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This opinion will be unpublished and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
A18-0977

State of Minnesota,
Respondent,

vs.

Mohamud Hussein Ahmed,
Appellant.

Filed April 1, 2019
Affirmed
Bjorkman, Judge

Blue Earth County District Court
File No. 07-CR-15-3977

Keith Ellison, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General,
St. Paul, Minnesota; and

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

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

Considered and decided by Bjorkman, Presiding Judge; Connolly, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges his convictions of first -degree assault and malicious
punishment of his child, arguing that (1) insufficient evidence supports the convictions,

2
(2) the district court plainly erred by admitting mother’s testimonial statement to police,
and (3) the district court abused its discretion by imposing an aggravated sentence that
unduly exaggerates the criminality of his conduct. We affirm.
FACTS
The afternoon of August 24, 2015, ap pellant Mohamud Ahmed cared for his two
young children by himself for several hours. When their mother returned home, she
learned that their two -month-old son, N.H., who had been healthy earlier in the day, was
abnormally fussy and unwilling to take a bot tle or nurse. Ahmed and mother brought the
baby to the emergency room , where he exhibited “decreased muscle tone” and an inward
deviation of the left eye but no external injuries or signs of cranial swelling. Concerned
about a possible head injury , t he treating physician ordered a CT scan and other tests.
When notified of the tests, Ahmed became angry, indicated he “just wanted medications,”
and left with N.H. against medical advice.
Back at home, Ahmed and mother prayed over N.H. until approximately 2:00 or
2:30 a.m., when Ahmed went to sleep. Shortly after 3:30 a.m., mother became concerned
about the baby’s breathing and, without waking Ahmed, called 911. Emergency
responders transported mother and N.H. back to the hospital. N.H. was moaning, mov ing
spontaneously, and unresponsive to stimuli. A CT scan revealed brain swelling and a loss
of oxygen to the brain. When asked how N.H. might have sustained such injuries, mother
stated that he had recently tipped over in his car seat while she was driv ing but had not
appeared injured.

3
Because of his serious condition, N.H. was airlifted to a Rochester hospital. Upon
arrival, his pupils were fixed and dilated and his fontanelle was “full and bulging,”
indicating that the brain swelling had worsened. 1 Doctors administered medication to
reduce the swelling. CT scan s revealed numerous serious injuries: a fractured left
collarbone, recent and healing rib fractures, bleeding in the lungs, multiple areas of
bleeding on the brain, and swelling throughout the brain. And N.H. exhibited extensive
retinal hemorrhages in both eyes. Medical personnel recognized that these injuries suggest
non-accidental trauma, such as smothering or shaking and squeezing “[v]ery hard.” In
particular, the recent and healing rib f ractures indicated multiple instances of substantial
force, highly indicative of abuse. And the presence of pervasive internal injuries with no
external injuries made an accidental cause unlikely.
Police and child -protection services learned of N.H.’s co ndition the morning of
August 25. That afternoon, two detectives went to the family residence to interview
Ahmed and check on the other child’s welfare . Two other detectives went with a child -
protection worker to the hospital to interview mother.
Ahmed told the detectives that only he and mother cared for their children, and
explained that N.H. had been injured when his car seat tipped over while mother was
driving. During the interview, Ahmed received a phone call and conducted a conversation
in Somali; the conversation was recorded as part of the interview. After the call, Ahmed
offered a different explanation for the child’s injuries, stating that they must have happened

