State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0408

State of Minnesota,
Respondent,

vs.

Ronnie Bila Shaka,
Appellant.

Filed February 16, 2021
Affirmed in part, reversed in part, and remanded
Gaïtas, Judge

Ramsey County District Court
File No. 62-CR-16-8870

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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz , Alexandra Meyer, Assistant
County Attorneys, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reyes, Pres iding Judge; Connolly, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
On direct appeal from two convictions of unlawful firearms possession, and after
remand for postconviction proceedi ngs, appellant Ronnie Bila Shaka argues that (1) the
police obtained the evidence against him during an unlawful warrantless entry of a home,

2
(2) his trial attorney provided ineffective assistance of counsel in pursuing a pretrial motion
to dismiss the case based on the state’s destru ction of evidence, (3 ) his trial attorney
provided ineffective assistance of counsel in failing to request a special jury instruction on
his defense theory, and (4) the district c ourt erroneously entered two judgments of
conviction or, alternatively, erroneously im posed two sentences, where both offenses
occurred during a single behavioral incident. We affirm the denial of Shaka’s motion to
suppress the evidence, the de nial of Shaka’s postconviction ineffective-assistance-of-
counsel claims, and the district court’s entry of two convictions for two acts of possession.
But because Shaka’s two sent ences stem from acts committed during a single behavioral
incident, we reverse and remand for the district court to vacate one of the sentences.
FACTS1
Shaka’s Arrest
In July 2016, Shaka called 911 to report that two guns, a wedding ring, and keys to
a lockbox had been stolen from his home while hi s wife was at the hospital giving birth.
Officers from the Saint Paul Police Department were dispatched to the house and arrived
about an hour and a half after the call. The di spatcher told the officers that, according to
Shaka, there were additional firearms still inside the safe in the home.
Shaka was in the front yard when the first officers arrived. He waved them down
and told them that his firearms—which he de scribed as a Glock 40 and a nine millimeter
pistol—had been stolen, along with a wedding ring. Shaka said that he had spent the night

1 Our summary of the facts is taken from the pretrial hearing on Shaka’s motion to suppress
the evidence, his subsequent jury trial, and the postconviction proceedings.

3
with a woman and he believed the woman had taken a keychain from his pocket while he
was asleep, which included a key to a safe located in the house. He alleged that the woman
had unlocked the safe and stolen the contents.
During Shaka’s conversation with the officers, his wife S.S. came out to the porch
with an infant in her arms. Two officers approached S.S. on the porch. She told the officers
that the stolen guns belonged to her and the officers asked to see her permit. S.S. then
turned and entered the home to retrieve her paperwork. The two officers accompanied her
inside. S.S. did not invite the officers into the home or object to their entry. And the
officers did not ask for S.S.’s permission to enter the house—they simply followed her
indoors.
S.S. produced her permit to possess the mi ssing guns. While standing inside the
home, the officers looked through an open doorway near the front door, which led into the
master bedroom, and observed an AR-15 rifle, ammunition, and “a couple safes” on top of
the bed.
In the meantime, another o fficer spoke with Shaka in the front yard. Shaka
acknowledged that he was a felon, but assu red the officer that any guns in the house
belonged to S.S. The officer informed Shaka that a felony conviction prohibited him from
owning guns, being around guns, and being in a house containing guns. The officer
handcuffed Shaka and seated him in the back of a squad car.
After observing the guns in the house, an d learning of Shaka’s felony status, the
officers asked S.S. to sign a form giving consent to search the master bedroom. S.S. signed

