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This opinion will be unpublished and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
A19-0651

State of Minnesota,
Respondent,

vs.

Tomak Zain Zarif,
Appellant.

Filed April 20, 2020
Affirmed
Jesson, Judge

Blue Earth County District Court
File No. 07-CR-18-4035

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

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

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Pr esiding Judge; Rodenberg, Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
When a police officer arrived at a local ga s station seeking to arrest appellant Tomak
Zain Zarif for outstanding warrants, Zarif atte mpted to flee the gas station. A struggle

2
between Zarif and the officer ensued, resulting in the officer fracturing his pinky finger. A
jury convicted Zarif of felony obstruction of legal process. Because sufficient evidence
supports the conviction and an y alleged prosecutorial misc onduct did not affect Zarif’s
substantial rights, we affirm.
FACTS
On September 27, 2018, as part of her typical work responsibilities, a gas station
employee checked for outstanding local warrants. She noticed that appellant Tomak Zain
Zarif, who was at the gas stati on, had an outstanding warrant . Zarif regularly frequented
the gas station, and the employee knew who he was. After speaking with the manager, the
employee called the police to report that Zarif was at the gas station.
When police received the call, no officers we re available to immediately respond.
As a result, the public safety commander resp onded to the call. Typically, at least two
officers respond to warrant calls . But after speaking with anot her officer just arriving at
the police station, the commander responded to the call alone, knowin g the other officer
was following him shortly after. The other officer told the commander that he was familiar
with Zarif and that Zarif usually cooperated with police.
When the commander arrived at the gas stat ion, the manager pointed out Zarif. The
commander approached him and asked for his na me and identification. Zarif questioned
the commander about the request and did not provide his name. Eventually, after the
commander asked several times, Zarif replied with a name that the commander recalled
was something “like Doug Johnson.” The commander expressed that he knew that was not

3
Zarif’s name. But he told Zari f that he did not intend to charge him for providing a false
name if he provided his actual name.
At this point, Zarif began moving towa rd the middle of the store. The commander
moved with him, remaining in between Zarif and the door. According to the commander,
Zarif struck him and began running toward the doo r in an attempt to flee. Either Zarif or
the commander knocked over a display of snacks, and the commander grabbed Zarif’s right
arm. Although the commander used a defensive technique intended to cause Zarif to end
up on the ground on his stomach, Zarif landed on his back. On the ground, according to
the commander, the two were “all out struggli ng” and Zarif was resisting arrest. The
commander yelled for the gas station employees to call 911 because he needed help. After
struggling for about one and a half minutes, a nother officer arrived and arrested Zarif.
Following the struggle, the officer noticed that his left pinky finger was bent at a strange
angle. Later, x-rays revealed that the finger was fractured.
Based on his actions, the state charged Zari f with third-degree assault, fourth-degree
assault, obstruction of legal process (a gro ss misdemeanor), and giving a false name to a
police officer. Later, the state amended the complaint to add a charge of felony obstruction
of legal process. The case proceeded to a jury trial.
At trial, the state presented testim ony from the commander, who testified as
described above. At the beginning of his testimony, the prosecutor asked the commander
if there was a difference betw een someone obstructing or resisting arrest and someone
actively engaging physically with police. Af ter the commander described the difference,
the prosecutor asked if what the commande r described would be obstruction. The

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commander indicated that it would. Additionally, the commander testified that, during the
struggle, he was concerned that Zarif may have been able to grab his gun, heightening his
need to maintain control over Zarif. The commander also reiterated that Zarif struck or
pushed past him when he attempted to flee from the store.
Two gas station employees also testified a bout the encounter. The manager testified
that after Zarif made “a run for it,” the commander tackled him near the doors. According
to the manager, Zarif was “wrest ling” with the officer and tryi ng to resist arrest. But the
manager believed that the commander made contact with Zarif first. The other employee,
describing the interaction, testified that Zarif ran into the commander, ran the commander
through the snack display, and was resisting the officer and fighting him on the ground. In
addition to this testimony, th e state admitted several ph otos and surveillance camera
footage from four different angles. The footage depicts the officer initially speaking with
Zarif and the ensuing struggle between the two.
The jury acquitted Zarif of third and fourth-degree assault. But it found Zarif guilty
of the other three charges. Zarif move d for a judgment of acquittal on the felony
obstruction-of-legal-process char ge, which the district court denied. The district court
sentenced Zarif to 21 months in prison for fe lony obstruction of legal process. Zarif
appeals.

