State of Tennessee v. Elmi Abdulahi Abdi

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 21, 2010

STATE OF TENNESSEE v. ELMI ABDULAHI ABDI

Direct Appeal from the Criminal Court for Davidson County
No. 2008-B-1061 Steve R. Dozier, Judge

No. M2009-01614-CCA-R3-CD - Filed July 29, 2010

The defendant, Elmi Abdulahi Abdi, was convicted by a Davidson County Criminal Court
jury of aggravated robbery, a Class B felony, and sentenced to thirty years in the Department
of Correction as a Range III, persistent offender. On appeal, he challenges the sufficiency
of the evidence and the sentence imposed by the trial court. After review, we affirm the
judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

A LAN E. G LENN, J., delivered the opinion of the Court, in which J ERRY L. S MITH and R OBERT
W. W EDEMEYER, JJ., joined.

William E. Griffith, Nashville, Tennessee (on appeal and at trial); Jason Gichner and Chase
Smith, Assistant Public Defenders (at trial), for the appellant, Elmi Abdulahi Abdi.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Rachel Sobrero and
Pamela Sue Anderson, Assistant District Attorneys General, for the appellee, State of
Tennessee.

OPINION

FACTS

This cases arises out of the robbery of the Crossland Economy Studio Hotel on
Murfreesboro Pike in Nashville on January 1, 2008, for which the defendant was indicted
on one count of aggravated robbery.1

At trial, Zina Aboona, the victim, testified that she was a general manager with
Extended Stay Hotels and was working when the hotel was robbed. The victim recalled that
she opened the hotel the morning of New Year’s Day and the first desk clerk arrived at 8:00
a.m. Soon after, the defendant walked into the lobby and approached the front desk, asking
for a room. The victim immediately recognized the defendant when he walked in the door.
She explained that she had a memorable encounter with the defendant on an occasion
several years earlier at the same hotel. On both occasions, the victim noticed that the
defendant spoke with a Somalian accent.

The victim informed the defendant that they were sold out from the previous night
and, within a “split second,” the defendant demanded money. The defendant put one hand
in his pocket and placed it on the counter, and he made his other hand into the shape of gun
and pointed it at the victim. The victim was convinced that the defendant had a gun in his
pocket based on “the way that it pointed in the pocket.” The victim gave the defendant
$183.91 from the cash drawer. The defendant ordered the victim to get on the floor and not
to look at him or he would shoot her. After the victim heard the defendant leave, she
pressed the lock button for the door and called 911. The victim testified that she was
“terrified” during the encounter.

The victim recalled that the day after the robbery, Detective Jeff Ball with the
Metropolitan Nashville Police Department showed her a photographic lineup, from which
she identified the defendant. The victim also identified the defendant in court and said that
she was 100% positive he was the person who entered the hotel on January 1, 2008. She
estimated that the encounter lasted approximately five minutes and said that the area was
well-lit. The victim noted that the hotel had a surveillance system that captured the robbery,
and she provided the footage to the police. The DVD of the encounter was played for the
jury.

On cross-examination, the victim acknowledged that the robber was wearing mirrored
sunglasses, a knit cap, and a jacket. She said that she did not remember the color of his
pants or see what kind of car he drove. She also acknowledged that she did not actually see
a gun.

Detective Barry Burk with the Metropolitan Nashville Police Department testified
that he responded to the scene in this case and spoke with the victim. The victim related the

1
The defendant was also indicted on one count of attempted aggravated robbery for an unrelated
incident that occurred the same day. The trial court granted a defense motion to sever the offenses.

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details of the aggravated robbery and allowed him to watch the surveillance video. Based
on the video and his discussion with the victim, Detective Burk developed the defendant as
a possible suspect.

