State of Minnesota v. Neil Julian Elavsky

This opinion is nonprecedential except as provided by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
A25-1929

State of Minnesota,
Respondent,

vs.

Neil Julian Elavsky,
Appellant.

Filed October 12, 2026
Reversed and remanded
Ross, Judge
Dissenting, Beane, Judge

Hennepin County District Court
File No. 27-CR-24-20281

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

Kristyn Anderson, Minneapolis City Attorney, Adam E. Szymanski, Assistant City
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Larson, Judge; and Beane, Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
Neil Elavsky expressed his opposition to a social cause that was the subject of an
outdoor fundraising event by posting leaflets on the windshields of cars near the event, and
he confronted a supporter of the cause after he saw her rem oving his posted leaflets. He

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rushed toward her, demanded she return the removed leaflets to him, and grabbed them
from her hand when she refused. After the woman claimed that Elavsky scratched her
finger when he snatched the leaflets from her, the state charged him with fifth- degree
assault (fear), fifth-degree assault (harm), and disorderly conduct. A jury acquitted him of
assault (harm) but found him guilty on the other charges, and the district court convicted
him of assault (fear). Because the record contains insufficient circumstantial evidence to
prove that Elavsky intended to cause the woman fear of immediate bodily harm, we reverse
the assault conviction and remand for the district court to enter a conviction of disorderly
conduct.
FACTS
Up to 5,000 supporters, including the employees of business sponsors, of the
National Alliance of Mental Illness (NAMI) gathered at Minnehaha Park in Minneapolis
one morning in September 2023 to participate in a fundraising march. An altercation at the
event resulted in the state charging Neil Elavsky with fifth-degree assault (fear), fifth-
degree assault (harm), and disorderly conduct. At Elavsky’s trial, the jury heard evidence
of the following account.
Two NAMI supporters, whom we will call “June” and “Lynn,” names we have
randomly chosen in the interest of their privacy, were employees of a large health-
insurance company and arrived early to set up a picnic area and booth to greet their
participating coworkers and provide information about their employer. Elavsky, who
opposes NAMI’s cause, was also present at the event. Elavsky and a companion had
previously protested NAMI by distributing windshield leaflets that criticized NAMI and

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urged readers not to donate to it. Lynn, who “[does not] agree with what the flyers were
stating” and had remembered Elavsky and his companion from their activity at prior NAMI
events, had previously complained about the leaflets to NAMI’s executive director. She
saw Elavsky’s companion at about noon distributing leaflets and asked him not to place a
leaflet on her car. June saw Elavsky during the event, “shouting very, very loudly” with a
“big, full, bold voice.”
The event neared its end at about 2:00 p.m., and Lynn saw that her car had been
tagged with a leaflet. She asked June to remove the leaflet from her car and from a different
person’s car. June did so, and she started walking toward a trash can. Elavsky approached
June from behind saying, “Give me those” and “That’s private property. Give me that
back.” He appeared to June to be “very agitated” and, according to her, spoke to her in the
same “big, bold, boisterous” voice she had heard him using earlier. June turned toward
Elavsky, but she did not hand him the leaflet s. Instead, she kept them in her hand at her
side. She argued, “It’s not private property. It’s been distributed. It’s public property.”
Elavsky “lurched” toward June, who recounted, “[A]ll of a sudden I felt his arms going
around me, reaching for the flyers that he claimed were private property.” At that point,
the two were chest to chest, and June could feel Elavsky’s breath on her face. She said,
“[Elavsky] grabbed my hand and my arm . . . to grab those flyers out of my hand.” She said
that he “grabbed the two flyers that [she] had in [her] hand, out of [her] hand, and then he
turned to walk away.” She acknowledged that Elavsky never shoved, hit, or raised his arms
toward her.

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The prosecutor asked June at least five times how or what she felt during her
encounter with Elavsky. She answered that she “really didn’t have any feelings”; “[k]ind
of more of a shock than anything else” ; “not understanding why this gentleman is
approaching me like this”; “angry”; “very violated.” Even after the prosecutor clearly tried
leading June to the answer he was fishing for, with, “[June], as far as being fearful, did you
feel fear at that moment,” June still did not say that she feared Elavsky would harm her
during the incident. She replied instead, “At that moment, not a lot of fear. I felt it later
after the incident had transpired and I reflected upon it. And then I went more into the fear
mode.” She clarified that she became afraid only after considering that Elavsky might live
near her in south Minneapolis. Her fear arose when she speculated that she might later
encounter him and that he might again be “assertive and aggressive” toward her.
As Elavsky turned to walk away after he took the leaflets from June, June noticed a
cut on her finger, which was bleeding. June then positioned herself in front of Elavsky and
told him, “Look what you’ve done. I’ve been cut,” showing him her finger. Elavsky
responded, “I did not do that.” June sought first aid, and Lynn dialed 9-1-1. Both women
gave statements to the responding police officer. Lynn then saw Elavsky walking through
the park, “agitated” and “angry,” “[s]wearing, lots of profanity, extremely loud.” She took
a photo of him, and he “flipp[ed] the bird” at her.
The jury found Elavsky guilty of fifth-degree assault (fear) and disorderly conduct
but acquitted him of fifth-degree assault (harm). The district court convicted Elavsky of
fifth-degree assault (fear), but not disorderly conduct, and sentenced him to serve 90 days
in jail, stayed on probationary conditions.

