This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A23-0142
State of Minnesota, Respondent,
vs.
Ali Ahmed Omar, Appellant.
Filed April 8, 2024 Affirmed Bratvold, Judge
Hennepin County District Court File No. 27-CR-22-16791
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Mary F. Moriarty, Hennepin County Attorney, Adam Petras, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Travis Kowitz, Erin E. Powers, Kowitz Law, Lindstrom, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Smith, Tracy M., Judge; and
Bratvold, Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In this direct appeal from the judgment of conviction for unlawful possession of a
firearm, appellant argues that (1) his conviction should be reversed because the evidence
was insufficient to prove beyond a reasonable doubt that he constructively possessed the firearm found under his car seat and, in the alternative, (2) he is entitled to a new trial
because he received ineffective assistance of counsel. We conclude that the circumstantial
evidence is sufficient to sustain appellant’s conviction. We do not decide the second issue
because the record on appeal is insufficient to determine appellant’s
ineffective-assistance-of-counsel claim, which may be raised in a subsequent
postconviction petition. Thus, we affirm.
FACTS
Respondent State of Minnesota charged appellant Ali Ahmed Omar with one count
of unlawful possession of a firearm under Minn. Stat. § 624.713, subd. 1(2) (2022), in
August 2022. The state’s complaint alleged that Omar constructively possessed a firearm
recovered from the area below his seat in a sedan that was stopped and searched by law
enforcement. 1 The parties stipulated that Omar was “prohibited from possessing a firearm
under Minnesota law.”
The following summarizes the evidence received during Omar’s jury trial in
November 2022.
On August 24, 2022, shortly before 7:30 p.m. and while it was still light outside, a
special agent for the Minnesota Bureau of Criminal Apprehension (BCA) participated in a
joint effort among several law-enforcement agencies and was surveilling a section of Lake
Street South in Minneapolis. The special agent noticed a silver Pontiac sedan that did not
1 Omar moved to suppress evidence from law enforcement’s search of the sedan. The district court denied the motion to suppress, and Omar does not challenge that decision on appeal.
2 have front or rear license plates. The special agent saw the sedan’s driver and front-seat
passenger wearing full-face masks similar to balaclavas or ski masks. The special agent
noted that the face masks were strange because it was August and the temperature outdoors
was in the low 80s. In the special agent’s experience, wearing a ski mask is a “common
practice” for people engaged in “criminal activities” as a way to conceal identity. The
special agent followed the sedan, which “substantially pick[ed] up speed,” travelling up to
50 miles per hour. The sedan failed to stop at two red lights and passed other vehicles by
driving “around the center line” and “on the shoulder.” Because the special agent was in
an unmarked squad car, he asked another law-enforcement officer to initiate a traffic stop.
When the marked squad car turned on its emergency lights, the sedan did not stop
and continued driving until an unmarked squad car pulled in front of it and forced the sedan
to stop. A law-enforcement investigator later testified that, based on the investigator’s
experience, when a driver attempts to evade the police, they are concealing evidence,
planning to flee, or “forming a plan.”
The sedan had three occupants—the driver and passengers in the front and back
seats. As law enforcement officers approached the sedan, they noticed the smell of
marijuana coming from inside the sedan; Omar was in the front passenger seat. The
investigator noticed that Omar was “kind of leaning his body turned towards” the driver’s
door “but more towards the back of the vehicle with his hands kind of towards the center
console.” The back-seat passenger was “slouched over” and “appeared to be using his
elbows to kind of shift something that was in his waistband.”
3 All three occupants complied when law enforcement asked them to exit the sedan.
Law enforcement pat-searched the driver and found a suspected controlled substance in his
pocket. A pat search of the back-seat passenger uncovered a firearm in his waistband. The
officers pat-searched Omar and found nothing on his person.
When officers searched the sedan, they found a firearm tucked “[d]irectly
underneath the passenger seat where [Omar] was seated” with the grip “sticking
up . . . towards the glove box” and the barrel or “nozzle” pointing towards the back of the
car. The investigator testified that he saw the firearm while standing outside the sedan when
he “tilted [his] head and looked a little bit under the seat.”
The investigator also testified that “[t]he firearm was placed under the seat in such
a way that only the front passenger would have had immediate access to it.” The
investigator stated that it would have been “nearly impossible for anyone else in the vehicle
to access that firearm or to have placed it there without [Omar] knowing” because the
firearm was visible from the outside of the car and there was a “cage” under the seat that
would have made it “almost nearly impossible” for someone in the back seat to reach the
weapon. Law enforcement took photos of the firearm in the sedan, but shadows obscure
the relevant area, and no firearm is visible in the photos.
