State of Minnesota, Respondent, vs. Neil T. Noesen, Appellant.

State of Minnesota, Respondent, vs. Neil T. Noesen, Appellant. A06-624, Court of Appeals Unpublished, May 8, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-624

 

 

State of Minnesota,

Respondent,

 

vs.

 

Neil T. Noesen,

Appellant.

 

 

Filed ­­­May 8, 2007

Affirmed in part and remanded in part
Harten, Judge*

 

Hennepin County District Court

File No. 06002135

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Rolf A. Sponheim, Anna Krause Crabb, Assistant City of Minnetonka Attorneys, 14600 Minnetonka Boulevard, Minnetonka, MN 55345 (for respondent)

 

Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Wright, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

Appellant challenges his conviction of and sentence for misdemeanor obstructing legal process, trespassing, and disorderly conduct.  Because the jury reasonably could have found appellant guilty of all three charges, we affirm the convictions; because we agree with both appellant and the state that appellant should have been sentenced on only one charge, to be selected in the discretion of the district court, we remand for resentencing.

FACTS

            Appellant Dr. Neil Noesen, a pharmacist, worked as a pharmacy intern for Snyders Drug Stores.  After appellant had been employed for about two weeks, the district manager of pharmacy operations called the vice-president of human resources seeking to meet with him and appellant to discuss some "performance issues."[1]  The meeting occurred in the vice-president's office the following morning, 11 January 2005. 

            Appellant testified that he attended this meeting "[u]nder the assumption that [he] was going to be receiving a reasonable religious accommodation as [he and the district manager] had previously discussed."  The vice-president, however, testified that the purpose of the meeting was to terminate appellant's employment because "he was in his probationary period and . . . we felt that he was not meeting our standards and . . . his
services were no longer needed."

            The vice-president, the district manager, and appellant discussed various termination matters.  Appellant wished to continue the discussion, but the vice-president informed him that the meeting was over and asked him to leave.  Appellant refused to leave although both the vice president and the district manager repeatedly asked him to do so.  Appellant became agitated and, according to the vice-president, threw or slammed down some of his papers on her office table. 

            Because appellant continued to refuse to leave, the district manager summoned a member of the Snyders security staff.  Appellant refused to leave with the security employee, who told him that the police would be called if he did not leave voluntarily.  Appellant again refused, and the police were called.  When they arrived, appellant engaged in passive resistance: he refused to walk, stand, or move, and fell limp to the floor.  The officers handcuffed him, then lifted him and dragged him to the elevator and then outside to the squad car.  He was asked to stand because the ground was covered with salt and sand, but he refused; the officers therefore laid him on the ground while they opened the squad car.  The officers continued asking appellant to cooperate with them; he remained limp.  The Snyders security employee finally assisted the officers in getting appellant into the floor of the squad car.  Appellant refused to provide identification information. 

            The officer driving the car testified that on the ride to the jail, appellant banged his head against the window and kicked the back seat, causing the officer to stop and call for assistance.  Several other officers arrived; five of them put appellant into a hobble restraint.  Appellant then said that he would stop resisting and cooperate. 

            Appellant was charged with three misdemeanorsobstruction of legal process, trespass, and disorderly conduct.  A jury convicted him of all charges, and the district court sentenced appellant on all three.  He argues that the jury could not reasonably have concluded he was guilty of any of the charges and that, in any event, he should be sentenced only for disorderly conduct; the state agrees that appellant should be sentenced for only one count but argues that it should be for obstruction of legal process.

D E C I S I O N

 

1.         Convictions.

            A  reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

            a.         Trespassing.

            The jury found appellant guilty of trespassing.  Minn. Stat. § 609.605, subd. 1(b)(3) (2004), provides that a person who "without claim of right, refuses to depart from the premises on demand of the lawful possessor" of property is guilty of a misdemeanor.  The jury was instructed that "claim of right" may be "a bona fide claim by the defendant or expression of limited permission given the defendant by the lawful
possessor of the premises, or someone authorized by the lawful possessor to give such permission." 

            Appellant concedes that the lawful possessor of the property demanded that he depart and that he refused.          He argues, however, that he had a claim of right because the vice-president and the district manager agreed to discuss with him the reasons for his termination and he wanted to explain to them his civil rights claim based on their failure to provide reasonable employment accommodation.  But "[s]ubjective reasons not related to a claimed property right or permission are irrelevant and immaterial to the issue of claim of right."  State v. Brechon, 352 N.W.2d 745, 750 (Minn. 1984).  Having been terminated, neither the reasons for appellant's termination nor his belief that Snyders had failed to provide reasonable employment accommodation pertains to any property right of appellant or any permission for him to remain on Snyders's property.  The vice-president and security employee testified that they told appellant he did not have permission to remain there.  The vice president testified that she told him "the discussion was over and he needed to leave"; that, when he refused, she "asked him several times to leave"; that he continued to refuse until she finally  "told him that, at this point, he was no longer welcome in my office or in the building and that if he would not leave on his own, I would be forced to call the . . . police and have him escorted from the building."  Her remarks could not be construed as permission for appellant to be on the property. 

