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This opinion is nonprecedential except as provided by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
A24-0037

State of Minnesota,
Respondent,

vs.

Mohamed Abdulgani Ahmed,
Appellant.

Filed December 9, 2024
Affirmed in part, reversed in part, and remanded
Larson, Judge

Polk County District Court
File No. 60-CR-22-609

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

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larson, Presiding Judge; Worke, Judge; and Bjorkman,
Judge.
NONPRECEDENTIAL OPINION
LARSON, Judge
After a jury trial, appellant Mohamed Ahmed appeals three convictions for drug-
related offenses, along with the sentence for one offense. Ahmed argues that respondent
State of Minnesota presented insufficient evidence of guilt for his convictions, the district
2

court provided plainly erroneous jury instructions, the prosecutor committed plain-error
misconduct during closing argument, the district court erroneously concluded that two of
his convictions arose from separate behavioral incidents, and the district court erroneously
convicted him of a lesser-included offense. We reverse and remand for the district court
to vacate Ahmed’s conviction for the lesser-included offense, but otherwise affirm.
FACTS
Following the execution of a search warrant at an apartment in East Grand Forks,
Minnesota, the state charged Ahmed with conspiracy to commit first-degree sale of a
controlled substance under Minn. Stat. § 152.096, subd. 1 (2020) (count I); first-degree
sale of a controlled substance under Minn. Stat. § 152.021, subd. 1(4) (2020) (count II);
and second-degree possession of a controlled substance under Minn. Stat. § 152.022,
subd. 2(a)(4) (2020) (count III). 1 The case proceeded to a jury trial. Three law-
enforcement officials with the Pine to Prairie Drug Task Force 2 testified, including two
police officers from the East Grand Forks Police Department. Two forensic scientists with
the Bureau of Criminal Apprehension (BCA) also testified.
At trial, law enforcement testified to the following facts . On April 18, 2022, law
enforcement received information about “fentanyl being sold” from an apartment building.
The next day, law enforcement spoke with two individuals after they left the building who

1 The state also charged Ahmed with failure to affix a tax stamp under Minn. Stat.
§ 297D.09, subd. 1a (2020) (count IV). The district court convicted and sentenced Ahmed
for that crime. Ahmed does not contest that conviction or sentence on appeal.
2 The Pine to Prairie Drug Task Force is a multi-county task force that includes law
enforcement from both North Dakota and Minnesota. They investigate and surveil illegal
drug activity in-and-around the Grand Forks metropolitan area.
3

admitted to purchasing pills from A.F. inside Ahmed’s apartment. The individuals also
indicated that Ahmed “was present during the sale.” The following day, law enforcement
observed an individual (hereinafter, the witness) enter the building after entering Ahmed’s
apartment number. Inside the building, when the witness came walking down the stairs,
law enforcement stopped her, and she handed over a pill that she had just purchased. The
pill was “a small blue M30 pill.”
Law enforcement executed a search warrant for Ahmed’s apartment. Ahmed
answered the door, and law enforcement entered. A.F. was sleeping inside a bedroom, and
near him was “a foil laid out with burn marks.” 3 Also nearby were A.F.’s credit card, a
cell phone, $100 in cash, and two blue pills with the M30 mark. The bedroom closet
contained a plastic bag with 775 blue pills with the M30 mark, another plastic bag with
over $2,000 in cash, Ahmed’s identification, and an additional $420 in cash. When law
enforcement searched Ahmed, they confiscated $40 in cash, a cell phone, and nine blue
pills with the M30 mark. Law enforcement confiscated another 16 blue pills with the M30
mark when they searched A.F. After the search, law enforcement sent all the confiscated
blue pills with the M30 mark to the BCA for testing.
Law enforcement arrested Ahmed and interviewed him at the East Grand Forks
police station. During the interview, Ahmed suggested that he sold pills to the witness and
described drug transactions occurring in Ahmed’s apartment.4 Law enforcement also

