State v. Mathre, 20030312

• Decision Date: 22 July 2004
• Docket Number: No. 20030312,20030312
• Citation: 2004 ND 149,683 NW 2d 918
• Parties: State of North Dakota, Plaintiff and Appellee v. Larry Shane Mathre, Defendant and Appellant.
• Court: North Dakota Supreme Court

2004 ND 149

683 NW 2d 918

State of North Dakota, Plaintiff and Appellee v. Larry Shane Mathre, Defendant and Appellant.

No. 20030312

Supreme Court of North Dakota.

Filed July 22, 2004

Mark A. Flagstad, Assistant State's Attorney, 315 3rd Street S.E., Minot, ND 58701-3998, for plaintiff and appellee.

Larry Shane Mathre, pro se, 320 Wright Street, Donnybrook, ND 58734.

Opinion of the Court by VandeWalle, Chief Justice.

VandeWalle, Chief Justice.

[¶1] Larry Shane Mathre appealed from a judgment entered upon a jury verdict convicting him of two counts of assaulting a peace officer, one count of preventing arrest or discharge of other duties, and one count of escape. We affirm.

I

[¶2] In January 2003, Mathre was helping his grandmother move out of an apartment located in a domestic violence residence in Minot. Two Minot police officers, Corwin Effertz and Scott Redding, were dispatched to the residence because there was a report of an unwanted individual, presumably Mathre, on the premises. Apparently, males are not allowed at the residence. Mathre claims he remained on public property while others brought his grandmother's property out of the residence for him to load into a van and a trailer. Immediately upon the officers' arrival, Mathre "mooned" them. As a result, the officers attempted to place Mathre under arrest for disorderly conduct. Mathre resisted and a scuffle ensued between him and the officers. During the scuffle, Mathre's grandmother fainted, and he tried to assist her. At this point, the officers subdued Mathre and placed him under arrest.

[¶3] Mathre was charged with disorderly conduct under a Minot municipal ordinance for mooning the officers in the presence of others. He was convicted of the offense in municipal court and appealed to the district court. The district court acquitted Mathre, concluding it could not find that mooning is an "obscene gesture" under the Minot ordinance and the ordinance was void and unenforceable because it did not conform with N.D.C.C. § 12.1-31-01.¹ Mathre appealed to this Court, and we dismissed because a judgment of acquittal is not appealable under N.D.C.C. 29-28-06. City of Minot v. Mathre, No. 20030313.

[¶4] As a result of the scuffle with the officers, Mathre was charged in district court with two counts of assault on a peace officer in violation of N.D.C.C. 12.1-17-01, a class C felony; one count of preventing arrest or discharge of other duties in violation of N.D.C.C. § 12.1-08-02, a class A misdemeanor; and one count of escape in violation of N.D.C.C. § 12.1-08-06, a class C felony. Trial was held in the district court, and a jury returned a verdict finding Mathre guilty of all four offenses.

[¶5] Mathre raises the following issues on appeal:

I. Whether the Defendant has a Right to Constitutional Protection under the First Amendment for mooning a Police Officer, as an expression of freedom of speech and expression.

II. Whether the Defendant broke any North Dakota Statute prior to being arrested.

III. Whether the defendant has the right to Resist Arrest in Absence of Criminal Activity.

IV. Whether Law Enforcement Acted Lawfully and Under Color of the Law in Arresting Defendant.

V. Whether the Defendant is allowed to use unlawful arrest for a defense.

VI. Whether the Record, as a whole, Supports a Conviction of Preventing Arrest or Discharge of other duties.

VII. Whether the Record, as a whole, Supports a Conviction of Assaulting a Police officer. Count 1

VIII. Whether the Record, as a whole, Supports a Conviction of Assaulting a Police officer. Count 2.

IX. Whether the Record, as a whole, Supports a Conviction of Escape.

[¶6] Our ability to review Mathre's claims is limited because he has not provided a transcript on appeal. Under N.D.R.App.P. 10(b), it is the appellant's responsibility to provide a transcript on appeal, and Mathre suffers any consequences resulting from the lack of a transcript to review. See N.D.R.App.P. 10(b); State v. Raywalt, 436 N.W.2d 234, 238-39 (N.D. 1989).

II

[¶7] We do not decide Mathre's first issue because we have previously dismissed his prior appeal regarding the constitutionality of mooning the officers. Similarly, we do not consider Mathre's second contention, whether he violated any North Dakota statute prior to being arrested, because he was not convicted of any offense committed prior to his arrest. See State v. Goulet, 1999 ND 80, ¶ 12, 593 N.W.2d 345 ("we do not give advisory opinions"). Insofar as Mathre contends evidence of his actions after the arrest should have been suppressed because he was not convicted of any crime occurring prior to his arrest, we have previously held that suppression of evidence is not the appropriate remedy in such circumstances. See State v. Ritter, 472 N.W.2d 444, 452-53 (N.D. 1991); see also State v. Saavedra, 396 N.W.2d 304, 306 (N.D. 1986) ("The legality of the . . . citation was not relevant to the determination of whether Saavedra's subsequent conduct was lawful because his actions were independent and intervening acts which broke the chain of causation and dissipated the taint of any prior illegality" by the officer).

