State v. Ahmed, 121718 MNCA, A18-0891

Docket Nº:A18-0891
Opinion Judge:RODENBERG, JUDGE
Party Name:State of Minnesota, Appellant, v. Sahra Abdilahi Ahmed, Respondent.
Attorney:Lori Swanson, Attorney General, St. Paul, Minnesota; and Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for appellant) Mark D. Nyvold, Fridley, Minnesota (for respondent)
Judge Panel:Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and Klaphake, Judge.
Case Date:December 17, 2018
Court:Court of Appeals of Minnesota
 
FREE EXCERPT

State of Minnesota, Appellant,

v.

Sahra Abdilahi Ahmed, Respondent.

No. A18-0891

Court of Appeals of Minnesota

December 17, 2018

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Kandiyohi County District Court File No. 34-CR-17-954

Lori Swanson, Attorney General, St. Paul, Minnesota; and Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for appellant)

Mark D. Nyvold, Fridley, Minnesota (for respondent)

Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and Klaphake, Judge. [*]

RODENBERG, JUDGE

The state appeals from the district court's order dismissing three counts of felony nonconsensual dissemination of private sexual images against respondent Sahra Abdilahi Ahmed for want of probable cause. We reverse and remand.

FACTS

On September 12, 2017, Willmar Police Department Officer Zach Herzog responded to a call from a young woman who reported that an individual was posting inappropriate pictures of her on social media. The caller, S.C, reported that an acquaintance, C.J., had been posting an image of S.C. on various social-media accounts, including Snapchat. The image showed S.C. fellating a man.1

Officer Herzog tried to contact C.J. by phone. After attempts failed, Officer Herzog decided to go to C.J.'s home. Almost immediately after Officer Herzog arrived at C.J.'s home, C.J. told Officer Herzog that she "already took the post down." Officer Herzog warned C.J. that she could be charged with a crime for posting the picture online and warned her that if she posted the image again, she would be charged. He also advised her that "if she knew of anybody else with the photograph to advise them of the same."

Between the time that C.J. posted the image and police began investigating the matter, respondent took a screen shot of the image that C.J. had shared and then posted it to her own Facebook and Twitter accounts. Respondent set the image as her Facebook profile picture. This version of the image included rows of pink flowers at the top and bottom, and the message, "More savage than me" was written over the flowers, with a smiley-face emoji behind it.

S.C. became aware of the additional postings of the picture after a friend informed her that respondent had set the image as her Facebook profile picture. Respondent began posting the photo shortly after it appeared on C.J.'s Snapchat. C.J. is a friend of respondent.

S.C. contacted Officer Herzog to report respondent's postings of the image, and sent him screen shots of respondent's Facebook page. The following morning, SC messaged Officer Herzog and told him that respondent had also posted the image on Snapchat and Twitter. S.C. sent Officer Herzog a screen shot of the Twitter post containing the picture of S.C.

S.C. thrice messaged respondent and asked her to remove the photos. In the third message, SC said, "it's sad how your miserable-delete from everything." Respondent told S.C. to stop messaging her and to "get off my DM before I really post the video." Despite S.C.'s repeated requests for respondent to remove the image from social media and delete it, respondent continued to display the picture on her social-media accounts.

S.C. sent Officer Herzog a copy of messages exchanged via Twitter between S.C. and respondent and told Officer Herzog that she was "100% certain" that the account belonged to respondent. Officer Herzog tried to reach respondent by phone and tried to locate respondent at two of her recent addresses, but he was unable to make contact with her.

Several days later, SC spoke with Willmar Police Department Officer Benjamin Hanneman. S.C. told Officer Hanneman that many people in the community had seen the image of her. S.C. thought that the image was taken during the 2016-17 school year when she had attended a party, but she could not recall any specific date. In another conversation with Officer Herzog, SC stated that the penis in the picture is that of R.B., also a student at the community college. S.C. did not know who took the picture, but she said that whoever took it did so without her consent. She did not know how C.J. or respondent obtained the image and did not know that the image had been taken. Officer Herzog attempted to contact R.B., but he was no longer a student at the community college and did not return phone calls.

The state charged respondent with three counts of nonconsensual dissemination of private sexual images under Minn. Stat. § 617.261 (2016). Respondent moved to dismiss the charges as being unsupported by probable cause. After an omnibus hearing, the district court dismissed the charges, finding that the state failed to establish probable cause. The state appealed. In a special term order, we questioned jurisdiction. See Minn. R. Crim. P. 28.04, subd. 1(1) (providing that a pretrial order dismissing a case for lack...

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