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This opinion will be unpublished and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
A19-1091

State of Minnesota,
Respondent,

vs.

Liban Khalif Abdirahman,
Appellant.

Filed June 22, 2020
Affirmed
Worke, Judge

Ramsey County District Court
File No. 62-CR-18-1082

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

John J. Choi, Ramsey County Attorney, Pete r R. Marker, Assistan t County Attorney,
St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Melissa A. Haley, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Pres iding Judge; Hooten, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges his conviction for identi ty theft, arguing that the district court
erred by admitting evidence of a bad act oc curring after the charged offense, or

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alternatively, that the eviden ce was insufficient to support hi s conviction. In his pro se
supplemental brief, appellant argues that his jury was racially biased. We affirm.
FACTS
On February 11, 2018, after observing a traffic violation, an officer stopped a
vehicle driven by appellant Li ban Khalif Abdirahman. The officer smelled marijuana.
Officers eventually searched the vehicle. In the glove box, officers found an encoder and
two wallets containing fake credit cards in th e names of various individuals, along with
fake driver’s licenses bearing a name from a fake credit card with a photograph resembling
Abdirahman. In the back seat , officers found a backpack containing fake credit cards
bearing the names of various individuals, including Abdirahman’s, Abdirahman’s passport
and California driver’s license, and a fake Maryland driver’s license bearing the name from
a fake credit card with a photograph resembling Abdirahman.
The state charged Abdirahman with felony identity theft in violation of Minn. Stat.
§ 609.527, subd. 2 (2016), based on the allegation that there were eight or more direct
victims and sought an increased sentence pur suant to Minn. Stat. § 609.527, subd. 3(5)
(2016).
On March 20, 2018, officers located Abdi rahman at the Minneapolis-St. Paul
International Airport. After removing him from a flight he had boarded, an airline manager
approached the officers and gave them a credit card en coder that passengers in
Abdirahman’s row said they observed him sh ove under his seat. Officers arrested
Abdirahman for identity-theft offenses and for possession of the credit card encoder.

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Prior to trial, the state gave notice of its intent to offer ev idence of the airport
incident to prove knowledge, identity, and to rebut any argument or testimony that
Abdirahman was not aware that the cloned transaction cards and the encoder were in his
possession on February 11, 2018. Abdirahman moved to exclude all evidence. After
conducting a hearing outside the presence of the jury midway through Abdirahman’s trial,
the district court admitted evidence of the airport incident over his objection.1
The jury found Abdirahman gu ilty of identity theft involv ing eight or more direct
victims, and the district court sentenced him to 41 months in prison. This appeal followed.
D E C I S I O N
Admission of evidence
Abdirahman argues that the district court abused its di scretion by admitting
evidence that he possessed an encoder on Ma rch 20, 2018, at the Minneapolis-St. Paul
International Airport. Specifically, he cl aims that: (1) the state did not prove his
involvement by clear and conv incing evidence; (2) possession of the encoder was not
relevant to a specific disputed fact; and (3 ) the potential for unfair prejudice outweighed
the evidence’s probative value.
As a general rule, evidence of other crimes or bad acts, known as Spreigl evidence,
is not admissible to prove a person’s character or that they acted in conformity with that
character in committing an offense. Minn. R. Evid. 404(b)(1); State v. Spreigl, 139 N.W.2d

1 The officer’s testimony about the airport in cident was that the airline manager handed
officers an encoder and that none of the passengers claimed it as their own. The testimony
did not include information that the passengers in Abdirahman’s row observed him shove
the encoder under his seat.

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167, 169 (Minn. 1965). However, Spreigl evidence may be admitted for limited, specific
purposes, to demonstrate factor s such as “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absenc e of mistake or accident.” Minn. R. Evid. 404(b)(1). In
order to admit Spreigl evidence, the following conditions must be satisfied:
(1) the state must give notice of its intent to admit the evidence;
(2) the state must clearly indi cate what the evidence will be
offered to prove; (3) there must be clear and convincing
evidence that the defendant participated in the prior act; (4) the
evidence must be relevant and material to the state’s case; and
(5) the probative value of the evidence must not be outweighed
by its potential prejudice to the defendant.

