State of Minnesota, Respondent, vs. Chad Beito, Appellant.

State of Minnesota, Respondent, vs. Chad Beito, Appellant. A05-2111, Court of Appeals Unpublished, November 28, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2111

 

State of Minnesota,

Respondent,

 

vs.

 

Chad Beito,

Appellant.

 

Filed November 28, 2006

Affirmed

Harten, Judge*

 

Chisago County District Court

File No. K8-04-636

 

Katherine M. Johnson, Chisago County Attorney, 313 North Main Street, Room 373, Center City, MN 55012; and

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Appellant challenges his convictions of driving after cancellation, first-degree test refusal, obstructing legal process, and giving police a false name, arguing that the district court erroneously allowed the state to amend the complaint by adding a charge of driving under the influence of a combination of alcohol anda controlled substance.  Because the amendment in no way prejudiced appellant, we affirm.

FACTS

 

Following a traffic stop on 15 April 2004, appellant Chad Beito was charged with driving under the influence of alcohol within ten years of the first of three or more qualified prior impaired driving incidents, refusing to submit to chemical testing, driving after cancellation, giving a peace officer a false name, and obstructing legal process.  He pleaded not guilty.

The matter was set for a jury trial that commenced on 4 May 2005.  During the prosecution's presentation of its case, the police officer who conducted the traffic stop testified that, when appellant was stopped, he had a wooden pipe of the type used for smoking marijuana that was filled with a leafy, green substance.  On cross-examination, counsel for appellant asked the officer to describe the indicia of someone under the influence of marijuana.  The district court sustained the prosecutor's objection to the question.  Appellant's counsel later complained that this ruling impaired appellant's right to present as a defense the possibility that he was driving under the influence of marijuana as well as under the influence of alcohol.  The prosecutor replied that, if appellant's counsel were permitted to argue this defense to the jury, the state would move to add a count of driving under the influence of a combination of alcohol and a controlled substance within ten years of the first of three or more qualified prior impaired driving incidents.

Appellant's counsel opposed the motion to amend the complaint: "The theory of [appellant's] case essentially is not that he was necessarily under the influence of that marijuana, but why the [deputy] did not follow through."  The district court granted the state's motion to amend the complaint; it also permitted appellant's counsel to ask additional questions about the use of marijuana and to make arguments based on that evidence.

The jury found appellant not guilty of the amended charge, i.e., driving under the influence (DWI) of a combination of alcohol and a controlled substance within ten years of the first of three or more qualified prior impaired driving incident, but guilty of (1) driving under the influence of alcohol within ten years of the first of three or more qualified prior impaired driving incidents, (2) refusing to submit to chemical testing, (3) driving after cancellation, (4) giving a peace officer a false name, and (5) obstructing legal process.  The district court did not adjudicate or sentence appellant for driving under the influence of alcohol because it was part of the same behavioral incident as refusal to submit to testing.

Appellant was sentenced to the presumptive 57 months for refusing to submit to testing, to a consecutive 30 days for driving after cancellation, and to a concurrent 365 days for giving a false name to the police and 90 days for obstructing legal process.  Appellant argues that his convictions on these four counts should be reversed because the district court abused its discretion by permitting the state to amend the complaint, and because the evidence was insufficient to prove that he refused to submit to chemical testing.

D E C I S I O N

            1.         Amendment of the Complaint.

The district court may permit amendment of a complaint at any time prior to the verdict "if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."  Minn. R. Crim. P. 17.05.  Whether the district court correctly interpreted the rules of criminal procedure is a question of law, which we review de novo.  State v. Brown, 709 N.W.2d 313, 316 (Minn. App. 2006). 

We note at the threshold that appellant was not convicted of the amended charge and that the charges for which he was sentencedrefusing to submit to testing, driving after cancellation, giving a false name, and obstructing legal processwere independent of both the amended DWI charge and the original DWI charge.  Appellant was permitted to, and did, argue his theory of the case.  In closing argument, appellant's counsel told the jury, among other things:

Now many of the symptoms of somebody who may have used marijuana are similar to symptoms of somebody under the influence of alcohol.  . . .  We don't know because [the deputy] didn't go through his report with any sort of analysis about [the] possibility of controlled substances.

. . . .

Now the State wants you to believe . . . hey, if there's a marijuana pipe in his pocket probably . . . he's under the influence of that.  . . . That['s] sloppiness, that's not beyond a reasonable doubt.  That's nothing close to beyond a reasonable doubt.

. . . .

[T]here's a lot of reasons you could probably convict [appellant] that are not beyond a reasonable doubt.  That he could have driven under the influence of alcohol or another controlled substance or a combination.  That he probably did it or that he might have done it.  . . .  That's not proven guilty beyond a reasonable doubt.

 

 Appellant's statement of his motive for introducing the marijuana issue into the trial that the state could not prove whether appellant was under the influence of marijuana provides no basis for finding that he was prejudiced by the state's addition of another DWI charge to the complaint.  Nor does appellant's sentence provide a basis; appellant received no guilty sentence for DWI. 

In the absence of any prejudice to appellant from the amendment, we need not decide whether the amendment charged "an additional or different offense."  The jury obviously understood the difference between the charges of driving under the influence of alcohol and driving under the influence of a combination of alcohol and a controlled substance: it found appellant guilty of the former charge and not guilty of the latter.  See State v. Guerra, 562 N.W.2d 10, 13 (Minn. App. 1997) (concluding that adding charge of possession of stolen handguns to charge of possession of stolen shotguns was prejudicial because, among other things, "the jury was obviously confused by the change").  Even assuming, without deciding, that the district court erred in allowing the amended charge, no substantial rights of appellant were prejudiced thereby, and appellant is not entitled to reversal of his convictions.  See State v. Dorsey, 701 N.W.2d 238, 252 (Minn. 2005) (holding that, in cases involving trial errors, harmless error test is applied; reversal is not required if guilty verdict is not attributable to error). 

2.         Pro Se Issue. 

 In his pro se reply brief, appellant challenges the jury's finding that he was guilty of refusing to submit to testing. On a claim of insufficiency of the evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jury to reach its verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  On appeal, we must assume that the jury believed the evidence supporting the verdict and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The jury determines witnesses' credibility and the weight of witnesses' testimony; we assume that the jury believed the state's witnesses and disbelieved the defendant's witnesses.  State v. Bolstad, 686 N.W.2d 531, 539 (Minn. 2004).  A guilty verdict will not be overturned if, giving due regard to the presumption of innocence and the prosecution's burden of proving guilt beyond a reasonable doubt, the jury could reasonably have found the defendant guilty of the charged offense.  Id.  The jury saw the videotape of appellant's booking at the jail after his arrest.  It reveals that he refused to submit to testing until he talked to a lawyer, that he was provided with the means and opportunity to talk to a lawyer, and that he continued to refuse to submit to testing.  This evidence was more than sufficient to permit the jury to reach its verdicts.   See Webb, 440 N.W.2d at 430.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.