A pair of Minnesota court decisions have upended traditional definitions of what constitutes assault
First came State v. Fleck, a 2012 Minnesota Supreme Court decision that significantly dissociated two types of assault crimes—assault-fear and assault-harm. Then, this year, an appellate court further hairied matters with its decision in State v. Dorn, churning up more questions for courts or the Legislature to resolve.
In 2012, I wrote an article for Challenger magazine warning of the undesirable consequences likely to stem from the Minnesota Supreme Court’s decision in State v. Fleck.1 Fleck was a decision that significantly dissociated the two types of assault crimes—assault-fear and assault-harm—by holding that the latter does not require proof of a specific intent to cause a result (harm). This was a significant departure from precedent (a departure the court admitted to expressly) because the post-Fleck assault-harm statute could be read to penalize any physical conduct of a volitional nature that resulted in bodily harm to another.
Since the decision in Fleck, it was only a matter of time before a Fleck–citing appellate court would hurl the state of the law further into the depths. That decision—State v. Dorn—was handed down this February.2 Before discussing the more recent case of Dorn, it is first necessary to describe the laws on “assault” and “intent” and develop an understanding of how they came together in the Fleck case. Following that, attention will be given to the Dorn decision to illustrate the complications generated when Fleck was laid bare.
There are many types of assault crimes in Minnesota: a thrown wine glass that does or does not make contact with an in-law, a punch in a tavern over a disputed turn at Buck Hunter, a husband (and writer of articles) kicked down stairs, a besotted neighbor threatening powder and shot over dandelion immigration, a bite on a bus, a slap in a taxi, a pinch in a parlor, &c. Doctrinally, there are two basic forms of assault: assault that causes fear in another person and assault that causes harm to another person. A person commits “assault-fear” through “an act done with intent to cause fear in another of immediate bodily harm or death.”3 A person commits “assault-harm” through “the intentional infliction of… bodily harm upon another.”4 Note that both types of assault contain an element of intent stated similarly (assault-fear: “with intent”; assault-harm: “intentional”).
While there are many kinds of intent—manifest intent, testamentary intent, transferred intent, original intent, &c.—I am concerned for the nonce with “specific intent” and “general intent”: the quality of the mental states attendant on a range of criminal offenses. In criminal law, “intent” generally describes a conscious effort to bring about a certain result.5 In Minnesota, when criminal intent is an element of a crime, “such intent is indicated by the term ‘intentionally,’ the phrase ‘with intent to,’ the phrase ‘with intent that,’ or some form of the verbs ‘know’ or ‘believe.’”6 “Intentionally” means “that the actor either has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result.”7 “With intent to” or “with intent that” “means that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.”8
“Specific-intent” means that the defendant acted with the intent to produce a specific result, whereas “general-intent” means only that the defendant engaged in prohibited conduct.9 According to Professor LaFave, general-intent requires only an “intention to make the bodily movement which constitutes the act which the crime requires.”10 In other words, a general-intent crime only requires proof that “the defendant intended to do the physical act forbidden, without proof that he meant to or knew that he would violate the law or cause a particular result.”11
Contrast that with a specific-intent crime, which requires the “intent to cause a particular result.”12 Unlike a general-intent crime, a specific-intent crime includes “a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime.”13
State v. Fleck
At approximately 1:00 a.m. on January 23, 2009, K.W. returned to a home she shared with Ronald Gene Fleck and found Fleck in the kitchen, deep in liquor. According to K.W., Fleck had been on a two-week drunk without cessation. As she repaired to the bathroom, K.W. heard her name called, and turned around to discover Fleck standing near her with a butcher’s knife. Fleck then stabbed K.W. once near her shoulder via an overhand motion. K.W. locked herself in the bathroom and called 911. Meanwhile, Fleck called his brother and sister-in-law, informed them of the stabbing, and conveyed designs on his own life. Upon the arrival of officers, Fleck was uncooperative and belligerent (in other words, there was not tea set out). A subsequent chemical test revealed a blood-alcohol concentration of 0.315. Fleck was charged with two counts of second-degree assault with a dangerous weapon (one count for assault-fear and one count for assault-harm). Before trial, Fleck gave notice that he would rely on voluntary intoxication as a defense, and specifically requested an instruction to that end (it should be noted that the voluntary intoxication defense is only available to defend against specific-intent crimes, not general-intent crimes). The district court instructed the jury that voluntary intoxication applied to the assault-fear offense, but not the assault-harm offense. The jury found Fleck guilty of second degree assault-harm and not guilty of second degree assault-fear.
