A18-1246

This opinion will be unpublished and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
A18-0876
A18-1246

State of Minnesota,
Appellant (A18-0876),
Respondent (A18-1246),

vs.

Casey Daniel Bauer,
Respondent (A18-0876),
Appellant (A18-1246).

Filed July 1, 2019
Affirmed in part, reversed in part, and remanded
Peterson, Judge*

Rice County District Court
File No. 66-CR-16-152

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John L. Fossum, Rice County Attorney, Terence Swihart, Craig Green, Assistant County
Attorneys, Faribault, Minnesota (for appellant/respondent State of Minnesota)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nel son, Assistant
Public Defender, St. Paul, Minnesota (for respondent/appellant Bauer)

Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and
Peterson, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
PETERSON, Judge
These consolidated appeals arise from convictions of second - and third -degree
assault and the sentence imposed for second -degree assault. Respondent/appellant Casey
Daniel Bauer challenges the convictions, arguing that the district court erred in (1) failing
to instruct the jury on the statutory definition of “great bodily harm” and (2) entering a
judgment of conviction for third-degree assault. Appellant/respondent State of Minnesota
challenges the sentence imposed for second -degree assault, arguing that the district court
abused its discretion when it granted a downward dispositional departure. We affirm in
part, reverse in part, and remand.
FACTS
J.F. was in his garage opening the rear door of his car when he heard footsteps
behind him. As he turne d to look, he realized that he was being struck by something. He
was hit twice on the side of his head and then on the side of an ear. J.F. turned around and
saw a person wearing a mask.
The person in the mask tripped over a bicycle and fell on top of J.F., who had fallen
to the floor on his back. The two struggled, and J.F. was able to get the mask off the person,
whom J.F. recognized as respondent/appellant Casey Daniel Bauer. Bauer threatened J.F.
and, among other things, said, “You’re going to die .” J.F. feared that Bauer would harm
him, and he struggled to get out from under Bauer. J.F. had a folding knife clipped to his
right side pocket. He opened the knife, pushed upward with it, and struck Bauer four or
five times.

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The struggle continued until a neighbor peeked into the garage, and J.F. said to her,
“Help me. He’s trying to kill me.” The neighbor saw J.F. lying on the floor and a person
standing over him. She left and went as fast as she could to her apartment to call for help.
When she got to her apartment, she heard a noise behind her. She turned and saw J.F. She
helped him get into her apartment, called 911, and tended to his injuries. She described
J.F. as “unsteady,” with blood “kind of running in different areas down his face” and with
“swelling in a couple of areas on his head.”
J.F. was taken to a hospital emergency room, and the doctor who examined him
testified that J.F. was talking fast, but he was coherent, and his injuries were not life
threatening. The doctor did not find any bruising and did not see any signs of fractures of
J.F.’s arms or legs. There were two cuts on the top of J.F.’s head. J.F. told the doctor that
he was assaulted with a baseball bat 1 and that he was hit with the bat in the head, neck,
chest, and abdomen. The doctor testified that J.F.’s statement was consistent with the
injuries that he observed. The doctor explained that “a blunt object like a bat with enough
force could cause what we call a ‘burst laceration.’ That’s where the—when the skin and
tissues are impacted hard enough they will literally just split apart like, you know, as a
laceration.”
Bauer was charged with second -degree assault (dangerous weapon -substantial
bodily harm), in violation of Minn. Stat. § 609.222, subd. 2 (2014), th ird-degree assault

1 The parties dispute the size of the bat. Bauer contends that it was a “small, wooden
baseball bat,” and the state describes it as a “baseball bat.” The record does not clearly
reveal the size of the bat, but it appears that it was not a full -size bat that an adult would
use in a baseball game.

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(substantial bodily harm), in violation of Minn. Stat. § 609.223, subd. 1 (2014), and threats
of violence (intent to terrorize), in violation of Minn. Stat. § 609.713, subd. 1 (2014).
At trial, Bauer claimed that he went to J.F.’s home to talk to him, and J.F. initiated
the physical altercation by stabbing him twice “before [Bauer] could even do anything.”
Bauer argued to the jury that he hit J.F. purely in self-defense.
Before giving the case to the jury, the district court heard requests from both parties
about what the jury instructions should include. Neither the state nor Bauer argued that the
jury should be instructed on the statutory definition of “great bodily harm ,” and the jury
instructions did not define “great bodily harm.” The jury found Bauer guilty on both assault
counts and not guilty on the threats -of-violence count. The district court entered
convictions for both assault counts.
The district court initially denied Bauer’s request to be released pending sentencing.
However, after Bauer made a second request, the district court granted him a 72 -hour
furlough from jail because Bauer’s mother had late -stage terminal cancer. Bauer was
released on April 3, 2018, and was required to return on April 6, 2018 , but he failed to
return as required, and a warrant was issued for his arrest. Police arrested Bauer on April
12, 2018. Bauer explained that he did not return to jail as required because his mother died
on April 5, and her funeral was scheduled for April 12.
At sentencing, all parties recognized that third -degree assault ( substantial bodily
harm) is a lesser-included offense of second-degree assault (dangerous weapon-substantial
bodily harm). However, the transcript indicates that the parties believed that it was

