STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Nashir NMN Heydir,
Filed October 5, 1999
Hennepin County District Court
File No. 98015806
Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Lyonel Norris, Assistant Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)
Considered and decided by Short, Presiding Judge, Crippen, Judge, and Harten, Judge.
Appellant Nashir Heydir was found guilty of aiding and abetting the commission of criminal sexual conduct in the first degree, in the course of a group sexual assault. He challenges the sufficiency of evidence for the jury's verdict. We affirm.
Appellant and M.R. entered a stairwell adjacent to appellant's apartment, where they sat and talked. M.R. told appellant she was 17 years old. Appellant then began to touch M.R.'s chest, sliding his hand down her shirt. Feeling uncomfortable, she moved away.
At that point, a group of men came up the stairs. They did not reach the level where appellant and M.R. were sitting, but instead went through a door at the level of appellant's apartment. Appellant left M.R. and went down to that level. After a "little while," M.R. started down the stairs, trying to get back to appellant's apartment. But a man coming up the stairs asked her to perform oral sex. She refused. The man began pulling her back up the stairs. A second man joined him and they pulled M.R. up to a landing. Other men joined them, and they forced M.R. to perform oral sex on five men. A friend of appellant's, a man calling himself Jamal, then came up the stairs. He forced M.R. to perform oral sex for the sixth time. At this point, appellant finally reappeared in the stairwell. Appellant was in the stairway, "inches" from Jamal, as Jamal completed his assault on M.R.
After this assault in the stairwell, appellant took M.R. downstairs to his apartment and told people in the apartment to leave. M.R. testified that appellant then went into his bathroom, reappeared naked except for a condom, wrapped his legs around her, and tried to take off her clothes. She told him to stop and people began to pound on the apartment door.
Appellant got up, put a towel around himself, and opened the door. Meanwhile, M.R. went into the bathroom and vomited in the sink. As she tried to clean out the sink, men began to come into the bathroom. Once again, she was forced to perform oral sex, this time on at least four other men. Appellant was never in the bathroom as this second attack took place, but he was in the apartment when police arrived and put an end to the assault. The police cleared out the apartment, cited M.R. for being out after curfew, and took her to the police station.
The next day, appellant was arrested and charged. He was subsequently acquitted on an accusation of attempted third degree sexual conduct but was convicted on a count of aiding and abetting the commission of criminal sexual conduct in the first degree.
At trial, there was no testimony that appellant ever forced M.R. to perform oral sex. But to convict a defendant of aiding and abetting, the state need not prove that the defendant actively participated in the overt act that constitutes the primary offense. State v. Pierson, 530 N.W.2d 784, 788 (Minn. 1995). Minnesota law provides that
[a] person is criminally liable for a crime committed by another 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 (1998).
Appellant argues that the evidence is insufficient to properly prove that he directly aided any of the perpetrators of the crime. He argues that his conviction rests only on his presence at the crime scene and his failure to stop the attack, and that such passive acquiescence, along with the fact that he knew some of those involved in the assault, is not enough to sustain the conviction. See State v. Dominguez-Ramierez, 563 N.W.2d 245, 257 (Minn. 1997) (noting that the state must do more than prove passive acquiescence in the principal act). In the circumstances of this case, there was adequate evidence permitting the jury to find that appellant played a knowing role that actively aided the attackers. See Pierson, 530 N.W.2d at 788 (stating that a jury may infer the requisite mens rea for an aiding and abetting conviction when the defendant "plays some knowing role in the commission of the crime and takes no steps to thwart its completion").
The record contains evidence indicating that appellant brought M.R. to the crime scene; that the first attack occurred near his apartment; that the second attack occurred in his apartment; that appellant was nearby when both attacks occurred and, given that M.R. cried out during the attacks, had ample reason to know that the attacks were occurring; that appellant knew at least one of the men involved in the first assault and was "inches" from him as he completed his assault on M.R; that appellant opened his door to the second set of attackers; and that two of the suspects in the second assault were signed into the apartment building as appellant's guests. See id. (noting that an aiding and abetting conviction may be supported by defendant's presence at the crime scene and association with the principals).
Moreover, although appellant took M.R. away from the site of the first attack, the record does not contain evidence indicating that appellant affirmatively attempted to stop either assault or that he expressed any outrage or surprise when he learned what happened to M.R. See Dominguez-Ramierez, 563 N.W.2d at 257-58 (stating that lack of objection or surprise may support an aiding and abetting conviction). In addition, appellant's behavior towards M.R. during the interval between the attacksattempting to have sex with her instead of helping her get medical or police assistancesuggests more than passive acquiescence to occurrence of the assaults. See State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981) (criminal intent may be inferred from a defendant's conduct before and after an offense).
Appellant also argues that the state failed to show any evidence of a conspiracy to commit sexual assault. But the state did not have to show the presence of a conspiracy in order to get a conviction under Minn. Stat. § 609.05, subd. 1. The state needed only to show that appellant intentionally aided, advised, hired, counseled, or conspired with others. Id.