State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0314

State of Minnesota,
Respondent,

vs.

Ozell Ellis Lashaun Hardy,
Appellant.

Filed December 24, 2018
Affirmed
Florey, Judge

Stearns County District Court
File No. 73-CR-17-5498

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

Janelle P. Kendall, Stearns County Attorney, Kyle R. Triggs, As sistant County Attorney,
St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jess on, Presiding Judge; Reilly, Jud ge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant Ozell Ellis Lashaun Hardy appeals one of his convicti ons of second-
degree assault with a dangerous weapon, arguing there was an in sufficient factual basis

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supporting his plea. He argues that he must be permitted to withdraw his plea because the
record does not establish that he intended to cause the bystand er, R.O., to fear immediate
bodily harm or death. We affirm.
FACTS
In June 2017, appellant spotted a previous acquaintance of his, K . W . , a t a
laundromat. Appellant was upset with K.W. because he believed that K.W. had broken
into his home the prior winter and stolen some of his belonging s. Upon seeing K.W.,
appellant grabbed a baseball bat and bandana from his vehicle, entered the laundromat, and
walked over to where K.W. was seated. Appellant struck K.W. nu merous times with the
bat in the presence of bystanders, some of whom were children. K.W.’s girlfriend, D.P.,
reported that their 10-month ol d child was sitting in a car sea t immediately next to K.W.
as he was being assaulted.
When R.O., an employee of the business, tried to intervene, app ellant pointed the
baseball bat at her and told her not to come any closer or she would “get this too.” R.O.
reported to law enforcement that “she was afraid that she was a bout to be assaulted.”
Appellant eventually lost control of the baseball bat and thereafter fled the scene.
A few days later, the state char ged appellant with two counts o f second-degree
assault with a dangerous weapon, pursuant to Minn. Stat. § 609.222, subd. 1 (2016). The
first count concerned K.W., and the second count R.O. The stat e also filed a Blakely
motion seeking an upward durati onal departure on the grounds th at (1) K.W. was
particularly vulnerable because he was trying to protect his 10 -month old son during the
assault and (2) the offense was committed in the presence of two children. The next month,

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the state filed a second Blakely motion notifying appellant of its intent to seek an
aggravated durational departure in the event that appellant was convicted and the jury
determined appellant qualified as a “dangerous offender” due to h i s p r i o r c r i m i n a l
convictions.
In October 2017, a plea hearing was held before the district court. Appellant pleaded
guilty to both counts of second-d egree assault with a dangerous weapon in exchange for
the parties’ agreement that the state would dismiss both Blakely motions. The state
indicated its intention to ask for consecutive sentences, given there were two victims, and
the parties understood they would be arguing the sentencing disposition to the court.
At the plea hearing, the factual basis for appellant’s guilty p lea consisted of the
following:
State: And on this date you did see [K.W.] at the
cleaners and you did acquire a baseball bat and
then had a bandana on and entered the cleaners
and went over to where he was seated; is that
correct?

Appellant: Correct.

State: And you would agree that you did then strike him
numerous times with the baseball bat in the head
and body area?

Appellant: Correct.

State: Now, it’s also true that there was a worker there
indicated with the initials R.O. You would agree
that a female employee did come over to your
location, I think tried to kind of get the situation
to stop. You agree that you did raise the baseball
bat and told her that she shouldn’t come any

4
closer or she would get it too or something like
that; is that fair to say?

Appellant: I will plead guilty to that.

State: And it’s fair to say that based on you having the
bat, stopping and saying those things to her, she
was in fear and then backed away?

Appellant: Okay.

State: Is that accurate?

Appellant: Correct.

The district court then asked a ppellant’s counsel to inquire of his client “so some of
it’s more in his own words rather than just answering questions from the prosecutor.”
During the defense’s inquiry, the district court judge jumped i n and had the following
exchange with appellant:
Court: So you saw [K.W.] in the laundromat—or you
saw him at the cleaners?

Appellant: Yeah.

Court: So what did you do then that makes you guilty
of—

Appellant: Yeah. Then I went and I had a bat in the car and
bandana.

Court: So then what did you do?

Appellant: That’s when I wen t in and I assaulted [K.W.].

Court: When you say you assaulted him, what did you
do?

Appellant: Hit him with the b aseball bat multiple times.

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Court: Multiple times?

Appellant: Yeah.

Court: And was there—there was another person
present and, in fact, th ere was a small child
present?

Appellant: Correct.

Court: Fair to say that the y would have been afraid?

Appellant: Yes.

