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This opinion will be unpublished and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
A18-1006

State of Minnesota,
Respondent,

vs.

Salahalldeen Avdil Hamad,
Appellant.

Filed July 15, 2019
Affirmed in part, reversed in part, and remanded
Slieter, Judge

Clay County District Court
File No. 14-CR-17-2063

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

Brian J. Melton, Clay County Attorney, Pamela L. Foss, Acting County Attorney,
Moorhead, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota; and

Mark D. Nyvold, Special Assistant Public Defender, Fridley, Minnesota (for appellant)

Considered and decided by Halbrooks , Presiding Judge; Connolly, Judge; and
Slieter, Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
In this direct appeal from final judgments of conviction for multiple counts of first-
degree and attempted first -degree criminal sexual conduct, appellant argues that (1) the

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district court abused its discretion by admitting the victim’s out -of-court recorded
statements at trial, (2) his multiple offenses represented a single behavioral incident and he
should have received only one sentence, (3) his 360 -month sentence is disproportionately
long, and (4) the district court erred by convicting appellant on all c ounts. We affirm in
part, reverse in part, and remand.
FACTS
On June 10, 2017, 14 -year-old M.A. told her brother that appellant Salahalldeen
Avdil Hamad, M.A.’s father, sexually assaulted her the prior evening . M.A.’s brother
contacted law enforcement. Detective Chris Martin with the Moorhead Police Department
responded, and M.A. gave two recorded interviews. In these interviews, M.A. described
several incidents of sexual abuse that occurred from January 2016 to June 2017. During
this time, the family lived in two houses in Moorhead, Minnesota. M.A. refers to these
houses as the “old” house, where the family lived from about January 2016 to August 2016,
and the “new” house, where the family lived from about September 2016 to June 2017.
The state charged appellant with four counts of first-degree criminal sexual conduct
(CSC), two counts of attempted first-degree CSC, and one count of malicious punishment
of a child. Counts 1, 3, and 5 are based on abuse that occurred in the two homes that
appellant and M.A. occupied during the relevant time; the counts are charged pursuant to
Minn. Stat. § 609.342, subd. 1(b) (2016) (engaging in sexual penetration with person who
is at least 13 but less than 16 and actor is more than 48 months older than complainant and
in a position of authority over the complainant). Counts 2, 4, and 6 are based on the same
conduct and timeframe but are charged pursuant to Minn. Stat. § 609.342, subd. 1(g) (2016)

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(engaging in sexual penetration with person who is under 16 and wi th whom actor has a
“significant relationship”). Finally, count 7 is based on an incident in the new house where
appellant beat M.A. with a belt.
At trial, M.A. testified that shortly after midnight on June 10 , 2017, appellant
attempted to penetrate M.A.’s anus with his penis and attempted to penetrate M.A.’s vagina
with his fingers. M.A. also testified that appellant had previously sexually assaulted her
several times in the new house, including making M.A. perform oral sex on him,
penetrating her anus with his penis, and groping M.A.’s breasts and vagina. When asked
about abuse occurring in the old house, M.A. testified that “similar stuff” occurred but she
did not remember specific acts of first-degree criminal sexual conduct.
During cross-examination, appellant challenged M.A.’s credibility. The state then
offered M.A.’s recorded interviews with Detective Martin. Appellant did not object.
Appellant knew of the state’s intent to introduce M.A.’s interviews. During a pretrial
hearing, the parties discussed admitting M.A.’s interviews and appellant requested parts of
the interviews be redacted.
In the recordings played for the jury, M.A. recounted sexual assaults that occurred
in the old house. M.A. described appellant penetrating her anus with his penis, forcing her
to perform oral sex on him, and touching her breasts and vagina.
The jury found appellant guilty on all counts. The district court sentenced appellant
to a total of 360 months: 144 months on count 3; 144 months on count 5, consecutive to
count 3; 72 months on count 1, consecutive to counts 3 and 5 ; and 365 days on count 7,
concurrent to counts 3 and 5. The district court did not impose sentence s on counts 2, 4,

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and 6, finding that these counts were based on the same behavioral incident as other counts.
On the order and warrant of commitment, the district court entered convictions on all
counts. This appeal follows.
D E C I S I O N
I. The district court did not abuse its discretion by admitting M.A.’s interviews
with Detective Martin.

