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This opinion is nonprecedential except as provided by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
A25-1298

State of Minnesota,
Respondent,

vs.

Kayvon Julian Madison,
Appellant.

Filed July 27, 2026
Affirmed
Segal, Judge∗
Dissenting, Harris, Judge

Hennepin County District Court
File No. 27-CR-23-26000

Keith Ellison, Attorney General, St. Paul, Minnesota; and
Mary F. Moriarty, Hennepin County Attorney, Robert I. Yount, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leah C. Graf, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Wheelock, Presiding Judge; Harris , Judge; and
Segal, Judge.

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
SEGAL, Judge
In this direct appeal from the judgment of conviction for second- degree intentional
murder, appellant Kayvon Julian Madison challenges the district court’s decision to impose
an upward sentencing departure based on the aggravating factor that Madison’s conduct
created a greater-than-normal danger to others. We affirm.
FACTS
The following is a summary of facts taken from the record and evidence submitted
at the Blakely trial.1 In December 2023, Madison and several guests attended a birthday
dinner for Madison’s brother, T.M., at a restaurant in a strip mall. After dinner, Madison,
T.M., D.R., J.M., and one other guest left the restaurant and, while in the parking lot, took
photos with each other and started saying their goodbyes. As D.R. began to leave with
J.M., Madison approached D.R. In a surveillance video, Madison can be seen gesturing
with his hand toward D.R., which D.R. appeared to slap away. J.M., who was standing
away from Madison and D.R., then walked back so that he was standing shoulder to

1 Under Blakely v. Washington, 542 U.S. 296, 303 (2004), a criminal defendant has a Sixth
Amendment right to have a jury determine additional facts necessary to support an upward
sentencing departure. See also State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004)
(applying Blakely in Minnesota); State v. Rourke, 773 N.W.2d 913, 919 (Minn. 2009)
(noting that “[c]onsistent with Blakely, Minn. Sent. Guidelines I.D provides that a district
court must afford the accused an opportunity to have jury trial on the additional facts that
support the departure and to have the facts proven beyond a reasonable doubt” (quotation
omitted)).
3
shoulder with D.R., on D.R.’s left side. J.M. had his right hand on D.R.’s left shoulder
when Madison pulled a firearm from his waistband and shot D.R. five times. 2
Madison was standing a few feet away from D.R. and testified during his plea
colloquy that he was aiming at D.R.’s chest. The autopsy report noted that one of the
bullets hit D.R. on the left side of his face, two bullets hit him on the left side of his neck,
one bullet hit him on the left side of his shoulder, and one bullet hit him in his left upper
chest. The trajectories of the bullets ranged from slightly upward to downward, with two
of the bullets exiting D.R.’s body. Madison was facing D.R. when he shot him. Directly
behind D.R., and thus in the direction that Madison was shooting, was the restaurant where
the group had dinner. The restaurant had plate-glass windows and people were inside the
restaurant at the time of the shooting. In addition, people from the birthday gathering were
nearby when the shots were fired, albeit not in the direct line of fire. Three other people,
who were not at the birthday dinner, are also visible in the video. They can be seen running
away after the shots were fired but were also not in the direct line of fire. D.R. died as a
result of the shooting.
Respondent State of Minnesota charged Madison with second-degree intentional
murder. The state also gave notice of its intent to seek an upward sentencing departure on
the grounds that Madison’s conduct created a greater-than- normal danger to others in the
general area.

2 Madison had a permit to carry a firearm.
4
Madison pleaded guilty to the charged offense. The plea was entered as a straight
plea, with the understanding that the state would seek an upward durational departure and
Madison would seek a downward durational departure. Madison waived his right to have
a jury trial on the aggravating factor, and the Blakely issues were submitted for trial to the
court. At the Blakely trial, the state presented testimony from J.M., along with the medical
examiner’s autopsy report, the sheriff’s forensic laboratory exam report, photographs of
the crime scene, and video from surveillance cameras. The district court issued a written
order, findings of fact and conclusion of law, in which it concluded that the state had proved
beyond a reasonable doubt that Madison’s conduct involved a “greater-than-normal danger
to others in a general area.”
At the sentencing stage, Madison moved for a downward durational departure,
citing his lack of a criminal record, abuse he suffered as a child, cognitive impairments,
and his remorse. He also argued that D.R. was the aggressor because he slapped down
Madison’s hand. The state moved for an upward departure, seeking the statutory-
maximum sentence of 480 months, which is 113 months above the top of the presumptive
range. The district court denied Madison’s motion, granted the state’s motion, and imposed
a sentence of 403 months, which is an upward departure of 36 months above the top of the
presumptive range. The district court explained that an upward departure was appropriate
because Madison brought a loaded firearm into “a very public place” and placed innocent
bystanders in danger by firing it “numerous times in front of other people.”

