                            This opinion will be unpublished and
                            may not be cited except as provided by
                            Minn. Stat. § 480A.08, subd. 3 (2014).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A15-1191

                                      State of Minnesota,
                                          Respondent,

                                               vs.

                                    Yahye Elmi Abdisalan,
                                         Appellant.

                                  Filed November 28, 2016
                                          Affirmed
                                       Peterson, Judge

                                Hennepin County District Court
                                   File No. 27-CR-12-7607

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Bratvold, Presiding Judge; Peterson, Judge; and Hooten,

Judge.

                           UNPUBLISHED OPINION

PETERSON, Judge

         In this appeal following a trial to the court, appellant argues that (1) his conviction

of first-degree burglary must be reversed because the evidence was insufficient to show
that he committed an assault within the building, and (2) his conviction of fourth-degree

criminal sexual conduct must be reversed because the evidence was insufficient to show

that the sexual contact was accomplished by force or coercion. We affirm.

                                           FACTS

         I.H., who was 17 years old, and her sister S.H., who was 15 years old, shared a

bedroom on the second floor of their family’s apartment in Minneapolis. Early on a

December morning, I.H. awoke when she felt someone touching her thighs. There was

light coming in from the street, and I.H. could see a man with a beard. The man spoke in

Somali and English,1 and he told I.H. that he was her brother’s friend, but she knew that

was not true. The man then touched I.H.’s breasts over her clothing and made statements

that indicated that he wanted to have sex with her. To dissuade the man from further

actions, I.H. acted “like maybe something was wrong with me mentally [so] that he would

just leave me alone.” Her strategy worked; the man pulled down his pants, exposed

himself, and then went and sat on her sister’s bed. While the man was preoccupied with

her sister, I.H. sneaked out of the room to get help.

         S.H. awoke when she heard a man’s voice in the bedroom. The man sat at the foot

of her bed. He pulled the sheets off her, touched her leg, and took off her underwear. S.H.

testified that she “tried to hold [her] legs tight, but he is too strong and he eventually takes

them off.” The man then touched her vagina with his hand and his mouth, and she “was




1
    I.H. understood both Somali and English.

                                               2
scared and terrified for [her] life.” During the assault, S.H. “begged him to stop but he

wouldn’t.”

       Meanwhile, I.H. went to her parents’ bedroom, but, because she was “wasn’t able

to breathe,” she could not tell them about the intruder. I.H.’s mother initially thought that

I.H. was having an allergic reaction, and she went into her daughters’ bedroom to look for

medicine. She and her husband became aware of the intruder when I.H. was able to say

the word “man” in Somali. The man ran out of the apartment as the girls’ mother

approached their bedroom, and he left behind a ski mask and pair of gloves.

       Using physical evidence from the apartment, police linked appellant Yahye Elmi

Abdisalan to the offenses, and he was charged by indictment with first-degree burglary,

and first- and second-degree criminal sexual conduct. At Abdisalan’s bench trial, the state

introduced DNA evidence that linked Abdisalan to the hat and gloves left at the scene and

to S.H. There was also evidence that Abdisalan’s fingerprints, which include a distinctive

mark from a scar, matched prints found at the apartment.

       The district court found Abdisalan guilty of first-degree burglary. But, because the

district court found that the evidence was insufficient to prove that I.H. and S.H. were in

“reasonable fear of imminent great bodily harm,” it found Abdisalan not guilty of first- and

second-degree criminal sexual conduct. Instead, the district court found Abdisalan guilty

of the lesser included offenses of third-degree criminal sexual conduct, for the offense

against S.H., and fourth-degree criminal sexual conduct, for the offense against I.H. The

district court sentenced Abdisalan as an engrained offender under Minn. Stat. § 609.3455,

subd. 3a (2008), and imposed an executed sentence of 88 months for the burglary offense,


                                             3
and sentences of 120 months and 180 months for the criminal-sexual-conduct offenses.

