                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2016).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A16-0294

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   Noor Muhina Salim,
                                       Appellant.

                                Filed February 13, 2017
                    Affirmed in part, reversed in part, and remanded
                                    Bratvold, Judge

                             Blue Earth County District Court
                                 File No. 07-CR-15-361

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul,
Minnesota; and

Patrick McDermott, Blue Earth County Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
State Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Stauber, Presiding Judge; Worke, Judge; and Bratvold,

Judge.

                         UNPUBLISHED OPINION

BRATVOLD, Judge

         Appellant challenges his convictions of first-degree aggravated robbery, simple

robbery, theft, two counts of fifth-degree assault, and disorderly conduct. Appellant argues
that there is insufficient evidence supporting his first-degree aggravated robbery conviction

because he did not inflict bodily harm during commission of the robbery. Because we

conclude that the evidence establishes infliction of bodily harm during the carrying away

of stolen property, we affirm appellant’s first-degree aggravated robbery conviction.

       Appellant also argues that his adjudicated convictions of simple robbery, theft, fifth-

degree assault, and disorderly conduct must be vacated because they are lesser-included

offenses of first-degree aggravated robbery. Because simple robbery, theft, and fifth-degree

assault are lesser-included offenses, we reverse and remand to the district court with

instructions to vacate the formal adjudicated convictions of those counts, consistent with

this opinion. Because disorderly conduct is not a lesser-included offense of first-degree

aggravated robbery, we affirm that conviction.

                                          FACTS

       In November 2014, appellant Noor Salim accompanied A.A. on a road trip from

Mankato, Minnesota, to St. Louis, Missouri, so that A.A. could buy a new car. They agreed

that, after the trip to St. Louis, A.A. would drive Salim to Fargo, North Dakota, where

Salim wanted to visit friends, and the two would later drive back to Mankato together.

       The day after arriving in St. Louis, A.A. purchased his new car, and he and Salim

traveled to Fargo. As they neared Fargo, Salim demanded that A.A. pay him $600 for

accompanying A.A. on the roadtrip, but A.A. refused, saying he never agreed to pay Salim.

According to Salim, he was entitled to $600 because he loaned A.A. the money to buy new

car tires. A.A. denied that he bought new tires.




                                              2
         After arriving in Fargo, A.A. dropped Salim off at a friend’s house. A.A. testified

that, because of the “difficult disagreement” about money, he left Salim in Fargo and drove

back to Mankato alone. Salim tried calling A.A., but A.A. ignored Salim’s phone calls.

Salim was forced to take a bus back to Mankato. After returning to Mankato, Salim

repeatedly messaged A.A. on his cell phone asking to be paid, but A.A. continued to ignore

Salim.

         On January 25, 2015, Salim went to A.A.’s apartment to ask for payment. When

Salim knocked on the door, A.A., who had been sleeping, let Salim into his apartment. For

about 30 minutes, A.A. and Salim argued about money, but they could not agree. A.A. told

Salim that he was tired from working the night before and asked Salim to leave his

apartment. Salim refused. A.A. said he would call the police. Before A.A. could dial 911,

Salim grabbed the cell phone from A.A.’s hand and put it in his pocket.

         A.A. immediately asked for his phone back and moved closer to Salim. Salim

punched A.A. in the chest, and they fought for approximately 30 minutes. During the fight,

A.A. and Salim fell to the ground. The door to A.A.’s apartment was left open and a

neighbor heard noise, saw A.A. and Salim on the floor fighting, and A.A. told the neighbor

to call the police. As the neighbor began to call the police, Salim hit A.A. and fled the

apartment with A.A.’s cell phone in his pocket. As a result of the fight, A.A. had a bruise

on his back, and cuts on his knee, elbow, and throat.

         Police arrived at A.A.’s apartment within five minutes of the neighbor’s 911 call.

A.A. did not know Salim’s full name, but gave the police directions to Salim’s house and

Salim’s sister’s name. The officer searched for possible suspects using a computer


                                              3
database, showed A.A. a photo, and A.A. identified Salim as the person who had assaulted

him. The state charged Salim with first-degree aggravated robbery, simple robbery, theft,

interference with a 911 call, and two counts of fifth-degree assault. During a two-day jury

trial, A.A. and two responding officers testified for the state; Salim’s uncle testified for

Salim, and Salim testified on his own behalf.

       Salim’s testimony provided a different account of the events on January 25, 2015.

