State v. Nicholas Firkus - First-Degree Murder Conviction Affirmed

1 STATE OF MINNESO TA IN SUPREME COUR T A23-0973 Ramsey County Moore, III, J. Concurring, Thisse n, J. Concurring, Procaccini, McKeig, Hennesy, JJ. Concurring in part, diss enting in part, Hudson, C.J. State of Minnesota, Respondent, vs. Filed: February 25, 20 26 Office of Appellate Co urts Nicholas James Firkus, Appellant. __________________ ______ Keith Ellison, Attorney General, Saint Paul, M innesota; and John J. Choi, Ramsey County Attor ney, Alexandra Meyer, Assista nt County Attorney, Saint Paul, Minnesota, for respondent. Robert D. Richman, Sa int Louis Park, Minnes ota, for appellant. Keith Ellison, Attorne y General, Thomas R. Ragatz, Assi stant Attorney General, Saint Paul, Minnesota for am icus curiae Minnesota Attorney General. Robert M. Small, Executive Dire ctor, Minnesota County At torneys Association, S aint Paul, Minnesota; Travis J. Smith, Murra y County Attorney, Sla yton, Minnesota; a nd Brittany D. Lawonn, Assistant Henn epin County Attorney, Minne apolis, Minnesota f or amicus curiae Minneso ta County Attorne ys Association.

2 Cathryn Middlebrook, Chief Appellate Public Defende r, William Ward, Minnesota State Public Defender, Saint Paul, Minnesota for amicus curiae Minnes ota Board of Public Defense. Anders J. Erickson, Johnson Ericks on Criminal Def ense, Minneap olis, Minnesota, fo r amicus curiae Minneso ta Association of Crimi nal Defense Lawyers. __________________ ______ SYLLA BUS 1. The circumstantial evid ence is sufficie nt to support appe llant’s convict ion of first-degree premeditat ed murder. 2. A district cour t should appl y the d irect - evidence stand ard in consid ering a motion for a ju dgment of acqui ttal that is mad e and decided bef ore the verdict is returned, even when the State’s proof of an element of the offense is entirely c ircumstantial. Affirmed. OPINIO N MOORE, III, Justice. A Ramsey County grand jury indic ted appellant Nicholas Jam es Firkus for first- degree preme ditated murder in connection with the s hooting dea th of his wife Heidi 1 Firkus. 2 Firkus pleaded not guilty and demande d a jury trial. A unanimous jury found that the State proved beyo nd a reasonable doubt that Firkus intentiona lly killed Heidi with 1 Because appellant an d the victim share the sa me last name, t his opinion ref ers to appellant as “Firkus” a nd to his wife as “Heid i.” 2 The grand jury also ind icted Firkus for the less er - included of fense of s econd -degree intentional murder. B ecause we conclude th at the State’ s circumst antial evidence was sufficient to support Firkus’ s co nviction of fi rst - degree premeditate d murder, no fur ther discussion of the lesser-included offense is req uired here.

3 premeditation. Based on the jury’ s guilt y verdict, the district court entered a judgmen t of conviction and sentenc ed Firkus to life withou t the possibility of relea se. On direct appeal to our court, Firkus m akes two arguments. First, he argues that the circumstantial evidence is insufficient to support hi s conviction of first -de gree premeditated murder. Although Firkus does not deny that he was holding the sho tgun that fatally shot Heidi, he argues that the circ umstantial evidence presented at trial is insufficient because the circumstances proved suppo rt a reasonable inference that he shot her without premeditation or intent during a struggle w ith an intruder. Second, he argues that the district court erred when it applied the direct - e vidence standard in con sidering his motions for judgment of ac quittal, which were made a nd decided before the verdict was returned. Applying our long-standing two- step c ircumstantial - evidence te st, we conclude that the circumstantial evidenc e is sufficient. W e also conclud e that the dis trict court applied the correct standard in considering the motions fo r judgment of acquittal that were made and decided before the verd ict was returned. W e t herefore affirm. F ACTS Following a police inv estigation, a Ramsey C ounty grand jury indict ed Firkus for first- degree premeditat ed murder, Minn. Stat. § 609.185(a)(1), in connection with the shooting death of his 25- year -old wife Heidi. Firkus pleaded not guilty and demanded a jury trial. The following evidence was prese nted at trial. A 91 1 e mployee testifi ed that the call center received a 91 1 call fro m Heidi, which was made from her house on W est Minnehah a A venue in St. Paul at around 6:30 a.m. on April 25, 2010. A recording and transcript of the call w ere admitted into evide nce. During

4 the 91 1 call, Heidi repo rted that “someone’ s t rying to break into my house.” After 30 to 4 0 seconds of Heidi speaking, a loud noise con sistent with a gunshot is heard, and the c all ends abruptly. The recording of the 91 1 cal l does not contain any sounds of a struggle or any intruder voice before that noise. About a minute later, Firkus called 91 1 and told the dispatcher that “someb ody just broke into our house and shot me and my wife.” First responders test ified as follows. When they arrived at the Firkus es’ house, they found Heidi lying on the floor of t he kitchen doorway with a fatal g unshot wound to her back. Firkus was alive with a gunshot wound to his leg and was transported to a hospital for medical treatment. The responding polic e officers testified a s follows. When they arrived at the Firkuses’ house several minutes after the 9 1 1 c all, everything appeare d calm. T he officer s saw no suspicious vehicles or people in the ar ea. The fr ont door was open about an inch. Photos of the front door of the Fi rkuses’ house revealed no signs of forced entry or torn paint or wood. B ased on his experience, a po lice ser geant told the j ury that forcing open the front door with a s crewdriver or other tool would h ave torn aw ay “the paint and the wood” on the front door frame, and that “the light impressions” on the front door frame appeared to be “old” and painted over. O n cross - examination, defense counsel aske d if it was possible “to use a flat head screwdriver to open a knob lock with out tearing awa y wood and paint.” The sergeant replied, “In my experience and obser vations, the possibility that you’re stating is not probable, but it is possible.” A locksmith testi fied that if the fro nt door deadbolt of the Firk uses’ house was not engaged, “the knob lock could be defeated in 15 seconds.”

5 The district court admitted into evidence the following photograph, which documented the appear ance of the foyer whe n the responding officers entered the house. The responding officers observed undisturbed items on the foyer table, which was located extremely close to the spot where Firkus later told officers he was standing whe n he fired the shotgun. One of t he officers described the table as “wobbl y” and when one of t he officers touched t he table, some items on the table fell off. Law enforcement took t he photograph above to show, in part, that t he house where the Firkuses lived had a half -moon window in the front door and from the upstairs landing, a person cou ld see if anyone was standing outside the fro nt door.

6 The State also introduced Firkus’ s reco rded police interviews in whic h Firkus made the following statements. The Firkuses’ house was equipped with a security system whic h the Firkuses had not activated, but they wer e “pretty religious” about locking the door deadbolts. On the night before the shooting, Firkus and Heidi had burgers delivered, opened a bottle of win e, and watched a movi e. When they went to bed, Firkus placed his two cellphones on his bedside table. O n the morning in question, he woke up a r ound 6:00 a.m. to get a drink of water and t hen heard someone “fiddlin g with our front door.” He went to the bedroom closet and loaded his short 20 - gauge dou ble - barrel shotgun with two shells. When loaded, the shotgun’ s safety automatically engage s and must be pushed forward and disengage d before the trigger can be pulled. Firkus explained tha t he had moved the shotgun from the basem ent to the bedroom closet abo ut a month earli er. Firkus did not call 91 1 on either of his cellph ones, which were sittin g on his bedside table. Instead, Firkus woke up Heidi, who was sleeping “li ke a rock,” told her t here was somebody fiddling with the front doorknob, and direct ed her to call 911 as Heidi and Firkus headed to their garage. Firk us explained that i n the past, the c ouple had form ulated a plan to escap e out the back door to the garage if anyone ever tried to break into the ir house. Firkus did not grab either of his c ellphones when they le ft the bedroom. Firkus also to ld the of ficers that after he and Heidi left their bedroom, they walked down the stairs, t oward the front door of the h ouse. When one of the police o f ficers asked why Firkus did not wa it on the landing, where he would have ha d an advantage over an intruder entering the front door, Firkus replied that “the compassionat e person in me is not pulling the trigger.” Firkus further explained that as he reached th e front door, a “ really

7 big” intruder, who was around 6’1” an d 220 pounds, burst through t he door, gra bbed the end of the shotgun, pushed it up against Firk us’ s chest, and Firkus’ s finger slipped onto the trigger, and he shot Heidi in the back. Firku s watched as “she went straight down” fallin g on her face, at which point the intruder rotated the shotgun t oward Firkus’ s left leg, the second shotgun shell was fired into his left leg, and then the intruder fled out the front door. 3 Firkus, who is 5’10 ”, told the of ficers t hat during the stru ggle, he and the intruder “never really moved. W e didn’t shove back and forth against the w all. W e were just in one spot just kinda tryi ng to figure it out.” Firkus’ s father -in- law testified that on April 26, 2010, the day af ter the murder, Firkus said th e police would never find the al leged intruder. When he suggested the police might be able to pull fingerprints of f the b arrel of the sh otgun, Firkus “immediatel y” interjected that the intruder had worn gloves. Firkus’ s brother-in- la w testified that Firkus appeared “oddly almos t giddy or carefree” foll owing Heidi’ s death. A police sergeant testified that within a couple of da ys after Heidi’ s murder, the police conducted a “sound test” on t he Firkuses’ house around 6:15 a.m. T wo of ficers were upstairs with a video re corder, while one officer downstairs acte d as someone entering t he house by opening the screen porch door an d then turning the doorknob to the front door back and forth. In the video recording of this “sound test,” the doorknob jiggling is inaudible from the bedr oom and the bathroom; it is faintly audible fr om the top of the stairs 3 Medical personnel test ified that the second s hot was fired in a m anner consistent with a self - inflicted wound. The injury was also consistent with a tangential wo und, which lessens the risk of nerve injury because it affects only the skin and fatty tissue immediately beneath the skin.

8 between the bedroo m and the bathroom. Sounds from the screen porch do or were completely inaudible. Although the sergeant e xplained t hat the sound on the vi deo recorder reflected what he coul d hear at the time pol ice conducted the test, h e agreed t hat a video recorder ’ s s ound sensitivity is no t necessarily the same as a human e a r. A specialist from the Federal Bureau of Inve stigation (“FBI ”) testified as follows. In 2020, the FBI created a d igital model of the crime scene that showed the firing angles and ranges for a person Firkus’ s heig ht, along with Heidi’ s location when she was shot. The digital model indicated that Firkus was 4 to 9 feet behind He idi when his finger pulled the trigger of the shotgun, which was within the Minnesota Bureau of Cr iminal Apprehension’s (“BCA ”) ballistics testi ng range. 4 The FBI specialist who helped create the digital model explai ned that the model did not include an intruder because the presence of one or more int ruders would not change any of t he trajectories c alculated in this case. On cross - examination, the FBI specialist ad mitted that the trajectory calculati ons, by themselves, did not rule out the possibilit y that an intruder had grabbed the shotgun. On redirect, the prosecutor asked a qu estion that focused on possible but improbable scenario s. In response to those qu estions, the specialist a greed that “anything is possible.” The State also pre sented evidence th at in 2008, Firkus began t o experience fina ncial problems, which prevented him fro m consistently making the Firkuses’ mortgage payments. Ultimatel y, the Firkuses’ house was in f oreclosure and sc heduled for eviction on April 26, 2010, the day after the shootin g. Although the Firkuses were members of a 4 The BCA ’ s ballistic te sting indicated that Heidi was between 3 and 10 feet from the shotgun.

9 close group of couples who discusse d the difficulties in their lives (including fi nancial difficulties), neither Heidi nor Firkus had to ld friends or family about the forecl osure. Moreover, when the officer s responded to the shooting, they obser ved that each r oom was fully furnished, the kitchen was well - stocked, books remain ed on t he shelves, and the bedroom closet was filled with clo thes on ha nger s and s helves. Ot her than a few empty boxes in the di ning area and a few collapsed boxes in the basement, t here was no sig n the house was about to be vacated a day later on April 26. Documentary evidence described the details s urrounding the f oreclosure as follows. In April 2009, about a year before Heidi’ s death, the bank persona lly served Firkus with foreclosure documents and notice of a sheriff ’ s sale. Heidi was not served with these documents. T wo mont hs later, in June 2009, the bank bought the Fi rkuses’ house at the sheriff ’ s sale. After t he Firkuses failed to redeem the house, an eviction hearing was scheduled for March 8, 2010. The hearing wa s held a short walk aw ay from where Heidi worked. At the hear ing, Firkus appeared by himself and sign ed paperwork agreein g to vacate the house by Ma rch 22. The Firkuses di d not vacate the house on March 22. Firku s subsequently negotiate d an extension to t he day on which they would be loc ked out of the house, claiming his gr andmother was d ying and he need ed more time to move. On April 9, Firkus received a lett er informing hi m that on April 26, the day aft er the shooting, the sheriff would physically remove the Firkuses and their pro perty from the house. O n April 18, Heidi invited friends to p lay badminton at the Firkuses’ house on the weekend of April 30, four days afte r the sheriff was scheduled to phy sically remove the Firkuses fro m their house. On April 23, Firkus emailed Heidi about sched uling a meeting with a realtor

10 and contacting U.S. Ba nk about fraud on their account. By that point, the Firkuses did not have any active accounts at U.S. Ba nk, and law enforceme nt could not find evidence of the alleged meeting wit h the realtor. Firkus a lso emailed Heidi telling her that he neede d to have her all to himself on the night of Ap ril 24. After the State rested its case in chief, Firku s made a motion for a judgme nt of acquittal. T he district court denied the motion based on its appli cation of the direct - evidence standard. 5 Firkus then called sev eral witnesses, includi ng B.O., the boyfriend of one of his former next - door neighbors, w ho was staying overnight at t he neighbor ’ s house to cat sit when Heidi was killed. B.O. testified a s follows. On the morning in question, B.O. heard a couple of bangs, loo ked out the window, and saw no one leaving the Firkuses’ house. After the shots, he h eard a single muffled voice. Altho ugh B.O. co uld “not clearly” make out what the muffled voice said, he “t hought” he heard a male say, “Y ou shot me” o r “Y ou shot her. ” B.O. made similar state ments to a newspaper re porter later that same d ay. B.O. conceded that at first th ought the muffled voice was a man, but lat er he thought the muffled voice was a woman. Before trial, B.O. listene d for the first time to the recording of the 91 1 call that Firkus ma de about a minute after Heidi was shot. When he heard Firkus’ s voi ce in that 91 1 call, it sounded like the muffled voice he heard on April 2 5. He added that the 5 Under the direct - evide nce standard, a court views the evi dence and all resulting inferences in favor of the State and asks whet her the evidence is suf ficient to present a fact question for the jury’ s determination, and, if s o, whether a reasonable jury could find the defendant guilty beyon d a reasonable doubt. State v. Slaughter, 691 N.W.2d 70, 74 – 75 (Minn. 2005).

11 statements he made to the newspaper reporte r, including his statement that he heard the muffled voice say, “ Y ou shot me” or “Y ou shot her,” were consistent with that 91 1 cal l. The State admitted a recording and transcript of the 911 call that Firkus made about a minute after He idi was shot. The statements “Y ou shot me” and “Y ou shot her” do not appear in the recording or transcript. At the conclusion of all the evidenc e but befo re closing arguments, Firkus made a second m otion for a ju dgment of acquittal. A gain applying the direc t - evidence standard, the district court denie d the motion. During closing argument, defense counse l ar gued that the State presented insufficient evidence to prove beyond a reasonable doubt that Firk us intentionally killed Heidi with premeditation. Acknowl edging the inconsistencies in B.O.’ s prior statements and trial testimony, defense counsel argued that the jury should resolve the inconsisten c ies in favor of his prior statement that the muffled voice said, “Y ou shot me” or “Y ou shot her,” because it reflected B.O.’ s “best memory of what he heard.” Defense counsel als o emphasized to the jury the testimony of the State’ s witn esses that (1) it was possible to open a knob lock with a prying moti on without chippin g the paint, and (2) that the FBI trajectory calculations, standing alone, d id not rule out the pos sibility that an in truder had grabbed the shotgun. The jury found Firkus guilty of intentionall y killing Heidi with p remeditation. Based on the jury’ s guilty verdict, the dis trict court entered a judgme nt of conviction and sentenced Firkus to life in prison without the p ossibility of release.

12 Firkus filed a direct appeal to our court, arguing that the circums tantial evidence is insufficient to support his convictio n and that the district court erred when it applied the direct- evidence standard in ruling on his pre - verdict motions for ju dgment of acquittal. After we first heard or al arguments, we reque sted supplemental brief ing and reheard oral argument on six legal questions, which focused on how to identify the circumstances proved in a circumstantial - evidence an alysis, including wh ether our decisions in State v. Culver, 941 N.W.2d 1 34, 144 (Mi nn. 2020) and State v. Al-Naseer, 788 N. W.2d 469, 476 (Minn. 2010) were consistent with our long - standing circu mstantial -e vidence test, a nd also inquired as to the standard to be appl ied in considering a m otion for a judgment o f acquittal that is made and decide d before a verdict is r eturned. ANAL YSIS W e begin our a nalysis by considering whe ther the circumstantial evidence is sufficient to support Firkus ’ s conviction of first - degree pre meditated murder. 6 Then, we address the standard th at should apply in cons idering a motion for a j udgment of acquittal that is made a nd decided before the verdict is r eturned, when the Sta te’ s proof of an element of the offense is entirely circumstantial. I. When the State prese nts only circumsta ntial evidence to prove the elements of premeditation or intent to kill, we apply a two -step test to assess th e suf ficiency of the 6 Because the parties agree that the State pres ented no direct evidence that Firkus acted with premeditati on and intent to kill, we c onsider whether the circumstantial evidence is sufficient to establish those ele ments.

13 evidence on those elements. State v. Ulrich, 3 N.W.3d 1, 11 (Minn. 2024). T he first step requires us to “winnow down the evidence pre sented at trial by resolving all questions of fact in favor of the jury’ s verdict,” which res ults in “a subset of facts that constitute the circumstances proved. ” State v. Harris, 89 5 N.W.2d 592, 600 (Minn. 2017) (citatio n omitted) (internal qu ot ation marks omitted). At the second step, “ we consider whether the reasonable inferences that can be drawn fro m the circumstances proved, when viewed as a whole and not as discre te, isolated facts, ‘ are consistent with the h ypothesis that the accused is guilty and inconsistent with any rational hy pothesis other than guilt. ’ ” State v. Smith, 9 N.W.3d 543, 56 5 (Minn. 2024) (quoting State v. Hassan, 97 7 N.W.2d 633, 640 (Minn. 2022)). T o prove that Firkus committed first- degre e premeditated murder, t he State needed to establish beyond a reasonable doubt that Firkus intentional ly killed Heidi with premeditation. See St ate v. Jenkins, 782 N. W.2d 21 1, 225 (Minn. 2010) (de scribing the elements of first - degre e premeditated murder); Minn. Stat. § 609.185 (a)(1) (same). Fir kus does not deny pulli ng the trigger of the shotgu n that he had just loaded and f iring the shot that killed Heidi. Inste ad, he argues that the circumstantial evidenc e i s insuf ficient because it supports a reasonable inference that he sh ot Heidi without prem editation and intent during a struggle with an intruder. W e concl ude that whe n the circumstances pr oved are identified and viewed as a whole and not a s discrete, isolated facts, they support only one reasonable inference — Firkus caused Heidi’ s d eath with pre meditation and intent to e f fect her death. In reach ing that conclusion, we apply our long -st anding process of identifying the circumsta nces

14 proved during the first step of our circumstantial- eviden ce analysis and reject Firkus’ s argument that our prior use of the word “incons istent” in some of our cases has altered that test. Next, we consider whether our deci sions in Culver, 941 N.W.2d 134, and Al-Naseer, 788 N.W.2d 469, are consistent with our long - standing c ircumstantial -evidence test. We then review our existing jurisprudence regarding the second step of the circumstantial- evide nce test and how it interac ts with the first step, emphasizing th a t during the second step, we vie w the circumstances pr oved as a whole and not as discret e, isolated facts. Finally, we conduct a circumstantial - evidence analysis of the sp ecific facts here and explain why we disagr ee with the arguments made by Firkus an d our colleagues. A. The first step of our circumstantial -evidence test— identifying the circumstance s proved—protects the well - establis hed legal principle that “the jury is in a uniqu e position to determine the credibility of the witne sses and weigh the evide nce before it.” Harris, 895 N.W.2d a t 592. I n fact, we have repeatedly said the jury is in “the best positi on” to evaluate the credibilit y of evidence, even in c ases based on circ umstantial evidence. See, e.g., State v. Moore, 846 N.W.2d 8 3, 88 (Minn. 2014); State v. Anders en, 784 N.W.2d 320, 329 (Minn. 2010). In its unique position, a jury “is free to accept part and reject part of a witness ’ s testimony.” Ha rris, 895 N.W.2d at 600 (quoting State v. Landa, 642 N.W. 2d 720, 725 (Minn. 2002)); accord State v. Poganski, 257 N.W.2d 578, 581 (Min n. 1977). In evaluati ng a witness’ s credibility, a jury may co nsider the witness’ s “interes t and past inconsisten t statements.” State v. M oor e, 438 N. W.2d at 101, 108 (Minn. 1989); see also State v. Asfeld,

15 662 N.W.2d 534, 546 (Minn. 2003) (explaining that in deference t o the jury’ s “role a s evaluator of witness cr edibility,” t he court was required to assume “the jury dis believed Asfeld’ s claim that he did not murder [t he victim]”). This principle applies with equal force to the testimony of expert wit nesses. State v. T ripl ett, 435 N.W.2d 38, 44 (Minn. 1989) (explaining that “[w]eighing the credib ility of witnesses, including ex pert witnesses, is the exclusive function of t he jury”). Consequently, our precedent does not pe rmit us to re - weigh the evid ence and “sit, in essence, as a 13th juror.” State v. Reek, 94 2 N.W.2d 1 48, 166 (M inn. 2020) (declinin g to reweigh the test imony of the State’ s DNA witness and the defendant’ s DNA witness because the jury hea rd the witnesses’ test imony, evaluate d any differences between them, and weigh ed their relative credibilit y). This prohibition is especially i mportant in context s where “appellate rev iew of a cold trans cript” cannot substitute for direct observation of the person’ s demeanor. Se e State v. Munt, 831 N.W.2d 569, 576 (Minn. 2013) (explaining that a person’ s “demeanor p lays a fundamental r ole” in determining “cre dibility”). At times, our descripti ons of the winnowing - down process have n ot reflected the level of precision articulated above. F or example, we have som etimes said we must disregard evidence tha t is “ inconsi stent with the jury’ s verd ict.” See, e.g., State v. Lehman, 3 N.W.3d 875, 8 78 (Minn. 2024); Sta te v. Cruz, 997 N.W. 2d 537, 551 (Minn. 2 023) (quoting Harris, 895 N.W. at 601); State v. Colgr ove, 996 N.W.2d 14 5, 150 (Minn. 2023) (same). Firkus argues that our use of the phrase “inco nsistent with the jur y’ s ver dict” means any fact that is hypothetica lly consistent with the verd ict must be included in the circumstances proved regardless of the jury’ s unique position to dete rmine the credibility

16 of the witne sses and weigh the evidence before it. W e d isagree. Our use of this imprecise phrase was not intended to shift the focus o f the winnowing - down process away from protecting the jury’ s uni que position to determine the credibilit y of the witnesses and weigh the evidence before it, as shown by our conte mporaneous references to the jury’ s r ole as the sole judge of credibility in each case. 7 Lehman, 3 N.W.3d at 878; Cruz, 997 N.W.2 d at 551; Colgr ove, 996 N.W.2d at 150; 8 Harris, 895 N.W.2 d at 600; see also State v. Isaac, 9 N.W.3d 812, 815 (Minn. 2024) (acknowledging “the [fact -finder] is in a un ique position to determine the credibility of the witnesses and weigh the evidence before it” (alteration in original) (quoting State v. Harris, 895 N.W.2d at 600). W e reiterate that, as the fact - finder, the jury is unique ly posit ion ed to assess witness credi bility and weigh the evidence, and that juro rs may accept some parts of a witness ’ s testimony while rejecting 7 In focusing on whether a piece of evidence is actually or theore tically inconsistent with the guilty verdict, the separate writings of Justice Thissen and the Chi ef Justice not only lose sight of the purpose of the winno wing - down process (p rotecting the u nique position of the ju ry to determine the credibility of the witnesses and weigh the evidenc e before it), but they also propose an approach t hat infringes on the jury’ s role. 8 W e disagre e with the concurrence’ s view of o ur decision in Colgr ove, 996 N.W.2d at 150. In Colg r ove, the State esse ntially argued that the evidence of the defendant’ s paranoia and delusion s should be excluded from the circumstances proved because, as a matter of law, “a person experien cing this type of behavior can never form an intent to kill another person.” Id. at 151. W e rejected the State’ s legal argument, ex plaining that we ha d consistently held that “ [t]he mere fact of a person’ s [using intoxicants] does not create a presumption of intoxication, and the p ossibility of intoxication does not create the presump tion that a per son is rendered incapa ble of intending to do a certain act.” Id. at 151– 52 (citation omitted) (internal quot ation marks omitted). Nota bly, the State did not argue the defendant’ s paranoia and delusion s should be excluded fr om the circumstances proved to protect the unique po sition of the jury to determine the credib ility of the witnesses and weigh the evidence before it.

