State of Minnesota v. Lisa Dawn Oliver

• Court: Court of Appeals of Minnesota
• Decided: August 19, 2024
• Docket: a231062
• Status: Published

Opinion

STATE OF MINNESOTA IN COURT OF APPEALS A23-1062

State of Minnesota, Respondent,

vs.

Lisa Dawn Oliver, Appellant.

Filed August 19, 2024 Reversed and remanded Harris, Judge Dissenting, Wheelock, Judge

Dakota County District Court File No. 19HA-CR-22-2736

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Kathryn M. Keena, Dakota County Attorney, Heather Pipenhagen, Assistant County Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, John Donovan, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Wheelock, Presiding Judge; Harris, Judge; and

Klaphake, Judge. ∗

SYLLABUS

Because attempted first-degree assault-harm, without a finding that the victim

suffered great bodily harm, is inconsistent with the statutory scheme for assault, and the

specific-intent required for an attempt crime conflicts with the general-intent required for

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to ∗

Minn. Const. art. VI, § 10. first-degree assault (great bodily harm) under Minnesota Statutes section 609.221,

subdivision 1 (2022), appellant may not be convicted of attempted first-degree assault-

harm.

OPINION

HARRIS, Judge

Appellant Lisa Dawn Oliver was convicted of attempted first-degree assault (great

bodily harm) and second-degree assault (dangerous weapon, substantial bodily harm) for

cutting P.L.’s neck. The district court denied Oliver’s motion for a downward dispositional

departure and sentenced her to 45 months in prison for attempted first-degree assault. On

appeal, Oliver argues that her conviction for attempted first-degree assault (great bodily

harm) must be reversed because that offense is not a crime under Minnesota law because:

(1) the statutory definition of assault already includes attempted assault and thus based on

this framework a person cannot be guilty of assault involving the infliction of bodily harm

based on an attempt theory and (2) the general intent required to be guilty of assault (great

bodily harm) and the specific intent required for attempt are irreconcilable. Because the

statutory scheme of assault is based on the degree of harm inflicted upon a victim, as

opposed to the degree of harm intended, and because the mens rea requirements of assault

and attempt are irreconcilable, we reverse and remand for the district court to vacate the

entry of judgment on the attempted first-degree assault conviction and enter judgment of

conviction for second degree assault and impose a sentence.

2 FACTS

Oliver and P.L. were previously in a relationship and share a daughter. In October

2022, when Oliver picked their daughter up from P.L.’s apartment, a confrontation between

Oliver and P.L. escalated, and Oliver cut P.L.’s neck with a sharp object. Law enforcement

and paramedics arrived shortly thereafter and P.L. was taken to the hospital. P.L. received

stitches for the cut. The wound was to the tissue, no arteries were cut, and P.L. did not

require surgery. Oliver was eventually arrested, and respondent State of Minnesota

charged her with one count of attempted second-degree intentional murder in violation of

Minnesota Statutes sections 609.19, subdivision 1(1), one count of attempted first-degree

assault (great bodily harm) in violation of violation of Minnesota Statutes sections 609.221,

subdivision 1, and 609.17, and one count of second-degree assault (dangerous weapon,

substantial bodily harm) in violation of Minnesota Statutes sections 609.222, subdivision 2.

At trial, P.L. testified that he and Oliver had an altercation on the patio outside his

apartment, after Oliver came to pick up their daughter. P.L. explained that the altercation

started with Oliver calling him names and shoving him. P.L. testified that, after shoving

him several times, Oliver told P.L. she was going to kill him and then cut his neck with a

sharp object. The police never found the object Oliver used to cut P.L. At the time of trial,

P.L. had a visible scar from the cut.

The state also presented testimony from P.L.’s upstairs neighbors. One neighbor

testified that she heard a female voice saying, “I’m going to f--king kill you” and “I’m

going to f--king stab you.” The other neighbor also testified that he heard a female voice

saying, “I’m going to f--king kill you.”

3 Oliver testified and claimed that she acted in self-defense. According to Oliver,

while she was arguing with P.L. he chest-bumped her and she saw a knife “fly out of his

hand.” She picked up the knife and asked him, “What were you going to do, stab me?

What were you going to do, kill me?” Oliver testified that P.L. grabbed her by the throat

and shoved her against the door of the patio. She stated that while she was still holding the

knife in her hand, she raised her arms to break P.L.’s chokehold and inadvertently cut his

throat. Oliver testified that she did not mean to harm or kill P.L. Oliver’s roommate, who

was in the parking lot near P.L.’s apartment, heard yelling but could not make out what

was said.

The jury received instructions on the three charged offenses, the elements of the

attempt statute, and self-defense. The jury’s instructions as to attempted first-degree

assault stated “assault, as used in this charge, is the intentional infliction of bodily harm

upon another” (assault-harm). The jury acquitted Oliver of attempted second-degree

murder but found her guilty of second-degree assault and attempted first-degree assault.

Before sentencing, Oliver moved for a downward dispositional departure. The district

court adjudicated the attempted first-degree assault, denied Oliver’s motion and imposed a

guideline sentence of 45 months in prison. This appeal follows.

ISSUE

Is attempted first-degree assault-harm a permissible offense under Minnesota law?

