This opinion is nonprecedential except as provided by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
A23-0449
State of Minnesota,
Respondent,
vs.
Keith Alan Powelson,
Appellant.
Filed December 26, 2023
Affirmed
Hooten, Judge *
Lac qui Parle County District Court
File No. 37-CR-21-297
Keith Ellison, Attorney General, Ed Stockmeyer, Assistant Attorney General, St. Paul,
Minnesota; and
Richard Stulz, Lac qui Parle County Attorney, Madison, Minnesota (for respondent)
John E. Mack, New London Law, P.A., New London, Minnesota (for appellant)
Considered and decided by Cochran, Presiding Judge; Segal, Chief Judge; and
Hooten, Judge.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
A jury found appellant guilty of four counts of second-degree assault for
brandishing and discharging a shotgun during a disagreement involving a father,
grandfather, and two children. In this direct appeal from the final judgment of conviction
and sentence, appellant alleges: (1) the district court committed plain error by allowing the
victims to testify about their fear responses to appellant’s conduct; (2) the evidence was
insufficient to prove beyond a reasonable doubt that appellant acted with the intent to cause
the victims to fear immediate bodily harm; and (3) the district court abused its discretion
by denying his motion for downward departure at sentencing.
Because it was relevant circumstantial evidence of appellant’s intent, the district
court committed no error in allowing the victims’ testimony regarding their fear. Because
the circumstances proved at trial support an inference of guilt and because appellant’s
purported hypothesis other than guilt relies upon “mere conjecture,” the evidence was
sufficient. And because the district court acted within its discretion in denying appellant’s
departure motion, we affirm.
FACTS
In November 2021, appellant Keith Alan Powelson agreed to an in-person meeting
with another individual to finalize a transaction they had started through a listing posted to
an online social media marketplace. Powelson would receive cash and a used vehicle in
exchange for several cords of firewood on Powelson’s property.
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Equipped with a tractor and trailer and accompanied by two children and their
grandfather, the individual met Powelson at his farmstead. Using the tractor, the family
began loading the trailer with firewood. Believing they were taking more than he had
agreed to sell them as part of the exchange, Powelson became frustrated, and an argument
arose. The argument was apparently brief and largely inaudible, due to the noise of the
tractor. But while the family continued to load wood into the trailer, Powelson obtained a
shotgun from his house, stood about sixty feet from the family, discharged a single shotgun
shell into the air, and shook the shotgun with both hands above his head. The family fled
the property; Powelson telephoned law enforcement, reporting them for stealing firewood.
In response, a sheriff’s deputy was dispatched to Powelson’s farm to take a report.
During his conversation with the deputy, Powelson admitted to discharging one round from
his shotgun and stated he did so to “get their attention.” The deputy arrested Powelson.
Respondent State of Minnesota charged Powelson with four counts of second-degree
assault with a dangerous weapon pursuant to Minn. Stat. § 609.222, subd. 1 (2020), for
discharging a firearm with intent to cause fear of immediate bodily harm in each of the four
family members.
Each of Powelson’s four victims, including the two children, testified at trial,
describing, without an objection, their fear of bodily harm and other subjective reactions
to Powelson’s discharge and brandishing of the shotgun. The jury returned guilty verdicts
on all four counts. Sentenced on one count, Powelson received the statutory presumptive
minimum sentence of 36 months, pursuant to Minn. Stat. § 609.11, subds. 5, 9 (2020).
Powelson appeals.
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DECISION
I. The district court did not commit error by allowing testimony from the victims
as circumstantial evidence of Powelson’s intent.
Appellate courts review an unobjected-to error under the “plain error test.” State v.
Myhre, 875 N.W.2d 799, 804 (Minn. 2016). “In order to meet the plain error standard, a
criminal defendant must show that (1) there was an error, (2) the error was plain, and (3) the
error affected the defendant’s substantial rights.” Id. (citing State v. Griller, 583 N.W.2d
736, 740 (Minn. 1998)). If the three prongs of the plain-error test are met, the appellate
court may correct the plain error only if it “seriously affected the fairness, integrity, or
public reputation of judicial proceedings.” Pulczinski v. State, 972 N.W.2d 347, 355-56
(Minn. 2022).
