This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Abubaker Eldaw Ahmed,



Filed September 19, 2006


Ross, Judge


Clay County District Court

File No. K6-04-1440



Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Kenneth Kohler, Clay County Attorney, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56560-2069 (for respondent)


John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414-3097 (for appellant).


            Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.


U N P U B L I S H E D   O P I N I O N


ROSS, Judge

In this appeal from a conviction of third-degree criminal sexual conduct, appellant Abubaker Eldaw Ahmed argues that the prosecutor committed prejudicial misconduct by shifting the burden of proof to the defense.  Because we conclude that the prosecutor did not shift the burden of proof and committed no misconduct, we affirm.


Late evening on July 22, 2004, Abubaker Eldaw Ahmed went to a neighbor’s party at which D.B. was a guest.  Several attendees were consuming alcohol, including D.B.  At some point in the early morning hours, Ahmed, D.B., and others ended up at Ahmed’s apartment, and D.B. fell asleep in Ahmed’s room.  By then, D.B. was extremely intoxicated.  D.B. awoke and found Ahmed having sex with her.  She ran out of the room.

The state charged Ahmed with first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(e)(ii) (2002), and third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(d) (2002).  At trial, the state offered DNA evidence establishing that Ahmed had sexual intercourse with D.B.  D.B. testified that she was intoxicated and that she therefore remembered little of the night’s details, but she described the assault.  Ahmed did not testify.

During closing argument, Ahmed’s trial counsel suggested to the jury that D.B. might have consented to intercourse with Ahmed but not remembered consenting because she was intoxicated.  He also argued that D.B. might have fabricated the assault because she was embarrassed.

The prosecutor countered on rebuttal:

Ladies and gentlemen, there is absolutely no evidence that was offered to you that the defendant had consensual sex with [D.B.], absolutely none.  That is purely argument, that is not evidence.  That is what the defense is arguing to you, but you need to consider the evidence that was presented . . . .


Ahmed requested surrebuttal, arguing that the prosecutor’s comment improperly shifted the burden of proof to Ahmed.  The district court denied Ahmed’s request, and the jury acquitted Ahmed of first-degree criminal sexual conduct but found him guilty of third-degree criminal sexual conduct.  The district court imposed a 48-month sentence, with 32 months’ incarceration and 16 months’ supervised release


Ahmed argues that the prosecutor committed prejudicial misconduct by shifting the burden of proof in her closing argument.  When reviewing a claim of prosecutorial misconduct occurring during closing argument, we consider the argument “as a whole rather than focus[ing] on particular phrases or remarks.”  State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000) (quotation omitted).  We will reverse only if the misconduct was so serious and prejudicial that it impaired the defendant’s right to a fair trial.  Id. at 727–28.  We will not reverse a conviction if the misconduct is “harmless beyond a reasonable doubt.”  Ture v. State, 681 N.W.2d 9, 19 (Minn. 2004). 

A prosecutor has considerable latitude during closing argument and has “the right to present to the jury all legitimate arguments on the evidence, to analyze and explain the evidence, and to present all proper inferences to be drawn therefrom.”  State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996).  While a prosecutor may not comment on a defendant’s failure to present evidence or call a witness, it is not misconduct to attack the merits of a particular defense or argument or to highlight the lack of evidence supporting the defendant’s theory.  State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993) (stating that prosecution may highlight evidentiary gaps in defendant’s theory of the case).  A prosecutor’s argument that there is no evidence supporting a defendant’s rebuttal theory does not necessarily shift the burden of proof to the defendant.  State v. Race, 383 N.W.2d 656, 664 (Minn. 1986).  Rather, it may be a permissible challenge to the quality of the theory.  Id.

Ahmed severs one line of the prosecutor’s argument from its context and advises this court that the prosecutor told the jury, “There is absolutely no evidence that was offered to you that the defendant had consensual sex with [D.B.], absolutely none.”  Considered in the manner that Ahmed presents it—in isolation—this single sentence would tend to support Ahmed’s argument.  But considered appropriately in the relevant context in which the prosecutor made the statement, it is a valid challenge to his counsel’s contention to the jury.  The prosecutor’s comment highlights the lack of evidence supporting Ahmed’s argument that D.B. might have consented to intercourse.  The prosecutor also emphasized the district court’s instruction that the jury must render its verdict based only on the evidence presented and not on the arguments made by the parties.  The argument, as a whole, was not improper.

The prosecutor’s comment did not shift the burden of proof to Ahmed and is a permissible argument attacking the merits of Ahmed’s defense theory.  We conclude that the prosecutor did not commit misconduct.