17 others, and that t he first step of our circumstantial -e vidence test protect s this well - established legal principle. 9 B. Having reviewed and reiterated our existing jurisprudence rega rding the first step of the circumstantial- e vidence test, we consider the following question about how we determine in the first step whether certain evidence is include d in the subset o f circumstances prove d, on which we requested and received suppleme ntal briefing: T o determine whether a piece of evidence is a circumstance proved, how should we reconcile the statement i n State v. Culver, 941 N.W.2d 134, 144 (Minn. 2020), that a jury is not co mpelled to believe statements merely because they are unco ntradicted, with State v. Al -Naseer, 788 N.W.2d 469, 476 (Minn. 2010), where we includ ed as circumstances proved uncontradicted stateme nts by an eye witness that were not consistent with the verdict? After considering bot h cases, we c onclude that both Culver and Al- Naseer a re consistent with our existing la w on whether a p iece of evidence is a circumstanc e proved for p urposes of our circumstantial-e vidence test. In Culver, the defend ant ar gued there was insuf ficient evidence t o support her conviction of felony deprivation of paren ting rights because the circumstance s proved 9 Our decisio n in State v. Allwine, 96 3 N.W.2d 1 78, 187 (Minn. 2021), does not alter our analysis here. In Allwine, we said the circumstances proved in cluded the fact that a forensic expert found s oftware “needed to acc ess the dark web” on the MacBook Pro laptop computer and the fact that the defend ant “told law enforcement that h e had never used the dark web before.” Id. at 187. V iewed in isol ation, this statem ent could be read to i ndicate that the jury had to believe the truth of the defendant’ s stateme nt that he ne ver used the dark web. But when both parts of our sta tement are viewed t ogether, they refle ct a presumption that the jury found the defen dant lied to law enfor ce ment when he said he never used the dark we b—a finding consistent with the jury’ s guilty v erdict.

18 supported a reasonable inference that t he deprivation of parenting tim e was not substant ial. 941 N.W.2d at 14 3. As part of her argument, the defendant a sserted that the content of online messages she sent to the child’ s fathe r stating she was willing to reschedule the parenting time were part of the circumstan ces proved in her case. 10 Id. at 144. Consistent with the purpose of t he first step of the circumstantial -evide nce test, we protected the legal principle that a ju ry is not co mpelled to belie ve the testimony of a witness just because it is uncontradicted by co ncluding that the circu mstances proved did not include the con tent of the online messages the defendant sent to t he child’ s father stating she was willing to reschedule parenting time. Id. (cit ing Costello v. Johnson, 121 N.W.2d 70, 7 6 (Minn. 1963)). Put differently, whether the defendant spoke the truth when she messag ed a willingness to resc hedule parenting time was a que stion of fact for the jury to resolve. And the absence of any evidence direc tly co ntradicting Culver ’ s statement that sh e was willing to reschedule parenting time did not prevent the jury from wei ghing it against other evidence, including evidence that the defenda nt had previously lied about being out of town at a funeral, and findin g that the statement wa s not true. Id. Having reviewed the supplemental brief ing submitted by the parties and a mici, we conclude that our iden tification of the circu mstances proved in Culver reflects a s ound 10 The amended parentin g - time order in Culve r required that “[a]ll co mmunications between the Parties .. . occur through Family W izard,” wh ich is an o nline application for co -parenting communi cation. 941 N.W.2 d at 137 n.1.

19 application of the f irst step of the circumstantia l -evidence test, which is designed t o protect the jury’ s credibility fi ndings and its weighin g of the evidence. 11 In Al-Naseer, the Stat e charged the defendant with criminal vehicular homicide, which required the Stat e to prove in part that th e defendant knew he ha d been in an accident with a person or vehicle. 788 N.W.2d 469, 47 5 (Minn. 2010). The defendant pleaded not guilty and waiv ed his right to a jury and subm itted his case to the district court judge. Id. at 471. At the bench tr ial, the only eyewitness testified that the brake lights of the vehicle driven by the defen dant “never activate d nor did the vehicle appear to accelerate, but when it was about 150 feet away, it gradually mov ed back onto the road i nto the right lane of traffic.” Id. at 476. The district court found the defendant g uilty of criminal vehicular homicide (leaving th e scene). Id. As part o f its written ver dict, the di strict court, sitting as the trier of fa ct, made the fo llowing factual findings: “Immediately after the accident, Defendant corrected the direction of travel of his vehicle by steering the vehicle in a west- southwesterly direction,” and “[t]he Defend ant did not activate his brakes before or after the accident.” State v. Al -Naseer, No. K1 -02- 1 163, Gener al V erdict of the Court at 5 (Clay Cnty. Dist. Ct. filed Feb. 23, 2005). In reaching its guilty verdict, the district court inferred 11 The Minnesota Boa rd of Public D efense and Minne sota Associatio n of Criminal Defense Lawyers agre e that the content of the text message s in C ulver was properly excluded from the circumstances proved because other fac ts and circumstances in the evidence furnished a reasonable gr ound for doubting the content of the text messages, including the eviden ce that the defe ndant lied about being out of town a t a funeral on t he days in question. Br. of Min n. Bd. of P ub. Def. & Min n. Ass’n of Crim. Def. Law s. as Amici Curiae 12 (“ Amici Br.”).

20 from these factual fin dings that “the correct ive steering action tak en by the Defendant immediately after the a ccident establishes that he was aware of his su rroundings.” Id. On appeal, we included the eyewitne ss testimony about the correctiv e steering and the lack of braking in the circumstanc es proved. Al-Naseer, 788 N.W.2 d at 478. But unlike the district c ourt, we concluded that the circumstances proved, incl uding the corrective steering and the lack of braking, supported a reasonable inference th at the defendant was asleep or otherwise u nconscious when his vehicle hit the victim, and thus the State failed to prove beyond a reasonable doubt one of the elements of the offense, specifically that the defendant knew he had been in an accident wi th a person or vehicle. Id. at 479, 481. W e include d the eyewitness testimony in the ci rcumstances proved not because the testimony was uncontradicted, but because the district court, ac ting as the trier of fac t, believed the eyewitness testimony and an swered relevant questions of fact by expressly finding that the defenda nt corrected the vehicle’ s direction of travel and never a ctivated the brakes. And, we never used the word “uncontr adicted” in our analy sis in Al-Naseer. Thus, consistent with the purpose of the first step of circumstantial -e vi dence test, we included the eyewitness testimo ny in the circumstances proved to protect the district court’ s uni que position to determine t he credibility of the wit nesses and weigh the e vidence before it. 12 12 Firkus asserts that in Al-Naseer, we held that t he defendant’ s version of events was one of the circumstances proved. O ur reasoning in Al- Naseer does not support Firkus’ s assertion. W e only r eferenced Al - Naseer ’ s statement to police — he knew he had hit something but did not know what he ha d hit — in respond ing to the diss ent’ s conte ntion that Al- Naseer ’ s statemen t proved he knew that he hit something when he left the scene of the accident. Al-Nase er, 788 N.W.2d at 4 78 n.3. In our ana lysis of whether the circ umstances proved supported an inf erence that Al - Naseer knew he hit something when he left the scene

21 In sum, we conclude that our decision s in Culver and Al-Nas eer do not contradict our existing law. Inste ad, they both reflect a sound applicatio n of the legal principle that the trier of fact is in a unique positio n to determine the credibility of the w itnesses and weigh the evidence be fore it and that th e first step of our circ umstantial -evidence test protects that legal pr inciple. 13 C. Next, we review our existing jurisprudenc e regarding the secon d step of the circumstantial- evidenc e test. Under the second step of the circumstan tial -evidence test, we consider whether the reasonable inferences that can be drawn fro m the circumstances of the accident, w e did not menti on Al - Naseer ’ s sta tement to poli ce. See i d. at 478. Moreover, since our d ecision in Al- Naseer, we have explicitly held that a defendant’ s alternative version of events is not a circumsta nce proved. See, e.g., Lehman, 3 N.W.3d at 879. 13 Our request for supplemental briefing did not ask the parties or amici to discu ss whether our applicatio n of the first step of the circumst antial - evidence test in Isaac, 9 N.W.3d at 816 – 17, f ailed to protect the unique position of the trie r of fact to determine the credibility of the witnesses and wei gh the evidence before it. Even so, we address this issue because it is raised in the conc urrence. In Isaac, the defendant was indicted wit h first- degree premeditated murder under an ai ding and abetting theory of liability. Id. at 814. The shooter sh ot the victim at approximately 8:04 p.m. Id. W e i ncluded in the circumstances proved c ell phone records that revealed the shooter call ed the defendant “at 8:1 1 p. m., at which po int [the defendant] t urned his car a round and began heading back northwest toward the F ar go - Moorhead area on Interstate 94.” Id. a t 816. Even though t he phone records were inconsistent with the guilty verdict, we properly i ncluded them in t he circumstances proved. Because nothing in the record con tradicted, impeached, or render ed improbable the conte nt of the cell phone records or the testimony of the police officer who reviewed the cell ph one records, the finder of fact in Isaac lacked any record -based reasonable ground for doubting the truth or c redibility of this evide nce, and thus it cou ld not disregard the cell p hone records. Consequ ently, our inclusion of t he cell phone records in the circumstances proved did not infri nge on the unique position o f the trier of fact to determine the credibilit y of the witnesses and weigh the evidence bef ore it.

22 proved, when viewe d as a whole and not as discrete, isolated facts, are consi stent with the hypothesis that the acc used is guilty and inco nsistent with any ratio nal hypothesis other than guilt. Smith, 9 N.W.3d at 565. Durin g the second step, “w e do not defe r to the factfinder but examine the reasonableness of the inferences ourselve s.” Isaac, 9 N.W.3d at 818 (citation om itted) (internal quo tation marks omi tted). “If the circumstance s proved when viewed as a whole, support a reasonable inference ‘ that is inconsistent with guilt, the evidence is not sufficient to support the conviction and we must reverse. ’ ” Id. (quoting State v. Noor, 964 N.W.2d 424, 4 38 (Minn. 2021)). But we will not reverse a conviction “based on mere conjecture.” State v. T scheu, 758 N.W.2d 849, 8 61 (Minn. 2008). Th e second step of the test “does not encr oach on the jury’ s credibility determinations beca use the act of inferring involves the drawing of permissible dedu ctions, not actual fact finding by the jury. ” Harris, 895 N.W.2d at 600–01. Having reviewed and re iterated our exi sting jurisprudence regarding th e second step of the circumstantial -e vidence test, we cons ider other questions on which we requested and received supplemental briefing relating to the interaction between the first step and second step analysis: When a factual determination is not based on direct evidence, but rather an inference drawn from direct evidence, do we exclude from the subset of circumstances proved a n inference that reasona bly may be drawn from direct evidence if the inferen ce is inconsiste nt with the gu ilty verdict or do we include all reasonable inferences in t he set of circumstances prove d because we do not defer to the fact - finde r ’ s choice between reasonable inferences? Does the answer to the prior question ch ange depending on w hether the factual determ ination concerns an ultimate qu estion of fact (e.g., a factual determination about mens rea) or does it a pply to all factual determi nations that are not based on di rect evidence?

23 The Minnesota Boa rd of Public D efense and Minne sota Associatio n of Criminal Defense Lawyers a rgu e in their a mici brief that a court should ne ver include in “the circumstances proved an inference — any inference— because an inference is not a circumstance proved.” Amici Br. 17. This argument aligns w ith State v. Meany, 11 5 N.W.2d 247, 255 (Minn. 1962), in which we explain ed that an “inference” is a permissible deduction t hat can be drawn from the proven or ad mitted facts. Following our careful consideration o f the supplem ental briefing sub mitted by the parties and amici, as well as our existin g case law, we a gree with the Minnesota Board of Public Defense and Minnesota Association of Criminal Defense Lawyers that because an inference is not a circumstance proved, an inference should never be inclu ded in the first step of the circumstantial-evidenc e test. In turn, under the seco nd step of a circumst antial - evidence anal ysis, we view the circumstances proved a s a whole, not as discrete, isolated fac ts, in determining w hether a reasonable inference of guilt can be drawn an d no reasonable infer ence inconsistent with guilt can be drawn. At thi s step, we do not defer to the fact - finder; instead, we independently assess t he reasonableness of t he inferences of guilt and not gui lt. This review does not intrude on the jury’ s credibility determinations becaus e drawing inferences involves evaluating permissible deduct ions from the facts found, n ot making new factual findings. In no case will we reverse a conviction “based on mere conjecture.” T sche u, 758 N.W.2d at 86 1.

24 D. Having reiterate d the law on our circumstan tial -evidence test, we now conduct a circumstantial-evidenc e analysis of the specific facts here. W e begin by winnowi ng down the evidence pre sented at trial by resolv ing all questions of fact in favor of the jury’ s verdict, which results i n a subset of facts that constitute the circums tances proved. See Harris, 895 N.W. 2d at 600. The circumstances proved in this case are as follow s. In 2008, Firkus began t o experience financial problems, which preve nted him from consistently making th e Firkuses’ mor tgage payments. In April 2009, the b ank personally served Firkus with foreclosure documen ts and notice of a sheriff ’ s sale regardin g the Firkuses’ house. Heidi was not served with these documents. I n J une 2009, the ba nk bought the Firkuses’ house at the sheriff ’ s sa le. After the Firkuses failed to redeem the house, an eviction hear ing was scheduled f or March 8, 2010. Although the cour thouse where the March 8 eviction hearing wa s held was only a short walk from wh ere Heidi worked, she did not ap pear at the hear ing. Instead, Firku s appeared by himself an d signed paperwork agreeing to vacate the h ouse by March 22. The Firkuses did not, ho wever, vacate the house on Marc h 22. Shortly t hereafter, Firkus moved his short 20 - gauge double - barrel shotg un and two shotgun shells from their basement to their bedroom closet. On April 9, Fir kus received a letter informing him that o n April 26, th e sheriff would physically remove the Firkuses and their property from the house. O n April 18, Heidi invited friends to play badminton at the Firku ses’ house on the week end of April 30, four days after the sheriff was schedule d to physically remove the Firkuses from their house.

25 On April 2 3, Firkus emailed Heidi about scheduling a meetin g with a realtor and contacting U.S. Ban k about fraud o n their account. Law enforc ement investigate d and determined that the Fir kuses had no active ac counts with U.S. Bank at this time, and law enforcement could find no evidence of the al leged meeting with the realtor. Firkus also emailed Heidi telling her that he neede d to have her all to himself on the nig ht of April 24. On the night of April 24, Firk us and Heidi had burgers delivered, ope ned a bottle of wine, and watched a movie. Even though the sherif f would be physically rem oving them from their house in less than 48 hours, not one room in the house was packed for moving. When they went to bed, Firkus placed his two cellphones on his bedsi de table. The next morning, A pril 25 (the day before the s heriff was scheduled to physically remove the Firkuses an d their property from the house), Fir kus woke up before Heidi. He went to the bedroom closet and loaded h is short 20 - gauge double - bar rel shotgun with two shells. When loaded, the shotgun’ s safety automatically engages. It must be pushed forward and disengage d before the trigger can be pulled. Firkus did not call 91 1 on either of his cellphones, which were sitting on his be dside table. Instead, Firkus woke up Heidi, who was sleeping “like a rock,” told her th ere was somebody fiddling with the fr ont doorknob, and dire cted her to call 91 1 as they headed to their garage. Firkus did not grab either of his cellphones when they left the bed room. The house where the Firkuses lived had a hal f - moon windo w in the front door. From the upstairs landing, a person could s ee if anyone was standing outsi de the front door. The house was equipped wi th a security system w hich the Firkuses had not activated, but they were “pretty religious” about locking the door deadbolts. If the front door deadbolt was

26 not engaged, “ the knob lock could be defeated in 15 seconds,” according to the locksmith who testified at trial. Firkus had his unarmed wife go down the st airs first, straight toward t he front door of the house. As Heidi walked down the stair s, she was talking to the 91 1 operat or on her cellphone. Firkus f ollowed behind her with the loaded shotgun. Heidi told the 91 1 operator, “someon e’ s trying to break into my house.” She did no t describe seeing the intruder or provide any other information explaining why she be lieved someone was tryi ng to break into her house. After she provided her street address, ther e was a period of silence followed by a gunshot, a scream, and then the 91 1 call end ed. Heidi’ s 91 1 call lasted abo ut 35 seconds (20 seconds longer than the locks mith testified it would ha ve taken an intruder to defeat the knob lock). Shotgun fire struck Heidi in her ba ck. Firku s watched as “sh e went straight d own” falling on her face. A second sho t struck Firku s in the leg. The second shot w as fired in a manner consistent with a self-inflicted, tangen tial wound. Several minutes later, police officers arrived at the Firkuse s’ house. Everything appeared calm, the officer saw no suspicious v ehicles or pe ople in the area. The front d oor was open about an inch. Photos of the front door of the Firkuses’ ho use revealed no signs of forced entry or torn paint or wood. A polic e ser geant testified that forcing open the front door with a screwdriver or other tool would h ave torn away “the paint and the wood” on the front door frame, a nd that “the light impre ssions” on the front do or frame appeared to be “old” and painted o ver.

27 I tems on the “wobbly” foyer table — located immediately beside the front door and near where Firkus stoo d when he f ired the shotgun into H eidi ’s b a c k —were undisturbed. The undisturbed items on the foyer table are pictured abo ve in a p hotograph one of the officers took t o document the status of the foyer table, shoe s, rug, and shotgun w hen the officers arrived at the crime scene. E ach room in the house was fully furnishe d, the kitchen was well - stocked, books remained on the shelves, and the bedroom cl oset was filled with clothes on hanger s and shelves. Other than a few empty bo xes in the dining area and a few c ollapsed boxes in the basement, there was no sign the house was ab out to be vacated a day later, on April 26. On Apr il 26, 2010, the day after the murder, Firkus told his father - in - law that he believed the police would never fin d the intr uder. When his fat her -in- law s uggested the police might pull fingerprints of f the barr el of the shotgun, Firkus “immed iately” interjected that the intruder had worn gloves. Firkus’ s brother -in- law later testified that Firkus appeared “oddly almost giddy or carefr ee” following Heidi’ s d eath. T wo days after Heidi’ s death, the police conducted a “s ound test” on the Firk uses’ house around 6:15 a.m. T wo officers were ups tairs with a video recorder while one officer downstairs fiddled wit h the inner doorknob and then the scr een porch door. In the video recording, the sound of the doorknob is ina udible from the bedroom and the bathroom; it is faintly audible from the top of the stairs bet ween the bedroom and th e bathroom. Sounds from the screen porch door were completely inaudible. The sergeant explained tha t the sound on the video recorder reflected what he could hear at the time police conducted the test.