State v. Ness , 707 N.W.2d 676, 686 (Minn. 2006). When challenging the admission of
Spreigl evidence, a defendant must prove that the erroneous admission of the evidence
resulted in prejudice. Id. at 685. In determining whether the erroneous admission of
Spreigl evidence prejudiced a defenda nt, an appellate court exam ines whether there is a
reasonable probability that the evidence “significantly affected the verdict.” Id. at 691.
To be excluded under rule 404(b), an act need not constitute a crime; rather, it must
merely be a “bad” act. State v. McLeod , 705 N.W.2d 776, 787-88 (Minn. 2005). Our
supreme court has established th at evidence of an act is not Spreigl evidence if “there is
nothing per se wrong” with the act. Ture v. State , 681 N.W.2d 9, 17 (Minn. 2004)
(concluding that evidence of defendant’s collection of personal information about women
was not bad-act evidence because there was nothing per se wrong with the act).

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Abdirahman’s possession of the encoder did not constitute Spreigl evidence. Under
Minnesota law, the use or possession of a scanning or re-encoder2 device is unlawful only
when coupled with the intent t o c o m m i t , a i d , o r a b e t u nlawful activity. Minn. Stat.
§ 609.527, subd. 5b(a)-(b) (2016). There is nothing per se wrong with possessing such a
device without the intent to co mmit unlawful activity. And in this case, the state did not
offer facts relating to an unlawful intention.
However, even if we assume that the district court’s admission of this evidence was
erroneous, it was harmless because there was not “a reasonable possibility that the
wrongfully admitted evidence significantly affected the verdict.” Ness, 707 N.W.2d at 691.
When determining whether the evidence signifi cantly affected the verdict, we consider
whether: the state presented ad ditional evidence on the issue; the district court issued a
limiting instruction; the state dwelled on the evidence in its closing argument; and the
evidence of guilt was overwhelming. See State v. Riddley, 776 N.W.2d 419, 428 (Minn.
2009).
Here, the district court provided the jury with a limiting inst ruction when this
evidence was introduced. And while the prosecutor briefly mentioned this evidence during
closing argument, the eviden ce was not dwelled upon. Fi nally, the state presented
overwhelming evidence of Abdirahman’s guilt. In the vehicle, officers found an encoder,
numerous fake credit cards, two fake drive r’s licenses with photos of Abdirahman’s

2 While we refer to the devices found in the vehicle and during the airplane incident as
encoders, the record indicates that these devi ces could be used to re-encode the magnetic
stripe on a credit card.

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likeness corresponding to the names on the fake credits cards, and Abdirahman’s passport
and California driver’s license. There was also evidence that the fake credit cards had been
re-encoded with the identities and account inform ation of ten individu als, nine of whom
testified at trial that their transaction cards had been used without their authorization.
Because evidence of the encoder found on th e airplane did not significantly affect the
verdict, any error in the admission of this evidence was harmless.
Sufficiency of the evidence
Alternatively, Abdirahman argues that th e evidence was insuffi cient to prove that
he knowingly possessed the identifying information of eight or more victims and that he
intended to commit identity theft. When evaluating a clai m of insufficient evidence, this
court “carefully examine[s] th e record to determine whethe r the facts and the legitimate
inferences drawn from them would permit th e jury to reasonably conclude that the
defendant was guilty beyond a reasonable doubt of the offense of which he was convicted.”
State v. Boldman, 813 N.W.2d 102, 106 (Minn. 2012). We view the evidence in the light
most favorable to the verdict and will not overturn the verdict if the jury could reasonably
have found the defendant guilty of the charged offense, consistent with the presumption of
innocence and the state’s burden of proof beyond a reasonable doubt. Bernhardt v. State,
684 N.W.2d 465, 476-77 (Minn. 2004).
When the jury considered circumstantial evidence, this court applies a two-step test
to determine whether the state presented sufficient evidence. State v. Griffin, 887 N.W.2d
257, 264 (Minn. 2016). First, this court identifies the circumstances proved, “deferring to
the jury’s acceptance of the proof of these circumstances and re jection of evidence in the