Salim testified that he went to A.A.’s apartment to visit his cousin who lived with A.A.

Salim testified that he discussed money with A.A., but A.A. started screaming at him.

Salim stated that he tried to leave the apartment, but A.A. stood in his way and then pushed

him. Salim testified that, after he pushed A.A., A.A. got on top of him, punched him, and

then ran to the kitchen, threatening to stab him with a knife. Salim then fled the apartment.

Salim denied taking anything from A.A.’s apartment. Salim admitted that he had not told

anyone his version of events before trial.

       At the end of the first day of trial, Salim orally moved to amend the complaint to

add a disorderly conduct (brawling or fighting) charge under Minn. Stat. § 609.72, subd.

1(1) (2014), which the state did not oppose. On the second day of trial, the state orally

moved to amend the complaint to add a charge of temporary theft under Minn. Stat.

§ 609.52, subd. 2(a)(5) (2014), based on evidence that A.A.’s cell phone was returned to

him, which Salim did not oppose. The district court instructed the jury on disorderly

conduct and temporary theft, in addition to the six charges in the written complaint.

       The jury found Salim guilty of seven counts: (1) first-degree aggravated robbery;

(2) simple robbery; (3) interfering with a 911 call; (4) fifth-degree assault with intent to


                                             4
cause fear of immediate bodily harm or death; (5) fifth-degree assault with infliction of

bodily harm or attempted infliction of bodily harm; (6) theft; and (7) disorderly conduct

(brawling or fighting). Salim was acquitted of temporary theft.

       At the sentencing hearing on November 23, 2015, the district court pronounced a

sentence only on first-degree aggravated robbery and sentenced Salim to a downward

dispositional departure of 48 months in prison, stayed this sentence for 10 years, subject to

conditions and a term of probation. The district court filed a written sentencing order

entering formal judgments of conviction on all seven counts. This appeal follows.

                                     DECISION

I.     Sufficiency of the Evidence
       This court’s review of a challenge to the sufficiency of the evidence “is limited to a

painstaking analysis of the record to determine whether the evidence, when viewed in a

light most favorable to the conviction, was sufficient to permit the jurors to reach the

verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court

“will not disturb the verdict if the jury, acting with due regard for the presumption of

innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could

reasonably conclude that [the] defendant was proven guilty of the offense charged.”

Bernhardt v. State, 684 N.W.2d 465, 476–77 (Minn. 2004) (quotation omitted). This court

assumes “the jury believed the state’s witnesses and disbelieved any evidence to the

contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This court generally defers

to the factfinder’s credibility determinations. Id.; see also State v. Hawes, 801 N.W.2d




                                             5
659, 670 (Minn. 2011) (“[T]he jury is in the best position to evaluate the credibility of the

evidence.”).

       The elements of first-degree aggravated robbery are that the defendant:

(1) wrongfully took property from the victim; (2) used force or the threat of imminent force

to overcome the victim’s resistance to, or compel the victim’s acquiescence in, the taking

or carrying away of the property; and (3) inflicted bodily harm or was armed with a

dangerous weapon. Minn. Stat. § 609.24, .245 (2014). Salim concedes that there was

sufficient evidence to support a conviction for simple robbery, but argues that the evidence

was insufficient to elevate the simple robbery to first-degree aggravated robbery because

there was no evidence that he inflicted bodily harm upon A.A. while committing the

robbery. Salim argues that the record shows he took A.A.’s cell phone and put it in his

pocket before he and A.A. began fighting. The state counters, arguing that the bodily harm

to A.A. occurred during the “carrying away” of the cell phone. Because it is uncontested

that Salim inflicted bodily harm on A.A. during their fight, the issue for this court is

whether the timing of the infliction of bodily harm—which occurred after Salim took the

cell phone from A.A., but before Salim carried away the cell phone from A.A.’s

apartment—is sufficient to sustain the first-degree aggravated robbery conviction.

       Minnesota courts have repeatedly held that, to sustain a simple robbery or first-

degree aggravated robbery conviction, there must be evidence that the defendant used force

or threat of force (for simple robbery) and inflicted bodily harm (for first-degree aggravated

robbery) during the taking or carrying away of the stolen property. State v. Kvale, 302

N.W.2d 650, 652–53 (Minn. 1981); State v. Brown, 597 N.W.2d 299, 303–04 (Minn. App.


                                              6
1999), review denied (Minn. Sept. 14, 1999); State v. Burrell, 506 N.W.2d 34, 36 (Minn.

