This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
COURT OF APPEALS
State of Minnesota,
Ahdronemus Demetric Gooden,
Filed December 31, 2007
Goodhue County District Court
File No. 25-K3-05-002077
Lori Swanson, Attorney General, Kimberly Parker, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Stephen N. Betcher, Goodhue County Attorney, Goodhue County Justice Center, 454 West Sixth Street, Red Wing, MN 55066-2475 (for respondent)
John Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Lansing, Presiding Judge; Dietzen, Judge; and Ross, Judge.
F A C T S
Justin Weber was staying at the duplex apartment of his friend Jacob Hoyer on the morning of December 25, 2005 when he awoke to discover Ahdronemus Gooden in the apartment. Gooden claimed to be looking for Hoyer and left. About thirty minutes later, Weber answered a knock at the front door, and three men—Gooden, a man identified as “Jose,” and Mike Gordon—“punched their way in” to the apartment. One of the intruders threw a blanket over Weber and hit him on the head with a blunt object that left a sizable bump.
The commotion awakened Debra Flo who lived at the apartment and was sleeping in an upstairs bedroom. When Flo yelled from an upstairs balcony, the intruders ordered Weber upstairs, told Weber and Flo to be quiet, and threatened to shoot Weber. Both Weber and Flo heard a gun cocking and Weber saw what he believed was a firearm. Jose and Gordon took money and other items, while Gooden attempted to calm Flo. Jose, Gordon, and Gooden left the apartment after ordering Weber and Flo not to move or turn around and threatening that “bad things were going to happen” if Weber or Flo called the police.
The state charged Gooden with one count of aggravated robbery, three counts of first-degree burglary, simple robbery, theft, and fifth-degree assault. The complaint specifically included aiding and abetting in the aggravated-robbery count and in one count of first-degree burglary. The other two counts of first-degree burglary alleged that Gooden had committed a crime in the building “either directly or as an accomplice.”
The case was tried to a jury. At the close of its case, the state moved to amend the complaint to add accomplice liability to a count of first-degree burglary, simple robbery, theft, and fifth-degree assault. Over defense objection, the district court granted the motion.
The jury found Gooden guilty of three counts of aiding and abetting first-degree burglary and one count of aiding and abetting fifth-degree assault. The district court sentenced Gooden to forty-five months in prison on one of the first-degree aiding-and-abetting-burglary convictions, a downward departure from the presumptive guidelines sentence of sixty-eight months. Gooden appeals his conviction.
The district court may permit an amendment to a criminal complaint any time before the jury’s verdict if (1) no additional or different offense is charged and (2) the amendment does not prejudice the defendant’s substantial rights. Minn. R. Crim. P. 17.05. We evaluate the district court’s decision on a rule 17.05 amendment under an abuse-of-discretion standard. Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982).
Gooden argues that the district court improperly permitted the state, at the close of its case, to amend the complaint to add accomplice liability to the charges of first-degree burglary, simple robbery, theft, and fifth-degree assault. Gooden does not challenge the well-settled principle that aiding and abetting is not a separate substantive offense. See State v. DeVerney, 592 N.W.2d 837, 846 (Minn. 1999) (listing cases establishing this principle); see also State v. Ostrem, 535 N.W.2d 916, 922 (Minn. 1995) (similarly listing cases supporting this principle). Thus, he does not argue that an additional or different offense was charged in the amended complaint. Instead, Gooden argues that the amendment was improper under rule 17.05 because the amendment prejudiced his substantial rights.
Gooden contends that his substantial rights were prejudiced because he was unable to prepare an effective defense against the aiding-and-abetting charges. State v. Alexander, 290 N.W.2d 745, 748 (Minn. 1980) (noting that rule 17.05 seeks to ensure timely notice of charges and fair-trial procedures). The record, however, indicates that Gooden had ample notice that the state was pursuing an aiding-and-abetting theory. The original complaint confirms that count two, first-degree burglary, specifically includes the statutory language for aiding-and-abetting liability and provides a reference to Minn. Stat. § 609.05, subd. 1 (2004), which defines aiding and abetting within the structure of liability for crimes of another. The remaining two counts of first-degree burglary include in the charging language the phrase “either directly or as an accomplice.” Thus Gooden was specifically on notice from the time of the original complaint that the state was proceeding on both a direct and accomplice theory on all charges of which Gooden was convicted except count 7, the fifth-degree assault charge. Therefore, we cannot conclude that the amendment prejudiced Gooden’s ability to present a defense against the burglary charges.
Furthermore, the charges in the original complaint also put Gooden on notice that the state was pursuing both a direct and an accomplice theory with respect to assault. One of the first-degree burglary charges was for entering a building without consent and committing the crime of assault while in the building “either directly or as an accomplice.” Consequently, Gooden was on notice from the time of the issuance of the complaint that the burglary-assault charge was based on an accomplice-liability theory. We therefore cannot see how he would be prejudiced by the amendment to conform the fifth-degree assault charge to include aiding and abetting.
