Minnesota Statute 609.223 says:

1) Whoever assaults another,

-either by committing an act with the intent to cause fear of immediate bodily harm or death in someone else, or

-who intentionally inflicts or attempts to inflict bodily harm upon another, AND

2) who inflicts substantial bodily harm

 is guilty of third degree assault.  Basically, the prosecutor has to prove beyond a reasonable doubt that you assaulted someone and caused “substantial bodily harm.”

Here’s what that means in detail:

First, the prosecutor needs to prove that there was an assault.  There are two ways someone can assault another person.  The first is by causing someone to fear bodily harm or death.  This means that you could be facing assault charges even without ever touching someone if you cause them to be in fear of getting hurt.  The second way to show assault is when someone intentionally harms or tries to harm someone else.  That’s the more common way that we think about assault.  It’s a punch, swinging a bat at another person, or trying to hit someone.

Second, what is substantial bodily harm?  The law categorizes certain crimes by different degrees of seriousness.  To rise to the level of 3^rd degree assault the prosecutor needs to prove that you did something that caused substantial bodily harm.  However, no one has a list of the injuries that are automatically considered substantial bodily harm, and those that aren’t.  Here are some examples of injuries that could be considered substantial bodily harm:

• Broken nose
• Broken jaw
• Fractured ribs
• Serious cuts to the head
• Severe concussion
• A combination of injuries together, like a black eye, bloody nose, bruises, and scratches

Here are some of the consequences of being found guilty of third degree assault:

You will have a FELONY on your record!

PENALTY:  If you are convicted of third degree assault the Judge can sentence you to up to 5 years in prison, fine you up to $10,000 or do both.  Also, the Judge can order that you pay restitution, which means that you might have to pay the victim for their injuries, cover their medical bills, or pay for property damage.  This adds up fast.

COLLATERAL CONSEQUENCES: Having a felony third degree assault conviction on your record can effect everything from employment, housing, your gun rights, and even some parenting rights.  With a third degree assault conviction on your record you are no longer allowed to own, or even possess a firearm, and that includes a hunting weapon.  Many employers will not hire you, schools or athletic associations will not let you coach or volunteer, and many landlords will not let you rent from them.

There are a number of  defenses to 3rd Degree Assault:

First, to prove that you committed a 3^rd degree assault the prosecutor has to prove beyond a reasonable doubt that you intended to assault someone.  They can’t prove that you’re guilty of 3^rd degree assault without showing that you meant to do something that caused the injury.  A good criminal defense attorney recognizes when the State will not be able to prove intent.  He or she knows how to show the jury both sides of the story and to make it clear to a jury when intent is lacking.

Next, there are various additional defenses that a good criminal defense attorney is familiar with, such as:

• Self-defense
• Defense of Another
• Necessity
• Intoxication
• Duress
• Alibi

A good criminal defense attorney will know if any of these defenses apply in your case, and will know how to present them at trial.

So, the next question, is what can you do when you’re charged with 3^rd degree assault?  You can hire a good criminal defense attorney to protect you, and here are just some of the reasons you should hire a skilled criminal defense attorney:

1)      An experienced criminal defense attorney can take your case to trial and improve your chances of being found NOT GUILTY.

2)      A skilled criminal defense attorney knows how to defend you at trial and knows the potential defenses you might have.

3)      A good criminal defense attorney knows what to look for in the medical reports to see whether or not there was substantial bodily harm in your case, and how to best fight the medical evidence.

4)      A good criminal defense attorney can work with the prosecutor to get the charges lowered or dismissed.

Sometimes in assault causes, the police decide who the victim is right away without carefully considering both sides of a story.  This can mean that they only collect evidence that favors one side of the case.  For example, they’ll take pictures of the person that they decide is the victim, but they don’t take pictures of you and you were injured too.  This can happen if they decide right away that you were the aggressor.  A good criminal defense attorney conducts his or her own investigation and knows how to make it clear for a jury when the police are biased from the start of the case, or when they did not do a good job of collecting evidence that shows the whole story.

