State v. Fry
| Decision Date | 30 September 2019 |
| Docket Number | A18-1837 |
| Parties | State of Minnesota, Respondent, v. Eric Lee Fry, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).
Affirmed in part, reversed in part, and remanded
*
Koochiching County District Court
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Jeffrey Naglosky, Koochiching County Attorney, International Falls, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Jesson, Presiding Judge; Bjorkman, Judge; and Klaphake, Judge.
UNPUBLISHED OPINION
Appellant Eric Lee Fry challenges his convictions for criminal vehicular operation (CVO) and fourth-degree driving while impaired (DWI), arguing that the district court erred by denying his motion for a directed verdict, abused its discretion by amending the criminal complaint at trial to charge a different CVO offense, and erred by entering convictions on both offenses, and that his trial counsel was ineffective by conceding his guilt during closing argument. We affirm the district court's denial of the motion for a directed verdict and amendment of the complaint; reverse the DWI conviction and remand for correction of the warrant of commitment, and decline to address the ineffective-assistance-of-counsel claim.
Following an erratic driving incident in which Fry drove a group of teenagers around in his pickup truck and eventually crashed into a gravel pile, injuring two teenagers, Fry proceeded to trial on two counts of CVO and one count of fourth-degree DWI.1 The CVO offenses are for violations of Minn. Stat. § 609.2113, subd. 3(2)(iii) (2016), which is premised on bodily harm caused by a person negligently operating a motor vehicle while under the influence of "any combination" of alcohol and a controlled substance. The same conduct also constitutes CVO if the person is under the influence of only alcohol or only acontrolled substance at the time of the offense. Minn. Stat. § 609.2113, subd. 3(2)(i), (ii) (2016).
At the close of the state's case, Fry moved for a directed verdict because the state had not offered evidence that Fry was under the influence of a controlled substance. A district court must acquit a defendant of a charged offense at the close of the state's case-in-chief "if the evidence is insufficient to sustain a conviction of such offense." State v. Slaughter, 691 N.W.2d 70, 74 (Minn. 2005) (quoting Minn. R. Crim. P. 26.03, subd. 17(1)). Whether a defendant should be granted a directed verdict is a question of law subject to de novo review. State v. McCormick, 835 N.W.2d 498, 506 (Minn. App. 2013), review denied (Minn. Oct. 15, 2013).
To convict, the state must prove each element of a charged crime beyond a reasonable doubt. Id. But a complaint may be amended at any time during trial, and the district court did so here by instructing the jury that it could find Fry guilty if he was under the influence of alcohol at the time of the CVO offenses. See State v. Mickelson, 378 N.W.2d 17, 20 (Minn. App. 1985), review denied (Minn. Jan. 23, 1986). The criminal rules permit amendment of a complaint "at any time before verdict . . . if no additional or different offense is charged and if the defendant's substantial rights are not prejudiced." Minn. R. Crim. P. 17.05. The district court has the discretionary authority to amend a complaint. State v. Ostrem, 535 N.W.2d 916, 922-23 (Minn. 1995).
The amended complaint did not charge Fry with a new or different offense. The original CVO charge under Minn. Stat. § 609.2113, subd. 3(2)(iii), is accomplished if the offender drives while under the influence of both alcohol and a controlled substance. Theamended CVO charge under Minn. Stat. § 609.2113, subd. 3(2)(i), is identical to a subdivision 3(2)(iii) charge, except that it eliminates the requirement that the offender be under the influence of a controlled substance. The amended complaint does not charge an "additional or different offense."
As to the prejudice prong of rule 17.05, Fry also cannot demonstrate that he was deprived of the opportunity to raise a defense or that his substantial rights were otherwise affected by amendment of the complaint. He was required to defend against the same allegation for the alcohol-based charge as the combination-of-substances-based charge that he inflicted bodily harm while driving negligently under the influence of alcohol. Fry's substantial rights were not prejudiced by amendment of the complaint, and the district court did not abuse its discretion by amending the CVO charge to conform to the evidence presented at trial. See Ostrem, 535 N.W.2d at 922-23 (); State v. Miller, 352 N.W.2d 524, 525-26 (Minn. App. 1984) (). For this reason, as well, the district court did not err by denying Fry's motion for a judgment of acquittal.2
Fry next argues that the district court erred by convicting him of the CVO offenses as well as the fourth-degree DWI offense, because DWI is a lesser included offense of CVO. This is a question of law subject to de novo review. State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).
Minn. Stat. § 609.04, subd. 1 (2016), states that an offender may not be convicted of both a charged crime and an "included offense." An "included offense" is defined as:
Minn. Stat. § 609.04, subd. 1, see, e.g., Spann v. State, 740 N.W.2d 570, 573-74 (Minn. 2007) (). "An offense is 'necessarily included' in a greater offense if it is impossible to commit the greater offense without committing the lesser offense." State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006). Fourth-degree DWI under Minn. Stat. § 169A.20, subd. 1(1) (2016), is necessarily proved if CVO is proved under Minn. Stat. § 609.2113, subd. 3(2)(i). The CVO offense requires negligent operation of a vehicle while under the influence of alcohol, and the DWI offense requires driving, operating, or being in physical control of a vehicle while under the influence of alcohol. Neither statute defines "under the influence of alcohol," but the definitional provisions of the CVO statute reference the DWI statute. See Minn. Stat. § 609.2111(e) (2016) (). The offense of fourth-degree DWI is a lesser offense of the CVO offense in this case. See State v. Chaklos, 522 N.W.2d 361, 364 (Minn. App. 1994) (), rev'd in part on other grounds, 528 N.W.2d 225 (Minn. 1995).
"[W]hen the defendant is convicted on more than one charge for the same act the court [is] to adjudicate formally and impose sentence on one count only." Spann, 740 N.W.2d at 573 (alterations in original) (quotation omitted). We therefore reverse the entry of conviction on the DWI offense and remand to the district court to amend the warrant of commitment. See State v. Pflepsen, 590 N.W.2d 759, 767 (Minn. 1999) (...
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