This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Happy A. Wenell,


Filed April 22, 1997

Affirmed as Modified

Schumacher, Judge

Hennepin County District Court

File No. 95097804

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael T. Norton, Acting Minneapolis City Attorney, Steven E. Heng, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Respondent)

Faith L. O'Reilly, 12 Southwest 34th Street, Des Moines, IA 50312 (for Appellant)

Considered and decided by Huspeni, Presiding Judge, Parker, Judge, and Schumacher, Judge.



This appeal is from a judgment of conviction for misdemeanor obstructing legal process, misdemeanor assault, and disorderly conduct, and from the sentence imposed. Appellant Happy A. Wenell argues that the charges should have been dismissed, that the trial court abused its discretion in instructing the jury and erred in sentencing her, and that she was denied the effective assistance of counsel. We affirm as modified.


Police officers were called by a man living below Wenell to investigate the behavior of Wenell's son toward the neighbor's four-year-old son. One of the officers testified that he knocked on Wenell's door, and when she appeared at the door, told her why they were there. Wenell reprimanded them for trying to break down her door. The officer testified that he asked Wenell where her son was, and she replied that he had run off down the alley. The officer testified that, with one foot across the threshold of the door, he asked Wenell if they could come in, and she said no, then tried to push the door shut. The officer, who was wedged between the door and the doorjamb, pushed back, fearing he would be caught in the door, and explained again that they only wanted to talk with Wenell. He reached around the door and grabbed Wenell by the arm. She swung at his head, then began trying to kick him. As the struggle escalated, the officer entered Wenell's apartment, and they backed up the stairs inside the doorway, with Wenell resisting and swearing at the officer and his partner, who eventually subdued Wenell by spraying mace at her.

The trial court instructed the jury on the elements of misdemeanor obstructing legal process, misdemeanor assault, and disorderly conduct. There was no instruction on the right to resist illegal arrest, or the lack of such a right, or on self-defense. Defense counsel made no objection on the record to the instructions given.

The jury found Wenell guilty on all three counts. The trial court sentenced her to 20 days in jail, with 18 stayed and 2 days of credit for time already served.

Wenell's attorney filed a posttrial motion for a new trial or judgment of acquittal, arguing for the first time that dismissal or suppression of the evidence was required, and arguing that he had been negligent, and had denied Wenell the effective assistance of counsel, by not bringing the motion before trial. The trial court denied relief, ruling that even if a pretrial motion had been brought, it would have been denied under State, City of St. Louis Park v. Berg, 433 N.W.2d 87 (Minn. 1988).


1. Wenell contends that the officers acted illegally in entering her house without a warrant, and that any assaultive conduct on her part resulted from this police misconduct, requiring that the evidence of it be suppressed. But the supreme court in Berg held that

evidence of defendant's resistance to arrest may not be excluded as poisonous fruit of a Fourth Amendment violation.

State, City of St. Louis Park v. Berg, 433 N.W.2d 87, 90 (Minn. 1988). The court noted its earlier cases reaching the same conclusion, and reiterated the policy argument that to suppress evidence of a defendant's resistance would in effect "give the defendant license to resist, no matter how violently, with impunity." Id. at 91. Although Wenell attempts to distinguish Berg on its facts, Berg merely reaffirms a principle announced earlier that

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) (citations omitted). We also find no merit in Wenell's argument that the officers were not engaged in "the performance of official duties," Minn. Stat. § 609.50, subd. 1(2) (1994), because they had no arrest or search warrant. The officers were properly investigating a neighbor's complaint. Wenell was not entitled to suppression of the evidence or dismissal of the charges.

2. Wenell argues that the trial court abused its discretion in failing to further instruct the jury on the obstructing legal process charge, in failing to instruct on self-defense, and in refusing to answer the jury's questions during deliberations regarding the legal rights of Wenell and the police officers.

Wenell's failure to object at trial precludes appellate review, unless the court's instructions, or failure to instruct, are plain error. State v. Witucki, 420 N.W.2d 217, 220 (Minn. App. 1988), review denied (Minn. Apr. 15, 1988). The trial court did not commit plain error in following the statutory definitions of the three offenses in instructing the jury. Moreover, Wenell was not entitled to a self-defense instruction because she denied ever swinging or kicking at the officers. See State v. Jensen, 448 N.W.2d 74, 76 (Minn. App. 1989) (defendant who claimed he never struck, kicked or threatened officer was not entitled to self-defense instruction in prosecution for obstructing legal process). The trial court refused the jury's request during deliberations to define the legal rights of Wenell and the police officers. But under Berg, even if the officers acted illegally, this would not have been a defense. There was no clear error in refusing the jury's request.

3. Wenell argues that her attorney was ineffective in failing to move before trial to dismiss the charges, or suppress the evidence, and in failing to request a self-defense instruction. But, as discussed above, a pretrial motion would have been fruitless because of Berg, and Wenell was not entitled to a self-defense instruction under Jensen. Therefore, trial counsel's representation was not unreasonable nor can Wenell show prejudice from the claimed errors. See generally Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).

4. Wenell argues that the trial court erred in sentencing her on all three offenses. Although there is no conclusive indication that she was sentenced on all three offenses, the state concedes error. Rather than remand to the trial court, we order vacated any sentences imposed for misdemeanor assault and disorderly conduct.

Affirmed as modified.