This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Michael D. Clancy,



Filed February 19, 2002

Gordon W. Shumaker, Judge

Concurring specially, Randall, Judge



Morrison County District Court

File No. K700283





Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Conrad I. Freeberg, Morrison County Attorney, Debra Jean Lund, Assistant County Attorney, 213 Southeast First Avenue, Little Falls, MN 56345 (for respondent)


John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)




            Considered and decided by Harten, Presiding Judge, Randall, Judge, and Shumaker, Judge.


U N P U B L I S H E D   O P I N I O N


            In this appeal from a judgment of conviction for the crime of obstructing legal process, appellant argues that the district court abused its discretion in precluding appellant’s claim of self-defense for lack of pretrial notice without first determining whether the state was prejudiced by the lack of notice.  Appellant also argues that the district court committed plain error by failing to instruct the jury that words alone cannot constitute obstruction of legal process unless they have the effect of physically obstructing the law enforcement officer.  We affirm.


            State trooper Troy Larson was on duty in his squad car at 9:00 p.m. on March 17, 2001, when he clocked by radar appellant Michael Clancy’s car at 67 miles per hour in a 55 miles-per-hour speed zone.  Clancy was driving, and his passengers were his girlfriend, Dawn Gustin, and their baby, who was asleep.

            Larson turned his emergency lights on, and Clancy stopped near an intersection.  Before Larson got out of the squad car, Clancy quickly got out of his car and moved rapidly toward the squad, yelling angrily and shouting obscenities.  Larson told Clancy to get back in his car.  Clancy refused, saying:

I didn’t do anything wrong.  I don’t have to get back in the car.  I’m not going to.  * * *  This is a free country, right?  And I didn’t do anything wrong.  It’s not against the law for me to be out here on the road.


            With raised, clenched fists, Clancy shouted that Larson was “chicken-shit” and that he wanted to meet Larson face to face.  Clancy pointed to a spot on the ground and yelled, “You’re mine.”

            Fearing for his safety, Larson backed his car up.  Clancy continued to yell obscenities and to move toward the squad, and then said he was going to leave.  Larson pulled his squad forward so as to be able to talk to Clancy, but Clancy again moved toward the squad car, yelling obscenities.  Larson called for back-up enforcement officers to assist him.

            Although Larson told Clancy to remain where he was, Clancy drove his car around the corner, stopped, and got out.  Other law enforcement officers arrived, and Larson and a deputy sheriff asked Clancy for his driver’s license.  Clancy withdrew his wallet from his pocket but raised his arms into the air and moved around in an agitated manner.  He refused to give his license to the officers.  Larson told him he was under arrest, but Clancy responded by asking, “What for?” and he continued to move around.  Larson sprayed mace into Clancy’s face, but Clancy continued to move around.  Larson tackled him and instructed him to put his hands behind his back.  Clancy refused and rolled around on the ground with Larson.  Other officers tried to handcuff Clancy, who was resisting.  After Larson struck Clancy’s leg three times with his knee, the officers were able to handcuff him.

            The state charged Clancy with speeding and obstructing legal process with force or violence.  Before trial, the state dismissed the speeding charge.

            Clancy testified that he thought he had been traveling at only 57 miles per hour and was upset that Larson had stopped him.  He stated that he got out of his car because he did not want Larson to disturb the baby, who had just fallen asleep.  He also noted that Larson’s spotlight was shining into his car.  He testified that all he wanted to do was give Larson his driver’s license but Larson would not take it.  He said he called Larson a “chicken-shit” and told Larson he would have his job and would sue him.  He denied resisting either Larson or the other officers.

            After the state rested its case, the defense requested that the court instruct the jury on the authorized use of force.  The state objected because Clancy had not given timely notice that self-defense would be asserted and that the instruction would be inappropriate for the crime charged.  The district court denied the request because of lack of timely notice but did not rule on the issue of the appropriateness of the instruction.

            The jury found Clancy guilty of obstructing legal process with force or violence.  This appeal followed.


            Clancy asked the district court to instruct the jury that a person has a right to use reasonable force to resist an assault by a police officer.  This is a self-defense instruction.  10 Minnesota Practice, CRIMJIG 7.06 (1999); State v. Johnson, 310 N.W.2d 96, 97 (Minn. 1981) (stating supreme court approves self-defense instruction modeled on 10 Minnesota Practice,  CRIMJIG 7.05-7.08 (1977)).

            The Minnesota Supreme Court has held that “self-defense is an affirmative defense, requiring that the defendant give notice to the state of an intent to rely on self-defense.”  State v. Gustafson, 610 N.W.2d 314, 320 (Minn. 2000) (citing Minn. R. Crim. P. 9.02, subd. 1(3)(a)).  Clancy does not contend that he gave notice before the trial of his intent to assert self-defense.