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the form. Officers searched th e master bedroom and seized several firearms, gun parts,
ammunition, and gun safes. Shaka had a keychain with keys to the safes in his pocket.
While in the squad car, Shaka asked an officer to retrieve his phone from inside the
house. He wanted to show the officer some text messages he had exchanged with the
alleged thief. The officer entered the home and fetched Shaka’s phone. Shaka then showed
the officer a text he sent the alleged thief, which stated, “I know you took my guns b--ch.”
Another stated, “and you got my guns.” And yet another te xt stated, “You thought you
was slick. You took my lockbox key and stole the heat and took my wedding ring.” Shaka
was arrested for unlawfully possessing firearms.
Following the arrest, Shaka met with a police sergeant. Shaka told the sergeant that
when he called 911 to report the theft, he asked the operator for instructions about handling
the remaining guns in the hous e given that police would soon be arriving. The sergeant
did not obtain a recording of the 911 call or ma ke efforts to preserve any recording. The
911 call was later destroyed in accordance with a records-retention policy. Shaka initially
told the sergeant that he di d not remember touching any of the firearms, but then
acknowledged that he may have touched the guns. The sergeant took a DNA sample from
Shaka. Subsequent testing revealed that Shaka’s DNA was consistent with DNA obtained
from the seized firearms.
Shaka was charged with two counts of being an ineligible person in possession of a
firearm, Minn. Stat. § 624.713, subd. 1(2) (2018). One count related to a Beretta Nano
nine-millimeter handgun found in the bedroom. The second count related to a Sig Sauer
AR-15 rifle, also seized from the bedroom.

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Shaka’s Pretrial Motions
Before trial, Shaka’s attorney pursued two motions. First, he moved to suppress the
evidence, arguing that the officers’ warran tless entry of the home was unconstitutional
because S.S. had not voluntarily consented to the entry. Second, he moved to dismiss the
case based on spoliation of evidence—the record ing of Shaka’s 911 call. The motion to
dismiss alleged that the 911 operator had inst ructed Shaka to place any guns in the home
on a bed so that the police would see them upon arrival. According to Shaka, the
destruction of the 911 call violated his due-pr ocess rights and required dismissal of the
case.
The district court held an evidentiary hearing on Shaka’s motions. Regarding the
entry of the home, the responding police officers testified that S.S. did not object to them
following her inside when she went to obtain her permit. They explained it was “natural”
to enter the home with S.S. because they we re talking to her about the theft report.
Additionally, they testified that it was unsafe for officers to allow S.S. to enter a residence
containing guns. After they observed the AR-15 and ammunition in plain view, they asked
S.S. to sign a consent form authorizing a search of the bedroom. The officers testified that
S.S. raised no objection to the consent form or the subsequent search. S.S. was primarily
concerned that Shaka had been with another woman in the home.

6
The state also called the police sergeant who spoke with Shaka following the arrest.
He explained that he did not make efforts to retain the recording of the 911 call because he
did not see the relevance of the recording at the time.2
Finally, the state called one of the two 911 operators who had received Shaka’s 911
call about the theft. The operator had no me mory of the call and her notes did not reflect
whether she communicated with Shaka about how to handle the remaining guns in the
home.
The defense called S.S. She testified that before going to the hospital to give birth,
she put her wedding ring in a safe with two guns and gave Shaka the key to the safe. When
she returned from the hospital, she discovered her wedding ring was missing and she asked
Shaka to call 911. According to S.S., the re sponding officers followed her into the home
without her permission when she went inside to retrieve her gun permit. Afterwards, S.S.
testified, the police “basically forced” her to sign a consent-to-search form, threatening to
call child protection if she did not cooperate.
Finally, Shaka testified at the hearing. According to Shaka, he told the 911 operator
that he was a convicted felon, but the operato r instructed him to “secure the weapons.”
Shaka testified that based on this instructio n, he went into the bedroom and moved the
firearms.

2 There were at least two 911 calls made with in a short time span, and each of these calls
was destroyed as a matter of course pursuant to a records-retention policy. In the interest
of clarity, we refer to Shaka’s 911 calls in the singular.

7
After the hearing, the district court is sued a written order de nying both motions.
The district court concluded that S.S. had consented to the officers’ search, and therefore,
there was no constitutional viol ation. Regarding Shaka’s de struction-of-evidence claim,
the district court determined that the exculpatory nature of the 911 call was not apparent to
the sergeant. Thus, the sergean t did not act in bad faith when he failed to preserve the
recording of the call.
The Trial
Shaka’s case proceeded to a jury trial. At trial, th e state called the responding
officers, who testified about their involveme nt in the case. The police sergeant who
interviewed Shaka after the arre st also testified on behalf of the state. In addition to
testifying about his interview of Shaka, the sergeant explained to the jury that he did not
preserve Shaka’s 911 call because it was a report of a theft, which di d not seem to have
evidentiary value to him. Tw o forensic analysts testified that Shaka’s fingerprints and
DNA were found on the guns recovered from the master bedroom. Finally, the same 911
operator testified that she would not give advi ce about what to do with guns in a home in
preparation for a visit from the police.
Shaka’s defense theory was that the fir earms belonged to S.S. and he never
possessed them. He testified on his own behalf. Shaka claimed that he did not live in the
home with his wife S.S. According to Sh aka, his fingerprints and DNA were on the
firearms because he moved them at the instruction of the 911 operator while the police
were en route. When asked about his text messages where he referred to the guns as “his,”
he told the jury that he was mistaken when he sent the messages because he was angry.