The sentences for the sex offenses were ordered to be served concurrent to each other and

consecutive to the sentence for the burglary offense. Abdisalan appeals, challenging the

sufficiency of the evidence to support his convictions.

                                     DECISION

       In reviewing a challenge to the sufficiency of the evidence, an appellate court

“review[s] the evidence to determine whether, given the facts in the record and the

legitimate inferences that can be drawn from those facts, [the fact-finder] could reasonably

conclude that the defendant was guilty of the offense[s] charged.” State v. Robertson, 884

N.W.2d 864, 871 (Minn. 2016) (quotation omitted); see State v. Palmer, 803 N.W.2d 727,

733 (Minn. 2011) (stating that same standard of review applies in bench trials and in jury

trials when evaluating sufficiency of the evidence). This court will not overturn a guilty

verdict “if the [fact-finder], acting with due regard for the presumption of innocence and

the requirement of proof beyond a reasonable doubt, could have reasonably concluded that

the defendant was guilty of the charged offense.” State v. Crockson, 854 N.W.2d 244, 247

(Minn. App. 2014), review denied (Minn. Dec. 16, 2014). This court “defer[s] to the fact-

finder’s credibility determinations and assume[s] that the fact-finder disbelieved any

evidence that conflicted with the verdict.” State v. Barshaw, 879 N.W.2d 356, 366 (Minn.

2016) (quotation omitted).




                                             4
                                              I.

       Appellant argues that the evidence of first-degree burglary was insufficient because

it did not prove that he committed an assault within the building. First-degree burglary is

defined as follows:

                      Whoever enters a building without consent and with
              intent to commit a crime, or enters a building without consent
              and commits a crime while in the building, either directly or as
              an accomplice, commits burglary in the first degree . . ., if . . .
              the burglar assaults a person within the building or on the
              building’s appurtenant property.

Minn. Stat. § 609.582, subd. 1(c) (2008). “Assault” is defined as: “(1) an act done with

intent to cause fear in another of immediate bodily harm or death; or (2) the intentional

infliction of or attempt to inflict bodily harm upon another.” Minn. Stat. § 609.02, subd.

10 (2008); see State v. Holmes, 778 N.W.2d 336, 341 (Minn. 2010) (approving application

of assault definition under Minn. Stat. § 609.02, subd. 10, for first-degree burglary offense

charged under Minn. Stat. § 609.582, subd. 1(c)). “Bodily harm” is defined as “physical

pain or injury, illness, or any impairment of physical condition.” Minn. Stat. § 609.02,

subd. 7 (2008). “‛With intent’ to . . . means that the actor either has a purpose to do the

thing or cause the result specified or believes that the act, if successful, will cause that

result.” Minn. Stat. § 609.02, subd. 9(4) (2008).

       Appellant argues that neither fear assault nor harm assault was proved beyond a

reasonable doubt. The district court concluded that, because appellant committed sexual

assaults within the premises, he was guilty of first-degree burglary. The district court did

not make a factual finding about appellant’s intent. But, under Minn. R. Crim. P. 26.01,



                                              5
subd. 2(e), in a case tried without a jury, “[i]f the court omits a finding on any issue of fact

essential to sustain the general finding [of guilty], it must be deemed to have made a finding

consistent with the general finding.” See also State v. Holliday, 745 N.W.2d 556, 562-63

(Minn. 2008) (stating that district court is “deemed to have made a specific finding of

premeditation in light of its conclusion of law that appellant acted with premeditation and

its general finding that appellant is guilty of first-degree premeditated murder”). Therefore,

because the district court made a general finding that appellant was guilty of first-degree

burglary, the court must be deemed to have made a finding that appellant (1) acted with

intent to cause fear of immediate bodily harm or death or (2) intentionally inflicted or

attempted to inflict bodily harm.

