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This opinion will be unpublished and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
A19-0420

State of Minnesota,
Respondent,

vs.

Hassan Abdullah Ali,
Appellant.

Filed February 10, 2020
Affirmed in part, reversed in part, and remanded
Bryan, Judge

Hennepin County District Court
File No. 27-CR-17-19298

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

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Abigail H. Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Hooten, Judge; and
Bryan, Judge.

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U N P U B L I S H E D O P I N I O N
BRYAN, Judge
On appeal from his convictions of check forgery and possessing stolen checks,
appellant argues that (1) the district court abused its discretion by admitting photographs
from the bank’s ATM, and (2) he should have received one sentence , instead of four,
because all four counts were part of the same behavioral incident. We affirm in part,
reverse in part, and remand to vacate the probationary consequences 1 corresponding to
count four.
FACTS
E.S., the owner of a restaurant in Minneapolis, discovered that the checkbook for
his business checking account was missing. Surveillance footage at the restaurant revealed
that a man, whom E.S. believed to be the brother of appellant Hassan Abdullah Ali, took
the checkbook from the cash register of the restaurant. E.S. subsequently learned that eight
checks had been written to appellant and deposited in appellant’s Bank of America
checking account between May 9, 2017 and May 17, 2017. A total of $25,000 was
deposited into appellant’s account at two separate Bank of Ame rica ATMs, located in St.
Louis Park and Bloomington.

1 In their briefs, the parties refer to the decision of the district court to stay imposition of
sentence as a “sentence.” In this opinion, we distinguish between the portion of the
disposition below regarding guilt (the conviction) and the portion of the disposition below
regarding punishment (stay of imposition of sentence on conditions of probation and 120
days of jail ). We refer to the portion of the disposition regarding punishment as the
“probationary consequences.”

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The bank’s ATM cameras captured video recordings of the person using the ATM
and captured images of the checks deposited. Law enforcement obtained still images from
the ATM video recording s during the time period of the above transactions. The ATM
images showed that appellant’s brother, alone, deposited checks on May 9, 10, and 17.
They also show that a ppellant and his brother were together when they deposited checks
on May 11 and May 12, and appellant, alone, deposited a check on May 15.
The state charged appellant with three counts of aiding and abetting check forgery
for depositing checks on May 11, 12, and 15, 2017. The state also charged appellant with
one count of possession of a stolen check between the dates of May 9 and May 17, 2017 .
The district court admitted the ATM images as exhibits at trial. The district court also
admitted the testimony of Chad Anderson, who explained that, in his experience working
for the bank, he accesses the bank’s records on a daily basis . He also explained how the
images were made, testifying that the ATM cameras automatically and continuously record
what is occurring in front of them, that the recordings are dated and timestamped, that the
recordings are sent to a bank server , and that b ank personnel can access the video within
120 days. Anderson further testified that, based on his familiarity with the process, the
ATM photographs are reliable and accurate. He stated that the bank has a department to
maintain the accuracy of the ATM recording devices and that that there were no complaints
about the operation of the ATM machine during the timeframe in which appellant’s
transactions occurred. He explained that , in this case, the bank received a warrant and
request from law enforcement to provide ATM information related to appellant’s account
for a period in May 2017. Anderson explained that the bank -records custodian compiled

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the images and sent them to law enf orcement pursuant to the warrant. In addition, th e
district court received an exhibit and testimony further establishing chain of custody. A
police officer also testified and explained that he requested and subsequently received the
images from the bank.
After deliberation, the jury convicted appellant of all four counts. The district court
stayed the imposition of sentences, placed appellant on probation for five years on all four
counts, and ordered appellant to serve 120 days in jail. This appeal follows.
D E C I S I O N
I. The district court did not abuse its discretion by admitting the ATM
photographs.

Appellant first argues th at the district court admitted ATM photographs without
authentication. In response, t he state argues that its witness properly authenticated the
ATM photographs. Appellant argues that this court should reject respondent’s position
regarding authentication because the district court did not make explicit findings applying
the “silent-witness theory” of authentication.
Appellant next argues that the district court erred when it admitted the photographs
under the business-records exception to the hearsay rule. In response, the state argues that
the court correctly admitted the photographs. The state does not dispute the business -
records exception analysis, but instead argues that the district court correctly admitted the
photographs for a different reason: the photographs do n ot fall within the definition of a
hearsay “statement” in the first place because they do not constitute or contain any
statements. Appellant argues that this court should reject respondent’s position because