4 ANALYSIS

Oliver argues that attempted first-degree assault-harm is not an offense under

Minnesota law for two reasons, and thus her attempted first-degree assault conviction must

be reversed. She advances two reasons in support of this argument. First, she argues that

a person cannot commit an attempted first-degree assault based on the attempt statute

because the definition of “assault” already encompasses attempted assaults. More

specifically, because the statutory scheme of assault is based on the level of harm inflicted,

an attempted assault that does not cause harm is necessarily considered a fifth-degree

assault unless a weapon is involved. Second, Oliver argues that the mens rea requirement

of assault-harm is irreconcilable with that of attempt. Because assault-harm is a general-

intent crime, Oliver argues a person cannot be convicted of attempted assault based on the

degree of harm intended. 1

A. Attempted first-degree assault-harm, without a finding that the victim suffered great bodily harm, is inconsistent with the statutory scheme for assault.

Oliver first argues that her conviction for attempted first-degree assault must be

reversed because that offense is inconsistent with Minnesota’s statutory assault scheme

1 In the alternative, appellant argues that her conviction for attempted first-degree assault must be reversed because the state lacked sufficient evidence to prove that she intended to inflict great bodily harm. She also argues that the district court abused its discretion in denying her motion for a downward dispositional departure based on the district courts determination that she did not express remorse. We decline to address these arguments because we resolve this case based on the inconsistency between attempted first-degree assault-harm, without a finding that the victim suffered great bodily harm and the statutory scheme for assault, and the conflict between the specific-intent requirement for an attempted crime conflicts with the general-intent requirement of first-degree assault (great bodily harm) under Minnesota Statutes section 609.221, subdivision 1 (2022).

5 where the definition of assault in Minnesota Statute section 609.02, subdivision 10, already

includes attempted assaults. Oliver’s arguments require this court to determine whether

the attempt statute, Minnesota Statutes section 609.17, subdivision 1 (2022), applies to

first-degree assault involving the infliction of bodily harm. Issues of statutory

interpretation present a question of law, which we review de novo. State v. Riggs, 865

N.W.2d 679, 682 (Minn. 2015).

When interpreting statutes, this court seeks to “effectuate the intention of the

legislature.” State v. Dorn, 887 N.W.2d 826, 830 (Minn. 2016) (quotation omitted); see

also Minn. Stat. § 645.16 (2022). In doing so, this court first determines “whether the

statute’s language, on its face, is clear or ambiguous.” State v. Fleck, 810 N.W.2d 303,

307 (Minn. 2012) (quotation omitted). If the statute is clear, this court enforces its plain

meaning. Id. On the other hand, “[a] statute is ambiguous only when the statutory language

is subject to more than one reasonable interpretation.” Id. In determining whether a statute

is ambiguous, this court may consider the canons of construction. Riggs, 865 N.W.2d at

682; Minn. Stat. § 645.08 (2022). One such canon is the whole-text canon, which requires

this court to construe the “statute as a whole and interpret its language to give effect to all

of its provisions.” Riggs, 865 N.W.2d at 683. Furthermore, “various provisions of the

same statute must be interpreted in the light of each other, and the legislature must be

presumed to have understood the effect of its words and intended the entire statute to be

effective and certain.” Id. (quotation omitted).

6 We begin with the text of the statute. 2 Minnesota’s first-degree assault statute

provides that anyone who “assaults another and inflicts great bodily harm” may be

convicted of assault in the first degree. Minn. Stat. § 609.221, subd. 1. “Assault” is defined

as “(1) an act done with intent to cause fear in another of immediate bodily harm or death”

(referred to or described as assault-fear) or “(2) the intentional infliction of or attempt to

inflict bodily harm upon another” (referred to or described as assault-harm or attempted

assault). Minn Stat. § 609.02, subd. 10 (2022); see Fleck, 810 N.W.2d at 308 (explaining

that there are “two distinct forms of assault recognized by the Legislature,” assault-harm

and assault-fear). And attempt under section 609.17 is defined as “[w]hoever, with intent

to commit a crime, does an act which is a substantial step toward, and more than preparation

for, the commission of the crime is guilty of an attempt to commit that crime.” Minn. Stat.

§ 609.17, subd. 1. Notably, “attempt is an inchoate crime that must be connected to an

uncompleted substantive crime that was attempted.” Noggle, 881 N.W.2d at 549.

2 The dissent takes issue with our decision to begin our analysis by evaluating the assault statutes rather than the attempt statute, relying on State v. Noggle, which held that an attempt is not merely a “sentence modifier” and is instead its own crime distinct from the attempted offense. 881 N.W.2d 545, 549 (Minn. 2016). We disagree. In Noggle, the supreme court held that, because attempt is a separate crime and not a sentence modifier, the statute that made a ten-year conditional release mandatory for designated sex offenses did not apply to the crime of attempt to commit an enumerated sex offense. 881 N.W.2d at 449-51. In doing so, the supreme court noted that attempt is a “separate crime[] with distinct elements” from the completed crime. Id. at 549 (quotations omitted). The supreme court ultimately held that the ten-year conditional-release penalty did not apply, because the legislature did not list an attempt to commit an enumerated offense as a crime requiring registration. Id. at 550. The Noggle court refused to read language into the conditional- release statute to include attempted crimes. Id. Noggle did not address the relationship between the elements of a completed and attempted offense and does not control our analysis.

