State of Minnesota, Respondent,

This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0757

State of Minnesota,
Respondent,

vs.

Abdiaziz Ali Adan,
Appellant.

Filed May 13, 2019
Affirmed
Cochran, Judge

Rice County District Court
File No. 66-CR-17-1406

Keith Ellison, Attorney General, St. Paul, Minnesota; and

J o h n L . F o s s u m , R i c e C o u n t y A t t orney, Terence Swihart, Assistan t County Attorney,
Faribault, Minnesota (for respondent)

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

Considered and decided by Reyes, Presiding Judge; Hooten, Judg e; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Appellant challenges his conviction for third-degree criminal s exual conduct,
arguing that (1) the district court abused its discretion in ruling that the state could impeach

2
him using his prior felony convi ctions, and (2) the prosecutor committed misconduct by
mischaracterizing the evidence. Because the district court did not abuse its discretion by
ruling that the state could impeach appellant, and the prosecut or did not commit
misconduct, we affirm.
FACTS
In December 2016, S.H. drove to appellant Abdiaziz Ali Adan’s r esidence to
purchase marijuana. When S.H. entered the residence, Adan and three other men were in
the apartment. Adan and S.H. wen t into a bathroom to complete the drug transaction.
While they were in the bathroom, Adan told her that he wanted to have sex with her. S.H.
told Adan that she did not want to have sex. Adan instructed S .H. to take her clothes off.
Because S.H. was scared of Adan, she removed her clothes. Adan then penetrated her
vagina with his penis.
In order to get Adan to stop penetrating her, S.H. repeatedly told him that someone
was waiting for her and might come to the door looking for her. Adan left S.H. and went
to the bathroom door to look around. S.H. then grabbed her pho ne and texted someone
asking for help. When Adan saw that S.H. was using her phone, he grabbed it. S.H. then
ran out of the apartment and drove home.
When she arrived at her home, S.H. immediately contacted the po lice. The police
interviewed her and drove her to the hospital for an examinatio n. S.H. described the
incident with Adan to both the police and a sexual-assault nurs e examiner. S.H. told the
police officers that she did not think Adan had ejaculated and told the nurse that she was
not sure whether he had ejaculated. An examination of S.H.’s c lothing revealed sperm

3
from two other men, including her boyfriend, but no sperm from Adan.1 A vaginal swab
indicated the presence of male DNA, but the sample was insuffic ient to conduct a more
detailed DNA analysis that could have identified a specific individual profile.
The state charged Adan with third -degree criminal sexual conduc t. Before trial,
Adan filed a motion requesting th at the court exclude evidence o f h i s p r i o r c r i m i n a l
convictions for impeachment purpos e s . T h e s t a t e a r g u e d t h a t i t should be allowed to
impeach Adan with evidence of four prior felony convictions. The district court ruled that
if Adan testified, the state could introduce evidence of the co nvictions. Adan ultimately
chose not to testify. A jury found him guilty after a trial in December 2017.
This appeal follows.
D E C I S I O N
Adan appeals the judgment of convi ction, arguing that the distr ict court abused its
discretion in ruling that the state could impeach him with evid ence of four prior felony
convictions and that the prosecutor committed misconduct by mis characterizing the
evidence. We address each argument in turn.
I. The district court did not abuse its discretion by ruling that the state
could impeach Adan with evidence of four prior felony convictions.

The district court ruled that if Adan testified, the state coul d impeach him with
evidence of four prior felony convictions: a 2010 conviction fo r fifth-degree controlled
substance crime, a 2011 conviction for robbery, a 2011 convicti on for second-degree

1 The district court ruled that the evidence of sperm from two other men was inadmissible,
and Adan does not challenge that ruling on appeal.

