This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Joel Guerrero,



Filed March 19, 2002


Harten, Judge


Clay County District Court

File No. K4-00-2061


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Lisa Nelson Borgen, Clay County Attorney, Brian J. Melton, Assistant County Attorney, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561-0280 (for respondent)


John M. Stuart, State Public Defender, Ann Brom McCaughan, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Anderson, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant challenges his conviction of fifth-degree assault, arguing that the evidence is insufficient to support it and that the district court erred in refusing to instruct the jury on the purportedly lesser-included offense of disorderly conduct.  We affirm.



            On 21 October 2000, at approximately 9:00 p.m., the Clay County Sheriff’s Department dispatched deputies to Jake’s Bar in Sabin, Minnesota, regarding an altercation.  When Deputy David Brager arrived on the scene, he observed a male individual in a vehicle parked in front of the bar.  It appeared to Brager that the individual, later identified as appellant Joel Guerrero, was intoxicated.  In response to Brager’s inquiry, appellant replied that he had not been involved in the altercation.

Before Brager arrived, Kent Brandt, who was working at Jake’s as a bartender and bouncer, was in the back of the bar when another bartender yelled for his assistance.  Brandt came to the front of the bar and observed approximately 12 individuals who were swearing and pushing back and forth.  After “yelling for them to stop,” Brandt started breaking up the crowd, grabbing appellant because “[h]e was closest to the door.”  Brandt had appellant in a “bear hug around both his arms,” took him outside the bar, and released him.  When Brandt turned, he was punched above his right eye.  Brandt testified that he and appellant were the only people outside the bar at this point and that “there’s no doubt in [his] mind that [appellant] is the one that hit [him].”  Brandt put his hand to his eye and felt blood running down the side of his head, his neck, and onto his shirt. 

Appellant testified that another bar patron, Jeremy Hanson, insulted him with racial slurs, hit him, and burned him with a cigarette.  Appellant testified that he defended himself and a fight ensued.  Appellant testified that somebody, he did not know who, grabbed him from behind and escorted him to the door.  Appellant testified that he did not know whether or not he hit Brandt.

Appellant was charged with assault in the fifth degree in violation of Minn. Stat.   § 609.224, subd. 1 (2) (2000).  On 25 April 2001, his jury trial commenced.  The district court denied appellant’s request to instruct the jury on disorderly conduct as a lesser-included offense.  The jury found appellant guilty of fifth-degree assault.  This appeal followed.


1.         Sufficiency of the Evidence

            Appellant argues that the evidence is insufficient to support his conviction of fifth-degree assault.  In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach their verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume 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).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Minn. Stat. § 609.224, subd. 1(2) (2000), provides that one who “intentionally inflicts or attempts to inflict bodily harm upon another” commits fifth-degree assault.      “‘Bodily harm’ means physical pain or injury, illness, or any impairment of physical condition.”  Minn. Stat. § 609.02, subd. 7 (2000).

 [A]n assault involving infliction of injury of some sort requires no abstract intent to do something further, only an intent to do the prohibited physical act of committing a battery.


State v. Lindahl, 309 N.W.2d 763, 767 (Minn. 1981).  Brandt suffered injury when he was struck above the eye.  Viewing the evidence in the light most favorable to the verdict, a reasonable jury could have concluded that appellant swung his fist with the intention of inflicting “bodily harm upon another.”  We conclude that there is sufficient evidence to support appellant’s conviction of fifth-degree assault.

2.         Jury Instructions

Appellant also contends that the district court erred in refusing to instruct the jury on the misdemeanor offense of disorderly conduct, which he claims is a lesser-included offense within fifth-degree assault. 

The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court, but where the evidence warrants an instruction, the trial court must give it.


Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (citations omitted).  “We use a two-part test to determine whether the jury should have been instructed on a lesser-included offense.”  State v. Chambers, 589 N.W.2d 466, 478 (Minn. 1999).

A defendant is entitled to an instruction on the elements of a lesser included offense if (1) the offense in question is an “included” offense, as set forth in Minn. Stat. § 609.04, subd. 1 * * *, and (2) there is a rational basis for the jury to acquit a defendant of a charged offense and to convict him of the lesser offense.


State v. Pelawa, 590 N.W.2d 142, 147 (Minn. App. 1999) (citing State v. Griffin, 518 N.W.2d 1, 3 (Minn. 1994)), review denied (Minn. Apr. 28, 1999).

In determining whether a rational basis exists to acquit on the greater offense and convict on the lesser, the district court is not obliged to credit the defendant’s version of events.


State v. Bahri, 514 N.W.2d 580, 583 (Minn. App. 1994) (citing State v. Patch, 329 N.W.2d 833, 836 (Minn. 1983)), review denied (Minn. June 15, 1994).

            Under Minn. Stat. § 609.04, subd. 1 (2000), 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.


The Minnesota Supreme Court has held that in a prosecution for aggravated assault, the district court properly denied the defendant’s request to submit disorderly conduct as a lesser-included offense, because “[n]one of these clauses [from Minn. Stat. § 609.04, subd. 1,] apply.”  State v. Goar, 249 N.W.2d 894, 895, 311 Minn. 560, 562 (1977).

“An offense is a lesser-included offense if one cannot commit the greater offense without also committing the lesser.”  Bahri, 514 N.W.2d at 583 (citing State v. Whisonant, 331 N.W.2d 766, 769 (Minn. 1983)).

In determining whether an offense is a lesser-included offense, the court looks at the elements of the offense, not the facts of the particular case.


Bellcourt, 390 N.W.2d at 273 (citation omitted).  Minn. Stat. § 609.224, subd. 1(2), provides that one who “intentionally inflicts or attempts to inflict bodily harm upon another” commits fifth-degree assault.  The disorderly conduct statute, Minn. Stat. § 609.72, subd. 1 (2000), provides:

            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; or


(2)       Disturbs an assembly or meeting, not unlawful in its character; or


(3)       Engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.


Because it is possible to commit the charged offense of fifth-degree assault without committing disorderly conduct, disorderly conduct is not necessarily included within the charged offense.  See State v. Specht, 359 N.W.2d 612, 613 (Minn. 1984) (holding that district court properly refused to submit instruction to the jury on lesser offenses “[s]ince one can commit the charged offenses without committing either of the lesser offenses”).  Accordingly, we conclude that the district court did not abuse its discretion in refusing to instruct the jury on disorderly conduct.