County District Court File No. 27-CR-14-36166
Swanson, Attorney General, St. Paul, Minnesota; and Michael
O. Freeman, Hennepin County Attorney, Linda K. Jenny,
Assistant County Attorney, Minneapolis, Minnesota (for
R. Martinez, Matthew T. Martin, Minneapolis, Minnesota (for
Considered and decided by Kirk, Presiding Judge; Schellhas,
Judge; and Bratvold, Judge.
domestic assault is not a lesser-included offense of
argues that the district court erred by sua sponte
considering and convicting him of misdemeanor domestic
assault as a lesser-included offense of second-degree
assault. We reverse.
Cyrus Nyagwoka was in a relationship with J.O. from 2010
until late 2014. At the end of their relationship, J.O. began
seeing G.N., an Arizona resident. Nyagwoka and J.O. remained
in contact with each other, and Nyagwoka still possessed a
key to J.O.'s apartment. In December 2014, G.N. was
visiting J.O. in her apartment when Nyagwoka entered.
Nyagwoka learned of J.O.'s new relationship with G.N. and
became upset, demanding to know more about the relationship.
When G.N. stated that he would be late for a flight, Nyagwoka
insisted on taking G.N. to the airport, which he did. Later
that evening, Nyagwoka contacted J.O. to ask her whether she
had driven to the airport to retrieve G.N. after he had
dropped him off. The question led J.O. to suspect that
Nyagwoka was jealous of her new relationship and was watching
next day, J.O. was in her apartment talking on the phone with
a friend when Nyagwoka returned. Nyagwoka believed J.O. was
talking to G.N. and demanded that J.O. give him the phone.
J.O. threw the phone into a closet to keep her friend on the
line, and Nyagwoka pushed J.O. onto the floor and kicked and
stepped on her. J.O.'s friend heard some of the activity
over the phone and called 911.
the assault, Nyagwoka escorted J.O. to his vehicle and drove
northbound. J.O.'s friend eventually was able to call
her, and J.O. explained that she was in Nyagwoka's
vehicle. J.O.'s friend again called 911 to update the
police on J.O.'s status. Based on the 911 calls, a police
officer was dispatched to J.O.'s apartment on two
occasions. On the first visit, the officer did not find
anyone at J.O.'s apartment. On the second, the officer
encountered J.O. stumbling outside her apartment. J.O. told
the officer that Nyagwoka assaulted her. Specifically, J.O.
claimed that Nyagwoka punched her at least 20 times and
threatened her with a knife. J.O. was taken to the hospital,
and an examination revealed bruises, scrapes, and tenderness
to her neck, ribs, finger, wrist, and upper arm.
State of Minnesota charged Nyagwoka with second-degree
assault in violation of Minn. Stat. § 609.222, subd. 1
(2014) (assault with a dangerous weapon) and terroristic
threats in violation of Minn. Stat. § 609.713, subd. 1
(2014). At a bench trial, J.O. testified that
Nyagwoka threatened her with a ten-inch knife during the
assault and told her "this is your last day." After
trial, the district court found that Nyagwoka had injured
J.O. but concluded that reasonable doubt existed as to
whether he threatened her with a knife and uttered "this
is your last day." The district court then sua sponte
considered the charge of misdemeanor domestic assault under
Minn. Stat. § 609.2242, subd. 1 (2014), as a
lesser-included offense of second-degree assault and found
Nyagwoka guilty of misdemeanor domestic ...