                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A15-0007

                                     State of Minnesota,
                                         Respondent,

                                              vs.

                                Alie Christine Theodore Dorn,
                                          Appellant.

                                  Filed February 16, 2016
                                          Affirmed
                                        Kirk, Judge

                               Marshall County District Court
                                  File No. 45-CR-14-15

Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul,
Minnesota; and

Donald J. Aandal, Marshall County Attorney, Warren, Minnesota (for respondent)

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

         Considered and decided by Johnson, Presiding Judge; Connolly, Judge; and Kirk,

Judge.

                                      SYLLABUS

         A person may be convicted of first-degree assault based on the intentional infliction

of great bodily harm if that person commits a volitional act in a hostile manner, even where

the degree of force is as slight as a push, so long as that act is a substantial cause of the

bodily harm.
                                      OPINION

KIRK, Judge

       Appellant challenges the sufficiency of the evidence to support her conviction of

first-degree assault, arguing that she did not commit assault-harm because she did not

intend to inflict bodily harm when she pushed the complainant twice and he fell into a

nearby fire. She also argues that her pushing did not constitute an assault because it did

not inflict bodily harm. Because pushing is a volitional act and when committed in a hostile

and forceful manner, is an assault, regardless of whether harm was intended, and

appellant’s pushes were a substantial factor in causing the complainant’s injury, we affirm.

                                         FACTS

       The state charged appellant Alie Christine Dorn with first-degree assault, in

violation of Minn. Stat. § 609.221, subd. 1 (2012), after Dorn pushed another person,

causing him to fall backwards into a bonfire. Dorn waived her right to a jury trial. At her

bench trial, the state presented evidence that both Dorn and the complainant, who did not

know each other, attended a large outdoor drinking party near Thief River Falls. At about

1:30 a.m., the complainant was standing with his back to a bonfire. One of his friends drew

his attention to Dorn, who was standing nearby, and asked if he thought she looked like a

drug dealer. Attempting to joke, he replied to his friend that, yes, she looked like a drug

dealer. Dorn, who appeared intoxicated, overheard him, said, “What?,” and then pushed

him with two hands.     He lost his balance, and she pushed him again with two hands,

causing him to land on the embers of the fire, where he remained for several seconds before




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a witness pulled him out. He sustained third-degree burns, which required skin grafting

surgery on his arm and hand.

       The state introduced Dorn’s statement, in which she told police that the complainant

“kept . . . talking in [her] face” and called her a drug dealer, she “pushed him,” he “came

at [her] again” and she “turned sideways and . . . pushed him and that’s when he tripped”

and fell into the fire.   She stated that she “did not intentionally push him in the fire.”

Several of the state’s witnesses testified that they saw Dorn push the complainant.

Witnesses called on behalf of Dorn testified that right before the pushes, the complainant

had spoken rudely to Dorn, approached her quickly, and yelled at her.

       The district court issued its findings of fact, conclusions of law, and judgment,

finding Dorn guilty. The district court found that no evidence suggested that the pushes

were accidental or unintentional, and that she “did not intentionally push [the complainant]

into the fire, but she did intentionally push [him] two times, which resulted in him falling

into the embers and causing significant burns.” The district court found that “[a]lthough

the Defendant contends that she did not intend to push [him] into the fire, that is not the

standard that the State must meet in this case,” citing State v. Fleck, 810 N.W.2d 303 (Minn.

2012). The district court adjudicated Dorn guilty of first-degree assault and imposed a

stayed sentence of 98 months, a downward dispositional departure. This appeal follows.




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                                          ISSUE

       Was the evidence sufficient to support a conviction of assault-harm when the

defendant committed intentional hostile and forceful acts, which substantially caused

injury, but the defendant did not intend to inflict bodily harm?

                                         ANALYSIS

       In reviewing a challenge to the sufficiency of the evidence, this court conducts a

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

light most favorable to the conviction, was sufficient to allow the factfinder to reach the

verdict that it did. State v. Ortega, 813 N.W.2d 86, 100 (Minn. 2012). We will not disturb

the verdict if the factfinder, acting with due regard for the presumption of innocence and

the requirement of proof beyond a reasonable doubt, could have reasonably concluded that

the defendant was guilty of the charged offense. State v. Chavarria-Cruz, 839 N.W.2d

515, 519 (Minn. 2013). In evaluating the sufficiency of the evidence, an appellate court

uses the same standard of review for bench trials as for jury trials. State v. Palmer, 803

N.W.2d 727, 733 (Minn. 2011).