Because Gooden was on notice that the state was pursuing an aiding-and-abetting theory with respect to the burglary and assault charges, we cannot conclude that the amendment prejudiced Gooden’s substantial rights. We therefore conclude that the district court did not abuse its discretion by permitting the amendments.
On a claim of insufficiency of evidence, we review the record in the light most favorable to the verdict to determine if the evidence is sufficient to allow the jury, while acting with due regard for the need to overcome the presumption of innocence by proof beyond a reasonable doubt, to reach its verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). To impose criminal liability for aiding and abetting, the state must show that the person played a knowing role in the commission of the crime and did nothing to thwart its completion. Ostrem, 535 N.W.2d at 924. Mere presence at the place and time of a crime is insufficient. Id. But active participation in the offense’s overt act is not required. State v. Gates, 615 N.W.2d 331, 337 (Minn. 2000). And a person’s conduct before and after an offense may demonstrate criminal intent. Id.
Gooden argues that the evidence was insufficient to support convictions for aiding and abetting because the evidence shows only that he was present, not that he was participating in the offense. Gooden does not challenge the state’s evidence on the specific elements of the crimes or that he was present during the crimes. Instead, he argues that he did not play a knowing role in the crimes.
We conclude, however, that the evidence supports the jury’s determination that Gooden was a knowing participant in the burglary and the assault. Weber testified that Gooden entered the apartment without permission, that Gooden returned about thirty minutes later with two other men, and that they “punched their way” into the apartment. Weber was assaulted while all three men were in the apartment, and Flo testified that she saw all three of the intruders assaulting Weber. Weber testified that he believed that it was Gooden who put the blanket over his head but he was not certain. Flo also testified to Gooden’s direct participation in making her return to her bedroom and remaining with her while Gordon and Jose ransacked Hoyer’s room. This evidence, when viewed in the light most favorable to the conviction, was sufficient to permit the jury to conclude beyond a reasonable doubt that Gooden was a knowing participant in the crimes.
Furthermore, the evidence also demonstrates that Gooden did nothing to thwart completion of the crimes. He did not try to stop Gordon or Jose from “punching” their way inside, from taking money, from threatening Weber with a weapon, or from threatening that “bad things would happen” if Weber or Flo called the police. He chose to leave the apartment with Gordon and Jose after completion of the crimes.
Thus, because a reasonable jury could conclude that Gooden played a knowing role and did nothing to thwart the completion of the crimes, we reject Gooden’s argument that the evidence was insufficient to show that he aided and abetted the crimes. We therefore conclude that the evidence was sufficient to support Gooden’s three convictions for aiding and abetting first-degree burglary and his conviction for aiding and abetting assault.
In a pro se supplemental brief, Gooden argues that it was prosecutorial misconduct for the state to proceed with his trial before trying Mike Gordon, who Gooden contends was the principal offender. Essentially Gooden contends that he was denied a fair trial because his accomplices had not yet been convicted of the crimes. Gooden was not denied a fair trial by the state’s decision to try him first. Minnesota law allows a person to be convicted as an aider and abettor in a crime, even if “the person who directly committed it has not been convicted.” Minn. Stat. § 609.05, subd. 4 (2004). The state therefore did not commit prosecutorial misconduct by proceeding on Gooden’s trial without trying Mike Gordon first.
To prevail on a claim of ineffective assistance of counsel the defendant must show that his attorney’s “representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). “[A]n attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.” State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation omitted). The law recognizes “a strong presumption that counsel’s performance falls within the wide range of reasonable professional assistance.” Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002) (quotation omitted). Issues of trial strategy will not be reviewed for competence. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).
Gooden argues that he received ineffective assistance of counsel because his attorney failed to call Gordon to testify. The record indicates that Gooden’s attorney obtained a two-week continuance to attempt to have Gordon waive his fifth-amendment rights and provide exculpatory testimony. The sentencing transcript also contains a reference to Gordon’s decision not to waive his rights. The record does not provide a basis for determining that Gooden’s attorney acted unprofessionally. Furthermore, the decision of whether or not to call a specific witness is generally considered an issue of trial strategy. Gooden’s disagreement with his attorney about calling Gordon as a witness does not constitute ineffective assistance of counsel. See State v. Berry, 309 N.W.2d 777, 785 (Minn. 1981) (stating that disagreement over trial strategy does not constitute ineffective assistance of counsel).
Because we do not review the defense counsel’s trial strategy for purposes of determining competence and because Gooden has not established that his counsel’s performance was deficient, Gooden has not established a basis for his claim of ineffective assistance of counsel.