This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-02-2046

 

 

State of Minnesota,

Respondent,

 

vs.

 

Justin Lee Keller,

Appellant.

 

 

Filed October 28, 2003

Affirmed

Robert H. Schumacher, Judge

 

Chippewa County District Court

File No. K202201

 

 

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

 

Dwayne N. Knutsen, Chippewa County Attorney, 102 Parkway Drive, Post Office Box 591, Montevideo MN 56265 (for respondent)

 

John E. Mack, Mack & Daby P.A., Post Office Box 302, New London, MN 56273 (for appellant)

 

Considered and decided by Schumacher, Presiding Judge; Lansing, Judge; and Poritsky, Judge.*

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

This is an appeal from a conviction of first-degree and second-degree criminal sexual conduct. The district court properly exercised its discretion and the evidence was sufficient to support the convictions. Claims of ineffective assistance of counsel are more properly brought in a postconviction setting. We affirm.

FACTS

B.K., a nine-year-old girl, attended a sexual abuse puppet show at her elementary school. After the show, she approached presenters and said, "This is what my dad did to me." Later, Deputy Kelly Aalfs interviewed B.K., and she said her dad rubbed her inside her underwear. Appellant Justin Lee Keller was charged with one count criminal sexual conduct in the first degree in violation of Minn. Stat.  609.342, subd. 1(a) (2000) (sexual contact with person under 13 years of age).

During trial preparation, the prosecuting attorney examined the transcript of the interview between Aalfs and B.K. The attorney determined that Aalfs had not asked B.K. about sexual penetration. While reviewing trial procedures with B.K., the prosecuting attorney asked her about penetration, and she responded affirmatively.

The day before trial, the district court and trial attorneys held a telephone conference during which the prosecuting attorney proposed amending the complaint based on his recent conversation with B.K. The morning of trial the district court granted the state's motion to amend the complaint during a pretrial hearing. Defense counsel did not object and did not request a continuance.

The amended complaint charged one count criminal sexual conduct in the first degree in violation of Minn. Stat.  609.342, subd. 1(a) (sexual penetration with person under 13 years of age), one count criminal sexual conduct in the second degree in violation of Minn. Stat.  609.343, subd. 1(a) (sexual contact with person under 13 years of age), and one count criminal sexual conduct in the second degree in violation of Minn. Stat.  609.343, subd. 1(g) (sexual contact with person under 16 years of age and defendant had significant relationship to victim). After a two-day trial, the jury returned a verdict of guilty on all three charges.

D E C I S I O N

1. Keller argues the district court abused its discretion by allowing the state to amend the complaint. The matter of allowing an amendment to a complaint is within the district court's sound discretion and will not be reversed absent abuse of that discretion. See Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982) (determining whether district court abused its discretion by allowing state to amend complaint after evidence had been presented at trial).

The Minnesota Rules of Criminal Procedure provide that the district court is relatively free to permit amendments charging additional or greater offenses so long as jeopardy has not attached and the district court allows a continuance where needed. Minn. R. Crim. P. 3.04, subd. 2 (2002); State v. Bluhm, 460 N.W.2d 22, 24 (Minn. 1990). Generally, jeopardy attaches once a jury is impaneled and sworn. State v. Olson, 609 N.W.2d 293, 299 (Minn. App. 2000) (citing State v. McDonald, 298 Minn. 449, 452, 215 N.W.2d 607, 609 (1974)). It is reversible error if the district court does not permit the free amendment of the complaint. State v. Doeden, 309 Minn. 544, 546-47, 245 N.W.2d 233, 234 (1976).

Here, discussion between the presiding judge and both trial attorneys regarding the amendment of the complaint occurred by telephone the day before trial. The state's motion to amend was heard and granted during a pretrial hearing, prior to jury voir dire. Defense counsel did not object. The law allows the district court to permit amendments charging additional or greater offenses so long as jeopardy has not attached. In this case jeopardy had not attached; the district court granted the motion to amend prior to the jury being impaneled and sworn. We conclude the district court did not abuse its discretion by permitting the state to amend the complaint.

