OPINION
Aрpellant challenges his convictions of second-degree murder and attempted second-degree murder, arguing that the district court erroneously included the doctrine of transferred intent in the jury instructions, he was denied due process because the indictment was constructively amended when the doctrine of transferred intent was advanced as a theory at trial but not before the grand jury, and the district court erroneously refused to order disclosure of the full grand jury transcript. We affirm.
FACTS
On April 25, 2011, appellant Timothy Ayman Bakdash was charged with one count of second-degree murder in violation of Minn.Stat. § 609.19, subd. 1(1) (2010), for the death of B.V.H. and two counts of second-degree assault in violation of Minn. Stat. § 609.222, subds. 1, 2 (2010) for injuries sustained by S.B. and K.H. On May 19, 2011, appellant was indicted by a grand jury for one count of first-degree murder
Victim and Witness Testimony
In the early morning of April 15, 2011, just before 2:00 a.m., B.V.H. was with friends in the Dinkytown neighborhood of Minneapolis near the Library Bar, located on the corner of 4th Street Southeast and 13th Avenue Southeast in Minneapolis. At the time, the sidewalks were, crowded, primarily with college-aged students leaving area bars. B.V.H. and a friend, L.F., were walking north on 14th Avenue and turned left, along with approximately ten other people, onto the north sidewalk of 5th Street. On this block, 5th Street is a one-way street with only east-bound traffic.
L.F. heard the sound of an accelerating vehicle from behind. She did not hear anyone fighting or yelling, and she did not hear any horn, brakes, or squealing tires. She turned around and saw a vehicle driving towards the group and stepped onto a dirt patch by the sidewalk to avoid being hit. L.F. attempted to grab B.V.H.’s arm, but the vehicle’s hood hit B.V.H. and carried him forward on the windshield. The vehicle appeared to accelerate, and B.V.H. remained on the vehicle until the corner of 12th Avenue and 5th Street, at which point he “flew off the hood of the car and hit the telephone pole on the corner and then landed in the street.” B.V.H. later died because of blunt force injuries to his brain.
S.B. and K.H., along with their friend J.B., were also walking on the sidewalk north of 5th Street. S.B. was closest to the street, alongside K.H., and heard a vehicle accelerate behind her. K.H. turned towards her, and the next thing she recalled was “waking up on the ground halfway between the boulevard and the sidewalk.” S.B. sustained injuries and was hospitalized. K.H. remembered hearing a vehicle accelerate behind her. She turned to her left, but did not remember anything else until she regained consciousness and woke up on the sidewalk. K.H. also sustained injuries, though not to the extent of S.B.’s injuries. J.B. testified that he did not see the vehicle collide with S.B. and K.H., but heard a vehicle and then fell to the ground seconds later. He saw the vehicle drive back onto the street and away from the scene without slowing down.
A.E. and his friends were also at the location of the incident when he “heard a car coming the wrong way down a one-way.” He “saw some headlights” and then “turned around and there was a car pulling onto the curb.” “[A] few seconds” later, the vehicle made contact with his foot and he ran into the street to avoid the vehicle. He then observed the vehicle accelerate, heard screams,.and eventually saw the vehicle collide with a persоn before driving away. He did not see the driver. A.E. spoke with police the next day and denied having any prior association with appellant.
Two of A.E.’s friends provided substantially similar testimony. One friend recalled that the vehicle “didn’t look like it was slowing down, so [he] yelled something and ... ran up a grassy hill” as the
M.D. testified that, on the night of the incident, he accompanied appellant to the Library bar where they each consumed at least nine drinks. Over the course of four and one-half hours, M.D. noticed that appellant became increasingly aggressive by making “karate chops at the bar, but not necessarily towards anybody.” Appellant did not appear аngry with anyone and did not appear excessively intoxicated. When they left the bar around 2:00 a.m., M.D. suggested that they hire a taxi, but appellant refused, stating that he had to work that morning and needed his vehicle. As they walked towards appellant’s vehicle, two males, whom they did not know, approached them and asked if they wanted to fight. M.D. had no interest in fighting, but recalled that appellant wanted to fight and appeared angry. Rather than fighting, he and appellant entered appellant’s vehicle, and the two males walked away. Appellant declared that they should have fought.
M.D. testified that appellant turned right out of the lot оnto 5th Street, driving west at 30 to 50 miles per hour, and saw the same two males walking “a little bit. off the sidewalk.” Appellant accelerated “pretty much right away” and drove towards the two males despite M.D.’s objections. M.D. testified that the vehicle struck a female and believed that she was carried on the hood, and then collided with a second person. As appellant drove back onto 5th Street, he avoided hitting a tree. Appellant yelled, “They deserved it!” Appellant’s Testimony
Appellant remembered the course of events differently. He testified that he picked up M.D. in his vehicle, smoked marijuana, and drove to the' Library Bar; Appellant drank “between fifteen to twenty drinks and probably about three to five shots.” By the time they left at around 1:50 or 2:00 a.m., appellant was “extremely intoxicated” and “kind of in and out of reality.” Appellant explained that he and M.D. encountered a male, later identified by appellant as A.E., in a blue shirt yelling at them as they walked towards appellant’s vehicle. After M.D. entered the vehicle, this person lightly slapped appellant on both sides of his face. Appellant said that he did not want to fight, entered his vehicle, and rejected M.D.’s suggestion to get a taxi. He testified that he was not thinking straight and that his “brain was in a fog from the chemicals and alcohol.”