            The security employee testified that he told appellant, "I understand that your employment has been terminated . . . .  The business has concluded here . . . .  So, I need to ask you to leave our premises."  When appellant began to talk about his views on his termination, the security staff member told him, "[T]hat is not my determination . . .  I am just in charge of security and I am to inform [you] that since there is a termination and that the business is done, that [you] need[] to leave the private property."  After being told that it was in everyone's best interest that he leave the property peacefully, appellant claimed that such language was a threat.  The security employee then told him, "We have private property here.  There has been a termination.  You are no longer authorized to be on our property and I feel it is in your best interest to leave peacefully."  Appellant replied that he felt he had a right to be on the property; he was told that, if he refused to leave peacefully, "we will have no other option but to notify the local authorities to have them escort [you] from the property."  The security employee's remarks could not be construed as permission for appellant to remain on the property.

            We conclude that the jury could reasonably have found that appellant remained on the property without a valid claim of right.

            b.         Obstructing Legal Process.

            A person who intentionally "obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties" may be sentenced to a year's imprisonment.  Minn. Stat. § 609.50, subds. 1(2), 2(2) (2004).  The jury found that appellant had intentionally obstructed, resisted, or interfered with a peace officer engaged in the performance of official duties. 

            Appellant's testimony supports the jury's finding.  He testified that the officers asked him to leave; when asked if he left, he replied, "No, I did not.  Not voluntarily."  He later testified that, "I chose to allow them to take me away and they did proceed to take me away" and that, "One of the officers . . . picked me up and I allowed them to pick me up by their own force. . . .  I remained limp."  When asked, "And you physically went limp rather than walking out when the officers gave you that chance?" appellant answered, "That is correct." 

            The officers' testimony also supports the jury's finding.  One officer testified that appellant "never stood up . . . during our entire call" and that his "unwillingness and tenacity" interfered with the ability of the police to escort him from Snyders's property.  Another officer testified that appellant said he would leave unwillingly and "basically went limp and laid down on the floor, face first" and, when asked if this interfered with police activity, said, "Yes.  We were trying to get him to leave the property.  By not complyingwe were forced to remove himnot allowing us to basically do our jobs." The officer said appellant was "probably 180 pounds of dead weight . . . a lot to be car[ry]ing down a hallway elevator, out the front door, and trying to get him into a car seat" and also said that, "Instead of [following normal escort routine] we have to exert force that we would [] normally [not] have to exert if he was complying."  The officer also noted that five officers had to be "diverted from their regular duties" to assist with getting appellant into a hobble restraint after he began hitting his head against the side window and kicking the back cage of the squad car.

            Appellant argues that his conduct did not meet the standard required for obstruction of the legal process, relying on State v. Ihle, 640 N.W.2d 910 (Minn. 2002), State v. Krawsky, 426 N.W.2d 875, 877 (Minn. 1988), and State v. Diedrich, 410 N.W.2d 20, 23 (Minn. App. 1987).  Appellant's reliance is misplaced; the cases are distinguishable or irrelevant.  Ihle was a challenge to jury instructions; it held that the jury should have been instructed on the elements of obstruction of legal process as set out in Krawsky but that failure to do so was harmless error and that jurors were not required to identify and agree on the specific acts in a course of conduct that satisfied the elements of obstruction.  Ihle, 640 N.W.2d at 912.  Appellant does not argue that the jury was improperly instructed; he argues that his conduct was less egregious than that of the defendant in Ihle who, in contrast to appellant's passive resistance,"continued to scream, kick and swear at the officers as they handcuffed him, put him in the squad car, and brought him to the county jail."  Id. at 913.  But this difference is irrelevant: Ihle does not hold that physical aggression is a necessary component of obstructing legal process.  Ihle reiterates the Krawsky holding that Minn. Stat. § 609.50 forbids certain types of verbal conduct as well as physical conduct, e.g., verbal conduct that "physically obstructs the officer's pursuit and . . . [is intended] to obstruct or interfere with the officer."  Id. at 915-16 (citing Krawsky, 426 N.W.2d at 877). Appellant obstructed the officers by refusing to stand, walk, or get into the squad car.

