Misdemeanor Domestic Assault Is Not Lesser Included Offense of Second Degree Assault

State v. Nyagwoka, Minn.Ct.App., 4/3/2017.  The state charged Mr. Nyagwoka with assault in the second degree.  Mr. Nyagwoka decided to have a bench trial, at the end of which the judge had some doubt whether the state had proven its case.  So, on its own the court found mr. Nyagwoka guilty of misdemeanor domestic assault.  Mr. Nyagwoka argued on appeal that misdemeanor domestic assault was not a lesser included offense of assault in the second degree.

The court of appeals agrees.  The court says that misdemeanor domestic assault is not an included offense of second degree assault:

Misdemeanor domestic assault does not constitute an included offense of second degree assault under any of these statutory definitions. Because misdemeanor domestic assault is neither an attempt offense nor a petty misdemeanor, it is not “[a]n attempt to commit the crime charged,” “[a]n attempt to commit a lesser degree of the same crime,” or “[a] petty misdemeanor necessarily proved if the misdemeanor charge were proved.” Id., subd. 1(2)–(3), (5). 

The court also says that misdemeanor domestic assault is not a lesser degree of second degree assault:

Because misdemeanor domestic assault is not a lesser degree of second-degree assault, it is not an included offense under section 609.04, subdivision 1(1). 

And, finally, it is not an offense necessarily proved by proof of second degree assault:

“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) (quotation omitted). “In determining whether one offense necessarily is proved by the proof of another, the trial court must look at the statutory definitions rather than the  facts in a particular case.” State v. Gisege, 561 N.W.2d 152, 156 (Minn. 1997) (quotation omitted). To prove second-degree assault, the state must show that the defendant “assault[ed] another with a dangerous weapon.” Minn. Stat. § 609.222, subd. 1. Misdemeanor domestic assault requires proof that the defendant “intentionally inflict[ed] or attempt[ed] to inflict bodily harm” “against a family or household member.” Minn. Stat. § 609.2242, subd. 1(2). Because second-degree assault does not require proof that the victim is a family or household member, it is possible to commit second-degree assault without also committing misdemeanor domestic assault. Misdemeanor domestic assault therefore is not an included offense under section 609.04, subdivision 1(4).