State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0987

State of Minnesota,
Respondent,

vs.

Lindsay Rae Shelltrack-Miller,
Appellant.

Filed July 17, 2023
Affirmed
Reyes, Judge

Stearns County District Court
File No. 73-CR-21-2557

Keith Ellison, Attorney General, Lydia Villalva Lijó, Assistant Attorney General, St. Paul,
Minnesota; and

Janelle P. Kendall, Stearns County Attorney, St. Cloud, Minnesota (for respondent)

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

Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
Appellant argues in this di rect appeal from a conviction of second-degree
unintentional murder that (1) the state failed to prove beyond a reasonable doubt that
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appellant did not act in self -defense and (2) the district court abused its discretion by
denying appellant’s motion for a downward durational departure. We affirm.
FACTS
Appellant Lindsay Rae Shelltrack -Miller and the deceased, J ustin Berge, became
romantically involved in 2019 and had a volatile relationship. During the late evening of
April 18, 2021, and into the early morning hours of April 19, 2021, appellant and Berge
argued by text about their relationship.1
On the morning of April 19, Berge went to appellant’s residence , where they
continued to argue inside. Berge tried to leave, but upon going outside he saw that his tires
had been slashed. He became upset and accused one of appellant’s friends of being
involved. Appellant then drove him to an auto shop to get supplies to fix his tires.
When they returned, Berge exited appellant’s vehicle, slammed the doo r, and
walked to his vehicle to fix his tires.2 Appellant exited her vehicle, walked towards Berge,
and they argued again. She then walked towards her duplex but stopped and turned around
to speak to Berge. Appellant walked towards a garbage can locate d on the right side of the
duplex and stepped out of the sight of the camera to retrieve the garbage can. Appellant
stepped back into sight and squirt ed water on Berge. In response, Berge rolled up his

1 Appellant did not sleep during this period and had used methamphetamine. Berge also
had methamphetamine in his system.
2 The following facts are derived from appellant’s Night Owl security system video
recording which depicted what occurred after appellant and Berge returned from the auto
shop without sound. The security system video camera was positioned in the parking area
at the rear of the duplex allowing the viewer to see appellant’s vehicle parked parallel to
Berge’s vehicle.
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sleeves and walked towards appellant away from his vehicle . Appellant splashed water
backwards towards him , turned around and punched Berge with her right hand, dropped
her bag, and pulled out her mace. Berge retreated to his vehicle. However, appellant
continued to pursue him, so Berge ran across the alley to the neighbors’ garage.
Eventually, Berge walked back towards his vehicle . Appellant engaged in
conversation with and gestured at Berge. Berge kneeled by the rear driver’s side wheel
while appellant picked up her belongings, walked towards Berge, and poured the contents
of a water bottle on him . Berge got up quickly and threw a Fix-a-Flat aerosol can at her.
Appellant reached to get the Fix-a-Flat can, and Berge pushed her away, causing appellant
to stagger backward. Appellant then threw a pop can at Berge. Berge picked up the pop
can and threw it at appellant. The pop can hit her head and rupture d. At the same time,
appellant attempted to mace Berge. Berge immediately ran towards the alley away from
appellant.
As Berge ran away from a ppellant, she pursued Berge across the alley while still
holding onto the mace . Appellant grabbed him from behind , trying to reach around his
upper right shoulder and face area. Berge turned around and grabbed appellant’s sweater,
pulling her to the ground. At this point, Berge tried to move away and pick up his
belongings that he dropped.
As Berge moved away from appellant, she began kicking him. Berge reached
toward appellant and tried to grab her legs , while appellant kicked out and attempted to
spray mace in Berge’s face. Appellant then unzipped her pouch and reached into it with
her left hand, while Berge grabbed her right arm with both hands. Berge retrieved the mace
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and appeared to use it on appellant. Appellant grabbed a knife that was in her pouch and
stabbed him in the left side of the chest. Berge walked towards his car, began stumbling,
and fell to the ground behind his car.
An officer dispatched to respond to the reported stabbing, after arriving on scene,
heard appellant’s neighbor say, “[s]he stabbed him.” Appellant told the officer that the
knife was “on the trunk of the car.” The officer asked appellant if she had stabbed Berge
and she responded , “[y]es Officer.” An ambulance arrived and transported Berge to a
hospital where he was pronounced dead . A n assistant medical examiner determined
Berge’s cause of death to be “a knife wound that passed through the third intercostal space,
into the pericardial sac , and through the left coronary artery.” The assistant medical
examiner ruled out Berge’s weight, heart condition, and the presence of drugs in his system
as causes of death.
Respondent State of Minnesota charged appellant with second-degree unintentional
murder in violation of Minn. Stat § 609.19, subds. 1, 2(1) (2020), for fatally stabbing Berge.
Appellant asserted self -defense, waived her right to a jury trial , and the case proceeded to
a court trial on October 25 to 29, 2021. At trial, t he district court determined that
appellant’s claim of self -defense failed and that “the [s]tate ha[d] prove [d] beyond a
reasonable doubt that, . . . [appellant] committed the offense of Murder in the Second
Degree – Without Intent – Not Premeditated . . . .”
Before sentencing, appellant moved for a downward durational departure. At the
sentencing hearing, the district court denied appellant’s motion and sentenced appellant to
prison for 128 months, the lower end of the presumptive range. This appeal follows.
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DECISION

