State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0665

State of Minnesota,
Respondent,

vs.

Osman Abdi Bashir,
Appellant.

Filed May 8, 2017
Affirmed
Peterson, Judge

Hennepin County District Court
File No. 27-CR-15-5078

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

Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Adam S. Lozeau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Bjorkman , Judge; and
Klaphake, Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from a conviction of simple robbery, appellant argues that (1) the
evidence was insufficient to prove that he used force to overcome the resistance of another
or compel another’s acquiescence in a taking of property, (2) the district court committed
reversible error and violated appellant’s constitutional right to present a defense when it
excluded psychiatric opinion testimony regarding his mental-illness history that was
crucial to his voluntary-intoxication defense, and (3) the court erred in ordering appellant
to register as a predatory offender because the offense of conviction did not arise out of the
same set of circumstances as the predatory offense of which he was acquitted. We affirm.
FACTS
On a February afternoon, M.B.P.M. was in her car with her three-year-old daughter
and her friend E.V.C.’s four-year-old daughter. The children were in car seats in the back
seat; M.B.P.M.’s daughter was on the driver’s side, and E.V.C.’s daughter was on the
passenger side. M.B.P.M. drove to E.V.C.’s house on Harriet Avenue South, which is a
one-way street, to drop off E.V.C.’s daughter. M.B.P.M. parked her car on the right side
of the street, which was across the street from E.V.C.’s house, and waited in the car for
E.V.C. to arrive. When E.V.C. arrived, she parked her car on the left side of the street in
front of her house. A car facing the wrong way on the one-way street was parked in front
of E.V.C.’s car.
M.B.P.M. left her car running while she got out and walked around the car to get
E.V.C.’s daughter out of her car seat. As M.B.P.M. was unbuckling E.V.C.’s car seat,
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appellant Osman Abdi Bashir opened the back door on the driver’s side of the car and
started removing M.B.P.M.’s daughter from her car seat. M.B.P.M. grabbed her daughter’s
foot, but Bashir succeeded in getting her daughter out of the car. E.V.C. ran across the
street and confronted Bashir, yelling at him to let M.B.P.M.’s daughter go. Bashir put the
child on the ground and grabbed E.V.C. by her hair. E.V.C. told Bashir to let her go or she
would call the police, and he released her. M.B.P.M., E.V.C., and the children ran across
the street to E.V.C.’s front yard.
M.B.P.M. and E.V.C. testified that, during the encounter, Bashir’s “eyes had a blank
stare” as “if he didn’t know what he was doing,” and his behavior and appearance indicated
that he was drugged. Bashir did not say anything to E.V.C. but directed a lot of profanities
toward people in the area.
A neighbor who witnessed the incident testified that after M.B.P.M., E.V.C., and
the children got away, Bashir knelt down in the street and remained there on his knees for
about 30 seconds to a minute. The neighbor testified that Bashir then put his hands on his
head, one by each ear, and remained like that for about another 30 seconds to a minute.
According to the neighbor, Bashir crawled to M.B.P.M.’s car, go t into the driver’s seat,
and drove away with all of the doors open.
E.V.C.’s friend C.M.F., who arrived with E.V.C., testified:
Q. Okay. Did you see this person take [M.B.P.M.’s] car?
A. Yes, I saw [Bashir] take [M.B.P.M.’s] car.
Q. Okay. Tell me what you saw?
A. I just saw that [Bashir], um, let [E.V.C.] go and he took
[M.B.P.M.’s] car.
Q. Did he walk towards the car?
A. They were just at the car.
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Q. Okay. So he just got in the car?
A. He just stepped and went in.
Q. Okay. And then did you see the car drive away?
A. Yeah. The car took off and then [E.V.C.], just, you know,
out of her mind, went after him.

E.V.C. testified:
Q. Okay. So he let go of your hair?
A. Yes.
Q. What did you do next?
A. I went with [M.B.P.M.], with [C.M.F.], and with the girls
in front of my house.
Q. Okay.
Q. Did you see where the men went?
A. He grabbed [M.B.P.M.’s] car and he left.