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D E C I S I O N
I. Sufficient evidence supports Zarif’s felo ny conviction of obstruction of legal
process.

Zarif first argues that insu fficient evidence supports his felony conviction of
obstruction of legal process. Specifically, Zarif contends that the state failed to prove that
he engaged in a physical act directed toward the commander that frustrated or hindered his
official duties.
When direct evidence sup ports an element of an offense, we undertake “a
painstaking analysis of the record to determine whether the evidence, when viewed in the
light most favorable to the conviction, was sufficient to permit the jurors to reach the
verdict which they did.” State v. Horst, 880 N.W.2d 24, 40 (Minn. 2016). In doing so, we
assume that the jury believed the state’s witnesses. State v. Moore, 438 N.W.2d 101, 108
(Minn. 1989). If the jury could have reason ably found the defend ant guilty, giving due
regard to the presumption of innocence and the burden of proof beyond a reasonable doubt,
we will not overturn a jury verdict. State v. Griffin, 887 N.W.2d 257, 263 (Minn. 2016).
To obtain a felony conviction for obstruction of legal process, the state must prove
that Zarif intentionally “obstruct[ed], resist[ed], or interfere[d] with a peace officer while
the officer is engaged in the performance of official duties.” 1 Minn. Stat. § 609.50,
subd. 1(2) (2018). We have “construe[d] the statute narrowly to proscribe conduct directed
at the police officer that ‘obstr ucts, resists, or interferes’ with the police officer in the

1 The provision making this offense a felony requires substantial bodily harm. See Minn.
Stat. § 609.50, subd. 2(1) (2018). In this appeal, Zarif does not contest that the
commander’s fractured pinky finger amounts to substantial bodily harm.

6
performance of official duties under the statute.” State v. Morin , 736 N.W.2d 691,
698 (Minn. App. 2007), review denied (Minn. Sept. 18, 2007). In general, fleeing a police
officer, without more, does not amount to obstructing legal process. Id. But “obstructing,
resisting, or interfering with one’s own arrest” provides a sufficient basis for a conviction
of obstructing legal process, so long as the police officer is making the arrest as part of his
or her official duties. State v. Litzau , 893 N.W.2d 405, 409 (Minn. App. 2017), review
denied (Minn. June 20, 2017).
Here, Zarif argues that the ev idence did not show that he engaged in a physical act
directed toward the officer. But there is significant evidence in the record to the contrary.
First, the state presented surv eillance video footage depicting the interaction. That video
depicts Zarif attempting to flee the gas station, which resulted in him and the commander
engaging in a physical struggle on the ground for nearly one and a half minutes. In addition
to the surveillance video footage, the ju ry heard testimony from the commander and two
employees who witnessed the altercation. Th e commander testified that Zarif struck or
pushed past him when attempting to flee and described the encounter on the ground as “all
out struggling.” One of the employees testifie d that Zarif “ran into [the commander and]
ran [the commander] through the display,” and both employees described Zarif as resisting
arrest when he was on the ground. This evidence provided the jury with a sufficient basis
to conclude that Zarif engaged in an act directed at the officer, which frustrated his official
duties.
Zarif contends that, at best, the surve illance video shows him attempting to flee and
that, once on the ground, Zarif “briefly tried to get out from under [the commander.]” Even

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if we accepted Zarif’s argument that the video is unclear, this argument ignores the
testimony from the commander and gas station employee that Zarif engaged in some type
of physical contact with the commander when attempting to flee. It also ignores testimony
from the commander and the two em ployees that Zarif continue d to struggle and resist
arrest while on the ground. We assume that the jury be lieved the state’s witnesses,
including the commander and the gas station employees. Moore, 438 N.W.2d at 108.
Further, any assessment of witness cred ibility is the functi on of the jury. State v. Reese,
692 N.W.2d 736, 741 (Minn. 2005). Here, it is evident that the ju ry chose to credit
testimony that Zarif physically engaged with the commander and resisted arrest once on
the ground. Accordingly, we conclude that sufficient evidence supports Zarif’s conviction.
II. Any alleged prosecutorial misconduct di d not affect Zarif’s substantial rights.