Whoever assaults another with a dangerous weapon is guilty of second-degree
assault. Minn. Stat. § 609.222, subd. 1. Assault includes acts done with intent to cause
fear in another of immediate bodily harm. Minn. Stat. § 609.02, subd. 10(1) (2020). “With
intent to” means that the actor either “has a purpose to do the thing or cause the result
specified” or “believes that the act, if successful, will cause that result.” Minn. Stat.
§ 609.02, subd. 9(4) (2020). Offenses meeting this definition are sometimes referred to as
“assault-fear” offenses. State v. Fleck, 810 N.W. 2d 303, 308 (Minn. 2012).
During Powelson’s trial, the victims each testified about their fear of immediate
bodily harm and other subjective reactions to Powelson’s discharge and brandishing of the
shotgun. Because Powelson did not object to this testimony, we review for plain error.
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Myhre, 875 N.W.2d at 804. The threshold step in a plain error analysis is determining
whether there is an error. Id.
Powelson argues that the district court’s “admission of [the victims’] statements of
fear was erroneous because such evidence is not relevant” to determining the intent with
which he acted or if his act was “done without intent to cause fear.” He claims that since
he testified that he did not intend to cause fear of bodily harm when he fired the gun, he is
not culpable, even if the victims feared or reasonably feared that his actions would cause
them immediate bodily harm.
Whether Powelson acted with intent to cause the victims to fear immediate bodily
harm is a question regarding his own state of mind at the time of the action; however,
Powelson’s conclusion that a victims’ subjective reaction to his actions is not relevant to a
determination of his state of mind is incorrect. Victims of assault-fear offenses may testify
about the fear they subjectively experienced in response to a defendant’s conduct. State v.
Hough, 585 N.W.2d 393, 396 (Minn. 1998) (although a defendant’s intent is the focal point
of proving an assault-fear claim, “the effect of the assault on the victim is frequently
introduced as trial evidence of the defendant’s intent”). Such testimony is relevant
circumstantial evidence that a fact-finder might rely on to make reasonable inferences
about the intent and purpose with which a defendant was acting, and the weight afforded
thereto is a credibility matter for the jury. See State v. Fardan, 773 N.W.2d 303, 321
(Minn. 2009) (a defendant’s intent may be reasonably inferred from other facts and is
usually resolved circumstantially by the fact-finder); Davis v. State, 595 N.W.2d 520, 525-
26 (Minn. 1999) (the fact-finder can discern a defendant’s intent from the totality of
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circumstances); State v. Schweppe, 237 N.W.2d 609, 614 (Minn. 1975) (a victim’s reaction
to threatening words or conduct is “circumstantial evidence relevant to the element of intent
of the defendant in making the threat”); Hough, 585 N.W.2d at 397 (a person intends to
cause fear of immediate bodily harm if such fear would be a “natural and probable
consequence” of his conduct).
It is evident that the challenged testimony is consistent with the well-established
rule that Powelson’s intent is a fact which may be proven by circumstantial evidence,
Fardan, 773 N.W.2d at 321, reasonably inferred from other facts such as testimony by a
victim as to how they reacted to the threatening conduct, Hough, 585 N.W.2d at 396. We
therefore discern no error by the district court. 1
II. The evidence is sufficient to establish that Powelson acted with intent to cause
fear of immediate bodily harm.
Within Powelson’s argument that admission of the victims’ testimony was an
evidentiary error, he also questions the sufficiency of the evidence for his conviction. He
argues that even if the victims’ testimony was admitted without error, then the evidence
that he acted with the intent necessary to support an assault-fear conviction pursuant to
Minn. Stat. § 609.222, subd. 1, is nevertheless insufficient because it fails to prove that he
intended to cause fear of imminent bodily harm when he brandished and discharged the
shotgun.