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the district court referred to the business-records exception to the hearsay rule and did not
make explicit findings regarding the definition of hearsay statement.
As a threshold matter, we observe that it is this court’s responsibility to decide cases
in accordance with the law, State v. Vasko, 889 N.W.2d 551, 55 6 (Minn. 2017), and that
we “will not reverse a correct decision simply because i t is based on incorrect reasons, ”
Kahn v. State, 289 N.W.2d 737, 745 (Minn. 1980). In other words, we need not address
the reasoning provided by the district court. Instead, we consider whether or not the district
court correctly admitted the images in question and whether or not the record supports that
decision. We need not consider whether or not the district court referred to the silent-
witness theory of authentication or explicitly analyzed whether or not the images contain
hearsay statements . We first address the authentication argument and then turn our
attention to the hearsay objection.
a. Authentication
Authentication is merely a more specialized application of the principles of
relevancy and foundation. See Minn. R. Evid. 901, 1977 comm. cmt. Authentication of a
photographic image is satisfied by evidence sufficient to support a finding that the image
in question is what its proponent claims. Id. Under rule 901(b)(9) of the Minnesota Rules
of Evidence , “[e]vidence describing a process or system used to produce a result and
showing that the process or system produces an accurate result” suffices to provide
authentication. Rulings on foundation are committed to the sound discretion of the district
court and will only be reversed upon a clear abuse of discretion. In re Welfare of S.A.M.,
570 NW.2d 162, 164 (Minn. App. 1997). District courts possess “considerable discretion

6
under Minn. R. Evid. 901(a) in deciding whether evidence has been adequately
authenticated or identified.” State v. Dulak, 348 N.W.2d 342, 344 (Minn. 1984).
The evidence at issue here consists of images from ATMs equipped with cameras.
Video recordings and still images from video recordings may be authenticated in two ways,
using the pictorial-witness theory or the silent-witness theory. S.A.M., 570 N.W.2d at 164-
65. Under the first authentication method, a witness describes what she saw; the video is
a pictorial representation of the witness ’s personal observations. Id. at 164. Under the
second method, the video depicts events that no person directly observed, but witness
testimony describes the process or system of recording and verifies that this process
produces an accurate video. Id. at 165. In S.A.M., this court held that a video was properly
authenticated when its proponent offered testimony that showed (1) how the video was
made, (2) that it produces an accurate result, and (3) some evidence on the chain of custody.
Id. at 166.
In this case, Chad A nderson testified on behalf of the bank regarding the ATM
photographs. While the district court admitted the photographs under the business-records
exception, it also made explicit findings satisfying the silent -witness theory of
authentication. The dist rict court found that there was “no real question about the
authenticity of the [photographs],” that Anderson testified reliably about how the videos
were made, and that the process produced an accurate result. It also found evidence of the
chain of custody in the form of an affidavit signed by another records custodian from the
bank.

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The record supports th e district court’s findings that relate to the requirements of
the silent-witness theory of authentication. First, Anderson explained how the images were
made based on his knowledge and experience a s a records custodian who accesses the
bank’s records on a daily basis. Anderson testified that the ATM cameras automatically
record what is occurring in front of them, that the recordings are dated and timestamped,
that the recordings are sent to a bank server , and that bank personnel can access the video
within 120 days.
Second, Anderson further testified that, based on his familiarity with the process,
the ATM photographs are reliable and accurate. He stated that the bank has a department
to maintain the accuracy of the ATM recording devices and that there were no complaints
about the operation of the ATM machine during the timeframe in which appellant’s
transactions occurred.
Third, Anderson’s testimony provided evidence regarding the chain of custody.
Anderson testified that the ATM records video surveillance continuously and the footage
is then stored on a bank server. He explained that, in this case, the bank received a warrant
and request from law e nforcement to provide ATM information related to appellant’s
account for a period in May 2017. Anderson explained that the bank records custodian
compiled the images and sent them to law enforcement pursuant to the search warrant. In
addition, the district court received a n exhibit and testimony further establishing chain of
custody. In an affidavit from a records custodian at the bank, the custodian stated that she
produced original copies of the ATM photographs that were requested by law enforcement.

