Blue Earth County Court File No. 07-CR-15-2484

1. STATE OF MINNESOTA IN DISTRICT COURT
COUNTY OF BLUE EARTH FIFTH JUDICIAL DISTRICT
________________________________________________________________________
State of Minnesota, File No: 07-CR-15-2484
Plaintiff,
vs. ORDER
James Thomas Adams,
Defendant.
________________________________________________________________________
This matter came before the Honorable Krista J. Jass of the above-named Court on
December 22, 2015, for a contested omnibus hearing. Plaintiff State of Minnesota was
represented by Christopher D. Cain, Assistant City Attorney, Mankato, Minnesota.
Defendant James Thomas Adams personally appeared and was represented by Valerie
Sims, Heley, Duncan, & Melander PLLP, Minneapolis, Minnesota. The Court received
final submissions on January 12, 2016 and took the matter under advisement at that time.
Upon the files, pleadings, and record herein, together with the arguments of counsel,
and the Court being otherwise advised:
IT IS HEREBY ORDERED that Defendant’s motion to dismiss the complaint for lack of
probable cause be, and the same is, GRANTED.
IT IS SO ORDERED.
The attached MEMORANDUM is made a part hereof.
BY THE COURT:
_______________________
Krista J. Jass
Judge of District Court
cc: Mr. Cain
Ms. Sims
07-CR-15-2484
Filed in Fifth Judicial District Court
2/26/2016 3:07:09 PM
Blue Earth County, MN

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MEMORANDUM
State of Minnesota vs. James Thomas Adams
Court File No.: 07-CR-15-2484
FACTS
On May 5, 2015, at approximately 11:50 a.m., Mankato Police Department Officer
Katelyn Pierson responded to a report of theft of services at a mobile home community in
Blue Earth County, Minnesota. The complainant, the community’s property manager,
stated that Defendant had instructed his son to deposit garbage from his mobile home into
a nearby dumpster that was being used for refuse relating to the tear-down of a mobile
home. Another property manager took photographs of Defendant’s personal garbage in the
dumpster and talked to several residents about Defendant’s unauthorized use of the
dumpster.
On November 13, 2015, Mankato Police Department Officer Sam McGinnis
interviewed two new witnesses at the mobile home park regarding two different statements
Defendant made to a witness and Defendant’s son, though it is unclear when Defendant
made these alleged statements.
Defendant was charged with theft of services in violation of Minn. Stat. § 609.52
subd. 2(a)(3)(ii)1
, and disorderly conduct in violation of Minn. Stat. § 609.72 subd. 1(3).
Neither party disputes that Defendant used the dumpster. Indeed, the State called three
1
The State has charged Defendant with violating Minn. Stat. § 609.52 subd. 2(a)(3)(ii), which relates to theft by
false representation by a promise made with intent not to perform. However, the State references and defines Minn.
Stat. § 609.52 subd. 2(a)(13), theft of services, in its brief. This Court must assume the State incorrectly charged
Defendant with violating Minn. Stat. § 609.52 subd. 2(a)(3)(ii) instead of Minn. Stat. § 609.52 subd. 2(a)(13) and
will analyze the correct theft of services statute because the outcome would be the same.
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witnesses to testify to that fact. However, Defendant now moves to dismiss both charges
based on lack of probable cause.
LAW / ANALYSIS
The purpose of a probable cause hearing is to “protect a defendant unjustly or
improperly charged from being compelled to stand trial.” State v. Florence, 239 N.W.2d
892, 900 (Minn. 1976); see Minn. R. Crim. P. 11.04, subd. 1 (2010). “[T]he test of probable
cause is whether the evidence worthy of consideration, in any aspect for the judicial mind
to act upon, brings the charge against the [defendant] within reasonable probability.”
Florence, 239 N.W.2d at 896. “A motion to dismiss for lack of probable should be denied
where ‘the facts appearing in the record, including reliable hearsay, would preclude the
granting of a motion for a directed verdict of acquittal if proved at trial.’” State v. Lopez,
778 N.W.2d 700, 703-04 (Minn. 2010) (citation omitted). “A motion for judgment of
acquittal is properly denied where the evidence, viewed in the light most favorable to the
State, is sufficient to sustain a conviction.” State v. Simion, 745 N.W.2d 830, 841 (Minn.
2008). However, where the State fails to establish probable cause for each element of the
charged offense, the charge must be dismissed. See State v. Costello, 646 N.W.2d 204,
211 (Minn. 2002) (“Due process requires that the state prove beyond a reasonable doubt
the existence of every element of the crime charged”).
I.
