Fahad Abdihaim Diriye v. State of Minnesota

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0869

Fahad Abdihaim Diriye, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed January 19, 2016
Affirmed
Chutich, Judge

Scott County District Court
File No. 70-CR-12-19441

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

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Chutich, Judge; and Hooten,

Judge.

UNPUBLISHED OPINION

CHUTICH, Judge

Appellant Fahad Diriye appeals the denial of his petition for postconviction relief.

He asserts that the state failed to prove beyond a reasonable doubt that he committed third-
degree assault. He additionally argues that the district court erred by admitting other-bad-

acts evidence regarding his 2011 aggravated-robbery conviction and that it further erred by

failing to limit the testimony upon its admission. Because we conclude that the state’s

evidence was legally sufficient to sustain Diriye’s conviction and any asserted errors in

admitting testimony did not significantly affect the verdict or affect Diriye’s substantial

rights, we affirm the district court’s denial of postconviction relief.

FACTS

This case arises from an assault in a public park. Around 6:00 p.m. on September

17, 2012, the victim, D.B., and his girlfriend, C.G., drove into the parking lot next to the

basketball court in the park, where about fifteen young men were playing basketball. D.B.

recognized a friend parked next to the court, pulled in beside him, and motioned to another

friend on the basketball court to ask for a cigarette.

While D.B. stood next to his friend’s car, a man wearing a red hooded sweatshirt

approached him with his hand outstretched, as if to offer a handshake. The man attempted

to cover his face with his arm and shirt as he walked. When D.B. outstretched his hand,

he asked, “Is that Fahad?”

Rather than shake D.B.’s hand, the man punched D.B. in the mouth, causing D.B.

to fall to the ground and lose consciousness for five to six seconds. He suffered visible

chips to two teeth and internal cracks to another. His injuries resulted in at least $3,000 of

dental damage, for which D.B. was uninsured.

D.B. later told police that, when he regained consciousness, his assailant came

toward him again and the group of young men playing basketball quickly approached, so

2
he fled. He ran until he found a passerby with a cellphone and then he called the police.

D.B. immediately reported to the police that the man who hit him was appellant Fahad

Diriye.

D.B. recognized Diriye because he knew Diriye from high school, and D.B. had

informed Burnsville Police of Diriye’s role in a 2011 aggravated robbery. In April 2011,

D.B. skipped school and joined three friends, including Diriye, believing they were going

to smoke marijuana. D.B. testified that, unbeknownst to him, his three companions

arranged to sell a cellphone in a nearby parking lot, intending to rob the buyer. When the

buyer arrived, D.B.’s companions feigned that the cellphone was stuck in the trunk of their

car and used the guise to surround the buyer. D.B. testified that Diriye pressed his finger

to the back of the buyer’s head, as if he had a gun, and coerced the buyer’s cooperation by

threatening to shoot him. D.B. fled to a nearby parking ramp to avoid involvement in the

crime, and he watched as police responded and arrested Diriye minutes later. Burnsville

police called D.B. into the police station later that day, and D.B. gave a statement

implicating his three companions. His statement led to the aggravated-robbery charge

against Diriye, to which Diriye later pleaded guilty.

The day after the 2012 assault, D.B. contacted Diriye on Facebook, trying to induce

Diriye to incriminate himself. D.B. testified that he asked Diriye why Diriye assaulted him

and that Diriye responded by threatening to assault him again if he “took it to court.” This

particular statement, however, did not appear in the ten-page printout of their Facebook

conversation that was introduced into evidence at trial. Diriye denied knowledge of the

3
assault throughout their Facebook conversation and ultimately insisted that D.B.’s “joke”

had gone too far.

At the police station the evening after the assault, D.B. and C.G. identified Diriye

as the assailant from a photo lineup of six possible suspects. In their respective

identifications, D.B. was one-hundred-percent certain and C.B. was fifty-percent certain of

the assailant’s identity.

The state charged Diriye with third-degree assault. See Minn. Stat. § 609.223, subd.