App. 1993), review denied (Minn. Oct. 19, 1993).

       In State v. Kvale, the Minnesota Supreme Court addressed whether evidence of

infliction of bodily harm after the taking of property could sustain an aggravated robbery

conviction. 302 N.W.2d at 652. In Kvale, the defendant demanded money from the victim

while the victim was in his car. Id. at 651. After the victim gave money to the defendant,

the defendant hit the victim and cut his throat. Id. On appeal, the defendant argued the

evidence was insufficient to uphold his aggravated robbery conviction because he first took

the money from the victim and then, in “an unrelated assault,” inflicted bodily harm on the

victim before fleeing with the money. Id.

       Kvale first noted that the legislative history of the simple robbery statute established

“that the use of force in escaping [is] insufficient” to uphold a simple robbery conviction.

Id. at 652. Kvale then distinguished the use of force during the carrying away of the

property from the use of force to effectuate an escape.

              The robbery statute speaks of using force or threats to compel
              acquiescence in either the taking or the carrying away of the
              property. It does not require that the use of force or threats
              actually precede or accompany the taking. It requires only that
              the use of force or threats precede or accompany either the
              taking or the carrying away and that the force or threats be used
              to overcome the victim’s resistance or compel his acquiescence
              in the taking or carrying away.

Id. at 653 (emphasis added). Based on this reasoning, Kvale upheld the defendant’s first-

degree aggravated robbery conviction because the infliction of bodily harm occurred

during the carrying away of the property. Id.



                                              7
       This court has applied Kvale in two published decisions. First, in State v. Burrell,

this court addressed whether the use of force after the taking of property was sufficient to

uphold a simple robbery conviction. 506 N.W.2d at 36. The defendant in Burrell stole

seven cigarette cartons from a convenience store. Id. at 35. As the defendant left the store

and headed to a getaway car, the store owner noticed a carton sticking out of the

defendant’s coat and ran after the defendant yelling for him to stop. Id. A fight ensued

during which the defendant injured the store owner. Id.

       Relying on Kvale, the defendant in Burrell argued that there was insufficient

evidence to sustain a simple robbery conviction because he used force against the store

owner during his escape, not during the commission of the robbery. Id. at 36. This court

rejected the defendant’s argument and upheld the simple robbery conviction:

              Appellant’s use of force in this case may be viewed as
              occurring more closely with the “carrying away” of the
              cigarettes than with an escape. By appellant’s own testimony,
              the entire confrontation took less than one minute; the use of
              force thus occurred almost immediately after appellant ran
              outside the store with the cigarettes. Moreover, given [the
              victim’s] version of the events, the jury had ample ground to
              conclude appellant’s actions fit within the “carrying away”
              provision of the statute.
Id.

       Similarly, in State v. Brown, this court addressed whether the use of force after the

taking of property was sufficient to uphold a first-degree aggravated robbery conviction.

597 N.W.2d at 303. In Brown, the defendant stole two cases of baby formula from a store,

ran out of the store, and threw the formula into his car. Id. at 302. Within five or ten




                                             8
seconds, the store owner ran after the defendant, and they fought, during which the

defendant inflicted injuries on the store owner. Id.

       Relying on Kvale, the defendant in Brown argued that, because the baby formula

was already in his car when the store owner ran after him, the infliction of harm occurred

during his escape, not during the commission of the robbery. Id. at 303. In rejecting the

defendant’s argument, this court held that, “[b]ecause Brown was attempting to drive away

with the [formula] in his car, the jury could reasonably conclude that his use of force

accompanied the carrying away of the [formula] and was intended to overcome [the

victim’s] resistance to the carrying away.” Id. at 304.

       Here, a reasonable jury could conclude that Salim inflicted bodily harm upon A.A.

during the “carrying away” of A.A.’s cell phone. A.A. testified that “the fight was over the

cell phone.” Like the store owners in Burrell and Brown, A.A. demanded his cell phone

back immediately after Salim took it from him. When Salim did not give the phone back,

A.A. moved closer to Salim, and Salim punched A.A. in the chest. A.A. and Salim then

fought for approximately 30 minutes. Like in Kvale and Brown, the close temporal

relationship between Salim taking the cell phone from A.A., inflicting bodily harm on

A.A., and fleeing with the cell phone in his possession is probative evidence that the

infliction of bodily harm occurred during the “carrying away” of the cell phone. Viewing

the evidence in the light most favorable to the jury verdict, a reasonable jury could conclude

that Salim inflicted injury upon A.A. during the “carrying away” of the cell phone. Thus,

Salim’s insufficiency claim fails.