Not fully appreciating the extent to which these two matters are reviewed as entirely
separate inquiries, the assertion as briefed generally lacks relevant argument and authority
1 Finding no error, the remainder of the plain error test need not be examined.
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consistent with the standard of review for mounting a sufficiency challenge. We ordinarily
decline to review issues that lack relevant argument and authority because inadequately
briefed issues are not properly before an appellate court. State v. Butcher, 563 N.W.2d
776, 780 (Minn. App. 1997), rev. denied (Minn. Aug. 5, 1997); see McKenzie v. State, 583
N.W.2d 744, 746 n.1 (Minn. 1998) (applying the rule that arguments not briefed are waived
in an appeal in which the appellant “allude[d] to” an issue but “fail[ed] to address them in
the argument portion of his brief”). Although appellate courts may decline to reach
inadequately briefed issues, we elect to address Powelson’s argument on its merits.
When reviewing an appellant’s claim that a conviction fails for insufficiency of the
evidence, this court examines the record to determine whether the facts or circumstances
proved at trial, and the legitimate inferences drawn consistent from them, would be
sufficient to permit the jury to reasonably conclude that the defendant was guilty beyond a
reasonable doubt of the offense of which he was convicted. State v. Griffin, 887 N.W.2d
257, 263 (Minn. 2016). If the sufficiency challenge is directed toward a guilty verdict that
relied on circumstantial evidence to prove an element of the offense, our review consists
of a two-step inquiry. State v. Silvernail, 831 N.W.2d 594, 598-99 (Minn. 2013).
In step one, we review the evidence in the light most favorable to guilt and reject
any evidence that conflicts with the verdict to identify the “circumstances proved” and ask
whether those circumstances permitted the jury’s finding of guilt. State v. Allwine, 963
N.W.2d 178, 186 (Minn. 2021). In step two, we determine whether a contrary,
nonspeculative, and reasonable inference of innocence can be drawn from the same set of
circumstances proved. Id. This means the circumstances proved must be “consistent with
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guilt and inconsistent with any rational hypothesis except that of guilt.” State v. Andersen,
784 N.W.2d 320, 329 (Minn. 2010). An appellant’s alternative hypothesis to guilt is not a
rational hypothesis if it is based on “mere conjecture.” State v. Tscheu, 758 N.W.2d 849,
858 (Minn. 2008). See also State v. Ostrem, 535 N.W.2d 916, 923 (Minn. 1995) (a
hypothesis is not rational unless the appellant points to evidence in the record that is
consistent with a theory other than guilt). Ultimately, challenges to the sufficiency of
evidence fail and the conviction is affirmed if an appellant’s proposed theory of innocence
seems unreasonable in light of the circumstances proved. State v. Taylor, 650 N.W.2d 190,
206 (Minn. 2002).
The circumstances proved at trial which are relevant to Powelson’s intent include:
(1) during a brief verbal dispute between Powelson and another individual regarding an
exchange of goods, which occurred in the presence of two children, Powelson retrieved a
shotgun; (2) Powelson fired the shotgun into the air, and then brandished it above his head,
shaking it with both hands; (3) concerned for their safety, the family fled the property;
(4) Powelson called law enforcement to report the family for stealing his wood (a deputy
was dispatched “for a verbal argument over a civil matter” that was “over one party taking
more wood than had been agreed upon”); and (5) his discharge of the shotgun became
known to law enforcement after Powelson began explaining the incident to the deputy
responding to his call.
The jury’s conclusion that Powelson intended his conduct to cause the family
immediate fear of bodily harm is consistent with and permitted by these circumstances. As
to the question of whether these circumstances also exclude any inference of innocence
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that is nonspeculative and reasonable, Powelson contends that an inference other than guilt
exists for two reasons.