3 Law enforcement testified that it is common for people to melt fentanyl pills on tinfoil
before smoking them.
4 The state offered a recording of Ahmed’s custodial interview to corroborate law
enforcement’s testimony.
4

obtained text messages from Ahmed’s phone5 that suggested Ahmed had been in the Twin
Cities in the days prior to the search.6
At trial, the forensic scientists testified to the following facts. “M30 pills” are
“clandestine pill[s] . . . . [that are] typically, small, round, blue-colored . . . [and have] an
M [im]print on one side and a 30 imprint on the opposite side.” Over the preceding three
years, the BCA lab where law enforcement sent the pills from Ahmed’s apartment had
handled five to ten fentanyl cases per month. During that time, one forensic scientist could
not recall an instance where a blue pill with the M30 mark tested negative for fentanyl.
According to its normal practice, the BCA tested one of the nine pills from Ahmed’s
person, one of the 16 pills from A.F.’s person, and the pill that the witness gave to law
enforcement. All three pills tested positive for fentanyl. The BCA did not test any of the
775 pills found in the closet.
After the state rested its case, Ahmed moved for a judgment of acquittal on all three
counts. Ahmed argued that the state presented insufficient evidence of guilt because the
BCA did not test any of the 775 pills found in the closet. The district court denied the
motion.
The district court then instructed the jury. Toward the beginning of the instructions,
the district court provided a general “conspiracy” definition, explaining that criminal
liability for conspiracy requires “some overt act in furtherance of the conspiracy.” The

5 The state offered the text messages as exhibits at trial.
6 Law enforcement testified that most of the fentanyl in East Grand Forks comes from the
Twin Cities.
5

district court also gave a general co -conspirator liability instruction, stating that “[t]he
defendant is guilty of a crime committed by another person when the defendant has
conspired with the other to commit the crime.” Furthermore, the district court said:
If the defendant conspired with another[,] . . . [then] the
defendant is also guilty of any other crime which that person
commits in furtherance of the conspiracy or while trying to
commit the intended crime, if that other crime was reasonably
foreseeable to the defendant as a probable consequence of
furthering the conspiracy . . . .

The district court’s general co-conspirator liability instruction reflected the language from
Minnesota’s aiding-and-abetting statute. See Minn. Stat. § 609.05 (2020).
The district court then provided separate instructions on each individual charge. For
its instruction on count I (conspiracy), the district court stated:
In Count 1, the defendant is charged with Conspiracy to
Commit Controlled Substance Crime in the First Degree –
Sale. The elements of Conspiracy to Commit Controlled
Substance Crime in the First Degree – Sale are:
First, the defendant conspired with one or more people
to commit the crime of Conspiracy to Commit Controlled
Substance Crime in the First Degree – Sale. A person
conspires with another when they agree with the other to
commit a crime. The statutes of Minnesota define the crime of
Controlled Substance Crime in the First Degree – Sale as
follows.

The district court then outlined the elements of first-degree sale of a controlled substance
in relation to the conspiracy charge, and, consistent with its earlier definition of conspiracy,
noted that guilt required an overt act in furtherance of the conspiracy.
The district court next provided separate instructions on count II (first-degree sale)
and count III (second- degree possession). In its instructions for both crimes, the district
6

court—in part by reiterating information from its general co-conspirator liability
instruction—informed the jury that Ahmed could be found guilty under an aiding-and-
abetting theory of liability if he participated in a conspiracy to commit those crimes. See
Minn. Stat. § 609.05.
After the district court instructed the jury, the parties presented their closing
arguments. During closing argument, the prosecutor stated the following regarding
count II (first-degree sale):
Now the Judge has given you instructions in this case
which indicate two separate theories that the defendant can be
found guilty of, actually three. The first is if you find him
guilty of the conspiracy, you could find him guilty of this crime
under the co-conspirator theory of liability. You can find that
he committed this crime himself, or you can find that he
committed this crime by aiding [A.F.]

Now you’re required to have a unanimous jury verdict
in this case. But four of you could find the defendant guilty
under the co-conspirator theory, four of you could find him
guilty of committing this crime personally, four of you could
find him guilty of aiding theory, and that is still a unanimous
jury verdict. It’s just different ways of getting the same result.

The prosecutor also made the following statement regarding count I (conspiracy):
But I don’t need to prove that the defendant knew this
conspiracy involved more than fifty grams, just that there was
a conspiracy to do so, and ultimately this conspiracy involved
more than fifty grams. If you look at the Court’s jury
instructions, it doesn’t say that I have to prove that he knew
that this conspiracy involved more than fifty grams of fentanyl.

