This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,


Lance Phillip Wickner,


Filed May 14, 2002

Reversed and remanded

Stoneburner, Judge


Beltrami County District Court

File No. K3001998


Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and


Timothy R. Faver, Beltrami County Attorney, Court Annex, 619 Beltrami Avenue Northwest, Bemidji, MN 56601 (for respondent)


John M. Stuart, Minnesota Public Defender, Sara L. Martin, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge, Harten, Judge, and Anderson, Judge.



U N P U B L I S H E D  O P I N I O N



Appellant Lance Phillip Wickner, who was originally charged with criminal vehicular homicide for causing a death by negligent driving while under the influence of alcohol, alleges that the district court erred by allowing respondent State of Minnesota to amend the complaint just prior to closing arguments to add a claim of criminal vehicular homicide by grossly negligent driving.  Wickner argues that the late amendment prejudiced his ability to prepare his defense and that the resulting jury instructions denied him his right to a specific unanimous verdict.  Wickner also challenges the district court’s admission of evidence of prior convictions as unduly prejudicial and the double upward sentencing departure imposed by the district court.  We reverse and remand.



Seventeen-year-old J.A. and Wickner left J.A.’s birthday party, where both had been consuming alcohol, and went for a drive in an automobile that Wickner admitted stealing on the morning of the party.  J.A. died as a result of injuries sustained when the car left the road and “flipped end over end” into the ditch.  Wickner told friends that the car had been traveling 120 mph and went out of control prior to the accident.  Wickner contended that J.A. was the driver of the car at the time of the accident.[1]

            Wickner was charged with criminal vehicular homicide for causing J.A.’s death as a result of operating a motor vehicle in a negligent manner while under the influence of alcohol, in violation of Minn. Stat. § 609.21 subd. 1 (2) (i) (2000) and theft of a motor vehicle in violation of Minn. Stat. § 609.52 subd. 2(17) (2000).  At a pretrial hearing, in anticipation of a guilty plea, respondent amended the first count to a charge of criminal vehicular homicide for causing J.A.’s death by operating a motor vehicle in a grossly negligent manner, in violation of Minn. Stat. § 609.21 subd. 1 (1) (2000).  When the plea was not forthcoming, respondent withdrew the amendment.

            Wickner represented himself at trial.  He admitted theft of the vehicle but contended that he was not the driver of the vehicle at the time of the accident and that he was not under the influence of alcohol. 

            After the state presented its case, Wickner moved for acquittal, arguing that the state had not proved he was the driver, had not proved negligent driving, and had not proved that he was under the influence of alcohol.  The district court denied the motion, noting that there was evidence in the record to support a conclusion that Wickner was the driver and there was evidence of grossly negligent driving.  The district court did not address the element of being under the influence of alcohol in denying Wickner’s motion. 

The parties then discussed proposed jury instructions that had been furnished to the parties by the district court prior to trial.  Wickner initially had no objections to the proposed instructions.  The prosecutor pointed out that the proposed instructions included an instruction on grossly negligent driving but that the complaint only charged negligent driving under the influence of alcohol.  Wickner noted that even if the jury thought he was driving and that he drove in a grossly negligent manner but not under the influence of alcohol “then they are not finding me guilty of the charge that I have been charged with.”

A lengthy discussion ensued between the prosecutor and the district court about whether the district court could amend the complaint to add the “element” of gross negligence, whether the amendment would constitute a prohibited change of an “essential element,” and whether Wickner would be prejudiced by the amendment.  The district court indicated that it was “tending toward allowing the gross negligence to go in” and offered to give Wickner a continuance for the afternoon.  Wickner stated he probably would not need a continuance.  The district court took the matter under advisement. 

At the close of Wickner’s case, the district court, the prosecutor, and Wickner again discussed the proposed amendment.  The district court agreed with the prosecutor’s position that Wickner would not suffer any prejudice because of the amendment, but questioned whether a different offense was being charged, noting that the charges clearly involved a different element, proof of being under the influence of alcohol.  Wickner continued to argue that the elements were different and that it was a “big difference.”  The district court delayed the decision until after the lunch break and just before closing arguments, at which time the amendment was granted.  