1 (2014). Before trial, the state filed notice of its intent to admit the details of the 2011

aggravated robbery as other-bad-acts evidence. See Minn. R. Evid. 404(b); State v. Ness,

707 N.W.2d 676, 685–86 (Minn. 2006) (noting the five-step process required to introduce

other-bad-acts, or Spreigl, evidence). At a pretrial hearing, Diriye opposed admission of

the 2011 aggravated robbery, and the district court ruled it admissible.

At trial, the assailant’s identity was the central issue. In their respective testimony,

D.B. and C.G. identified Diriye as the assailant, and C.G. testified that she was now one-

hundred-percent certain of his identity. The state’s trial strategy relied heavily on

establishing Diriye’s motive for the assault: D.B.’s implication of Diriye in the 2011

aggravated robbery. Through testimony from D.B. and a Burnsville Police Officer, the

state elicited the specific facts of how the 2011 aggravated robbery was committed.

The defense argued that D.B. fabricated his assailant’s identity to ensure that he

recouped the cost of his dental injuries. Diriye called two witnesses to testify that he was

not the assailant. The first, Diriye’s friend S.I., testified that Diriye was not at the park that

day. The second, Diriye’s acquaintance A.M.O., testified that he was sitting in a parked

4
car near where the assault occurred and that the assailant had a totally different body type

than Diriye.

The jury convicted Diriye and the district court sentenced him to eighteen months

in prison, stayed for five years and subject to terms of probation. In response to a probation

violation in November 2013, the district court executed Diriye’s sentence, which he has

now completed. In February 2015, Diriye filed a petition for postconviction relief, which

the district court denied. Diriye appeals.

DECISION

I. Sufficiency of the Eyewitness Identification Evidence

In assessing whether the evidence was sufficient to support a finding of guilt, this

court “determine[s] whether the legitimate inferences drawn from the facts in the record

would reasonably support the [factfinder’s] conclusion that the defendant was guilty

beyond a reasonable doubt.” State v. Pratt, 813 N.W.2d 868, 874 (Minn. 2012). “The

weight and credibility of the testimony of individual witnesses [are] for the jury to

determine.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (citing State v. Engholm,

290 N.W.2d 780, 784 (Minn. 1980)). We assume that the factfinder believed the state’s

witnesses and disbelieved contrary evidence. Id. We will not disturb the finding of guilt

if the factfinder, acting with due regard for the presumption of innocence and the

requirement of proof beyond a reasonable doubt, could reasonably conclude that the

defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476–77

(Minn. 2004).

5
 A conviction may rest on the testimony of a single credible witness; a single

witness’s identification testimony is sufficient if the witness testifies that the defendant is

the person he or she saw commit the crime. State v. Miles, 585 N.W.2d 368, 373 (Minn.

1998). When a single eyewitness’s identification of an offender results from only fleeting

or limited observation, however, corroboration of the eyewitness’s identification may be

required. State v. Spann, 287 N.W.2d 406, 407–08 (Minn. 1979); see also State v. Walker,

310 N.W.2d 89, 90 (Minn. 1981).

Diriye argues that the eyewitness identifications by D.B. and C.G. were unreliable

because the assailant wore a hoodie and covered his face as he approached D.B. Diriye

contends that, because their identification testimony was unreliable, some independent

corroboration was required to sustain his conviction. His arguments are not persuasive.

Sufficient evidence shows that the eyewitness identifications were neither fleeting

nor limited, so as to require corroboration. The two witnesses’ testimony at trial shows

that they each had a meaningful opportunity to see the assailant, despite the assailant’s

efforts to obscure his face. C.G. testified that she was one to two feet from the assailant

when she saw him and he came between her and D.B. to hit D.B. The assailant came within

arm’s reach of D.B., and D.B. testified that he knew it was Diriye right away when the

assailant approached. The assailant lowered his arm before hitting D.B., and D.B. saw the

assailant’s face before being struck. D.B. saw the assailant again when he regained

consciousness because the assailant was standing over him while D.B. was on the ground.