7 Based on these definitions, Oliver argues that a person cannot commit an attempted

first-degree assault under section 609.17, subdivision 1, and section 609.221,

subdivision 1, because the definition of “assault” already encompasses attempting to inflict

bodily harm upon another. Specifically, she contends that, because the statutory scheme

of assault is based on the degree of harm inflicted, a charge of attempted assault requires

the state to prove that the victim actually suffered the degree of harm required for the

relevant degree of assault.

Reading the assault statute as a whole and construing its language so as to harmonize

all of its provisions, the statutory scheme of assault is based on the level of harm inflicted,

not intended. First-degree assault requires that the defendant assault another and inflict

great bodily harm, Minn. Stat. § 609.221, subd. 1 (emphasis added); second-degree assault

requires that the defendant assault another, use a dangerous weapon, and inflict substantial

bodily harm, Minn. Stat. § 609.222, subd. 2 (2022) (emphasis added); third-degree assault

requires that the defendant assault another and inflict substantial bodily harm, Minn. Stat.

§ 609.223, subd. 1 (2022) (emphasis added); and fifth-degree assault requires that the

defendant inflict or attempt to inflict bodily harm, Minn. Stat. § 609.224, subd. 1(2) (2022)

(emphasis added). 3

3 The fourth-degree assault statute diverges from this statutory framework by focusing instead on the status of the victim assaulted, such as peace officers, firefighters, medical personnel, and correctional employees. Minn. Stat. § 609.2231 (2022). Likewise, subdivisions 2 and 3 of the third-degree assault statute impose punishment based on whether the victim was under the age of four or a minor and subject to a pattern of abuse. Minn. Stat. § 609.223, subds. 2, 3 (2022).

8 The legislature took additional care to distinguish between each type of bodily harm.

“Great bodily harm” is defined as “bodily injury which creates a high probability of death,

or which causes serious permanent disfigurement.” Minn. Stat. § 609.02, subd. 8 (2022).

“Substantial bodily harm” means bodily injury of “a temporary but substantial

disfigurement.” Id., subd. 7a (2022). And “bodily harm” means “physical pain or injury,

illness, or any impairment of physical condition.” Id., subd.7 (2022). Notably, under the

first-degree assault provision, the legislature included the conjunctive “and” to indicate that

an assault also must result in great bodily harm. Minn. Stat. § 609.221, subd. 1. The

legislature also included the conjunctive “and” under subdivision 2 of second-degree

assault and subdivision 1 of third-degree assault. Minn. Stat. §§ 609.222, subd. 2

(punishing anyone who “assaults another with a dangerous weapon and inflicts substantial

bodily harm” (emphasis added)), 609.223, subd. 1 (punishing anyone who “assaults

another and inflicts substantial bodily harm” (emphasis added)).

Additionally, the legislature included “attempts” in other subdivisions of the first-

degree assault statute but did not include attempts in subdivision 1. Under subdivision 2,

for example, the legistalture provided, “[w]hoever assaults a peace officer, prosecuting

attorney, judge, or correctional employee by using or attempting to use deadly force.”

Minn. Stat. § 609.221, subd. 2 (emphasis added). And in subdivision 4, the legislature

wrote, “[w]hoever assaults and inflicts great bodily harm . . . with a dangerous weapon or

by using or attempting to use deadly force.” Id., subd. 4 (emphasis added). The legislature

demonstrated that it was aware of and knew how to include attempts in the multi-tiered

statutory scheme of assault. If the legislature intended to include attempts in assault-harm

9 under subdivision 1, it would have inserted similar language, such as “with intent to” or

“attempting to.” “When the Legislature uses limiting or modifying language in one part of

a statute, but omits it in another, we regard that omission as intentional and will not add

those same words of limitation or modification to parts of the statute where they were not

used.” State v. Schwartz, 957 N.W.2d 414, 419 (Minn. 2021) (quotation omitted).

Despite the framework of the assault statutes, the state argues that a defendant can

be convicted of attempted first-degree assault and receive the longer sentence allowed by

section 609.221, subdivision 1, and section 609.17, subdivision 4, where the case involves

evidence of an intent to inflict greater harm than what the defendant actually caused. But

accepting this argument here leads to an illogical result that undercuts the statutory

framework of assault. As Oliver argues, it is illogical that a person who intends minimal

harm but inflicts great bodily harm would be guilty of first-degree assault and someone

who intends great bodily harm but inflicts minimal harm—or no harm at all—would be

guilty of attempted first-degree assault. It is true that attempt under section 609.17 divides

in half the presumptive sentence for the underlying offense. Minn. Stat. § 609.17, subd. 4;

Minn. Sent’g Guidelines §§ 2.A.5; 2.G.2. But here, Oliver’s presumptive sentence under

section 609.17 is more than double the presumptive sentence for the assault she ultimately

committed. Minnesota Statutes section 609.224, subdivision 1(2), states, “anyone who

attempts to inflict bodily harm on another” commits an assault. (Emphasis added.) In

contrast, first-degree assault, section 609.221, requires an assault plus the infliction of great

bodily harm. To attach attempt to first-degree assault would be duplicative of attempted

10 assault in the fifth-degree. We cannot add the words “or attempts to inflict great bodily

harm” to section 609.221.

