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Perspectives: Assault actions all affirmed on appeal

Marshall H. Tanick//June 8, 2023

A small sign that reads "ASSAULT" on a desk with books and a judge's hammer on it image

Perspectives: Assault actions all affirmed on appeal

Marshall H. Tanick//June 8, 2023

“No problem can withstand the assault of sustained thinking.”

French philosopher M. de Voltaire

* * * * * * * * * * * * * * * *

“Against the assault of laughter, nothing can stand.”

Author and humorist Mark Twain

Great thinkers throughout the years and across the continent have addressed the subject of cerebral assaults. But it’s the violent assaultive actions that are more common in the Minnesota judicial system.

A trio of assault cases were concurrently decided by the Minnesota Court of Appeals in the middle of this spring. Arising in three different portions of the state, they showed several similarities: Each of the defendants was convicted and each of the rulings was affirmed by the appellate court.

Brandishing board

Marshall H. Tanick
Marshall H. Tanick

A man who held a wooden board over his shoulder while threatening a woman he had previously struck was deemed guilty of assault with a “dangerous” weapon for brandishing the instrument in State v. Jones, 2023 WL 2960814 (Minn. Ct. App. April 17, 2023)(unpublished). Convicted of second-degree assault for using the board and third-degree assault for striking the woman without any instrumentality, he appealed only the second-degree assault conviction, arguing that the evidence that the board did not constitute a “dangerous weapon” within the meaning of statute, Minn. Stat. § 609.222.

But the appellate court affirmed the Crow Wing County District Court proceedings by a 2-1 vote. The defendant’s claim that he used the board only to frighten the woman, but not to strike her — was plausible — but there was sufficient direct evidence of his criminal intent to use the board, which sufficed to sustain the second-degree conviction. Although there was “conflicting” testimony about the defendant’s “expressions of intent” to use the board merely to frighten her, there was “direct evidence of his intent” to use the board to hit the woman based on his stated desire to “beat [her] bloody.” This constitutes proof of intent to “produce death or great bodily harm,” warranting the second-degree conviction.

A dissent by Judge Theodora Gaïtas would have reversed the second-degree conviction because of a “reasonable inference that he [only] intended to frighten” the victim with the board, not use it to strike her, creating “reasonable doubt of [his] guilt.” However, the trial court incorrectly entered convictions on both of the assault charges, which warranted reversal and remand solely on that basis for sentencing on only one of the overlapping charges.

Broomstick battle

 The appellate court was swept up in a battle over whether a wooden broomstick was used in a domestic assault in a way likely to cause “great bodily harm,” to warrant a second-degree assault conviction, in addition to a felony domestic assault in State v. Bradley, 2023 WL 2962250 (Minn. Ct. App. April 17, 2023)(unpublished).

The court of appeals affirmed the determination of the St. Louis County District Court, pointing to evidence from which reasonable jurors could conclude that the defendant “deliberately swung” the broomstick at the victim’s head with significant force, which constituted use of a “dangerous weapon” within the meaning of the statute.

Further, the defendant’s claim that felony domestic assault was an included offense of second-degree assault and, therefore, should not have been the basis for a separate provision was rejected. Because a charge of felony domestic assault does not include an offense of second-degree assault, both convictions stand independently.

Vehicular violence

Use of a car to commit third-degree assault was addressed by the court in State v. Karnes, 2023 WL 2962246 (Minn. Ct. App. April 17, 2023)(unpublished).

Convicted of false imprisonment, criminal vehicular operation (CVO) and assault in Mower County District Court, the defendant claimed that insufficient evidence and lack of substantial bodily harm should bar his conviction for third-degree assault and CVO.

But the Court of Appeals disagreed, noting that the victim testified that he wore a cervical collar for about a month after the violent incident and could not work during that time. Further, the wounds to his feet were so deep that he could not wear shoes for four months and they still hurt even at the time of trial.

Based upon this evidence, the injuries to the victim’s neck and feet constitute “substantial bodily harm,” satisfying the statutory standard for third degree assault, in addition to the other charges.

These cases reflect how difficult it is to overturn an assault conviction on appeal. They show that perpetrators ought to think first, like a Voltaire or Twain, before engaging in physical violence.


Different degrees of assaults in Minnesota

First Degree: Causing “great bodily harm” to another person.

Second Degree: Use of “dangerous” weapon.

Assault on Young Child: Minor With Prior Abuse or “considerable bodily harm.”

Fourth Degree: Altercation with police, probation, medical personnel, or other public servants or due to impermissible bias.

Fifth Degree: “Intent to cause fear or attempt to inflict harm.”

Sexual Assault: Also five degrees of severity.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.

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