                            This opinion will be unpublished and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
                                       A15-0898

                                     State of Minnesota,
                                        Respondent,

                                              vs.

                                    Rustin Kent Hartland,
                                         Appellant.

                                     Filed April 25, 2016
                                          Affirmed
                                      Schellhas, Judge

                               St. Louis County District Court
                                 File No. 69VI-CR-13-1842

Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and

Mark Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Renée Bergeron, Special
Assistant Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Schellhas, Presiding Judge; Johnson, Judge; and Jesson,

Judge.

                           UNPUBLISHED OPINION

SCHELLHAS, Judge

         A jury found appellant guilty of receiving stolen property, theft of a motor vehicle,

driving after license cancellation, and two counts of first-degree driving while impaired
(DWI). Appellant argues that the district court abused its discretion by permitting

respondent to amend the complaint to add charges on the day before trial began, that he

received ineffective assistance of counsel, and that the evidence presented during trial was

insufficient to prove his guilt of theft of a motor vehicle. We affirm.

                                          FACTS

       The roads were snow covered and the temperature was between zero and minus ten

degrees Fahrenheit while a St. Louis County Sheriff’s Deputy was on routine patrol near

Vermilion Lake Township on December 16, 2013. The deputy came upon fresh tire tracks

leaving the highway, observed a tailgate of a pickup truck in the ditch, and then saw a man

walking along the side of the highway away from the truck in the ditch. The deputy parked,

activated his squad car’s emergency lights, exited his squad car, and attempted to locate

the man. Following footprints in the snow that led from the highway into the ditch, the

deputy found a single boot. Continuing his search, the deputy thought he heard someone

running through the woods, commanded the person to stop, and eventually found the man,

who was missing a boot, was not wearing a hat or gloves, and had a fresh bump on his

forehead. The deputy recognized the man as appellant Rustin Kent Hartland. The deputy

placed Hartland in handcuffs and discovered a bottle of liquor inside his sleeve. Hartland

told the deputy that he had been kicked out of a vehicle by his girlfriend and had walked

to his location from Virginia, Minnesota, a town 20 to 25 miles away. He denied driving

the truck that was in the ditch but stated that he had stopped and checked on the truck while

walking along the highway. Hartland smelled strongly of an alcoholic beverage and

admitted to drinking “[a] few beers.”


                                              2
       Investigation of the truck in the ditch revealed that the passenger-side door was open

with a single set of footprints in the snow leading around the truck and then toward the

highway. No footprints led from the highway to the truck. A rear passenger-side window

was broken, and the windshield was cracked. The truck’s engine was not running, but the

key was in the ignition and the interior was warm enough to cause snow on the windshield

to melt. The truck contained two brown paper bags like the kind used for glass bottles in a

liquor store. The truck had been reported stolen approximately three weeks earlier.

Hartland was transported to the St. Louis County Sheriff’s Office, where he cooperated

with field sobriety testing and was read the implied-consent advisory. He agreed to submit

to a breath test, which revealed an alcohol concentration of 0.18.

       On December 18, 2013, respondent State of Minnesota charged Hartland with

driving after license cancellation, fleeing a peace officer, and two counts of first-degree

DWI. On January 26, 2015, the day before trial began, the state moved to amend the

complaint to add charges of receiving stolen property and theft of a motor vehicle. Over

defense counsel’s objection, the district court granted the state’s motion to amend but

permitted the defense to move to dismiss charges and argue prejudice either at the close of

the state’s case or at the close of trial. The state also moved to exclude evidence that when

the deputy located Hartland on December 16, 2013, he told the deputy that he ran because

he had “a [department of corrections] warrant.” The court denied the motion.

       On the first day of trial, the state dismissed the charge of fleeing a peace officer.

The defense never renewed its opposition to the amended complaint, nor did the defense




                                             3
offer any evidence regarding Hartland’s explanation about why he ran from the deputy at

the scene of his arrest. A jury found Hartland guilty of the charged offenses.

       This appeal follows.

                                      DECISION

                                              I.

       Hartland argues that the district court abused its discretion by permitting the state to

amend the complaint because the state’s motion was untimely, the motion did not conform

to the rules of criminal procedure, and the motion violated Hartland’s substantial rights,

including his right to due process of law. “[A] district court retains broad discretion over

how a case proceeds once it is filed.” State v. Baxter, 686 N.W.2d 846, 852 (Minn. App.

