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This opinion is nonprecedential except as provided by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
A23-1095

State of Minnesota,
Respondent,

vs.

Kelly Ann Tysdale,
Appellant.

Filed July 8, 2024
Affirmed
Schmidt, Judge

Rice County District Court
File No. 66-CR-20-1430

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

Brian M. Mortenson, Rice County Attorney, Sean R. McCarthy, Assistant County
Attorney, Faribault, Minnesota (for respondent)

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

Considered and decided by Worke, Presiding Judge; Schmidt , Judge; and
Harris, Judge.
NONPRECEDENTIAL OPINION
SCHMIDT, Judge
Appellant Kelly Ann Tysdale challenges her conviction of great bodily harm caused
by the sale of a Schedule I or II controlled substance and the verdict of third-degree sale of
heroin or fentanyl, arguing that the evidence was insufficient as a matter of law to prove
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that Tysdale (1) sold a Schedule I or II controlled substance, or (2) sold heroin or fentanyl.1
Because the evidence supports the conviction for great bodily harm caused by the sale of a
Schedule I or II controlled substance, we affirm.
FACTS
In June 2020, respondent State of Minnesota charged Tysdale with great bodily
harm caused by distribution of a Schedule I or II controlled substance and third-degree sale
of heroin or fentanyl. The following facts are derived from the evidence presented at trial.
J.H., the victim, testified that she had suffered from addiction in the past and that
her drug of choice was “heroin/fentanyl.” When asked about her overdose in June of 2020,
J.H. testified that she overdosed on fentanyl or a mixture of heroin and fentanyl, but could
not recall the specific date. J.H. testified that she could not remember “anything from that
night besides waking up in the parking lot,” getting Narcan, and being transported to jail.
She recalled, however, that she used the drug intravenously with a needle.
L.W., J.H.’s friend, testified that she was present when J.H. overdosed. L.W.
recounted that she and her boyfriend met with J.H. to obtain Suboxone for L.W.’s
boyfriend. The three then drove together to a hotel to meet Tysdale and her boyfriend.
Shortly after they parked at the hotel, Tysdale arrived with her boyfriend. L.W. and
J.H. stayed in the car as L.W.’s boyfriend entered Tysdale’s car. L.W.’s boyfriend returned
to the car and asked for methamphetamine. L.W. gave her boyfriend methamphetamine,
and he walked back to Tysdale’s car. When L.W.’s boyfriend returned to the car a second

1 Prior to oral argument, appellant’s counsel filed a letter withdrawing a third issue raised
in the brief related to Tysdale’s criminal-history score.
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time, he and J.H. began “splitting up heroin” on the car dashboard. L.W. became upset
because she did not want her boyfriend to use heroin. L.W. and her boyfriend argued while
J.H. “shot up” the drugs they had received from Tysdale. When L.W. next looked at J.H.,
J.H. was “facedown in her lap,” “blue” in the face, and “making a horrible sound gasping
for air.” L.W. called 911.
Dispatch informed officers that the caller said a female was overdosing from heroin.
Officer M.S. responded to the scene first and administered Narcan to J.H. Officer M.S.
testified that Narcan is a drug used to reverse the effects of an opioid overdose. After the
first dose, officers found a weak pulse. Officer J.B. administered a second dose of Narcan
to J.H., and she eventually regained consciousness. Officer J.B. testified that, based on his
observations of J.H., and from his training and experience, J.H. likely overdosed from
either heroin or fentanyl. Both Officers M.S. and J.B. testified that using Narcan on
somebody who is not suffering from an opioid overdose will have no effect on that person.
The jury heard a recording of one of Tysdale’s jail calls. In the recording, Tysdale
described how police took her phone and contemplated how she could delete its contents.
Tysdale also said “if she died, yeah, I might have a little remorse, but . . . she chose to do
that, you know? . . . And I told him it was really good too.”
After the three-day trial, a jury found Tysdale guilty of both charged offenses. The
district court sentenced Tysdale to 84 months in prison on count one (great bodily harm
caused by the sale of a Schedule I or II controlled substance) and did not adjudicate count
two (third-degree sale of heroin or fentanyl).
Tysdale appeals.
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DECISION
Tysdale argues that the evidence was insufficient to prove beyond a reasonable
doubt that J.H. overdosed on a controlled substance and that she was guilty of third-degree
controlled-substance sale. We address each argument in turn.
I. The third-degree drug-sale verdict is not ripe for review.
Tysdale argues the guilty verdict of third-degree drug sale must be reversed due to
insufficient evidence. Although a jury found Tysdale guilty of third-degree
controlled-substance sale, the district court did not adjudicate her guilt for that offense or
impose a sentence. Thus, the third-degree drug-sale conviction is not ripe for sufficiency
review because there is no judgment of conviction. See State v. Ashland, 287 N.W.2d 649,
650 (Minn. 1979) (declining to consider an insufficiency-of -the-evidence claim on a
conviction for which the district court did not adjudicate the defendant’s guilt or impose a
sentence).
II. Sufficient evidence supports Tysdale’s conviction of great bodily harm caused
by distribution of a Schedule I or II controlled substance.