1 Brain swelling typically peaks 48 to 72 hours after injury, but medication can disrupt that
progress.

4
when the child fell while in the shower with mother. Upon further questioning, Ahmed
became agitated and said, “[I]f you take my children away from me, I will end my life.”
The detectives ended the interview and transported Ahmed to the hospital for a mental -
health evaluation.
Meanwhile, mother gave a statement to the detectives in Rochester. She also
indicated that only she and Ahmed cared for their children. And she again stated that N.H.
must have sustained his injuries when his car seat tipped over while she was driving.
During the interview, mother requested a break to pump m ilk. Instead, she made a phone
call. The detectives coordinated with their counterparts at the family residence and learned
that the call was to Ahmed. When the interview resumed, mother’s “version of the events
changed.” Mother stated that she had dropped N.H. while in the shower and had also done
so two weeks earlier. At the end of the interview, the detectives seized mother’s phone.
A search of the phone revealed text messages in which Ahmed directed mother to
“tell them that there is no swelling on his head and that he was born with the big head and
it is birth defect.” And a translation of the call between mother and Ahmed revealed that
Ahmed directed her to say that she dropped N.H. in the shower then drove him around and
his car seat tipped over, and she agreed to do as he asked.
On August 29, mother contacted one of the detectives , stating it was “making her
sick” lying about what happened and that “she wanted to come forward and tell the truth.”
She told the detective that she did not know w hat happened to N.H. but that she had not
injured him and his car seat had not tipped over while she was driving. Mother
acknowledged changing her story during her earlier interview at Ahmed’s direction, and

5
said that she was afraid of Ahmed. After the interview, the detective took her to a domestic-
abuse shelter.
N.H. remained in intensive care for a week and thereafter in the regular pediatric
unit until late September. He was discharged from the hospital into mother’s sole care.
Also in late September, Ahmed contacted police to provide a nother statement. He
maintained that N.H.’s injuries must have resulted from his car seat tipping over and a fall
in the shower. But he indicated that he, not mother, was the one driving and the one who
dropped the child in the shower.
Ahmed was charged with first - and third -degree assault and three counts of
malicious punishment of a child alleging various levels of bodily harm. At trial, medical
experts agreed tha t N.H.’s injuries indicated non -accidental trauma, could not have been
caused by a car seat tipping over or a fall in the shower, and have left N.H. “profoundly
impaired” with severe cerebral palsy, unlikely ever to walk or be independent. The state
was unable to locate mother to present her testimony, but the detectives who interviewed
her testified about her statements.
The jury found Ahmed guilty , and t he district court convicted him of malicious
punishment of a child (great bodily harm) and first -degree assault. The district court
sentenced Ahmed to 201 months in prison, an upward departure based on N.H.’s particular
vulnerability.2

2 By special verdict, t he jury found that N.H. was unable to fight back, flee, or seek help
because of his age; Ahmed knew or should have known N.H. was vulnerable due to his
age; and Ahmed knew or should have known N.H. would be unable to communicate what
happened to him due to his age and mental capacity.

6
D E C I S I O N
I. Sufficient evidence supports Ahmed’s convictions.
When reviewing a claim of insufficient evidence, we carefully review the record “to
determine whether the evidence and reasonable inferences drawn therefrom, viewed in a
light most favorable to the verdict, were sufficient to allow the jury to reach its verdict.”
Lapenotiere v. State , 916 N.W.2d 351, 360 -61 (Minn. 2018) (quotation omitted). When
the challenged conviction is based on circumstantial evidence, we apply a two -step
analysis. State v. Harris, 895 N.W.2d 592, 598 -601 (Minn. 2017). First, we identify the
circumstances proved “by resolving all questions of fact in favor of the jury’s verdict,” in
deference to the jury’s credibility determinations. Id. at 600. Second, we independently
consider the “reasonable inferences that can be drawn from the circumstances proved.” Id.
at 601 . The circumstances proved must, as a whole, “be consistent with a reasonable
inference that the accused is guilty and inconsistent with any rational hypothesis except
that of guilt.” Id.
To convict Ahmed of first -degree assault, the state was required to prove that he
intentionally inflicted great bodily harm upon N.H. Minn. Stat. § 609.221, subd. 1 (2014).
A conviction of malicious punishment of a child similarly required proof that Ahmed
committed an intentional act or set of acts against N.H. that caused him great bodily harm.
Minn. Stat. § 609.377, subds. 1, 6 (2014). “Great bodily harm” is bodily injury that causes
“a high probability of death ” or “ a permanent or protracted loss or impairment of the
function of any bodily member or organ. ” Minn. Stat. § 609.02, subd. 8 (2014). Ahmed
does not dispute that N.H.’s injuries constitute great bodily harm. But he contends the

