This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Barry Russell,




Filed November 5, 2002

Mulally, Judge*


Ramsey County District Court

File No. K0012129


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


Susan Gaertner, Ramsey County Attorney, John T. Penland, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)


John M. Stuart, State Public Defender, Ann Brom McCaughan, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, and Mulally, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Barry Russell was convicted after a jury trial of the gross misdemeanor offense of giving false information to a police officer, Minn. Stat. § 609.506, subd. 2 (2000).  He urges this court to overturn his conviction, alleging that there is insufficient evidence to sustain the verdict and that this statute is unconstitutionally vague.  Because the record contains sufficient evidence to permit a jury to find Russell guilty beyond a reasonable doubt, we affirm.  Because Minn. Stat. § 609.506, subd. 2 is definite enough so that ordinary people can understand what conduct is prohibited, we conclude that it is not unconstitutionally vague.


I.  Sufficiency of the Evidence

            Where there is a claim that the evidence is not sufficient to sustain the verdict, the reviewing court is limited to

ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged.


State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997) (citation omitted).  The evidence must be viewed in a light most favorable to the conviction and the reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence.  Id. 

            Minn. Stat. § 609.506, subd. 2 states:

Whoever with intent to obstruct justice gives the name and date of birth of another person to a peace officer * * * when the officer makes inquiries incident to a lawful investigatory stop or lawful arrest, or inquiries incident to executing any other duty imposed by law, is guilty of a gross misdemeanor.


            Here, police officers asked Russell for identification after he twice invited a police officer working undercover as a prostitution decoy to come to his home for drugs.  According to the officers’ testimony, Russell gave the name and birth date of his cousin. After consenting to a search that resulted in the discovery of a crack pipe, Russell was placed under arrest.  He then gave his true name and birth date, leading police to discover an outstanding felony warrant.  Similar fact situations have resulted in convictions for this charge.  See, e.g., State v. Costello, 620 N.W.2d 924, 928-29 (Minn. App. 2001), rev’d on other grounds, 646 N.W.2d 204 (Minn. 2002); State v. Bauman, 586 N.W.2d 416, 420 (Minn. App. 1998), review denied (Minn. Jan. 27, 1999); State v. Jeter, 558 N.W.2d 505, 507 (Minn. App. 1997).

            Russell argues that because there are inconsistencies between his testimony and that of the police officers, the evidence is not sufficient to sustain the verdict.  This is essentially a credibility issue within the “exclusive province of the jury.”  State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999).  The jury could reasonably have concluded that Russell was not credible and could have believed the testimony presented by the state.  The minor inconsistencies in the state’s testimony do not mandate reversal.  See State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).

            Russell also asserts that the police were not engaged in official duties because they lacked sufficient cause to make an investigatory stop and to ask for identification.  An investigatory stop is permitted where police have a reasonable and articulable suspicion that a person is engaged in or about to engage in criminal activity.  United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981); State v. George, 557 N.W.2d 575, 578 (Minn. 1997).  The standard for an investigatory stop is somewhat less than probable cause, but more than a mere suspicion or an inarticulate hunch.  See Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1879 (1968); State v. Engholm, 290 N.W.3d 780, 783 (Minn. 1980).  An officer may ask for identification during a Terry stop.  State v. White, 489 N.W.2d 792, 793 (Minn. 1992). 

            Here, officers were running a sting operation in a high-crime area.  They knew that Russell was not acquainted with the decoy officer.  They overheard him offer to provide her with illegal drugs.  They removed the undercover officer from her decoy position to clear Russell from the area, but he returned and again began conversing with her.  Russell admitted to the decoy officer that he was nervous because there were many police in the area and he had an outstanding warrant.  The totality of these circumstances is enough to permit a brief investigatory stop.

            Based on the evidence presented, a jury could reasonably conclude that Russell was guilty beyond a reasonable doubt of giving false information to police.

II.  Constitutional Issue

            On appeal, Russell raises for the first time the question of whether Minn. Stat. § 609.506, subd. 2, is unconstitutionally vague because it fails to define the phrase “obstruct justice.”  The state correctly points out that this court need not determine issues not raised before the district court, including “constitutional questions of criminal procedure.”  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  This court may, however, consider such issues in the interests of justice, if doing so “would not unfairly surprise a party to the appeal.”  Id.  

            A criminal law is unconstitutionally vague when it fails to define a criminal offense “with sufficient definiteness that ordinary people can understand what conduct is prohibited * * * in a manner that does not encourage arbitrary and discriminatory enforcement.”  Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983).  Thus, in Kolender, the United States Supreme Court concluded that a statute requiring a person loitering or wandering on the street to present “credible and reliable” identification and to “account for his presence when requested by any peace officer” was void for vagueness.  Id. at 353 n.1, 103 S. Ct. at 1856 n.1.  The Court cited the failure to “establish standards by which the officers may determine whether the suspect has complied with the subsequent identification requirement” and the vesting of “virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute.”  Id. at 358-61, 103 S. Ct. at 1858-60; see State v. Newstrom, 371 N.W.2d 525, 528 (Minn. 1985) (applying same standard to state law).

            There is a significant difference between the statutes found void in Kolender and Newstrom, and Minn. Stat. § 609.506, subd. 2, which limits application to situations where a person uses the name of another person when a peace officer asks for identification incident to a lawful investigatory stop, arrest, or other inquiry made while carrying out a lawfully imposed duty.  Thus, unlike Kolender, the officer must already have at least a suspicion of possible criminal activity in order to make a lawful investigatory stop.  Giving a false name in order to avoid arrest or investigation or to pass blame to another would be sufficient to show an intentional obstruction of justice.

            Particularly as applied to the facts of this matter, Minn. Stat. § 609.506, subd. 2, is not unconstitutionally vague.  See State v. Kager, 382 N.W.2d 287, 289 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986) (stating that when challenging a statute for vagueness, party must demonstrate “statute lacks specificity as to his own behavior and not as to some hypothetical situation.”).  We affirm the conviction. 



*   Retired judge of the district court, serving as judge of the Minnesota  Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.