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This opinion will be unpublished and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
A17-1659

State of Minnesota,
Respondent,

vs.

Daquan Ossie Bradley,
Appellant.

Filed July 29, 2019
Affirmed
Bratvold, Judge

Hennepin County District Court
File No. 27-CR-16-17802

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

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Ross, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant Daquan Ossie Bradley challenges his conviction of second-degree
murder for the shooting death of M.M. We slightly reframe the issues in Bradley’s appeal.
2
He raises two issues as independent grounds for reversal; in the second issue, Bradley states
an argument in the alternative. First, Bradley argues that the circumstantial evidence fails
to sufficiently establish his intent to murder M.M. Second, Bradley argues that the district
court erred in convicting him of second-degree murder because it failed to require the state
to prove that Bradley did not shoot M.M. in the heat of passion. Bradley argues that (A) the
district court committed structural error because it misstated the burden of proof on the
heat-of-passion element in its written decision. Bradley alternatively argues that
(B) assuming the district court’s error was not structural, the error was prejudicial and
requires a new trial.
We conclude, first, that there is sufficient record evidence to establish the requisite
level of intent for Bradley’s conviction of second-degree murder. We conclude, second,
that although the district court misstated the burden of proof in its memorandum, the district
court correctly applied the law. Therefore, no structural error occurred, and any error was
harmless. Thus, we affirm.
FACTS
The relevant facts below are stated in the district court’s written decision after
Bradley’s bench trial.1

1 The district court issued written findings of fact and conclusions of law on June 6, 2017.
As explained in more detail below, the district court issued amended written findings of
fact and conclusions of law on December 6, 2018. Based on our review of the 2018 order,
we discern no material amendments to the factual findings issued in the 2017 order. We
nonetheless rely on the factual findings in the 2018 order for our summary of the relevant
facts.
3
A. The shooting

At the time Bradley shot M.M. on June 30, 2016, both men were romantically
involved with I.C., who, along with her four-year -old daughter, lived in a one-bedroom
apartment on Oakland Avenue South in Minneapolis.
M.M. was I.C.’s “on again, off again boyfriend.” M.M. was not the biological father
of I.C.’s daughter, but gave I.C. financial support. I.C. and M.M. had been “off” for the
two weeks before June 30, during which Bradley had been staying at I.C.’s apartment.
Bradley and M.M. had never met before June 30.
On the night of June 29, several people stayed at I.C.’s apartment. In total, four
adults, five young children, and Bradley’s teenage brother slept over. In addition to I.C.
and Bradley, the adults included a woman, C.C., and a man, Georgia.2 Bradley, I.C., I.C.’s
daughter, and Bradley’s three- year-old son slept in the bedroom together. Everyone else
slept in the living room.
On June 30 at approximately 8:00 a.m., I.C. heard “the sound of rocks being thrown
against” her bedroom window. I.C. looked out the closed bedroom window and saw M.M.
standing below her bedroom window. I.C. left the apartment and went down the hallway
to the secured front door and met M.M. She told him that she “had company” and that it
was “not a good idea” for him to come in. But I.C. “let [] M.M. into the building” and into
the apartment. M.M. “got upset” when he saw Bradley “in the bed.”

2 Georgia is a nickname; his first name is Omar, and, duri ng trial testimony, witnesses
sometimes referred to him as “Florida.” Georgia did not testify at trial.
4
M.M. and I.C. began to argue and M.M. “made a gesture towards” I.C. “as if he was
going to hit her.” Bradley then “intervened” and M.M. said “this was his kingdom” and
I.C. was “always going to be his b----.” Bradley walked over to M.M. “and punched him
in the face.” M.M. “balled up and hit the floor.”
“Immediately,” Georgia entered the bedroom with a nine-millimeter gun, which he
pointed at M.M., who was still on the floor. I.C. yelled that M.M. did not have a gun and
Georgia put down his gun. Together, Bradley and Georgia “began hitting” M.M. and
“stomping on his head.”
Bradley “hauled” M.M. out of the apartment and into the hallway. The apartment
building has three levels; I.C.’s apartment was on the second level. There were four units
on each level. In the hallway, Bradley “hit and stomped on” M.M.’s head “several times.”
Georgia followed and “hit and stomped” on M.M. “as well.” Neighbors heard the fighting
and later testified that Georgia or Bradley “threatened” M.M. and said, “I’m gonna kill this
motherf---er.” M.M. responded, “All I want to do is just go home.”3
Bradley then “let” M.M. leave through the door and “threw” M.M.’s cell phone after
him. M.M. walked “60 to 70 yards away” from the building “near some vans parked in the
parking lot.” M.M. stopped, with his back to the apartment, and stood “holding his cell
phone to make a call.” Evidence at trial established that M.M. made a call at 8:15 a.m.