5
DECISION
On appeal, Madison challenges the upward sentencing departure, arguing that the
state failed to meet its burden of proof to establish that the offense caused a greater-than -
normal danger to others than a typical second -degree intentional murder.3 He argues that
the evidence must be reviewed under the circumstantial-evidence standard and, when
reviewed under that standard, “the evidence does not eliminate the rational hypothesis that
[his] conduct put only D.R.—[Madison’s] intended victim —at risk.” Madison also argues
that the district court committed errors of law and that the sentence was excessive because
the district court failed to accord sufficient weight to mitigating factors.
Appellate courts “review a decision by the district court ‘to depart from the
presumptive guidelines sentence for an abuse of discretion.’” State v. Robideau, 796
N.W.2d 147, 150 (Minn. 2011) (quoting State v. Edwards, 774 N.W.2d 596, 601 (Minn.
2009)). Under that standard, appellate courts are to affirm a departure “[i]f the reasons
given for an upward departure are legally permissible and factually supported in the
record.” Edwards, 774 N.W.2d at 601. Here, neither side disputes that the aggravating
factor relied on by the district court— a greater-than-normal danger to others in a general
area—is a legally permissible ground for an upward departure. See State v. Fleming, 869
N.W.2d 319, 326 (Minn. App. 2015), aff’d, 883 N.W.2d 790 (Minn. 2016) (“An offense
may be more serious than a typical crime when a large number of people are placed at risk
or more people are put in fear than in the typical case.”); Edwards, 774 N.W.2d at 607

3 Madison did not appeal the denial of his motion for a downward durational departure.
6
(noting that the supreme court has “repeatedly held that the risk to bystanders is an
appropriate factor for courts to consider when determining the seriousness of a crime”).
The central issue in this appeal is thus whether the evidence supports that factor.
In our analysis, we address first the issue of whether the district court’s reason for
the upward departure is factually supported in the record and then address Madison’s
arguments that the district court committed errors of law and failed to give proper weight
to the presence of mitigating factors.
I. The aggravating factor of greater-than -normal danger to others is factually
supported in the record.

To determine whether an aggravating factor is factually supported in the record, the
parties agree, at least for the purposes of this appeal, that we are to apply the standard of
review for sufficiency- of-the-evidence challenges to guilty verdicts. See, e.g., State v.
Cindrich, No. A07-0261, 2008 WL 2885706, at *2 (Minn. App. July 29, 2008), rev. denied
(Minn. Oct. 21, 2008); State v. Welch, No. A06-1411, 2007 WL 1470490, at *2 (Minn.
App. May 22, 2007), rev. denied (Minn. Aug. 7, 2007).
4 As the state notes, there are no
precedential opinions articulating the standard of review for a challenge to the factual
support for an upward departure, but we will assume for the purposes of this appeal that
the “sufficiency-of-the-evidence” standard is the applicable standard.
Under a “sufficiency- of-the-evidence” standard, review by appellate courts is
limited to a “painstaking analysis of the record to determine whether the evidence, when

