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This opinion will be unpublished and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
A19-1003

State of Minnesota,
Respondent,

vs.

Bakil Nuh Dahir,
Appellant.

Filed May 18, 2020
Affirmed
Florey, Judge

Olmsted County District Court
File No. 55-CR-18-7282

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

Mark A. Ostrem, Olmsted County Attorney, James E. Haase, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Def ender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; Worke, Judge; and Larkin,
Judge.

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U N P U B L I S H E D O P I N I O N
FLOREY, Judge
On appeal from the judgment of conviction for kidnapping and third-degree criminal
sexual conduct, appellant Bakil Nuh Dahir argues that the district court erred by denying a
for-cause strike of a prospective juror who expressed actual bias. We affirm.
FACTS
In October 2018, a young woman walked into a gas station c arrying her shoes and
repeating a license-plate number. M.J.S., who was working at the gas station, “could tell
[the woman] was kind of drunk.” The woman asked M.J.S. for a piec e of paper to write
the license-plate number down and then told M.J.S. that she had been raped. M.J.S. called
the police. The woman identified herself as C.R. and told dispatch that she and her
boyfriend met a man at Kathy’s Pub in Rochester who was supposed to drive them home.
C.R. stated that she did not know what had happened to her boyfriend, but the last thing
she recalled before waking up with the man “on top of her” was getting into his car. The
man dropped C.R. off at the gas station. When police arrived, C.R. gave a brief statement
and the car’s license-plate number. Then C.R. was taken to the hospital.
The officers ran the license -plate number C.R. gave them and discovered that the
car was registered to Dahir. The police found the car parked near Kathy’s Pub and found
Dahir in an alley behind the bar. The officers asked Dahir “where he had just come from”
and Dahir stated that he had just taken a couple from Kathy’s to the gas station. Dahir
stated that he did not make any stops during the trip. Officers arrested Dahir, w ho was
charged the next day.

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During voir dire, the district court and the parties questioned the potential jurors
regarding their personal experiences with sexual assault. One of the jurors (Juror A)
testified that his wife “shared with me after we had b een dating a couple years” that she
had been sexually assaulted during college, before Juror A knew her. Juror A stated:
[S]he shared that she drank too much and had been basically
passed out, and someone had sex with her without her consent.
She remembered who it was, but there was really no action
afterward. Of course I was angry when I heard about that and
that some people would hurt her in that way. And she seemed
to keep some veneer of not being upset about it for many years,
but after the birth of our first child, I’m not sure if chemical
changes set her off, but it really sort of erupted in her and
brought her back a lot of stress and trauma remembering it.

Juror A’s wife did not report the sexual assault to the police or to the college that sh e was
attending. Juror A also described two other incidents in which his wife had been sexually
harassed – one instance that took place when she was “grade-school age” and one that took
place during college. The district court questioned Juror A as follows:
Court: And so is there anything about that experience
and kind of seeing what it has done to her throughout her life,
and while you didn’ t experience it, obviously experiencing it
through your wife, that you think that it would be hard for you
to be fair and impartial as a juror in this case?

Juror A: It’s - - you know, I don’ t know the specifics of
the case, but it touched on - - if the case touches on anything
that’s potentially something similar to that, that could affect
my ability to think through it impartially.

Court: Do you understan d that obviously your wife
wasn’t the one that is alleged to have been raped in this case?
Do you understand that?

Juror A: Yes.

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Court: And that Mr. Dahir has pled not guilty to the
allegations here. So as a juror you would have to listen to all
of the evidence and be able to be objective about that. So we’re
not asking you to kind of put aside everything that you’ ve
known about your wife and her experiences. But the real
question is do you think you co uld put that aside and
understand that it’s a separate case and not convict somebody
just because of what happened to your wife?

Juror A: Yes, I can do that.

Court: And so you can evaluate the witnesses on the
stand and - - or I should say, do you feel that you could evaluate
all of the witnesses that would testify in this trial and judge
their credibility and what you believed the facts show, based
on what you hear in this courtroom and not what your personal
experiences of your wife have been?

Juror A: I’m hesitating because sometimes it’ s difficult
when you hear somebody’s statement and you’ re judging
whether you think they’ re telling the truth or not. That’ s
somewhat of a subjective measure. And I can’t always say why
I chose that. And I’m concerned that again, depending on what
this case touches on, that it may be an issue and I may judge
information improperly because of it.

Court: Okay. Well, the only way that would be improper
is if you let your own prejudices, okay, this happened to my
wife, I feel sorry for her, so therefore I feel sorry for whoever
testifies on the stand. So that would really be the only improper
thing. You’re not going to have to explain how you came to
your decision. But do you think you could kind of set aside
what happened to your wife in evaluating credibility of the
witnesses?

Juror A: Yeah, I think so.