The best way to protect yourself, and your best chance at getting the charges dismissed or being found NOT GUILTY at trial is by hiring a good criminal defense attorney who has experience defending assault cases.  Call RYAN PACYGA CRIMINAL DEFENSE at 612-339-5844 to speak with Mr. Pacyga about defending your case.  If you’re trying to decide who to hire, you don’t need to just take our word for it.  Check out our youtube channel to see videos of jurors interviewed about Mr. Pacyga’s skills as a criminal defense attorney after they found Mr. Pacyga’s client NOT GUILTY of 3^rd degree assault.

Ryan Pacyga defends people accused of crimes in State and Federal courts around the country.  He is based in Minneapolis, MN.

Under Brady v. Maryland, the prosecution has to provide the defense in criminal cases with exculpatory evidence that is material to either guilt or punishment.  What is material evidence?  Evidence is material only if a reasonable probability exists, that had the evidence been given to the defense, the verdict would have been different.  This does not mean all evidence that favors or appears to favor the defendant must be disclosed.  Rather, the test is, “Had this evidence been disclosed, would the confidence of the verdict be undermined?”

In Smith v. Cain, the United States Supreme Court found that the state of Louisiana withheld exculpatory evidence from the defendant: the prosecution failed to turn-over the lead police investigator’s notes.  As a result, the initial conviction was reversed and a new trial was granted.

At trial, a single witness, Larry Boatner, described the hysteria that resulted in death of five individuals.  Boatner testified that he was at a friend’s house when Smith and two other armed individuals entered the home and demanded drugs and money.  While on the stand Boatner told the jury he had “[N]o doubt that Smith was the gunman.”  No other witnesses or physical evidence linked Smith to the crime.  Smith was convicted on all five counts of first-degree murder.

Smith argued the prosecution violated Brady by not disclosing the lead investigator’s notes.  As previously mentioned, Brady is violated only if the withheld evidence could reasonably be taken to undermine the confidence of the verdict.

Now, Smith was convicted on the testimony of a single eyewitness.  So ask yourself, “How can you cast doubt upon the government’s ONLY eyewitness?”  Well, find contradictory statements by that witness about whom they saw.  This is exactly what the lead investigator’s notes did.  His notes show that immediately following the crime, Boatner “could not ID anyone because [he] couldn’t see faces” and “[he] would not know them if [he] saw them.”  The notes go on to say Boatner could only describe the perpetrators as blacks males, offering no distinct characteristics.

Remember, at trial Boatner had “no doubt” Smith was the perpetrator.  But, right after the shooting he was unsure who the perpetrators were.  Would a verdict based solely on this testimony be undercut if the witness delivered differing descriptions of the perpetrator?  The United States Supreme Court answered with big yes!!!

Some prosecutors decide to withhold evidence because they are more concerned with “winning” than they are with justice.  When a Court catches a violation like this, convictions will be reversed.

Why do I care?  It is the responsibility of your criminal defense attorney to gather any and all favorable evidence that tends to prove your innocence.  Thus, you need to make sure your criminal defense attorney holds prosecutors to their obligation to turn over ALL favorable evidence.  Effective criminal defense attorneys are proactive: a defense attorney must not hesitate to seek sanctions against a prosecutor whom fails to uphold their Brady obligation.  Ryan Pacyga Criminal Defense is committed to ensuring that the laws and legal processes are fair and that the government plays by the rules.  Here’s an example of how we stay on top of prosecutors to make sure they give us every piece of evidence: Second Request Discovery

Read the Court’s decision here: Smith v Cain

Ryan Pacyga defends people accused of crimes in state and federal courts across the nation.  He is based in Minneapolis, MN.  For more information, visit www.arrestedmn.com

Drive-by shooting refers to an incident in which someone fires a gun from a vehicle at another vehicle, a person, a structure, or another stationary object.  Most often, drive-by shootings involve multiple suspects and multiple victims.  Although some drive-by shootings result in the victim’s death, many result in injuries to innocent bystanders or no injuries at all.

The drive-by shooting law is found in Minnesota Statute § 609.66:

(a) Whoever, while in or having just exited from a motor vehicle, recklessly discharges a firearm at or toward another motor vehicle or a building is guilty of a felony and may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $6,000, or both.

(b) Any person who violates this subdivision by firing at or toward a person, or an occupied building or motor vehicle, 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.

