This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-1455
State of Minnesota, Respondent,
vs.
Travis Loren Clemmensen, Appellant.
Filed October 3, 2016 Affirmed in part and vacated in part Peterson, Judge
Steele County District Court File No. 74-CR-14-1965
Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St. Paul, Minnesota; and
Dan McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Hooten, Judge; and Bratvold,
Judge.
UNPUBLISHED OPINION
PETERSON, Judge
In this appeal from convictions of third-degree assault and domestic assault,
appellant argues that (1) his third-degree-assault conviction must be reversed because the state did not prove that the assault resulted in substantial bodily harm; and (2) his domestic-
assault conviction must be vacated because domestic-assault is a lesser-included offense
of third-degree assault, or his sentence for domestic assault must be vacated because both
offenses were committed during a single behavioral incident. We affirm appellant’s
convictions and vacate his sentence for domestic assault.
FACTS
Following an argument between appellant Travis Loren Clemmensen and his
domestic partner L.J., Clemmensen repeatedly punched L.J. in the face and chest, strangled
him, and tackled him to the ground. The assault caused damage to L.J.’s denture and
glasses and injuries to his face, gums, head, and knee. The knee injury resulted in L.J.’s
knee popping out of its socket, which caused L.J. to fall to the ground if he attempted to
stand for more than a very brief time. For five months after the assault, L.J. used a cane
and a full-immobilization leg brace. At the time of trial, L.J.’s knee was still popping out
of its socket, and his mobility was limited in that he could not ascend stairs in the normal
manner and, instead, had to put both feet on the same stair before climbing to the next stair.
A jury found Clemmensen guilty of one count of third-degree assault and one count
of misdemeanor domestic assault. The district court stayed imposition of sentence for the
third-degree-assault conviction, placed Clemmensen on probation for up to five years as a
condition of the stay, and imposed a 90-day sentence for the domestic-assault conviction.
2 DECISION
I.
Third-degree-assault conviction
An element of third-degree assault is that the assault “inflicts substantial bodily
harm.” Minn. Stat. §609.223, subd. 1 (2014). Substantial bodily harm includes a “bodily
injury” that “causes a temporary but substantial loss or impairment of the function of any
bodily member.” Minn. Stat. § 609.02, subd. 7a (2014). This court has “noted that the
word ‘substantial,’ as used in the phrase ‘substantial bodily harm,’ is a term employed in
common usage and legal proceedings to mean ‘considerable size or amount.’” State v.
Larkin, 620 N.W.2d 335, 337 n.2 (Minn. App. 2001) (quotation omitted).
Clemmensen argues that the evidence was insufficient to prove that L.J. suffered
substantial bodily harm. When considering a claim of insufficient evidence, this court
conducts “a painstaking analysis of the record to determine whether the evidence, when
viewed in a light most favorable to the conviction,” was sufficient to allow the fact-finder
to reach the verdict that it reached. State v. Caine, 746 N.W.2d 339, 356 (Minn. 2008)
(quotation omitted). We must assume that the fact-finder believed the state’s witnesses
and disbelieved any contrary evidence. State v. Porte, 832 N.W.2d 303, 309 (Minn. App.
2013). We will not disturb the verdict if the fact-finder, acting with due regard for the
presumption of innocence and the requirement of proof beyond a reasonable doubt, could
reasonably conclude that the defendant was guilty of the crime charged. Bernhardt v. State,
684 N.W.2d 465, 476-77 (Minn. 2004).
3 Evidence presented at trial demonstrated that, following the assault, L.J. was
initially unable to stand for more than a very brief time because his knee would pop out
and cause him to fall. For five months after the assault, he wore a full-immobilization
brace and walked with a cane. At the time of trial, L.J.’s knee continued to pop out of
place, and he had limited mobility in that he could not climb stairs in the normal manner.
This evidence was sufficient to permit the jury to conclude that L.J. suffered substantial
bodily harm. The inability to stand for more than a very brief time is a considerable
impairment of the function of a person’s leg. In addition to this considerable, temporary
impairment, even after five months of using a full-immobilization brace and a cane, L.J.
continued to have limited mobility at the time of trial. Clemmensen disputes the evidence
that L.J.’s knee was immobilized, but this court must view the evidence in the light most
favorable to the verdict.
Because the evidence of injury to L.J.’s knee was sufficient to prove substantial
bodily harm, we need not address the parties’ arguments regarding L.J.’s other injuries.
II.
