This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA IN COURT OF APPEALS A16-0294
State of Minnesota, Respondent,
vs.
Noor Muhina Salim, Appellant.
Filed February 13, 2017 Affirmed in part, reversed in part, and remanded Bratvold, Judge
Blue Earth County District Court File No. 07-CR-15-361
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, St. Paul, Minnesota; and
Patrick McDermott, Blue Earth County Attorney, Mankato, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant State Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Worke, Judge; and Bratvold,
Judge.
UNPUBLISHED OPINION
BRATVOLD, Judge
Appellant challenges his convictions of first-degree aggravated robbery, simple
robbery, theft, two counts of fifth-degree assault, and disorderly conduct. Appellant argues that there is insufficient evidence supporting his first-degree aggravated robbery conviction
because he did not inflict bodily harm during commission of the robbery. Because we
conclude that the evidence establishes infliction of bodily harm during the carrying away
of stolen property, we affirm appellant’s first-degree aggravated robbery conviction.
Appellant also argues that his adjudicated convictions of simple robbery, theft, fifth-
degree assault, and disorderly conduct must be vacated because they are lesser-included
offenses of first-degree aggravated robbery. Because simple robbery, theft, and fifth-degree
assault are lesser-included offenses, we reverse and remand to the district court with
instructions to vacate the formal adjudicated convictions of those counts, consistent with
this opinion. Because disorderly conduct is not a lesser-included offense of first-degree
aggravated robbery, we affirm that conviction.
FACTS
In November 2014, appellant Noor Salim accompanied A.A. on a road trip from
Mankato, Minnesota, to St. Louis, Missouri, so that A.A. could buy a new car. They agreed
that, after the trip to St. Louis, A.A. would drive Salim to Fargo, North Dakota, where
Salim wanted to visit friends, and the two would later drive back to Mankato together.
The day after arriving in St. Louis, A.A. purchased his new car, and he and Salim
traveled to Fargo. As they neared Fargo, Salim demanded that A.A. pay him $600 for
accompanying A.A. on the roadtrip, but A.A. refused, saying he never agreed to pay Salim.
According to Salim, he was entitled to $600 because he loaned A.A. the money to buy new
car tires. A.A. denied that he bought new tires.
2 After arriving in Fargo, A.A. dropped Salim off at a friend’s house. A.A. testified
that, because of the “difficult disagreement” about money, he left Salim in Fargo and drove
back to Mankato alone. Salim tried calling A.A., but A.A. ignored Salim’s phone calls.
Salim was forced to take a bus back to Mankato. After returning to Mankato, Salim
repeatedly messaged A.A. on his cell phone asking to be paid, but A.A. continued to ignore
Salim.
On January 25, 2015, Salim went to A.A.’s apartment to ask for payment. When
Salim knocked on the door, A.A., who had been sleeping, let Salim into his apartment. For
about 30 minutes, A.A. and Salim argued about money, but they could not agree. A.A. told
Salim that he was tired from working the night before and asked Salim to leave his
apartment. Salim refused. A.A. said he would call the police. Before A.A. could dial 911,
Salim grabbed the cell phone from A.A.’s hand and put it in his pocket.
A.A. immediately asked for his phone back and moved closer to Salim. Salim
punched A.A. in the chest, and they fought for approximately 30 minutes. During the fight,
A.A. and Salim fell to the ground. The door to A.A.’s apartment was left open and a
neighbor heard noise, saw A.A. and Salim on the floor fighting, and A.A. told the neighbor
to call the police. As the neighbor began to call the police, Salim hit A.A. and fled the
apartment with A.A.’s cell phone in his pocket. As a result of the fight, A.A. had a bruise
on his back, and cuts on his knee, elbow, and throat.
Police arrived at A.A.’s apartment within five minutes of the neighbor’s 911 call.
A.A. did not know Salim’s full name, but gave the police directions to Salim’s house and
Salim’s sister’s name. The officer searched for possible suspects using a computer
3 database, showed A.A. a photo, and A.A. identified Salim as the person who had assaulted
him. The state charged Salim with first-degree aggravated robbery, simple robbery, theft,
interference with a 911 call, and two counts of fifth-degree assault. During a two-day jury
trial, A.A. and two responding officers testified for the state; Salim’s uncle testified for
Salim, and Salim testified on his own behalf.
Salim’s testimony provided a different account of the events on January 25, 2015.