Next, defense counsel and Juror A had the following exchange:

Counsel: So we expect that the evidence in this case or the
accusation in this case is likely to involve details of alcohol
impairment and a person allegedly being taken advantage of

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while they’re in that state. What’ s your reaction to hearing
that?

Juror A: That sounds really similar to my background and
frankly, even kind of starting with the details this morning
brought up more emotions that I hadn’t thought that I had. So
while I can do my best to not be emotional and judge fairly,
there is some definite similarity there that makes me feel
concerned.

Counsel: Okay. And then part of my role is to urge a jury,
you know, don’ t believe this person, t alking about the
individual who’s alleged to have been assaulted. Some people
have kind of an emotional reaction to that sort of argument.
Does then notion of me arguing, “Hey, don’ t believe this
person who claims to have been in a really serious” - -

Juror A: I sort of expected that to be a normal part of the
process.

Counsel: Okay. You know, when you say you have some
concerns about how you’d react to the evidence if and when
it’s similar, is there anything that we, the judge or the attorneys,
can be doing right now to sort of help know a little bit better
what’s likely to happen, because of course you’re in the same
situation that we’re in. We’ re thinking, well, we don’t know
what it’s going to be like when the evidence comes in.

Juror A: Yeah, yeah.

Counsel: Is there anything we can do?

Juror A: I can’t draw any specific lin es for you and say,
well, if it’s going to be about this, I’m going to be concerned,
other than sort of the vague descriptions I’ve already given.

Then, the prosecutor had the following exchange with Juror A:

Prosecutor: [Juror A], you know, when we talk to jurors and
we ask them to sit and evaluate the credibility of witnesses and
assess the evidence, we’re not asking them to put aside their
life experiences and conversations that they’ve had with others.
We’re just asking that both sides get a fair trial, and that the

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jurors who sit on this case can objectively evaluate the
testimony of the witnesses and the evidence sitting in that box.
And again, not asking you to forget about other things that have
happened, but just asking you to make your decision based on
the evidence presented. And I know this has been asked of you
by the judge and by [defense counsel] a number of different
ways, but you [sic] do you think that’ s something that you
would be able to do in this case?

Juror A: The best I could say is probably, most likely that
I could do that.

Prosecutor: Okay. Would you try to do that?

Juror A: Absolutely. Yes, absolutely.

The defense attorney moved to have Juror A excused for-cause “due to the best that
he was able to say was probably that he could be fair and impartial.” Defense counsel
noted that he believed the “victim is going to testify that sh e woke up with him on top of
her, which sounds pretty similar to what his wife went through” and that “the concern . . .
would be . . . the fear that even though he intellectually knows that they’re two separate
cases, the emotional thought of, gosh, what if someone had not believed my wife.”
The state opposed defense counsel’s motion, noting that Juror A “said he would try
to be fair and impartial, he probably would be able to.” The district court denied the
motion, stating:
I think [Juror A] was honest with us. I think all jurors, we don’t
know how people’s emotions will affect them or what they will
say, but I got the sense that he would put aside and not unfairly
judge Mr. Dahir because of what his wife has gone through.
And he said that in his questioning to me.

Later, during voir dire of the entire panel, Juror A stated that he had been a jury
member on a civil case that deliberated to a verdict. The district court inquired if there

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was “anything about that experience that would make it hard for you to be a fair and
impartial juror in this case” to which Juror A responded “No.” The prosecutor asked
Juror A additional questions about his previous jury service:
Prosecutor: [Juror A], you said you were a juror in a civil trial
about ten years ago and you reached a verdict in that case?

Juror A: Yes.

Prosecutor: And the judge probably asked you this and I just
missed it. Did you enjoy that experience of sitting on that jury?

Juror A: I did not enjoy that experience. I found it very
tedious.

Prosecutor: You thought it very tedious?

Juror A: Yes. It was important and I’m happy to do it, but
I did not find it pleasant in any way.

Prosecutor: Do you think it would be any more interesting to
sit as a juror on a criminal case versus a civil case? You can be
honest with me.

Juror A: No. But I will do it to the best of my ability.

Prosecutor: I appreciate it.

Juror A.: I don’t have enthusiasm like this is going to be
great, I’m going to watch it on TV here. No.

The prosecutor also asked Juror A about evaluating witness credibility:
Ms. Gustafson: Okay [Juror A], how do you feel about
being asked to judge the credibility of people who will take that
witness stand in the next few days?

Juror A: It turns out I think I’m really bad at judging
people’s credibility. I have a hard time telling when people are
lying. I like to – it has made me very skeptical. So I like to see

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some evidence that what they’re saying is true, to the great
irritation of my wife.

Ms. Gustafson: Okay. And if you don’t want to share, I
totally get it, but is there something specific that has made you
think that you’re bad at assessing people’s credibility?

Juror A: I don’t have any – there’s no traumatic event or
specific thing that stands out.

