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.

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).

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.