3 One neighbor heard Georgia or Bradley say, “I will pop your ass” or “I will cap your ass.”
Neighbors who testified said they recognized M.M.’s voice because he had been
“a frequent guest” at I.C.’s apartment.
5
Bradley, Georgia, and I.C. walked back to the apartment. Bradley entered the
bedroom, which had one window that was ap proximately nine feet above the ground and
overlooked the parking lot that was adjacent to an intersection outside the apartment.
Bradley “grabbed” Georgia’s gun, “walked around the bed to the window, opened
the window, aimed and fired a single shot, which hit” M.M. “in the back.” M.M. “took off
running but fell” at the intersection outside the apartment. I.C. yelled, “Oh my God, you
shot him!” Bradley’s teenage brother entered the bedroom after he heard the shot and saw
Bradley holding the gun. Approximately one-and-a-half to two minutes had elapsed from
the time M.M. left the building until he was shot.
B. After the shooting
“Everyone in the [a]partment quickly gathered up the children” and left together in
the opposite direction from where M.M. “had been killed.” As he left, Bradley “threw”
Georgia’s gun into bushes “somewhere near” the apartment.
Police arrived shortly after several 911 calls were received. M.M. “died before
[paramedics] arrived.” Police secured the crime scene outside and found a nine-millimeter
shell casing in the window well beneath I.C.’s bedroom window. Georgia’s gun was not
recovered.
Bradley visited an ex- girlfriend, K.A., on June 30. He told K.A. that “he had hurt
somebody . . . that he had murdered someone.”
Police arrested Bradley on July 2, 2016. At the time of his arrest, police found a gun
on him, but it “was not the gun that fired the bullet that killed” M.M.
6
C. After the arrest
On July 5, 2016, the state charged Bradley with second-degree murder (intentional,
not premeditated) and being a prohibited person in possession of a firearm.
On February 9, 2017, a grand jury indicted Bradley on four counts: first-degree
murder (premeditated) under Minn. Stat. § 609.185(a)(1) (2014); second-degree murder
(intentional) under Minn. Stat. § 609.19, subd. 1(1) (2014); being a prohibited person in
possession of a firearm or ammunition on the day of the shooting under Minn. Stat.
§ 624.713, subd. 1(2) (2014); and being a prohibited person in possession of a firearm or
ammunition on the day of arrest under Minn. Stat. § 624.713, subd. 1(2). Before trial,
Bradley moved the court for jury instructions on all lesser-included offenses, including
“manslaughter in the first and second degree.”
Bradley then waived his right to a jury trial, and the district court conducted a
four-day bench trial in May 2017. In total, 12 witnesses for the prosecution testified; these
witnesses included I.C., C.C., K.A., three neighbors, several police officers, and the
medical examiner who performed M.M.’s autopsy. The autopsy concluded that M.M. died
“from a single gunshot wound that entered his back, traveled in a slightly downward
fashion through his right and left lung through his aorta and out through his chest.” The
autopsy also found “blunt force injuries” to M.M.’s face and ear “which could have
occurred from a fight or from falling face down in a gutter.”
Four witnesses testified for the defense, including Bradley, Bradley’s brother who
was in I.C.’s apartment at the time of the shooting, Bradley’s sister, and a criminal
investigator.
7
Bradley testified that he accidentally shot M.M. and that he was “aiming for one of
the vans in the parking lot to scare” M.M. because Bradley “was concerned” that M.M.
“would come back” and “harm them.” Bradley also testified that “as he was firing the gun,”
I.C. “hit his hand causing the bullet to hit” M.M. in his back.
On June 6, 2017, the district court issued written findings of fact, conclusions of
law, and verdict (2017 order) and found Bradley not guilty of first-degree murder, guilty
of second-degree murder, and guilty of two counts of being a prohibited person in
possession of a firearm/ammunition. The district court’s findings expressly rejected
Bradley’s testimony.
Although [Bradley] had placed [I.C.] right next to him in the
bedroom, others testified that [I.C.] was in the hallway or just
inside the bedroom when the shot was fired. There was no
testimony, other than Mr. Bradley’s, that put [I.C.] right next
to him at the window. Mr. Bradley’s testimony that he was
aiming at the broadside of a van in the parking lot during day
light hours, but accident[ally] hit [M.M.] in the back, whom he
had just seriously assaulted, was neither credible nor plausible.
Neither was Mr. Bradley’s claim that [M.M.] was going to
come back t o the apartment and harm them, when [I.C] had
told him that [M.M.] did not have a gun, no one saw [M.M.]
with a gun, and he had only left out the back door less than two
minutes earlier.

