State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1147

State of Minnesota,
Respondent,

vs.

Allen Lawrence Scarsella,
Appellant.

Filed April 29, 2019
Affirmed
Connolly, Judge

Hennepin County District Court
File No. 27-CR-15-33503

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Florey, Judge; and Kirk,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges his assault and riot convictions, arguing that he is entitled to a
new trial on the grounds of newly discovered evidence, which the state suppressed in
violation of Brady v. Maryland , and because the district court erred when it failed to
suppress certain cell phone evidence, which was the product of an insufficiently particular
warrant that was unsupported by probable cause. Appellant also argues that he is entitled
to a new trial because the district court abused its discretion when it gave an unmodified
jury instruction dealing with the revival of an aggressor’s right to self-defense. Finally, he
argues the state presented insufficient evidence necessary to convict him of riot in the
second degree. Because (1) even if the state inadvertently failed to disclose the alleged
newly discovered evidence, appellant was not prejudiced; (2) the warrant was severable,
particularized, and supported by probable cause; (3) the district court did not abuse its
discretion by giving the standard jury instruction; and (4) the re was sufficient evidence
presented to sustain the riot charge, we affirm.
FACTS
In November 2015, appellant Allen Lawrence Scarsella shot five African American
men during a protest taking place at the Fourth Police Precinct in North Minneapolis.
Appellant was charged by amended complaint with one count of second-degree armed riot;
five counts of second -degree assault with a dangerous weapon—substantial bodily harm;
and one count of first-degree assault—great bodily harm. Appellant asserted self-defense,

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arguing that one of the victims had threatened him with a knife before any gun shots were
fired.
Shortly after the shooting, p olice officers obtained a warrant to search appellant’s
cell phone. The warrant authorized the officers to gather “all d ata contained in th e cell
phone including: call logs, contact list, voice mails, text messages, photos, videos, and
recordings.” The evidence recovered from the cell phone search include a bevy of racially
insensitive communications (some of which discu ssed shooting African Americans),
photos, and a video of appellant at a gun range, which displayed his ability to hit targets on
a quick -draw. Appellant moved to suppress the cell phone evidence, arguing that the
warrant was insufficiently particular and unsupported by probable cause. The district court
denied his motion and the evidence was admitted.
The jury trial lasted over two weeks and more than 30 witnesses were called to
testify. Both sides submitted a great deal of evidence concerning appellant’s alleged use
of defensive force. And before the case was submitted to the jury, appellant requested the
district court modify the standard jury instructions to state that the right to self -defense is
not forfeited by words alone, and that appellant could not be considered the aggressor just
because he had a gun . The district court denied appellant’s request. The jury found
appellant guilty on all charged counts. The district court sentenced appellant to 182 months
in prison.
After sentencing but before his appeal, appellant discovered that Officer Schroeder,
a police officer uninvolved with the shooting investigation, believed that one of the
shooting victim’s, W.H., had a reputation for violence. Officer Schroeder had told another

4
officer, Officer Aguirre, who was a t the police station on the night of the shooting, to
inform the defense team that he was willing to share this information; but Officer Aguirre
was believed to have forgotten to do so. This court granted appellant’s motion to stay the
appeal in order to initiate postconviction proceedings. Appellant filed a postconviction
petition arguing that the state failed to disclose the police officer’s opinion evidence
regarding the vic tim’s reputation for violence; and argued that this opinion constituted
newly discovered evidence. The district court denied the petition. This court, thereafter,
lifted the stay of the appeal.
Appellant now argues that he is entitled to a new trial because (1) the opinion
evidence of W.H.’s reputation for violence should have been disclosed and constitutes
newly disc overed evidence , (2) the district court erred when it failed to suppress the
evidence discovered on his cell phone, and (3) the evidence presented at trial did not
support giving the revival of an aggressor’s right t o self-defense jury instruction and the
instruction misstated the law. Appellant also asks this court to vacate his riot in the second
degree conviction because the state failed to present sufficient evidence necessary to
support the jury’s determination on that charge.
D E C I S I O N
I. The post-trial discovery of W.H.’s reputation for violence
A. Brady violation
Appellant argues that the district court erred when it failed to award him a new trial
because the state’s failure to disclose Officer Schroeder’s opinion—that one of the victim’s
had a violent reputation—amounted to a Brady violation. Under Brady, “suppression by

