                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-0596

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                Sabrina Beth O’Brien,
                                      Appellant.

                               Filed February 1, 2016
                                      Affirmed
                                  Schellhas, Judge

                             Stearns County District Court
                               File No. 73-CR-14-8194

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Janelle P. Kendall, Stearns County Attorney, Kyle R. Triggs, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Reilly, Presiding Judge; Schellhas, Judge; and

Rodenberg, Judge.
                         UNPUBLISHED OPINION

SCHELLHAS, Judge

       Appellant challenges her convictions of gross-misdemeanor malicious punishment

of a child and misdemeanor domestic assault-harm, arguing that the evidence was

insufficient to support the convictions. We affirm.

                                          FACTS

       Appellant Sabrina O’Brien’s seven-year-old son, T.R., exhibited behavior problems

at his school on September 23, 2014. A school paraprofessional testified that T.R. was

becoming very physical with her and that she had to remove him from the classroom and

from other children in the vicinity. The following morning when the paraprofessional met

T.R. at the bus, she immediately noticed that T.R. had some markings on his neck; the

paraprofessional described the markings as “purple in color, almost like lines on [T.R.’s]

neck,” and testified that the markings “looked like a hand print, fingerprints.” The

paraprofessional asked T.R. what had happened, and T.R. said that O’Brien was “tickling”

him. The paraprofessional had not seen the markings on T.R. the prior day and escorted

T.R. to the school nurse to look at the markings. The nurse alerted the school social worker,

who observed the markings, along with scratches on T.R.’s ear and chest. The social

worker testified that the markings were “pretty apparent and obvious.” The social worker

contacted Stearns County Social Services and the school’s resource officer. The resource

officer observed the markings on T.R., photographed them, and, later that day, obtained

O’Brien’s recorded statement. O’Brien admitted that the injuries depicted in one of the

photographs were from “tickling” T.R.


                                             2
       Respondent State of Minnesota charged O’Brien with gross-misdemeanor malicious

punishment of a child and misdemeanor domestic assault-harm. A jury returned guilty

verdicts on both charges, and the district court imposed a stayed sentence for malicious

punishment of a child.

       This appeal follows.

                                      DECISION

       O’Brien argues that the evidence was insufficient to support her convictions of

malicious punishment of a child and domestic assault-harm. The state concedes that,

because its proof was “partially based on circumstantial evidence,” the circumstantial-

evidence standard applies. Under the circumstantial-evidence standard, the reviewing court

applies a two-step test. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). “The first

step is to identify the circumstances proved. In identifying the circumstances proved,

[appellate courts] defer to the jury’s acceptance of the proof of these circumstances and

rejection of evidence in the record that conflicted with the circumstances proved by the

State.” Id. at 598–99 (quotations and citation omitted). “[B]ecause the jury is in the best

position to evaluate the credibility of the evidence even in cases based on circumstantial

evidence,” the reviewing court must “construe conflicting evidence in the light most

favorable to the verdict and assume that the jury believed the State’s witnesses and

disbelieved the defense witnesses.” Id. at 599 (quotation omitted). The second step of the

circumstantial-evidence standard is to “determine whether the circumstances proved are

consistent with guilt and inconsistent with any rational hypothesis except that of guilt.” Id.

(quotations omitted).


                                              3
Malicious punishment

       “A parent . . . who, by an intentional act or a series of intentional acts with respect

to a child, evidences unreasonable force or cruel discipline that is excessive under the

circumstances is guilty of malicious punishment of a child . . . .” Minn. Stat. § 609.377,

subd. 1 (2014). Malicious punishment of a child is a general-intent crime because it

requires only that “the defendant intended to do the physical act” and not “that the

defendant meant to violate the law or cause a particular result.” Cf. State v. Fleck, 810

N.W.2d 303, 309–10 (Minn. 2012) (concluding that assault-harm is general-intent crime

because “[a]lthough the definition of assault-harm requires the State to prove that the

defendant intended to do the physical act, nothing in the definition requires proof that the

defendant meant to violate the law or cause a particular result”).

       O’Brien argues that her actions did not satisfy the statutory requirements of

unreasonable force or cruel discipline because she “did not exceed any normal limits when

she tried to cheer up her son by engaging in an activity he enjoyed—tickling.” The state

counters that the circumstances proved are that O’Brien caused T.R.’s injuries and do not

allow for a rational inference that she did so accidentally by playfully tickling T.R. The

state argues that the only rational inference from the circumstances proved is that O’Brien

intentionally assaulted T.R. because of his misbehavior.