4 Nonprecedential opinions may be cited for their persuasive value. See Minn. R. Civ. App.
P. 136.01. subd. (1)(c).
7
viewed in a light most favorable to the conviction, was sufficient to permit the [fact-finder]
to reach the verdict that [it] did.” State v. Horst, 880 N.W.2d 24, 40 (Minn. 2016) (citing
State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989)); see State v. Palmer, 803 N.W.2d 727,
733 (Minn. 2011) (providing that the same standard of review is applicable for assessing
sufficiency of the evidence for court trials as jury trials). Appellate courts will thus affirm
“if the fact-finder, upon application of the presumption of innocence and the [s] tate’s
burden of proving an offense beyond a reasonable doubt, could reasonably have found the
defendant guilty of the charged offense.” State v. Griffin, 887 N.W.2d 257, 263 (Minn.
2016).
Applying that standard here, the question is whether the district court could
reasonably have found that Madison’s conduct created a greater-than-normal danger to
others than the typical second-degree intentional murder based on the evidence presented.
Madison argues that, in making this determination, we must apply the formula for assessing
circumstantial evidence. Under that formula, we are to “use a heightened two-step process
to review the sufficiency of the evidence.” State v. Segura, 2 N.W.3d 142, 155 (Minn.
2024). At the first step, appellate courts “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.” State v. Firkus, 31 N.W.3d 468, 478 (Minn.
2026) (quotation omitted). And, “[a]t the second step, [appellate courts] consider whether
the reasonable inferences that can be drawn from the circumstances proved, when viewed
as a whole and not as discrete, isolated facts, are consistent with the hypothesis that the
accused is guilty and inconsistent with any rational hypothesis other than guilt.” Id.
8
(quotation omitted). Appellate courts are to reverse “[i]f a reasonable inference other than
guilt exists.” Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017).
The state maintains that the circumstantial-evidence formula is not applicable here
because the state relied on direct evidence to establish the basis for the aggravating factor,
including personal observations by J.M., surveillance video, crime-scene photographs, and
the medical examiner’s autopsy and sheriff’s forensic laboratory exam reports. See State
v. Brazil, 906 N.W.2d 274, 278-79 (Minn. App. 2017) (explaining that “direct evidence is
based on personal knowledge or observation” and that evidence “is direct when it directly
addresses the fact in dispute”).
Madison argues that the circumstantial-evidence formula is applicable because the
district court was required “to draw inferences about the danger posed by Madison’s
conduct.” But this argument conflates the manner of proof of the elements —direct or
circumstantial—with the role of the district court in interpreting and applying the evidence
presented. “That some inference is required for the fact-finder to interpret the evidence
does not render otherwise direct evidence circumstantial.” Id. at 279; see also Rourke, 773
N.W.2d at 920-21 (stating that an “aggravating factor is a reason explaining why the facts
of the case provide the district court a substantial and compelling basis for imposition of a
sentence outside the range on the grid”). Madison’s argument essentially asks us to
reweigh the evidence and substitute our judgment for that of the district court. That is not
our role. See State v. Franks, 765 N.W.2d 68, 73 (Minn. 2009) (stating that appellate courts
may not re-weigh evidence); State v. Robinson, 536 N.W.2d 1, 2 (Minn. 1995) (rejecting
defendant’s request to re-weigh the evidence). As Madison acknowledges, the standard of
9
review of a departure decision is for an abuse of discretion. Robideau, 796 N.W.2d at 150.
We thus conclude that the circumstantial-evidence formula is not applicable here.
We turn next to an analysis of whether the aggravating factor is factually supported
in the record— i.e., whether the district court “could reasonably have found” that Madison’s
conduct presented a greater-than-normal danger to others. Griffin, 887 N.W.2d at 263.
Here, the evidence shows that Madison shot D.R. not once, but five times in rapid
succession. Madison attested during his plea colloquy that he aimed his shots at D.R.’s
chest, but the autopsy report details that only one of the bullets hit D.R.’s chest, specifically
his left upper chest. The other four bullets hit D.R. on the left side of his face, left side of
his neck, and the upper part of his left shoulder, with two of the five bullets exiting D.R.’s
body. The evidence also shows that, at the time of the shooting, J.M. was standing next to
D.R. on his left side, the same side where D.R. was hit with the bullets, and that J.M. had
his right hand on D.R.’s left shoulder. J.M. testified that he believed he was in danger and
that the shots were so close that they caused ringing in his ears. Directly behind D.R., in
Madison’s line of fire and in relatively close range, was the restaurant where the group had
the birthday dinner. Patrons were present in the restaurant, seated near the exterior
windows. There were also people from the birthday dinner nearby in the parking lot, along
with others who can be observed in the surveillance video running away from the scene.
Second-degree intentional murder requires proof only that the defendant “cause[d ]
the death of a human being with intent to effect the death of that person or another, but
without premeditation.” Minn. Stat. § 609.19, subd. 1(1) (2022). Unlike second-degree
murder involving a drive-by shooting under subdivision 1(2) of section 609.19, there is no
10
element of recklessness—causing danger to innocent bystanders—built into the definition
of the offense. See Minn. Stat. § 609.19, subd. 1(2) (2022) (providing that second-degree
murder based on a drive-by shooting requires proof of a reckless discharge under Minn.
Stat. § 609.66, subd. 1e (2022)); see also State v. Thao, 649 N.W.2d 414, 42 4 (2002)
(rejecting an upward departure based on the aggravating factor that the drive-by shooting
was significantly more serious than a typical drive-by shooting because the element of
recklessness is built into the elements of the offense). The presence of risk to others is not
an inherent element of a second-degree intentional murder under subdivision 1(1) of
section 609.19 and thus is not necessarily a “typical” feature of second-degree intentional
murder.
While this may be a close case, we conclude that the district court could reasonably
have concluded, based on the evidence presented at the Blakely trial, that Madison’s
conduct caused a greater-than-normal danger to others. See, e.g., State v. Mitjans, 408
N.W.2d 824, 834 (Minn. 1987) (holding that the firing of two shots in a public bar at
relatively close range, including one shot directly to the victim’s head when the victim was
on the ground, “put a number of people at risk and in fear” and justified an upward
departure). The aggravating factor relied on by the district court to support the upward
departure is thus factually supported in the record.
II. The district court did not abuse its discretion when it imposed an upward
sentencing departure of 36 months above the top of the presumptive range.

