IN COURT OF APPEALS
Robert Andrew Lee Kelley,
Filed June 26, 2007
Ramsey County District Court
File No. K9-05-1005
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Steven P. Russett,
Assistant Public Defender,
Considered and decided by Minge, Presiding Judge; Wright, Judge; and Collins, Judge.
S Y L L A B U S
Minn. Stat. § 609.2231, subd. 1 (2004), does not require a physical assault in addition to “intentionally throw[ing] or otherwise transfer[ing] bodily fluids or feces at or onto the officer” to constitute a felony.
O P I N I O N
Appellant Robert Andrew Lee Kelley challenges his felony assault-in-the-fourth-degree conviction under Minn. Stat. § 609.2231, subd. 1 (2004), for spitting at a police officer, arguing that an independent physical assault is also required in order to constitute a felony offense. We affirm.
On March 18, 2005, a police officer transported appellant Robert Andrew Lee Kelley and another man to the detoxification unit because the men were noticeably and publicly intoxicated. Both detainees yelled profanities, insults, and threats of bodily injury at the officer while enroute to the jail. The men also spat at the officer, although neither successfully made contact.
The state charged appellant with felony fourth-degree assault in violation of Minn. Stat. § 609.2231, subd. 1 (2004). Prior to trial, appellant moved to dismiss for lack of probable cause, arguing that “spitting at a police officer, unless accompanied by a physical assault, does not constitute felony fourth-degree assault.” The district court denied the motion, and appellant submitted his case for a bench trial on a stipulated record. The district court found appellant guilty and sentenced him to a stayed year-and-a-day prison term and three years’ probation. This appeal follows.
Does Minn. Stat. § 609.2231, subd. 1 (2004), require a physical assault in addition to “intentionally throw[ing] or otherwise transfer[ing] bodily fluids or feces at or onto the officer” to constitute a felony?
Statutory construction is a question
of law, which we review de novo. State v. Murphy, 545 N.W.2d 909, 914 (
We are “to read and construe a
statute as a whole and must interpret each section in light of the surrounding
sections to avoid conflicting interpretations.”
Here, the challenged statutory language states:
Whoever physically assaults a peace officer . . . when that officer is effecting a lawful arrest or executing any other duty imposed by law is guilty of a gross misdemeanor . . . . If the assault inflicts demonstrable bodily harm or the person intentionally throws or otherwise transfers bodily fluids or feces at or onto the officer, the person is guilty of a felony.
Appellant presents a question of first impression. Appellant argues that the language is not ambiguous and that by the statute’s plain language, a person must not only intentionally transfer bodily fluids or feces at or onto a peace officer, but also commit a separate physical assault against the officer to be guilty of felony fourth-degree assault. He asserts that the second sentence of the statute enhances the first by creating two conditions that increase a gross-misdemeanor “physical assault” to a felony: (1) if “the physical assault” referred to in the first sentence inflicts demonstrable bodily harm, or (2) if “the person” referenced in the second sentence not only commits “the physical assault” referred to in the first sentence but also “intentionally throws or otherwise transfers bodily fluids or feces at or onto the officer.” Appellant argues that the second sentence provides “enhancement factors” and does not “creat[e] separate and distinct crimes.” We disagree.
The evolution of the statutory
language evinces the legislature’s intent that the act of “intentionally
throwing or otherwise transferring bodily fluids or feces at or onto the
officer” is a felony and does not additionally require an independent physical
assault. “Assault” is defined generally,
and in the fifth-degree assault statute, as “(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 (2004);
Bodily fluids and feces can carry
and transmit a variety of diseases. The
transfer of bodily fluids or feces at or onto another can cause physical pain
or injury, illness, or otherwise impair one’s physical condition. Intentionally throwing or transferring bodily
fluids or feces at or onto another person therefore satisfies the requirements
of simple, fifth-degree assault.
In 1998, Minn. Stat. § 609.2231,
subd. 1, providing elevated penalties for certain assaults committed against
peace officers, read, in part, “[w]hoever assaults a peace officer . . . when
that officer is effecting a lawful arrest or executing any other duty imposed
by law and inflicts demonstrable bodily harm is guilty of a felony.”
