This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-0810
State of Minnesota, Respondent,
vs.
Damien Lashaun Nelson, Appellant.
Filed March 2, 2015 Affirmed Schellhas, Judge
Dakota County District Court File No. 19HA-CR-13-3228
Lori Swanson, Attorney General, St. Paul, Minnesota; and
James C. Backstrom, Dakota County Attorney, Karen Wangler, Assistant County Attorney, Hastings, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Stauber, Judge; and
Hooten, Judge.
UNPUBLISHED OPINION
SCHELLHAS, Judge
Appellant challenges the validity of his guilty plea to simple robbery and felony
domestic assault (fear). We affirm. FACTS
Appellant Damien Lashaun Nelson entered B.S.’s home, grabbed her, pushed her,
and left with personal property taken from the pockets of a sweatshirt that B.S. was
wearing, including car keys, a cell phone, cash, and personal identification and credit
cards. B.S. did not give Nelson permission to take the property. Police soon located
Nelson at another residence, arrested him, and recovered B.S.’s property from that
residence.
Respondent State of Minnesota charged Nelson with simple robbery, two counts
of felony domestic assault, and obstructing legal process. Consistent with the terms of a
plea agreement, Nelson pleaded guilty to simple robbery and one count of felony
domestic assault (fear); the state agreed not to charge Nelson for an alleged
September 18, 2013 violation of a domestic assault no-contact order; and the district
court sentenced Nelson concurrently to 37 months’ imprisonment for simple robbery and
24 months’ imprisonment for felony domestic assault (fear) and dismissed the remaining
charges.
This appeal follows.
DECISION
“A defendant is free to . . . appeal directly from a judgment of conviction and
contend that the record made at the time the plea was entered is inadequate” to show that
the plea was valid. Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989); see also State v.
Anyanwu, 681 N.W.2d 411, 413 n.1 (Minn. App. 2004) (“[A] defendant who challenges a
judgment of conviction against him based on an invalid guilty plea . . . may appeal
2 directly to this court.”). On appeal, “[t]he defendant bears the burden to establish that his
plea was invalid,” and this court reviews the validity of the plea de novo. Lussier v. State,
821 N.W.2d 581, 588 (Minn. 2012).
“Among other requirements, a constitutionally valid guilty plea must be accurate.”
Id. “The purpose of the accuracy requirement is to protect a defendant from pleading
guilty to a more serious offense than that for which he could be convicted if he insisted
on his right to trial.” Id. (quotation omitted). A plea must be established on a proper
factual basis to be accurate. Id. “The factual-basis requirement is satisfied if the record
contains a showing that there is credible evidence available which would support a jury
verdict that defendant is guilty of at least as great a crime as that to which he pled guilty.”
Rickert v. State, 795 N.W.2d 236, 243 n.3 (Minn. 2011).
In this case, Nelson challenges the validity of his guilty plea to simple robbery and
felony domestic assault (fear), arguing that the plea was inaccurate because it is not
supported by a proper factual basis. During his plea hearing, Nelson admitted that he was
pleading guilty to a felony domestic assault because he had four prior convictions of
domestic assault in which B.S. was the victim; he went to B.S.’s Burnsville residence in
the late evening hours of September 30 or early morning hours of October 1, 2013; B.S.
is the mother of his three-year-old son; when he went to B.S.’s residence, he believed that
a no-contact order or an order for protection was in place, prohibiting his contact with
B.S.; he argued with B.S. and “picked her up in a type of hug or to move her out of the
way so that [he] could get into the bedroom”; his behavior of “pushing her out of the way
or hugging her” caused her to be fearful; he took some items from the sweatshirt that B.S.
3 was wearing and left the residence; some of the items were car keys, an Apple cell phone,
money, and “some personal identification cards, specifically an EBT card, and a
Minnesota Driver’s license,” and “some prepaid credit cards that did not have a specific
name on them, but they were . . . for Wal-Mart”; and he did not have B.S.’s permission to
take the items.
