Opinion
A24-0037
12-09-2024
State of Minnesota, Respondent, v. Mohamed Abdulgani Ahmed, Appellant.
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)
This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
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.
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 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). The case proceeded to a jury trial. Three lawenforcement officials with the Pine to Prairie Drug Task Force testified, including two police officers from the East Grand Forks Police Department. Two forensic scientists with the Bureau of Criminal Apprehension (BCA) also testified.
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.
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.
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 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." 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 testified that it is common for people to melt fentanyl pills on tinfoil before smoking them.
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. Law enforcement also obtained text messages from Ahmed's phone that suggested Ahmed had been in the Twin Cities in the days prior to the search.
The state offered a recording of Ahmed's custodial interview to corroborate law enforcement's testimony.
The state offered the text messages as exhibits at trial.
Law enforcement testified that most of the fentanyl in East Grand Forks comes from the Twin Cities.
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 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 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.
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 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, 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).
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).
"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: (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 incustody 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.
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.
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). "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).
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).
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 aiding-and-abetting theory of liability, 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.
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).
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.
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 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 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.
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 (conspiracy) 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 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 coconspirators 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, 2012). 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).
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).
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).
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).
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.
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.
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.