State v. Ahmed, A19-1213

State of Minnesota, Respondent, v. Mowlid Abdi Ahmed, Appellant.

A19-1213

STATE OF MINNESOTA IN COURT OF APPEALS

July 6, 2020

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed

Reyes, Judge

Blue Earth County District Court

File No. 07-CR-18-659

Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, St. Paul, Minnesota; and

Patrick McDermott, Blue Earth County Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Reyes, Judge; and Slieter, Judge.

UNPUBLISHED OPINION

REYES, Judge

In this direct appeal from his judgment of conviction of fourth-degree criminal sexual conduct and two counts of interfering with an emergency call, appellant argues that the district court abused its discretion by (1) excluding a video and photograph he offered to support his consent defense and (2) denying his motion for a new trial because (a) the state failed to disclose toxicology test results; (b) the toxicology test results constitute newly discovered evidence; and (c) the state engaged in prosecutorial misconduct in closing statements. He also argues that (3) the cumulative effect of these errors deprived him of a fair trial. We affirm.

FACTS

Respondent State of Minnesota charged appellant Mowlid Abdi Ahmed with third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(c) (2016); fourth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.345, subd. 1(c) (2016); and two counts of interfering with an emergency call, in violation of Minn. Stat. § 609.78, subd. 2(1) (2016), based on an incident that occurred on February 1, 2018.

Victim S.H. testified that appellant, whom she knew through his mother and sisters and who lived on the first floor of her apartment building, knocked on her apartment door in the early morning. Appellant entered when S.H. opened her door, but S.H. did not invite him in. The two sat on her couch and talked, and appellant gave S.H. what she thought was chewing gum. She put the gum in her mouth but got up to spit it out because it tasted "weird." S.H. then "got dizzy," told appellant to leave her apartment, and thought she heard appellant leave. She went back to the couch and "passed out."

S.H. next recalls waking up with appellant holding her tight from behind with his hand on her breast under her shirt. Her pants were down below her knees, and appellant's penis was in contact with her vagina. Because S.H. was a victim of female genital mutilation as a child, appellant's actions caused her pain. S.H. used her elbows to get awayand began yelling at appellant. She continued to yell at him, hit him with a mop, and ran to get her phone to call 911. Appellant threw her phone away from her when she attempted to call 911 and told her not to call 911. The Blue Earth 911 dispatch received an eight-second, inaudible call from S.H.'s cell phone. The 911 dispatcher returned the call and S.H. answered, stating that "he f**king raped me." S.H. continued talking with 911 dispatch over a series of calls, during which appellant left S.H.'s apartment. Officers arrived thereafter.

As this occurred, a neighbor across the hall called 911 to report a domestic dispute. The neighbor testified that she heard "really intense" arguing that she had not heard before from S.H.'s apartment. Multiple officers arrived. One officer testified that S.H. was "frantic, upset," "appeared to have been crying," and reported that appellant raped her. S.H. described the events to the officers and received a sexual-assault examination at the emergency room, where she reported that appellant's penis had touched the outside of her genitals. DNA testing of a swab from her perineum showed the presence of appellant's semen.

Prior to trial, the district court granted the state a continuance to obtain these DNA test results, which appellant requested to see as well. The Bureau of Criminal Apprehension (BCA) indicated that it also would send toxicology results from samples from S.H. by September 15, 2018, which would be after the trial. Neither party requested toxicology testing of S.H. or a continuance on this basis.

Appellant advanced a defense of consent. In support, he sought to admit a video and photograph that he claimed showed prior consensual sexual conduct with S.H. The district court excluded both the video and photograph.

After closing arguments, appellant's trial counsel stated that he wanted to "make a record" that, during rebuttal, the prosecutor engaged in "at least two" instances of "burden shifting" and "at least two instances of vouching" for the credibility of S.H. The district court stated that it did not hear what would "rise to [the] level of anything that—that led me to think anything close to a mistrial."

