                          This opinion will be unpublished and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
                                     A14-1964

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                   Jeannie Frances Ball,
                                        Appellant.

                                Filed September 14, 2015
                                        Affirmed
                                     Hudson, Judge

                              St. Louis County District Court
                                File No. 69DU-VB-14-272

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

Mark S. Rubin, St. Louis County Attorney, Christopher J. Pinkert, Assistant County
Attorney, Duluth, Minnesota (for respondent)

Jeannie F. Ball, Duluth, Minnesota (pro se appellant)

         Considered and decided by Schellhas, Presiding Judge; Hudson, Judge; and Reilly,

Judge.

                         UNPUBLISHED OPINION

HUDSON, Judge

         Appellant challenges the sufficiency of the evidence to support her petty-

misdemeanor conviction of failure to yield the right-of-way when pulling out from a
driveway. She also argues that the district court committed plain error by allowing the

state to amend the complaint after trial had begun. We affirm.

                                           FACTS

       On December 30, 2013, appellant Jeannie F. Ball was turning left as she pulled out

of her driveway when the rear of her van was hit by a car traveling in the same direction

on the main road. The state charged Ball by citation with misdemeanor failure to yield

the right-of-way in violation of Minn. Stat. § 169.20, subd. 2 (2012) (failing to yield

during a left turn to a vehicle approaching from the opposite direction within the

intersection or so close as to form an immediate hazard). The state moved to certify the

offense as a petty misdemeanor and for a bench trial. The day of trial, the state moved to

amend the complaint to charge Ball instead with a violation of a different subdivision of

the failure-to-yield statute, Minn. Stat. § 169.20, subd. 4 (2012) (failing to yield when

entering a roadway to a vehicle approaching on the roadway). The district court granted

the motion, and Ball did not contest it.

       At trial, the driver of the other vehicle testified that he was driving west at the 50

mile-per-hour speed limit around 3:45 p.m. when he observed a van pull out from a

driveway on the left side in front of him. He was unable to stop, and his car hit the rear

of the van. He indicated that he first saw the van when he was about 50-100 feet away,

but as he got closer, it pulled out on the road, and he was going too fast to prevent a

collision. He stated that there was no snow or ice on the roadway, and when the van

started to turn, his vehicle was 20-30 feet away from it. He testified that he was not

under the influence of alcohol or speeding and that he did not try to flee the scene.


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       A responding St. Louis County deputy sheriff testified that the position of and

damage to both vehicles indicated that Ball’s van had pulled out into the car’s right-of-

way, causing the crash. He estimated that the crash occurred about 50-100 feet west of

the driveway and that visibility looking east was about one-quarter mile. He testified that

although there may have been ice or snow on the road, those conditions would not have

helped cause the accident if Ball had allowed enough time to pull out. He also indicated

that a dip or hill existed in the road, but it was a significant distance away, and he did not

believe that it was a contributing factor to the failure to yield.

       Ball’s daughter, a passenger in the van, testified that her mother pulled out slowly

into the road because conditions were icy. She herself looked both ways, saw no traffic,

and did not see the car before it hit the van. She believed the hill on the road was about

500 feet from the driveway. She observed that the other driver tried to leave after the

accident, but could not because his car was damaged.

       Ball testified that she stopped at the end of the driveway, looked both ways, saw

no traffic coming, and turned left slowly out into the roadway. She testified that the road

was icy, the car struck her van about 100 feet from the driveway, she did not pull out in

front of the car, and there was no car in sight when she left the driveway.

       The district court found Ball guilty, orally on the record, of failing to yield when

entering a roadway. The district court found that “the driver entering a roadway always

has the due diligence to take the extra precaution to make sure there is not a vehicle on

that roadway.”     The district court convicted Ball, stayed a $50 fine, and ordered

restitution in the amount of $2,431.90. This appeal follows. Because the state has not


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submitted a brief, we consider this appeal on its merits under Minn. R. Civ. App. P.

142.03.

                                      DECISION

                                              I

       When reviewing a claim of insufficient evidence to support a conviction, this court

carefully reviews the record to determine whether the evidence, viewed in the light most

favorable to the conviction, was sufficient to permit the fact-finder to convict appellant.

State v. Pendleton, 759 N.W.2d 900, 909 (Minn. 2009). We will not disturb the verdict

“if the [fact-finder] could reasonably conclude, given the presumption of innocence and

the requirement of proof beyond a reasonable doubt, that the defendant was guilty of the

charged offense.” Id. In evaluating the verdict, we recognize that “[a]ssessing witness

credibility and the weight given to witness testimony is exclusively the province of the

[fact-finder],” and we “may assume that the [fact-finder] credited the state’s witnesses

and rejected any contrary evidence.” Id. The same standard of review on the sufficiency

of the evidence applies to jury trials and to bench trials, in which the district court is the

trier of fact. Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999).

