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State v. Deverney4/15/1999
vidence, the trial court instructed the jury on both. DeVerney objected, arguing that because the indictment did not include the subdivision 2 theory, he had not had an opportunity to prepare a defense.
As the United States Supreme Court has stated: "It is ancient doctrine of both the common law and of our Constitution that a defendant cannot be held to answer a charge not contained in the indictment brought against him." Schmuck v. United States, 489 U.S. 705, 717 (1989). However, there are exceptions to this rule. Specifically,
"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." Minn. R. Crim. P. 17.05; see also Gerdes v. State, 319 N.W.2d 710, 712 (Minn. 1982) (stating that "the matter of allowing amendments to complaints under Minn. R. Crim. P. 17.05 is in the sound discretion of the trial Judge").
While the indictment was never formally amended pursuant to Rule 17.05, the appellant argues that the jury instruction resulted in an impermissible variance. In such a case, we examine the issue using a rule 17.05 analysis. See State v. Ostrem, 535 N.W.2d 916, 922 (Minn. 1995); see also State v. Gisege, 561 N.W.2d 152, 159 (Minn. 1997) (conducting a 17.05 analysis when a conviction is at variance with the indictment).
The first question in a Rule 17.05 analysis is whether the additional vicarious liability instruction resulted in DeVerney being charged with an "additional or different offense." See Minn. R. Crim. P. 17.05; State v. Ostrem, 535 N.W.2d at 922; Gerdes, 319 N.W.2d at 712. In this case, the indictment charged DeVerney with the substantive offense of first-degree murder. The additional instruction did not change the substantive offense; it remained first-degree murder. The only difference between the indictment and the final instruction was that the final instruction included an additional form of aiding and abetting. We have long held that aiding and abetting is not a separate substantive offense and can be added at any point prior to a verdict or finding. See Ostrem, 535 N.W.2d at 923 (stating that " t is undisputed that aiding and abetting is not a separate substantive offense"); State v. Ortlepp, 363 N.W.2d 39, 45 (Minn. 1985); State v. Alexander, 290 Minn. 5, 5-10, 185 N.W.2d 887, 890 (1971); State v. Britt, 279 Minn. 260, 263-65, 156 N.W.2d 261, 263-64 (1968). We have also held that a jury can convict a defendant of aiding and abetting a substantive crime despite the absence of any "aiding and abetting" language in the complaint. See State v. Lucas, 372 N.W.2d 731, 740 (Minn. 1985); State v. DeFoe, 280 N.W.2d 38, 40 (Minn. 1979).
DeVerney argues that he was placed in a situation analogous to that of the defendant in State v. Vorey, 41 Minn. 134, 43 N.W. 324 (1889). However, DeVerney's reliance on Vorey is misplaced. In Vorey, the defendant was charged with rape under one subdivision of the statute (force) and the state apparently sought, and the trial court gave, a second rape instruction based on a different subdivision (fear of bodily harm). Id. We reversed the conviction, stating: " he indictment should charge the acts constituting the alleged rape so as to advise the accused in which one of these different ways he is charged with having committed the crime." Id. The key distinction between this case and Vorey is that rape is a substantive offense, while aiding and abetting is not. The instruction in DeVerney's case did not result in him being charged with an additional or different offense.
The second question is whether DeVerney's substantial rights were prejudice
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