                           This opinion will be unpublished and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
                                      A15-1455

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                Travis Loren Clemmensen,
                                        Appellant.

                                  Filed October 3, 2016
                           Affirmed in part and vacated in part
                                     Peterson, Judge

                                Steele County District Court
                                  File No. 74-CR-14-1965

Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St.
Paul, Minnesota; and

Dan McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Peterson, Presiding Judge; Hooten, Judge; and Bratvold,

Judge.

                          UNPUBLISHED OPINION

PETERSON, Judge

         In this appeal from convictions of third-degree assault and domestic assault,

appellant argues that (1) his third-degree-assault conviction must be reversed because the
state did not prove that the assault resulted in substantial bodily harm; and (2) his domestic-

assault conviction must be vacated because domestic-assault is a lesser-included offense

of third-degree assault, or his sentence for domestic assault must be vacated because both

offenses were committed during a single behavioral incident. We affirm appellant’s

convictions and vacate his sentence for domestic assault.

                                           FACTS

       Following an argument between appellant Travis Loren Clemmensen and his

domestic partner L.J., Clemmensen repeatedly punched L.J. in the face and chest, strangled

him, and tackled him to the ground. The assault caused damage to L.J.’s denture and

glasses and injuries to his face, gums, head, and knee. The knee injury resulted in L.J.’s

knee popping out of its socket, which caused L.J. to fall to the ground if he attempted to

stand for more than a very brief time. For five months after the assault, L.J. used a cane

and a full-immobilization leg brace. At the time of trial, L.J.’s knee was still popping out

of its socket, and his mobility was limited in that he could not ascend stairs in the normal

manner and, instead, had to put both feet on the same stair before climbing to the next stair.

       A jury found Clemmensen guilty of one count of third-degree assault and one count

of misdemeanor domestic assault. The district court stayed imposition of sentence for the

third-degree-assault conviction, placed Clemmensen on probation for up to five years as a

condition of the stay, and imposed a 90-day sentence for the domestic-assault conviction.




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                                     DECISION

                                             I.

       Third-degree-assault conviction

       An element of third-degree assault is that the assault “inflicts substantial bodily

harm.” Minn. Stat. §609.223, subd. 1 (2014). Substantial bodily harm includes a “bodily

injury” that “causes a temporary but substantial loss or impairment of the function of any

bodily member.” Minn. Stat. § 609.02, subd. 7a (2014). This court has “noted that the

word ‘substantial,’ as used in the phrase ‘substantial bodily harm,’ is a term employed in

common usage and legal proceedings to mean ‘considerable size or amount.’” State v.

Larkin, 620 N.W.2d 335, 337 n.2 (Minn. App. 2001) (quotation omitted).

       Clemmensen argues that the evidence was insufficient to prove that L.J. suffered

substantial bodily harm. When considering a claim of insufficient evidence, this court

conducts “a painstaking analysis of the record to determine whether the evidence, when

viewed in a light most favorable to the conviction,” was sufficient to allow the fact-finder

to reach the verdict that it reached. State v. Caine, 746 N.W.2d 339, 356 (Minn. 2008)

(quotation omitted). We must assume that the fact-finder believed the state’s witnesses

and disbelieved any contrary evidence. State v. Porte, 832 N.W.2d 303, 309 (Minn. App.

2013). We will not disturb the verdict if the fact-finder, acting with due regard for the

presumption of innocence and the requirement of proof beyond a reasonable doubt, could

reasonably conclude that the defendant was guilty of the crime charged. Bernhardt v. State,

684 N.W.2d 465, 476-77 (Minn. 2004).




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       Evidence presented at trial demonstrated that, following the assault, L.J. was

initially unable to stand for more than a very brief time because his knee would pop out

and cause him to fall. For five months after the assault, he wore a full-immobilization

brace and walked with a cane. At the time of trial, L.J.’s knee continued to pop out of

place, and he had limited mobility in that he could not climb stairs in the normal manner.