The plain language of the assault statute confirms that assault is a crime based on

the degree of harm inflicted upon a victim, not what a defendant intended. As such, to be

convicted of attempted first-degree assault under Minnesota Statutes section 609.17,

subdivision 1, with reference to Minnesota Statutes section 609.221, subdivision 1, the

state must prove the defendant assaulted another and inflicted great bodily harm, as

required by the plain language of the statute. A defendant cannot be convicted of attempted

first-degree assault under Minnesota Statutes section 609.17, subdivision 1, with reference

to Minnesota Statutes section 609.221, subdivision 1, merely because the state presents

evidence that a defendant intended a greater level of harm than the harm that resulted.

B. The specific-intent requirement of the attempt statute is irreconcilable with the general-intent requirement of the assault-harm statute.

Oliver next argues that the general intent required under the first-degree assault-

harm statute and the specific intent required under the attempt statute are irreconcilable

because the different types of intent require the defendant to want different outcomes when

committing the same crime. The state argues that although the mens rea is different for

attempt and assault-harm, they are not irreconcilable because the state may prove both that

the defendant had the general intent to do the prohibited act and the specific intent to cause

the particular result. The issue arises from a contradictory joinder of elements created by

linking the anticipatory crime of attempt (which requires specific intent) to first-degree

11 assault (which requires general intent). See State v. Schmitz, 559 N.W.2d 701, 703-04

(Minn. App. 1997), rev. denied (Minn. Apr. 15, 1997).

Attempt under section 609.17 is a specific-intent crime. State v. Zupetz, 322 N.W.2d

730, 734 (Minn. 1982). Specific intent requires “an intent to cause a particular result.”

Fleck, 810 N.W.2d at 308 (quotation omitted). General intent, on the other hand, requires

that the defendant “intentionally engag[ed] in the prohibited conduct.” Id. This does not

require that the defendant knew that his actions “would violate the law or cause a particular

result.” Dorn, 887 N.W.2d at 831 (quoting Fleck, 810 N.W.2d at 308). Because assault-

harm is a general-intent crime, the state need prove only that the defendant intended to do

the prohibited act that resulted in bodily harm. Fleck, 810 N.W.2d at 309. “[A]ssault

statutes do not require a finding by the jury that the defendant intended to cause a specific

level of harm.” State v. Vance, 734 N.W.2d 650, 656 (Minn. 2007), overruled on other

grounds by Fleck, 810 N.W.2d at 311-12, Johnson v. State, 421 N.W.2d. 327, 330-31

(Minn. App. 1988) (addressing the definition of assault and the wording of Minnesota

Statute 609.221, subdivision 1 and holding that Minnesota Statute 609.221, subdivision 1

does not require intent to inflict great bodily harm).

The state concedes that “attempt” is a specific-intent crime but maintains that it is

not irreconcilable with the general-intent crime of assault-harm. The state argues that, to

convict Oliver of assault-harm, it need prove only that she “intended to do the physical act,

but [it] does not have to prove that [she] meant to violate the law or cause a particular

result.” But “[s]pecific intent that would give rise to an attempt to commit a certain crime

is the intent to commit that particular crime.” Zupetz, 322 N.W.2d at 735. In other words,

12 where a crime requires a particular result, a person must specifically intend that result to

be guilty of attempt. This does not align with the general-intent requirement of assault-

In Dorn, for example, the defendant pushed the victim, who was standing near a

bonfire, and the victim fell into the burning embers, sustaining substantial burn injuries.

887 N.W.2d at 829. Dorn challenged her first-degree assault conviction because she did

not intend to push the victim into the fire. Id. The supreme court rejected her challenge

and held that, for assault-harm, the defendant needs “only the general intent to do the act

that results in bodily harm.” Id. at 831 (citing Fleck, 810 N.W.2d at 309). In Fleck, the

court held that “[a]lthough the definition of assault-harm requires the [s]tate to prove that

the defendant intended to do the physical act, nothing in the definition requires proof that

the defendant meant to . . . cause a particular result.” 810 N.W.2d at 309.

In Zupetz, where the defendant was convicted of attempted second-degree

manslaughter, the supreme court held that it is a logical impossibility to have an attempted

second-degree manslaughter because the intent involved in culpable negligence is not the

same kind of intent involved in an attempt to commit a crime. 322 N.W.2d at 734-35. And

while the state also presented evidence that the defendant “may have contemplated killing

[the victim] . . . [t]he state may not make such intent part of the crime itself merely by

introducing evidence of it.” Id. at 736. Zupetz is instructive on the question of whether a

person can be convicted of attempted first-degree assault-harm (great bodily harm). First-

degree assault, like second-degree manslaughter, is a general-intent crime. In order to be

found guilty of first-degree assault, the jury must find that the defendant assaulted and

13 caused a level of harm to the victim. There is no specific intent in the assault-harm

provision that Oliver was convicted of, and the state cannot “make such intent part of the

crime itself merely by introducing evidence of it.” Id. (emphasis omitted); see also

Schmitz, 559 N.W.2d at 704 (applying Zupetz and holding that, because domestic abuse

murder is founded on general intent, not specific intent, a defendant cannot be prosecuted

for attempted domestic abuse murder); see also State v. Stevenson, 637 N.W.2d 857,

860-61 (Minn. App. 2002), aff’d on other grounds, 656 N.W.2d 235 (Minn. 2003) (citing

Zupetz and Schmitz and considering whether it is impossible to be guilty of attempted fifth-

degree criminal sexual conduct based on appellant’s claim that fifth-degree criminal sexual

conduct requires proof of a reckless or negligent state of mind and any attempt crime

requires specific intent to commit the underlying crime, but ultimately concluded that,

because fifth-degree criminal sexual conduct is a specific-intent crime, that criminal sexual

conduct in the fifth degree is a crime that a defendant can legally be convicted of attempting

to commit).

