This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-75

 

State of Minnesota,

Respondent,

 

vs.

 

Mebrat Belay Yeazizw,

Appellant.

 

Filed March 23, 2004

Affirmed; motion granted

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 01079181

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Jay M. Heffern, Minneapolis City Attorney, Mary Ellen Heng, Assistant City Attorney, 333 South 7th Street, Suite 300, Minneapolis, MN 55402 (for respondent)

 

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414; and

 

Jill Clark, Special Assistant Public Defender, 2005 Aquila Avenue North, Golden Valley, MN 55427; and

 

Jill Waite, Special Assistant Public Defender, 2856 Humboldt Avenue South, Minneapolis, MN 55408 (for appellant)

 

 

            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Mebrat Belay Yeazizw challenges her convictions of disorderly conduct and obstructing legal process arguing that (1) the obstructing-legal-process statute is unconstitutionally vague and overbroad; (2) the district court abused its discretion in failing to instruct the jury on certain issues; (3) the district court abused its discretion in failing to grant appellant probable-cause and Rasmussen hearings; (4) the lack of an independent investigation by police at the scene denied appellant a right to a fair trial; (5) the denial of adequate discovery denied her the chance to obtain a discriminatory-enforcement hearing; (6) the jury verdicts were legally and logically inconsistent; and (7) there was insufficient evidence to support both convictions.  We affirm.

FACTS

            On September 22, 2001, Minneapolis Police Officer Linda Chaplin was working her off-duty job at a Walgreens in Minneapolis.  She was wearing her Minneapolis Police Department uniform that evening.  Chaplin testified that when working a part-time job in uniform her first responsibility is to the Minneapolis Police Department and that she is subject to all the rules and regulations she would normally be subject to when working as a police officer.

            The Walgreens has signs in its parking lot indicating that only Walgreens’ customers may park in its lot.  Some drivers violate this regulation by parking in the Walgreens’ parking lot while shopping at the nearby Somali Mall.  At approximately 8:00 p.m., a Walgreens manager requested that a privately employed tow-truck driver “boot” the parked vehicles in its lot that were in violation of the signs.  The tow-truck driver asked Chaplin to monitor the situation while he put the “boots” on the vehicles.

            Chaplin testified that she observed appellant, an East African black woman, come out of the Somali Mall and walk toward a vehicle that was parked in the back row of the Walgreens’ parking lot.  Chaplin observed appellant peel off a sticker from her driver’s window and remove a piece of paper from beneath her windshield wiper, both of which the tow-truck driver had placed on the vehicle in order to notify appellant that her vehicle had an immobilization device on its wheel.  Chaplin contends appellant got into her vehicle, rolled down her window, and yelled at the tow-truck driver that he couldn’t do this.  Testimony differs about the argument and subsequent events.  Chaplin claims that appellant then got out of her vehicle, continuing to yell.  The tow-truck driver asserts that he tried to explain to appellant that she should not move her vehicle, but realized that there likely had been miscommunication because of appellant’s limited English-speaking skills.  Chaplin contends that she and the tow-truck driver then approached appellant and explained the situation to her.

            Appellant got back into her vehicle, started it, backed up out of her parking space, and drove toward the parking lot’s exit.  Appellant was able to drive her vehicle with the boot attached because, according to the tow-truck driver, the boot and key were old, and therefore he was not able to fully tighten it.  Chaplin radioed dispatch that there was a vehicle leaving the lot with a boot attached to its wheel.  Chaplin contends that even though appellant was driving very slowly, Chaplin was concerned for the people standing in appellant’s path.  Two witnesses stated that they never felt appellant’s driving posed any risk to bystanders. 

