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This opinion is nonprecedential except as provided by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
A25-0865

State of Minnesota,
Respondent,

vs.

Lowell Victor Abelson,
Appellant.

Filed April 27, 2026
Affirmed
Johnson, Judge

Martin County District Court
File No. 46-CR-24-209

Keith Ellison, Attorney General, Morgan Alexander, Assistant Attorney General, St. Paul,
Minnesota; and

Taylor McGowan, Martin County Attorney, Fairmont, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larson, Presiding Judge; Johnson, Judge; and Schmidt,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
A Martin County jury found Lowell Victor Abelson guilty of second-degree assault
based on evidence that he injured a woman by firing a handgun. We conclude that the
evidence is sufficient to prove that Abelson had the mens rea required for the offense of
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assault by the intentional infliction of bodily harm (also known as assault-harm). We also
conclude that the prosecutor did not misstate the law during closing argument and, thus,
did not engage in prosecutorial misconduct. Therefore, we affirm.
FACTS
On the night of March 15, 2024, V.W. was talking on the telephone with Abelson,
a longtime friend, when she heard him fall. She became concerned when Abelson did not
resume the conversation or respond to her. V.W. took a taxi to Abelson’s home in the city
of Fairmont and helped him care for an injury caused by the fall.
After taking care of Abelson’s injury, V.W. remained at Abelson’s home while the
two talked and consumed alcoholic beverages. In the early morning hours of March 16,
2024, Abelson unexpectedly became “aggressive,” yelled at V.W., and demanded that she
leave. Abelson forced V.W. to go outside onto his porch, but he later allowed her to come
back inside his home.
After V.W. reentered Abelson’s home, she began to look around the living room for
her cellphone and wallet so that she could leave. While V.W. was near the couch and
looking for her possessions, she saw a flash of light in her peripheral vision. She looked
at her left hand and saw injuries and blood. V.W. said to Abelson: “You shot me. Why
did you shoot me?” V.W. left Abelson’s home and knocked on neighbors’ doors to ask for
help. One neighbor answered the door and called 911.
The state charged Abelson with six offenses: (1) second-degree assault with a
dangerous weapon inflicting substantial bodily harm, in violation of Minn. Stat. § 609.222,
subd. 2 (2022); (2) second-degree assault with a dangerous weapon, in violation of Minn.
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Stat. § 609.222, subd. 1; (3) reckless discharge of a firearm within a municipality, in
violation of Minn. Stat. § 609.66, subd. 1a(a)(3) (2022); (4) intentional discharge of a
firearm, in violation of Minn. Stat. § 609.66, subd. 1a(a)(2); (5) failure to render aid to a
shooting victim, in violation of Minn. Stat. § 609.662, subd. 2(a) (Supp. 2023); and
(6) reckless handling or use of a firearm, in violation of Minn. Stat. § 609.66, subd. 1(a)(1)
(Supp. 2023).
The case was tried to a jury on two days in January 2025. The state called 12
witnesses and introduced numerous exhibits. The state’s primary witness was V.W., who
testified to the facts described above. V.W. also testified that she had difficulty recalling
some details of the incident. She did not recall seeing a gun and did not see Abelson fire a
gun. She did not know exactly where Abelson was located when the gun was fired, but
she believes that he was more than an arm’s length away from her.
The state called five law-enforcement officers as witnesses. Officer Beletti testified
that he searched Abelson’s home and saw an apparent bullet hole in a couch cushion and
two bullet holes in the living-room hardwood floor between the couch and a coffee table.
He also testified that he saw blood on the living-room floor and on the coffee table and saw
a trail of blood leading from the coffee table to the front door. He testified further that he
recovered a .45- caliber firearm and a magazine containing .45-caliber ammunition in
Abelson’s backyard. Deputy Wells testified that he searched Abelson’s home and found a
.45-caliber shell casing near the kitchen table and two .45-caliber shell casings near the
couch. Deputy Tietje, who is trained to identify gunshot wounds, testified that he observed
“through-and-through” injuries to V.W.’s fingers that were consistent with a gunshot
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wound. In addition, a neighbor who lives across the street from Abelson testified that she
heard gunshots early in the morning on March 16, 2024.
The state also called a forensic scientist who tested the .45-caliber handgun found
in Abelson’s backyard. The forensic scientist testified that, because the handgun is a semi-
automatic weapon, a separate trigger pull is necessary to discharge each bullet. The
forensic scientist also testified that the handgun has multiple safety mechanisms designed
to prevent an accidental discharge, that all such mechanisms were functional, and that she
was unable to produce “any type of accidental discharge” with the handgun during
laboratory testing. A second forensic scientist testified that a DNA mixture found on the
