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State v. Rende

Supreme Court of North Dakota

February 22, 2018

State of North Dakota, Plaintiff and Appellee
v.
Laura Rende, Defendant and Appellant

         Appeal 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.

          Scott O. Diamond, Fargo, ND, for defendant and appellant.

          OPINION

          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 district court.

         I

         [¶ 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. Rende refused.

         [¶ 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 fact."

         II

         [¶ 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 N.D.C.C.§ 12.1-17-01(2)(c).

         [¶ 6] The jury instruction for simple assault on a peace officer read:

         COUNT 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 ...

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