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record that conflicted with the circumstances proved by the [s]tate.” Id. Second, this court
“examine[s] the reasonable inferences that might be drawn from the circumstances proved,
giving no deference to the fact-finder’s ch oice between reasonable inferences.” Id. The
“[c]ircumstantial evidence must form a complete chain that, in view of the evidence as a
whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable
doubt any reasonable inference other than guilt.” State v. Al-Naseer, 788 N.W.2d 469, 473
(Minn. 2010).
A person is guilty of identity theft where th ey transfer, possess, or use an identity
that was not his own, with the intent to co mmit unlawful activity. Minn. Stat. § 609.527,
subd. 2. For cases involv ing the possession of contraba nd, this court will uphold a
conviction based on circumstan tial evidence only when there is “evidence tying a
defendant directly to the illegal items.” State v. Sam, 859 N.W.2d 825, 835 (Minn. App.
2015). We now address each of the challenged elements.
Possession
First, Abdirahman argues that the stat e failed to adequately prove that he
constructively possessed the items found in th e vehicle. The doct rine of constructive
possession allows for the state to establish po ssession where “the inference is strong that
the defendant physically possessed the item at one time and did not abandon his possessory
interest in it.” State v. Smith , 619 N.W.2d 766, 770 (Minn. App. 2000), review denied
(Minn. Jan. 16, 2001). When an item is found in a place where others have access to it, the
state must “show a strong proba bility, inferable from other evidence, that [the defendant]
consciously exercised dominion and control over the . . . item[].” State v. Zgodava, 384

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N.W.2d 522, 524 (Minn. App. 1986), review denied (Minn. May 16, 1986). “Proximity is
an important consideration in assessing constructive possession,” and constructive
possession may be shared. Smith, 619 N.W.2d at 770.
With respect to Abdirahman’s construc tive possession of the items found in the
vehicle, these are the circumstances prov ed. Officers stopped a vehicle driven by
Abdirahman and occupied by a passenger in the front seat. Officers found an encoder and
two wallets in the vehicle’s glovebox. The first wallet contained two credit cards bearing
Abdirahman’s name and a Pennsylvania dr iver’s license bearing a photo resembling
Abdirahman but with the name of a different individual. The second wallet contained a
fake Maryland driver’s license bearing a photo resembling Abdirahman but with the name
of another individual and a valid social security card bearing the name of the vehicle’s
passenger. Officers also found a backpack in the back seat containing Abdirahman’s
passport and his California driver’s license and a credit card bearing Abdirahman’s name.
These circumstances proved are consistent with guilt and inconsistent with the hypothesis
that Abdirahman did not constr uctively or jointly possess the ite ms found in the vehicle.
Based on this record, the evidence sufficiently supports the possession element of
Abdirahman’s identity-theft conviction.
Intent
Second, Abdirahman argues that the state failed to adequately prove that he intended
to commit identity theft. Abdi rahman claims that “[t]here was no direct testimony as to
who altered those cards,” and that “possessi on of altered transacti on cards should not be

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accepted as proof of knowledge of personal iden tifying information as to all of the cards
or a general assumption of intent to steal.”
With respect to intent, these are the ci rcumstances proved. Officers found an
encoder in the glove box and various fake credit cards thr oughout the vehicle. Officers
also found fake identification cards—with photographs resemb ling Abdirahman—that
matched names on the fake credit cards. An officer, through a demonstration as part of his
testimony, used a card reader to show that the numbers on the front of 11 of the credit cards
found in the vehicle did not match with numbers encoded onto the cards’ magnetic stripes.3
As part of their investigation, officers tr aced the numbers scanne d onto the cards as
belonging to accounts at thre e banking institutions. Repres entatives from two of these
institutions then identifi ed the numbers as belonging to th e accounts of ten individuals.
Nine of those individuals then testified that their accounts—the numbers of which matched
the encoded digits of the fake credit cards —had been compromised and they did not
authorize Abdirahman to use their account numbers. Therefore, the evidence sufficiently
supports the intent element of Abdirahman ’s identity-theft co nviction because the
circumstances proved are consistent with guilt and inconsistent with the hypothesis that
Abdirahman did not intend to use the cards in an unlawful manner.

3 As indicated by the record, the numbers on the magnetic stripe of cloned cards are
different from the numbers on the front of the card. Law enforcement is able to identify
cloned cards by using a card reader, such as the one used by the officer at trial, to identify
the digits encoded onto the magnetic stripe . If the encoded digits do not match those
embossed on a transaction card , law enforcement can use the first six encoded digits to
identify the institution where the account is held and then contact the institution to identify
an account’s owner.

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Pro se claim
In his pro se supplemental brief, Abdirahm an argues that we should reverse his
conviction because the jury was racially biased. However, Abdirahman did not raise this
issue before the district court. See Roby v. State , 547 N.W.2d 354, 357 (Minn. 1996)
(noting appellate courts “generally will not decide issues which were not raised before the
district court”). Further, because Abdirahman has not provided citations to the record or
legal authority in support of his claim, it is forfeited. See State v. Krosch, 642 N.W.2d 713,
719 (Minn. 2002) (refusing to consider argumen ts raised in a pro se supplemental brief
because it contained “no argument or citation to legal authority”).
Affirmed.