Appellant argues that the district court abused its discretion by admitting into
evidence M.A.’s interviews with Detective Martin . “The admission of evidence rests
within the broad discretion of the [district] court and its ruling will not be disturbed unless
it is based on an erroneous view of the law or constitutes an abuse of discretion.” Kroning
v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997) (quotation omitted).
Because a ppellant did not object at trial to the introduction of M .A.’s recorded
statements, we review their admission for plain error. Minn. R. Crim. P. 31.02. Plain error
requires the defendant to show (1) error , (2) that was plain, and (3) that affected the
defendant’s substantial rights. State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999). “If all
three requirements are met, we then determine whether relief is required to ensure fairness
and the integrity of the judicial proceedings.” State v. Fraga, 898 N.W.2d 263, 277 (Minn.
2017) (quotation omitted). This fourth prong is satisfied only “in those circumstances in
which a miscarriage of justice would otherwise result.” State v. Huber, 877 N.W.2d 519,
528 (Minn. 2016) (quotation omitted). The plain error doctrine “authorizes appellate courts
to correct only particularly egregious errors[]—in other words, those errors that seriously

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affect the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation
and citations omitted).
Appellant contends that M.A.’s recorded statements were inadmissible hearsay.
Hearsay is an out -of-court statement offered for its truth and is generally inadmissible
evidence. Minn. R. Evid. 801(c), 802. The state responds that M.A.’s recorded statements
were admissible pursuant to Minn. R. Evid. 801(d)(1)(B). This rule provides that a
witness’s prior out -of-court statement that is consistent with his or her trial testimony is
admissible as nonhearsay evidence if the statement is helpful to the trier o f fact in
evaluating the witness’s credibility. State v. Bakken , 604 N.W.2d 106, 109 (Minn. App.
2000), review denied (Minn. Feb. 24, 2000) . Before a statement may be admitted under
rule 801(d)(1)(B), the district court must make a “threshold determinati on” that the
witness’s credibility has been challenged. Id. The prior statement must also be consistent
with the witness’s trial testimony. Id.
Appellant argues that because M.A. testified only that “similar stuff” occurred in
the old house and the new house, but could not remember specific acts of first-degree CSC,
her recorded statements describing first -degree CSC in the old house were not consistent
with her trial testimony. Thus, appellant argues, her recorded statements are not admissible
as prior consistent statements pursuant to Minn. R. Evid. 801(1)(d)(B).
Though M.A.’s recorded statements might not have been consistent with her trial
testimony, the district court did not commit plain error. In State v. Manthey, our supreme
court examined the a pplication of plain -error review to hearsay evidence. 711 N.W.2d
498, 504 (Minn. 2006). The supreme court recognized that the “complexity and subtlety

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of the operation of the hearsay rule and its exceptions make it particularly important that a
full discussion of admissibility be conducted at trial.” Id. “In the absence of an objection,
the state [is] not given the opportunity to establish that some or all of the statements were
admissible under one of the numerous exceptions to the hearsay rule.” Id.
M.A.’s statements were not clearly or obviously inadmissible hearsay and by failing
to object, even with notice of the statements’ proposed admission, appellant denied the
state the opportunity to establish their admissibility. We conclude that it was not plain
error for the district court to admit M.A.’s interviews.
II. The district court properly determined that counts 1, 3, and 5 were not a single
behavioral incident.

Appellant challenges the district court’s imposition of sentences on counts 1, 3, and
5, arguing that because the convictions stem from a single behavioral incident, he should
receive only one sentence. Appellant does not challenge the district court’s sentence on
count 7. “Whether the offenses were part of a single behavioral incident i s a mixed
question of law and fact, so we review the district court’s findings of fact for clear error
and its application of the law to those facts de novo.” State v. Bakken, 883 N.W.2d 264,
270 (Minn. 2016).
In Minnesota, “if a person’s conduct constitu tes more than one offense under the
laws of this state, the person may be punished for only one of the o ffenses.” Minn. Stat.
§ 609.035, subd. 1 (2016). “ [W]here multiple offenses arise from a single behavioral
incident, a conviction or acquittal for one offense bars prosecution for any additional
offense.” State v. Schmidt , 612 N.W.2d 871, 876 (Minn. 2000). “The single behavioral

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incident statute protects criminal defendants from both multiple prosecutions and multiple
sentences for offenses resulting from the same behavioral incident.” Id.
Appellant’s argument is unfounded. In addition to being separate instances of
abuse, the acts occurred in different houses at different times. “Multiple acts against the
same victim do not constitute a single beha vioral incident when the individual acts are
separated by time and place.” State v. Suhon , 742 N.W.2d 16, 24 (Minn. App. 2007) ,
review denied (Minn. Feb. 19, 2008). The district court did not err in finding that counts
1, 3, and 5 were separate behavioral incidents.
III. The district court did not impose a disproportionately long sentence.
Appellant also argues that the district court imposed an excessive and
disproportionate sentence. This court will not interfere with a district court’s sentencing
decision unless the sentence is “disproportionate to the offense or unfairly exaggerates the
criminality of the defendant’s conduct.” State v. McLaughlin, 725 N.W.2d 703, 715 (Minn.
2007) (quotation omitted). This court’s review is guided by sentences im posed on other
similarly situated offenders, id., acknowledging that a district court has “a unique
perspective on all stages of a case, including sentencing, and . . . is in the best position to
evaluate the offender’s conduct and weigh sentencing options .” State v. Hough , 58 5
N.W.2d 393, 397 (Minn. 1998).
A. State’s Charging Decision
Appellant first appears to challenge the length of his sentence by attacking the
state’s charging decision. Appellant argues that charging him with two counts of first -
degree criminal sexual conduct and one count of attempted first -degree criminal sexual