E.V.C. got into her vehicle and followed Bashir. Bashir was driving fast but was
not swerving and appeared to be in control of the car. A friend who had been in Bashir’s
car shortly before the incident testified that the appearance of Bashir’s eyes and his
behavior at that time were strange but that Bashir maintained control of his car and used
turn signals appropriately. The friend thought that Bashir was high because they had
smoked marijuana earlier.
While following Bashir, E.V.C. called 911. Several blocks from E.V.C.’s house,
Bashir stopped in the middle of a street, got out of M.B.P.M.’s car, threw away M.B.P.M.’s
cell phone, and approached E.V.C.’s car. E.V.C. got out of her car and got the attention of
a police officer in a nearby squad car.
Bashir was arrested and charged with kidnapping and simple robbery. The case was
tried to the court, and the district court found Bashir guilty of simple robbery but not guilty
5
of kidnapping. The district court sentenced Bashir to an executed term of 43 months in
prison and ordered him to register as a predatory offender. This appeal followed.
D E C I S I O N
I.
Simple robbery is defined as follows:
Whoever, having knowledge of not being entitled
thereto, takes personal property from the person or in the
presence of another and uses or threatens the imminent use of
force against an y person to overcome the person’s resist ance
or powers of resistance to, or to compel acquiescence in, the
taking or carrying away of the property is guilty of robbery
. . . .

Minn. Stat. § 609.24 (2014).
The supreme court has stated:
[T]he comments to Minn. Stat. § 609.24 . . . state that ordinary
theft from the person without the use of force or fear, as where
a defendant snatches a woman’s purse or picks a man’s pocket,
is theft from the person. But the comments add that if a woman
hangs on to her purse and the defendant uses force to overcome
her resistance or if a defendant pushes a victim against a wall
and takes his wallet, then the defendant has committed robbery,
not theft from the person.

State v. Nash, 339 N.W.2d 554, 557 (Minn. 1983); see also State v. Oksanen, 311 Minn.
553, 554, 249 N.W.2d 464, 466 (1977) (concluding that grabbing victim and pushing him,
causing him to fall, when taking wallet was sufficient to prove use of force or threat to use
force) (citing Advisory Committee Comments to Minn. Stat. § 609.24)). Bashir argues
that the evidence was insufficient to prove that he used force for the purpose of overcoming
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the resistance of another to, or to compel another’s acquiescence in, the taking of
M.B.P.M.’s car.
In reviewing a challenge to the sufficiency of the evidence, an appellate court
“review[s] the evidence to determine whether, given the facts in the record and the
legitimate inferences that can be drawn from those facts, [the fact-finder] could reasonably
conclude that the defendant was guilty of the offense charged.” State v. Robertson, 884
N.W.2d 864, 871 (Minn. 2016) (quotation omitted); see State v. Palmer, 803 N.W.2d 727,
733 (Minn. 2011) (stating that same standard of review applies in bench trials and in jury
trials when evaluating suff iciency of the evidence). This court will not overturn a guilty
verdict “if the [fact-finder], acting with due regard for the presumption of innocence and
the requirement of proof beyond a reasonable doubt, could have reasonably concluded that
the defendant was guilty of the charged offense.” State v. Crockson, 854 N.W.2d 244, 247
(Minn. App. 2014), review denied (Minn. Dec. 16, 2014). This court “defer[s] to the fact-
finder’s credibility determinations and assume[s] that the fact-finder disbelieved any
evidence that conflicted with the verdict.” State v. Barshaw, 879 N.W.2d 356, 366 (Minn.
2016) (quotation omitted).
We apply an elevated, two-step process in reviewing a conviction based on
circumstantial evidence. State v. Nelson, 812 N.W.2d 184, 188 (Minn. App. 2012). “The
first step is to identify the circumstances proved.” State v. Silvernail, 831 N.W.2d 594,
598 (Minn. 2013). In doing so, we “defer to the [fact- finder’s] acceptance of the proof of
these circumstances and rejection of evidence in the record that conflicted with the
circumstances proved by the State.” Id. at 598-99 (quotation omitted). Second, we
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“examine independently the reasonableness of all inferences that might be drawn from the
circumstances proved” to “determine whether the circumstances proved are consistent with
guilt and inconsistent with any rational hypothesis other than guilt, not simply whether the
inferences that point to guilt are reasonable.” Id. at 599 (quotations omitted). “We give
no deference to the factfinder’s choice between reasonable inferences.” Id. (quotation
omitted).
Bashir argues that “appreciable time passed between his use of force and the
eventual taking” and that “[i]t is rational to conclude that, if a person were using force for
the purpose of taking property, that person would take the property as soon as resistance to
the taking were overcome.” This argument assumes the credibility of the neighbor’s
testimony about Bashir kneeling in the street for one to two minutes after using force and
before taking the car. But C.M.F. testified that Bashir let E.V.C. go and took her car, and
E.V.C. testified that, after Bashir let go of her hair, she went to her front yard and saw
Bashir take M.B.P.M.’s car. The district court found: “When [E.V.C.] yelled for him to
let her go, Mr. Bashir complied. He then opened the driver door, climbed in the car, and
drove away.” This finding shows that the district court did not credit the neighbor’s
testimony that Bashir knelt in the street for one to two minutes before taking the car.
A footnote in Bashir’s reply brief states that C.M.F.’s testimony that she did not see
Bashir kneel is consistent with the neighbor’s testimony that Bashir knelt because C.M.F.
was moving away from the scene and towards E.V.C.’s house while Bashir was kneeling.
But C.M.F. specifically testified that she saw Bashir take M.B.P.M.’s car, and she also
testified that Bashir let E.V.C. go and took the car. When asked whether Bashir walked
8
toward M.B.P.M.’s car, C.M.F. testified that Bashir and E.V.C. “were just at the car.”
When C.M.F.’s testimony is credited, the only reasonable inference is that Bashir removed
M.B.P.M.’s child from the car and used force against E.V.C. to compel acquiescence in his
taking of M.B.P.M.’s car.
Bashir argues that a rational hypothesis is that the use of force against E.V.C. “was
purposeless and not calculated to overcome resistance to a taking. ” Bashir cites the facts
that his own car was parked across the street and running, 1 that he voluntarily abandoned
M.B.P.M.’s car about eight blocks away from E.V.C.’s house, that he did not make any
statement or take any action indicating an intent to take the car, and that he was exhibiting
“bizarre and concerning behavior.” The district court found that Bashir “drove in an
appropriate manner,” “signal[ed] his turns, dr[ove] in his lane, and otherwise controll[ ed]
the vehicle.” Record evidence supports th ese findings, and Bashir’s ability to drive
appropriately is relevant to his ability to intentionally use force to take the car.
Also, “[t]he mere fact of a person’s [marijuana use] . . . does not create the
presumption that a person is incapable of intending to commit a certain act.” State v.
Wahlberg, 296 N.W.2d 408, 418 (Minn. 1980). Whether a defendant was too intoxicated
to form the requisite intent is an issue for the fact-finder to determine. State v. Fratzke,
354 N.W.2d 402, 408 (Minn. 1984). This court will not disturb the district court’s
determination that Bashir used force to overcome resistan ce to and compel acquiescence
in the taking of M.B.P.M.’s car.

