This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1776

 

 

State of Minnesota,

Respondent,

 

vs.

 

Haibe Mohamud Egal,

Appellant.

 

 

Filed November 7, 2006

Affirmed in part, reversed in part, and remanded

Lansing, Judge

 

Hennepin County District Court

File No. 04046759

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John Stuart, State Public Defender, Jane E. Rydholm, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            A jury convicted Haibe Egal of first-degree aggravated robbery and first-degree assault.  In this appeal, Egal challenges his conviction on four grounds.  First, Egal claims that due process required the identification evidence to be suppressed.  Second, he argues that the jury instruction on the loss of a tooth misstated the law.  Third, he claims he was entitled to jury instructions on the lesser-included offenses of simple robbery and third-degree assault.  Fourth, Egal argues that the victim’s testimony was too inconsistent and uncorroborated to support the conviction.  We affirm in part, reverse in part, and remand.

F A C T S

            Farah Yusuf reported to Minneapolis police that he had been attacked by two men after they drove him from a Minneapolis bar to his apartment.  Yusuf said that he went to the Red Sea bar sometime after 11 p.m. on March 23, 2004, and met an acquaintance, Hussein Hassan.  A third Somali man, known as “Absher Olad,” joined them at a table.  Yusuf had known Absher Olad for about a year and a half.  He saw Olad a couple of times a month at various Somali restaurants and meeting places.  While at the bar, Yusuf bought one beer each for himself, Hassan, and Olad.

            Yusuf agreed that the two men could come with him to his apartment, where he had more beer.  Olad drove his vehicle, a red truck with two doors.  Yusuf sat in the front passenger seat, and Hassan sat behind him.  When they parked outside the apartment, Yusuf had second thoughts.  He explained that it was late, he was tired, and he did not have much beer.

            According to Yusuf, Hassan suddenly gestured to Olad and grabbed Yusuf’s neck.  Olad punched Yusuf four to five times in the face.  Yusuf touched his mouth and realized he was missing teeth.  Olad searched Yusuf and took Yusuf’s cell phone, his shoes, six dollars from his pocket, and his wallet, which contained twenty dollars.  Yusuf got out of the truck, and Olad and Hassan drove away.  Yusuf was bleeding and holding two teeth in his hand.

            Yusuf waved down a passing police officer and reported the incident.  Yusuf identified Hussein Hassan and Absher Olad as the assailants.  He said Olad was driving a red Ford Explorer.  In addition, Yusuf stated that he suspected a third man, Ali Hassan, of planning the attack.

            After reporting the incident, Yusuf went to the Hennepin County Medical Center and was treated by an emergency-room physician.  The emergency-room physician found that two of Yusuf’s teeth had been knocked out and others were loose. 

            A sergeant of the Minneapolis Police Department interviewed Yusuf on April 1, 2004.  The sergeant was unable to find a picture or any other record of “Absher Olad.”  Later in April, Yusuf reported that he had seen Olad’s vehicle and provided a license-plate number (“MBM 502”).  The license was registered to a Honda Civic.  The sergeant notified Yusuf that the license plate did not match the red Ford Explorer he had described.  Then, on June 1, Yusuf reported that he had seen Olad’s vehicle again and provided a license-plate number (“MBB 502”) that was one letter different.

            This license plate matched a red Mazda Navajo owned by the appellant, Haibe Mohamud Egal.  The sergeant learned that a Mazda Navajo is just a rebadged Ford Explorer.  Nine days later, on June 10, Yusuf called again and told the sergeant that Absher Olad’s real name was Haibe Egal.

            On that same day, the sergeant met with Yusuf to verify the assailant’s identity.  The sergeant had previously attempted to compile a six-photo lineup with Egal’s picture.  Although a computer provided 800 photos of people with similar features, the sergeant could not find enough pictures of men of Somali descent.  Instead of using a lineup, he showed Yusuf a single photo of Egal.  Yusuf identified the man in the photo as his attacker, Absher Olad.  Yusuf was certain about the identification.

            The defense made a pretrial motion to suppress the identification evidence.  But the district court admitted testimony about the pretrial identification and allowed an in-court identification of Egal.  During the trial, Haibe Egal acknowledged that he uses the name “Absher Olad.”  But Egal denied going to the Red Sea bar that night and denied any involvement in the incident.

            At the close of testimony, the state requested an instruction that the “loss of a tooth is a permanent loss of function of a bodily member for purposes of the [a]ssault [s]tatute.”  The district court relied on this court’s decision in State v. Bridgeforth, 357 N.W.2d 393 (Minn. App. 1984) and gave the instruction.

            Egal requested that the jury receive instructions on the lesser-included offenses of simple robbery and third-degree assault.  The state opposed the request.  It argued in part that, under Bridgeforth, the record provided no basis to acquit Egal of the greater charge while convicting of the lesser charge.  The district court refused to give the instructions, saying that it had “determined that there is not a basis upon which to submit those lesser included offenses.”