The Minnesota Supreme Court analysis in State v. GisegeI, 561 N.W.2d 152, 157

(Minn. 1997), is instructive, where it concluded that first-degree assault-harm is not a lesser

included offense of attempted first-degree murder or attempted second-degree murder. In

doing so, the supreme court reasoned that first-degree assault-harm includes “great bodily

harm” as a necessary element. Id. at 156. Attempted first-degree murder or attempted

second-degree murder does not require proof of bodily harm and, as such, first degree

assault-harm is not a lesser included offense of those crimes. Id. If attempted first-degree

assault-harm was a recognized offense in Minnesota, the supreme court would have

14 recognized it as a lesser included offense of attempted first-degree murder or attempted

second-degree murder because the degree of harm would not be a necessary element.

The state argues that the specific intent required for an attempted crime is not

inconsistent with the general intent assigned to assault offenses based on harm. The state

cites the supreme court’s recent decision in Tichich v. State, 4 N.W.3d 114 (Minn. 2024),

to support this point. In Tichich, the defendant argued that guilty verdicts for both

attempted third-degree criminal sexual conduct and third-degree criminal sexual conduct

were legally inconsistent. 4 N.W.2d at 123. The state specifically cites to a footnote in

Tichich, which provided that the offenses were not inconsistent because of the differing

mental states: the fact that attempts are specific-intent crimes and third-degree criminal

sexual conduct is a general-intent crime did not mean the verdicts were inconsistent. Id.

at 123 n.9. The supreme court noted that the “intent to sexually penetrate a victim is not

legally inconsistent with also finding intent to commit third-degree criminal sexual

conduct.” Id.

Like in Tichich, a finding of infliction of bodily harm is not legally inconsistent with

a finding of intent to inflict bodily harm; here a person can attempt a general-intent crime,

and a person can attempt to assault a person. 4 Infliction of bodily harm is not legally

inconsistent with finding an intent to inflict bodily harm.

Unlike the criminal sexual conduct crime in Tichich, attempted first-degree assault

harm includes another element, the intent to inflict a particular degree of harm. The

4 As addressed above, the definition of assault includes attempting to inflict bodily harm upon another. Minn. Stat. § 609.02, subd. 10.

15 inconsistency lies in the level of harm. “The problem arises from a contradictory joinder

of elements created by linking the anticipatory crime of attempt (which requires specific

intent) and [first-degree assault under Minnesota Statutes section 609.221, subdivision 1]

(which requires general intent).” Schmitz, 559 N.W.2d at 704-05. Because assault-harm

under Minnesota Statutes section 609.221, subdivision 1, is a general-intent crime, the state

must prove that a defendant intended only to do the physical act. Fleck, 810 N.W.2d at

309. No intent to cause a particular result is required. Id.; see also Dorn, 887 N.W.2d

at 833. The attempt statute cannot be applied to an assault-harm because of the inconsistent

mens rea requirements between an attempt and the level of harm. As a general-intent

crime, assault–harm does not require proof that the defendant intended any particular

result; it only requires the state to prove that the defendant intended to do the physical act.

Id. at 309. If the defendant intended to do the physical act constituting assault, then they

are liable for whatever degree of harm resulted from that act. See Dorn, 887 N.W.2d at

831 (explaining that assault-harm “requires only the general intent to do the act that results

in bodily harm”).

By applying the crime of attempt to assault-harm, the nature of the offense changes

to assault-fear, which requires the state to prove that the defendant not only voluntarily

committed the act in question, but also that the defendant did so with the additional intent

to cause fear of immediate bodily harm in another. See Fleck, 810 N.W.2d at 312 (assault-

fear is a specific-intent crime requiring proof of “the intent to cause fear in another of

immediate bodily harm or death”). Based on the statutory scheme, if the defendant’s

assault causes great bodily harm, the person is guilty of first-degree assault, regardless of

16 their specific intent as the supreme court held in Dorn. But unlike criminal sexual conduct,

where a person can intend to commit a sexually penetrative act and fail to accomplish it

and be guilty of attempted criminal sexual conduct, a person who intends to cause great

bodily harm but does not accomplish that degree of harm has committed assault-fear and/or

a lesser-degree of assault-harm. Adding the degree of assault for an intended level of harm

is inconsistent with the statutory scheme of assault and runs contrary to caselaw

interpreting the assault-harm statute.

As applied to the instant case, the attempt that occurred was possibly an attempted

murder, based on Oliver’s statements. 5 And the offense Oliver committed was a completed

assault involving infliction of substantial bodily harm. Oliver did not commit a completed

first-degree assault because the victim did not suffer great bodily harm, and she could not

attempt to commit a crime that involves only general intent to do a volitional act that causes

bodily harm and does not have an element of specific intent to cause a particular degree of

In sum, we conclude that a person cannot be convicted of attempted first-degree

assault under Minnesota Statutes section 609.17, subdivision 1, with reference to

Minnesota Statutes section 609.221, subdivision 1. We therefore conclude that Oliver’s

conviction for attempted first-degree assault must be reversed.