The district court stated that there was “no need to address the lesser-included crimes”
because the state “proved all four elements of second degree murder with intent.” In
July 2017, the district court amended its verdict to find Bradley not guilty of the
lesser-included offenses. The district court sentenced Bradley to 460 months in prison.
Bradley appealed his conviction in October 2017, and also filed a motion to stay the
appeal so he could pursue postconviction relief. This court granted the motion in
8
August 2018. At a postconviction hearing, Bradley argued that th e district court erred
because it “did not make any findings connected to its first-degree heat -of-passion
manslaughter verdict.” In response, the district court issued amended findings of fact,
conclusions of law, and verdict (2018 order), which included the district court’s reasoning
on the manslaughter acquittal.4 Bradley moved to dissolve the stay and reinstate his appeal;
this court granted the motion.
ISSUES
I. Is the evidence of Bradley’s intent to kill M.M. sufficient to support Bradley’s
conviction of second-degree murder?
II. Did the district court err in convicting Bradley of second-degree murder by failing
to require the state to prove the absence of heat of passion?
ANALYSIS
I. The evidence of Bradley’s intent to kill M.M. is sufficient to suppo rt
Bradley’s conviction of second-degree murder.

Bradley does not dispute that he killed M.M. by firing a gun from I.C.’s bedroom
window. Bradley argues that the state did not introduce evidence of his intent to kill M.M.
sufficient to uphold his conviction of second-degree murder.
Generally, in reviewing the sufficiency of the evidence, we “conduct[] ‘a
painstaking analysis of the record to determine whether the evidence, when viewed in the
light most favorable to the conviction,’ is sufficient to allow the jurors to reach a verdict of

4 The 2018 order also found Bradley guilty of second-degree unintentional felony murder
while committing assault in the second degree with a dangerous weapon. This verdict is
not challenged on appeal.
9
guilty.” State v. Porte, 832 N.W.2d 303, 307 (Minn. App. 2013) (quoting State v. Ortega,
813 N.W.2d 86, 100 (Minn. 2012)). Because the state offered primarily circumstantial
evidence of Bradley’s intent, we apply “heightened scrutiny” to review that circumstantial
evidence.5 See State v. Al-Naseer, 788 N.W.2d 469, 473 (Minn. 2010); see also State v.
Johnson, 616 N.W.2d 720, 726 (Minn. 2000) (“A state of mind generally is proved
circumstantially . . . .”).
Appellate review after either a jury or a bench trial is conducted under the same
heightened scrutiny for circumstantial evidence. See State v. Petersen, 910 N.W.2d 1, 6
(Minn. 2018); State v. Barshaw, 879 N.W.2d 356, 363 (Minn. 2016); State v. Palmer, 803
N.W.2d 727, 733 (Minn. 2011) (“We use the same standard of review in bench trials and
in jury trials in evaluating the sufficiency of the evidence.”). One distinction between a
jury and a bench trial is that, after a bench trial in felony and gross misdemeanor cases, the
district court must “make findings in writing of the essential facts.” Minn. R. Crim. P.
26.01, subd. 2(b). The purpose of the written- findings requirement is “to aid the appellate
court in its review of [a] conviction resulting from a nonjury trial.” State v. Scarver ,

