A03-1528

State of Minnesota,

Respondent,

vs.

Brian A. Bohanon,

Appellant.

Filed September 21, 2004

Affirmed

Willis, Judge

Ramsey County District Court

File No. K7-02-3448

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

Manuel J. Cervantes, Saint Paul City Attorney, Rachel A. Gunderson, Assistant City Attorney, 500 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

Frederick J. Goetz, Goetz & Eckland P.A., Exposition Hall at Riverplace, 43 Main Street SE, Suite 400, Minneapolis, MN 55414 (for appellant)

Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Willis, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

On appeal from his conviction of obstructing legal process with force, appellant claims that the district court clearly erred by denying his motion to suppress evidence of his resistive conduct, which, he argues, was provoked by an unconstitutional seizure and unreasonable force. Appellant also argues that the district court abused its discretion by refusing to allow the jury to play a tape recording of a dispatch call in the jury room during its deliberations. Finally, appellant argues that the evidence was insufficient to disprove that he acted in self-defense against unlawful police force. Because we find that appellant’s conduct was neither the result of an unconstitutional seizure nor provoked, that the district court’s decision to prevent the jury from taking the tape recording into the jury room was not error, and that the jury reasonably could conclude that appellant did not act in self- defense, we affirm.

FACTS

On the evening of September 18, 2002, St. Paul Police Officer Jason Urbanski was conducting surveillance in connection with a narcotics operation and was observing another undercover officer who was trying to buy drugs on the street. At approximately 11:00 p.m., Officer Urbanski saw a white station wagon approach his car. Urbanski testified that the driver of the car, later identified as appellant Brian Bohanon, drove slowly past Urbanski and made eye contact. Because of Bohanon’s apparent curiosity, Urbanski changed his location, moving his car to a parking lot across the street. Urbanski testified that shortly thereafter, Bohanon drove by him again. Urbanski said he suspected that Bohanon was involved in a drug buy with the undercover officer, and Urbanski chose to move his car again, this time slouching down, so that it would appear that no one was in the car.

Bohanon drove by Urbanski a third time, made a U-turn, and pulled up alongside Urbanski’s car. Urbanski testified that someone in Bohanon’s car said, “F--k you, you pigs. We’re going to get you.” The car then drove off, and Urbanski decided to call off the undercover operation. Urbanski claimed that as he drove away, Bohanon turned around and followed Urbanski’s car. As Urbanski turned onto another street, Bohanon began flashing his lights at him. Urbanski radioed dispatch and requested an officer to stop the car that was following him. Urbanski stopped at a red light and Bohanon’s car pulled alongside him. Urbanski testified that Bohanon reached across his body with his right hand and rolled down his window. Because he could not see Bohanon’s left hand, Urbanski feared that Bohanon might have a weapon. According to Urbanski, Bohanon said to him, “I’ll give you something.”

Officer Todd Tessmer, who was in uniform and driving a marked squad car, pulled up behind the two cars. He stopped Bohanon after Bohanon turned at the light. Tessmer, Urbanski, and a third officer, Robert Jerue, approached the vehicle; Tessmer and Urbanski both had their guns drawn. Tessmer testified that he ordered Bohanon four times to turn off the car before Bohanon complied. Urbanski then opened the driver’s door and asked Bohanon to get out of the car. Urbanski and Tessmer both testified that Bohanon came out of the car aggressively and that Bohanon’s aggressive conduct prevented the officers from handcuffing him. Tessmer testified that once the officers had Bohanon on the ground, he was told to stop resisting several times but did not comply. Because Bohanon continued to struggle, the officers used aerosol spray and batons to subdue him. Officer Andrew Heroux testified that when he arrived, he saw Bohanon on the ground and that Bohanon was struggling and was “kicking and throwing his arms at the officers.” Before Bohanon was finally subdued, he had bitten Officer David Rud and Bohanon’s arm was broken. The officers called paramedics, who arrived at the scene within a few minutes.