5 The jury acquitted Oliver of attempted second-degree murder.

17 DECISION

Because attempted first-degree assault-harm, without a finding that the victim

suffered great bodily harm, is inconsistent with the statutory scheme for assault, and the

specific intent that is required for an attempted crime under Minnesota Statutes section

609.17 (2022) conflicts with the general intent requirement of assault-harm under

Minnesota Statutes section 609.221 (2022), appellant may not be convicted of attempted

first-degree assault-harm. For the above reasons, we reverse and remand for the district

court to vacate the entry of judgment and sentence for appellant’s attempted first-degree

assault. See State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984) (“If the adjudicated

conviction is later vacated for a reason not relevant to the remaining unadjudicated

conviction(s), one of the remaining unadjudicated convictions can then be formally

adjudicated and sentence imposed . . . .”). On remand, we direct the district court to

adjudicate or enter judgement of conviction on the lesser-included second-degree assault

and impose a sentence.

Reversed and remanded.

18 WHEELOCK, Judge (dissenting)

I respectfully dissent. I disagree with the majority’s conclusion that the general

intent required for first-degree assault is irreconcilable with the specific intent required for

an attempt, and I would therefore conclude that attempted first-degree assault is a

cognizable crime under Minnesota law. And because the evidence was sufficient to prove

that appellant Lisa Dawn Oliver acted with the specific intent to commit first-degree

assault, I would affirm her conviction.

I. Attempted first-degree assault is a cognizable crime.

The critical flaw in the majority’s reasoning is that it begins its analysis through an

evaluation of the assault statutes rather than the attempt statute, the actual offense of

conviction in this case. The Minnesota Supreme Court has held that an attempt is not

merely a “sentence modifier” and is instead its own crime distinct from the attempted

offense. State v. Noggle, 881 N.W.2d 545, 549 (Minn. 2016) (quotation marks omitted).

Accordingly, in determining whether a particular set of facts are cognizable as an attempt

crime under Minnesota law, the analysis must necessarily begin with an evaluation of the

elements of attempt, rather than with the elements of the offense attempted.

The attempt statute states that “[w]hoever, with intent to commit a crime, does an

act which is a substantial step toward, and more than preparation for, the commission of

the crime is guilty of an attempt.” Minn. Stat. § 609.17, subd. 1 (2022). The words “with

intent to” require proof that the person “either has a purpose to do the thing or cause the

result specified” or a belief “that the act, if successful, will cause that result.” Minn. Stat.

§ 609.02, subd. 9(4) (2022); see also State v. Fleck, 810 N.W.2d 303, 308 (Minn. 2012)

D-1 (“The phrase ‘with intent to’ is commonly used by the Legislature to express a

specific-intent requirement.”). And the “[s]pecific intent that . . . give[s] rise to an attempt

to commit a certain crime is the intent to commit that particular crime.” State v. Zupetz,

322 N.W.2d 730, 735 (Minn. 1982). Accordingly, whether a person may attempt to commit

first-degree assault depends on whether it is possible to specifically intend to commit

first-degree assault.

As is relevant here, Minnesota Statutes section 609.221, subdivision 1 (2022),

provides that a person commits an assault in the first degree if they “assault[] another and

inflict[] great bodily harm.” In order, then, for an attempted first-degree assault to

constitute an offense in Minnesota, it must be possible for one to specifically intend both

to assault another and to inflict great bodily harm. And based upon the definitions the

legislature assigned by statute to the terms “assault” and “great bodily harm,” it is clear

that it is, in fact, possible.

First, the word “assault” is defined, for purposes of chapter 609, as either “(1) an act

done with intent to cause fear in another of immediate bodily harm or death; or (2) the

intentional infliction of or attempt to inflict bodily harm upon another.” Minn. Stat.

§ 609.02, subd. 10 (2022). Given the use of the disjunctive “or” in this definition, we

interpret it to “require that only one of the possible factual situations be present in order for

the statute to be satisfied.” State v. Loge, 608 N.W.2d 152, 155 (Minn. 2000). One is

therefore able to assault another by intentionally inflicting bodily harm, and moreover, it

should be beyond dispute that one is similarly able to specifically intend to inflict bodily

harm on another. It therefore follows that one may specifically intend to “assault another”

D-2 in this manner, irrespective of what other actions might also constitute an assault under its

definition.

Second, “great bodily harm” is defined as “bodily injury which creates a high

probability of death, or which causes serious permanent disfigurement, or which causes a

permanent or protracted loss or impairment of the function of any bodily member or organ

or other serious bodily harm.” Minn. Stat. § 609.02, subd. 8 (2022). Although it is a grim

prospect, just as a person is capable of specifically intending to cause the death of another,

so too is it possible for one to specifically intend the infliction of a nonfatal, yet severe,

injury, such as permanent disfigurement or the loss of a bodily member, or an injury that

creates a high probability of death.

As such, because it is possible to specifically intend to assault another by inflicting

bodily harm, and because it is possible to specifically intend to inflict great bodily harm, it

is possible to specifically intend to commit a first-degree assault. Accordingly, if it can be

proved beyond a reasonable doubt that a defendant specifically intended to inflict great

bodily harm upon another and that the defendant took a substantial step toward doing so,

it follows that a defendant may rightly be found guilty of attempted assault in the first

degree. And for that reason, it is illogical to categorically exclude such an offense from

being criminalized in Minnesota.

