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This opinion will be unpublished and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
A17-0451

State of Minnesota,
Respondent,

vs.

Abimbola Bakare,
Appellant.

Filed March 12, 2018
Affirmed
Rodenberg, Judge

Ramsey County District Court
File No. 62-CR-15-2329

Lori Swanson, Attorney General, Kelly L. Meehan, Assistant Attorney General, St. Paul,
Minnesota; and

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Rodenberg, Judge; and
Smith Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Abimbola Bakare appeals fro m his judgment of conviction and sentence
for multiple counts of medical-assistance fraud, arguing that the district court should have
treated his convictions as misdemeanors, be cause the medical-assistance-fraud statute,

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Minn. Stat. § 609.466 (2010), does not include a specific penalty provision. Therefore, he
argues, violations of Minn. Stat. § 609.466 are misdemeanor s by definitio n under Minn.
Stat. § 645.241 (2010). In the alternative, appellant argues that Mi nn. Stat. § 609.466 is
unconstitutionally vague. He further argues that the district court erred by failing to obtain
a renewed waiver of counsel from appellant before he represented himself at his jury trial
after circumstances changed following his initial waiver of counsel. We affirm.
FACTS
Appellant owned 49% of Dependable Ca re Inc., a business enrolled in the
Minnesota Medical Assistance program. The business provided personal care assistant
(PCA) services to medical-assistance recipients. Appellant was responsible for billing the
Minnesota Department of Human Services (DHS) on behalf of the business.
On March 31, 2015, appella nt was charged with one co unt of medical-assistance
fraud pursuant to Minn. Stat. § 609.466 (2012), based on the allegation that he billed DHS
for Medicaid services without documentation that the services were actually provided. The
complaint alleged that appella nt submitted false claims for reimbursement and that DHS
relied on those claims and “gave up possession of more than $5,000.” When appellant
appeared in district court, he requested an attorney. A public defender was initially
appointed to represent appellant, but the dist rict court later determined appellant was
financially ineligible for a pub lic defender. The district cour t continued the case so that
appellant could obtain counsel, and appellant next appeared in district court with his first
private attorney.

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Appellant appeared with his first private a ttorney at two hearings; at the second of
those hearings, the attorney informed the district court that appellant no longer wanted his
services and that appellant was in the process of obtaining a second private attorney. The
district court warned appellant that he had “the right to an attorney, but that right to an
attorney does not mean you can indefinitely continue the matter.” It continued appellant’s
pretrial hearing to a later date to allow appellant’s new attorney to prepare.
Appellant appeared in district court with his second private attorney for the
rescheduled pretrial. This new attorney informed the district court that appellant wanted
to discharge him. Observing that appella nt and his attorney had differing opinions
regarding how the case should proceed and that appellant apparently lacked confidence in
his second attorney, the district court informed appellant that it would not delay the matter
any further and, if appellant chose to hire a third private attorney, th at attorney must be
prepared to proceed to trial as scheduled on February 29, 2016. Appellant responded that
he wanted to go pro se “for now.” After the district court carefully, and over approximately
seven pages of transcript, went through appe llant’s rights with him, appellant signed a
written petition to proceed pro se.
The state later filed an amended complain t, consistent with earlier discussions
concerning plea offers. The amended comp laint alleged aiding and abetting medical-
assistance fraud from August 17, 2010 to September 10, 2013, based on the allegation that
appellant submitted false claims to DHS and received payments totaling $184,611.09. The
district court explained to appellant that the amended complaint charged six counts of

