This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Ronald Richard Radke,
Filed September 11, 2001
Olmsted County District Court
File No. K6-00-1292
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
Duane A. Kennedy, 724 First Avenue Southwest, Rochester, MN 55902 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Amundson, Judge, and Stoneburner, Judge.
On appeal from conviction of second-degree felony murder, appellant argues that, because the facts showed that another man assaulted the victim before appellant but the state chose to try the case on the theory that appellant’s assault caused the victim’s death, the trial court abused its discretion in instructing the jury that it could find appellant guilty of aiding and abetting the murder. Appellant also argues that the court erred in failing to instruct the jury on accomplice testimony and that there was insufficient evidence to prove that appellant’s assault caused the victim’s death. We affirm.
At approximately 6:00 p.m., Saturday, April 22, 2000, Nicholas Griggs left home for the evening accompanied by his friend, Nick Fuchsel, a fellow student at Rochester John Marshall High School. Later that evening, Griggs and Fuchsel met three other students, Blake Warner, James Blake and Joshua Andrist, who all either were, or had recently been, students at John Marshall. The five decided to go “play tag” together at Silver Lake. Griggs and Fuchsel, with Griggs driving his car, followed the other three, who were in Warner’s car.
That same evening, Ronald Radke and Erik Paulsen, also John Marshall students, attended a party at Shawn Williams’s residence. Radke and Paulsen left the party in Paulsen’s vehicle.
Shortly before 10:00 p.m., Paulsen and Radke noticed Griggs’s car near the high school. Paulsen said, “There’s Nick [Griggs]. Let’s go f--k with him.” Paulsen had apparently threatened to beat Griggs up earlier that day because he suspected Griggs had been stealing from students on behalf of a gang known as the “Master Players,” or “MPs.” Radke had similar problems with Griggs. Paulsen and Radke threw several cans at Griggs’s car. Paulsen then passed and cut in front of Griggs, forcing Griggs to stop in the middle of the street. Warner, who was ahead of Griggs, also stopped his car. Once Griggs’s car was stopped, Radke jumped out of Paulsen’s car and then let himself into the rear seat of Griggs’s car and told Griggs to “shut up” and drive to Indian Heights Park. Griggs was frightened. At the same time, Paulsen pulled ahead to Warner’s car and told the occupants that they were going to Indian Heights Park to “throw Nick Griggs into a pole.”
The entire group then proceeded to the park. Radke remained in Griggs’s car to ensure that Griggs followed the other cars to the park. After they all arrived at the park, Fuchsel left Griggs’s car and joined the others, who had gathered some distance away. Griggs remained in his car until, after Paulsen and Radke yelled at him, Radke opened Griggs’s door and they both ordered him out.
After Griggs got out of his car, Paulsen put his hands underneath Griggs’s arms, picked him up and tossed him toward a nearby sign pole. Griggs struck his left shin on the pole and fell into the grass, landing on his hands or forearms. Paulsen then turned around, and walked away, apparently remarking that the 5’4”, 123 lb. Griggs was “too small” to hit.
At that time, Radke began to yell at Griggs about some items apparently stolen from a car and about Griggs’s alleged association with the MPs. Radke yelled at Griggs that if Griggs wanted to be an MP, he would treat him as such. Griggs responded by denying he had ever flashed an MP gang sign and attempted to back away toward the
surrounding woods; Radke advanced on him. When Griggs was backed up to the edge of the woods, Radke stated, “oh, this is how we treat MPs” and punched him on the left side of the head with his right fist. Although Radke would later state that he thought he saw Griggs make a threatening move, none of the other witnesses observed Griggs move before he was struck, and Radke admitted that Griggs’s hands were by his sides and that Radke did not see Griggs make a fist. Radke also eventually testified that he believed he had struck Griggs in the jaw. Other witness placed the blow near Griggs’s left temple.
According to several of the witnesses, the Radke blow produced a loud snapping sound like a tree branch breaking. When struck, Griggs fell to the ground, where he remained for up to a minute. When he stood up, he was holding the side of his head and seemed dazed. Radke ordered Griggs to leave, and Griggs complied by driving off in his car.
Radke and Paulsen then returned to the party at Williams’s residence where Radke recounted the evening’s events bragging about how he had beaten Griggs up. Radke characterized the sound of the blow as similar to that of “a branch snapping.”
Griggs arrived at home at about midnight—approximately 90 minutes after he left the park—complaining to his mother that he was very sick. Griggs went to bed and continued to vomit. He complained about experiencing severe head pain and about the brightness of the light. Approximately one hour later, Griggs’s mother checked in on him and discovered that his hands were clenched tightly and drawn up toward his chest, his body was rigid, his tongue was hanging out of his mouth, white foam appeared on his mouth, and he was shaking. He was non-responsive.
Griggs’s mother then called 911. The fire department personnel who first responded suspected a serious head injury and transported him to the hospital by ambulance. At the hospital, the doctors found a large epidural hematoma on the left side of his head. The pressure from the hematoma had caused Griggs’s brain to shift, which endangered normal circulation of blood flow to the brain stem. At 2:35 a.m., emergency surgery began to relieve the pressure in Griggs’s skull. The surgeons found and removed multiple blood clots on Griggs’s left side and discovered an active hemorrhage. The surgery was complete at 5:00 a.m., but Griggs died of a heart attack just over 15 hours later.