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Elavsky appeals.
DECISION
Elavsky argues that the evidence does not support his fifth- degree-assault (fear)
conviction. We evaluate a sufficiency-of-the-evidence challenge by carefully examining
the record to assess whether the facts and their reasonable inferences would allow the jury
to find the defendant guilty beyond a reasonable doubt. State v. Griffin, 887 N.W.2d 257,
263 (Minn. 2016). In doing so, we consider the evidence in the light most favorable to the
verdict and assume the jury disbelieved any contrary evidence. Id. We conclude for the
following reasons that the evidence does not support the assault conviction.
Elavsky argues specifically that the state failed to prove the mental-state element of
the assault charge. A person is guilty of fifth- degree assault (fear) if he “commit s an act
with intent to cause fear in another of immediate bodily harm or death.” Minn. Stat.
§ 609.224, subd. 1(1) (2022); see State v. Fleck, 810 N.W.2d 303, 309 (Minn. 2012)
(stating that assault (fear) is a specific-intent crime). “With intent to” means that the
accused person “either has a purpose to do the thing or cause the result specified or believes
that the act, if successful, will cause that result.” Minn. Stat. § 609.02, subd. 9(4) (2022).
“Bodily harm means physical pain or injury, illness, or any impairment of physical
condition.” Id., subd. 7 (2022). Our decision therefore hangs on whether the state offered
sufficient evidence that Elavsky specifically intended to cause June to fear immediate
harm.
The state did not offer direct evidence that Elavsky had this specific intent, relying
instead on circumstantial evidence. See State v. Ulrich, 3 N.W.3d 1, 10 (Minn. 2024)

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(restating that a defendant’s state of mind is generally proved by circumstantial rather than
direct evidence). When an element of a conviction rests on circumstantial evidence, we
apply a “heightened,” two-step test to decide whether the evidence is sufficient. State v.
Colgrove, 996 N.W.2d 145, 150 (Minn. 2023) . The first step focuses on evidence and the
second focuses on reason.
Our first step is to determine the “circumstances proved” by resolving any factual
disputes in favor of the guilty verdict. State v. Firkus, 31 N.W.3d 468, 478 (Minn. 2026).
In doing so, we generally disregard evidence that is inconsistent with the jury’s verdict,
Ulrich, 3 N.W.3d at 11, unless “nothing in the record contradicted, impeached, or rendered
[the evidence] improbable,” Firkus, 31 N.W.3d at 482 n.13. The circumstances proved
regarding Elavsky’s alleged intent are that Elavsky was present at the NAMI event to place
protest leaflets on car windshields as he had done at previous NAMI events; that June
removed the leaflets from two cars and walked toward a trash can to dispose of them; that
Elavsky approached June from behind and unsuccessfully demanded that she give him the
leaflets; that Elavsky moved toward June to grab the leaflets while asserting that the leaflets
were his property; that June retorted that the leaflets were not Elavsky’s property; that
Elavsky reached his arms around June and grabbed at the leaflets; that June had various
feelings in the moment as stated above but did not feel fear until later out of concern that
she might encounter him again; that Elavsky snatched the leaflets from June and walked
away; and that Elavsky was expressively agitated and angry before the encounter, during
the encounter, and after the encounter as he walked around the area.

