State of Minnesota v. Stephen Thomas Conlin ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0069
State of Minnesota,
Respondent,
vs.
Stephen Thomas Conlin,
Appellant.
Filed December 15, 2014
Affirmed
Harten, Judge
Winona County District Court
File No. 85-CR-12-179
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Karin L. Sonneman, Winona County Attorney, Christina M. Davenport, Assistant County
Attorney, Winona, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Smith, Judge; and Harten,
Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
HARTEN, Judge
Appellant challenges his convictions of fifth-degree controlled-substance crime
and of obstructing, with force, peace officers engaged in the performance of their duties.
He argues that the jury instructions on selling controlled substances and on the use of
force were not accurate and that the evidence showing that appellant obstructed the peace
officers was insufficient. Because we see no error in the jury instruction on controlled
substances and no abuse of discretion in not instructing the jury on “force” and because
the evidence was ample to show that appellant obstructed peace officers engaged in their
duty of executing a search warrant, we affirm.
FACTS
In late 2011, appellant Stephen Conlin, a barber by trade, purchased an old
building that he intended to remodel to serve as living space and the premises of two
businesses: a hair salon and a retail marijuana store. He purchased $3,500 worth of tax
stamps to cover 1,000 grams of marijuana and ordered tax stamps for another 1,000
grams.
In January 2012, a search warrant was executed on appellant’s building. When a
peace officer told appellant to show his hands and get on the ground, appellant refused.
Four officers eventually got appellant to the ground; other officers were needed to
handcuff appellant. The officers found growing marijuana plants, 1.8 pounds of
marijuana, tax stamps, packaging materials including labels with appellant’s name, and a
saleable bag of marijuana with a label and a tax stamp attached.
2
Appellant was charged with fifth-degree controlled-substance crime—intent to sell
marijuana and with obstructing legal process. He asserted a mistake-of-law defense; the
district court issued an order stating that this defense was not available to appellant. At
trial, appellant testified about his business plan for the sale of marijuana.
A jury found appellant guilty on both counts. He was sentenced to the
presumptive guidelines sentence of a year and a day, stayed, and placed on probation for
five years.
He challenges his convictions, arguing that the jury instruction on the sale of
controlled substances was inaccurate, the jury should have been instructed on the
meaning of “force,” and the evidence was insufficient to show that he obstructed police
officers in the performance of their duties.1
DECISION
1. Jury Instructions
This court will “review a district court’s refusal to give a requested jury instruction
for an abuse of discretion. The interpretation of a statute is a legal question we review de
novo.” State v. Ndikum, 815 N.W.2d 816, 818 (Minn. 2012).
1
In his pro se brief, appellant reiterates his argument that his sale of marijuana was legal
because he complied with Minn. Stat. § 297D.04 (2010) (requiring any tax obligor who
possesses marijuana to pay a tax on it “as evidenced by a stamp or other official indicia”)
and because Minn. Stat. § 297D.01, subd. 2 (2010), provides that “‘Controlled substance’
does not include marijuana.” But, as the district court noted, Chapter 297D also contains
“numerous, direct, and specific indications that sale or possession of marijuana is
unlawful.” Appellant’s pro se argument is without merit.
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A. Instruction on the Sale of Marijuana
Minn. Stat. § 152.025, subd. 1(a)(1) (2010), provides that it is a controlled-
substance crime in the fifth degree if a person “unlawfully sells one or more mixtures
containing marijuana or tetrahydrocannabinols, except a small amount of marijuana for
no remuneration.” The jury was instructed that:
The statutes of Minnesota provide that whoever
unlawfully sells one or more mixtures containing marijuana
except a small amount for no [remun]eration is guilty of a
crime. The elements of possession of marijuana with intent to
sell in this case are: First, [appellant] sold marijuana. To sell
means: to sell, give away, barter, deliver, exchange,
distribute, or dispose of to another, or to possess with intent to
sell. Second, [appellant] knew or believed that the substance
he sold was marijuana. Third, [his] act took place on or about
January 25, 2012 in Winona County, Minnesota. If you find
that each of these elements has been proven beyond a
reasonable doubt, [he] is guilty. If you find that any element
has not been proven beyond a reasonable doubt, [he] is not
guilty.
....
To know requires only that an actor believes that the
specified fact exists. Intentionally means that the actor either
has a purpose to do the thing, or cause the result specified, or
believes that the act performed by the actor if successful will
cause that result. In addition, the actor must have knowledge
of those facts that are necessary to make the actor’s conduct
criminal and that are set forth after the word intentionally.