2004) (citing State v. Johnson, 514 N.W.2d 551, 556 (Minn. 1994)). “This includes the

power to grant or deny a prosecutor’s request to amend the complaint.” Id. (citing Johnson,

514 N.W.2d at 556). A district court’s decision on a motion to amend the complaint “will

not be reversed absent a clear abuse of that discretion.” Id. at 850 (citing Fabio v. Bellomo,

504 N.W.2d 758, 761 (Minn. 1993)). “The inquiry into whether a court should grant or

deny such a motion is factual and case specific.” Id. at 852.

                     Pretrial proceedings may be continued to permit a new
              complaint to be filed . . . if the prosecutor promptly moves for
              a continuance on the ground that:
                     (a) the initial complaint does not properly name or
              describe the defendant or the offense charged; or
                     (b) the evidence presented establishes probable cause to
              believe that the defendant has committed a different offense
              from that charged in the complaint, and the prosecutor intends
              to charge the defendant with that offense.




                                              4
Minn. R. Crim. P. 3.04, subd. 2. “Under Minn. R. Crim. P. 3.04, subd. 2, the trial court is

relatively free to permit amendments to charge additional offenses before trial is

commenced, provided the trial court allows continuances where needed.” State v. Bluhm,

460 N.W.2d 22, 24 (Minn. 1990).

       Hartland argues that the district court failed to comply with Minn. R. Crim. P. 3.04,

subd. 2, because the provision permits amendment of a complaint to add charges only if

new evidence is discovered. Here, Hartland argues, the state knew from the beginning of

the investigation that the truck had been reported stolen. But the rule does not require the

discovery of new evidence before an amendment is permitted.

       Hartland contends that he lacked adequate notice and an opportunity to investigate

the new charges because the state violated Minn. R. Crim. P. 3.04, subd. 2, by failing to

request a continuance of the trial and the district court erred by not ordering a continuance

sua sponte. Indeed, the supreme court has stated that the rule permits amendment of a

complaint to add charges before trial commences “provided the trial court allows

continuances where needed.” Id. (emphasis added). Hartland asserts that the lack of a

continuance denied his right to due process of law. See State v. Kendell, 723 N.W.2d 597,

611 (Minn. 2006) (stating that criminal defendant has right to notice of charges under “due

process notice requirement”); McCollum v. State, 640 N.W.2d 610, 618 (Minn. 2002)

(stating that criminal defendant has due process right “to be treated with fundamental

fairness and afforded a meaningful opportunity to present a complete defense” (quotations

omitted)); see also State v. Gisege, 561 N.W.2d 152, 157 (Minn. 1997) (“The purpose of

restricting the prosecution to the charges included in either the complaint or indictment is


                                             5
to provide the defendant with notice and an opportunity to prepare his or her defense.”

(emphasis omitted)).

       But, here, Hartland acknowledges that he did not request a continuance. And during

the pretrial hearing, defense counsel acknowledged that she knew of the possibility of new

charges and that the truck’s owner was listed on the state’s witness list. Although defense

counsel noted that she had not investigated the new charges, she stated that she “d[id]n’t

know that [the new charges were] going to change [Hartland’s] stance” given that Hartland

maintained that he had no contact with the truck. Hartland’s defense during trial was that

the state could not prove that he was driving or in any way associated with the truck. He

does not explain on appeal how his defense may have been different had the new charges

been added earlier or omitted. The district court gave the defense the opportunity to move

to dismiss charges after the presentation of evidence and to argue that the new charges had

caused prejudice, and the defense did not avail itself of that opportunity. We conclude that

the district court did not abuse its broad discretion by permitting the state to amend the

complaint.

                                            II.

