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This opinion will be unpublished and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
A19-0301

State of Minnesota,
Respondent,

vs.

Mut Biel Gach,
Appellant.

Filed February 3, 2020
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Nobles County District Court
File No. 53-CR-18-397

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

Joseph M. Sanow, Nobles County Attorney, Worthington, Minnesota; and

Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Jesson, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Mut Biel Gach challenges his convictions stemming from a robbery, after
which the victim’s stolen shoes were found in Gach’s bag. Becau se it is supported by

2
sufficient evidence, we affirm Gach’s first-degree aggravat ed robbery conviction. But
because the district court erroneously convicte d Gach of theft, a lesser-included offense,
we reverse and remand for correction of the warrant of commitment.
FACTS
In April 2018, M.L. travel ed to Worthington to tr y out for a position on the
Minnesota West basketball team. I.D., who lived in the area and knew M.L., told him that
he could stay with her during the try-out.
As M.L. was waking up the morning afte r workouts, three me n with guns rushed
into his room demanding his wallet and belongings. According to M.L., he could tell that
the three men were African American, but one man was wearing a mask and the other two
had hooded sweatshirts pulled tight around thei r faces. M.L. told the men his wallet was
in his bag, and two of the men grabbed the bag and left. The other man, who M.L. described
as “heavier-set,” demanded M.L.’s phone. M. L. gave him the phone, and the man put a
silver revolver to M.L.’s head and orde red him to provide the phone’s passcode. 1 After
M.L. provided the code , the man left. Throug hout the robbery, the men yelled threats at
both M.L. and I.D., including th at they would shoot and kill them. The men took M.L.’s
wallet, which contained about $300 in cash and a plane ticket, his cell phone, a blue Under
Armour bag, a pair of sweatpants, and two pairs of Jordans (higher-end basketball shoes)—
one blue and one emerald green and white.2

1 From trial testimony, it is clear that the he avier-set man with the silver revolver was not
Gach.
2 Two other individuals lived in the apartmen t where M.L. stayed with I.D. And M.L.
thought someone living in the apartment set up the robbery. For instance, after the robbers

3
In an effort to recover the stolen items, M.L. and I.D. went to a different apartment
complex where I.D. believed the robbers lived. After their efforts to retrieve M.L.’s things
were unsuccessful, M.L. and I.D. reported the incident to police. Police then escorted M.L.
and I.D. back to the apartment complex wher e I.D. thought the men lived. When police
knocked on one apartment door, a teenager arou nd 13 or 14 years old answered the door.
I.D. identified him as one of the robbers. Police searched the apar tment but did not find
anything. And when I.D. took a closer look at the individual, she st ated that he was not
one of the men who robbed M.L.
Although he did not particip ate in the robbery, the teen ager is the younger brother
of one of the men I.D. thought robbed M.L. While the police were searching the apartment,
the teenager called his mother, who decided to return to the apartment. When she arrived,
she had three African American men in her ve hicle, including appellant Mut Biel Gach
(age 19 at the time). Accordin g to an officer at the scene, the three men got out of the
vehicle and were yelling that they wanted to fight M.L. I.D. identified the three men as the
people who robbed M.L., and police attempte d to separate M.L. and I.D. from the three
men.
Once things seemed calmer, an officer saw a blue Under Armour duffel bag in the
mother’s vehicle that matched M.L.’s descrip tion of his stolen bag. Police searched the
vehicle, and inside the blue duffel bag, found a silver revolver.
3 They also found a pair of

left, according to M.L., one of the other indi viduals in the apartmen t texted one of the
robbers to return M.L.’s wallet and plane ticket, which they did. The $300 in cash was not
returned.
3 The mother gave police permission to search her vehicle.

4
blue Jordans and sweatpants. During the search, police further discovered a Calvin Klein
duffel bag. Gach told police that the bag belonged to him, and inside the bag, police found
a pair of emerald green and white Jordans and a small amount of marijuana. M.L. identified
the items found in the car as his belongings, and police arrested Gach and the other two
men. Subsequently, the state charged Gach w ith several criminal offenses related to the
incident, including first-degree aggravated ro bbery, first-degree burglary, threats of
violence, second-degree assault with a dangerous weapon, theft, and possession of a small
amount of marijuana.
At trial, M.L. testified about the inci dent, as described above. But M.L.
acknowledged that he never got a good look at the robbers’ faces. Further, M.L. was unable
to specifically testify about Gach’s actions, generally explaining what “they” did and
threats that “they” made. But M.L. identified photos of the items found in the vehicle as
the items stolen from him, and he specific ally identified the emerald green and white
Jordans found in Gach’s bag as his shoes.4
The state also presented testimony from a Redwood County Investigator about an
incident Gach was involved in about one week before M.L. was robbed.5 According to the
investigator, Gach admitted that he and the same two men involved in this case attempted

4 When questioned about whether any forensic evidence existed, an officer acknowledged
that the emerald green and white Jordans were not tested for forens ic evidence. And a
forensic scientist from the Bureau of Crimin al Apprehension testif ied that a DNA swab
from the silver revolver contained a mixture of DNA from five or more individuals, making
it insufficient for comparative purposes.
5 Before trial, the district court determined this testimony could be admitted for the limited
purposes of showing a common scheme or plan and identity. See Minn. R. Evid. 404(b).