I. The state proved beyond a reasonable doubt that appellant did not act in self -
defense because appellant was the initial aggressor, and she did not revive her
right to act in self-defense.

Appellant argues that her action s were insufficient to make her the first aggressor
and that the district court’s findings on the revival of self-defense contradicted the law. We
are not persuaded.
Because appellant challenges the district court’s determination that she did not
establish a self-defense claim, this court reviews this issue for sufficiency of the evidence.
See State v. McKissic, 415 N.W.2d 341, 344 (Minn. App. 1987) ( reviewing defendant’s
argument that state failed to disprove that the y acted in self -defense for sufficiency of
evidence). Appellate courts use the same standard of review in court trials and in jury trials
when evaluating the sufficiency of the evidence . State v. Palmer , 803 N.W.2d 727, 733
(Minn. 2011). “[A]ppellate cou rts carefully examine the record to determine whether the
facts and the legitimate inferences drawn from them would permit the [fact-finder] to
reasonably conclude that the defendant was guilty beyond a reasonable doubt of the offense
of which he was convicted.” State v. Griffin, 887 N.W.2d 257, 263 (Minn. 2016) (quotation
omitted). “The evidence must be viewed in the light most favorable to the verdict, and it
must be assumed that the fact -finder disbelieved any evidence that conflicted with the
verdict.” Id. Witness testimony “is direct evidence when it reflects a witness’s personal
observations and allows the jury to find the defendant guilty without having to draw any
inferences.” State v. Horst, 880 N.W.2d 24, 40 (Minn. 2016) . A video may also be direct
6
evidence. See State v. McCormick, 835 N.W.2d 498, 507 (Minn. App. 2013) (stating that
defendant’s reenactment video was direct evidence of what defendant did) .
Minnesota law allows a person to use reasonable force against another when the
person reasonably believes force is necessary to resist an offense against them. Minn. Stat.
§ 609.06, subd. 1(3) (2020). The elements of self-defense include :
(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. Basting, 572 N.W.2d 281, 285 ( Minn. 1997) (citations omitted). “The degree of
force used in self -defense must not exceed that which appears to be necessary to a
reasonable person under similar circumstances.” Id. (citations omitted). “A defendant has
the burden of going forward with evidence to support a claim of self-defense.” Id. (citation
omitted). “Once it is raised, the state has the burden of disproving one or more of these
elements beyond a reasonable doubt.” Id. (citation omitted). The “state need only disprove
beyond a r easonable doubt at least one of the elements of self -defense.” State v. Radke ,
821 N.W.2d 316, 324 (Minn. 2012). A person is the initial aggressor if they “began or
induced the incident” by engaging in activity that is a “good deal greater than mere
conversation.” State v. Carridine, 812 N.W.2d 130, 145 (Minn. 2012) (quotation omitted).
“An aggressor in an incident has no right to a claim of self -defense.” Bellcourt v. State ,
390 N.W.2d 269, 272 (Minn. 1986).
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At trial, the district court heard testimony from appellant, the responding officers,
and appellant’s neighbor. It also received into evidence the surveillance video provided by
appellant that show ed the stabbing incident. The district court first found that appellant
met her burden of production of self -defense. The burden then shifted to the state to
disprove at least one element of self-defense. The district court determined that the state