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aiding and abetting medical-assistance fraud, with an increased potential penalty from the
initial complaint.
Appellant appeared for trial as scheduled on February 29, 2016. He had no lawyer
and requested a six-month continuance to hi re one. In response, the district court
recognized that appellant was “dragging [his] feet.” Nevertheless, it continued appellant’s
trial date to its next trial block, warning appella nt that he either needed to get an attorney
by then or proceed without one.
Represented by his third private attorn ey, appellant again appeared before the
district court for trial. Appellant’s attorney represented to the court that he and appellant
had not yet finalized an agreement for his serv ices. This attorney also requested time to
review the case because he had only recently been contacted by appellant. The district
court again granted appellant a continuance, and a pretrial hearing was set for a month later.
Appellant appeared at this continued pretri al hearing without a lawyer. He informed
the district court that he would represent hims elf. The district court set a new trial date,
and warned appellant that there would be no more rescheduling. The district court did not
require appellant to submit a renewed written waiver of counsel.
Shortly before trial, the state filed a second amended complaint which removed the
reference to “aiding and abetting” medical -assistance fraud from the complaint. The
second amended complaint was based on the sa me facts as the first amended complaint
and was identical to the first amended co mplaint concerning the maximum possible
penalty.

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Trial began on September 28, 2016, approx imately 18 months af ter appellant was
charged. Appellant represented himself at trial. The district court noted on the record at
the outset of trial and while discussing pretrial issues that appellant had earlier signed a
written waiver of counsel, and that appellant had waived his right to an attorney. The
district court asked if appellant was ready to proceed, and appellant replied that he was.
The second amended complaint charged a ppellant with six counts of “Medical
Assistance Fraud (over $5,000)” under “Minnesota Statute: 609.466, with reference to:
Minn. Stat. § 609.52.3(2), 609.17.1, 609.17.4(2).”1 The state appears to have begun trying
the case as though appellant was charged with theft under Minn. Stat. § 609.52 (2010). For
example, in its opening statement, the state posited that appellant had committed theft, not
attempted theft under the medical-assistance-fraud statute. The prosecutor stated: “Theft
comes in many forms. . . . It can also take the form of stealing from the government.” The
state suggested that “at its core this is a case about theft.” Later, the state backtracked and
noted that medical-assistance fraud under Minn. Stat. § 609.466 is an attempt crime not
requiring proof that appellant received mone y. Despite this, the state presented trial
testimony from an auditor who investigated De pendable Care’s billing activity for fraud.
The state questioned this witness in detail regarding calculations of the amount Dependable
Care was overpaid as a result of appellant’s false claims. On cross-examination, appellant

1 Although the complaint refe rred to Minn. Stat. § 609.17, subd. 1 (2010), the general
attempt statute, the state realized late into tr ial that Minn. Stat. § 609.17, subd. 1, did not
properly apply to appellant’s charges beca use, under Minn. Stat. § 609.466 (2010),
medical-assistance fraud is itself an “attempt” crime.

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also questioned the auditor about her calcul ations regarding the amount paid for two
particular claims. The case was submitted to the jury on verdict forms calling for the jury
to determine as to each count whether appell ant was guilty or not gu ilty and, if guilty, to
answer interrogatories concerning “the total value of the property taken.”
The jury found appellant guilty of all six counts of medical-assistance fraud, but it
returned an incomplete verdict on count four. 2 The district court stayed imposition of
felony sentences on counts one, two, three and five, dismissed count four, and imposed a
stayed felony sentence of one year and one day in prison on count six. Although count six
was a presumptive prison commitment, the district court dispositionally departed from the
Minnesota Sentencing Guidelines and stayed the execution of sentence. For all of his
convictions, appellant’s presumptive sentence was calculated under the guidelines using
Minn. Stat. § 609.52, subd. 3(2 ), theft over $5,000, as modifi ed by Minn. Stat. § 609.17,
subd. 4(2). Minn. Sent . Guidelines 2.G (2010 & 2012). This resulted in a presumptive
sentence of one year and one day in prison for count six under the Minnesota Sentencing
Guidelines. If Minn. Stat. § 609.17, subd . 4(2), was not applied as a modifier, the
presumptive sentence would have been 19 months. See Minn. Sent. Guidelines, 2.G.1-2
(2012) (providing that, for a sentencee for an attempt offense under Minn. Stat. § 609.17,
the presumptive duration is half of that fo und in the appropriate grid cell, except a

2 Count four of the complaint alleged fraud in the amount of over $82,000, and the jury
verdict form only permitted the jury to find appellant guilty of “taking” an amount less than
$35,000. The jury, consistent with the evidence at trial, found appellant guilty but did not
answer the special interroga tory, owing to the absence of a special interrogatory
conforming to the trial evidence.

