                           This opinion will be unpublished and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
                                      A15-1478

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                           Ely Ovis Emmanuel Ana El Sabahot,
                                      Appellant.

                                 Filed December 5, 2016
                    Affirmed in part, reversed in part, and remanded
                                     Johnson, Judge

                             Crow Wing County District Court
                          File Nos. 18-CR-15-193, 18-CR-15-410

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

Donald F. Ryan, Crow Wing County Attorney, David F. Hermerding, Assistant County
Attorney, Brainerd, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Reilly, Presiding Judge; Halbrooks, Judge; and Johnson,

Judge.

                          UNPUBLISHED OPINION

JOHNSON, Judge

         Ely Ovis Emmanuel Ana El Sabahot pleaded guilty pursuant to a plea agreement to

a drug-possession charge and a charge of assaulting a peace officer. On appeal, he argues
that his guilty pleas are invalid because they are not supported by proper factual bases. We

conclude that a proper factual basis exists for Sabahot’s plea to the drug-possession charge.

But we conclude that a proper factual basis does not exist for Sabahot’s plea to assaulting

a peace officer. Therefore, we affirm in part, reverse in part, and remand for further

proceedings.

                                          FACTS

       This appeal arises from two incidents that occurred in early 2015. On January 13,

2015, Brainerd police officers conducted a traffic stop of a vehicle. Before the vehicle

came to a stop, the officers saw the front-seat passenger, who later was identified as

Sabahot, throw several items out the window. The officers later found the items, which

included a glass pipe. The officers conducted a field test of the pipe with a Narcotics

Inventory Kit (NIK), which indicated the presence of methamphetamine residue. The state

charged Sabahot with a fifth-degree controlled substance crime, in violation of Minn. Stat.

§ 152.025, subd. 2(a)(1) (2014); possession of drug paraphernalia, in violation of Minn.

Stat. § 152.092 (2014); and possession of an open container of alcohol, in violation of

Minn. Stat. § 169A.35, subd. 3 (2014).

       Two weeks later, on January 27, 2015, law-enforcement officers arrested Sabahot

on suspicion of violating a predatory-registration requirement. Sabahot was injured during

the arrest. While receiving treatment in a local hospital, Sabahot became agitated and spit

on a deputy’s face. The state charged Sabahot with felony fourth-degree assault of a peace

officer, in violation of Minn. Stat. § 609.2231, subd. 1 (2014), and knowingly violating the




                                             2
predatory-registration requirement or intentionally providing false information, in

violation of Minn. Stat. § 243.166, subd. 5(a) (2014).

       In June 2015, the state and Sabahot entered into a plea agreement to resolve the

charges in both cases. Sabahot agreed to plead guilty to the drug-possession charge in the

first case and the charge of assaulting a peace officer in the second case. In exchange, the

state agreed to dismiss all remaining charges in both cases.

       At a plea hearing concerning both cases, Sabahot engaged in a colloquy with his

attorney in which he provided some but not all of the facts necessary to support his guilty

pleas. With respect to the drug-possession charge, Sabahot admitted that he was a

passenger in a vehicle that was stopped by police officers, but he did not admit to throwing

items out the window or that the items contained controlled substances.             Sabahot

acknowledged that, if the case were to go to trial, one or more police officers would testify

that they saw Sabahot throw a glass pipe out a window and that methamphetamine residue

was on the glass pipe. Sabahot acknowledged that the state had sufficient evidence to cause

a jury to convict him of that charge if the case went to trial.

       With respect to the charge of assaulting a peace officer, Sabahot admitted that he

had been arrested and was brought to a hospital. But he made no admissions concerning

what occurred at the hospital, claiming that he could not remember because of his condition

at that time. Sabahot acknowledged that, if the case were to go to trial, an officer would

testify that Sabahot became agitated and that “some spit came out of [his] mouth and hit

[the deputy].” Sabahot acknowledged that the state had sufficient evidence to cause a jury

to convict him of that charge if the case went to trial.


                                               3
       The district court accepted both guilty pleas and dismissed the remaining charges.

The district court imposed concurrent prison sentences of 25 months and 22 months but

stayed execution and placed Sabahot on supervised probation for five years. Sabahot

appeals.