When police responded to the assault, D.B. immediately identified Diriye as the

assailant, and he told them that Diriye had likely assaulted him in retaliation for his

6
statements to police incriminating Diriye in the 2011 aggravated robbery. D.B. described

Diriye as “a taller, slender black man,” approximately 6’4” or 6’5.” C.G. similarly

described the assailant to police as “tall, pretty dark-skinned, Somali.” At the photo line-

up, each independently identified Diriye as the assailant.

The eyewitnesses’ testimony shows that their identifications were reliable.

Accordingly, we need not reach Diriye’s corroboration argument. Because two

eyewitnesses identified Diriye as the assailant, the evidence was legally sufficient to sustain

his conviction.

II. Admission of Facts Underlying 2011 Aggravated-Robbery Conviction

Diriye challenges the district court’s evidentiary ruling to admit the underlying facts

of his 2011 aggravated-robbery conviction. He contends that the district court mistakenly

relied upon this court’s decision in State v. Hollins to find the evidence admissible. See

765 N.W.2d 125, 131–32 (Minn. App. 2009). He further maintains that, although the

evidence that Diriye had been convicted of, and knew D.B. implicated him in, the 2011

aggravated robbery was properly admitted, the district court erred by allowing the state to

elicit extraneous prejudicial facts about the commission of the 2011 aggravated robbery.

He urges that, because he objected to admission of the underlying facts in the pre-trial

hearing, this court should review the evidentiary ruling under a harmless-error standard.

He asserts that, regardless of the standard of review, however, the district court’s

evidentiary errors entitle him to a new trial. As shown below, his arguments are unavailing.

7
 1. Pre-Trial Evidentiary Ruling

This court reviews the district court’s evidentiary ruling for abuse of discretion.

Ness, 707 N.W.2d at 685. An appellant contesting the admission of evidence “has the

burden to show the admission was both erroneous and prejudicial.” State v. Riddley, 776

N.W.2d 419, 424 (Minn. 2009). “When the district court has erroneously admitted other-

acts evidence, [appellate courts] must determine whether there is a reasonable possibility

that the wrongfully admitted evidence significantly affected the verdict.” Ness, 707 N.W.2d

at 691.

Minnesota adheres to the rule generally excluding evidence connecting a defendant

with other crimes, except for the purposes of impeachment if he takes the stand on his own

behalf. State v. Spreigl, 272 Minn. 488, 490–91, 139 N.W.2d 167, 169 (1965). “This

general exclusionary rule is grounded in the defendant’s constitutional right to a fair trial.”

Ness, 707 N.W.2d at 685. Although this type of evidence, other-bad-acts evidence, “is

often probative, it also carries a great likelihood of inflaming passions and resulting in

unfair prejudice.” Riddley, 776 N.W.2d at 424. With proper regard for the caution

surrounding this type of evidence, “evidence of other crimes, wrongs, or bad acts may be

admitted only for limited, specific purposes.” Ness, 707 N.W.2d at 685.

A. Admissibility as “Intrinsic” or Immediate-Episode Evidence

One such exception to the general exclusionary rule, the immediate-episode

exception, permits admission of evidence of bad acts if “two or more offenses are linked

together in point of time or circumstances so that one cannot be fully shown without

8
proving the other, or where evidence of other crimes constitutes part of the res gestae.” 1

Riddley, 776 N.W.2d at 425 (noting narrow immediate-episode exception). Immediate-

episode evidence is admissible “when there is a close causal and temporal connection

between the prior bad act and the charged crime.” Id. at 425–26 (citing cases illustrating

the “connection required to satisfy the narrow immediate-episode exception to the general

character evidence rule”) (emphasis added). In State v. Nunn, for example, the Minnesota

Supreme Court found that testimony regarding a kidnapping that occurred less than two

months before the charged murder was immediate-episode evidence because the defendant

obtained information during the kidnapping that motivated the charged murder. 561

N.W.2d 902, 907–08 (Minn. 1997).

In line with the immediate-episode exception, this court has held that other-bad-acts

evidence that is “intrinsic” to the charged crime is admissible as an exception to the general

exclusion. Hollins, 765 N.W.2d at 131–32. In Hollins, this court held that other-bad-acts

evidence is intrinsic to the charged crime if:

(1) the other crime arose out of the same transaction or series
of transactions as the charged crime, and (2) either (a) the other
crime is relevant to an element of the charged crime, or (b)
excluding evidence of the other crime would present an
incoherent or incomplete story of the charged crime.