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presumptive sentence “cannot be less than one year and one day”); see also Minn. Stat.
§ 609.17, subd. 4(2) (providing that, for cr imes for which the maximum sentence is less
than life imprisonment, the maximum penalty for an attempt shall be “not more than one-
half of the maximum imprisonment or fine or both provided for the crime attempted”).
Appellant was placed on supervised probation for five years and was ultimately ordered to
pay restitution in the amount of $102,935.98.3
This appeal followed.
D E C I S I O N
Appellant argues both that Minn. Stat. § 609.466 is uncons titutionally vague and
that the district court erred by convicting him of a felony and not of a misdemeanor,
because Minn. Stat. § 609.466 does not include a penalty provision. Appellant also argues
that the district court erred by failing to ob tain a renewed waiver of counsel from him
before he represented himself at his jury tr ial when circumstances changed following his
initial waiver of counsel. Finally, appellant, in his pro se brief, rais es a number of issues
regarding the district court’s evidentiary rulings at trial.
Minn. Stat. § 609.466
Appellant argues that Minn. Stat. § 609.466 is unconstitutionally vague. The statute
provides:
Any person who, with the intent to defraud, presents a claim
for reimbursement, a cost report or a rate application, relating
to the payment of medical assistance funds pursuant to chapter

3 Appellant’s restitution obligation is joint and several with appellant’s ex-wife, a co-owner
of Dependable Care Inc., who was also convic ted of similar fraud charges in a separate
proceeding.

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256B, to the state agency, which is false in whole or in part, is
guilty of an attempt to commit theft of public funds and may
be sentenced accordingly.

We first observe that appellant did not ra ise this issue in th e district court.
Generally, we “will not decide issues which were not raised before the district court.” Roby
v. State , 547 N.W.2d 354, 357 (Minn. 1996). When invalidation of a statute for
constitutional infirmity is sought, “[t]he law is clear in Minnesota that the constitutionality
of a statute cannot be challenged for the first time on appeal.” State v. Engholm , 290
N.W.2d 780, 784 (Minn. 1980). Because appellant failed to timely assert his constitutional
challenge in district court, he has forfeited that argument on appeal. See State v. McCauley,
820 N.W.2d 577, 583-84 (Minn. App. 2012) (refusing to consider an appellant’s argument
that the statute under which he was convicted is void for vagueness because appellant did
not raise the issue in district court), review denied (Minn. Oct. 24, 2012).
Appellant also argues that, because the language of Minn. Stat. § 609.466 includes
neither a penalty provision nor any reference to a penalty provision in another statute, he
should be sentenced for a mi sdemeanor. Minn. Stat. § 64 5.241 (2010) (providing that,
when an act is prohibited by statute and no penalty for a violation “shall be imposed in any
statute, the doing of such act shall be a misdemeanor”). The state responds that we should
decline to address the issue because it was not raised to the district court; and, should we
address the issue, the state argues only that “the language of § 609.466 referring to theft of
public funds is a clear reference to Minn. Stat. § 609.52, subd. 3(3)(d)(iv) which provides
that theft of public funds is a felony offense regardless of the value of the property stolen.”

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We are persuaded that, as the case was tr ied by the parties, appellant forfeited the
argument that all medical-assistance-fraud convictions are misdemeanors. Appellant failed
to raise this issue to the district court, despite multiple opportunities (and after consulting
with at least three private attorneys) to do so. The initial comp laint and two amended
complaints each alleged that appellant had received DHS funds as a result of his false
claims. All three complaints referenced Minn . Stat. § 609.52, subd. 3(2). As outlined in
the facts section, above, the state vacillated at trial between arguing that appellant was
charged with and could be convicted of theft, and arguing that it needed only to prove that
appellant attempted to receive funds from DHS through false claims. The verdict forms
proposed by the state, agreed to by appellant, and given to the jury by the district court,
treated the charged offenses as thefts. Each verdict form required the jury to find, if
appellant was guilty, “the total value of the property taken.” Appellant’s statements on the
record at trial clearly indicate that he rega rded the charges against him as theft charges,
despite the principal charging statute—medical-assistance fraud—not requiring proof of a
completed theft.
Had appellant raised to the district court the argument he now raises on appeal, the
state undoubtedly would have done explicitly what it did implicitly—that is, try appellant
for a completed theft under Minn. Stat. § 609. 52. As it was, the state only charged an
attempt offense under Minn. Stat. § 609.466. That appellant completed the theft does not
negate his culpability under Minn. Stat. § 609.466; he did present a claim for
reimbursement with the intent to defraud—and the jury found that he did so successfully.