Bohanon’s version of events differs. Bohanon testified that he first noticed Urbanski’s car because it was blocking the exit to a parking lot. He claimed that he glared at Urbanski but continued driving. According to Bohanon, Urbanski followed him and after Bohanon drove “back around,” he again saw Urbanski’s car parked on the street. Bohanon claimed that he had “looped around” his prior route in order to “make sure [Urbanski] wasn’t following [him].” After seeing Urbanski’s car the second time, Bohanon testified that he continued on his way and claimed that he did not see Urbanski’s car again until he met Urbanski at a stoplight. Bohanon claimed that he turned at the stoplight and was pulled over.

Bohanon testified that he did not initially comply with Officer Tessmer’s request to turn off his car because it was raining and he had difficulty hearing Tessmer. Bohanon also claimed that he complied with the officers’ requests and was standing with his arms against the car when he was “hit upside the head.” Bohanon claims that the officers beat him although he was not resisting and that if he continued struggling once he was on the ground, he did so because he could not breathe and was trying to protect himself. Bohanon’s uncle, Victor Doss, who was in the car with Bohanon, also testified that Bohanon did not fight with the officers when he got out of the vehicle.

Bohanon was charged with obstructing legal process with force. Before the jury instructions were given, Bohanon moved to suppress all evidence of his resistive conduct on the ground that it was provoked by an unconstitutional seizure. The district court denied Bohanon’s motion. After the jury had retired but before the evidence had been sent into the jury room, the state moved that the jury be prohibited from taking the police dispatch tape, which contained Urbanski’s original request for back-up, into the jury room during deliberations and asked that the jury be allowed to listen to the tape again only after reassembling in the courtroom with the parties. The district court granted the state’s motion. The jury found Bohanon guilty, and this appeal follows.

D E C I S I O N

Bohanon first argues that the district court erred by denying his motion to suppress evidence of his resistive conduct because it was the result of an unconstitutional seizure. When reviewing pretrial orders on motions to suppress evidence, this court “independently review[s] the facts and determine[s], as a matter of law, whether the district court erred in suppressing – or not suppressing – the evidence.” State v. Harris,590 N.W.2d 90, 98 (Minn. 1999). Whether an investigatory stop is valid is a legal determination subject to de novo review when the facts are undisputed. Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). Limited investigatory stops are allowed if police have reasonable, articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968); State v. McKinley, 305 Minn. 297, 301, 232 N.W.2d 906, 909-10 (1975). The officer’s suspicion must be based on specific, articulable facts. State v. Cripps,533 N.W.2d 388, 391 (Minn. 1995).

Bohanon argues that he was unlawfully stopped because Officer Urbanski had no reasonable, articulable suspicion that Bohanon had committed a crime when Urbanski had Bohanon pulled over. First, Urbanski testified that he was afraid Bohanon had a gun. He further testified that Bohanon appeared to be following him, flashed his lights at him, and pulled alongside Urbanski’s truck and used threatening language. Urbanski testified that this behavior led him to believe that Bohanon might be involved in buying drugs and once Bohanon began following him, Urbanski found Bohanon’s behavior to be threatening.

Bohanon argues that the district court erred by crediting Officer Urbanski’s version of the facts rather than Bohanon’s. Specifically, Bohanon points to the police dispatch tape on which Urbanski asks to have an officer pull Bohanon over, saying that he wants Bohanon “ID’d” and that if he “is involved” to be arrested. Bohanon claims that if Urbanski had truly been concerned that Bohanon might have a weapon in the car, he would have notified dispatch or at least alerted other officers to his suspicions before they approached Bohanon’s vehicle. Because Urbanski did neither, Bohanon argues that Urbanski’s version of events is less credible than his own.

This court will defer to the fact-finder’s determinations regarding the weight and credibility of individual witnesses. State v. Miles,585 N.W.2d 368, 372 (Minn. 1998). While there was conflicting testimony, the district court heard both parties and found Urbanski’s version of events to be more credible. The district court did not, therefore, err by concluding that Urbanski had reasonable, articulable suspicion sufficient to stop Bohanon and it did not err by denying Bohanon’s motion to suppress evidence resulting from the stop.