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Elavsky would have us add to this list of circumstances proved. He contends the list
should also include that he peacefully protested at NAMI events in the past, that he did not
verbally threaten June, and that he was not armed with a weapon when he confronted her.
But circumstances proved must rest on evidence that supports the verdict, and no one
introduced evidence establishing these proposed additions. Although June and Lynn
testified that Elavsky protested at prior NAMI events by distributing leaflets, no one
testified as to his alleged peacefulness at those events. And while it is true that no one
testified that Elavsky verbally threatened June or that he was armed, no one testified that
he did not threaten her or that he was not armed. We decline Elavsky’s invitation to add
his mitigating allegations as circumstances proved.
The second step requires us to determine whether the reasonable inferences drawn
from the circumstances proved are, as a whole, not only consistent with the defendant’s
guilt but also “inconsistent with any rational hypothesis other than guilt.” Firkus, 31
N.W.3d at 483. Without any deference to the verdict, if we conclude that the circumstances
proved allow for a reasonable hypothesis inconsistent with guilt, the evidence is
insufficient and we will reverse the conviction. Id. This step applied here leaves us certain
that the evidence of Elavsky’s guilt is lacking.
The state is correct that the circumstances proved reasonably support an inference
that Elavsky intended to cause June fear of immediate bodily harm. We can infer that a
person intends the natural and probable consequences of his actions. Colgrove, 996 N.W.2d
at 152. Elavsky’s angry demeanor, his leafletting and loud expressions of disagreement
with NAMI’s cause throughout the day, his lurching approach toward June while

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demanding that she return the leaflets to him, and his abrupt entry into her personal space
to the point of chest-to-chest contact would together allow a reasonable person to infer that
he might have specifically intended his actions to cause June to be immediately afraid that
he would injure her. That June did not testify that Elavsky’s actions in fact caused her to
fear immediate injury—despite multiple failed attempts by the prosecutor—is not a basis
for us to conclude otherwise. This is because evidence that the victim felt fear is neither
necessary nor sufficient to prove that the defendant intended to cause fear. In re Welfare of
T.N.Y., 632 N.W.2d 765, 769 (Minn. App. 2001) (citing State v. Hough, 585 N.W.2d 393,
396 (Minn. 1998)). We are satisfied that the circumstances proved support the inference of
intent to cause fear, offering some ground for the guilty verdict.
But we are likewise satisfied that the circumstances proved also support a
reasonable inference other than guilt. Elavsky argues convincingly that one can reasonably
infer from the same circumstances that he intended only to retrieve the leaflets from June
and nothing more. Elavsky is a committed NAMI protester who distributed hundreds of
leaflets on the day of the incident, just as he had in the past. The uncontradicted testimony
established that he had already been loud and angry in his protesting long before he saw
June remove the leaflets. He demanded that June return what he described as his property
and grabbed them from her after she disagreed about who owned them. June described his
actions in reaching around her only as intended “to try to get the flyer[s]” from her. Elavsky
ended his encounter with June immediately after he got the leaflets back, turning promptly
to walk away. June then moved in front of Elavsky, directly confronting him about her
finger. All the circumstances considered as a whole s upport the alternative inference that

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Elavsky’s only actual intent was to get the leaflets back from June. This is a reasonable
inference of a hypothesis other than guilt.
The dissent acknowledges that the circumstances proved demonstrate that “Elavsky
clearly intended to retrieve the flyers” but posits that causing June to fear bodily harm was
“the means he chose to achieve that goal.” We are confident instead that the circumstances
proved as we have identified them, or as the dissent has listed them, do not eliminate the
reasonable inference that retrieving the flyers was his exclusive objective. The dissent
points out that “Elavsky was agitated and shouting when he approached” June. But the
evidence showed that he was agitated and shouting both long before the confrontation
began and after it ended, strongly suggesting that his agitation and shouting had a purpose
wholly independent of causing fear. The dissent highlights Elavsky’s size relative to
June’s, but his size by itself says nothing about intent to cause fear and nothing in the record
indicates that he intended to use his size in any particular way. The dissent especially
emphasizes that Elavsky got physically close to June and forcefully and immediately
removed the flyers from her—circumstances that most clearly show that he intended to
retrieve the flyers from June by force, not that he intended to retrieve them by fear. Again,
although one might reasonably infer that Elavsky wanted to cause June to fear bodily harm,
we simply disagree with the dissent’s conclusion that this is “the only rational inference.”
We therefore hold that the evidence is insufficient to support Elavsky’s conviction
of fifth-degree assault (fear). We of course do not say that Elavsky’s actions were civil or
legal, because the jury also found, and Elavsky does not contest, that he is guilty of

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disorderly conduct. We reverse the assault conviction and remand for the district court to
enter a conviction only on the disorderly-conduct verdict.
Reversed and remanded.