Detective Jeff Ball testified that he collected the surveillance video from the hotel the
day after the robbery. The victim came to the police station and viewed a photographic
lineup, from which she identified the defendant. Detective Ball obtained a warrant for the
defendant’s arrest based on the victim’s identification and other evidence, and he arrested
the defendant around 9:00 p.m. on January 2, 2008. Detective Ball interviewed the
defendant and, at one point, escorted the defendant to his office to show him the surveillance
video from the hotel. An excerpt of the interview was played for the jury in which the
defendant was asked upon returning to the interview room, “Well, what did you think?” and
the defendant responded, “The person that looked like me is -- that’s me.”

On cross-examination, Detective Ball explained that the defendant was shown the
surveillance video in his office because the interview room did not have the necessary
equipment for watching a video. Detective Ball acknowledged that none of the suspects in
the photographic lineup were wearing sunglasses or a hat even though the suspect was
described as having worn sunglasses and a hat.

Following the conclusion of the proof, the jury convicted the defendant of aggravated
robbery.

ANALYSIS

I. Sufficiency of the Evidence

The defendant challenges the sufficiency of the convicting evidence. He argues that
he was not sufficiently identified as the perpetrator of the offense, and the State failed to
prove that he possessed a weapon or an article used or fashioned to lead the victim to
reasonably believe it to be a deadly weapon. In considering this issue, we apply the rule that
where sufficiency of the convicting evidence is challenged, the relevant question of the
reviewing court is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn.
R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall
be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt
beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State
v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the
credibility of witnesses, the weight and value to be given the evidence, and all factual issues

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are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.
1987). “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of
the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State
v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this
rule:

This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that
on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

As pertinent here, aggravated robbery is the “intentional or knowing theft of property
from the person of another by violence or putting the person in fear,” Tenn. Code Ann. § 39-
13-401(a), “[a]ccomplished with a deadly weapon or by display of any article used or
fashioned to lead the victim to reasonably believe it to be a deadly weapon[.]” Id. § 39-13-
402(a)(1).

In the light most favorable to the State, the evidence shows that the defendant walked
into the hotel and, after inquiring about a room, demanded that the victim give him money.
The defendant placed one hand in his pocket and put it on the counter and then placed his
other hand into the shape of a gun and pointed it at the victim. After the victim gave the
defendant money from the cash drawer, the defendant ordered her to the ground and
threatened to shoot her if she looked at him. The victim expressed that she was “terrified”
during the encounter. Although the victim did not actually see a gun, she said that she was
“completely convinced” that the defendant had a gun in his pocket based on “the way that
it pointed in the pocket.”

This court has frequently upheld an aggravated robbery conviction in cases where a
defendant did not display a weapon but kept his hand in his pocket throughout the incident.
See, e.g., State v. Joseph L. Johnson, Jr., No. M2007-01644-CCA-R3-CD, 2009 WL
2567729, at *8 (Tenn. Crim. App. Aug. 18, 2009), perm. to appeal denied (Tenn. Feb. 22,

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2010); State v. Michael V. Morris, No. M2006-02738-CCA-R3-CD, 2008 WL 544567, at
*5-6 (Tenn. Crim. App. Feb. 25, 2008), perm. to appeal denied (Tenn. Aug. 25, 2008); State
v. Monoleto D. Green, No. M2003-02774-CCA-R3-CD, 2005 WL 1046800, at *8-10
(Tenn. Crim. App. May 5, 2005); State v. Lawrenzo Menton, No.
W2002-00267-CCA-R3-CD, 2003 WL 21644936, at *12 (Tenn. Crim. App. July 2, 2003),
perm. to appeal denied (Tenn. Dec. 15, 2003). In this case, the defendant’s actions, coupled
with his verbal threat, were sufficient for the jury to conclude that the defendant possessed
a deadly weapon or an article used or fashioned to lead the victim to reasonably believe it to
be a deadly weapon.

With regard to the defendant’s identity as the perpetrator of the robbery, the defendant
argues that the evidence of identity was insufficient because the victim did not testify as to
the type of pants or shirt the robber wore and because the robber wore a hat and sunglasses
and the individuals in the photographic array did not. The identification of the defendant as
the perpetrator of the crime is a question of fact for the jury. See State v. Strickland, 885
S.W.2d 85, 87 (Tenn. Crim. App. 1993). A victim’s identification of a defendant as the
perpetrator of an offense is, alone, sufficient to establish identity. See State v. Hill, 987
S.W.2d 867, 870 (Tenn. Crim. App. 1998); Strickland, 885 S.W.2d at 87.

