Hennepin County District Court File No. 97-038684
Considered and decided by , Presiding Judge, , Judge, and , Judge.
The opinion of the court was delivered by: Foley, Judge
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
[Editor's note: originally released as an unpublished opinion]
Appellant Raymond Sundstrom appeals from his conviction for theft by swindle pursuant to Minn. Stat. § 609.52, subd. 2(4) (1996). Because we find the trial court constructively amended the complaint after the submission of the evidence, prejudicing Sundstrom's substantial rights to notice and an opportunity to prepare a defense, we reverse.
In the spring of 1995, appellant Raymond Sundstrom met Catherine Hauser at a bar in St. Paul where she was employed. Over the following year, they became acquainted and Hauser learned Sundstrom owned a business called Farbarth Corporation.
In October 1996, Sundstrom told Hauser about a new business venture he was involved in with a company named SophTeck. Sundstrom offered to let Hauser become involved in the venture.
Hauser agreed to purchase a 24 percent share of SophTeck and a 5 percent share of Farbarth for $10,000. Sundstrom signed a promissory note and issued a receipt to Hauser. Under the terms of the agreement, Sundstrom would keep the money for six months, after which time he would return the investment to Hauser if she was not satisfied with the arrangement.
At trial, Hauser testified Sundstrom misrepresented the companies' earnings, properties, financial and corporate history, and his own wealth. She also alleged Hauser misrepresented the assets available to ensure she would be repaid her investment. Sundstrom contends he and Hauser only discussed the companies' future potential.
Following Hauser's purchase of the shares, Sundstrom left town on a business trip and offered to let Hauser use the Mercedes he had been driving. Hauser accepted the offer. The following day, Hauser began to have second thoughts about her investment, and informed Sundstrom that she needed her money back. Sundstrom agreed to refund the money if Hauser would return the Mercedes.
Hauser and Sundstrom agreed to meet, but Hauser did not show up at the arranged meeting time and later refused to speak to Sundstrom. Hauser testified she declined to meet Sundstrom because the requested meeting was late at night and she was following the advice of her counsel who expressed concern for her safety.
Sundstrom was subsequently charged with theft by swindle. The complaint listed the offense as follows:
"THEFT BY SWINDLE OVER $2,500 (FELONY) "MINN. STAT. 1996 § 609.52, SUBD. 2(4), SUBD. 3(2) "PENALTY: 0-10 YEARS AND/OR $20,000 "That on or about October 8, 1996, in Hennepin County, Minnesota, RAYMOND EDGAR SUNDSTROM obtained U.S. currency, moveable property, of a value in excess of Two Thousand Five Hundred Dollars ($2,500), from Catherine Hauser, by swindling her using artifice, trick, device, or other means and with intent to permanently deprive Catherine Hauser of possession of the property.'
During voir dire, the trial court read the charge to the jury as it was alleged in the complaint. The defense, the prosecutor, and the trial court appear to have proceeded until the close of evidence under the belief that "intent to permanently deprive" was an element of the state's case.
In her opening statement, defense counsel conceded both that Sundstrom obtained the money from Hauser, and that he intended to keep Hauser's money for a six-month period. She argued, however, that Sundstrom was not guilty because he had not intended ...