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BEANE, Judge (dissenting)
Appellant Neil Julian Elavsky argues that his conviction of fifth- degree assault
(fear) should be reversed because the evidence presented at trial was insufficient to prove
that he intended to cause fear of immediate bodily harm. See Minn. Stat. § 609.224,
subd. 1(1) (2022) (providing that a person who “commits an act with intent to cause fear
in another of immediate bodily harm or death” is guilty of fifth-degree assault). Because I
would conclude that the evidence is sufficient and would affirm Elavsky’s assault-fear
conviction, I respectfully dissent.
In evaluating the sufficiency of the evidence, we “carefully examine the record to
determine whether the facts and the legitimate inferences drawn from them would permit
the jury 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.
Because the state relied on circumstantial evidence to prove that Elavsky intended
to cause fear, we apply a two-step test to assess the sufficiency of that evidence. See State
v. Firkus, 31 N.W.3d 468, 478 (Minn. 2026). At the first step, 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 proved.” Id. (quotations
omitted). In doing so, we cannot “re-weigh the evidence and sit, in essence, as a 13th juror.”
Id. at 479 (quotation omitted). The process of identifying the circumstances proved is

D-2
intended to “protect[] the well-established legal principle that the jury is in a unique
position to determine the credibility of the witnesses and weigh the evidence before it.” Id.
(quotation omitted). At the second 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.” Id. at 478 (quotation omitted).
The state charged Elavsky with assaulting a woman (identified here by the
pseudonym June) who was working at a National Alliance on Mental Illness (NAMI)
event. Elavsky was protesting at the event and placing flyers on the windshields of cars
parked near the event. The encounter between Elavsky and June occurred when June
removed the flyers from the windshields of two of her colleagues’ cars.
June testified at trial about her encounter with Elavsky. That testimony, when
viewed in the light most favorable to the verdict, establishes the following regarding
Elavsky’s conduct: Elavsky was agitated and shouting when he approached June, who was
holding in her right hand two of the flyers Elavsky had been placing on cars near the NAMI
event. Elavsky told June, in a manner that “was more of a command than a request,” to
give him the flyers. Elavsky then “went for [June] before [she] had a chance to do anything
else.” His voice “was very loud and very intimidating,” and he is “a larger man compared
to” June in terms of both weight and height. Elavsky “grabbed around” June with both of
his arms in a “forceful” way, and “grabbed [her] hand and [her] arm . . . to grab those flyers
out of [her] hand.” To June, Elavsky was “a strange man that’s approached [her]” and was
“in [her] space.” She could “feel his body around [her],” “feel the sweat off of his arms

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against [her] arm,” “feel him grabbing,” “feel his chest against [her] chest,” and “feel his
breath on [her] face.” She “felt very violated” and “went into defense mode.” She described
the contact as “unnerving,” “unwanted,” “unprovoked,” and “very disconcerting.”
June’s testimony is the only first-hand account of Elavsky’s conduct that was
presented to the jury. In considering whether this evidence was sufficient to support
Elavsky’s conviction, we must view it in the light most favorable to the jury’s verdict. See
Griffin, 887 N.W.2d at 263.
Based on the evidence described above, I would define the circumstances proved
relevant to Elavsky’s intent as follows: Elavsky was agitated and shouting when he
approached June—a woman he did not know—and demanded that she give him two flyers
she was holding in her hand that Elavsky claimed were rightfully his. When she did not
immediately do so, Elavsky wrapped both his arms around her body so that their chests
were touching, and she could feel his breath on her face. He grabbed her arm, and he
forcibly took the flyers from her hand. Although June did not use the word “fear” to
describe how Elavsky’s conduct made her feel, she described feeling the need to defend
herself against his aggressive behavior and feeling unnerved and disconcerted. Elavsky is
physically larger than June in both height and weight.
These circumstances, I believe, foreclose the possibility that Elavsky did not intend
to cause June fear—that is, they are inconsistent with any reasonable hypothesis other than
guilt. Elavsky argues that the circumstances support “the reasonable inference that he
exclusively intended to retrieve his flyers without causing fear.” Elavsky clearly intended
to retrieve the flyers, but the only rational inference from the means he chose to achieve

D-4
that goal is that he intended to cause June fear of bodily harm. As the majority notes, we
can infer that a person intends the natural and probable consequences of their actions. See
State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998). The natural and probable consequence
of an agitated, larger man approaching a smaller woman who is a stranger to him,
addressing her in a “very loud” and “intimidating” voice, demanding that she do as he says,
and then forcefully grabbing around her body with both arms is that the woman will
experience fear of immediate bodily harm. Given Elavsky’s actions, it is not reasonable to
infer that he intended a different result.
Stated differently, the only reasonable inference regarding Elavsky’s intent that can
be drawn from the evidence presented at trial, when viewed in the light most favorable to
the verdict, is the one the jury drew: that Elavsky acted with the purpose of causing, or with
the belief that he would cause, June fear of bodily harm. See Minn. Stat. § 609.02,
subd. 9(4) (2022) (defining “with intent to” as “the actor either has a purpose to . . . cause
the result specified or believes that the act, if successful, will cause that result”). Because
I see no basis to disturb the jury’s verdict, I would affirm Elavsky’s assault-fear conviction.