Salim testified that he went to A.A.’s apartment to visit his cousin who lived with A.A.
Salim testified that he discussed money with A.A., but A.A. started screaming at him.
Salim stated that he tried to leave the apartment, but A.A. stood in his way and then pushed
him. Salim testified that, after he pushed A.A., A.A. got on top of him, punched him, and
then ran to the kitchen, threatening to stab him with a knife. Salim then fled the apartment.
Salim denied taking anything from A.A.’s apartment. Salim admitted that he had not told
anyone his version of events before trial.
At the end of the first day of trial, Salim orally moved to amend the complaint to
add a disorderly conduct (brawling or fighting) charge under Minn. Stat. § 609.72, subd.
1(1) (2014), which the state did not oppose. On the second day of trial, the state orally
moved to amend the complaint to add a charge of temporary theft under Minn. Stat.
§ 609.52, subd. 2(a)(5) (2014), based on evidence that A.A.’s cell phone was returned to
him, which Salim did not oppose. The district court instructed the jury on disorderly
conduct and temporary theft, in addition to the six charges in the written complaint.
The jury found Salim guilty of seven counts: (1) first-degree aggravated robbery;
(2) simple robbery; (3) interfering with a 911 call; (4) fifth-degree assault with intent to
4 cause fear of immediate bodily harm or death; (5) fifth-degree assault with infliction of
bodily harm or attempted infliction of bodily harm; (6) theft; and (7) disorderly conduct
(brawling or fighting). Salim was acquitted of temporary theft.
At the sentencing hearing on November 23, 2015, the district court pronounced a
sentence only on first-degree aggravated robbery and sentenced Salim to a downward
dispositional departure of 48 months in prison, stayed this sentence for 10 years, subject to
conditions and a term of probation. The district court filed a written sentencing order
entering formal judgments of conviction on all seven counts. This appeal follows.
DECISION
I. Sufficiency of the Evidence This court’s review of a challenge to the sufficiency of the evidence “is limited to a
painstaking analysis of the record to determine whether the evidence, when viewed in a
light most favorable to the conviction, was sufficient to permit the jurors to reach the
verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court
“will not disturb the verdict if the jury, acting with due regard for the presumption of
innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could
reasonably conclude that [the] defendant was proven guilty of the offense charged.”
Bernhardt v. State, 684 N.W.2d 465, 476–77 (Minn. 2004) (quotation omitted). This court
assumes “the jury believed the state’s witnesses and disbelieved any evidence to the
contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This court generally defers
to the factfinder’s credibility determinations. Id.; see also State v. Hawes, 801 N.W.2d
5 659, 670 (Minn. 2011) (“[T]he jury is in the best position to evaluate the credibility of the
evidence.”).
The elements of first-degree aggravated robbery are that the defendant:
(1) wrongfully took property from the victim; (2) used force or the threat of imminent force
to overcome the victim’s resistance to, or compel the victim’s acquiescence in, the taking
or carrying away of the property; and (3) inflicted bodily harm or was armed with a
dangerous weapon. Minn. Stat. § 609.24, .245 (2014). Salim concedes that there was
sufficient evidence to support a conviction for simple robbery, but argues that the evidence
was insufficient to elevate the simple robbery to first-degree aggravated robbery because
there was no evidence that he inflicted bodily harm upon A.A. while committing the
robbery. Salim argues that the record shows he took A.A.’s cell phone and put it in his
pocket before he and A.A. began fighting. The state counters, arguing that the bodily harm
to A.A. occurred during the “carrying away” of the cell phone. Because it is uncontested
that Salim inflicted bodily harm on A.A. during their fight, the issue for this court is
whether the timing of the infliction of bodily harm—which occurred after Salim took the
cell phone from A.A., but before Salim carried away the cell phone from A.A.’s
apartment—is sufficient to sustain the first-degree aggravated robbery conviction.
Minnesota courts have repeatedly held that, to sustain a simple robbery or first-
degree aggravated robbery conviction, there must be evidence that the defendant used force
or threat of force (for simple robbery) and inflicted bodily harm (for first-degree aggravated
robbery) during the taking or carrying away of the stolen property. State v. Kvale, 302
N.W.2d 650, 652–53 (Minn. 1981); State v. Brown, 597 N.W.2d 299, 303–04 (Minn. App.