2. Keller argues the district court erred by failing to provide him with a continuance to prepare to defend the amended charges. As stated by the supreme court in Bluhm: "[T]he trial court is relatively free to permit amendments to charge additional offenses before trial is commenced, provided the trial court allows continuances where needed." Bluhm, 460 N.W.2d at 24 (emphasis added). Due to the procedural disposition of Bluhm, it was unnecessary for the supreme court to determine whether a continuance was required in that case.

This court, in determining whether a continuance is necessary where a complaint is amended shortly before trial, has considered whether defendant had notice of the facts underlying the additional charges, objected to the additional charges, and requested a continuance. Compare State v. Crowley, No. C8-99-1216 (Minn. App. June 27, 2000), review denied (Minn. Aug. 22, 2000), and State v. Abendroth, No. C8-94-368 (Minn. App. Nov. 8, 1994), with State v. Doebel, No. C5-91-1057 (Minn. App. March 3, 1992), review denied (Minn. Apr. 29, 1992).

In this case, both the original and amended complaint charged one count criminal sexual conduct in the first degree in violation of Minn. Stat.  609.342, subd. 1(a). The first complaint alleged Keller engaged in "sexual contact." The amended complaint alleged "sexual penetration." Keller was always aware of the allegation of sexual contact and maintained his denial that any contact occurred. There was notice to defense counsel of the allegation of penetration the day before trial. Defense counsel did not object and did not request a continuance. Under these facts, we cannot conclude that the district court erred by not ordering a continuance at the time it granted the motion to amend the complaint. We find no authority for requiring it to do so.

3. Keller argues the district court erred by not arraigning him on the charges for which the jury found him guilty. In Minnesota arraignment "is not from the standpoint of due process a critical stage of the proceedings as it has been held to be in other jurisdictions." State v. Roy, 266 Minn. 6, 11, 122 N.W.2d 615, 619 (1963) (citations omitted). Due process "does not require the state to adopt any particular form of procedure, so long as it appears that the accused has had sufficient notice of the accusation and an adequate opportunity to defend himself in the prosecution." Garland v. State of Washington, 232 U.S. 642, 645, 34 S. Ct. 456, 457 (U.S. 1914); see also United States v. Cook, 972 F.2d 218, 222 (8th Cir. 1992). Moreover, Minn. R. Crim. P. 3.04, subd. 2, allows for amendments to the complaint prior to trial so long as jeopardy has not attached and the district court allows a continuance where needed. This rule does not require arraignment on charges added or changed.

Arraignment is not required by due process in Minnesota. Minnesota Rules of Criminal Procedure do not require arraignment on amended charges. Thus, the district court did not err by not arraigning Keller on the amended charges.

4. Keller argues there is insufficient evidence to support the factual finding of penetration. 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 jury heard the live testimony of B.K., the victim. She testified, in her own words and by responding to questions, that Keller put his hand down her pants, rubbed on her vagina, and put his finger inside her vagina. This court must assume the jury believed her statement. Based on belief of her statement, a jury could reasonably conclude Keller was guilty of the charged offense.

5. Keller argues, on direct appeal, he received ineffective assistance of counsel. A postconviction evidentiary hearing is the preferred method for raising such claims. See State v. Tienter, 338 N.W.2d 43, 44 (Minn. 1983). In order to prevail on an ineffective-assistance claim on direct appeal, Keller must show nothing his counsel could have said at a postconviction hearing would have justified counsel's performance at trial. Id. We can only speculate why Keller's attorney chose not to raise objections, request a continuance, arraignment, or omnibus hearing, examine the forensic psychologist regarding a particular interview with the victim, or investigate facts that may or may not have supported his theory of the case. Because there is no record indicating why Keller's attorney made these choices, we cannot determine whether counsel's representation constituted ineffective assistance.

Affirmed.



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