Chaplin stated that she ran after the car, opened the driver’s door, and ordered appellant to stop the vehicle.  Appellant claims that Chaplin called her an “Arabic terrorist,” but Chaplin denies ever doing so.  Chaplin testified that appellant refused to turn off her vehicle and instead struck Chaplin in the head and chest.  Chaplin reached in the vehicle, put the car in park, turned off the ignition, and told appellant that she was under arrest.  When Chaplin ordered appellant out of the vehicle, she refused to cooperate.  Chaplin then physically tried to extract appellant.  After she failed, Chaplin radioed dispatch again.  Chaplin then took appellant by the hair and pushed her head down into her lap and held her there until backup arrived.  Chaplin denies ever punching or striking appellant.  One witness testified that Chaplin reached in and grabbed appellant by the hair but that appellant never punched, slapped, or hit Chaplin. 

Two additional officers arrived, including Officer John Hawes.  After observing Chaplin struggling with appellant, he approached and tried to help.  When his initial technique did not work, he took out his mace and sprayed it at appellant.  The officers were then able to remove appellant from the vehicle.  Meanwhile, a crowd of 30-40 people had gathered to watch.  The officers chose not to interview any of them, stating that they regarded the crowd as hostile because the people were yelling for the officers to stop and to let appellant go.  Chaplin explained that whether or not police take down names of witnesses depends on the crime charged, and that while an officer might take names for assault, the officer would not for disorderly conduct.  Chaplin did, however, take down the names of the tow-truck drivers.

Appellant was formally charged with fourth-degree assault on a police officer under Minn. Stat. § 609.2231, subd. 1 (2000), obstructing legal process under Minn. Stat. § 609.50, subds. 1, 2(2) (2000), disorderly conduct under Minn. Stat. § 609.72, subd. 1 (2000), and failure to obey a police officer under Minneapolis, Minn., Code of Ordinances § 466.130 (2000).  Throughout the pretrial period, appellant filed several discovery requests and several motions.  She moved for a probable-cause hearing, a discriminatory-enforcement-of-the-law hearing, and for dismissal on constitutional grounds, including that the obstructing-legal-process and disorderly conduct statutes are unconstitutional.  All of the motions were subsequently denied except for appellant’s motion to dismiss the failure to obey a police officer charge, which was granted.

On November 13, 2002, appellant renewed her motions for a Rasmussen hearing, a probable-cause hearing, dismissal for lack of probable cause, and made various other pretrial motions.  The district court denied the motions and appellant’s jury trial began.  During the jury’s deliberations, the jury questioned whether a person must engage in brawling or fighting to be guilty of disorderly conduct.  The district court, with both attorneys’ agreement, advised the jury to re-read the jury instructions.  Later that day, the jury returned a not-guilty verdict for gross misdemeanor obstruction of legal process (with force) and a not-guilty verdict for fourth-degree assault on a police officer.  Appellant was convicted of disorderly conduct and misdemeanor obstructing legal process.  Appellant moved the district court to acquit, vacate the judgment and/or for a new trial.  All motions were denied and appellant was later sentenced.  This appeal follows.

D E C I S I O N

I.

            Appellant argues that the statute underlying her obstruction-of-legal-process conviction is unconstitutionally vague and overbroad on its face.  The statute prohibits conduct that “obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties.”  Minn. Stat. § 609.50, subd. 1(2) (2000).  The constitutionality of a statute presents a question of law, which we review de novo.  State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).

            Statutes may be void for vagueness under the Due Process Clause of the Fourteenth Amendment to the United States Constitution and article I, section 7, of the Minnesota Constitution.  State v. Newstrom, 371 N.W.2d 525, 528 (Minn. 1985).  To satisfy the requirements of due process, a statute must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”  Id. (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858 (1983)).  “A statute is overbroad on its face if it prohibits constitutionally protected activity, in addition to activity that may be prohibited without offending constitutional rights.”  State v. Machholz, 574 N.W.2d 415, 419 (Minn. 1998).