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The jury answered interrogatories on the verdict forms indicating that the state proved that
appellant had actually “taken” the amounts alleged.
Whether appellant realized it at trial or not, his not raising to the district court the
issue he argues on appeal benefitted him. Because the state undercharged the case only as
an attempt, despite having proved a completed theft, the district court properly sentenced
appellant only for the attempt crime of which he was convicted. See Minn. Sent. Guidelines
2.G (2010 & 2012); Minn. Stat. § 609. 52, subd. 3(2); Minn. Stat. § 609.17, subd. 4(2)
(providing that, for crimes for which the maximum sentence is less than life imprisonment,
the maximum penalty for an a ttempt shall be “not more th an one-half of the maximum
imprisonment or fine or both provided for the crime attempted”). Appellant was not
sentenced for the completed thef t that the jury found the state to have proved. Because
appellant did not raise this argument below, he was sentenced only for attempted theft.
If we were to reach appellant’s argument that all convictions under Minn. Stat.
§ 609.466 are misdemeanors because there is no penalty provision attached to it, we would
reject the argument in any event. 4 The apparent purpose of section 609.466 is to reduce
the level of proof required to prove an attempted theft when a false claim is submitted for

4 We do not agree with the st ate’s argument that Minn. Stat . § 609.466 includes a “clear
reference” to Minn. Stat. § 609. 52, subd. 3(3)(d)(iv) (2010) an d that this is the penalty
provision for all violations of section 609.466. Minn. Stat. § 609.52, subd. 3(3)(d)(iv), is
the sentencing provision applicable only to theft cases where “the value of the property or
services stolen is not more th an $1,000, and . . . the property consists of public funds.”
Here, every count in the amended complaint ch arged the theft or attempted theft of far
more than $1,000. None of the charged offenses is governed by Minn. Stat. § 609.52, subd.
3(3)(d)(iv).

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medical-assistance funds with intent to defraud. That described conduct makes the actor
“guilty of an attempt to commit theft of pub lic funds.” The “attempt to commit theft”
language of Minn. Stat. § 609.466, to our reading, refers sufficiently to Minn. Stat. § 609.52
(the only crime defined as “theft” by the crimin al code) that no resort need be made to
Minn. Stat. § 645.241 in search of a penalty provision. Minnesota’s criminal code contains
a detailed list of sentencing alternatives for theft crimes, depending on the amount stolen,
the thing stolen, the identity of the victim, the manner in which the theft is committed, and
other factors. Minn. Stat. § 609.52, subd. 3. Minnesota Statutes section 645.241 provides
a catchall for cases where the statutes provide “no penalty.” Theft is not such a case. The
legislature’s inclusion in Minn. Stat. § 609. 466 of submission of false medical-assistance
claims as sufficient to prove an attempted theft of public funds causes no occasion for resort
to section 645.241.5

5 Despite rejecting appellant’s argumen t concerning Minn. Stat. § 609.466, we
acknowledge that the legislature could have better expressed how violations of the statute
should be handled by the district courts. The Minnesota Jury Instruction Guides
recommend what the district court did here, which is to include interrogatories for the jury
concerning the aggregate value of property in volved in the theft offense (reflecting the
sentencing provisions of Minn. Stat. § 609.52). 10 Minnesota Practice, CRIMJIGS 16.83.
Further, the Minnesota Sentencing Guidelines classify a violation of Minn. Stat. § 609.466
as a felony offense. In the context of th is case, and given how the case was tried by the
parties and submitted to the jury, we see no error in the district court’s treatment of the jury
instructions and verdict forms. To the extent that this manner of submitting the medical-
assistance-fraud charges to the jury benefitted anyone, it benefitted appellant, as discussed
above.