A unanimous panel at the court of appeals reversed Fleck’s conviction and remanded for a new trial, finding that Fleck was prejudiced by the district court’s refusal to provide a voluntary intoxication instruction for the crime of assault-harm.14 The court of appeals specifically held that assault-harm was a specific-intent crime.15 On review, the Minnesota Supreme Court reversed the court of appeals and reinstated Fleck’s conviction. In so doing, the court held for the first time that assault-harm is a general-intent crime.16
The holding in Fleck was centered on the Legislature’s particular choices in words, viz. the purported difference between “with intent to” and “intentional.” After a painful semantic adventure and by an overt abandonment of precedent, the court ultimately concluded that “with intent to” and “intentional” mean two very different things. Whereas assault-fear would still require that the defendant had a specific intent to cause fear, the state would no longer be obliged to prove that the defendant had a specific intent to cause harm in an assault-harm case. Instead, said the court, in an assault-harm case, the “forbidden conduct is a physical act, which results in bodily harm upon another. 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.”17
Post-Fleck (and before Dorn, below), all that was required to satisfy the state’s burden in proving an assault-harm case was evidence of a generally intended physical act resulting in bodily harm upon another without any proof that a defendant “meant to violate the law or [even] cause a particular result.”18 The holding brought a broad swath of non-criminal conduct within the tent of assault-harm liability. Apart from prosecutorial discretion and vague pleas to judges “in the interests of justice,” there was nothing in the law after Fleck to prevent an assault-harm charge against the thrower of a football who missed his friend’s hands and struck a passerby who suffered harm. Or take the example of Mses. Gaïtas and Polacheck:
[A]ssume a defendant is walking through a crowded shopping mall and trying to pass a slower customer. The defendant pushes past the slower customer, who is caught off-balance and falls, breaking his or her leg. Had the customer not fallen, the defendant’s conduct would have been lawful. But pursuant to Fleck, the defendant committed assault-harm; depending on the amount of harm the customer suffered, the defendant could be charged with first-, third-, or fifth-degree assault. It is irrelevant whether the defendant intended to cause injury to the other customer; it may even be irrelevant whether the defendant intended to push the other customer, so long as the defendant was walking past the customer of his or her own volition.19
These examples highlight the unsavory fallout emanating from the erasure of the specific-intent element from the assault-harm crime. In Dorn, the court of appeals recently doubled down on the basic reasoning in Fleck. But the court then went further by imposing an altogether new element on the crime of assault-harm, leaving the smog surrounding the statute to grow as it goes.
State v. Dorn
The scene is an outdoor drinking party. The time is 1:30 a.m. Every lawyer worth her salt knows that violence and calamity are imminent perforce. At such a place and at such a time, Alie Christine Dorn was disporting among friends at a bonfire near Thief River Falls. A man unknown to her joked with a friend that Dorn looked like a drug dealer. Dorn—who appeared intoxicated—overheard the man and said “What?,” and then pushed him with two hands. The man lost his balance and Dorn again pushed the man with two hands. The second push caused the man to fall backwards into a fire, where he remained for several seconds before a witness pulled him out. The man sustained third-degree burns, which required skin grafting surgery on his arm and hand.
Dorn’s case was tried to a judge of the district court, who, for her part, convicted Dorn. Notably, the district court’s findings included that Dorn “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.”20 Citing Fleck, the district court stated 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.”21 Dorn was adjudicated guilty and sentenced to a stayed sentence of 98 months—a downward dispositional departure.
On appeal, Dorn argued 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. That seems reasonable, doesn’t it? Rejecting this argument, the court of appeals echoed the Fleck court’s holding that nothing in the assault-harm statute “requires proof that the defendant meant to violate the law or cause a particular result.”22 Anticipating this reasoning, Dorn argued 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.”23 Responding to this challenge, the court of appeals significantly redefined the offense of assault-harm. The following is from the court of appeals’ decision:
[C]ontrary 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.
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.24
Dorn was correct to observe that after Fleck, assault-harm was indeed a strict-liability offense. Were it otherwise, the court of appeals would not have been required to respond by reading a “hostile-intention” element into the statute. But that is what the court of appeals did. So instead of the bare “volitional act” sanctioned by Fleck, what is now required to prove an assault-harm crime is a “volitional act in a hostile manner” (Fleck + Dorn).