            Appellant asserts that under the statute there is no way someone of ordinary intelligence can know if they are interfering with a peace officer while he or she is engaged in official duties.  More specifically, appellant claims that the phrase “official duties” evokes constitutional doubts, therefore making the statute vague.  Appellant also asserts that the subsection leaves the police with “unfettered discretion to arrest individuals for words or conduct that annoy or offend them.”  See Houston v. Hill, 482 U.S. 451, 465, 107 S. Ct. 2502, 2511 (1987). 

            The Minnesota Supreme Court has determined that Minn. Stat. § 609.50, subd. 1(2), is not facially vague.  State v. Krawsky, 426 N.W.2d 875, 879 (Minn. 1988); see also State v. Tomlin, 622 N.W.2d 546, 548 (Minn. 2001) (noting that the Krawsky court “held that section 609.50 was not facially . . . vague”).  The Krawsky court stated that “[p]ersons of common intelligence need not guess at whether their conduct violates the statute” and the statute does not “encourage arbitrary or discriminatory enforcement by the police.”  Krawsky, 426 N.W.2d at 878.  Further, the Krawsky court emphasized that “given the wide variety of circumstances in which the type of conduct section 609.50 legitimately seeks to proscribe can occur, it seems unlikely that a substantially more precise standard could be formulated which would not risk nullification in practice because of easy evasion.”  Id. at 878-79.  While the statute was worded differently at the time Krawsky was decided, the specific provision at issue in Krawsky is the same provision that has now been incorporated into subdivision 1(2).  Therefore, the court impliedly determined the phrase “official duties” is not unconstitutionally vague.

            Appellant also argues that “the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when judged in relation to the statute’s plainly legitimate sweep.”  See Chicago v. Morales, 527 U.S. 41, 52, 119 S. Ct. 1849, 1857 (1999) (quotation omitted).  Appellant asserts that her screams and physical movements were merely a reaction to Chaplin’s acts of grabbing her and pulling her hair and are privileged under the First Amendment.  Appellant argues that because the statute sweeps up this type of predictable conduct in response to police force, it is overly broad. 

            But the Minnesota Supreme Court has also previously determined that Minn. Stat. § 609.50, subd. 1(2), is not unconstitutionally overbroad.  Krawsky, 426 N.W.2d at 878; see also Tomlin, 622 N.W.2d at 548 (noting the Krawsky court “held that section 609.50 was not facially overbroad”).  The court reasoned that the statute is not overbroad because it (1) prohibits only intentional conduct, (2) is directed solely at physical acts, and (3) is directed at the specific act of physically obstructing or interfering with a police officer.  Krawsky, 426 N.W.2d at 877.  In addition, Krawsky addressed the issue of protected speech, stating that the statute may apply to “fighting words” because they are not protected, but may not apply to mere verbal criticism directed at a police officer.  Id. at 877-78.  And, if the statute is used to punish verbal conduct of a defendant, some sort of physical act that intentionally obstructs or interferes with the police officer must also accompany the words.  Id.  Therefore, the statute is not at odds with the First Amendment.

            Because the statute clearly defines the actions that are prohibited and does not encourage discriminatory enforcement and because the statute does not infringe on constitutionally protected speech and is limited to words and conduct that physically interfere with a police officer performing official duties, the statute is not unconstitutionally vague or overbroad.

II.

            Appellant argues the district court abused its discretion when it denied her requests for certain jury instructions.  District courts are allowed “considerable latitude” in the selection of language for the jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  Jury instructions “must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case.”  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  The refusal to give a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion.  State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).  The focus of the analysis is on whether the refusal resulted in error.  State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001).