Near the end of the plea hearing, Nelson’s counsel asked the district court,
Is the Court satisfied with that to the charge of simple robbery based upon the fact he did in fact cause her to be threatened with perhaps the use of force, and that he did push her which would contribute to the domestic assault with intent of causing fear charge as to Count 3?
The court asked Nelson, “Do you believe you’re guilty of those two offenses?” Nelson
answered, “Yes, ma’am,” and affirmed to the court that he was making no claim of
innocence.
Nelson argues that his guilty plea to simple robbery lacks a proper factual basis
because the record does not show that he intended to deprive B.S. permanently of the
property that he took from her. He argues that theft is a lesser-included offense of simple
robbery and therefore an element of simple robbery is intent to deprive an owner
permanently of property. See Minn. Stat. § 609.52, subd. 2(1) (2012) (providing that theft
includes “intentionally and without claim of right tak[ing] . . . movable property of
another without the other’s consent and with intent to deprive the owner permanently of
possession of the property”); Barnslater v. State, 805 N.W.2d 910, 914 (Minn. App.
2011) (“For a guilty plea to be accurate, a factual basis must be established on the record
showing that the defendant’s conduct meets all elements of the charge to which he is
4 pleading guilty.” (emphasis added)). The state disagrees that theft is a lesser-included
offense of simple robbery.
We conclude that regardless of whether theft is a lesser-included offense of simple
robbery, Nelson’s argument fails. Nelson was not charged with, and did not plead guilty
to, the offense of theft by “intentionally and without claim of right tak[ing] . . . movable
property of another without the other’s consent and with intent to deprive the owner
permanently of possession of the property.” See Minn. Stat. § 609.52, subd. 2(1). Nelson
pleaded guilty to simple robbery, the elements of which are (1) “tak[ing] personal
property from the person or in the presence of another” and (2) “us[ing] or threaten[ing]
the imminent use of force against any person to overcome the person’s resistance or
powers of resistance to, or to compel acquiescence in, the taking or carrying away of the
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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 A14-0810
State of Minnesota, Respondent,
vs.
Damien Lashaun Nelson, Appellant.
Filed March 2, 2015 Affirmed Schellhas, Judge
Dakota County District Court File No. 19HA-CR-13-3228
Lori Swanson, Attorney General, St. Paul, Minnesota; and
James C. Backstrom, Dakota County Attorney, Karen Wangler, Assistant County Attorney, Hastings, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Stauber, Judge; and
Hooten, Judge.
UNPUBLISHED OPINION
SCHELLHAS, Judge
Appellant challenges the validity of his guilty plea to simple robbery and felony
domestic assault (fear). We affirm. FACTS
Appellant Damien Lashaun Nelson entered B.S.’s home, grabbed her, pushed her,
and left with personal property taken from the pockets of a sweatshirt that B.S. was
wearing, including car keys, a cell phone, cash, and personal identification and credit
cards. B.S. did not give Nelson permission to take the property. Police soon located
Nelson at another residence, arrested him, and recovered B.S.’s property from that
residence.
Respondent State of Minnesota charged Nelson with simple robbery, two counts
of felony domestic assault, and obstructing legal process. Consistent with the terms of a
plea agreement, Nelson pleaded guilty to simple robbery and one count of felony
domestic assault (fear); the state agreed not to charge Nelson for an alleged
September 18, 2013 violation of a domestic assault no-contact order; and the district
court sentenced Nelson concurrently to 37 months’ imprisonment for simple robbery and
24 months’ imprisonment for felony domestic assault (fear) and dismissed the remaining
charges.
This appeal follows.
DECISION
“A defendant is free to . . . appeal directly from a judgment of conviction and
contend that the record made at the time the plea was entered is inadequate” to show that
the plea was valid. Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989); see also State v.