                                              9
II.    Lesser-Included Offenses

       Salim argues that his formal adjudicated convictions of simple robbery, theft, fifth-

degree assault, and disorderly conduct must be vacated because they are lesser-included

offenses of his first-degree aggravated robbery conviction. 1 Salim did not raise this issue

in the district court. Generally, this court does not consider issues that were not presented

to the district court. Roby v. State, 547 N.W.2d 354, 356–57 (Minn. 1996). The supreme

court, however, has “held that an appellant does not waive claims of multiple convictions

or sentences by failing to raise the issue at the time of sentencing.” Spann v. State, 740

N.W.2d 570, 573 (Minn. 2007); see also Ture v. State, 353 N.W.2d 518, 523 (Minn. 1984)

(noting that a defendant cannot waive objection to Double Jeopardy violations). Thus,

Salim has not forfeited this issue and we will address the merits.

       Whether a crime is a lesser-included offense is a question of law that this court

reviews de novo. State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012). Minnesota Statutes

section 609.04, subdivision 1, provides:

              Upon prosecution for a crime, the actor may be convicted of
              either the crime charged or an included offense, but not both.
              An included offense may be any of the following:
                      (1) A lesser degree of the same crime; or
                      (2) An attempt to commit the crime charged; or
                      (3) An attempt to commit a lesser degree of the same
                      crime; or
                      (4) A crime necessarily proved if the crime charged
                      were proved; or
                      (5) A petty misdemeanor necessarily proved if the
                      misdemeanor charge were proved.


1
  Salim does not challenge his formal adjudicated conviction of interference with a 911
call.

                                             10
Minn. Stat. § 609.04, subd. 1 (2014). 2

       “To determine whether an offense is an included offense falling under [section

609.04], a court examines the elements of the offense instead of the facts of the particular

case.” State v. Mitchell, 881 N.W.2d 558, 562 (Minn. App. 2016) (alteration in original),

review denied (Minn. Aug. 23, 2016). “An offense is ‘necessarily included’ in a greater

offense if it is impossible to commit the greater offense without committing the lesser

offense.” State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006). A crime is not a lesser

included offense if “each crime requires proof of an element that the other does not.”

Mitchell, 881 N.W.2d at 562.

       This court must reverse and remand with instructions to vacate a formal adjudicated

conviction on a lesser-included offense. State v. Pflepsen, 590 N.W.2d 759, 767 (Minn.

1999). In such cases, this court’s decision leaves the guilty verdict “in place” in the event

that the adjudication of guilt on the greater offense is later vacated. State v. Crockson, 854

N.W.2d 244, 248 (Minn. App. 2014) (citing State v. LaTourelle, 343 N.W.2d 277, 284

(Minn. 1984)), review denied (Minn. Dec. 16, 2014).

       The first step in the lesser-included analysis is identifying Salim’s convictions. The

supreme court has “long recognized that the ‘conviction’ prohibited by [section 609.04] is

not a guilty verdict, but is rather a formal adjudication of guilt.” Pflepsen, 590 N.W.2d at


2
  Minnesota Statutes section 609.04 is distinct from section 609.035, which addresses
punishment for multiple convictions. Minn. Stat. § 609.035, subd. 1 (2016). Section
609.035 prohibits “imposition of two separate sentences for convictions involving a single
course of conduct.” State v. Jones, 848 N.W.2d 528, 534 (Minn. 2014). Here, compliance
with section 609.035 is not at issue because the district court imposed a sentence only on
the greater offense of first-degree aggravated robbery.

                                             11
767. Appellate courts “typically look to the official judgment of conviction, which

generally appears as a separate entry in the file, as conclusive evidence of whether an

offense has been formally adjudicated.” Id.

       Here, the district court’s November 2015 written sentencing order directs entry of

judgment formally adjudicating Salim convicted of first-degree aggravated robbery, simple

robbery, theft, interference with a 911 call, two counts of fifth-degree assault, and

disorderly conduct (brawling or fighting). The state concedes that simple robbery and theft

are lesser-included offenses of first-degree aggravated robbery. But the state argues that

Salim’s two fifth-degree assault and disorderly conduct convictions should remain

adjudicated. We will address each of the four contested adjudications of guilt in turn.