28 Having identified the circumstances prove d, we now consider whether the reasonable inferences that can be drawn fro m the circumstances proved, when viewe d as a whole and not as di screte, isolated facts, are consistent with the hypot hesis that the accused is guilty and inconsistent with any rational hy pothesis other than guilt. When so viewed, we conclude that they support only one reasonable inference — Fir kus caused Heidi’ s death with premeditation and intent to e ffect her death. The alternativ e hypothesis Firkus advances —that there was an intru der — is not reasonable consider ing the lack of fresh marks on the front door, the undisturbed items on the “wobbly” table next to where Firkus claimed the struggle with the intruder occurre d, and the sound test that revealed that ef forts to defeat the front door ’ s knob lock were inaudible from the bedroom and the bathroom. Serving as a bac kdrop to these circumsta nces was the Firkuses’ dire f inancial situation, of which Heidi appeare d entirely unaware. A fo rced eviction was scheduled for the day after Heidi’ s death. Y et not a single box was pa cked for moving, and Heidi planned for friends to visit the house the following wee kend. And, on the morni ng of Heidi’ s death, Firkus sent Heidi downstairs ahead of him, withou t bringing his cell phones along, follow ing behind with the shotgu n that he had recently moved up to the bedroom and loaded that morning. Absent any intruder, Firkus’ s undisputed a ctions, which includ ed loading the shotgun, falsely telling Heidi there was an intruder and direct ing her to call 91 1 on her cellphone, directing He idi to walk in front of him toward the alleged danger of an intruder without taking his cell phones with h im, following behind her as the y descended the steps, firing a shotgun shell into her back when she reached the kitchen d oor and then firing a

29 self- inflicted wound into his ow n leg, supp ort only one reas onable inferen ce—Firkus caused the death of Heidi with preme ditation and intent to e ffect her death. Thus, the State presented sufficient evidence to s upport Firkus’ s convi ction of first - degree pre mediated murder. E. In our circumstantial - e vidence analysis, we excluded four discrete facts that Firkus argues should be included in the circumstances proved: (1) there were compression marks on the front door fram e consistent wit h someone attempting t o pry open the knob l ock, (2) B.O.’ s statement that he heard a muffled voice say, “Y ou shot her,” or “Y ou shot me,” (3) the truth of Heidi ’ s statement, during the 91 1 call that Firkus directed her to make, in which she reported th at an intruder was trying to bre ak into the hou s e, and (4) the FBI ’ s trajectory calculations reflected in th e FBI’ s di gital model of t he crime scene which Fi rkus asserts were “comple tely consistent” with the forensic evidence. For the following reasons, we conclude that the door frame marks, B. O.’ s statement that the muffled voice said, “Y ou shot her” or “Y ou shot me,” an d H eidi’ s s tatement that there was an intruder a re not part of the circumstances pr oved. The jury was req uired to evaluate the credibi lity of the witnesses regarding this evidence and weigh this testim ony against other evidence. More specifically, d uring deliberations, th e jurors faced these questions of fact rela ting to each of those factual issues: (1) did the ser geant accurately testify that the door fra me marks were old, (2) did B.O. hear Firkus say, “Y ou shot me, ” or “Y ou shot her,” (3) was the c ontent of the sta tement made b y Heidi during her 91 1 call regarding an intruder true, and (4) whether the FBI’ s digital model of the crime scene was

30 probative of whether there was an intruder. The record contained evidence that called int o question each of these statements, inclu ding the sergeant’ s admiss ion that it was “possible” that the marks were new; B.O’ s ever- changing account of what he heard; and o ther evidence, discussed in more detail below, that makes Fi rkus’ s account of an intruder highly improbable. Under our precedent, we must assume the jury deter mined the sergeant’ s testimony that the marks were old was credi ble; assume th at the jury d etermined that B.O. ’ s testimony provided no weight as to wheth er there was an intruder given the lack of detail and his inconsistent s tatements; assume the jury dete rmined that the content of the statement made by Heidi was not true; and assume the jury de termined that the FBI’ s digita l model was not probativ e of whether there was an intruder. The sergeant testified that the marks on the door were old, but con ceded on cross- examination that it was possible, although not probable, that the marks were new. The marks in question could not be both old and new. The jury, i n its unique position to determine the credibility of the sergeant and weigh the evidence before it, was free to conclude that the sergeant’ s opinion that the marks were old, whic h was based on his training and experience, was not called i nto question by the theoretical possibility adduced on cros s-examination t hat they were n e w. The circumstance proved based on the ser geant’ s testimony and other e vidence consistent wit h that testimony is the refore that the marks were old. Similarly, although B.O. coul d “not clearly” make out what the muffled voice sai d, he “thought” he heard a man say, “Y ou sh ot her” or “Y ou shot me.” B.O. made similar statements to a new spaper reporter late r that same day. B.O. conceded that he first tho ught

31 the muffled voice was a man, but later he th ought the muffled voice was a woman. Before trial, B.O. listened for the first time t o the recording of the 91 1 call that Firkus made about a minute after Heidi was shot. When he hear d Firkus’ s v oice in that 91 1 call, it sounded like the muffled voice he heard on April 25. B.O. added t hat the statement he made to th e newspaper reporter, including his statemen t that he heard the muffled voice say, “Y ou sh ot her” or “Y ou sh ot me,” were consistent with that 91 1 call. But the statements “Y ou shot her” and “Y ou shot me” do not appear in the recording or transcript of the 911 call that Firkus placed about a minute after Hei di was shot. So the jury needed to grapple with the inconsistency in B.O.’ s testimony, and in its unique position to determine the credibility of B.O’ s testimony and weigh the evidence before it, the jury was free to conclude that the B.O.’ s testimony, including his st atement that he heard the muf fled voice say, “Y ou sh ot her” or “Y ou shot me,” was not credible. See Moor e, 438 N.W.2d at 108 (explainin g that in evaluating the credibility of a witne ss, a jury may consider th e “past inconsistent statements” of the witness). The circu mstance s proved therefore do not incl ude B.O.’ s statement that the muffled voice said, “Y o u shot her” or “Y ou sh ot me.” As for the contents of Heidi’ s 91 1 call, the record contains other evidence that allowed the jury to disregard the call’ s content on the grounds that the truth of the contents was improbable. Cf. Culver, 941 N.W.2d at 1 44. This is especially true because there is a period of silence, not the sounds of a struggle, before Firkus shoot s Heidi in the back. 14 14 T o the extent t hat Firkus argues the absence of any sounds of a struggle can be explained away by an ar gument that Hei di’ s c ellphone was “likely” not on speaker mode, his argument fails because there is no evidence in the record about w hether her phone wa s

32 Other evidence that the jury weighed supports a factual determination, consistent with the verdict, that the conte nts of Heidi’ s 91 1 call merely reflect her belie f that an intr uder was present rather than t he actual presence of an intruder. This inc ludes evidence tha t (1) Firkus decided to wake Heidi, who was slee ping like a rock, and instruct her to call 91 1 rather than report the presen ce of an intru der by calling 911 from either of hi s own cell phones on the bedside table, (2) Firkus allow ed his unarmed wife to go do wn the stairs first, straig ht toward the front door of the house, (3) sub stantially more time elapsed bet ween the time Firkus claimed he heard someone fid dling with the doorknob and wh en he passed by the front door than the 15 seconds required to defeat the knob loc k, and (4) police found the front door open by only about an inc h upon their arrival. The circumstance proved based on Heidi’ s 911 call is that Firkus falsely t ol d her there was an intrud er and direct ed her to call 91 1. As for Firkus’ s reliance on the FBI’ s trajectory calculations, the FBI specialist testified that the presence or absence of an int ruder had no effect on the calculations, and therefore th e trajectory calculations are neutr al. The speciali st testified that the digital model created in 2020 i ncorporated data fro m the ballistics report that revealed that Firkus was 4 to 9 feet behind his wife when his finger pulled the trigger of the shotgun. The specialist fu rther testified that the digital model did not i nclude an intruder beca use the presence of one or m ore intruders would n ot change any of the t rajectories calculated or was not on speaker mode. See State v. Co lgr ove, 996 N. W.2d at 1 50 n.5 (explaining that where an alternative in ference has no support in the record, it is speculative; an d holding that an inference that a knife was pre - bent was unreasonable because there was nothing i n the record from whic h the inference could be drawn).

33 here. 15 The digital model thus provided no probative evidence on whether there was an intruder. In sum, we exclude the four discrete fact s Firkus argues should be included in the circumstances proved because the jurors w ere required to evaluate the credibility of the witnesses and weigh the evidence, which includes evidence con tradicting these allege d facts. F. The separate writings authored by Justice Thissen (“the concurre nce”) and the Chief Justice (“the concurre nce/dissent”) adopt ap proaches that focus on whether a p iece of evidence is actually or theoretical ly inconsiste nt with the guilty verdict. Both lose sight of the purpose of the winnowing - down proces s in step one of a circumstantial -evidence analysis— protecting a jury’ s unique position t o determine the credibi lity of the witnesses and weigh the evidence before it. The concurrence’ s approach u ndermines the jury’ s important role by, in effect, allowing an appellate court to sit as a 13th juror, reassessing a witness’ s credibility and reweighing th e evidence. By contrast, th e concurrence/dissent’ s 15 In a typical case involving trajectory calculations, there is a disp ute about the position of the victim’ s body when the shot w as fired or the location from which the shot was fired. See, e.g., State v. Hill, 801 N.W.2d 646, 650, 656 (Minn. 20 1 1) (concludin g that the bullet trajectory and wounds contra dicted the defendant’ s claim that the victim was standing and facing h im at the time of the shooting); State v. Pears on, 775 N.W. 2d 155, 162 (Minn. 2009) (concluding that b ullet trajectory and wounds were consistent with the eyewitness testimony t hat the defendant was outside the van when he fired the fir st shot and inconsistent with the defendant’ s te stimony that he was inside the van when he fired the first shot in self - de fense). Here, however, there is no dispute about the lo cation or position of Heidi’ s body when she was s hot in the back or Firkus’ s loc ation or stance when his finger pulled the tri gger of the shotgun.

34 approach deprives the jury of its unique p osition to determine the credibility of the witnesses and weigh th e evidence before it. For example, the concurrence contend s the circumstances proved include Firkus’ s statement that he was in the bedroo m when he heard the doorknob jig gle and his statemen t that he was at the top of the stairs whe n he heard the d oorknob ji g gle, even t hough “ the content of Firkus’ s statements confli ct s— meaning that both ca nnot be true.” (Emphasis removed.) Then, the concurrence resolves the questio n of fact abo ut the jiggling of the doorknob, finding that “Firkus’ s claim that he heard an i ntruder jiggling the do or is dubious given his con tradictory statements on the subject. ” Becaus e resolving factual dispute s arising from contrad ictory statements lies squarely within the j ury’ s u nique role of assessing witness cred ibility and weig hing the evidence, see Moor e, 438 N.W.2d at 10 8 (explaining that a jury may consider a witness ’ s “interest and past inconsistent statements” when evaluating credibility), the concurren ce’ s proposed approach — which includes such disputed facts among t he circumstances prove d at step one of the circumstantial - evidence test and then finds them “dubious” (that is, not credibl e) during the appellate court’ s de novo review at s tep two — fails to preserve the jury’ s role and permits the appellate court to improperly reweigh the evidence on appeal. The concurrence/disse nt responds to thi s concern about ap parent appellate -co urt fact -finding in the concurrence, observin g that “ [t]he concurrence conducts an individualized credibility assessment of every statement Firkus gave to police, par ticularly

35 the suspect’ s description. ” 16 Like the concurrence, the concurrence/dissent contend s the circumstances proved i nclude Firkus’ s stateme nt that he was in the be droom when he heard the doorknob jiggle and his statement that he was at the top of the sta irs when he heard the doorknob ji ggle. 17 But unlike the concu rrence, the concurrence/ dissent does not re solve 16 In discussing the inconsistent stateme nts Firkus made during his police interview, the concurrence/dissen t relies on State v. W eb b, 440 N.W.2 d 426 (Minn. 198 9), and State v. Race, 383 N.W.2d 6 56 (Minn. 1986). In We b b, we viewed the inconsistent statements related to the ownership of a bedspread in a light most favorable to the conviction and concluded that W ebb owned the beds pread found near the victim’ s body. 440 N.W.2d at 430– 31, 431 n.2. In Race, we discus sed the inconsistent statemen ts about the number of life rafts and then wrote, “[o]n conflicting evi dence, the jury, whose task it was, concluded there was only o ne life raft on board.” 383 N.W.2d at 659, 662. Consistent with the legal princip le that the jury is in a unique p osition to determine the credibi lity of the witnesses and weigh the evidence before it, our analysis of the inconsistent st atements in W ebb and Race protected the unique position of the jur y to determine the credibility of the witnes ses and weigh the evidence before it. In discussing the motive evidence, the c oncurrence/dissent relies on Bernhar dt v. State, 684 N.W. 2d 465 (Minn. 2004), and State v. Hughes, 749 N.W.2d 307 (Minn. 2008). I n Bernhar dt, we said the dissent pla ced “undue emphasis on evidence of motive” and that without somet hing more, the motive evidence was i nsuf ficient. 684 N. W.2d at 479. H ere, our analysis does not place undue emphasis on the motive evidence and instead relies on several t ypes of other evidence, including physical evide nce and inconsistent statement evidence. In Hughes, we c oncluded that the evidence tha t Hughes’ s marriage had deteriorated to the point of divorce, that Hughes did not believe i n divorce, and that he feared losing custody of his children “ provide [d] a basis for the jur y to infer [Hughes’ s ] motive for killing his wife was to prevent he r from leaving him and taking the childre n.” 749 N.W.2d at 314. Because our decisi on in Hughes did not set a minimum thres hold for motive evidence and because the State need n ot prove motive, see State v. Andersen, 784 N.W.2d 320, 331 (Minn. 2010), the concurrence/dissen t’ s assertion that t he “motive evidence is thinner” in Firkus’ s case than it was in Hughe s’ s case does not alter our analysis. 17 In fact, the concurrence/dissent es sentially includes all th e evidence presented at trial (including Firkus’ s self - servin g statements that there was an intruder) as the circumstances prove d. Ultimately, the concurrence/ dissen t is concerned that th e court is turning a “blind eye” to any rational inference other than guilt becau se we fail to evaluate “the evidence as a whole.” But under the first step of a circumstantial evidence analysis, we must “winnow dow n the evidence presented at trial by reso lving all questions of fact in

36 this factual dispute d uring the second step. Instead, i t observes th at “[i]f a reasonable fact - finder wer e to infer, for e xample, that Fir kus was at the top of the stairs, then it was also reasonable that he could hear someone fiddling with the doorknob.” (Emphasis added.) In effect, the analysis of the concurrence/dissent le aves the factual dispute about whether Firkus was in t he bedroom or at the to p of the stairs unresolve d (thereby depriving the jury of its unique p osition to determine the credibility of the witnesses an d weigh the evidence before it). In doing so, the concurrence/dissent fail s to resolve all questions of fact in favor of the jury’ s ver dict during the first step. The conc urrence/dissent then identifies and relies on the competin g inferences that can be drawn de pending on which of the contradictory state ments is true. In doing so, the concurren ce/dissent neglects to view the reasonable inferen ces that can be dra wn from the circu mstances proved as a whole, which the second step r equires, and instead dra ws inferences from dis crete, isolated facts. W e decline to adopt the approach es employed by the concurr ence and the concurrence/dissent be cause they erroneously focus on whe ther a piece of evidenc e is actually or theoretically inconsistent with the g uilty verdict. Instead of protecting the jury’ s unique position to dete rmine the credibility of witnesses and weigh t he evidence before it, those approaches depri ve the jury of that posit ion. favor of the jury’ s ve rdict,” which results in “a subset of facts that constitute ‘the circumstances proved.’ ” Harris, 895 N.W.2d at 600 (quoting St ate v. Hawes, 801 N.W.2d 659, 670 (Minn. 2011)). This step protects the jury’ s im portant and unique po sition to determine the credibili ty of the witne sses and weigh t he evidence before it. Our c areful application of this w ell - established law pr otects against wrongf ul convictions while respecting the jury’ s unique role in asse ssing witness credibility and w eighing the evidence.

37 * * * I n sum, we have applied our long - standing t wo - step test to d etermine whether th e circumstantial evidenc e proves that Firkus c aused Heidi’ s death wi th premeditation and intent. In the first step, we winnowed down the evidence by resolvin g all questions of fact in favor of the jury’ s verdict to determine the circumstances proved. This protected the jury’ s unique position to assess the credibili ty of witnesses, weigh the evidenc e, and accept some but not all parts of a wit ness’ s testimony. W e rejected a n argument that our decisions in Culver an d Al-Nasee r altered this principl e. In the second step, w e considered whether the reasonable inferenc es drawn from the circumstances prove d, whe n viewed as a whole and not as discrete, isolated facts, were consistent wit h a hypothesis of guilt and inconsistent with any r ational hypothesis othe r than guilt. Ultimately, we concluded that the only reasonable inference that ca n be drawn from the circums tances proved, when viewed as a whole and not as di screte, isolated fac ts, is that Firkus c aused Heidi’ s death with premeditation and intent. II. This case also raises the question of w hat standard the district court s hould apply to motions for judgment of acquittal that are mad e and decided before the verdict is returned. After the State re sted its case, and again after all the eviden ce was sub mitted, Firkus moved for a judgme nt of acquittal, which t he district c ourt denied before the verdict was r eturned. In denying both motions, the district court appl ied the direct - evidence standard. Citing the court of appeals’ deci sion in State v. Sam, 859 N.W.2d 825, 830 (Minn. App. 2015), Firkus argues the district court shoul d have applied the circumsta ntial- evidence standard that

38 appellate courts use when reviewing t he suf ficiency of circumstantial evidence after a jury has returned a guilty ve rdict. In Sam, the court of appeals held that district courts mus t apply the circumstantial- evide nce test to motions for judgment of acquittal when the State’ s case rests on circumstantial evidence. 859 N.W.2 d at 831. But unlike Firkus’ s motions for judgment of acquittal, which were made and decided before the ver dict was returned, the motion in Sam was made after the jury returned a guilty verdict. Id. at 821. For the reasons below, we conclude that this temporal distin ction is material and that a district court should apply the direct - eviden ce standard in consider ing a ll motions for a judgment of acquittal that are made and deci ded before the verdict i s returned. Before the adoption of the Minnesota Rules of Criminal Procedure in 1975, the mechanism to seek dis missal of a case durin g trial before submission to the jury was a motion for a direc ted verdict, mirroring the ex isting Federal Rules of Criminal Procedure. At that time, we descri bed the standard for d eciding a defendant’ s motion for a directed verdict as whether “there was evidence fro m which the jury coul d reasonably conclude that the defendant particip ated in the crime.” State v. Klotter, 14 2 N.W.2d 5 68, 572 (Minn. 1966). This language also mirrored the federal standard for directed verdict motions. Upon the adoption of the Minnesota Rules o f Criminal Procedure, motions for a judgment of acquittal replaced motions for a directed v erdict, although subst antively they are the same. Minn. R. Crim. P. 26.03, subd. 17(1) (1976) (“Mo tions for directed verdi ct are abolished and moti ons for judgment of ac quittal shall be used in their place. ”). The

39 new criminal rule again mirrored the language of the federal rule, both in timing and in substance. Cf. Fed. R. Crim. P. 29. Like the federal rule, a moti on for a judgment of acquittal may be made at different times. Minn. R. Crim. P. 26.03, subd. 18. First, it may be made at the close of the prosecution ’ s ca se, in which case a district court must rule on the motion and is prohi bited from reserving its ruling. Id., subds. 18 (1)(a), 18 (2); State v. Thomas, 891 N.W.2d 6 12, 616 (Minn. 2017). Second, the motion ma y also be made at the close of the defendant’ s case, in which case the district court “may reserve ruling on the motion, submit the case to the jury, and rule before or after verdict.” Minn. R. Crim. P. 26.03, subd. 18(2). F inally, a motion for a judgment of acquittal may be made in a post- verdict motion, fil ed within 15 days after the jury is discharged. Id., subd. 18(3)(a). If the court grants a motion for a judgment of a cquittal after a guilty verdict, the court must make written findings s tating the reasons. Id., subds. 18(2), 18 (3)(c). Under the rule, a motio n for a judgment of acq uittal must be granted “ if the evidence is insufficient to sustain a conviction.” Id., subd. 18(1)(a). Although the text of the rule and our case law use the word “insufficient,” we have not previousl y instructed district courts to apply the appellate standar ds for reviewing the sufficiency of the evidence after a verdict has been returned in consi dering motions for a judgment of acquittal during trial. Instead, we have more generally described t hat “[t]he test f or granting a motion for a directed verdict is whether the eviden ce is sufficient to prese nt a fact q uestion for the jur y’ s determinatio n, after viewing the evidence an d all resulting inferences in favor of the state.” State v. Slaughter, 6 91 N.W.2d 70, 74 – 75 (Minn. 2005). Just las t year, we repeated this standard in a case involving circums tantial evidence. Allwine, 994 N.W.2d at 537. W e

40 stated that a “district court may only deny the motion when the evi dence is sufficient to present a factual question for the jur y.” Id. (emphasi s added). The corollar y of this directive is that a moti on must be granted wh en no reasonable jury c ould find a defendant guilty, even when vie wing the evidence in the light most favorable to the verdict. W e did not say that the distric t court must use the t wo - step circumsta ntial - evidence test whe n deciding a motion for a judgment of acquittal i n a circumstantial- evid ence case. Having weighed the ar guments of the parties and the a mici, we conclude that in the context of a motion for judgment of acqu ittal that is made and decide d before a verdict is returned, the standard proposed by Firkus, and adopted by the court of appeals in Sam, is unworkable for two re asons: first, the lo gical impossibility of applying the t est prior to a verdict; and second, th e mandatory time restr aints in the district court. As discussed previous ly, the first ste p of the circumstant ial - evidence review test requires a court to win now down the evidenc e presented at trial by resolving all questions of fact in favor of t he jury’ s verdict. W e ag ree with amici Minnes ota Board of Public Defense and Minnesot a Associat ion of Criminal Defen se Lawyers that “[u] ntil such a verdict is returned, it is difficult if not impossible to measure whe ther the evidence would support it.” Amici Br. 19. Firkus does not explain how a district court is expected to winnow down the evidence by reso lving all q uestions of fact in favor of the verdict before there is a verdict. Further, t he proposed s tandard is p articularly unworkable for motion s made at the close of the prosecution’ s case when the dist rict court mus t rule on th e motion and ma y not

41 reserve its ruling. 18 The type of review we now conduct in these cases on appeal is simply not possible witho ut the benefit of (often thousands of pages of) trial transcript an d extensive briefing by t he parties. Requiring a district court to condu ct this anal ysis in the midst of trial is impract ical. Our recent decisi ons illustrate that reaso nable jurists disagree about what constitutes the circumstances pr oved and whether the evidence is enoug h to sustain the c onviction. 19 This case highlights the impracticality of expecting a district court to undertake such an analysis dur ing trial or before deliber ations begin. 20 Instead, we conclude that when ask ed to rule on a motion for a judgment of acqu ittal before a verdict has been returned, a district court sho uld view the e vidence in t he light most favorable to the State and determ ine whether a jury could reasonably conclude th at the defendant was guilty— the general sufficiency -of-the- e vidence standard, 21 not the heightened 18 When a defendant mo ves for a judgment of acquittal at the close of the State’ s evidence, the district c ourt must hold the Stat e to its burden. The district court must rule and may not reserve its ruling until after the jury deli berates. Minn. R. Crim. P. 26.03 subd. 18(2). That is because, “[g]i ven the presumption of innocence a nd the state’ s burden to prove the offense, a defendant has no obligation to presen t any evidence and should not be put at risk of providing evid ence that fills gaps in the state ’ s case.” Slaughter, 691 N.W.2d at 75. A defendant cannot be co mpelled to put o n a case when the State has not met its burden. 19 On appeal, the parties at times even disagr ee about what stand ard of review applies in a challenge to the sufficiency of the evidence. E.g., State v. Horst, 880 N.W.2d 24, 39 (Minn. 2016); State v. Silvernail, 831 N. W.2d 594, 598 (Minn. 2013). 20 Although applying the standard to a post - ve rdict motion after brie fing may be reasonable, that issue is not before the court a nd need not be decided here, and attempting to apply it earlier woul d be infeasible. 21 Likewise, the federal standard is “whether, after viewing the evidence in the light most favorable to the p rosecution, any rational trier of fact could have found the essential

42 circumstantial- evidenc e test — regardless of t he type of evidence pr oduced at trial. If, at the close of the Stat e’ s case, no fact q uestions remain for the jury to d ecide — that is to say, the defendant could not be found guilty even when view ing the evidence in the light most favorable to the verdict, the motion must be gr anted. This standard addresse s the central concern of a motion for a judg ment of acquittal, which is that a judge has the powe r to prevent a case fro m reaching the jury when the evidence is clearly i nsufficient, while not infri nging on the jury ’ s critical role as fact -finde r. Ruling on a motion f or a judgment of acq uittal requires such a balance: precludin g deliberation on cases t hat do not merit consid eration by a jury becau se of a clear lack of evidence while allowi ng the jury to serve its role as fact - fi nder, a vital function in our criminal justice syste m that provide s transparency and legitimacy to a ver dict, whether guilty or not guilty. W e believe the decision we announ ce today is the most workabl e solution for this issue that is also consistent with the law. Given t hat the motions for judgment of acquittal were made by Firkus and decided by the district court before a ver dict was returned, we conclude that the district court did not err in applyin g the sufficiency- of - the-evidence test for di rect evidence when it d enied the motions. CONCLUSION For the foregoing re asons, we affirm the decision of the di strict court. Affirmed. elements of the crime beyond a reasonab le doubt.” Jackson v. V ir ginia, 443 U.S. 307, 319 (1979) (emphasis adde d).

