Assault in the Fifth Degree Charges in Minnesota

TSZ Law • April 13, 2019

The law of assault in Minnesota is very complex, and contains many provisions which can enhance the degree of seriousness of a given offense based on factors outside of what happens in a particular case or encounter. It is important to recognize that any assault charge can be serious, and you should always consult with an attorney about your case before you make any decisions about it.

There are five degrees of assault in Minnesota. This article will address only the base-level misdemeanor or gross misdemeanor offense: Assault in the Fifth Degree.

The offense is set forth in section 609.224 of the Minnesota Statutes. The following is current as of the date of the writing of this article, February 9, 2017.

609.224 ASSAULT IN THE FIFTH DEGREE.

Subdivision 1. Misdemeanor.

Whoever does any of the following commits an assault and is guilty of a misdemeanor:

(1) commits an act with intent to cause fear in another of immediate bodily harm or death; or

(2) intentionally inflicts or attempts to inflict bodily harm upon another.

Subd. 2. Gross misdemeanor.

(a) Whoever violates the provisions of subdivision 1 against the same victim within ten years of a previous qualified domestic violence-related offense conviction or adjudication of delinquency is guilty of a gross misdemeanor and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.

(b) Whoever violates the provisions of subdivision 1 within three years of a previous qualified domestic violence-related offense conviction or adjudication of delinquency is guilty of a gross misdemeanor and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.

Subd. 3. Firearms.

(a) When a person is convicted of a violation of this section or section 609.221 , 609.222 , or 609.223 , the court shall determine and make written findings on the record as to whether:

(1) the defendant owns or possesses a firearm; and

(2) the firearm was used in any way during the commission of the assault.

(b) Except as otherwise provided in section 609.2242, subdivision 3 , paragraph (c), a person is not entitled to possess a pistol if the person has been convicted after August 1, 1992, of assault in the fifth degree if the offense was committed within three years of a previous conviction under sections 609.221 to 609.224 , unless three years have elapsed from the date of conviction and, during that time, the person has not been convicted of any other violation of section 609.224 . Property rights may not be abated but access may be restricted by the courts. A person who possesses a pistol in violation of this paragraph is guilty of a gross misdemeanor.

Subd. 4. Felony.

(a) Whoever violates the provisions of subdivision 1 against the same victim within ten years of the first of any combination of two or more previous qualified domestic violence-related offense convictions or adjudications of delinquency is guilty of a felony and may be sentenced to imprisonment for not more than five years or payment of a fine of not more than $10,000, or both.

(b) Whoever violates the provisions of subdivision 1 within three years of the first of any combination of two or more previous qualified domestic violence-related offense convictions or adjudications of delinquency is guilty of a felony and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.

Although there is a lot of text in this statute, the requisite of the charge is either a threat of immediate bodily harm or death OR an intentional act or an attempt at an act which causes bodily harm to another.

Bodily harm, in turn, is defined as “physical pain or injury, illness, or any impairment of physical condition.” Minn. Stat. 609.02(7). Courts have interpreted this definition to capture a very broad sense of bodily harm. For example, in State v. Jarvis, 665 N.W.2d 518 (2003), the Supreme Court of Minnesota stated that “any impairment of physical condition” meant “any injury that weakens or damages an individual’s physical condition.” This meant that inducing someone to take a drug they did not intend to take could be considered an assault. Moreover, since physical pain, “which is all the statute requires,” is subjective, it is nearly always a jury question as to whether the complainant or victim felt it. State v. Johnson, 277 Minn. 230 (1967).

Different situations can aggravate the base misdemeanor offense to different categories of crimes. Fifth degree assault can become a gross misdemeanor or, in some extreme cases, a felony, if the perpetrator has one or more prior domestic violence-related convictions either against the same person in 10 years, or within 3 years of the date of the present offense.

A conviction under other circumstances can disqualify the perpetrator from owning a firearm, and there is a separate offense noted in the statute for people who do possess such firearms in violation of the statute.

