State v. Schrempp, 2016 S.D. 79

Police searched Schrempp’s Sioux Falls residence (a drug-free zone) and found >½ lb of marijuana, grow equipment, butane cans, and materials used to make hashish/concentrates. Schrempp was arrested, waived Miranda rights, and admitted selling marijuana and making hashish/concentrate.
Schrempp and codefendant Uhing were indicted on eight drug-related counts (including possession/intent to distribute marijuana, possession of hashish/Delta-9-THC, maintaining a drug house, and paraphernalia). Trial was scheduled to begin Feb 4, 2015.
On the day before trial, after receiving chemist results, the State and defense agreed to amend Counts 3 and 7 by replacing “hashish” with “Delta-9-Tetrahydrocannabinol AKA Hashish”; Schrempp did not object at the hearing.
During jury deliberations the jury asked to have Detective Spaeth’s interview testimony read back; the court did not notify counsel of the question and instead sent the jury a highlighted copy of a preliminary instruction advising jurors they would not have a transcript and should recall testimony.
The jury convicted Schrempp on seven of eight counts; she was sentenced to a combined 29 years (with most suspended) plus 30 days county jail. Schrempp appealed, arguing (1) improper amendment of the indictment and (2) plain error in answering the jury question without party notice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court erred by amending indictment the day before trial	State: amendment was clerical/formal, parties consented, no prejudice	Schrempp: amendment substituted a different drug term (Delta-9-THC vs. hashish), could confuse jury; court lacked authority/jurisdiction to amend	Amendment was one of form only; no plain error—no prejudice and elements/statute unchanged
Whether court committed plain error by answering jury question without notifying parties	State: referring jury to already-given instruction was appropriate and caused no prejudice	Schrempp: court’s ex parte communication with jury created presumption of prejudice; she was denied opportunity to object	Error in procedure occurred but defendant failed to show prejudice; referring jury to prior instruction was within discretion; no plain error

State v. Anderson, 546 N.W.2d 395 (S.D. 1996) (trial court may amend indictment as to matters of form but not materially alter charges)
United States v. Cotton, 535 U.S. 625 (2002) (indictment defects are not jurisdictional; courts may permit form-only amendments)
United States v. Olano, 507 U.S. 725 (1993) (standard for plain-error review in criminal cases)
Meeks v. United States, 742 F.3d 841 (8th Cir. 2014) (trial courts must give defense meaningful opportunity to object to jury communications; presumption of prejudice from ex parte judge-jury communication)
United States v. Sazenski, 833 F.2d 741 (8th Cir. 1987) (general rule limiting judicial amendment of indictments)
United States v. Mason, 869 F.2d 414 (8th Cir. 1989) (distinguishing material changes from form-only amendments to indictments)
State v. Fisher, 828 N.W.2d 795 (S.D. 2013) (indictment sufficient if it states statutory elements and permits defendant to understand charges)
State v. Brady, 557 S.E.2d 148 (N.C. Ct. App. 2001) (amending named controlled substance to another did not require reversal where statute/charge remained same and defendant was not prejudiced)