5 Direct evidence of intent includes a person’s statements. See State v. Horst, 880 N.W.2d
24, 40 (Minn. 2016) (noting defendant’s comment to multiple witnesses, “I want him dead”
was direct evidence of mens rea because the jury “did not need to draw any inferences
about the purpose of her actions”). For example, Bradley’s statement to K.A. that he
“murdered someone” is direct evidence of his intent. Similarly, Georgia or Bradley’s
statement, “I’m gonna kill this motherf---er,” is also direct evidence of intent. But because
Bradley’s statement to K.A. did not identify whom he murdered, and the district court did
not determine who threatened to kill M.M., Bradley’s conviction “necessarily depends on
circumstantial evidence,” and we proceed to analyze the circumstantial evidence of
Bradley’s intent. Porte, 832 N.W.2d at 309 (stating that where there is both circumstantial
and direct evidence, but the conviction must rely on circumstantial evidence, appellate
courts apply the circumstantial-evidence standard of review).
10
458 N.W.2d 167, 168 (Minn. App. 1990). In this case, the district court issued detailed
written factual findings in its 2017 order and then issued amended legal analysis after
postconviction proceedings in its 2018 order. We scrutinize the circumstantial evidence in
Bradley’s case by following two steps and with reference to the district court’s detailed
written factual findings.
In the first step, we “identify the circumstances proved by the State, giving
deference to the factfinder’s acceptance of the State’s evidence and its rejection of any
evidence in the record that is inconsistent with the circumstances proved by the State.”
Petersen, 910 N.W.2d at 6-7 (quotation omitted). As we identify the circumstances proved,
we do not “re-weigh” the evidence. State v. Stein, 776 N.W.2d 709, 714 (Minn. 2010).
Rather, we “winnow down the evidence presented at trial by resolving all questions of fact
in favor of the [fact-finder’s] verdict, resulting in a subset of facts that constitute the
circumstances proved.” State v. Harris, 895 N.W.2d 592, 600 (Minn. 2017) (quotation
omitted). We also “disregard evidence that is inconsistent with the [fact-finder’s] verdict.”
Id. at 601. This winnowing process preserves the fact-finder’s “credibility findings.” Id. at
600. A fact-finder is “in a unique position to determine the credibility of the witnesses and
weigh the evidence before it.” Id.; see also Barshaw, 879 N.W.2d at 363 (stating that, after
a bench trial, appellate courts defer to district court’s assessment of “the credibility of the
evidence” in establishing circumstances proved).
In the second step, we determine “whether the circumstances proved are consistent
with guilt and inconsistent with any rational hypothesis other than guilt.” Petersen,
910 N.W.2d at 7. In the second step, “[w]e give no deference to the factfinder’s choice
11
between reasonable inferences.” Al-Naseer, 788 N.W.2d at 474. We only consider the
“reasonable inferences that can be drawn from the circumstances proved, when viewed as
a whole.” Harris, 895 N.W.2d at 601. “Where the [fact- finder] has rejected conflicting
facts and circumstances, we do not draw competing inferences from those facts on appeal.”
Stein, 776 N.W.2d at 715. Additionally , a “reasonable inference” is not based on “mere
conjecture.” State v. Pratt, 813 N.W.2d 868, 874 (Minn. 2012). If we determine that a
“reasonable inference other than guilt exists,” we must reverse the conviction. Petersen,
910 N.W.2d at 7. But “possibilities of innocence do not require reversal of a . . . verdict so
long as the evidence taken as a whole makes such theories seem unreasonable.” Stein,
776 N.W.2d at 719.
At trial, the state’s burden was to prove beyond a reasonable doubt that Bradley
committed second-degree murder by “caus[ing] the death of a human being with intent to
effect the death of that person or another, but without premeditation.” Minn. Stat. § 609.19,
subd. 1(1). “With intent to” means that “the actor 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) (2014). Intent to kill may be inferred from several circumstances that
are relevant here, such as the nature of the killing, the words or act of the shooter before
and after the shooting, and the use of a deadly weapon. See Stiles v. State, 664 N.W.2d 315,
320 (Minn. 2003) (words and acts of shooter); State v. Darris, 648 N.W.2d 232, 236
(Minn. 2002) (nature of the killing); State v. Geshick, 168 N.W.2d 331, 332 (Minn. 1969)
(use of a deadly weapon).
12
We first identify the circumstances proved. Giving deference to the district court’s
assessment of the evidence in reaching its verdict, the circumstances proved include the
following: I.C. was romantically involved with M.M. and Bradley. On the morning of
June 30, 2016, M.M. showed up unexpectedly at I.C.’s apartment, where Bradley was
sleeping in I.C.’s bed. Bradley and M.M. did not know each other. M.M. came into I.C.’s
bedroom and argued with I.C. M.M. said that “this was his kingdom,” and that I.C. was
“always going to be his b----.” Bradley “punched [M.M.] in the face,” and M.M. “balled
up and hit the floor.” Georgia brought his gun into the bedroom then put it down when I.C.
pointed out that M.M. was unarmed. Bradley and Georgia then beat M.M. by “hitting” and
“stomping” on his head, first in the apartment unit and then in the hallway. M.M. said,
“All I want to do is go home.” Bradley “let” M.M. leave and “threw” his cell phone af ter
him as he left the apartment building. M.M. walked approximately “60 to 70 yards” from
the apartment building, and stopped near some vans in the parking lot to make a call on his
cell phone. Bradley, Georgia, and I.C. walked back into I.C.’s apartment. Bradley grabbed
Georgia’s gun, walked to the bedroom window, opened the window, aimed, and fired one
shot, which struck M.M. in the back, travelling “through his right and left lung through his
aorta and out through his chest.” I.C. screamed, “Oh my God, you shot him!” Bradley’s
teenage brother heard the shot, entered the bedroom, and saw Bradley holding the gun.
Less than two minutes had passed since M.M. left the building. Everyone in I.C.’s
apartment immediately left. On his way out, Bradley threw the gun used to shoot M.M.
“into bushes somewhere near the [a]partment.” He later told K.A., his former girlfriend,
that he “murdered someone.”
13
Based on our review of the circumstances proved, we conclude that the district court
reasonably inferred that Bradley intended to kill M.M. Bradley used a deadly weapon,
which supports an inference that he intended to kill M.M. See Geshick, 168 N.W.2d at
332. Intent may also be informed from the nature of the killing—Bradley fired a single
shot at an unarmed M.M. who had left the apartment; the shot hit M.M. in the back,
hitting his vital organs. See State v. Chuon, 596 N.W.2d 267, 271 (Minn. App. 1999) (intent
inferred from a “single shot to the victim’s torso, an area of the body containing vital
organs”), review denied (Minn. Aug. 25, 1999). Also, Bradley’s acts before and after the
killing support an inference of intent. See Stiles, 664 N.W.2d at 320. Before the killing,
Bradley repeatedly beat, hit, and stomped on M.M After the killing, Bradley did nothing
to help M.M., immediately left the apartment building, threw Georgia’s gun in the bushes,
and later told K.A. he “murdered someone.”
This does not end our inquiry, however, because the second step of our analysis
requires that the circumstances proved support no reasonable hypothesis inconsistent with
guilt. See Petersen, 910 N.W.2d at 7. Bradley argues that the circumstances proved support
an alternative hypothesis inconsistent with guilt, which is that he intended to shoot a van
to “scare” M.M., because he was concerned that M.M. would return to “harm them,” and
did not intend to kill M.M. Bradley’s alternative hypothesis is based primarily on his own
trial testimony.6