Tysdale argues her conviction of great bodily harm caused by the sale of a Schedule
I or II controlled substance must be reversed because the state did not chemically test the
substance. Tysdale contends that, without such testing, there exists a reasonable inference
that J.H. overdosed on a Schedule III or IV opioid rather than a Schedule I or II drug.
The statute under which Tysdale was convicted provides that a person is guilty of
great bodily harm caused by the distribution of drugs if she “proximately causes great
bodily harm by, directly or indirectly, unlawfully selling, giving away, bartering,
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delivering, exchanging, distributing, or administering a controlled substance classified in
Schedule I or II[.]” Minn. Stat. § 609.228 (2020). The parties agree that the state relied
on circumstantial evidence to prove Tysdale caused great bodily harm through the sale of
a Schedule I or II controlled substance. In such a case, we apply a two-step analysis in
reviewing a challenge to the sufficiency of the circumstantial evidence. State v. Ortega,
813 N.W.2d 86, 100 (Minn. 2012).
The first step is to identify the circumstances proved. State v. Silvernail,
831 N.W.2d 594, 598 (Minn. 2013). We must defer to “the jury’s acceptance of the proof
of these circumstances” and “assume that the jury believed the State’s witnesses and
disbelieved the defense witnesses.” Id. at 598-99 (quotations omitted). Accordingly, we
construe conflicting evidence in the light most favorable to the verdict. Id. at 599.
The second step is to determine if the circumstances, when viewed “as a whole,”
are “consistent with guilt and inconsistent with any rational hypothesis except that of guilt,
not simply whether the inferences that point to guilt are reasonable.” Id. (quotation
omitted). Appellate courts “examine independently the reasonableness of all inferences
that might be drawn from the circumstances proved” and “give no deference to the fact
finder’s choice between reasonable inferences.” Id. (quotations omitted). The
circumstantial evidence presented by the state “must form a complete chain that, in view
of the evidence as a whole, leads so directly to the guilt of the defe ndant as to exclude
beyond a reasonable doubt any reasonable inference other than guilt.” State v. Al-Naseer,
788 N.W.2d 469, 473 (Minn. 2010) (quotation omitted).
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A. Circumstances Proved
J.H. testified that her drug of choice was “heroin/fentanyl.” She recalled overdosing
but could not recall if she used fentanyl or a mixture of heroin and fentanyl. She did
remember using the drug intravenously with a needle, waking up in a parking lot, havin g
Narcan administered to her, and being transported to jail.
L.W. testified that she, her boyfriend, and J.H. drove together to meet Tysdale and
her boyfriend. L.W.’s boyfriend gave methamphetamine to Tysdale and her boyfriend,
and in return he received heroin or a heroin fentanyl mix. L.W. observed her boyfriend
and J.H. “splitting up heroin.” As L.W. and her boyfriend argued about the boyfriend using
heroin, J.H. injected the drug with a needle. L.W. then saw J.H. “facedown,” “blue” in the
face, and “making a horrible sound gasping for air.” L.W. called 911.
Dispatch told the responding officers that a female was overdosing from heroin.
Officer M.S. first responded to the scene and administered a dose of Narcan to J.H. After
the first dose, officers found that J.H. had a weak pulse. Officer J.B. administered a second
