State of Minnesota v. Kenwan Deshawn Hunter

This opinion is nonprecedential except as provided by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
A23-0908

State of Minnesota,
Respondent,

vs.

Kenwan Deshawn Hunter,
Appellant.

Filed May 6, 2024
Affirmed
Cleary, Judge *

Ramsey County District Court
File No. 62-CR-21-4826

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

John J. Choi, Ramsey County Attorney, Alexandra Meyer, Nelson Rhodus, Assistant
County Attorneys, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Johnson, Judge; and Cleary,

Judge.

*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
 NONPRECEDENTIAL OPINION

CLEARY, Judge

In this direct appeal from the judgment of conviction for second-degree felony

murder and unlawful possession of a firearm, appellant argues that (1) the state failed to

prove beyond a reasonable doubt that appellant did not act in self-defense, and (2) the

district court erred by providing the self-defense instruction for intentional killings where

appellant did not intend to kill the victim. We affirm.

FACTS

At 12:50 a.m. on August 16, 2021, police responded to a reported shooting at Ted’s

Recreation, a bar in Saint Paul. In the parking lot, officers found a red Buick with bullet

holes in the passenger side doors. The victim, G.S., who was also known by the nickname

“Chuck,” was in the back seat of the Buick with “his legs . . . over the center console

towards the front of the vehicle” and “his body in the back seat.” He was not responsive

and had no pulse. G.S. “was pronounced dead at the scene at 1:02 [a.m.]” Witnesses told

law enforcement that G.S. and appellant Kenwan Deshawn Hunter had been “shooting at

each other in close proximity” in the bar’s parking lot.

Respondent State of Minnesota charged Hunter with (1) second degree murder with

intent not premeditated, (2) second-degree felony murder without intent, and (3) unlawful

possession of a firearm. The district court held a jury trial in January 2023. Hunter testified

at trial as did several witnesses.

C.I. was present during the shooting and testified at trial. He testified that he saw

two individuals, one who he identified as “Chuck,” get into a “scuffle” outside the bar and

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that he saw another individual “try[] to break it up.” C.I. identified Hunter in the courtroom

as the person who attempted to break up the fight. The two individuals fighting eventually

“calmed down and they separated.” G.S. got into the red Buick. Once things had “calmed

down,” C.I. saw Hunter “approach the red car” that “Chuck” was in and start talking with

him. C.I. “heard [someone say] something along the lines of ‘you’re lucky this didn’t get

worse’” just before C.I. heard gunshots. C.I. saw some movement and “saw

[Hunter] . . . lurch back at the same time [C.I.] saw a muzzle flash and heard the first shot.”

C.I. testified that he saw Hunter shooting and heard around eight shots; but on

cross-examination C.I. testified that he did “not know who shot at who, who shot first, or

even if [the victim] had a gun.” C.I. ran away once he heard gunshots and later returned to

the scene and called the police.

C.I.’s roommate, C.V., was also present during the shooting and testified at trial. He

also saw the “scuffle” outside the bar and identified Hunter in court as a man he saw outside

the bar. C.V. testified that, after the initial scuffle broke up, he went up to Hunter. “[R]ight

as [he] got up to [Hunter, he] saw [Hunter move] backwards[,] go[] down into his

waistband and” take out a firearm. C.V. saw Hunter fire at the Buick and heard about 12

shots. After Hunter started shooting, C.V. ran away. C.V. did not see anyone sitting inside

the Buick and did not see or hear anyone shooting at Hunter.

Hunter also testified at trial. He testified that he and G.S. were friends, and that G.S.

was part of a gang in Minneapolis. He testified that G.S. had been involved in previous

shootings, “was a very aggressive person,” “was known as a fighter,” and would “go grab

his gun” if he lost a fight.

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 He also testified about the incident at the bar on August 16, 2021. G.S. got into a

disagreement with someone in the bar and the two of them went outside to fight. Hunter

went outside with them to attempt to break up the fight. At one point, G.S. said something

about “getting his sh-t,” which Hunter testified “meant he was going to get his gun.” G.S.

went into the Buick, where his gun was located, got in the vehicle, and “rolled the window

down.” Hunter, who had walked with G.S. to the car, “tr[ied] to talk him down.” G.S. said

“I’ll blow you away too” and “pulled the firearm out at [Hunter] and put it in [his] face.”

G.S. “started to fire” at Hunter who “jumped out of the way.” Hunter then “reached for

[his] firearm and tried to retreat,” firing back at G.S. as he ran “to stop [G.S.] from shooting

at [Hunter].”

