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This opinion will be unpublished and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
A18-1126

State of Minnesota,
Respondent,

vs.

Thomas Richard Agnew,
Appellant.

Filed June 3, 2019
Affirmed
Ross, Judge

Benton County District Court
File No. 05-CR-17-956

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Philip K. Miller, Benton County Attorney, Kathleen Lynne Reuter, Assistant County
Attorney, Foley, Minnesota (for respondent)

Howard Bass, Bass Law Firm, PLLC, Burnsville, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Ross, Judge; and Peterson,
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
ROSS, Judge
Thomas Agnew brandished a handgun during an argument with an unarmed boater
over the use of a public ramp, and he faced trial for second-degree assault with a dangerous
weapon. The district court prohibited Agnew from presenting an expert witness to support
his theory that he drew his gun in self-defense. The jury found Agnew guilty, and he
appeals on the argument that the district court errantly precluded his expert witness from
testifying. Because Agnew never tied the expert’s reaction-time opinion about Agnew’s
risk to Agnew’s own belief, because Agnew points to no evidence showing that he
reasonably believed that the victim posed a dangerous threat regardless of reaction time,
and because the victim testified that Agnew drew his gun at a distance too great to make
the expert’s reaction-time testimony persuasive, we hold that the district court did not abuse
its discretion and that any error was harmless. We therefore affirm Agnew’s conviction.
FACTS
Thomas Agnew docked his boat at a Little Rock Lake public ramp while J.J. was
backing his boat down the ramp to launch from it. Then came the impasse and squabble.
J.J. sounded his horn and Agnew ignored it, mooring his boat. J.J. told Agnew that
he was trying to use that side of the ramp. Agnew told him to use the other side. J.J.
responded that he had already backed his trailer toward the spot and that he had the right
of way. Neither budged.
Eventually J.J. noticed that Agnew was wearing a leg brace and made a comment
about Agnew being handicapped. Agnew cursed at J.J., and J.J. moved his truck and then
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got out and walked toward Agnew. By both their accounts, when J.J. was about 20 to 25
feet away from Agnew, Agnew pulled a handgun from a holster on his waist and, according
to J.J., pointed it toward J.J. J.J. called Agnew “crazy,” and then he returned to his truck
and telephoned the police. Agnew went into his own pickup truck, where he unloaded his
gun and waited for police to arrive. According to J.J., after he called police he got out of
his pickup and saw Agnew pull his gun out again when the two were about 45 yards apart.
The state charged Agnew with second-degree assault for brandishing the gun and
putting J.J. in fear, under Minnesota Statutes, section 609.222, s ubdivision 1 (2016).
Agnew intended to call Mark Bruley, Brooklyn Park’s deputy police chief, to testify as an
expert witness to support his affirmative defense that he drew the gun to protect himself
from his reasonable fear of J.J. Bruley prepared a report in which he opined that Agnew
acted reasonably by drawing his gun. He said that Agnew would have less reaction time
every step that J.J. walked toward him, so drawing the gun was justified because Agnew
“cannot wait [to react], nor should he be expected to wait, until he is assaulted (possibly to
the level of being unconscious and render ing himself completely vulnerable) or for [J.J.]
to present a weapon.”
The state objected to the expert’s testifying based on his report. Agnew retreated at
the hearing, stating that he was “not offering that report.” He argued instead that the “big
picture concept” his expert could offer the jury was the distance from a perceived assailant
at which a reasonable person must draw a firearm in order to use the firearm as a means of
self-defense. He argued about the law-enforcement understanding of “the 21-foot rule” as
“a concept that an assailant can travel 21 feet and attack a person physically before that
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person could physically draw a firearm and use it,” meaning that “a person must therefore
make a decision very early [whether] to use a firearm.”
The district court granted the state’s motion to exclude the expert’s testimony.
Agnew proceeded to trial without an expert witness, but during cross-examination of Rice
Police Chief Ross Hamann, he did draw out the reaction- time theory and introduced the
concept of “the 21-foot rule.” When he asked the chief, “And so if an assailant is going to
charge you, a trained person, you have been trained that they can cover about 21 feet before
you can unholster and use a firearm, right?,” the chief answered, “As long as I believe that
person had a weapon, yes, that does play into it.”
The jury found Agnew guilty of second-degree assault. The district court convicted
him and issued a stayed sentence of 36 months in prison under probationary conditions.
Agnew appeals.
D E C I S I O N
Agnew argues that the district court improperly prohibited his expert from testifying
at trial. We review the district court’s decision to exclude expert testimony for an abuse of
discretion. State v. Ritt, 599 N.W.2d 802, 810–11 (Minn. 1999). Although Agnew
characterizes the alleged trial error as one implicating his due- process rights, he has not
developed the argument. He argues that the district court misapplied the helpful-to-the-jury
requirement of Minnesota Rule of Evidence 702, but he does not explain how applying the
rule violated any constitutional right. We will therefore review only the district court’s
application of the rule.
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The district court acted within its discretion by deciding that the expert testimony
would not help the jury. To conclude that Agnew acted in self-defense, the jury would have
had to conclude that he was not the aggressor, that he actually and honestly believed he
was in imminent danger of great bodily harm, that the belief was reasonable, and that there
was no reasonable possibility for him to retreat. See State v. Nystrom, 596 N.W.2d 256,
260 (Minn. 1999). A district court may prohibit an expert’s testimony supporting a
defendant’s self-defense theory if the defendant fails to offer evidence tying the expert’s
testimony to the defendant’s belief at the time that he allegedly acted in self -defense. Id.
Agnew argued that Bruley could comment on principles of self -defense and specifically
the so-called “ 21-foot rule.” According to argument and trial testimony, under that
reaction-time “rule,” a person risks not having sufficient time to react and fire his gun to
defend against a charging attacker without first drawing the gun before the attacker has
rushed within 21 feet.
There are three flaws in Agnew’s challenge to the district court’s decision to prevent
his expert witness from testifying about this reaction-time theory. First, Agnew never
presented any proffer of evidence tying the expert’s opinion about Agnew’s supposed risk
of harm to Agnew’s own belief. Bruley’s report does not mention any “21-foot rule,” and
the district court first heard of it during argument when Agnew’s a ttorney mentioned it.
Second, relying on any reaction-time rule to justify drawing a firearm as reasonable
self-defense implies that one first had a reasonable belief that his potential attacker was
armed with a deadly weapon or otherwise posed an imminent danger of great bodily harm.
Agnew points to no circumstance or evidence showing that he reasonably believed that J.J.
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posed such a threat at any distance. And third, J.J. testified that Agnew twice drew his gun
and pointed it at him , once when they were 20 to 25 feet apart but then again when they
were 45 yards apart, making the 21 -foot rule at least partially inconsequential. Given the
district court’s broad discretion in evidentiary decisions, we will not reverse because the
decision does not reflect an abuse of discretion and because, even if it did, any error was
harmless.
Affirmed.