The victim testified that she recognized the defendant immediately when he walked
in the door because she had a memorable encounter with him several years earlier. She said
that the previous encounter occurred at the same hotel, in close proximity, and lasted ten to
fifteen minutes. She testified that during the present encounter, she was in close proximity
to the defendant for five minutes in well-lit conditions. On both occasions, the victim
recognized that he spoke with a Somalian accent. The victim identified the defendant as the
robber from a photographic array the day after the robbery and was 100% positive of her
identification. She also identified the defendant at trial as the perpetrator. The jury heard the
testimony concerning the victim’s identification of the defendant and, by its verdict,
accredited her testimony. Moreover, the jury was shown the surveillance videotape of the
robbery and heard testimony from Detective Jeff Ball indicating that the defendant admitted
that it was him on the videotape.

II. Sentencing

The trial court conducted a sentencing hearing, at which the victim read a letter that
she wrote six days after the robbery. In her letter, the victim related that she had been the
victim of two hotel robberies committed by the defendant. She described both encounters
as “horrific.” She expressed disbelief that the defendant “only served a little under half of
his original sentence and was within months . . . right back to the community and
committing the same crimes.” The victim testified that there was no indication that the

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defendant was intoxicated during the second robbery.

In addition to the presentence report, the State also submitted, as proof of the
defendant’s range, certified copies of prior judgments against the defendant. The prior
judgments included one for a December 21, 2002, Class B felony aggravated robbery out
of Davidson County; a December 28, 2002, Class B felony aggravated robbery out of
Davidson County; a December 28, 2002, Class B felony aggravated robbery out of Wilson
County; and a December 28, 2002, Class C felony attempted aggravated robbery out of
Wilson County.

When an accused challenges the length and manner of service of a sentence, it is the
duty of this court to conduct a de novo review on the record with a presumption that “the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code
Ann. § 40-35-401(d) (2006). This presumption is “conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all relevant facts and
circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does
not apply to the legal conclusions reached by the trial court in sentencing the accused or to
the determinations made by the trial court which are predicated upon uncontroverted facts.
State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d
922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim.
App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000).
However, this court is required to give great weight to the trial court’s determination of
controverted facts as the trial court’s determination of these facts is predicated upon the
witnesses’ demeanor and appearance when testifying.

In conducting a de novo review of a sentence, this court must consider (a) any
evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the
principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e)
the nature and characteristics of the offense, (f) any mitigating or enhancement factors, (g)
any statistical information provided by the administrative office of the courts as to Tennessee
sentencing practices for similar offenses, (h) any statements made by the accused in his own
behalf, and (i) the accused’s potential or lack of potential for rehabilitation or treatment.
Tenn. Code Ann. §§ 40-35-103, -210; State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App.
2001). The party challenging the sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Cmts.; Ashby, 823 S.W.2d at 169.

As relevant here, a persistent offender is one who has “any combination of three (3)
Class A or Class B felony convictions if the defendant’s conviction offense is a Class A or
B felony.” Tenn. Code Ann. § 40-35-107(a)(2). As previously mentioned, aggravated

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robbery is a Class B felony. In determining the number of prior convictions for the purpose
of offender status, “[e]xcept for convictions for which the statutory elements include serious
bodily injury, bodily injury, threatened serious bodily injury, or threatened bodily injury to
the victim or victims, convictions for multiple felonies committed within the same
twenty-four-hour period constitute one (1) conviction for the purpose of determining prior
convictions[.]” Id. § 40-35-107(b)(4).