Two of appellant’s objections focused on the terms “peace officer” and “official duties.”  First, appellant objected to the obstructing-legal-process jury instruction and asked for the jury to decide whether Chaplin qualified as a “peace officer” at the time of the incident or whether she was working off-duty and, therefore, not protected by Minn. Stat. § 609.50 (2000).  The district court instructed the jury that in order to find appellant guilty of obstructing legal process they must find that (1) Chaplin was a peace officer attempting to protect the public from danger or injury; (2) appellant, through substantial physical hindrance, obstructed, resisted, or interfered with Chaplin in attempting to protect the public from danger or injury; and (3) appellant acted with the intent to do so.  The district court gave the following definition of a peace officer:

[A]n employee of a law enforcement agency who’s licensed by the Peace Officer Standards and Training Board charged with the prevention and detection of crime and the enforcement of the general criminal laws of the state and ordinances of the City of Minneapolis and who has the full power of arrest.

 

            The supreme court has held that even though an officer may be acting in a dual capacity, he or she does not lose the benefit of being a police officer when working off-duty in a private position.  State v. Childs, 269 N.W.2d 25, 27 (Minn. 1978) (holding the officer acted both “as a privately-employed security officer” and in “the additional role of a peace officer”).  In Childs, the court supported dual capacity in a shoplifting situation, which was not a life-or-death emergency.  See id.  This case, where the situation arguably presented danger to the public, is an even stronger one.  We need trained police officers to act without hesitation to protect the public.  The district court did not abuse its discretion in denying appellant’s requested instruction because whether Chaplin was working off-duty did not change her status as a peace officer.

Second, appellant requested an instruction that Chaplin was not engaged in “official duties” because she was attempting to enforce a civil debt.  The district court denied the request and instructed the jury that a peace officer “may lawfully arrest a person without a warrant when a public offense has been committed or attempted in the officer’s presence,” and that “[a] public offense means conduct which is prohibited by statute or ordinance and for which the actor may be imprisoned or fined.”

The Minnesota Supreme Court has recognized that generally the duties of police officers call for the exercise of significant judgment and discretion.  Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn. 1988).  One such discretionary duty is to “provide its citizens with security in person and property from lawless people.”  Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn. 1992) (providing immunity for officer performing a discretionary duty while engaging in a car chase, noting such decision involves weighing many factors).  Here, Chaplin arguably was attempting to provide the crowd of people security in their persons, which falls within her duties.  Because Chaplin was performing an official duty under the law, the only question that the jury needed to answer was whether the arrest was proper.  Minn. Stat. §§ 629.34, subd. 1, .40, subd. 4 (2000), empower a police officer to make an arrest in the officer’s own jurisdiction when a public offense has been committed in the officer’s presence.  Because the jury was properly instructed as to the law on this issue, the district court did not abuse its discretion in denying appellant’s request for an additional instruction.

Third, appellant requested an instruction that would have informed the jury that interruptions are not criminal conduct and that her conduct needed to be “a substantial physical hindrance, not temporary.”  The district court denied the request and instructed the jury that in order to find the defendant guilty, “the defendant [must have], through substantial physical hindrance, obstructed, resisted, or interfered with Linda Chaplin in attempting to protect the public from danger or injury.”  The district court did not abuse its discretion because the word “substantial” implies that the conduct has to be more than a mere interruption.  The jurors were allowed to hear the conflicting testimony regarding the length of time the encounter lasted between appellant and Chaplin and were allowed to determine for themselves whether they believed the conduct was a substantial physical hindrance.

III.

            Appellant argues that the district court abused its discretion by denying her motions for a probable-cause hearing.  Minn. R. Crim. P. 11.03 states, in part:

The court shall hear and determine all motions made by the defendant or prosecution, including a motion that there is an insufficient showing of probable cause to believe that the defendant committed the offense charged in the complaint, and receive such evidence as may be offered in support or opposition.  Each party may cross-examine any witnesses produced by the other.

 

The purpose of a probable-cause hearing is to “protect a defendant unjustly or improperly charged from being compelled to stand trial.”  State v. Florence, 306 Minn. 442, 454, 239 N.W.2d 892, 900 (1976).  An evidentiary hearing must be held in every case where the defendant produces witnesses who, if believed, would exonerate the defendant.  Id. at 457-58, 239 N.W.2d at 902.

