State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0728

State of Minnesota,
Respondent,

vs.

Shy Ann Hentges,
Appellant.

Filed April 19, 2021
Affirmed
Segal, Chief Judge

Isanti County District Court
File No. 30-CR-18-25

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

Jeffrey R. Edblad, Isanti County Attorney; and

Scott A. Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Segal, Chief Judge; and
Bratvold, Judge.

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NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
In this direct appeal from the judgment of conviction, appellan t argues that the
district court erred by convicting her of second -degree unintentional murder, rather than
the allegedly more-specific offense of first-degree manslaughter. We affirm.
FACTS
On April 5, 2017, at approximately 10:50 a.m., a police office r was dispatched to
an apartment building in response to a report of an infant not breathing. The 911 call was
made by a resident of the building who heard screaming coming from the apartment below
and believed there was a child who was not breathing. Th e officer entered the apartment
and made contact with appellant Shy Ann Hentges and Hentges’s mother. He then
discovered Hentges’s two-month-old son dead in the crib. An autopsy performed on the
child revealed that he had suffered both a cute and chronic blunt-force head injuries,
including an 11-centimeter skull fracture, and had two posterior healing rib fractures. The
medical examiner ruled the child’s death a homicide attributed to blunt-force head injuries.
Law enforcement questioned Hentges on several occasions. On the day of the
child’s death, Hentges reported that she woke up at approximately 5:00 a.m., and when she
checked on the child his breathing was fine. She went back to bed and woke up again at
approximately 10:45 a.m., at which point she discovered that the child was not breathing.
She was interviewed again the following day, and sta ted that she did not know how the
child had suffered the head injuries, but reported that he had fallen off a chair two days
prior to his death. At a later interview, Hentges admitted that on the morning of the child’s

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death she accidentally hit the child’s head on the corner of a door frame and may have put
him down a “little rougher” than usual , hitting him against the wall with “a little bit of
force” when putting him in his crib. She was asked to demonstrate using a doll and, during
the demonstration, tossed the doll into the crib, striking the side of the doll’s head on the
wall behind the crib.
Respondent State of Minnesota charged Hentges with sec ond-degree unintentional
murder while committing third -degree assault under Minn. Stat. § 609.19, subd. 2(1)
(2016), and first-degree manslaughter while committing malicious punishment of a child
under Minn. Stat. § 609.20(5) (2016).
Hentges agreed to a court trial based on stipulated evidence pursuant to Minn. R.
Crim. P. 26.01, subd. 3. The district court found Hentges guilty of the second-degree
unintentional murder count. The district court further concluded that because Hentges’s
actions constituted second-degree murder, she was not guilty of first-degree manslaughter
(malicious punishment of a child).1 In convicting Hentges of second-degree unintentional
murder, the district court rejected Hentges’s argument that , if the court found she caused
the death of the child while committing an assault, Hentges should only be convicted of
first-degree manslaughter with the predicate offense of fifth -degree assault, Minn. Stat.

1 Under the subsection of the manslaughter charge filed against Hentges, Minn. Stat.
§ 609.20(5), an individual is guilty of first -degree manslaughter if he or she “causes the
death of another in committing or attempting to commit a violation of section 609 .377
(malicious punishment of a child), and murder in the first, second, or third degree is not
committed thereby.” The statute therefore excludes conduct that also constitutes second -
degree murder.

