STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1211

State of Minnesota,
Respondent,

vs.

Bradley Charles Wilking,
Appellant.

Filed October 30, 2007

Affirmed in part, reversed in part, and remanded

Wright, Judge

Nicollet County District Court

File No. CR-05-159

John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michael K. Riley, Nicollet County Attorney, Kenneth R. White, Assistant County Attorney, 326 South Minnesota Avenue, St. Peter, MN 56082 (for respondent)

Considered and decided by Stoneburner, Presiding Judge; Toussaint, Chief Judge; and Wright, Judge.

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

WRIGHT, Judge

Appellant challenges his convictions of multiple driving offenses, arguing that the district court (1) abused its discretion by permitting the state to amend its complaint during trial and (2) failed to issue written findings in support of appellant’s convictions. We affirm in part, reverse in part, and remand.

FACTS

Based on conduct occurring on June 25, 2005, appellant Bradley Wilking was charged and, following a bench trial, convicted of gross-misdemeanor third-degree driving while impaired (DWI), Minn. Stat. งง 169A.20, subd. 1(5), 169A.03, subd. 3(1) (2004); misdemeanor disorderly conduct, Minn. Stat. ง 609.72, subd. 1(3) (2004); driving after revocation, Minn. Stat. ง 171.24, subd. 2 (2004); driving without insurance, Minn. Stat. งง 169.797, subd. 3, 65B.48, subd. 1 (2004); driving without a valid motor-vehicle registration, Minn. Stat. ง 168.09, subd. 1 (2004); and possession of an open bottle in a motor vehicle, Minn. Stat. ง 169A.35, subd. 3 (2004).

According to evidence presented in the state’s case-in-chief, Deputy Justin Block observed a motorcycle traveling “at a very high rate of speed”; the driver was wearing a backpack. Deputy Block radioed for assistance from Deputy Joel Polzin, who observed the motorcycle traveling into the city of Nicollet. Deputy Polzin contacted Deputy Marcus Lukes, who checked the motorcycle’s license-plate number and determined that the vehicle registration was expired. Deputy Lukes observed the driver pull into a convenience-store parking lot and subsequently park the motorcycle at a gas pump. Deputy Lukes identified Wilking as the driver, checked his driving record, and determined that Wilking’s driver’s license was revoked because of a 2003 DWI conviction. Wilking admitted to Deputy Lukes that he did not have insurance for the motor vehicle.

Deputies Block and Polzin arrived at the convenience store, where Deputy Block issued Wilking a citation. Wilking yelled profanity and attempted to take back control of the motorcycle. When Wilking was advised that he was under arrest, he became combative, and the deputies forcibly handcuffed him. Deputies Lukes, Block, and Polzin opined that Wilking was under the influence of alcohol and subsequently gave Wilking an implied‑consent advisory and an Intoxilyzer test.

At trial, Wilking waived the Sixth Amendment right to a jury, U.S. Const. amend. VI; Minn. Const. art. I, ง 6, and the Fifth Amendment right to refrain from giving testimony,U.S. Const. amend. V; Minn. Const. art. I, ง 7. Wilking testified that, on the date of the offenses, he was not driving a motorcycle. Rather, he was a passenger in Jared Lind’s car while in possession of a backpack containing a bottle of Powerade mixed with alcohol. The following colloquy occurred during cross-examination:

[Prosecutor]: So you were carrying that unsealed bottle while you were in a motor vehicle; is that correct? Is that what you’re telling us, that you took that Powerade and put it in your backpack and the Powerade had alcohol in it?

[Wilking]: I may have.

[Prosecutor]: Either you did or you didn’t . . . .

[Wilking]: Do I have to answer this?

[Prosecutor]: Yes, you do. You’re on the stand. You made yourself available for testimony. Did you have an open bottle of alcohol in your backpack?

[Wilking]: I guess I did.

[Prosecutor]: And you did that in a motor vehicle [ ]?

[Wilking]: Yeah.

The state then moved to amend the complaint to add an open-bottle charge. Minn. Stat. ง 169A.35, subd. 3. The district court granted the motion.

Approximately two weeks after trial, the district court advised the parties: “I’m going to find that the [s]tate proved its case beyond a reasonable doubt, and that the defendant was guilty in this matter.” The district court subsequently imposed a sentence for each offense. This appeal followed.

D E C I S I O N

Wilking argues that the district court committed reversible error when it permitted the state to amend the complaint after the commencement of his trial. We review the district court’s decision permitting an amendment to a complaint for an abuse of discretion. Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982).