handgun contained only one major-contributor profile, which matched Abelson’s DNA.
Abelson did not testify. The jury found him guilty of all six charges. The district
court imposed concurrent prison sentences of 36 months and 12 months on counts 1 and 5.
The district court did not impose sentence s on counts 3, 4, and 6 and did not adjudicate
guilt on count 2. Abelson appeals.
DECISION
I. Sufficiency of the Evidence
Abelson first argues that the evidence is insufficient to support his conviction of
second-degree assault with a dangerous weapon inflicting substantial bodily harm.
A.
A person is guilty of second-degree assault if the person “assaults another with a
dangerous weapon and inflicts substantial bodily harm.” Minn. Stat. § 609.222, subd. 2.
The term “assault” is defined by statute to mean “(1) an act done with intent to cause fear
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in another of immediate bodily harm or death,” or “(2) the intentional infliction of or
attempt to inflict bodily harm upon another.” Minn. Stat. § 609.02, subd. 10 (2022).
In this case, the district court instructed the jury on the second form of assault in the
statutory definition, which often is called “assault-harm.” See State v. Fleck, 810 N.W.2d
303, 308 (Minn. 2012). The state’s theory at trial was that Abelson intentionally inflicted
substantial bodily harm on V.W. by firing a handgun, which discharged a bullet that struck
and injured V.W.’s hand.
Assault-harm is a general-intent crime. Id. at 309-10. The conduct forbidden by
the assault-harm offense is “a physical act, which results in bodily harm upon another.” Id.
at 309. The statutory definition of assault- harm “requires the State to prove that the
defendant intended to do the physical act.” Id. But the state is not required to prove “that
the defendant meant to violate the law or cause a particular result.” Id. Rather, “the mens
rea element of assault-harm, ‘intentional,’ requires only the general intent to do the act that
results in bodily harm.” State v. Dorn, 887 N.W.2d 826, 831 (Minn. 2016) (citing Fleck,
810 N.W.2d at 309). Stated differently, the intent required for assault-harm is “‘only an
intent to do the prohibited physical act of committing a battery.’” Fleck, 810 N.W.2d at
310 (quoting State v. Lindahl, 309 N.W.2d 763, 767 (Minn. 1981)).
Abelson contends that the evidence is insufficient on the ground that “the state failed
to prove beyond a reasonable doubt that Abelson intended to commit an act that constitutes
a battery.” Abelson notes that battery is defined as “[t]he nonconsensual touching of, or
use of force against, the body of another with the intent to cause harmful or offensive
contact.” See Black’s Law Dictionary 182 (10th ed. 2014). Putting these concepts
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together, Abelson contends (or at least suggests) that the state was required to prove not
only that he “intended to commit an act that constitutes a battery” but also that he intended
the harmful or offensive result of the battery. In practical terms, Abelson contends that the
state was required to prove “that Abelson intended to fire the handgun at V.W.”
Abelson’s argument is inconsistent with the supreme court’s caselaw. As stated
above, the supreme court has explained that, to establish the mens rea required for assault-
harm, the state is required “to prove that the defendant intended to do the physical act” but
is not required to prove “that the defendant meant to violate the law or cause a particular
result.” Fleck, 810 N.W.2d at 310. In other words, “the State need not show that the
defendant ‘meant to or knew that [she] would violate the law or cause a particular result.’”
Dorn, 887 N.W.2d at 831 (quoting Fleck, 810 N.W.2d at 308) (internal quotation omitted).
Consequently, it is sufficient for the state to prove that the prohibited physical act or acts
“were not accidental but were intentionally inflicted.” Fleck, 810 N.W.2d at 310 (quoting
Lindahl, 309 N.W.2d at 767).
Thus, to establish the mens rea required for the charge in count 1, assault-harm, the
state was required to prove only that Abelson intended to fire the handgun. The state was
not required to prove that Abelson intended to fire the handgun at V.W., intended the
discharged bullet to strike V.W., or intended to cause injury to V.W. See Dorn, 887
N.W.2d at 830-31; Fleck, 810 N.W.2d at 309 -10; see also State v. Lampkin, 994 N.W.2d
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280, 291 (Minn. 2023) (applying Fleck and Dorn to offense of domestic assault-harm in
section 609.2242 (2022)).1
B.
To determine whether evidence is sufficient to support a conviction, this court
undertakes “a painstaking analysis of the record to determine whether the evidence, when
viewed in a light most favorable to the conviction, was sufficient.” State v. Jones , 977
N.W.2d 177, 187 (Minn. 2022) (quotation omitted). We “carefully examine the record to
determine whether the facts and the legitimate inferences drawn from them would permit
the factfinder to reasonably conclude that the defendant was guilty beyond a reasonable
doubt of the offense of which he was convicted.” State v. Waiters, 929 N.W.2d 895, 900
(Minn. 2019) (quotation omitted). “We assume that the jury believed the state’s witnesses
and disbelieved any evidence to the contrary.” State v. Friese, 959 N.W.2d 205, 214 (Minn.
2021) (quotation omitted).