       When a sufficiency-of-the-evidence argument involves the question of whether the

defendant’s conduct meets the statutory definition of an offense, the reviewing court is

presented with a question of statutory interpretation that is reviewed de novo. See State v.

Hayes, 826 N.W.2d 799, 803 (Minn. 2013) (stating in context of sufficiency-of-the-


                                             4
evidence claim that whether defendant’s conduct satisfied statutory definition of crime

“presents a question of statutory interpretation that [appellate courts] review de novo”).

“‘Unreasonable force’ or ‘cruel discipline’ should be read as alternatives.” State v. Broten,

836 N.W.2d 573, 577 (Minn. App. 2013), review denied (Minn. Nov. 12, 2013). The statute

does not define the terms “cruel” or “excessive.” We have stated that “‘[c]ruel’ is defined

as ‘[c]ausing or characterized by severe pain, suffering, or distress.’” Id. at 575 (second

alteration in original) (quoting The American Heritage Dictionary 437 (5th ed. 2011)).

“[E]xcessive” is defined as “[e]xceeding a normal, usual, reasonable, or proper limit.” The

American Heritage Dictionary 618 (5th ed. 2011). When determining the scope of

reasonable disciplinary force, we have considered “the child’s age, height, and weight; the

seriousness of the [child’s] infraction; the degree of force used by the parent; and the

physical impact of the discipline.” In re Welfare of Children of N.F., 735 N.W.2d 735,

738–39 (Minn. App. 2007), aff’d in part, rev’d in part on other grounds, 749 N.W.2d 802

(Minn. 2008).

       The first step of the circumstantial-evidence standard is to “identify the

circumstances proved.” Silvernail, 831 N.W.2d at 598. In determining the circumstances

proved, the reviewing court must “construe conflicting evidence in the light most favorable

to the verdict and assume that the jury believed the State’s witnesses and disbelieved the

defense witnesses.” Id. at 599 (quotation omitted).

       Here, the circumstances proved are as follows. The paraprofessional notified the

school social worker about T.R.’s behavior on the day in question and did not observe any

injuries on T.R. when she escorted him to the bus. When T.R. arrived home, O’Brien


                                             5
grounded him for being “bad at school.” T.R. threw a tantrum for about 15 minutes while

following O’Brien as she cleaned the house. At the time, T.R.’s 12-year-old brother, D.O.,

was in the living room approximately 15 feet from O’Brien and T.R. and could not see

what was happening but knew that T.R. was having a temper tantrum and crying and

yelling. T.R. and O’Brien went into the family’s shared bedroom, where T.R.’s 14-year-

old sister, A.O., was on top of a bunk bed. T.R. sat on O’Brien’s lap on a bed on the other

side of the room while O’Brien “tickled” T.R. on his neck and under his arms for about 30

minutes. O’Brien stopped “tickling” T.R. when she noticed some scratches on his neck.

O’Brien knew that T.R.’s injuries resulted from her “tickling.” T.R.’s injuries were “purple

in color, almost like lines on his neck” and “looked like a hand print, fingerprints.” The

“fingerprint marks on [T.R.’s] neck” were “pretty apparent and obvious.” T.R. “had

multiple scratches on his neck, some were deep red and some were lighter red.” The injuries

“looked much worse” when the resource officer saw them in person than when she

photographed them.

       The second step of the circumstantial-evidence standard is to “determine whether

the circumstances proved are consistent with guilt and inconsistent with any rational

hypothesis except that of guilt.” Silvernail, 831 N.W.2d at 599 (quotations omitted).

“[Appellate courts] review the circumstantial evidence not as isolated facts, but as a

whole,” and “examine independently the reasonableness of all inferences that might be

drawn from the circumstances proved; including the inferences consistent with a

hypothesis other than guilt.” Id. (quotations omitted). “[Appellate courts] give no deference

to the fact finder’s choice between reasonable inferences.” Id. (quotation omitted).