On June 14, 2018, the day the jury began its deliberations, the BCA sent the state toxicology results indicating the presence of methamphetamine and amphetamine in S.H.'s urine sample. The state disclosed these results to appellant. That day, the jury returned a verdict of guilty on the fourth-degree criminal-sexual-conduct charge and both counts of interference with a 911 call, and it found appellant not guilty on the third-degree criminal-sexual-conduct charge. Appellant filed a motion for a new trial, arguing that the state failed to disclose S.H.'s toxicology test results, in violation of his Brady¹ rights, the results constituted newly discovered evidence, and the state improperly shifted the burden in its rebuttal closing arguments. The district court denied the motion. This appeal follows.

DECISION

Appellant argues that the district court abused its discretion by (1) excluding the video and photograph and (2) denying a new trial based on (a) the state's failure to disclose the toxicology test results as required by Brady; (b) the toxicology test results constituting newly discovered evidence; and (c) prosecutorial misconduct in closing statements that (i) misstated and shifted the burden of proof; (ii) expressed a personal opinion on witness credibility; and (iii) disparaged the defense. He also argues that (3) the cumulative effect of these errors deprived him of a fair trial. We address each issue in turn.

I. The district court did not abuse its discretion by excluding the video and photograph appellant offered to support his consent defense.

Appellant argues that the district court deprived him of his constitutional right to a meaningful opportunity to present a complete defense by excluding a video that he claimed showed S.H. performing oral sex on him and a photograph of S.H. shirtless. We disagree.

We review the district court's factual findings for clear error. See Tscheu v. State, 829 N.W.2d 400, 403 (Minn. 2013). We review its evidentiary rulings for an abuse of discretion. See State v. Ali, 855 N.W.2d 235, 249 (Minn. 2014). If the district court abused its discretion and the exclusion deprived a defendant of the constitutional right to present a complete defense, "we reverse only if the exclusion was not harmless beyond a reasonable doubt." See State v. Zumberge, 888 N.W.2d 688, 694 (Minn. 2017). "An error is not harmless beyond a reasonable doubt when there is a reasonable possibility that the error complained of may have contributed to the conviction." Id. (quotation omitted).

In a criminal-sexual-conduct prosecution, a defendant may offer "evidence of the victim's previous sexual conduct with the [defendant]" if the district court, after a hearing, finds that the probative value of the evidence "is not substantially outweighed by its inflammatory or prejudicial nature." Minn. R. Evid. 412(1)(A)(ii), (2)(C). It "must find that the evidence is sufficient to support a finding that the facts set out in the accused's offer of proof are true," Minn. Stat. § 609.347, subd. 3 (2018), and that it meets "a threshold finding of veracity" before admitting the evidence. State v. Davis, 546 N.W.2d 30, 35 (Minn. App. 1996), review denied (Minn. May 21, 1996). Further, evidence must be authenticated to be admissible. Minn. R. Evid. 901(a). We give the district court "considerable discretion . . . in deciding whether evidence has been adequately authenticated." See State v. Dulak, 348 N.W.2d 342, 344 (Minn. 1984).

A. Admissibility of the video

Appellant argues that the district court abused its discretion by determining that his testimony at the evidentiary hearing failed to authenticate the video.

At the hearing, appellant testified that he took the video January 31, 2018, the evening before the incident. But the phone that stored the video indicated a creation date of February 9, 2018, at 12:07 a.m. Appellant testified that he transferred the video from the phone on which he recorded it to his current phone, but he could not provide information on the original phone. In excluding the video, the district court found that appellant did not demonstrate a sufficient chain of custody. It further found that neither appellant nor S.H. are identifiable in the video and that the video lacks characteristics that corroborate appellant's claims about its content. The record supports these findings.Appellant could not explain the discrepancy between the video creation date and his testimony, and the video contains only unidentifiable silhouettes.

Appellant relies on In re Welfare of S.A.M, 570 N.W.2d 162, 164 (Minn. App. 1997), to argue that the "'conventional method' to authenticate a video or photograph is with 'testimony of [a] witness with knowledge' that a matter is what it is claimed to be." He argues that if the jury credited his testimony, it would establish the video's authenticity. But appellant could not verify himself and S.H. as the persons in the video or show its chain of custody, failing to meet the threshold veracity...