6 Bradley also argues that this alternative theory is supported by a state witness’s (police
officer’s) testimony that Bradley may only have been trying to “scare” M.M. At trial, the
officer testified that she told C.C. in an interview that the shot was a “miracle shot” because
she was trying to calm down C.C. and make the situation not “as bad as it is.” On
14
It is true that “[w]e give no deference to the factfinder’s choice between reasonable
inferences.” Al-Naseer, 788 N.W.2d at 474. But on review, we can only draw competing
inferences from the circumstances proved, which the Minnesota Supreme Court has held
do not include “every circumstance as to which there may be some testimony in the case,
but only such circumstances as the [fact-finder] finds proved by the evidence.” Stein, 776
N.W.2d at 715 (emphasis added) (quoting State v. Johnson, 217 N.W. 683, 684 ( Minn.
1928)). In other words, the circumstances proved consist of the “subset of facts” that the
district court determined were proved by the evidence. See Harris, 895 N.W.2d at 600.
This limitation ensures that credibility determinations remain the province of the
fact-finder. Id.; see also State v. Wiley , 348 N.W.2d 86, 91 (Minn. App. 1984) (holding
that district court findings “which are the product of firsthand observation of the demeanor
of the parties and witnesses possess a certain integrity not contained in the written record
alone”), aff’d, 366 N.W.2d 265 (Minn. 1985).
Here, Bradley’s theory of an accidental shooting relies on his own testimony, which
was expressly rejected in the district court’s written factual findings. The district court
found that Bradley’s “testimony that he was aiming at the broadside of a van in the parking

cross-examination, the officer testified that it is a “reasonable possibility” that Bradley did
not think he could hit M.M. from the distance he fired.

We reject Bradley’s position for two reasons. First, the fact that it was a “miracle shot ”
does not make his conduct less intentional. Second, the officer’s testimony about an
accidental killing is speculative and inconsistent with the district court’s findings. See
Pratt, 813 N.W.2d at 874 (providing that “mere conjecture” does not establish grounds for
an alternative reasonable inference). Thus, the officer’s speculation is not part of the
circumstances proved.
15
lot during day light hours, but accident[ally] hit [] M.M. in the back, whom he had just
seriously assaulted, was neither credible nor plausible.” The district court also found that
Bradley’s claim that he was afraid M.M. would come back was not credible because I.C.
“had told him” that “M.M. did not have a gun, [and] no one saw [him] with a gun.”
We conclude that the district court’s written findings, including its determination
that Bradley was not credible when he testified that he accidentally shot M.M., “winnow
down” the circumstances proved. Because Bradley’s testimony that he accidentally sho t
M.M. was rejected by the district court as not credible, we must disregard Bradley’s
testimony, along with all other evidence that is inconsistent with the district court’s verdict
and findings. See Harris, 895 N.W.2d at 600; see also Stein, 776 N.W.2d at 715. Therefore,
Bradley’s theory of an accidental shooting lacks support in the circumstances proved and
is not a reasonable alternative hypothesis. Because the circumstances proved are
inconsistent with any rational hypothesis other than guilt, we conclude that the evidence
was sufficient to support Bradley’s conviction of second-degree murder.
II. The district court did not err in convicting Bradley of second- degree murder
by failing to require the state to prove that Bradley did not shoot M.M. in the
heat of passion.

