This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Mark Arthur Ihle,
Dakota County District Court
File No. K4-00-63
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Timothy Kuntz, South St. Paul City Attorney, Ann C. O’Reilly, Assistant City Attorney, LeVander, Gillen & Miller, P.A., 633 South Concord Street, Suite 400, South St. Paul, MN 55075 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Anderson, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.
A jury convicted Mark Ihle of obstructing legal process with force in violation of Minn. Stat. § 609.50, subd. 1(2) (1998). Ihle appeals, arguing that his conviction is the product of plain error in jury instructions that affected his substantial rights by encompassing legal behavior as well as illegal behavior and led to conviction without the jurors’ unanimous agreement on the acts that constituted the offense. Because the jury instruction was not plain error affecting Ihle’s substantial rights, we affirm.
South St. Paul police officers arrested Mark Ihle following a confrontation over their issuance of a traffic citation to Ihle’s fiancée, Mary Anderson. As Officer Lawrence Snaza wrote Anderson a citation for driving with a suspended license, Ihle ran out of his house and confronted Officer Leah Reyes, who was parked in front of the house. According to the officers’ testimony at trial, Ihle was angry, loud, and irrational and repeatedly yelled profanity at them. Reyes asked Ihle to go back inside the house. Instead, he approached Reyes, pointed his finger in her face, and told her to come back when she was not working and he would take care of her. Reyes extended her arm to impose distance between her and Ihle. Ihle turned toward her and assumed a fighting stance. Reyes told Ihle that he was under arrest, and Ihle ran into his house and started to close the door. The officers pushed the door open, entered the house, and, after a struggle, arrested Ihle.
The jury found Ihle guilty of disorderly conduct and obstructing legal process with force. The district court dismissed the disorderly-conduct charge, stayed imposition of the sentence for obstructing legal process with force, and placed Ihle on two years probation. Ihle appeals, claiming that the district court’s jury instructions were plain error affecting his substantial rights because the instructions were overly broad, encompassing Ihle’s legal behavior as well as illegal behavior, and led to a jury verdict that was not unanimous.
At the conclusion of the trial, the district court instructed the jury on the statutory elements of obstructing legal process. The court, with no objection, used the instruction set forth in CRIMJIG 24.25 and 24.26, supplemented by a question of whether Ihle’s act was accompanied by force or violence or a threat of force or violence. See 10 Minnesota Practice, CRIMJIG 24.25, 24.26 (1999).
Generally, failure to object to jury instructions at trial constitutes waiver that results in a forfeiture of the right to raise the instructions as error on appeal. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Notwithstanding the failure to object, a reviewing court has the discretion to consider plain error affecting substantial rights if the error had the effect of denying the defendant a fair trial. Id.; see also Minn. R. Evid. 103(d).
Under Minnesota law, it is illegal to intentionally obstruct, hinder, or prevent execution of criminal legal process or obstruct, resist, or interfere with a police officer performing official duties. Minn. Stat. § 609.50, subd. 1 (1998). The Minnesota Supreme Court has upheld the statute’s constitutionality, finding that it is not overbroad or vague on its face. State v. Krawsky, 426 N.W.2d 875, 878 (Minn. 1988). In discussing the obstruction-of-legal-process statute, the supreme court stated that it “is directed at a particular kind of physical act, namely, physically obstructing or interfering with an officer.” Id. at 877. Although the statute is meant to apply only to physical acts, in limited circumstances “the statute may be used to punish ‘fighting words’ or any other words that by themselves have the effect of physically obstructing or interfering with a police officer in performance of his duties.” Id. But the statute does not apply to ordinary verbal criticism aimed at a police officer or to the mere act of interrupting an officer in the course of duty. Id. at 878.
The jury instruction given at Ihle’s trial sets forth the elements of obstructing legal process:
The statutes of Minnesota * * * provide that whoever intentionally obstructs, hinders or prevents the lawful execution of the any legal process, or obstructs, resists or interferes with a peace officer while the officer is engaged in the performance of official duties, is guilty of a crime.
The elements of the crime are:
First, Leah Reyes and/or Lawrence Snaza were attempting to lawfully execute legal process. The service of a citation on a party and/or the arrest of a party is the execution of legal process.
Second, the defendant obstructed, hindered or prevented the execution of legal process or the taking of defendant into custody.
Or first, Leah Reyes and/or Lawrence Snaza were attempting to take defendant into custody on a criminal charge.
And, second, the defendant obstructed, hindered or prevented the taking or defendant into custody.
Or first, Leah Reyes and/or Lawrence Snaza were peace officers engaged in the performance of official duties. A licensed police officer is a peace officer.
Second, the defendant obstructed, resisted or interfered with the officers in the performance of official duties.