During the trial, the district court allowed the state to impeach Wickner with evidence of a prior conviction for criminal sexual conduct and a prior conviction for theft of a motor vehicle. 

The jury was instructed that Wickner could be found guilty of criminal vehicular homicide if he caused J.A.’s death while driving negligently while under the influence of alcohol or by grossly negligent driving.  A general verdict was submitted to the jury on this charge, asking only whether Wickner was guilty or not guilty of criminal vehicular homicide. 

During deliberations, the jury sent a question to the district court: “In guilty of Criminal Vehicular Homicide; must we say under the influence or not?”  The jury returned to the courtroom and the district court reread the “elements of the crime” portion of the instructions.  Twenty-four minutes later, the jury returned guilty verdicts on both counts, criminal vehicular homicide and theft of a motor vehicle. 

The district court sentenced Wickner to an upward departure of 116 months.  The court cited as aggravating factors Wickner’s violation of his supervised release status at the time the incident occurred and the intoxication of the victim.  This appeal followed.



1.                  The amendment added a different offense

A complaint may be amended “at any time before 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.  Allowing amendments to complaints under Minn. R. Crim. P. 17.05 is in the sound discretion of the district court.  Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982).  Implicit in the rule is the understanding that a defendant must be able to prepare a defense and can only do so by being informed of the exact nature of the charges against him.  Schmuck v. United States, 489 U.S. 705, 718, 109 S. Ct. 1443, 1451 (1989); State v. Gisege, 561 N.W.2d 152, 157 (Minn. 1997).  The rule is also “intended to protect against confusing the jury, violating due process notions of timely notice, and adversely affecting the trial tactics of the defense.”  State v. Guerra, 562 N.W.2d 10, 13 (Minn. App. 1997) (quotation omitted.)

            We use a two-step process to determine whether the rule authorized the amendment: whether an additional or different offense is charged and, if so, whether a defendant’s substantial rights were prejudiced.  State v. Ostrem, 535 N.W.2d 916, 122 (Minn. 1995).  The state argued, and the district court ultimately concluded, that in this case the amendment did not charge a different offense and that Wickner was not prejudiced by the amendment.   

“A different offense is charged if an amendment affects an essential element of the charged offense.”  Guerra, 562 N.W.2 at 13 (quotation omitted).  The district court engaged in a very thoughtful analysis of the issue and obviously struggled with the lack of practical guidance in existing caselaw.  The district court correctly recognized that the elements of committing criminal vehicular homicide by negligent driving under the influence are different from criminal vehicular homicide by grossly negligent driving.  Given the lack of clarity and guidance available to the district court in this area, we are reluctant to say that the court’s conclusion constitutes an abuse of discretion.  But given the overriding importance of the defendant’s right to due process and fairness in the criminal justice system, we hold that allowing the state to amend the complaint to add grossly negligent driving affected an essential element of the charge against Wickner and therefore was inappropriate under Minn. R. Crim. P. 17.05. 

The state relies on a United States Supreme Court holding that alternate subsections of elements of a crime are merely different means of describing the same culpable behavior and therefore not an additional or different offense.  Schad v. Arizona, 501 U.S. 624, 642, 111 S. Ct. 2491, 2502 (1991) (holding that premeditation and felony murder satisfy same mens rea element of first degree murder, by describing equivalent degrees of culpability under Arizona law).  Schad, however, involved a challenge to jury instructions, not a last-minute amendment to an indictment or complaint, and represented the court’s deference to the state of Arizona’s previous “characterization of first-degree murder as a single crime as to which a verdict need not be limited to any one statutory alternative.”  Id. at 630-31, 111 S. Ct. 2496.  Although the discussion in Schad is useful to the present analysis, the Schad majority concluded that it is impractical to try to

derive any single test for the level of definitional and verdict specificity permitted by the Constitution, and we think that instead of such a test our sense of appropriate specificity is a distillate of the concept of due process with its demands for fundamental fairness. 


