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Abd v. State

Court of Appeals of Indiana

April 4, 2019

Akram Abd, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Marion Superior Court The Honorable Lisa F. Borges, Judge Trial Court Cause No. 49G04-1605-MR-20444

          ATTORNEY FOR APPELLANT Lisa M. Johnson Brownsburg, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

          Baker, Judge.

         [¶1] Akram Abd appeals his convictions for one count of Murder[1] and one count of Level 5 Felony Robbery, [2] arguing that (1) the evidence was insufficient to support the convictions; (2) the trial court improperly admitted character evidence when its prejudicial effect outweighed its probative value; and (3) the trial court erroneously provided an incomplete jury instruction. Finding that the evidence was sufficient and that there was no fundamental error regarding the evidence and the instruction, we affirm.

         Facts[3]

         [¶2] Mohamed Mahmoud, the victim in this case, owned a tax preparation business in Indianapolis called Taxesmart. Mahmoud attended the same mosque as Abd's father, Ziad Abd (Ziad), and helped him and Abd file their tax returns. In 2013, Ziad reported an income of $17, 960, and Abd reported no income. In 2014, Ziad and Abd reported incomes of $9, 600 and $9, 905, respectively. In 2015, Ziad and Abd reported incomes of $9, 558 and $10, 077, respectively.

         [¶3] Abd and Ziad lived in the Sawmill Apartments complex in Indianapolis. Ziad was financing a black 2012 Toyota Camry, and Abd was financing a white 2012 Ford Taurus. The two were consistently late on rent, electric, and car payments for their entire stay. Additionally, Ziad and Abd maintained bank accounts with consistently negative balances.

         [¶4] On February 3, 2016, Ziad and Abd were evicted and charged $3, 881.37 for repairs and cleaning. The landlord stated that "[t]he apartment was very dirty" and that they had to "treat for roaches" and "double-coat the apartment for paint" because Ziad and Abd smoked. Tr. Vol. VII p. 61. The landlord also testified that Ziad and Abd were "pretty aggressive and verbally abusive" when he communicated with them. Id. at 52. Ziad and Abd later moved to the Cherry Glen Apartments complex, where they faced the same financial issues.

         [¶5] On April 12, 2016, Ziad bought Duck Brand duct tape from Wal-Mart. On April 20, 2016, at around 11:19 p.m., Abd and Ziad drove and parked the white Ford Taurus in a school parking lot directly across the street from Taxesmart. A school employee notified police of a suspicious vehicle on the premises, and an officer was dispatched to the scene. At 11:37 p.m., Indianapolis Metropolitan Police Department Officer Daniel Eacret approached Ziad and Abd, who had exited the car, and asked them what they were doing. Abd said they were going to a nearby gas station, which they ultimately did. After Ziad and Abd returned to their vehicle and drove away, Officer Eacret left the scene at 12:18 a.m.

         [¶6] At 1:37 a.m., Mahmoud closed Taxesmart and left the building. At 1:52 a.m., a white car arrived at the Airport Office Center in Indianapolis. At 2:09 a.m., the same white car and a black car left the Airport Office Center. At approximately 2:18 a.m., an individual unlocked the Taxesmart doors, entered the building, and left a fingerprint on Mahmoud's safe. Later reports revealed that the fingerprint partially matched Abd's. The individual promptly left at 2:19 a.m., carrying something in his left hand. Cell phone records indicate that Ziad and Abd's phones may have been near Taxesmart on April 21, 2016, between 1:00 a.m. and 2:00 a.m. Additionally, the records show that the phones travelled in separate vehicles on that same day to Detroit, Michigan, and then back to Indianapolis a few days later.

         [¶7] On the morning of April 21, 2016, an Airport Office Center employee discovered Mahmoud's body near a dumpster and called the police. A purple pillow case covered Mahmoud's head and was duct-taped around the neck. The pillow case was full of a "brown substance" (feces), which an autopsy later revealed was completely occupying and blocking Mahmoud's mouth, nose, and airways. Tr. Vol. III p. 131-32, Vol. IV p. 152. That same day, Mahmoud's friends visited Taxesmart to look for him after he did not show up to mosque. They discovered that the lights were on, the safe was open, Mahmoud's keys were on the floor, and the security keyboard was hanging by its wires. They called the police.

         [¶8] On April 25, 2016, Abd purchased a 2004 Ford Explorer for $4, 274.65 in cash and paid Cherry Glen Apartments $1, 073. From April 27-28, 2016, Ziad sent $3, 500 to Iraq (his home country) and later paid Cherry Glen Apartments $765. On May 3, 2016, Ziad bought a house in Detroit for $35, 679.52 in cash and paid the remaining balance ($4, 700) on his Toyota Camry.

         [¶9] On May 25, 2016, the police arrested Ziad and Abd. The police discovered $5, 322 in Ziad's pocket and $270 in Abd's wallet. Additionally, in Ziad and Abd's apartment, the police found that there were two pillow cases missing from a bed set with colors matching the colors of the pillow case found wrapped around Mahmoud's head. On July 26, 2016, the State charged Abd with murder, felony murder, and Level 2 felony robbery resulting in serious bodily injury. The State jointly tried Abd and Ziad from February 12-22, 2018.

         [¶10] At the jury trial, neither Abd nor Ziad objected when the landlord for Sawmill testified to the condition of the apartment after they were evicted. Also, neither objected when the same landlord testified about their verbally abusive and aggressive behavior. At the conclusion of the trial, the trial court provided the jury with the following instruction:

If the evidence lends itself to two reasonable interpretations, you must choose the interpretation consistent with the Defendant's innocence. If there is only one reasonable interpretation, you must accept that interpretation and consider the evidence ...

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