State of Tennessee v. Abu Musa Abdullah

Citation: Not availableDocket: M2019-00510-CCA-R3-CD

Court: Court of Criminal Appeals of Tennessee; January 20, 2020; Tennessee; State Appellate Court

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Abu Musa Abdullah was convicted by a Davidson County jury of three counts of aggravated sexual battery and two counts of rape of a child, receiving a combined sentence of fifty-five years in the Tennessee Department of Correction. Following the conviction, Abdullah filed a delayed appeal, arguing that the trial court erred by limiting cross-examination of two State witnesses and by imposing an excessive sentence. The appellate court affirmed the trial court's judgments.

The case originated from Abdullah's sexual contact with a minor, leading to an indictment by a grand jury. During the trial, evidence was presented that the victim disclosed the abuse to her youth pastor in 2015, recounting incidents that occurred in 2013 while she was staying with a family friend, Elizabeth Ann Fritz, who was dating Abdullah. The victim detailed the assaults, including the Defendant touching her inappropriately and performing oral sex on her while she was asleep. The trial court later granted a post-conviction petition based on claims of ineffective assistance of counsel, which allowed for the current appeal focusing on the cross-examination limits and sentencing issues.

The Defendant approached the victim while she was sleeping on the couch, fondling her breasts, which led to a charge of aggravated sexual battery (Count 5). The victim, concerned for her ill mother's health, initially did not report the incident but later revealed it to Mr. Pearne after experiencing depression and suicidal thoughts. The jury convicted the Defendant of three counts of aggravated sexual battery and two counts of child rape. During sentencing, both the victim and her mother provided statements detailing the impact of the crimes and requested the maximum sentence. The State presented certified judgments of convictions and a presentence report, while the Defendant spoke about his past incarceration, hardships, and involvement in church, maintaining his innocence.

The trial court considered the trial evidence, sentencing hearing, presentence report, sentencing principles, arguments from counsel, and various factors in determining the sentence. It identified no mitigating factors but three enhancement factors: (1) the Defendant's previous history of criminal convictions; (2) a history of failing to comply with release conditions; and (3) abuse of a position of private trust that facilitated the offenses. The court noted five prior felony convictions and multiple misdemeanors, applying the first factor to the sentences for child rape. The second factor was based on prior probation violations, affecting all sentences. The third factor related to the Defendant's access to the victim, as they lived in the same household, facilitating the commission of the crimes.

The trial court sentenced the Defendant as a Range II offender for Counts 2 and 3 (rape of a child, Class A felony), imposing a potential sentence of twenty-five to forty years per count. For Counts 1, 4, and 5 (aggravated sexual battery, Class B felony), the Defendant was classified as a Range III offender due to two prior Class C felony convictions and three Class D felony convictions, leading to a sentencing range of twenty to thirty years. The court imposed the following sentences: Count 1 - 20 years; Counts 2 and 3 - 35 years each; Counts 4 and 5 - 20 years each. Considering consecutive sentencing, the court identified two applicable factors: the Defendant’s extensive criminal record and the nature of the five offenses involving sexual abuse of a minor. The court emphasized the severity of the abuse, including forced sexual acts, and the lasting impact on the victim, who continues to seek counseling and has experienced suicidal ideation. The court ordered Counts 1, 2, 3, and 4 to run concurrently, while Count 5 ran consecutively to Count 2, resulting in an effective sentence of fifty-five years. The court deemed this sentence proportional to the offenses, necessary for public protection, and aligned with sentencing principles. The Defendant appeals, contesting limitations on cross-examination of State witnesses and the application of enhancement factors for consecutive sentencing. The State seeks affirmation of the judgments. The Defendant’s constitutional right to cross-examine witnesses is highlighted, with the trial court's discretion emphasized regarding the scope and manner of such examinations.

A defendant’s right to confront witnesses does not prevent a trial court from setting limits on cross-examination based on factors like harassment, prejudice, witness safety, or the relevance of questions. The right to cross-examine is confined to questions that elicit relevant evidence, defined under Rule of Evidence 401 as having the potential to make a consequential fact more or less probable. Rule 402 establishes that all relevant evidence is admissible unless restricted by legal rules or constitutional provisions, while Rule 403 allows for the exclusion of relevant evidence if its probative value is significantly outweighed by risks such as unfair prejudice or confusion. The trial court has discretion over evidence admissibility, and its decisions can only be overturned on appeal if there is clear evidence of abuse of discretion.