1It appears that the existing supreme court caselaw concerning the mens rea required
for assault-harm arises exclusively from cases in which defendants committed assault-harm
with their hands or with a hand-held instrument that made direct contact with the victim.
See Dorn, 887 N.W.2d at 8 28-29 (describing defendant’s acts of pushing and shoving
victim’s chest, which caused victim to fall backward into bonfire) ; Fleck, 810 N.W.2d at
305-06 (describing defendant’s act of stabbing victim with butcher knife). We are unaware
of any precedential caselaw concerning the mens rea required for assault-harm when
committed by using a gun to discharge a bullet that strikes a victim. To our knowledge,
this court has issued only one pertinent opinion, which is a nonprecedential opinion. See
In re Welfare of E.M.L.-T., A17-1385, 2018 WL 1569989, *1-2 (Minn. App. Apr. 2, 2018)
(reasoning that circumstantial evidence was insufficient because, even though appellant
intended to pull trigger, it was reasonable to infer appellant did not intend to injure victim);
Minn. R. Civ. App. P. 136.01, subd. 1(c) (providing that nonprecedential opinions are “not
binding authority”).
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The above- described standard of review applies so long as a conviction is
adequately supported by direct evidence. State v. Horst, 880 N.W.2d 24, 39 (Minn. 2016).
The parties agree that circumstantial evidence is necessary to prove Abelson’s intent.
“Intent is a state of mind, which generally is proved circumstantially, by inference from
words and acts of the actor both before and after the incident.” State v. Cruz, 997 N.W.2d
537, 552 (Minn. 2023) (quotation omitted). Accordingly, we must apply the standard of
review applicable to circumstantial evidence.
If a conviction is based on circumstantial evidence, we apply a heightened standard
of review with a two-step analysis. State v. Firkus, 31 N.W.3d 468, 478 (Minn. 2026);
State v. Moore, 846 N.W.2d 83, 88 (Minn. 2014). At the first step of the circumstantial-
evidence analysis, we “identify the ‘circumstances proved.’” State v. Isaac, 9 N.W.3d 812,
815 (Minn. 2024) (quoting State v. McInnis, 962 N.W.2d 874, 890 (Minn. 2021)). “The
first step requires us to ‘winnow down the evidence presented at trial by resolving all
questions of fact in favor of the jury’s verdict,’ which results in ‘a subset of facts that
constitute the circumstances proved.’” Firkus, 31 N.W.3d at 478 (quoting State v. Harris,
895 N.W.2d 592, 600 (Minn. 2017)). The winnowing- down process “protects the well-
established legal principal that the jury is in a unique position to determine the credibility
of the witnesses and weigh the evidence before it.” Id. at 479 (quotation omitted).
Accordingly, we “disregard evidence that is inconsistent with the jury’s verdict.” Harris,
895 N.W.2d at 601.
At the second step of the analysis, we “consider whether the reasonable inferences
that can be drawn from the circumstances proved, when viewed as a whole and not as
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discrete, isolated facts, are consistent with the hypothesis that the accused is guilty and
inconsistent with any rational hypothesis other than guilt.” Firkus , 31 N.W.3d at 478
(quotations omitted). At the second step, we independently examine the reasonableness of
the inferences drawn from the circumstances proved. See id. We do not give deference to
the jury’s verdict at this step. Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017).
C.
We begin by identifying the circumstances proved, which are as follows. See
Firkus, 31 N.W.3d at 478. During the night of March 15-16, 2024, V.W. went to Abelson’s
home to help him. V.W. remained at Abelson’s home into the morning of March 16, 2024,
during which time she and Abelson talked and consumed alcoholic beverages. Abelson
became “aggressive,” yelled at V.W., and demanded that she leave his home. For a while,
Abelson forced V.W. onto his porch. After Abelson allowed V.W. to come back inside his
home, V.W. decided to leave and started searching the living room for her cellphone and
wallet. While V.W. was looking for her possessions, she saw a flash of light in her
peripheral vision. V.W. looked at her hand and saw injuries and blood. V.W. said to