After the parties presented their closing arguments, the jury returned guilty verdicts on all
three counts.
7

Prior to sentencing, Ahmed filed a memorandum arguing that the district court could
not sentence him for both count I (conspiracy) and count II (first-degree sale) because they
arose from the same behavioral incident. See Minn. Stat. § 609.035, subd. 1 (2020). The
state filed a memorandum in response, arguing that count I (conspiracy) related to the time
period before law enforcement executed the search warrant, relying on text messages
submitted at trial suggesting that Ahmed obtained fentanyl pills in the Twin Cities before
law enforcement executed the search warrant.
At the sentencing hearing, the district court agreed with the state and determined
that the underlying conduct for count I (conspiracy) and count II (first-degree sale) were
part of separate behavioral incidents . The district court then sentenced Ahmed
concurrently to 78 months in prison for count I (conspiracy) and 102 months in prison for
count II (first-degree sale). In addition, the district court entered a conviction, but no
sentence, for count III (second-degree possession).
Ahmed appeals.
DECISION
In this direct appeal, Ahmed raises several arguments. First, Ahmed argues the state
presented insufficient evidence to support his convictions for all three counts because the
BCA did not test any of the 775 pills found in the closet. Second, Ahmed asserts the district
court plainly erred when it instructed the jury on the elements of count I (conspiracy).
Third, Ahmed contends the state engaged in plain-error prosecutorial misconduct during
its closing argument. Fourth, Ahmed argues the district court erred when it concluded that
count I (conspiracy) and count II (first-degree sale) were part of separate behavioral
8

incidents and imposed sentences for both. And last, Ahmed asserts the district court erred
when it entered a conviction for count III (second-degree possession) on the ground that it
is an included offense for count II (first-degree sale). We address each argument in turn
below.
I.
Ahmed first challenges the sufficiency of the evidence supporting his convictions
for all three counts. When evaluating a sufficiency-of-the-evidence challenge, we analyze
“the record to determine whether the evidence, when viewed in a light most favorable to
the conviction, was sufficient” for the jury to reach its verdict. State v. Webb, 440 N.W.2d
426, 430 (Minn. 1989). We will not disturb the verdict when the jury, acting with due
regard for the presumption of innocence and the requirement of proof beyond a reasonable
doubt, could reasonably conclude that the defendant was guilty of the charged offense.
Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).
When a conviction is based on circumstantial evidence we apply “heightened
scrutiny.” State v. Al- Naseer, 788 N.W.2d 469, 473 (Minn. 2010). We first identify the
circumstances proved in support of the conviction, giving deference to “the jury’s
acceptance of the proof of these circumstances as well as to the jury’s rejection of evidence
in the record that conflicted with the circumstances proved by the state.” State v. Hanson,
800 N.W.2d 618, 622 (Minn. 2011). Second, we “determine whether the circumstances
proved are consistent with guilt and inconsistent with any rational hypothesis except that
of guilt.” State v. Silvernail, 831 N.W.2d 594, 599 (Minn. 2013) (quotations omitted). In
making this determination, “we do not review each circumstance proved in isolation” but,
9

instead, consider the circumstances as a whole. State v. Andersen, 784 N.W.2d 320, 332
(Minn. 2010).
Here, Ahmed argues that the state failed to prove that he possessed the weight of a
mixture containing fentanyl required to sustain his convictions because it did not test any
of the 775 pills found in the closet. To prove all three counts, the state had to prove that
Ahmed sold, conspired to sell, and possessed “50 grams or more” of a mixture containing
fentanyl. See Minn Stat. § 152.021, subd. 1(4); Minn. Stat. § 152.096, subd. 1; Minn. Stat.
§ 152.022, subd. 2(a)(4).7
“The identity and weight of a suspected controlled substance may be proved directly
with scientific evidence or, in certain situations, circumstantially with scientific or
nonscientific evidence.” Roberts v. State, 856 N.W.2d 287, 292 (Minn. App. 2014), rev.
denied (Minn. Jan. 28, 2015). There are no “minimum evidentiary requirements in
identification cases” and we “examine the sufficiency of the evidence on a case-by-case
basis.” State v. Vail, 274 N.W.2d 127, 134 (Minn. 1979).
Here, the state presented direct evidence that three pills tested positive for fentanyl:
one pill from Ahmed’s person, one pill from A.F.’s person, and one pill from the witness.
The state also presented circumstantial evidence as a basis to infer from the scientific
evidence that the remaining pills contained fentanyl. The circumstances proved include:

7 The state argues that to prove count I (conspiracy) it did not need to prove that “any of
the 775 pills” from the closet “contained any amount of fentanyl.” In this case, the presence
of fentanyl in the pills is deeply probative that Ahmed conspired to sell fentanyl. Thus, we
consider evidence about the chemical identity of the pills when evaluating the sufficiency
of the evidence for count I (conspiracy).
10

(1) during the execution of the search warrant, law enforcement found large amounts of
cash, “a foil laid out with burn marks,” two pills near the foil, nine pills on Ahmed’s person,
16 pills on A.F.’s person, and a bag with 775 pills in a bedroom closet; (2) the pills all had
a similar appearance, including color, size, shape, and the M30 mark; (3) the pills were all
discovered in close proximity to one another; (4) one pill collected from Ahmed’s person
tested positive for fentanyl; (5) one pill collected from A.F.’s person tested positive for
fentanyl; (6) the BCA lab had previously tested numerous pills with the same appearance
and one forensic scientist could not recall any of the pills testing negative for fentanyl;
(7) law enforcement spoke with two individuals who admitted to purchasing pills inside
Ahmed’s apartment in Ahmed’s presence; (8) law enforcement observed the witness enter
the building after entering Ahmed’s apartment number, and later recovered a pill from the
witness; ( 9) the pill collected from the witness had the same appearance as the pills
confiscated from the apartment, and the pill tested positive for fentanyl; (10) during his in-
custody interview, Ahmed described drug transactions that occurred inside the apartment;
(11) most of the fentanyl in East Grand Forks comes from the Twin Cities; and (12) Ahmed
was in the Twin Cities in the days prior to the search warrant, exchanging text messages
related to fentanyl.
We conclude that the circumstances proved are “consistent with guilt and
inconsistent with any rational hypothesis except that of guilt.” Silvernail, 831 N.W.2d at
599. The circumstances proved gave the state a strong basis to extrapolate from its random
testing that the 775 pills found in the closet contained fentanyl sufficient to meet the 50-
gram threshold.
11

Ahmed disagrees, asserting that the circumstances proved are also consistent with
the rational hypothesis that the 775 pills in the closet did not contain fentanyl. To support
his argument, Ahmed relies on State v. Robinson, 517 N.W.2d 336 (Minn. 1994). There,
the supreme court concluded that the state’s extrapolation from random testing was
inappropriate because the evidence consisted of multiple “wrapped plastic packets with
some amount of some kind of white substance in each,” and with the packaging giving “no
assurance that the same was wrapped in each packet.” Id. at 340. Nevertheless, the
supreme court acknowledged that “[t]here may be instances where the seized material
consists of pills . . . where the individual items are so alike and the risk of benign substitutes
so unlikely that random testing may legitimately permit an inference beyond a reasonable
doubt that the requisite weight of the whole mixture is established.” Id.
Here, applying Robinson, we conclude that it would not be rational to infer that the
775 pills found in the closet did not contain fentanyl. Particularly given the breadth of the
surrounding circumstantial evidence, the pills from the apartment were “so alike and the
risk of benign substitutes [was] so unlikely” that the random testing here permits only one
reasonable inference: the 775 pills collected from the closet contained fentanyl. See id.
For these reasons, we conclude that the state presented sufficient evidence to prove
the 775 pills collected from the closet contained fentanyl and, therefore, the state proved
Ahmed sold, conspired to sell, and possessed 50 grams or more of a mixture containing
fentanyl.
12