had disproved both the absence of aggression or provocation by defendant and the absence
of a reasonable p ossibility of retreat to avoid the danger . Appellant disput es only those
two elements of self-defense.
The district court determined that the state had prove d “beyond a reasonable doubt
that appellant was the initial aggressor.” It explained that appellant “fueled the conflict by
escalating the confrontation beyond mere conversation.” The record shows that appellant
began the incident by repeatedly throwing water at Berge, provoking him, and repeatedly
pursuing him. Appellant was also the first to present a weapon by trying to mace Berge
while pursuing him. In her own words, appellant was feeling “ballsy” at that time
Appellant’s neighbor and the surveillanc e video provided direct evidence that
appellant was the initial aggressor. Appellant’s neighbor testified at trial that he observed
appellant both “dumping water” on Berge and “chasing him” and became concerned. The
neighbor further testified that, as he saw appellant chase after Berge and observed Berge
“running away from her in a panic ,” the neighbor ran outside to break them up. Once
outside, he saw Berge “lying on his back.” The neighbor asked appellant “what’s wrong
with him” twice and appellant admitted , “well, I stabbed him.” Moreover, the district court
received into evidence the surveillance video which depicted the incident, and which
8
supports the finding that appellant began the incident with Berge. Sufficient evidence
therefore shows that appellant first elevate d the conflict to significantly more than mere
words. See Carridine, 812 N.W.2d at 145.
Appellant also argues the district court’s findings that her right to self -defense was
not revived because appellant could not physically withdraw due to Berge’s size and
strength, and because he pinned her to the ground. Her argument is misguided. When a
defendant “is the original aggressor in an incident giving rise to h[er] self-defense claim,
an instruction on self -defense will be available to h[er] only if [s ]he actually and in good
faith withdraws from the conflict and communicates that withdrawal, expressly or
impliedly, to h[er] intended victim.” Bellcourt, 390 N.W.2d at 272. That did not happen
here.
Appellant argues that , by telling Berge that she had a knife on her, she withdrew
from the conflict. The district court determined that “[appellant’s] right to claim self -
defense was not revived because she did not clearly manifest a good -faith intention to
withdraw from the conflict.” The surveillance video shows that after Berge pulled
appellant to the ground, he tried to move away and pick up his belongings, but appellant
started kicking him. Appellant showed no outward expression that the conflict was over,
nor did she discard the mace or any other weapon in her possession. Therefore, Berge had
no reason to believe that the conflict was over. The Minnesota S upreme Court has noted
that the defendant is at fau lt and must accept the consequences “[i]f the circumstances are
such that it is impossible for [her] to communicate the withdrawal.” Bellcourt, 390 N.W.2d
at 272. Here, appellant created the circumstances that made it impossible for her to
9
communicate her withdrawal and she did not in good faith withdraw from the conflict. As
a result, the evidence was sufficient to disprove self -defense beyond a reasonable doubt .3
II. The district court acted within its discretion by denying appellant’s motion for
a downward durational departure and imposing a sentence at the low end of
the presumptive range.