Third, the defendant acted with the intention of obstructing, hindering, preventing or interfering with Officer Reyes and/or Officer Snaza.
Fourth, the defendant’s act took place on or about November 24th, 1999 in Dakota County.
If you find that each of these elements has been proven beyond a reasonable doubt, the defendant is guilty of obstructing legal process * * * . If you find that any element has not been proven beyond a reasonable doubt, the defendant is not guilty.
See 10 Minnesota Practice, CRIMJIG 24.25, 24.26.
Ihle claims that the court’s standard jury instructions result in an overly broad charge that is inconsistent with the limits placed on the statute by Krawsky. Instead, according to Ihle, because of the jury instructions, the jury convicted him of obstructing legal process for conduct that is not illegal—oral criticism directed at the police officers. See State v. Tomlin, 622 N.W.2d 546, 549 (Minn. 2001) (holding that lying to police officers is not conduct that alone rises to the level of obstruction of legal process).
If Ihle’s conviction rested solely on oral statements without accompanying physical conduct, his argument would have more validity. The facts, however, are otherwise: The testimony established that after Officer Reyes directed Ihle to return to his home, Ihle instead came toward the officer, stopping within a few inches of her. He pointed his index finger in her face and threatened her, yelling, “[W]hy don’t you come over when you’re not working. I’ll take care of you.” To protect herself and keep Ihle at arms-length distance, Officer Reyes pushed or tapped his chest, and he responded by moving toward her with his fists raised. She told Ihle that he was under arrest, and he ran away from the officers and toward his home. Both officers ran after him. Ihle went into his house and started to close the door to keep the officers out. Officer Snaza forced the door open, entered the house, and, after a struggle with Ihle, handcuffed him as he continued to yell and kick.
Ihle’s actions represent the type of behavior the statute is meant to penalize, a physical act that obstructs or interferes with a police officer. Ihle’s conviction for obstruction is supported by the evidence that Ihle pointed his finger in the officer’s face, raised his fists, and ran away, attempting to close the door on the officers and fighting the officers’ efforts to arrest him. The jury answered “yes” to the special-verdict question, “Was the defendant’s act accompanied by force or violence or a threat of force or violence?” The jury’s response to this question further affirms that the incident involved significantly more than the oral criticism addressed in Krawsky. Because the jury could find Ihle guilty based on his physical conduct and not on his oral conduct, the jury instructions do not constitute plain error that affected Ihle’s substantial right not to be convicted for conduct that is not prohibited by the statute.
For similar reasons, we conclude that the jury instructions did not violate Ihle’s due process right to a unanimous jury verdict. In Minnesota, unanimous jury verdicts are required in criminal cases. Minn. R. Crim. P. 26.01, subd. 1(5); State v. Hart, 477 N.W.2d 732, 739 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992). If jury instructions allow for possible significant disagreement among jurors as to what acts the defendant committed to constitute the crime, the instructions may violate the defendant’s right to a unanimous jury. See State v. Begbie, 415 N.W.2d 103, 105-06 (Minn. App. 1987), review denied (Minn. Jan. 20, 1988).
Ihle claims that the jury’s verdict was not unanimous because the court instructed the jury to find that Ihle obstructed legal process in any one of three ways: (1) obstructing, hindering, or preventing the execution of legal process; (2) obstructing, hindering, or preventing the taking of Ihle into custody; or (3) obstructing, resisting, or interfering with the officers in the performance of official duties. As Ihle argues, it is possible that some jurors found that Ihle obstructed legal process in preventing the officer from writing a citation for Anderson, while others may have thought that he obstructed legal process in running away from the officers or in resisting the officers’ attempts to take him into custody. Ihle was convicted of only one count of obstructing legal process.
But Ihle’s argument fails because if the jury found that Ihle committed any of these acts, he would have obstructed legal process as defined by the statute, and unanimity is not required with respect to the alternative ways that a crime can be committed. Id. at 106. This court has found no violation of the jury-unanimity requirement when jury instructions did not require the jury to specify which of two victims the defendant terrorized, id., or when the jury could have found the defendant guilty of criminal sexual conduct by injuring the victim or causing the victim fear of harm and the jury was not required to specify which element it found. Hart, 477 N.W.2d at 739; accord Schad v. Arizona, 501 U.S. 633, 645, 111 S. Ct. 2491, 2504 (1991) (allowing evidence of either premeditated or felony murder to support single charge of first-degree murder, without requiring jury to agree on one theory, does not deprive defendant of constitutional right to unanimous jury). Because the jury need not agree on alternative ways a crime can be committed, the jury instructions did not violate Ihle’s due-process rights.
 The obstruction-of-legal-process statute was amended in 1989. 1989 Minn. Laws ch. 5, § 4. The amendment reorganized the statute but left substantially unchanged the operative portion.