5
appropriate for Bauer to be convicted of both counts, as long as he was sentenced for only
the more serious count.
The presumptive sentence for Bauer’s second -degree-assault conviction was 27
months, executed, with a sentence ranging between 23 and 32 months. Bauer moved for a
downward dispositional departure, asking that he receive probation instead of an executed
sentence, so that he could attend the Minnesota Adult and Teen Challenge Program, a 13-
to 15 -month program that would help Bauer address his mental -health and chemical-
dependency issues. Over the state’s objection, the district court granted Bauer’s motion on
the condition that Bauer successfully complete the long -term Minnesota Adult and Teen
Challenge Program. The district court found that Bauer was particularly amenable to
probation because he was willing to spend a significant period of time in treatment to
address significant chemical-dependency and mental -health issues. The district court
imposed a stayed 32-month sentence and placed Bauer on probation for seven years. In
addition to requiring Bauer to complete treatment, the district court imposed various other
restrictions. These cross-appeals follow.
D E C I S I O N
I. Failure to instruct on definition of “great bodily harm”
Bauer argues that the district court plainly erred when it did not include the statutory
definition of “great bodily harm” in the jury instructions for the second -degree-assault
charge. Bauer concedes that he did not object to the jury instructions at trial. “A defendant
generally forfeits the right to contest jury instructions on appeal when the defendant fails
to object at trial.” State v. Davis, 864 N.W.2d 171, 176 (Minn. 2015). This court, however,

6
will consider an issue not raised before the district court if it constitutes plain error. State
v. Taylor, 869 N.W.2d 1, 15 (Minn. 2015).
“A defendant is entitled to relief from a plain error if (1) there was an error, (2) the
error was plain, and (3) the error affected the defendant’s substantial rights.” State v.
Vasquez, 912 N.W.2d 642, 650 (Minn. 2018) (quotation omitted). If each prong of the
plain-error test is met, this court then “consider[s] whether [it] should address the error to
ensure fairness and the integrity of the judicial proceedings.” Id. (quotations omitted). If
an appellate court concludes that any requirement of the plain-error test is not satisfied, the
appellate court need not consider the other requirements. State v. Brown, 815 N.W.2d 609,
620 (Minn. 2012).
(a) There was an error
An appellate court “review[s] the jury instructions as a whole to determine whether
the instructions accurately state the law in a manner that can be understood by the jury.”
State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014). “[T]he elements of the crime should
be explained, but detailed definitions of the elements to the crime need not be given in the
jury instructions if the instructions do not mislead the jury or allow it to speculate over the
meaning of the elements.” Peterson v. State, 282 N.W.2d 878, 881 (Minn. 1979).
The second -degree-assault statute states: “Whoever assaults another with a
dangerous weapon and inflicts substantial bodily harm may be sentenced to imprisonment
for not more than ten years or to payment of a fine of not more than $20,000, or both.”
Minn. Stat. § 609.222, subd. 2 (emphasis added). Consistent with this statute, the district
court instructed the jury that “under Minnesota law whoever assaults another with a

7
dangerous weapon and inflicts substantial bodily harm is guilty of a crime.” Thus, to find
Bauer guilty of second-degree assault, the jury needed to determine whether the bat he used
during the assault was a dangerous weapon and whether the injuries he inflicted constituted
substantial bodily harm.
“Dangerous weapon” and “substantial bodily harm”2 are terms defined by statutes.
“Dangerous weapon ” means any firearm, whether loaded or
unloaded, or any device designed as a weapon and capable of
producing death or great bodily harm , any combustible or
flammable liquid or other device or instrumentality that, in the
manner it is used or intended to be used, is calculated or likely
to produce death or great bodily harm , or any fire that is used
to produce death or great bodily harm.