8
The jury found Shaka guilty of both counts. The district court entered a conviction
for each of the two guilty verdicts and sentenced Shaka to two concurrent prison terms of
60 months.
The Postconviction Proceedings
Shaka filed a direct appeal from the judgment of conviction. He then moved to stay
the appeal to pursue po stconviction proceedings. We granted Shaka’s request to stay the
appeal.
In the postconviction proceedings, Shaka alleged that his trial attorney had provided
ineffective assistance of counsel. He alle ged two deficiencies in the attorney’s
performance. First, Shaka claimed that the attorney failed to present the most significant
evidence supporting the pretrial motion to dismiss—a statement that S.S. gave to the police
sergeant. During the r ecorded statement, S.S. told the sergeant that the 911 operator had
instructed Shaka and her to move the guns. Although the sergeant said he would check the
recording of the 911 call, he never did. Second, Shaka claimed his trial attorney was
ineffective when the attorney failed to create and request a special jury instruction allowing
the jury to acquit if Shaka moved the firearms in relian ce on an instruction from a
government agent or official. Shaka alleged that the 911 operator was such an official.
A postconviction evidentiary hearing was he ld on Shaka’s clai ms. Following the
hearing, the postconviction court denied relie f, concluding that Shaka failed to establish
that the alleged errors of his trial attorney affected the outcome of the trial.

9
Shaka’s Appeal
After the postconviction court denied relief, we lifted the stay of appeal. Shaka now
challenges the district court’s denial of his pretrial motion to suppress the evidence and the
denial of his postconviction claims of ineff ective assistance of counsel. Additionally,
Shaka argues that the district court erred in entering two convictions and imposing two
sentences for offenses that occurred at the same time.
DECISION
I. The officers’ warrantless entry of the ho me did not violate Shaka’s federal and
state constitutional rights because S.S. voluntarily consented to the entry.

Shaka first argues that the district court erred in denying his motion to suppress the
evidence because the officers who responded to his 911 call performed an unlawful search
by entering the home without a search warrant. His argument focuses on the officers’ first
entry into the home—when they followed S.S. inside as she retrieved her gun permit.3 In
reviewing the denial of a motion to suppress, appellate courts review the district court’s
factual findings for clear error and legal determinations de novo. State v. Milton , 821
N.W.2d 789, 798 (Minn. 2012).
The United States and Minnesota Constitu tions prohibit police from conducting
“unreasonable searches and seizures.” U.S. Const. amend IV; Minn. Const. art. 1, § 10.   
Generally, warrantless searches are per se unreasonable unless they fall within an exception
to the constitutional requirement for a search warrant. State v. Lemert, 843 N.W.2d 227,

3 Shaka does not challenge the formal search of the master bedroom that occurred after S.S.
signed a form consenting to the search.

10
230 (Minn. 2014) (citing Missouri v. McNeely, 569 U.S. 141, 148, 133 S. Ct. 1552, 1558
(2013)). When the police conduc t a warrantless search, the st ate “bears the burden of
showing that at least one exception [to the warrant requirement] applies, or evidence seized
without a warrant will be suppressed.” State v. Frank, 650 N.W2d 213, 216 (Minn. App.
2002) (quoting State v. Metz, 422 N.W.2d 754, 756 (Minn. App. 1988)).
As a threshold issue, Shaka argues that in the proceedings below, the state failed to
advance any recognized exception to the warrant requirement to justify the officers’ entry
of the home with S.S. At the suppression hearing in the district court, the prosecutor argued
that the officers, who were aware there were possible guns in the home, followed S.S.
inside in the interest of “safety.”
The district court did not a ddress the prosecutor’s “safety” argument and, instead,
seemed to consider the consen t exception to the warrant requirement in determining the
legality of the officers’ first entrance into the home. In its findings of fact, the district court
stated that the officers “followed [S.S.] into the residenc e to see her permit to carry” and
that the officers testified S.S. “did not object to police coming into the residence.” Then,
in its conclusions of law, the district court applied the legal standard for consent,
concluding that “[u]nder the totality of the circumstances surro unding the search, a
reasonable person would have felt free to decline the officer’s requests or otherwise
terminate the encounter.” We agree with the district court’s summation of the legal
standard for consent. See State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994) (stating that
consent to a search is not voluntary unless “‘a reasonable person woul d have felt free to