1
Res gestae means “the events at issue or others contemporaneous with them.” Bryan A.
Garner, Garner’s Dictionary of Legal Usage, 777 (3d ed. 2011). In evidence law, res
gestae is “a rule of relevance that makes testimony about the events forming part of the res
gestae admissible.” Id. at 778.

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Id. at 132. Published in 2009, Hollins is the only Minnesota case to create an intrinsic-

evidence exception, under which other-bad-acts evidence is admissible without a rule

404(b) analysis. See id. at 131–32.

Here, the state argued this evidence was admissible as intrinsic evidence under

Hollins because the 2011 aggravated-robbery episode was “inextricably intertwined” with

the charged offense. See id. (relying on “inextricably intertwined” federal caselaw).

Accepting the state’s Hollins theory, the district court ruled that the 2011 aggravated-

robbery conviction was admissible. We disagree with the district court’s ruling on this

ground.

First, despite using the language of “intrinsic” evidence, Hollins appears to simply

reiterate and refine the immediate-episode exception, which is well established in

Minnesota evidentiary jurisprudence. See Riddley, 776 N.W.2d at 425–26 (noting the

history of immediate-episode exception). The supreme court’s line of cases applying the

immediate-episode exception predates Hollins and illustrates that the two exceptions serve

nearly identical purposes. Id. (citing Nunn, 561 N.W.2d at 907–08; State v. Darveaux, 318

N.W.2d 44, 48 (Minn. 1982) (holding that evidence of drugs found in the defendant's purse

two days after drug store robbery was admissible as immediate-episode evidence where

the drugs were the same type of drugs stolen from the drug store); State v. Leecy, 294

N.W.2d 280, 282 (Minn. 1980) (explaining that testimony about earlier threats is

immediate-episode evidence because the earlier threats escalated into the charged assault);

and State v. Martin, 293 Minn. 116, 128, 197 N.W.2d 219, 226–27 (1972) (concluding that

the district court properly admitted testimony regarding earlier robberies committed by the

10
defendant because the defendant's desire to conceal the earlier robberies motivated the

charged murder)). Second, since Hollins was decided in 2009, the supreme court has

clarified that, absent a temporal and causal connection, immediate-episode evidence is not

admissible merely to complete the story of the crime. Riddley, 776 N.W.2d at 425 n.3.

Further, regardless of whether the 2011 aggravated robbery was admitted under the

Hollins intrinsic-evidence exception or under the established immediate-episode

exception, its admission under either rationale was improper. This court has consistently

applied Hollins to uphold admission of evidence of uncharged crimes closely connected in

time and space to the charged crime.2 While all of our cases following and applying Hollins

2
See State v. Ogris, No. A14-1008, 2015 WL 1959867 (Minn. App. May 4, 2015) (finding
no plain error resulted from admission of evidence that the appellant committed indecent
exposure and stole a backpack the day of the charged offense), review denied (Minn. July
21, 2015); State v. Porte, No. A14-0883, 2015 WL 1401519 (Minn. App. Mar. 30, 2015)
(finding no plain error resulted from admission of evidence that the appellant purchased a
car with money and crack cocaine before being arrested for a controlled-substance offense),
review denied (Minn. June 16, 2015); State v. Diggs, No. A13-2354, 2015 WL 404453
(Minn. App. Feb. 2, 2015) (finding no plain error resulted from admission of evidence that
the appellant sexually assaulted a minor before forcing her to engage in prostitution in a
sex-trafficking prosecution), review denied (Minn. Apr. 14, 2015); State v. Gustafson, No.
A12-1293, 2013 WL 4404241, at *3–4 (Minn. App. Aug. 19, 2013) (finding no plain error
resulted from admission of evidence of “general hooliganism” and three uncharged thefts
in a racketeering prosecution), review denied (Minn. Oct. 23, 2013); State v. Nelson, No.
A12-1037, 2013 WL 3155409, at *5 (Minn. App. June 24, 2013), review denied (Minn.
Sept. 17, 2013) (upholding admissibility of evidence of the complainant’s restraining order
against the appellant in a stalking prosecution); Bresnahan v. State, No. A10-1146, 2011
WL 500063, at *4 (Minn. App. Feb. 15, 2011) (noting that evidence of events surrounding
appellant's sexual assault and burglary offenses was intrinsic to the charged crime); State
v. McKay, No. A09-1827, 2010 WL 3958429, at *2–3 (Minn. App. Oct. 12,
2010)(upholding admissibility of evidence that witness told victim that appellant had a gun
and wanted to kill the victim); State v. Scheer, No. A08-2043, 2009 WL 3735797, at *2
(Minn. App. Nov. 10, 2009) (upholding admissibility of evidence that appellant gave police
a false name when he was arrested for the charged offense).