Id.  at 637, 111 S. Ct. 2500.  The Supreme Court stated that whether a fact constitutes an element or merely an alternative means of committing an element is an issue of statutory interpretation.  Id. at 637-38, 111 S. Ct. 2500.  The Supreme Court noted the importance of considering the history of the involved statute:

Where a State’s particular way of defining a crime has a long history, or is in widespread use, it is unlikely that a defendant will be able to demonstrate that the State has shifted the burden of proof as to what is an inherent element of the offense, or has defined as a single crime multiple offenses that are inherently separate.


Id. at 640, 111 S. Ct. 2501.  Prior to 1983, Minn. Stat. § 609.21 provided:

Whoever operates a vehicle * * * in a grossly negligent manner and thereby causes the death of a human being  * * * is guilty of criminal negligence in the operation of a vehicle resulting in death and may be sentenced to imprisonment       * * * .


Minn. Stat. § 609.21 (1982).   Interpreting this statute, the Minnesota Supreme Court stated:

Caution must be exercised that the misdemeanor criminal offense of operating a vehicle while under the influence of an alcoholic beverage * * * when coupled with negligent driving conduct which falls short of “grossly negligent” conduct, does not evolve and pyramid into the felonious crime of criminal negligence simply because the death of a victim results.  The legislature has not defined criminal negligence as the operation of a vehicle while under the influence of alcohol in a manner resulting in the death of a victim.  Likewise, this court has never construed criminal negligence in that manner.


State v. Hansen, 296 Minn. 42, 46-47, 206 N.W.2d 352, 355 (1973).  In 1983, Minn. Stat. § 609.21, subd. 1 was amended to provide:

Whoever, as a result of operating a vehicle * * * in a grossly negligent manner, or in a negligent manner while under the influence of alcohol * * * causes the death of a human being  * * * is guilty of criminal vehicular operation resulting in death * * * .


Minn. Stat. § 609.21, subd. 1, (Supp. 1983).  The history of the statute supports Wickner’s position and our conclusion that grossly negligent driving and negligent driving under the influence of alcohol have two separate essential elements, each requiring different proof.  

2.                  The amendment affected Wickner’s substantial rights

We disagree with the district court’s conclusion that Wickner’s substantial rights were not prejudiced by the amendment.  Wickner proceeded to trial believing that the state could not prove that he was driving but if it could, the state could not prove beyond a reasonable doubt that he was under the influence of alcohol.  As Wickner pointed out to the district court, even if the jury believed he was driving in a grossly negligent manner, he could not be convicted of the charges brought against him unless the jury also found beyond a reasonable doubt that he was under the influence of alcohol.  See Guerra, 562 N.W.2d at 13 (holding late amendment of charges adversely affected defense strategy prejudicing defendant’s substantial rights.)

The district court correctly noted that the state could have charged Wickner with grossly negligent driving.  In fact, the state did just that in a pretrial hearing, but then specifically withdrew the amended charge later the same day.  It may be distressing that Wickner benefits from the poor charging choice of the prosecutor, but it is not the role of the district court or this court to save the prosecutor from charging error.

Furthermore, the question from the jurors clearly indicates that the amendment was confusing to the jurors and that they had some question about whether the state had proved beyond a reasonable doubt that Wickner was under the influence of alcohol.  Given the jurors’ question, the amendment may have meant the difference between conviction and acquittal.  It is hard to imagine a circumstance more prejudicial to a defendant.

      Because we find that the district court did not have discretion to amend the complaint pursuant to Minn. R. Crim. P. 17.05, we do not need to reach the additional issues raised on appeal.  Because we are remanding for a new trial, we will address the issue of the jury instructions and evidence of prior convictions.  We decline to address the sentencing issue because the circumstances surrounding that issue will presumably have been resolved prior to resentencing, should resentencing occur.

3.         Jury instructions

Wickner asserts that the manner in which the jury was instructed deprived him of his right to a unanimous verdict.  The district court has considerable discretion in formulating jury instructions and will not be overturned except for an abuse of discretion.  State v. Hart,  477 N.W.2d 732, 736 (Minn. App. 1991), review denied, (Minn. Jan. 16, 1992). 