With all of that said, assault charges can often times arise out of domestic disputes, bar fights, and other situations. Should you or a loved one be charged with any form of assault in Becker, Beltrami, Cass, Clay, Clearwater, Crow Wing, Hubbard, Itasca, Otter Tail or Wadena Counties, it is important that you protect your rights and interests by seeking the advice of a seasoned criminal defense attorney.


By Laurel Hed | TSZ Law Geriatric Care Manager November 8, 2019
This time of year is usually joyful and filled with expectations. Holidays can also be stressful for both caregivers and those living with dementia. Both caregivers and those living with dementia will often feel a sense of loss of what was and never will be again. Since the caregivers have the ‘healthy brain’ it is up to them to make the adjustments and modifications according to the needs of their loved one. You will want to avoid blinking lights and real candles. Play their favorite music, keep celebrations quiet and relaxed, plan gatherings at the best time of day for them, stick to daily routines and keep outings brief. If your loved one lives in a facility, consider holding a small family gathering at their home/facility. Familiar surroundings are so important. It is helpful to visit with family and friends ahead of time regarding any changes. Give them some tips on what may work well during their visit and what changes have taken place with your loved one. Think about making new traditions with your loved one and encourage family to be a part as well. Whether your loved one still lives with you or is in a care setting, include them in things that they remember. My mother has Alzheimer’s and is no longer able to send out greeting cards on her own, but we will spend an afternoon going through her address book and I write in the name, address, and have Mom sign her name. She is always so proud when we finish and have a nice little stack of cards ready to be mailed. Don’t forget to take time for you, as the caregiver. If your loved one lives with you, be sure to seek some respite time to be on your own…. spa day, shopping or take a nap. Be ‘ok’ asking for help and be ‘ok’ with doing less, which will create more, in the end for both you and your loved one…less stress and more time to make new memories.
Our Aging Population and Loneliness
By Laurel Hed | TSZ Law Geriatric Care Manager October 15, 2019
With our aging population, we are finding one of the biggest issues is that their social circles begin to shrink as the years go by. Friends often move or pass away. Other areas that affect their social circle is limited mobility, hearing and vision loss and other losses and struggles often related to aging.
Grief and Loss
By Laurel Hed | TSZ Law Geriatric Care Manager September 15, 2019
So many times in our lives we experience many forms of loss which then can often become some form of grief: moving away from home, children growing up and leaving home, loss of a job, loss of friendships, the death of a loved one, loss of what was and never will be again
End Of Life Conversation
By TSZ Law August 15, 2019
Imagine getting that awful phone call from a hospital saying your loved one is in the ER following a car accident or some other type of traumatic event.
Drinking Enough Fluids?
By Laurel Hed | TSZ Law Geriatric Care Manager July 15, 2019
According to an article from the National Care Planning Council, April 2, 2019, “Dehydration, failure to consume adequate fluids to replace those that are lost, is a major problem for the elderly. About 10 percent of all hospitalizations are directly attributable to dehydration. Seniors are particularly susceptible to becoming dehydrated. It can even result in death if severe enough.”
By TSZ Law June 6, 2019
According to the Alzheimer’s Association 5% of the more than 5 million Americans living with Alzheimer’s disease have younger-onset also known as early-onset. Many of these people are in their 40s and 50s. In the United States an estimate of approximately 200,000 people are diagnosed with early-onset Alzheimer’s Disease. To receive an accurate diagnosis at this age can be difficult. The medical profession can overlook or rule out Alzheimer’s dise ase often relating the symptoms to stress, menopause or depression , w hich then leads to misdiagnosis and treatment. It is also very difficult to diagnose because this disease affects each person differently and symptoms can vary. The Alzheimer’s Association suggest if you are having memory problems to write down symptoms of memory loss or other cognitive difficulties to share with your health care professional. Also, have a comprehensive medical evaluation with a doctor who specializes in Alzheimer’s Disease. This will involve a medical exam and possibly cognitive testing, a neurology exam and/or brain imaging. Doctors don’t understand why this disease strikes at such a young age in some people. The Alzheimer’s Association says that if there is a family history that doesn’t necessarily mean