State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1429

State of Minnesota,
Respondent,

vs.

Chad Nicholas Nelson,
Appellant.

Filed August 20, 2018
Affirmed
Reilly, Judge

Anoka County District Court
File No. 02-CR-15-4192

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Bjorkman, Judge; and
Klaphake, 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
REILLY, Judge
Appellant Chad Nicholas Nelson challenges his conviction of second-degree felony
murder, arguing that (1) the evid ence is insufficient to suppo rt the verdict; (2) the state
failed to present sufficient evid ence that appellant did not act in self-defense; and (3) the
district court’s jury instructions were erroneous. We affirm.
FACTS
On July 1, 2015, appellant Chad Nicholas Nelson got into an argument at a bar with
another patron, O.H. The argument continued into the parking lot. O.H.’s companions,
S.H. and J.P., intervened and encouraged O. H. to walk away from appellant. Appellant
got into his truck and began to drive out of the parking lot, but th en stopped his truck
alongside O.H. and continued the argument. No one attempted to block appellant from
leaving the parking lot. As the argument continued, O.H.’s third companion, R.M., walked
up to appellant’s truck and punched him thro ugh the open window. Appellant responded
by immediately firing two shots at R.M. with his firearm and driving out of the parking lot.
R.M. died as a result of this shooting.
The following morning, appellant sought em ergency medical treatment for a head
injury. Appellant told a police officer at the hospital that he had been “struck in the head”
and admitted that he had taken “a gun out and fired two shots at the individual who had hit
him.” Police officers recovered a black semiautomatic handgun from appellant’s truck and
forensic analysis later confirmed that cartri dges and a fired bullet recovered from the bar
parking lot matched this firearm.

3
The state charged appellant with one c ount of second-degree murder, drive-by
shooting, and one count of s econd-degree intentio nal murder. Before trial, the state
amended the complaint to add an additional ch arge of second-degree felony murder with
the predicate offense of second-degree assault with a dangerous weapon. Following a ten-
day jury trial in April 2017, the jury convicted appellant of second-degree felony murder
and acquitted him of the remaining two charges. The district court sentenced appellant to
the presumptive guideline sentence of 150 months in prison. This appeal follows.
D E C I S I O N
I. The state met its burden of establishi ng beyond a reasonable doubt that
appellant intended to cause fear of i mmediate bodily harm or death in the
victim.
Appellant challenges the sufficiency of th e evidence underlying his conviction.
Appellant urges this court to apply the circum stantial evidence standard of review on the
ground that an element of the offens e rests on circumstantial evidence. See, e.g., State v.
Harris, 895 N.W.2d 592, 6 01 (Minn. 2017); State v. Al-Naseer , 788 N.W.2d 469, 474
(Minn. 2010) (holding that a conviction ba sed on circumstantial evidence warrants
heightened scrutiny); State v. Cooper , 561 N.W.2d 175, 179 (Minn. 1997) (recognizing
that intent is generally proved by circumst antial evidence). We disagree. “[W]hen a
disputed element is sufficiently proven by direct evidence alone . . . , it is the traditional
standard, rather than the circumstantia l-evidence standard, that governs.” State v. Horst,
880 N.W.2d 24, 39 (Minn. 2016). Because the state proved each of the disputed elements
through direct evidence, we employ the traditional standard of review.

