This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-98-1182

State of Minnesota,

Respondent,

vs.

Wolobah Dorley Wenwoi,

Appellant.

Filed April 27, 1999

Affirmed

Shumaker, Judge

Ramsey County District Court

File No. K4-97-3942

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

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, D. Adrian Bryan, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Harten, Judge.

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

SHUMAKER, Judge

Appellant Wolobah Dorley Wenwoi contends that the trial court abused its discretion in denying appellant's motion for continuance of the trial that resulted in his convictions for a controlled substance offense and for obstructing legal process. Because we find no evidence that the trial court abused its discretion, we affirm.

FACTS

On November 25, 1997, two plainclothes St. Paul police officers were on patrol in an unmarked car. As they drove into a parking lot, appellant signaled them from a parked car. The officers interpreted appellant's gesture to be an invitation to them to buy drugs. The officers stopped their car, and appellant approached the driver's side window and asked the officers what they needed. One officer replied that they wanted "100 dollars worth." Appellant began to lean forward and to spit something into his hand. Appellant then appeared to recognize one of the officers, and he was startled. One officer got out of the car and grabbed appellant to prevent him from swallowing any drugs that he might have had in his mouth. During a struggle, a wrapped white object fell from appellant's mouth. A laboratory analysis showed this to be cocaine.

The state initially charged appellant with a third-degree controlled substance crime. Appellant first appeared in court on December 11, 1997, and the presiding judge appointed the public defender to represent him. The next day appellant retained a private attorney from a firm called the Legal Rights Center. Appellant and his private attorney appeared for an omnibus hearing on January 9, 1998.

On February 5, 1998, another attorney from the Legal Rights Center assumed the representation of appellant and appeared on that day for a dispositional conference. The state amended the complaint on February 6, 1998, to charge a fifth-degree controlled substance crime and obstructing legal process.

The court set the trial to begin on February 23, 1998. On that day, appellant's attorney moved for a continuance on grounds that he had no clerical staff and thus could not prepare jury instructions and that he needed more time to verify his client's defense, namely, that he had fried chicken rather than cocaine in this mouth. He also raised an issue about an opportunity to inspect appellant's car.

The judge noted that the attorney had gotten the case on February 5, 1998, and had sufficient time to prepare for trial. The judge also indicated that he would delay opening statements until the next day so as to give the attorney additional preparation time and would allow him to forego the submission of written jury instructions. The judge then denied the motion for continuance.

Testimony began on February 24, 1998. Both sides presented evidence and appellant's attorney thoroughly cross-examined witnesses. The jury found appellant guilty as charged on February 25, 1998. Contending that the trial judge abused his discretion by denying the continuance motion, appellant brings this appeal.

D E C I S I O N

The decision to grant a continuance is vested in the sound discretion of the trial court. State v. Miller, 488 N.W.2d 235, 239 (Minn. 1992). In determining whether the trial court acted within its discretion in denying a motion for continuance, we look to whether the defendant was so prejudiced in preparing or presenting his defense as to "materially affect the outcome of the trial." Id. (quoting State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984)).

Appellant argues that the court's denial of his continuance motion prejudiced him because neither he nor his investigator had an opportunity to inspect the contents of the car appellant was in at the time of the incident. Appellant fails, however, to show why the period of December 12, 1997, to February 23, 1998, during which appellant was represented by the Legal Rights Center, was inadequate for the desired inspection. Appellant further fails to point out what such an inspection might have revealed and how the revealed evidence or information would have affected the outcome of the trial. See Port Auth. of St. Paul v. Harstad, 531 N.W.2d 496, 501 (Minn. App. 1995) (motion for continuance properly denied when there was no showing that additional discovery would have changed result), review denied (Minn. June 14, 1995).

Appellant also argues that his attorney did not have enough time to prepare for trial. The Legal Rights Center had the case from December 12, 1997, through the time of the trial, a period of 21/2 months. The particular trial attorney had the case beginning February 5, 1998, a period of nearly three weeks. Appellant fails to show in what respects these periods of time were inadequate for the legal work necessary to prepare a proper defense. Appellant bears the burden of showing that the court's denial of his motion prejudiced him. State v. Rainer, 411 N.W.2d 490, 495 (Minn. 1987). He has not done so, and, in our review of the record, we find neither prejudice nor abuse of discretion.

Affirmed.