Case law has created an exception, however, when a probable cause dismissal is based on a legal determination. This exception applies here. The trial court's denial of the state's motion to amend is primarily an interpretation of the relationship of the kidnapping and false imprisonment statutes. Dismissal based on interpretation of a statute is a question of law subject to de novo review. The supreme court has made it clear that a defendant may be convicted of kidnapping for even the slightest confinement or removal committed in the course of a sexual assault.
False imprisonment is a lesser included offense of the crime of kidnapping.
The trial court found probable cause for the false imprisonment charge. The state dismissed that charge when it sought to amend the complaint with a kidnapping charge. In denying the state's motion to amend, the trial court expressed its willingness to reinstate the false imprisonment charge. The trial court also had found probable cause to believe White committed the felony crime of criminal sexual conduct in the first and second degrees. The court determined that the kidnapping charge could not stand because J.W. voluntarily accompanied White and the Wards to the apartment where the sexual assault later occurred.