An Unfriendly Push Which Results in Unintended Harm Is Still An Assault

State v. Dorn, Minn.Ct.App., 2/16/2016, review granted, 4/19/2016. Ms. Dorn attended what the court described as a "large outdoor drinking party."  Ms. Dorn took umbrage at something that a friend of the fellow who is about to fall into the bonfire said and so she pushed this fellow with two hands.  This fellow, whose back was to the bonfire, lost his balance; Ms. Dorn pushed him again, whereupon this fellow fell into the bonfire.  He got third degree burns.

The state charged Ms. Dorn with first degree assault, harm.  She elected for a bench trial.  The trial court found that while Ms. Dorn had not intended to push the fellow into the fire, she did intentionally push him two times, which resulted in him falling into the fire and causing significant burns.  Ms. Dorn argued that the state had to prove that she had intended to push him into the fire because "substantial bodily harm" is an element of the offense.  Ms. Dorn did not argue that there had been an intervening event between the pushing and the landing in the fire that relieved her of criminal responsibility.  

The court relies on State v. Fleck, 810 N.W.2d 303 (Minn. 2012) to conclude that because assault, harm is a general intent crime, all that the state has to prove is an intentional physical act, which resulted in the requisite harm.  The court recognized the harshness of this conclusion for Ms. Dorn:

We agree that this leads to a harsh result where Dorn engaged in rather de minimis behavior when viewed in the context of the spectrum of actions that lead to the infliction of harm. 

The court does temper the global application of its opinion by saying that the physical act must not only be intentional, but done in a "hostile and forceful manner."  

Because pushing is a volitional act and when committed in a hostile and forceful manner, is an assault, regardless of whether harm was intended, and appellant’s pushes were a substantial factor in causing the complainant’s injury, we affirm. 

So, one supposes, had Ms. Dorn tickled the fellow who then laughed so uncontrollably that he fell into the fire - well, that's not an assault.  Or, if the two had exchanged high fives which led the fellow to fall into the fire, well you get the idea, although the supreme court may not