Timothy E. Marx, St. Paul City Attorney, Tara K. Patet, Assistant City Attorney, 500 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

Elsie Mayard, 755 Minnehaha Avenue, St. Paul, MN 55104 (Pro se appellant)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Mansur, Judge.[*]

Elsie Mayard appeals from a judgment of conviction for failure to obey a lawful order. Because we conclude the trial court erred in allowing the state to amend the charge from impeding traffic to failure to obey a lawful order after witnesses were sworn and jeopardy attached because the amendment charged a different offense, we reverse.

D E C I S I O N

Mayard argues the trial court should not have allowed the state to amend the charge from impeding traffic to failure to obey a lawful order. We agree.

Before trial, a court is "relatively free" to allow amendments that charge additional offenses. State v. Bluhm, 460 N.W.2d 22, 24 (Minn. 1990). After the trial begins and jeopardy has attached, a court may allow amendment of a complaint only if no "additional or different offense" is charged and if the amendment does not prejudice substantial rights of the defendant. Minn. R. Crim. P. 17.05. In a bench trial, jeopardy attaches upon the swearing of the first witness. State v. Bouwman, 354 N.W.2d 1, 7 (Minn. 1984). In this case, the trial court allowed the amendment of the charge after the witnesses were sworn, but before the trial court began to hear evidence. Thus, jeopardy did attach, and we must first consider whether the amendment charged an "additional or different offense." There is no dispute regarding whether the amendment charged an "additional offense"--the amendment substituted one offense for another. Thus, the question is whether impeding tnd failure to obey a lawful order are different offenses. We conclude that they are.

First, the two offenses are created by different statutes. See Minn. Stat. § 169.02, subd. 2 (failure to obey a lawful order); Minn. Stat. § 169.15 (impeding traffic). Second, the two offenses involve different elements. See Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982) (amendment changing date of alleged possession of short-barreled shotgun did not change single element of crime to be proven and thus was not barred by Minn. R. Crim. P. 17.05). Third, the offenses could have been based on different conduct. The charge for failure to obey a lawful order could only arise out of conduct occurring after the officer indicated by hand or verbally to Mayard that she should drive straight. However, the impeding traffic charge could have arisen out of conduct occurring before the officer had any communication with her. Thus, we conclude that the trial court should not have allowed the amendment after jeopardy attached because the amendment charged a different offense.

Because of our disposition of this issue, we need not reach the other issues Mayard raises.

Reversed.

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