Abelson: “You shot me. Why did you shoot me?” V.W. sustained “through-and-through
injuries” to her hand that were consistent with gunshot wounds. V.W. was near the couch
in the living room when she was shot. Abelson was more than an arm’s length away from
V.W. when the gun was fired. A neighbor who lives across the street from Abelson heard
gunshots that morning. Officers found two bullet holes in the living-room hardwood floor
and an apparent bullet hole in a couch cushion. Officers found three .45-caliber shell
casings in Abelson’s living room and kitchen. Officers found a .45-caliber firearm and a
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magazine containing .45-caliber ammunition in Abelson’s backyard. The .45-caliber
firearm found in Abelson’s backyard is a semi-automatic handgun, which requires a
separate trigger pull to discharge each bullet. The handgun has multiple functional safety
mechanisms to prevent accidental discharge, which were functional, and the handgun did
not accidentally discharge in laboratory testing. A DNA sample found on the handgun
contained only one major-contributor DNA profile, which matched Abelson’s DNA.
We continue by determining whether “the circumstances proved, when viewed as a
whole,” are consistent with guilt. See Firkus, 31 N.W.3d at 478 (quotation omitted). The
state contends that the circumstantial evidence supports a reasonable inference that
Abelson intended to fire the handgun. Abelson does not concede that such an inference is
a reasonable inference but also does not contest it. We agree with the state that the
circumstances proved are consistent with a reasonable inference that Abelson intentionally
fired the handgun three times.
We conclude by determining whether the circumstances proved are “inconsistent
with any rational hypothesis other than guilt.” See Firkus, 31 N.W.3d at 478 (quotations
omitted). Abelson contends that the circumstances proved are consistent with a reasonable
inference that he “did not intend to commit an act that constitutes a battery against V.W.”
Specifically, Abelson contends that the circumstances proved allow a reasonable inference
that he merely “intended to scare V.W. and hasten her departure from his home rather than
harm her.” Abelson’s asserted hypothesis is based on an incorrect view of the applicable
law concerning the mens rea required for the offense of assault-harm. As stated above, the
state was required “to prove that the defendant intended to do the physical act,” which is
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the act of discharging the firearm. Fleck, 810 N.W.2d at 309. Even if we assume that
Abelson intended only to scare V.W., the evidence would be sufficient because the state
was required to prove only that Abelson’s discharges of the handgun “‘were not accidental
but were intentionally inflicted.’” Id. at 310 (quoting Lindahl, 309 N.W.2d at 767).
Properly framed, the question is whether Abelson intended to commit the acts of
discharging the handgun three times. The circumstances proved do not support a
reasonable inference that Abelson did not intend to discharge the handgun three times.
Abelson had exhibited anger toward V.W. and had asked her to leave his home. V.W. saw
a flash in her peripheral vision. She suffered through-and-through injuries to her hand that
were consistent with a gunshot wound . Officers discovered two bullet holes in the
hardwood floor between the coffee table and the couch, near where V.W. was shot, and
one apparent bullet hole in a couch cushion. Officers recovered three .45-caliber shell
casings, which match the number of apparent bullet holes in Abelson’s home. A DNA
sample removed from the handgun matched Abelson’s DNA. The handgun requires a
separate trigger pull for each bullet fired, and the handgun is not prone to accidental
discharges. Consequently, the hypothesis that Abelson did not intentionally fire the
handgun is not rational. Instead, the circumstances proved, when viewed as a whole, are
“inconsistent with any rational hypothesis except that of guilt.” See id.
Thus, the evidence is sufficient to prove the mens rea required for the offense of
second-degree assault with a dangerous weapon inflicting substantial bodily harm.