4
Under the traditional standard, our revi ew of a sufficiency-of-the-evidence
challenge is limited to a “painstaking analys is of the record” to determine whether the
evidence, when viewed in a light most favorable to the conviction, was sufficient to support
the conviction. State v. DeRosier, 695 N.W.2d 97, 108 (Minn. 2005) (quotation omitted).
We will not disturb the verdict if the fa ct-finder, “acting with due regard for the
presumption of innocence and the requirement of proof beyond a reasonable doubt, could
reasonably conclude that the defendant was guilty of the charged offense.” State v. Ortega,
813 N.W.2d 86, 100 (Minn. 2012).
A conviction of felony murder with second- degree assault as the predicate offense
requires proof beyond a reasonabl e doubt of both the elements of felony murder and the
elements of second-degree assault. See State v. Davis , 864 N.W.2d 171, 177-78 (Minn.
2015). A person is guilty of second-degree fe lony murder if he “causes the death of a
human being, without intent to effect the death of any person, while committing or
attempting to commit a felony offense. . . .” Minn. Stat. § 609.19, subd. 2(1). A person is
guilty of second-degree assault if he “assaults another with a dangerous weapon. . . .”
Minn. Stat. § 609.222, subd. 1 (2016). “Assault” is defined as “(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.” Minn. Stat. § 609.02, subd. 10 (2016).
Second-degree assault (fear) is a specific-inte nt crime and requires a showing that the
defendant intended to cause that particular result. State v. Fleck, 810 N.W.2d 303, 308-09
(Minn. 2012). Intent may be inferred from the “natural and probable consequences” of the
defendant’s actions. State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998).

5
The evidence demonstrates that appellant and O.H. engaged in a verbal argument
inside the bar and in the parking lot. Appellant got into his truck and began to pull away,
but stopped alongside O.H. to continue arguing. S.H. a nd J.P. attempted to stop the
argument. R.M., who was not participating in the argument, walked up to appellant’s truck
and punched him in the face. Appellant responded by shooting R.M. twice with his firearm
and speeding out of the parking lot. The following morning, appellant admitted to a police
officer at the hospital that he took his “gun out and fired tw o shots at the individual who
had hit him.” Appellant’s statem ent to the witness that he “f ired two shots” at R.M. was
direct evidence of his intent. See Horst, 880 N.W.2d at 40 (recogni zing that defendant’s
statement to witness constitutes direct evidence of mens rea).
Applying the traditional standard of re view, and giving “d ue regard for the
presumption of innocence and the requirement of proof beyond a reasonable doubt,” the
jury could reasonabl y have conc luded that appellant was guilty of the charged offense.
Ortega, 813 N.W.2d at 100. We therefore conc lude that the eviden ce was sufficient to
support appellant’s felony-murder conviction.
II. The state presented sufficient evidence disproving an element of appellant’s
self-defense claim beyond a reasonable doubt.
Appellant contends that the evidence wa s insufficient to convict him because the
state failed to prove beyond a reasonable doubt that he did not act in self-defense. Our
review of the sufficiency of the evidence after a criminal conviction is limited to a thorough
review of the record to determine whether th e evidence, when viewed in the light most
favorable to the verdict, is sufficient to support it. State v. Webb, 440 N.W.2d 426, 430

6
(Minn. 1989). We assume “t he jury believed the state’s witnesses and disbelieved any
evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).
Appellant asserted a claim of self-defense. Minnesota’s self-defense statute permits
the use of “reasonable force” against a pe rson, without the person’s consent, when
“resisting or aiding another to resist an offense against the person.” Minn. Stat. § 609.06,
subd. 1(3) (2016). The elements of self-defense are:
(1) the absence of aggression or provocation on the part of the
defendant; (2) the defendant’s actual and honest belief that he
or she was in imminent danger of death or great bodily harm;
(3) the existence of reasonable grounds for that belief; and
(4) the absence of a reasonable possibility of retreat to avoid
the danger.

State v. Johnson , 719 N.W.2d 619, 629 (M inn. 2006) (quotation om itted). Self-defense
also requires that the degree of force used “must not exceed that which appears to be
necessary to a reasonable person under similar circumstances.” State v. Basting , 572
N.W.2d 281, 286 (Minn. 1997). The defendant bears the burden of presenting evidence to
support a claim of self-defense. Johnson, 719 N.W.2d at 629. Once this burden is satisfied,
the state bears the “ultimate burden” of disproving one or more of the self-defense elements
beyond a reasonable doubt. State v. Radke, 821 N.W.2d 316, 324 (Minn. 2012).
The state has satisfied its burden here. Th e fourth element of self-defense requires
the absence of a reasonable possibility of retreat to avoid the danger. See Johnson, 719
N.W.2d at 629. Generally, the law require s a person to retreat “if reasonably possible
before acting in self-defense.” State v. Devens, 852 N.W.2d 255, 258 (Minn. 2014). “As
a result, if a person is outside his or her home and can safely retreat, then the person’s use