With intent to or with intent that means that the actor either
has a purpose to do the thing, or cause the results specified, or
believes that the act if successful will cause that result.
In your consideration of the definition and essential
elements of the crimes charged, you must keep in mind the
legal definitions of those words and phrases I have given you.
Common meanings should be given to all words and terms
not specifically defined.
4
The instruction explains each element of the offense. See State v. Kuhnau, 622 N.W.2d
552, 556 (Minn. 2001) (“[I]t is desirable for the court to explain the elements of the
offense rather than simply to read statutes.”).
Appellant argues that the jury should have been instructed that the statute prohibits
only the unlawful sale of marijuana and that, to find appellant guilty, it also had to find
that he “had conscious knowledge that his actions were illegal,” which he did not have
because he believed his purchase of the tax stamps made his sale of marijuana lawful.
But appellant’s personal belief as to the legality of his acts is not the issue: “All members
of an ordered society are presumed either to know the law or, at least, to have acquainted
themselves with those laws that are likely to affect their usual activities.” State v. King,
257 N.W.2d 693, 697–98 (Minn. 1977); see also Albrecht v. Sell, 260 Minn. 566, 569–
70, 110 N.W.2d 895, 897 (1961) (“[U]nder well-established principles of law
[individuals] are conclusively presumed to be aware of existing statutes and of the fact
that revisions in them occur from time to time.”). Appellant, having chosen to engage in
the sale of marijuana, would be presumed to have acquainted himself with the laws
affecting that activity, and none of those laws provides that the purchase of stamps
renders the sale of marijuana legal.2 Thus, even if appellant did not know that his
possession and sale of marijuana was not legal, that lack of knowledge is not a defense.
The word “unlawful” in the statute excludes those whose possession may be lawful, e.g.,
2
At oral argument, appellant’s attorney conceded that appellant does not fall into any
group of lawful possessors or sellers.
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botanists or pharmacists doing research on marijuana; it does not create an additional
element of the crime or impose the need for an additional jury instruction.
Moreover, appellant’s argument was addressed, implicitly if not explicitly, in State
v. Skapyak, 702 N.W.2d 331 (Minn. App. 2005), review denied (Minn. 18 Oct. 2005). In
Skapyak, the defendant had given marijuana to two minors who had told him they were
adults. He was charged with third-degree controlled-substance crime under Minn. Stat.
§ 152.023, subd. 1(3) (“A person is guilty of controlled substance crime in the third
degree if . . . (3) the person unlawfully sells one or more mixtures containing a controlled
substance . . . to a person under the age of 18”). The defendant argued that, because the
age of the victims was an element of the crime and the state had failed to prove the
defendant knew the victims’ ages, he was entitled to raise a mistake-of-age defense. Id.
at 333. This court
reject[ed] [the defendant’s] argument that his conduct is not
criminal because the sale of a small amount of marijuana to
another person is a “petty misdemeanor” and not a “crime” as
defined in the criminal code. While [he] may have sold or
given away only a small amount of marijuana, marijuana is
nonetheless a controlled substance.
Id. at 334. The Skapyak defendant’s belief that distributing marijuana to those he
thought were over 18 was not the “unlawful” conduct prohibited by the statute is
analogous to appellant’s belief that selling marijuana with a tax stamp is not the
“unlawful” conduct prohibited by that statute. Just as the state was not required to prove
knowledge of the victims’ ages to obtain a conviction under Minn. Stat. § 152.023 in
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Skapyak, the state here was not required to prove that appellant knew the sale of
marijuana with a tax stamp was illegal in order to convict him.
B. Jury Instruction on Force
Appellant was charged with a violation of Minn. Stat. § 609.50, subd. 1(2) (2010)
(prohibiting “obstruct[ing], resist[ing], or interfer[ing] with a peace officer while the
officer is engaged in the performance of official duties”). Obstructing a peace officer is
a misdemeanor, Minn. Stat. § 609.50, subd. 2(3), but a gross misdemeanor if the
obstruction is accompanied by “force [or] violence or the threat thereof.” Minn. Stat.
§ 609.50, subd. 2(2). The statute does not include a definition of “force.”
The jury was instructed that:
The statutes of Minnesota provide that whoever
intentionally, physically obstructs, resists, or interferes with a
peace officer while the officer is engaged in the performance
of official duties and does so accompanied by force, violence,
or the threat thereof is guilty of a crime. The elements of
obstructing legal process with force in this case are: First . . .