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Appellant’s Waiver of Counsel
Appellant also argues that the district court erred by failing to obtain a renewed
waiver of his right to counsel before trial. Appellate courts review a district court’s factual
findings regarding waiver of counsel under the clearly erroneous standard. State v. Jones,
772 N.W.2d 496, 504 (Minn. 2009 ). “A finding is clearly erroneous when there is no
reasonable evidence to support th e finding or when an appella te court is left with the
definite and firm conviction that a mistake occurred.” State v. Rhoads, 813 N.W.2d 880,
885 (Minn. 2012). “[A]s a general rule, a defendant who has knowingly, intelligently, and
voluntarily waived his right to counsel need not renew his waiver-of-counsel at subsequent
proceedings.” Id. at 889. The Minnesota Supreme Co urt adopted a limited exception to
this rule in Rhoads, holding that an excep tion to the general rule is warranted when an
amended charge doubles the maximum pos sible punishment to an offense. Id. at 888.
However, “an exception to the general rule is unwarranted when the amended charge does
not increase the possible range of punishment.” Id.
Appellant does not challenge the validity of his original waiver, and to our view of
the record, the district court both obtained appellant’s written waiver and carefully
explained appellant’s rights to him. Appellant now argues that this waiver should have
been renewed on two particular occasions: when appellant requested counsel after his
initial waiver, and when the state amended its complaint for the second time.
Appellant argues that his request for counsel after the state’s first amendment of the
complaint, and his subsequent appearance before the cour t with counsel, constitutes a
changed circumstance that required a renewed waiver. Appellant pr ovides no authority

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that sufficiently supports hi s argument, and we see no reason here to depart from the
general rule provided in Rhoads. The record clearly evidences appellant’s desire to
represent himself, despite having had at least three different attorneys representing him or
accompanying him at various court appearances during the life of this case. Each time
appellant appeared with co unsel, he ultimately—and by a ll appearances freely and
voluntarily—discharged each attorney and chose to represent himself. The district court
did not clearly err in honoring appellant’s wish to represent himself at trial without going
through additional waiver-of-counsel petitions and proceedings.
Appellant also challenges the adequacy of his waiver of counsel because the state
amended the complaint a second time. Desp ite that second amendment, resulting in
charges of medical-assistance fraud rather than aiding and abetting medical-assistance
fraud, the amendment did not ch ange the potential penalties. Appellant does not argue
otherwise. An amended complaint that doe s not change the potential punishment for a
defendant is not a sufficient change in ci rcumstances to warrant a renewed waiver of
counsel. Id. Therefore, the state’s second am ended complaint was not a changed
circumstance that required the district court to obtain a renewed waiver of counsel from
appellant.6

6 The district court was exceedingly patient with appellant during his multiple changes of
mind concerning whether he would have a lawyer, and who that lawyer would be.
Appellant’s written petition to proceed pro se was explaine d fully and in detail by the
district court. In each successive change of mind by the appellant , the district court
carefully and patiently allowed appellant to fully explore his legal-representation options.
On this record, it is evident that appellant’s choice to represent himself was informed and
voluntary.

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The District Court’s Evidentiary Rulings
In his pro se brief, Appellant raises a num ber of challenges to the district court’s
evidentiary rulings at trial regarding th e spousal-communications privilege, the
impeachment of one of his witnesses with a prior crime, the admission of an exhibit, and a
time limitation placed on his closing argument. We review the district court’s evidentiary
and other rulings for abuse of discretion. Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d
42, 45-46 (Minn. 1997). After a careful review of the record, we conclude that the district
court’s evidentiary rulings at trial were well w ithin its discretion, and that appellant’s pro
se claims are without merit.
Affirmed.