7
evidence is insufficient to establish that he intentionally caused them. Because both intent
and causation are based on circumstantial evidence, we use the circumstantial -evidence
standard.
The state proved the following circumstances. On August 25, 2015, N.H. presented
to a hospital with extensive and permanent damage to his eyes and brain, as well as
numerous rib and collarbone fractures inflicted on multiple occasions. This constellation
of injuries, particularly in the absence of any external injuries, could only be caused by
non-accidental trauma. They could not have been caused by a drop in the shower or tipping
over in a car seat. Ahmed and mother were the child’s sole caregivers. During the
afternoon of August 24, Ahmed was alone with N.H. and his other child. When mother
returned, N.H.—who was fine earlier that day—was abnormally fussy.
Ahmed did not seek medical care for N.H. until mother returned home, opposed
medical testing to evaluate N.H.’s condition, and went to sleep instead of returning to the
hospital as N.H.’s condition deteriorated. N.H.’s brain swelling became progressiv ely
more severe over the following day until he was medicated, consistent with being injured
while in Ahmed’s care on August 24. After initially telling police that N.H.’s car seat
tipped over while mother was driving, Ahmed later said he was driving. And he repeatedly
told mother what she should tell the investigating officers.
Ahmed points to inconsistencies in mother’s statements to medical and police
personnel and a consulting doctor’s testimony that it was “hard to know” precisely what
force caused N.H.’s injuries, to support a rational hypothesis other than guilt. We are not
persuaded. The evidence on which Ahmed relies is not part of the circumstances proved.

8
These circumstances support only one rational hypothesis —Ahmed was the person who
intentionally inflicted the harm upon N.H.
II. The district court did not plainly err by admitting evidence of mother’s second
statement to police.

The Sixth Amendment guarantees the accused the right to confront the witnesses
against him. U.S. Const. amend. VI . The right to confrontation means that “ testimonial
statements of a witness who did not appear at trial ” generally are inadmissible unless the
defendant had a prior opportunity to cross-examine the unavailable witness . Crawford v.
Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365 (2004).
Where, as here, the appellant challenges the admission of unobjected-to out-of-court
statements, we review for plain error. State v. Tscheu, 758 N.W.2d 849, 863 (Minn. 2008).
In applying the plain-error test, we will reverse only if the appellant demonstrates that the
district court (1) committed an error; (2) that was plain; (3) that affected his substantial
rights; and (4) that seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
Ahmed claims plain error in the admission of mother’s second statement to police,
in which she denied any involvement in injuring the child and acknowledged that Ahmed
had told her what to tell police. The state agrees that mother’s statement was testimonial
and that Ahmed did not have a prior opportunity to cross -examine her. See id. at 864
(stating that a statement is testimonial if obtained by law enforcement for the purpose of
providing ev idence at trial). But the state persuasively identifies two reasons why the
district court did not err by not sua sponte excluding the statement.

9
First, the statement is not categorically inadmissible. The confrontation right “is
not absolute” but subject to certain exceptions and forfeitable by “wrongful actions.” State
v. Caulfield, 722 N.W.2d 304, 311 (Minn. 2006). In particular, a defendant who procures
or coerces a witness’s absence or silence thereby forfeits his right to confront the witness
in court. State v. Cox, 779 N.W.2d 844, 851 (Minn. 2010) (applying Giles v. California, 554 U.S. 353, 128 S. Ct. 2678 (2008)). But when a defendant does not object to an out-of-
court statement, the state has no opportunity to establish a basis for admitting the statement.
State v. Smith, 825 N.W.2d 131, 138 (Minn. App. 2012) (discussing hearsay rule), review
denied (Minn. Mar. 19, 2013). Because the record suggests Ahmed may have interfered
with mother,3 forfeiture may be implicated.
Second, Ahmed may hav e had tactical reasons for not objecting. See State v.
Washington, 693 N.W.2d 195, 205 (Minn. 2005) (recognizing that a defendant may have
strategic reasons for not objecting to certain evidence and cautioning that a district court
risks interfering with such strategy by acting sua sponte). Ahmed initially listed mother as
a defense witness, so he may have viewed her statements collectively as exculpatory. Or
he may have sought to avoid an inquiry into why she was unavailable . Or he may have
recognized that the statement duplicat ed other admissible evidence —mother’s first
statement to police, Ahmed’s recorded phone conversation with her, and his text messages