(c) For purposes of this subdivision, “motor vehicle” has the meaning given in section 609.52, subdivision 1, and “building” has the meaning given in section 609.581, subdivision 2.

In State v. Ferguson, Michael Ferguson was convicted of one count of felony drive-by shooting at an occupied building and eight counts of second-degree assault, each by aiding and abetting.

Here’s what happened in the case.  Ferguson and his two brothers drove to a house in St. Paul to talk with someone about a dog one of the brothers had purchased.  The three men were not allowed in and from a second story window an occupant told them to leave.  The brothers returned to their van.  As the van passed the house, Ferguson handed his brother Marcus a gun.  Marcus fired approximately six rounds at the house.  Eight people were inside – six children, BUT no one was hit.  No one was injured.  Besides minor property damage, there was no lasting result of this incident.

Unlike the crime of assault, the Supreme Court, FOR THE FIRST TIME, found that the drive-by shooting statute does not require the occupants of the building to be injured, put in fear, or even aware of the shooting.  Essentially, the Court has determined that if they are going to make this a victimless crime, they want the sentence to be extended for every non-victim that can be found.

Minnesota law “prohibits multiple sentences, even concurrent sentences, for two or more offenses that were committed as part of a single behavioral incident.”  In other words, Minnesota law has established a “one sentence per victim” rule.  Here, the majority opinion finds that the occupants of the apartment are not victims of the drive-by shooting but are victims of assault.  Thus, the Court allows Ferguson to be sentenced for both the drive-by shooting statute AND the assault statute.

The dissent offers several reasons why the majority opinion turns Minnesota law on its head: (1) Minnesota law limits punishment to a single allegation where a single behavioral incident result(s) in violation of more than one criminal statute, (2) the new theory that occupants of a building are not victims of drive-by shooting is not supported by Minnesota law (3) Minnesota law requires that punishment can not be grossly out of proportion with the defendant’s culpability.  Re-read the facts of the case and let us know what you think of Mr. Ferguson’s sentence.

Here is why this decision is dangerous: think of an incident where someone fires a gun at a high-rise apartment with hundreds of occupants.  According to Ferguson, each and every one of these occupants will enhance the sentence for the defendant.  Lesson: if you are going to shoot at a shared housing complex, shoot at a duplex.

Why go with Ryan Pacyga Criminal Defense?  Ryan Pacyga has experience fighting for your constitutional rights.  In 2007, the state of Minnesota charged an 18 year-old Minneapolis citizen with 18 criminal charges; one being attempted murder for the benefit of a gang after a drive by shooting.  The prosecution argued Mr. Pacyga’s client was a gang member and that the shooting resulted from a feud between rival gangs.  Ryan Pacyga fought for and obtained a dismissal for his client.  For more information on this case, see the “results” tab at www.arrestedmn.com.

Read the court’s opinion in its entirety: State v Ferguson re no victims

Ryan Pacyga defends people accused of crimes in state and federal courts around the nation.  He is based in Minneapolis, MN.  For more information, visit www.arrestedmn.com

Defense lawyers and prosecutors often present the judge with competing versions of the instructions.  Ultimately, the judge must decide which version of the instructions are given to the jury.

In State v. Fleck, the Minnesota Court of Appeals issued a decisive opinion regarding jury instructions.  This case involved an assault charge where the defendant, coming down from seven-day binge, stabbed his girlfriend.  By the time the defendant reached the hospital he was in a coma and survival was “uncertain.”  At trial, the prosecutor objected to the defendant’s request for a voluntary-intoxication instruction.  The district court agreed and refused to give the voluntary intoxication instruction to the jury.  Therefore, the jury did not have an opportunity to factor the defendant’s intoxication into account and decide if he was too intoxicated to form the intent required to commit the assault.

This is important because courts distinguish between “general-intent” and “specific-intent” crimes.  While general-intent crimes require the defendant to intentionally engage in the act that is prohibited by statute, specific-intent crimes require something in addition to the intentional act: one must intend to undertake the act and intend a specific consequence.  Because the distinction between these crimes is not always intuitive it is imperative for judges to issue instructions that allow jurors to understand the distinction.