In the case involving the defendant and forensic interviewer Barbara Tallent, the defendant argued that the trial court improperly restricted his cross-examination. The State countered that the inquiry was repetitive, as prior questions had already been addressed. During the trial, defense counsel posed several questions to Tallent regarding the truthfulness of the children she interviewed, to which she expressed uncertainty in her responses, indicating her role was to gather information rather than assess truthfulness. When defense counsel attempted to ask about children lying, the State objected on relevance grounds, leading the court to sustain the objection.

The State questioned the witness, Ms. Tallent, regarding her beliefs about children's truthfulness, but she had already answered this question, leading the court to sustain the State's objection to repetitive questioning. Ms. Tallent clarified her role was to gather information neutrally and not to assess the children's truthfulness. Despite the defense counsel's attempts to rephrase the question multiple times, the trial court deemed this repetitive and acted within its discretion to limit further questioning. Consequently, the Defendant is not entitled to relief based on this issue. 

Additionally, the Defendant challenged the trial court's limitation on cross-examination of another witness, Elizabeth Ann Fritz. The State argued that since Ms. Fritz had answered the questions, the trial court did not err in sustaining objections to further repetitive inquiries. During her direct examination, Ms. Fritz recounted an incident involving the Defendant and the victim while they were watching a movie and playing Candy Crush. Although she acknowledged the possibility of them being on the couch together, she could not recall the specific events described by the victim regarding inappropriate touching.

During cross-examination, Ms. Fritz was questioned by defense counsel about her memory of an alleged sexual assault involving the victim while she was present. Ms. Fritz repeatedly stated she did not remember specific details from that day, including whether she was sitting on the couch with the victim and the accused. Despite being prompted to recall the incident and her level of alertness, she maintained her lack of memory regarding the specifics, stating "it was so long ago" and admitting the possibility that something could have happened without her awareness. Defense counsel's attempts to elicit a definitive response were met with objections from the State, leading the trial court to limit repetitive questioning, which it deemed appropriate.

Regarding sentencing, the Defendant argued that the trial court improperly applied an enhancement factor and abused its discretion by imposing partial consecutive sentencing. The State contended that the trial court had properly considered relevant factors in accordance with the Tennessee Criminal Sentencing Reform Act of 1989, asserting that the sentence was consistent with statutory purposes. The court confirmed that sentences within the appropriate statutory range are reviewed with a presumption of reasonableness and that an abuse of discretion occurs only if the trial court’s reasoning is improper in light of the facts and legal principles involved.

An abuse of discretion occurs when there is no substantial evidence supporting the trial court’s decision. A reviewing court will uphold a sentence if it is within the appropriate range and complies with statutory purposes and principles. The trial court's application of enhancement factor (14) is challenged by the Defendant, who argues that it was improperly applied. However, the State asserts that the trial court properly enhanced the sentence based on two other unchallenged factors. 

When determining a specific sentence, the trial court should consider advisory guidelines, including the minimum sentence for each felony class and adjust based on mitigating and enhancement factors. While the court must consider these factors, they are advisory. The trial court has discretion in weighing these factors and can impose any sentence within the applicable range, as long as it aligns with the Sentencing Act's purposes.

The trial court identified three enhancement factors: (1) prior criminal convictions; (2) failure to comply with release conditions; and (3) abuse of a position of trust. Even if factor (14) is contested, the other two factors justify the court's decision to impose a sentence above the minimum. The Defendant has a significant criminal history with over twenty-five convictions since 1981 and has violated probation, supporting the application of enhancement factors (1) and (8). Thus, the trial court did not abuse its discretion, and the Defendant is not entitled to relief on this issue.

The Defendant contests the trial court's decision to impose partial consecutive sentencing based on criterion (5), arguing that the duration of the offenses was 'short' and the actions were 'the most benign.' The State defends the trial court's ruling, asserting it was justified. Under Tennessee Code Annotated section 40-35-115(b), a trial court can impose consecutive sentences if any statutory criteria are met by a preponderance of the evidence. In this case, the trial court identified criteria (2) and (5) as applicable: (2) the Defendant’s extensive criminal record, which includes at least four felony convictions, and (5) the conviction of multiple statutory offenses involving sexual abuse of a minor, considering various aggravating factors. Since the criteria are alternative, satisfying one is sufficient for consecutive sentencing.

The imposition of consecutive sentences must align with general sentencing principles, ensuring that the total sentence is proportional to the offense and is the least severe necessary to achieve sentencing goals. The court’s decision to impose consecutive sentences is reviewed for abuse of discretion, with a presumption of reasonableness. The trial court noted that although the offenses were not lengthy, the nature of the acts and the significant residual mental and emotional damage to the victim justified partial consecutive sentencing. The appellate court concludes that the trial court's findings support the imposition of consecutive sentencing, affirming its decision and denying the Defendant relief.