11
are unpublished and are not precedential, they persuasively show that the Hollins intrinsic-

evidence exception only applies to uncharged conduct that is closely connected temporally

and conceptually to the charged crime. Since the 2009 publication of Hollins establishing

the definition of intrinsic evidence, we can find no case relying on Hollins to admit

evidence of a previous conviction. Moreover, the 2011 aggravated robbery does not share

the necessary temporal connection with the charged offense; the two offenses occurred

over seventeen months apart. Without this temporal connection, the 2011 aggravated

robbery is neither immediate-episode nor intrinsic evidence.

B. Admissibility as Spreigl Evidence

The state alternatively argued that the 2011 aggravated robbery conviction was

admissible as Spreigl evidence. Although the district court did not rely on this reasoning,

we agree.

Evidence of other bad acts may be admissible for the limited purpose of “showing

motive, intent, knowledge, identity, absence of mistake or accident, or a common scheme

or plan.” Minn. R. Evid. 404(b); see also Ness, 707 N.W.2d at 685. Such evidence may

not be introduced if its tendency to unfairly prejudice the factfinder substantially outweighs

its probative value. Ness, 707 N.W.2d at 685. Moreover, if the admissibility of such

evidence is a “close call,” it should be excluded. Id.

“A number of procedural requirements and safeguards govern the admission,

presentation, and consideration of other-crime evidence.” State v. Bolte, 530 N.W.2d 191,

196 (Minn. 1995). The supreme court has developed a five-step process to determine

12
admissibility of other-bad-acts evidence. Ness, 707 N.W.2d at 685–86. Under this process,

[c]ourts examine five factors in deciding whether to admit such
evidence: (1) whether the state has given “notice of its intent
to admit the evidence”; (2) whether the state has “clearly
indicate[d] what the evidence will be offered to prove”; (3)
whether there is “clear and convincing evidence that the
defendant participated in the prior act”; (4) whether the
evidence is “relevant and material to the state's case”; and (5)
whether the probative value of the “evidence is outweighed by
its potential prejudice to the defendant.”

State v. Clark, 738 N.W.2d 316, 345 (Minn. 2007) (quoting Ness, 707 N.W.2d at 685–86).

Finally, the district court “should give an appropriate cautionary instruction both upon

receipt of the other-crime evidence and as part of the final instructions, even if not

specifically requested to do so by defense counsel.” Bolte, 530 N.W.2d at 197 (Minn.

1995). Failure to comply with certain Spreigl requirements can result in reversible error

and a new trial. See Spreigl, 272 Minn. at 490, 139 N.W.2d at 169.

Under the required procedure in the instant case, the state fulfilled steps one and

two before trial, and because the evidence involved a conviction, step three was fulfilled.

See State v. Blom, 682 N.W.2d 578, 601 (Minn. 2004) (holding that defendant's conviction

was clear and convincing evidence of prior incident). Regarding step four, the district

court appropriately reasoned that the 2011 aggravated-robbery conviction was relevant to

the issue of Diriye’s motive to commit the 2012 assault. Concerning step five, the district

court conducted no analysis of potential prejudice to the defendant before ruling the

episode to be admissible. Although the district court provided a final cautionary

13
instruction,3 the transcript shows that the district court gave no cautionary instruction upon

receipt of two witnesses’ testimony regarding the 2011 aggravated robbery.