II.
Ahmed next argues the district court plainly erred when it instructed the jury on the
elements of conspiracy. District courts have wide latitude to articulate jury instructions
insofar as the instructions do not “confuse, mislead, or materially misstate the law.” State
v. Taylor, 869 N.W.2d 1, 14-15 (Minn. 2015) (quotation omitted). On review, we “read
the relevant jury instructions as a whole to determine if they accurately describe the law.”
State v. Guzman, 892 N.W.2d 801, 816 (Minn. 2017).
Where, as here, the defendant did not object to a jury instruction, we review the
instruction for plain error. See State v. Reek, 942 N.W.2d 148, 158- 59 (Minn. 2020). A
district court plainly errs when there is “(1) [an] error; (2) that is plain; and (3) the error . . .
affect[s] substantial rights.” State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). 8 “An
error is plain if it is clear or obvious,” usually when the district court contravened “case
law, a rule, or a standard of conduct.” State v. Sontoya, 788 N.W.2d 868, 872 (Minn. 2010)
(quotation omitted). A plain error affects substantial rights when it is “prejudicial” and
impacts “the outcome of the case.” Id. If a party demonstrates plain error affecting
substantial rights, we must then determine whether to “address the error to ensure fairness
and the integrity of the judicial proceedings.” Bernhardt, 684 N.W.2d at 475 (quotation
omitted).

8 The state argues that Ahmed waived any claim that the district court improperly instructed
the jury because he did not object to the jury instructions at trial. We disagree. It is well-
established that plain- error review applies to unobjected-to jury instructions. See, e.g.,
State v. Kelley, 855 N.W.2d 269, 273-74 (Minn. 2014).
13

Here, Ahmed’s jury-instruction challenges relate to his conviction for count I
(conspiracy). In Minnesota, “[a]ny person who conspires to commit” a controlled-
substance crime, subject to certain exceptions, is “guilty of a felony.” Minn. Stat.
§ 152.096, subd. 1. Ahmed argues the district court gave two erroneous instructions: the
general co-conspirator liability instruction and the specific instruction on count I
(conspiracy). We address each argument in turn below.
A. General Co-Conspirator Liability Instruction
Ahmed challenges the district court’s general co-conspirator liability instruction,
which stated: “The defendant is guilty of a crime committed by another person when the
defendant has conspired with the other to commit the crime.” Ahmed argues that this
instruction was plain error because the conspiracy statute, Minn. Stat. § 152.096, does not
mention criminal liability for the crimes of a co-conspirator, and “Minnesota has not
officially recognized the crime of aiding and abetting a conspiracy.”
We disagree with Ahmed’s characterization of this instruction. In Minnesota, a
person is guilty of a crime under an aiding-and -abetting theory of liability “if the person
intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the
other to commit the crime.” Minn. Stat. § 609.05, subd. 1 (emphasis added). Reading “the
relevant jury instructions as a whole,” see Guzman, 892 N.W.2d at 816, the district court
plainly intended this general instruction to inform the jury that Ahmed could be found
guilty of count II (first-degree sale) and count III (second-degree possession) under an
14

aiding-and-abetting theory of liability, 9 including conspiracy. This is evident from the
district court’s specific instructions on each individual count. When the district court gave
specific instructions on count II (first-degree sale) and count III (second-degree
possession), it mentioned co-conspirator liability as part of a broader instruction on aiding-
and-abetting liability. But when it gave its instruction on count I (conspiracy), it said
nothing about co-conspirator liability.
For this reason, we conclude that the district court did not err when it gave its general
co-conspirator liability instruction.
B. Conspiracy Instruction
Ahmed also challenges the district court’s specific instruction on count I
(conspiracy) that Ahmed must have “conspired with one or more people to commit the
crime of Conspiracy to Commit Controlled Substance Crime in the First Degree – Sale.”
Ahmed argues the district court erroneously instructed the jury to determine whether he
“conspired to commit a conspiracy.” The state concedes that this instruction was erroneous
because Ahmed “could not be convicted for conspiracy to conspire” but argues that the
instruction did not prejudice the verdict.