This evidence was sufficient to permit the jury to conclude that L.J. suffered substantial

bodily harm. The inability to stand for more than a very brief time is a considerable

impairment of the function of a person’s leg. In addition to this considerable, temporary

impairment, even after five months of using a full-immobilization brace and a cane, L.J.

continued to have limited mobility at the time of trial. Clemmensen disputes the evidence

that L.J.’s knee was immobilized, but this court must view the evidence in the light most

favorable to the verdict.

       Because the evidence of injury to L.J.’s knee was sufficient to prove substantial

bodily harm, we need not address the parties’ arguments regarding L.J.’s other injuries.

                                            II.

       Domestic-assault conviction

       Clemmensen argues that his domestic-assault conviction must be vacated because

domestic assault is a lesser-included offense of third-degree assault. If proof of one crime

necessarily proves a second crime or the second crime is a lesser degree of the first crime,

the second crime is a lesser-included offense. See Minn. Stat. § 609.04, subd. 1(1), (4)

(2014) (defining an included offense as “[a] lesser degree of the same crime” or “[a] crime




                                             4
necessarily proved if the charged crime were proved”). We do not agree that domestic

assault is a lesser-included offense of third-degree assault under either of these definitions.

       Lesser degree of same crime

       Citing State v. Hackler, 532 N.W.2d 559, 559 (Minn. 1995), Clemmensen argues

that misdemeanor domestic assault is a lesser degree of third-degree assault because

misdemeanor domestic assault is a lesser degree of a multi-tier statutory scheme dealing

with a particular subject. But misdemeanor domestic assault is not part of a multi-tier

statutory scheme dealing with assault. The legislature created a multi-tier statutory scheme

dealing with assault in 1979 when it enacted Minn. Stat. § 609.221 (assault in the first

degree), Minn. Stat. § 609.222 (assault in the second degree), Minn. Stat. § 609.223 (assault

in the third degree), and Minn. Stat. § 609.224 (assault in the fourth degree). 1979 Minn.

Laws ch. 258, §§ 4-7 at 550. The legislature later added a fifth degree of assault to this

multi-tier statutory scheme. 1983 Minn. Laws ch. 169, §§ 1, 2 at 424. The legislature,

however, did not include domestic assault in this multi-tier scheme.

       Instead, the legislature separately addressed domestic assault when it enacted Minn.

Stat. § 609.2242, which does not assign any degree to domestic assault. 1995 Minn. Laws

ch. 259, art. 3, § 15 at 2783-84. Within the domestic-assault statute, the legislature created

a separate multi-tier statutory scheme that treats a domestic-assault offense as a mis-

demeanor, Minn. Stat. § 609.2242, subd. 1, a gross misdemeanor, Minn. Stat. § 609.2242,

subd. 2, or a felony, Minn. Stat. § 609.2242, subd. 4, depending on the number of offense

convictions an offender has within ten years.




                                              5
       Necessarily proved

       Domestic assault is not necessarily proved if third-degree assault is proved. Unlike

third-degree assault, domestic assault requires proof that the assailant and the victim were

family or household members. See Minn. Stat. §§ 609.223 (third-degree assault), .2242,

subd. 1(2) (domestic assault).

       Domestic-assault sentence

       Clemmensen correctly argues that his sentence for domestic assault must be vacated

because the domestic assault was committed during the same behavioral incident as the

third-degree assault. See Minn. Stat. § 609.035, subd. 1 (2014) (prohibiting multiple

sentences for conduct that “constitutes more than one offense”).          Section 609.035

contemplates that a defendant will be punished for the most serious offense that arises out

of a single behavioral incident. State v. Kebaso, 713 N.W.2d 317, 322 (Minn. 2006). We,

therefore, affirm Clemmensen’s sentence for third-degree assault, which is a felony

offense, and vacate his sentence for misdemeanor domestic assault. See Minn. Stat.

§ 244.11, subd. 2(b) (2014) (on appeal from sentence imposed by district court, court of

appeals may vacate sentence that is inconsistent with statutory requirements).

       Affirmed in part and vacated in part.




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