5
to rob a house in Redwood County to steal drugs and money. But, the investigator
explained, they went to the wrong house, encountered a large dog, and fired a shot into the
main door of the house. Gach allegedly told the investigator that the silver revolver used
to rob M.L. was the same gun used in the Redwood County robbery. But the investigator
also testified that Gach stated he could not remember parts of the Redwood County robbery
because he was so high.
Gach presented one witness, an investigator who explained that the emerald green
and white Jordans were readily available from several online retailers. Gach also testified.
According to him, he was at home playing video games the morning the robbery occurred,
and his friend’s mother picked him up around 1:30 or 2:00 that afternoon to drive to
Omaha. Gach testified that they headed back to his friend’s apar tment when the mother
got a phone call from his friend’s little brother, and that when they arrived, he went straight
into the apartment without yelling at M.L. And Gach explained that he did not really want
police to search the vehicle because he had drugs in his bag. But, according to Gach, the
shoes police found in his bag be longed to him, and he purchas ed them at a mall in Sioux
Falls using cash that his parents gave him. And Gach testified that he did not threaten
anyone or participate in the robbery in any way.
The jury found Gach not guilty of second- degree assault, but guilty of all other
charges.6 Subsequently, the district court entere d convictions for first-degree aggravated

6 Before the case was submitted to the jury, Ga ch moved for a directed verdict on several
of the charges, but the district court denied his motion. After the verdict, Gach again moved
for a judgment of acquittal on the first-degree aggravated robbery and first-degree burglary

6
robbery, threats of violence, theft, and posse ssion of a small amount of marijuana. And
the district court sentenced Gach to 41 mont hs in prison for first-degree aggravated
robbery. Gach appeals.
D E C I S I O N
Gach raises two arguments in this appeal. First, he contends that sufficient evidence
does not support his convictions. Second, Gach claims that the district court erred by
entering a conviction for theft because it is a lesser-included offe nse of first-degree
aggravated robbery. We review each argument in turn.
I. Sufficient evidence supports Ga ch’s first-degree aggravated robbery
conviction.

Gach alleges that insuffici ent evidence supports his conviction of first-degree
aggravated robbery. To evaluate the sufficiency of the evidence, “courts carefully examine
the record to determine whether the facts a nd the legitimate infere nces drawn from them
would permit the jury to reasonably conclude that the defendant was guilty beyond a
reasonable doubt of the offense of which he was convicted.” State v. Griffin, 887 N.W.2d
257, 263 (Minn. 2016) (quotation omitted). And in doing so, we view the evidence “in the
light most favorable to the verdict, and it must be assumed that the fact-finder disbelieved
any evidence that conflicted with the verdict.” Id. If the jury reasonably could have found
the defendant guilty of the charged crime, applying both the presumption of innocence and
the state’s burden of proof beyond a reasonable doubt, we will not overturn the verdict. Id.

charges. In a written order, the district cour t granted Gach’s motion with respect to the
first-degree burglary charge, but declined to acquit him of first-degree aggravated robbery.

7
Turning to Gach’s challenges to his firs t-degree aggravated robbery conviction,
Gach asserts that the state di d not prove beyond a reasonable do ubt that he took property
from M.L. 7 Convictions based on circumstantial evidence are subject to “heightened
scrutiny” from appellate courts. State v. Porte, 832 N.W.2d 303, 309 (Minn. App. 2013)
(quotation omitted).
When reviewing the sufficiency of circ umstantial evidence, we use a two-step
analysis. State v. Silvernail , 831 N.W.2d 594, 598 (Minn. 2013). First, we identify the
circumstances proved by the state. State v. Bahtuoh, 840 N.W.2d 804, 810 (Minn. 2013).
In doing so, this court defers “to the jury’s acceptance of the [s]t ate’s evidence and its
rejection of any evidence in the record that is inconsistent with the circumstances proved
by the [s]tate.” Loving, 891 N.W.2d at 643. Next, we “determine whether the
circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis except that of guilt.” Silvernail, 831 N.W.2d at 599 (quotations omitted). But
when making this determination, “[w]e exam ine independently the reasonableness of all
inferences that might be drawn from the ci rcumstances proved; in cluding the inferences
consistent with a hypothesis other than guilt” and do not defer to the jury’s determination.

7 Gach urges this court to apply the standa rd of review we use when a conviction is
supported by direct evidence. But caselaw is clear that “[w]hen the direct evidence of guilt
on a particular element is not alone sufficient to sustain the verdict,” appellate courts apply
the circumstantial-evidence standard of review. Loving v. State , 891 N.W.2d 638, 643
(Minn. 2017). Because Gach’s conviction re lies, at least in part, on circumstantial
evidence—namely the shoes found in Gach’s bag and the testimony from the investigator
about the prior robbery to establish identity and a common plan or scheme—we apply the
circumstantial-evidence standard of review.