3 When the state encountered difficulties contacting mother shortly before trial, it advised
the district court that Ahmed had apparently been in contact with mother despite a no -
contact order and had another child with her in summer 2017.

10
to her—such that it was not worth an objection. Any of these explanation s is consistent
with his decision to take the alternate route of excluding specific and plausibly more
prejudicial evidence of the related child -protection proceeding. Had the district court
intervened to exclude the statement sua sponte, it may have disr upted Ahmed’s trial
strategy.
Moreover, Ahmed has not demonstrated any prejudice from the statement’s
admission. An error cannot be said to have affected the defendant’s substantial rights if
“the verdict was surely unattributable to th[e] error.” Tscheu, 758 N.W.2d at 864. One
consideration is whether the challenged testimony is cumulative of properly admitted
testimony. Id. at 865. Such is the case here. As noted above, the statement that Ahmed
now challenges is substantially cumulative of other e vidence to which he raises no
challenge. That evidence, together with testimony as to Ahmed’s own actions and the
timing of the child’s non-accidental injuries, so thoroughly established Ahmed’s guilt that
the verdict was surely unattributable to the admission of mother’s second statement.
III. Ahmed’s aggravated sentence does not impermissibly exaggerate the
criminality of his conduct.

A district court must sentence within the presumptive range unless “substantial and
compelling” circumstances justify a departure. Minn. Sent. Guidelines 2.D.1 (2018).
“Substantial and compelling” aggravating circumstances are those that show the
defendant’s conduct was significantly more serious than that typically involved in the
commission of the offense in question. State v. Edwards , 774 N.W.2d 596, 601 (Minn.
2009). An aggravated sentence must be commensurate with the “criminality of the

11
defendant’s conduct.” Id. We review a district court’ s decision to depart from the
sentencing guidelines for an abuse of discret ion. State v. Mohamed , 779 N.W.2d 93, 96
(Minn. App. 2010) , review denied (Minn. May 18, 2010) . And w e generally will not
reverse an upward d urational departure so long as it is no more than “ double the
presumptive sentence length.” State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981).
Ahmed argues that the district court abused its discretion by imposing an aggravated
sentence of 201 months in prison, a substantial but not quite double upward departure from
the 103 -month maximum presumptive sentence for first -degree assault. Minn. Sent .
Guidelines 4.A (Supp. 2015). Ahmed acknowledges that the departure ground—the
victim’s particular vulnerability—is valid. See Minn. Sent. Guidelines 2.D.3.b(1) (2018).
But he contends the extensive departure unfairly exaggerates the criminality of his conduct.
This argument is unavailing.
Ahmed identifies no authority for the proposition that a 201 -month sentence
exaggerates the criminality of his assault. And we discern none. To the contrary, a nearly
double upward departure is consistent with the types of sentences imposed for first-degree
assaults against victims who are not merely vulnerable but entirely defenseless due t o
infirmity or infancy. See Dillon v. State , 781 N.W.2d 588, 602 (Minn. App. 2010)
(collecting cases upholding sentences for first-degree assault that were greater than double
the presumptive length), review denied (Minn. July 20, 2010). Ahmed’s sentence reflects
the fact that he inflicted the most severe level of survivable bodily harm upon the most
vulnerable possible victim—his own two-month-old son. The district court did not abuse

12
its discretion by determining that a sentence of 201 months’ imprison ment is
commensurate with that conduct.
Affirmed.