Domestic-assault conviction
Clemmensen argues that his domestic-assault conviction must be vacated because
domestic assault is a lesser-included offense of third-degree assault. If proof of one crime
necessarily proves a second crime or the second crime is a lesser degree of the first crime,
the second crime is a lesser-included offense. See Minn. Stat. § 609.04, subd. 1(1), (4)
(2014) (defining an included offense as “[a] lesser degree of the same crime” or “[a] crime
4 necessarily proved if the charged crime were proved”). We do not agree that domestic
assault is a lesser-included offense of third-degree assault under either of these definitions.
Lesser degree of same crime
Citing State v. Hackler, 532 N.W.2d 559, 559 (Minn. 1995), Clemmensen argues
that misdemeanor domestic assault is a lesser degree of third-degree assault because
misdemeanor domestic assault is a lesser degree of a multi-tier statutory scheme dealing
with a particular subject. But misdemeanor domestic assault is not part of a multi-tier
statutory scheme dealing with assault. The legislature created a multi-tier statutory scheme
dealing with assault in 1979 when it enacted Minn. Stat. § 609.221 (assault in the first
degree), Minn. Stat. § 609.222 (assault in the second degree), Minn. Stat. § 609.223 (assault
in the third degree), and Minn. Stat. § 609.224 (assault in the fourth degree). 1979 Minn.
Laws ch. 258, §§ 4-7 at 550. The legislature later added a fifth degree of assault to this
multi-tier statutory scheme. 1983 Minn. Laws ch. 169, §§ 1, 2 at 424. The legislature,
however, did not include domestic assault in this multi-tier scheme.
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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 A15-1455
State of Minnesota, Respondent,
vs.
Travis Loren Clemmensen, Appellant.
Filed October 3, 2016 Affirmed in part and vacated in part Peterson, Judge
Steele County District Court File No. 74-CR-14-1965
Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St. Paul, Minnesota; and
Dan McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Hooten, Judge; and Bratvold,
Judge.
UNPUBLISHED OPINION
PETERSON, Judge
In this appeal from convictions of third-degree assault and domestic assault,
appellant argues that (1) his third-degree-assault conviction must be reversed because the state did not prove that the assault resulted in substantial bodily harm; and (2) his domestic-
assault conviction must be vacated because domestic-assault is a lesser-included offense
of third-degree assault, or his sentence for domestic assault must be vacated because both
offenses were committed during a single behavioral incident. We affirm appellant’s
convictions and vacate his sentence for domestic assault.
FACTS
Following an argument between appellant Travis Loren Clemmensen and his
domestic partner L.J., Clemmensen repeatedly punched L.J. in the face and chest, strangled
him, and tackled him to the ground. The assault caused damage to L.J.’s denture and
glasses and injuries to his face, gums, head, and knee. The knee injury resulted in L.J.’s
knee popping out of its socket, which caused L.J. to fall to the ground if he attempted to
stand for more than a very brief time. For five months after the assault, L.J. used a cane
and a full-immobilization leg brace. At the time of trial, L.J.’s knee was still popping out
of its socket, and his mobility was limited in that he could not ascend stairs in the normal
manner and, instead, had to put both feet on the same stair before climbing to the next stair.
A jury found Clemmensen guilty of one count of third-degree assault and one count
of misdemeanor domestic assault. The district court stayed imposition of sentence for the
third-degree-assault conviction, placed Clemmensen on probation for up to five years as a
condition of the stay, and imposed a 90-day sentence for the domestic-assault conviction.
2 DECISION
I.
Third-degree-assault conviction
An element of third-degree assault is that the assault “inflicts substantial bodily
harm.” Minn. Stat. §609.223, subd. 1 (2014). Substantial bodily harm includes a “bodily
injury” that “causes a temporary but substantial loss or impairment of the function of any
bodily member.” Minn. Stat. § 609.02, subd. 7a (2014). This court has “noted that the
word ‘substantial,’ as used in the phrase ‘substantial bodily harm,’ is a term employed in
common usage and legal proceedings to mean ‘considerable size or amount.’” State v.
Larkin, 620 N.W.2d 335, 337 n.2 (Minn. App. 2001) (quotation omitted).
Clemmensen argues that the evidence was insufficient to prove that L.J. suffered
substantial bodily harm. When considering a claim of insufficient evidence, this court
conducts “a painstaking analysis of the record to determine whether the evidence, when
viewed in a light most favorable to the conviction,” was sufficient to allow the fact-finder
to reach the verdict that it reached. State v. Caine, 746 N.W.2d 339, 356 (Minn. 2008)
(quotation omitted). We must assume that the fact-finder believed the state’s witnesses
and disbelieved any contrary evidence. State v. Porte, 832 N.W.2d 303, 309 (Minn. App.