       Hartland argues that defense counsel provided ineffective representation. “To

satisfy a claim of ineffective assistance of counsel, (1) the defendant must prove that

counsel’s representation fell below an objective standard of reasonableness; and (2) the

defendant must prove there was a reasonable probability that, but for counsel’s errors, the

result of the proceeding would have been different.” State v. Taylor, 869 N.W.2d 1, 21

(Minn. 2015) (quotation omitted) (citing Strickland v. Washington, 466 U.S. 668, 687–96,


                                             6
104 S. Ct. 2052, 2064–69 (1984)). “The objective standard of reasonableness is defined as

representation by an attorney exercising the customary skills and diligence that a

reasonably competent attorney would perform under similar circumstances.” State v. Vang,

847 N.W.2d 248, 266–67 (Minn. 2014) (quotations omitted) (stating that “[t]rial counsel’s

performance is presumed to be reasonable”). “A reasonable probability means a probability

sufficient to undermine confidence in the outcome.” Dereje v. State, 837 N.W.2d 714, 721

(Minn. 2013) (quotations omitted). An appellate court “may analyze the Strickland

requirements in either order and may dispose of a claim on one prong without considering

the other.” Lussier v. State, 853 N.W.2d 149, 154 (Minn. 2014).

Failure to offer evidence

       Hartland contends that he received ineffective representation because defense

counsel failed to elicit evidence that he ran from the deputy because he had an active

warrant. “Generally, [an appellate court] will not review an ineffective-assistance-of-

counsel claim that is based on trial strategy,” and trial strategy includes “the selection of

evidence presented to the jury.” Vang, 847 N.W.2d at 267. But Hartland claims that defense

counsel’s failure was the result of inattention rather than the result of a strategic decision.

Minnesota courts have reviewed ineffective-assistance-of-counsel claims where

defendants argued that they received deficient representation due to attorney

inattentiveness. See, e.g., State v. Nicks, 831 N.W.2d 493, 505–11 (Minn. 2013)

(concluding that defendant was entitled to postconviction evidentiary hearing on claim that

he received ineffective assistance due to attorney’s inattention during trial preparation);

Jama v. State, 756 N.W.2d 107, 114–15 (Minn. App. 2008) (reviewing whether attorney


                                              7
exhibited inattentiveness or indifference during jury selection that constituted ineffective

assistance).

       After the presentation of evidence and outside of the presence of the jury, the

prosecutor stated that “[a]t this stage there is no evidence within the record in regards to

[Hartland] having a [department of corrections] warrant” and “that testimony was not

elicited at any point during [the deputy]’s testimony.” The prosecutor asked that the district

court and defense counsel refrain from making a comment about the warrant to avoid the

prosecutor’s objection in the presence of the jury. This colloquy followed:

               DEFENSE COUNSEL: Okay. So it wasn’t referred [to] in the
               testimony? I guess I wasn’t—he didn’t mention that during his
               direct testimony about a [department of corrections] hold?
               THE COURT: That’s my recollection also. I was listening to
               that, and so it was never testified to.
               DEFENSE COUNSEL: Okay.
               THE COURT: And so the jury isn’t aware of the fact in terms
               of any evidence that Mr. Hartland had a warrant out for him if
               that was the case.
               DEFENSE COUNSEL: No objection.

       Hartland maintains that this colloquy establishes that defense counsel was “startled”

that evidence of an active warrant or hold was not presented. But Hartland has not

established that the defense intended to elicit evidence that he had a warrant. Defense

counsel acknowledged during the pretrial hearing that the department of corrections “hold

is probably—it is prejudicial,” and she did not mention a warrant or hold during her

opening statement. Defense counsel did not object to the prosecutor’s request after the

presentation of evidence that she refrain from referencing a warrant or hold, nor did she

seek to reopen the defense’s case or recall a witness.



                                              8
       Even if the failure to elicit evidence of an active warrant or hold was not part of

defense counsel’s trial strategy, Hartland has not established a reasonable probability that

the jury’s verdict would have been different had such evidence been admitted. The state

presented strong evidence that Hartland ran to avoid detection for driving the stolen truck

while under the influence of alcohol.

Failure to request a continuance

       Hartland also contends that he received ineffective assistance of trial counsel

because she failed to request a continuance of the trial after the district court permitted the

state to amend the complaint the day before trial. But before the court allowed the

amendment, defense counsel knew of the possibility of the new charges and that the truck’s

owner was a possible witness. The new charges did not change the defense’s case.

Moreover, the court afforded defense counsel the opportunity to argue later that the new

charges were prejudicial and therefore should be dismissed. Although defense counsel did

not argue for dismissal based on prejudice later in the trial, the lack of evidence of prejudice

supports counsel’s decision. We conclude that Hartland did not receive ineffective

assistance of counsel.