The majority nevertheless contends that this result is compelled because the specific

intent required for an attempt is irreconcilable with the general intent required for

first-degree assault. I disagree. General intent requires proof of an “intention to make the

bodily movement which constitutes the act.” Fleck, 810 N.W.2d at 308 (quotation

D-3 omitted). Specific intent requires proof of the intended result of that act. Minn. Stat.

§ 609.02, subd. 9(4). By these definitions, the two are not mutually exclusive; a person

may both volitionally perform an act and intend that the act cause a particular result. See

Tichich v. State, 4 N.W.3d 114, 123 n.9 (Minn. 2024) (rejecting the argument that

third-degree criminal sexual conduct and attempted third-degree criminal sexual conduct

required “inconsistent mental states” because “the ‘general intent’ required for third-degree

criminal sexual conduct is intent to sexually penetrate, and the ‘specific intent’ required for

attempted third-degree criminal sexual conduct is the intent to commit that crime”).

The majority cites Zupetz as support for its contention that specific intent and

general intent are irreconcilable. But Zupetz does not hold that a person cannot be guilty

of attempting a general-intent crime; it holds that a person cannot be guilty of attempting

second-degree manslaughter—a crime that requires a showing of a mens rea that is

inconsistent with specific intent: culpable negligence. 322 N.W.2d at 735. The logic

underpinning that conclusion is that a person cannot specifically intend “to commit a crime

whose distinguishing element is a lack of intent.” Id. (quoting People v. Brown,

249 N.Y.S.2d 922, 923 (App. Div. 1964)). But unlike for second-degree manslaughter, a

lack of intent is not a distinguishing element of first-degree assault. See Minn. Stat.

§ 609.221, subd. 1.

The majority also relies on State v. Schmitz, 559 N.W.2d 701 (Minn. App. 1997),

rev. denied (Minn. Apr. 15, 1997), but Schmitz relies on the same underlying reasoning as

Zupetz and therefore also does not apply here. In Schmitz, we agreed with the appellant’s

argument that the attempt statute cannot be applied to domestic‑abuse murder because

D-4 “linking the anticipatory crime of attempt (which requires specific intent) to domestic

abuse murder (which requires general intent)” created a “contradictory joinder of

elements.” 559 N.W.2d at 704. Domestic‑abuse murder requires proof that “the death . . .

occurred under circumstances manifesting an extreme indifference to human life.” Id. at

703; accord Minn. Stat. § 609.185(a)(6) (2022). We interpreted the “extreme indifference”

element as “an environmental element” that “describes surrounding circumstances

unrelated to intent.” Schmitz, 559 N.W.2d at 704. Relying on Zupetz, we stated that “any

degree of indifference suggests a lack of concern and is related to negligence or

recklessness” and that “[n]either [negligence nor recklessness] includes specific intent.”

Id. Therefore, Schmitz merely reaffirmed that a person cannot be convicted of a crime that

requires specific intent and, simultaneously, a mens rea that is inconsistent with specific

intent. But unlike domestic-abuse murder, first-degree assault does not require a showing

of indifference that would suggest negligence or recklessness. Therefore, the problem of

contradictory elements presented in Schmitz is not present here.

Following Zupetz, in State v. Landherr, we rejected the application of the attempt

statute to another provision of the manslaughter statute. 542 N.W.2d 686, 688-89 (Minn.

App. 1996), rev. denied (Minn. Mar. 19, 1996). In that case, we rejected the state’s

argument that attempted manslaughter is analogous to attempted escape from custody. Id.

at 689. Escape does not require specific intent; it requires only “intent to do an act that

results in the departure from custody.” Id. (citing State v. Kjeldahl, 278 N.W.2d 58, 61

(Minn. 1979)). In other words, escape is a general-intent crime. State v. Garza, 3 N.W.3d

18, 21 (Minn. App. 2024) (citing Kjeldahl, 278 N.W.2d at 61). In Landherr, we concluded

D-5 that because “the escape statute does not require a showing of negligence[, a]ttempted

escape does not involve the logical impossibility that occurs . . . where an attempted

manslaughter would require that a person achieve a specific result through negligence.”

542 N.W.2d at 689 (citations omitted).

Just like escape, first-degree assault does not require a showing of recklessness or

negligence. Compare Minn. Stat. § 609.485, subd. 2 (2022) (criminalizing acts

constituting escape from custody), with Minn. Stat. § 609.221, subd. 1 (criminalizing acts

constituting first-degree assault). Therefore, attempted first-degree assault does not

involve the logical impossibility presented in Zupetz and Landherr, and the specific intent

required for attempt is not irreconcilable with the general intent required for first-degree

assault.

To the extent the majority argues that recognizing the crime of attempted

first-degree assault could result in unfair punishment, our task in this appeal is limited

solely to determining whether the crime is cognizable, not whether recognizing it would

lead to unfair results. See Dahlin v. Kroening, 796 N.W.2d 503, 508 (Minn. 2011) (“When

interpreting the statutes, it is [appellate courts’] role to rely on what the Legislature

intended over what may appear to be supported by public policy.”); State v. Weaver,

796 N.W.2d 561, 576 (Minn. App. 2011) (“Determination of what conduct constitutes a

criminal offense and the punishment that ought to be imposed . . . is peculiarly a legislative

and not a judicial function.” (quotation omitted)), rev. denied (Minn. July 19, 2011); cf.

