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This opinion is nonprecedential except as provided by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
A23-1333

State of Minnesota,
Respondent,

vs.

Thomas Eugene DuPaul,
Appellant.

Filed August 12, 2024
Affirmed
Florey, Judge *

Ramsey County District Court
File No. 62-CR-22-5523

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

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Greg Scanlan, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Florey, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
FLOREY, Judge
In this direct appeal, appellant argues that the evidence is insufficient to support his
convictions of second-degree assault because the state failed to prove beyond a reasonable
doubt that he used a dangerous weapon. Appellant also argues that the distr ict court erred
by giving the model jury instruction on second -degree assault , which states that a
temporarily inoperable firearm is a dangerous weapon. Because there is sufficient evidence
to establish that appellant used a dangerous weapon and because t he district court did not
err in its jury instructions, we affirm.
FACTS
On September 26, 2022, the state charged appellant Thomas Eugene DuPaul with
one count of second -degree assault, in violation of Minn. Stat. § 609.222, subd. 1 (2022) ,
for pointing an antique -style, black -powder revolver at his brother , J.D . The state later
amended the complaint to include an additional charge of second-degree assault for DuPaul
pointing the revolver at his stepbrother, C.C. The case was tried to a jury.
At trial, DuPaul’s father testified that the family staged an intervention for DuPaul
because DuPaul was having “mental problems” and had gotten into “bad drugs” including
methamphetamine. DuPaul reacted negatively to the attempted intervention, started
yelling, and would not listen. The family told DuPaul that if he would not talk about his
behavior, he had to leave the premises and find another place to live. DuPaul left the home.
3
The same day, DuPaul’s family changed the locks to the house to prevent DuPaul
from entering without the permission of a resident -family member. DuPaul then returned
to the house and attempted to break down the door.
DuPaul’s family eventually let him enter the house. DuPaul immediately went to
the basement bedroom where he had been living.
DuPaul’s siblings approached him in the basement to tell him that he needed to
leave. DuPaul confronted them and began yelling. DuPaul stepped into the basement
bedroom and his siblings retreated upstairs because DuPaul’s stepbrother “had a good
feeling that [DuPaul] was going to get a gun.”
DuPaul came upstairs less than 30 seconds later with what appeared to be a gun in
his pocket. DuPaul’s father asked him : “Have you got a gun?” DuPaul replied by
removing the gun from his pocket and stating a combination of “Yeah, I have a gun” and
“You’re d-mn right.”
DuPaul proceeded to wave the gun, sweeping the entire room. DuPaul pointed the
gun at both his stepbrother, C.C., and his brother, J.D.
DuPaul’s father called 911 and police arrived on the scene. Police took DuPaul into
custody and recovered the gun . A forensic scientist identified the gun as a black-powder
revolver manufactured by Pietta in 2020. DuPaul’s stepbrother, C.C., had been with
DuPaul when he purchased the Pietta revolver. Pietta revolvers are a modern -
manufactured, antique-style firearm that are federally regulated as antique firearms. The
forensic scientist testified that the components of this Pietta were designed to use an
explosion to cause compressed gas to expel a projectile.
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A Ramsey County jury found DuPaul guilty of two counts of second-degree assault.
The district court granted DuPaul’s motion for a downward dispositional departure, stayed
execution of consecutive 21- and 27- month prison sentences, and placed DuPaul on
supervised probation for five years with credit for 129 days served. DuPaul appeals.
DECISION
DuPaul raises two arguments on appeal. First, he argues that the evidence i s
insufficient to establish that the antique-style revolver is a firearm and therefore insufficient
to establish that he used a dangerous weapon. Second, he argues that the district court
committed plain error by giving the model jury instruction on firearms as dangerous
weapons because it directed the jury to reach a guilty verdict based on a temporarily
inoperable firearm.
I. There is sufficient direct evidence to establish that DuPaul used a dangerous
weapon.

