                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-0701


                                 State of Minnesota,
                                     Respondent,

                                         vs.

                               Antonio Joseph Deluney,
                                     Appellant.


                                 Filed May 11, 2015
                                      Reversed
                                 Halbrooks, Judge


                           Hennepin County District Court
                             File No. 27-CR-13-23046

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Susan L. Segal, Minneapolis City Attorney, Paula J. Kruchowski, Assistant City
Attorney, Minneapolis, Minnesota (for respondent)

Mary F. Moriarty, Hennepin County Public Defender, Rebekah M. Murphy, Assistant
Public Defender, Minneapolis, Minnesota (for appellant)

      Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and

Stoneburner, Judge.




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                         UNPUBLISHED OPINION

HALBROOKS, Judge

       Appellant challenges his conviction of disorderly conduct, arguing that the district

court abused its discretion by (1) allowing the state to amend the disorderly conduct

charge under the state statute to disorderly conduct under the Minneapolis city ordinance

and (2) denying appellant’s motion to strike a juror for cause. Because we conclude that

the district court abused its discretion by granting the state’s motion to amend the charges

after the jury trial had commenced, we reverse.

                                         FACTS

       On May 29, 2013, Minneapolis police officers responded to a 911 call reporting an

assault. Upon arrival, the officers spoke with J.W., who stated that appellant Antonio

Joseph Deluney became upset over the amount of money he was paid for his work, began

yelling, and punched J.W. The officers observed swelling around J.W.’s right eye. The

state charged Deluney with misdemeanor fifth-degree assault in violation of Minn. Stat.

§ 609.224, subd. 1(2) (2012), and disorderly conduct in violation of Minn. Stat. § 609.72,

subd. 1(3) (2012). The state later filed an amended complaint enhancing the assault

charge to a gross misdemeanor pursuant to Minn. Stat. § 609.224, subd. 2(b) (2012),

because Deluney had a previous qualified domestic-violence-related-offense conviction

within three years.

       At trial, the state called J.W., the 911 dispatcher, and the responding police

officers.   After the state rested, Deluney moved the district court for judgment of

acquittal, arguing that there was insufficient evidence to convict him of disorderly


                                             2
conduct or assault. In response, the state moved to amend the disorderly conduct charge

under Minn. Stat. § 609.72 (2012) to disorderly conduct under Minneapolis, Minn., Code

of Ordinances (MCO) § 385.90 (2012). Deluney objected, arguing that the proposed

amended offense was different from the one charged and that his rights would be

substantially affected if the amendment was allowed. The district court granted the

state’s motion to amend the charge pursuant to Minn. R. Crim. P. 17.05, finding that the

amended charge did not constitute a different offense.

      Deluney exercised his right to testify. After he testified, a juror reported an

incident of possible juror misconduct to the district court. Deluney moved for a mistrial

due to juror misconduct or, in the alternative, to strike the juror from the panel. The

district court denied both motions. Following deliberation, the jury acquitted Deluney of

fifth-degree assault, but found him guilty of disorderly conduct.      The district court

sentenced Deluney to 90 days in the workhouse, staying 79 days for one year and placing

him on probation. This appeal follows.

                                    DECISION

      After a jury is sworn and jeopardy attaches, amendments to charges are governed

by rule 17.05. State v. Caswell, 551 N.W.2d 252, 254 (Minn. App. 1996). A district

court may not allow the state to amend a complaint unless “no additional or different

offense is charged and . . . the defendant’s substantial rights are not prejudiced.” Minn.

R. Crim. P. 17.05. We review a challenge to an amendment to a complaint under rule

17.05 for an abuse of discretion. State v. Bakdash, 830 N.W.2d 906, 916 (Minn. App.

2013), review denied (Minn. Aug. 6, 2013).


                                             3
       Here, after the state rested, the prosecutor moved the district court to amend the

disorderly conduct charge under Minn. Stat. § 609.72 to disorderly conduct under MCO

§ 385.90. The motion to amend was based on an erroneous view of the law. It appears

from the transcript that both parties believed that Minn. Stat. § 609.72 required proof that

Deluney disturbed the peace of more than one person, while MCO § 385.90 only required

proof that Deluney disturbed the peace of one person. Deluney argued that judgment of

acquittal was appropriate because disorderly conduct under the statute required proof that

his conduct alarmed or angered “others” and “[w]hat we had here was a two-person

dispute.” In response, the prosecutor moved to amend, arguing that the district court

should grant its motion because the ordinance “only requires that one person’s

peace . . . be disturbed.”