Appellant exited the parking lot and drove the wrong way down 5th. Street. He saw the male in the blue shirt and said “There’s the guy!” M.D. responded, “Hit him!” Appellant drove onto the curb, “really slow[lyj,” “at the guy in the blue shirt, intending to scare him, not intending to hit him.” Appellant estimated that he was going “about fifteen miles an hour” and testified that his car clipped A.E.’s foot and hit a female. He explained that the female was “all of a sudden ... there,” and that it “happened so quick” “like one, two, three.” He panicked, “wanted to flee the scene” by speeding “up a little bit” while driving on the curb, even though the passenger’s side .of the windshield was “shattered out” and he had “basically no
The jury found appellant not guilty of the counts of first-degree murder and attempted first-degree murder, but returned verdicts of guilt on the remaining charges. He received concurrent sentences of 173 months for attempted second-degree murder relative to S.B. and K.H., and 307 months for second-degree murder for the death of B.V.H., to be served consecutively with his 173-month sentence. This appeal follows.
ISSUES
I. Did the district court err by including the statutory language incorporating the doctrine of transferred intent in the jury instructions defining the murder and attempted murder charges?
II. Was the indictment constructively amended when the doctrine of transferred intent was advanced as a theory at trial but not before the grand jury?
III. Did the district court err by denying appellant’s motion for full disclosure of the grand jury transcripts?
ANALYSIS
I. Did the district court err by including the statutory language incorporating the doctrine of transferred intent in the jury instructions defining the murder and attempted murder charges?
Appellant argues that the district court erred by including the doctrine of transferred intent in its jury instructions on the murder and attempted murder charges. “The decision to give a requested jury instruction lies in the discretion of the trial court and will not be reversed absent an abuse of that discretion.” State v. Palubicki,
“[A] specific-intent crime requires an intent to cause a particular result.” State v. Fleck,
Appellant argues that the doctrine of transferred intent does not apply to crimes against unintended victims that are different or of a more serious nature than crimes committed against an intended victim. Appellant asserts that he only intended to inflict fear of bodily harm in A.E. and did not intend to harm him or anyone else. He argues that his intent to assault A.E. cannot transfer to B.V.H., S.B., and K.H. as unintended victims of first or second-degree murder or attempted first or second-degree murder.
Appellant relies on State v. Merrill,
In support of his claim that the doctrine of transferred intent does not apply to the attempted second-degree murder charges relative to S.B. and K.H., appellant cites State v. Noble, a case in which a defendant was charged with attempted second-degree murder of a mother who was one month pregnant with his child.
Contrary to appellant’s contention, Minnesota caselaw has consistently applied the doctrine of transferred intent to specific-intent crimes. In State v. Holliday, the defendant shot an innocent bystander while chasing and shooting in the direction of another person.
The supreme court in Cruz-Ramirez applied the doctrine of transferred intent to first and second-degree murder charges for the death of a man in a vehicle and attempted first and second-degree murder charges for three other men in close proximity to the vehicle in a gang-related shooting with a semiautomatic weapon.
We applied the same rationale in State v. Livingston, in which the defendant ordered his pit bull to attack an individual in a parking lot, and during the course of the attack the dog bit other nearby individuals.
In light of this caselaw, we reject appellant’s argument that the doctrine of transferred intent does not apply in the instant case. It is clear from the verdict that the jury rejected appellant’s claim that he merely intended to scare A.E. By intentionally driving his vehicle onto a sidewalk into a group of pedestrians, appellant used his vehicle as a dangerous weapon. See State v. Klaus, 730 S.W-2d 571, 575 (Mo.Ct.App.1987) (“The use of a deadly weapon, [including a car in this case], in such a manner that a vital part of the victim’s body is likely to be injured is sufficiеnt to permit a finding of intent to kill”). Viewing the evidence in a light most favorable to the jury’s verdict, State v. Pendleton,
Consistent with Holliday, Ford, Cruz-Ramirez, and Livingston, appellant’s intent to hit someone with his vehicle is transferred to unintended victims who were hit and either injured or killed. Because the entire incident took only a few
We also disagree with appellant’s contention that there can' be no transferred intent from the attempted murder of a specific victim. “An attempt requires that the actor have specific intent to perform acts and attain a result which if. accomplished would constitute the crime alleged.” Noble,
II. Was the indictment constructively amended when the doctrine of transferred intent was advanced as a theory at trial but not before the grand jury?