While we agree that evidence of the conviction itself was admissible for the limited

purpose of showing Diriye’s motive, the district court did not accord Diriye all of the

procedural safeguards required to admit it as Spreigl evidence. The district court

improperly ruled the evidence admissible as intrinsic evidence and, relying on Hollins,

subsequently omitted a Spreigl prejudice analysis and failed to give cautionary instructions

upon receipt of the evidence. See Hollins, 765 N.W.2d at 131–32 (noting that a Spreigl

analysis is unnecessary if the evidence of another crime is intrinsic to the crime charged).

Accordingly, the district court abused its discretion.

We conclude, however, that the incorrectly admitted evidence of the 2011

aggravated-robbery conviction did not significantly affect the verdict. Diriye concedes on

appeal that “evidence that Diriye had been convicted of and knew D.B. had implicated him

in the April 2011 robbery was properly admitted.” This concession, by itself, substantially

lessens any prejudice to Diriye’s substantial rights because the jury was inevitably going

3
The court’s cautionary instruction read as follows:
The State introduced evidence of an occurrence on April 5,
2011, in Burnsville, Minnesota. This evidence was offered for
the limited purpose of assisting you in determining whether the
Defendant committed those acts for which he is charged in this
complaint. The Defendant is not being tried for and may not
be convicted for any offense other than the charged offense.
You are not to convict the Defendant on the basis of the
occurrences of April 5, 2011. To do so might result in unjust
double punishment.

14
to hear some evidence of his involvement in a 2011 aggravated robbery. Because

admission of the conviction itself did not affect the verdict, Diriye is not entitled to a new

trial on this ground. Thus, we turn to Diriye’s second argument regarding the scope of the

prior-crime evidence.

2. Scope of the Challenged Testimony

Once other-bad-acts evidence is admitted, the defendant bears the burden of

challenging its scope. State v. Washington, 693 N.W.2d 195, 204 (Minn. 2005) (noting

appellant’s concession that certain other-bad-acts evidence may have been relevant due to

similarities). When a defendant has not objected contemporaneously to the manner in

which other-bad-acts evidence is presented, the supreme court has expressed reluctance to

second-guess the district court’s discretion. Ture v. State, 681 N.W.2d 9, 16 (Minn. 2004)

(faulting the defendant’s failure to object when the contested testimony was introduced and

holding that the district court did not abuse its discretion by allowing the state to present

24 witnesses who testified for three days of a 12-day murder trial about the details of other-

bad-acts evidence involving another murder). When the record demonstrates that the

district court had no advance opportunity to consider the contested aspect of the other-bad-

acts testimony, the supreme court reframes the issue as whether the district court failed to

sua sponte strike the contested testimony or to provide a cautionary instruction. State v.

Vick, 632 N.W.2d 676, 685 (Minn. 2001).

The supreme court considered a challenge to the scope of Spreigl evidence

testimony in State v. Washington. 693 N.W.2d at 204. Washington had been charged with

ten counts of criminal sexual conduct involving a person younger than 18 years old. Id. at

15
198. The district court permitted Spreigl evidence involving Washington's convictions for

third-degree criminal sexual conduct with a 15-year-old girl and witness tampering arising

out of a single incident. Id. at 198-99. On appeal, Washington conceded “some

similarities” between the prior and charged acts, but “argue[d] that the district court should

have excluded testimony of extraneous prejudicial facts,” including that the girl “was

forced to work as a prostitute, that Washington cut her throat, that she contracted a pelvic

disease, and that Washington's actions were responsible for her infertility.” Id. at 204.

Although the supreme court agreed that the “testimony should have been limited to

exclude elements not needed or relevant to prove modus operandi,” it observed that

Washington “failed to take the initiative to seek such limits.” Id. Washington had only

responded with a generalized objection to the state's Spreigl notice and did not seek to limit

these “extraneous facts.” Id. (quotations omitted). Washington did not submit a motion in

limine to challenge the scope of the testimony although he could have “right up to the

moment [the witness] testified.” Id. Washington did not generally object when the witness

testified to these facts at trial, and he did not request a curative instruction or that the

testimony be stricken. Id. at 204–05. Ultimately, the court concluded that the district court

was not obligated to sua sponte limit the scope of the witness's testimony. Id. at 205.