Bradley contends that the district court applied the wrong burden of proof to assess
the state’s evidence on whether he acted in the heat of passion. Because Bradley submitted
to the district court “the lesser mitigating offense of first-degree heat -of-passion
manslaughter,” Bradley argues that the district court should have required the state to prove
beyond a reasonable doubt that he “did not act in the heat of passion when he committed
16
the killing.” Bradley contends the court erroneously placed the burden on the state to
“prove beyond a reasonable [doubt] that [Bradley] acted in the heat of passion.”
Due process requires that the state “prove beyond a reasonable doubt the existence
of every element of the crime charged.” State v. Robinson, 539 N.W.2d 231, 238 (Minn.
1995). Once a defendant raises heat of passion as a mitigating factor to a murder charge,
the state’s burden is to “prove beyond a reasonable doubt the absence of heat of passion.”
Id. at 239. The absence of heat of passion bec omes an element that the state is required to
prove to convict the defendant of the murder charge . See id.; see also 10 Minnesota
Practice, CRIMJIG 11.36 (2015) (stating absence of heat of passion is an element of
second-degree murder when raised by the defense).
For the state to prove the absence of heat of passion, it must prove the absence of
two elements: “(1) the killing [was] done in the heat of passion, and (2) the passion [was]
provoked by words and acts of another such as would provoke a person of ordinary
self-control under like circumstances.” State v. Kelly, 435 N.W.2d 807, 812 (Minn. 1989)
(holding an intentional killing may be mitigated if both elements are present); see also
Robinson, 539 N.W.2d at 239 (holding proof of the “emotional state alone” will not
“mitigate murder to manslaughter”).7 The first element is subjective and considers whether
the defendant’s emotional state “clouds a defendant’s reason and weakens his willpower.”

7 Bradley contends that the state was required to prove the absence of both elements of heat
of passion; the state does not disagree. Thus, we consider both elements of heat of passion.
We note, however, that Minnesota caselaw holds that, where the state proves the absence
of only one element of heat of passion, a defendant is not entitled to mitigation. See, e.g.,
State v. Buchanan, 431 N.W.2d 542, 549 (Minn. 1988) (holding defendant’s emotional
state alone will not mitigate murder to manslaughter).
17
State v. Johnson, 719 N.W.2d 619, 626 (Minn. 2006) (quotation omitted). The defendant’s
behavior “before, during, and after the crime is relevant” to this inquiry and “[a]nger alone
is not enough.” Id. The second element requires an objective analysis of whether the
provocation is adequate to trigger a person of ordinary self-control to kill. Id. at 627.
Here, Bradley requested consideration of lesser-included offenses, including
first-degree heat -of-passion manslaughter, before the attorneys proceeded with closing
arguments in the bench trial. The state did not object to the district court “consider[ing]
them.” The district court stated, “I’ll be considering the lesser includeds.” In the 2017
order, the district court quoted jury instructions for second-degree murder to structure its
analysis of the elements, but failed to discuss whether the state had proved the absence of
heat of passion. See 10 Minnesota Practice , CRIMJIG 11.25 (2015) (second- degree
murder). The district court’s summary of the law in the 2017 order is erroneous because
the state had the burden of proving that Bradley did not act in the heat of passion. See
Robinson, 539 N.W.2d at 239.8
Bradley argued this point in his postconviction motion, stating that the district
court’s “findings are incomplete” because its finding of intent did not “preclude a finding

8 We note that the district court did not necessarily have to consider the lesser-included
offenses in its 2017 order. The Minnesota Supreme Court has held that in jury trials, it is
unnecessary to instruct the jury on lesser-included offenses when “there is no evidence
adduced to support acquitting of the greater charge and convicting of the lesser charge.”
State v. Prtine, 784 N.W.2d 303, 317 (Minn. 2010). Here, it may have been unnecessary
for the district court to consider the manslaughter charge considering the lack of evidence
supporting heat of passion. However, because the district court stated it was considering
the lesser-included offenses and issued a follow-up 2018 order addressing them after
postconviction proceedings, we address this issue.
18
that the killing was committed in the heat of passion.” Accordingly, the district court issued
its 2018 order, in which it analyzed the requirements for first-degree heat-of-passion
manslaughter. The 2018 order stated that it “was NOT proven beyond a reasonable doubt”
that “Bradley acted in the heat of passion with intent to kill [M.M.]” This is also a
misstatement of law because the state had to prove the absence of heat of passion beyond
a reasonable doubt—not that Bradley acted in the heat of passion. See id.
The state does not dispute that it was required to prove the absence of heat of passion
beyond a reasonable doubt to sustain Bradley’s conviction of second-degree murder and
the state’s brief to this court does not disagree that the district court misstated the law in
the 2017 order and in the 2018 order.
Based on the parties’ arguments and the record on appeal, we understand Bradley
to raise two alternative arguments for reversal. First, Bradley argues that the district court
used the wrong burden of proof in its analysis of the heat-of -passion element for
second-degree murder and this amounted to structural error that requires a new trial. 9
Second, assuming that the district court’s error was not structural and is subject to
harmless-error analysis, Bradley argues that the error was prejudicial because the state