C-1 CONCU RRENCE THISSEN, Justice (con curring). I concur with the court’s decisi on. I agree w ith the court’s analysis and conclusion in Part II of the opinion. I write separatel y because I disagree with the approach to resolving circumstantial - evidence cases that the court adopts. In my view, the court’s approach is insufficient to ensure consistent ap plication of the circumstantial - evide nce test to different defendants. In addition, the court’s approa ch collapses the circu mstantial - evidence test into the direct - evidence test in all but name. A c cordingly, under the precedent the court sets in this case, continu ing to require litigants and cour ts to go through additional hoops of applying the circumstantial - e vidence test seems hard to justify. See State v. Colgrove, 996 N.W.2d 145, 158 n.4 (Minn. 2023) (Thi ssen, J., dissent ing) (explaining that better jury instructions would eliminate the ne ed for the circumstanti al-evidence test). Based on my rev iew of our precedent, w hich the court ackn owledges has pro duced inconsistent results, an d to preserve t he purpose of the circumstanti al - evidence test as a “heightened standard” intended to protec t Minnesotans from facing loss of liberty on anything less than pro of beyond a reasonable doubt, I conclude that a court applyi ng the circumstantial- evidenc e test should foll ow several clear steps. The se steps are straightforward to appl y and find support in t he language we have u sed in our cases, th e outcomes in previous circumstantial - eviden ce cases, and the re ason we adopte d the circumstantial-evidenc e test as a framework for appellate review. First, the court should determine whether ther e is direct evidence for each element of the crime charged. If there is, the court should apply the direct- evidence test.

C-2 If, however, there is no direct eviden ce for one or more elements of the crime charged, the court should apply the circumstan tial - evidence test. In applying that test, the court should first dete rmine the evidence it may consi der in assessing an i nsufficient evidence argument. This evidence — which we call “the circumstances prov ed” —is necessarily different fr om the evidence the court considers in a direct evidence case. Circumstances proved include the fol lowing: (1) evidence that is c onsistent with t he jury verdict; (2) uncontradic ted evidence from whic h a jury could have drawn both an in ference consistent with the guilty verdict (or a fact necessary fo r a determina tion of guilt) and an inference consistent wi th a not guilty verdict; and (3) evide nce that supports an infe rence inconsistent with a guilty verdict exce pt where (a) the evidence is specifically contradic ted by direct evidence that supports a n inference consistent with the guilty verdi ct, or (b) the court has confidence the jury was in a positi on to make a credibility assessment of the conflicting evidence. Once the court identifies the circu mstances proved, it should co nsider whether th e circumstances proved, when viewed as a who le, support a reasonabl e inference that the defendant is guilty a nd are inconsistent with any other reasonable inf erence except that of guilt. This inquiry is known as the seco nd step of the circumsta ntial - evidence test, and i t is the critical step f or holding the State t o its obligation to prove a defendant’s guilt bey ond a reasonable doubt. Applying the circums tantial - evidence tes t in this case, I conclude that Firkus’s conviction must sta nd. The circu mstances proved a s a whole su pport no reasonable inference except that of guilt.

C-3 A. To convict a defendant of first - degree premeditated murder, the Stat e must prove that the defendant “cause[d] the death of a hu man being with premeditation and with int ent to effect the death of the person or of a nother.” Minn. Stat. § 609. 185(a)(1). To convict a defendant of second - degree intentiona l murder, the State must prove that the defendant “cause[d] the death of a human being with i ntent to effect the dea th of that person or another, but without premeditatio n.” Minn. Stat. § 609.19, subd. 1 (1). The State must prove each element of an offense b eyond a reasonable doubt. State v. Peterson, 673 N.W.2d 482, 48 6 (Minn. 2004). The question befo re us is wheth er the State produce d sufficient evidence to prove beyond a reaso nable doubt that Firku s intended to effect Heidi’s death and did so with premeditat ion. In assessin g the sufficiency of the evidence — the existence of fact s necessary for co nviction — to prove the elements of a crime we apply either the direct - evid ence test or the circ umstantial -evidence test to each element, depending on the n ature of the evid ence the State produ ced to prove t hat element. State v. Peterson, 910 N.W.2d 1, 6–7 (Minn. 2018). B. In cases where the State offered direct evidence — evid ence based on personal knowledge or observati on — of the facts necess ary for a finding of guil t (i.e., an element of the crime), we view all the evidence in a light most favorable to the guilty verdict and assume the fact - finder disbelieved any evide nce conflicting with that verdict. State v. Jones, 4 N.W.3d 495, 500 (Minn. 2 024); State v. Ortega, 81 3 N.W.2d 86, 100 (Minn. 2012). “We will not overturn the verdict if the jury, acting with re gard for the presumption

C-4 of innocence and the State ’ s burden of proof beyond a reasonable doubt, could [have] reasonably conclude [d] that th e defendant was guilty.” Jones, 4 N.W.3d at 502; see als o State v. Huss, 506 N.W.2d 290, 292 (Min n. 1993) (stating that our sufficiency of the evidence inquiry wh ere the State offered direc t evidence of t he crime “i s limited to whe ther, given the evidence as i t was presented in cou rt, a jury could ha ve reasonably concluded th at appellant was guilty beyond a reaso nable doubt, ” and reversi ng the defendant’s conviction because the State did not satisfy tha t standard). Direct evidence provi des a concrete conne ction to the facts necessary f or a determination of guilt that explains the fact - finder’s verdi ct. Where a witness provides direct evidence, their personal knowledge or observation s relate directly to the facts necessary to determine guilt. Accordingly, in those cases we can be confident in assuming that a fact - finder that found a defen dant guilty credited and based i ts determination on th e direct evidence of the f acts necessary to det ermine guilt and rejec ted contrary evidence. In contrast, where the State offered no di rect evidence of facts n ecessary for a determination of guilt, the fact - finder must ha ve relied on circumsta ntial evidence. That is, the jury must have made a leap from fa cts shown by direct evidence and drawn inferences indirectly f rom those facts to determine whether a fact necessary for guilt existed. In short, the connection between an y particular piece of evidence a nd the facts necessary for a de termination of guilt is more attenuated in circu mstantial-eviden ce cases. In such cases, it is not always clear which fac ts the fact -finder credited and which it did not. The fact - finder necessarily cred ited some combinatio n of evidence presented to a rrive

C-5 at its verdict, but we ar e less certain about wh ich specific evidence it credited, an d so do not automatically re ject all facts inconsiste nt with the guilty verdic t. This is important beca use our historical conc ern in circumstantial e vidence cases, where determin ing a f act necessary for guilt requires an inferential leap, is that the gap between direct evidence and the extrapola tions juries make in findin g a fact necessary for guilt creates greater space for juries to neglect due deliberation a nd instead base their decisions on prejudice, partiality, or hastiness. State v. Tscheu, 758 N.W.2d 849, 869 –70 (Minn. 2008) (Mey er, J., concurring) (outlining the history of the circ umstantial-evidence test both as a requi red jury instruction and as a standard of appellate review); see Sta te v. Harris, 895 N.W.2d 592, 599 n.4 (Minn. 2017) (stating t hat the reason for heightened review in circumstantia l - evidence cases i s con cern over the inference s the jury makes from facts proved); Colgrov e, 996 N.W.2d at 158 (Thissen, J., dissenting). Consequently, when the State relie d solely on circumstantial evidenc e to establish facts necessary to find a defendant guilty, we apply a “heightened” two - step test to asses s whether the State prove d the defendant guilty b eyond a reasonable dou bt. Jones, 4 N.W.3d at 500; State v. Isaac, 9 N.W.3d 812, 815 (Minn. 2024). I n doing so, we d o not defer to inferences the fact - finder drew but exa mine the reasonableness of inferences supporti ng the verdict ourselves. Isaac, 9 N.W.3 d at 818. Because we cann ot be sure wh ich evidence the jury believed or disbelieved in case s built on circu mstantial evidence, the first step of the circumstantial - evid ence test requires us t o identify the circumst ances proved. Id. at 815. We do so by c onsidering all the evi dence presented and winnowin g it down,

C-6 excluding evidence w e are sufficiently confident the jury did not believe when it determined that the State proved facts necessar y for conviction beyond a reasonable doubt. 1 The State argues that in applying the firs t step of the circumstantial - evidence test we should assume the j ury found the State’s e vidence credible and disregard a ny evidence that could support a co nclusion other than gui lt. The court adopts th is approach. By th i s method, we include in the circumsta nces proved only evidence that i ndisputably suppor ts 1 In Harris, we faced a frontal challenge to the prop riety of the c ircumstantial - evidence te st on the ground that it undermined o ur traditional deference to jury determinations. 895 N.W. at 597. In respon se, we confusingly ple dged to reincorporate appellate respect for jury credibility determi nations, id. at 600, int o a test born out of incredulity about j ury determinations, wher e the only evidence of a fact necessary to guil t is a guess. I use the word confus ingly because, by inser ting guardrails to protect jury credibility determinations in step one of the circumstantial - evidenc e test, we essentially render meaningless the lack of deference we purportedly give to jury in ferences in step two of the test. In doing so, we distanced ourselves, obscured, and today u ltimately undermine the original concern t hat motivated us to a dopt the circu mstantia l- evidence test —our concern that juries may be less deliberate in applyi ng the beyon d -a-reasonable-doubt standard in circumstant ial - evidence cases. Our struggles with, and c ontortions in appl ying, the circumstantial - evidence test in the interve ning years are the result of that underlying tension. I leave for another day the que stion of whether our decision to adopt a circumstantial- evidenc e test a few decades ago was correct. I d o, however, make two observations. Firs t, the idea that appellate courts ac t as so -called 13th jurors, see infra note 5, is implicit in the circumstantial - evid ence test, and, in light of that foundational decision, moral pan ic about that rea lity seems overstated. Second, our concern tha t juries may not rigorously appl y the beyond -a-reasona ble- doubt burden of pro of in circumstantia l - evidence cases has a long histor y. Minnesota courts hi storically instr ucted juries that “to authorize a conviction, the circumstances should not only be consisten t with the prisoner ’ s guilt, but they must be inconsistent with any o ther rational conclusio n.” State v. Johnson, 35 N.W. 373, 376 (Mi nn. 1887). In State v. Turnipseed, 297 N.W.2d 308, 313 (Min n. 1980), we held tha t this jury instruc tion language is not constitutiona lly required, but we have never said this reminder to the jury is improper. Our j urisprudence of differing appellate tests for direct - evidence and circums tantial - evidence cases — and our affirmativ e choice to step into the role of 13th juror in a limited way — is in large part a response to our decision to let this hist orical jury instruction f ade away.

C-7 a guilty verdict and ex clude any evidence tha t possibly supports a d etermination of not guilty. I reject such a constricted reading of the first step of the test because it coll apses the two- st ep analysis and makes the cir cumstantial - evidence test in distinguishable from the direct - evidence test. Wit h this interpretatio n, the circumstantial - e vidence test no longer serves any real purpose. We have not always be en precise in the language we use to describe the process of winnowing down the evidence to the circu mstances proved. But base d on the outcomes of several of our decision s discussed below and our reasons for adoptin g the circumstantial evidence test — and, i mportantly, t o preserv e the possibility of in dependently assessing inferences in the seco nd critical step of the circumstantial - eviden ce test — we cannot assume that the fact - finder rejected all testi mony conflicting with the verdict when we winnow the evidence i n the first step. Rather, we mus t consi der uncontradicted evidence in the circumstances proved when a fact - finder could have drawn both an infer ence consistent with the guilty verdict (or a fact necessary fo r a determina tion of guilt) and an inference consistent with a not guilty verdic t from the same piece of evidence. Again, when a determination of guilt wa s based on cir cumstantial evidence, we do not defer to the fact - finder’s inferences. Id. at 818. Indeed, w e have recently sai d that evidence supporting an inference that a defendant is not guilty is no t inconsistent with a guilty verdic t if the jury could both have foun d the evidence to be true and still determine d that a fact necessary for the determination of guilt existed. See Colgrove, 996 N.W.2d at 1 52. In such cases, the evidence should not be excluded from the circ umstances proved.

C-8 In addition to the situation just describe d — where a single piece of evidence could have supp ort ed a lternative inferences — case s often involve multiple conflicting pieces of evidence. In that conte xt, a fact - finder may have drawn an inference consistent with a fac t necessary for a dete rmination of guilt from s ome evidence and a lso draw n an inference inconsistent with a fact necessar y for a deter mination of guilt from competing evide nce. In such circumstances, we should exclude from the circumstanc es proved evidence that cannot be true in light of the verdict only when one of two c onditions exist: (1) t he evidence is spec ifically contradicted by direct evidence that supports an infere nce consistent with the guilty verdict, or (2) we have confide nce the jury was in a pos ition to make a credibility asse ssment about the confli cting evidence. First, we generally exclude circumst antial evidence that supports an inference inconsistent with a guilty verdict when there is other specifically contradictory direct evidence that supports an inference consiste nt with the guilty verdict. State v. Stein, 776 N.W.2d 709 (Mi nn. 2010) (plurality opinion), il lustrates this principle. In State v. Stein, there was t estimony and vid eo evidence that the defendant w as wearing a blac k shirt— the same color as the perpetrator’s shi rt — on the night of the crimes. Id. at 718. DNA taken from the perpetrator’s black shirt, recovered from a crime scene, matched the defendant. Id. at 712, 718. The defendant, h owever, testified that he was wearing a white shirt that night. Id. at 718. In vie wing the con flicting evidence in the light most fa vorable to the State, we conclud ed that it was a c ircumstance proved that the def endant was wearing a black shirt and not a circumstance proved th at the defendant was wearing a white shirt. Id. We accepted the fact that t he defendant w ore a black shirt bec ause there was te stimony

C-9 and other evidence that specifically contra dicted the defendant’s testi mony that he wore a white shirt. Id. This principle is analogous to the assu mption we make in applyi ng the direct - evidence test — assuming the fact - finder disb elieved any evidence conflicting with the guilty verdict. But in a circumstantial - evidenc e case, we should a pply the assumpti on more narrowly. We shou ld exclude from the circumstances proved only evidence that contradicts specific di rect evidence supporti ng an inference of guilt. We s hould not exclude all evidence su pporting inferences inc onsistent with a finding of guilt. 2 The reason for th is approach is t hat, where there is direct evidence of a f act necessary for a deter mination of gui lt, that fa ct and guilt are coexte nsive. When a fac t- finder’s determination that the State pro ved a fact necessary for a determinatio n of guilt 2 By way of example, consider a hypothet ical prosecution for first - degree aggravated armed robbery with a d angerous weapon. See Minn. Stat. § 609.245, subd. 1. One element of the crime is that the defend ant had a dan gerous weapon. Id. The State offers the testimony of W itness A, who states that “I did not see a gun, but I heard gunshots co ming from where the defend ant was standing and s aw the defendant posit ioned in a way that looked like he was firing the shots.” The defendant counters with a police report that says there was no weapon found on the defendant after hi s arrest on the scene, there was no evidence of gunshot re sidue on his hands, a nd no gun shots were hear d. The jury re turns a guilty verdict. In an appeal challenging the sufficiency of the evidence, the circumsta ntial - evidence test applies because there is no direct e vidence that the defen dant had a dangerous weapon. W itness A ’ s testimony — which is consistent with the verdict — wou ld be a circumstance proved. The portion of the police report that s tated no gunshots were heard would not be included in the circumstances proved becaus e W itness A ’ s testimon y directly contradicts that evidence. But the other parts of the police repo rt— which do not support the verdic t — should also be include d as a circumstance proved. Those portions of the report are not necessarily inconsistent with W itness A ’ s tes timony because W itness A provided no direct evidence that the polic e found a weapon on t he defendant after his arrest on the scene or gunshot residue on the defendant’ s hands.

C-10 wa s based on an inference the fact - finder dr e w from the eviden ce — i.e., circumsta ntial evidence— that eviden ce is not necessarily o r solely coextensive with guilt. While we know the jury believed some combination of t he evidence to support its guilty verdict, we are less certain about which specific ev idence the jury believed. If we were to exclude al l evidence from which a jury could have draw n inference s incon sistent with guilt simply because there was one piece of direct evidence from which it could hav e drawn an inference consistent with guilt, we would collapse the first and second steps of the circumstantial - evidence test into a single in quiry. It wou ld render the circu mstantial -evidence test indistinct from the test we appl y to cases pro ved by direct evidence, undermining our long - standing commitment t o “heightened” review in cases where convicti ons are based solely on circumstantial evide nce. That is precisely t he position the court ad opts today. Even when applying the circumstantial - evidence test, we remain concerned with respecting the fact - find er’s “unique position to determine the credibili ty of the witnesses, ” including the freedom “to accept part and reject part of a witness’s testimony. ” Harris, 895 N.W.2d at 600 (citation s omitted) (intern al quotation marks omitted) (discussing the need to preserve a j ury’ s credibility assessments of witne ss testimony and cit ing circumstantial-evidenc e cases fo r this principl e); see also Co lgrove, 996 N.W.2d at 15 8 n.3 (Thissen, J., dissentin g) (discussing the application o f deference to credibility determinations in circ umstantial - evidence cases). When we have co nfidence a jury was in

C- 11 a position to make cred ibility determinations, we have more certai nty that the jury did not credit evidence inconsi stent with the verdict. 3 In a few circumstantial - evidence cases, we hav e suggested that our def erence to jury credibility determinati ons means that all ev idence inconsistent with the verdict shoul d be excluded from the circu mstances proved. For i nstance, in State v. Cul ver, 941 N.W.2d 134 (Minn. 2020), which the State relies on to support excluding ce rtain non -testim onial statements the defenda nt made from cir cumstances proved, we determined that “the jury was not compelled to believe the stateme nts that [the defendant] made merely because they were uncontradicted.” Id. at 144. In doing so, we cited a civi l case, Costello v. Johnson, 121 N.W.2d 70, 76 (Minn. 1963), i n which we observed that a ju ry does not have to accept “at face value” testimo ny that “was not co ntroverted by. .. t estimony on the part of [the other party].” Id. (holding that the jury could disregard uncontr overted expert testi mony). We reasoned: [The] weight [of the evidence] and the credibility of the wit nesses is usually for the trier of fact to de termine, and it is not compelled to be lieve any witness merely because his testimony is unc ontradicted. This is particularl y true 3 The court understan ds the concept of “credibility deter mination” in our circumstantial- evidenc e test case la w to mean that e very piece of e vidence that does no t support the guilty verd ict must be excluded, regardless of wheth er it is contradicted or whether it supports an alternative inference t o guilt. As d iscussed in the body o f th is concurrence, however, we have not invariably excluded all evidenc e that is inconsistent with a jury verdict. Indeed, if that is w hat we mean by def erence to credibility determinations— exclu ding unrefuted evidenc e even when a jury wa s not in a posit ion to assess the credibility o f the witness providing the testimony — then we are collapsing the circumstantial- evidenc e test into the direct - evidence test and we sho uld have adopted the dissent’ s position i n State v. Harris nine year s ago for a uni tary standard. See Harri s, 895 N.W.2d at 60 5– 1 1 (Lillehaug, J., dissenting).