            Krawsky notes that Minn. Stat. § 609.50 prohibits conduct that obstructs or substantially interferes with an officer, not conduct that merely interrupts an officer, and rejects the argument that the statute is facially overbroad.  Krawsky, 426 N.W.2d at 877-78.  Appellant's conduct did more than interrupt the officers; it obstructed their activity of escorting him from Snyders's property.

            Diedrich held that open-palmed pushing of an officer in an effort to prevent him from keeping an arrested individual in a squad car met the "force or violence" component of Minn. Stat. § 609.50(1) (1986).  Diedrich, 410 N.W.2d at 23.  Appellant was not charged with this component; thus, Diedrich is irrelevant.

            Appellant also argues that the district court should have instructed the jury on the "necessity" defense to obstruction of legal process because he believed that a more significant harm would result from complying with the officers than from refusing to cooperate with them.[2] He cites his own testimony that he would have betrayed his country if he had not gone limp.  But appellant does not meet the standard for the necessity defense, which requires immediate peril leaving the defendant with "no alternative but to violate the law."  State v. Martinell, __ N.W.2d __, __ (Minn. App. 2007).  Appellant was not exposed to immediate peril because the officers asked him to leave Snyders's property.

            Appellant chose to break the law by not leaving.  The necessity defense would apply only if there were no legal alternative to his breaking the law, if the harm to be prevented by the breach were imminent, and if there were a direct, causal connection between breach of the law and preventing the harm.  State v. Rein, 477 N.W.2d 716, 717 (Minn. App. 1992), review denied (Minn. 30 Jan. 1992).  There was a clear alternative to appellant's breach and, while he may have felt that betrayal of his country would have resulted from compliance with the officers, this subjective belief cannot meet the criteria for the necessity defense.  See id. at 718 (necessity defenses unavailable to defendants who committed trespass to prevent what they perceived as the harm of abortion).

            The cases appellant cites to support his argument that his conduct did not meet the standard for obstruction of legal process are inapposite, and the district court did not err in failing to instruct the jury on the necessity defense.  In light of appellant's and the officers' testimony, the jury could reasonably have found that appellant was guilty of obstruction of legal process. 

            c.         Disorderly Conduct.

            One who knowingly "[e]ngages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others" is guilty of the misdemeanor of disorderly conduct.  Minn. Stat. § 609.72, subd. 1(3) (2004).  The jury found appellant guilty of this misdemeanor.

            The vice-president testified that, after she asked appellant to leave, "He got agitated and he had a notebook with him which he threw on the floor and had some other items with him which he threw across the desk."  When asked how this affected her, she testified, "It made me nervous.  I am not use[d] to people reacting that way in my office" and "I was concerned that . . . he would get more violent or agitated."  The state asserted that this was offensive conduct that aroused alarm in the vice-president.

            Appellant testified that "at no time, did I throw any books, any booklets at anybody or have any intention of causing alarm, resentment, anger in others."  Whether or not appellant's actions constituted disorderly conduct was for the jury to determine.  In reviewing a guilty verdict, a reviewing court must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  If the jury believed the vice-president and disbelieved appellant, it could reasonably have found appellant guilty of disorderly conduct.

2.         Sentencing.

            Appellant was sentenced on three offenses arising out of a single behavioral incident.  We agree with both parties that, under Minn. Stat. § 609.035, subd. 1 (2004), if a defendant's conduct constitutes more than one offense, the defendant may be punished for only one offense.  Accordingly, two of the sentences must be vacated.  The policy of Minn. Stat. § 609.35 "encompasses an assumption that the trial court will sentence on the most serious offense."  State v. Alt, 529 N.W.2d 727, 731 (Minn. App. 1995), review denied (Minn. 20 July 1995).  Neither the statute nor the caselaw construing it implies any limitation on the district court's discretion to determine which offense is the most serious.  Id. We remand the three sentences to the district court with instructions to continue in effect the sentence for the most serious offense and vacate the other two sentences.  The district court may take this action in its own discretion without receiving further evidence.

            Affirmed in part and remanded in part.

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

[1] Appellant claims that these issues related to his refusal to fill a customer's prescription or to let the customer speak to another pharmacist.

[2] Appellant raises this issue for the first time in his appellate brief, conceding that he waived it by not raising it below but asking this court to review it in light of State v. Hage, 595 N.W.2d 200, 204 (Minn. 1999) ( reviewing unobjected-to jury instruction as "plain error affecting substantial rights").  At oral argument, appellant further conceded that he does not have a strong argument on the issue.  In the interests of completeness, however, we will address it.