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decline the officer[’s] requests or otherwise terminate the encounter’”) (quoting Florida v.
Bostick, 501 U.S. 429, 438, 111 S. Ct. 2382, 2388 (1991)).
Now, the state argues that the district c ourt correctly considered and applied the
consent exception to the warrant requirement. The state asks us to affirm the district court’s
order on the ground that S.S. consented to the officers’ entry of the home.
We agree with Shaka that the state did not assert the consent exception below.
Moreover, it is not entirely clear whether the district court’s consent analysis applied to the
officers’ first entry of the home. But we also note that Shaka’s ar gument to the district
court was imprecise; his attorney did not explicitly challenge the first entry.4
Notwithstanding these flaws in the record , “[a] respondent can raise alternative
arguments on appeal in defense of the underlyi ng decision when there are sufficient facts
in the record for the appellate court to consider the altern ative theories, there is legal
support for the arguments, and the altern ative grounds would not expand the relief
previously granted.” State v. Grunig, 660 N.W.2d 134, 137 (Minn. 2003). Here, the record

4 Shaka’s counsel argued:

Yes, I would start out with the search that the police did which
the witness, [S.S.], testified that she told the police officers not
to come into the house, and they did, and they threatened her
with child protection and all ki nds of concerns that a woman
like her would have breastfeeding a newborn and then the other
children. She felt like she had to sign the consent form. And
there was no reason why the polic e couldn’t have gone to a
judge, obtained a search warrant. And the veracity of [S.S.]
and feeling coerced and feeling like she had no choice but to
sign this authorization is evidenced by her.

12
is adequately developed for us to consider the consent exception, the state advances legal
authority for its position on appeal, and our consideration of the issue does not impact the
scope of relief.5 Thus, we elect to fully consider whether the consent exception applies.
The consent exception applies when a person voluntarily consents to a search. See
Dezso, 512 N.W.2d at 880. To establish that an individual voluntarily consented to a
search, the onus is on the state to prove that the consent was given freely and was
“manifestly voluntary.” See State v. Shellito , 594 N.W.2d 182, 186 (Minn. App. 1999);
see also State v. Harris, 590 N.W.2d 90, 102 (Minn. 1999) (holding that state must show
by a preponderance of the ev idence that consent was given freely and voluntarily). In
determining whether consent was voluntary, a court must examine the to tality of the
circumstances, “including the nature of the encounter, the kind of person the defendant is,
and what was said and how it was said.” Dezso, 512 N.W.2d at 880. As noted, consent is
not voluntary unless “a reasona ble person would have felt fre e to decline the officer[’s]
requests or otherwise terminate the encounter.” Id. (quotation omitted). “An individual
does not consent . . . simply by acquiescing to a claim of lawful authority.” State v. Brooks,
838 N.W.2d 563, 569 (Minn. 20 13). Consent can be given verbally or impliedly by
nonverbal actions. State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992).
Whether consent to a search was truly voluntary is a question of fact. State v. Diede,
795 N.W.2d 836, 846 (Minn. 2011). The appella te court applies the “clearly erroneous”
standard in reviewing a district court’s finding of voluntary consent. Id. A finding of fact