       Dorn first argues that the state did not prove beyond a reasonable doubt that she

intended to inflict bodily harm, which, she maintains, is required to convict her of first-

degree assault based on harm. The interpretation of a statute presents a legal issue, which

this court reviews de novo. State v. Leathers, 799 N.W.2d 606, 608 (Minn. 2011). A

person may be convicted of first-degree assault if that person “assaults another and inflicts

great bodily harm.” Minn. Stat. § 609.221, subd. 1. A conviction of assault requires either

“an act done with intent to cause fear in another of immediate bodily harm or death”


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(assault-fear) or “the intentional infliction of or attempt to inflict bodily harm upon

another” (assault-harm). Minn. Stat. § 609.02, subd. 10 (2012). The Minnesota Supreme

Court has held that assault-harm is a general-intent crime. Fleck, 810 N.W.2d at 309. In

other words, the “statute simply prohibits a person from intentionally engaging in the

prohibited conduct.” Id. at 308. On the other hand, assault-fear, a specific-intent crime,

“requires an intent to cause a particular result.” Id. (quotation omitted).

       In the case of assault-harm, “[t]he forbidden conduct is a physical act, which results

in bodily harm upon another.” Id. at 309. Dorn argues that because the statutory definition

of assault-harm prohibits an act that inflicts bodily harm, the state was required to prove

beyond a reasonable doubt that she intended to “do the prohibited physical act,” which is

to inflict bodily harm. Id. at 310 (quotation omitted). But the supreme court in Fleck

rejected this argument:

              Although 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. If the
              Legislature intended to require an additional, special mental
              element, it could have defined assault-harm as “an act done
              with the intent to cause bodily harm to another.”

Id. at 309. We also note that Dorn’s interpretation would render meaningless the supreme

court’s articulated distinction between the proof required for assault-harm and that required

for assault-fear. See id. at 308-09. We agree that this leads to a harsh result where Dorn

engaged in rather de minimis behavior when viewed in the context of the spectrum of

actions that lead to the infliction of harm. However, this court, as an error-correcting court,




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lacks authority to change established supreme court precedent. State v. Adkins, 706

N.W.2d 59, 63 (Minn. App. 2005).1

       Dorn maintains that if a conviction based on assault-harm requires only that a

defendant commits an intentional act, assault is, in effect, a strict-liability offense, which

is disfavored in the law. See State v. Wenthe, 865 N.W.2d 293, 302 (Minn. 2015) (stating

that the supreme court has “been particularly hesitant to dispense with mens rea when doing

so would result in a strict liability offense”). We disagree.

       “Mens rea is the element of a crime that requires the defendant know the facts that

make his conduct illegal.” State v. Ndikum, 815 N.W.2d 816, 818 (Minn. 2012) (quotation

omitted). The supreme court has recently held that the clergy sexual conduct statute, which

prohibits sexual penetration during a meeting involving spiritual counsel, although a

general-intent crime, is not a strict liability offense because “sexual penetration must be

intentional.” Wenthe, 865 N.W.2d at 301 n.2, 303. In Fleck, the supreme court similarly

recognized that “‘an assault involving infliction of injury of some sort requires no abstract

intent to do something further, only an intent to do the prohibited physical act of

committing a battery.’” Fleck, 810 N.W.2d at 310 (quoting State v. Lindahl, 309 N.W.2d

763, 767 (Minn. 1981)).



1
  In a recent unpublished opinion, this court followed Fleck and affirmed a conviction of
domestic assault, a general-intent crime, when the defendant admitted to intentionally
tickling the victim, which resulted in bodily harm. State v. O’Brien, No. A15-0596 (Minn.
App. Feb. 1, 2016). Although O’Brien is not precedential, we find its reasoning persuasive
in light of Fleck. See State v. Zais, 790 N.W.2d 853, 861 (Minn. App. 2010) (stating that
unpublished cases, although not precedential, may have persuasive value), aff’d, 805
N.W.2d 32 (Minn. 2011).

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       Thus, contrary to Dorn’s argument, the supreme court has indicated that some form

of mens rea—the intent to commit a battery—is required for a conviction of assault-harm,

even though it is a general-intent offense. See id.; see also 2 Wayne R. LaFave, Substantive

Criminal Law §16.2, at 552 (2d ed. 2003) (stating brief definition of battery as “the

unlawful application of force to the person of another”). Of noteworthy significance to the

facts and arguments in this appeal, a battery is defined as

              [T]he actual application of force to the body of the
              prosecutor. . . . [T]he slightest degree of force is sufficient,
              provided that it be applied in a hostile manner; as by pushing a
              man or spitting in his face. Touching a man to attract his
              attention to some particular matter, or a friendly slap on the
              back is not a battery, owing to the lack of hostile intention.