C-12 where there are othe r facts in evidence which refute or modify the uncontroverted testimo ny or where testimo ny is obviously untru e. Id. (emphasis added). I believe that, when applying the first step of the circumstan tial - evidence test, we should not use the Co stello prin ciple to exclude eviden ce like the uncontradict ed non - testimonial statements in Culver from circumstances proved. 4 Such an application of the Costello rule is too b lunt an instru ment in the first step of the circumstantial - evide nce test. As discussed above, t he question in this ste p focuses on determin ing whether we are confident that the jury must have disbe lieved a particular fact whe n it reached its guilty verdict. When a fa ct necessary for a dete rmination of guilt re quires a jury to draw an inference from a mong several pieces o f evide nce, we do not kn ow which evid ence the jury believed and relied upon in making its deter mination. Specifica lly, we do not know if the jury believed a witness’s testimony a bout some facts but found evide nce about other facts in the case more comp elling. Thus, w hether the jury found a wit ness credible o r not is upstream of the Costello rule that a jury has the choice to disbeli eve evidence even if uncontradicted. Accordingly, in additio n to excluding from the circumstances pro ved any evidence that cannot be true if specifically cont radictory direct evidence consistent with guilt is true, we should also exclude evidence that supports an inference that the d efendant is not guilty when other evidence s pecifically contradicts that eviden ce (even if the other evidence is 4 I discuss our decision i n Culver in more detail in Part D.

C-13 not direct evidence) or we have confidence that the fact-finder wa s in a position to make a credibility assessment of the conflicting evide nce. 5 The State’s position t hat we should assume the jury found the State’s evidence credible and exclude from the circumstances proved all evidence su pporting a conclusion other than guilt is also inconsistent with our c ase law. For instance, had we applied th is rule in our recent decis ion in State v. Isaac, 9 N.W.3d 81 2, it is likel y that we would have reached a differe nt outcome. In Isaac, an ai ding -and- abetting first - deg ree murder case, the defendant started the e vening with the shoote r in the Fargo -Moorhe ad area, then left the 5 The court asserts that, in adopting this approa ch, I would allow appe llate courts to act as a “ 13th juror” and reweigh the eviden ce. F rankly, I can see how the court reaches that conclusion. The court starts fro m the perspective that, i n step one, we may not consider any facts inconsistent with the jury ve rdict — even facts the State en tirely failed to ref ute that are relevant to proving an eleme nt or ele ments for which no di rect evidence exists. From that viewpoint, any recognition of a fact inconsi stent with the v erdict is an appellate court stepping into the jurors’ shoes. Indee d, that is how we have traditionally applied t he direct- evidence test, and the court t oday is making clear that, pra ctically speaking, the circumstantial-evidenc e test is the direct-ev idence test in everythi ng but name. From my perspectiv e—articulate d in this co ncurrence and with support in both our case law and the very reason for adop ting the circumstantial - e vidence test — I am not authorizing appellate courts to r ew eigh evi dence in step one. I am me rely saying that when a court undertakes the step - two analy sis considering the reason ableness of both the inferences the jury dr ew and alternative inferences, it sh ould be allowed to conside r evidence that the Sta te left unrefuted an d evidence that the jury could have accepted as true and still reached a guilty verdict. I would only exclud e that eviden ce from the step -two analysis if the record s uggests that the jury co nsidered the evidence a nd rejected it —either due to directly co ntradictory evidence or some other showing that the jury was in a positio n to reject the evidence b ecause it found the evi dence was not credible. In some sense, by mak ing assumptions about the jury’ s decisions wh en it did not hear competing direct evidence on a fact nec essary for a guilty verdict, the court itself is stepping into the jury’ s shoes. It is also worth noting, on the subjec t of the “ 13th juror,” that in step two of the circumstantial - evide nce test, as both the cour t and I understa nd it, we take an explici tly independent and non - deferential look at the inferences that a jury necessarily made in rea ching its verdict.

C-14 shooter and drove toward St. Cloud. Id. at 81 6. After driving toward St. Cloud for a bout an hour, Isaac receive d a call from the shooter, who had just murdered the victim in Moorhead. Id. Isaac turned around to meet up with the shooter. Id. We focused heavily on this fact in reversing Isaac’s convictio n, noting that if he had known about the shooter’ s plan beforehand it wo uld not have made sen se for Isaac to drive s o far in the opposite direction only to drive back to meet up wit h the shooter again. See id. at 818. We concluded that this fact, combined with the other circumstances proved, supported a reasonable inference that Isaac did not kno w about the shooter’s plan to murder the victim until the shooter called him after the murder. I d. Under the State’s t heory, because the facts that Isaac drove toward St. Cloud and turned around after receiving the sh ooter’s call would not tend to support his guilt we woul d not have consider ed th em as circumstances proved and thus n ot use d them to evaluat e whether there was a rational hypothesis that Isaac was not guilty at step two. Without considering these as circumstances proved, we likely would have upheld Isaac’s convicti on even with the scant evi dence supporting convi ction. Likewise, in State v. Al -Naseer, 788 N.W.2d 469 (Minn. 2010), we overturned Al-Nase er’s conviction for criminal vehicul ar homicide based on leaving the scene of a collision under the circumstantial - evidence test. We consi dered all the evidence in that case as circumstanc es proved. Id. at 475 n.2 (“[I]n t his case the evidence i s not in conflict. . .. Instead, i t is the inference s that can be made from the evidence and the circumstances proved that stand in co nflict. . . .” (emphasis added)). But under the State’ s version of the circ umstantial - evidence test, we would have exclu ded many pieces of

C-15 evidence we consider ed, including the sol e witness’s testimony that he never saw Al- Naseer’s vehicle slo w down after the collision, police tes timony that the evidenc e was consistent with Al -Naseer having been as leep at the time of the collision, and Al-Naseer ’s statement to police that he knew he hit something but did not know wh at. See id. at 477 –78. Despite none of this evidence being in di rect conflict with the verdi ct or other evidence necessary to establish guilt, the State ’s position woul d have require d us to disregard i t all in analyzing whether there was a reasona ble inference that Al - Naseer did not know he had hit a person or vehicle. Like Isaac, th is wo uld almost certainly have changed our decision. 6 Once we have winnowed all the evidenc e presented at trial down to the evidence that constitutes the circ umstances proved, we turn to the second ste p of the circumstantial - evidence test: We ass ess whether the circumstances pro ved, when viewed as a whole, support a reasonable i nference that the defendant is guilty and are inconsistent with any other reasonable infere nce except that of guilt. Har ris, 895 N.W.2d a t 600–01. Includin g evidence in the circumstances proved by itsel f means nothing when assessing the probat ive value of any particular piece of evidence at this second step. W e will reverse if the 6 I recognize that, in rare cases, we have reversed convictio ns under the c ircumstantial evidence test where we excluded all e vidence inconsistent with a g uilty verdict and only considered evidence co nsistent with the guilty verdict. See, e.g., State v. Segura, 2 N.W.3d 142 (Minn. 2024). Critical to our decision today, we would have reach ed the same decision in one such case, State v. Segura, under the direct - evidence te st precisely because, base d solely on evidence co nsistent with the jury verdict (the only evidence on which we c an rely in direct - evidence case s), we concluded that State did not prove Se gura’ s guilt beyond a reasonable doubt. See Huss, 506 N.W.2 d at 292.

C-16 circumstances proved do not supp ort a reasonable infe rence of guilt 7 or support a reasonable inference th at is inconsistent wi th guilt. Id. at 600. I discuss the second step of the circumstantial - evid ence test as applied to the circumstances pro ved in this case in Part E. It may be true that under the court’s decision today the circ umstantial evidence test gives appellate courts the cover of a flexible o ff - ramp when we are deeply disturbe d by a jury verdict. But I stru ggle to understand how such a test, which wo uld seem to flex based on our level of disturbance, pro vides consistent results for crim inal defendants or is a fair system that supports co urt legitimacy. C. With that bac kground in place, I re turn to the questio n before us: Did the State produce sufficient evidence to prove beyo nd a reasonable doubt that Firkus, with premeditation, intende d to effect Heidi’s deat h? I start by describing th e circumstances prove d in this case and the n, in Part D, I explain why I include certain evidence in the circumstance proved th at the State urges us to exclude. Background Nicholas and Heidi Firkus met thr ough their church’ s high school youth group. Friends admired Heidi and Firkus for their devotion to C hristianity and their marri age. They were close with other young couples w ith whom they shared religious value s. The 7 There is no dispute in this case that t he circ umstances proved support a reasonable inference consistent wi th the guilty verdict.

C-17 men admired how Firkus treated Heidi. Firk us was seen as a “spiritual leader” within the group. In 2007, the Firkuses purchased a home in S t. Paul. Soon thereafte r, the housing bubble burst and re cession followed. Almost immed iately, the Fir kuses began missing payments on their credit card, mortgag es, and other debts. For the next two -and- a-half y ears, the Firkuses fell deeper into debt, faili ng to pay off their b ills, overdrawing t heir bank accounts, and mi ssing mortgage payme nts. The couple made no payment s on the ir primary mortgage after September 22, 2008. The bank foreclosed on the Firkuses’ house and sold it at a sheriff’s sale on June 4, 2009. The bank offe red the Firkuses cash payouts if they agreed to vacate their home bef ore eviction (commonly kno wn as “cash -for-keys”), but they did not respond to these off ers. At a March 8, 2010, evic tion hearing, Firkus agreed to vacate the h ome by March 22, 20 10; Heidi was not pre sent. This date was subsequently pushed b ack to April 9, 201 0, and then again to A pril 26, 2010. At trial, Firkus asserted that Heidi wa s fully aware of the foreclosur e and financial issues, despite signific ant evidence to the co ntrary. Although Heid i worked only a few blocks away at the time, Firkus attended the March 2010 evicti on hearing without her. The cash -for- keys offers to which the Firku ses never respo nded would h ave required Heidi’s signature. At t he time of Heid i’s murder — the day before the Firkuses were to vacate the home—no ne of thei r belongings were packed in boxes or ready to be move d out. Rathe r, on that day, Hei di and her frien ds had plans to get pedicures. The day before her murder, Heidi and a friend went shoppi ng at the Mall of Ame rica and Heidi spent over $1 00. Although Heidi had re quested time off from work to help her parents move in June 2010,

C-18 she had not requested time off on April 26 —the day the Firkuses wer e to vacate their own home. The Fir kuses ha d not made any concrete plans for where they would go after moving out. Text messages betwee n Firkus and Heidi s how that Heidi deferred to Firkus on financial matters. Heidi told several peo ple that she and Firkus wer e having issues with identity fraud, but no activity on their accounts indicated such frau d. Firkus repeatedl y told Heidi that he was corresponding wit h their bank about id entity fraud issues, but there was no record of c ommunications wit h the bank on that matter. In 2009, Heidi s poke to her mother about the c ouple’s finances and sa id that “Nick told her they were fine.” None of Heidi’s friends or fa mily testified that she told them about the foreclosure or eviction. Heidi did not cash a refund check for the couple’s home insurance policy sent after the home was sold. Even though the Firkuses we re in deep financial trouble, Heidi de clined financial help her moth er offered in the summe r of 2009. When Heidi’ s father called Heidi about missed payme nts on her car, for whic h he had cosigned, Heidi told him she was unaware of missed pa yments. Altho ugh Firkus did n ot testify at his trial, he described the foreclosure and financi al issues to police as a “private struggle” for t he couple. Heidi did not feel completely comfortable i n her home. In 2009, police shot a burglar in the neighb orhood. A frie nd’s car had been vand alized while visiting the Firkuses. One night, t he St. Paul police tried to serve a warra nt at th e Firkus house in the middle of the night bef ore realizing they were at the wrong house. Heidi told others that she was afraid to be ho me alone. In a statement to police, Fir kus stated that he normally set the deadbolt lock o n the front door.

C-19 Firkus owned a shotgu n that he used for hunting. He bou ght this shotgun from a friend several years before Heidi’s murder. Fi rkus kept the sh otgun in the basement of th e house until about a month befo re Heidi’s mur der, when he mo ved the shotgun from the basement to the couple’s upstairs bedroom. T he basement was damp and unfinished, a nd Firkus said he was trying to prevent the gun from rusti ng. A lthough there was no ev idence of rust on the gun, ther e was pitting, which is consistent with the gun having been recently cleaned. Day of the Murder At 6:32 a.m. on April 25, 2010, Heidi ca lled 911 from her cell phone. The transcript of the 911 call with He idi is as follows: 911 Operator 1: State Patrol, 911. Heidi: Someone’s trying to br eak into my house. 911 Operator 1: What city are you in, S t. Paul? Heidi: I’m in St. Paul. 911 Operator 1: Hang on just a second. (dialing) What address are you at? Heidi: 1794 911 Operator 1: 1794 what? 911 Operator 2: 911, where is your eme rgency? Heidi: Minne- 911 Operator 1: Stay with- Heidi: 17, 1794 Minnehaha A venue.

C-20 911 Operator 1: Minnehaha, someone’s trying, west? Heidi: (screams) The scream occurred about 35 seconds into the call, and at that point Heidi’s phone disconnected. Thirty- eight seconds af ter Heidi hung up with 911, Firku s called two recently dialed numbers on Heidi’s ph one. Sixty - five seconds after Heidi hu ng up, Firkus called 911. He told the operator that someone had just brok en into his house and shot him an d He idi. Firkus remained on the phone with 911 until p olice arrived at 6:38 a.m. Because there had been a shooting, police treated their response as a hi gh - risk entry; they kicked open the Firkuses’ front door and four officers rushed in to the house. A rug was wedged against the base of the front door and a pair of shoes in the entryway was knocked out of place. Police described a table in the entry way as “wobbly.” Items on the table were undisturbed when police arrived at t he scene, but fell off w hen they touched the table. A double - barr eled shotgun an d a pair of blue jeans were on the entryway fl oor. Officers found Heidi lying on her back in t he kitchen with Firkus kneeling beside her. Heidi was pronounced dead at the scene. Firkus had a shotgun wound to his left thigh. He was very emotional. St. Paul Police officers intervie wed Firkus at the ho spital while he wa s receiving treatment for his wound. Firkus told the officers that he had got ten up to get water f rom the bathroom and heard somebody fiddling with the front door. He then told Heidi to call police while he grabbed his shotgun. Firkus stated t hat, at first, he and Heidi “calle d the police from the closet in case we needed to hide in t he closet” but then they decided t o head to the garag e

C-21 to get out of the house. Although Firkus had two cellphones on his nightstand, he grabbe d only his shotgun a nd a pair of blue jeans bef ore leaving the room. Firkus later said he grabbed his jeans beca use his wallet was i n one of the pocket s. He said Hei di also grabbe d her wallet before heading out of the bedro om. Firkus followed Heidi down the stairs in an attempt to get to the ga rage and out of the house. H e reported that when they reached the entryway, an intr uder opened the door and a struggle ensued. The shot gun went off twice during the struggle, the first shot striking Hei di in the back as she ran through the kitc hen toward the garage, and the second striki ng Firkus in hi s left upper thig h. The intruder then fled. Firkus participated in a much longer, r ecorded, interview later that morning at the police station. This was the la st interview Firk us gave to police be fore he retained co unsel. There were some discr epancies between this statement and Fir kus’s initial account at the hospital. In his second statemen t, Firkus told police t hat he got up around 6 a.m. to get water from the bathr oom, wen t back to slee p for 10 or 15 minutes, and then woke up because he heard the screen door open. He said he was not concerned at first because the screen door would sometimes pop open if it wa s windy, but then he started hearing fiddling with the front d oorknob. Firkus said he grabbe d the shotgun fr om the closet be fore waking Heidi. He stated he told Heidi that t hey had to get to the garage im mediately and did not mention calling the pol ice from the closet. Firkus described the str uggle more extensively during the second inte rview. He told police that the shotgun was initially i n the three o’clock position acro ss his chest, pointing toward the kitche n. Firkus stated that a fter the first shot the intruder pulled down o n the

C-22 barrel with his right h and so the gun moved clockwise until the ba rrel was in the eight o’clock position, poi nting downward toward the fr ont door. Acco rding to Firkus, t he shot gun then went off a second time, hitting Firkus in the thigh. Fi rkus told officers he was unsure whose fing er was on the trigger when he was shot. Firkus recounted that he dropped the shot gun and the intruder fled. Firkus said he then crawled to Heidi in the kitchen and rolled her over to try to help her. He found her phone an d called 911. Firkus gave three different descriptions of the intruder. In his 911 call, Firkus tol d the operator that t he intruder wa s wearing a h ooded sweatshirt and Firkus did not know h is race. When initially asked, Firkus said he could not be certain wheth er there had been one or multiple intruders. In his first p olice interview, at t he hospital, Fir kus told the officers that he thought the intruder “might have been black but [he wasn’t] 100% certain.” He said the intruder was w earing a dark, hooded s weatshirt; gloves; and possibly sunglasses. He could not recall if the intruder had facial hair. Firkus also said t he intruder was a lot bigger than he was, over six feet tall. In his second interview, at the sta tion, Firkus repeated this description and sai d that the hood had been drawn up pre tty tight around the intruder’s face. He also said the intruder was “black, wit h lighter skin;” around 6’1” or 6’2”; and 215 to 220 pounds. Immediately after sec uring the scene on April 25, 2010, police canvassed the neighborhood for possi ble witnesses. Within minutes of the shooting, they spoke to B.O., who was cat - sitting a t his girlfriend’s house immediately next door t o the Firkuses. B.O. stated that around the time of the incident he was in a bedroom with an open window facing the Firkus household and heard two shots. At the time of trial, a decade later, B.O.’s

C-23 memory was not c ompletely clear on what he heard besides thos e two shots. On the d ay of the murder, B.O. told St. Paul police and a reporter from the Pioneer Pres s that he had heard two shots, follo wed by a male voice saying, “you shot me” or “you shot her.” He also told the reporter that he heard the male vo ice say “stop, please.” About a week - and - a- half to two weeks later, B.O. repeat ed most of the same story to a defense investigator, exce pt he told the investigator that h e heard at least one voice betwee n shots. Years later, B.O. stated that he might have heard a woman’s voice. He also testifie d that, after listening to Firkus’s 911 call, he believed wha t he heard could have be en consistent with what Firkus said on the call. B.O. told police that he had looked out of his window after he heard the two shots and did not see anyone leaving the Firkus home. At trial, he ad mitted that if someone had run right out of the hou se and turned right into the alley he would not have been able to see them. None of the Fir kuses’ other neighb ors testified tha t they saw anyone or anyth ing unusual on the street th at morning before polic e arrived. The day after Heidi’s murder, Firkus told H eidi’s parents that law enforcement would probably never catch the intruder. He also revealed the fore closure and financial troubles during this conversation, and w orried that police would view t hem as a motive for him to murder Heidi. Firkus later sign ed the proceeds of Heidi’s life insurance policy over to her parents. Police Investigation Officers did not obser ve many common sig ns of forced entry or struggle at the Firkus house. They n oted marks on the doo r frame by the knob lock. Sergea nt Shay

C-24 Shackle testified that th ese marks were likely old and painted over, t hough he conceded i t was “possible but not probable” that the marks could be fresh compression m arks consistent with someone using a flathead scre wdriver to open the door. Officers sear ched the Firkuses’ house, ga rage, and vehicles for screwdrivers t hat could have made the marks. They collected and te sted three screwdr ivers; Minnesota Bureau of Criminal Apprehension (BCA) analysts deter mined that two could not have made the m arks on the doo r frame, while tests on the third were inconclusive. Officers preserved po rtions of the door and door frame as evidence, and a locksm ith examined them and t estified at trial more than 10 years later. Accord ing to the locksmit h, the deadbolt and do orknob locks were in perfect worki ng order, ther e was no damage to the doorknob, and ther e were no marks near the deadbolt. The locksmith testifie d that if the deadbolt had been engaged and an in truder had entered thro ugh the door the deadb olt would have shown obvious signs of damage. If the deadbolt was no t engaged, the knob lock could have be en d efeated in as little as 1 5 seconds. The locks mith testified that th e marks by the knob lock were consistent with d amage from other burg lary scenes. BCA analysts examined the pattern of the shotgun blast that killed Heidi and determined that the sh otgun had been between three and ten feet away from her at the time of the shot. Forensic examiners co ncluded that it was possible for someone of Firkus’s approximate size to shoot himself in the thigh with that shotgun. T he Federal Bureau of Investigation (FBI) cre ated a physical scale model of the crime scene. Evaluati ng the ballistics evidence, Heidi’s auto psy report, and evidence fro m the crime scene in vestigation, the F BI determined t hat the State’s t heory —that Firkus shot H eidi and

C-25 himself— was consiste nt with the forensic evidence. Althou gh no one conducted a similar assessment of Firkus’s theory that Heidi was killed during a struggle between Firkus and an intruder, the FBI expert testified t hat she could not rule ou t the possibility that an intruder shot Firkus and Heidi. There were no identifiable fi ngerprints or DNA at the s cene from anyone other than Firkus and Heidi. On April 27, 2010, tw o days after Heidi’s murder, St. Paul Police conducted a “sound test” on the Firkuses’ home aro und 6:15 a.m. Two officers were stationed u pstairs with a video recorder while an officer do wnstairs fiddled with the inne r front doorknob and then the screen porch door. In the video recording, the doorkn ob jiggling is inaudible from the bedroom and the bathroom; it is faintly audible from the top of the stairs between the bedroom and the bat hroom. Sounds from the s creen porch doo r were completely inaudible. At trial, Sergeant Shackle, who par ticipated in the sound test, sta ted that the sou nd on the video recording reflected what he could hear at the time police conducted th e test. He agreed, however, that a video recorder’ s sound sensitivity is not necessarily the sa me as a human ear. Police testified — and photographs confirm — that a perso n of average hei ght standing upright outside the front door woul d be clearly visible to someone comin g down the stairs because of the window in the door. Firkus told police that he was not looking out of that window when h e and Heidi came down the stairs. An FBI visual inform ation specialist recr eated the crime scene i n both physical and digital models. She testified that the goal of th e models wa s to accurately represent to the jury “what a location l ooked like, to have a se nse of space, and a vis ual picture of a crime

C-26 scene.” The models us ed a ballistics report fo rm to depict how far t he shooter would have been from Heidi when she was shot. The model was co nsistent with Firk us having shot Heidi. When asked whether the mo del was also consist ent with Firkus ’s version o f events— that an intruder shot Heidi — t he FBI witness answered “y es, absolutely.” On redirect examination, t he State sought to clari fy that answer: Q. Okay. And so when t he defense asks “is w hat the defendant said possible?” In theory, a nything is possib le, right?. . . A. That’s correct. Anything is possible, and I believe our diagra ms and exhibits show th[ose] p ossibilities. Police showed Firk us a lineup that included a potential suspect on April 26. Firk us did not identify anyone from the lineup. In May 2010, Firkus prov ided a sketch of the potential intruder to po lice. Police identified a suspect based on this sketch in 2014. That suspect was quickly eli minated because he had been in custody a t the time of the murder. These are the facts I would use, in step two of the circumsta ntial - evidence test, to determine whether there is s upport for a reaso nable inference that an intruder shot Heidi at the Firkus home on April 25, 2 010, and, henc e, a reasonable infe rence that Firku s did not kill Heidi with premedi tation and intent. D. The State encourages us to exclude much of t his evidence from the circumstances proved. For the follow ing reasons, I disagree with the State’s positio n. First, the State’s evi dence that Firkus int ended to shoot and kill Heidi i s circumstantial. See St ate v. Ulrich, 3 N.W.3 d 1, 10 (Minn. 202 4) (stating that inte nt is