9 Bradley also argues that this court “should remand to the district court to adjudicate
[Bradley] guilty of first-degree heat -of-passion manslaughter, vacate [his] second-degree
intentional murder sentence, and sentence [him] on the heat-of -passion manslaughter
conviction.” Because Bradley was found not guilty of first-degree manslaughter, the
remedy he requests is unavailable. The constitution’s prohibition against double jeopardy
prevents a person from being tried more than once for the same offense. Sanabria v. United
States, 437 U.S. 54, 64, 98 S. Ct. 2170, 2179 (1978) (“[W]hen a defendant has been
acquitted at trial he may not be retried on the same offense, even if the legal rulings
underlying the acquittal were erroneous.”)
19
failed to prove that he did not act in the heat of passion. The state argues that there was no
structural error, and any error was harmless. We address each of Bradley’s arguments in
turn.
A. Structural-error analysis
Structural errors “deprive defendants of basic protections without which a criminal
trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.”
State v. Finch, 865 N.W.2d 696, 703 (Minn. 2015) (quotations omitted). Structural errors
have two essential characteristics: “(1) the error affects the framework within which a trial
proceeds, and (2) the error’s effect on the proceedings is difficult to assess.” State v. Little,
851 N.W.2d 878, 892 (Minn. 2014). Structural errors, which require automatic reversal,
apply in a “very lim ited class of cases,” such as when a defendant is denied the right to
counsel or an impartial judge. Colbert v. State, 870 N.W.2d 616, 624 (Minn. 2015) (citing
circumstances where structural error has applied). A structural error also occurs if a
verdict is not based on guilt beyond a reasonable doubt, such as when the jury is
instructed on reasonable doubt in a way that diminishes the prosecution’s burden of proof.
Sullivan v. Louisiana, 508 U.S. 275, 280-81, 113 S. Ct. 2078, 2082-83 (1993).
Here, we conclude that there was no structural error. First, the district court’s
misstatement of law did not affect the “framework within which a trial proceeds.” Little,
851 N.W.2d at 892. During the four-day bench trial, which had a total of 16 witnesses, the
state offered substantial evidence relevant to the heat-of-passion element, such as the nature
of the killing, the weapon used, Bradley and M.M.’s conduct before the killing, as well as
Bradley’s conduct and statements after the killing. Bradley moved for the district court to
20
consider the lesser-included offenses before final arguments and the district court agreed
to do so. On appeal, Bradley challenges what happened after the trial when the district
court issued its written decisions. Thus, we conclude that the district court’s error did not
affect the framework of Bradley’s trial.
Second, this is not one of the “very limited class of cases” where a defendant is
deprived of a basic protection that affected the trial in a way that is “difficult to assess.”
See Colbert, 870 N.W.2d at 624; Little, 851 N.W.2d at 892. Initially, we ask whether we
can assess the effect of the district court’s misstatement of the burden of proof by
examining the district court’s written decision. The Minnesota Supreme Court answered a
similar question when it concluded “that the failure to instruct the jury on an element of
the charged offense is subject to review as a trial error, not as a structural error.” State v.
Watkins, 840 N.W.2d 21, 27 (Minn. 2013).
Here, the district court heard the witnesses, considered all of the evidence, and
prepared two detailed written memoranda stating its findings of fact and conclusions of
law. The district court’s two detailed written decisions assist our appellate review of the
effect of its misstatement of law. See Scarver, 458 N.W.2d at 168 (stating that, in a bench
trial, the district court must issue findings of fact “to aid the appellate court in its review of
conviction resulting from a nonjury trial”); see also Colbert, 870 N.W.2d at 624 (holding
that when an error can be “assessed in the context of other evidence” to determine
prejudice, it is a trial error and not a structural error). Because the effect of the district
court’s error is not difficult to assess, we conclude that the district court did not commit
structural error when it misstated the burden of proof in its written decisions after a bench
21
trial. Thus, we reject Bradley’s claim that structural error occurred. Next, we evaluate
whether the district court’s error was prejudicial.
B. Harmless-error analysis
Harmless-error review means that we determine whether the district court’s guilty
verdict is “surely unattributable” to the error; if so, then the error is harmless and no
reversal is required. See State v. Dorsey, 701 N.W.2d 238, 252 (Minn. 2005).
While the district court’s 2017 and 2018 orders contained misstatements of the
state’s burden of proof on the heat-of -passion element, both orders repeatedly and
consistently discussed and analyzed whether the state had satisfied its burden of proof
beyond a reasonable doubt. In total, the district court considered four charges and four