       A.     Simple Robbery

       Salim argues, and the state concedes, that simple robbery is a lesser-included

offense of first-degree aggravated robbery. We agree. A simple robbery is “necessarily

included” in aggravated robbery because “it is impossible to commit” an aggravated

robbery without committing a simple robbery. Bertsch, 707 N.W.2d at 664; see State v.

Oksanen, 276 Minn. 103, 105–06, 149 N.W.2d 27, 29 (1967) (“[O]ne must be guilty of

simple robbery before one can be guilty of aggravated robbery. It is thus clear that simple

robbery is a lesser and included offense within the crime of aggravated robbery.”).

Accordingly, we reverse Salim’s adjudicated conviction of simple robbery and remand to

the district court with instructions to issue an order vacating the adjudicated conviction

consistent with this opinion.




                                              12
       B.     Theft

       Salim argues, and the state concedes, that theft is a lesser-included offense of first-

degree aggravated robbery. We agree. It is well-established in Minnesota caselaw that theft

is a lesser-included offense of aggravated robbery. State v. Coleman, 373 N.W.2d 777, 781

(Minn. 1985); see also State v. McClenton, 781 N.W.2d 181, 187–88 (Minn. App. 2010),

review denied (Minn. June 29, 2010) (applying Coleman). 3 Accordingly, we reverse

Salim’s adjudicated conviction of theft and remand to the district court with instructions to

issue an order vacating the adjudicated conviction consistent with this opinion.

       C.     Fifth-Degree Assault

       Fifth-degree assault is defined as: “Whoever does any of the following commits an

assault and is guilty of a misdemeanor: (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). Salim was convicted of

two counts of fifth-degree assault.

       Salim argues that, because fifth-degree assault is a lesser-included offense of simple

robbery, it is also a lesser-included offense of first-degree aggravated robbery. The state

counters, arguing that fifth-degree assault is not a lesser-included offense of aggravated



3
  We note that the issues in Coleman and McClenton were whether the district court erred
in declining to instruct the jury on a lesser-included offense of the charged offense.
Coleman, 373 N.W.2d at 780; McClenton, 781 N.W.2d at 186–87. In contrast, this case
concerns whether Salim’s adjudicated convictions should be vacated as impermissible
lesser-included offenses of a greater adjudicated conviction. Nonetheless, Coleman and
McClenton are apposite because they apply Minn. Stat. § 609.04, subd. 1, and use the same
analysis for determining a lesser-included offense.

                                              13
robbery because “fifth-degree assault has elements that are not required for a robbery

conviction.”

       For support, Salim relies on State v. Stanifer, in which this court held that fifth-

degree assault is a lesser-included offense of simple robbery. 382 N.W.2d 213, 220 (Minn.

App. 1986). Stanifer reasoned “that proof of the use or threatened imminent use of force

against a person in a prosecution for simple robbery necessarily proves a fifth-degree

assault, as that crime is statutorily defined. Simple robbery is basically a theft accomplished

by means of an assaultive act.” Id. (quotation omitted). Additionally, as already discussed,

caselaw establishes that first-degree aggravated robbery without a theft is an assault.

Coleman, 373 N.W.2d at 781; McClenton, 781 N.W.2d at 187–88. Accordingly, Stanifer,

Coleman, and McClenton support Salim’s position that fifth-degree assault is a lesser-

included offense of first-degree aggravated robbery.

       The state contends that Stanifer should be overruled because “the elements of a

simple robbery do not include either (1) intending to cause fear in another of immediate

bodily harm or death, or (2) intentionally inflicting or attempting to inflict bodily harm.”

In sum, the state contends that force can be used without intending to inflict harm or

intending to create fear of immediate bodily harm. The state relies on the Stanifer

dissenting opinion, which stated that “the force required for simple robbery does not

necessarily constitute an assault.” Stanifer, 382 N.W.2d at 220 (Foley, J., concurring in

part, dissenting in part). The dissent reasoned that “[t]he force required in robbery must

only be enough to acquire another’s property from their person or presence, while the force




                                              14
required in the assault must intend or cause another to fear immediate[] bodily harm.” Id. 4

This court will overrule its own precedent only if provided with “a compelling reason” to

do so. State v. Martin, 773 N.W.2d 89, 98 (Minn. 2009). “We are extremely reluctant to

overrule our precedent under principles of stare decisis.” Id. (quotation omitted).