4
burglary, and a 2013 conviction for second-degree assault. Ada n ultimately chose not to
testify. Adan argues that the district court abused its discretion because his testimony was
important to his defense and the district court’s ruling chilled his right to testify.
An appellate court “will not reverse a district court’s ruling on the impeachment of
a witness by prior conviction absent a clear abuse of discretion.” State v. Hill, 801 N.W.2d
646, 651 (Minn. 2011) (quotation omitted). Prior-conviction evidence is admissible under
Minn. R. Evid. 609(a)(1) for the purpose of attacking the credi bility of a witness if the
crime is a felony “and the court determines that the probative value of admitting this
evidence outweighs its prejudici al effect.” In conducting this balancing test, the district
court considers five factors:
(1) the impeachment value of the prior crime, (2) the date of
the conviction and the defendant’s subsequent history, (3) the
similarity of the past crime with the charged crime (the greater
the similarity, the greater the reason for not permitting use o f
the prior crime to impeach), (4) the importance of defendant’s
testimony, and (5) the centrality of the credibility issue.

State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978). Because the district co urt is in “a
unique position” to assess and weigh the Jones factors, “it must be accorded broad
discretion.” State v. Hochstein, 623 N.W.2d 617, 625 (Minn. App. 2001). “[ A]ny felony
conviction is probative of a witness’s credibility, and the mer e fact that a witness is a
convicted felon holds impeachment value.” Hill, 801 N.W.2d at 652. “If credibility is a
central issue in the case, the fourth and fifth Jones factors weigh in favor of admission of
the prior convictions.” State v. Swanson, 707 N.W.2d 645, 655 (Minn. 2006).

5
Here, the district court considered each of the five Jones factors. It found that each
of the crimes had impeachment value, the crimes were recent enough to be probative, the
crimes were not similar to the charged crime, appellant’s testi mony would be important,
and credibility would be a centr al issue. The district court f ound that, because Adan’s
testimony was important, the fourth factor weighed against admitting the prior convictions
but that the other four factors favored admitting the prior convictions. Having considered
each of the five Jones factors, the district court ruled that the state could introduce evidence
of the four felony convictions to impeach Adan.
Adan argues that his testimony was particularly important becau se S.H.’s
“credibility was severely compromised” and that the fourth factor weighed strongly against
admitting the prior convictions. But where credibility is a ce ntral issue, the fourth factor
weighs in favor of admitting the prior co nvictions, not against. Swanson, 707 N.W.2d at
655. It is undisputed that credibility was a central issue in this case because of the lack of
physical evidence. As such, the fourth factor weighed in favor of admitting the prior
convictions.
But, even if the fourth factor d id weigh against admitting the prior convictions, as
Adan argues, a single factor does not automatically outweigh the other factors. See id. at
656 (concluding that a district court did not abuse its discret ion in admitting evidence of
prior convictions where only one of the Jones factors weighed against admission). Here,
the district court considered all five factors and accepted Adan’s argument that the fourth
factor weighed against admitting the prior convictions. After considering all five Jones
factors, the district court concluded that the factors favored admitting the evidence of the

6
prior convictions. On this record, the district court did not clearly abuse its discretion in
weighing the Jones factors and ruling that the sta te could impeach Adan by introd ucing
evidence that he had four prior felony convictions.
II. The prosecutor did not commit misconduct.
Adan next argues that the prosecutor committed misconduct by mi scharacterizing
the evidence during closing arguments and that this court should reverse his conviction and
remand for a new trial. Adan did not object to the prosecutor’ s closing arguments during
the trial. “[B]efore an appellate court reviews an unobjected- to error, there must be
(1) error; (2) that is plain; and (3) the error must affect substantial rights.” State v. Griller,
583 N.W.2d 736, 740 (Minn. 1998). “An error is ‘plain’ if it i s clear or obvious.”
State v. Peltier, 874 N.W.2d 792, 799 (Minn. 2016). “Typically, a ‘plain’ erro r
contravenes case law, a rule, or a standard of conduct.” Id.
We review a claim of unobjected-t o prosecutorial misconduct und e r a m o d i f i e d
plain-error standard. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). If an appellant
establishes that the prosecutorial misconduct is error that is plain, the burden shifts to the
state to show that the misconduct did not affect the appellant’ s substantial rights. Id. If
the state fails to show that the misconduct did not affect the appellant’s substantial rights,
“the court then assesses whether the error should be addressed to ensure fairness and the
integrity of the judicial proceedings.” Id.
During closing arguments, a prosecutor “may present all legitim ate arguments on
the evidence and all proper inferences that can be drawn from t hat evidence.”
State v. Pearson, 775 N.W.2d 155, 163 (Minn. 2009). But a prosecutor may not argue facts