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§ 609.20(2) (2016), on the grounds that it is a more-specific offense. The district court
sentenced Hentges to 150 months in prison. Hentges now appeals.
DECISION
The sole issue presented in this appeal is whether the offense of first-degree
manslaughter while committing a fifth -degree assault constitutes a more-specific offense
than second-degree unintentional murder while committing a third-degree assault. Hentges
argues that it is and that she is thereby entitled to a reduction of her conviction from second-
degree unintentional murder to first-degree manslaughter. This issue presents a question
of law that we review de novo. State v. Craven , 628 N.W.2d 632, 634 -35 (Minn. App.
2001), review denied (Minn. Aug. 15, 2001).
Before addressing whether the doctrine is applicable in this case, we will first
explain the more-specific-offense doctrine and then identify the required elements of proof
for the two offenses.
The More-Specific-Offense Doctrine
In general, a prosecutor has the discretion to charge a defendant “under any statute
that the defendant’s acts violate without regard to the penalty,” and may charge a defendant
with multiple offenses for the same conduct. State v. Chryst, 320 N.W.2d 721, 722 (Minn.
1982). “But when two criminal statutes , one general and one specific, conflict because
they have the same elements but differing penalties, the more specific statute governs over
the more general statute.” Craven, 628 N.W.2d at 635.

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This doctrine has its origin in Minn. Stat. § 645.26, subd. 1 (2020), which provides
in relevant part:
When a general provision in a law is in conflict with a
special provision in the same or another law, the two shall be
construed, if possible, so that effect may be given to both. If the
conflict between the two provisions be irreconcilable, the special
provision shall prevail and shall be construed as an exception to
the general provision . . . .
See State v. Kalvig, 209 N.W.2d 678, 680 (Minn. 1973). Two statutes are in irreconcilable
conflict when conduct that violates the more-specific statute also would violate the more -
general statute. Craven, 628 N.W.2d at 634. The doctrine limits the prosecutor’s charging
discretion and, when two offenses are in irreconcilable conflict, a defendant may only b e
charged with and convicted of the more-specific criminal statute. Kalvig, 209 N.W.2d at
681. Thus, if the doctrine is applicable, Hentges would be entitled to have her conviction
reduced from second-degree murder to first-degree manslaughter, even though she was not
charged with first -degree manslaughter while committing a fifth -degree assault (Minn.
Stat. § 609.20(2)).
Elements of Proof
To determine whether the re is an irreconcilable conflict between the two offenses,
we must assess the elements required to prove each offense. A person is guilty under the
applicable subsection of the second-degree-murder statute if, in relevant part, he or she
“causes the death of a human being, without intent to effect the death of any person, while
committing or attempting to commit a felony offense other than criminal sexual conduct in
the first or second degree with force or violence or a drive -by shooting .” Minn. Stat.

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§ 609.19, subd. 2(1). In this case, the felony offense Hentges was charged with and found
guilty of was third -degree assault. Third-degree assault requires proof that a defendant
(1) assaulted another and (2) inflicted substantial bodily harm. Minn. Stat. § 609.223,
subd. 1 ( 2016). The phrase “substantial bodily harm” is defined in the criminal code as
“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
organ, or which causes a fracture of any bodily member. ” Minn. Stat. § 609.02, subd. 7a
(2016).
By comparison, a person may be convicted under the applicable subsection of first-
degree manslaughter if he or she
violates section 609.224 and causes the de ath of another or
causes the death of another in committing or attempting to
commit a misdemeanor or gross misdemeanor offense with
such force and violence that death of or great bodily harm to
any person was reasonably foreseeable, and murder in the first
or second degree was not committed thereby.

Minn. Stat. § 609.20(2). Minn. Stat. § 609.224 (2016) sets forth the crime of fifth-degree
assault. The offense, in relevant part, requires proof that the defendant (1) intentionally
inflicted or attempted to inflict (2) bodily harm upon another. Minn. Stat. § 609.224,
subd. 1(2). The term “bodily harm” is defined in the criminal code as “physical pain or
injury, illness, or any impairment of physical condition.” Minn. Stat. § 609.02, subd. 7
(2016). Fifth-degree assault is a misdemeanor, but s ection 609.224 provides that the
offense can be enhanced to a gross misdemeanor or felony based on various prior