The defendant does not dispute that he has three prior Class B felony convictions. He
only argues that the court erred in classifying him a persistent offender because two of the
three offenses occurred within the same twenty-four-hour period. However, the defendant
overlooks the exception to the twenty-four-hour rule for offenses with statutory elements
including caused or threatened bodily injury or serious bodily injury. Again, aggravated
robbery is “the intentional or knowing theft of property from the person of another by
violence or putting the person in fear,” id. § 39-13-401(a), “[a]ccomplished with a deadly
weapon or by display of any article used or fashioned to lead the victim to reasonably believe
it to be a deadly weapon; or [w]here the victim suffers serious bodily injury.” Id. § 39-13-
402(a).

The record does not show whether the defendant’s prior aggravated robbery
convictions were based on his using or displaying a deadly weapon or the victim suffering
serious bodily injury. Either way, the convictions are removed from the twenty-four hour
merger rule. If the victims suffered serious bodily injury, such convictions clearly fall within
the exception. If the defendant used or displayed a deadly weapon, “this court has held that
a great potential for bodily injury necessarily exists whenever a deadly weapon is used.”
State v. Tyrone Cunningham, No. W2001-02941-CCA-R3-CD, 2003 WL 21729423, at *15
(Tenn. Crim. App. July 24, 2003), perm. to appeal denied (Tenn. Dec. 22, 2003) (citing State
v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995), and concluding that conviction for
especially aggravated kidnapping fell under the exception to the twenty-four-hour merger
rule regardless of whether it was aggravated by the use of a deadly weapon or the victim
suffering serious bodily injury).

Moreover, this court has previously held that robberies occurring on the same day are
not consolidated by the twenty-four-hour rule because robbery contains the statutory element
that the defendant cause or threaten bodily injury or serious bodily injury in that fear
constituting an element of robbery is fear of bodily injury. See State v. Darrell Johnson, No.
W2008-01725-CCA-R3-CD, 2009 WL 1564808, at *2-3 (Tenn. Crim. App. June 3, 2009);
see also State v. Iwanda Anita Buchanan, No. M2007-02870-CCA-R3-CD, 2008 WL
4467185, at *5 (Tenn. Crim. App. Oct. 6, 2008) (concluding that trial court properly counted
robbery and aggravated assault convictions arising from the same transaction as separate
convictions for purposes of determining offender status. This court noted that “[b]oth

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robbery and aggravated assault contain elements that the defendant cause or threaten to cause
bodily injury.”). Thus, the trial court properly sentenced the defendant as a persistent
offender.

The defendant also argues that the trial court erred in enhancing his sentence based
on his criminal record. In imposing a specific sentence within a range, a trial court “shall
consider, but is not bound by” certain advisory sentencing guidelines, including that the
“minimum sentence within the range of punishment is the sentence that should be imposed”
and that “[t]he sentence length within the range should be adjusted, as appropriate, by the
presence or absence of mitigating and enhancement factors[.]” Tenn. Code Ann. §
40-35-210(c)(1), (2). The weighing of the various mitigating and enhancement factors is
“left to the trial court’s sound discretion.” State v. Carter, 254 S.W.3d 335, 345 (Tenn.
2008).

Here, the trial court enhanced the defendant’s sentence based on a finding that the
defendant had a history of criminal convictions or criminal behavior in addition to those
necessary to establish the range, Tenn. Code Ann. § 40-35-114(1); he failed to comply with
the conditions of a sentence involving release into the community, id. § 40-35-114(8); and
he was on parole at the time he committed the offense. Id. § 40-35-114(13). The defendant
asserts that his criminal record was not “extensive” in that he only had two convictions in
addition to those necessary to establish his range. Whether the defendant’s criminal record
qualified as “extensive” was not a statutory requirement for the court, in its discretion, to
enhance the defendant’s sentence. The presentence report shows that, in addition to the three
prior aggravated robbery convictions that established the defendant’s range, the defendant
has prior convictions for attempted aggravated robbery, misdemeanor attempt to commit a
felony, theft, and misdemeanor assault. Moreover, the record supports the trial court’s
application of the two other enhancement factors. We conclude that the trial court acted
properly within its discretion in sentencing the defendant to thirty years.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the trial
court.

_________________________________
ALAN E. GLENN, JUDGE

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