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This opinion is nonprecedential except as provided by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
A22-0591

State of Minnesota,
Respondent,

vs.

Zakarie Farah Hassan,
Appellant.

Filed March 6, 2023
Affirmed in part, reversed in part and remanded
Florey, Judge*

Stearns County District Court
File No. 73-CR-19-5294

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

Janelle P. Kendall, Stearns County Attorney, River D. Thelen, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Christopher L. Mishek, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Bratvold, Judge; and Florey,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
FLOREY, Judge
In this appeal from the final judgments of conviction for first-degree aggravated
robbery and simple robbery, appellant argues that he is entitled to a new trial because the
prosecutor committed prejudicial misconduct in closing arguments. Appellant also argues
that the judgment of conviction for simple robbery must be vacated because it is a lesser-
included offense of aggravated robbery. We conclude that the prosecutor did not commit
prejudicial misconduct in closing arguments but agree that appellant’s conviction for
simple robbery must be vacated. Thus, we affirm in part, reverse in part, and remand.
FACTS
On July 1, 2019, respondent State of Minnesota charged appellant Zakarie Farah
Hassan with one count of simple robbery in violation of Minn. Stat. § 609.24 (2018). The
complaint was later amended to include additional counts, including aiding and abetting
first-degree aggravated robbery with infliction of bodily harm in violation of Minn. Stat.
§ 609.245, subd. 1 (2018). The complaint alleged that on June 27, 2019, Hassan and
several other individuals drove up to 16-year-old H.A. in a park and began yelling at him,
claiming he stole a phone. One individual exited the vehicle and pushed H.A. to the ground
and another began to punch H.A. while demanding his phone. The individuals then stole
H.A.’s phone, watch, and wireless headphones. H.A. identified one of the individuals as
Hassan, who he knew from summer school. Hassan pleaded not guilty to the charges and
the district court set the case for a jury trial.

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Before trial the state sought to introduce Spreigl1 evidence of two prior bad acts.
The first incident occurred on June 8, 2019, and involved Hassan and several others
approaching a man, accusing him of getting a friend in trouble over a stolen phone,
assaulting the man, and stealing his phone. The second incident occurred on June 17, 2019,
and involved Hassan and H.A. During this incident, Hassan approached H.A. after summer
school and asked to borrow his phone. H.A. agreed, and Hassan took the phone and fled.
H.A. tracked the phone later that evening and discovered that it was in Hassan’s apartment.
H.A went to Hassan’s apartment with his dad to get the phone back. When Hassan refused,
H.A. called the police and an officer located the phone in Hassan’s room. The state argued
that both incidents were more probative than prejudicial and could help prove identity,
intent, and modus operandi.
The district court ruled that the June 17, 2019, incident was admissible Spreigl
evidence to show identity and common scheme and that the probative value outweighed
the danger of unfair prejudice. But the district court excluded the June 8, 2019, incident
because it determined that the evidence would unfairly prejudice the defense.
The trial began on October 25, 2021. H.A. testified first on behalf of the state.
Counsel for the state indicated they would ask H.A. about the prior incident on June 17,
2019, and asked the judge whether a jury instruction would be appropriate. The judge read
the following instruction:

1 Evidence of other crimes or bad acts is known in Minnesota as “Spreigl evidence.” State
v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998) (citing State v. Spreigl, 139 N.W.2d 167
(Minn. 1965)).

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Ladies and gentlemen of the jury, you are about to hear
evidence of occurrences on June 17, 2019. This evidence is
being offered for the limited purpose of assisting you in
determining whether the defendant committed those acts with
which the defendant is charged in the [c] omplaint. This
evidence is not to be used to prove the character of the
defendant or that the defendant acted in conformity with such
character. The defendant is not being tried for and may not be
convicted of any offense other than the charged offenses. You
are not to convict the defendant on the basis of any occurrences
on June 17, 2019. To do so might result in unjust double
punishment.