8
A police officer also testified and explained that he requested and subsequently received
the ATM photographs from the bank.
This evidence satisfies each of the necessary components of the silent -witness
theory of authentication.
b. Hearsay
Although appellant concedes that “the district court misconstrued the photographs
as hearsay,” appellant argues that because the district court admitted the ATM photographs
while referring to the business -records exception , this court must analyze admissibility
under this rule. As noted above, we consider whether or not the district court correctly
admitted the images in question and whether or not the record supports that decision. Here,
we agree with the argument of respondent: t he district court correctly admitted the ATM
photographs because they do not contain any verbal or nonverbal hearsay statements.2 We
need not address the business-records exception.3

2 We note that the ATM machines au tomatically recorded, generated, and stored the
images, without intervention of human persons. We have previously adopted the reasoning
of the Eleventh Circuit, which held that under the Sixth Amendment and pursuant to the
definition of “statement” in rule 801(a) of the Federal Rules of Evidence , evidence that is
wholly and automatically generated by a computer or a machine is not a “statement.” State
v. Ziegler, 855 N.W.2d 551, 556 (Minn. App. 2014) (“The circuit court also reasoned that
under the definition of ‘statement’ in the federal hearsay rule, ‘the statements in question
are the statements of machines, not statements of persons. ’”) ( quoting United States v.
Lemmons, 532 F.3d 1251, 126 3 (11th Cir. 2008), cert denied , 555 F.3d 1009 (2008)).
Because the parties focused their arguments on whether the evidence contained verbal or
nonverbal statements, we do not end our analysis with an application of the rule in Ziegler,
but also address the remainder of the parties’ arguments.
3 Appellant argues that the ATM photographs do not meet the business -records exception
because they were not maintained in the regular course of business but were prepared
specifically for litigation. See Minn. R. Evid. 803(6).

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We review district court de cisions regarding hearsay rulings for an abuse of
discretion. Holt v. State, 772 N.W.2d 470, 483 (Minn. 2009). Hearsay is an out-of-court
statement offered for the truth of the matter asserted. Minn. R. Evid. 801(c). The issue
here is whether or not the images contain or constitute “statements.” The Rules of Evidence
define a “statement” as “ (1) an oral or written assertion or (2) nonverbal conduct of a
person, if it is intended by the person as an assertion. ” Minn. R. Evid. 801 (a). To be
admitted, a person must make a clear nonverbal assertion, as opposed to something vague
or ambiguous. For example, nodding or pointing without speaking in answer to a question
constitutes a “statement” under rule 801(a). 2 Kenneth S. Broun et al., McCormick On
Evidence § 250, at 205 n.1 (Robert P. Mosteller ed., 8 th ed. 2020) (citing the followi ng
three cases: United States v. Katsougrakis, 715 F.2d 769 , 774-75 (2d Cir. 1983) (heavily
bandaged victim nodd ing in the affirmative when asked whether he was paid to commit
arson deemed hearsay ); United States v. Caro , 569 F.2d 411 , 416 n.9 (5th Cir. 1978)
(defendant pointing at the house of his source in response to question constituted hearsay);
People v. Covarrubias, 378 P.3d 615, 653-54 (Cal. 2016) (witness pointing to two trailers
in response to investigator’s question constituted hearsay)).
The Minnesota Supreme Court has also analyzed nonverbal assertions as adoptive
admissions under Minnesota Rule of Evidence 801(d)(2)(B), indicating that the nonverbal
assertions satisfied the definition of a “statement” in rule 801(a). See State v. Roan, 532
N.W.2d 563, 573 (Minn. 1995) (affirming trial court’s admission of witness testimony that
the witness observed defendant making a gesture “like a gun to the head” after being asked
to confirm that he had shot someone ); State v. Shoop, 441 N.W.2d 475, 482 (Minn.1989)

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(affirming trial court’s admission of witness testimony that the witness observed defendant
nodding his head when an accomplice said “I didn’t do it, [the defendant] did.”).
In this case, the images contain no clear, nonverbal gesturin g or pointing that can
satisfy the definition of “statement” in rule 801(a). The district court properly admitted the
images because they do not contain or constitute hearsay statements.
II. We affirm the district court’s order of separate probationary consequences
for counts one, two, and three but reverse and remand for the district court
to vacate the probationary consequence as to count four.

Appellant argues that the district court erroneously sentenced him separately on all
four counts. He contends that all four counts stemmed from a single behavioral incident
because they occurred within eight days in Hennepin County, stemmed from a single theft,
and were committed to fulfill the same criminal objective: to obtain money.
In Minnesota, “if a person’s conduct constitutes 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 (201 8). This statute “protects criminal defendants from both multiple
prosecutions and multiple sentences for offenses resulting from the same behavioral
incident.” State v. Schmidt, 612 N.W.2d 871, 876 (Minn. 2000). When, as here, the facts
are not in dispute, we review the question of w hether the offenses were part of a single
behavioral incident de novo. State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016).
In determining whether a course of conduct consists of a single behavioral incident,
we consider two factors: (1) whether the conduct has a unity in time and place ; and
(2) whether the commission of the offenses was motivated by a single criminal objective.
Schmidt, 612 N.W.2d at 876. The test is not rigid, but in each case, the district court must