5
the prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,
1196-97 (1963).
A new trial should be granted under Brady when the petition er shows that (1) the
evidence at issue was favorable to the accused, either because it is exculpatory or it is
impeaching, (2) the evidence was suppressed by the state, either willfully or inadvertently,
and (3) prejudice to the accused resulted. Pederson v. State, 692 N.W.2d 452, 459 (Minn.
2005) (citations omitted). Brady violations present mixed questions of law and fact, which
this court reviews de novo. Id. at 460.
At trial, appellant raised the theory of self -defense as justification for his use of
force. A self-defense claim has four elements: (1) an absence of aggression or provocation
by the party claiming self-defense; (2) an actual and honest belief that great bodily harm
would result; (3) a reasonable basis for this belief; and (4) a lack of reasonable means to
retreat or avoid the physical conflict. State v. Soukup, 656 N.W.2d 424, 428 (Minn. App.
2003), review denied (Minn. Apr. 29, 2003). The evidence of W.H.’s reputation for
violence would have been admissible to establish that appellant was not the initial
aggressor under the first element of his self -defense claim. State v. Chave z-Nelson, 882
N.W.2d 579, 588 (Minn. 2016).
It is undisputed that Officer Schroeder’s opinion evidence would have been
favorable to appellant. See id. However, it makes no difference whether or not the state

6
inadvertently or willfully suppressed the evidence because the absence of Officer
Schroeder’s opinion did not prejudice appellant.
In determining whether the withheld evidence prejudiced appellant, this court must
consider (1) whether the evidence would have been admissible at tri al and (2) if there is a
“reasonable probability” that it would have made a difference in the result. Gorman v.
State, 619 N.W.2d 802, 806 (Minn. App. 2000) . “A different result is ‘ reasonably
probable’ when the government’s evidentiary suppression underm ines confidence in the
outcome of the trial.” Id. at 807. The court makes this determination “by considering the
effect the undisclosed evidence would have had in the context of the whole trial record.”
Walen v. State, 777 N.W.2d 213, 216 (Minn. 2010).
It is important to reiterate that the evidence could have been used by appellant to
cast doubt that he was the initial aggressor. But to that point, there was ample other
evidence that appellant was not the aggressor in the incident. For example, the jury heard
testimony that the protesters were “hostile,” and approached appellant and his friends.
Further, when appellant and his friends began to leave, they were followed by W.H. and a
group of protesters. Appellant told the protesters to “leave us alone” and to “get back.”
Witnesses heard the protesters threaten to “beat [appellant’s] ass.” Appellant also claimed
to have been punched and recalled a protester say “w hite boy, you’re gonna die.”
Appellant’s friend was punched. But, over the course of the trial, it was established that
the only person to have definitively seen W.H. possess a knife was appellant, and no knife
was recovered.

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Moreover, even if the jury believed appellant’s weapon claim, the jurors may still
have rationally determined that appellant could not legitimately respond to that threat by
immediately firing eight shots at precise, regular intervals at multiple individuals, some of
whom were not near appellant and some of whom were trying to run away. To that end,
the evidence showed that two in appellant’s group were able to retreat to avoid any danger
presented by the protesters. This evidence could have led the jury to infer that appellant
had a reasonable possibility of retreating to avoid the danger. See State v. Austin , 332
N.W.2d 21, 24 (Minn. 1983) (holding that a person generally has a duty to retreat and avoid
danger before using deadly force ). Finally, the fact that W.H. was first shot in the back
and then again in his leg as he was trying to get up significantly undercuts appellant’s self-
defense theory.
Consequently, after examining the whole trial record, we conclude that there is not
a reasonable probability that the outcome of the trial would have been different, and the
opinion of one officer about W.H.’s reputation is insufficient to undermine confidence in
the outcome.
B. Newly discovered evidence
Appellant additionally argues that Officer Schroeder’s opinion concerning W.H.’s
reputation for violence constitutes newly discovered evidence that justifies a new trial.
When determining whether to grant a new trial based upon
newly discovered evidence, a defendant must prove the
following: (1) that the evidence was not known to the
defendant or his/her counsel at the time of the trial; (2) that the
evidence could not have been discovered through due diligence
before trial; (3) that the evidence is not cumulative,

8
impeaching, or doubtful; and (4) that the evidence would
probably produce an acquittal or a more favorable result.

Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997).
But appellant is not entitled to a new trial on the grounds of newly discovered
evidence for the same reasons as he is not entitled to a new trial under Brady; because the
newly discovered e vidence would not have “probably produced an acquittal or a more
favorable result.” Id.; s ee Walen, 777 N.W.2d at 217 (“[The] standard under a Brady
analysis is more favorable to a defendant tha n the fourth prong of the newly -discovered
evidence test.”).
C. Evidentiary hearing
Appellant argues that even if he is not entitled to a new trial, he is at least entitled
to an evidentiary hearing. In its postconviction order, the district court determined that
appellant was not entitled to an evid entiary hearing because , even if taken as true that
Officer Schroeder would have testified to W.H.’s reputation for violence, it would not have
changed the outcome of the trial.
A postconviction court must hold an evidentiary hearing unless the petition and the
files and records of the proceeding conclusively show that the petitioner is not entitled to
relief. Minn. Stat. § 590.04 , subd. 1 (2018). “In determining whether a n evidentiary
hearing is required, a postconviction court considers the facts alleged in the petition as true
and construes them in the light most favorable to the petitioner. ” Brown v. State , 895
N.W.2d 612, 618 ( Minn. 2017). A postconviction court “may not find a postconviction
affiant unreliable without first holding an evidentiary hearing to assess the affiant’s

9
credibility. Anderson v. State, 913 N.W.2d 417, 423 (Minn. 2018). We review the district
court’s decision to deny a petition without a hear ing for abuse of discretion. Powers v.
State, 695 N.W.2d 371, 374 (Minn. 2005).
The postconviction court accepted as true that Officer Schroeder would have
testified to W.H.’s reputation for violence. Thus, taking appellant’s factual statements as
true, the petition conclusively showed that appellant was not entitled to relief on either
basis claimed. Consequently, the district court did not abuse its discretion when it failed
to award appellant an evidentiary hearing.
II. The cell phone evidence
Before trial, appellant filed a motion to suppress , requesting the suppression of all
evidence recovered from his cell phone. The motion was denied. Appellant argues on
appeal that he is entitled to a new trial because the warrant authorizing the search of his
cell phone was unsupported by probable cause and violated the particularity clause of the
Fourth Amendment to the U.S. Constitution and article I, section 10 of the Minnesota
Constitution.
The warrant at issue authorized the search of “all data contained in the cell phone
including: call log, contact list, voice mails, text messages, photos, video, and recordings.”
Based on this language, the district court concluded that the issuing judge authorized an
insufficiently particular warrant when he permitted the officers to search and seize “all data
contained in the cell phone.” We agree.
The Supreme Court has held that cell phone searches must comply with the warrant
requirements. Riley v. California, 573 U.S. 373, 401, 134 S. Ct. 2473, 2493 (2014) . The

10
Federal and State Constitutions provide that “no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the person or things to be seized.” U.S. Const. amend. IV; Minn. Const. art.
I, § 10 ; see Marron v. United States , 275 U.S. 192, 195 , 48 S. Ct. 74, 7 5 (1927). The
particularity clause requires a particular description of both the place to be searched and
the thing to be seized. Groh v. Ramirez, 540 U.S. 551, 560-61, 124 S. Ct. 1284, 1291-92
(2004). Failure to comply with either prong violates that particularity requirement and
renders the warrant invalid. Id. at 557.
The Minnesota Supreme Court has stated that “when determining whether a clause
in a search warrant is sufficiently particular, the circumstances of the case must be
considered, as well as the nature of the crime under investigation and whether a more
precise description is possible under the circumstances.” State v. Miller, 666 N.W.2d 703,
713 (Minn. 1990) . Considering the vast amount of sensitive personal information
contained in cell phones, and the nature of the crime under investigation, a more precise
description was available under the circumstance. See Riley, 134 S. Ct. at 2490 -91
(discussing the type of personal information contained in cell phones).
After determining that the “all data” clause was not sufficiently particular , the
district court proceeded to apply the severance doctrine. Under the severance doctrine,
“the insufficient portions of the warrant are stricken and any evidence seized pursuant
thereto is suppressed, but the remainder of the warrant is still valid. . . . Therefore, seizures
made pursuant to the valid portions of the warrant are constitutional, and items so seized
are not subject to suppression.” State v. Hannuksela, 452 N.W.2d 668, 673 (Minn. 1990).