III

[¶8] Mathre claims that he had a right to resist arrest in the absence of criminal activity, that the officers were not acting lawfully and under color of law when they attempted to arrest him for disorderly conduct, and that he should have been allowed to use unlawful arrest as a defense to the charges against him. He relies on his subsequent acquittal of the disorderly conduct charge to support these contentions.

A.

[¶9] Notwithstanding Mathre's arguments to the contrary, his claims regarding the unlawfulness of his arrest apply only to his conviction for preventing arrest or discharge of other duties. See N.D.C.C. 12.1-08-02; Ritter, 472 N.W.2d at 453 n.1 (Levine, J., concurring specially) ("The defense of unlawful police conduct is not available to the crime of reckless endangerment or terrorizing or disorderly conduct or assault"). Section 12.1-08-02, N.D.C.C., provides

1. A person is guilty of a class A misdemeanor if, with intent to prevent a public servant from effecting an arrest of himself or another for a misdemeanor or infraction, or from discharging any other official duty, he creates a substantial risk of bodily injury to the public servant or to anyone except himself, or employs means justifying or requiring substantial force to overcome resistance to effecting the arrest or the discharge of the duty.

It is a statutory defense in a prosecution for preventing arrest or discharge of other duties "that the public servant was not acting lawfully, but it is no defense that the defendant mistakenly believed that the public servant was not acting lawfully." N.D.C.C. 12.1-08-02(2). However, unlawful police conduct is not an absolute defense to a preventing arrest charge, and a defendant is allowed to resist only excessive force used to effect an arrest. State v. Cox, 532 N.W.2d 384, 388 (N.D. 1995) (appeal from a jury verdict finding Cox guilty of preventing arrest); see also N.D.C.C. 12.1-05-03(1).

[¶10] In this case, the trial court did not instruct the jury regarding the statutory defense to preventing arrest or discharge of other duties. Mathre did not request any jury instructions or object to the instructions given. State v. Johnson, 2001 ND 184, ¶ 10, 636 N.W.2d 391 ("Although the trial court is initially responsible for correctly instructing the jury on the law of the case, both the prosecution and the defense have the responsibility to request and object to specific instructions"). "A defendant is entitled to have the jury instructed on all defenses for which there is any support in the evidence, whether the defenses are consistent or inconsistent." State v. Ronne, 458 N.W.2d 294, 296 (N.D. 1990). Under N.D.C.C. 12.1-08-02, the lawfulness of police conduct is a factual defense which is inappropriate for pretrial determination and subsequent suppression of evidence. Cox, 532 N.W.2d at 387. In Cox, we stated,

when the lawfulness of the police conduct has a bearing on the ultimate question of the defendant's guilt or innocence, the jury must be permitted to resolve any factual disputes concerning the lawfulness of the police conduct. Only when the facts are not in dispute may the trial court resolve the issue as a matter of law.

Id. at 386-87 (citations and footnote omitted).

[¶11] Here, the material facts leading to Mathre's arrest for disorderly conduct are not in dispute. He admits to mooning the officers in the presence of others. As a result, the officers attempted to place him under arrest, without an arrest warrant, for disorderly conduct, a class B misdemeanor.

[¶12] Section 29-06-15, N.D.C.C., provides in part:

1. A law enforcement officer, without a warrant, may arrest a person:

a. For a public offense, committed or attempted in the officer's presence; and for the purpose of this subdivision, a crime must be deemed committed or attempted in the officer's presence when what the officer observes through the officer's senses reasonably indicates to the officer that a crime was in fact committed or attempted in the officer's presence by the person arrested.

"The term `public offense' includes misdemeanors." State v. Overby, 1999 ND 47, ¶ 10, 590 N.W.2d 703. Therefore, whether the officers were acting lawfully and under the color of law depends upon whether the officers' observations reasonably indicated to them that Mathre had committed the crime of disorderly conduct in their presence.

[¶13] Clearly, Mathre's conduct was sufficient for the officers to reasonably believe he had committed the crime of disorderly conduct in their presence. Although Mathre was acquitted of the disorderly conduct charge, an arrest does not become unlawful merely because there is no subsequent conviction of the crime for which an individual is arrested. See N.D.C.C. 29-06-15. Without the benefit of a transcript to review, we must infer...