Bohanon alternately argues that evidence of his resistive conduct should have been suppressed because it was provoked by the officers. See City of St. Louis Park v. Berg,433 N.W.2d 87, 91 (Minn. 1988) (concluding that evidence of the defendant’s resistive conduct was properly allowed because there was no evidence that officers had provoked the defendant into committing a new crime of resisting arrest). Bohanon claims that because there are differences among the officers’ testimony regarding the manner in which Bohanon got out of his car, his version of the events is more credible. But while the officers’ testimony was not exactly the same, both Tessmer and Urbanski said that Bohanon came out of the car aggressively. Tessmer said Bohanon came out “quickly,” and Urbanski said he “started fighting” immediately. The district court, in the best position to determine witness credibility, did not err, therefore, by declining to suppress evidence of Bohanon’s resistive conduct on the ground it was the result of provocation.

II.

Bohanon argues that the district court erred by preventing the jury from playing the dispatch tape in the jury room and instead requiring that the jury listen to the tape again only after reconvening in the courtroom with the parties present. Evidentiary rulings by the district court are reviewed for an abuse of discretion. State v. Kraushaar,470 N.W.2d 509, 514 (Minn. 1991). The jury may take to the jury room exhibits that have been received into evidence. Minn. R. Crim. P. 26.03, subd. 19(1) (2003). But it is “preferable,” if the jury seeks to review a tape, which, although received into evidence requires equipment to review, for the court to have the jury brought back into the courtroom for that purpose. Kraushaar, 470 N.W.2d at 516; see Minn. R. Crim. P. 26.03, subd. 19(2)(1) (describing district court’s discretion in allowing jury review of evidence).

The district court denied Bohanon’s request that the jury be allowed to listen to the tape in the jury room. Instead, the district court determined that the tape would be sent back without a tape player and that if the jury requested a tape player, it would be told that it had to return to the courtroom if it wished to listen to the tape. The jury made this request and was allowed to hear the tape again, in the courtroom. We conclude that this procedure, which Kraushaar describes as “preferable,” was not error.

And, even assuming that the district court erred, the jury was allowed to listen to the tape again, in the courtroom. Bohanon’s claim of prejudice appears to presume the jury would otherwise have listened to the tape multiple times in the jury room. This court cannot make that presumption. And such “undue prominence” extended to a single piece of evidence is the type of prejudice that the district court is required to prevent. See Minn. R. Crim. P. 26.03, subd. 19(2)(2).

III.

Bohanon argues that there is insufficient evidence to sustain his conviction because the state failed to prove beyond a reasonable doubt that Bohanon’s conduct was not self-defense. See State v. Basting,572 N.W.2d 281, 286 (Minn. 1997) (concluding that once a claim of self-defense has been raised, the state has the burden of disproving one or more of the elements of self-defense beyond a reasonable doubt). The elements of self-defense are: (1) an absence of aggression or provocation; (2) a belief that that there is an imminent danger of death or great bodily harm; (3) reasonable grounds for this belief; and (4) the absence of reasonable means for retreat. Id. at 285.

In reviewing a challenge to the sufficiency of the evidence, this court will determine “whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Tovar,605 N.W.2d 717, 726 (Minn. 2000) (quotation omitted). A verdict will not be disturbed if the jury, giving due regard to the presumption of innocence and the need to overcome it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proved guilty of the crime charged. State v. Ferguson,581 N.W.2d 824, 836 (Minn. 1998). Deciding witness credibility is generally the exclusive province of the jury. State v. Doppler,590 N.W.2d 627, 635 (Minn. 1999).

There was conflicting evidence, but the jury was free to credit the officers’ testimony more than Bohanon’s. The jury could have, therefore, believed the officers’ testimony rather than Bohanon’s and found that there was aggression or provocation by Bohanon. Further, while Bohanon claims he could not breathe and, therefore, fought the officers who were attempting to handcuff him, the jury again was free not to credit Bohanon’s claim that he feared death or great bodily harm. The jury could choose to disbelieve Bohanon’s claims and, therefore, find that he had no reasonable grounds to believe that he was in imminent danger. Finally, the jury was also free to believe that Bohanon could have “retreated” from the altercation by ceasing to resist the officers’ attempts to handcuff him. Viewed in the light most favorable to the verdict, there was sufficient evidence for a reasonable jury to conclude that Bohanon was not acting in self-defense.

Affirmed.