The jury found Hunter not guilty of second-degree intentional murder, guilty of

second-degree felony murder, and guilty of being an ineligible person in possession of a

firearm.

DECISION

I. There is sufficient evidence for the jury to have found that Hunter did not act
in self-defense.

Hunter argues that “the state did not prove beyond a reasonable doubt that Hunter

did not act in self-defense.” Taking the life of another can be justified when “necessary in

resisting or preventing an offense which the actor reasonably believes exposes the

actor . . . to great bodily harm or death.” Minn. Stat. § 609.065 (2020). A defendant has the

burden to present “evidence to support a claim of self-defense, but once the defendant has

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met that burden, the [s]tate has the burden of disproving one or more of the elements of the

defense beyond a reasonable doubt.” State v. Vang, 847 N.W.2d 248, 267 (Minn. 2014).

“When evaluating the sufficiency of the evidence, appellate courts 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 [the defendant] was convicted.” State v. Griffin,

887 N.W.2d 257, 263 (Minn. 2016) (quotation omitted). Appellate courts view the

evidence “in the light most favorable to the verdict” and must “assume[] that the fact-finder

disbelieved any evidence that conflicted with the verdict.” Id. Appellate courts “will not

disturb a verdict if the jury, acting with due regard for the presumption of innocence and

the burden of finding guilt beyond a reasonable doubt, could reasonably conclude that the

defendant was guilty.” State v. Peou, 579 N.W.2d 471, 477 (Minn. 1998).

The parties agree that the district court instructed the jury on the elements for

self-defense. The elements are as follows:

(1) the absence of aggression or provocation on the part of the
defendant; (2) the defendant’s actual and honest belief that
[they were] in imminent danger of bodily harm; (3) the
existence of reasonable grounds for that belief; and (4) the
absence of a reasonable possibility of retreat to avoid the
danger.

State v. Devens, 852 N.W.2d 255, 258 (Minn. 2014) (quotation omitted). In addition to

those elements, “[t]he degree of force used in self-defense must not exceed that which

appears to be necessary to a reasonable person under similar circumstances.” State v.

Basting, 572 N.W.2d 281, 286 (Minn. 1997).

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 Hunter argues that the state did not disprove these elements. The state argues that

Hunter’s argument “relies on his own testimony” about G.S.’s mood before the shooting,

that G.S. said he was going to “get his sh-t,” which Hunter believed meant that G.S. was

getting his gun, that G.S. told Hunter he was going to “blow [him] away,” and that G.S.

was the first one to take out a gun or shoot.

Appellate courts view the evidence “in the light most favorable to the verdict” and

must “assume[] that the fact-finder disbelieved any evidence that conflicted with the

verdict.” Griffin, 887 N.W.2d at 263. We defer to the credibility decisions of the

fact-finder. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992). Accordingly, although

Hunter’s testimony supported his argument that he acted in self-defense, looking at the

evidence as a whole in a light favorable to the verdict and deferring to the jury’s credibility

determinations, there is sufficient evidence for a reasonable jury to determine that Hunter

did not act in self-defense.

If the jury believed Hunter’s testimony, it would have determined that Hunter met

all four elements for self-defense because G.S. shot at Hunter first, Hunter honestly and

reasonably feared for his life as he was being shot at, and, since G.S. was shooting at him,

Hunter had no way to retreat, so shooting back was reasonable force. However, based on

the jury’s decision to convict Hunter of second-degree felony murder, the jury did not find

Hunter’s testimony credible, and we defer to that determination. See id. at 843.

Additionally, the eyewitness testimony does not corroborate Hunter’s version of the

events. The evidence favorable to the verdict suggests that G.S. did not shoot or take out

his gun first. C.I. testified that he did not hear G.S. threaten to “blow away” Hunter and did

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“not know who shot at who, who shot first, or even if [G.S.] had a gun.” C.I. also testified

that he saw movement before the shots but did “not feel comfortable saying whether or not

[there was movement] inside the car.” Since the jury did not credit Hunter’s testimony that

G.S. shot first, it accordingly determined that Hunter did not have an actual, honest, and

reasonable fear of great bodily harm or death. See Devens, 852 N.W.2d at 258. Based on

its decision, the jury also determined that Hunter had the opportunity to retreat and did not

use proportionate force because he was the first to shoot. Therefore, there is sufficient

evidence in the record to support the jury’s determination that Hunter did not act in

self-defense.

II. The district court did not err by providing the
justifiable-intentional-taking-of-life jury instruction instead of the general
self-defense jury instruction.