                                              III.

       Hartland challenges the sufficiency of the evidence for his conviction of theft of a

motor vehicle. A person commits theft by “tak[ing] or driv[ing] a motor vehicle without

the consent of the owner or an authorized agent of the owner, knowing or having reason to

know that the owner or an authorized agent of the owner did not give consent.” Minn. Stat.

§ 609.52, subd. 2(a)(17) (2012).


                                               9
       “When evaluating whether the evidence is sufficient, [appellate courts] carefully

examine the record to determine whether the facts and the legitimate inferences drawn from

them would permit the jury to reasonably conclude that the defendant was guilty beyond a

reasonable doubt of the offense of which he was convicted.” State v. Fox, 868 N.W.2d 206,

223 (Minn. 2015), cert. denied, 136 S. Ct. 509 (2015). The sufficiency of the evidence for

a conviction based on circumstantial evidence is reviewed using a two-step test. Id. The

appellate court first identifies “the circumstances proved” by the evidence, “defer[ring] to

the [jury]’s acceptance of the proof of these circumstances and the [jury]’s rejection of

evidence in the record that conflicts with the circumstances proved by the State.” Id. The

appellate court then “examine[s] independently the reasonable inferences that might be

drawn from the circumstances proved,” while “giv[ing] no deference to the [jury]’s choice

between reasonable inferences.” Id. “To sustain a conviction based on circumstantial

evidence, the reasonable inferences that can be drawn from the circumstances proved as a

whole must be consistent with the hypothesis that the accused is guilty and inconsistent

with any rational hypothesis except that of guilt.” Id.

       The circumstances proved by the evidence include that Hartland walked along a

highway and then ran through the woods in the vicinity of the truck in the ditch. He claimed

that he walked from a town that was approximately 20 to 25 miles away, although it was a

cold December evening. When the deputy saw and investigated the truck, the tire tracks

leading into the ditch appeared to be fresh, and the truck had a key in the ignition and a

warm interior. A single set of footprints in the snow led away from the truck. Hartland had

what appeared to be a fresh bump on his forehead. The truck had been reported stolen. The


                                             10
truck’s owner testified that the truck was stolen on the day before Thanksgiving in 2013

and that he did not give Hartland permission to drive the truck. These circumstances proved

are inconsistent with any reasonable inference except that Hartland was driving the stolen

truck when it went into the ditch.

       Hartland challenges the sufficiency of the circumstantial evidence to prove that he

knew or had reason to know that the truck was stolen. “Knowledge that the property was

stolen may be proven by circumstantial evidence.” State v. True, 378 N.W.2d 45, 48 (Minn.

App. 1985) (citing State v. Carter, 293 Minn. 102, 104–05, 196 N.W.2d 607, 609 (1972)).

“An individual’s ‘unexplained possession of stolen property within a reasonable time after

a . . . theft will in and of itself be sufficient to sustain a conviction.’” State v. Hager, 727

N.W.2d 668, 677–78 (Minn. App. 2007) (quoting State v. Bagley, 286 Minn. 180, 188, 175

N.W.2d 448, 454 (1970)). We previously concluded that “a time period of approximately

three weeks after the theft is not ‘unreasonable.’” State v. Anderson, 405 N.W.2d 527, 528,

530 (Minn. App. 1987) (determining that evidence was sufficient to permit jury to find

defendant guilty of knowingly receiving stolen property and knowingly handling stolen

livestock where stolen calves were found in defendant’s possession approximately three

weeks after theft), review denied (Minn. July 22, 1987); see also Bagley, 286 Minn. at 184–

86, 188, 175 N.W.2d at 452–54 (determining that evidence was sufficient to permit jury to

find defendant intended to permanently deprive owner of stolen property where items

stolen in August and November were found in defendant’s possession in December).

       In this case, the record contains no explanation about why Hartland was in

possession of the truck approximately three weeks after it was stolen. But we conclude that


                                              11
the evidence that is in the record permits only the reasonable inference that Hartland knew

or had reason to know that the truck he drove was stolen. We therefore affirm Hartland’s

conviction of theft of a motor vehicle as supported by sufficient evidence of guilt.

       Affirmed.




                                            12