            Because Clancy failed to give timely notice of his affirmative defense, the district court in effect precluded that defense.  The district court has broad discretion in determining sanctions for discovery violations.  State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).  Among the factors the court is to consider when selecting an appropriate sanction is the extent of the prejudice, if any, to the state if a sanction is not imposed.  Id.  A reviewing court will not overturn the district court’s ruling on a discovery sanction absent a clear abuse of discretion.  Id.

            Although the court ruled only on the timeliness of Clancy’s notice of self-defense, the state also argued the inappropriateness of the defense and the prejudice that would ensue if Clancy were allowed to assert and argue the defense.  The state continues to assert on appeal that a self-defense instruction would have greatly prejudiced the state and was inappropriate under the evidence.  There is no controversy as to the lack of timeliness of the notice.  And despite the court’s decision not to rule on the prejudice and inappropriateness of the self-defense instruction, that issue is clearly before us for review.

            It is a crime for a person to obstruct, resist, or interfere with a peace officer who is engaged in official duties.  Minn. Stat. § 609.50, subd. 1(2) (2000).  If obstruction of a peace officer is “accompanied by force or violence or the threat thereof,” it becomes a gross misdemeanor.  Minn. Stat. § 609.50, subd. 2(2) (2000).

            Trooper Larson testified that Clancy was speeding and that is why he stopped him.  Clancy does not deny that he was speeding, but rather contends that he was traveling only two miles per hour over the speed limit.  Thus, the record conclusively shows that Larson was engaged in the performance of his official duty of investigating a speeding violation when the incident under consideration occurred.

            Larson testified that he perceived Clancy’s conduct to be threatening and that he feared for his own safety.  He pointed to Clancy’s movements toward his squad car, his anger, his clenched fists, and his aggressive challenge by pointing to the ground and yelling, “You’re mine.”  Additionally, Larson noted Clancy’s resistive behavior even in the presence of other officers and his physical struggle with Larson and others who tried to handcuff him.  Although Clancy denied making any threat, except possibly to sue Larson and take his job away, and although he denied engaging in any physical struggle, the credibility of the evidence is the prerogative of the jury.  State v. Bakken, 604 N.W.2d 106, 111 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000).  Thus, the evidence supports the conclusion that Larson was performing his duties lawfully and that Clancy obstructed that performance and threatened physical force, and even engaged in some degree of physical force when the officers tried to handcuff him.

            Self-defense is the privilege to use reasonable force to resist some offense that is being committed against a person or that the person reasonably believes is being committed.  10 Minnesota Practice, CRIMJIG 7.06; State v. Graham, 371 N.W.2d 204, 209 (Minn. 1985) (explaining that self-defense instruction requires that the defendant submit “reasonable evidence that the victim was committing an independent assault on defendant * * * .”) (citation omitted).  A person does not have the right to use physical force solely because he believes officers are violating his rights, or even if in fact the officers are violating his rights.  State v. Wick, 331 N.W.2d 769, 771 (Minn. 1983).

            On this record, the claim of self-defense is not supportable and it would have been unduly prejudicial to the state had the district court given the self-defense instruction to the jury.

            Clancy next argues that the district court erred by failing to instruct the jury that oral statements alone cannot form the basis for such a conviction.  At trial, Clancy failed to object to the court’s instruction regarding the elements of the obstruction charge.  Usually, such a failure to propose specific jury instructions or object to those given precludes review of the instructions.  But even with this failure, this court has discretion to consider whether the “instructions contain plain error affecting substantial rights or an error of fundamental law.”  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  Plain error has three components: (1) error, (2) that is plain, and (3) that affects substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

            The court’s instructions must define the crime charged.  State v. Crace, 289 N.W.2d 54, 59 (Minn. 1979).  Clancy was charged with obstructing legal process “by force or violence or the threat thereof.”  Minn. Stat. § 609.50, subd. 2(2).  Clancy’s conduct went beyond mere words.  The evidence showed that he clenched and raised his fists and told Trooper Larson, “You’re mine.”  The evidence also revealed that Clancy repeatedly, angrily advanced toward the squad car while shouting obscenities.  It was altogether reasonable for Larson to have believed that Clancy was threatening physical force or violence.

            The court instructed the jury that the term “force” means “intentionally inflicting, attempting to inflict or threatening to inflict bodily harm upon another or intentionally causing fear in another of immediate bodily harm.”  The angry words, “You’re mine,” accompanied by Clancy’s physical postures and movements fit the definition of force.  Because the evidence does not show that Clancy’s behavior consisted merely of “non-fighting” words, but included an angry tone of voice and aggressive, combative physical gestures and motions, it was not error for the district court to decline to instruct the jury that oral statements alone cannot form the basis of obstructing legal process.





RANDALL, Judge (concurring specially)

            I concur in the result.