       We agree with appellant that the evidence was insufficient to prove that he

intentionally inflicted or attempted to inflict any physical pain or injury, illness, or any

impairment of physical condition on either victim. Both I.H. and S.H. testified that they

did not suffer any physical injury. But we do not agree that the evidence was insufficient

to prove that appellant acted with intent to cause fear of immediate physical pain or injury.

       Because intent is a state of mind, it is generally proved circumstantially “by drawing

inferences from the defendant’s words and actions in light of the totality of the

circumstances.” State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997). A fact-finder “may

infer that a person intends the natural and probable consequences of his actions and a

defendant’s statements as to his intentions are not binding on the [fact-finder] if his acts

demonstrated a contrary intent.” Id.




                                               6
       We apply an elevated, two-step process in reviewing a conviction based on

circumstantial evidence. State v. Nelson, 812 N.W.2d 184, 188 (Minn. App. 2012). “The

first step is to identify the circumstances proved.” State v. Silvernail, 831 N.W.2d 594,

598 (Minn. 2013). In doing so, we “defer to the [fact-finder’s] acceptance of the proof of

these circumstances and rejection of evidence in the record that conflicted with the

circumstances proved by the State.” Id. at 598-99 (quotation omitted). Second, we

“examine independently the reasonableness of all inferences that might be drawn from the

circumstances proved” to “determine whether the circumstances proved are consistent with

guilt and inconsistent with any rational hypothesis other than guilt, not simply whether the

inferences that point to guilt are reasonable.” Id. at 599 (quotations omitted). “We give

no deference to the factfinder’s choice between reasonable inferences.” Id. (quotation

omitted).

       The circumstances proved are that appellant entered the bedroom of two teenage

girls who did not know him while the girls slept. He woke one of the girls by touching her

thighs and then touched her breasts, expressed his desire to have sex with her, and exposed

himself to her. He then went to the other girl’s bed, touched her leg, removed her

underwear, and molested her while she begged him to stop. Under these circumstances, a

natural and probable consequence of appellant’s actions was to cause both girls to fear

immediate physical pain or injury, and the hypothesis that appellant did not believe that his

actions would cause such fear is not rational. The evidence of fear assault was sufficient

to permit the district court to reasonably conclude that appellant was guilty of first-degree

burglary.


                                             7
                                             II.

       Appellant next argues that because respondent “failed to prove beyond a reasonable

doubt that [a]ppellant used force or coercion to accomplish the sexual contact of I.H., his

conviction for fourth-degree criminal sexual conduct must be reversed.” Fourth-degree

criminal sexual conduct is committed if “[a] person . . . engages in sexual contact with

another person” and “the actor uses force or coercion to accomplish the sexual contact.”

Minn. Stat. § 609.345, subd. 1(c) (2008).

                     “Coercion” means the use by the actor of words or
              circumstances that cause the complainant reasonably to fear
              that the actor will inflict bodily harm on the complainant or
              another, or the use by the actor of confinement, or superior size
              or strength, against the complainant that causes the
              complainant to submit to sexual penetration or contact against
              the complainant’s will. Proof of coercion does not require
              proof of a specific act or threat.

Minn. Stat. § 609.341, subd. 14 (2008).

       As we have already discussed, it is not rational to believe that I.H. would not fear

bodily harm under the circumstances surrounding appellant’s sexual contact with I.H. This

is true even if we consider only the events that occurred before appellant had sexual contact

with I.H. And I.H. testified that she was afraid that appellant could harm her by hitting her

“or something” and that she did not consent to appellant toughing her breasts. We,

therefore, conclude that the evidence was sufficient to prove that appellant used

circumstances that caused I.H. reasonably to fear that appellant would inflict bodily harm

on I.H. to cause I.H. to submit to sexual contact against her will. Consequently, the district




                                              8
court could reasonably conclude that appellant used coercion to accomplish the sexual

contact and, therefore, was guilty of fourth-degree criminal sexual conduct.

      Affirmed.




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