5 We also note that Shaka does not argue that the state waived or forfeited the claim of
consent.

13
is clearly erroneous if, considering all of the evidence, the reviewing court is “left with the
definite and firm conviction that a mistake occurred.” Id. at 846-47.
Shaka does not challenge th e accuracy of the district court’s underlying factual
findings. Instead, he argues that the district court’s factual findings and the record do not
support the conclusion that S.S. voluntarily c onsented to the officers’ initial entry of the
home.
We disagree. The district court did not clearly err in concluding that S.S. voluntarily
consented to the officers’ entry by her actions.
Preliminarily, we note that Shaka and S.S. summoned the police to the home to
investigate a crime allegedly perpetrated agains t them. They were victims of a theft that
occurred inside of the home. Because the officers were thus invited to the home and their
purpose was to investigate a crime committe d against Shaka and S.S., the dynamic was
different than it may have been if S.S. had been a suspect or had been stopped in a motor
vehicle. See Diede, 795 N.W.2d at 847 (observing that a person detained by the police is
more susceptible to duress and coercion); see also Dezso, 512 N.W.2d at 881.
Against this backdrop, the other circumstan ces present indicate that S.S. gave the
officers implied, nonverbal cons ent to enter. The district court found that the officers
simply followed S.S. into th e home while in conversation w ith her. Indeed, the officers
testified that it seemed “natural” to follow S.S. inside as she went to fetch her permit for
the stolen guns. Further, the officers testified that S.S. did not object to their entry into the
home. And the district court explicitly rejected S.S.’s contrary testimony.

14
We conclude that the record supports th e district court’s findings—S.S. implicitly
consented to the officers’ entry into the hom e and her consent was manifestly voluntary.
Thus, these findings are not clearly erroneous.
We have also upheld a finding of consent under similar circumstances. See Carlin
v. Comm’r of Pub. Safety , 413 N.W.2d 249, 250 (Minn. A pp. 1987) (affirming district
court’s finding of consent where an individua l answered the door and then turned and
walked into the house leaving the door open, impliedly fo r officers to follow). And the
district court’s consent finding is consistent with the factual circumstances presented in
several unpublished opinions cited by the state. See State v. McGinty, No. A14-0501, 2015
WL 853430, at *2 (Minn. App. Mar. 2, 2015) (determining there was cons ent when an
individual “[made] way for an officer to enter”), review denied (Minn. Apr. 28, 2015);
Lennartson v. Comm’r of Pub. Safety, No. A07-0500, 2008 WL 933435, at *4 (Minn. App.
Apr. 8, 2008) (determining th ere was consent when an indi vidual “stepped aside without
objection as the officers entered” the home); Gustafson v. Comm’r of Pub. Safety, No. A03-
0912, 2004 WL 237364, at *2 (Minn. App. Feb. 10, 2004) (determining there was consent
when an individual “led the o fficers to the house, opened th e door and entered,” and the
officers followed). We are, of course, not bound by these decisions. See Dynamic Air, Inc.
v. Block, 502 N.W.2d 796, 800 (Minn. App. 1993) (holding that unpublished opinions are
of persuasive value “[a]t best”). But they ar e aligned with the district court’s finding that
S.S. voluntarily consented to the entry by her nonverbal actions.

15
Because S.S. consented to the officers’ en try into the home, no warrant was required
and the officers did not violate Shaka’s federal and state constitutional rights. The district
court accordingly did not err in denying his motion to suppress the evidence.
II. Shaka’s ineffective-assistance-of-cou nsel claims fail because the alleged
deficiencies of his trial attorney had no impact on the outcome of his case.

Next, Shaka argues that the postconviction court erred in denying his two claims of
ineffective assistance of counsel. A postcon viction court’s denial of relief after an
evidentiary hearing involves both factual findings, which are reviewed for clear error, and
legal conclusions, which are reviewed de novo. Pearson v. State, 891 N.W.2d 590, 596
(Minn. 2017). The reviewing court defers to the postconviction court’s credibility
determinations. Miles v. State, 840 N.W.2d 195, 201 (Minn. 2013). But the appellate court
independently determines whet her the established facts show ineffective assistance of
counsel. State v. Nicks, 831 N.W.2d 493, 503-04 (Minn. 2013).
Under the federal and state constitutions, a criminal defendant is entitled to the
assistance of counsel. U.S. Const. amend. VI; Minn. Const. art. 1, § 6. The right to counsel
means “the right to effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759,
771 n.14, 90 S. Ct. 1441, 1449 n.14 (1970) (emphasis added). The benchmark for judging
any ineffective assistance of counsel claim is “whether counsel’s conduct so undermined
the proper functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” Strickland v. Washington , 466 U.S. 668, 686, 104 S. Ct. 2052,
2064 (1984). To prevail on a claim that couns el was ineffective, a defendant must show
that (1) counsel was deficien t and (2) the deficient performance prejudiced the defense.