9 Ahmed observes that “the criminal complaint in this case does not even reference the
aiding and abetting statute.” Although we recognize that it may be a better practice for the
state to include this information in the complaint, “aiding and abetting” under Minn. Stat.
§ 609.05 “is not a separate substantive offense [from the underlying crime] and can be
added [and instructed upon] at any point prior to a verdict or finding” even if there is no
‘“aiding and abetting’ language in the complaint.” State v. DeVerney, 592 N.W.2d 837,
846 (Minn. 1999).
15

Assuming without deciding this instruction amounted to plain error, we agree with
the state that any error did not affect the verdict. Again reading “the relevant jury
instructions as a whole,” see Guzman, 892 N.W.2d at 816, as set forth above, the language
immediately preceding and following the challenged instruction tied the conspiracy charge
to the substantive crime of first-degree sale of a controlled substance. Therefore, when
read in context, the district court did not leave the jury with the impression that it would
have to determine whether Ahmed “ conspired to commit a conspiracy.” We, therefore,
conclude that any plain error in the conspiracy instruction did not affect Ahmed’s
substantial rights because it was not prejudicial and did not impact the outcome of the case.
See Sontoya, 788 N.W.2d at 872.
III.
Ahmed next argues the prosecutor engaged in plain-error misconduct during closing
argument, challenging statements regarding the need for a unanimous verdict and Ahmed’s
knowledge that the conspiracy involved more than 50 grams of a mixture containing
fentanyl. Because Ahmed did not object at trial, we apply the modified plain-error
standard. See State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). This standard mirrors
the traditional plain-error standard except that, if the defendant demonstrates a plain error,
the burden shifts to the state to show that there was “no reasonable likelihood that the
absence of the misconduct in question would have had a significant effect on the verdict.”
Id. (quotations omitted). Whether there is a reasonable likelihood that misconduct affected
16

a verdict depends on factors like the strength of the state’s evidence and the error’s
pervasiveness. State v. Davis, 735 N.W.2d 674, 681-82 (Minn. 2007).
A. Unanimous Verdict
Ahmed argues that the prosecutor misstated the law regarding the need for the jury
to reach a unanimous verdict on count II (first-degree sale). A “jury’s verdict must be
unanimous in all cases.” Minn. R. Crim. P. 26.01, subd. 1(5). Therefore, a “jury must
unanimously find that the government has proved each element of the offense.” State v.
Lagred, 923 N.W.2d 345, 348 (Minn. App. 2019) (quotation omitted). But a jury does not
have to unanimously “agree on the mode of commission of a crime.” State v. Pendleton,
725 N.W.2d 717, 733 (Minn. 2007).
Ahmed argues the prosecutor plainly erred during closing argument when he said:
Now you’re required to have a unanimous jury verdict
in this case. But four of you could find the defendant guilty
under the co-conspirator theory, four of you could find him
guilty of committing this crime personally, four of you could
find him guilty of aiding theory, and that is still a unanimous
jury verdict. It’s just different ways of getting the same result.

We are not persuaded.
The prosecutor’s statement is consistent with existing law that the jurors could reach
a unanimous verdict even if they did not agree on the mode by which Ahmed committed
the crime. To find a defendant guilty of first-degree sale of a controlled substance, the jury
must find that a “ person unlawfully [sold] one or more mixtures of a total weight of
50 grams or more containing a narcotic drug.” Minn. Stat. § 152.021, subd. 1(4). As
relevant here, a person can “sell” using three modes—personally selling, aiding another to
17

sell, or conspiring to sell. See id.; Minn. Stat. § 609.05, subd. 1. Because a person can
“sell” fentanyl using any of these modes, and the law permits a person to be found guilty
without unanimity regarding which mode the state proved, the prosecutor did not misstate
the law during closing argument. See Pendleton, 725 N.W.2d at 733. Therefore, we
conclude that the prosecutor’s statement was not error.
B. Fifty Grams
Ahmed argues the prosecutor misstated the law regarding the need for the state to
prove that Ahmed knew the conspiracy involved more than 50 grams of a mixture
containing fentanyl to prove count I (conspiracy). Specifically, he challenges the
statement: “I don’t need to prove that the defendant knew this conspiracy involved more
than fifty grams, just that there was a conspiracy to do so, and ultimately this conspiracy
involved more than fifty grams.”
Ahmed relies on our decision in State v. DeShay to argue this statement
misrepresented the law. See 645 N.W.2d 185 (Minn. App. 2002), aff’d, 669 N.W.2d 878
(Minn. 2003). There, we explained that to prove a conspiracy the state had to demonstrate
that the defendant “participated in an agreement to sell ten or more grams of cocaine within
a 90-day period.” Id. at 190-91. But in DeShay, we did not require proof that the defendant
knew the precise quantity of the drugs to participate in an agreement to sell them. To the
contrary, we determined the state presented sufficient evidence to prove that the defendant
conspired to sell 10 or more grams of cocaine because a “group was bringing substantial
quantities of cocaine and heroin to the Duluth area” and the defendant associated himself
with that group when he “participated in the sale of that cocaine and heroin.” Id. at 191.
18