Minn. Stat. § 609.02, subd. 6 (2014) (emphasis added).
The district court instructed the jury that “[a] dangerous weapon is anything designed
as a weapon and capable of producing death or great bodily harm, or anything else that in the
manner it is used or intended to be used is known to be capable of producing death or great
bodily harm .” (emphasis added). This instructio n was taken from 10 Minnesota Practice ,
CRIMJIG 13.10 ( 2015) and modified only to omit a reference to “any combustible or
flammable liquid.”
The committee that drafted CRIMJIG 13.10 explained:

The definition of dangerous weapon in CRIMJIG 13.10 is
different from M.S.A. § 609.02, subd. 6. The language of
CRIMJIG 13.10 originally duplicated the language of the
statute. However, the definition was challenged for being

2 “‘Substantial bodily harm’ means bodily injury which involves a temporary but substantial
disfigurement, or which causes a temporary but substantial loss or impairment of the function
of any bodily member or org an, or which causes a fracture of any bodily member. ” Minn.
Stat. § 609.02, subd. 7a (2014). The jury instructions directly reflected the statutory definition
of “substantial bodily harm.”

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unconstitutionally vague. See State v. Jensen, 373 N.W.2d 364
(Minn. App. 1985); State v. Graham, 366 N.W.2d 335 (Minn.
App. 1985). The Court of Appeals expressed concern that the
statute’s use of the term “likely” could be interpreted to
improperly dilute the State’s burden of proof. CRIMJIG 13.10
was amended, and its language changed to clarify the State’s
burden of proof. The Court noted with approval the model
penal code definition of “deadly weapon,” and the Committee
has therefore modified the definition of dangerous weapon to
conform to these holdings of the Court of Appeals. See State
v. Gebremariam, 590 N.W. 2d 781 (Minn. 1999).3

10 Minnesota Practice, CRIMJIG 13.10.
Thus, under the district court’s instructions, to determine whether the bat was a
dangerous weapon, the jury needed to determine whether the bat was used in a manner that
was known to be capable of producing death or great bodily harm.4 Because a device can be
a dangerous weapon if it is capable of producing either death or great bodily harm, a jury
could determine that a device is not capable of producing death but still conclude that the
device is a dangerous weapon because it is capable of producing great bodily harm. “Great
bodily harm,” however, is a statutorily defined term. Therefore, in order to conclude that
the bat was a dangerous weapon without speculatin g over the meaning of the elements of
second-degree assault, the jurors would need to know the statutory definition of great
bodily harm.

3 Bauer challenges only the district court’s failure to includ e a definition of “great bodily
harm” in the jury instructions; he does not challenge the language in CRIMJIG 13.10.
4 We take judicial notice that a baseball bat is not designed as a weapon. See State v.
Pierson, 368 N.W.2d 427, 434 (Minn. App. 1985) (st ating that “[j]udicial notice of
adjudicative facts is normally limited to facts of common knowledge not in dispute, and
those for which neither expertise nor foundation is needed”).

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Under the statute, “‘[ G]reat bodily harm’ means bodily injury which creates a high
probability of death, or which caus es serious permanent disfigurement, or which causes a
permanent or protracted loss or impairment of the function of any bodily member or organ or
other serious bodily harm.” Minn. Stat. § 609.02, subd. 8 (2014). The jury instructions did
not include the statutory definition of great bodily harm. Instead, the district court
instructed the jury that if the court had not defined a word or phrase, the jury “should apply
the common, ordinary meaning of that word or phrase.”
The common, ordinary meaning of great is “[l]arger in size than others of the same
kind” or “[r]emarkable or outstanding in magnitude, degree, or extent.” The American
Dictionary of the English Language 792 (3d ed. 1992). Under this meaning, “great bodily
harm” would be harm that is worse than other bodily harm in degree or extent. But, unlike
the statutory definition of “great bodily harm,” which emphasizes permanent or protracted
injury or impairment, this common meaning does not identify a degree or extent of harm
at which bodily harm becomes great bodily harm. Thus, the common, ordinary meaning
of “great bodily harm ” differs from the meaning of the statutory definition , and the jury
instructions did not explain the elements of second -degree assault. The failure to instruct
on the statutory meaning was error.
(b) The error was plain
“An error is plain if it is clear or obvious, which is typically established if the error
contravenes case law, a rule, or a standard of conduct.” State v. Webster, 894 N.W.2d 782,
787 (Minn. 2017) (quotation omitted). This court has held that, in a trial on a charge of
third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd.