                                             6
       In State v. Hokanson, the supreme court considered whether the evidence was

sufficient to support a conviction of first-degree murder while committing child abuse

(malicious punishment of a child) with a past pattern of child abuse. 821 N.W.2d 340, 348,

353 (Minn. 2012). The court determined the following to be the circumstances proved for

the malicious-punishment offenses:

              [The child] sustained bruising on his face around 10 and 12
              months of age. The facial bruising showed a pattern consistent
              with fingertips. [The child] did not have any blood disorder or
              other medical problem that would have caused him to bruise
              easily. [The child’s mother] witnessed bruises on [the child]’s
              face, observed appellant putting his hand over [the child]’s
              mouth, and saw appellant squeeze [the child] around the rib
              cage. [The child] was afraid of appellant and would try to move
              away from him. Appellant admitted to putting his hands over
              [the child]’s mouth when he was crying, and would hold [the
              child]’s face down into the bed when [the child] was screaming
              for his mother. Appellant also admitted to squeezing [the
              child]’s torso with his hands to get him to stop crying.
              Additionally, the individuals who had contact with [the child]
              at the time in question testified that they never abused [the
              child], and we must assume that the jury believed their
              testimony.

Id. at 355. Based on these circumstances, the court determined that “a reasonable jury could

have concluded that appellant’s actions involved unreasonable force or cruel discipline that

is excessive under the circumstances, and therefore constituted a violation of the malicious

punishment statute.” Id. at 355–56 (quotation omitted). The court also concluded that the

circumstances proved did not support a rational hypothesis of innocence because it was

required to assume that the jury believed the testimony of the state’s witnesses that no one

other than the appellant had abused the child and because, “if the jury believed the medical

examiner’s testimony that [the child] did not bruise easily, the jury could not have


                                             7
reasonably concluded that appellant used reasonable force when he covered [the infant]’s

mouth and held [the infant] down on the bed.” Id. at 356.

       Although the seriousness of the injuries in this case do not approach the injuries

sustained by the child in Hokanson, the circumstances proved are consistent with O’Brien’s

guilt. The circumstances are inconsistent with any rational hypothesis except that of guilt.

O’Brien admitted that she caused T.R.’s injuries by “tickling” him. The state presented

testimonial and photographic evidence regarding the extent of T.R.’s injuries resulting

from the “tickling.” T.R. had “multiple scratches on his neck” that were “purple” or “deep

red” in color and had the appearance of “a hand print” or “fingerprint marks.” The injuries

“looked much worse” when the resource officer saw them in person than when she

photographed them. Assuming, as we must, that the jury believed the state’s evidence, the

jury could not have reasonably concluded that O’Brien used reasonable force when

“tickling” T.R. We therefore conclude that the evidence was sufficient to support O’Brien’s

conviction of malicious punishment of a child.

Domestic assault-harm

       O’Brien argues that the evidence was insufficient to support her conviction of

domestic assault-harm because the state offered no evidence that she intended to inflict

bodily harm upon T.R. A person who “intentionally inflicts or attempts to inflict bodily

harm” on a family member “commits an assault and is guilty of a misdemeanor.” Minn.

Stat. § 609.2242, subd. 1 (2014). “[A]ssault-harm is a general-intent crime . . . .” Fleck,

810 N.W.2d at 309. “Although the definition of assault-harm requires the State to prove




                                             8
that the defendant intended to do the physical act, nothing in the definition requires proof

that the defendant meant to violate the law or cause a particular result.” Id.

       The first step of the circumstantial-evidence standard is to “identify the

circumstances proved.” Silvernail, 831 N.W.2d at 598. The circumstances proved are the

same here as set forth above. The second step of the circumstantial-evidence standard

requires us to “determine whether the circumstances proved are consistent with guilt and

inconsistent with any rational hypothesis except that of guilt.” Silvernail, 831 N.W.2d at

599 (quotations omitted). Despite acknowledging that domestic assault-harm is a general-

intent crime, O’Brien asserts that “to be guilty of domestic assault, [she] must have

intended to engage in the conduct forbidden by the statute—inflicting bodily harm upon a

family member.” She further argues that “[t]he unrefuted evidence proved that [her] intent

was to play with T.R., not to cause him any harm,” and that “[b]ecause a rational hypothesis

of innocence remained, the evidence was insufficient to show beyond a reasonable doubt

that [she] intended to assault T.R.” We disagree.

       Because domestic assault-harm is a general-intent crime, the state only needed to

prove that O’Brien intentionally tickled T.R., which resulted in bodily harm to T.R.; the

state did not need to prove that O’Brien intended to inflict bodily harm on T.R. T.R., D.O.,

and A.O. testified that O’Brien tickled T.R., and O’Brien admitted in her statement to the

resource officer that she caused T.R.’s injuries by tickling him. These circumstances are

consistent with O’Brien causing bodily harm to T.R. by intentional conduct and are

inconsistent with any rational hypothesis of O’Brien’s innocence. We therefore conclude

that the evidence was sufficient to support O’Brien’s conviction of domestic assault-harm.


                                              9
Affirmed.




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