Furthermore, in an earlier opinion, State v. Aviles-Alvarez , we stated that “[a] defendant
need not know the exact quantity of an illegal drug he sells to be guilty of the crime of
conspiring to sell methamphetamine in the first degree.” 561 N.W.2d 523 , 526 (Minn.
App. 1997), rev. denied (Minn. June 11, 1997).
Here, while there may be some question regarding precisely what the state must
prove to meet the quantity element, Aviles-Alvarez supports the prosecutor’s articulation
of the law during closing argument and DeShay does not discount it. Therefore, we do not
discern that the prosecutor plainly erred when he told the jury that count I (conspiracy) did
not require the state to prove “that the defendant knew this conspiracy involved more than
fifty grams.”
IV.
Next, Ahmed argues the district court erred when it imposed sentences for both
count I (c onspiracy) and count II (first- degree sale). He argues that it was unlawful to
impose two sentences because the two crimes arose from the same behavioral incident. See
Minn. Stat. § 609.035, subd. 1.
Under Minn. Stat. § 609.035, subd. 1, “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
offenses.” The statute prohibits “multiple sentences for crimes that arise from a single
behavioral incident.” State v. Bauer, 792 N.W.2d 825, 827 (Minn. 2011). The state bears
the burden to show by a preponderance of the evidence that multiple “offenses did not
occur as part of the same behavioral incident.” State v. Williams, 608 N.W.2d 837, 841
(Minn. 2000). The key factors in this determination are the extent to which the offenses
19

are joined in time, place, and criminal objective. Bauer, 792 N.W.2d at 828. Whether
multiple offenses occurred during “a single behavioral incident is a mixed question of law
and fact.” State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016). In reviewing the district
court’s decision, we review its “findings of fact for clear error and its application of the
law to those facts de novo.” Id.
We have previously concluded that a conspiracy to commit a controlled-substance
offense does not necessarily arise from the same behavioral incident as a related controlled-
substance offense. See State v. Heath, 685 N.W.2d 48, 61 (Minn. App. 2004), rev. denied
(Minn. Nov. 16, 2004). In Heath, law enforcement confiscated both methamphetamine
and materials consistent with producing methamphetamine from the defendant’s garage.
Id. The state charged the defendant with, and he was found guilty of, both conspiracy to
manufacture methamphetamine and the sale of methamphetamine. Id. at 55. The district
court imposed two sentences based on its finding that the conspiracy and the sale offenses
arose from separate behavioral incidents. Id. at 61. We affirmed, concluding the co-
conspirators had already agreed to and took an overt act toward possessing
methamphetamine before they actually “purchased, borrowed, or brought” the material to
make methamphetamine. Id. Therefore, the conspiracy “ took place before the second
behavioral incident in which methamphetamine was in their possession and was divided. ”
Id.
Likewise, in State v. Lucio, we addressed whether guilty pleas to first-degree sale
of a controlled substance and a conspiracy to commit the same offense arose from the same
behavioral incident. No. A11-1468, 2012 WL 2873981, at *1 (Minn. App. July 16,
20