       On appeal, both parties now acknowledge that the rules of statutory interpretation

provide that singular terms include the plural and plural terms include the singular. See

Minn. Stat. § 645.08(2) (2014) (“[T]he singular includes the plural; and the plural, the

singular.”); MCO § 3.90 (2014) (“[T]he use of either singular or plural number in this

Code shall include the other number.”). Minnesota courts have consistently held that

disorderly conduct under the statute criminalizes conduct directed against one person.

State v. Zais, 805 N.W.2d 32, 40 n.4 (Minn. 2011).

       The parties have refocused the issue on appeal to whether the ordinance is a lesser-

included offense of the statute and therefore not a different offense. Usually, we “will

not decide issues which were not raised before the district court,” but we may “deviate

from this rule when the interests of justice require consideration of such issues and doing


                                             4
so would not unfairly surprise a party to the appeal.” Roby v. State, 547 N.W.2d 354, 357

(Minn. 1996). Because we conclude that the amended charge constituted a different

offense that prejudiced Deluney’s substantial rights, we address the parties’ new

arguments on appeal.

Different Offense

       “A ‘different offense’ is charged if an amendment affects an ‘essential element’ of

the charged offense.” State v. Guerra, 562 N.W.2d 10, 13 (Minn. App. 1997). But a

“lesser-included offense” is not a “different offense.” State v. Lory, 559 N.W.2d 425,

428-29 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997). “A lesser offense is

necessarily included in a greater offense if it is impossible to commit the latter without

also committing the former.” Id. at 428; see also Minn. Stat. § 609.04, subd. 1(4) (2014)

(defining a lesser-included offense as “[a] crime necessarily proved if the crime charged

were proved”). Courts “must look at the statutory definitions rather than the facts in a

particular case to determine if the lesser offense is necessarily included.” State v. Gayles,

327 N.W.2d 1, 3 (Minn. 1982).

       The Minnesota disorderly conduct statute provides:

              Whoever does any of the following in a public or private
              place, . . . knowing, or having reasonable grounds to know
              that it will, or will tend to, alarm, anger or disturb others or
              provoke an assault or breach of the peace, is guilty of
              disorderly conduct, which is a misdemeanor:
                      ....
                      (3) engages in offensive, obscene, abusive, boisterous,
              or noisy conduct or in offensive, obscene, or abusive
              language tending reasonably to arouse alarm, anger, or
              resentment in others.



                                             5
Minn. Stat. § 609.72, subd. 1.

       The city ordinance provides:

              No person, in any public or private place, shall engage in, or
              prepare, attempt, offer or threaten to engage in, or assist or
              conspire with another to engage in, or congregate because of,
              any riot, fight, brawl, tumultuous conduct, act of violence, or
              any other conduct which disturbs the peace and quiet of
              another save for participating in a recognized athletic contest.

MCO § 385.90.

       The state argues that the amendment of the charge from the statute to the

ordinance only eliminates the “knowingly” element, which makes the ordinance a lesser-

included offense and, therefore, a permissible amendment under rule 17.05. Deluney

contends that the ordinance is not a lesser-included offense because it is possible to

commit disorderly conduct under the statute without committing disorderly conduct

under the ordinance. We agree.

       To prove disorderly conduct under the city ordinance, the state must prove that the

defendant’s conduct disturbed the peace and quiet of another. MCO § 385.90. To prove

disorderly conduct under the state statute, the state must prove that the defendant knew or

had reason to know that his conduct would reasonably tend to arouse alarm, anger, or

resentment in others. Minn. Stat. § 609.72, subd. 1; see also Minn. Stat. § 609.02, subd.

9(2) (2012) (“‘Know’ requires only that the actor believes that the specified fact exists.”).