C-27 generally proved with circumstantial eviden ce). For instance, Firkus did not make statements that he inte nded to shoot and kill Heidi. Cf. Jones, 4 N. W.3d at 501 (noting defendant ’s statements that he wanted the victim dead wer e direct evidence of intent). Moreover, in this case, determining whether F irkus intended to shoot and kill Heidi turns on Firkus’s defense at trial that the shot gun fired accidentally durin g his struggle with an intruder. Importa ntly, Firkus concedes that i f there was no intruder in the house w hen Heidi was killed, it is impossible to draw a re asonable inference that he did not inte nd to effect Heidi’s death — meaning there would be no re asonable infere nce inconsistent with the guilty verdict. The State offered no direct evidence that there was no intruder in the F irkuses’ home (for instance, a video recording of the inc ident or a witness’s direct observation). Accordingly, the jury’s determination finding Firkus guilty —tha t is, finding that h e, rather than any intruder, shot Heidi — necessarily re quired the jury to make an inferential leap from other evidence. Therefore, in this case, we apply th e circumstantial - evide nce test to the questions of intent and whether t here was an intruder. As explain ed in Part B, because there is no direct evidence in the record that t here was no intru der in the house, we shoul d not exclude all evide nce that could possibly support (through inference or otherwise) a determination that there was no intruder in the house simply becaus e the jury must have inferred this fact in reaching its guilty verdict. Rather, we should on ly exclude from the circumstances proved evidence that coul d not be true if there is sufficient evidence to support a guilty verdict; that is, whe re direct evidence contradic ts a specific piece of circumstantial evidence supporting an infer ence that there was no intruder or where other

C-28 circumstantial evidenc e contradicts the evide nce that there was no i ntruder such that we know the evidence was susceptible to the jury’ s credibility assessment. I emphasize that nei ther the inference that there was nor that there was not an intruder is a circums tance prove d. The State asserts that it is a circumstance proved that there was no intrud er because the jur y read Firkus’s statements to police, and heard a recording of at least one statement, clai ming that there was an intrud er, but still r eturned a guilty verdict — ne cessarily rejecting Firkus’s assertion that t here was an intruder. As described above, that is not how step one of th e circumstantial - eviden ce test works. There is no direct evidence that there was no intr uder and, because the jur y did not observe Firkus making his statements, the statements were not susceptib le to credibility asses sment for purposes of step o ne of the circumsta ntial - evidence test. 8 Thus, we a ccept the statements 8 Firkus’ s statements are dif ferent than the defendant’ s state ment in State v. W ebb, 440 N.W.2d 426 (Mi nn. 1989). In We b b, the jury heard conflicting s tatements regarding whether the defendant owned a bedsprea d found near the victim. Id. at 430 – 31. The defendant admitted t o owning th e bedspread and one of the defendant’ s previous roommates testified tha t he had seen the defendant with the bedspread. Id. at 4 30. There was substantial evidence to the contrary, inclu ding uncertainty the roommate expre ssed in his testimony, aggressive police int errogation tactics, lack of physical evidence t hat the defendant owned the b edspread, and evidence that a nearby hotel use d precisely the same bedspread in its rooms. Id. at 429 – 30. But because there was direct evidence from the defendant’ s roommate establishing that the de fendant owned the bed spread, in addition t o the defendant’ s own similar stateme nt, we accepted it as a circumstan ce proved despite the conflicting evid ence. Id. at 431 n. 2. W e emphasi ze that in Firkus’ s case, there is no evidence establishing the presence of an intruder one way or an other, and it is not certain which of Firkus ’ s stateme nt s is more consistent with the ju ry’ s verdict or w hich statement the jury must hav e accepted in finding Firkus guilty. Thus, it is unnecessa ry for us to choose between Fi rkus’ s state ments in winnowing down the facts to the circu mstances proved. Inde ed, as discussed below, the conflicting nature of F irkus’ s statements sup ports the State’ s positi on that there was no intruder.

C-29 Firkus made to the police as circumstance s proved; we then assess w hether they support a reasonable inference that there was no intr uder in step two when we consider all circumstances proved — including many pieces of evidence sugges ting Firkus’s statements were not true. 9 As I observed in Part B, our prior cases have not always been clear on this point. For instance, in Culver, 941 N.W.2d at 143 – 44, we considered a c ase of alleged felony deprivation of parent al rights in violation of a court order. We excluded from the circumstances prove d email messages bet ween Culver and the father of her c hild expressing Culver’s w illingness to reschedul e parenting time. Id. Culver argued the written messages sho wed she did not subje ctively intend to “subs tantially” deprive the father of pare nting time as r equired to find her guilty. Id. After brief analysis, w e exclude d We b b is not a decision that turned on the i mprobability that the bedspread f ound near the victim belonged to the defenda nt. T o the contrary, we held that it was a circumstance proved that the defendant ow ned the bedspread despite the conflicting evidence described above. Id. at 431 & n.2. Our decision in We b b turned on the lack of other evidence in the c ase pointing to the def endant’ s guilt, such as the lack of testimony and physical evidence connecting th e defendant to the victim and abs ence of any credible motive. Id. at 431. 9 The fact that Firkus’ s unsworn state ments may be evidence that there was no intruder is not dispositive. Firkus’ s st atements were inconsistent. Further, there was substantial other circ umstantial eviden ce before the jury that there was no intruder a nd t he jury found that e vidence convincing. In circumstantial - evidence ca ses, however, our job is to make sure t hat there is n o reasonable infe rence that the defenda nt was not g uilty after considering the totali ty of the e vidence presented. One aspect of this analysis is considering whether, in light of all the evidence, the jury proper ly inferred there was no intruder even though Firkus made a statement that there was. T o foreshad ow my co nclusion, I determ ine that, in light of all t he evidence in the case, Firkus ’ s s elf -serving statements (and other evidence suppo rting a potential inferenc e that there was an intruder) are not enough to support a reasonable i nference that Heidi was kill ed during a struggle between Firkus and an intruder.

C-30 those statements from the circumstanc es proved because “the jury was not compelled to believe the statements t hat Culver made merely because the y were uncontradicted.” Id. at 144. As discussed earlier, C ulver ’s articulation of t he law is too blunt in a circumstantial - evidence case. If a reviewing co urt excludes every fact — even uncontradicted facts —t hat could support an inference that a defend ant is not guilty from the p ool of circumstances proved just because the jury may not have b elieved it, it is applying the direct -evidence test. Except to th e extent we can rev erse a conviction t oday under the direct - evidence test, proceeding in this way means exclud ing every fact that could support an inference that the defendant was not gui lty before even r each ing the second step of the circumstantia l - evidence test. The s econd step is rendered meaningless. The “heightened” test fo r circumstantial-evidenc e cases is eliminated. Rather, in Culver, the emails should not have been excluded from the circumstances proved. While (as her e) there was other circumstantial evidence contradict ing Culver’s messages that she would be willing to resch edule parenting t ime — notably, the fact that she never did — there was no direct evidence tha t she was unwilling to reschedule pare nting time. Furthermore, th e written messages the mselves were not susceptible to the jur y’s credibility assessment. Consequently, Culv er’s written messages should have been included among the circumstances proved. 10 10 Even if the Culver court had inclu ded the messages among the circumstances proved, the outcome of the case would not have changed. In Culver, the court of appeals interpreted the depriva tion of parental rights statute as requiri ng the State to prov e the

C-31 We have never held tha t a court must accept th e inverse of a defendan t’s statements claiming innocence — i. e., that a defendant who lied when stati ng they were inno cent is defendant had a subjective intent to deprive a parent of rights to parenting time. 941 N.W.2d at 138. W e held that the relevant statutory phrase “ ‘where the action manifests an intent substantially to deprive that par ent of rights to parenting t ime’ una mbiguously refers to a condit ion in which t he defendant’ s a ction shows or reveals an objec tive intent to substantially deprive a parent of parenting ti me.” Id. at 141 (em phasis omitted). In addition, we held t hat determining whe ther an accused sub stantially deprived a parent of parenting time required considerin g both the quantitativ e (the amount of time) and qualitative (the value o f the time) effects of the deprivatio n. Id. at 143. Under that legal st andard, even if the Culver court had prop erly included amo ng the circumstances proved the messages in whic h Culver claimed that she was willing to reschedule lost parenti ng time in the fu ture, t here was no reasona ble inference to draw, in view of all the circumstances proved, that she did not engage in actions that show ed or revealed an objective intent to sub stantially deprive her chil d’ s fathe r of parenting time. The other circumsta nces proved included t he following: The child was 3 years old at the time o f the offense. In response to Culver ’ s request to take the child to a we dding, the co urt ordered that an y changes should be agreed upon or the parenting time would be as ordered. Culver and [the child’ s father] did not reach an a greement on any modificat ions to parenting time to accommodate t he wedding. [The child’ s father] was deprived of an overnig ht visit, which is an im portant part of the pare nt-child relationship. Culver ’ s actions com pletely denied [the child’ s fath er] his court-ordered pare nting time, which invol ved seven visits during the 15-day period immediately before Culver ’ s arrest. Culver did not pro vide any alternative parenting ti me to [the child’ s fath er] during the charged period, even though there were days she was not a t a wedding or a funeral. Id. at 144. The messages Culver sent may have s upported a reasonable i nference that she did not have a subjective intent to deprive the fathe r of parenting time, but they did not support a reasonable inference that her conduct did not show an objective intent to deprive the father of parenting tim e. This conclusion is particularly compell ing when one consid ers not only the quantitati ve impact of the depri vation (that she could make up for lost time later), but the qual itative impact in light of the length of the deprivation and the age of the child. See id. at 143.

C-32 therefore guilty — as a circumstance proved. 11 Here, the concl usion that Firku s lied about the presence of an intruder to hide his guilt is an inference. We do not consi der, nor give deference to, a jury’s i nferences at step one of the circumstantial - evi dence test. Instead, we determine the circu mstances proved and t hen — at step two — determine whether there is any rational hypothesis from those circ umstances that support s a reasonable inference o f not guilty without giving deference to the verdict. For that reason, i t is not a c ircumstance proved that there was n o intruder. Conversely, Heidi’s sta tement to the 911 oper ator that someone was breaking into the house does not me an it is a circumstance proved that there wa s an intruder. The jury heard Heidi’s 911 call and still rejected Firkus ’s theory that there was an intruder. But we accept the fact that Heidi made the 911 call and her statements in the 911 call as circumstances proved. First, Heidi’s state ments could be true even if there is sufficient support for the verdict. Heidi never state d that she sa w an intr uder. As import ant, no direct evidence contradicts th e fact that Heidi made the statemen ts, and it is not susceptible to a 11 The State points to Sta te v. Gatson, 801 N.W.2d 134, 144 (Minn. 20 1 1), in w hich we found it was a circumstance proved that th e defendant fabricated an alibi, to support its argument that “reject[ing] a defe ndant’ s testimony positively establishes the oppos ite conclusion.” But in that case the defenda nt initially provided an ali bi, then later admitted that he drove his co - defendant t o and from t he crime scene. Id. at 140. Gatson is an example of a case where the direct evidence contradicted th e defendant’ s alibi evidence; the alibi evidence woul d have been excluded u nder the test I articulate in this concurrence. By contrast, Firkus has never stated that there was no intruder. Some details of his story may conflict — for exa mple, the statements to police regardi ng whether he was headed to the bathroom or in the bedroom when he he ard noise from the front door — but he has consistently claimed th at there was an intruder.

C-33 credibility assessment. It is a ci rcumstance proved t hat Heidi told the 911 oper ator that someone was breaking into the house. Evidence of marks on the front door frame b y the lock is a c ircumstance proved. No one disputes that the marks ex isted. But the State’s posi tion that it is also a circumstance proved t hat the marks were not made by a n intruder on the mornin g Heidi died is incorrect. It is true that the State o ffered a police sergeant’s testimony that the mar ks were likely old and painted over. But the same witness also testi fied that it was “ possible,” though “not probable, ” that the marks were made more recen tly by a s crewdr iver without stripping away the paint. 12 There is no dire ct evidence that the mark s were not made on the morning Heidi died. Rather, the entirety of the sergeant’s testimon y is included among the circumstances prov ed. The same log ic applies to the FBI crime scene mo del of the Firkuses’ home. The e ntire testimony of the v isual information speci alist is a circumstance proved. I reach a similar c onclusion about F irkus’s conflicting s tatements to p olice regarding when he heard the intruder and how he a nd Heidi got downstairs. In F irkus’s first statement to officers at the hospital, he said that he wa s either in, headed to, or coming from the bathroom when he hear d noises at the front door. According to Firku s, he then woke Heidi and they either called or debated calling the police from the closet in the ir bedroom. Durin g Firkus’s second statem ent, at the police station, however, he placed himself in the bedroom when he heard the noises from the front door. Fir kus stated that h e then grabbed the 12 A locksmith witness al so testified that the ma rks by the knob lock w ere consistent with damage from othe r burglary scenes.

C-34 shotgun before waking Heidi and, when he w oke her, told her they were going to g et out of the house; he did not mention potentially ca lling the police from th e closet. These differences are important in light o f the sound test that St. Paul police conducted after Heidi was killed. During that sound test, officers upstairs used a video recorder to record anot her officer fiddl ing with the d oorknob on the fr ont door. In the video recording, the doorkno b jiggling is inaudible from the bedro om and the bathroom, but is faintly audible from th e top of the stairs betw een the bedroom and t he bathroom. Thus, whether Firkus was in the bathroom, the bedroom, or at the top of the stairs betwe en the two when he heard jiggling could ma ke a difference in whether Firk us’s statements about the intruder are true. Based on all these fac ts, it is not a circumstance prove d that Firkus was i n the bedroom when he claimed to hear someone jiggling the doork nob. 13 There is no direct evidence that this was the case. Rather, th ere is evidence, based on one of Firkus’s statements, that he was in the bedroom at the time he claimed t o hear the doorknob j iggle and there is evidence, based on another of his statements, that he was a t the top of the stai rs. Further, w hile the State introduced the se statements at tr ial, Firkus did not testi fy. The jury did not have the o pportunity to obser ve Firkus testify to a particul ar version of even ts on the stand or be c ross - examined a bout the inconsistencies. Although th e content of Firku s’s 13 If it were a circum stance prove d that Firkus was in the bedr oom, then Firkus’ s statement that he hear d noise at the door would not be a circu mstance proved beca use direct evidence from the s ound test that noise from th e doorknob was ina udible from the bed room contradicts his stateme nt that he heard the noise.

C-35 statements conflict s— meaning that both cann ot be true —the existence of both statements is a circumstance prove d under our test. In the same vein, we co nsider the stateme nts B.O., the next - door neighbor, has give n over the years as circumstances proved. Exce pt for the single consistent element of B. O.’s account that he heard t wo gunshots next door around the time of Hei di’s murder, his story has changed many times. B.O. has, at different times, st ated that h e heard a male v oice saying, “you shot me” or “you shot he r,” that the voice he heard might have b een female, and that he might have heard at l east one voice bet ween shots. His testimony did not establish what occurr ed on that morni ng. B.O.’s var ious statements and testimony a t trial as to what he remembered are circumstance s proved, and we examine the inferences from the testimony and state ments in step two. E. Having determined the circumstances proved a s described above, I tu rn to step two of the circumstantial - e vidence test — deter mining whether the circ umstances proved, wh en viewed as a whole, support a reasonable infe rence inconsiste nt with guilt. In reviewing a conviction based on circumstantia l evidence, we will not reverse “ on the basis of mere conjecture.” State v. Cox, 884 N.W.2 d 400, 412 (Minn. 2016). Stated differently, a defendant cannot rely on an inference that has no factual support in the record. See Tscheu, 758 N.W.2d 849, 860 – 61 (Minn. 2008); State v. Johnson, 995 N.W. 2d 155, 163 (Minn. 2023). Rather, to “succ essfully challenge a con viction based upon circ umstantial evidence, a defendant must point to evidence in the rec ord that is consistent with a rational theory other than guilt.” State v. Taylor, 6 50 N.W.2d 190, 206 (Minn. 2002). On the other h and,

C-36 the fact that the inference a jury draws ma y be more reasonable or more likely tha n the alternate inference the defense propose d is not enough to render th e alternate inference unreasonable. If the defense can put forth a single reasonable th eory consistent with finding that the defendant was not g uilty based on all the facts prove d, reversal is required. See State v. Andersen, 784 N.W.2 d 320, 329 (Minn. 201 0). 14 As noted, Firkus co ncedes that, if the re was no intruder, the evidence is suf ficient beyond a reasonable d oubt to support the jur y’s conclusion that he killed Heidi and acted with both intent to kill and premeditation. Firkus also agrees that the circumstance s proved support a reasonable inference that there was no intrude r. Thus, under the specific facts o f this case, we must determine whether there is a reas onable alternati ve inferen ce that an intruder murdered Hei di during a home invasion. After carefully reviewing all the circumst ances proved i n their totality, I conclude that Firk us’s narrative abou t an intruder is not a reasonable infe rence that the jury coul d have drawn. 14 I disagree that re versal is necessary under the circumstantial - eviden ce test unless the State’ s case i s “infallible. ” That sets the bar too high. The State’ s burden in every criminal case is to prove the defendant guilty beyond a r easonable doubt. State v. Lehman, 3 N.W.3d 875, 88 0 (Minn. 2024) (stating that “[t]he State does not have the burden of removing all doubt, but of remo ving all reasona ble doubt” (q uoting Al-Naseer, 788 N.W.2d at 473)); see State v. Smith, 674 N.W.2d 398, 403 (Minn. 200 4) (stating that proof be yond reasonable doubt “does not require the case to be proved beyond all p ossibility of doubt, ” but is based on reason and common sense, and approving description of reasonab le doubt as the amount of proof that ordinary men and women rely up on in making their own most important decisions). Our review of the sufficiency of the eviden ce proceeds against thi s standard of proof. F or this reason, our cir cumstantial - evidence test requires that the defendant establish th at there is a r ea sonable inference to be drawn from all the circumstances prove d that is inconsistent with guilt.

C-37 First, it is sig nificant to my analysis that t he evidence strongl y supports that Firkus had a motive to kill Heidi. State v. Be rndt, 392 N.W.2d 876, 879 (Minn. 1986) (stating that “if the state ca n establish a credible motive, credibility is le nt to the state’s contenti on that the accused commi tted the crime”). Heidi was shot one day before the Firkus es were to be evicted from their home. Their home had been sold almo st a year earlier. They were well past the point of f oreclosure, not havi ng made a mortgage payment sin ce 20 08. There is substantial evidence that Firk us had hidden the foreclosur e from Heidi. Heidi and Firkus’ s text messages indicate that Heidi deferred to Firkus on financial matt ers. Heidi had not rea ched out to anyo ne about th e financial crisis t he Firkuses f ac ed; instead, i n 2009, she told her mother that “Nick t old her they were fine.” 15 The evidence also shows that Firkus misled Heidi into believi ng they were victi ms of identit y fraud, and witness es testified that Heidi t old them this h ad happened. Fir kus attended the March 2010 eviction hearing by himself ev en though Heidi worked nearby. Though Heid i had requested time off from work to help her parents mo ve, she had not requested time of f to move out of he r own home. The day before the Firkuses were to vacate their home, no thing was packed or ready for the move, and there were no plans for where they wou ld go. Heidi and her friends, in fact, had pla ns to get pedicures that day. Firkus had hidden the couple’s serious financial problems fro m family, friends, a nd the couple’s church c ommunity. Neither 15 Firkus argues that Heidi must have seen fi nancial correspondence ar ound the house that would have notifie d her about the Firkuses’ financial sit uation. But Firkus offers no evidence of that. It is n ot a circumstance prov ed.

C-38 Firkus nor Heidi had told a single witness about the forec losure and evictio n or their dire financial situation. There is no evidence th at the Firkuses were un happy in their marriage or that Firkus had made any threats against Heid i. But the outward app earance of happiness does no t cancel out the mountain of evidence that Firkus was hiding critically i mportant infor mation from Heidi about the couple’s finances — information that could have shattered the relationship. Second, the State in troduced unrefuted evidence that Firkus could have comm itted the murder. Afte r creating and a nalyzing a model of the crime scene, FBI experts determined that the forensic evidence was co nsistent with a conclusion that Firkus sho t Heidi and himself. The circumstances pro ved also show that th e FBI expert could no t rule out the possibility that an intru der shot Firkus in the l eg during a struggle ov er the gun by angling the gun down after shooting Heidi. But the FBI only tested the State ’s theory of th e case — that Firkus could hav e shot Heidi in the back and then shot himself i n the leg. Neither t he FBI nor anyone el se tested Firkus’s alternative theory that an intrud er shot Firkus in the leg and Heidi in the bac k. T he FBI witness thu s testified that F ir kus’s theory was possible, but it is not true that sh e testified that th e FBI’s crime scene m odel was equally consistent with an intruder the ory as with the State’s vers ion of events. Much of the re maining evidence in the case f ocuses on F irkus’s intru der theory. In assessing this theory, I start with the fact that no one aside fr om Firkus saw an in truder entering or leaving the house. B.O.’s testimony establis hes that two s hots were fired in th e

C-39 house and that some one (male or fem ale) may have sa id something al ong the lines of “y ou shot her” or “you shot me.” Because of his inconsistent s tatements, we do not kn ow when B.O. heard the voices next door (aft er or in between the tw o shots). B.O. acknowledge d that he may have heard Firkus as he was talkin g to the 911 operator af ter he and Heidi were shot. B.O.’s testimony does not conclusively establish what he heard. The details of Firkus’s own story about what happened on the morni ng Heidi was shot are based on Firkus’s stateme nts to police, not trial testimony. It is important to my analysis of Firkus’s int ruder theory that his n arrative about the even ts on the morning of April 25 materially ch anged over the cour se of his sev eral statements to police. When initially asked, Firkus said he could not be cert ain whether there was one intruder or more, could not say if the intruder had facial hair, and was unsure of the int ruder’s race. At the police station, he ulti mately gave a ge neric description of the intruder, stating that he was black with lighter ski n, 6’1” or 6’2” an d 215 to 220 pound s, and had been wearing a h ooded sweatshirt, sunglasses, and gloves. 16 Just one d ay after Heidi’s mur der, Firku s expressed to Heidi’s parents that he believed the intrude r would never be found. 16 The concurrence/ disse nt highlights one pot ential suspect wh o might have matc hed Firkus’ s description of the intruder and whose sister lived near the Firkuses. When shown a lineup that inclu ded this suspect, Firkus failed to i dentify anyone tha t he recognized. The suspec t was also five inches shorter and 5 0 pounds lighter than the intruder Firku s described to police. Firkus told polic e that the intruder was “much, m uch taller” and “a lot bigger” than himself. But this suspect, standi ng at 5 feet 9 inches, would have been just one inch taller and abo ut the same weight as Firkus. It is highly do ubtful —and certainly not reasonable — tha t this person, who was f ar off from the physical description of t he intruder and who Firkus immediatel y ruled out when shown a lineup, could have been the intruder.