The district court found that app ellant had provided the court w i t h a s u f f i c i e n t
factual basis to allow it to accept his guilty pleas to the two counts of second-degree assault.
The following month, a sentencing hearing was held wherein the district court denied
appellant’s request for a downward departure and sentenced appellant to 54 months for the
count concerning K.W., and 21 months for the count concerning R .O., to be served
consecutively, for a total 75-month sentence. This appeal followed.
D E C I S I O N
Appellant asks this court to reverse one of his convictions for second-degree assault,
arguing that his guilty plea was invalid for lack of a factual basis establishing that he
intended to cause fear of immediate bodily harm or death to R.O.
There is no absolute right to withdraw a guilty plea after it has been entered. Perkins
v. State, 559 N.W.2d 678, 685 (Minn. 1997). However, “a court must allow withdrawal of
a guilty plea if withdrawal is necessary to correct a ‘manifest injustice.’” State v. Raleigh,
778 N.W.2d 90, 93 (Minn. 2010) (quoting Minn. R. Crim. P. 15.05 , subd. 1). Manifest
injustice occurs if a plea is not valid. Id. at 94. A constitutionally valid plea must be

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voluntary, intelligent, and accurate. Id.; see also Perkins , 559 N.W.2d at 688. The
defendant bears the burden of showing that his plea was invalid . Lussier v. State , 821
N.W.2d 581, 588 (Minn. 2012). The validity of a guilty plea is a question of law we review
de novo. Raleigh, 778 N.W.2d at 94.
A plea must be accurate to ensure that a defendant is not plead ing guilty to a more
serious crime than that for which he could be convicted if his case went to trial. Id. An
accurate plea must be established on a proper factual basis. Lussier, 821 N.W.2d at 588.
A proper factual basis exists “if the record contains a showing that there is credible
evidence available which would support a jury verdict that defendant is guilty of at least as
great a crime as that to which he pled guilty.” Nelson v. State, 880 N.W.2d 852, 859 (Minn.
2016) (quotation omitted). If th e defendant makes statements t hat negate an essential
element of the charged crime, the factual basis is rendered ina dequate because such
statements are inconsistent with a guilty plea. Id. In addition to the defendant’s statement,
there are other ways to establish a factual basis, including “t estimony of witnesses and
statements summarizing the evidence.” State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).
To evaluate the accuracy of appe llant’s guilty plea, we must id entify the elements
required for the charge. The essential elements include (1) assault, defined in Minn. Stat.
§ 609.02, subd. 10(1) (2016), as “an act done with intent to ca use fear in another of
immediate bodily harm or death” and (2) acting with a dangerous weapon. Minn. Stat.
§ 609.222, subd. 1. “‘With intent to’ . . . means that the actor either has a purpose to do the
thing or cause the result specified or believes that the act, i f successful, will cause that
result.” Minn. Stat. § 609.02, subd. 9(4) (2016).

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Appellant argues that, at the ple a hearing, he never admitted t hat he intended to
cause R.O. fear of immediate bodily harm or death. The state, on the other hand, argues
that appellant need not have expressly stated such an intent. Rather, the state argues, the
court could infer intent based on appellant’s admissions as a w hole. Appellant contends
that the most the court could infer was “[his] intent to encourage R.O. to stay back, not to
cause her fear that he was about to cause her bodily harm or kill her.”
We conclude there was a sufficient factual basis to allow the district court to accept
appellant’s guilty pleas to the tw o counts of second-degree ass ault with a dangerous
weapon. While it is true that appellant never expressly stated in his plea that he intended
to cause R.O. fear of immediate bodily harm or death, the district court was not limited in
its finding of a sufficient factual basis to consider only appe llant’s colloquy. See Lussier,
821 N.W.2d at 589 (reiterating that “the plea petition and [the defendant’s] colloquy may
be supplemented by other evidence” and that the factual basis need not “appear in the plea
hearing transcript verbatim”).
In addition to appellant’s accession that his act (of raising the baseball bat and telling
R.O. that she should not come closer or she would “get this too”) could cause R.O. fear, he
signed a completed plea petition pleading guilty to the offense charged, and, importantly,
he never made any statements neg ating an essential element of t he offense. See Nelson,
880 N.W.2d at 859 (“[T]he factual basis of a plea is inadequate when the defendant makes
statements that negate an essential element of the charged crim e because such statements
are inconsistent with a plea of guilty.” (quotation omitted)).