you will develop the disease yourself. However, research does show that those who have a parent or sibling with Alzheimer’s Disease are more likely to develop the disease. As a Geriatric Care Manager, I have had the privilege to work with people of all ages living with Alzheimer’s Disease and other dementias. But what I have noticed is that there appears to be more being diagnosed with early-onset. This is very life altering for both the person living with the disease and the family. Often, they still have children living at home, work fulltime, and have a spouse working fulltime. This is just not the way things are supposed to be. There will be grieving and questions as to what changes l ie ahead , b ut with the diagnosis in pl ace the learning process can begin, and plan s can be put into place. This takes time because no one imagines this c ould happen to them when they are so young. Learning everything you can early on is the best advi c e you can receive. The more you know the more you can preplan for what will lay ahead. Educating your spouse and children/family as much as possible is also very helpful because they will be your caregivers. The bes t approach to this disease is a team approach. W ith the right help and guidance, you can get through it. C ontact your local Alzheimer’s Association for a referral and to answer any questions or concerns you may have at 1-800-272-3900 for the 24/7 Helpline. These people are trained professionals who are a great help.
Elderly Falling
By Laurel Hed | TSZ Law Geriatric Care Manager May 15, 2019
According to a New York Times article written by Jane E. Brody, “Falls are the leading cause of fatal and non-fatal injuries among older people. Every 19 minutes in this country, an older person dies from a fall.”
By TSZLaw April 13, 2019
Jolene Brackey tells a story that helps us learn some ways to better approach a person living with Dementia. The book, “Creating Moments of Joy “is a story reminding us to be more like the sun: “There was a sun and a cloud in the sky, and they were fighting over who was the most powerful and the strongest. There was a little boy walking on the sidewalk and the cloud said that whoever gets that jacket off the little boy wins. So, the cloud said, “I’m going first.” The cloud floated over the boy and started to blow. He blew and he blew, trying to blow the jacket off the boy. What did the little boy do? He held on even tighter to the jacket. The cloud blew and blew. Eventually, the cloud lost all his energy. He was tired and couldn’t blow anymore. He turned to the sun and said, “All right, I give up. Give it your best shot.” The sun didn’t move. He just waited and warmed up. He radiated his warmth. He was very patient. The little boy started to sweat. The little boy thought, “It’s getting warm out.” So, the little boy took off his jacket.” Jolene explains that the moral of the story is whenever you try to force anyone in your life – your spouse, your kids, or the person you are caring for – to do what you want, they hold on even tighter. But if you are more like the sun and radiate your warmth, have some patience, and here’s the kicker – give them a reason they would understand, then they are more likely to cooperate with you. Not always, not every day. You are more likely to get a better reaction if you act more like the sun. This is so true when caring for someone living with Dementia. The more a person tries to force them into doing something they don’t want to do the harder things become. Think about your approach, body language, facial expression. 90% of our messages are communicated non-verbally. Even someone living with Dementia can sense when someone is feeling frustration. So, take a step back, take a cleansing breath, and try again. Use a calm, gentle, positive approach and chances are you will get much farther with your loved one. Communication with a person who has Dementia can be challenging because our general rules of communication do not always work. Each person with the disease will also be unique in what works for them. Your strategies for communication will need to be continually revised as the disease progresses. Learning more about your loved one’s specific type of dementia is very important to help in understanding the lost skills and retained skills. This will assist in better understanding why communication needs to be adjusted.
By TSZ Law April 13, 2019