H.A. then testified about the incident and stated he was walking to his car after his summer
school program ended for the day when Hassan approached him. Hassan asked if he could
use H.A.’s phone to call someone. H.A. gave Hassan his phone, and Hassan ran away with
it to the back of the school and got into a car. When H.A. got home he checked a phone-
locator application, and it showed his phone at an apartment complex. H.A. testified that
he and his dad went to the apartment complex to retrieve the phone and the tracking
application led him to Hassan’s apartment. They knocked on the door, and Hassan’s family
member answered and stated they would look for the phone. Approximately ten minutes
later, H.A. and his father knocked again. This time Hassan answered and told them that
his phone was not there and slammed the door. H.A. called the police, and an officer came,
spoke with Hassan’s mother, and retrieved the phone. H.A. identified Hassan in the
courtroom as the individual who took his phone on June 17, 2019.
H.A. then testified about the incident on June 27, 2019. He testified that he was
jogging on a trail in a park with his cellphone, watch, and wireless headphones. He testified
that a car approached him in the parking lot and that he could see several people exiting

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the vehicle. Three people approached him, and he noticed one of the three was Hassan.
H.A. testified that one of the individuals “said something about stealing a phone” and then
he was hit from behind. H.A. testified that he fell to the ground and one individual started
punching him while Hassan dug through his pockets and took his phone. H.A. testified
that while he was still on the ground, he felt Hassan “yanking” on his wrist and pulling his
watch off. H.A. testified that one of the individuals stated he would stab H.A. with a knife,
but that H.A. never saw the knife. H.A. testified that he believed Hassan also kicked and
hit him a few times, but that with the three attackers it was hard to tell exactly where
everyone was in the moment. H.A. testified that the individuals took his phone, watch, and
wireless headphone case, returned to the vehicle, and drove off. H.A. then located a man
in the park who called 911.
The man who called 911 for H.A. on June 27, 2019, along with the two responding
officers also testified on behalf of the state. The man who called 911 testified that he was
in his car getting ready to leave when he saw a young man with a torn shirt who “looked
like maybe something had happened to him.” He testified that he also saw a vehicle leaving
the parking lot shortly before seeing the young man, but that he only recognized it as a
small compact car with about three people in it. Approximately 10 to 15 minutes after the
man called for help, officers responded to the scene. One of the responding officers
testified that, when she arrived at the scene, she noticed H.A. with scrapes on his arms and
a torn shirt. She testified that he told her that he had been jogging in the park when the
individuals approached him, pushed him to the ground, and began punching him. She
testified that H.A. identified one of the attackers as Hassan.

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The second responding officer testified that he also responded to the call on June 17
to help H.A. locate his phone in Hassan’s apartment building. He testified that when he
arrived at the apartment, he spoke with Hassan’s family member who led him to Hassan’s
bedroom where he located H.A.’s phone.
The state rested, and the defense did not call any witnesses. The judge then read the
following jury instruction.
You have heard evidence of an occurrence on June 17, 2019,
in the city of St. Cloud. As I told you at the time this evidence
was offered, it was admitted for the limited purpose of assisting
you in determining whether the defendant committed those
acts with which the defendant is charged in the complaint. This
evidence is not to be used as proof of the character of the
defendant or that the defendant acted in conformity with such
character. The defendant is not being tried for and may not be
convicted of any offense other than the charged offense. You
are not to convict the defendant on the basis of any occurrence
on June 17, 2019, in the city of St. Cloud. To do so, might
result in unjust double punishment.

During closing remarks, the prosecutor argued that the reason H.A. knew Hassan as one of
the individuals in the group who hit him and took his phone on June 27 was because he
had gone to summer school with Hassan and that H.A. had allowed Hassan to use his phone
just 10 days prior, and Hassan took off running with it. Counsel described the incident on
June 17:
So when we ask ourselves about [H.A.’s] identification of the
defendant, you have to realize that he had multiple instances in
a short amount of time, 10 days, multiple high -level instances
and interactions with the defendant. These weren’t just passing
conversations. This was getting robbed twice by the defendant,
going and confronting him at his residence about this phone.
Those are the kind of interactions that people remember.
Those are the things that you carry with you. In fact, I would

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say getting robbed just once is not something that [H.A.] will
probably ever forget, and remembering the details of the
individual he knew who robbed him are going to be burned into
his mind.