C-40 Further, Firkus’s narra tive works only if he heard the intr uder jiggling the fron t door; absent that startin g point, the entire se ries of events that Firkus cl aims followed make no sense. But the reasonableness of Firkus’s claim that he heard an intruder jiggling the door is dubious given his contradictory statements on the subject. Firk us’s statements place him either in the bathroom, on the wa y to the bathroom, or in the be droom when he first heard the intruder at the door. The sou nd test investigators conduc ted and testimony from officers who conducte d the test indicate that it is very unlikely th at someone could have heard the front doorknob from the bathroom (w here Firkus initially told police he was when he heard the noi se) or the bedr oom. The vi deo recorder evi dence is no t conclusive because a video recorder does not necessarily have the same sound sensi tivity as a human ear, 17 but the sergeant’s testimon y that he could not hea r the front doorknob ji ggling from most of the upstairs area suppo rts finding that Firkus d id not hear jiggling at t he front door. 18 Moreover, even if Fir kus was on the landi ng and could have he ard the front doorknob jiggling, the rest of his story turns on a c onfluence of eve nts taking place in a 17 In a portion of the officer ’ s testimon y, he agreed that the human ear may be more sensitive to sound than a video recorder. Not ably, the sergeant also testified that a human ear may be less se nsitive than a vi deo recorder. W e h ave no way of knowing, and n o testimony establishing, exactly how sensitive the video recorder was compared to the human ear. What we do know is that the sergeant also t estified that the sound the video recorder documented matches wh at he heard on the day of the sound test. 18 Because Firkus said in one of his statements t hat he may have been on the way to or from the bathroom when he first heard the intruder trying to break in, and because t he sound test evidence demonstrated t hat the d oorknob jiggling was perceptible fro m the landing, based on the sound test evide nce alone we cannot rule out or find unreaso nable the inference that Heidi was shot while trying t o escape an intruder.

C-41 precise and na rrow timeframe. 19 Accordin g to Firkus’s statements, once he heard the doorknob jiggling he woke Heidi and told he r there was an intruder and she needed to cal l 911. Firkus loaded tw o rounds into his shotg un, which happened to be in the bedroom. Heidi grabbed her wallet and heade d down th e stairs in front of Firkus, wh o followed her with the shotgun. In accordance with Firkus’s directive, Heidi called 911 and reported tha t someone was breaking into her home. Heidi did not tell the 911 operator that she had actually observed an i ntruder. Thus, while it is plausible t hat Heidi’s 911 stateme nt reflected a personal observation, it is e qually possible that Heidi was r eporting what Firkus admitted he told her upstairs. The officers who arriv ed on the scene obse rved few common signs of forced entry or struggle. While ther e is evidence that a rug was wedged in th e door and a pair of sh oes was out of place, there is also ev idence that items on a wobbly table in the entryway were undisturbed when the police arrived, tho ugh they fell off easily when police touched the table. In addition, a locksm ith testified that a break - in was only pos sible if Firkus neglected to set the deadbolt the night be fore. Firkus stated he normal ly set it. Even if the deadbolt was not set, there is little evidence of the door being forced open. An investigat or testified about tool marks on the do or frame and stated that the most li kely explanation was that the marks were old and had bee n painted over. As Fi rkus notes, the investig ator also testified that it “possibl e but not probable” that the marks were fresh c ompression imprints 19 The State’ s theory of t he case is much simple r, requiring f ar fewer specific even ts and less precise timing.

C-42 from a flathead screwdriver. Inves tigators did not find a screwd river matching the impressions at the Firk us house, meaning that any intruder would ha ve had to remember and taken the screwdri ver with them after the struggle and shooting. In addition, the 911 ca ll did not record soun ds of a br eak - in or struggle. 20 There were no identifiable fingerprints or DNA at the scene from anyone other than Firkus and Heidi. 21 Finally, even according to Firkus’s timeli ne, an intruder would have had to open the front door at the exact moment Firkus was pa ssing by (an d after Heidi had gone by). Given the timing of the 911 c all and the location of Heidi’s body, the shotg un would have had to go off almost immedia tely after the intr uder entered the house and started strug gling with Firkus, accidentally hit ting Heidi squarely in t he back and then Firku s in the leg. As Firkus points out, there are individual circumstances proved that suppo rt his intruder theory. Thi s is true in nea rly every case; there will almost always be evidence that, when viewed in is olation, raises doubt ab out a defendant’s guilt. In the second step of the circumstantial - evidence test, h owever, our job is not to parse t hrough each piece of 20 Firkus does not di spute that no so unds of strug gle are audible on the 91 1 recording, but insists that is to be expected becau se the phone was not in speake r phone mode. There is no evidence in the record to support this argument; it is speculation. See Johnson, 995 N.W.2d at 163 (st ating that a party cannot rely on an infere nce that has no factua l support in the record). 21 In his initial sta tement to police, Firkus rep orted that the int ruder was wearin g gloves— a fact he now claims explains the lac k of fingerprints and DNA. Of course, the lack of identifiable fin gerprints and DNA i n no way suppor ts an inf erence that there was an intruder; it merely weakens (but does not eliminate) the stre ngth of the lack of fingerprints and DNA a s support for an inferen ce there was no intruder—an inferen ce that Firkus admits is reason able.

C-43 evidence in isolation and decide whe ther it supports an inference in consistent with guilt. Our job is to look at the circumstances p roved as a whole a nd determine if there is a reasonable inference th at the defendant is not guilty. Isaac, 9 N.W.3 d at 817 – 18. After carefully considering t he totality of the circumstances proved in thi s case, including t he strong and nearly unrefuted motiv e evidence, the fact that the State affirmatively established that Firku s could have sh ot Heidi and hims elf, and the mat erial inconsistencies in Firkus’s varying statements to polic e, I am convinced that the only reasonable inference is that there was no intr uder in the home when Heidi was shot. * * * In summary, I would a pply the circumstantia l - evidence test in a man ner consistent with our case law that fulfills the purposes of the test when we first adopted it. Applyin g that test here, I would a ffirm Firkus’s convicti on.

C-1 CONCUR RENC E PROCACCINI, Justice (concurring). I join in the opinion of the court. I write separately to note that the divergent views expressed by the members of the court in thi s case show that the concerns raised by the dissent in State v. Har ris have not diminished. In that dissent, Justi ce Lillehaug observ ed that Minnesota is an outlier in maintaining a dichotomy betw een direct and circumstantial evidence in appellate review. State v. Ha rris, 895 N.W.2 d 592, 604 (Minn. 2017) (Lillehaug, J., dissentin g) (noting that “the ap pellate courts of the U nited States, 41 other states, and the Distr ict of Columbia” all follow a u nified standard of review). He als o asserted that “the distinction between dir ect and circumstantial eviden ce is arbitrary,” “the notion that direct evidence is necessaril y more reliable than circumstantial evi dence is outdated,” and “the differing standards of review are confusing an d difficult to apply.” Id. at 606. In my view, the fir st two poi nts remain valid, a nd the third is on display here— where we disagree about the descriptio n of the circumst antial - evidence standar d, its application, and the ultimate dispositio n of this case. Although t he parties did not invite us to reexamine the disti nction between direct and circumstant ial evidence on appel late review, and we th erefore do not have an opport unity to do so here, I would be open to th at invitation in a future ca se. McKEIG, Justice (conc urring). I join in the concurrenc e of Justice Procaccini. HENNESY, Justice (concurring). I join in the concurrenc e of Justice Procaccini.

C/D-1 CONCU RRENCE & DISSE NT HUDSON, Chief Justic e (concurring in part, d issenting in part). The purpose of the circumstantial - eviden ce test is to guard against wron gful convictions. For almo st a century, this court has acknowledged th e unique posture of circumstantial evidenc e cases by applyi ng a separate standard of a ppellate review. S ee State v. Johnson, 217 N.W. 683, 684 (Minn. 1928). And although the State has repeatedly asked us to overturn this precedent, we have declined to do so beca use of the basic pr inciple for which it stands: “our duty to ensure t hat defendants not be convicted based o n insufficient evidence.” State v. Harris, 895 N. W.2d 592, 599 (Minn. 2017). In fidelity to that duty, I disagree with the court in its articul ation of the circu mstantial - evidence test and its conclusion that the only reasona ble inference that can be dra wn from the evidence is that Firkus caused the death of Heidi with premeditation and intent to e ffect her death. Thus, I would reverse Firkus’s con viction. I therefore respe ctfully dissent from Part I of the court’s opinion. 1 I agree, in part, with Justice T hissen’s concurrence (“ the concurrence”). Specifically, I agree with the concurrence’s arti culation of the circu mstantial - evidence tes t, but I disagree wit h the c oncurrence’s conclusio n that no reasonab le inference ma y be drawn from the circumstances proved except that of guilt. 1 I agree with the court’ s holding in Part II that the district court did not err when it applied the direct- evidence standard in considering Firkus’ s motion for judgment of acquittal made prior to the verdict.

C/D-2 A. “[A] circumstantial evidence case is th e only case in the judicial sys tem in which every witness can tell the truth and an inn ocent person can be convict ed.” C. Rauch Wise, Circumstantial Case — Circumspect C onviction, Nat’l As s’n of Cri m. Def. Lawyers 2 (2022). Circumstantial evidence is unique because it “alway s requires an inferentia l step to prove a fac t that is not required wi th direc t evidence.” Id. It is at this i nferential step where we serve as a bulwark betwee n the jury and the defendant’s pres umption of innocence. Firkus’s case provides a clear exa mple of the power of inference. The evidence presented at trial provi ded two equally reason able scenarios: that Fir kus intentionally shot Heidi, or that a struggle with an intruder caused Firkus to shoot her. Jurors are unlikely to envision a scenario of innocence on the ir own in light of narr ative evidence of guilt. Eugené e M. Heeter, Comment, Chance of Rain: Rethinking Circumstantial E vidence Jury Instructions, 64 Hastin gs L.J. 527, 538 (20 13). Thus, it is our job as the revi ewing court to ensure that the State has disproven any reasonable scenario of inno cence. In my view, the State did not do so here, and the court errs by holding otherwise. The court gets it wron g in large part because its articulation of the circumstantial - evidence test is f lawed. In win nowing down the evidence t o determine the circumstances proved, the c ourt practically d iscards all evi dence that is incon sistent with the g uilty verdict. 2 It is no surprise then that at the seco nd step of the test, the court conclu des that 2 The court mak es a distinction between “resolving all questions of fa ct in favor of the jury’ s verdict” and disregardin g evidence that is incons istent with the jury’ s ver dict, but this is a distinction without significance. The practical ef fect is the same — excluding a ny evidence that might su pport a rational hyp othesis other than guilt.

C/D-3 the circumstances proved when viewed as a w hole are consistent with the hypothesis th at Firkus is guilty and i nconsistent with any r ational hypothesis oth er than guilt. 3 The circumstantial- evidenc e test, as articulated by the court today, d oes nothing to guard against wrongful convi ctions. If anything, it u pholds wrongful convi ctions by design. The court’s main critique of the separate writ ings is that they pro pose an approach that infringes on the jury’s role as the sole judge of credibility. But the court is just as guilty of this charge. A n approach that resolves all fact questions i n favor of the jury’s verdict infringes on the jury’s role becau se a jury “is free to accept part and reject part of a witness’s testimony.” See Harris, 895 N.W.2d at 600. W hile criticizing us for doing so, the court ironically us urps the jury’s role by retroactively resolving all fact questions in favor of the verdict reg ardless of the jury’s act ual credibility determin ations. 4 For these r easons, I disagree with Part I of the court’s opi nion. Instead, I join J ustice Thissen’s concurrence i n its articulation of the circumstantial - evide nce test. The court, the concurrence, and I agre e that the factual scenar io in which there was n o intruder and Firkus killed Heidi with a shotgun blast to the back is a reasonable inference consistent with guilt. 3 As used throughout th e concurrence/dissent, the terms “hy pothesis” and “theory” are interchangeable. 4 Under the court’ s articu lation of the circumstan tial - evidence test, our long -standi ng commitment to heighte ned review in circumstantial evidence cases is an illusory one. If our commitment to a h eightened standard me ans anything, it cannot be the case that we disregard all evide nce that is inconsiste nt with the verdict under both the direct -evidence test and the circu mstantial - evidence test. Otherwise, t he two tests c ollapse into one. As Justice Thissen observes in his concurren ce, implicit in our precedent adopting a heightened standard in circumstant ial evidence cases is an acknowle dgment that ap pellate courts have to act as so -called 13th juror s to ensure that defendants are not convicted based on insufficient evidence.

C/D-4 But it is here that we part ways becaus e that is not the o nly reasonable infere nce to be derived from the c ircumstantial eviden ce with which we are present ed. “[T]o succeed on his challenge to the verdict, [Firku s] may not rely on mere c onjecture. He must instead point to evidence in the record that i s consistent with a rational the ory other than guilt. ” See State v. Tscheu, 75 8 N.W.2d 849, 858 (Mi nn. 2008) (citation omit ted). I believe Firkus has done so here. I ther efore disagree with the court’s and concurrence’s conclusion at the second step of the circu mstantial-evidence test that the circumsta nces, as a whole, supp ort only one rational infere nce — that Firkus intent ionally shot Heidi. See Harris, 895 N.W.2d at 600 – 01 (articulating the second ste p of the circumstantial - eviden ce test). I believe there are two rational inferen ces to be drawn in this case. To sustain a co nviction of first - d egree murder base d purely on circumstantial evidence, “[a] detailed review of the evide nce in [the] case, made in a light most favora ble to the verdict, [mu st] exclude, beyond a reasonable do ubt, all reason able inferences other than that of appel lant’s guilt.” See State v. Scharmer, 501 N.W.2d 62 0, 622 (Minn. 1 993); Minn. Stat. § 609.185 (a)(1) (2024) (defining the elements of first - degree premeditated murder). At the secon d step of the circ umstantial - evidence test, “we d o not defer to the fact[- ]finder but exami ne the reasonableness of the inferences ourselves.” State v. McI nnis, 962 N.W.2d 874, 890 (Minn. 2021). The concurrence correc tly identifies the circumstances proved. A non - exclusive list of the circumstances proved consis tent with guilt are as follows: t he FBI crime scene model supported a non - intruder theory; the distance from the s hotgun to Heidi’s wound is consistent with Firkus shooting her from the base of the stairs; there was no tip ped -over

C/D-5 furniture or other disru ption of the items in th e hall; the tool marks o utside the front door lock could be old and painted over, rather than freshly created; there were no DNA or fingerprints that conclu sively matched a perso n who is not Firku s or Heidi; Firkus’s thigh wound could be consi stent with a self - inflicted gunshot; Firkus an d Heidi were facing serious financial difficulties that could p rovide Firkus with a motive to kill her; the police’s video recorder sound test indic ated that Firkus could not h ave heard th e doorknob when he was in the bedroom or bathroom, as he told police; B.O. and the other neighbors did not see anyone leaving th e Firkus home; Firkus had gunshot resid ue on his hands; the locksmith testified that a break - in was only possible if Firkus neglect ed to set the deadbolt the night before, although Firkus usually set the lock every night; t he details in Firkus’s statements to police changed in material w ays over the course of the investigati on; Firkus could not identify a suspect from a p olice lineup; and there were no sounds of a break -in or struggle on Heidi’s 911 call. But these circumstances proved have an inver se analogue that is not consistent with guilt. Specifically, the concurrence correctly n oted the following were also circumst ances proved: Firkus m ade several statement s to police, inc luding his rep eated assertions that there was an intru der; Heidi’s 911 call stated that there was an intruder; the locksmith witness testified that the marks by the fro nt door lock were consiste nt with damage from other burglary scenes; the FBI crime scene m odel was consistent wi th Firkus’s intruder theory; the FBI model and BCA balli stics analysis indicated that Firkus could have suffered a gunshot wound to the thigh during a str uggle; Firkus provided a s uspect description t o the police and to a pol ice sketch artist; Firku s’s statements in dicated that he could have

C/D-6 been in either the bedroom or the bat hroom when he heard the doo rknob jiggle; the video recorder may not have been as sensitive to sound as the human ear; on the day of the shooting, B.O. told a reporter that he heard two gunshots from next door and soon afterwar d heard a male voic e saying “you sh ot me” or “ you shot her”; t he entryway ru g and shoes were disturbed; the fr ont door was propped open one inch when the police arrived; the intruder would not have been visible to the nei ghbors if he had ran to the right of the Firkus home when fleeing; the door knob lock coul d have been defeated in as little as 15 seconds if the deadbolt wa s not engaged; Firkus stated that the intruder was wearing gl oves, which would make him less li kely to leave DNA or fingerprints at the scene; there was a previou s burglary in the s ame neighborhoo d and Heidi f elt uncomfortable in the home; the Firkuses outwardly had a loving relationship; one finger print on the front screen door did n ot match Firkus or Heidi, and another fingerp rint from the interior of the door was inconcl usive; there were multiple DNA samples that were insufficient for testin g; and Firkus did not receive any of Heidi’s life insurance money. These are over a d ozen circumstances prove d that are consistent with a rational theory other t han guilt and yet the co urt excludes the vast majority of them. 5 But there is more. Firkus offers additional support for his intrude r theory. To explain the lack of dist urbance of the wobbly console table in the ent ryway, he points out 5 The court claims that I essentially include “all the evidence” presented at trial in the circumstances proved. But I only inc lude what I must. It is well-estab lished precedent that the positive testimony of an unimpeac hed witness “cannot be arbitra rily disregarded by either court or jury, fo r reasons resting wholly in their own minds, and not based upon anything appearing on the trial.” See O’Leary v. W angensteen, 221 N.W. 430, 431 (Minn. 1928).

C/D-7 that four police officers entered the h ouse after his 9 11 call without disturbing any items on the table. He notes t hat the FBI’s m odel “illustrate[s] that [Firkus] could have struggled with an intruder in t he area of the st airs, and not knocked into any furnit ure in the entryway.” And he asserts that und er the State’s theo ry, in order t o shoot Heidi in the kitchen and then himself in the leg, he woul d have had to rotate his body 180 degrees between shots. He says, “[t]he State offered no explanati on for why, if [Firkus] stage d this encounter to look like a struggle with an intrude r, he would have pirouetted between shots.” Finally, to rebut the State’s claim that he was suspiciously calm during his poli ce interviews, Firkus notes that he was sedated at the hos pital for his i njury and had previously been hysterical. In addition, Firkus presented other pl ausible evidence that under cut the State’s theory. For example, B.O. testified at trial th at he told a Pioneer Press reporter, on the day of the shooting, th at after hearing gun shots from next door, he heard a male voice cry o ut “you shot her” or “you shot me.” In suppo rt of its narrative that there was no intruder, the State posited at trial that the male voice B.O. heard wa s actually Fir kus talking to 911 — rath er than Firkus talk ing to an intruder. In response, F irkus notes: (1) the 91 1 call transcript does not include the words “you shot her” or “you shot me, ” which indicates that he was directing t he words at the intruder w hen he was shot, rather than relaying it o n a phone call; a nd (2) the use of the pronoun “you” is circumstantial evidence that a nother person was in the room to whom Fir kus was speaking. It is also note worthy that, at trial, B.O. did not g ive a pre cise timeline, but he heard the voice yell ou t soon after hea ring the gunshots. Presum ably the exclamation and the shots were close in time, but it took Firkus

C/D-8 almost 65 seconds after Heidi was shot to dia l 911. It is therefore a reasonable inference that the male voice B.O. heard was reacti ng to the gunshots in the h eat of the moment, not talking to police o n the phone over one minute later. 6 Furthermore, B.O.’s comments shortly after the murde r to the reporter are cir cumstances proved, and he told the re porter that it sounded like the male voice was “scared ” and that the voice had said “stop, please.” These circumstances pr oved support Firk us’s intruder theory. Firkus also points to the tight timeline be tween the end of Heidi’s 91 1 call and the start of Firkus’s 91 1 call as additional proof that Firku s could not hav e staged the crime a s the State argued. 7 Firkus initially str uggled to call 91 1 from Heidi’s phone. Thirty -eight seconds after Heidi was shot, Firku s made his first attempt to con tact 911, but accid entally dialed two other numb ers that were in Heidi’ s recent calls list. The State’s theory wou ld give Firkus 38 s econds to shoot Heidi, shoot himself in the leg, disturb the rug and shoes at the entryway, prop the front door open one inch, and crawl or wal k to Heidi’s bo dy to call 911 from her phon e. Firkus asserts that th e timeline is “impossib le.” 6 It is another possible inference that B. O. lingered at the window for ov er one minute after hearing the gunshots before goin g downstairs to try to contact po lice on his computer, and therefore overheard both the gu nshots and the 911 call. But it is also a circumstance proved that B.O.’ s t estimony at trial 10 years after the murder differed from what he initially told the report er and police in 2010. 7 Conversely, the concurrence argues that Firkus’ s intruder theor y requires too tight of a timeline between the intruder brea king open the door, the struggle, and the first shot s ringing out. I mention Firkus’ s ar gument merely to show that he has pointed to eviden ce in the record in support of his theory. Cf. T scheu, 758 N. W.2d at 858.