Hunter argues that he is entitled to a new trial because the district court provided an

incorrect self-defense jury instruction. Appellate courts “review a district court’s jury

instructions for an abuse of discretion. A district court abuses its discretion if it fails to

properly instruct the jury on all elements of the offense charged.” State v. Stay, 935 N.W.2d

428, 430 (Minn. 2019) (citation and quotation omitted).

When there is no objection to a jury instruction at trial, appellate courts have

discretion to consider a claim of error on appeal if there was plain error affecting substantial

rights. State v. Reek, 942 N.W.2d 148, 158-59 (Minn. 2020); Minn. R. Crim. P. 31.02.

Similarly, “[u]nder the invited error doctrine, a party cannot assert on appeal an error that

[they] invited or that could have been prevented at the district court,” but “[t]he invited

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error doctrine does not apply, however, if an error meets the plain error test.” State v.

Carridine, 812 N.W.2d 130, 142 (Minn. 2012).

“[T]o meet the plain error standard, a criminal defendant must show that (1) there

was an error, (2) the error was plain, and (3) the error affected the defendant’s substantial

rights.” State v. Myhre, 875 N.W.2d 799, 804 (Minn. 2016). The plain error doctrine “is

discretionary and authorizes appellate courts to correct only particularly egregious

errors . . . in other words, those errors that seriously affect the fairness, integrity, or public

reputation of judicial proceedings.” State v. Huber, 877 N.W.2d 519, 528 (Minn. 2016)

(citation and quotations omitted).

There are two forms of self-defense under Minnesota law. First, under Minn. Stat.

§ 609.065, subd. 1(3), “reasonable force may be used upon or toward the person of

another . . . when used by any person in resisting or aiding another to resist an offense

against the person.” The jury instruction for defense of self or others when the death is

unintentional states, in part, that “[i]t is lawful for a person, who is resisting an offense

against [their] person . . . and who has reasonable grounds to believe that bodily injury is

about to be inflicted to defend from an attack.” 10 Minnesota Practice, CRIMJIG 7.13

(Supp. 2021). Second, under Minn. Stat. § 609.065, “intentional taking of the life of

another” is authorized when “necessary in resisting or preventing an offense which the

actor reasonably believes exposes the actor or another to great bodily harm or death.” The

instruction for justifiable intentional taking of life describes the requirements for

self-defense and requires that a defendant believe that their actions were “necessary to avert

death or great bodily harm.” 10 Minnesota Practice, CRIMJIG 7.15 (Supp. 2021).

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Hunter requested the following jury instruction:

In Defense of Self

No crime is committed when a person takes the life of another
person, even intentionally, if the defendant’s action was taken
in resisting or preventing an offense the defendant reasonably
believed exposed the defendant (or another) to death or great
bodily harm.

In order for a killing to be justified for this reason, three
conditions must be met.

First, the killing must have been done in the belief that it was
necessary to avert death or great bodily harm.

Second, the judgment of the defendant as to the gravity of the
peril to which (he) (she) (or another) was exposed must have
been reasonable under the circumstances.

Third, the defendant’s election to defend must have been such
as a reasonable person would have made in light of the danger
perceived and the existence of any alternative way of avoiding
the peril. All three conditions must be met. The State has the
burden of proving beyond a reasonable doubt that the
defendant did not act in self-defense.

The district court read the jury the following instruction:

Defense of self or others. As to each of the three counts no
crime is committed when a person intentionally takes the life
of another if the person’s action was taken in resisting or
preventing an offense of a physical nature the person
reasonably believed exposed him to death or great bodily
harm[.] [I]n order for the taking of a life to be justified for this
reason four conditions must be met. First, the defendant’s act
must have been done in the belief that it was to avert death or
great bodily harm. Great bodily harm means bodily injury that
created a high probability of death or causes serious permanent
disfigurement or causes a permanent or protracted loss or
impairment of the function of any bodily member or organ or
other serious bodily harm.

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 Second, the judgment of the defendant as to the gravity of the
peril to which he was exposed must have been reasonable
under the circumstances. Third, the defendant’s election to
defend must have would have made [sic] in light of the danger
perceived. Fourth, there was no reasonable possibility of
retreat to avoid the danger. All of these conditions must be met.
The person may use all force and means that the person
reasonably believes to be necessary and that would appear to a
reasonable person in similar circumstances to be necessary to
prevent death or great bodily harm that appears to be imminent.
The kind and degree of force a person may lawfully use in
defense is limited by what a same situation on [sic] would
believe to be necessary. Any use of force beyond that is
unreasonable.