1 The car facing the wrong way on Harriet Avenue was Bashir’s car.
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II.
To support his voluntary-intoxication defense, Bashir sought to present psychiatric
opinion evidence that his mental illness made him susceptible to becoming extremely
intoxicated by using an amount of marijuana that would not affect an average person. The
district court granted the prosecution’s motion to exclude the proffered opinion testimony.
“Criminal defendants have a right to prepare and present a complete defense.” State
v. Hokanson, 821 N.W.2d 340, 350 (Minn. 2012). The right to present a defense includes
“at a minimum, . . . the right to examine the witnesses against the defendant, to offer
testimony, and to be represented by counsel. However, the defendant must still com ply
with established rules of evidence designed to assure both fairness and reliability in
assessing guilt or innocence.” State v. Reese, 692 N.W.2d 736, 740 (Minn. 2005) (citation
omitted). An evidentiary ruling is reviewed for an abuse of discretion. State v. Ashby, 567
N.W.2d 21, 25 (Minn. 1997).
The supreme court has held that expert psychiatric opinion testimony on the general
effects of mental illness is inadmissible during the guilt phase of a trial and that the
exclusion of psychiatric testimony on mens rea does not violate a defendant’s due-process
rights. State v. Anderson, 789 N.W.2d 227, 237-38 (Minn. 2010) (citing State v. Provost,
490 N.W.2d 93, 103- 04 (Minn. 1995)). But “such testimony might be admissible (1) in
the very rare circumstance in which ‘there was a me ntal disorder characterized by the
formation of a particular subjective state of mind inconsistent with the pertinent criminal
mens rea,’” or (2) “‛where the defendant has a past history of mental illness’ and such
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history ‘is in the nature of a factual background to explain the “whole man” as he was
before the events of the crime.’” Id. (quoting Provost, 490 N.W.2d at 103-04).
Bashir argues that the psychiatric evidence he offered about his history of mental
illness falls withi n the second exception because it “was offered for the specific, limited
purposes of establishing that it was more likely that Bashir was actually intoxicated during
the alleged crimes due to his substance-abuse disorders, and for demonstrating that he was
particularly susceptible to extreme reactions to intoxicating drugs.” Citing Fratzke, 354
N.W.2d at 408, Bashir argues that expert psychiatric testimony on the defendant’s “long
history of alcohol abuse” and how that history affected the defendant’s general ability to
“exercise good judgment or self-control” is admissible. In Fratzke, however, although the
court noted that such evidence was admitted, whether it was properly admitted was not at
issue.
The supreme court has stated that, “[e]ven when mental illness impairs a defendant’s
capacity for forming criminal intent, such intent is still determined from what a defendant
says and does.” Provost, 490 N.W.2d at 98. “[P]sychiatric opinion testimony is not
admissible on whether, in fact, the defendant had the capacity to form the requisite
subjective state of mind.” Id. at 101. “Nor is psychiatric opinion testimony admissible on
the ultimate question of whether in fact the defendant had the requisite mens rea when he
committed the crime.” Id.
“[E]vidence of intoxication” may be taken into consideration
on whether specific intent has been formed. . . . The question,
however, is whether expert psychiatric opinion testimony is
admissible on whether defendant’s intoxication has rendered
the defendant incapable of forming the requisite mens rea. In
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Minnesota such opinion testimony is not admissible. Our case
law on use of expert psychiatric testimony for intoxication and
mental illness is quite consistent.