lesser-included offenses. Its written analysis, when read as a whole, indicates a correct
application of the state’s burden of proof.
To determine whether the district court’s error on the heat-of -passion element was
harmless in this case, we examine whether the district court determined, and the evidence
established, the absence of both elements of heat of passion beyond a reasonable doubt.
See Kelly, 435 N. W.2d at 812. First, the district court found in its 2018 order that
“Bradley’s state of mind was rational and objectively, he was not acting in the heat of
passion.” The district court also found that Bradley demonstrated a “rational, calculating
and controlled emotional state of mind before, during and after the murder,” including the
numerous steps he took to kill M.M.—walking back to the apartment, picking up the gun,
opening the window, aiming, and shooting M.M. Additionally, the district court found that
Bradley left the apartment with all the eyewitnesses and discarded the gun after the killing.
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The record supports each of these findings, which are inconsistent with an act in the heat
of passion. See State v. Stewart, 624 N.W.2d 585, 591 (Minn. 2001) (holding that
“attempting to avoid detection” for a crime just committed demonstrates a “rational,
calculating, and controlled emotional state of mind”).
Second, the district court’s findings also rejected Bradley’s claim of adequate
provocation by M.M. The district court found that Bradley’s claim that M.M. was going
to “come back to the apartment and harm them was neither credible nor plausible” because
“[I.C.] had told [Bradley] that [M.M.] did not have a gun, no one saw [M.M.] with a gun,
and [M.M.] ha d only left out the back door less than two minutes earlier.” The record
supports these findings. Bradley’s use of a deadly weapon to shoot an unarmed man in the
back, while the victim was walking away from the scene, eliminates provocation beyond a
reasonable doubt. See Robinson, 539 N.W.2d at 239 (favorably citing caselaw stating that
when a killing is “effected with a deadly weapon, the provocation must be great indeed”
(quoting State v. Shippey, 10 Minn. 223, 230, 10 Gil. 178, 182 (1865))); State v. Galvan,
368 N.W.2d 400, 403 (Minn. App. 1985) (holding that when a victim and friends had
walked away from defendant, there was no evidence of provocation), aff’d, 374 N.W.2d
269 (Minn. 1985).
Bradley challenges the sufficiency of the state’s evidence regarding lack of heat of
passion, arguing that the “few minutes between [him] being provoked by M.M. in the
apartment and the shooting fails to establish that [he] did not kill M.M. in the heat of
passion.” Bradley cites to State v. Shannon for support. 514 N.W.2d 790, 793 (Minn. 1994).
But Shannon is inapposite. The supreme court reversed and remanded for a new trial
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because a prosecutor’s misleading closing argument that the defendant did not kill in the
heat of passion may have influenced the jury to return a guilty verdict. Id. at 793. The
supreme court held that, despite the failure of defendant’s counsel to object to the
prosecutor’s argument, the prosecutor’s error constituted plain error of a prejudicial nature.
Id. Shannon did not state that there was insufficient evidence to support the jury’s verdict.
Moreover, the defendant in Shannon was under the influence of alcohol and crack cocaine
and killed the victim during a physical confrontation. Id. No evidence establishes that
Bradley was intoxicated; also, Bradley was not in a physical confrontation with M.M. when
he killed him.
Bradley also argues that he called his sister after the killing and told her that he
“f---ed up” by killing M.M., and this shows that he did not “calculate[] the killing or his
escape.” But this was not a circumstance proved at trial, and was not in the district court’s
findings of fact. Moreover, even if we consider this fact, the mens rea for second -degree
murder does not require “calculation” or a plan of escape. Even premediated murder does
not require this. See State v. Vang, 774 N.W.2d 566, 583 (Minn. 2009) (noting that
premediated murder does not require “proof of extensive planning or preparation to kill”).
Bradley’s evidence that he regretted killing M.M. does not establish he lacked the intent to
kill him.
Because the district court expressly found that Bradley did not act in the heat of
passion, and sufficient evidence supports the district court’s finding, we conclude that the
district court’s error in citing the wrong legal standard in its written analysis was harmless.
24
In conclusion, there was sufficient evidence to convict Bradley of second-degree
murder because the circumstances proved do not permit a reasonable inference other than
guilt. Additionally, although the district court cited the wrong legal standard for the
heat-of-passion element, it applied the correct burden of proof in its analysis when it
determined that Bradley did not act in the heat of passion, and there was sufficient evidence
to support this finding beyond a reasonable doubt.
Affirmed.