State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1837

State of Minnesota,
Respondent,

vs.

Eric Lee Fry,
Appellant.

Filed September 30, 2019
Affirmed in part, reversed in part, and remanded
Klaphake, Judge*

Koochiching County District Court
File No. 36-CR-18-308

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Jeffrey Naglosky, Koochiching County Attorney, International Falls, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Bjorkman, Judge; and
Klaphake, Judge.

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

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U N P U B L I S H E D O P I N I O N
KLAPHAKE, Judge
Appellant Eric Lee Fry challenges his convictions for criminal vehicular operation
(CVO) and fourth-degree d riving while impaired (DWI), arguing that the district court
erred by denying his motion for a directed verdict, abused its discretion by amending the
criminal complaint at trial to charge a different CVO offense , and erred by entering
convictions on both offenses, and that h is trial counsel was ineffective by conceding his
guilt during closing argument. We affirm the district court’s denial of the moti on for a
directed verdict and amendment of the complaint; reverse the DWI conviction and remand
for correction of the warrant of commitment, and decline to address the ineffective -
assistance-of-counsel claim.
D E C I S I O N
Following an erratic driving incident in which Fry drove a group of teenagers around
in his pickup truck and eventually crashed into a gravel pile, injuring two teenagers, Fry
proceeded to trial on two counts of CVO and one count of fourth-degree DWI.1 The CVO
offenses are for violations of Minn. Stat. § 609.2113, subd. 3(2)(iii) (2016) , which is
premised on bodily harm caused by a person negligently operating a motor vehicle while
under the influence of “any combination” of alcohol and a controlled substance. The same
conduct also constitutes CVO if the person is under the influence of only alcohol or only a

1 Fry was also charged with but not convicted of an open-bottle violation under Minn. Stat.
§ 169A.35, subd. 3 (2016).

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controlled substance at the time of the offense. Minn. Stat. § 609.2113, subd. 3(2)(i), (ii)
(2016).
At the close of the state’s case, Fry move d for a directed verdict because the state
had not offered evidence that Fry was under the influence of a controlled substance . A
district court must acquit a defendant of a charged offense at the close of the state’s case -
in-chief “if the evidence is ins ufficient to sustain a conviction of such offense.” State v.
Slaughter, 691 N.W.2d 70, 74 (Minn. 2005) (quoting Minn. R. Crim. P. 26.03, subd. 17(1)).
Whether a defendant should be granted a directed verdict is a question of law subject to de
novo review. State v. McCormick, 835 N.W.2d 498, 506 (Minn. App. 2013), review denied
(Minn. Oct. 15, 2013).
To convict, the state must prove each element of a charged crime beyond a
reasonable doubt. Id. But a complaint may be amended at any time durin g trial, and the
district court did so here by instructing the jury that it could find Fry guilty if he was under
the influence of alcohol at the time of the CVO offenses. See State v. Mickelson , 378
N.W.2d 17, 20 (Minn. App. 1985), review denied (Minn. Jan. 23, 1986). The criminal
rules permit amendment of a complaint “at any time before verdict . . . if no additional or
different offense is charged and if the defendant’s substantial rights are not prejudiced .”
Minn. R. Crim. P. 17.05 . T he district co urt has the discretionary authority to amend a
complaint. State v. Ostrem, 535 N.W.2d 916, 922-23 (Minn. 1995).
The amended complaint did not charge Fry with a new or different offense. The
original CVO charge under Minn. Stat. § 609.2113, subd. 3(2)(ii i), is accomplished if the
offender drives while under the influence of both alcohol and a controlled substance. The

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amended CVO charge under Minn. Stat. § 609.2113, subd . 3(2)(i), is identical to a
subdivision 3(2)(iii) charge, except that it eliminates the requirement that the offender be
under the influence of a controlled substance. The amended complaint does not charge an
“additional or different offense.”
As to the prejudice prong of rule 17.05, Fry also cannot demonstrate that he was
deprived of the opportunity to raise a defense or that his substantial rights were otherwise
affected by amendment of the complaint . He was required to defend against the same
allegation for the alcohol-based charge as the combination-of-substances-based charge that
he inflicted bodily harm while driving negligently under the influence of alcohol. Fry’s
substantial rights were not prejudiced by amendment of the complaint, and the district court
did not abuse its discretion by amending the CVO charge to conform to the evidence
presented at trial. See Ostrem , 535 N.W.2d at 922 -23 ( upholding conviction applying
Minn. R. Crim. P. 17.05 on district court’s amended charge of aiding and abetting burglary
when original complaint charged offender with burglary and theft ); State v. Miller , 352
N.W.2d 524, 525-26 (Minn. App. 1984) (upholding conviction applying Minn. R. Crim. P.
17.05 to permit the state ’s amendment of a complaint to a charge of DWI based on being
in physical control of a vehicle, rather than driving a vehicle). For this reason, as well, the
district court did not err by denying Fry’s motion for a judgment of acquittal. 2

2 We note that the charging process, rather than amendment of pleadings to conform to the
trial evidence, would be a better mechanism to account for the alternative factual scenarios
presented here.