      The state argues that because Wickner did not object to the jury instructions, he is precluded from raising this issue on appeal.  When the jury instructions were being discussed, the state pointed out that the instructions contained an instruction on gross negligence and Wickner stated that such an instruction was not fair because he was not charged with gross negligence.  The state then moved to amend the complaint, and Wickner objected to the amendment.  We conclude that Wickner, who was acting pro se, sufficiently objected to the instructions to preserve the issue for appeal and that even if he did not, the interests of justice compel us to address this issue.  M. R. Civ. App. P. 103.04

The district court instructed the jury pursuant to the Minnesota Jury Instruction Guides, which set out the three elements of criminal vehicular homicide as requiring (1) proof of the victim’s death; (2) driving in one of the manners proscribed by the statute; and (3) the date and place of the offense.  The court instructed the jury that the second element could be proved “in one of two ways.  First, grossly negligent, that I just described to you.  Or, in a negligent manner while under the influence of alcohol.” 

The Minnesota Supreme Court recently held that where a statute establishes alternative means for satisfying an element and the behaviors set out in the alternative means are not inherently different types of conduct, jurors are not required to unanimously agree on which act satisfied the element.  State v. Ihle, 640 N.W.2d 910-919 (Minn. March 28, 2002).  Our conclusion that the two manners of violating the statute constitute different offenses is consistent with the reasoning in Ihle, and compels a holding that the district court abused its discretion by giving the jurors an “either/or” instruction. 

 On remand, if the state properly amends the complaint to include a charge of grossly negligent driving, that charge shall be presented to the jury as a separate charge and the jury shall be given separate instructions on each charge.

4.                  Evidence of prior convictions

Wickner asserts that the district court abused its discretion by permitting the state to impeach him with evidence of a prior conviction for criminal sexual conduct and a prior conviction for theft of a motor vehicle.  A district court’s evidentiary decisions are generally not reversed absent an abuse of discretion.  State v. Vanhouse, 634 N.W.2d 715, 718 (Minn. App. 2001), review denied (Minn. Dec 11, 2001).  District courts are vested with great discretion in making evidentiary rulings, including whether to admit impeachment evidence.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).  When deciding whether to permit impeachment under Minn. R. Evid. 609(a)(1), the district court must consider five factors: (1) the impeachment value of the prior crime; (2) the date of the conviction; (3) the similarity of the prior crime with the charged crime (the more similar the crime, the greater the reason for not permitting use of the prior crime); (4) the importance of defendant’s testimony; and (5) the centrality of the credibility issue.   Ihnot, 575 N.W.2d at 586 (citing State v. Jones, 271 N.W.2d 534, 538) (Minn. 1978).  The district court should state on the record its conclusions regarding the Jones factors.  State v. Lund, 474 N.W.2d 169, 172 (Minn. App. 1991).  But failure to do so is harmless error if proper application of the Jones factors is apparent from the record.  Vanhouse, 634 N.W.2d at 719. 

      Here, the district court considered the impeachment evidence before trial began and stated that “the probative value of the evidence, considering the recency of the conviction outweigh the prejudicial effect of admitting these convictions * * * .”  It is undisputed that the convictions are felony convictions.  Although the crimes do not relate directly to truth or falsity, they assist the jury by allowing it to view the defendant as a whole person and better judge his testimony.  State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993).  We conclude that the first Jones factor is apparent from the record.  The court made a specific finding that the convictions are recent, satisfying the second Jones factor.  The fact that the theft of a motor vehicle conviction was identical to a charge against Wickner weighed against its admission.  Wickner admitted that charge; therefore, any error due to the identical nature of the charges was harmless.  The criminal sexual conduct charge was not similar to the charges before the jury.  That defendant’s testimony was important to his case can be gleaned from the record, and that his credibility was central is undisputed.  Although we prefer that the district court make a record of consideration of the Jones factors, we cannot conclude on this record that the district court abused its discretion by admitting evidence of Wickner’s prior convictions.

Reversed and remanded for a new trial on the charge of criminal vehicular homicide.



[1] According to Wickner, J.A. ended up behind the vehicle and Wickner moved him into the vehicle, then went for help.  Friends who came to the scene found J.A. lying across the front seat, but disagreed about whether his head was on the driver’s seat or the passenger’s seat.  They put J.A. in their car and took him to the hospital where he later died.