Counsel argued that the second responding officer’s “testimony critically confirms an
important aspect of [H.A.’s] testimony, right. The first incident happened on June 17th,
and that is how Mr. Hassan certainly came to [H.A.’s] attention. This was the first time
that he robbed him.” Counsel urged the jury to “think about [H.A.’s] testimony . . . His
version of the events all make sense. He’s located at a park that is extremely close to his
house, and he’s located by the individual who robbed him ten days prior.”
The jury found Hassan guilty of both aggravated robbery and simple robbery. The
district court entered a conviction on both counts and sentenced Hassan to 48-months’
imprisonment. Hassan appeals.
DECISION
I. Hassan has not demonstrated that the prosecutor committed plain error
during closing arguments.

Hassan claims he is entitled to a new trial because the prosecutor committed
prejudicial misconduct in closing arguments by stating Hassan “robbed” H.A. twice.
Hassan did not object to the statements at trial.
“When a defendant fails to object at trial, he generally forfeits consideration of
prosecutorial misconduct on appeal,” but appellate courts may review unobjected- to
prosecutorial misconduct under the modified plain-error standard. State v. Mayhorn, 720
N.W.2d 776, 785 (Minn. 2006); State v. Ramey, 721 N.W.2d 294, 296 (Minn. 2006).
Under this standard of review, the defendant bears the burden “to demonstrate both that

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error occurred and that the error was plain.” Ramey, 721 N.W.2d at 302. “An error is plain
if it was clear or obvious,” which is typically established “if the error contravenes case law,
a rule, or a standard of conduct.” Id. (quotation omitted).
If the defendant demonstrates an error that is plain, the burden then shifts to the state
“to demonstrate lack of prejudice” by showing “that there is no reasonable likelihood that
the absence of the misconduct in question would have had a significant effect on the verdict
of the jury.” Id. (quotation omitted). In determining whether there is a reasonable
likelihood that the absence of the misconduct would have a significant effect on the jury’s
verdict, “we consider the strength of the evidence against the defendant, the pervasiveness
of the improper suggestions, and whether the defendant had an opportunity to (or made
efforts to) rebut the improper suggestions.” State v. Davis, 735 N.W.2d 674, 682 (Minn.
2007). If “any one of the requirements” of the plain-error test is not satisfied, the reviewing
court “need not address any of the others.” State v. Lilienthal, 889 N.W.2d 780, 785 (Minn.
2017) (quotation omitted). If all three prongs of the plain-error test are satisfied, the
reviewing court then decides “whether it should address the error to ensure fairness and the
integrity of the judicial proceedings.” State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
Here the alleged prosecutorial misconduct occurred during the state’s closing
argument when counsel stated that Hassan “robbed” H.A. twice. The prosecutor stated that
Hassan first “came to [H.A.’s] attention” on June 17 because it was “the first time that he
robbed [H.A.].” The prosecutor also stated that on June 27, H.A. was “located by the
individual who robbed him ten days prior.” Hassan argues that by stating Hassan “robbed”
H.A., the prosecutor committed plain error because the statements misstated the evidence

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and went beyond the district court’s order admitting the evidence in as a theft not a robbery.
We are not persuaded.
A prosecutor may not use properly admitted Spreigl evidence “as a means to attack
the defendant’s character or to establish a criminal propensity,” State v. Duncan, 608
N.W.2d 551, 555 (Minn. App. 2000), rev. denied (May 16, 2000), nor may the prosecutor
intentionally misstate the evidence, Mayhorn, 720 N.W.2d at 788. Viewing the
prosecutor’s statements as a whole, we cannot conclude that the prosecutor intentionally
misstated the evidence or otherwise used the prior incident to attack Hassan’s character.
Instead, the prosecutor used the Spreigl evidence for a proper purpose of establishing
identity. The prosecutor argued that H.A. specifically recognized Hassan as one of the
individuals who attacked him in the park and stole his property because of the incident on
June 17.
Further, when the alleged misconduct occurs during closing arguments, the
reviewing court assesses “the closing argument as a whole” to determine whether a
prosecutor committed misconduct constituting plain error. State v. Graham, 764 N.W.2d
340, 356 (Minn. 2009) (quotation omitted). Here, the prosecutor’s argument that H.A.
could identify Hassan because Hassan “robbed” H.A. twice comprised only a few
sentences within a 23 -transcribed-page closing argument. See State v. Powers, 654
N.W.2d 667, 679 (Minn. 2003) (holding that a statement did not amount to misconduct
because “[t]he improper statement was only two sentences in a closing argument that
amounted to over 20 transcribed pages”); State v. Tate, 682 N.W.2d 169, 178 (Minn. App.
2004) (“[T]he [challenged] statements were short comments, involving 13 lines of a

