State of Minnesota v. Christopher Robert Politano

This opinion is nonprecedential except as provided by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
A25-1347

State of Minnesota,
Respondent,

vs.

Christopher Robert Politano,
Appellant.

Filed July 6, 2026
Affirmed
Reyes, Judge

Washington County District Court
File No. 82-CR-24-4815

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

Kevin Magnuson, Washington County Attorney, Andrew Jackola, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Reyes, Judge; and Bratvold,

Judge.

NONPRECEDENTIAL OPINION

REYES, Judge

Following his convictions of felony fifth-degree assault and felony domestic assault,

appellant argues that the district court erred by convicting him of both counts because

felony fifth-degree assault is an included offense of felony domestic assault. We affirm.

FACTS

Respondent State of Minnesota charged appellant Christopher Robert Politano with

felony domestic assault in violation of Minnesota Statutes section 609.2242, subdivision 4

(2024) (count I), and felony fifth-degree assault in violation of Minnesota Statutes section

609.224, subdivision 4(b) (2024) (count II), arising from an incident in which appellant

choked his girlfriend. A jury found appellant guilty of both counts. The district court

convicted appellant of both counts but imposed a sentence only on count I because it

determined that the convictions arose from the same behavioral incident.

This appeal follows.

DECISION

Appellant argues that the district court erred by convicting him of both fifth-degree

assault and felony domestic assault because “fifth-degree assault is an included offense of

felony domestic assault.” He contends that it was impossible for him to commit felony

domestic assault without also committing fifth-degree assault. The state agrees with

appellant. Based on our review of the statutes defining these offenses, we do not agree.

See State v. Beganovic, 991 N.W.2d 638, 644 n. 2 (Minn. 2023) (appellate courts are

responsible “to decide cases in accordance with law”) (quotation omitted).

“Upon prosecution for a crime, the actor may be convicted of either the crime

charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2024). As

relevant here, an “included offense” is “a crime necessarily proved if the [greater offense]

were proved.” Id., subd. 1(4). “Whether a conviction violates section 609.04 is a legal

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question that this court reviews de novo.” State v. Bonkowske, 957 N.W.2d 437, 443

(Minn. App. 2021).

Appellate courts assess whether an offense is an included offense under section

609.04, subdivision 1(4), by examining whether “it is impossible to commit the greater

offense without committing the lesser offense.” State v. Bertsch, 707 N.W.2d 660, 664

(Minn. 2006). In doing so, we “examine[] the elements of the offense instead of the facts

of the particular case.” Id.

We begin by examining the elements of the two offenses. A person commits felony

domestic assault by violating “the provisions of [section 609.2242] or section 609.224,

subdivision 1, within ten years of the first of any combination of two or more previous

qualified domestic violence-related offense convictions.” Minn. Stat. § 609.2242, subd. 4.

A person commits felony fifth-degree assault by violating “the provisions of

subdivision 1 within three years of the first of any combination of two or more” domestic-

violence convictions. Minn. Stat. § 609.224, subd. 4(b).

Section 609.224, subdivision 1, to which both sections 609.224 and 609.2242 refer,

states that a person commits an assault when they “(1) commit[] an act with intent to cause

fear in another of immediate bodily harm or death; or (2) intentionally inflict[] or attempt[]

to inflict bodily harm upon another.” Minn. Stat. § 609.224, subd. 1.

A careful review of the elements of each offense reveals that felony domestic assault

is not a crime necessarily proved if felony fifth-degree assault were proved. Appellant was

convicted of felony fifth-degree-assault, in violation of section 609.224, subdivision 4(b),

which requires that the actor have two or more domestic-violence convictions within three

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years without reference to the identity of the victim. However, a felony domestic-assault

conviction requires only two or more domestic-violence convictions within ten years.

Minn. Stat. § 609.2242, subd. 4. A person could, for example, be convicted of domestic

violence for acts committed against two different victims seven years apart, thereby

committing felony domestic assault without committing felony fifth-degree assault. As a

result, felony fifth-degree assault is not an included offense of felony domestic assault

under section 609.04, subdivision 1(4). 1 We therefore conclude that the district court did

not err by convicting appellant of both count I and count II.

Affirmed.

1
Appellant references as persuasive authority our nonprecedential opinion in State v.
McIntyde for the proposition that fifth-degree assault is an included offense of domestic
assault. 2017 WL 2625553, at *3 (Minn. App. June 19, 2017), rev. denied (Minn. Sept.
19, 2017). In McIntyde, we concluded that “[f]ifth degree assault, under Minn. Stat.
§ 609.224, subd. 1(1), is necessarily proved if domestic assault, under Minn. Stat.
§ 609.2242, subd. 1(1), is proved.” Id. We are not persuaded by our reasoning in McIntyde
because our analysis here is of different subdivisions of the statutes, leading to a different
conclusion.

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