2012).10 We determined that the record supported the district court’s decision to impose
two sentences, noting that the defendant agreed that he had paid money to transport
methamphetamine from Texas to Minnesota. Id. at *2. We concluded that the “conspiracy
was . . . committed when [the co-conspirators] agreed to transport the drugs from Texas to
Minnesota.” Id. As a result, the “behavioral incident giving rise to the conspiracy charge
. . . took place before the behavioral incident giving rise to the sale charge, and the offenses
[were] . . . divisible.” Id. (quotation omitted).
Here, we similarly conclude that the record reasonably supports the district court’s
finding that count I (conspiracy) and count II (first-degree sale) were not part of the same
behavioral incident. Based on the record, the district court found “the conspiracy started
well before . . . the sale” and that it “took place over a variety of locations rather than just
one.” To support this finding, the state produced evidence that Ahmed was in the Twin
Cities in the days before the search warrant and communicated with an associate about
contacting a supplier to access fentanyl pills. It was not until days later that law
enforcement found hundreds of pills in Ahmed’s apartment. Therefore, like in Heath and
Lucio, the evidence reasonably supports the district court’s determination that the offenses
were divisible.
For this reason, we conclude the district court did not abuse its discretion when it
sentenced Ahmed for both count I (conspiracy) and count II (first-degree sale).

10 We note this opinion is nonprecedential and, therefore, not binding. To the extent we
cite nonprecedential opinions, we do so only for their persuasive value. See Minn. R. Civ.
App. P. 136.01, subd. 1(c).
21

V.
Finally, Ahmed argues the district court erred when it entered convictions for both
count II (first-degree sale) and count III (second-degree possession) on the basis that
count III is an included offense of count II. We review this issue de novo. State v. Cox,
820 N.W.2d 540, 552 (Minn. 2012).
Under Minnesota law, a defendant “may be convicted of either the crime charged
or an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2020). An included
offense includes “a crime necessarily proved if the crime charged were proved.” Id.,
subd. 1(4). “If the lesser offense is a lesser degree of the same crime or a lesser degree of
a multi-tier statutory scheme dealing with a particular subject, then it is an ‘included
offense’ under [Minn. Stat. §] 609.04.” State v. Hackler, 532 N.W.2d 559, 559 (Minn.
1995).
The proper procedure for district courts “when the defendant is [found guilty] on
more than one charge for the same act is for the [district] court to adjudicate formally and
impose sentence on one count only,” retaining the guilty verdicts on the remaining charges
but not formally adjudicating them. State v. LaTourelle, 343 N.W.2d 277, 284 (Minn.
1984). “When [the] official judgment order states that a party has been convicted of or
sentenced for more than one included offense,” we reverse and remand with instructions
to vacate the erroneous conviction. State v. Pflepsen, 590 N.W.2d 759, 767 (Minn. 1999);
State v. Crockson, 854 N.W.2d 244, 248 (Minn. App. 2014), rev. denied (Minn. Dec. 16,
2014).
22

Here, count III—second-degree possession of a controlled substance under Minn.
Stat. § 152.022, subd. 2(a)(4))—is an included offense of count II—first-degree sale of a
controlled substance under Minn. Stat. § 152.021, subd. 1(4)—because “[b] oth offenses
arise under different sections of the same controlled-substance statute.” See State v.
Washington, No. A22-0037, 2023 WL 1097852, at *2 (Minn. App. Jan. 30, 2023); see also
State v. Lester, No. A17-1248, 2018 WL 3421264, at *4 (Minn. App. July 16, 2018)
(concluding second-degree sale of a controlled substance in a school zone is a lesser-
included offense for first-degree aggregated sale of a controlled substance), rev. denied
(Minn. Sept. 26, 2018). Thus, the conviction for count III (second-degree possession) was
a second conviction under a multi-tiered statutory scheme for acts committed during a
single behavioral incident.
11
Accordingly, we reverse and remand for the district court to vacate the conviction
for count III (second- degree possession)—retaining the guilty verdict on that charge
without formal adjudication—and to issue a new warrant of commitment consistent with
this opinion. See Pflepsen, 590 N.W.2d at 767.
Affirmed in part, reversed in part, and remanded.

11 The state does not dispute that both offenses arose from the same set of facts; the state
based both charges on the evidence it seized from Ahmed’s apartment and Ahmed’s
conduct “on or about” the day of the search. We also note that the district court did not
enter a sentence for Ahmed’s conviction for count III (second-degree possession) because
the state conceded the offense arose from the same behavioral incident as count II (first-
degree sale). See Minn. Stat. § 609.035.