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closing argument transcript that is 25 pages long.”), rev. denied (Minn. Sept. 29, 2004).
Accordingly, Hassan has failed to show an error that was plain.
But even if Hassan could show that the prosecutor plainly erred, any error did not
affect his substantial rights in the context of this case. First, the evidence against Hassan
is substantial. H.A. clearly identified Hassan as one of the attackers and detailed the
robbery in his testimony consistent with injuries he sustained as shown in photographs.
His testimony was largely corroborated by three witnesses. The witness who called 911
testified that he observed a vehicle leave the park with at least three people in it and then
saw H.A. with a torn shirt and believed that H.A. “went through some kind of trauma.”
The responding officers testified that H.A. detailed the attack and identified Hassan as one
of the attackers.
Second, the district court provided a jury instruction warning the jury against
convicting Hassan “on the basis of any occurrence on June 17, 2019” both before the
prosecutor elicited testimony from H.A. and just before closing arguments. “[T]he
prejudicial effect of misconduct can be cured by proper instructions to the jury,” and we
presume the jury followed the district court’s instructions. State v. Whitson, 876 N.W.2d
297, 304 (Minn. 2016); State v. Steward, 645 N.W.2d 115, 122 (Minn. 2002). Thus, we
conclude that the statements did not amount to plain-error misconduct and, even if the
prosecutor erred, any misconduct did not have a significant effect on the jury’s verdict and
therefore did not affect Hassan’s substantial rights.

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II. The district court erred by entering a conviction for the lesser-included offense
of simple robbery.

Hassan argues, and the state concedes, that the district court erred by entering a
conviction for simple robbery because it is a lesser-included offense of his aggravated
robbery conviction. We agree. A criminal defendant “may be convicted of either the crime
charged or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2018). When
a defendant is “convicted on more than one charge for the same act,” district courts should
“adjudicate formally and impose sentence on one count only.” State v. LaTourelle, 343
N.W.2d 277, 284 (Minn. 1984). When a district court errs by entering a conviction on both
counts, this court remedies the error by reversing and remanding with instructions to vacate
the erroneous conviction, but the district court should leave the jury’s finding of guilt intact.
State v. Crockson, 854 N.W.2d 244, 248 (Minn. App. 2014), rev. denied (Minn. Dec. 16,
2014). Whether the entry of multiple convictions violates section 609.04 is a question of
law that we review de novo. State v. Bonkowske, 957 N.W.2d 437, 443 (Minn. App. 2021).
Here, the jury found Hassan guilty of simple robbery and first-degree aggravated
robbery. At sentencing the district court erred by convicting Hassan of both aggravated
robbery and simple robbery because both convictions arise from the events occurring on
June 27, 2019, and simple robbery is an included offense of aggravated robbery. See State
v. Oksanen, 149 N.W.2d 27, 29 (Minn. 1967) (holding that because “one must be guilty of
simple robbery before one can be guilty of aggravated robbery . . . simple robbery is a
lesser and included offense within the crime of aggravated robbery.”). We therefore
reverse and remand to the district court to vacate Hassan’s conviction for the lesser-

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included offense of simple robbery, while leaving the findings of guilt for the offense
intact, and to correct the warrant of commitment.
Affirmed in part, reversed in part, and remanded.