This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,


Michael Wayne Smith,


Filed February 3, 2004

Affirmed in part, reversed in part, and remanded

Stoneburner, Judge


Hennepin County District Court

File No. 02047580


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


Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, Minnesota Public Defender, Lawrence W. Pry, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N




            On appeal from conviction and sentence for fourth-degree assault and third-degree riot, Michael Wayne Smith argues that the state presented insufficient evidence to prove that he was not using reasonable force to defend his property against a trespass by the undercover law enforcement officers.  Appellant also argues that the assault and riot offenses were part of the same behavioral incident and therefore should not have been separately sentenced.  We affirm the convictions but because appellant was charged with two offenses that arose out of the same behavioral incident, we reverse the sentences and remand for resentencing.



            Minneapolis undercover police officers Aaron Prescott and Richard Lillard were on their way to the address of a suspected drug dealer when they saw a young white male running away from a DiGiorno Pizza delivery truck with a large cardboard box.  The officers saw the house toward which the young man was running and, after checking the address of the suspected drug dealer with no results, returned to that house in an attempt to recover the pizzas they suspected the young man had stolen.  The young man was on the porch with a younger female (appellant’s daughter) and another young man later identified as Dennis Babcock.  Prescott, who was wearing his badge on a chain around his neck, and Lillard, who was displaying his badge in his wallet, approached the porch.  The young people began yelling at the officers, telling them if they wanted to come into the house they had to get a search warrant.

            The suspected pizza-thief yelled into the house “the police are here.”  Patsy Smith, appellant’s wife, came to the porch and began to tell the officers that they could not come into the house.  Someone yelled into the house again “the police are here.”  Appellant Michael Wayne Smith came onto the porch and also told the officers to “get a search warrant.”  There was further yelling and some threats from appellant and Babcock.  A pit bull came out of the house, and Prescott and Lillard drew their guns and trained them on the dog until someone took it inside.  Babcock asked Lillard, “What are you going to do, shoot me?”  Then everyone except the officers went into the house.  Prescott walked around to the back of the house to make sure no one was coming out that way to ambush the officers.  Lillard remained in front of the house, looking into the enclosed porch for evidence of the stolen pizzas. 

            According to Lillard, appellant charged out of the house, grabbed the doorframe and kicked Lillard in the chest, causing him to fall backwards down the steps.  Lillard decided to arrest appellant for assault.  They began to wrestle.  Other people, including Babcock, came onto the porch and were punching and kicking at Lillard, who yelled to Prescott for help.

            Prescott heard the call and ran to the front of the house and radioed for back up.  Prescott stepped up on the porch and punched one of Lillard’s assailants, whereupon Babcock, the pizza-theft suspect, and another man began to assault Prescott, punching, biting, and shoving him.  Prescott realized that his gun was in his waistband and could fall out at any time, so he reached for it and felt someone trying to grab it.  Appellant had Lillard in a headlock and was bashing his head into the side of the porch, but Lillard could see that Prescott’s assailants were trying to take Prescott’s gun out of his hands.  Babcock said, “Give me your gun.  Give me your gun.  Get the gun.  I’ll shoot you, I’ll kill you,” as he was pulling Prescott’s gun out of his hand.  Lillard was losing consciousness due to the headlock when he heard a gunshot and believed Prescott had been shot.  Lillard took out his gun, pushed appellant away, and backed off the porch as he fired two rounds at appellant.  Prescott heard those shots, and fearing Lillard had been shot, bit the arm of the person trying to grab his gun, turned around and fired a shot. Prescott rolled away, but saw Babcock coming at him so he shot Babcock.  Backup arrived.

            Appellant and the other occupants of the house disputed the officers’ version of events.  Appellant claimed that he did not know that Lillard and Prescott, who were attacking his family, were police officers and that he was using reasonable force to resist a perceived threat to himself and his property.  Appellant and Babcock were tried jointly.  The jury found appellant guilty of fourth-degree assault and third-degree riot.  Appellant was sentenced to 365 days in jail and a $1,000 fine ($900 stayed) for riot and a stayed consecutive year-and-a-day in prison for assault, and was placed on probation for three years.  This appeal followed.



I.          Insufficient evidence

            In considering a claim of insufficient evidence, this court’s review is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  This is especially true when resolution of the matter depends mainly on conflicting testimony.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            At trial, appellant raised the affirmative defenses of self-defense and defense of property.  But in his brief, appellant focuses his argument on defense of property.  Defense of property is defined as follows:

[R]easonable force may be used upon or toward the person of another without the other’s consent when the following circumstances exist or the actor reasonably believes them to exist:


            . . . .


