                                                                                FILED
                                                                            Apr 04 2019, 5:41 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                             Curtis T. Hill, Jr.
Brownsburg, Indiana                                         Attorney General of Indiana
                                                            Jesse R. Drum
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Akram Abd,                                                  April 4, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-780
        v.                                                  Appeal from the Marion Superior
                                                            Court
State of Indiana,                                           The Honorable Lisa F. Borges,
Appellee-Plaintiff                                          Judge
                                                            Trial Court Cause No.
                                                            49G04-1605-MR-20444



Baker, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-780 | April 4, 2019                                    Page 1 of 14
[1]   Akram Abd appeals his convictions for one count of Murder1 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




      1
          Ind. Code § 35-42-1-1.
      2
          I.C. § 35-42-5-1(a).
      3
        We held oral argument in this case at Taylor University in Upland, Indiana, on February 19, 2019. We
      thank both parties for their stimulating discussion, and we thank Taylor University, its faculty, and its
      students for their warm and generous hospitality.

      Court of Appeals of Indiana | Opinion 18A-CR-780 | April 4, 2019                                 Page 2 of 14
      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,


      Court of Appeals of Indiana | Opinion 18A-CR-780 | April 4, 2019         Page 3 of 14
      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.



      Court of Appeals of Indiana | Opinion 18A-CR-780 | April 4, 2019        Page 4 of 14
[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 with all the
               other evidence in the case in making your decision.

               To overcome the presumption of innocence, the State must prove
               the Defendant guilty of each element of the crime charged, beyond
               a reasonable doubt.




       Court of Appeals of Indiana | Opinion 18A-CR-780 | April 4, 2019          Page 5 of 14
       Appellant’s App. Vol. III p. 136. Neither Abd nor Ziad objected to this

       instruction or requested a jury instruction that said the evidence must exclude

       every reasonable theory of innocence. The jury found Abd guilty as charged.4


[11]   At the March 13, 2018, sentencing hearing, the trial court vacated the

       conviction for felony murder and reduced the Level 2 felony robbery conviction

       to a Level 5 offense to avoid a double jeopardy violation. The trial court

       sentenced Abd to consecutive terms of sixty-five years for the murder

       conviction and six years for the robbery conviction, for an aggregate sentence of

       seventy-one years of incarceration. Abd now appeals.


                                Discussion and Decision

                               I. Sufficiency of Evidence

[12]   First, Abd argues that there is insufficient evidence supporting the convictions.

       When reviewing the sufficiency of the evidence supporting a conviction, we

       must affirm if the probative evidence and reasonable inferences drawn from the

       evidence could have allowed a reasonable trier of fact to find the defendant

       guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind.

       2005). It is not our job to reweigh the evidence or to judge the credibility of the




       4
        Though the State jointly tried and convicted both Abd and Ziad, this appeal concerns only Abd’s
       convictions. This Court is currently considering Ziad’s appeal in a separate matter under Cause No. 18A-CR-
       00782.

       Court of Appeals of Indiana | Opinion 18A-CR-780 | April 4, 2019                               Page 6 of 14
       witnesses, and we consider any conflicting evidence most favorably to the trial

       court’s ruling. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005). Furthermore, a

       criminal conviction may properly rest entirely upon circumstantial evidence.

       Hampton v. State, 961 N.E.2d 480, 486 (Ind. 2012).


[13]   To convict Abd of murder, the State was required to prove beyond a reasonable

       doubt that Abd (1) knowingly or intentionally (2) killed another human being.

       I.C. § 35-42-1-1. To convict Abd of Level 5 felony robbery, the State was

       required to prove beyond a reasonable doubt that Abd (1) knowingly or

       intentionally (2) took property (3) from another person or from the presence of

       another person (4) by using or threatening the use of force on any person or by

       putting any person in fear. I.C. § 35-42-5-1(a).