6 1999), review denied (Minn. Sept. 14, 1999); State v. Burrell, 506 N.W.2d 34, 36 (Minn.
App. 1993), review denied (Minn. Oct. 19, 1993).
In State v. Kvale, the Minnesota Supreme Court addressed whether evidence of
infliction of bodily harm after the taking of property could sustain an aggravated robbery
conviction. 302 N.W.2d at 652. In Kvale, the defendant demanded money from the victim
while the victim was in his car. Id. at 651. After the victim gave money to the defendant,
the defendant hit the victim and cut his throat. Id. On appeal, the defendant argued the
evidence was insufficient to uphold his aggravated robbery conviction because he first took
the money from the victim and then, in “an unrelated assault,” inflicted bodily harm on the
victim before fleeing with the money. Id.
Kvale first noted that the legislative history of the simple robbery statute established
“that the use of force in escaping [is] insufficient” to uphold a simple robbery conviction.
Id. at 652. Kvale then distinguished the use of force during the carrying away of the
property from the use of force to effectuate an escape.
The robbery statute speaks of using force or threats to compel acquiescence in either the taking or the carrying away of the property. It does not require that the use of force or threats actually precede or accompany the taking. It requires only that the use of force or threats precede or accompany either the taking or the carrying away and that the force or threats be used to overcome the victim’s resistance or compel his acquiescence in the taking or carrying away.
Id. at 653 (emphasis added). Based on this reasoning, Kvale upheld the defendant’s first-
degree aggravated robbery conviction because the infliction of bodily harm occurred
during the carrying away of the property. Id.
7 This court has applied Kvale in two published decisions. First, in State v. Burrell,
this court addressed whether the use of force after the taking of property was sufficient to
uphold a simple robbery conviction. 506 N.W.2d at 36. The defendant in Burrell stole
seven cigarette cartons from a convenience store. Id. at 35. As the defendant left the store
and headed to a getaway car, the store owner noticed a carton sticking out of the
defendant’s coat and ran after the defendant yelling for him to stop. Id. A fight ensued
during which the defendant injured the store owner. Id.
Relying on Kvale, the defendant in Burrell argued that there was insufficient
evidence to sustain a simple robbery conviction because he used force against the store
owner during his escape, not during the commission of the robbery. Id. at 36. This court
rejected the defendant’s argument and upheld the simple robbery conviction:
Appellant’s use of force in this case may be viewed as occurring more closely with the “carrying away” of the cigarettes than with an escape. By appellant’s own testimony, the entire confrontation took less than one minute; the use of force thus occurred almost immediately after appellant ran outside the store with the cigarettes. Moreover, given [the victim’s] version of the events, the jury had ample ground to conclude appellant’s actions fit within the “carrying away” provision of the statute. Id.
Similarly, in State v. Brown, this court addressed whether the use of force after the
taking of property was sufficient to uphold a first-degree aggravated robbery conviction.
597 N.W.2d at 303. In Brown, the defendant stole two cases of baby formula from a store,
ran out of the store, and threw the formula into his car. Id. at 302. Within five or ten
8 seconds, the store owner ran after the defendant, and they fought, during which the
defendant inflicted injuries on the store owner. Id.
Relying on Kvale, the defendant in Brown argued that, because the baby formula
was already in his car when the store owner ran after him, the infliction of harm occurred
during his escape, not during the commission of the robbery. Id. at 303. In rejecting the
defendant’s argument, this court held that, “[b]ecause Brown was attempting to drive away
with the [formula] in his car, the jury could reasonably conclude that his use of force
accompanied the carrying away of the [formula] and was intended to overcome [the
victim’s] resistance to the carrying away.” Id. at 304.
Here, a reasonable jury could conclude that Salim inflicted bodily harm upon A.A.
during the “carrying away” of A.A.’s cell phone. A.A. testified that “the fight was over the
cell phone.” Like the store owners in Burrell and Brown, A.A. demanded his cell phone
back immediately after Salim took it from him. When Salim did not give the phone back,
A.A. moved closer to Salim, and Salim punched A.A. in the chest. A.A. and Salim then
fought for approximately 30 minutes. Like in Kvale and Brown, the close temporal
relationship between Salim taking the cell phone from A.A., inflicting bodily harm on
A.A., and fleeing with the cell phone in his possession is probative evidence that the
infliction of bodily harm occurred during the “carrying away” of the cell phone. Viewing
the evidence in the light most favorable to the jury verdict, a reasonable jury could conclude
that Salim inflicted injury upon A.A. during the “carrying away” of the cell phone. Thus,
Salim’s insufficiency claim fails.
