State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1808

State of Minnesota,
Respondent,

vs.

William H. Bushey, III,
Appellant.

Filed September 10, 2018
Reversed and remanded
Ross, Judge

Itasca County District Court
File No. 31-CR-17-2016

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John J. Muhar, Itasca County Attorney, Matti R. Adam, Assistant County Attorney, Grand
Rapids, Minnesota (for respondent)

Cathryn Middleb rook, Chief Appellate Public Defender, Kathryn Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Reyes, Judge; and Florey, Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
William H. Bushey III was drunkenly arguing with his girlfriend when he pushed
her. He pleaded guilty to one count of misdemeanor domestic assault – harm. On appeal,
Bushey argues that the district court had an insufficient factual basis to accept his plea

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because there was no evidence that his girlfriend was actually harmed or that he intended
to harm her. Because there was no factual basis for concluding that Bushey actually caused
or attempted to cause his girlfriend harm, we reverse and remand.
FACTS
Grand Rapids police officers responded to a report of a man arguing and breaking
things in an apartment. When the y arrived, police found Bushey standing outside the
building, apparently drunk . They spoke with S.J.P., Bushey’s girlfriend, and K.E. B.,
Bushey’s child. S.J.P. and K.E.B. said that Bushey “had pushed each of them in the chest
area while he was being disorderly throughout the residence.”
Bushey pleaded guilty to one count of misdemeanor domestic assault – harm. At the
plea hearing, the factual basis for his guilty plea consisted of the following:
Counsel: Did you put your hands on [S.J.P.]?
Bushey: Yes.
Counsel: And where did you place your hands?
Bushey: By her shoulder.
Counsel: And what did you do once your hands were on her
shoulder?
Bushey: Nudged her.
Counsel: Okay. We talked about the term nudging before we
got into court today, is that correct?
Bushey: Yeah.
Counsel: And when you say nudging, she says that it was a
push or a shove, you understand that?
Bushey: Yeah.
Counsel: Do you agree that you did push or shove her?
Bushey: Yeah.
Counsel: And do you agree when you put your hands on – on
somebody and push them or shove them, they have a reason to
fear for their safety?
Bushey: Yeah.

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The district court found that these facts established guilt and accepted Bushey’s plea. The
district court entered a conviction on the plea and sentenced Bushey.
Bushey appeals.
D E C I S I O N
Bushey maintains that we should reverse his conviction because his guilty plea is
invalid for lack of a factual basis establ ishing the elements of misdemeanor domestic
assault – harm. A plea is invalid if it is not voluntary, intelligent, and accurate. Perkins v.
State, 559 N.W.2d 678, 688 (Minn. 1997). The validity of a guilty plea is a question of law
we review de novo. State v. Raleigh , 778 N.W.2d 90, 94 (Minn. 2010). A plea is not
accurate, and the district court should not accept it, unless the record supports the
“conclusion that [the] defendant’s conduct falls within the charge to which he desires to
plead guilty.” Kelsey v. State, 214 N.W.2d 236, 237 (Minn. 1974).
The facts that Bushey admitted to do not establish that he is guilty of misdemeanor
domestic assault – harm. To prove misdemeanor domestic assault – harm, the state must
establish that the defendant “intentiona lly inflict[ed] or attempt[ed] to inflict bodily harm
upon” a family or household member. Minn. Stat. § 609.2242, subd. 1(2) (2016). Bushey
admitted that he pushed S.J.P. and that this could have caused her to fear for her safety.
But the state did not cha rge this offense based on the assault causing fear under section
609.2242, subdivision 1(1) (2016). That Bushey pushed S.J.P. and caused her to fear is
insufficient to prove his guilt under the charged offense of subdivision 1(2), requiring
evidence of actual or attempted bodily harm. The district court was not asked to amend the

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complaint, and we are asked to address the sufficiency of the plea based on the extant
complaint only.
The state argues that the district court could accept the plea if Bushey ad mitted
“only that he intentionally committed an act which then resulted in bodily harm.” The state
then fails to identify any actual bodily harm that resulted from Bushey’s push. The state
maintains that if Bushey intentionally engaged in conduct that logically would have
resulted in bodily harm, this is sufficient to establish his guilt as an attempt to cause harm
because assault – harm is only a general intent crime. The first problem with the state’s
argument is that it reads too much into State v. Fleck, because the Fleck court established
only that the intent-to-harm offense was a general intent crime, and it expressly clarified,
“We need not, and do not, address Fleck’s argument that an attempt to inflict bodily harm
is a specific-intent crime because the facts of Fleck’s case involve the actual infliction of
bodily harm.” 810 N.W.2d 303, 312 n.5 (Minn. 2012). The second problem with the state’s
argument is that the state identifies no facts, and we are aware of none in the record, that
suggest that the “push” or “shove” or “nudge” discussed in the colloquy is of the nature
that one could reasonably assume would lead to bodily harm, which is “ physical pain or
injury, illness, or any impairment of physical condition. ” Minn. Stat. § 609.02, subd. 7
(2016).
In sum, Bushey failed to admit to facts that establish the element of intent to cause
bodily harm or attempt to cause harm.
Reversed and remanded.