All three of the sedan’s occupants were prohibited from possessing a firearm. Two
forensic scientists testified at trial. Although they had DNA and fingerprint evidence from
Omar, they were unable to recover any latent fingerprints from the firearm and did not
recover sufficient DNA from the firearm to reach any conclusions.
4 The jury found Omar guilty of unlawful possession of a firearm. The district court
sentenced Omar to 60 months in prison. This appeal follows.
DECISION
I. The circumstantial evidence is sufficient to sustain Omar’s conviction for unlawful possession of a firearm.
Omar argues that “[t]he evidence that Omar constructively possessed the firearm
found underneath the passenger seat of the vehicle was insufficient.” “When evaluating the
sufficiency of the evidence, appellate courts carefully examine the record to determine
whether the facts and the legitimate inferences drawn from them would permit the jury to
reasonably conclude that the defendant was guilty beyond a reasonable doubt . . . .” State
v. Griffin, 887 N.W.2d 257, 263 (Minn. 2016) (quotation omitted). Appellate courts must
view the evidence “in the light most favorable to the verdict” and must assume “that the
fact-finder disbelieved any evidence that conflicted with the verdict.” Id.
We agree with the parties that the record includes only circumstantial evidence to
show that Omar constructively possessed the firearm found under the passenger seat.
“When the direct evidence of guilt on a particular element is not alone sufficient to sustain
the verdict,” appellate courts apply the circumstantial-evidence standard of review. Loving
v. State, 891 N.W.2d 638, 643 (Minn. 2017). Circumstantial evidence is “evidence from
which the factfinder can infer whether the facts in dispute existed or did not exist” and
“always requires an inferential step to prove a fact that is not required with direct evidence.”
State v. Harris, 895 N.W.2d 592, 599 (Minn. 2017) (quotation omitted).
5 Appellate courts apply a two-step analysis when reviewing the sufficiency of
circumstantial evidence. State v. Silvernail, 831 N.W.2d 594, 598 (Minn. 2013). First, the
appellate court must “identify the circumstances proved.” Id. In doing so, the appellate
court “defer[s] to the jury’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 (quotations omitted). Appellate courts also “construe conflicting evidence in the
light most favorable to the verdict and assume that the jury believed the State’s witnesses
and disbelieved the defense witnesses.” State v. Tscheu, 758 N.W.2d 849, 858 (Minn.
2008). In other words, when “determining the circumstances proved, [appellate courts]
consider only those circumstances that are consistent with the verdict.” Silvernail,
831 N.W.2d at 599.
Second, appellate courts must “determine whether the circumstances proved are
consistent with guilt and inconsistent with any rational hypothesis except that of guilt.” Id.
(quotations omitted). Appellate courts “review the circumstantial evidence not as isolated
facts, but as a whole,” and “examine independently the reasonableness of all inferences
that might be drawn from the circumstances proved.” Id. (quotations omitted). If an
alternative hypothesis is “untied to the evidence before the jury,” that hypothesis is “wholly
speculative” and does not warrant reversal. State v. German, 929 N.W.2d 466, 475 (Minn.
App. 2019).
Proceeding with the first step, we identify the following circumstances as proved
and consistent with the jury’s verdict: Omar was a front-seat passenger in a silver Pontiac
sedan that had no license plates and was travelling on city streets during daylight. The
6 driver and Omar wore ski masks, even though it was over 80 degrees outside. Wearing ski
masks is “common practice” for those involved in criminal activity. As law enforcement
followed the sedan, it sped up to 50 miles per hour, ran two red lights, and passed other
cars by crossing the center line or driving on the shoulder. When a marked squad car turned
on its emergency lights to initiate a traffic stop, the sedan stopped only when an unmarked
squad car pulled in front of it. Attempting to evade law enforcement is also linked to
criminal activity, such as concealing evidence or fleeing from police.
Officers noticed the smell of marijuana coming from inside the sedan. Officers saw
Omar “kind of leaning his body turned towards” the driver’s door “but more towards the
back of the vehicle with his hands kind of towards the center console,” and officers saw
the back-seat passenger shift something in his waistband. During pat searches of the
sedan’s occupants, law enforcement found suspected controlled substances on the driver
and a firearm on the back-seat passenger. Law enforcement also found a firearm under the
front passenger seat that Omar had occupied. The firearm was visible, even from outside
the sedan. The position of the firearm made it “nearly impossible” for any passenger other
than Omar to access the firearm because there was a “cage” underneath the passenger seat
that made it “nearly impossible to reach a hand from the back seat to the front.” The firearm
was also positioned with the grip pointing up towards the front passenger and the barrel
pointed towards the back seat.
Proceeding with the second step, we next determine whether the circumstances
proved are consistent with Omar’s guilt of unlawful possession of a firearm.