C/D-9 B. We need not find that the State’s version of ev ents is impossible in order to conclude that the State did not meet its burden in this case. I ackn owledge that an a ppellant casting doubt on the plausibili ty of the State’s theor y is not in itself suffi cient to challenge a conviction. See State v. Race, 383 N.W.2d 656, 662 (Minn. 19 86). “Our cases do not require that the evide nce be consistent o nly with a sp ecific theory adva nced by the prosecution.” Id. Rather, “[o]ur decis ions make clear. .. [a defenda nt] must show that his claim is consistent with a rational hypothesis o ther than guilt.” Id. We have repeatedly sa id that to support a conviction, the circumst antial evidence “must point unerringly to the accused’s guilt.” State v. McArthur, 730 N.W.2d 44, 49 (Minn. 2007) (citation omitted) (internal quo tation marks omitted). “Unerring” means “[i]ncapable of error” or “infallible. ” Unerring, Black’s L aw Dictionary (12th ed. 2024); see also Merriam- Webster’s Colleg iate Dictionary 1366 (11th ed. 2020) (defining “unerring” as “committ ing no error: faultless, unfailing”). I c annot say that the State has “infallibl[y]” proven beyond a reasonable do ubt that there are no reasonable hypotheses inconsistent with guilt. 8 There are a litany of circumstances proved that are consistent with 8 The concurrence asserts that I set the bar too high by requirin g the State to put on an “infallible” or “u nerring” case. I agree with the c oncurrence tha t the State’ s bu rden — as articula ted in our case law — is to disprove beyond a reasonable doubt any reasonable hypothesis inconsisten t with guilt. See State v. Andersen, 784 N.W.2d 320, 33 0 (Minn. 2010). But I d isagree with the concu rrence’ s con tention tha t the burden I have articulated is too high. Circu mstantial eviden ce cases are subje ct to enhanced scrutiny by a reviewing court, he nce the reason why the court does not apply the direct evidence test. See Bernhar dt v. State, 684 N.W.2d 465, 477 (Minn. 2004). I am merely using a plain language analysis to reiterate our require ment that “the circumstanti al evidence must do

C/D-10 an intruder theory. And no expert in the record conclusively foreclos ed an intruder theory. To the contrary, all of t hem testified at trial th at the intruder scenario was at least possible, even if not highly likely. Cf. Harris, 895 N.W.2d at 602 – 03 (reversing a circumstant ial evidence ineligible -person-in-po ssession-of-a - firearm conviction i n part because the expert testified at trial that approxi mately 25 percent of the general population could no t be excluded as a source of DNA found on the firearm); State v. Al - Naseer, 788 N.W.2d 469, 477 – 78, 4 81 (Minn. 2010) (reversing a circumstantial evidenc e vehicular homic ide conviction in part because police offi cers testified that there could be various reasons why the defendant did not react to the car accide nt, including reasons that were inconsi stent with guilt). “[I]f any o ne or more circumsta nces found proved are in consistent with guil t, or consistent with innoc ence, then a reasonable doubt as to guilt arises. ” Id. at 474 (quotin g Andersen, 784 N.W.2 d at 338 (Meyer, J., concurring)). Becaus e there are multiple circumstances pr oved consistent with a rational hypo thesis other th an guilt, the State has not “unerringly” proven its case beyond a reas onable doubt. McArthur, 730 N.W.2d at 49. Here, the circumstances proved do not rule out Firkus’s i ntruder theory; in fact, the evidence supports it. The entire testimony o f the FBI visual investigation specialist is a circumstance proved. And the FBI witness t estified that their model of the crime scene was equally consistent with an intruder the ory as with the State’s version of events. 9 more than give rise to suspicion of g uilt; it must point unerringly to the accused’ s g uilt.” Id. (quoting Scharmer, 501 N.W.2d at 62 2). 9 The FBI visual inve stigation specialist testified that they d id not specifically build a model to disprove Firkus’ s intruder t heory. But when asked wheth er Firkus’ s theory was

C/D- 11 Similarly, the police se rgeant testified it was p ossible that the marks were freshly made by an intruder. In addition, there was a crumpled r ug and an askew pair of shoes in the hallway that were consistent with a potential struggle, and t he front door w as propped ope n one inch. Unlike in Tsc heu, it is not a distant theoretical po ssibility that a third party entered the Firkuses home, struggled with Firkus over the gun, and cause d him to kill Heidi in the process. In Tscheu, w e pointed to the presence of DNA consi stent with Tscheu’s profile found under the vi ctim’s fingernails and in her rectum as support for the only reasonabl e hypothesis that Tscheu forcibly restrai ned her, penetrated her, and then drowned her withi n a short period of time. Id. at 860. The physic al evidence made it implausible to us “that he engaged in conse nsual vaginal sex wit h [the victim] and t hat [the victim] was subsequently attacked and murdered by a diff erent person” who left no physical evidence of their presence. Id. a t 861. Here, however, the physical e vidence of a third party can be readily inferred from th e crime scene. The concurrence points to the lack of identi fiable fingerprints or DN A at the scene as support for its inference that there was no intruder. But one cri me scene investigator testified at trial that there was a latent fingerpr int on the exterior screen door that did not match either Firkus or Heidi, and there was an other inconclusive print found on the interior frame of the main door. The tw o unknown f ingerprints are circumstances pr oved. And although the DNA analyst at the scene was abl e to retrieve mult iple DNA sa mples, at least two of them were ins ufficient to perform D NA profiling. This, t oo, is a circumstance possible, the specialist t estified that “[a]nythin g is possible, and I beli eve our diagrams and exhibit show that [sic] possibilities.”

C/D-12 proved that is not inconsistent with an intr uder theory. See, e.g., Andersen, 784 N.W.2d at 332 (finding that “the lack of footprints around the crime scene is [either] not inconsiste nt with Andersen’s guilt, or consistent with his i nnocence”). Nevertheless, th e court and concurrence find that Firkus’s intrud er theory is not a reasonable inference that the jury could draw. This threatens to collapse the heightened two- step analysis we have sought t o apply to circumstantial evidenc e cases into one step that is deferential to the guilty verdict. Cf. Stat e v. Jones, 4 N.W.3d 49 5, 500 (Minn. 2024) (defining the one - step standard of review for direct evidence as “view[ing] the evidence in a light most favorabl e to the verdict and assum[ing] the fact - fi nder disbelieved any testimony conflicting with that verdict whe n considering whether sufficient evidence supports the jury’s guil ty verdict” (citation om itted) (internal quotatio n marks omitted)). Relying on inconsistencies in Firkus’s int erviews with police, the concurrence concludes that Firkus’ s intruder theor y was unreasonabl e for the jury to believe. The concurrence conducts an individua lized credibility assessment of ev ery statement Firkus ga ve to police, particul arly the suspect’s descr iption. The concurrenc e asserts that Firkus’s varying descriptions render it “highly dou btful” and “certainly not reasonable” to belie ve Firkus’s recounting of the intruder was accura te. But the job of the reviewing court is not to determine whether every statemen t the defendant provides to po lice matches with a specific theory of the case. As the concurre nce itself states, “the fact that the infere nce drawn by the jury may be more reasonable o r more likely than the alternative infere nce proposed by the defens e is not enough to render the alternativ e inference unreasona ble.” It is possible that Firkus’ s inconsistencies mean that he is lying about what happened that

C/D-13 night; but it is also possible that because of the panic of the moment, his memories of the intrusion were jumbled and confusing. Firkus does not have an obligation to expla in every discrepanc y in the circumstances proved in order to make his theory reasona ble. Rather, Firkus must “point to evidenc e in the record that is consi stent with a rational th eory other than guilt.” Tscheu, 758 N.W.2d at 858. As I explained above, he has identified evidence in the record to support his intruder theory. It is the State — not Firkus — that ret ains the affirmative burden to remove all reasonable doubt. Andersen, 784 N.W. 2d at 330 (“The State does n ot have the burden of removing all doubt, b ut of removing all re asonable doubt.”). A nd to the extent the concurrence argues that the simplicity of the State’s case renders it more believable, this court has ne ver held that the defendant must present a si mpler theory of the case in o rder to identify a rational th eory inconsistent with guilt. See, e.g., Al- Naseer, 788 N.W.2d at 477 (overturning the de fendant’s conviction in part because of e xpert testimony that th ere could have been “various reasons,” s ome of which were more likely than others, that the defendant was not awa re that he had hit a p erson while driving). There are two cases t hat are particularly helpful in guiding my a nalysis of whether Firkus’s theory is reasonable given some inconsistencie s in the fa cts: State v. We bb, 440 N.W.2d 426 (Minn. 1989), an d Race, 38 3 N.W.2d at 65 6. In b oth cases, the St ate’s theory of guilt — and th us, the conviction— rested almost e xclusively on dispute d facts and inconsistent defendant testimony. In Webb, a first - degree premed itated murder case, the State presen ted no direct evidence connecting th e defendant to the mur der victim. See 440 N. W.2d at 429 – 30. Nor

C/D-14 did the police fi nd any phys ical evidence that the murde r occurred in the defendant’s apartment as the State alleged, despite taking hundreds of forensic samples. Id. at 430. There was conflicting evidence that defend ant owned the bedspr ead found near the victim’s body. Id. The defe ndant told police that he owned the bedsprea d, but his testimony was contradicted by one of his former roommate s, who stated that he did not have such a bedspread. Id. The bedspread was also com mon to many other homes in the commu nity and a nearby hotel. Id. We ultim ately considered it a circumsta nce proved that the bedspread belonged to the defendant, see id. at 431 n.2, but we reverse d his conviction. Id. at 431. Although we “view[ed] the e vidence in a light most favorab le to the conviction, we [could] not say that the circumstantial evid ence in [the] case [was] consistent only with the appellant’s guilt, and inconsistent with any other rational hypot hesi s.” Id. at 43 0. That is because “[o]the r circumstances in [the] c ase undercut the state’s hypothesis of the appellant’s guilt.” Id. at 43 1. Notably, we did not require Webb to disprove the circumstances prove d aligned with his guilt, and we did not require him to resolve any inconsistencies in his p ersonal statements or to provide an explanation as to why they were inconsistent. 10 In Race, an other first - degree murde r case, we noted a lac k of direct evidence and a defendant whose st atements to authori ties contained num erous “[s]ignificant inconsistencies.” 383 N.W.2d at 662. Race owned a boat that he frequently took out on 10 W e noted “ [a]ppellant’ s admissio n that he owned the beds pread may have been the product of an overly assertive interrogation by the police,” id. at 431, given that he “suffered some sort of mental deficiencies.” Id. at 428.

C/D-15 Lake Superior. Id. at 657 – 58. One evening, h e took his wife on the b oat; she disappeared, and her body was later found on the lakeshore. Id. at 660. In stat ements to po lice, Race gave conflicting stories. He initially alleged t hat his boat engine flo oded, that he helped his wife into a life raft, and while he was towing her to shore, she floated away and drowned. Id. at 659. I n the first version of his story to police, there were two life rafts on board. The first one w ould not hold a ir, so he tossed the raft over board, inflated a second raft, and helped his wife into it. Id. Police, however, later discovere d that there was one raft still aboard the bo at, which had slash ma rks in the underside co nsistent with a knife. Id. at 660. Race changed his story to assert that he had kept the first r aft in the boat, rather than throwing it overbo ard. Id. The trial “focused on the existence or nonexistence of an alleged se cond raft” and “these inconsiste ncies [in Race’s stor y] were a major fact or in resolvin g the issue.” Id. In weighing the sufficienc y of the circumstantial evidence supporti ng Race’s conviction, we determined that “the jury, whose task it was, concluded there was only one life raft on board.” 11 Id. at 662. Therefore, “the only rational i nference to b e drawn from the circumstantial evidenc e is that appellant murd ered his wife.” Id. We noted that the re was no physical, forensic, or testimonia l evidence indicating tha t the second raft existe d. Id. But primarily, we found that the “[s]ignifica nt inconsistencies in app ellant’s statements to authorities substantiall y diminished the credibility of his assertio n of the existence of two 11 The existence of a second raft was crucial to the q uestion of guilt because, if it existed, Race’ s accoun t of an accid ent remained plausi ble but if it did not, Rac e’ s ac count was a fabrication desig ned to explain incrimin ating physical evidence.

C/D-16 rafts.” Id. The lack of evidence in the record, as well as Race’s diminished credi bility, underlaid our decision to sustain Race’s convi ction. 12 Id. In Firkus’s case, th e concurrence points to “ material” inconsistencies in Firkus’s statements to police. When first asked, Fir kus could not say wheth er there was one intruder or multiple intruders. Nor could he identify s pecific physical charact eristics of the intrud er. In a subsequent police interview, Firk us changed his story to say that the man was wearing a hooded sweatshirt, su nglasses, and gloves, a nd provided a phys ical description. 13 Similarly, Firkus at fir st claimed to police th at he was walking to t he bathroom to get a drink of water wh en he heard the front doorknob jiggling, and then later sai d that he was in the bedroom when he heard it. Relying primarily on the police’s video re corder sound test of the doorknob jiggli ng, the concurrence says t hat “it is very unlikely that someone could have he ard the front doorknob from the bathroo m. .. or the bedroom.” But the concurrence then immediately sa ys that “[t]he video recorder evid ence is not conclusive because a video recorder does not n ecessarily have the sam e sound sensitivity as a human ear.” The concurre nce agrees that both Firkus’s a nd the State’s versions of Firkus’s location when he hear d the doorknob are circumstances proved. I question, then, h ow 12 Race had also ta ken ou t several life insurance policies on his wife se veral months before her death, which he later used to pay o ff a home mortgage and personal loans. Id. at 661. 13 T estimony by an investigator at trial in dicated that the police found a suspect who largely matched Firkus’ s descri ption — although he w as shorter and w eighed less —wh ose sister lived nearby to th e Firkus home. It is a circumstance proved that the pol ice found a suspect, but it is also a circumstance proved t hat Firkus could not pick a suspect out of a later police lineup.

C/D-17 Firkus’s version is less likely to have occurre d. The police did not use a decibel meter to pick up the sound of the doorkno b. The sound test occurred in 2 010, when recording technology was signifi cantly less advanced th an it is today. And it i s not unreasonable to believe that someone who lives in a home is m ore attuned to slight sounds than some one — like a police officer — who does not live there. Unlike in Race, where t he physical evidence of the slashed lif e raft indicated that the defendant’s initial st ory that he threw the raft overboard was untrue, there is no concrete evidence ren dering one of Firkus’s statements untrue. As the conc urrence said, nothi ng about where Firkus was standing w hen he first heard the intruder is “c onclusive.” Firkus’s situation i s more akin to that in Webb, descri bed above. O ur reversal of Webb’s conviction wa s despite confl icting evidence on whet her he owned the bedspread found near the body because we focused on other circumstanc es proved that undercut the state’s hypothesis of Webb’s guilt. Webb, 440 N.W.2d at 430. As I have enum erated above, there is a long list of conflicti ng inferences in this case, rangi ng from the ballistics analysis to the unknow n fingerprint found at t he scene to B.O.’s wit ness testimony. The concurrence itself find s the video recorder re sult to be “not co nclusive,” and agreed tha t the intruder theory cannot be ruled out a s unreasonable “based on th e sound test evidence alone.” There are many conflicting inferences i n this case, whic h makes what we explai ned in Webb equally true h ere: the “circumstances [proved] may cast a suspicion of guilt on the appellant, but they i n no way exclude other rational inferences whi ch can also be drawn from these circumstanc es.” Id. at 431.

C/D-18 Finally, we turn to the motive evidence. “In a first - degree murder pr osecution, the state has no burden of establishing a motive f or the crime. Nonetheless, if the state can establish a credible motive, credibility is lent to the state’s content ion that the accused committed the crime. ” State v. Berndt, 3 92 N.W.2d 876, 879 (Minn. 1986). In circumstantial evidenc e cases, “[m]otive evidence includ es threats by the defendant, conduct by the victim known to have angere d the defendant, a nd plans or desires of the defendant that would b e furthered by the victim’s death.” M cArthur, 730 N.W.2d at 49. But here, the only mo tive evidence is of the last type — that Firkus was embarrassed by their financial situation and needed to kill Heidi to prevent h er from finding out about the upcoming foreclosure. In State v. Hughes, we weighed motive eviden ce the State presented at trial that th e defendant’s “marriage had deteriorat ed to the point of divorce,” that he was “distraught about their separation, ” that he was fearful “ divorce would lead to his loss of custody of the children,” and that his wife “pla nned to dis cuss child custody arrangements” on the day the defendant murdere d her. 749 N.W.2d 307, 314 (Minn. 2008). This, we felt, was sufficient to “provide[] a basis for the jury to infer that appe llant’s motive for killing his wife was to prevent her from leaving him and t aking the children.” Id.; see also Andersen, 784 N.W.2d at 331 (noting motive evid ence that the victim ha d recently ended his business relationship with the de fendant and that their p ersonal relationship wa s deteriorating). Here, however, the State’s motive ev idence is thinner. There is circumstant ial evidence that Heidi did not know about the imp ending foreclosure, na mely that s he had not talked to her parents about it, had not taken off work the day of th e foreclosure, and had

C/D-19 not begun packing up the house. But t here was additional testimon y that suggeste d she did know about the foreclosure and was merely embarrassed to discus s it publicly, given that all of the foreclosure documents were address ed to both her and Firkus and that financial documents were scattered througho ut the house where she could easil y see them. 14 There was also significant tes timony at trial about th e strength and love of what was presumably a happy relationship. See Berndt, 3 92 N.W.2d at 8 81 (rejecting the State’s narrative that the appellant wanted to kill his children and noting “[t]he uncontradicted evidence was that appellant loved [his chi ldren] and enjoyed thei r company”). Although Heidi’s kno wledge of their financial situation i s unclear, it does not rise to the level of a clear breakdown i n the marriage as we have seen i n cases like Hughes, where the defendant and his victim wer e actively separated and fighting over child custody. 15 See 749 N.W.2d at 314. And unlike in Race, where the defendant took out life insurance policies in hi s wife’s name several m onths before her murde r and used the money to pay off his perso nal debts, 383 N. W.2d at 661, Firk us signed over Heidi’s life insurance money— a policy that s he was enrolled in aut omatically at her j ob — to her parents, de spite 14 The concurrence ar gues that it is not a circ umstance proved that H eidi had seen t he foreclosure documents scattered around the ho use. I agree that the ev idence introduced at trial is insufficient to determine whether she actually sa w the documents, ju st as it is insufficient to know whether s he actually saw an intruder when she called 91 1 on that fateful morning. B ut there is ample testimony from the investigatin g of ficers at t rial that there were “dozens and dozens of foreclosur e documents” easily acce ssible in their home office. 15 In Hugh es, there was also substantial other direct and circumstantial evi dence indicating the defenda nt’ s inv olvement in th e killing, including neighbors’ observat ions that the defendant fled the house wit hin minutes of hearing g unshots rather than rendering aid to his wife. 749 N. W.2d at 315.

C/D-20 his indisputabl y dire financial situation. The concurrence sa ys that the “outward appearance of happine ss” does not cancel out the fact that Firkus wa s hiding information from Heidi that coul d shatter their marr iage. But tho usands, if not millions, of American couples have experie nced dire finan cial circumstances, up to and inclu ding home foreclosure. The vast majority of t hose peop le do not commit murder in order to a void their financial obligations. And in Berndt, w e explicitly rejected the proposed the ory that the defendant had a financial motive to kil l his wife because he was no t a named beneficiary of his deceased wife ’s life insurance polic y and stood to gain no other financial benefits. See 392 N.W.2d at 879. Here, the State could not identify any benef it that Firkus would receive if his wife was murdered. As with the other evid ence in this case, the State’s motive evide nce provides two conflicting but reasonable inferences arisin g from the circumstances proved: one where Firkus hid the foreclosure from Heidi and felt it necessary to kill her to prevent her from finding out about his financial misman a gement, and one where Firkus loved Heidi and told her about the situation, which both o f them were too embarrassed to d iscuss publicly. We have explicitly rejected “plac[ing] undue emp hasis on evidence of motive,” particularly in lieu of looking at the other evidence in th e record. Bernhardt, 684 N.W.2d at 479. The circumstances proved in this case can give rise to reasonable sc enarios both cons istent and inconsistent with gui lt. Without more substantial evid ence establishing that Firku s had a strong desire to kill Hei di, that killing her woul d help him avoid forecl osure, or at the very least that their marriage was breaking down, I cannot coun tenance the concur rence’s

C/D-21 reliance on the State’s thin motive evi dence to assert that the only re asonable inference is that Firkus killed Heidi. In sum, the standard in circumstantial evide nce cases is that “[t]he ev idence [must] form a complete chain leading so directly to appellant’s gu ilt as to exclude beyond a reasonable doubt any rational hypothe sis except that of his guilt.” See Scharmer, 501 N.W.2d at 622 (emphasis adde d). The State established one complete chain of inferences: that there was no intruder and Firkus shot Heidi in the b ack. But that chain is easily broken by infer ring a different c onclusion from the same set of circumst ance s proved. If a reasonable fact - finder were to infe r, for example, that Firkus was at the top of the stairs, then it was also reasona ble that he could hear someon e fiddling with the doorknob, and it was further reasonable for him to assume that someone was tryi ng to break into his home. Or if the reasonable fact - finde r infers that the fingerprint on the main door that did not match Firkus or Heidi belonged to another unknown p erson, then it is also reasonable to conclude that the intruder left t hat fingerprint there. Or if the reasonable fact - finder considers Firkus’s thigh wou nd, the FBI ballistics model, and the testimony of medical personnel at trial, then the y may equally reasonably infer that the wound was self-inflicted as that it was caused by a strugg le. When faced with a binary set of choices, choosing one o r the other of two circumstances proved is sufficient to brea k the State’s chain of guilt. Instead of evalua ting the evidence as a whole to determine whe ther there is another ration al theory inconsistent with guilt, the court “turns a blin d eye to any rational inferenc e other than guilt.” Bernhardt, 684 N.W.2d at 479. That is not the law, and the court abdicates the

C/D-22 responsibility it has accepted for n early a century to be a check on juries in circ umstantial evidence cases. See Johnson, 217 N.W. at 684. As this court succinctly s tated in Bernhardt, “[i]f our st andard on circumstanti al evidence means anything, it me ans that appellant cannot be convicted on thi s record that does not exclude other ratio nal hypotheses.” 684 N.W.2d at 479. Because I disagree with the court’s articulatio n of the circumstantial - evidence test, and conclude that the St ate did not prove beyond a reasonable doubt that there was no other reasonable hypothesis inconsistent with guilt, I respectfully dissent as to Part I of the court’s opinion.