                                     DECISION

       Sabahot argues that both of his guilty pleas are invalid. He did not move to

withdraw his guilty pleas in the district court or otherwise argue to the district court that

his pleas are invalid. Nonetheless, the caselaw permits him to make the argument for the

first time on appeal from his convictions and sentences. See State v. Iverson, 664 N.W.2d

346, 350 (Minn. 2003); Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).

       A guilty plea is invalid if it is not “accurate, voluntary and intelligent.” State v.

Ecker, 524 N.W.2d 712, 716 (Minn. 1994). The supreme court has explained each of the

three requirements:

              The main purpose of the accuracy requirement is to protect a
              defendant from pleading guilty to a more serious offense than
              he could be convicted of were he to insist on his right to trial.
              Other possible benefits of the accuracy requirement include
              assisting the court in determining whether the plea is
              intelligently entered and facilitating the rehabilitation of the
              defendant. The purpose of the voluntariness requirement is to
              insure that the defendant is not pleading guilty because of
              improper pressures. The purpose of the requirement that the
              plea be intelligent is to insure that the defendant understands
              the charges, understands the rights he is waiving by pleading
              guilty, and understands the consequences of his plea.

State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). If a guilty plea fails to meet any of

these three requirements, it is invalid. State v. Theis, 742 N.W.2d 643, 650 (Minn. 2007).



                                             4
This court applies a de novo standard of review to the validity of a guilty plea. State v.

Raleigh, 778 N.W.2d 90, 94 (Minn. 2010).

       Sabahot argues that his guilty pleas are invalid because they are not accurate. A

guilty plea is not accurate if it is not supported by a proper factual basis. Ecker, 524 N.W.2d

at 716. In general, a proper factual basis exists if there are “sufficient facts on the record

to support a conclusion that defendant’s conduct falls within the charge to which he desires

to plead guilty.” Iverson, 664 N.W.2d at 349 (quoting Kelsey v. State, 298 Minn. 531, 532,

214 N.W.2d 236, 237 (1974)). In a conventional guilty plea, the defendant’s admissions

provide the factual basis that supports the defendant’s admission of guilt. Ecker, 524

N.W.2d at 716.

       This appeal does not arise from conventional guilty pleas because Sabahot’s

admissions at the plea hearing did not, by themselves, establish all elements of the charged

offenses. At the plea hearing, the parties and the district court understood that Sabahot was

entering so-called Alford pleas to both charges. In an Alford plea, a defendant maintains

his innocence but nonetheless pleads guilty because he believes that the state has sufficient

evidence and is likely to obtain a conviction if the case were to go to trial. State v. Goulette,

258 N.W.2d 758, 761 (Minn. 1977) (citing North Carolina v. Alford, 400 U.S. 25, 91 S. Ct.

160 (1970)); see also Doe 136 v. Liebsch, 872 N.W.2d 875, 879 (Minn. 2015). Because

Sabahot disputed the state’s evidence concerning the drug-possession charge, it is proper

to characterize his plea to that charge as an Alford plea. See Theis, 742 N.W.2d at 647-48.

But Sabahot did not dispute the state’s evidence concerning the assault charge; rather, he

stated at the plea hearing that he had no recollection of the incident. Sabahot’s plea to the


                                               5
assault charge is properly characterized as a Norgaard plea, which may be entered if a

defendant does not admit the facts necessary for guilt because he lacks a recollection of the

relevant facts. See State ex rel. Norgaard v. Tahash, 261 Minn. 106, 111-13, 110 N.W.2d

867, 871-72 (1961).

       A challenge to the accuracy of an Alford plea is analyzed in the same manner as a

challenge to the accuracy of a Norgaard plea. See Ecker, 524 N.W.2d at 717; see also

Williams v. State, 760 N.W.2d 8, 12 (Minn. App. 2009), review denied (Minn. Apr. 21,

2009). A defendant entering an Alford plea or a Norgaard plea must “agree[] that evidence

the State is likely to offer at trial is sufficient to convict” and should “specifically

acknowledge on the record at the plea hearing that the evidence the State would likely offer

against him is sufficient for a jury, applying a reasonable doubt standard, to find the

defendant guilty.” Theis, 742 N.W.2d at 649; Ecker, 524 N.W.2d at 716-17. If the

defendant has made the required agreements and acknowledgements, the district court must

independently determine whether the factual basis indicates a strong probability that a jury

would find the defendant guilty. Theis, 742 N.W.2d at 649; Ecker, 524 N.W.2d at 716-17;

see also State v. Johnson, 867 N.W.2d 210, 214-17 (Minn. App. 2015), review denied

(Minn. Sept. 29, 2015).

