State of Minnesota, Respondent, vs. JC NMN Poole, Jr., Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-822

 

State of Minnesota,

Respondent,

 

vs.

 

JC NMN Poole, Jr.,

Appellant.

 

Filed June 29, 2004

Affirmed Willis, Judge

 

Hennepin County District Court

File No. 02073325

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges his conviction of aiding and abetting the sale of a controlled substance, arguing that his constitutional right to due process of law was violated when he did not receive notice that the complaint had been amended to include an aiding-and-abetting charge until after he had rested his case.  Because the court did not abuse its discretion in allowing the complaint to be amended, we affirm. 

FACTS

On September 10, 2002, Officers Johnson, Casey, and Monjeau of the Minneapolis Police Department were on bicycle patrol in downtown Minneapolis.  At roll call that morning they had been told that a tan or brown Caprice Classic automobile had recently been involved in suspected illegal drug sales in the vicinity of Currie Avenue.  At approximately noon, the officers observed an automobile matching that description pull over to the curb in front of 1010 Currie.  Appellant JC Poole Jr. was in the front passenger's seat, and the car was driven by Jamarr Viverette.  Two men, Elmer Lemons and "Hines," approached the passenger-side window and began talking with Poole and Viverette.  Officer Johnson observed someone extend his arm out of the passenger-side window, and it appeared that the person placed a small object in Lemons's hand.  The officers intervened and seized the four men.  The officers found a bag with several rocks of crack cocaine on the driver's seat of the car and a single rock of crack cocaine on the ground outside the passenger-side door. 

            On September 12, Poole was charged by complaint with one count of third-degree controlled substance crime (sale), in violation of Minn. Stat. § 152.023, subds. 1(1), 3(a), and Minn. Stat. § 609.101, subd. 3 (2002).  On October 10, the state filed an amended complaint that added a charge of aiding and abetting the sale in violation of Minn. Stat. § 609.05 (2002).  The state asserts that it sent a copy of the amended complaint to the public defender representing Poole by interoffice mail on October 9, but Poole claims that the public defender did not receive it. 

            Poole and Viverette were tried together in a bench trial on March 5 and 6, 2003.  After the state rested, Poole moved for judgment of acquittal.  The district court, in denying the motion, stated that the evidence presented thus far "would provide a basis for third-degree sale and for aiding and abetting a third-degree sale."  Poole did not object to the court's inclusion of aiding and abetting the sale as a crime that the evidence would support.

In its closing argument, the state described the charge against Poole as "aiding and abetting a third-degree sale of a controlled substance" and referred the court to CRIMJIG 4.01 ("Liability for the Crimes of Another") for the elements of the crime.  Poole did not immediately object to this characterization of the crime, but in closing argument, his counsel stated, "I'm going to address my closing argument to the charge that was submitted on the complaint dated September 12, 2002… There's no aiding and abetting language." 

An on-the-record discussion concerning whether Poole had received notice of the amended complaint before trial ensued.  Poole claimed that he had not known that the complaint had been amended until the state made its closing argument.  The prosecutor claimed that Poole had notice that the complaint had been amended because she had announced that the state would be adding the aiding-and-abetting language to the charge at the pre-trial conference on October 2, and she had sent a copy of the amended complaint to Poole by interoffice mail a week later.  During the course of the discussion, the prosecutor told the court that, under Minn. R. Crim. P. 17.05, a court may permit a complaint to be amended at any time before the verdict if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.  The court treated the dispute as a motion on behalf of the state to amend the complaint and ruled that it was "going to allow the amendment because I think it's been referred that way all the way through trial and we are not through final argument."  The court found Poole guilty of aiding and abetting a third-degree sale of a controlled substance.  This appeal follows. 

D E C I S I O N

Poole argues that he was denied his constitutional right to due process of law because he was not given notice that the complaint had been amended until after he had rested his case.  He claims that, because his right to due process is in question, this case is properly reviewed de novo.  But the district court granted a motion to amend the complaint under Minn. R. Crim. P. 17.05, and a district court's decision to allow amendments to complaints under this rule is reviewed under an abuse-of-discretion standard.  State v. Ostrem, 535 N.W.2d 916, 922 (Minn. 1995); Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982).

            Under rule 17.05, "[t]he court may permit an indictment or complaint to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."  Minn. R. Crim.    P. 17.05.  Therefore, this court must conduct a two-step analysis: we must first decide whether the amendment constituted charging Poole with an additional or different offense, and we must then determine whether Poole's substantial rights were prejudiced.  See Ostrem, 535 N.W.2d at 922.       