16
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see also State v. Cram, 718 N.W.2d 898,
906-07 (Minn. 2006) (applying Strickland). If one of the Strickland requirements is not
satisfied, a court need not consider the other. State v. Mosley, 895 N.W.2d 585, 591 (Minn.
2017).
A. Shaka was not prejudiced by the alle ged mistake of his trial attorney in
presenting Shaka’s destruction-of-evidence claim.

Shaka argued to the postconviction court that his trial attorney provided ineffective
assistance of counsel in pursu ing Shaka’s motion to dismiss based on the destruction of
Shaka’s 911 call. He alleged that during the evidentiary hearing on his motion, his trial
attorney failed to confront the police sergeant—the official who could have preserved the
evidence—with S.S.’s statement. In her statement to the sergeant, S.S. said the 911
operator had instructed Shaka and her to move the guns. The sergean t remarked that he
would check the recording of the call. Acco rding to Shaka, because S.S. explained the
significance of the 911 call to th e sergeant, and the sergeant i ndicated he would listen to
the call, the attorney missed the best evidence suppor ting Shaka’s motion to dismiss the
case.
Without considering whether the trial attorney’s performance was deficient, the
postconviction court determined th at it was “unable to conclude as a matter of law that
there is a reasonable probability that [Shaka’s] motion to dismiss would have been granted
but for counsel’s alleged error.” The postconviction court therefore held that Shaka’s claim
of ineffective assistance of counsel failed on the second prong of the Strickland test. See
Mosley, 895 N.W.2d at 591.

17
We agree with the post conviction court that Shaka does not satisfy Strickland’s
prejudice requirement. Even if trial counsel had presented S.S.’s statement, Shaka would
not have prevailed on his motion to dismiss the case.
When the state loses, destroys, or otherwis e fails to preserve material evidence, a
defendant’s constitutional right to due process is implicated. State v. Jenkins, 782 N.W.2d
211, 235 (Minn. 2010) (citations omitted). In considering a destruction-of-evidence claim,
a court considers whether the destruction wa s intentional and whether the exculpatory
value of the evidence was apparent and material. State v. McDonough, 631 N.W.2d 373,
387 (Minn. 2001) (explaining that state’s intentional release of the motor vehicle in which
the victims were killed did not violate defendant’s right to due process because defendant
failed to show that the eviden ce had exculpatory value). Wh en evidence is intentionally
destroyed, a court determines whether there was bad faith. Jenkins, 782 N.W.2d at 235.
Specifically, the court must decide whether the state destroyed the evidence to prevent the
defense from using it. Id. (citations omitted).
In denying Shaka’s motion to dismiss, the district court concluded that there was no
indication the 911 call was destroyed in bad faith because the exculpatory value of the call,
if any, was simply not eviden t to the sergeant. Likewise, S.S.’s statement—the evidence
that Shaka’s trial counsel failed to presen t—was hardly a smoking gun. S.S. told the
sergeant that she, and not Shaka, had moved the guns at the 911 operator’s instruction.
Thus, what the 911 operator did or did not say still had no ap parent exculpatory value for
Shaka. The postconviction cour t found, and we agree, that it is highly unlikely S.S.’s
statement would have changed the district court’s ruling on the motion to dismiss.