Did you know that the spoken word provides only 7% of any message communicated between two people? Expression and how one says the words account for 35% of any message communicated. Body language accounts for 58% of any message. This means that more than 90% of our messages are communicated non-verbally. Communication with a person who has Alzheimer’s Disease can be challenging and each person with the disease will be unique in what works for them. Some of the retained skills for most people living with Alzheimer’s Disease are music, sense of humor, ability to read non-verbal’s, long term memory, and social graces. Music and emotion are retained in more than one place in the brain. Using music and rhythm when wanting some to walk or get up or sit down works well. This technique is helpful with someone living with Parkinson’s Disease or Lewy Bodies Disease. Humor can go a long way. Approaching with a smile, light mood, can often set the tone for how cooperative the person will be. As I mentioned earlier, most communication is non-verbal’s, so your actions will speak louder than words. Pointing, touching, smiling all are generally well received. As someone progresses in this disease, the long-term memory is what will be recalled the most. Looking at photo albums, scrapbooks, home movies are all well received. Making a memory box of past mementos are enjoyed as well. Typically, people retain their social graces remembering to say please and thank you. Some changes in their communication abilities are speaking less often, relying on gestures instead of speaking, reverting to speaking in their native language, and swearing. Communicating with a person with dementia requires patience, understanding and being a good listener. So, how do you help the person communicate? When a person knows in their mind what they want to say but have a hard time putting it into words, that can be very upsetting. So be patient and supportive and let them know that you are listening and trying to understand. Show your interest with good eye contact and offer comfort and reassurance. Encourage them to continue to try and explain their thoughts. Give them time and be careful not to interrupt. Every time they are interrupted their thought process must go back to the very beginning. Avoid criticizing or correcting, instead listen close and try to understand what they are talking about and when they are done repeat back to be sure you have really understood their message. If you just can’t understand what they are talking about ask them to show you or point to what they may be talking about. It is so important to limit distractions. Turn off radios, TVs, find a nice quiet place to sit which will help support the person’s ability to focus on their thoughts. Focus on their feelings and emotions. Sometimes the emotions being expressed are more important than what is being said. Look for the feelings behind the words. At times, tone of voice and other actions may provide clues.
By TSZ Law April 13, 2019
According to a Geriatric Care Manager, there are certain things to be aware of when going home to visit Mom and Dad. Are the proper medications being taken from the medication dispenser? Are there grab bars in the bathroom by the stool and in the shower. Are the smoke alarms functioning properly? Are there throw rugs out and potentially a tripping hazard? Are there any expired medications? Look in the fridge and freezer: a. How does it smell? b. Is there any moldy food? c. Is there little or nothing in the fridge and freezer? d. Is there an over-abundance of food in either or both? Pay close attention to your loved one and notice if they are losing weight, dehydrated, or appear depressed. Are they starting to stack the mail throughout the house for fear of throwing away the wrong thing? Are they staying home more, away from their usual activities? Are you noticing dents in the car that were not there before and your loved one really doesn’t have an explanation for what happened? Any and all these areas should alert families that it is time for a family meeting. If families can do this sooner rather than later, it may prevent a crisis from happening. All too often it ends up being a crisis before families realize that things are changing. A family meeting can be arranged by the children or they can reach out to an outside person such as a minister, trusted family friend, or professional caregiver coach or Geriatric Care Manager. The point of a family meeting is to review what they as adult children have seen during their visits to Mom and Dad’s home and what each one views as possible concerns. It is important to have a planned agenda prior to a family meeting, keeping in mind that the meeting is for and about the loved one(s). This will often help families stay on task and not get side tracked with family history issues, etc. If all agree that there are some issues that need addressing, then it may be time to ‘share the care.’ This is when each person offers to assist with one area: someone could offer to come every other weekend to clean house and do laundry. Another could offer to assist with grocery shopping and preparing meals to put in the freezer and ready for the microwave, perhaps another one could offer assistance with the finances, and another to help with doctor appointments. The point is to not have one person responsible for all the needs of the loved ones. This is a great help in assisting parents to stay home longer and more safely. These are all helpful ways that may assist in preventing a crisis and keeping everyone on the same page.
More Posts