In 2000, the fourth-degree assault statute was changed to read, “Whoever physically assaults a peace officer . . . when that officer is effecting a lawful arrest or executing any other duty imposed by law is guilty of a gross misdemeanor . . . . If the assault inflicts demonstrable bodily harm, the person is guilty of a felony.” Minn. Stat. § 609.2231, subd. 1 (2000) (emphasis added). By this amendment, the legislature elevated an assault on a police officer performing his duties that does not result in demonstrable bodily harm from a misdemeanor to a gross misdemeanor under the fourth-degree assault statute, removing it from the fifth-degree misdemeanor-assault statute. In 2000, the act of spitting at a police officer performing his duties would have been a gross misdemeanor under the fourth-degree assault statute rather than a misdemeanor fifth-degree assault.
In 2004, the legislature again amended the statute to its current form. These successive statutory amendments show that the legislature has progressively increased punishments for various assaults against peace officers over the past ten years. Appellant’s argument that the legislature intended that a person not only transfer bodily fluids or feces at or onto a peace officer but also commit a separate physical assault on the officer runs counter to the legislature progressively increasing the severity of punishment for assaults against peace officers.
While we recognize that appellant’s interpretation would increase the punishment for intentionally throwing or otherwise transferring bodily fluids or feces onto or at a peace officer if the perpetrator also committed an independent physical assault on the officer, we do not agree that the legislature intended only the compound conduct to be punishable as a felony.
Appellant argues that the difference in wording between subdivisions 1 and 3 of Minn. Stat. § 609.2231 is significant and supports his interpretation. We disagree. Subdivision 3 states:
Whoever commits either of the following acts against an employee of a correctional facility . . . or against a probation officer or other qualified person employed in supervising offenders while the employee, officer, or person is engaged in the performance of a duty imposed by law, policy, or rule is guilty of a felony . . . :
(1) assaults the employee and inflicts demonstrable bodily harm; or
(2) intentionally throws or otherwise transfers bodily fluids or feces at or onto the employee.
The legislature added the specific
felonious prohibition against transferring bodily fluids or feces at or onto a
peace officer under subdivision 1 in 2004, after it prohibited the same conduct
under subdivision 3, but chose to structure the statute differently than it did
in subdivision 3.
We also note that subdivisions 3 and 3a prohibit as felonies the intentional transfer of bodily fluids or feces at or onto corrections employees, probation officers, and certain secure-treatment-facility workers. Subdivisions 1, 3, and 3a prohibit similar conduct against various employees whose jobs require daily interaction with people in custody or under close supervision of the state. And subdivision 1 protects those who engage such people in the least-restrictive environment. The legislature has chosen to protect these public servants while conducting their business from having bodily fluids or feces intentionally thrown or otherwise transferred at or onto them by making such conduct a felony.
Reading and construing the statute as a harmonious whole, as we must, we see no indication that the legislature intended that the conduct proscribed under subdivision 1 toward peace officers carry a lesser penalty than the same conduct proscribed under subdivisions 3 or 3a toward corrections employees, probation officers, and certain secure-treatment-facility workers. We conclude that under Minn. Stat. § 609.2231, subd. 1, the conduct of spitting at a police officer is by itself a felony offense.
Appellant cites CRIMJIG 13.22 in
support of his position. 10
Finally, appellant asserts that if
legislative history must be consulted to determine the legislature’s intent,
the statute is necessarily void for vagueness.
We disagree. Courts rely on
legislative history as only one tool to aid in discerning legislative intent. See
Minn. Stat. § 645.16-.17 (2004); see also
D E C I S I O N
We conclude that the statute’s language is not ambiguous. Generally, physical assaults on peace officers are gross misdemeanors. But if the assault results in demonstrable bodily harm or if the assault is in the form of an intentional throwing or otherwise transferring of bodily fluids or feces at or onto an officer, then the assault is a felony. Even if the statute’s language is ambiguous, legislative history supports our interpretation. The conduct of spitting at a police officer was correctly charged as a felony.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.