[14]   First, as to the murder conviction, the record shows that Abd was sitting in his

       Ford Taurus facing Taxesmart the night that Mahmoud was robbed and

       murdered. The record also shows that a white car and a black car—very similar

       in appearance to Ziad and Abd’s cars—appeared at the Airport Office Center

       where Mahmoud’s corpse was discarded. A reasonable trier of fact could

       conclude that these cars were the Ford Taurus and Toyota Camry that Abd and

       Ziad owned, respectively, thereby placing them at the spot where Mahmoud’s

       corpse was found the next morning. Additionally, the fingerprint found on

       Mahmoud’s safe partially matched Abd’s. Mahmoud was found dead with a

       purple pillow case wrapped around his head and secured with Duck brand duct

       tape. Abd had recently purchased duct tape before the murder, and the purple

       pillow case’s pattern and color matched the pattern and color of the pillow

       Court of Appeals of Indiana | Opinion 18A-CR-780 | April 4, 2019        Page 7 of 14
       cases missing from Ziad and Abd’s bedding set. A reasonable trier of fact could

       then conclude that Abd had used the pillow case and duct tape to kill

       Mahmoud. Therefore, the evidence is sufficient to support the murder

       conviction.


[15]   Second, as to the robbery conviction, the record reveals that before this

       incident, Abd and Ziad had small incomes and were not able to make timely

       car or rent payments. A reasonable trier of fact could conclude that Abd had the

       financial incentive to rob someone like Mahmoud, whom he knew, for

       pecuniary gain. Cell phone records indicate that during the early morning hours

       of Mahmoud’s robbery and murder, Abd and Ziad were somewhere at or near

       Taxesmart. Furthermore, Abd and Ziad travelled to Detroit immediately after

       the time of the murder and then returned to Indianapolis a few days later. Abd

       and Ziad were able to purchase a house in Detroit, pay off existing bills, send

       money to family in Iraq, and finish paying off their vehicles. Based on this

       evidence, a reasonable trier of fact could conclude that Abd had the intent to

       rob Mahmoud, was at Taxesmart at the time of the robbery, and committed the

       robbery, using the proceeds as described herein. In sum, the evidence is

       sufficient to support the robbery conviction.


                               II. Admission of Evidence
[16]   Second, Abd argues that the trial court improperly admitted character evidence

       related to his smoking habits, dirty apartment, prior bad acts, and aggressive

       attitude because its prejudicial effect outweighed its probative value.

       Court of Appeals of Indiana | Opinion 18A-CR-780 | April 4, 2019            Page 8 of 14
[17]   When there is a challenge to a trial court’s admission of evidence, we will

       reverse only where the decision is clearly against the logic and effect of the facts

       and circumstances before it. Fansler v. State, 100 N.E.3d 250, 253 (Ind. 2018).

       However, Abd did not object to the introduction and admission of this evidence

       at trial. Therefore, we may review the admission of such evidence only for

       fundamental error. Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010). “The

       fundamental error exception is extremely narrow, and applies only when the

       error constitutes a blatant violation of basic principles, the harm or potential for

       harm is substantial, and the resulting error denies the defendant fundamental

       due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006) (internal

       quotations omitted).


[18]   Indiana Rule of Evidence 403 states that “[t]he court may exclude relevant

       evidence if its probative value is substantially outweighed by a danger of one or

       more of the following: unfair prejudice, confusing the issues, misleading the

       jury, undue delay, or needlessly presenting cumulative evidence.” In other

       words, even if particular evidence is probative and could assist a jury in

       reaching its decision, the trial court can still exclude the admission of said

       evidence if it believes that the evidence will prejudice one party for any of the

       aforementioned reasons. Furthermore, Indiana Rules of Evidence 404(a)(1) and

       404(b)(1) prohibit the introduction of specific character traits or bad acts to

       prove that in this instance, the defendant acted in conformity with those traits

       or prior bad acts.




       Court of Appeals of Indiana | Opinion 18A-CR-780 | April 4, 2019           Page 9 of 14
[19]   While a foundation of our system of jurisprudence is that the State may not

       punish a person for his character, Penley v. State, 506 N.E.2d 806, 808 (Ind.

       1987) (highlighting the dangers of letting a jury convict and deprive someone of

       his rights based solely on inferences of bad character and past mistakes), we

       cannot say in this instance that the trial court committed fundamental error by

       admitting the evidence related to Abd’s smoking habits, dirty apartment, prior

       bad acts, and aggressive attitude.