            At the hearing on February 22, 2002, the state submitted probable cause on the record by offering the complaint to the court for review.  The written record at that time also consisted of five affidavits, one written report of a police expert, and three statements from officers.  The district court specifically and extensively addressed probable cause in its order and memorandum dated March 21, 2002.  The court acknowledged that appellant had a witness, Almaz Tesema, whose testimony, if believed, would exonerate appellant.  But the affidavit of Tesema was in the record, and the state waived its right to cross-examine the witness and asserted that it would stand on the record.  The court determined that “the state possesse[d] enough evidence contrary to the [appellant’s] witness, which would be admissible at trial, to justify a denial of a motion for a directed verdict.”  The court concluded that “there is probable cause to believe that the [appellant] committed the offenses of assault in the fourth degree, obstruction of legal process or arrest, and disorderly conduct, and that it is fair and reasonable to require the [appellant] to stand trial.”  The district court’s analysis sufficiently reflects that the charges were supported by probable cause.  Therefore, the district court did not abuse its discretion when it denied appellant’s motions for a probable-cause hearing.

            Appellant also asserts that the district court abused its discretion by denying a Rasmussen hearing.  On November 13, 2002, the first morning of trial, appellant requested a Rasmussen hearing on the record, asserting that the basis was that the stop was unconstitutional and everything after the officer’s order to stop should be suppressed.  The court denied appellant’s motion stating, “There’s nothing to suppress.”

            This case had been re-scheduled for trial three different times over the course of eight months.  The state gave notice on the morning of November 12, 2002, that it would move the court to exclude certain evidence.  Appellant’s subpoenas were continued for appearance on that date.  Therefore, appellant was on notice that certain evidentiary suppression motions would be heard at that time.  Appellant had ample opportunity to be prepared for a Rasmussen hearing on November 12, but chose not to do so.  Further, while appellant renewed her request for a probable-cause hearing throughout, she never formally renewed her request for a Rasmussen hearing until November 13.  Even so, the district court fully considered the written record and appellant’s argument and denied the motion because it believed that an additional hearing would not serve any purpose.  We conclude the district court did not abuse its discretion.

IV.

            Appellant argues that because the officers did not conduct an independent investigation, she was denied her right to a fair trial.  Specifically, appellant contends the officers should have taken down the names of the approximately 40 witnesses at the scene.  Appellant asserts the officers selectively preserved evidence that corroborated only their side of the story and contends that they did so to cover up their own misconduct.

            The authority that appellant cites to support her argument that police are required to perform an independent investigation is distinguishable.  In Shorter v. State, 511 N.W.2d 743, 747 (Minn. 1994), the supreme court ordered the district court to grant appellant’s motion to withdraw his guilty plea and proceed to trial.  But there, the police themselves admitted that the initial investigation was incomplete.  Id. at 746.  Further, an actual witness list was made and the supreme court found issue with the fact that parts of that list were withheld, not with whether the list was sufficient in the first place.  Id.  The most influential distinguishing fact is that here, the officers were present at the scene during the alleged misconduct by appellant.  They did not arrive after the incident and have to rely solely on other people’s recollections.

            Appellant also asserts that because other eyewitnesses were available for interview, reliance on the officers’ allegations alone fails to establish probable cause.  See Baptiste v. J.C. Penny Co., 147 F.3d 1252, 1257 (10th Cir. 1998) (holding reliance on security guards’ allegations insufficient when there was a videotape available to view).  Baptiste is limited by its facts.  The Baptiste court stated that “[o]fficers may not rely solely on a security guard’s allegations when the officers have before them an exact replication of all the information on which the guard’s allegations are based.”  Id.  Here, there was no videotape.  While other witnesses could have been interviewed, there is no guarantee that their account would be an exact replication of what happened. 