9 II. Lesser-Included Offenses
Salim argues that his formal adjudicated convictions of simple robbery, theft, fifth-
degree assault, and disorderly conduct must be vacated because they are lesser-included
offenses of his first-degree aggravated robbery conviction. 1 Salim did not raise this issue
in the district court. Generally, this court does not consider issues that were not presented
to the district court. Roby v. State, 547 N.W.2d 354, 356–57 (Minn. 1996). The supreme
court, however, has “held that an appellant does not waive claims of multiple convictions
or sentences by failing to raise the issue at the time of sentencing.” Spann v. State, 740
N.W.2d 570, 573 (Minn. 2007); see also Ture v. State, 353 N.W.2d 518, 523 (Minn. 1984)
(noting that a defendant cannot waive objection to Double Jeopardy violations). Thus,
Salim has not forfeited this issue and we will address the merits.
Whether a crime is a lesser-included offense is a question of law that this court
reviews de novo. State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012). Minnesota Statutes
section 609.04, subdivision 1, provides:
Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both. An included offense may be any of the following: (1) A lesser degree of the same crime; or (2) An attempt to commit the crime charged; or (3) An attempt to commit a lesser degree of the same crime; or (4) A crime necessarily proved if the crime charged were proved; or (5) A petty misdemeanor necessarily proved if the misdemeanor charge were proved.
1 Salim does not challenge his formal adjudicated conviction of interference with a 911 call.
10 Minn. Stat. § 609.04, subd. 1 (2014). 2
“To determine whether an offense is an included offense falling under [section
609.04], a court examines the elements of the offense instead of the facts of the particular
case.” State v. Mitchell, 881 N.W.2d 558, 562 (Minn. App. 2016) (alteration in original),
review denied (Minn. Aug. 23, 2016). “An offense is ‘necessarily included’ in a greater
offense if it is impossible to commit the greater offense without committing the lesser
offense.” State v. Bertsch, 707 N.W.2d 660, 664 (Minn. 2006). A crime is not a lesser
included offense if “each crime requires proof of an element that the other does not.”
Mitchell, 881 N.W.2d at 562.
This court must reverse and remand with instructions to vacate a formal adjudicated
conviction on a lesser-included offense. State v. Pflepsen, 590 N.W.2d 759, 767 (Minn.
1999). In such cases, this court’s decision leaves the guilty verdict “in place” in the event
that the adjudication of guilt on the greater offense is later vacated. State v. Crockson, 854
N.W.2d 244, 248 (Minn. App. 2014) (citing State v. LaTourelle, 343 N.W.2d 277, 284
(Minn. 1984)), review denied (Minn. Dec. 16, 2014).
The first step in the lesser-included analysis is identifying Salim’s convictions. The
supreme court has “long recognized that the ‘conviction’ prohibited by [section 609.04] is
not a guilty verdict, but is rather a formal adjudication of guilt.” Pflepsen, 590 N.W.2d at
2 Minnesota Statutes section 609.04 is distinct from section 609.035, which addresses punishment for multiple convictions. Minn. Stat. § 609.035, subd. 1 (2016). Section 609.035 prohibits “imposition of two separate sentences for convictions involving a single course of conduct.” State v. Jones, 848 N.W.2d 528, 534 (Minn. 2014). Here, compliance with section 609.035 is not at issue because the district court imposed a sentence only on the greater offense of first-degree aggravated robbery.
11 767. Appellate courts “typically look to the official judgment of conviction, which
generally appears as a separate entry in the file, as conclusive evidence of whether an
offense has been formally adjudicated.” Id.
Here, the district court’s November 2015 written sentencing order directs entry of
judgment formally adjudicating Salim convicted of first-degree aggravated robbery, simple
robbery, theft, interference with a 911 call, two counts of fifth-degree assault, and
disorderly conduct (brawling or fighting). The state concedes that simple robbery and theft
are lesser-included offenses of first-degree aggravated robbery. But the state argues that
Salim’s two fifth-degree assault and disorderly conduct convictions should remain
adjudicated. We will address each of the four contested adjudications of guilt in turn.