In a pretrial request for jury instructions the defendant in Fleck asked for a voluntary-intoxication instruction.  He was denied.  The defendant renewed this request during trial proceedings.  Again, he was denied.  However, when the proposed jury instructions were read to the jury, defense counsel did not object.  Failing to object that last time made it more difficult for the defendant to succeed on appeal.  In an odd decision, the trial court agreed to read the voluntary intoxication instruction for some of the assault charges, but not others.  Predictably, the jury returned “not guilty” verdicts on the charges accompanied with the voluntary-intoxication instruction and “guilty” verdicts on those without the instruction.

Mr. Fleck appealed his conviction, arguing that assault based on the intentional infliction of bodily harm is a specific-intent crime requiring a voluntary-intoxication defense.  The Court of Appeals agreed.  In reaching its decision, the Minnesota Court of Appeals relied on the State v. Edrozo, 587 N.W.2d 719 (Minn. 1998): assault is a specific intent crime, requiring the state to prove beyond a reasonable doubt that the defendant intended to cause bodily harm, and State v. Vance, 734 N.W.2d 650, where the supreme court held “intent to harm” is an essential element of an assault based on the intentional infliction of bodily harm.  Would an individual on a seven-day binge and under the influence of 40 anti-psychotic pills have the requisite intent to harm another?  The Court of Appeals did not think so.  The case was reversed and remanded because the defendant was entitled to a jury instruction on the defense of voluntary-intoxication and the jury should be able to consider that when deliberating.

What does this mean?  Your lawyer must be up-to-date on the law, have trial experience, know when to object, and know how to craft jury instructions.  Otherwise, the jury does not have the correct information and could return an unjust verdict.  If you are being accused of a serious crime, call Ryan Pacyga Criminal Defense at 612-339-5844 to speak to Mr. Pacyga, and please refer to the Recent Cases tab for additional information about results the firm has achieved in other similar cases, both in and out of court.

I suppose some judges worry that the lawyers will be confrontational to the jurors, especially the lawyer that lost their case. This may be true in some instances, but my guess is that it’s the exception. Maybe judges worry that the secrecy of deliberations will be exposed if lawyers discuss the case with jurors after verdict. Yet that does not need to be a concern.

There is so much value in permitting lawyers to talk to willing jurors after verdict. First, they are lay persons, usually with little or no training in the law. As such, they sometimes see things differently than lawyers, because sometimes us lawyers can get too wrapped up in the legal technicalities and forget what really matters to jurors exercising common sense. Talking to jurors helps lawyers keep focused on what matters to them, which is all that matters at the end of the day.

Second, jurors can provide beneficial feedback to a variety of questions: What did I do well? What could I have done better? What theme came across in my closing argument? Was my powerpoint effective during closing? Did I seem too mean to Witness X during cross-examination? Did I do anything to turn you off? Did you wish you had more information? What challenges did you personally have at arriving at a verdict? None of these questions violate the secrecy of the deliberation process at a whole, because they are directed to that particular juror’s state of mind and do not go into discussions between jurors.

Third, I think discussions with the lawyer help the juror to get a full appreciation for the service that they just performed. Jurors love to ask me questions when I talk to them. Win or lose, I treat them the same way, because their feedback is invaluable to me.

Judges ALWAYS talk to the jury after a trial, and without a doubt jurors have plenty of questions for them. But the lawyers aren’t present for that. I always ask judges for constructive criticism after a trial. No matter how many cases you’ve taken to trial, you can always get better. While it’s great to get feedback from a judge, the feedback from a juror is equally if not more valuable.

To be sure, there are jurors that do not want to talk to the lawyers after a trial. That’s their right, and they shouldn’t be pressured into doing so. But just as jurors shouldn’t be forced to talk to the lawyers, jurors shouldn’t be rushed out of the courthouse and concealed from the lawyers. Let them make their own decision on whether they want to provide feedback.

Judges want trials to run efficiently and professionally. It makes their job easier and more enjoyable. And the criminal justice system functions best when the lawyers are performing at their best. Permitting lawyers to get invaluable feedback from jurors ensures that lawyers will continue to hone their craft, which will in turn enhance the criminal justice system as a whole. Society wins when the system functions at its best.

Ryan Pacyga defends people accused of crimes in state and federal courts around the nation.  He is based in Minneapolis, MN.  For more information, visit www.arrestedmn.com