Next, Zarif maintains that the prosecut or committed misconduct warranting a new
trial by questioning the commander about what constitutes obstruction, the ultimate legal
issue. Specifically, Zarif points to the following exchange:
Q. Is there a difference be tween someone who is just
obstructing or resisting a rrest and someone who is
actively either engaging phys ically or assaulting an
officer?

A. Yes.
Q. How would you describe that?
A. Well, when you go hands on and you tell them they’re
under arrest sometimes they ’ll tense up and yet they
don’t want to do, that but if there’s a couple of us there
then you’re just grabbing their arms and getting it
behind their back so that you can handcuff them.

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Q. And that would be an obstr uction or resistance in your
book?

A. That is correct.
Zarif did not object to this line of questioning at trial. We review claims of unobjected-to
prosecutorial misconduct under the modified plain-error standard of review.
State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Under that standard, Zarif must
establish plain error. See id. Upon a showing of plain error, the burden shifts to the state
to demonstrate “that there is no reasonable likelihood that the absence of the misconduct
in question would have had a significan t effect on the verdict of the jury. Id. (quotations
omitted). If each element is satisfied, this c ourt must then determine whether to address
the error to ensure the fairness and integrity of judicial proceedings. Id.
Here, we need not decide whether the prosecutor committed misconduct amounting
to plain error because we are satisfied that the state has demonstrated that any error did not
affect Zarif’s substantial rights.
2 See State v. Pearson, 775 N.W.2d 155, 164 (Minn. 2009)
(declining to decide if a closing argument was misconduct because it did not affect the
defendant’s substantial rights). “An error is prejudicial if there is a reasonable likelihood
that the error had a significant e ffect on the jury’s verdict.” State v. Parker ,
901 N.W.2d 917, 926 (Minn. 2017) (quotations omitted). We consider factors such as “the
pervasiveness of improper suggestions” a nd “the strength of evidence against the

2 The state does not argue on appeal that the prosecutor did not commit misconduct. Rather,
the state focused its argument on demonstrating why any e rror did not affect Zarif’s
substantial rights.

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defendant” when evaluating an alleged error’s effect on substantial rights. Id. (quotations
omitted).
Strong evidence supports Zarif’s conviction. The state presented surveillance video
footage from four different angles wh ich captured the enco unter. Moreover, the
commander and two gas station employees tes tified about what happe ned. Additionally,
the challenged questions and testimony were not pervasive. Zarif challenges only three
questions from the prosecutor and three answers from the comma nder. The commander
was the first witness to testify, and this questioning occurred at the beginning of his
testimony. The challenged testimony amounts to about half a page in the commander’s
just over 40 pages of testimony. Further, the prosecution did not reference the challenged
testimony during cl osing arguments. See State v. Davis , 735 N.W.2d 674,
682 (Minn. 2007) (concluding that a prosecutor’s improper suggestions were not pervasive
where they covered less than one of the 64 pages containing the witness’s testimony).
Finally, as the state notes, the jury retu rned a mixed verdict, acquitting Zarif of the
two assault charges. “Where the jury has acquitted the appellant of some counts, but
convicted the appellant of others, we view th e verdicts as an indication that the members
of the jury were not unduly inflamed by the prosecutor’s comments.” State v. Washington,
521 N.W.2d 35, 40 (Minn. 1994) (quotation omitted). The jury’s decision to find Zarif not
guilty of third and fourth-degree assault indicates that any misconduct did not significantly
impact the jury’s verdict. A ccordingly, we conclude that the state has met its burden of
proving that any alleged prosecutorial misconduct did not affect Zarif’s substantial rights.
  Affirmed.