“Possession . . . may be proved through actual or constructive possession.” State v. Salyers,
7 858 N.W.2d 156, 159 (Minn. 2015). The state did not argue that Omar actually possessed
the firearm; it argued that he constructively possessed it, which may be proved in either of
two ways: (1) “[t]he State may show that the police found the item in a place under the
defendant’s exclusive control [and] to which other people normally did not have access”
or, (2) “if the police found the item in a place to which others had access, the State must
show that there is a strong probability (inferable from other evidence) that at the time the
defendant was consciously or knowingly exercising dominion and control over it.” Harris,
895 N.W.2d at 601. “The analysis required [for constructive possession] is necessarily fact
driven.” Salyers, 858 N.W.2d at 159 (quotation omitted).
In his brief to this court, Omar argues that the circumstances proved at trial are
inconsistent with his guilt because the firearm was not found in a place within his exclusive
control and it was not “rational to infer . . . that Omar was consciously exercising dominion
and control over the firearm.” The state argues that “considering the circumstances proved
in the light most favorable to the verdict, these circumstances are entirely consistent with
[Omar’s] guilt of constructive possession of the firearm.”
When we view the evidence as a whole and in a light favorable to the verdict, we
conclude that the circumstances proved show a strong probability that Omar was
consciously or knowingly exercising dominion and control over the firearm in the sedan.
First, the firearm was under Omar’s seat and was visible from outside the sedan. Second,
the firearm’s position, with the grip facing up towards the front passenger and the barrel
pointed towards the back seat, supports the inference that Omar consciously or knowingly
exercised dominion and control over the firearm because only Omar had immediate access
8 to it. Testimony established that it would have been “nearly impossible” for someone in
the back seat to reach the firearm because a “cage” blocked the back-seat passenger from
reaching the firearm. Third, Omar’s conduct immediately after the traffic stop supports the
inference that he consciously or knowingly exercised dominion and control over the
firearm. Testimony established that before he exited the sedan at law enforcement’s
request, Omar was “kind of leaning his body turned towards” the driver’s door “but more
towards the back of the vehicle with his hands kind of towards the center console.” These
movements support the jury’s inference that Omar was concealing the weapon.
Fourth, the evidence as a whole supports the inference that all three of the sedan’s
occupants were engaged in criminal activity, such as possessing weapons or concealing
evidence. Omar and the driver wore face masks even though it was over 80 degrees outside;
the driver ignored stop lights, was speeding, drove erratically, and refused to pull over
when a marked squad car activated its emergency lights.
Finally, we consider whether the circumstances proved are consistent with any
rational hypothesis other than guilt. Omar argues that his case is factually similar to Harris,
in which the Minnesota Supreme Court affirmed this court’s decision to reverse Harris’s
conviction for unlawful possession of a firearm found in a vehicle. 895 N.W.2d at 603. The
supreme court concluded that the circumstances proved were consistent with a reasonable
alternative hypothesis other than guilt: that Harris “did not know the firearm was in the
car.” Id. Omar argues that the circumstances proved here “are equally consistent with the
alternative, rational hypothesis that the owner of the vehicle or a third-party passenger had
access to the passenger seat and underneath the seat.” He contends that it is reasonable to
9 hypothesize that a third party may have left the firearm in the sedan or that the driver may
have placed the firearm under the seat with the handle facing up in case he needed to reach
over and grab it. 2
The circumstances proved in Harris included that (1) Harris was driving a car,
which he did not own, at night and with passengers in the front and back seats; (2) there
was an active warrant for one of the passengers; (3) Harris tried to evade law enforcement
as they began a traffic stop; (4) law enforcement noticed “movement in the car”; (5) law
enforcement found a firearm tucked into a space near the car’s sunroof with the butt of the
firearm partially visible; and (6) no conclusive DNA evidence linked the firearm to anyone
in the sedan. 895 N.W.2d at 602. The supreme court determined that, “when viewed as a
whole, [these circumstances proved] are consistent with a reasonable inference that Harris
did not know the firearm was in the car” because “there [was] no evidence that a lay person
would have recognized [the visible part of the firearm] as the butt of a firearm, especially
in the dark of night.” Id. at 603.
Omar argues that the circumstances proved in his case are “nearly identical” to those
proved in Harris. While some similarities exist between the facts here and in Harris—such
as the number of occupants in the vehicle and a hidden firearm—there are key differences.
2 Omar’s brief to this court also argues about reasonable inferences based on the driver’s gang affiliation. The state correctly points out that no evidence established the driver’s gang affiliation. We decline to consider matters outside the record. See Minn. R. Civ. App. P. 110.01 (the record on appeal includes “documents filed in the trial court, the exhibits, and the transcript of the proceedings”); State v. Anderson, 733 N.W.2d 128, 139 n.4 (Minn. 2007) (stating that “[i]t is well settled that an appellate court may not base its decision on matters outside the record on appeal” (quotation omitted)).