If a defendant knows that his conduct could reasonably tend to arouse alarm, anger, or

resentment in others—but does not in fact have the effect of disturbing another’s peace

and quiet—the defendant would be guilty under the state statute and not guilty under the



                                             6
city ordinance. Compare Zais, 805 N.W.2d at 39-40 (“The statute does not require that

‘others’ are actually affected, but does contemplate that such a result could occur as a

consequence of the disorderly conduct itself.”), with State, City of Minneapolis v. Lynch,

392 N.W.2d 700, 704-05 (Minn. App. 1986) (relying on evidence that “the confrontation

between appellant and the police” drew a crowd and that “the officers testified that

appellant’s language had the effect of inciting that crowd” to sustain a conviction of

disorderly conduct under the city ordinance).1      Therefore, it is possible to commit

disorderly conduct under the state statute without also committing disorderly conduct

under the city ordinance. “If a person can commit the greater offense, as legally defined,

without committing the lesser offense, as legally defined, then the lesser offense is not

necessarily included within the greater offense.” State v. Kinsky, 348 N.W.2d 319, 326

(Minn. 1984). The ordinance is not a lesser-included offense because it is not necessarily

proved if the crime under the statute is proved. See Lory, 559 N.W.2d at 428; see also

Minn. Stat. § 609.04, subd. 1(4).

       Another notable difference is that the ordinance excludes conduct while a person

is “participating in a recognized athletic contest.” Therefore, disorderly conduct under

the ordinance is not necessarily proved when disorderly conduct under the statute is

proved. We conclude that the ordinance is not a lesser-included offense of the statute and


1
  See also State v. Nielson, No. A11-10, 2011 WL 6141607, at *6-7 (Minn. App. Dec. 12,
2011) (relying on evidence “that appellant engaged in ‘boisterous’ and ‘noisy’ behavior
that she reasonably should have known would cause others to be alarmed or disturbed” to
sustain a conviction under the state statute while relying on evidence that “appellant was
screaming and yelling loud enough for C.O. to be ‘scared’” to sustain a conviction under
the city ordinance).

                                            7
that the amendment constituted a charge of a “different offense.”           “By charging a

different offense, the . . . amendment falls within the prohibition of Rule 17.05.” Guerra,

562 N.W.2d at 13.

Deluney’s Substantial Rights

       The amendment also prejudiced Deluney’s substantial rights.           Rule 17.05 is

designed “to protect against confusing the jury, violating due process notions of timely

notice, and adversely affecting the [defense’s] trial tactics.” Id. (quotation omitted).

“The purpose of restricting the prosecution to the charges included in either the

complaint or indictment is to provide the defendant with notice and an opportunity to

prepare his or her defense.” State v. Gisege, 561 N.W.2d 152, 157 (Minn. 1997).

       The state charged Deluney on July 15, 2013, and amended the assault charge to a

gross misdemeanor on October 15, 2013. Witness lists, notices of evidence, discovery

requests, and evidentiary motions were submitted by the parties throughout the next five

months. The state moved to amend the disorderly conduct charge at 11:30 a.m. on the

second day of trial, after it rested. The district court granted the motion at 11:48 a.m.,

and Deluney testified at 1:10 p.m. Because the state amended the disorderly conduct

charge after it rested and immediately before Deluney took the stand, Deluney was

deprived of a reasonable opportunity to respond to the different offense.

       In addition, before the district court instructed the jury on the elements of the

crimes charged, Deluney’s counsel argued that the district court should add a mens rea

element to the jury instructions on disorderly conduct under the city ordinance. In doing

so, Deluney’s counsel stated:


                                            8
              Because the ordinance was only added to this case yesterday
              and I have known that it is . . . being charged here for less
              than 24 hours, I haven’t had the time to do the research on the
              ordinance . . . to know whether the city council did in fact
              intend for disorderly conduct to be a strict liability statute.

Therefore, the amendment to a different offense adversely affected the defense’s trial

tactics. See Guerra, 562 N.W.2d at 13-14.

       Lastly, the amendment to a different offense may have confused the jury. During

deliberations, the jury submitted questions to the district court seeking clarification and

examples of what conduct would constitute assault but not disorderly conduct and vice

versa. These questions indicate that the jury was confused about the elements of the

charges, and this confusion may have been caused by the late amendment to the offense

of disorderly conduct under the city ordinance. See id. at 13 (noting that “[t]he jury was

obviously confused by the change” because the jury asked the district court to clarify

with which crimes the appellant had been charged).

       We conclude that the district court abused its discretion by granting the state’s

motion to amend under rule 17.05 because the amendment to a different offense

prejudiced Deluney’s substantial rights. Our resolution of this issue makes it unnecessary

to reach Deluney’s additional argument that the district court abused its discretion by

denying his motion to strike a juror.

       Reversed.




                                            9