18
Moreover, as the postconviction court recognized, the 9 11 call was neither
exculpatory nor material. It may have corro borated Shaka’s explanation for touching the
guns after he called 911. But the evidence of Shaka’s gun possession was not limited to
his temporary possession when he supposedly moved the guns to the bed. There was strong
evidence that Shaka had possessed the guns well before his 911 call. He texted the alleged
gun thief and accused her of stealing “ his” guns. He also admitted that he was the only
person with keys to S.S.’s house—where th e guns were located—while she was giving
birth. And the keys to the gun safes were in Shaka’s pocket when the police responded to
his 911 call. In light of this strong evid ence of possession, an instruction from a 911
operator to put the guns on the bed would not have been helpful to Shaka’s defense. And
the fact that the evidence was unhelpful to Shaka makes it even less likely that the sergeant
intentionally destroyed the evidence in bad faith.6
Shaka has not shown that he was prejudiced by his counsel’s failure to present S.S.’s
statement in support of the pretrial motion to dismiss. Thus, his ineffective assistance of
counsel claim regarding S.S.’s stat ement fails on the second prong of Strickland, and we
need not further consider the first prong.
B. Shaka was not prejudiced by his tr ial attorney’s failure to prepare and
request a jury instruction for relying on official advice.

Shaka also alleged in his petition for postc onviction relief that his attorney was
ineffective in failing to draft and request a special jury instruction regarding Shaka’s theory

6 To the extent that Shaka is challenging the district court’s denial of his pretrial motion to
dismiss, we conclude that there was no erro r for the same reasons—the evidence was not
exculpatory or material and there was no indication of bad faith.

19
of the case. Specifically, Shak a claims he was entitled to an instruction that would have
permitted the jury to find him not guilty of unlawfully possessing the firearms if he touched
the guns in reasonable reliance on the 911 operator’s official instruction to move the guns.
The postconviction court conclu ded that the trial attorney ’s failure to prepare and
request such an instruction was neither defici ent performance nor prej udicial to Shaka.
First, the postconviction court noted that any request for th e instruction probably would
have been denied. And second, the postconviction court found that there was no reasonable
probability that Shaka would have prevailed at trial but for his attorney’s failure to request
the instruction.
Once again, we agree with the postconvic tion court. Although a defendant may
assert a defense of “reliance on official actions or pronouncements regarding his conduct,”
State v. Holmberg , 527 N.W.2d 100, 106 (Minn. App. 1995), review denied (Minn.
Mar. 21, 1995), the circumstances in Shaka’s case—where he allegedly relied on the advice
of a 911 operator—likely did not warrant such an instruction. 7 But even more damaging
to Shaka’s claim, the trial evidence simply did not support the theory that he only touched
the guns because the 911 operator told him to secure the guns before officers arrived. Plus,
the record reveals that Shaka’s story evolved between the date of his arrest and trial.
Initially, he told police that he did not recall touching an y of the guns. When he learned
there would be DNA testing, he changed his statement to ac knowledge that “it could be

7 The judge who presid ed over the postconviction proc eedings was also the judge who
presided over Shaka’s trial. In the order denying postconviction relief, the postconviction
court stated, “[I]t is unlikely that this Court would have allo wed the proposed jury
instruction.” (Emphasis added.)

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possible” that he touched the guns. Finally, at trial, Shaka testified that he only touched
the guns when ordered to do so by the 911 operator, who was also aware that Shaka was a
felon and ineligible to possess firearms. This evidence, in conjunction with the other strong
evidence of Sh aka’s possession before the 911 call, makes it high ly unlikely that Shaka
would have prevailed at trial even if his trial attorney had requested the special instruction
and the district court had read the instruction to the jury.
Because there is no reasonable probability that Shaka would have received the
special instruction and that the instruction would have impacted the jury verdicts, he cannot
establish prejudice. For this reason, his second ineffective-assistance-of-counsel claim also
fails and we therefore affirm the postconviction court’s denial of relief.
III. The district court properly entered separate convicti ons for Shaka’s two
offenses, but erred in imposing separate sentences for the two convictions.

Finally, Shaka argues that the district c ourt erred in entering two convictions and
separate sentences for each of the two guns that Shaka possessed during the same
behavioral incident. Without presenting any argument or authority, the state agrees.
Notwithstanding the state’s concession, we are obligated to independently review
these issues. See State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990) (explaining
that appellate courts must decide cases “in accordance with [the] law”). Whether a district
court erred in entering separate convictions for multiple offenses a nd whether the district
court erred in imposing separate sentences for these offenses are two distinct issues; both
present questions of law that are reviewed de novo. See State v. Cox , 820 N.W.2d 540,
552 (Minn. 2012) (stating that whether Minne sota law precludes multiple convictions for