10 First, the location and visibility of the two firearms are materially different. In Harris, the
firearm was hidden “slightly behind the driver’s seat” in which Harris was sitting and more
fully hidden than the firearm in the sedan—the supreme court stated that “the officer who
searched the car did not immediately see the firearm.” Id. Here, the firearm was under
Omar’s seat and visible from outside the sedan. Second, the time of day at which the traffic
stop occurred is materially different. In Harris, the traffic stop occurred when it was dark
outside, so the firearm was difficult to see. Id. Here, the stop occurred during daylight.
Third, the circumstances of the two traffic stops are materially different. Law enforcement
saw the driver and Omar wearing ski masks in 80-degree weather as they drove erratically
along city streets, the sedan refused to stop when law enforcement activated emergency
lights, and Omar and the back-seat passenger made movements after officers approached
the sedan. Although Harris’s car also evaded a traffic stop and law enforcement noticed
some movement in Harris’s car, there was no specific movement by Harris near the
firearm’s location. Id. at 597, 603. In contrast, law enforcement saw Omar “kind of leaning
his body turned towards” the driver’s door “but more towards the back of the vehicle with
his hands kind of towards the center console.” Given these material differences, we
determine that Harris is distinguishable.
We also reject both of Omar’s suggested alternative hypotheses. Omar first argues
that the firearm under his seat belonged to some unknown third-party passenger. But no
evidence in the record supports this hypothesis. Because Omar’s alternative hypothesis is
“untied to the evidence before the jury” and “wholly speculative,” it does not warrant
reversal. German, 929 N.W.2d at 475.
11 Second, Omar argues that the driver possessed the firearm and placed it under the
passenger seat. While this theory is consistent with the circumstances proved, it is not
inconsistent with Omar’s guilt. Importantly, “[a] defendant may possess an item jointly
with another person.” Harris, 895 N.W.2d at 601. At Omar’s trial, the district court
instructed the jury that “[t]he law . . . recognizes that possession may be either exclusive
or joint” and that the jury “may find that the element of possession . . . is present if” the
jury found “beyond a reasonable doubt that the defendant had actual or constructive
possession of a firearm . . . whether exclusively or jointly.” Thus, the jury may have
determined that Omar and the driver jointly possessed the firearm, which was visible from
outside the sedan and accessible to Omar because it was under his seat.
Given the visibility and accessibility of the firearm to Omar, the circumstances of
the traffic stop, and Omar’s movements after the officers approached the sedan, the
circumstances proved support the strong probability that Omar consciously or knowingly
exercised dominion and control over the firearm found under his seat. Even though it is
also a reasonable hypothesis consistent with the circumstances proved that the driver
possessed the firearm, the alternative hypothesis is not inconsistent with guilt because
Omar and the driver may have possessed the firearm jointly. The record evidence is thus
sufficient to sustain the jury’s verdict that Omar constructively possessed the firearm.
II. The record on appeal is insufficient to determine Omar’s claim of ineffective assistance of counsel.
Omar argues that he “should be granted a new trial because he was denied his Sixth
Amendment right to effective assistance of counsel” when his trial counsel failed to raise
12 an alternative-perpetrator defense. Before trial, Omar’s attorney moved to admit
alternative-perpetrator evidence, and the district court granted the motion. In his brief to
this court, Omar argues that “defense counsel never raised the affirmative defense of an
alternative perpetrator to the jury in the trial proceedings.”
“Generally, an ineffective assistance of counsel claim should be raised in a
postconviction petition for relief, rather than on direct appeal.” State v. Gustafson,
610 N.W.2d 314, 321 (Minn. 2000). An appellate court can address an
ineffective-assistance-of-counsel claim if there is a sufficient record, meaning there is “no
need for additional facts to explain the attorney’s decisions.” Black v. State, 560 N.W.2d
83, 85 n.1 (Minn. 1997).
Here, the record is not sufficient for this court to determine whether Omar’s attorney
was ineffective. Appellate courts typically defer to an attorney’s decisions related to trial
strategy, which include determining which defenses to raise. State v. Vang, 847 N.W.2d
248, 267 (Minn. 2014). For now, no record establishes whether or why Omar’s attorney
decided not to raise an alternative-perpetrator defense. Accordingly, we decline to consider
this issue and Omar may raise his ineffective-assistance-of-counsel claim in a petition for
postconviction relief if he so chooses. Gustafson, 610 N.W.2d at 321 (stating that
appellant’s “right to pursue an ineffective assistance of counsel claim in a petition for
postconviction relief is preserved”).
Affirmed.