Madison also argues that the district court abused its discretion (1) because it
committed errors of law in its Blakely findings of fact and conclusion of law and (2) by
11
imposing an excessive upward departure because the court failed to give adequate weight
to mitigating circumstances, including his argument that D.R. was the aggressor. We
address each in turn.
Errors of Law
In support of his argument that the district court committed errors of law, Madison
cites to two different statements in the memorandum accompanying the district court’s
Blakely order. First, Madison points to the following statement: “The argument that
compelling reasons must be present to overcome the presumption in favor of the sentencing
guidelines is not relevant because the Sentencing Guidelines themselves place factors
general in nature outside the purview of the guidelines.”5 Madison relies on this statement
to argue that the district court applied a lower standard for imposing an upward departure
than the “substantial and compelling” standard. We are not persuaded.
The section of the memorandum that contains the quoted sentence addresses the
issue of whether courts are limited by the sentencing guidelines to the elements of the
offense such that, with second-degree intentional murder, the factor of intent to cause the
death of a person precludes reliance on a “greater than normal danger to others” as a factor.
The quoted sentence thus does not relate to the general standard for imposing an upward
departure. And, in the very next sentence to the one quoted, the district court cites to a
page in State v. Blanche, in which the supreme court sets out the controlling standard that

5 This sentence appears to reference a comment in the Minnesota Sentencing Guidelines
that “[t]he Commission rejects factors that are general in nature, and that could apply to
large numbers of cases, such as intoxication at the time of the offense.” Minn. Sent’g
Guidelines cmt. 2.D.301 (2022).
12
“[a]n upward sentencing departure requires substantial and compelling circumstances in
the record . . . which demonstrate that the defendant’s conduct was significantly more or
less serious than that typically involved in the commission of the crime in question.” 696
N.W.2d 351, 378 (Minn. 2005) (quotations omitted). Thus, when viewed in context, the
quoted sentence does not support Madison’s argument that the district court applied an
incorrect legal standard.
The second assignment of error relates to a statement in another section of the
memorandum to the effect that second-degree intentional murder does not require proof of
a specific intent. We agree that the district court’s comments to this effect are erroneous,
but we conclude that it constitutes a harmless error because it did not alter the result. The
misstatement appears in a section addressing whether the facts being relied on by the state
for the upward departure constitute an element of the crime. See, e.g., Robideau, 817
N.W.2d at 185 (noting that “[d]epartures cannot be based on elements of the underlying
crime”). The district court ultimately concludes in this section of the memorandum that
the facts relied on to establish the aggravating factor are not elements of the offense of
second-degree intentional murder, a conclusion with which we agree as discussed above.
Thus, the district court’s misstatement is just that—a misstatement —and constitutes a
harmless error. See Minn. R. Crim. P. 31.01 (stating that any error that does not affect
substantial rights must be disregarded); State v. Harvey, 932 N.W.2d 792, 810 (Minn.
2019) (stating that error is harmless if “there is no reasonable possibility” it influenced the
outcome).

