MANKATO — Prosecutors do not have enough evidence to justify charging Philip Nelson with first-degree assault, according to the attorney representing the former Minnesota Gopher quarterback.
After a three-hour hearing Monday where four Mankato police officers and a witness, Samuel Thompson, were called to testify, Jim Fleming said Nelson's kick to Isaac Kolstad's head was an assault but not an assault that caused great bodily harm. Those injuries were caused by a "vicious" punch thrown by Trevor Shelley, a man who allegedly hit Kolstad in the back of the head while he was walking away from a confrontation with Nelson, Fleming said.
Kolstad's head hit the pavement so hard after the punch that witnesses heard the impact.
Thompson described at the hearing what happened the morning of May 11 as he and Kolstad were leaving the former Buffalo Wild Wings bar downtown. They had been to two other nearby bars, Rounders and South Street Station, prior to Buffalo Wild Wings.
It was shortly after 2 a.m. and a lot of people were outside the bars between the Cherry Street parking ramp and Rounders and Blue Bricks. Thompson saw a person he knew walking with Nelson and the two started a conversation. As they were talking, Nelson and Kolstad started arguing, Thompson said. Other people later told Thompson that Kolstad had said something about Nelson's girlfriend.
Thompson grabbed Nelson by the arm and walked him about 20 feet away from Kolstad. While Thompson was talking to Nelson, Kolstad came up from behind the two of them and threw what a police officer described as a "haymaker" punch that knocked both Thompson and Nelson to the ground.
Fleming said Nelson's head hit the ground, causing bumps to the back of his head. Thompson, who is a friend and former Minnesota University football teammate of Kolstad's, said he didn't see the punch because Kolstad was behind him.
"I did not see if the punch connected," Thompson said during the hearing. "I know we fell down."
Thompson also said he never described the punch as a friendly punch.
After knocking the two men to the ground, Kolstad walked away. At that point Shelley, who police thought was someone Nelson knew, hit Kolstad in the head with a punch. Kolstad fell to the ground, hit his head on the pavement and appeared to be unconscious when Nelson walked over and kicked him in the head. Kolstad is still recovering from critical injuries he received that morning.
Thompson wasn't sure if Nelson kicked Kolstad once or twice.
"The first kick was a wind-up kick to the left side of Mr. Kolstad's head," Thompson said. "I don't remember the placement, if it was the temple or the jaw or somewhere else on his head."
Video of the incident was provided as evidence Monday. An enhanced video created by Fleming, which essentially used still photographs pieced together to make a better video, was shown but not entered as evidence.
Fleming said the entire incident lasted 8 seconds and the time between when Kolstad hits the ground and Nelson's kick is 2 seconds.
A blood test from the hospital showed Kolstad had a blood-alcohol concentration of .16, twice the legal limit of .08 for driving. A breath test Nelson submitted to at the scene showed he had a BAC of .12. He was 20 years old at the time and told officers he and his underage girlfriend, Malorie Veroeven, had been in a couple downtown bars before the incident.
While questioning his second witness — Det. Jason Bennett of the Mankato Department of Public Safety — Fleming referred to letters that had been written by Dr. Dominic Cannella, the Mayo Clinic Health System neurosurgeon who treated Kolstad, and Daniel Davis, a former Minnesota forensic pathologist now working in Oregon.
Cannella could not tell investigators what injuries were caused by Nelson, but he did say there were injuries to the front, back and side of Kolstad's head. So he believed the impacts of the punch, Kolstad's head hitting the ground and the kick all contributed to Kolstad's head injury.
Cannella also said a lack of oxygen contributed to Kolstad's brain injury. The lack of oxygen was the result of Kolstad vomiting while he was unconscious, Cannella's report said.
Davis, who was hired by Fleming, said little, if any, of Kolstad's injuries were caused by Nelson's kick. Although he's not a brain surgeon, forensic pathologists are trained to determine what actions cause injuries, Fleming said.
Adam Kruger, the first officer to testify, said he followed Nelson and made sure he was arrested after several people told him Nelson had assaulted Kolstad outside a downtown bar. Kruger had been on foot patrol downtown with officer Jase Guetter. They were standing outside Mum's the Word when a woman told them about the assault.
"Several people ran up to me and said, 'It's Philip Nelson. It's Philip Nelson who did this,'" Kruger said.
Kruger was able to pursue Nelson because Guetter was helping Kolstad.
"I was basically checking his vitals to make sure he was OK until Gold Cross arrived," Guetter said during his testimony.
Fleming, had another Mankato officer, Rob Sadusky, bring Nelson's shoes to the hearing. He asked Sadusky to describe the weight of the shoes, which were taken into evidence after Nelson was arrested. Sadusky described them as lightweight.
Video of the incident and interviews were entered into evidence by Pat McDermott, Blue Earth County attorney-elect. He called Kruger, Guetter and Sadusky as witnesses.
After the hearing, McDermott said he is confident District Court Judge Bradley Walker will find there is enough evidence to support the current charges against Nelson. He also said the cause of Kolstad's injuries remains under investigation and the latest information was received Monday, not long before the hearing.
Fleming also used the hearing to show Nelson had not been read his rights, including the right to remain silent and contact an attorney, when he was first interviewed by Kruger and before he was interviewed later by Guetter. His rights were read to him during an interview in between with Kruger and Sadusky in Sadusky's squad car at the scene of the incident.
In addition to having the charges dismissed or reduced, Fleming also wants to keep a jury from hearing the statements to Kruger and Guetter if the case goes to trial.
Both attorneys have until early next year to provide written arguments to Walker.