from the District Court of McKenzie County, Northwest
Judicial District, the Honorable Robin A. Schmidt, Judge.
Stephenie L. Davis, McKenzie County Assistant State's
Attorney, Watford City, ND, for plaintiff and appellee;
submitted on brief.
O. Diamond, Fargo, ND, for defendant and appellant.
VandeWalle, Chief Justice.
1] Laura Rende appealed from a criminal judgment entered
after a jury found her guilty of simple assault on a peace
officer and driving under the influence. The district court
did not instruct the jury to make a finding whether Rende
knew Trooper Steven Iden was acting in his official capacity
at the time of her arrest. We affirm, because Rende invited
the error. We do not reach the issue of probable cause to
arrest, because Rende failed to raise the issue in the
2] In September 2016, North Dakota Highway Patrol Trooper
Steven Iden stopped Rende for crossing a fog line. After
making contact with Rende, Trooper Iden noticed she appeared
to have bloodshot eyes, her speech was mumbled, and she
seemed to have difficulty retrieving her driver's
license. Trooper Iden asked Rende to step out of the vehicle
and explained he believed she was impaired. Rende refused to
cooperate, and Trooper Iden placed her under arrest for
driving under the influence. Trooper Iden opened Rende's
door, removed her from the vehicle, and placed her in the
back of his squad car. Trooper Iden read Rende her Miranda
rights, the implied consent advisory, and asked Rende to
submit to a preliminary breath test. Rende refused, and
Trooper Iden left to move Rende's vehicle.
3] When Trooper Iden returned, he asked Rende to exit the
patrol car. Rende refused, and Trooper Iden removed her from
the vehicle to check for weapons. When Trooper Iden asked
Rende to get back into the squad car she refused. During
Trooper Iden's efforts to get her back in the car she
started kicking and struck Trooper Iden in the face and
shoulder. Trooper Iden informed her he was charging her with
assault on a peace officer. Trooper Iden took Rende to the
McKenzie County Jail where he read her the implied consent
advisory a second time and asked for a chemical breath test.
4] Rende was charged with simple assault on a peace officer
and driving under the influence of alcohol. The simple
assault charge was a class C felony under N.D.C.C. §
12.1-17-01(2)(a), which applies "when the victim is a
peace officer or correctional institution employee acting in
an official capacity, which the actor knows to be a
5] On appeal, Rende argues the district court committed
reversible error because the jury was not required to find
that Rende knew Trooper Iden was working in his official
capacity during the traffic stop, and this error rises to the
level of obvious error under N.D.R.Crim.P. 52(b). Rende
contends that under the instruction as written, she could
only have been convicted of a class B misdemeanor under
6] The jury instruction for simple assault on a peace officer
1: SIMPLE ASSAULT (ON A PEACE OFFICER)
A person who willfully causes bodily injury to a peace
officer acting in an official capacity, and knew that Trooper
Steven Iden was a peace ...