Anyanwu, 681 N.W.2d 411, 413 n.1 (Minn. App. 2004) (“[A] defendant who challenges a
judgment of conviction against him based on an invalid guilty plea . . . may appeal
2 directly to this court.”). On appeal, “[t]he defendant bears the burden to establish that his
plea was invalid,” and this court reviews the validity of the plea de novo. Lussier v. State,
821 N.W.2d 581, 588 (Minn. 2012).
“Among other requirements, a constitutionally valid guilty plea must be accurate.”
Id. “The purpose of the accuracy requirement is to protect a defendant from pleading
guilty to a more serious offense than that for which he could be convicted if he insisted
on his right to trial.” Id. (quotation omitted). A plea must be established on a proper
factual basis to be accurate. Id. “The factual-basis requirement is satisfied if the record
contains a showing that there is credible evidence available which would support a jury
verdict that defendant is guilty of at least as great a crime as that to which he pled guilty.”
Rickert v. State, 795 N.W.2d 236, 243 n.3 (Minn. 2011).
In this case, Nelson challenges the validity of his guilty plea to simple robbery and
felony domestic assault (fear), arguing that the plea was inaccurate because it is not
supported by a proper factual basis. During his plea hearing, Nelson admitted that he was
pleading guilty to a felony domestic assault because he had four prior convictions of
domestic assault in which B.S. was the victim; he went to B.S.’s Burnsville residence in
the late evening hours of September 30 or early morning hours of October 1, 2013; B.S.
is the mother of his three-year-old son; when he went to B.S.’s residence, he believed that
a no-contact order or an order for protection was in place, prohibiting his contact with
B.S.; he argued with B.S. and “picked her up in a type of hug or to move her out of the
way so that [he] could get into the bedroom”; his behavior of “pushing her out of the way
or hugging her” caused her to be fearful; he took some items from the sweatshirt that B.S.
3 was wearing and left the residence; some of the items were car keys, an Apple cell phone,
money, and “some personal identification cards, specifically an EBT card, and a
Minnesota Driver’s license,” and “some prepaid credit cards that did not have a specific
name on them, but they were . . . for Wal-Mart”; and he did not have B.S.’s permission to
take the items.
Near the end of the plea hearing, Nelson’s counsel asked the district court,
Is the Court satisfied with that to the charge of simple robbery based upon the fact he did in fact cause her to be threatened with perhaps the use of force, and that he did push her which would contribute to the domestic assault with intent of causing fear charge as to Count 3?
The court asked Nelson, “Do you believe you’re guilty of those two offenses?” Nelson
answered, “Yes, ma’am,” and affirmed to the court that he was making no claim of
innocence.
Nelson argues that his guilty plea to simple robbery lacks a proper factual basis
because the record does not show that he intended to deprive B.S. permanently of the
property that he took from her. He argues that theft is a lesser-included offense of simple
robbery and therefore an element of simple robbery is intent to deprive an owner
permanently of property. See Minn. Stat. § 609.52, subd. 2(1) (2012) (providing that theft
includes “intentionally and without claim of right tak[ing] . . . movable property of
another without the other’s consent and with intent to deprive the owner permanently of
possession of the property”); Barnslater v. State, 805 N.W.2d 910, 914 (Minn. App.
2011) (“For a guilty plea to be accurate, a factual basis must be established on the record
showing that the defendant’s conduct meets all elements of the charge to which he is
4 pleading guilty.” (emphasis added)). The state disagrees that theft is a lesser-included
offense of simple robbery.
