This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
George Sheldon Pendegayosh,
Filed May 8, 2007
Mille Lacs County District Court
File No. K6-04-1425
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Janice S. Kolb,
Bradford Colbert, Meghan Bork (certified student attorney), Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Collins, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of obstructing legal process, in violation of Minn. Stat. § 609.50, subd. 1(1) (2004), arguing that the district court erred by not instructing the jury that it must reach unanimous agreement on which of appellant’s acts constituted obstruction of legal process. He also argues that the jury’s verdicts are legally inconsistent. We affirm.
On December 12, 2004, appellant George Pendegayosh’s mother called 911 to have Pendegayosh taken to a detoxification center. When Mille Lacs Tribal Police Officer Jeremiah Erickson responded to the call, he found Pendegayosh sitting on the floor of the living room, holding an “almost empty bottle of vodka.” Officer Erickson attempted to escort Pendegayosh out of the house, but as they passed through the front door, Pendegayosh grabbed the doorframe and refused to let go. Officer Erickson removed Pendegayosh’s fingers from the doorframe and took him outside onto a porch, where Pendegayosh sat down on a chair. When Officer Erickson tried to get Pendegayosh to his feet, Pendegayosh swung at the officer. Officer Erickson warned Pendegayosh to stop resisting and that if he did not, he would be shot with a Taser, or “tased.” Pendegayosh swung at Officer Erickson a second time, and the officer tased him.
As Officer Erickson and Pendegayosh were walking toward Erickson’s squad car, Pendegayosh slipped on the ice and fell to the ground. Officer Erickson attempted to help Pendegayosh stand up, but Erickson also slipped and fell. While Pendegayosh was on the ground, he got free from his handcuffs; and when the officer attempted to re-cuff him, Pendegayosh punched the officer in the chest. After again warning Pendegayosh to stop resisting arrest, Officer Erickson tased him a second time.
Officer Erickson took Pendegayosh to the squad car, and while the officer was placing Pendegayosh in the squad car, Pendegayosh kicked him in the knee. Officer Erickson took out his Taser, warned Pendegayosh to stop resisting, and, when he did not comply, tased him a third time. Other officers arrived on the scene and assisted Officer Erickson with placing Pendegayosh into a second squad car. Pendegayosh continued to resist arrest and was tased a fourth time before being transported to the jail.
Pendegayosh was charged with fourth-degree assault of a peace officer, in violation of Minn. Stat. § 609.2231, subd. 1 (2004); and obstructing legal process, in violation of Minn. Stat. § 609.50, subd. 1(1) (2004). The jury convicted Pendegayosh of obstructing legal process and found by a special-verdict form that Pendegayosh acted with “force or violence or a threat of force or violence.” The jury acquitted Pendegayosh of fourth-degree assault of a peace officer. On November 17, 2005, the district court sentenced Pendegayosh to one year in jail and a $3,000 fine but stayed all but 90 days of the sentence and all but $900 of the fine, placing Pendegayosh on probation. This appeal follows.
D E C I S I O N
argues that the district court erred in its jury instructions by failing to
instruct the jury that it must unanimously determine which of Pendegayosh’s
alleged acts constituted obstructing legal process. Pendegayosh did not object at trial to the
jury instructions, but we may review an alleged error in the instructions if
that error was plain and affected Pendegayosh’s substantial rights. See Minn.
R. Crim. P. 31.02; see also State v. Griller, 583 N.W.2d 736, 740 (
verdict must be unanimous.
relies on this court’s decision in State
v. Stempf, 627 N.W.2d 352 (Minn. App. 2001), arguing that the district
court erred by not instructing the jury to determine whether he obstructed
legal process by grabbing the doorframe, by attempting to punch the officer, or
by “kicking inside Erickson’s squad car.” In Stempf,
the police found methamphetamine in the defendant’s workplace; when the
defendant arrived at the workplace during the search, the police searched his
vehicle and found more methamphetamine. 627 N.W.2d at 354. The defendant was charged with only one count
of possession of a controlled substance, but the state offered evidence of the
two acts of possession.
Stempf is distinguishable. The Stempf
court went to great pains to point out that the case did not involve a single incident,
noting that the alleged acts of possession occurred at different places and at
argues next that the verdicts were legally inconsistent. Whether verdicts are legally inconsistent is a
question of law, which this court reviews de novo. State v.
Leake, 699 N.W.2d 312, 325 (
was convicted of obstruction of legal process by the use or threat of force,
but he was acquitted on the count of fourth-degree assault of a peace officer,
which requires a finding that Pendegayosh inflicted or caused the fear of
bodily harm. See Minn. Stat. § 609.2231, subd. 1 (2004). But there can be no legal inconsistency
between a verdict of acquittal on one count and a verdict of guilty on another
count; any inconsistency between such verdicts is only a logical, rather than
legal, inconsistency and does not entitle the defendant to relief. Leake,
699 N.W.2d at 326; see also State v. Laine, 715 N.W.2d 425, 435 (
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.