The legal excuse of defense of self or others is available only
to those who act honestly and in good faith. A person may use
force in defense of self or others only if the person was not the
aggressor and did not provoke the offense. The defendant is not
guilty of a crime if he acted as authorized by law in defense of
self or others.

To prove guilt the state must prove beyond a reasonable doubt
that at least one of the requirements of this defense has not been
met.

Hunter did not object to the self-defense jury instruction at trial. He now argues that

the district court erred by using the jury instruction for justifiable intentional taking of life

instead of the jury instruction for defense of self or others when the death is unintentional,

also referred to as the “general self-defense” instruction. He argues that this error

prejudiced him because the justifiable-intentional-taking-of-life instruction has a “greater

fear-of-harm requirement.” The state argues that Hunter invited this error by requesting a

“slightly modified justifiable-intentional-taking-of-life instruction.” The state is correct

that Hunter invited this error by requesting his proposed jury instruction and failed to object

to this jury instruction at the district court level. Accordingly, Hunter can challenge the

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self-defense instruction only if he shows that the district court’s use of this instruction was

a plain error that affected his substantial rights. Reek, 942 N.W.2d at 158-59; Carridine,

812 N.W.2d at 142. To succeed based on plain error, Hunter must prove that (A) there was

a plain error, (B) the error affected his substantial rights, and (C) the error “seriously affects

the fairness and integrity of judicial proceedings.” State v. Little, 851 N.W.2d 878, 884

(Minn. 2014).

A. There was no plain error.

First, we address whether a plain error occurred. “An error is plain if it is clear or

obvious, which is typically established if the error contravenes case law, a rule, or a

standard of conduct.” State v. Webster, 894 N.W.2d 782, 787 (Minn. 2017) (quotation

omitted). Hunter argues that the district court plainly erred because reading the jury the

justifiable-intentional-taking-of-life instruction rather than the general self-defense

instruction is inappropriate when a defendant claims that “death was not the intended

result.” State v. Pollard, 900 N.W.2d 175, 179 (Minn. App. 2017). Hunter asserts that,

since “[d]efense counsel argued to the jury that Hunter did not intend to kill [G.S] while he

acted in self-defense,” the district court should have used the general self-defense

instruction. The state argues that, when Hunter testified, “[h]e did not claim that he

intentionally killed G.S., but neither did he testify that he accidentally or unintentionally

killed him,” and Hunter did not raise the argument that he did not intend to kill G.S. until

closing argument.

The Minnesota Supreme Court has held that providing the incorrect self-defense

instruction is plain error. See id. at 179 (stating that “the Minnesota Supreme Court has

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repeatedly stated that it is error to provide the justifiable-taking-of-life instruction, instead

of the general self-defense instruction”); Carridine, 812 N.W.2d at 143-44 (determining

that providing the justifiable-intentional-taking-of-life instruction was an error when the

defendant argued that the death was unintended); State v. Hare, 575 N.W.2d 828, 832-33

(Minn. 1998) (determining that the district court improperly gave the

justifiable-intentional-taking-of-life instruction when the defendant claimed that the death

was accidental); State v. Robinson, 536 N.W.2d 1, 2-3 (Minn. 1995) (determining that the

justifiable-intentional-taking-of-life jury instruction was incorrect when the defendant

claimed the death was accidental); see also State v. Fidel, 451 N.W.2d 350, 356 (Minn.

App. 1990) (explaining that the general self-defense instruction “is the appropriate

self-defense standard for second-degree felony murder”), rev. denied (Minn. Apr. 13,

1990).

This case, however, is factually different than the cases in which appellate courts

determined that the justifiable-intentional-taking-of-life instruction was improper. In

Pollard, the defendant was found guilty of second-degree felony murder after swinging a

knife at her boyfriend “to protect herself” while they were in a fight. 900 N.W.2d at 176-77.

The defendant in Pollard argued at trial that she acted in self-defense and requested the

general self-defense instruction. Id. at 177. In Carridine, the defendant shot at the victim’s

car as he drove away, after the victim pulled out a gun and threatened him. 812 N.W.2d at

136. The defendant in Carridine testified that “he did not intend to hit anyone; his intent

was to shoot at the door until the car door closed.” Id. Similarly, in Hare, 575 N.W.2d at

830, the defendant testified that “he intended to stab [the victim] in the arm to make him

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drop his knife”; in Robinson, 536 N.W.2d at 2, the defendant claimed he wrestled a gun

away from the victim to prevent the victim from robbing him and the gun “discharged

accidentally”; and in Fidel, 451 N.W.2d at 356 the defendant testified that “he did not

intend to kill the victim.”