dose of Narcan, and J.H. regained consciousness. Officers M.S. and J.B. both testified that,
in their training and experience, using Narcan on somebody who is not suffering from an
opioid overdose will have no effect on that person. Based on his observations of J.H.,
Officer J.B. believed J.H. overdosed on heroin or fentanyl.
The jury also heard a jail call recording wherein Tysdale contempl ated how she
could erase the contents of her phone that was in police custody. In responding to the
caller, Tysdale said “if she died, yeah, I might have a little remorse, but . . . she chose to
do that, you know? . . . And I told him it was really good too.”
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B. The circumstances proved are consistent with the guilty verdict.
The circumstances proved, viewed as a whole, supports the jury’s finding that
Tysdale gave J.H. heroin or a mixture of heroin and fentanyl. See Silvernail, 831 N.W.2d
at 599. The evidence established that J.H.’s drug of choice was heroin/fentanyl; she went
to a drug exchange to receive heroin; J.H. injected the drug with a needle; after injecting
the drug, J.H. slumped over, turned blue, and gasped for air; officers administered two
doses of Narcan; and officers believed, from firsthand observations and from training and
experience, that J.H. had overdosed on heroin or fentanyl. These circumstances form a
complete chain that supports the inference that Tysdale caused great bodily harm to J.H.
by supplying her with heroin, or heroin and fentanyl, and excludes beyond a reasonable
doubt any reasonable inference other than guilt. See Al-Naseer, 788 N.W.2d at 473.
Tysdale cites State v. Vail to argue the evidence is insufficient to uphold her
conviction because “Minnesota law requires proof of the actual identity of the substance[.]”
274 N.W.2d 127, 134 (Minn. 1979). In other words, Tysdale argues that direct evidence
is required to identify the controlled substance relevant to her charges. But the Minnesota
Supreme Court has repeatedly refused to adopt a bright-line rule requiring chemical testing
to establish that a substance is a controlled substance. See State v. Olhausen, 681 N.W.2d
21, 26 (Minn. 2004). When a “substance was not scientifically tested, circumstantial
evidence and officer testimony may be presented to the jury to attempt to prove the identity
of the substance” at trial. Id. at 28-29. Thus, Tysdale’s conviction can be affirmed based
upon circumstantial evidence.
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Tysdale also contends that the lack of drug testing leaves room for the rational,
alternative hypothesis that J.H. overdosed on a Schedule III or IV opioid. Tysdale cites a
recent Minnesota Supreme Court case that determined that the state’s failure to test a
substance meant the circumstantial evidence was insufficient to prove the substance in
question was one drug (marijuana) and not another (hemp) based on the delta-9 THC
concentration level. See State v. Loveless, 987 N.W.2d 224, 248-49 (Minn. 2023). As
such, the evidence did not exclude the rational inference that the substance in question was
hemp, which did not violate the relevant statute. Id.
But Loveless is distinguishable from this case given the evidence of J.H. injecting
the drug combined with the officers’ testimony related to administering two doses of
Narcan and testifying, from training and experience, that J.H. had overdosed on heroin or
a fentanyl/heroin mixture. Unlike in Loveless , the evidence here forms a complete chain
of guilt that excludes, beyond a reasonable doubt, any inference other than guilt.
Al-Naseer, 788 N.W.2d at 473.
Affirmed.