Opinion testimony on a person’s blood alcohol content
and on the fact of intoxication is admissible, but expert opinion
testimony on how this intoxication may diminish capacity to
form specific intent is not admissible.

Id. at 102. “Expert testimony is not admissible on the ‘ultimate’ issues, i.e., whether the
defendant was capable of forming the requisite mens rea, or whether the defendant, in fact,
actually did possess the mens rea.” Id. at 103.
Bashir asserts that his marijuana use triggered something in his brain that heightened
his level of intoxication, which made him incapable of forming the intent required to
commit simple robbery. See State v. Charlton, 338 N.W.2d 26, 30 & n.8 (Minn. 1983)
(stating that supreme court has “implied that specific intent, or a purposeful or conscious
desire to bring about a criminal result, is an element of a robbery charge” and noting that
simple-robbery knowledge finding in earlier case “was based on indications of defendant’s
reason and purpose while committing the crime, as based on his actions”). Under Provost,
psychiatric opinion testimony is inadmissible for that purpose. The district court, therefore,
did not abuse its discretion by excluding the testimony.
III.
Minn. Stat. § 243.166, subd. 1b(a)(1) (2014) , requires a person to register as a
predatory offender if charged with a felony specified in the statute and convicted of “that
offense or another offense arising out of the same set of circumstances.” Once the facts
have been determined, whether the district court erred in requiring a defendant to register
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as a predatory offender is a question of law, which is reviewed de novo. State v. Lopez ,
778 N.W.2d 700, 705 (Minn. 2010).
In Lopez, two brothers sold methamphetamine to a police informant. Id. at 702. At
the time of the sale, the informant could not pay the full price and agreed to pay the
remaining amount at a later date. Id. Ten days later, when the informant still had not paid,
the brothers held the informant and his friend hostage in a garage for 40 minutes while the
informant arranged to pay the debt. Id. The brothers were each charged with aiding and
abetting a first-degree controlled-substance crime and two counts of aiding and abetting
kidnapping. Id. at 701. They were convicted of the controlled- substance crime, but the
kidnapping charges were dismissed. Id. at 702. The district court required the brothers to
register as predatory offenders because it concluded that the kidnapping charges “arose out
of the same set of circumstances” as the controlled-substance crime. Id.
The supreme court concluded that the kidnapping charges did not arise out of the
“same set of circumstances” as the controlled-substance crime. Id. at 706-07. The supreme
court explained that while the conviction offense and the charged offense need not be based
on identical facts, “the facts underlying the two must be sufficiently linked in time,
location, people, and events to be considered the ‘same set of circumstances.’” Id. at 706.
It is not enough that the conviction offense and the charged offense “arise from ‘related
circumstances’” or “share a single ‘related circumstance.’” Id. Instead, the two offenses
must “arise from one ‘same set of circumstances.’” Id. The kidnapping and controlled-
substance offenses in Lopez shared “at most one single common circumstance— payment
of a debt from the drug sale.” Id. They did not arise “out of the same set of circumstances”
13
because the kidnapping took place ten days after the drug sale, in a different place, involved
some different people, and involved a different set of events. Id.
Bashir argues that the robbery and kidnapping offenses did not arise out of the same
set of circumstances because they had different victims; M.B.P.M.’s daughter was the
victim of the alleged kidnapping, and M.B.P.M. was the robbery victim. But the daughter
was removed from M.B.P.M.’s car during the alleged kidnapping, and M.B.P.M. tried to
prevent her from being removed. The facts underlying the two offenses were linked in
time, location, people, and events.
Bashir argues that the two offenses were separated in time. But as already
addressed, the district court did not credit the neighbor’s testimony about Bashir kneeling
in the street for one to two minutes before taking the car. The district court properly
determined that the kidnapping and robbery offenses arose out of the same set of
circumstances and required Bashir to register as a predatory offender.
Affirmed.