to determine whether there are two offenses
or only one, [the test to be applied] is whether each [offense] requires proof of a fact which
the other does not.”2 284 U.S. at 304. “Evidentiary duplications or differences which do
not relate to the essential facts are of no significance.” Thompson, 62 N.W.2d at 517.
Although the Minnesota complaint’s statement of probable cause included a
description of facts spanning appellant’s conduct in both states, the charge itself related
only to appellant’s conduct while in Minnesota.
[O]n or about September 11, 2020, in Polk County, Minnesota,
[appellant] fled or attempted to flee [an EGFPD officer] by
means of a motor vehicle while [the officer] was acting in the
lawful discharge of an official duty and when he kn ew or
reasonably should have known that [the officer] was a peace
officer.

(Emphasis added.) The record does not include a copy of the North Dakota complaint.
The only evidence in the record regarding the North Dakota complaint is found in the

2 To determine whether two offenses are identical, courts consider if (1) “the evidentiary
facts essential to establish the requisite elements of the offense charged in the second
[prosecution] would have been admissible under the first [prosecution] to establish the
elements of the offense charged therein and, [i]f proved, would necessarily have resulted
in a conviction under the first [prosecution],” or (2) “the offense charged in the second
[prosecution], with respect to all its essential elements, was included in the greater offense
charged in the first [prosecution] and there was a conviction upon such greater offense, or
if under the first [prosecution] for the greater offense, there might have been a valid
conviction of the second or lessor offense.” State v. Thompson, 62 N.W.2d 512, 517 (Minn.
1954). This test is consistent with the language of Minn. Stat. § 609.045.

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state’s brief in opposition to appellant’s motion to dismiss, which provides that the North
Dakota charging language stated:
...to-wit: That [appellant] was a driver of a motor vehicle and
willfully failed or refused to bring the vehicle to a stop, or
otherwise fled or attempted to elude, in any manner, a pursuing
police vehicle or peace officer, when given a visual or audible
signal to bring the vehicle to a stop. This taking place in Grand
Forks County, North Dakota.

(Emphasis added.) This reference indicates that appellant’s North Dakota convictions were
based only on his conduct in North Dakota, not in Minnesota. The facts of appellant’s
conduct in Minnesota were therefore not essential to prove his guilt in North Dakota, and
neither were the facts of his conduct in North Dakota essential to prove his guilt in
Minnesota. Thompson, 62 N.W.2d at 517. Instead, appellant’s conduct in each state
supports independent criminal charges in those states. As a result, the district court’s
determination that the elements of fact are not identical is not clearly erroneous.
Because t he elements of both law and fact underlying the two charges are not
identical, Minn. Stat. § 609.045 therefore does not bar the state from prosecuting appellant
in Minnesota following his North Dakota conviction.
DECISION
Minnesota statutes section 609.045 does not bar the state from prosecuting the
offense of fleeing a peace officer while in Minnesota when the defendant has been
convicted of a similar offense committed while in North Dakota arising from the same

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course of conduct when the elements of both law and fact between the two offenses are not
identical.
Affirmed.