First, he contends that “[a] warning shot is meant to get attention or to get a party to
stop, not to cause them to have fear of death or great bodily harm.” But this assertion is
not a circumstance proved because it is conflicts with the state’s evidence and is
inconsistent with the jury’s verdict. See Allwine, 963 N.W.2d at 186 (“In identifying the
circumstances proved, we defer ‘to the jury’s . . . rejection of evidence in the record that
conflicted with the circumstances proved by the State.’”) (quoting State v. Al-Naseer, 788
N.W.2d 469, 473 (Minn. 2010)). See also id. (“[W]e are bound to disregard evidence that
is inconsistent with the jury’s verdict when identifying the circumstances proved”) (citing
State v. Harris, 895 N.W.2d 592, 601 (Minn. 2017)). And in this context, 2 that inference
is neither contrary nor reasonable. Id. (requiring a “contrary, nonspeculative, and
reasonable inference of innocence”).
Powelson’s theory is not contrary because an inference of intent to cause fear of
immediate bodily harm is not foreclosed by an intent to capture the family’s attention;
instead, the fear of harm caused by gunfire offers an explanation for the very reason why
Powelson knew that firing the shotgun would achieve his desired result of commandeering
2 This is not a case about whether Powelson had legal justification for the use of or threat
to use force or whether such force was reasonable under the circumstances. Limited to a
question of the intent or purpose with which Powelson acted, our analysis in this decision
has no persuasive relevance to the resolution of an unrelated question that might arise in
another case; for example, whether firing a warning shot may be a reasonable use of force.
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their attention. Accordingly, his first theory of innocence is merely another link in a chain
of inferences consistent with a hypothesis of guilt.
And even if Powelson’s theory—that he only meant to get the family’s attention—
is contrary, it nonetheless is not reasonable. Additional circumstances proved which are
relevant to this theory, include: (1) when Powelson exited his house, he did not try to speak
with any of the family members, gesture at them, or otherwise attempt to get their attention
before firing the shotgun; (2) the grandfather and father even had their backs to Powelson
when he fired the shotgun; (3) afraid of being shot, they scrambled off Powelson’s property
in such a hurry that they did not sign the vehicle title over to Powelson and left behind a
load of wood they never returned to retrieve; (4) the grandfather testified that after hearing
the warning shot, he was alarmed that “[t]he next one might be in the back”; and (5) the
father testified:
I had my step-dad and my oldest boy get in the truck
and leave and had my youngest boy run for the pickup and I
got on the tractor and literally drove it as fast as I could onto
the car trailer, dropped it, and put it in gear, shut it off. I didn’t
chain it down or anything. I just drove outta there and I chained
it down about a mile away from his place . . . my son was sitting
in the passenger seat of my pickup, looking right back at me as
I loaded [the] tractor and all I can think about is, am I gonna
get shot in the back with my kid watching me or not? . . . If he
wanted to talk, all he had to do was walk over and talk.
Under these circumstances—particularly when Powelson raised the shotgun above
his head in a menacing manner immediately after discharging a round—no reasonable
person or child would think that Powelson was just trying just to get their attention and had
no intent to cause fear of immediate bodily harm. Powelson’s first theory, that he only
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meant to get their attention, is not a reasonable inference of innocence that emerges from
the circumstances proved.
Second, Powelson contends that he “initiated contact with the police, which he
would not have done had he intended his conduct to cause the victims to fear great bodily
harm.” But the notion that his willingness to contact law enforcement negates an inference
that he discharged the shotgun with intent to cause fear of immediate bodily harm is mere
conjecture that does not withstand scrutiny. Tscheu, 758 N.W.2d at 858. Powelson does
not point to, and we are not aware of, any evidence in the record indicating that he even
contemplated his own risk of exposure to potential criminal liability prior to contacting law
enforcement. Instead, the circumstances of his phone call suggest his eagerness to contact
law enforcement was motivated by a hope that such phone call would lead to legal
consequences for the family members who took his firewood. Moreover, Powelson fails
to square this hypothesis with his concession in his brief that he was criminally culpable
under other statutes, as that concession suggests he was therefore still exposing himself to
criminal liability by calling law enforcement. Accordingly, Powelson’s second theory of
innocence is not a reasonable inference of innocence that is supported by the circumstances
proved.