Appellant argues that the district court abused its discretion by failing to apply the
Military Veteran’s Restorative Justice Act to grant her motion for a downward durational
departure. We are not persuaded.
Appellate courts “review a district court’s decision to depart from the presumptive
guidelines sentence for an abuse of discretion .” State v. Solberg, 882 N.W.2d 618, 623
(Minn. 2016). But issues regarding statutory interpretation are reviewed de novo. State v.
Misquadace, 644 N.W.2d 65, 68 (Minn. 2002) . “If the plain language of a statute is clear
and free from ambiguity, the court’s role is to enforce the language of the statute and not
explore the spirit or purpose of the law.” Nelson v. Nelson, 866 N.W.2d 901, 903 (Minn.
2015) (quotation omitted) .
“A reviewing court may not interfere with the sentencing court ’s exercise of
discretion, as long as the record shows the sentencing court carefully evaluated all the
testimony and information presented before making a determination.” State v. Pegel, 795

3 Because the state is only required to disprove one element of self -defense and the state
disproved the “absence of aggression or provocation on the part of the defendant,” we need
not address element four of the “absence of a reasonable probability of retreat to avoid the
danger of self -defense.” See Radke, 821 N.W.2d at 324. Even if we were to address the
fourth element, the district court found that appellant had several opportunities to retreat
and failed to do so. It found that appellant could have (1) walked away while Berge
repaired the tire; (2) gone inside her duplex after the first exchange; (3) walked down the
alley away from Berge instead of chasing him; or (4) driven away.
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N.W.2d 251, 255 (Minn. App. 2011) (quotation omitted). Moreover, the district court need
not provide an explanation when it imposes a sentence within the presumptive guidelines
range. State v. Van Ruler , 378 N.W.2d 77, 80 (Minn. Ct. A pp. 1985); see also State v.
Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), rev. denied (Minn. Jul. 20, 2010).
A district court may depart from the guidelines sentence “only if aggravating or
mitigating circumstances are present and those circumstances prov ide a substantial and
compelling reason not to impose a guidelines sentence.” State v. Soto, 855 N.W.2d 303,
308 (Minn. 2014) (quotations omitted). “[A] durational departure is a sentence that departs
in length from the presumptive guidelines range.” Solberg, 882 N.W.2d at 623. “A
durational departure must be based on factors that reflect the seriousness of the offense,
not the characteristics of the offender. ” Id. “A downward durational departure is justified
only if the defendant ’s conduct was significantly less serious than that typically involved
in the commission of the offense.” Id. (quotation omitted).
The Military Restorative Justice Act ( the Act) allows a district court to consider
sentencing departures for members or ve terans of the United States military found guilty
of certain crimes. Minn. Stat . § 609.1056, subd. 4 (2020). To apply the Act, appellant
must first show, as a threshold matter, that she engaged in substantial rehabilitative efforts.
Id. Appellant then must prove by clear and convincing evidence the following three
factors: (1) she “suffer[ed] from an applicable condition at the time of the offense”; (2) “the
applicable condition was cau sed by service in the United States military ”; and (3) “the
offense was committed as a result of the applicable conditio n.” Id.
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Here, the sentencing worksheet calculated a presumptive sentence of 150 months
with a presumptive range of 128 months to 180 m onths. The district court sentenced
appellant to the lower end of 128 months. Regarding first the application of the Act ,
appellant did not provide any evidence that she engaged in any rehabilitative efforts. As a
result, appellant’s argument fails because she cannot meet this threshold statutory
requirement. Second, appellant failed to show that she committed the stabbing offense as
a result of the trauma that she experienced in the military. Third, the statutory language
states that the “[district] court may determine that the defendant is particularly amenable to
probation and order a mitigated durational or dispositional sentencing departure.” Minn.
Stat. § 609.1056, subd. 4 (emphasis added ). In other words, the district court can consider
whether to order a mitigated durational departure but it is not required to do so under this
statute.
Finally, the district court noted that it carefully considered the record, including the
three escalations that appellant caused with Berge and that each of those escalations was
an “independent choice and opportunity to disengage.” It also considered appellant telling
an officer that she was feeling “ballsy” at that time, appellant’s history of trauma, and that
a life was lost from this inc ident. The district court therefore carefully weighed all the
evidence and did not abuse its discretion by denying appellant’s motion.
Affirmed.