State v. Back, 341 N.W.2d 273, 276 (Minn. 1983) (rejecting argument that challenged the

absence of a distinction in the sentencing guidelines between two offenses that involved

D-6 different levels of culpability because the classification of those crimes “is a legislative

decision”).

Therefore, I would conclude that attempted first-degree assault is a cognizable

crime.

II. The evidence was sufficient to support Oliver’s conviction for attempted first-degree assault.

Because I would conclude that attempted first-degree assault is a cognizable crime,

I next address Oliver’s argument that the evidence was insufficient to prove that she acted

with intent to commit first-degree assault. Oliver urges us to apply the two-step

circumstantial-evidence standard, arguing that her statements indicating her intent would

prove only that she acted with intent to kill and that they are not direct evidence of that

intent because the jury found her not guilty of attempted murder. She then argues that the

circumstantial evidence could prove only that she acted with intent to inflict bodily harm,

the degree of harm required for fifth-degree assault under Minn. Stat. § 609.224, subd. 1(2)

(2022), or substantial bodily harm, the degree of harm required for third-degree assault

under Minn. Stat. § 609.223, subd. 1 (2022). The state argues that it proved intent through

a combination of direct and circumstantial evidence.

“[W]hen a disputed element is sufficiently proven by direct evidence alone,” we

apply the direct-evidence standard of review. State v. Horst, 880 N.W.2d 24, 39 (Minn.

2016). But when a conviction is not adequately supported by direct evidence, we apply a

heightened, two-step standard of review. See State v. Loveless, 987 N.W.2d 224, 247

(Minn. 2023). I therefore determine whether Oliver’s statements, “I’m going to f--king kill

D-7 you,” and, “I’m going to f--king stab you,” constitute sufficient direct evidence of her intent

to inflict great bodily harm, as required for first-degree assault.

“Direct evidence is evidence that is based on personal knowledge or observation

and that, if true, proves a fact without inference or presumption.” Id. (quotation omitted).

Intent may be proved by direct evidence when the evidence includes a statement by the

defendant that “unambiguously indicate[s]” the purpose of their actions. Horst,

880 N.W.2d at 40. In Horst, the supreme court concluded that the defendant’s statements,

“I want him dead,” “we can do this,” and, “how many rounds did you put in him,”

constituted direct evidence of intent to support a conviction for first-degree premeditated

murder. Id. In State v. Jones, the supreme court determined that the defendant’s statement

about how he planned to use a weapon, “to beat [the victim] bloody,” made

contemporaneously with the defendant’s brandishing of the weapon in a consistent way,

was direct evidence that the defendant intended to use the weapon “in a manner likely to

cause great bodily harm.” 4 N.W. 3d 495, 501-02 (Minn. 2024) (quotation marks omitted).

Here, Oliver told the victim, P.L., “I’m going to f--king kill you,” and, “I’m going

to f--king stab you.” Oliver argues that the statement, “I’m going to kill you,” could

unambiguously indicate only an intent to kill, but that it does not because the jury found

her not guilty of attempted murder. She argues that, at most, the statement, “I’m going to

stab you,” indicates only an unspecified amount of bodily harm. And thus, Oliver argues

that the statements cannot be considered direct evidence of her intent to inflict great bodily

harm. When evaluating the sufficiency of direct evidence, “we limit our review to a

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

D-8 light most favorable to the conviction, was sufficient to permit the jurors to reach the

verdict which they did.” Horst, 880 N.W.2d at 40 (quotation omitted). “We will not

overturn the verdict if the jury, acting with regard for the presumption of innocence and the

State’s burden of proof beyond a reasonable doubt, could reasonably conclude that the

defendant was guilty.” Jones, 4 N.W.3d at 502.

For the jury to conclude that Oliver possessed the requisite specific intent for

attempted first-degree assault, the state was required to prove that she intended the specific

degree of harm applicable to that offense: great bodily harm. See Minn. Stat. § 609.221,

subd. 1. “Great bodily harm” is defined as “bodily injury which creates a high probability

of death, or which causes serious permanent disfigurement, or which causes a permanent

or protracted loss or impairment of the function of any bodily member or organ or other

serious bodily harm.” Minn. Stat. § 609.02, subd. 8.

Viewing the evidence in the light most favorable to the conviction, Oliver’s

statements, “I’m going to f--king kill you,” and, “I’m going to f--king stab you,” were

sufficient to permit the jury to conclude that Oliver intended to inflict an injury that would

create a high probability of death or cause other serious bodily harm. Immediately before

Oliver inflicted P.L.’s injury, she threatened his life and stated that she was going to use a

knife to stab him. Similarly to the defendant in Jones, Oliver then used that knife in a

manner consistent with her stated intent, slicing his neck and creating a cut that was

approximately three inches long and one inch deep. P.L.’s child testified that he saw Oliver

“cut [P.L.] in the jugular” and that Oliver “put force in it and cut his neck.” In addition,

P.L. asked, “Did you really just cut my neck wide open?” and Oliver answered, “I sure

D-9 did.” Therefore, the direct evidence was sufficient to prove that she acted with intent to

inflict great bodily harm.

In sum, I would conclude that attempted first-degree assault is a cognizable crime

and that the evidence was sufficient to support Oliver’s conviction for that crime.

Accordingly, I would affirm her conviction.

D-10