This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).





State of Minnesota,



Carol Ann Alvarado,

Appellant (C4-97-1404),

Alejandro Alvarado,

Appellant (C6-97-1405).

Filed April 14, 1998


Schumacher, Judge

Renville County District Court

File No. K99792, K09793

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, Debra L. Weiss, Certified Student Attorney, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Thomas J. Simmons, Renville County Attorney, Blair E. Younger, Special Assistant County Attorney, 801 East Lincoln Avenue, Olivia, MN 56277 (for respondent)

John E. Mack, Mack & Daby P.L.L.P., 26 Main Street, Post Office Box 302, New London, MN 56273 (for appellants)

Considered and decided by Shumaker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.



Appellants Carol Ann Alvarado and Alejandro Alvarado challenge their convictions of criminal damage to property in the first degree, arguing the circumstantial evidence presented at trial was insufficient to prove beyond a reasonable doubt that they were guilty of the crime charged and that the trial court erred in instructing the jury on aiding and abetting. We affirm


According to the state, before the Alvarados moved out of their apartment they spilled motor oil on the side of the refrigerator and the carpet, damaged the stove, spray painted the walls and the radiator, and threw trash all over the floors. Damages totaled $3,070.34. On the morning of February 7, 1997, paint fumes and scratching noises were coming from the Alvarados' apartment. The state claims the Alvarados were, in fact, still at the apartment on that date because Carol Alvarado called the tenant next door and explained how the building manager "was going to receive a big surprise."

The Alvarados deny causing any damage to the apartment. They claim that they moved most of their belongings out of the apartment on February 6, 1997. According to the Alvarados, they were out of the apartment by 9:30 a.m. on February 7.

The Alvarados requested a joint trial. At the close of the state's case-in-chief, it made a motion to amend the complaint to include a charge of aiding and abetting. The court granted the state's motion, and at the close of the trial, instructed the jury on aiding and abetting, as well as criminal damage to property.

The jury convicted the Alvarados of first-degree criminal damage to property in violation of Minn. Stat. § 609.595 subd. 1(3) (1996). This appeal followed.


1. On review, when the challenge is sufficiency of the evidence, this court must view the evidence in the light most favorable to the verdict and determine whether the evidence was sufficient to permit the trier of fact to reach the verdict it did. State v. Atkins, 543 N.W.2d 642, 646 (Minn. 1996). A stricter standard of review is warranted, however, when a conviction is based solely on circumstantial evidence. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994). In those cases, the circumstances must form "a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt." Id. (quoting State v. Wahlberg, 296 N.W.2d 408, 411 (Minn. 1980)).

The evidence in this case formed a chain from which the jury could have concluded, beyond a reasonable doubt, that the Alvarados were guilty of criminal damage to property in the first-degree. Testimony establishes that they were at their apartment on February 7, 1997, even though they may have been gone for a short time that afternoon. Regardless, evidence shows that the damage could have been caused prior to February 7, 1997. Carol Alvarado's own testimony establishes that they were cleaning a carburetor in the apartment, which would explain how the motor oil got all over the floor. A neighboring tenant also testified that she could smell paint coming from the Alvarados' apartment on February 7. The phone call Carol Alvarado made to the neighbor explaining that the apartment building manager was in for a surprise is also incriminating. Finally, according to the officer sent to investigate, there was no sign of a forced entry. The officer also testified that he investigated a break-in that occurred at the Alvarados' apartment one month earlier, but at that time there was no spray paint on the walls.

Contrary to the state's version of events, the Alvarados contend the evidence shows that they were not at the apartment on Feb. 7, 1997, so they could not possibly have caused the damage. Nevertheless, simply because the Alvarados offer a plausible alternative explanation of what occurred does not compel the factfinder to accept the explanation. See id. at 800 (jury is free to question defendant's credibility and has no obligation to believe defendant's story).

In this case, the jury's determination rested on the credibility of the witnesses and the weight given to their testimony. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997) (jury determines witness credibility); see also Atkins, 543 N.W.2d at 646 (jury is free to believe state's witnesses and disbelieve any contrary evidence). The jury in this case had the opportunity to hear the Alvarados' testimony, as well as other defense witnesses, and determine weight and credibility. The jury chose to disbelieve the Alvarados' version of the events and give credit to the state's witnesses.

2. The Alvarados' also argue that the prosecution should not have been permitted to amend its complaint to include an "aiding and abetting theory." At the close of the state's case in chief, the state moved to amend the complaint in order to charge aiding and abetting. See Minn. Stat. § 609.05 (1996) (liability for crimes of another). The trial court granted the state's motion based on State v. Ostrem, 535 N.W.2d 916, 922 (Minn. 1995).

The law does not require that an indictment charge aiding and abetting before the jury may be instructed on that particular offense. United States v. Lincoln, 925 F.2d 255, 256 (8th Cir. 1991). Regardless, a trial court has discretionary authority to allow the prosecution to amend a complaint. Ostrem, 535 N.W.2d at 922. Minn. R. Crim. P. 17.05 provides:

The court may permit an indictment or complaint to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

"It is undisputed that aiding and abetting is not a separate substantive offense." Ostrem, 535 N.W.2d at 922. Here, it was not necessary for the original complaint to charge the Alvarados with aiding and abetting because it is not an additional offense. Furthermore, the Alvarados' rights were not prejudiced. In order to establish prejudice, they must show the instruction added or charged a different offense. Id. at 923. As previously stated, aiding and abetting is not an additional offense.

The sole purpose of the instruction was to inform the jury that they could convict both the Alvarados if they believed one of the two committed the crime, while the other aided and abetted the crime. The Alvarados' presence, companionship, and conduct before, during, and after the offense clearly support the jury instruction. Because aiding and abetting is not a separate offense and the Alvarados' rights were not prejudiced, the trial court did not abuse its discretion by giving the additional instruction.