11
examine the facts and exercise reaso nable discretion. State v. O’Brien, 429 N.W.2d 293,
297 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988).
a. Counts one, two, and three—check forgery (May 12), check forgery (May
15), check forgery (May 11)

The offenses charged in counts one through three did not share a unity of time and
place, were not motivated by a single criminal objective, and so were not committed as part
of a single behavioral incident under Minn esota Statutes, section 609.035 (2018).
Accordingly, the district court did not e rr in imposing separate punishments for these
convictions.
To determine whether separate counts share a unity of time and place, courts look
to the number and identity of victims, the locations of the offenses, and the times that
offenses occurred. See, e.g., State v. O’Hagan, 474 N.W.2d 613, 622 (Minn. App. 1991)
(concluding no unity of time and place where theft through multiple diversions of funds
occurred seven weeks apart and two-and-a-half months apart), review denied (Minn. Sept.
25, 1991); O’Brien, 429 N.W.2d at 296-97 (concluding no unity of time and place where
the state charged defendant with four counts of theft by swindle for cashing checks stolen
from different victims on four separate occasions in a period of just over a month); State v.
Chidester, 380 N.W.2d 595, 597 (Minn. App. 1986) (concluding no unity of time and place
where theft and forgery spanned eight -month period) , review denied (Minn. Mar . 21,
1986); State v. Eaton, 292 N.W.2d 260, 267 (Minn. 1980) (concluding no unity of time and
place where the state charged defendant with theft of two different checks at two different

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times three days apart ). Here, the offenses took place on three separate dates, at two
different locations, involved separate checks, and occurred over a period of five days.
To determine whether the commission of the offenses was motivated by a single
criminal objective, courts compare the degree of specificity required by section 609.035
with the objective identified in that case. “[T]he mere fact that [a defendant] committed
multiple crimes over time for the same criminal objective does not mean he committed
those crimes to attain a single criminal objective.” Bakken, 883 N.W.2d at 271 (emphasis
in original). Obtaining the maximum benefit from an ongoing fraud or theft by swindle is
too broad to constitute a single criminal objective. See, e.g., O’Hagan, 474 N.W.2d at 622
(using client funds for own benefit deemed too broad to constitute a single criminal
objective); O’Brien, 429 N.W .2d at 297 (using same statements to obtain funds did not
transform separate acts into a single behavioral incident ); Chidester, 380 N.W.2d at 598
(obtaining money to cover expenses deemed too broad to constitute a single criminal
objective); Eaton, 292 N.W.2d at 267 (trying to swindle as much as possible deemed too
broad to constitute a single criminal objective ). In this case, appellant describes the
conduct as motivated by “ the same goal ,” “to get money from those stolen checks.” As
noted above, the general intent to steal as much money as possible is too broad of a purpose
to constitute a single criminal objective under section 609.035.
We, therefore, affirm the district court’s probationary consequences for counts one
through three.

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b. Count four—possessing stolen checks (May 9 through May 17)

As to count four, the district court instructed the jury that it could find appellant
guilty of possessing stolen checks for any conduct occurring from May 9 through May 17,
2017. It is unclear , however, what specific conduct and timeframe the jury relied on in
finding appellant guilty of count four. For this reason, appellant argues that the state cannot
meet its burden of demonstrating that this offense was committed as part of a separate
behavioral incident from counts one through three , and so he may not be punished
separately for this conviction.
The state agrees that appellant’s probationary consequence for count four should be
vacated because the basis for the conviction is unclear , and the jury could have convicted
appellant based on conduct underlying counts one through three . Although the parties
agree, it is an appellate court’s responsibility to decide cases based on the law and not an
agreement between parties. State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990).
A defendant should only be punished “for the most serious of the offenses arising out of a
single behavioral incident.” State v. Kebaso , 713 N.W.2d 317, 322 (Minn. 2006 )
(quotation omitted).
Here, because the district court instructed the jury that it could find appellant guilty
of count four based on his conduct ranging from May 9, 2017, to May 17, 2017, appellant’s
conduct underlying counts one through three could have supported the guilty verdict for
count four. If the jury convicted appellant of count four based on the conduct underlying
his convictions for any one of counts one through three, the convictions would share a unity
of time and place and share a single criminal objective. See Schmidt, 612 N.W.2d at 876.

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Because it is impossible to discern from the record whether count four was committed as
part of a separate behavioral incident from counts one through three , we reverse and
remand for the dist rict court to vacate appellant’s probationary consequence as to count
four.
Affirmed in part, reversed in part, and remanded.