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1(c)(2010), the district court erred by not including the s tatutory definition of “force” in
the jury instruction on third-degree criminal sexual conduct because
a jury applying the common understanding of the word “force”
to the elements of third -degree criminal sexual conduct could
find a defendant guilty of the offense merely by concluding that
he exerted “strength,” “energy,” or “power” against a victim,
without any actual, attempted, or threatened infliction of bodily
harm, as required by the legislature [in the statutory definition
of “force”]. Such an outc ome would be inconsistent with a
defendant’s right to “a jury determination that he is guilty of
every element of the crime with which he is charged.”

State v. Moore , 863 N.W.2d 111, 121 -22 (Minn. App. 2015) (quoting State v. Caldwell ,
803 N.W.2d 373, 384 (Minn. 2011)), review denied (Minn. July 21, 2015).
In Moore, this court determined that the jury instruction did not misstate the
elements of the charged offense, but, without the statutory definition of “force,” which was
an element of the offense, the instruction was erroneous because it “failed to include details
that are necessary to fully explain the applicable law.” Id. at 122. Similarly, here, the
statutory definition of great bodily harm includes details that were necessary to fully
explain the applicable law to the jury. Without the statutory definition , the jury had no
basis for determining the point at which bodily harm becomes great bodily harm under the
statute, or even for determining whether great bodily harm means something different from
substantial bodily harm. Thus, omitting the definition of great bodily harm from the
instructions was contrary to the rule set forth in Moore and was, therefore, plain error. See
LaMere v. State, 278 N.W.2d 552, 557 (Minn . 1979) (when defendant did not admit that
inoperable gun was a dangerous weapon, jury instru ctions should have explained that
firearm that is unloaded or inoperable when used may still be a firearm).

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(c) The error did not affect Bauer’s substantial rights
“An erroneous jury instruction affects a defendant’s substantial rights if the error
was prejudicial and affected the outcome of the case.” State v. Huber, 877 N.W.2d 519,
525 (Minn. 2016). “An error in instructing the jury is prejudicial if there is a r easonable
likelihood that giving the instruction in question had a significant effect on the jury’s
verdict.” Id. (quotation omitted). The defendant must prove prejudice, which is “a heavy
burden.” Id.
Bauer argues that the lack of an instruction about the definition of great bodily harm
affected his substantial rights because (1) the jury was permitted to find him guilty of
second-degree assault “even if it found that the small bat was capable of causing a lesser
level of harm than . . . great bodily harm requires”; and (2) whether the bat was capable of
causing great bodily harm was a contested element at trial.
Without knowing the statutory definition of great bodily harm, the jury could have
found Bauer guilty of second -degree assault even if it found that the bat Bauer used was
capable of producing only bodily harm less serious than the statute requires. But, we must
consider this possibil ity in light of the evidence about the manner in which the bat was
used. Bauer used the bat to hit J.F. in the head at least three times, and the doctor who
treated J.F. testified that the bat hit J.F. with sufficient force to cause the skin and tissue to
split apart. Given this evidence, which is sufficient to show that the bat was used in a
manner that was capable of killing J.F., there is not a reasonable likelihood that failing to
instruct the jury about the definition of great bodily harm had a signi ficant effect on the

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jury’s verdict. We, therefore, conclude that , although the failure to instruct was a plain
error, the error did not affect Bauer’s substantial rights.
II. Downward dispositional departure
The Minnesota Sentencing Guidelines prescribe a range of sentences for an offense
that are “presumed to be appropriate.” Minn. Sent. Guidelines 2.D.1 (2014). A sentencing
court “must pronounce a sentence within the applicable range unless there exist
identifiable, substantial, and compelling circum stances” that distinguish a case and
overcome the presumption in favor of a guidelines sentence. Id.; see also State v. Soto ,
855 N.W.2d 303, 308 (Minn. 2014) (noting that a sentencing court can exercise discretion
to depart from guidelines only if aggrav ating or mitigating circumstances are present and
those circumstances provide substantial and compelling reason not to impose guidelines
sentence).
The sentencing guidelines contain a nonexclusive list of factors that may be used as
reasons for a departure . Minn. Sent. Guidelines 2.D.3 (2014). One mitigating factor
included in this list is that “[t]he offender is particularly amenable to probation.” Minn.
Sent. Guidelines 2.D.3.2. (7) (Supp. 2015). The guidelines state that “[t]his factor may,
but need not, be supported by the fact that the offender is particularly amenable to a relevant
program of individualized treatment in a probationary setting.” Id. Dispositional
departures are based on offender -related factors, such as particular amenability or
unamenability to probation. See State v. Trog , 323 N.W.2d 28, 31 (Minn. 1982) (listing
factors courts may consider when determining whether defendant is particularly amenable
to probation, including defendant’s age, prior record, remorse, cooperation, attitude in