Holding these general principles in mind, we address Diriye’s challenge to the scope

of the bad-acts evidence here. Diriye filed no motion in limine before trial to limit the

testimony surrounding the 2011 aggravated-robbery conviction. Although he contested

admission of the entire episode at the pre-trial hearing, he made no attempt to limit the

scope once the district court ruled it admissible. Moreover, he failed to object when the

16
now-challenged testimony arose, and he failed to request either a curative instruction or

that the prejudicial extraneous facts be stricken. Accordingly, Diriye did not carry his

burden of objecting to the scope of the testimony, and we reframe the issue as whether the

district court erred by failing to sua sponte limit the testimony of the 2011 aggravated-

robbery conviction. See id. at 205. We review this unobjected-to testimony for plain error.

Id.

This court follows a three-prong test for plain error, which requires that, before an

appellate court reviews an unobjected-to error, there must be (1) error, (2) that is plain, and

(3) the error affected an appellant’s substantial rights. State v. Griller, 583 N.W.2d 736,

740 (Minn. 1998). The third prong of this test “is satisfied if the error was prejudicial and

affected the outcome of the case.” Id. at 741. The burden of persuasion on the third prong

falls to the defendant, and this burden is a heavy one. Id.; see also State v. Mosley, 853

N.W.2d 789, 801–03 (Minn. 2014) (finding that, even assuming that plain error occurred,

no relief was warranted because the defendant’s substantial rights were not violated).

Applying these principles here, we need not determine whether plain error occurred

because Diriye cannot show that his substantial rights were affected by the admission of

the underlying facts of the 2011 aggravated robbery. First, we emphasize again that Diriye

concedes on appeal that “evidence that Diriye had been convicted of and knew [D.B.] had

implicated him in the April 2011 robbery was properly admitted.”

Second, the record shows that the underlying facts of the 2011 aggravated robbery

did not play a prominent role at trial. While two witnesses testified as to the sequence of

events, this testimony was limited, and much more attention was given to D.B.’s actions

17
during the 2011 episode than to Diriye’s. In opening statements and closing arguments for

each side, Diriye’s actions in the 2011 aggravated robbery received little focus.

Third, the record suggests that Diriye’s counsel may have intentionally decided, as

part of his trial strategy, not to object to the testimony. Throughout trial, Diriye’s counsel

emphasized many of the details of D.B.’s actions in the 2011 aggravated robbery episode

to paint him as a “squealer,” a “schemer,” and an opportunistic liar, casting doubt on D.B.’s

credibility. For the district court to sua sponte limit the testimony may have interfered with

the defendant’s trial strategy, which “would risk highlighting or enforcing rights that the

defendant had, for tactical reasons, decided to waive.” Washington, 693 N.W.2d at 205.

Fourth, admission of the 2011 aggravated-robbery episode through witness

testimony—rather than through a certified copy of Diriye’s conviction—may even have

benefitted Diriye. The descriptive witness testimony left little room for speculation by the

jury. Rather than simply hear that Diriye had been convicted of second-degree aggravated

robbery, the jury heard mitigating testimony that Diriye used his finger instead of a weapon

in committing the crime, Diriye was unsuccessful in his attempt to rob the victim, the police

responded within minutes, and no harm came to the victim.

Finally, any prejudice arising from the jury learning about specific facts from the

2011 aggravated robbery was mitigated by the district court’s cautionary instruction. See

State v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998) (observing that the court assumes

that the jury follows a district court's instruction).

In sum, because Diriye concedes that some evidence of the 2011 aggravated robbery

was admissible, and he cannot show that any additional facts admitted describing the

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circumstances of the robbery were so prejudicial as to have affected the outcome of the

case, he cannot meet his heavy burden of showing plain error. Because Diriye was not

entitled to a new trial, the district court properly denied Diriye’s petition for postconviction

relief.

Affirmed.

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