21
separate offenses is a question of law); State v. Ferguson , 808 N.W.2d 586, 590 (Minn.
2012) (“Whether an offense is subject to multiple sentences under Minn. Stat. § 609.035 is
a question of law, which we review de novo.”).
At trial, the state presented evidence that Shaka possessed two firearms in the same
place, at the same time. The jury found that Shaka possessed both firearms, rendering two
separate guilty verdicts. Then, the district court entered a conviction for each guilty verdict
and imposed separate, concurrent sentences for the two offenses.
In support of his argument that the dist rict court erred in entering separate
convictions, Shaka cites State v. Papadakis , 643 N.W.2d 349 (Mi nn. App. 2002). But
Shaka’s reliance on Papadakis is misguided. There, the defendant was convicted of and
sentenced for multiple counts of drug possession for drugs found in di fferent parts of his
home during a police search. Id. at 357. The district court held a bench trial and found the
defendant guilty of possessing cocaine, hashish, and six different steroids, resulting in eight
separate guilty verdicts—one for each type of drug found. Id. at 352, 357. Then, the district
court entered separate convictions for each verdict and imposed separate sentences for each
conviction. Id. at 358. On appeal, the defendant ar gued that the district court erred in
entering a separate conviction for each substance. Id. at 357. We observed, however, that
“there is a distinction between sentencing on multiple convictions that arose from a single
behavioral incident and convictions of more than one offens e arising from the same act.”
Id.
Under Minnesota Statutes section 609.04, a defendant cannot be convicted of more
than one offense arising from the same act. Id. (citing Minn. Stat. § 609.04). “Upon

22
prosecution for a crime, the actor may be co nvicted of either the crime charged or an
included offense, but not both.” Minn. Stat. § 609.04 (2018); see State v. LaTourelle, 343
N.W.2d 277, 283-84 (Minn. 1984) (concluding that “only one conviction can be sustained”
because section 609.04 prohibits multiple convi ctions “for a single criminal act”).
Whereas, under Minnesota Statutes section 609. 035, a defendant cannot be sentenced for
multiple convictions stemming from a single behavioral incident. Papadakis, 643 N.W.2d
357 (citing Minn. Stat. § 609.0 35). “[I]f a person’s conduc t constitutes mo re than one
offense under the laws of this state, th e person may be punished for only one of the
offenses.” Minn. Stat. § 609.035 (2018). We concluded in Papadakis that the defendant
committed separate acts in possessing each of the unlawful substances. Papadakis, 643
N.W.2d at 358. Thus, separate convictions fo r each of the substances were permissible.
Id. But we determined that the defendant’s possession of each substance occurred during
the course of a single behavioral incident. Id. Accordingly, the district court’s imposition
of separate sentences was improper under section 609.035. Id. Papadakis therefore
provides that a defendant’s possession of multiple items during a single behavioral incident
can result in a conviction for each item but not a sentence for each conviction.
Shaka also cites our recent decision in State v. Nowels, claiming that Nowels holds
that a defendant “cannot be twice convicted of violating section 624.713 for acts committed
during a single behavioral incident.” 941 N.W.2d 430, 442 n.8 (Minn. App. 2020). But in
Nowels, the defendant possessed a single loaded gun and was found guilty and convicted
twice as a result—once for the gun and once for the ammunition. Nowels, 941 N.W.2d at

23
442 n.8. And there, we concluded that th e defendant’s possession of a single loaded gun
was a single act that precludes two separate convictions. Id. at 443.
Here, where Shaka engaged in two separate acts of possession—one for each gun—
during a single behavioral incident, we concl ude that separate convictions were proper
under Papadakis. But because separate sentences for the two acts occurring during a single
behavioral incident indeed violate section 6 09.035, we reverse and remand to the district
court to vacate one of Shaka’s two sentences.8
Affirmed in part, reversed in part, and remanded.

8 Shaka argues that the “firearms exception” to section 609.035 should not apply under the
circumstances of his case. See Minn. Stat. § 609.035, subd. 3 (“Notwithstanding section
609.04, a prosecution for or conviction of a violation of section 609.165 or 624.713,
subdivision 1, clause (2), is not a bar to conviction of or punishment for any other crime
committed by the defendant as part of the sa me conduct.”). Because the state has not
invoked the exception, we decline to address this issue.