13
Excessive Upward Sentence
For his final argument, Madison contends that the 36-month upward departure
imposed by the district court constitutes an abuse of discretion because it fails to reflect
mitigating circumstances and thus unfairly exaggerates the criminality of Madison’s
conduct. A review of the sentencing transcript, however, shows that the district court
carefully considered the mitigating circumstances Madison brought forward. For example,
at the sentencing hearing, the district court referenced the “horrible acts” that Madison
suffered as a child and that, despite his “hard life,” he had no criminal record.
The district court also considered Madison’s argument that D.R. was the aggressor.
At the sentencing, the district court noted that D.R. “was trying to leave” when Madison
pointed his finger at him and D.R. slapped his hand away. The district court reasoned that
the “worst case scenario was that [they] would have maybe had a fistfight, maybe a further
argument,” not that Madison would, “in an instant,” grab a gun and fire five shots where
others were present. In addition, the upward departure imposed by the district court was
36 months, compared to the 113-month upward departure sought by the state. This
underscores the consideration given by the district court to Madison’s mitigation
arguments.
Madison further argues, citing Edwards, that the departure unfairly exaggerated the
criminality of Madison’s offense. In Edwards, the supreme court identified several factors
that are improper grounds to rely on in granting an upward departure because they would
unfairly exaggerate the criminality of an offense. See Edwards, 774 N.W.2d at 602. Those
improper grounds include relying on factors that (1) constitute an element of the offense,
14
(2) were contemplated by the legislature in defining the offense, or (3) are based on a
separate offense. Id. The district court concluded, and we agree, that none of these are
present here.6
District courts are accorded significant discretion in sentencing, including the
weight to be accorded to mitigating and aggravating factors. See, e.g., Dillon v. State, 781
N.W.2d 588, 596 (Minn. App. 2010) (noting that “[t]he shorter the departure, the greater
the deference given to the district court’s discretion” and that “[d]epartures that enhance a
sentence to a term that falls between the presumptive sentence and twice the presumptive
sentence invite the greatest deference”). The record supports th at the district court
considered the mitigating circumstances, and we discern no abuse of discretion by the
district court in imposing a 36-month upward sentencing departure.
Affirmed.

6 Madison also cites several nonprecedential cases involving offenses that he maintains
were more serious than his offense but where the district court did not impose upward
departures. The decision to depart, however, is permissive; the presence of mitigating or
aggravating factors does not require a district to depart from imposing a sentence from
within the presumptive range. See, e.g., State v. Benniefield, 668 N.W.2d 430, 437 (Minn.
Ct. App. 2003), (“A district court is not obligated to depart downward from the guidelines,
even if a mitigating factor is present.”) aff’d, 678 N.W.2d 42 (Minn. 2004). Thus, the
imposition of a guidelines sentence in any given case, does not render improper an upward
departure in another case.
D-1
HARRIS, Judge (dissenting)
I respectfully dissent because the record does not establish beyond a reasonable
doubt that Madison’s conduct created a greater-than-normal danger to the safety of persons
other than the intended victim. 1 Because the district court’s aggravating-factor finding
lacks sufficient evidence, I would reverse the upward durational departure and remand for
imposition of a presumptive guidelines sentence.
The Minnesota Sentencing Guidelines provide a nonexclusive list of aggravating
factors that may support an upward durational departure. Minn. Sent’g Guidelines 2.D.3.b
& cmt.2.D.301 (2022). The sole aggravating factor submitted by the state was that
Madison’s conduct “caused a greater- than-normal danger to the safety of other people.”
See State v. McClay, 310 N.W.2d 683, 685 (Minn. 1981) (permitting an upward departure
on a conviction arising out of a bank robbery because people present during the robber y
feared for their safety). Here, the district court found that the state met its burden to prove
beyond a reasonable doubt that Madison created a “greater-than-normal danger to others
in a general area.” The majority concludes that sufficient evidence supports that finding.
I respectfully disagree.
The district court’s decision to depart from the sentencing guidelines is “reviewed
for an abuse of discretion.” State v. Robideau , 817 N.W.2d 180, 185 (Minn. App. 2012),
rev. denied (Minn. Sept. 25, 2012). But here, Madison challenges the underlying facts that