[a] police officer is a peace officer. Second, [appellant]
physically obstructed, resisted, or interfered with peace
officers in the performance of official duties. Physically
obstructed, resisted, or interfered with means the acts of
[appellant] must have the effect of substantially frustrating or
hindering the officers in the performance of the officers[’]
duties. Third, [his] act was accompanied by force, violence,
or the threat thereof. . . .
....
In your consideration of the definition and essential
elements of the crimes charged, you must keep in mind the
legal definitions of those words and phrases I have given you.
Common meanings should be given to all words and terms
not specifically defined.
7
The district court later repeated the last sentence quoted above in response to the jury’s
request for “the meaning of force or a dictionary” during its deliberations.3 See State v.
Diedrich, 410 N.W.2d 20, 23 (Minn. App. 1987) (noting that the lack of a statutory
definition for a word means that the word is so commonly used that it requires no further
definition).
Appellant challenges the denial of his request for a jury instruction on the meaning
of force, arguing that, absent such an instruction, the jury could not distinguish the gross
misdemeanor “obstruction with force” from the misdemeanor “obstruction.” Even
assuming that the omission of an instruction on force was erroneous, the error was
harmless. See State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004) (holding that the
erroneous omission of a jury instruction is reviewed under a harmless-error analysis).
The jury heard a peace officer testify that appellant’s resistance in assuming a fetal
position with his arms under him was “offensive resistance” in contrast to the “passive
resistance” of individuals who simply go limp. From another officer, the jury heard that
appellant required that officer to use “a lot of force” to get appellant’s arms out from
under his body to handcuff him and that it took about five officers to get appellant under
control. A third officer testified that several officers assisted him to get appellant’s arms
out and handcuff him. Thus, the jury had a clear picture of what appellant had done in
response to the peace officers’ command to get on the ground and put his hands behind
him. From the officers’ testimony as to the force they had to use to get handcuffs on
3
The parties could not agree on whether to provide the jury with the Black’s Law
Dictionary definition or the Oxford Dictionary definition.
8
appellant, the jury could have inferred that appellant was exerting force to obstruct them
in the performance of their duty to handcuff him.
Any error in omitting an instruction on the meaning of force was harmless; there
was no abuse of discretion in not giving such an instruction. See Ndikum, 815 N.W.2d at
818.
2. Sufficiency of the Evidence
“The scope of the conduct forbidden by a statute presents an issue of statutory
construction, which [appellate courts] consider[] de novo.” State v. Pederson, 840
N.W.2d 433, 436 (Minn. App. 2013).
Appellant argues that the evidence was not sufficient to show that his conduct
when the peace officers came to his building to execute a search warrant violated Minn.
Stat. § 609.50, subd. 1(2), by “obstruct[ing], resist[ing], or interfer[ing] with a peace
officer while the officer [was] engaged in the performance of official duties.” He argues
further that he should have been charged under Minn. Stat. § 609.50, subd. 1(1) (2010)
(prohibiting “obstruct[ing], hinder[ing], or prevent[ing] the lawful execution of any legal
process”) because the peace officers were executing a search warrant. But an officer
executing a search warrant is engaged in the performance of official duties; the two are
not mutually exclusive. While Minn. Stat. § 609.50, subd. 1(1), applies to anyone,
including peace officers, who is lawfully executing a legal process, Minn. Stat. § 609.50,
subd. 1(2), applies to any peace officer who is performing an official duty, including
executing a legal process. Appellant’s argument that “‘official duties’ [are] separate and
distinct from ‘the lawful execution of any legal process’” produces the absurd result of
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construing one statute to remove the execution of search warrants from the list of peace
officers’ official duties even though another statute, Minn. Stat. § 626.05 (2012),
mandates that peace officers, and only peace officers, execute search warrants. It is
presumed that the legislature did not intend an absurd result. Minn. Stat. § 645.17(1)
(2012).
Appellant relies on Pedersen, 840 N.W.2d at 438 (affirming conviction of fourth-
degree assault of a peace officer under Minn. Stat. § 609.2231, subd. 1 (2010), of an
individual who kicked the head of an officer who had come to her apartment to
investigate a report of a possible domestic assault, but reversing the individual’s
conviction under Minn. Stat. § 609.50, subd. 1(1), because no legal process was
involved). But Pederson is distinguishable: the execution of a search warrant is part of
the legal process, while the investigation of a report of a possible assault is not.
The evidence was sufficient to show that appellant obstructed, resisted, and
interfered with peace officers in the performance of their duties.
Affirmed.
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