Ms. Gustafson: You’ve just come to that conclusion?

Juror A: I’ve taken a new job in the last couple of years
and I deal with a lot of salespeople.

C.R. and her boyfriend E.H. testified at trial. Dahir also testified, and contradicted
the testimony of C.R. and E.H. Dahir did not deny having sex with C.R., but claimed that
it was consensual. The jury found him guilty of third -degree criminal sexual conduct,
kidnapping, and false imprisonment, but acquitted him of second- and fifth-degree assault.
Dahir appeals.
D E C I S I O N
The Constitutions of both the United States and Minnesota protect the right of a
criminal defendant to have an impartial jury. State v. Greer, 635 N.W.2d 82, 87 (Minn.
2001). We review the district court’s decision to impanel a juror for an abuse of discretion.
State v. Curtis, 905 N.W.2d 609, 615 (Minn. 2018). The district court is in the best position
to determine whether prospective jurors can be impartial because it hears t heir testimony
and observes their demeanor. State v. Drieman , 457 N.W.2d 703, 708 -09 (Minn. 1990).
The district court’s resolution of whether a prospective juror’s protestation of impartiality
is credible is a determination of credibility and demeanor an d, therefore, is e ntitled to

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“special deference.” State v. Logan, 535 N.W.2d 320, 323 (Minn. 1995). “[T]his court will
not lightly substitute its own judgment” if the district court is satisfied jurors can set aside
any preconceived notions. Drieman, 457 N.W.2d at 709.
Impaneling a biased juror is structural error requiring automatic reversal. State v.
Fraga, 864 N.W.2d 615, 623 (Minn. 2015). To prove actual bias, the burden is on the
challenging party to “show that the juror exhibited strong and deep impressions” that would
prevent the juror “from laying aside [their] impression or opinion and rendering a verdict
based on the evidence presented in court.” Id. (internal quotation omitted). On appeal, to
determine whether the district court’s decision to impanel a juror is error, we apply a two-
step test. Id. First, we determine if the juror expressed actual bias. Id. To make this
determination, we must view the juror’s voir dire answers in context.” Id. Second, if the
juror expressed actual bias, “we must then determine whether the juror was properly
rehabilitated.” Id. A juror is properly rehabilitated “if he or she states unequivocally that
he or she will follow the district court’s instructions and will set aside any preconceived
notions and fairly evaluate the evidence.” Id. (internal quotation omitted).
Dahir asserts that Juror A expressed actual bias because he “expressed numerous
times that he was ‘concerned’ about his ability” to be impartial due to the similarity
between the sexual assault that his wife experienced and the sexual assault at issue in this
case.
In State v. Fraga , a prospective juror disclosed that “he knew about the case, had
read about it in the newspaper, and had discussed it with family or friends, including the
case details.” Id. at 623-24. The juror’s mother-in-law was a nurse in the emergency room

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at the hospital where the victim had been taken, and had gone to work the morning that the
victim had been pronounced dead. Id. at 623. That juror also knew “two of the witnesses
on the witness list and [stated] that he would find them more believable based on that
familiarity.” Id. at 624. In reversing, the supreme court found that the trial court abused its
discretion in finding that the juror had not expressed act ual bias and found that the juror
had not been adequately rehabilitated. Id. at 625-26.
Here, unlike in Fraga, Juror A expressed no actual knowledge of this case nor did
he express any favorable opinion as to the believability of any witnesses who would testify
based on his familiarity with those witnesses. Juror A’s hesitation stemmed from his wife’s
experience with a sexual assault of a similar nature to the charged crime. While Juror A
made equivocal statements and raised concerns about his ability to be impartial, he did not
state that it would be hard for him to do so. When viewing the voir dire transcripts as a
whole, it is clear that Juror A also made statements that seemed to express a distaste for
jury service in general, and also made statements t o suggest that he is “bad at judging
people’s credibility” and has “had a hard time telling when people are lying.” As the state
points out, the district court may well have inferred that Juror A’s statements were
motivated by a desire to get out of jury service, rather than a reflection of his ability to
properly weigh the evidence. Based on the record as a whole, we conclude that Juror A’s
statements did not express the sort of strong or deeply ingrained impressions that amount
to actual bias, rendering him unfit to serve on the jury. But even if the voir dire transcript
revealed Juror A’s actual bias, we conclude that Juror A was properly rehabilitated.

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Dahir asserts that Juror A was not properly rehabilitated because he “never
unequivocally stated th at he could be impartial and judge the case on the evidence
presented.” However, the record reflects that Juror A did state, “Yes, I can do that.” when
asked by the district court if he “could put that aside and understand that it’s a separate case
and not convict somebody just because of what happened to your wife?” Based on the
record, we conclude that the district court did not abuse its discretion by impaneling Juror
A.
Affirmed.