7
of force is unreasonable as a matter of law.” Id. Appellant argues that he could not retreat
without risking injury to himself or others. The record does not su pport this argument.
Appellant was seated behind the wheel of an operational vehicle, with its motor on, while
the other men were standing in the parking lot. No one attempted to obstruct appellant’s
truck or block him from leaving the parking lot. We assume that the jury believed the
state’s evidence and disbelieved any evidence to the contrary. See Moore, 438 N.W.2d at
108. There was sufficient evidence for the jury to conclude that appellant had a reasonable
possibility of retreat.
Because the state disproved one of the se lf-defense elements beyond a reasonable
doubt, appellant’s self-defense claim fails and we need not ad dress the remaining factors.
See Radke, 821 N.W.2d at 325 (concluding that wh ere state disproved one element of a
self-defense claim, any evidence bearing on the other three elemen ts “would not have
changed the outcome” of trial). The record supports the jury’s rejection of appellant’s self-
defense claim.
III. Although the district court’s jury in struction regarding self-defense was
plainly erroneous, appellant is not en titled to a new trial because the
erroneous instruction did not affect his substantial rights.
Appellant asserts that he is entitled to a ne w trial because the district court’s self-
defense jury instructions were erroneous. Wh ile we agree that the ju ry instructions were
plainly erroneous, we determine that appella nt is not entitled to a new trial because he
cannot satisfy the third prong of the plain-error test and reversal is not necessary to ensure
the fairness and integrity of the judicial proceedings.

8
A district court is afforded broad di scretion to formulate appropriate jury
instructions and only abuses that discretion if the jury instructions “confuse, mislead, or
materially misstate the law.” State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014). Upon
review, we consider whether the instructions, when taken as a whole, fairly and adequately
explain the law. State v. Moore, 699 N.W.2d 733, 736 (Minn. 2005). Because appellant
did not raise this objection at trial, we review the instructions for plain error. See State v.
Carridine, 812 N.W.2d 130, 142 (Minn. 2012) (noting that invited-error doctrine does not
apply if error meets plain-erro r test). The plain-error test gives a reviewing court the
discretion to review unobjected-to errors if (1) there was an error, (2) the error was plain,
and (3) the error affected the “substantial rights” of the defendant. Id. If all three prongs
are satisfied, a reviewing court decides whether to address the error to ensure “fairness and
the integrity of the ju dicial proceedings.” Id. (quotation omitted). If the court concludes
that any prong of the plain-error analysis is not satisfied, it need not consider the remaining
prongs. State v. Brown, 815 N.W.2d 609, 620 (Minn. 2012).
Minnesota law distinguishes between tw o different forms of self-defense.
Reasonable force may be used upon another without the other person’s consent “when used
by any person in resisting or aiding another to resist an offense against the person.” Minn.
Stat. § 609.06, subd. 1(3). A claim of se lf-defense arising un der section 609.06,
subdivision 1(3), is reflecte d in the jury instruction in CRIMJIG 7.06, entitled “Self-
Defense—Death Not the Result.” 10 Minnesota Practice, CRIMJ IG 7.06 (6th ed. 2017).
Alternatively, section 609.065 provides that a person may intentionally take the life of
another when doing so is “necessary in resisting or preventing an offense which the actor