            There is no minimum number as to how many people should be interviewed at a crime scene to make the investigation adequate.  Here, because one of the officers was present to experience appellant’s conduct and to evaluate personally whether there was probable cause for arrest, and there were other officers, tow-truck drivers, and appellant herself, who were provided a full and fair opportunity to testify as to the events, appellant’s right to a fair trial was not denied.

V.

            Appellant argues that the district court erred when it denied her request for a discriminatory-enforcement hearing.  Appellant alleges that she was arrested and prosecuted because of her race and ethnicity.  The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits intentional discriminatory enforcement of nondiscriminatory laws.  City of Minneapolis v. Buschette, 307 Minn. 60, 64, 240 N.W.2d 500, 502 (1976).  Although criminal prosecutions are presumed to have been undertaken in good faith and in a nondiscriminatory manner, State v. Hyland, 431 N.W.2d 868, 872 (Minn. App. 1988), a criminal defendant may raise the defense of discriminatory enforcement of criminal laws by law enforcement officials at all levels.  Buschette, 307 Minn. at 66, 240 N.W.2d at 503.  The discriminatory-enforcement issue is properly considered at a pretrial hearing, where the defense has the burden of proving discrimination by a clear preponderance of the evidence.  Id.  If intentional and purposeful discrimination is shown, the court may dismiss the charge against the defendant.  Id. at 66, 240 N.W.2d at 503-04.

            In order to make a threshold showing to trigger a discriminatory-enforcement hearing, “a defendant must allege sufficient facts to take the question past the frivolous state and to raise a reasonable doubt as to the prosecutor’s purpose.”  Hyland, 431 N.W.2d at 873.  Because the decision to deny a hearing is similar to an evidentiary ruling, this court reviews the district court’s decision under an abuse-of-discretion standard.  See State v. Henderson, 620 N.W.2d 688, 704 (Minn. 2001) (using abuse-of-discretion standard to review district court’s determination that defendant had failed to establish a prima facie case of purposeful discrimination in the exercise of a peremptory challenge).

            To take a claim of discriminatory enforcement beyond the frivolous state, the defendant must allege facts showing both that he was “singled out for enforcement and that his selection was invidious or in bad faith.”  Hyland, 431 N.W.2d at 873.  Here, appellant argues that she met this initial burden.  But the record supports the district court’s conclusion that appellant was singled out for arrest and prosecution based on her actions in the parking lot on September 22, 2001, not because of her race or ethnicity.  The evidence appellant presents focuses on being singled out for being towed, not on being singled out for being charged with obstructing legal process or disorderly conduct, which are the two offenses at issue here.  The only evidence appellant presents in that regard is an unrelated article concerning a disparity in the number of minorities arrested for disorderly conduct in Minnesota.  The article makes no mention of statistics for obstruction of legal process and does not focus on specific areas or locations in Minnesota.  In order to sustain her burden of production to obtain a discriminatory-enforcement hearing, appellant would have had to produce specific evidence showing that she, as an East African, was targeted for the charges of obstructing legal process or disorderly conduct because of her race.  This would have included evidence that similarly situated white people are not charged with those crimes.  She did not meet this burden.  Therefore, we conclude the district court did not abuse its discretion in denying appellant’s motion for a discriminatory-enforcement hearing.

Appellant argues in the alternative that the district court abused its discretion in denying her motion for additional discovery.  She asserts the additional discovery would have allowed her to meet her burden for a discriminatory-enforcement hearing.  The district court has discretion in deciding a discovery motion.  State v. Davis, 592 N.W.2d 457, 459 (Minn. 1999). 

Appellant argued her need for additional discovery before the district court.  In denying appellant’s requests, the district court stated:

“The justifications for a rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous standard for discovery in aid of such a claim.”  The threshold for obtaining additional discovery requires the [d]efendant to make some showing of the existence of a selective-prosecution claim.  There must be evidence that other similarly situated persons of another race could have been prosecuted but were not.