1.         Additional or Different Offense

            Under Minnesota law, "[a] person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime."  Minn. Stat. § 609.05, subd. 1 (2002).  The supreme court has held that aiding and abetting a crime is not a substantive offense separate from the crime and that an aiding-and-abetting charge can be added to a complaint any time before a verdict is reached.  Ostrem, 535 N.W.2d at 922; State v. DeVerney, 592 N.W.2d 837, 846 (Minn. 1999).  Additionally, the supreme court has held that a jury can convict a defendant of aiding and abetting a substantive crime even in the absence of any aiding-and-abetting language in the complaint.  See State v. Lucas, 372 N.W.2d 731, 740 (Minn. 1985); State v. DeFoe, 280 N.W.2d 38, 40 (Minn. 1979).  Therefore, the first element of the Ostrem analysis is satisfied. 

2.         Substantial Rights 

            Poole argues that his rights were substantially prejudiced because, by being deprived of notice that he was being charged with aiding and abetting the sale until after he had rested his case, he was deprived of the opportunity to prepare an effective defense.  The opportunity to prepare a defense in a criminal case is a substantial right.  See State v. Dickson,309 Minn. 463, 467, 244 N.W.2d 738, 741 (1976) (citing Berger v. United States, 295 U.S. 78, 55 S. Ct. 629 (1935)). 

            In performing a rule 17.05 analysis to determine whether a defendant's substantial rights are violated by the addition of an aiding-and-abetting charge, the supreme court has considered (1) whether the original complaint or indictment informed the defendant of the basic facts on which the state based its case; (2) whether the aiding-and-abetting charge affected the state's theory of the case; (3) whether the defendant was able to fully present his chosen defense; and (4) whether the defendant was able to identify any way in which he would have presented his case differently if he had known of the aiding-and-abetting charge from the outset.  See Ostrem, 535 N.W.2d at 923; DeVerney, 592 N.W.2d at 846-47.  Applying these factors here, we conclude that Poole's substantial rights were not prejudiced.    

            a.         Information in Original Complaint

            The original complaint described the events leading up to and including the arrest and fully set forth the facts on which the state based its case.  The amended complaint deleted no information included in the original complaint and only added a reference to Minn. Stat. § 609.05 and a line stating that Poole, "intentionally aiding, advising, hiring, counseling or conspiring with . . . Viverette," unlawfully sold a controlled substance.  The information in the original, as well as the amended complaint, was sufficient to put Poole on notice of the facts on which the state based its case.

            b.         Effect of Aiding-and-Abetting Charge on State's Theory of the Case

            The state's theory of the case was that when Lemons and Hines approached the automobile, Poole and Viverette, acting together, attempted to sell crack cocaine to one or both of the men.  This theory was not affected by adding an aiding-and-abetting charge against Poole. 

            c.         Presentation of Chosen Defense  

            Poole's defense at trial was that Lemons and Hines offered to sell drugs to Viverette and him.  Poole testified that he did not see a bag of crack cocaine in Viverette's possession and that he did not pass a rock of crack cocaine to Lemons.  Viverette testified that, when the police arrived, Lemons threw the bag of crack cocaine into the car, where police subsequently found it.  Poole, Lemons, and the three officers all testified that they did not see anyone throw anything into the car.  Officer Johnson testified that he saw someone extend his arm out of the passenger-side window, and it appeared that the person placed something in Lemons's hand.  The district court stated in its order of judgment that it credited Officer Johnson's testimony over that of Poole and Viverette.  Poole was able to fully develop his defense at trial, but the fact-finder rejected it. 

            d.         What Defendant Would Have Done Differently

            The supreme court in DeVerney noted that the defendant in that case could not "point to any specific way in which his case would have been presented differently had he been informed at the outset of the state's reliance on [an additional aiding-and-abetting charge]."  592 N.W.2d at 846.  Similarly, Poole claims that if he had known that he was being charged with aiding and abetting a third-degree sale of a controlled substance, "he would have defended himself differently."  But he does not specify how he would have done so.  Instead he only describes things that he might have done differently:  he might not have challenged Viverette's role as a drug-seller, he might have decided not to testify, and he might have objected to a joint trial.  The fact that Poole cannot specify any way in which he would have defended himself differently if he had known of the aiding-and-abetting charge weighs against a finding that his substantial rights were prejudiced.

            Because aiding and abetting is not an offense additional to or different from the crime of third-degree sale of a controlled substance and because Poole's substantial rights were not prejudiced by the amendment, the district court did not abuse its discretion by allowing the complaint to be amended to include the aiding-and-abetting charge.  

            Affirmed.