7
not in evidence. State v. Lehman, 749 N.W.2d 76, 86 (Minn. App. 2008), review denied
(Minn. Aug. 5, 2008). A prosecu tor may not intentionally misst ate the evidence.
State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993).
In this case, the prosecutor told the jury during closing arguments that S.H.’s vaginal
swab contained male DNA, but that the amount was insufficient t o complete a DNA
profile. The prosecutor went on to say that those facts would be consistent with S.H.’s
belief that Adan did not ejaculate.
Adan argues that the prosecutor misstated the evidence because S.H. testified that
she did not remember whether Ada n ejaculated, rather than testi fying that she did not
believe he ejaculated. Adan’s argument is not supported by the record. In response to the
prosecutor’s question, “Do you remember did the defendant ejacu late?” S.H. answered
with a single word, “No.” Immediately following that question, the prosecutor asked, “Do
you know what prevented him from doing that,” and S.H. answered , “Him going to the
door.” S.H. then described how s he fled the residence after Ad a n w e n t t o t h e d o o r .
Viewing the exchange in its full context shows that S.H.’s single word answer “no” meant
that Adan did not ejaculate, and not that she did not remember whether Adan ejaculated.
Furthermore, the record contains other evidence supporting the prosecutor’s
statement that S.H. believed Adan had not ejaculated. S.H. tes tified that she told police
and the nurse that Adan had not ejaculated, and the state introduced her recorded statement
to police in which she stated that she did not think that Adan ejaculated. Because there is
ample evidence in the record supporting the prosecutor’s statement that S.H. believed that
Adan did not ejaculate, the prosecutor did not misstate the evidence in this regard.

8
Adan also argues that the prosecutor misrepresented the evidence by suggesting that
had there been enough male DNA on the vaginal swab to conduct a full DNA analysis, the
analysis would have shown it was Adan’s DNA. The state present ed evidence that Adan
penetrated S.H’s vagina with his penis but did not ejaculate. The state’s suggestion that
the male DNA on S.H.’s vaginal swab could have come from Adan was a proper inference
that could be drawn from the evidence at trial. See Pearson, 775 N.W.2d at 163 (stating
that prosecutors may make “all proper inferences that can be drawn from [the] evidence”).
Accordingly, the prosecutor did not commit misconduct by arguin g that the male DNA
from S.H.’s vaginal swab could have come from Adan.
Adan argues that because he was precluded from mentioning the sperm of two other
men on S.H.’s clothing, the prosecutor should not have been all owed to suggest that the
male DNA from the vaginal swab was his. But Adan does not challenge the district court’s
decision prohibiting the admissi on of evidence of the other men ’s sperm. Nevertheless,
we note that Adan’s argument that he was unable to counter an i nference that the male
DNA came from him is inconsistent with the record. The report from the nurse, which was
submitted to the jury, indicated that S.H. had intercourse with her boyfriend 48 hours before
the incident, and the defense argued during closing arguments that the male DNA from the
vaginal swab could have come from S.H.’s boyfriend. Adan fully presented his argument
that the DNA from the vaginal swab could have come from another source and specifically
suggested that her boyfriend was a possible source.
The record does not support that the prosecutor made any error, much less a plain
error. The prosecutor’s closing arguments were not improper and did not contravene “case

9
l a w , a r u l e , o r a s t a n d a r d o f c o n d u c t . ” Peltier, 874 N.W.2d at 799. Accordingly, the
prosecutor did not commit misconduct.
Affirmed.