From State v. Elavsky, decided yesterday by Minnesota Court of Appeals Judge Kevin Ross, joined by Judge Elise Larson:
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 removing his posted leaflets. He 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 ….
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 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 leaflets. 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.
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….
The court held that there was insufficient evidence that Elavsky acted "with intent to cause fear in another of immediate bodily harm," which was required for the assault-by-fear charge (Elavsky hadn't contested his conviction on a disorderly conduct charge):
The state did not offer direct evidence that Elavsky had this specific intent, relying instead on circumstantial evidence. When an element of a conviction rests on circumstantial evidence, we … [consider] 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." 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….
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. Elavsky's angry demeanor, his leafletting and loud expressions of disagreement with NAMI's cause throughout the day, his lurching approach toward June while 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….
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 support the alternative inference that Elavsky's only actual intent was to get the leaflets back from June. This is a reasonable inference of a hypothesis other than guilt.
