This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Jhawn Cortez Cole,



Filed January 4, 2005


Kalitowski, Judge


Hennepin County District Court

File No. 03037754


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Jay M. Heffern, Minneapolis City Attorney, Jennifer Saunders, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent)


Leonardo Castro, Hennepin County Public Defender, Melissa Haley, Assistant Public Defender, 317 South Second Avenue, Suite 200, Minneapolis, MN 55401 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge; Wright, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Jhawn Cortez Cole argues that his conviction of misdemeanor obstructing legal process should be reversed because (1) the district court’s jury instructions materially misstated the law causing the jury to convict him of an uncharged, lesser-included misdemeanor offense; (2) the district court erroneously refused to give the jury an instruction on “fighting words”; and (3) the evidence is insufficient to sustain the verdict.  We affirm.





Appellant argues that the district court’s jury instructions were erroneous.  But appellant did not object to the form of the instructions.  Generally, a party waives any objection to a jury instruction if the objection is not raised at trial.  Minn. R. Crim. P. 26.03, subd. 18(3).  But plain errors affecting substantial rights or creating errors of fundamental law may be considered on appeal.  Minn. R. Crim. P. 31.02; State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001).  Under the Griller test, the challenging party must show:  1) error, 2) that is plain, and 3) that affects substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  If the Griller prongs are satisfied, then the court must assess whether to remedy the error to ensure the fairness and integrity of the judicial proceedings.  Id.

            “District courts are allowed considerable latitude in the selection of language for jury instructions.”  State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002).  But an instruction is in error if it materially misstates the law.  Id.  Questions of law are reviewed de novo.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).

Here, appellant was charged with gross misdemeanor obstructing legal process.  Appellant argues that the district court erroneously instructed the jury by making the element that distinguishes a gross misdemeanor from a misdemeanor offense a special interrogatory.  In so doing, the district court allowed the jury to consider whether appellant was guilty of an uncharged misdemeanor before the jury answered the special interrogatory on the gross misdemeanor.   Appellant argues that he was thereby deprived of an acquittal on the gross misdemeanor since the jury subsequently answered the special interrogatory negatively after finding him guilty of the uncharged misdemeanor.

            The district court substantially followed the jury instructions for obstructing legal process proposed by the Criminal Jury Instruction Guide.  See 10A Minnesota Practice,CRIMJIG 24.26 (Supp. 2003).  The obstructing legal process statute subdivides the definition of the offense, which is a misdemeanor, and the enhanced penalty elements for gross misdemeanor and felony violations of the statute.  See Minn. Stat. § 609.50, subds. 1, 2 (2002).  And CRIMJIG 24.26 defines the misdemeanor offense and makes the additional gross misdemeanor “use of force” element a special interrogatory.  Further, we note that the supreme court did not reject using a special interrogatory in CRIMJIG 24.26 when the court held that the jury instructions on obstructing legal process must incorporate the Krawsky holding which protects speech that does not rise to the level of “fighting words.”  See Ihle, 640 N.W.2d at 916-17 (holding that failure to give more explicit instruction on “fighting words” was plain error, pursuant to State v. Krawsky, 426 N.W.2d 875 (Minn. 1988)).

In addition, jury instructions that included the definition of a lesser-included, uncharged crime while instructing on a greater crime have been treated as permissible amendments to indictments.  State v. Lory, 559 N.W.2d 425, 428-29 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997) (permitting a felony murder instruction when the defendant was charged with second-degree intentional murder because felony murder is a lesser-included offense of the charged crime).  Minnesota law also allows for conviction of lesser-included, uncharged offenses if the uncharged offense must necessarily be proved when the charged offense is proved.  See Minn. Stat. § 609.04, subd. 1(4) (2002).  Therefore, we reject appellant’s argument that his conviction was barred by double jeopardy. 

Here, the district court did not err in its instruction, which was similar in form to both Minn. Stat. § 609.50 and CRIMJIG 24.26.  Additionally, the rationale in Lory supports a conclusion that the instruction is permissible, and that Minnesota law allows for conviction of a lesser-included, uncharged offense.  Therefore, because appellant fails to show plain error, we need not inquire further under the Griller analysis.



            Appellant also argues that the district court erroneously refused appellant’s alternative instruction on “fighting words.”  District courts have discretion in the selection of jury instructions, which must be reviewed in their entirety to determine if they fairly and adequately explain the law of the case.  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).  A defendant claiming error has the burden of establishing both error and resulting prejudice.  State v. Kuhnau, 622 N.W.2d 552, 555-56 (Minn. 2001).  A party is entitled to a jury instruction on his theory of the case where there is evidence to support it.  State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977).  But the court need not give a requested instruction if it determines that the substance of the request is contained in the court’s charge.  Id.  

            Appellant requested that the district court issue an instruction on “fighting words” clarifying to the jury that “the use of profanity towards police officers does not by itself make someone guilty of obstructing legal process or disorderly conduct or any other crime.”  Appellant contends he was prejudiced by the district court’s failure to issue his requested instruction, arguing that the jury’s verdicts on disorderly conduct and obstructing legal process are inconsistent.    

            The district court ruled that appellant’s proposed instruction was inaccurate and highlighted only one element of the offense, and that CRIMJIG 24.26 sufficiently stated the current law on fighting words.  Moreover, to address appellant’s concerns, the district court added the word “profane” to the CRIMJIG instructions for disorderly conduct and obstructing legal process.  We reject appellant’s argument that the verdicts were inconsistent because the intent elements for the offenses are different.  And even if the verdicts were inconsistent, the jury may exercise leniency.  See Nelson v. State, 407 N.W.2d 729, 731 (Minn. App. 1997), review denied (Minn. Aug. 12, 1987).  We conclude that the district court did not abuse its discretion by giving a jury instruction that was consistent with CRIMJIG 24.26.



            Finally, appellant argues that the evidence is insufficient to support his misdemeanor conviction.  This court will not disturb a verdict if the jury could reasonably conclude a defendant was proven guilty of the offense while acting with due regard to the presumption of innocence and the burden of the state to prove the offense beyond a reasonable doubt.  Flores, 418 N.W.2d at 157.  Appellate courts review the evidence in the light most favorable to the verdict, and assume the jury disbelieved any testimony in conflict with the verdict reached.  Id.  Juries determine the weight and credibility of the testimony of witnesses.  State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985). 

            Appellant argues that since the jury found that appellant did not use force, and the only other evidence of obstructing legal process is his language, which is protected by the First Amendment, the evidence does not support his conviction for obstructing legal process.  We disagree.  Other evidence in the record indicates that appellant physically obstructed or interfered with the officer. 

            Specifically, the arresting officer testified that while she was attempting to release appellant from handcuffs, he began to yank his cuffed hand from the officer, he twisted around, and he indicated that he would hit the officer.  The officer also testified that her partner and another officer responded and assisted the officer to put appellant on the ground because he was actively resisting, twisting, turning, and pulling away.  And the officer testified that appellant refused to follow orders to get on his stomach and continued fighting.  We thus conclude that there is evidence in the record sufficient to support appellant’s conviction of obstructing legal process.


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