9
reasonably believes exposes the actor or another to great bodily harm or death. . . .” Minn.
Stat. § 609.065 (2016). A claim arising under this statutory section corresponds with the
jury instruction in CRIMJIG 7.05, entitled “Self-Defense—Justifiable Taking of Life.” 10
Minnesota Practice, CRIMJIG 7.05 (6th ed. 2017).
Appellant asked the district court to use the justifiabl e-taking-of-life instruction.1
Based on this request, the district court provided the justifiable-taking-of-life self-defense
instruction rather than the general self-defen se instruction in its charge to the jury.
Minnesota law “clearly mandat[es] that the gene ral self-defense instruction be given in
cases where the defendant claims the death wa s an unintended or accidental consequence
of actions taken in defense of self.” State v. Pollard, 900 N.W.2d 175, 180 (Minn. App.
2017). Thus, it “is error to provide the justifiable-taking-of-life instruction, instead of the
general self-defense instruction, when the defendant asserts self-defense but claims that the
death was not the intended result.” Id. at 179 (citations omitted ). Given this controlling
caselaw, we conclude that the district court committed plain error by giving the justifiable-
taking-of-life instruction instead of the general self-defense instruction.
We next consider whether the error affected appellant’s substantial rights. State v.
Griller, 583 N.W.2d 736, 740 (Minn. 1998). To satisfy this prong, appellant must show
that the error was prejudicial and affected the outcome of the case. State v. MacLennan ,
702 N.W.2d 219, 236 (Minn. 2005 ). A plain error is prejudicial if there is a “reasonable
likelihood that the giving of the instruction in question would have had a significant effect

1 We note that appellant specifically asked the district court three times to use this version
of the self-defense jury instruction.

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on the verdict of the jury.” Griller, 583 N.W.2d at 741 (quotation omitted). An appellant
claiming that an erroneous instruction affected substantial rights bears a “heavy burden of
proving that there is a reasona ble likelihood that giving the instruction in question had a
significant effect on the jury verdict.” Kelley, 855 N.W.2d at 283 (quotation omitted). “An
erroneous jury instruction will not ordinarily have a significant effect on the jury’s verdict
if there is considerable evidence of the defendant’s guilt.” Id. at 283-84.
Appellant has not met the heavy burden of demonstrating that the erroneous jury
instruction had a significant effect on the verdict. The district court conducted a jury trial
over the course of ten days and the jury heard testimony from numerous witnesses,
including the men who were quarreling with appellant, police officers, medical personnel,
and a forensic analyst. The jury heard uncontroverted tes timony that appellant began to
drive away and then stopped alon gside O.H. to continue the ar gument. J.P. testified that
appellant fired his weapon “immediately” after R.M. punched appellant, and it is
undisputed that appellant was seated in an operational vehicle and could have driven away.
Both self-defense instructi ons require the defendant to retreat to avoid the danger. See
CRIMJIGS 7.05, 7.06 (“The legal excuse of self-defense is available only to those who act
honestly and in good faith. This includes th e duty to retreat or avoid the danger if
reasonably possible.”). Ample evidence demons trates that appellant was seated in his
vehicle and could have driven away from th e confrontation to avoi d harm. Given this
record, appellant would not have satisfied the self-defense test under either of the criminal
jury instructions. Further, the district court properly instructed the jury on the elements of
the crimes charged. The jury found that appellant did not intentionally kill R.M., but

11
convicted him of second-degree felony murder. This mixed verdict demonstrates that the
jury carefully considered the evidence presented and did not believe that the killing was
intentional. Providing the general self-defense instruction instead of the justifiable-taking-
of-life instruction would not have had a significant effect on the verdict. The district court’s
error concerning the jury instruction did not affect appellant’s substantial rights.
Because we determine that appellant ha s not satisfied his “heavy burden” of
demonstrating that the erroneous instruction had a significant effect on the jury’s verdict,
we need not consider whether a new trial is required to ensure the fairness and integrity of
the judicial proceedings. Nevertheless, we determine that a new trial is not required in this
case. “[F]airness and integrity of the judici al proceedings are called into question by . . .
erroneous instructions and [by a] verdict based on those instructions.” State v. Vance, 734
N.W.2d 650, 662 (Minn. 2007). But reversal is not require d to preserve the integrity of
judicial proceedings if a new trial woul d result in an “exercise in futility.” Griller, 583
N.W.2d at 742. Ample evidence in the reco rd supports the jury’s guilty verdict, and
granting a new trial is not necessary to ensure fairness or the integrity of the judicial
proceedings.
Affirmed.