(4)       when used by any person in lawful possession of real or personal property, or by another assisting the person in lawful possession in resisting a trespass upon or other unlawful interference with such property.


Minn. Stat. § 609.06, subd. 1(4) (2000).  The elements of defense of property are as follows:  (1) the defendant was in lawful possession of real or personal property; (2) defendant had an actual and honest belief that a trespass was being committed; (3) defendant’s judgment as to the gravity of the situation was reasonable under the circumstances; and (4) the defendant’s decision to defend the property was reasonable in light of the perceived threat.  State v. Carothers, 594 N.W.2d 897, 904 (Minn. 1999); Minn. Stat. § 609.06, subd. 1(4).

            Appellant concedes that the only element disputed at trial was whether appellant’s belief that Lillard and Prescott were mere trespassers and not police officers was reasonable.  Appellant claims that there was no evidence that he could have seen Prescott’s badge or that he heard someone call into the house that the police were there.  But the evidence presented, and the reasonable inferences drawn from that evidence, were sufficient for the jury to determine that appellant knew that the men on his porch were police officers.

            Appellant concedes that there was ample evidence that Lillard identified himself as a police officer to the pizza-theft suspect, to appellant’s daughter, to appellant’s wife, and to appellant’s codefendant.  And appellant’s wife testified that she could see Prescott’s badge around his neck, confirming Prescott’s assertion that his badge was in plain view.  Someone behind appellant’s wife yelled into the house, “The police are here,” and a few seconds later appellant came to the front door.  The jury could reasonably infer that appellant came to the door in response to the announcement that the police were at the house.  Appellant and his wife told Lillard and Prescott, “You can’t come in here; get a search warrant,” leading to an inference that they recognized the men as police officers.  Based on this evidence, the only reasonable inference for the jury to draw was that appellant knew that the two men were police officers and therefore, appellant’s claimed belief that the men were trespassers was not reasonable under the circumstances.  Once the jury came to the conclusion that appellant knew the two men were police officers, his behavior was no longer reasonably justifiable based on defense of property.     

            “Minnesota law does not recognize defendant’s asserted right to resist an unlawful arrest or search.”  State v. Wick, 331 N.W.2d 769, 771 (Minn. 1983). 

[W]hile a defendant would have a right to resist an officer in order to defend himself or another against unjustified bodily attack, assaultive conduct is not justifiable solely on the ground that the officers are violating the defendant’s fourth amendment rights, or on the ground that the defendant believes that the officers are violating his rights. 


Id.  Once the jury concluded that appellant knew the two men were police officers, then appellant’s actions could not be justified under the defenses of self-defense or defense of property because the jury must have also believed Lillard when he testified that appellant assaulted him first.  Therefore appellant’s “assaultive conduct” was no longer justifiable, even if appellant believed the officers were violating his rights.

II.        Multiple sentences

            The court may impose only one sentence if a person’s conduct constitutes more than one offense but is part of the same behavioral incident.  See Minn. Stat. § 609.035, subd. 1 (2000).  “The purpose of this section is to protect a defendant convicted of multiple offenses against unfair exaggeration of the criminality of his conduct.”  State v. Johnson, 653 N.W.2d 646, 651 (Minn. App. 2002).  Whether offenses arose out of the same behavioral incident depends on the facts and circumstances of the particular case.  State v. Bookwalter, 541 N.W.2d 290, 294 (Minn. 1995).  The court, in making that determination, looks at the factors of time and place and whether the conduct was motivated by a single criminal objective.  Id.  The district court’s decision is a fact determination that is not reversed on appeal unless clearly erroneous.  Effinger v. State, 380 N.W.2d 483, 489 (Minn. 1986).

            On appeal, the state argues that all of the elements of third-degree riot had been met when all of the occupants of the house went back into the house, and that the assault occurred later, when appellant charged out of the house and kicked Lillard.  But appellant was not charged with third-degree riot for making unlawful threats of force or violence under Minn. Stat. § 609.71, subd. 3, which might have provided support for the argument that the offenses were separate and distinct in time and motivation.

            The complaint and jury instructions clearly demonstrate that the riot charge was based on appellant’s “intentionally acting with unlawful force or violence” to the officers, part-and-parcel of appellant’s assault.  We agree with appellant that on this record, the charges arose out a single behavioral incident, motivated by a single criminal objective, and that under Minn. Stat. § 609.035, subd. 1, appellant cannot be separately sentenced for the two convictions.  Therefore, we reverse the sentences imposed and remand for resentencing.

            Affirmed in part, reversed in part, and remanded.