III. The district court acted within its discretion when sentencing Powelson.
“We afford the [district] court great discretion in the imposition of sentences and
reverse sentencing decisions only for an abuse of that discretion.” State v. Soto, 855
N.W.2d 303, 307-08 (Minn. 2014) (quotation omitted). Moreover, “[t]his court will not
generally review a district court’s exercise of its discretion to sentence a defendant when
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the sentence imposed is within the presumptive guidelines range.” State v. Delk, 781
N.W.2d 426, 428 (Minn. App. 2010), rev. denied (Minn. July 20, 2010) (emphasis added).
Under this deferential standard of review, the fact that a different sentencing court could
find permissible grounds for departure on the same record does not mean that it was an
abuse of discretion for this sentencer to decline to depart. State v. Bertsch, 707 N.W.2d
660, 668 (Minn. 2006) (an appellate court “will not ordinarily interfere with a sentence
falling within the presumptive sentence range, either dispositionally or durationally, even
if there are grounds that would justify departure”) (quotation omitted)); State v. Wall, 343
N.W.2d 22, 25 (Minn. 1984) (“the mere fact that a mitigating factor is present in a particular
case does not obligate the court to . . . impose a shorter term than the presumptive term”);
State v. Pegel, 795 N.W.2d 251, 253 (Minn. App. 2011) (only in a “rare case” will a
reviewing court reverse the imposition of a presumptive sentence).
For violating Minn. Stat. § 609.222, subd. 1, Powelson received a 36-month
sentence pursuant to Minn. Stat. § 609.11, subds. 5, 9. A 36-month duration and
disposition of commitment reflects the statutory presumptive minimum sentence for the
offense he committed; though a district court has discretion to make sentencing departures
even further below this presumptive minimum if it “finds substantial and compelling
reasons” for doing so. Minn. Stat. § 609.11, subd. 8 (2020).
Powelson contends that the district court abused its discretion by not departing from
the presumptive minimum sentence, either dispositionally or durationally. He argues that
if his “violation was a crime at all, it is the lowest version of that crime imaginable,” and
“it is hard to think that any rational judge would sentence a man to three years in prison for
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firing a single shot into the air.” We are unpersuaded. As the 36-month duration of the
presumptive minimum sentence that he received presumably already reflects these kinds of
considerations, this reasoning is neither substantial nor compelling. And although he notes
that he perhaps could have been charged with or pleaded down to an offense with a lighter
sentence than the one he was ultimately convicted of violating, this is not itself a basis for
appellate relief, even if true. While he contends “there is enough in the record to justify
both a dispositional and a durational departure,” our inspection of the record that we do
have available offers no indication the district court failed to properly exercise its discretion
when affording Powelson the presumptive minimum sentence. We are otherwise unable
to review the findings of the district court with respect to the sentence Powelson received. 3
Because we give substantial deference to sentencing decisions within the
presumptive guidelines and because Powelson received the presumptive minimum
3 Powelson did not order a transcript of his sentencing hearing.He contends this court does
not need a sentencing transcript: “a transcript should be unnecessary.” He adds, “if the
state thought the sentencing of defendant required a transcript, it could have ordered one
itself.” He misunderstands his burden.
If an appellant fails to prepare the record necessary for this court to conduct a meaningful
appellate review, we may decline to consider those arguments. See State v. Carlson, 161
N.W.2d 38, 40 (Minn. 1968) (noting that it is “elementary that a party seeking review has
a duty to see that the appellate court is presented with a record which is sufficient to show
the alleged errors and all matters necessary to consider the questions presented”); Bender
v. Bender, 671 N.W.2d 602, 605 (Minn. App. 2003) (clarifying that appellant’s duty
includes the preparation of any necessary transcripts).
As we would be justified in declining to review Powelson’s sentencing arguments
altogether, to the extent we elected to address them here, we did so as courtesy.
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sentence for the offense, we are convinced that the district court acted within its discretion
when sentencing Powelson.
Affirmed.
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