                                  A. Drug-Possession Charge

       Sabahot argues that his Alford plea to the drug-possession charge is lacking a factual

basis as to whether the glass pipe contained residue of a controlled substance. Specifically,

he contends that a NIK test result is incapable of establishing that the substance on the glass

pipe is a controlled substance.


                                              6
       Sabahot relies primarily on State v. Vail, 274 N.W.2d 127 (Minn. 1979), and State

v. Robinson, 517 N.W.2d 336 (Minn. 1994). He contends that Vail and Robinson have

“recognized that a NIK test merely provides a preliminary result, which is unreliable by

itself and must be confirmed by further scientific testing.” But the supreme court actually

made a contrary statement in Vail: “We have not prescribed minimum evidentiary

requirements in identification cases, preferring to examine the sufficiency of the evidence

on a case-by-case basis.” 274 N.W.2d at 134. More recently, the supreme court has

reiterated that the question whether a substance possessed by a defendant is a controlled

substance must be determined “on a case-by-case basis.” State v. Olhausen, 681 N.W.2d

21, 26 (Minn. 2004). In State v. Knoch, 781 N.W.2d 170 (Minn. App. 2010), this court

held that, for purposes of determining the existence of probable cause, there is no “bright-

line rule forbidding the use of a field test of a controlled substance.” Id. at 180.

       In the context of determining the existence of a proper factual basis for an Alford

plea, the key question is whether “the evidence the State would likely offer . . . is sufficient

for a jury, applying a reasonable doubt standard, to find the defendant guilty.” Theis, 742

N.W.2d at 649. It is important to emphasize that the inquiry is not limited to the evidence

that is recited at the plea hearing; rather the inquiry considers “the evidence the State would

likely offer” if the case were to go to trial. See id. In addition, a defendant’s guilty plea

may be accepted based not only on the specific facts admitted at a plea hearing but also the

facts that may be inferred from the admitted facts. See Nelson v. State, 880 N.W.2d 852,

861 (Minn. 2016). In this case, the state gave notice to Sabahot that the “[s]uspected

controlled substances will be submitted for scientific testing to the Minnesota Bureau of


                                               7
Criminal Apprehension upon notice that the matter has been set for Jury Trial.” Thus, in

accepting the plea agreement, the district court was permitted to consider the likelihood

that the state would introduce evidence at trial of a positive result of a laboratory test, and

we are permitted to view the record in the same manner. The likelihood of evidence of a

positive laboratory test result is enhanced by the fact that the substance being tested was

found on a glass pipe. See Nelson, 880 N.W.2d at 861.

        Thus, Sabahot’s Alford plea to the drug-possession charge is not lacking a proper

factual basis on the ground that, at the time of the plea hearing, the state had conducted a

NIK field test of the substance on the glass pipe but had not yet conducted a laboratory

test.

                                     B. Assault Charge

        Sabahot also argues that his plea to the charge of felony fourth-degree assault of a

peace officer, which we have characterized as a Norgaard plea, is lacking a factual basis.

Specifically, he contends that he could not have committed an assault by spitting on an

officer’s face because, first, the act did not cause bodily harm and, second, the record does

not establish that he acted intentionally.

        The statute setting forth the offense of felony fourth-degree assault of a peace officer

provides as follows:

                      Whoever physically assaults a peace officer . . . when that
               officer is effecting a lawful arrest or executing any other duty
               imposed by law is guilty of a gross misdemeanor . . . . If the
               assault inflicts demonstrable bodily harm or the person
               intentionally throws or otherwise transfers bodily fluids or feces
               at or onto the officer, the person is guilty of a felony . . . .



                                               8
Minn. Stat. § 609.2231, subd. 1 (2014). The phrase “physically assaults,” as used in this

statute, means committing fifth-degree assault. State v. Struzyk, 869 N.W.2d 280, 285

(Minn. 2015). A person commits fifth-degree assault if he “(1) commits an act with intent

to cause fear in another of immediate bodily harm or death; or (2) intentionally inflicts or

attempts to inflict bodily harm upon another.” Minn. Stat. § 609.224, subd. 1 (2014). The

phrase “bodily harm,” as used in the assault statute, is defined by statute to mean “physical

pain or injury, illness, or any impairment of physical condition.” Minn. Stat. § 609.02,

subd. 7 (2014). In interpreting section 609.2231, subdivision 1, the supreme court stated,