Defendant is charged under Minn. Stat. §609.52 subd. 2(a)(3)(2)(ii), which makes
it a crime to obtain performance of services by a third person by intentionally deceiving
the third person with a false representation which is known to be false, made with intent to
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defraud, and which does defraud the person to whom it is made due to a promise made
with intent not to perform. Minn. Stat. §609.52 subd. 2(a)(3)(ii). But, the State submitted
that Defendant should have been charged with Minn. Stat. §609.52 subd. 2(a)(13), which
criminalizes obtaining the services of another with the intention of receiving those services
without making the agreed or reasonably expected payment of money or other
consideration.
Here, Defendant disposed of his garbage into a dumpster that was being used for the
debris connected with tearing down a mobile home. Defendant contends that his written
lease agreement (Exhibit 1) and the trailer park Rule and Regulations (Exhibit 2) are proof
that Defendant’s actions were not unlawful and that he was entitled to dispose of his
garbage in the dumpster utilized, at no extra charge. Additionally, Defendant argues that
the evidence does not establish a “theft” of any value, nor does it support any intent to steal
services. The State counters that Defendant was provided with a separate trash receptacle
for his use at no charge, but his use of the dumpster designated for the “tear down” of a
mobile home was not allowed under the lease, and he did not make payment for the use,
thereby constituting theft of services. The Court concludes that Defendant’s conduct does
not amount to the criminal charge of theft.
There is no evidence in the record that Defendant made any promise or false
representation in connection with his use of the dumpster. As a result, Minn. Stat. § 609.52
subd. 2(a)(3)(ii) does not apply to this case. Regarding Minn. Stat. §609.52 subd. 2(a)(13),
Defendant did obtain services, that is, the use of the dumpster, but did not do so without
making the agreed or reasonably expected payment of money. According to the lease
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agreement, Defendant had a legal right to use a dumpster. His payment of monthly rent
included trash service and the State’s witness, the property manager, testified that a
dumpster is an appropriate receptacle for garbage. Simply because Defendant used the
incorrect dumpster for his garbage may imply that he broke a rule within the residential
community, but it does not follow that using the wrong dumpster within the community
constitutes the crime of theft of services. Further, the State failed to establish any value
could be attributed to Defendant’s use of the dumpster. It is not alleged that Defendant
disposed of a large amount of garbage, such that an additional dumpster was needed for
the tear down; nor was it alleged the mobile home park needed to pay anything additional
for the dumpster due to Defendant’s use. Therefore, Count I must be dismissed for lack of
probable cause.
II.
Defendant was also charged the day prior to the contested pre-trial, pursuant to an
amended complaint, with disorderly conduct in violation of Minn. Stat. §609.72 subd. 1(3),
which makes it a crime to knowingly, or having reasonable grounds to know that it will, or
will tend to, alarm, anger, or disturb others, or provoke an assault or breach of the peace,
engage in offensive, obscene, abusive, boisterous, or noisy conduct, or in offensive,
obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in
others. Minn. Stat. §609.72 subd. 1(3). It is alleged Defendant made threatening statements
to a witness, such as “I’m going to get you” and called her “trailer trash.” The State’s
statement of probable cause does not contain any specific date relating to the amended
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charge except the interview date, which is listed as November 13, 2015, over six months
after the alleged offense date for the theft.
“[T]hreats punishable consistently with the First Amendment [are] only those
which according to their language and context convey[] a gravity of purpose and likelihood
of execution so as to constitute speech beyond the pale of protected ‘vehement, caustic . .
. [or] unpleasantly sharp’ [speech]”. United States v. Kelner, 534 F.2d 1020, 1026 (2nd
Cir.
1976) cert. denied 429 U.S. 1022 (1976). It is only when the person communicates a
present intent to act on his iniquitous thoughts, immediately or at some point in the future,
that the law intervenes. In determining whether any given statement constitutes a threat,
context is paramount. This is because words may be objectively threatening, but their
context may supply a harmless denotation. Likewise, an intimidating context may confer
threatening meaning to otherwise innocent words. Unfortunately, the record contains little
evidence of context and no evidence to support what the date of offense was. Whether the
alleged statements occurred on the same date as the alleged theft of services charge or six
months after the charged offense date when law enforcement interviewed the witnesses, or
sometime in between is unknown. Without more evidence supporting a specific occurrence
of disorderly conduct, instead of general statements made by Defendant without a date or
time associated with them, a charge of disorderly conduct must be dismissed for lack of
probable cause.
07-CR-15-2484
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CONCLUSION
For all of these reasons, Defendant’s motion to dismiss is GRANTED and the
complaint is DISMISSED. This MEMORANDUM is made a part of the hereto attached
ORDER.
***
K.J.J.
07-CR-15-2484
Filed in Fifth Judicial District Court
2/26/2016 3:07:09 PM
Blue Earth County, MN