Hennepin County District Court File No. 27-CR-11-24449
Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, Minnesota (for respondent).
David W. Merchant, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant State Public Defender, St. Paul, Minnesota (for appellant).
Considered and decided by Chutich, Presiding Judge; Peterson, Judge; and Ross, Judge.
Four men shoved a disoriented 82-year-old man suffering from Alzheimer's disease into a wall and stole $800 from his billfold. Witnesses identified Sadik Ahmed Hussein, who was charged with and found guilty of aiding and abetting first-degree aggravated robbery. Hussein appeals from his conviction and sentence, arguing that the eyewitness testimony was insufficient to prove him guilty, that the district court failed to properly instruct the jury on the aggravated sentencing factors, and that the evidence does not establish particular vulnerability as a valid sentence-enhancement factor. The evidence of Hussein's guilt was abundant and the district court did not plainly err in its instructions to the jury on the sentencing findings. But we reverse in part and remand for resentencing because it is undisputed that the jury's particular-vulnerability finding lacks an essential element to support the upward sentencing departure.
One evening in July 2011, 82-year-old R.B. wandered from his son's southeast Minneapolis home and became disoriented. His son noticed that R.B. was missing, and he left the house searching for him. During the search, R.B. used a cellular telephone and called his son's house several times, leaving voicemail messages saying he was lost. Accented voices were in the background of R.B.'s voicemail messages.
R.B.'s son finally found R.B., wounded and being treated in an ambulance at 24th Avenue South and 9th Street. His head was bleeding. A witness told police that he had seen R.B. walking down the sidewalk and four young men of Somali appearance approach him, shove him into rocks and a retaining wall, and dig into his pockets. He also told police that he got a good look at the primary aggressor, who was wearing a red shirt and blue jeans, and that he followed the attackers for a longer look. He estimated that the man and his companions were about 18 to 20 years old. R.B. told police that the men took his wallet, which contained $800 in cash. Police found the wallet nearby, but the cash was gone.
Police investigated and learned of a connection between one of the attackers and R.B.'s voicemail messages on his son's home phone: R.B. had made the calls from a cellular telephone that had a number belonging to Hussein. Police developed a photographic array that included Hussein. They showed the array to the witness who had described the attackers, and he immediately recognized and positively identified Hussein as the primary aggressor. R.B.'s son explained that R.B. could have made the telephone calls to the house for help only after he opened his wallet because his memory loss left him needing help to remember the house phone number, which he kept on a card in his wallet.
The state charged Hussein with aiding and abetting first-degree aggravated robbery under Minnesota Statutes sections 609.245, subdivision 1, and 609.05 (2010). The trial evidence showed that Hussein was 38 years old at the time of the robbery. The identifying witness told the jury that he was "100 percent" certain that Hussein was one of the robbers. The district court instructed the jury that Hussein was presumed innocent and that the state had to prove each element of the charged offense beyond a reasonable doubt. It added that the presumption of innocence applied "unless and until the jury determines Defendant has been proved guilty beyond a reasonable doubt."
After closing arguments and immediately before instructing the jury to begin deliberations, the district court instructed the jury that its verdict had to be unanimous, saying also, "[I]f you find the defendant guilty, we're going to ask you to determine any additional aggravating factors. We will put those questions to you when you return with your verdict."
The jury found Hussein guilty. After it returned the guilty verdict, the district court instructed it to consider two additional questions as to whether R.B. was "particularly vulnerable due to his reduced physical and mental capacity" and whether Hussein committed the crime "as part of a group of three or more individuals." The court did not give any new instructions or repeat its initial instructions. When the jurors expressed confusion about whether the requirement for a unanimous verdict continued to apply, the ...