       The state’s argument that Stanifer should be overruled is not persuasive for two

reasons. First, since Stanifer was decided in 1986, it has not been called into question by

any subsequent decision of this court or the supreme court. Notably, this court relied on

Stanifer in a published decision as recently as 2010 in McClenton, 781 N.W.2d at 188.

       Second, this case is unlike Stanifer, where the greater offense was simple robbery

because Salim’s greater offense is first-degree aggravated robbery. The state does not

provide a compelling reason why this case, which involves a different greater offense, is

the appropriate case for overruling Stanifer. Importantly, the state fails to address Coleman

and McClenton, which expressly held that first-degree aggravated robbery is an assault

plus a theft. Coleman, 373 N.W.2d at 781; McClenton, 781 N.W.2d at 187–88. Because

Stanifer-Coleman-McClenton establish that fifth-degree assault is a lesser-included offense

of simple robbery, and simple robbery is a lesser-included offense of aggravated robbery,

we conclude that a person cannot commit a first-degree aggravated robbery involving


4
  The Stanifer dissent relied on an advisory committee comment to the simple robbery
statute. 382 N.W.2d at 220. The comment provides illustrations of “use of force” sufficient
to support a simple robbery conviction, including “[t]he defendant knocks the victim
unconscious and then takes his wallet”; “[t]he defendant pushes the victim against a wall
and takes his wallet”; and “[t]he defendant points a gun at victim and either demands his
wallet or takes it from him.” Minn. Stat. § 609.24 advisory cmt. In Salim’s appeal, the state
argues that these illustrations show that “fifth-degree assault has elements that are not
required for a robbery conviction.”

                                             15
infliction of bodily harm without committing an assault. Accordingly, we decline to

overrule Stanifer.

       Following Stanifer, Coleman, and McClenton, we conclude that fifth-degree assault

is a lesser-included offense of first-degree aggravated robbery involving infliction of bodily

harm. We reverse both of Salim’s adjudicated convictions of fifth-degree assault and

remand to the district court with instructions to issue an order vacating the adjudicated

convictions consistent with this opinion.

       D.     Disorderly Conduct

       Salim was convicted of disorderly conduct under Minn. Stat. § 609.72, subd. 1(1):

              Whoever does any of the following in a public or private place,
              including on a school bus, knowing, or having reasonable
              grounds to know that it will, or will tend to, alarm, anger or
              disturb others or provoke an assault or breach of the peace, is
              guilty of disorderly conduct, which is a misdemeanor:

                     (1) engages in brawling or fighting.

Minn. Stat. § 609.72, subd. 1(1) (2014).

       Salim argues that disorderly conduct (brawling or fighting) is a lesser-included

offense of first-degree aggravated robbery. His argument is multi-pronged. Salim contends

that: (1) disorderly conduct (brawling and fighting) is a lesser-included offense of fifth-

degree assault involving infliction of bodily harm; (2) fifth-degree assault is a lesser-

included offense of simple robbery; and (3) simple robbery is a lesser-included offense of

first-degree aggravated robbery.

       As discussed above, the second and third prongs of Salim’s argument are accurate

statements of law. Thus, we consider whether disorderly conduct (brawling and fighting)


                                             16
is a lesser-included offense of fifth-degree assault involving infliction of bodily harm.

Without citing legal authority, Salim contends that “[b]rawling and fighting is surely the

intentional infliction of bodily harm,” and, therefore, it is a lesser-included offense of fifth-

degree assault. The state argues that “brawling does not necessarily involve any physical

fighting.”

       Salim’s argument lacks merit because he focuses on one element of disorderly

conduct—brawling or fighting—but ignores that disorderly conduct also requires

knowledge that the defendant’s conduct “will, or will tend to, alarm, anger or disturb others

or provoke an assault or breach of the peace.” Minn. Stat. § 609.72, subd. 1(1). The

knowledge requirement in the disorderly conduct statute is not part of the fifth-degree

assault statute. Because disorderly conduct requires proof of an element that fifth-degree

assault does not, disorderly conduct is not a lesser-included offense of fifth-degree assault.

       In conclusion, for the reasons stated, we affirm the formal adjudicated convictions

of first-degree aggravated robbery and disorderly conduct. We reverse the formal

adjudicated convictions of simple robbery, theft, and both adjudicated convictions of fifth-

degree assault, and remand to the district court with instructions to issue an order vacating

the adjudicated convictions consistent with this opinion. Because Salim did not challenge

his conviction of interfering with a 911 call, we leave that conviction undisturbed.

       Affirmed in part, reversed in part, and remanded.




                                               17