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convictions occurring within specified time frames. Minn. Stat. § 609.224, subds. 2, 4.
The enhancement provisions are not applicable here.
Applicability of the Doctrine to this Case
Hentges argues that the offen ses of second -degree unintentional murder while
committing third-degree assault , and first-degree manslaughter w hile committing fifth-
degree assault , are in irreconcilable conflict because they require proof of the same
elements—(1) an assault (2) that causes the death of another . This argument, however,
overlooks the fact that second -degree unintentional murder requires proof that the death
was caused during the commission or attempted commission of a felony. In this case, the
second-degree unintentional -murder charge was predicated on a felony -level assault,
which requires evidence that the assault cause d not just “bodily harm,” but “substantial
bodily harm,” a level of harm that at least temporarily causes substantial disfigurement,
loss, or impairment of a bodily member or organ, or a fracture . Minn. Stat. § § 609.02,
subd. 7a, .223, subd. 1. First-degree manslaughter, on the other hand, requires proof of a
misdemeanor-level assault, an assault causing only “bodily harm.” Minn. Stat. §§ 609.02,
subd. 7 , .224, subd. 1(2). The second-degree unintentional-murder charge therefore
contains an additional element of proof not required to establish first-degree manslaughter.
Because there are differing elements of proof, the offenses are not in irreconcilable conflict.
The fact that second-degree unintentional murder with the predicate offense of third-
degree assault contains an additional element distinguishes this case from th e cases cited
by Hentges, such as the case of State v. Craven. In Craven, a police officer attempted to
initiate a traffic stop of the vehicle Craven was driving, but Craven fled the police officer.

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628 N.W.2d at 634. While fleeing, Craven lost control of the vehicle and struck and killed
two women. Id. The district court convicted Craven of two counts of second-degree felony
murder based on the predicate offense of fleeing a peace officer in a motor vehicle. Id.
Craven appealed and argued that he coul d only be convicted of the more -specific offense
of fleeing causing death under Minn. Stat. § 609.487, subd. 4 (1998). Id. at 634-35. This
court agreed, noting that “the crime of felony -murder with fleeing as the predicate felony
has the same elements as fleeing causing death. Both crimes require proof that a defendant
(1) fled from a police officer (2) in a motor vehi cle (3) causing a death.” Id. at 635. This
court concluded that “[b]ecause the count charging Craven with felony -murder relies on
fleeing a peace officer in a motor vehicle as the predicate felony, it does not require proof
of any element not already req uired to prove fleeing a peace officer in a motor vehicle
causing death.”2 Id. at 636.
The same is not true here. As discussed above, the offense of second-degree murder
with the predicate offense of third-degree assault requires proof of an additional element—
an assault that inflicts substantial bodily harm. Because there is an added element of proof
to establi sh third -degree assault, the offenses of second -degree murder and first -degree
manslaughter, with assault as the predicate offense, are not in irreconcilable conflict. See
id. at 635 (stating that statutes are in conflict if they “have the same elements”). The district

2 The case of State v. Meyer, 646 N.W.2d 900 (Minn. App. 2002), also cited by Hentges ,
is similarly distinguishable. In Meyer, this court affirmed the dismissal of a second-degree
murder charge because it contained identical elements of proof as the more-specific offense
of third-degree controlled-substance murder. 646 N.W.2d at 904. This court noted that
the only difference was the level of penalty. Id.

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court therefore did not err by refusing to enter a judgment of conviction for first -degree
manslaughter and convicting Hentges of second-degree unintentional murder.3
Affirmed.

3 The state also argues, as an independent ground for affirming the conviction of second-
degree unintentional murder , that s ubsection 2 of the first -degree-manslaughter statute
contains a similar exclusion as that relied on by the district court in acquitting Hentges of
first-degree manslaughter (malicious punishment of a child) —that “murder in the first or
second degree was not committed thereby.” Minn. S tat. § 609.20(2). The state thus
contends that, because Hentges committed second-degree murder, she cannot by definition
be convicted of first -degree manslaughter, and it therefore cannot constitute the more -
specific offense. Hentges oppose s this argumen t relying on the last -antecedent rule of
statutory interpretation. Because we affirm the conviction on other grounds, we need not
address this issue.