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II. Claim of Prosecutorial Misconduct
Abelson also argues that he is entitled to a new trial on the ground that the prosecutor
engaged in prosecutorial misconduct in his opening statement and his closing argument by
misstating the law.
The right to due process includes the right to a fair trial. State v. Duol, 25 N.W.3d
135, 141 (Minn. 2025). “Prosecutors have an affirmative obligation to ensure that a
defendant receives a fair trial.” State v. Jones, 753 N.W.2d 677, 686 (Minn. 2008)
(quotation omitted). Consequently, prosecutorial misconduct may result in the denial of a
fair trial. State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006). “A prosecutor engages in
prosecutorial misconduct when he violates clear or established standards of conduct, e.g.,
rules, laws, orders by a district court, or clear commands in this state’s case law.” State v.
McCray, 753 N.W.2d 746, 751 (Minn. 2008) (quotation omitted). A prosecutor’s
misstatement of the law may constitute misconduct. See State v. Strommen, 648 N.W.2d
681, 689-90 (Minn. 2002).
Abelson challenges several statements in the prosecutor’s opening statement and
closing arguments. Abelson did not object to any of the challenged statements.
Accordingly, we apply the modified plain-error test. State v. Carridine, 812 N.W.2d 130,
146 (Minn. 2012); see also Minn. R. Crim. P. 31.02. To prevail under the modified plain-
error test, an appellant first must establish that an error occurred. Ramey, 721 N.W.2d at
302. The appellant then must show that the error was plain. Id. At the third step of the
modified plain-error test, the burden shifts to the state to show “that there is no reasonable
likelihood that the absence of the misconduct in question would have had a significant
13
effect on the verdict of the jury.” Id. (quotations omitted). If the state does not satisfy that
burden, the appellate court proceeds to the fourth step to determine whether the plain
misconduct should result in a new trial to ensure the “fairness, integrity, or public
reputation of judicial proceedings.” State v. Portillo, 998 N.W.2d 242, 248 (Minn. 2023)
(quotation omitted).
Abelson contends that the prosecutor misstated the law by inaccurately describing
the mens rea required for assault-harm. In short, Abelson challenges the prosecutor’s
statements that the state was required to prove only that Abelson intentionally discharged
the handgun. In making that challenge, Abelson refers back to his arguments challenging
the sufficiency of the evidence, which we have discussed above. See supra part I.A.
Abelson’s prosecutorial-misconduct argument is based on an incorrect premise, the same
incorrect premise that we rejected above. To reiterate, the state was required “to prove that
the defendant intended to do the physical act,” i.e., the act of discharging the firearm, Fleck,
810 N.W.2d at 309, but was not required to “show that the defendant ‘meant to or knew
that [she] would violate the law or cause a particular result,’” Dorn, 887 N.W.2d at 831
(quoting Fleck, 810 N.W.2d at 308) (internal quotation omitted) . Accordingly, the
prosecutor did not misstate the law concerning the mens rea required for the offense of
assault-harm.
Thus, the prosecutor did not engage in prosecutorial misconduct.
Affirmed.