Before trial, the district court is “relatively free to permit amendments to charge additional offenses . . . provided the [district] court allows continuances where needed.” State v. Bluhm, 460 N.W.2d 22, 24 (Minn. 1990). But after the trial has begun and jeopardy has attached, an amendment of the complaint may be permitted at any time before the verdict or finding “if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” Minn. R. Crim. P. 17.05; see State v. Smith, 313 N.W.2d 429, 430 (Minn. 1981) (stating that additional or different offenses may not be added once jeopardy has attached). In a bench trial, jeopardy attaches when the first witness is sworn and the district court begins to receive evidence. State v. Caswell, 551 N.W.2d 252, 254-55 (Minn. App. 1996).

It is undisputed that the district court granted the state’s motion to add the open-bottle charge not only after the first witness was sworn, but also after Wilking began to testify for the defense. It also is undisputed that Wilking did not object to amendment of the complaint at trial. Ordinarily, an appellant who fails to object waives the right to challenge the district court’s decision on appeal. State v. Bauer, 598 N.W.2d 352, 363 (Minn. 1999). To overcome such a waiver, the appellant must demonstrate that the district court committed plain error. Minn. R. Crim. P. 31.02 (stating that appellate court may consider plain error affecting substantial rights even if such error was not raised before district court); State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (holding that appellate court has discretion to consider an error not objected to if such error is plain and affects substantial rights). Plain error exists when the district court commits an obvious error that affects the defendant’s substantial rights. State v. Ihle, 640 N.W.2d 910, 916‑17 (Minn. 2002). Such an error affects the defendant’s substantial rights if, as here, it was “prejudicial and affected the outcome of the case.” Id. (stating that error is prejudicial if there is “reasonable likelihood” that error “had a significant effect on the verdict of the jury” (quotation omitted)).

Under rule 17.05, “[a] ‘different offense’ is charged if an amendment affects an ‘essential element’ of the charged offense.” State v. Guerra, 562 N.W.2d 10, 12 (Minn. App. 1997); cf. Gerdes, 319 N.W.2d at 712 (approving amendment during trial when it changed only date of possession of a firearm, which did not change any element of offense).

The original complaint charged Wilking with gross-misdemeanor DWI, misdemeanor disorderly conduct, driving after revocation, driving without insurance, and driving without a valid motor-vehicle registration. Although the charge of possessing an open bottle in a motor vehicle has elements that are different from each of the offenses originally charged, as an alcohol-related offense, the open-bottle charge is most closely related to the DWI charge. We, therefore, limit our comparison of the elements to these two offenses. The elements of the DWI charge are that the defendant possessed an alcohol concentration of 0.10 or more within two hours after driving or being in physical control of a motor vehicle. Minn. Stat. ง 169A.20, subd. 1(5) (2004). In contrast, the elements of the open-bottle charge are that the defendant had an open container of an alcoholic beverage while in a private motor vehicle. Minn. Stat. ง 169A.35, subd. 3 (2004). Clearly, the essential elements of the two offenses differ. Accordingly, the amendment impermissibly charged Wilking with a “different offense.”

The amendment also violates rule 17.05’s proscription against an amendment that prejudices a defendant’s substantial rights. The rule is intended “‘to protect against confusing the jury, violating due process notions of timely notice, and adversely affecting the trial tactics of the defense.’” Guerra, 562 N.W.2d at 13 (quoting State v. Alexander, 290 N.W.2d 745, 748 (Minn. 1980)). When determining whether an amendment prejudices a defendant’s substantial rights, we consider whether the defendant had a reasonable opportunity to prepare for and defend against the charge. See State v. Gisege, 561 N.W.2d 152, 159 (Minn. 1997) (recognizing that opportunity to prepare defense is a substantial right). Such preparation includes deciding whether to waive the constitutional right to a trial by jury and whether to testify in one’s own defense. Cf. Caswell, 551 N.W.2d at 255-56 (including jury trial among defense’s potential trial tactics).

The state’s argument that the amendment did not prejudice Wilking’s substantial rights because he had a reasonable opportunity to prepare and defend against the open-bottle charge is wholly unpersuasive. The amendment occurred after the state had rested its case. Wilking was testifying on cross-examination in the midst of the case for the defense when the state’s motion to amend was granted. Because the amendment charged Wilking with a different offense after jeopardy had attached, Wilking was deprived of the constitutional right to receive timely notice of this charged offense. U.S. Const. amend. VI; Minn. Const. art. I, ง 6. Without timely notice, Wilking also was precluded from knowingly and intelligently waiving the right not to testify in his own defense. U.S. Const. amends. V, XIV ง 1; Schneckloth v. Bustamonte, 412 U.S. 218, 238, 93 S. Ct. 2041, 2053 (1973); see also Kastigar v. United States, 406 U.S. 441, 444-445, 92 S. Ct. 1653, 1656 (1972) (describing Fifth Amendment privilege against self-incrimination as protecting against “disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used”). Had the amendment occurred before trial, Wilking in all likelihood would have prepared his defense so as not to admit committing one of the charged offenses. Such adverse effects clearly establish that the open-bottle amendment prejudiced Wilking’s substantial rights.