1 The loss of D.R.’s life is a profound tragedy. Nothing in this dissent should be read to
diminish that loss. The significance of that loss and the tragic facts of this case do not alter
our obligation to ensure that the sentence complies with the law. And in my view,
Madison’s sentence does not.
D-2
support the aggravated sentence. We consider whether “the reasons given for an upward
departure are legally permissible and factually supported in the record.” State v. Edwards,
774 N.W.2d 596, 601 (Minn. 2009). There must be proof beyond a reasonable doubt of
any fact that is necessary to support an aggravated sentence. State v. Rourke, 773 N.W.2d
913, 919 (Minn 2009). “It is an abuse of discretion for the district court to base an upward
departure on an improper factor or one not factually supported by the record.” Robideau,
817 N.W.2d at 185.
The majority correctly frames the question presented: whether the evidence supports
a finding that Madison’s conduct “caused a greater-than-normal danger to the safety of
other people.” The majority concludes that the direct-evidence standard of review governs
because the state introduced surveillance footage, eyewitness testimony, photographs,
forensic laboratory exam reports, and an autopsy report. But that does not adequately
distinguish between direct and circumstantial evidence. “[D]irect evidence is evidence that
is based on personal knowledge or observation and that, if true, proves a fact without
inference or presumption.” State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation
omitted). Circumstantial evidence, by contrast, is “evidence from which the factfinder can
infer whether the facts in dispute existed or did not exist.” Id. (quotation omitted).
“[C]ircumstantial evidence always requires an inferential step to prove a fact that is not
required with direct evidence.” Id. Whether evidence is direct or circumstantial depends
not on its form, but on the proposition for which it is offered. See State v. Blevins, 10
N.W.3d 29, 39-40 (Minn. 2024) (stating a surveillance video is direct evidence of what it
shows).
D-3
The video shows that Madison fired multiple shots directly at D.R. during a matter
of seconds and that each shot struck its intended target. What the video does not show is
whether the bullets traveled toward restaurant patrons or otherwise endangered individuals
inside the restaurant. Although the surveillance video directly depicted the shooting, it did
not show the path of the bullets after they entered D.R.’s body. Likewise, the photographs
did not establish the trajectory of the rounds after impact, and the autopsy report did not
demonstrate where any exiting bullets traveled or whether the bullets retained sufficient
velocity to strike another person. Instead, the district court was required to infer that
because two bullets exited D.R.’s body, those bullets could have traveled into the restaurant
and endangered patrons inside. Those additional inferences were necessary to establish the
greater-than-normal-danger aggravating factor. Likewise, the district court relied on the
fact that the shooting occurred outside of a restaurant while other people were generally
present nearby. However, the existence of people in the vicinity, by itself, does not
establish that those individuals were placed in real and significant danger. Because the
state relied on circumstantial evidence from which the factfinder was asked to determine
whether the shooting created a danger to restaurant patrons, I would conclude that the
circumstantial-evidence standard of review applies.
For the circumstantial -evidence test, “we use a heightened two-step process to
review the sufficiency of the evidence.” State v. Segura, 2 N.W.3d 142, 155 (Minn. 2024).
We begin by identifying the circumstances proved by the state. Id. In doing so, we
“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
D-4
proved.” State v. Firkus, 31 N.W.3d 468, 478 (Minn. 2026) (quotation omitted). Then,
“we consider whether the reasonable inferences that can be drawn from the circumstances
proved, when viewed as a whole and not as discrete, isolated facts, are consistent with the
hypothesis that the accused is guilty and inconsistent with any rational hypothesis other
than guilt.” Id. (quotation omitted). “If a reasonable inference other than guilt exists, then
we will reverse the conviction.” Loving v. State, 891 N.W.2d 638, 643 (Minn. 2017).
We begin by identifying the circumstances proved. When viewing the facts in the
light most favorable to the guilty verdict, we are left with the following subset of facts as
circumstances proved by the state: (1) several guests attended a birthday dinner for T.M.;
(2) after dinner, Madison, D.R., T.M, J.M., and one other guest exited the restaurant and
took photos in the parking lot; (3) the parking lot of the strip mall contained multiple
businesses; (4) a tan colored Toyota Camry was located nearest the businesses; (5) Madison
approached D.R. as he was trying to leave; ( 6) Madison and D.R. engaged in a verbal
dispute; (7) Madison pointed a finger in D.R.’s face and D.R. slapped Madison’s hand
away; (8) J.M. was standing next to D.R. with his hand on D.R.’s shoulder; (9) D.R. took
two steps away from Madison as Madison pulled a firearm from his waistband;
(10) Madison aimed his firearm directly at D.R. and shot him five times; (11) J.M. and
T.M. immediately restrained Madison; (12) bystanders walking behind Madison heard the
shots and quickly ran to their vehicles; (13) D.R’s body was located adjacent the Toyota
Camry; (14) the autopsy report notes entry wounds from bullets to the lateral left neck,
lateral left face, posterior left neck, left shoulder, left upper chest; (15 ) the autopsy report
documents exit wounds opposite some of these entry wounds from the right lateral face
D-5
and right upper back, respectively; (16) the autopsy report lists the trajectory of these paired
wounds as slightly downward and downward, respectively; and (17) four cartridge casings
were recovered between the parked cars and the businesses.
Turning to the next step, “we consider whether the reasonable inferences that can