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The severance doctrine refl ects “the need to balance the considerable social costs of
suppressing evidence of guilt against the need to deter police misconduct.” United States
v. Gaplin, 720 F.3d 436, 448 (2 nd Cir. 2013). After severing the “all data” clause, the
specific list would have made a constitutionally prohibited general search impossible.
Hannuksela, 452 N.W.2d at 673. However, severance is not an available remedy when no
part of the warrant is sup ported by probable cause and listed with sufficient particularity.
Gaplin, 720 F.3d at 448. Appellant argues that the severed list is unsupported by probable
cause and is insufficiently particular.
A. Probable cause determination
Appellant argues that the affidavit supporting the warrant did not provide sufficient
probable cause necessary to justify searching the areas of his phone identified in the
severed list . “When reviewing a district court’s decision to issue a search warrant, [a
reviewing court ’s] only consideration is whether the judge issuing the warrant had a
substantial basis for concluding that probable cause existed.” State v. Jenkins, 782 N.W.2d
211, 222-23 (Minn. 2010) (quotation omitted). The Minnesota Supreme Court has
consistently held that, “when reviewing a district court’s probable cause determination
made in connection with the issuance of a search warrant, an appellate court should afford
the district court’s determination great de ference.” State v. Rochefort , 631 N.W.2d 802,
804 (Minn. 2001).
When presented with a search warrant application, the issuing judge, must “make a
practical, common -sense decision whether, given all the circumstances set forth in the
affidavit before him . . . there is a fair probability that contraband or evidence of a crime

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will be found in a particular place.” Illinois v. Gates, 462 U .S. 213, 238, 103 S. Ct. 2317,
2332 (1983) . “Elements bearing on th is probability determination include information
establishing a nexus between the crime, objects to be seized and the place to be searched.”
Jenkins, 782 N.W.2d at 223.
Under this guidance, there was a substantial basis for the judge’s conclusion that
evidence of the crime would be found in appellant’s “call log, contact list, voice mails, text
messages, photos, video s, and recordings.” The affidavit provided a nexus to the cell
phone, as it specifically indicated that appellant had used his cell phone to call a friend to
communicate that he “shot five protesters” at the “Black Lives Matter Protest[.]” The
affiant also believed that appellant’s phone held “information regarding the . . . shooting.”
See Miller, 666 N.W.2d at 714 (an officer’s statements based on training and experience
are a proper factor to consider when evaluating whether a search warrant is supported by
probable cause).
Considering these facts, it was reasonable to infer that appellant had used his phone
to communicate with others regarding his involvement in the shooting, whether through
phone calls or other forms of electronic communication. Those other means of
communication would include voicemails, video calls, text messages, and recordings. The
affidavit also alleged that the shooting was done at a Black Lives Matter protes t. It is
common knowledge that there is widespread use of cell phones and other mobile devices
at protests—appellant was indeed using his phone at the protest —and these devices are
commonly used to electronically record evidence at these types of events. Thus, it was
reasonable to infer that appellant’s phone was likely to contain photos and videos of

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appellant’s actions at the protest—before, during, or after the shooting. Consequently, we
defer to the issuing judge’s determination that there was probable cause to believe evidence
of a crime would be present in the areas of appellant’s phone specifically listed in the
warrant.
B. Particularity
Appellant argues that the itemized list is still insufficiently particul ar because the
list is too ill-defined and gave too much discretion to police to conduct a limitless search.
We are not persuaded . Fourth Amendment jurisprudence recognizes that such a level of
specificity is not always possible. See State v. Fawcett, 884 N.W.2d 380, 387 (Minn. 2016)
(requiring consideration of “whether a more precise description is possible under the
circumstances.” (quotation omitted)). And contrary to appellant’s argument, the severed
list did not allow police to engage in a general exploratory search. Hannuksela, 452
N.W.2d at 674.
While it is true that the remaining severed terms were somewhat vague, and we
express concern over the lack of any temporal limitations, the supreme court has indicated
that “a warrant need only be as specific as the nature of the material sought will allow. ”
Id. And when the officer applied for the warrant, all the circumst ances surrounding the
shooting were not known. What the officer s knew was that appellant had used his phone
to communicate about the alleged crime immediately following the shooting. Additionally,
the nature of the crime under investigation encompassed more than appellant simply going
to the protest and firing his weapon. As the st ate indicates, the police did not know if
appellant had communicated with others, what mediums of communication were used, if

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appellant had a motive for the shooting, or more generally, why he was even there. Yet,
the fact that appellant had been using hi s phone immediately following the shooting
demonstrated that the specifically listed items could aid in answering these questions.
Consequently, because the severed warrant was sufficiently particular and
supported by probable cause, the district court did not err when it declined to suppress the
items discovered pursuant to the particularized list.
III. Jury instruction
The district court, over appellant’s objection, provided the jury with an instruction
on the revival of an aggressor’s right to self -defense. The district court used CRIMJIG
7.07, which states:
If the defendant began or induced the assault that led to the
necessity of using force in the defendant’s own defense, the
right of the defendant to stand his ground and thus defend
himself is not immediately available to him. Instead, the
defendant must first have declined to carry on the assault and
have honestly tried to escape from it, and must clearly and
fairly have informed the adversary of a desire for peace and of
abandonment of the assault. Only after the defendant has done
that will the law justify the defendant in thereafter standing his
ground and using force against the other person.