A. Simple Robbery
Salim argues, and the state concedes, that simple robbery is a lesser-included
offense of first-degree aggravated robbery. We agree. A simple robbery is “necessarily
included” in aggravated robbery because “it is impossible to commit” an aggravated
robbery without committing a simple robbery. Bertsch, 707 N.W.2d at 664; see State v.
Oksanen, 276 Minn. 103, 105–06, 149 N.W.2d 27, 29 (1967) (“[O]ne must be guilty of
simple robbery before one can be guilty of aggravated robbery. It is thus clear that simple
robbery is a lesser and included offense within the crime of aggravated robbery.”).
Accordingly, we reverse Salim’s adjudicated conviction of simple robbery and remand to
the district court with instructions to issue an order vacating the adjudicated conviction
consistent with this opinion.
12 B. Theft
Salim argues, and the state concedes, that theft is a lesser-included offense of first-
degree aggravated robbery. We agree. It is well-established in Minnesota caselaw that theft
is a lesser-included offense of aggravated robbery. State v. Coleman, 373 N.W.2d 777, 781
(Minn. 1985); see also State v. McClenton, 781 N.W.2d 181, 187–88 (Minn. App. 2010),
review denied (Minn. June 29, 2010) (applying Coleman). 3 Accordingly, we reverse
Salim’s adjudicated conviction of theft and remand to the district court with instructions to
issue an order vacating the adjudicated conviction consistent with this opinion.
C. Fifth-Degree Assault
Fifth-degree assault is defined as: “Whoever does any of the following commits an
assault and is guilty of a misdemeanor: (1) commits an act with intent to cause fear in
another of immediate bodily harm or death; or (2) intentionally inflicts or attempts to inflict
bodily harm upon another.” Minn. Stat. § 609.224, subd.1 (2014). Salim was convicted of
two counts of fifth-degree assault.
Salim argues that, because fifth-degree assault is a lesser-included offense of simple
robbery, it is also a lesser-included offense of first-degree aggravated robbery. The state
counters, arguing that fifth-degree assault is not a lesser-included offense of aggravated
3 We note that the issues in Coleman and McClenton were whether the district court erred in declining to instruct the jury on a lesser-included offense of the charged offense. Coleman, 373 N.W.2d at 780; McClenton, 781 N.W.2d at 186–87. In contrast, this case concerns whether Salim’s adjudicated convictions should be vacated as impermissible lesser-included offenses of a greater adjudicated conviction. Nonetheless, Coleman and McClenton are apposite because they apply Minn. Stat. § 609.04, subd. 1, and use the same analysis for determining a lesser-included offense.
13 robbery because “fifth-degree assault has elements that are not required for a robbery
conviction.”
For support, Salim relies on State v. Stanifer, in which this court held that fifth-
degree assault is a lesser-included offense of simple robbery. 382 N.W.2d 213, 220 (Minn.
App. 1986). Stanifer reasoned “that proof of the use or threatened imminent use of force
against a person in a prosecution for simple robbery necessarily proves a fifth-degree
assault, as that crime is statutorily defined. Simple robbery is basically a theft accomplished
by means of an assaultive act.” Id. (quotation omitted). Additionally, as already discussed,
caselaw establishes that first-degree aggravated robbery without a theft is an assault.
Coleman, 373 N.W.2d at 781; McClenton, 781 N.W.2d at 187–88. Accordingly, Stanifer,
Coleman, and McClenton support Salim’s position that fifth-degree assault is a lesser-
included offense of first-degree aggravated robbery.
The state contends that Stanifer should be overruled because “the elements of a
simple robbery do not include either (1) intending to cause fear in another of immediate
bodily harm or death, or (2) intentionally inflicting or attempting to inflict bodily harm.”
In sum, the state contends that force can be used without intending to inflict harm or
intending to create fear of immediate bodily harm. The state relies on the Stanifer
dissenting opinion, which stated that “the force required for simple robbery does not
necessarily constitute an assault.” Stanifer, 382 N.W.2d at 220 (Foley, J., concurring in
part, dissenting in part). The dissent reasoned that “[t]he force required in robbery must
only be enough to acquire another’s property from their person or presence, while the force
14 required in the assault must intend or cause another to fear immediate[] bodily harm.” Id. 4
This court will overrule its own precedent only if provided with “a compelling reason” to
do so. State v. Martin, 773 N.W.2d 89, 98 (Minn. 2009). “We are extremely reluctant to
overrule our precedent under principles of stare decisis.” Id. (quotation omitted).