The district court committed plain error when it granted the state’s motion to amend the complaint during trial. Accordingly, we reverse Wilking’s conviction of possessing an open bottle in a motor vehicle.

II.

Wilking also argues that the district court’s failure to prepare written findings requires us to reverse his convictions or, alternatively, to remand to the district court for findings.

In a case tried without a jury, . . . [t]he [district] court, within 7 days after the general finding in felony and gross misdemeanor cases, shall in addition specifically find the essential facts in writing on the record. In misdemeanor and petty misdemeanor cases, such findings shall be made within 7 days after the filing of the notice of appeal. If an opinion or memorandum of decision is filed, it is sufficient if the findings of fact appear therein. If the court omits a finding on any issue of fact essential to sustain the general finding, it shall be deemed to have made a finding consistent with the general finding.

Minn. R. Crim. P. 26.01, subd. 2. The purpose of written findings is to aid an appellate court in reviewing a conviction resulting from a bench trial. State v. Scarver, 458 N.W.2d 167, 168 (Minn. App. 1990). Specific findings are required, but these findings may be “gleaned from comments from the bench” as long as they “afford a basis for intelligent appellate review.” Id. (quoting United States v. Pinner, 561 F.2d 1203, 1206 (5th Cir. 1977)). Conclusory oral statements by the district court are not an adequate substitute for written findings. See id. (reversing district court when its findings were “devoid of any facts upon which this court can conduct review”). Here, the district court did not submit written findings. Rather, at the February 7, 2006 hearing, the district court stated on the record, “I’m going to find that the [s]tate proved its case beyond a reasonable doubt, and that the defendant was guilty in this matter.”

If appealing a misdemeanor conviction, a defendant “must expressly advise the trial judge of the need to provide a full set of written factual findings.” State v. Oanes, 543 N.W.2d 658, 663 (Minn. App. 1996). Wilking does not assert, nor does our review of the record demonstrate, that he informed the district court of the need to prepare written findings on the misdemeanor offenses. Thus, contrary to Wilking’s argument, the district court’s omission of specific findings with regard to Wilking’s misdemeanor offenses was not erroneous without express notification by Wilking of the need for written factual findings. Accordingly, Wilking’s challenge to the misdemeanor convictions of disorderly conduct, driving after revocation, driving without automobile insurance, and driving without a valid motor-vehicle registration is unavailing.

Unlike the requirement for misdemeanor offenses, the written-findings requirement for a gross misdemeanor is governed exclusively by rule 26.01, subdivision 2, which does not have a notice provision. The district court failed to make written findings of the essential facts supporting Wilking’s conviction of gross-misdemeanor DWI within seven days after the general finding of guilt. Minn. R. Crim. P. 26.01, subd. 2. And the trial and sentencing transcripts are devoid of oral findings of fact. We, therefore, remand to the district court for specific findings supporting Wilking’s gross-misdemeanor DWI conviction. See State v. Taylor, 427 N.W.2d 1, 5 (Minn. App. 1988) (remanding to district court for written findings supporting felony convictions under rule 26.01 because “[a]ny other interpretation of the rule would . . . render the rule meaningless, and we will not abrogate the [district] court’s function by substituting our own written findings”), review denied (Minn. Sept. 28, 1988).

We reject Wilking’s claim that the district court’s failure to prepare written findings requires reversal of his gross-misdemeanor conviction. Wilking analogizes the written-findings requirement of rule 26.01, subdivision 2, to the requirement that a district court make findings supporting the reasons for a sentencing departure in felony cases set forth in rule 27.03, subdivision 4(C). Because both rules are designed to ensure meaningful appellate review, Wilking argues, the appropriate remedy for violating rule 26.01, subdivision 2, is reversal, consistent with the remedy for violating rule 27.03, subdivision 4(C). See State v. Williams, 361 N.W.2d 840, 844 (Minn. 1985) (stating rules governing review of sentencing departure). Wilking’s argument would require us to overlook an important distinction between rule 26.01, subdivision 2, and rule 27.03, subdivision 4(C). Rule 26.01, subdivision 2, has a savings clause, permitting an implied finding consistent with the general finding of guilt “[i]f the court omits a finding on any issue of fact essential to sustain the general finding.” By contrast, rule 27.03, subdivision 4(C), does not have an analogous provision that expressly permits implied findings supporting the district court’s decision to depart from the presumptive guidelines sentence. Moreover, if we accept Wilking’s argument, we would abandon our longstanding precedent for remedying the erroneous omission of written findings, Taylor, 427 N.W.2d at 5, which we decline to do.

“[T]he task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court.” Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987). The function of this court “is limited to identifying errors and then correcting them.” Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). In the absence of reversal as a remedy established by supreme court jurisprudence or the express terms of Minn. R. Crim. P. 26.01, subd. 2, we decline to extend existing law in this manner.

Affirmed in part, reversed in part, and remanded.