DuPaul argues that the evidence is insufficient to establish the dangerous weapon
element of assault in the second degree.
When considering a claim of insufficient evidence under the direct evidence
standard, this court’s review is limited to a “painstaking analysis of the record to determine
whether the evidence, when viewed in a light most favorable to the conviction, was
sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440
N.W.2d 426, 430 (Minn. 1989). We “assume that the jury believed the state’s witnesses
and disbelieved contrary evidence.” State v. Brocks, 587 N.W.2d 37, 42 (Minn. 1998). We
will not disturb a guilty verdict if the jury, acting with due regard for the presumption of
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innocence and the requirement of proof beyond a reasonable doubt, could reasonably
conclude that the state proved that the defendant was guilty of the offenses charged.
Bernhardt v. State, 684 N.W.2d 465, 476- 77 (Minn. 2004).
Assault is an “act done with intent to cause fear in another of immediate bodily harm
or death.” Minn. Stat. § 609.02, subd. 10(1) (2022). “Whoever assaults another with a
dangerous weapon” is guilty of assault in the second degree. Minn. Stat. § 609.222, subd.
1.
“‘Dangerous weapon’ means any firearm, whether loaded or unloaded . . . .” Minn.
Stat. § 609.02, subd. 6. “[A] firearm manufactured as such is a ‘firearm’ even if there is
some mechanical defect which renders it temporarily inoperable.” LaMere v. State , 278
N.W.2d 552, 556 (Minn. 1979). Even if temporarily inoperable, “a firearm is still a firearm
and, therefore, a ‘dangerous weapon.’” State v. Glover, 952 N.W.2d 190, 194 n.5 (Minn.
2020) (quoting LaMere, 278 N.W.2d at 556). For purposes of firearm-possession offenses,
the supreme court has defined a firearm to be “a weapon, that is, an instrument designed
for attack or defense, that expels a projectile by the action or force of gunpowder,
combustion, or some other explosive force.” Id. at 195.
DuPaul contends that the state failed to present sufficient evidence that his Pietta
revolver could “expel[] a projectile by the action of explosive force” at the time of the
assaults and therefore did not prove that he used a firearm. DuPaul contends that no one
test-fired the revolver, no witness testified to seeing the revolver previously fired , and no
witness conclusively testified that the contents of the revolver could expel a projectile .
6
In this case, there is sufficient direct evidence to support that DuPaul used a
dangerous weapon. 1 Sustaining a conviction for second -degree assault does not require
proof of whether the firearm was loaded, unloaded, temporarily inoperable, or loaded
improperly. See LaMere, 278 N.W.2d at 556 (stating that “so long as a firearm has the
apparent ability to inflict injury, the victim of an assault or robbery will respond in the same
way whether or not the gun is loaded”) . Therefore, it is not a material fact whether the
state presented sufficient evidence to prove that the actual contents of the revolver were
capable of combustion on the date of the assaults .
DuPaul told his family that he had a gun. The forensic scientist testified that the
components of DuPaul’s revolver are designed to use an explosion to cause compressed
gas to expel a projectile. The forensic scientist testified that the Pietta revolver was
manufactured as a firearm. Thus, the evidence allowed the jury to reasonably conclude
that the black-powder revolver was a firearm and therefore a dangerous weapon.
Because the state presented sufficient direct evidence that DuPaul used a dangerous
weapon, we affirm DuPaul’s convictions under Minn. Stat. § 609.222, subd. 1.
II. The district court did not err by instructing the jury that a firearm, even
temporarily inoperable, is a dangerous weapon.

DuPaul’s second argument is that the district court erred by using the model jury
instruction to ins truct the jury that a temporarily inoperable firearm “is” a dangerous

1 For purposes of this nonprecedential opinion, we assume without deciding that our review
is limited, as DuPaul urges, to whether there is sufficient evidence to satisfy the instructions
submitted to the jury, rather than a broader review. But see Musacchio v. United States ,
577 U.S. 237, 244 (2016) (“A reviewing court’s limited determination on sufficiency
review thus does not rest on how the jury was instructed.”).
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weapon, rather than instructing the jury that a temporarily inoperable firearm “may” be a
dangerous weapon.
A district court must instruct a jury in a manner that “fairly and adequately
explain[s] the law of the case.” State v. Peltier, 874 N.W.2d 792, 797 (Minn. 2016). A
district court errs if its jury instructions “confuse, mislead, or materially misstate the law.”
State v. Vang, 774 N.W.2d 566, 581 (Minn. 2009). “[M]odel jury instructions ‘are not the
law’ and are merely an ‘attempt to summarize the law for the convenience of the parties
and the [district] court. ’” State v. Valdez , 997 N.W.2d 557, 563 n.3 (Minn. App. 2023)
(alteration in original) (quoting State v. Pierce , 792 N.W.2d 83, 86 (Minn. App. 2010) ),
rev. granted (Minn. Jan. 16, 2024).
The supreme court has held “that a firearm manufactured as such is a ‘firearm’ even
if there is some mechanical defect which renders it temporarily inoperable.” LaMere, 278
N.W.2d at 556. A firearm is a dangerous weapon. Minn. Stat. § 609.02, subd. 6.
The model jury instruction for second -degree assault, used by the district court in
this case , states that : “ A firearm, whether loaded or unloaded, or even temporarily
inoperable, is a dangerous weapon.” 10 Minnesota Practice, CRIMJIG 8.05 (2022) (citing
Minn. Stat. § 609.02, subd. 6; LaMere, 278 N.W.2d at 556).
DuPaul concedes that the jury instructions were not objected to at trial. “A
defendant who fails to object to a jury instruction at trial forfeits review of the instruction.”
State v. Coleman, 957 N.W.2d 72, 77 (Minn. 2021) . “ An appellate court, however, has
discretion to consider a forfeited issue if the defendant establishes: (1) an error; (2) that
was plain; (3) that affects the defendant’s substantial rights.” Id.
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In this case, the district court did not err in its jury instructions. The supreme court
recently reiterated its holding from LaMere stating that “ LaMere simply holds that a
firearm is still a firearm and, therefore, a ‘dangerous weapon,’ even if there is ‘some
mechanical defect which renders it temporarily inoperable.’” Glover, 952 N.W.2d at 194
n.5 (quoting LaMere, 278 N.W.2d at 556). Therefore, it was not error for the district court
to instruct the jury that a temporarily inoperable firearm is a dangerous weapon because
that is an accurate statement of the law .
Affirmed.