2013). We will not disturb the verdict if the fact-finder, acting with due regard for the
presumption of innocence and the requirement of proof beyond a reasonable doubt, could
reasonably conclude that the defendant was guilty of the crime charged. Bernhardt v. State,
684 N.W.2d 465, 476-77 (Minn. 2004).
3 Evidence presented at trial demonstrated that, following the assault, L.J. was
initially unable to stand for more than a very brief time because his knee would pop out
and cause him to fall. For five months after the assault, he wore a full-immobilization
brace and walked with a cane. At the time of trial, L.J.’s knee continued to pop out of
place, and he had limited mobility in that he could not climb stairs in the normal manner.
This evidence was sufficient to permit the jury to conclude that L.J. suffered substantial
bodily harm. The inability to stand for more than a very brief time is a considerable
impairment of the function of a person’s leg. In addition to this considerable, temporary
impairment, even after five months of using a full-immobilization brace and a cane, L.J.
continued to have limited mobility at the time of trial. Clemmensen disputes the evidence
that L.J.’s knee was immobilized, but this court must view the evidence in the light most
favorable to the verdict.
Because the evidence of injury to L.J.’s knee was sufficient to prove substantial
bodily harm, we need not address the parties’ arguments regarding L.J.’s other injuries.
II.
Domestic-assault conviction
Clemmensen argues that his domestic-assault conviction must be vacated because
domestic assault is a lesser-included offense of third-degree assault. If proof of one crime
necessarily proves a second crime or the second crime is a lesser degree of the first crime,
the second crime is a lesser-included offense. See Minn. Stat. § 609.04, subd. 1(1), (4)
(2014) (defining an included offense as “[a] lesser degree of the same crime” or “[a] crime
4 necessarily proved if the charged crime were proved”). We do not agree that domestic
assault is a lesser-included offense of third-degree assault under either of these definitions.
Lesser degree of same crime
Citing State v. Hackler, 532 N.W.2d 559, 559 (Minn. 1995), Clemmensen argues
that misdemeanor domestic assault is a lesser degree of third-degree assault because
misdemeanor domestic assault is a lesser degree of a multi-tier statutory scheme dealing
with a particular subject. But misdemeanor domestic assault is not part of a multi-tier
statutory scheme dealing with assault. The legislature created a multi-tier statutory scheme
dealing with assault in 1979 when it enacted Minn. Stat. § 609.221 (assault in the first
degree), Minn. Stat. § 609.222 (assault in the second degree), Minn. Stat. § 609.223 (assault
in the third degree), and Minn. Stat. § 609.224 (assault in the fourth degree). 1979 Minn.
Laws ch. 258, §§ 4-7 at 550. The legislature later added a fifth degree of assault to this
multi-tier statutory scheme. 1983 Minn. Laws ch. 169, §§ 1, 2 at 424. The legislature,
however, did not include domestic assault in this multi-tier scheme.
Instead, the legislature separately addressed domestic assault when it enacted Minn.
Stat. § 609.2242, which does not assign any degree to domestic assault. 1995 Minn. Laws
ch. 259, art. 3, § 15 at 2783-84. Within the domestic-assault statute, the legislature created
a separate multi-tier statutory scheme that treats a domestic-assault offense as a mis-
demeanor, Minn. Stat. § 609.2242, subd. 1, a gross misdemeanor, Minn. Stat. § 609.2242,
subd. 2, or a felony, Minn. Stat. § 609.2242, subd. 4, depending on the number of offense
convictions an offender has within ten years.
5 Necessarily proved
Domestic assault is not necessarily proved if third-degree assault is proved. Unlike
third-degree assault, domestic assault requires proof that the assailant and the victim were
family or household members. See Minn. Stat. §§ 609.223 (third-degree assault), .2242,
subd. 1(2) (domestic assault).
Domestic-assault sentence
Clemmensen correctly argues that his sentence for domestic assault must be vacated
because the domestic assault was committed during the same behavioral incident as the
third-degree assault. See Minn. Stat. § 609.035, subd. 1 (2014) (prohibiting multiple
sentences for conduct that “constitutes more than one offense”). Section 609.035
contemplates that a defendant will be punished for the most serious offense that arises out
of a single behavioral incident. State v. Kebaso, 713 N.W.2d 317, 322 (Minn. 2006). We,
therefore, affirm Clemmensen’s sentence for third-degree assault, which is a felony
offense, and vacate his sentence for misdemeanor domestic assault. See Minn. Stat.
§ 244.11, subd. 2(b) (2014) (on appeal from sentence imposed by district court, court of
appeals may vacate sentence that is inconsistent with statutory requirements).
Affirmed in part and vacated in part.