Chapter 609..02 Subd. 10.Assault. "Assault" is:
(1) an act done with intent to cause fear in another of immediate bodily harm or death; or
(2) the intentional infliction of or attempt to inflict bodily harm upon another.
I'm not a criminal lawyer, I do civil law. With that being said, a good defense lawyer will look at that statute and attack the Mens rea or mental elements, which are the "intent to cause fear" and "intentional infliction." This would go directly to Nelson's state of mind.
Under (1), it doesn't matter if the victim couldn't be in fear due to being unconscious all that matters is that Nelson kicked or tried to kick with the intent to cause fear of immediate bodily harm or death. Moreover, before the victim was unconscious, if Nelson did anything with the intent to cause fear of immediate bodily harm or death, then Nelson is guilty of assault. For instance, if Nelson threatened the victim verbally or with gestures with intent to cause fear of immediate bodily harm or death, then Nelson is guilty of assault.
Under (2), Nelson had to specifically kick the victim with intent to injure or attempt to kick the victim with intent to injure. That's right, Nelson did not have to even connect with the kick. He simply had to believe in his mind that he was kicking his leg in order to injure the victim. If he kicked the victim without that intent but the victim was injured, then Nelson is not guilty under this section. Knowing that kicking the victim could be injured isn't enough. Nelson had to kick with intent to injure.
It's hard to say anything about (1), because I haven't looked at any videos, and I don't know what was done or said leading up to the fight. So, I'm just going to ignore that for, but Nelson could definitely be found guilty under this section.
However, a good defense lawyer may be able to beat (2). Ironically, the more drunk Nelson was, the easier it will be for the defense.
Chapter 609.075 Intoxication as Defense:
An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.
That's right, if you're drunk, then a defense lawyer can argue that the aggressor (Nelson in this case) could not have formed the specific intent in his mind necessary to be found guilty because the aggressor was mentally impaired from reaching that level of intent due to intoxication. A defense lawyer could concede that Nelson was drunk and even knew he could injure someone, but Nelson was so impaired that Nelson did not intend to injure the victim. We need to know how drunk Nelson was, but he could legitimately win this argument.
I would bet that Nelson is eventually found guilty or pleads out, but he can mount a defense that he could prevail on. I don't know what degree of assault Nelson could realistically get convicted on, and I don't really want to take the time to look or lay it out.
With all that being said, Nelson would probably be screwed in civil court. I, or someone with equal or better skill, could probably ruin Nelson financially for the rest of his life. But that is another matter.
As for stcgopher, well, you don't know what you're talking about, and you're making nonsensical, moronic, red-herring challenges that you might not even be able to win. Just stop.