 

(Citation omitted.)  Courts uniformly require that the defendant make some initial showing of discriminatory enforcement before she will be entitled to discovery relating to that allegation.  United States v. Mosley, 500 F. Supp. 601, 606 (D.C.N.Y. 1980); United States v. Johnson, 577 F.2d 1304, 1309 (5th Cir. 1978); United States v. Oaks, 508 F.2d 1403, 1405 (9th Cir. 1974); United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974); United States v. Berrigan, 482 F.2d 171, 181 (3d Cir. 1973).  As discussed above, appellant did not provide sufficient evidence to show that similarly situated Caucasian people might not be charged with disorderly conduct or obstruction of legal process.  Because she did not meet the standard for discovery, the district court did not abuse its discretion in denying appellant’s motion.

VI.

            Appellant argues that there was insufficient evidence of both disorderly conduct and obstruction of legal process.  When considering a claim of insufficient evidence, this court’s review is limited to a careful analysis of the records to determine whether the evidence, 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.[1]  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  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 the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  A conviction can rest on the testimony of a single witness, and it is the jury that determines the weight and credibility to be assigned to individual witnesses.  State v. Miles, 585 N.W.2d 368, 373 (Minn. 1998).

A.              Disorderly Conduct

            Appellant was convicted of disorderly conduct under Minn. Stat. § 609.72, subd. 1 (2000), which states:

Whoever does any of the following in a public or private place, . . . knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:

(1)  Engages in brawling or fighting[.]

 

            Chaplin testified that appellant flailed about in the car and physically resisted her as she attempted to remove appellant from the vehicle.  This, along with other testimony provided by Hawes and the tow-truck driver is evidence that appellant engaged in brawling or fighting.  As to appellant’s knowledge of the effect her actions would have on others, the evidence shows that because of the tow-truck driver’s presence and the sticker and the flier left on appellant’s car, appellant knew or had reasonable grounds to know that the tow-truck driver was involved in some way with her vehicle.  The record also reflects that she was warned several times by both Chaplin and the tow-truck driver not to drive her car and that, despite those warnings, appellant attempted to drive her car from the parking lot.  In addition, Chaplin testified that appellant refused to stop when ordered to do so and that a crowd had gathered that the officers believed to be hostile.  Chaplin’s disturbance is evidenced by her yelling at appellant to stop and by her physically attempting to restrain appellant.  While there is contradictory evidence in the record, it is the exclusive role of the jury to determine the weight and credibility of witness testimony.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  Viewing the evidence in the light most favorable to the state, we conclude there was sufficient evidence to support the jury’s finding that appellant engaged in brawling or fighting, and that appellant had reasonable grounds to know that her brawling or fighting would tend to alarm, anger, or disturb either the police officers, the tow-truck drivers, or the on-looking crowd or would provoke an assault or breach of the peace.

B.            Obstruction of Legal Process

            A person who intentionally “obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties” is guilty of obstructing legal process.  Minn. Stat. § 609.50, subd. 1(2).  “[P]hysically obstructing or interfering with a police officer involves not merely interrupting an officer but substantially frustrating or hindering the officer in the performance of his duties.”  Krawsky, 426 N.W.2d at 877.  Appellant asserts that her conduct amounted to an interruption, at most.

            The record refutes that argument.  Chaplin testified that when she ordered appellant to stop her car, appellant refused.  In addition, when Chaplin confronted appellant inside her car, appellant physically resisted Chaplin’s attempts to remove her from the vehicle.  Chaplin testified that she was attempting to remove appellant in an effort to protect the public from danger.  Again, while there is contradictory evidence in the record, the jury is to decide the weight and credibility of witness testimony.  Folkers, 581 N.W.2d at 327.  The officer’s testimony regarding appellant’s behavior while inside the car and her refusal to stop the car when ordered supports a finding that appellant’s actions amounted to more than a mere interruption of police duties.  We conclude there was sufficient evidence to support the jury’s guilty verdict for obstructing legal process.