Appellant next argues that he was denied due process because the theory of transferred intent was submitted to the jury in a manner constituting improper constructive amendment of the indictment. He asserts that it was “likely” that the grand jury found that he “had direct intent” towards S.B., K.H., and B.V.H., and that the theory of transferred intent was not argued before the grand jury. “The charges upon which the state may proceed at trial must be included within the indictment, complaint or tab charge.” ' State v. Gisege,
Appellant asserts that at the time the grand jury was convened, the statе was aware that A.E. was the first person struck by appellant’s vehicle. He also notes that A.E. did not testify before the grand jury, that the grand jury did not know of A.E.’s existence, and that “there was sufficient evidence at the close of the [grand jury] proceedings to charge [a]ppel-lant with attempted murder as to two victims, and fírst[-]degree murder as to the third, using a theory of direct intent.” According to appellant, the essential elements of the crimes were modified upon presentation of the theory of transferred intent to the jury.
The state, citing State v. DeVemey,
We also agree with the state’s contention that appellant was not prejudiced by any reliance on the theory of transferred intent. See DeVerney,
III. Did the district court err by denying appellant’s motion for full disclosure of the grand jury transcripts?
Finally, appellant argues that the district court erred by refusing to order disclosure of the full grand jury transcript. The denial of a defendant’s request for the entire grand jury transcript will be reviewed for an abuse of discretion. See Boitnott v. State,
In grand jury proceedings, “[a] verbatim record must be made of all statements made, evidence taken, and events occurring before the grand jury except deliberations and voting.” Minn. R.Crim. P. 18.04, subd. 1. This record “may be disclosed only to the court or prosecutor unless the court, on the defendant’s motion for good cause, ... orders disclosure of the record or designated portions of it to the defendant or defense counsel.” Id. “[T]he burden is on the defendant to show good cause for the disclosure of grand jury information.” Boitnott,
Disclosure of matters occurring before the grand jury, other than its deliberations and the vote of any juror, may be made to the prosecutor for use in the performance of the prosеcutor’s duties, and to the defendant or defense counsel under Rule 18.04 governing the record of the grand jury proceedings. Otherwise, no one may disclose matters occurring before the grand jury unless directed to do so by the court in connection with a judicial proceeding.
Appellant sought the transcript under the “good cause” portion of this rule. Appellant asserts that because there is no Minnesota case discussing when a defendant may be entitled to disclosure of grand jury proceedings under rule 18.07, this rule entitles him to the entire grand jury transcript pursuant to a motion showing good cause. However, the comment to rule 18.04, subdivision 1, provides that “the record may be disclosed to the court or to the prosecutor, and to the defendant for good cause, which would include a ‘particularized need.’ ” The supreme court has adopted the “good cause” requirement to include “a showing of a particularized need.” Boitnott,
[T]he United States Supreme Court has defined the term to mean that (a) the material sought is needed to avoid a possible injustice in another judicial proceeding, (b) the need for disclosure is greater than the need for continued secrecy, and (c) the request is structured to cover only the material so needed.
Id. at 630-31.
After concluding that the petitioner failed to satisfy his burden of establishing “that he did not previously view the grand jury exhibits he now seeks to review,” Boitnott required the petitioner to “demonstrate good cause to obtain disclosure of this information” and concluded that “[a] general claim that disclosure of grand jury transcripts will possibly reveal exculpatory evidence is not enough to demonstrate par
With respect to a showing of a particularized need, appellant stresses that “the need for secrecy of the grand jury proceedings is no longer a predominate concern” because the proceedings are over, an indictment was returned, and appellant was already entitled to the transcripts containing witness testimony. He also argues that he should have been permitted to examine the state’s instructions to the grand jury regarding each separate definition for the levels of mens rea implicated by first-degree murder and attempted first-degree murder as they pertained to the three victims. Appellant explains that he “was unaware of the basis for premeditation, attempt or intent as it relate[d] to each of the three charges” merely from the allegations in the indictment, complaint, and police reports.
The state reasonably argues that this constitutes a speculative request that fails to establish particularized need. The mere fact that appellant had no prior encounters or association with the witnesses or victims, aside from the contested facts concerning A.E., does not materially bear on the charges of first-degree and attempted first-degree murder. “Evidence of premeditation generally falls into three categories: planning activity, motive, and nature of the killing.” State v. Palmer,
More importantly, appellant has failed to establish that he was prejudiced by the district court’s refusal to disclose the non-witness portions of the grand jury transcript. “A prejudicial error has been defined as an error which affected the final result of the case and was prejudicial to a substantial right of the party assigning it.” State v. Meemken,
DECISION
The district court did not err by including statutory language implicating the doctrine of transferred intent in the jury instructions addressing appellant’s first and second-degree murder and attempted first and second-degree murder charges. Appellant has failed to show that the first-degree murder and attempted first-degree murder charges, which were added as a result of a grand jury indictment, were constructively amended when the state advanced the theory of transferred intent at trial. Finally, the district court did not err by denying appellant’s request for disclosure of the entire grand jury transcript given appellant’s failure to establish a particularized need for such disclosure.
Affirmed.
Notes
. We reject appellant’s contention that Boit-nott is inapplicable because it involved a post-conviction proceeding, rather than a pre-trial motion, regarding the grand jury transcripts. We conclude that Boitnott, notwithstanding its procedural posture, adopts the good cause definition set forth in the rule's comments and Douglas for purposes of pre-trial motions requesting grand jury transcripts.