This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Raymond Sundstrom,


Filed June 1, 1999


Foley, Judge[*]

Hennepin County District Court

File No. 97-038684

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Ctr., Minneapolis, MN 55487 (for respondent)

Joseph Margulies, 215 Pillsbury Center S., 20 S. Sixth St., Minneapolis, MN 55402 (for appellant)

Considered and decided by Amundson, Presiding Judge, Anderson, Judge, and Foley, Judge.


FOLEY, Judge Appellant Raymond Sundstrom appeals from his conviction for theft by swindle pursuant to Minn. Stat. § 609.52, subd. 2(4) (1996). Because we find the trial court constructively amended the complaint after the submission of the evidence, prejudicing Sundstrom's substantial rights to notice and an opportunity to prepare a defense, we reverse.


In the spring of 1995, appellant Raymond Sundstrom met Catherine Hauser at a bar in St. Paul where she was employed. Over the following year, they became acquainted and Hauser learned Sundstrom owned a business called Farbarth Corporation.

In October 1996, Sundstrom told Hauser about a new business venture he was involved in with a company named SophTeck. Sundstrom offered to let Hauser become involved in the venture.

Hauser agreed to purchase a 24 percent share of SophTeck and a 5 percent share of Farbarth for $10,000. Sundstrom signed a promissory note and issued a receipt to Hauser. Under the terms of the agreement, Sundstrom would keep the money for six months, after which time he would return the investment to Hauser if she was not satisfied with the arrangement.

At trial, Hauser testified Sundstrom misrepresented the companies' earnings, properties, financial and corporate history, and his own wealth. She also alleged Hauser misrepresented the assets available to ensure she would be repaid her investment. Sundstrom contends he and Hauser only discussed the companies' future potential.

Following Hauser's purchase of the shares, Sundstrom left town on a business trip and offered to let Hauser use the Mercedes he had been driving. Hauser accepted the offer. The following day, Hauser began to have second thoughts about her investment, and informed Sundstrom that she needed her money back. Sundstrom agreed to refund the money if Hauser would return the Mercedes.

Hauser and Sundstrom agreed to meet, but Hauser did not show up at the arranged meeting time and later refused to speak to Sundstrom. Hauser testified she declined to meet Sundstrom because the requested meeting was late at night and she was following the advice of her counsel who expressed concern for her safety.

Sundstrom was subsequently charged with theft by swindle. The complaint listed the offense as follows:


MINN. STAT. 1996 § 609.52, SUBD. 2(4), SUBD. 3(2)

PENALTY: 0-10 YEARS AND/OR $20,000

That on or about October 8, 1996, in Hennepin County, Minnesota, RAYMOND EDGAR SUNDSTROM obtained U.S. currency, moveable property, of a value in excess of Two Thousand Five Hundred Dollars ($2,500), from Catherine Hauser, by swindling her using artifice, trick, device, or other means and with intent to permanently deprive Catherine Hauser of possession of the property.

During voir dire, the trial court read the charge to the jury as it was alleged in the complaint. The defense, the prosecutor, and the trial court appear to have proceeded until the close of evidence under the belief that "intent to permanently deprive" was an element of the state's case.

In her opening statement, defense counsel conceded both that Sundstrom obtained the money from Hauser, and that he intended to keep Hauser's money for a six-month period. She argued, however, that Sundstrom was not guilty because he had not intended to permanently deprive Hauser of the money as the state alleged.

At the close of evidence, the trial court declined to instruct the jury with the "intent to permanently deprive" language in the original complaint. Instead, the trial court instructed the jury based on criminal jury instruction 16.08. It instructed the jury they could find Sundstrom guilty of the crime if they determined he obtained the money by swindle with the "intent to keep" the money, rather than having to find "an intent to permanently deprive" as alleged in the complaint. Defense counsel objected to this instruction.

The day after the case was submitted to the jury, they sent a note to the trial court asking for a clarification of the jury instructions. The note asked if intent applied to the desire to swindle or if it applied to the desire not to return the money after the swindle. Defense counsel again requested the "intent to permanently deprive" language be included in the jury instructions. The trial court denied the request and referred the jury to the originally submitted instructions. The jury returned a guilty verdict. Sundstrom brought the instant appeal, alleging the trial court erred when it refused to instruct the jury in the language of the complaint, and the prosecutor's comments about the victim's testimony and credibility were improper comments on Sundstrom's election not to testify.


Sundstrom was charged with theft by swindle pursuant to Minn. Stat. § 609.52, subd. 2(4) (1996), which provides:

Whoever does any of the following commits theft and may be sentenced as provided in subdivision 3:

* * * *

(4) by swindling, whether by artifice, trick, device, or any other means, obtains property or services from another person[.]

At the close of the evidence the trial court instructed the jury pursuant to 10 Minnesota Practice CRIMJIG 16.08 (1990) as follows:

The elements of theft are:

First, Raymond Sundstrom obtained the possession of $10,000.