be drawn from the circumstances proved, when viewed as a whole and not as 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 (quotation
omitted). The circumstances proved, when viewed as a whole, support a rational
hypothesis that Madison fired multiple shots directly at D.R. during a matter of seconds
and that each shot struck its intended target. The surveillance footage shows Madison
standing within arm’s length of D.R. when Madison pulled his firearm from his waistband
and shot D.R. five times.
These facts, however, do not resolve the dispositive question: whether Madison’s
conduct placed other individuals in a greater-than-normal danger beyond that inherent in
the commission of the offense. Other individuals were present in the vicinity. However,
Madison aimed specifically at D.R., away from occupied vehicles and individuals present
in the parking lot. And the bystanders in the parking lot were walking behind Madison
when he fired the shots. As for the other party-goers in the group, they were also positioned
behind Madison when the shots were fired. The mere presence of other attendees gathering
in their vehicles within the parking lot or standing near Madison at the time of the shooting
does not, by itself, establish beyond a reasonable doubt that Madison’s conduct exposed
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others to a real and significant danger. See State v. Fleming, 883 N.W.2d 790, 797 (Minn.
2016).
To support its argument that Madison’s behavior placed other individuals in a
greater-than-normal danger, the state relied on several cases affirming upward departures
where a gun is fired in the presence of other people.
In Fleming, the supreme court affirmed the imposition of an upward durational
departure following a shooting at an outdoor basketball court. Id. at 792. There, several
individuals were playing basketball at a public park filled with children. Id. After a
disagreement ensued between the defendant and a player on the opposing team, the
defendant retrieved a handgun and fired six times in the direction of the player, who was
fleeing the scene. Id. None of the bullets struck the intended target, but the shots were
fired in the direction of the children. Id. The supreme court concluded that firing a gun in
a park filled with children created a greater-than-normal danger to the safety of others. Id.
at 797.
In State v. Blanche , 696 N.W.2d 351, 379 (Minn. 2005), the defendant
indiscriminately fired ten bullets in a residential area in an attempt to kill a rival gang
member. One bullet hit and killed an 11-year-old child. Id. The supreme court concluded
that “the spray of bullets” that were directed toward the neighborhood and ultimately killed
an unintended victim showed “a degree of recklessness that justifie[d] departure.” Id.
And in State v. Anderson, 463 N.W.2d 551, 553 (Minn. 1990), rev. denied (Minn.
Jan. 14, 1991), the defendant fired 13 shots in a mixed residential and commercial area,
with at least six people in the immediate vicinity. Two victims were shot and one was
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severely injured. Id. We concluded that the defendant’s conduct was “particularly serious
and represented a greater than normal danger to the safety of other people” considering the
number of shots fired and the number of people in the area. Id.
Fleming, Blanche, and Anderson are distinguishable to the facts before us. In each
case, the aggravating circumstance arose from conduct that substantially expanded the zone
of danger beyond the intended victim, such as firing indiscriminately into a group of people
or into a residential neighborhood. But here, Madison aimed his firearm directly at D.R.’s
chest while standing at arm’s length. Madison did not point his firearm at any bystanders
in the parking lot or toward the restaurant. And although J.M. was standing next to D.R.
with his hand on D.R.’s shoulder when Madison shot D.R., J.M. was not Madison’s
intended target or in his direct line of fire.
The state argues that Madison’s conduct was particularly dangerous because the
restaurant patrons were in Madison’s direct line of fire. The state asserts that Madison and
D.R. were located only a few paces away from the restaurant and that D.R.’s back was to
the restaurant when he was shot. The state also asserts that the bullets from D.R.’s exit
wounds could have passed through D.R. and hit an innocent bystander inside the restaurant.
As an initial matter, the surveillance footage of the incident does not depict
Madison’s proximity to the restaurant or the location of the restaurant’s main entrance to
properly determine whether bystanders were in Madison’s direct line of fire. The
surveillance video captures only the restaurant’s parking lot. The district court found that
“the facts here show [a] greater than normal risk of bodily harm to others because the
shootings happened in a general area where others could be.” The district court appears to
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have adopted an impermissibly broad formulation of the aggravating factor, concluding
that a greater-than-normal danger exists whenever a shooting occurs in a place where others
“could be” or where multiple people “may be.”2 The state argues that Madison’s proximity
to the restaurant can be demonstrated by comparing the surveillance footage with photos
of where D.R.’s body came to rest. Notably, the state offers no forensic evidence to support
its contention that the bullets from D.R.’s exit wounds could have reached the restaurant.
The autopsy revealed that the gunshots D.R. sustained were fired at a “downward” angle.
But there is no evidence to support the bullets’ trajectory after exiting D.R.’s body or how
far the bullets could have traveled. The circumstances proved do not support a rational
hypothesis that the restaurant patrons were in Madison’s direct line of fire. The district
court also found that the evidence supports the conclusion that Madison’s conduct caused
J.M. to feel a disproportionate amount of fear. The circumstances proved are that when