The coroner who performed the autopsy was unable to find any sign of injury in the area of Griggs’s mouth. However, he did find significant trauma to the left temporal region of Griggs’s skull, including trauma-induced contusions near Griggs’s left temple, several fractures, a tear in the artery that the surgeons had repaired, and two residual blood clots. The coroner concluded that the cause of death was a traumatic injury to the brain brought on by an epidural hematoma resulting from the arterial tear and that the tear was caused by blunt force trauma to the side of the head—consistent with a punch by a bare fist. The doctors and surgeons who treated Griggs all shared the coroner’s opinion about the medical cause of Griggs’s death, and two of the doctors agreed that the initial trauma could have been caused by a bare-fisted punch to the side of the head.
The investigating officers interviewed Radke, who confirmed most of the events, but insisted that he had hit Griggs in the jaw. The officers examined the crime scene and were unable to find a brick, paving stone or other hard, flat, object on which Griggs might have hit his head after being pushed by Paulsen.
Radke was charged with second-degree felony murder and first-degree misdemeanor manslaughter. A trial was held from November 7 through November 17, 2000. At the close of the trial, and over Radke’s objection, the district court instructed the jury that it could find appellant guilty either as a principal or as an aider and abettor. The court also instructed the jury on the lesser-included offense of fifth-degree assault. After deliberating for ten hours, the jury returned verdicts finding Radke guilty of second-degree murder, first-degree manslaughter, and fifth-degree assault.
The district court vacated the manslaughter and assault convictions and sentenced Radke to the presumptive guideline sentence for the felony murder of 150 months executed. This appeal followed.
Radke first claims that he is entitled, at a minimum, to a new trial because the district court failed to instruct the jury on accomplice testimony while simultaneously permitting an instruction on liability as an accomplice. Although the refusal to give a requested jury instruction lies within the discretion of the trial court, State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996), generally a party who fails to object before the jury retires to consider its verdict may not subsequently claim error. Minn. R. Crim. P. 26.03, subd. 18(3). However, this court can reverse a conviction because of instructions, even where no objection was made, if the instructions were “misleading or confusing on fundamental points of law such as burden of proof and presumption of innocence.” State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980).
Although Radke initially requested the accomplice-testimony instruction, he subsequently withdrew that request. Failure to give a cautionary instruction regarding the testimony of an accomplice, even when clear error, is not grounds for reversal unless the charge is requested and denied. State v. Cole, 289 Minn. 503, 505, 183 N.W.2d 290, 292 (1971). Likewise, the district court’s refusal to instruct on accomplice testimony sua sponte, even if error, is not plain error requiring a new trial. State v. Shoop, 441 N.W.2d 475, 480 (Minn. 1989).
Radke argues that he withdrew the request because the prosecution had announced it was not pursuing an aiding and abetting theory. But Radke’s attorney withdrew his request for an accomplice-testimony instruction during the same hearing that he strenuously and vigorously argued against the state being allowed to pursue an aiding and abetting theory as an alternate theory. Thus, there was no error in the failure to give the accomplice-testimony instruction.
Radke next argues that the district court abused its discretion in granting the state’s accomplice-liability instruction. In so arguing, Radke characterizes the addition of the accomplice-liability instruction as equivalent to the amendment of the complaint, which did not allege aiding and abetting. He argues that this constructive amendment was improper under Minn. R. Crim P. 17.05 because an additional or different offense was charged, and Radke’s substantial rights were prejudiced. See Minn. R. Crim. P. 17.05 (permitting the pre-verdict amendment of a complaint if no additional or different offense is charged and the defendant’s substantial rights are not prejudiced). Both the allowance of amendments to a complaint and the manner in which a jury is instructed lie within the district court’s discretion. Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982) (amendments of complaints); State v. Cole, 542 N.W.2d at 50 (jury instructions).
The law is clear: aiding and abetting in violation of Minn. Stat. § 609.05, subd. 1 (1998) is not a separate or additional charge. State v. Ostrem, 535 N.W.2d 916, 922 (Minn. 1995). Therefore, a jury may convict of aiding and abetting even when it is not charged. It follows that a defendant’s “substantial rights” are not prejudiced by the inclusion of an aiding and abetting instruction where not charged. Further, even if an aiding-and-abetting charge were to be considered an amendment to the complaint, it would be permitted. Id. at 922, n. 6. The district court did not err by granting the accomplice- liability instruction.
Lastly, Radke argues that the evidence was insufficient to support his conviction. In considering a claim of insufficient evidence, this court’s 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, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Radke’s argument here is without merit. For the most part, he argues that the evidence supports other conclusions, such as Paulsen’s responsibility or some accident occurring during the 90-minute interval between the assault and Griggs’s return home. But Radke misperceives the question posed on appeal from a jury verdict. The question is not whether there was evidence that Paulsen’s actions caused Griggs’s death, but whether there was evidence sufficient to support Radke’s conviction. The testimony of several witnesses showed that Radke struck Griggs very hard in the head, and the testimony of several medical experts clearly supported the proposition that Griggs’s injury was caused by Radke’s blow.
 At trial, some of the witnesses affirmatively remember that Griggs did not hit his head on either the pole or the ground. Some did not see if he did or he did not. None recalled seeing him hit his head as a result of Paulsen tossing him into the pole.
 A collection of clotted blood between the inner surface of the skull and the brain covering, which normally adheres to the inner surface of the skull.