VII.

A.             Legally Inconsistent

Appellant argues that the jury’s guilty and not-guilty verdicts were legally inconsistent, entitling her to a new trial.  “Verdicts are legally inconsistent if proof of the elements of one offense negates a necessary element of another offense.  If a jury renders legally inconsistent verdicts, reversal is warranted.”  State v. Crowsbreast, 629 N.W.2d 433, 440 (Minn. 2001) (citations omitted).

            Appellant asserts that the not-guilty verdict of assault is legally inconsistent with the guilty verdict of disorderly conduct by brawling or fighting because she was found not guilty of intending to harm or injure and found not to have acted with force under the obstructing charge, which is at odds with finding her guilty of brawling or fighting.  But these verdicts are not legally inconsistent.  Brawling or fighting does not always include intent to harm or injure, nor does it necessarily include acting with force. 

            Appellant also asserts the not-guilty verdict of assault is legally inconsistent with the guilty verdict of misdemeanor obstructing legal process because she was found not guilty of intending to harm or injure and not to have acted with force under the obstructing charge, which is at odds with finding her guilty of misdemeanor obstructing legal process that requires a finding of substantial physical hindrance.  These verdicts are not legally inconsistent either.  Substantially physically hindering an officer does not necessarily include intent to harm or injure nor does it necessarily include acting with force.   

B.            Logically Inconsistent

            Appellant argues secondly that the jury’s guilty and not-guilty verdicts are logically inconsistent.  This court has held that a defendant is not entitled to a new trial based on the jury’s rendering logically inconsistent verdicts.  See Nelson v. State, 407 N.W.2d 729, 732 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987).  The general rule in Minnesota is that

a defendant who is found guilty of one count of a two count indictment or complaint is not entitled to a new trial or a dismissal simply because the jury found him not guilty of the other count, even if the guilty and not guilty verdicts may be said to be logically inconsistent.

 

State v. Juelfs, 270 N.W.2d 873, 873-74 (Minn. 1978).  This court has explained that “Minnesota law allows a jury in a criminal case to exercise lenity.  Thus, the focus is not upon the inconsistency of the acquittals, but upon whether there is sufficient evidence to sustain the guilty verdict.”  Nelson, 407 N.W.2d at 731 (citations omitted).

            Appellant asserts that the logical inconsistencies, combined with juror confusion about brawling and fighting and insufficient evidence to support the claims, warrant a new trial.  But as previously discussed, the evidence in this case is sufficient to sustain both guilty verdicts.  Further, it is logical that the jury found that appellant’s brawling or fighting amounted to a substantial physical hindrance and that through brawling or fighting, appellant obstructed, resisted, or interfered with Chaplin in her attempts to protect the public from danger.  It is also logically consistent that the jury found appellant did not intend to harm Chaplin, but did intend to substantially physically hinder her.  Even so, because any logical inconsistency in the jury’s findings can be explained by jury lenity and because it appears that there is no legal inconsistency, appellant is not entitled to a new trial.

Finally, appellant argues for the first time in her reply brief that she was only charged for obstructing legal process with force, but was not charged with or convicted of the lesser-included offense of misdemeanor obstructing legal process.  The state filed a motion to strike this argument.  Minn. R. Civ. App. P. 128.02, subd. 3, requires that “[t]he reply brief must be confined to new matter raised in the brief of the respondent.”  New issues may not be raised in a reply brief.  Gummow v. Gummow, 356 N.W.2d 426, 428 (Minn. App. 1984).  Because appellant failed to raise this issue in her primary brief, appellant has waived the issue.  McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990).  The motion to strike is granted.

            Affirmed; motion granted.



[1] We acknowledge appellant’s argument for incorporating a “rational juror” standard, but choose not to change our current standard of review.