Hennepin County District Court File No. 27-CR-10-52638
Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stoneburner, Presiding Judge; Connolly, Judge; and Larkin, Judge.
On appeal from his conviction of multiple counts of third, fourth, and fifth-degree criminal sexual conduct, appellant argues (1) the district court violated his right to a fair trial by failing to provide the jury with the legal definitions of "force, " "coercion, " and "intentionally, " which were essential to the jury's determination of whether the state had proven beyond a reasonable doubt the elements of the charged offenses; (2) the court violated his right to a fair trial by admitting expert-opinion testimony from a nonexpert police officer that rehabilitated one complainant's credibility; and (3) his convictions on counts two, three, four, and five must be vacated because he cannot have five convictions for one behavioral incident or act. Because appellant received a fair trial and because he failed to establish that his convictions should be vacated, we affirm.
Appellant Abdirahman Salah was a Somali cultural liaison for Burnsville Public Schools, assigned to help students and their families with school issues. He was charged with two counts of attempted third-degree criminal sexual conduct for attempting to use force or coercion to penetrate a child who is less than 18 years old, two counts of fourth-degree criminal sexual conduct for engaging in sexual contact with that person, and fifth-degree solicitation of a juvenile to possess marijuana. These charges were based on allegations made by R.M., a 16-year-old high school student, about appellant's conduct on April 26, 2010.
At appellant's jury trial, R.M. testified that on April 26, 2010 appellant approached her to ask whether she needed help with her classes. She responded that she did need help, and appellant told her he could help with her schoolwork. Later that afternoon, appellant took R.M. out of study hall and into his office. He told her that he individually tutored students at his home and could help her with math. Appellant told R.M. that he was available to help her after school that day, that they could work on her homework at his home, and that he would make sure she got home safely. When R.M. told appellant that she needed to let her mother know of her plans, he responded that the school would contact her mother.
When the school day ended, appellant called R.M.'s cell phone and told her to meet him at the transit station parking lot next to the school. She met him in the parking lot and got into his car. As they drove toward appellant's home, he informed R.M. that he had a class, but that she could stay at his apartment and wait for him. She indicated that she did not want to wait alone and asked to be dropped off at a friend's home. He took her to her friend's home and picked her up approximately two-and-a-half hours later.
When they arrived at appellant's apartment, R.M. took her schoolbag, but left her purse with her cell phone in the car. Upon entering the apartment, R.M. took out her homework and began asking appellant questions. But appellant began talking to R.M. about T.V. shows and adult movies; he asked R.M. if she had heard of a particular sex tape. Appellant began discussing marijuana and smoked marijuana in front of R.M. He offered her some marijuana, but she refused.
Appellant then went into the bathroom. R.M. remained on the couch. She was concerned about what was happening, but she did not have her cell phone with her and was unfamiliar with the area. When appellant returned from the bathroom, he was naked from the waist down. He asked R.M. if she had ever done oral sex; R.M. said no. He told her "a lot of people do it . . . I can teach you . . . ." Appellant then grabbed his penis and began pushing it against R.M., rubbing it up her shoulder, across her face and cheek, and trying to get it in her mouth. R.M. kept pushing appellant away, but he continued to touch her, lifting her shirt, touching her breasts, and trying to unhook her bra. She asked appellant to stop, which he did.
Appellant then put on loud music, came back to her and started rubbing his penis on her again. R.M. began to yell for him to leave her alone, and appellant told her the music was on so that no one could hear them. She became panicked and began to cry. Appellant told her that if she was "going to be a little girl, I'll stop." Finally, appellant got dressed and drove R.M. home. On the way to her house, appellant told ...