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Further, appellant never denied the allegations in the state’s complaint. See Trott,
338 N.W.2d at 252 (affirming the record established an adequate factual basis to sustain
the defendant’s guilty plea to second-degree assault because the record contained, among
other things, “a copy of the complaint and defendant, by his pl ea of guilty, in effect
judicially admitted the allegations contained in the complaint”). In the state’s complaint,
K.W. reported that as his girlfriend, D.P., came to his aid, “h e saw [appellant] wind up as
if he was going to hit her and R. O., and ultimately the bat cam e out of his hand and
[appellant] fell to the ground. At that point . . . [appellant ] got up and ran to the door and
ultimately fled.” Similarly, R.O . reported that “at one point, [appellant] stopped hitting
[K.W.] and held the bat telling her to “Hold on. Don’t come an y closer or you’ll get this
too.” She reported that “[appellant] was holding the bat and pointing it at her and she was
afraid that she was about to be assaulted.”
Although a finding of intent gener ally cannot be based solely o n the effect the
actor’s conduct had on the victim, “[i]ntent may be proved by c ircumstantial evidence,
including drawing inferences fro m the defendant’s conduct, the character of the assault,
and the events occurring before and after the crime.” In re Welfare of T.N.Y., 632 N.W.2d
765, 769 (Minn. App. 2001); see also Nelson , 880 N.W.2d at 860 (“Intent is generally
proved by inferences drawn from a person’s words or actions in light of all the surrounding
circumstances.” (quotation omitted)). A fact-finder can also infer that an actor “intends the
natural and probable consequences of his actions.” State v. Cooper, 561 N.W.2d 175, 179
(Minn. 1997).

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In the present case, appellant does not dispute having raised the baseball bat at R.O.
and warning her to not come any closer. Nor does he dispute striking K.W. multiple times
w i t h t h e b a t i n f r o n t o f R . O . and other bystanders. In light o f the surrounding
circumstances, a fact-finder could reasonably infer that appellant’s raising of the bat toward
R.O. with the statement, “[d]on’t come any closer or you’ll get this too,” was intended to
cause R.O. fear of immediate bodily harm, rather than merely “e ncourage R.O. to stay
back.” See State v. Soine , 348 N.W.2d 824, 827 (Minn. App. 1984) (affirming the
defendant’s conviction of second-degree assault against a bysta nder because the
defendant’s brandishing of a knife at the bystander and telling the bystander “to shut up”
or “I’ll use it on you,” was intended to cause the bystander fear of immediate bodily harm),
review denied (Minn. Sept. 12, 1984).1
Appellant also challenges the state’s use of leading questions at the plea hearing.
He argues that because he merely assented to the state’s leadin g questions, the record is
insufficient to support a guilty plea. Appellant cites numerou s cases to support his
contention that the use of leadin g questions to establish a fac tual basis has consistently
been discouraged by this court an d the Minnesota Supreme Court. While tr ue that the
supreme court has “repeatedly di scouraged the use of leading qu estions to establish a
factual basis,” it has never hel d that the use of leading quest ions, in and of itself,

1 In Soine, we acknowledged that the defendant, whose intent “was to cause [the bystander]
to move,” “could have merely requested him to move, but accompanying the ‘request’ with
the phrase, ‘I’ll use it on you,’ while holding a knife is more effective—effective because
it tends to cause fear of immediate bodily harm in the person addressed.” Id.

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automatically invalidates a plea of guilty. Nelson, 880 N.W.2d at 860. As such, we
conclude that appellant’s argument on this issue lacks any merit.
Lastly, we note that appellant’s plea of guilty to second-degree assault of R.O. was
the product of a plea agreement involving pleas to two different offenses wherein the state
made significant concessions. Specifically, in exchange for ap pellant’s plea of guilty to
the two counts, the state agreed to dismiss both of its Blakely motions seeking an upward
durational departure. The prope r remedy under the circumstance s, therefore, would be
invalidation of the entire plea agreement—which is not what appellant is requesting here—
otherwise, both parties would not receive the benefit of their bargain. See Beltowski v.
State, 183 N.W.2d 563, 566 (Minn. 1971) (“A defendant, no less than a prosecutor, should
not be permitted to . . . use a plea of guilty as a tactical device to frustrate the prosecution
of an offense which the evidence would support.”); see also State v. Lewis , 656 N.W.2d
535, 538-39 (Minn. 2003).
Here, appellant received exactly what he bargained for. Allowing him to withdraw
one plea in a multi-count plea agreement would, in effect, permit appellant to use that plea
as a “tactical device” to limit th e state’s prosecution against him. We see no reason to
permit appellant, without sufficient cause, to renege on a fully performed plea agreement.
Affirmed.