“A mere potential to cause bodily harm through the transfer of bodily fluids or feces does

not satisfy the legal standard for bodily harm.” Struzyk, 869 N.W.2d at 289. Rather, bodily

harm does not exist unless an assault victim perceives a “minimal amount of physical pain”

or experiences a weakened physical condition. See, e.g., State v. Jarvis, 665 N.W.2d 518,

522 (Minn. 2003) (concluding that victim sustained bodily harm from involuntary

ingestion of drugs, which caused grogginess, inability to move, and disorientation); State

v. Mattson, 376 N.W.2d 413, 414-15 (Minn. 1985) (concluding that victim sustained bodily

harm because defendant’s contact caused bruising); State v. Johnson, 277 Minn. 230, 237,

152 N.W.2d 768, 773 (1967) (concluding that victim sustained bodily harm because he felt

pain when defendant struck him).

       In this case, the record reveals only that “some spit came out of [Sabahot’s] mouth

and hit [the officer].” There was no statement at the plea hearing as to whether Sabahot’s

spit had any particular effect on the officer. Without such additional evidence, it would

not be reasonable for the district court to infer that the officer experienced “physical pain


                                             9
or injury, illness, or any impairment of physical condition.” See Minn. Stat. § 609.02,

subd. 7. It is possible that, in some circumstances, a person might experience bodily harm

after being spat upon. But, to reiterate, the “mere potential to cause bodily harm through

the transfer of bodily fluids or feces does not satisfy the legal standard for bodily harm.”

Struzyk, 869 N.W.2d at 289. Consequently, the state’s evidence is not “sufficient for a

jury, applying a reasonable doubt standard, to find the defendant guilty.” See Theis, 742

N.W.2d at 649.

       Thus, Sabahot’s Norgaard plea to the charge of felony fourth-degree assault of a

peace officer lacks a proper factual basis on the ground that the alleged act did not cause

bodily harm. In light of that conclusion, it is unnecessary to consider Sabahot’s argument

that the record does not establish that he acted intentionally.

                                        C. Remedy

       Having concluded that one of Sabahot’s guilty pleas is valid and that one of his

guilty pleas is invalid, we must consider the appropriate appellate remedy. Neither party’s

brief considers this scenario. At oral argument, we asked counsel for both parties what

relief would be appropriate in this situation. Neither attorney provided clear guidance to

the court.

       This court has recognized that a plea agreement “represent[s] a bargained-for

understanding between the government and criminal defendants in which each side forgoes

certain rights and assumes certain risks in exchange for a degree of certainty as to the

outcome of criminal matters.” State v. Meredyk, 754 N.W.2d 596, 603 (Minn. App. 2008)

(quotations omitted). In a case in which a district court erred in sentencing after a plea


                                             10
agreement, this court reversed and remanded for resentencing because the erroneous

sentence was part of “an intricate plea agreement involving many crimes” in which

“[e]verything was interrelated” such that “it would be inappropriate for this court to make

piecemeal corrections without regard to the effect of the corrections on the plea bargain.”

State v. Misquadace, 629 N.W.2d 487, 491 (Minn. App. 2001), aff’d, 644 N.W.2d 65

(Minn. 2002). In a similar context, the supreme court has stated that various “components”

of a plea agreement may be “interrelated” such that, if one particular term of a plea

agreement is deemed invalid, “the district court should be free [on remand] to consider the

effect” that the invalid term may “have on the entire plea agreement.” State v. Lewis, 656

N.W.2d 535, 539 (Minn. 2003). These principles were applied in State v. Montermini, 819

N.W.2d 447 (Minn. App. 2012), in which this court concluded that, after partial

postconviction relief due to invalid guilty pleas, a district court did not err by granting a

motion by the state to vacate other convictions implicated by a plea agreement and to return

the parties to the positions they occupied before the plea agreement. Id. at 454-55.

       In this case, the plea agreement between the state and Sabahot provided that Sabahot

would plead guilty to the drug-possession charge in the first case and the charge of

assaulting a peace officer in the second case and that the state would dismiss the remaining

charges in both cases. Each party should have an opportunity to present argument to the

district court concerning the proper resolution of the two cases. Therefore, we remand the

matter to the district court for further proceedings not inconsistent with this opinion.

       Affirmed in part, reversed in part, and remanded.




                                             11