8
Id. (quotation omitted). “If a reas onable inference other than guilt exists, then [appellate
courts] will reverse the conviction.” Loving, 891 N.W.2d at 643.
Here, Gach only challenges one element of his first-degree aggravated robbery
conviction: that the state fa iled to prove that he took any property from M.L. See Minn.
Stat. § 609.24 (2016) (explaining that robb ery requires the taking of property).
Accordingly, with Gach’s argument in mind, we first identify the circumstances proved by
the state with respect to this element.
The state proved the following circumstances: three African American men entered
the room where M.L. was staying; each man had a gun; the men demanded M.L.’s
belongings; the robbers took a blue Under Armour duffel bag, M.L.’s cell phone, his wallet
containing cash and a plane ticket, two pairs of Jordans—one blue and one emerald green
and white—and a pair of sweatpants; when Gach arrived at his friend’s apartment with two
other men, I.D. told police those were the me n who robbed M.L.; police found several of
M.L.’s items and a silver revolver during a search of that vehicle; police discovered a
Calvin Klein bag in the vehicle; Gach told police that the bag belonged to him; Gach’s bag
contained a pair of emerald green and white Jordans; M.L. identified the recovered items
as the ones stolen from him; and evidence admitted to establish identity and a common
plan showed that Gach and the same two me n attempted to rob a home using the silver
revolver roughly one week before M.L. was robbed.
Having established the circumstances proved by the state, our analysis next turns to
“whether the circumstances proved are consis tent with guilt and inconsistent with any
rational hypothesis except that of guilt.” Silvernail, 831 N.W.2d at 599 (quotations

9
omitted). Certainly, these circumstances proved are consistent with guilt. Although M.L.
did not identify Gach as one of the three men who robbed him, he was very clear that three
men participated in the robbery. And Gach and two other men arrived at Gach’s friend’s
apartment in a vehicle containing the stolen ite ms. Further, a pair of M.L.’s shoes were
found inside the bag Gach ad mitted belonged to him. See generally State v. Moen ,
192 N.W. 936, 936 (Minn. 1923) (stating that “the unexplained possession and control of
personal property shown to have been recently stolen is presumptive evidence of the guilt
of the person so in possession”). Finally, to establish identity and a common plan, the state
presented evidence to the jury demonstrating that Gach a nd the same two men attempted
to rob a different home shortly before this robbery. This evidence is inconsistent with any
hypothesis other than Gach’s guilt, and no rational hypothesis exists that Gach did not take
property from M.L.
Still, Gach contends that a separate rational inference from the evidence is that Gach
did not participate in the robbery and was gi ven the shoes by someone who did. But this
inference is not rational based on the evidence presented to the jury. M.L. clearly testified
that three men robbed him, an d Gach was in a vehicle with two other men and the items
stolen from M.L. And Gach admitted to an investigator that he attempted a prior robbery
with the same two men. Based on the circumstances prove d, it is not a rational inference
that Gach was given M.L.’s stolen shoe s without participati ng in the robbery. See
State v. Andersen, 784 N.W.2d 320, 330 (Minn. 2010) (s tating that appellate courts “will
not overturn a conviction based on circumstantial evidence on the basis of mere conjecture”
and noting that “[t]he [s]tate does not have the burden of removing all doubt, but of

10
removing all reasonable doubt”). Accordingly, we affirm Gach’s conviction of first-degree
aggravated robbery.8
II. The district court errone ously entered a conviction for theft because it is a
lesser-included offense of first-degree aggravated robbery.

Gach also argues—and the state agrees—that the district court erroneously entered
a conviction for theft, which he contends is a lesser-inc luded offense of first-degree
aggravated robbery. Whether theft is a lesser-included offense of first-degree aggravated
robbery is a legal question which we review de novo. See State v. Cox, 820 N.W.2d 540,
552 (Minn. 2012).
Under Minnesota law, a criminal defendant “may be convicted of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2016). And
this court has previously determined that “the ft is a lesser-included offense of aggravated
robbery.” State v. McClenton , 781 N.W.2d 181, 18 7 (Minn. App. 2010), review denied
(Minn. June 29, 2010); see also State v. Nunn , 351 N.W.2d 16, 19 (Minn. App. 1984).
Here, the warrant of commitment reflects that the district court entered convictions for both
first-degree aggravated robbery and theft. Beca use caselaw is clear that theft is a lesser-

8 In his brief, Gach states “[i]f this [c]ourt reverses Gach’s first-degree aggravated robbery
conviction for insufficient evidence, it should address whether the evidence was sufficient
for the threats of violence conviction.” Beca use we do not reverse Gach’s conviction of
first-degree aggravated robbery—the only conviction for which he was sentenced—we
decline to fully address Gach’s argument regarding his threats of violence conviction. But
we note that based on trial testimony, we are satisfied that sufficient evidence supports that
conviction as well. See generally State v. Ashland , 287 N.W.2d 649, 650 (Minn. 1979)
(stating that this court does not have to co nsider sufficiency-of-the-evidence claims on
unadjudicated—and unsentenced—counts).

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included offense of first-degree aggravated ro bbery, we reverse G ach’s theft conviction
and remand to the district court for correction of the warrant of commitment.
Affirmed in part, reversed in part, and remanded.