Here, it is less clear whether Hunter argued at trial that the killing was unintentional.

Hunter did not testify as to whether the killing of G.S. was intentional or unintentional.

Hunter’s counsel raised a self-defense argument during his opening statement at the start

of the defense’s case in chief, but counsel did not specify whether the killing was

intentional or unintentional. In his closing argument, after the jury instructions had already

been discussed and Hunter was given an opportunity to object, Hunter’s counsel argued

that “[n]o crime is committed when a person takes the life of another person even

intentionally and this wasn’t even intentional.” He also argued, however, that “Hunter did

not intend to take a life, but he had intended to take the life when confronted with this threat

of death or bodily harm, the law provides that you can do that” and then addressed the

elements for justifiable intentional taking of life. Because Hunter never testified that he did

not intend to kill G.S. and the record does not clearly indicate that Hunter argued that death

was not the intended result, the district court was left with a difficult decision of which jury

instruction to provide without clear indicia of which instruction was most appropriate.

Therefore, the district court did not plainly err by providing the jury with the

justifiable-intentional-taking-of-life instruction.

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 B. Even if the district court had erred, there was no impact on Hunter’s
substantial rights.

“An erroneous jury instruction affects a defendant’s substantial rights if the error

was prejudicial and affected the outcome of the case.” Huber, 887 N.W.2d at 525. The

appellant “bears the burden of establishing that there is a reasonable likelihood that the

absence of the error would have had a significant effect on the jury’s verdict.” State v.

Horst, 880 N.W.2d 24, 38 (Minn. 2016) (quotation omitted). Hunter argues that the verdict

would have been different if the district court had read the general self-defense instruction

to the jury because the justifiable-intentional-taking-of-life instruction requires that the

defendant fear great bodily harm or death while the general self-defense instruction

requires only a reasonable fear of bodily harm. Hunter accordingly asserts that “it would

have been impossible to convince [the jury] that Hunter did not face any [fear of] bodily

harm when [G.S.] grabbed a gun and threatened Hunter with it.”

Hunter again cites to Pollard, where the defendant stabbed her boyfriend while the

two were in a fight. 900 N.W.2d at 176-77. In Pollard, given the specific facts of the case,

namely that the defendant claimed “that she did not intend to stab [her boyfriend], but

rather was attempting to stop his continued attack,” this court determined that “[i]t is

possible that the jury may have reached a different verdict if the jury had been properly

instructed on self-defense.” Id. at 182. Hunter argues that this case similarly requires

reversal because the evidence provided at trial supports a determination that Hunter acted

in self-defense, and, had the jury been instructed with the lower fear-of-harm requirement,

it would have determined that Hunter acted in self-defense out of a fear of bodily harm.

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 This case, however, is distinguishable from Pollard for two reasons. First, the

defendant in Pollard claimed that killing was “accidental because [her boyfriend] would

not stop attacking her,” while Hunter did not testify that the killing was unintentional. Id.

at 177. Second, in Pollard, the defendant’s boyfriend, who had hit her in the past,

“attempted to hit” the defendant and the two got into a fight. Id. This resulted in the

defendant fatally stabbing her boyfriend while she tried to protect herself with a knife. Id.

Her boyfriend did not have a weapon. Id. Therefore, in Pollard, it was “possible that the

jury may have reached a different verdict” if the self-defense standard was fear of bodily

harm rather than fear of great bodily harm or death. Id. at 182.

Here, the jury’s decision did not depend on whether Hunter had a fear of bodily

harm or a fear of great bodily harm or death. Rather, the jury had to decide whether it

believed Hunter’s narrative of the events. As addressed above, the jury did not find

Hunter’s testimony about the shooting credible and did not find credible his assertions that

he shot at G.S. to defend himself. We defer to the jury’s credibility determination.

Dickerson, 481 N.W.2d at 843. Based on this determination, the use of the general

self-defense jury instruction requiring that Hunter only feared bodily harm would not

impact the verdict. Indeed, if the jury found Hunter’s testimony that G.S. threatened and

shot at him credible, it would have found him not guilty based on justifiable intentional

taking of life. Therefore, any error in the jury instruction for self-defense did not impact

the verdict and is therefore not prejudicial and did not affect Hunter’s substantial rights.

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 Given that there was no plain error, and any error would not have impacted Hunter’s

substantial rights, we need not determine whether any error would seriously affect the

fairness, integrity, or public reputation of judicial proceedings.

Affirmed.

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