            The jury convicted Egal of first-degree aggravated robbery and first-degree assault.  Following the convictions, the Minnesota Supreme Court, in State v. Moore, 699 N.W.2d 733 (Minn. 2005), limited the Bridgeforth decision and held that a jury must decide whether the loss of a tooth constitutes great bodily harm.  Egal appeals his conviction.

D E C I S I O N

I

            Identification evidence must be excluded if the procedure used was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”  Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968).  Minnesota courts analyze this due process standard using a two-part test.  State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).  The first inquiry asks whether the procedure was unnecessarily suggestive.  Id.  If so, the second inquiry asks whether the identification was reliable under the totality of the circumstances.  State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).  Finally, a new trial is not required if the tainted identification evidence is harmless beyond a reasonable doubt.  State v. Jones, 556 N.W.2d 903, 913 (Minn. 1996).

            Whether an identification procedure is unnecessarily suggestive depends in part on whether it unfairly singles out the defendant for identification.  Ostrem, 535 N.W.2d at 921.  Single-photo identification procedures have been widely condemned.  Id.  But a one-person show-up is not unnecessarily suggestive per se.  Taylor, 594 N.W.2d at 161-62.  “[T]he concern is whether the procedure used by the police influenced the witness identification of the defendant.”  Id. at 161.

            The identification evidence in this case may have been more suggestive than necessary.  The computer provided about 800 photos of people with similar features.  The sergeant could have included non-Somalis in a photo array or he could have found other photos of Somalis.  But even if we conclude that the procedure was unnecessarily suggestive, Egal has not met the standard for exclusion of the identification evidence because the procedure was nonetheless reliable under the totality of the circumstances.

            In determining whether the identification evidence was reliable under the totality of the circumstances, Minnesota courts consider five factors:  (1) the witness’s opportunity to view the person when the crime occurred, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description of the criminal, (4) the level of certainty the witness demonstrated when identifying the person, and (5) the time elapsed between the crime and the identification.  Ostrem, 535 N.W.2d at 921. 

            In this case, each factor supports the conclusion that the identification evidence was reliable under the totality of the circumstances.  Yusuf had known Egal for about a year and a half.  He had spent time at the bar with him on the night of the assault and there is no indication that Yusuf was not paying attention.  Although Yusuf’s initial description of the vehicle was not entirely accurate, it was quite close.  Yusuf described the Mazda Navajo as a Ford Explorer, but a Navajo is a rebadged Ford Explorer.  The first license-plate number he gave had only one wrong letter.  More importantly, Yusuf described his assailant as “Absher Olad” and Egal admitted using that name.  When the sergeant showed Yusuf a picture of Egal, Yusuf was sure that it was a picture of the man who attacked him.  Although Yusuf made the identification seventy-eight days after the attack, this was not too long when considered in light of the seriousness of the attack and Yusuf’s familiarity with his assailant.  We therefore conclude that the identification evidence was reliable under the totality of the circumstances and was properly admitted.

II

            We review jury instructions “in their entirety to determine whether they fairly and adequately explain the law of the case.”  State v. Peterson, 673 N.W.2d 482, 486 (Minn. 2004).  “A jury instruction is erroneous if it materially misstates the law.”  State v. Goodloe, 718 N.W.2d 413, 421 (Minn. 2006).  In criminal cases, an instruction cannot remove an element of a crime from the jury’s consideration.  State v. Moore, 699 N.W.2d 733, 737 (Minn. 2005). 

            The Minnesota Supreme Court’s 2005 decision in Moore has two key holdings.  First, Moore held that, in a first-degree assault case, a jury instruction that “the loss of a tooth is a permanent loss of the function of a bodily member” is erroneous, because it removes the question of whether the loss of a tooth is “great bodily harm” from the jury’s consideration.  Id. at 737.  The court explained that State v. Bridgeforth, 357 N.W.2d 393 (Minn. App. 1984), merely stands for the proposition that the loss of a tooth provides a sufficient factual basis for a plea of guilty to first-degree assault.  Moore, 699 N.W.2d at 737.  Second, the court held that harmless-error analysis is not applicable when a jury instruction deprives the defendant of the right to have the jury determine that every element of the charged offense has been established.  Id.at738.

            Both the state and Egal submit that, under Moore, the first-degree assault conviction should be reversed.  We agree.  The district court instructed the jury that the loss of a tooth “is a permanent loss of function of a bodily member for purposes of the assault statute.”  This instruction is indistinguishable from the instruction in Moore and the assault conviction is reversed.