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Fry next argues that the district court erred by convicting him of the CVO offenses
as well as the fourth -degree DWI offens e, because DWI is a lesser included offense of
CVO. This is a question of law subject to de novo review. State v. Cox, 820 N.W.2d 540,
552 (Minn. 2012).
Minn. Stat. § 609.04, subd. 1 (2016), states that an offender may not be convicted
of both a charged crime and an “included offense.” An “included offense” is defined as:
(1) a lesser degree of the same crime; or
(2) An attempt to commit the crime charged; or
(3) An attempt to commit a lesser degree of the same crime; or
(4) A crime necessarily proved if the crime charged were
proved; or
(5) A petty misdemeanor necessarily proved if the misdemeanor
charge were proved.
Minn. Stat. § 609.04, subd. 1, see, e.g., Spann v. State, 740 N.W.2d 570, 573 -74 (Minn.
2007) (defining second-degree intentional murder and first-degree aggravated robbery as
lesser-included offenses of first -degree felony murder). “An offense is ‘necessarily
included’ in a greater offense if it is impossible to commit the greater offense without
committing the lesser offense.” State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006).
Fourth-degree DWI under Minn. Stat. § 169A.20, subd. 1(1) (2016), is necessarily proved
if CVO is proved under Minn. Stat. § 609.2113, subd. 3(2)(i). The CVO offense requires
negligent operation of a vehicle while under the influence of alcohol, and the DWI offense
requires driving, operating, or being in physical control of a vehicle while under the
influence of alcohol. Neither statute defines “under the influence of alcohol,” but the
definitional provisions of the CVO statute reference the DWI statute. See Minn. Stat.
§ 609.2111(e) (2016) (defining “qualified prior driving offense” with reference to Minn.

6
Stat. § 169A.20 (2016)). The offense of fourth-degree DWI is a lesser offense of the CVO
offense in thi s case. See State v. Chaklos , 522 N.W.2d 361, 364 (Minn. App. 1994)
(vacating lesser included DWI offenses in criminal vehicular homicide case on the ground
that DWI convictions constituted lesser included offenses), rev’d in part on other grounds,
528 N.W.2d 225 (Minn. 1995).
“[W]hen the defendant is convicted on more than one charge for the same act the
court [is] to adjudicate formally and impose sentence on one count only.” Spann, 740
N.W.2d at 573 (alterations in original) (quotation omitted). We therefore reverse the entry
of conviction on the DWI offense and remand to the district court to amend the warrant of
commitment. See State v. Pflepsen, 590 N.W.2d 759, 767 (Minn. 1999) (using “the official
judgment of conviction . . . as conclusive evidence of whether an offense has been formally
adjudicated”); State v. Henderson, 890 N.W.2d 739, 745-46 (Minn. App. 2017) (requiring
reversal of conviction and remand for amendment of warrant of commitment when district
court has erroneously convicted on a lesser-included offense).
Finally, Fry argues that he was denied effective assistance of counsel because his
attorney arguably conceded his guilt to the CVO and DWI offenses during closing
argument. When counsel admits a defendant’s guilt without the defendant’s permission,
prejudice to the defendant is presumed, and the case must be retried unless the defendant
has acquiesced to the concession of guilt. Dukes v. State, 621 N.W.2d 246, 254 (Minn.
2001); see McCoy v. Louisiana, 138 S. Ct. 1500, 1511 (2018) (violation of a defendant’s
constitutionally protected autonomy right is structural error “not subject to harmless-error
review”); State v. Provost, 490 N.W.2d 93, 97 (Minn. 1992) (“Admitting a client ’s guilt

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without the client’s consent or acquiescence is deemed ineffective assistance of counsel
and is grounds for a new trial.”), cert. denied, 507 U.S. 929, 113 S. Ct. 1306 (1993). But
when it is unclear from the record whether the defendant acquiesce d to counsel’s
concession of guilt, the proper method for considering the issue is in a postconviction
proceeding where factual determinations can be made regarding whether the defendant
granted his attorney the authority to concede his guilt. State v. Ch ristian, 657 N.W.2d
186, 194 (Minn. 2003); see Dukes, 621 N.W.2d at 254-55 (remanding for postconviction
proceeding when trial counsel did not impliedly concede the defendant’s guilt until closing
argument, whether the defendant acquiesced to counsel’s statements was unclear, and the
defendant’s ineffective-assistance-of-counsel claim was ruled “exactly the type of claim
that needs additional fact -finding before it can be resolved” ). We therefore decline to
reach the merits of Fry’s ineffective-assistance-of-counsel claim.
Affirmed in part, reversed in part, and remanded.