Black’s Law Dictionary 173 (9th ed. 2009) (quoting 4 Stephen’s Commentaries on the

Laws of England 62-63 (L. Crispin Warmington ed., 21st ed. 1950)). Therefore, Fleck

does not compel the conclusion that assault-harm is a strict-liability offense.

       Dorn also contends that the evidence is insufficient to support her conviction

because her pushes did not “inflict” bodily harm. See Minn. Stat. § 609.221 (stating that

requirement). She acknowledges that her “actions were arguably the proximate cause of

[the complainant’s] injuries because they were a substantial factor in bringing about those

injuries.” But she contrasts the use of the word “inflicts” with the word “causes” and

maintains that because “inflicts” is a transitive verb, the first-degree assault statute requires

that the acts constituting an assault must themselves mete out an injury.

       “In the absence of a statutory definition, we generally turn to the plain, ordinary

meaning of a statutory phrase.” Leathers, 799 N.W.2d at 609. When examining a word or



                                               7
phrase’s plain and ordinary meaning, appellate courts have considered dictionary

definitions. State v. Hartmann, 700 N.W.2d 449, 453-54 (Minn. 2005). “To inflict” has

been defined as “[t]o cause (something injurious or harmful), as to a person, group, or

area.” The American Heritage Dictionary of the English Language 900 (5th ed. 2011).

Substantial causation is a well-established principle of criminal law. See 1 LaFave, supra,

§ 6.4(b), at 468-69 (“[T]he test for causation-in-fact is more accurately worded, not in terms

of but-for cause, but rather: Was the defendant’s conduct a substantial factor in bringing

about the forbidden result?”). In analogous cases relating to homicide, Minnesota law has

recognized that a defendant’s acts must be a substantial causal factor in bringing about a

victim’s death. See, e.g., State v. Olson, 435 N.W.2d 530, 534 (Minn. 1989) (noting that

to prove the defendant guilty of second-degree murder and first-degree manslaughter, the

state must prove that the defendant’s actions were a “substantial causal factor” in causing

death). Dorn cites no authority for her argument that in order to “inflict” the great bodily

harm required for a first-degree assault, the defendant’s physical acts must, by themselves,

create that bodily harm. And she does not argue that the complainant’s fall backwards into

the fire amounted to an intervening, superseding cause that relieved her of responsibility

for his injuries. See State v. Gatson, 801 N.W.2d 134, 146 (Minn. 2011) (“If the defendant

seeks to establish a superseding cause, the intervening conduct must be the sole cause of

the end result.” (quotation omitted)). Thus, we reject her argument.

       “[R]egardless of whether an offense is described as a specific- or general-intent

crime, a defendant must voluntarily do an act or voluntarily fail to perform an act.” Fleck,

810 N.W.2d at 309 (quotation omitted). “The volitional requirement is generally expressed


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in terms of an exercise of the will. A reflex movement is not subject to the control of the

will.” Id. (quotation omitted). Here, the evidence is sufficient to support the district court’s

findings that Dorn committed voluntary, intentional acts, and that those acts ultimately

resulted in great bodily harm to the complainant. Even if we consider intent to be proved

only by circumstantial evidence, the state proved circumstances that Dorn made two

pushes, each with two hands, in close proximity to the fire. See State v. Hayes, 831 N.W.2d

546, 552-53 (Minn. 2013) (noting two-step analysis for examining conviction when an

element of the offense has been proven by circumstantial evidence, beginning with

circumstances proved). Examining the circumstances proved, the evidence permits only

the reasonable inference that Dorn intended to commit the prohibited act, and she has not

shown the existence of an alternative, rational hypothesis inconsistent with guilt. See id.

at 553 (describing second step of analysis: independent examination of inferences drawn

from circumstances proved and whether those circumstances are consistent with guilt and

inconsistent with any rational hypothesis negating guilt).

                                       DECISION

       To support a conviction of assault-harm, Minnesota law does not require proof that

the appellant intended to inflict bodily harm. The evidence is sufficient to sustain Dorn’s

conviction of first-degree assault because some degree of physical force was intentionally

used against another and was a substantial cause of great bodily harm.

       Affirmed.




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