       Ball argues that the evidence is insufficient to support her conviction because the

state’s witnesses presented inconsistent and incredible testimony. But the fact-finder “is

free to accept part and reject part of a witness’s testimony.” State v. Mems, 708 N.W.2d

526, 531 (Minn. 2006). Inconsistencies in testimony go to witness credibility, which is

an issue for the fact-finder, not this court. State v. Juarez, 837 N.W.2d 473, 487 (Minn.

2013); see also State v. Suhon, 742 N.W.2d 16, 20 (Minn. App. 2007) (“Inconsistencies


                                              4
in prosecution evidence do not require reversal.”), review denied (Minn. Feb. 19, 2008).

The district court was free to believe or disbelieve any portion of any witness’s

testimony, whether or not it was inconsistent with other testimony. And although Ball

argues that she and her daughter testified, in contradiction to the other driver, that the

road was icy, icy conditions would not have precluded her conviction for failing to yield

as she entered the roadway.

          Ball also points out that the deputy at first denied that he was the person who

wrote in the police report that the accident occurred 100 feet from the intersection, but

later acknowledged that he may have written that information. But the deputy’s changing

recollection of his notation does not require the district court to discredit the police

report.     And even though Ball sought to offer evidence of the other driver’s prior

speeding tickets, because the district court sustained the state’s objection to prior-acts

evidence, it did not consider that information in reaching its decision. Ball has not

challenged that ruling. We conclude that, based on the record before it, the district court

could have reasonably concluded that given the presumption of innocence and the state’s

burden of proof beyond a reasonable doubt, Ball was guilty of failing to yield. See

Pendleton, 759 N.W.2d at 909 (stating standard of review).

                                                II

          For the first time on appeal, Ball argues that the district court committed reversible

error by amending the charge of failure to yield under Minn. Stat. § 169.20, subd. 2, to

failure to yield under Minn. Stat. § 169.20, subd. 4. Generally, “[t]he district court has

broad discretion to grant or deny leave to amend a complaint, and its ruling will not be


                                                5
reversed absent a clear abuse of that discretion.” State v. Baxter, 686 N.W.2d 846, 850

(Minn. App. 2004). Because Ball did not object at trial, however, we review the district

court’s ruling for plain error. See Minn. R. Crim. P. 31.02 (stating that an appellate court

may consider plain error affecting substantial rights even if the error was not raised

before the district court). Under this analysis, the defendant must show error that is plain

and affected substantial rights. See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)

(applying Minn. R. Crim. P. 31.02).

       Under Minn. R. Crim. P. 3.04, subd. 2, the state may amend a complaint at any

time before commencement of trial. See State v. Smith, 313 N.W.2d 429, 430 (Minn.

1981) (“Minn. R. Crim. P. 3.04, subd. 2, provides for free amendment of a complaint

before trial.”). But after trial has commenced and jeopardy has attached, rule 17.05

applies, and the district court may allow an amendment only if “no additional or different

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

Crim. P. 17.05; Smith, 313 N.W.2d at 430.

       Ball argues that the application of rule 17.05 is appropriate here because she had

proffered a plea and witnesses had been sequestered. In a jury trial, jeopardy attaches

when the jury is sworn. State v. Fuller, 374 N.W.2d 722, 726 (Minn. 1985). In a court

trial, jeopardy attaches when the first witnesses are sworn and the court begins to hear

evidence. State v. Caswell, 551 N.W.2d 252, 254–55 (Minn. App. 1996). Here, the

record shows that when the state moved to amend the complaint, witnesses had been

sequestered in the hallway, but it does not show that they had been sworn, and the district

court had not yet begun to take evidence. Cf. id. (addressing issue when motion to amend


                                             6
was granted after witnesses were sworn). We conclude that in this situation, rule 3.04

applies, so that the district court was free to allow amendment before trial, and the district

court did not commit plain error by granting the motion to amend.

       Further, even if we were to review this issue under rule 17.05, the district court

was not precluded from amending the complaint because the amendment did not charge

an “additional or different offense” and did not affect the defendant’s substantial rights.

The initial tab charge notified Ball that she was facing a violation of failure to yield to a

driver proceeding on the main road, a charge against which she was prepared to defend.

Cf. Caswell, 551 N.W.2d at 256 (concluding that a defendant’s substantial rights were

prejudiced by amending the complaint to include additional offenses when “the

additional offenses contained different elements and subjected her to conviction and

sentencing on a charge against which she was not prepared to defend”). Amending the

complaint to charge a violation under a different statutory subdivision of failing to

yield—which identified Ball’s location as leaving her driveway, rather than proceeding

on the main road, when she committed the offense—did not prejudice her defense.

Therefore, Ball’s substantial rights were not affected by the amendment, and we reject

her argument on this issue.

       Affirmed.




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