State of Minnesota, Respondent, vs. Oscar Lee Adams, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-02-1593

State of Minnesota,

Respondent,

vs.

Oscar Lee Adams,

Appellant.

Filed July 15, 2003

Affirmed

Lansing, Judge

Washington County District Court

File No. K7014606

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

Doug Johnson, Washington County Attorney, John W. Fristik, Assistant County Attorney, 14949 - 62nd Street North, P.O. Box 6, Stillwater, MN  55082-0006 (for respondent)

Bradford Colbert, Room 254, 875 Summit Avenue, St. Paul, MN  55105 (for appellant)

            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Oscar Adams was charged and convicted on the single count of fourth-degree assault on a correctional-facility employee.  At the close of trial, the district court denied Adams's request to instruct the jury on the offense of disorderly conduct in addition to fourth-degree assault.  Because disorderly conduct is not a lesser-included offense of fourth-degree assault against a correctional-facility employee, the district court did not err in denying the requested instruction, and we affirm.

F A C T S

            The facts underlying the conviction are undisputed.  Stephen Lilledahl was employed as a licensed practical nurse at the Minnesota Correctional Facility-Stillwater on February 8, 2001.  At 5:00 p.m., Lilledahl began distributing medication to inmates in the segregation unit of the prison.  Inmate Oscar Adams asked Lilledahl if he could have some throat lozenges.  Lilledahl told Adams that he would have to ask his supervisor if he could give Adams the lozenges.  The supervisor told Lilledahl he could not dispense lozenges to Adams without a doctor's order.

            Lilledahl began his second round of medication distribution to the inmates in the segregation unit at 8:30 p.m.  As Lilledahl passed Adams's cell, Adams asked if he could have the lozenges.  Lilledahl told Adams he could not give him lozenges without a doctor's order.  Adams responded by calling Lilledahl a vulgar name.  As Lilledahl continued on his medication rounds, Adams asked Lilledahl to return to his cell.  Lilledahl walked back to Adams's cell, and Adams spat in Lilledahl's face.

            Adams was charged with fourth-degree assault under Minn. Stat. § 609.2231, subd. 3(2) (2000), which prohibits intentionally throwing or otherwise transferring bodily fluids or feces at or onto a correctional-facility employee.  At the conclusion of the testimonial portion of the trial, Adams asked the court to instruct the jury on disorderly conduct.  The district court denied Adams's request, reasoning that fourth-degree assault and disorderly conduct do not have the same elements.  A jury found Adams guilty of fourth-degree assault, and Adams appeals from the conviction, arguing that the district court erred in refusing to give the requested instruction.

D E C I S I O N

A district court must instruct the jury on a lesser-included offense if the offense is an "included" offense as defined by Minn. Stat. § 609.04, and the jury would have a rational basis to acquit the defendant of the greater offense and convict him of the lesser.  State v. Griffin, 518 N.W.2d 1, 3 (Minn. 1994).  A lesser-included offense is (1) a lesser degree of the same crime, (2) an attempt to commit the charged crime, (3) an attempt to commit a lesser degree of the charged crime, (4) a crime necessarily proved if the charged crime were proved, or (5) a petty misdemeanor necessarily proved if a misdemeanor were proved.  Minn. Stat. § 609.04, subd. 1 (2000).

Adams contends that the district court erred in rejecting his request for a jury instruction on disorderly conduct under Minn. Stat. § 609.72, subd. 1(3) (2000).  He maintains that disorderly conduct is a crime necessarily proved if the crime of fourth-degree assault against a correctional-facility employee is proved, and consequently it is a lesser-included offense.  We conclude otherwise.

To determine whether one offense necessarily is proved by the proof of another, we "must look at the statutory definitions rather than the facts in a particular case."  State v. Gayles, 327 N.W.2d 1, 3 (Minn. 1982).  An offense is not a lesser-included offense if "a person can commit the greater offense, as legally defined, without committing the lesser offense, as legally defined."  State v. Kinsky, 348 N.W.2d 319, 326 (Minn. 1984).  Because the analysis relies on statutory interpretation, our review is de novo.  State v. Tomlin, 622 N.W.2d 546, 548 (Minn. 2001).

A person commits a fourth-degree assault against a correctional-facility employee when he "intentionally throws or otherwise transfers bodily fluids or feces at or onto the employee" when the employee is "engaged in the performance of a duty imposed by law, policy, or rule."  Minn. Stat. § 609.2231, subd. 3(2) (2000).  A person commits disorderly conduct when he "[e]ngages in offensive, obscene, abusive, boisterous, or noisy conduct" and "know[s], or ha[s] reasonable grounds to know that it will, or will tend to, alarm, anger or disturbs others[.]"  Minn. Stat. § 609.72, subd. 1 (2000).  To prove fourth-degree assault against a correctional-facility employee, the prosecution would have to establish that a person (1) intentionally (2) threw or transferred (3) bodily fluids or feces (4) at a correctional-facility employee (5) who was engaged in performing a duty imposed by law, policy, or rule.  To prove disorderly conduct the prosecution must establish that a person (1) engaged in offensive, obscene, abusive, boisterous or noisy conduct (2) knowing that the conduct would tend reasonably to alarm, anger, or disturb others.

We see no legal connection between the transfer of bodily fluids and the arousal of alarm or anger or the disturbance of others.  It is this lack of legal connection rather than a factual analysis that is determinative, but the absence of legal connection can be illustrated by hypothetical facts.  For example, a person could intentionally transfer bodily fluids to a correctional-facilities employee in a surreptitious fashion that does not alarm, anger, or disturb because the employee did not know it occurred.  Or a person could transfer a bodily fluid in an intentional act not prompted by hostility and in a manner that did not alarm, anger, or disturb because the correctional-facility employee comprehended the full circumstances and both knew the person did not have any dangerous communicable disease.  Consequently, we conclude that it is possible to commit fourth-degree assault of a correctional-facility employee without committing disorderly conduct.

Because the crimes contain different elements, disorderly conduct is not proven when a defendant is found guilty of fourth-degree assault against a correctional-facility employee.  We therefore need not consider whether the jury would have had a rational basis to acquit Adams of the greater offense and convict him of the lesser.  The district court did not abuse its discretion in refusing to instruct the jury on disorderly conduct, and we affirm.

            Affirmed.