2 A district court may depart from the presumptive sentence under the sentencing guidelines
only when the record establishes “ substantial and compelling circumstances” supporting
the departure. State v. Misquadace, 644 N.W.2d 65, 69 (Minn. 2002). Such circumstances
are facts that significantly distinguish the case from the typical offense, making it atypical.
State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985); State v. Back, 341 N.W.2d 273, 276
(Minn. 1983). Because departures are reserved for exceptional cases, the aggravating
factors supporting them must meaningfully distinguish the case from the ordinary offense.
A rule permitting an upward departure whenever an intentional shooting occurs in a public
place where other persons happen to be present would apply to a substantial number of
homicide prosecutions. Such a rule would transform an aggravating factor intended for
exceptional cases into a routine basis for departure, contrary to the purpose of the
sentencing guidelines. The cases recognizing a greater-than-normal danger do not adopt
such an expansive rule. They require evidence that the defendant ’s conduct created a
materially greater risk to persons other than the victim than ordinarily accompanies the
underlying offense. That evidence is absent here.
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Madison shot D.R., J.M. lunged toward Madison to restrain him. J.M. testified that his
initial instinct was to get Madison away from D.R. The circumstances proved do not
support a rational hypothesis that Madison’s conduct caused J.M. to feel a disproportionate
amount of fear.
Next, the district court concluded that considerations relating to “specific intent”
were unavailable because second-degree intentional murder is not a specific-intent offense.
In doing so, the district court disregarded the targeted nature of the shooting, asserting that
whenever a firearm is used in an intentional murder, the defendant necessarily points the
weapon at the intended victim. Second- degree intentional murder is, by statute and
precedent, a specific -intent crime. Minn. Stat. § 609.19, subd. 1(1) (2024) (stating that
second-degree intentional murder requires the state to prove beyond a reasonable doubt
that the defendant “cause[d] the death of a human being with intent to effect the death of
that person or another, but without premeditation”); see State v. Fleck, 810 N.W.2d 303,
308 (Minn. 2012) (stating a specific intent crime “requires an intent to cause a particular
result”). Here, the question before the district court was not whether Madison specifically
intended to kill D.R.; it was whether the manner in which he committed the offense created
an extraordinary risk to persons other than D.R. The undisputed evidence that Madison
directed every shot exclusively at D.R. bears directly on that inquiry.
Even assuming the more deferential direct-evidence standard of review applies, the
evidence does not permit a rational factfinder to conclude beyond a reasonable doubt that
Madison’s conduct created a greater-than-normal danger to others. The district court found
that the facts show a greater-than-normal risk of bodily harm to others because the
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shootings happened in a general area where others could be. As it relates to the restaurant
patrons, the record contains no testimony establishing the trajectory of any bullet beyond
D.R.’s body. No witness testified that a bullet traveled toward occupied portions of the
restaurant. No forensic witness reconstructed the bullets’ paths. No expert testified that
an exiting bullet would have retained sufficient speed to strike patrons inside the building.
Instead, the district court needed to infer that because the restaurant was located behind
D.R., the bullets necessarily endangered those inside the restaurant. That inference is
unsupported by the evidence.
The same deficiency pervades the reliance on the autopsy report. The autopsy report
establishes only where bullets entered and exited D.R.’s body. It says nothing about where
those bullets traveled afterward, whether they struck another object, or whether they
retained sufficient force to injure anyone else. The state could have introduced expert
testimony addressing those questions. But it did not. The record establishes only that two
bullets exited D.R.’s body and injured no one else. Moreover, the number of shots fired
does not distinguish this case from the ordinary second- degree intentional murder case.
Madison fired each shot at a single intended victim and struck only that victim. This case
is distinguished from cases where Minnesota appellate courts have affirmed departures
based on indiscriminate gunfire directed toward crowds, multiple victims, or random
bystanders. See, e.g., Fleming, 883 N.W.2d at 797; Blanche, 696 N.W.2d at 379;
Anderson, 463 N.W.2d at 553. Those cases involved conduct that objectively expanded
the zone of danger to uninvolved persons. This record does not.
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The record establishes that Madison intentionally shot and killed D.R. But the issue
before us is not whether the murder was intentional, it is whether the state proved beyond
a reasonable doubt that the manner in which Madison committed the offense created a
greater-than-normal danger to people other than D.R. The evidence does not support that
conclusion. The district court’s finding rests on speculation that bullets may have
endangered restaurant patrons or that the mere presence of other people in the vicinity
transformed this offense into an exceptional case. The sentencing guidelines reserve
upward departures for cases that are meaningfully distinguishable from the ordinary
offense. Because the district court’s aggravating-factor finding is unsupported by legally
sufficient evidence, I would reverse the upward durational departure and remand for
imposition of a presumptive-guidelines sentence.