holding that the district court erred by determining that probable cause was lacking based on its application of criminal statutes to the undisputed facts of the case
How later courts described this case
- holding that the district court erred by determining that probable cause was lacking based on its application of criminal statutes to the undisputed facts of the case
- concluding that “[d]ismissal of a complaint satisfies the critical impact requirement” in a case where only one count of a multi-count complaint was dismissed
- granting the state’s request for a pretrial appeal of an order dismissing a criminal charge for lack of probable cause
Written by the judges who cited it.
The opinion
KALITOWSKI, Judge
(dissenting)
I respectfully dissent. The issue here is whether a jury could find that Trei assaulted McKinney by using or attempting to use deadly force. In determining whether an act constitutes “deadly force,” the Minnesota Supreme Court in Johnson v. Morris, 453 N.W.2d 31, 38 (Minn.1990), cited with approval section 3.11 of the Model Penal Code, which states:
A threat to cause death or serious bodily harm, by the production of a weapon or otherwise, so long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute deadly force.
Model Penal Code § 3.11(2) (Proposed Official Draft 1962).
It is undisputed that at no time was Trei closer than eight feet from McKinney and that at all times the blades of'the knives in Trei’s hands were pointed downward. On these facts the district court properly concluded that while Trei threatened to assault McKinney, as a matter of law a jury could not find that Trei assaulted McKinney by using or attempting to use deadly force. I would affirm the district court.