Given the holding and the manner by which it was arrived at, it is arguable that the court of appeals inadvertently wrote a novel and heightened intent element into the crime of assault-harm. After Dorn, the state must now prove an “intent to commit a battery” in an assault-harm case. This imposes a duty on a fact-finder to ferret out a “hostile intention” mental state. A “[b]attery is an intentional, unpermitted offensive contact with another. Its two operative elements are intent and offensive contact.”25 The civil jury instruction on battery requires proof that a defendant “intentionally caused harmful or offensive contact” with the plaintiff.26 This is a more scrutinizing inquiry of a person’s mental state than that called for under Fleck. Remember that under the criminal statute, “intentionally” means “that the actor either has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result.” And recall that under Fleck the forbidden conduct is a physical act, which results in bodily harm upon another: Nothing in the assault-harm definition required proof that the defendant meant to violate the law or a cause a particular result. After Dorn, courts and juries must now decide whether a defendant’s volitional act was committed in a “hostile manner” or with “hostile intent”—wording that surely invokes a heightened intent beyond mere general-intent. This is preferable, of course, to the open-ended free-for-all left by Fleck. After Dorn, fact-finders must at least identify some indicia of intent greater than that necessary to accomplish a bare-bones volitional act. But it raises some questions too.
In the wake of Dorn, will district courts now be under an obligation to include the definition of a “battery” when instructing juries in assault-harm cases? Has “hostile intent” merely replaced “specific-intent” and if so, what does that mean? In light of Dorn, is voluntary intoxication again a defense to an assault-harm crime? Are courts destined to wrestle ad nauseam with varying shades of hostile intentions? Surely the hapless defendant pushing his way past the slower customer has colorably hostile intentions, no? Nobody would call his intentions angelic, after all.
The law has long recognized the wisdom in punishing persons who intend to cause horrible and devastating consequences and who then occasion such consequences through knowing and intentional conduct. This is why intentional murder is punished more severely than unintentional murder: The malignant heart should be punished greater than its guiltless counterpart. In the case of Alie Dorn, the finder of fact expressly found that Dorn “did not intentionally push the complainant into the fire.” And yet the intentional push by Dorn, alone, was enough to tie her legally to all subsequent aftereffects within the causal chain. In the eyes of the law, she was no less responsible than the person with the depraved intention of pushing someone into a fire with the design that they land there and suffer atop the embers. This is the troubling nature of the assault-harm crime without a specific-intent element. Of course, the Minnesota Supreme Court could take up the Dorn case and reverse course. The Legislature is also free to take up the issue and make clear that assault-harm requires specific-intent. Either would be preferable to the continuing uncertainty imposed by a general-intent assault-harm crime.
ADAM T. JOHNSON is an attorney at Meshbesher & Associates in Minneapolis. He practices in the areas of criminal defense and civil rights.
1 Adam T. Johnson, Intent in Assault Crimes: State v. Fleck and a Distinction Reached Accidentally on Purpose, MACDL Challenger (2012); State v. Fleck, 810 N.W.2d 303 (Minn.2012).
2 State v. Dorn, No.–N.W.2d. –, A15-0007 (Minn.App. Feb. 16, 2016).
3 Minn. Stat. §609.02, Subd. 10(1).
4 Minn. Stat. §609.02, Subd. 10(2). “Bodily harm” means “physical pain or injury, illness, or any impairment of physical condition.” Minn. Stat. § 609.02, Subd. 7.
5 9 Minn. Prac., Criminal Law & Procedure §442 (3d ed.).
6 Minn. Stat. § 609.02, Subd. 9(1).
7 Minn. Stat. § 609.02, Subd. 9(3).
8 Minn. Stat. § 609.02, Subd. 9(4).
9 State v. Vance, 734 N.W.2d 650 (Minn.2007).
10 1 Wayne R. LaFave, Substantive Criminal Law § 5.2(e) (2d ed.2003).
11 9 Henry W. McCarr & Jack S. Nordby, Minnesota Practice–Criminal Law and Procedure § 44.3 (3d ed. 2001).
13 LaFave, supra, § 5.2(e).
14 State v. Fleck, 797 N.W.2d 733, 738 (Minn.App.2011).
16 Fleck, 810 N.W.2d at 303.
17 Id. at 309.
18 Id. (emphasis added).
19 Theodora Gaïtas and Emily Polachek, State v. Fleck: The Intentional Infliction of General Intent upon Minnesota’s Assault Statutes, 39 Wm. Mitchell Law Rev. 1480, 1496 (2013).
20 Dorn, slip op. at 3.
21 Dorn, slip op. at 3 (emphasis in original).
22 Dorn, slip op. at 5 (citing Fleck, 797 N.W.2d at 309).
23 Dorn, slip op. at 6.
24 Dorn, slip op. at 7.
25 Johnson v. Morris, 453 N.W.2d 31, 40 (Minn.1990).
26 4A Minn. Prac., Jury Instr. Guides–Civil CIVJIG 60.25