10 Minn. Dist. Judges Ass’n, Minnesota Practice —Jury Instruction Guides, Criminal,
CRIMJIG 7.07 (4th ed. 2016). Appellant argues that the evidence did not support giving
the revival of the aggressor’s right to self-defense instruction and the instruction misstates
the law. We disagree.
The district court has discretion in deciding whether or not to give a jury instruction.
State v. Edwards , 717 N.W.2d 405, 410 (Minn. 2006). “ But a party is entitled to a jury

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instruction if there is evidence to sup port it,” and this court, “[i]n evaluating whether a
rational basis exists in the evidence for a jury instruction,” views the evidence “in the light
most favorable to the party requesting the instruction.” Id.
Appellant argues that the revival of an ag gressor’s right to a self-defense jury
instruction was improper because the evidence failed to show that he was the initial
aggressor, or that he “began or induced” the assault. In Edwards, the Minnesota Supreme
Court interpreted “began or induced” to contemplate conduct that “is a good deal greater
than mere conversation.” Id. at 411-12. Appellant states that even if there was evidence
that he called the protesters the n -word, merely using that word is not conduct that is “a
good deal greater than mere conversation,” because the epithet does not threaten or promise
violence. But there is no caselaw holding that “more than conversation” means words that
threaten or promise violence. See State v. Carridine, 812 N.W.2d 130, 145 (Minn. 2012)
(stating that the court did not define what is considered more than conversation).
Appellant’s suggestion that shouting the n -word—at a group of African American
men who were attending a Black Live s Matter protest in support of an African American
man who was shot by a white police officer—is not conduct that is a good deal greater than
mere conversation is unpersuasive. Additionally, appellant arrived at the protest wearing
a mask, understood that the protesters were wary of people covering their faces with masks,
and refused to take off the mask when asked by the protesters. There was substantial
evidence that appellant’s conduct was “greater than mere conversation.”
Appellant also argues that the instruction did n ot fairly or accurate ly explain what
conduct qualifies a person as an aggressor under the law. Appellant’s argument here

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parallels his prior argument. Appellant contends that because his alleged use of the n-word
was not language that promises or threate ns violence, the instruction left the jury free to
determine that he began or induced the assault “based upon non -qualifying conduct.”
Considering appellant’s behavior could be considered qualifying conduct , and that the
instruction allowed the jury to find that it was, appellant’s argument fails. The district court
did not abuse its discretion in giving the instruction.
IV. Sufficiency of the evidence
Appellant argues there was insufficient evidence for the jury to convict him of riot
in the second degree. See Minn. Stat. § 609.71, subd. 2 (2014). For appellant to be found
guilty, the state was required to prove that appellant, among other things, dis turbed the
public peace. Id. The public peace means “tranquility enjoyed by a community when good
order reigns amongst its members.” State v. Winkels, 283 N.W. 763, 764 (Minn. 1939).
Our review of the sufficiency of the evidence is “limited to a painstaking analysis
of the record to determine whether the evidence, when viewed in a light most favorable to
the conviction, was sufficient to permit the jurors to reach the verdict which the y did.”
State v. Fields, 679 N.W.2d 341, 348 (Minn. 2004) (quotation omitted). We assume that
“the jury believed the state’s witnesses and disbelieved any evidence to the contrary,”
especially when there is con flicting testimony. State v. Moore , 438 N.W.2d 101, 108
(Minn. 1989) (citation omitted).
Appellant argues that he did not disturb the peace because peace did not exist at the
protest before his arrival. But there was ample evidence that peace existed at the protest
prior to appellant’s arrival. For example, t here was testimony that the day had been calm

17
prior to the shooting. One witness testified that the week had been “tense,” however, “that
night was sort of the first night that everybody started to relax again. There was dancing,
there was singing, they were serving food. Where I was standing for most of the night was
around a fire pit and . . . it was a really nice night.” While ther e was evidence from
witnesses that some protesters were yelling profanities at police and damaging property,
those same witnesses noted that the protesters included children and people holding hands
in prayer. Because the evidence, when viewed in the ligh t most favorable to the verdict,
supported the jury’s finding that peace existed at the protest prior to the group’s arrival,
appellant’s argument fails.
Affirmed.