The state’s argument that Stanifer should be overruled is not persuasive for two
reasons. First, since Stanifer was decided in 1986, it has not been called into question by
any subsequent decision of this court or the supreme court. Notably, this court relied on
Stanifer in a published decision as recently as 2010 in McClenton, 781 N.W.2d at 188.
Second, this case is unlike Stanifer, where the greater offense was simple robbery
because Salim’s greater offense is first-degree aggravated robbery. The state does not
provide a compelling reason why this case, which involves a different greater offense, is
the appropriate case for overruling Stanifer. Importantly, the state fails to address Coleman
and McClenton, which expressly held that first-degree aggravated robbery is an assault
plus a theft. Coleman, 373 N.W.2d at 781; McClenton, 781 N.W.2d at 187–88. Because
Stanifer-Coleman-McClenton establish that fifth-degree assault is a lesser-included offense
of simple robbery, and simple robbery is a lesser-included offense of aggravated robbery,
we conclude that a person cannot commit a first-degree aggravated robbery involving
4 The Stanifer dissent relied on an advisory committee comment to the simple robbery statute. 382 N.W.2d at 220. The comment provides illustrations of “use of force” sufficient to support a simple robbery conviction, including “[t]he defendant knocks the victim unconscious and then takes his wallet”; “[t]he defendant pushes the victim against a wall and takes his wallet”; and “[t]he defendant points a gun at victim and either demands his wallet or takes it from him.” Minn. Stat. § 609.24 advisory cmt. In Salim’s appeal, the state argues that these illustrations show that “fifth-degree assault has elements that are not required for a robbery conviction.”
15 infliction of bodily harm without committing an assault. Accordingly, we decline to
overrule Stanifer.
Following Stanifer, Coleman, and McClenton, we conclude that fifth-degree assault
is a lesser-included offense of first-degree aggravated robbery involving infliction of bodily
harm. We reverse both of Salim’s adjudicated convictions of fifth-degree assault and
remand to the district court with instructions to issue an order vacating the adjudicated
convictions consistent with this opinion.
D. Disorderly Conduct
Salim was convicted of disorderly conduct under Minn. Stat. § 609.72, subd. 1(1):
Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:
(1) engages in brawling or fighting.
Minn. Stat. § 609.72, subd. 1(1) (2014).
Salim argues that disorderly conduct (brawling or fighting) is a lesser-included
offense of first-degree aggravated robbery. His argument is multi-pronged. Salim contends
that: (1) disorderly conduct (brawling and fighting) is a lesser-included offense of fifth-
degree assault involving infliction of bodily harm; (2) fifth-degree assault is a lesser-
included offense of simple robbery; and (3) simple robbery is a lesser-included offense of
first-degree aggravated robbery.
As discussed above, the second and third prongs of Salim’s argument are accurate
statements of law. Thus, we consider whether disorderly conduct (brawling and fighting)
16 is a lesser-included offense of fifth-degree assault involving infliction of bodily harm.
Without citing legal authority, Salim contends that “[b]rawling and fighting is surely the
intentional infliction of bodily harm,” and, therefore, it is a lesser-included offense of fifth-
degree assault. The state argues that “brawling does not necessarily involve any physical
fighting.”
Salim’s argument lacks merit because he focuses on one element of disorderly
conduct—brawling or fighting—but ignores that disorderly conduct also requires
knowledge that the defendant’s conduct “will, or will tend to, alarm, anger or disturb others
or provoke an assault or breach of the peace.” Minn. Stat. § 609.72, subd. 1(1). The
knowledge requirement in the disorderly conduct statute is not part of the fifth-degree
assault statute. Because disorderly conduct requires proof of an element that fifth-degree
assault does not, disorderly conduct is not a lesser-included offense of fifth-degree assault.
In conclusion, for the reasons stated, we affirm the formal adjudicated convictions
of first-degree aggravated robbery and disorderly conduct. We reverse the formal
adjudicated convictions of simple robbery, theft, and both adjudicated convictions of fifth-
degree assault, and remand to the district court with instructions to issue an order vacating
the adjudicated convictions consistent with this opinion. Because Salim did not challenge
his conviction of interfering with a 911 call, we leave that conviction undisturbed.
Affirmed in part, reversed in part, and remanded.