Second, Mr. Sundstrom acted with the intention of keeping the $10,000 and he knew or believed the $10,000 was the property of Catherine Hauser.

Third, Mr. Sundstrom's act was swindle.

On appeal, Sundstrom alleges the trial court violated his Sixth and Fourteenth Amendment rights and Minn. R. Crim. P. 17.05 by instructing the jury pursuant to CRIMJIG 16.08, rather than the allegation in the complaint. According to Sundstrom, the court's instruction relieved the state of its obligation to prove the intent to "permanently deprive" element of the charged offense and constructively amended the complaint in violation of Minn. R. Crim. P. 17.05.

A criminal complaint may be amended at any time before the 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. Rule 17.05 has been interpreted to apply once a trial has started. State v. Alexander, 290 N.W.2d 745, 748 (Minn. 1980).

The policies underlying rule 17.05 are "to protect against confusing the jury, violating due process notions of timely notice, and adversely affecting the trial tactics of the defense." Id. Its focus is on prejudicial effect, not procedural regularity. See State v. Caswell, 551 N.W.2d 252, 255 (Minn. App. 1996) ("[A] prosecutor cannot sidestep the requirements of rule 17.05 simply by moving to charge additional violations, rather than by moving to amend the original complaint."). Consistent with the rule's purpose, we have held:

[W]hen the record demonstrates that a defendant is confronted with [a different or] an additional charge after trial has begun, such charge constitutes a constructive amendment of the complaint and must comply with the requirements of Minn. R. Crim. P. 17.05.

State v. Guerra, 562 N.W.2d 10, 13 (Minn. App. 1997). "A `different offense' is charged if an amendment affects an `essential element' of the charged offense." Id. (citations omitted).

In the present case, the complaint charged Sundstrom with the intent to permanently deprive, but the jury instruction only required that Sundstrom acted with the intention of keeping the money. The deletion of the language "permanently deprive" from the jury instructions altered the intent element of the offense, an essential element. We, therefore, conclude the complaint was constructively amended.

The state's argument that the complaint was not amended because the elements of theft by swindle are accurately set out in CRIMJIG 16.08 and Minnesota case law misses the issue. The defendant receives notice of the offense from the language in the complaint, not the language in the statute. See State v. Owens, 268 Minn. 321, 325, 129 N.W.2d 284, 287 (1964) (holding the offense charged is determined by facts alleged rather than name by which it is designated).

Also, the state's argument that the "permanently deprive" language is irrelevant surplusage is undermined by the theft statute itself. In some sections of the theft statute, the legislature utilized the "permanently deprive" element while in others it did not. Compare Minn. Stat. § 609.52, subd. 2(1), (2) (1996) (requiring an intent to "deprive the owner permanently of the possession of the property"), with Minn. Stat. § 609.52 subd. 2(4), (6) (1996) (leaving out the element of intent to permanently deprive). It must be assumed the legislature's decision to add the "permanently deprive" language to some theft statutes and not to others was a deliberate decision to require different levels of proof for different offenses. See State v. Orsello, 554 N.W.2d 70, 75-76 (Minn. 1996) (stating statutory construction canons require court to give effect to each word in a statute to avoid an interpretation characterizing any portion of the statute as surplusage).

The trial court's constructive amendment of the complaint also prejudiced Sundstrom's substantial right to notice and an opportunity to prepare a defense. See State v. Gisege, 561 N.W.2d 152, 159 (Minn. 1997) (recognizing the opportunity to prepare a defense is a substantial right). The complaint charged Sundstrom with intent to permanently deprive Hauser of $10,000. Although the "permanently deprive" language was not part of the statute, the complaint including this language was read to the jury at the beginning of trial. Sundstrom prepared and put on a defense based on the theory that he intended to keep the money for a period of time, but did not intend to permanently deprive Hauser of the money. The jury listened to defense counsel concede Sundstrom intended to keep the money for a period of time. Then the court instructed the jury they could convict Sundstrom without finding he intended to permanently deprive Hauser of the money.

Following submission of the case, the jury sent a note to the court stating:

One: Does intent apply to the desire to swindle; Or two: Does intent apply to desire to not return the money after the swindle. Could we hear clarification of the section, intent defined.

This note indicates the jury was confused regarding the necessary intent to convict Sundstrom.

In sum, we find that the lack of notice and opportunity to prepare a defense, the adverse effect on Sundstrom's trial strategy, and the confusion of the jury all demonstrate the amendment to the complaint after the submission of the evidence prejudiced Sundstrom's substantial rights. See Guerra, 562 N.W.2d at 14 (citing these factors in holding defendant's substantial rights were prejudiced when the complaint initially charging possession of stolen shotguns was constructively amended midtrial to charge possession of stolen handguns on a different date).

Because we find the district court constructively amended the complaint in violation of Sundstrom's substantial rights, we need not consider whether the prosecutor's comments violated Sundstrom's Fifth Amendment protection against compulsory testimony.


[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.