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conduct exaggerates the criminality of his conduct. Instead, appellant reasons, the state
should have brought a single count pursuant to section 609.342, subdivision 1(h)(iii)—this
subdivision applies to sexual abuse that “involved multiple acts committed over an
extended period of time.” Minn. Stat. § 609.342, subd. 1(h)(iii) (2016).
But “a prosecutor has broad discretion in the exercise of the charging function and
ordinarily, under the separation -of-powers doctrine, a court should not interfere with the
prosecutor’s exercise of that discretion” absent special circumstances. State v. Foss, 556
N.W.2d 540, 540 (Minn. 1996). In the absence of limiting statutory language, a court gives
deference “to the prosecutor’s discretion to evaluate the facts of a case, which may lead to
various combinations of charges, and to select the particular charges best suited to achieve
justice.” State v. Richardson, 633 N.W.2d 879, 884 (Minn. App. 2001).
There are no special circumstances here permitting us to interfere with the state’s
charging decision. We note that even if the state had charged appellant pursuant to section
609.342, subdivision 1(h)(iii), it was not required to allege a single count. Suhon makes
clear that this statute permits “the state to charge multiple counts for each extended period
of abuse, [and] do[es] not preclude multiple charges merely because the multiple periods
might alternatively constitute a single, longer period.” 742 N.W.2d at 22-23.
Appellant also argues that his sentence is disproportionate because the state charged
the most recent acts of abuse as separate counts, instead of including them as part of the
other counts. Appellant contends that these counts were essentially acts of abuse in a series
of acts and were not removed in time nor of different conduct than the other counts.

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In s upport of his argument, appellant relies on a 2008 unpublished opinion.
Unpublished cases are not binding precedent. On review, the unpublished case is
unpersuasive—that case involved charges under the multiple-acts-over-time subdivision of
section 609.3 42 and an upward departure. Appellant was not charged under this
subdivision, nor did the district court impose an upward departure.
B. Comparison to other Sentences
Appellant also argues that his 360-month sentence is disproportionate when
compared to other sentences. In reviewing sentences, “the final analysis . . . must be based
on our collective, collegial experience in reviewing a large number of criminal appeals
from all the judicial districts.” Rairdon v. State , 557 N.W.2d 318, 327 (Minn. 2007)
(quotation omitted). In our collective experience, appellant’s 360 -month cumulative
sentence is not excessive. A review of caselaw shows several defendants sentence d
similarly. See State v. Labatte, No. A18-0926, 2019 WL 1591793, at *7 (Minn. App. Apr.
15, 2019) (532-month sentence for two counts of first -degree criminal sexual conduct) ;
State v. Nordquist , No. A17-1180, 2018 WL 371707 8, at *9 (Minn. App. Aug. 6, 2018)
(360-month sentence for two counts of first-degree CSC); State v. Kingbird, No. A15-2001,
2018 WL 1997342, at *2 (Minn. App. Apr. 30, 2018) (360-month sentence for three counts
of first-degree CSC), review denied (Minn. July 17, 2018).
IV. The district court erred by convicting appellant on all counts.
Appellant argues , and the state agrees, that the district court erred by entering
convictions on counts 2, 4, and 6. The district court did not impose sentence on counts 2,
4, and 6, but did enter convictions on them. See Spann v. State , 740 N.W.2d 570, 573

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(Minn. 2007) (stating that the offi cial judgment of conviction is “conclusive evidence of
whether an offense has been formally adjudicated”).
“Upon prosecution for a crime, the actor may be convicted of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2016). The
supreme court has interpreted this statute to mean that “a defendant may not be convicted
of two counts of criminal sexual conduct (different sections of the statute or different
subsections) on the basis of the same act or unitary cour se of conduct.” State v. Folley ,
438 N.W.2d 372, 373 (Minn. 1989).
The district court erred by entering convictions on counts 2, 4, and 6. Accordingly,
we reverse and remand to the district court with directions to vacate appellant’s adjudicated
convictions on counts 2, 4, and 6.
Affirmed in part, reversed in part, and remanded.