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court, and support of family and friends); see also State v. Heywood, 338 N.W.2d 243, 244
(Minn. 1983) (stating that in considering dispositional departure, this court’s focus is on
defendant as an individual and whether presumptive sentence is best for defendant and for
society).
The state a rgues that the district court erred in granting Bauer’s motion for a
downward dispositional departure because: (1) the reasons given by the district court did
not support a downward dispositional departure; and (2) the district court failed to consider
the circumstances “for and against departure.” The state also analyzes the Trog factors,
and argues that they do not support the district court’s ruling.
“We review a district court’s decision to depart from the presumptive guidelines
sentence for an abuse of discretion.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016).
“A district court abuses its discretion when its reasons for departure are legally
impermissible and insufficient evidence in the record justifies the departure.” Id.
The district court granted Bauer a downward dispositional departure based primarily
on its determination that Bauer is particularly amenable to probation. In its on-the-record
consideration of Bauer’s departure motion, the district court heavily relied on the fact that
Bauer took the initiative to get assessed and conditionally accepted by the long -term
Minnesota Adult and Teen Challenge Program, which the discussion on the record shows
is a 13- to 15-month program that helps individuals address mental -health and chemical-
dependency issues and build life skills.
Because the sentencing guidelines explicitly recognize that a permissible reason for
a downward departure is that an offender “is particularly amenable to proba tion,” the

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state’s argument is essentially that the district court abused its discretion when it
determined that Bauer’s initiative in getting assessed and conditionally accepted by a
relevant treatment program made him particularly amenable to probation. The state cites
no authority that supports its argument that these facts are insufficient to allow a district
court to determine that a defendant is particularly amenable to probation. Accordingly,
this argument fails.
The state next argues that the district court’s reasoning was insufficient because the
district court failed to adequately consider the circumstances for and against departing. But
the record shows that the district court did consider circumstances for and against
departing. When the state argued that Bauer’s failure to return to jail as required shows
that Bauer is not amenable to probation, the district court responded,
But in fairness to Mr. Bauer, his mother was dying of cancer.
And if you could think of a situation that would mitigate your
failure to return to jail, if you tried to think of the best
circumstances, I suspect that ’s one of the best things you
could come up with.
Yes, [Bauer] didn’t obey my order, and part of me
says, “Well, yeah, I should hold that against [Bauer].” But
it’s difficult under those circumstances to hold that against
[Bauer].

There is no requirement that the district court must expressly consider all Trog factors in
determining that “substantial and compelling circumstances” exist, or that a defendant is
“particularly amenable to probation.” See State v. Pegel , 795 N.W.2d 2 51, 254 (Minn.
App. 2011). Therefore this argument also fails. Because the distri ct court’s decision to
depart was within its discretion, there is no need for this court to independently analyze the

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Trog factors, and we affirm the district court’s order granting appellant’s motion for a
downward dispositional departure.
III. Entering judgment of conviction of third-degree assault
The district court entered a judgment of conviction for both second -degree assault
and third-degree assault. In Minnesota, “[u]pon prosecution for a crime, the actor may be
convicted of either the crime char ged or an included offense, but not both. An included
offense may be . . . [a] lesser degree of the same crime.” Minn. Stat. § 609.04, subd. 1
(2014). An offender does not forfeit “claims of multiple convictions or sentences by failing
to raise the issue at the time of sentencing.” Spann v. State, 740 N.W.2d 570, 573 (Minn.
2007). Whether a conviction is for an included offense is a question of law that this court
reviews de novo. State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).
The transcript indicates that the parties incorrectly believed that, as long as Bauer
was sentenced for only the more serious offense, he could be convicted of both second and
third-degree assault. But Minn. Stat. § 609.04, subd. 1, does not allow district courts to
enter a conviction for an included offense. State v. Pflepsen, 590 N.W.2d 759, 765 (Minn.
1999). Instead, courts are to adjudicate guilt and sentence for one count only. Id. at 765-
66.
We conclude, and the parties agree, that third-degree assault is an included offense
of second -degree assault and that Bauer’s third -degree-assault conviction should be
vacated. We, therefore, reverse the conviction and remand so that the district court can
vacate the conviction.
Affirmed in part, reversed in part, and remanded.