We conclude that regardless of whether theft is a lesser-included offense of simple
robbery, Nelson’s argument fails. Nelson was not charged with, and did not plead guilty
to, the offense of theft by “intentionally and without claim of right tak[ing] . . . movable
property of another without the other’s consent and with intent to deprive the owner
permanently of possession of the property.” See Minn. Stat. § 609.52, subd. 2(1). Nelson
pleaded guilty to simple robbery, the elements of which are (1) “tak[ing] personal
property from the person or in the presence of another” and (2) “us[ing] or threaten[ing]
the imminent use of force against any person to overcome the person’s resistance or
powers of resistance to, or to compel acquiescence in, the taking or carrying away of the
property,” while (3) “having knowledge of not being entitled thereto.” See Minn. Stat. §
609.24 (2012). A factual basis is required for “all elements of the charge to which [the
defendant] is pleading guilty,” Barnslater, 805 N.W.2d at 914, not the elements of an
uncharged offense to which he is not pleading guilty. Nothing in section 609.24 requires
the state to prove the defendant’s intent to deprive the owner permanently of possession
of the property.
Nelson’s admissions during his plea colloquy constitute credible evidence that
Nelson, believing that he was prohibited from having contact with B.S., went to her
residence and used force to overcome B.S.’s resistance or to compel her acquiescence in
taking property from B.S.’s person. We conclude that Nelson’s guilty plea to simple
robbery is supported by a proper factual basis.
5 Nelson also argues that his guilty plea to felony domestic assault (fear) was not
established on a proper factual basis because the record does not show that he acted with
intent to cause B.S. to fear bodily harm. Because one element of felony domestic assault
(fear) is acting “with intent to cause fear in another of immediate bodily harm or death,”
Minn. Stat. § 609.2242, subd. 1(1) (2012), the record must show a factual basis for
Nelson’s intent to cause such fear. “‘With intent to’ . . . 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.” Minn. Stat. § 609.02, subd. 9(4) (2012). “Intent may be inferred
from events occurring before and after the crime and may be proved by circumstantial
evidence.” State v. Rhodes, 657 N.W.2d 823, 840 (Minn. 2003). Indeed, “[the supreme
court] ha[s] determined that intent is a subjective state of mind usually established only
by reasonable inference from surrounding circumstances.” State v. Slaughter, 691
N.W.2d 70, 77 (Minn. 2005) (quotation omitted).
Even where intent is an element of the offense to which a defendant is pleading
guilty, the district court may infer the requisite intent. See Sykes v. State, 578 N.W.2d
807, 809, 813–14 (Minn. App. 1998) (rejecting defendant’s “claim[] that the factual basis
for guilt [of felony terroristic threats] is lacking because he was never questioned about
his intent or state of mind at the time he sent the letter or made the telephone call” on the
basis that “[t]he district court could readily infer [defendant]’s intent to terrorize [some
recipients of the letter and the call]”), review denied (Minn. July 16, 1998); cf. State v.
Russell, 306 Minn. 274, 274–75, 236 N.W.2d 612, 613 (1975) (concluding that
“[d]efendant’s answers to questions by the prosecutor in this case disclose a factual basis
6 for the plea [to second-degree murder] even though no question was specifically directed
to the element of intent to kill”). And a defendant’s prior harassment or abuse of a victim
may be relevant to the defendant’s state of mind during later incidents involving the same
victim. See State v. Franks, 765 N.W.2d 68, 75–76 (Minn. 2009) (noting that “it is proper
to view a defendant’s words and acts in the context of the defendant’s relationship with
the victim, including evidence of past crimes against the victim,” reasoning that “[t]he
context for this case is one of domestic violence,” and concluding that “the evidence is
sufficient to support a finding that [the defendant] knew or had reason to know that his
letters would cause [the victim] to feel terrorized”); cf. Pechovnik v. Pechovnik, 765
N.W.2d 94, 96, 100 (Minn. App. 2009) (concluding, on husband’s appeal from order for
protection of wife, that “[t]he evidence was sufficient for the district court to infer
[husband]’s present intent to inflict fear of imminent physical harm, bodily injury or
assault based on the totality of the circumstances, including [husband]’s history of
abusive behavior”).
The record contains credible evidence that supports a reasonable inference that
Nelson intended to cause B.S. to fear bodily harm. We conclude that Nelson’s guilty plea
to felony domestic assault (fear) is supported by a proper factual basis.
Affirmed.