            Mooredoes not, however, require reversal of the aggravated-robbery conviction.  A person can be convicted of first-degree aggravated robbery if he “while committing a robbery . . . inflicts bodily harm upon another.”  Minn. Stat. § 609.245, subd. 1 (2002).  But the district court explicitly limited its loss-of-tooth instruction as an instruction for the purposes of the assault statute.  Read in their entirety, the jury instructions required the jury to determine whether Egal committed aggravated robbery without applying the district court’s directive on “great bodily harm.”  The jury instructions required an independent determination of whether Egal caused “bodily harm.”  Therefore, the loss-of-tooth instruction did not direct a verdict on an element of the aggravated-robbery charge.

III

            We review the denial of a lesser-included-offense instruction under an abuse-of-discretion standard.  State v. Dahlin, 695 N.W.2d 588, 597 (Minn. 2005).  But “where the evidence warrants a requested lesser-included-offense instruction, the district court mustgive it.”  State v. Hannon, 703 N.W.2d 498, 509 (Minn. 2005).  A lesser-included-offense instruction is warranted if (1) the lesser offense is included in the higher charge, (2) the evidence provides a rational basis for acquitting the defendant of the offense charged, and (3) the evidence provides a rational basis for convicting the defendant of the lesser-included offense.  Dahlin, 695 N.W.2d at 595.  When deciding whether a lesser-included-offense instruction is warranted, district courts cannot weigh the evidence or make witness credibility determinations.  Hannon, 703 N.W.2d. at 510.  We review the record in “the light most favorable” to the requesting party to determine whether the district court abused its discretion in refusing the instruction.  Id.

            Egal requested lesser-included-offense instructions for third-degree assault and simple robbery.  Simple robbery is indisputably a lesser-included offense of first-degree aggravated robbery.  See State v. Oksanen, 276 Minn. 103, 106, 149 N.W.2d 27, 29-30 (1967).  The issue is whether the second and third prongs of the lesser-included standard are satisfied.  If the jury believed Yusuf’s testimony that Egal robbed him, it would be beyond the bounds of reasonable possibility that the jurors would not believe Yusuf’s testimony about the bleeding and lost teeth.  Hence, if the jury could convict Egal of simple robbery, it could also convict him of first-degree aggravated robbery.  See Minn. Stat. § 609.245, subd. 1 (2002) (permitting first-degree aggravated robbery conviction if a person, while committing simple robbery, inflicts bodily harm upon another).  Although Dahlin forbids district courts from making credibility determinations, it does not require district courts to speculate about which parts of a witness’s testimony a jury might believe.  See State v. Johnson, 719 N.W.2d 619, 633 n.5 (Minn. 2006) (Anderson, Paul H., J., dissenting) (noting that Dahlin “does not require a judge to accept a version of the facts that stretches credulity to the limits”).  The evidence did not provide a rational basis for acquitting on the first-degree aggravated-robbery charge, and a simple-robbery instruction was not required.

Because we are reversing the first-degree assault conviction, we do not reach the issue of whether a third-degree assault charge was warranted.  Nonetheless, we note that if Egal is retried on this charge, a lesser-included-offense instruction may be warranted, consistent with the Mooredecision, to permit the jury to determine whether the alleged conduct caused “great bodily harm” or “substantial bodily harm.”

IV

            In considering a claim of insufficient evidence, our review is “limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.”  State v. Fields, 679 N.W.2d 341, 348 (Minn. 2004) (quotation omitted).  “We must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary.”  State v. Taylor, 650 N.W.2d 190, 206 (Minn. 2002).

            Egal argues that State v. Langteau, 268 N.W.2d 76 (Minn. 1978), requires us to conclude that the evidence is insufficient to establish his guilt.  In Langteau, the supreme court concluded that the uncorroborated testimony of the victim was questionable and unexplained.  Id. at 77.  As a result, the supreme court reversed the conviction “in the interests of justice.”  Id. 

            Even if Yusuf’s reports of the incident were inconsistent over time, Langteau does not require reversal.  Although Yusuf initially identified his assailant as “Absher Olad,” that name was the defendant’s alias.  Similarly, Yusuf provided a different license-plate number after he obtained more accurate information.  The other inconsistencies in Yusuf’s statements stemmed from the police officer’s understanding that Yusuf said he had been attacked by all three men on the sidewalk and they took sixty dollars from his pocket.  Yusuf denied telling the officer that he was attacked on the sidewalk.  In subsequent interviews, and at trial, Yusuf said he was attacked in the truck by only two men.  At trial, Yusuf said the men took six dollars from his pocket.  English is not Yusuf’s first language and he has difficulty with some English words.  Viewing the evidence in the light most favorable to the conviction, we conclude that the jury could have attributed any inconsistencies to language difficulties or to shock from the assault.  The evidence is otherwise sufficient to support the jury’s verdicts and the first-degree aggravated-robbery conviction is affirmed.

            Affirmed in part, reversed in part, and remanded.