[20]   Indiana Rule of Evidence 404(b)(2) permits the admission of character evidence

       or evidence of prior bad acts to prove “motive, opportunity, intent, preparation,

       plan, knowledge, identity, absence of mistake, or lack of accident.” It is

       conceivable that the State proffered evidence of Abd’s living habits and attitude

       to demonstrate why he wanted to rob and murder Mahmoud in the first place.

       Due to his dire financial straits and poor living habits, Abd had the motive and

       intent to rob someone close to him whom he knew was financially successful.

       Evidence of Abd’s poor living conditions reflected his inability to maintain a

       clean home and his desire to rob someone else for wealth. After all, as the State

       points out, Abd and Ziad were able to secure better housing, pay off their debts,

       and improve their lives following Mahmoud’s murder. While evidence used

       solely to defame someone’s character to prove that he is more apt to commit a

       crime is prohibited, Rhodes v. State, 771 N.E.2d 1246, 1253 (Ind. Ct. App. 2002),

       evidence used to show motive is acceptable. We find that the admission of this

       evidence did not constitute fundamental error because it did not amount to a

       blatant violation of basic principles that denied Abd fundamental due process.


       Court of Appeals of Indiana | Opinion 18A-CR-780 | April 4, 2019        Page 10 of 14
[21]   Moreover, even if the trial court erroneously admitted this evidence, it was, at

       most, harmless error. We cannot hold that this isolated evidence of Abd’s living

       habits and negative attitude significantly impacted the jury’s decisionmaking, in

       light of the significant, independent evidence that could lead a reasonable trier

       of fact to convict Abd of both murder and felony robbery. Plus, the landlord’s

       testimony was extensive, and he primarily discussed Abd’s inability to make

       payments on time. The testimony in contention surfaced only once in a trial

       that took nearly ten days and involved multiple witnesses and exhibits. See

       Fleener v. State, 656 N.E.2d 1140, 1142 (Ind. 1995) (holding that the trial court’s

       admission of a negative statement is harmless error when there is sufficient,

       independent evidence of guilt). Thus, we do not find that the trial court

       committed fundamental error by admitting this evidence.


                                      III. Jury Instruction
[22]   Finally, Abd argues that the trial court erroneously provided an incomplete jury

       instruction. More specifically, Abd claims that the trial court should have

       instructed the jury that the evidence had to overcome every reasonable theory

       of innocence.


       At trial, Abd neither objected to the instruction nor asked for a new one.

       Therefore, we will only reverse if the instruction amounted to fundamental

       error. Hopkins v. State, 759 N.E.2d 633, 638 (Ind. 2001). For an error to be

       fundamental, it must be “so prejudicial to the rights of a defendant as to make a

       fair trial impossible.” Id.

       Court of Appeals of Indiana | Opinion 18A-CR-780 | April 4, 2019         Page 11 of 14
[23]   Once again, the contested jury instruction reads as follows:


               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 with all the
               other evidence in the case in making your decision.

               To overcome the presumption of innocence, the State must prove
               the Defendant guilty of each element of the crime charged, beyond
               a reasonable doubt.


       Appellant’s App. Vol. III p. 136. Abd alleges that the trial court erred when it

       did not include a reasonable theory of innocence instruction as mandated by

       our Supreme Court in Hampton v. State, 961 N.E.2d 480, 486 (Ind. 2012); see also

       Hawkins v. State, 100 N.E.3d 313, 316 (Ind. Ct. App. 2018).


[24]   In Hampton, our Supreme Court discussed at length why trial courts must

       include this jury instruction in particular circumstances:


               [B]ecause Indiana jurisprudence recognizes the importance of such
               an instruction in certain cases involving circumstantial evidence
               but our case law reveals a reluctance to find reversible error for
               failure to give the instruction if there is substantial direct evidence
               of guilt, we . . . direct that the “reasonable theory of innocence”
               instruction is appropriate only where the trial court finds that the
               evidence showing that the conduct of the defendant constituting
               the commission of a charged offense, the actus reus, is proven
               exclusively by circumstantial evidence. As discussed above, to
               deny the availability of a “reasonable theory of innocence”
               instruction whenever there is any direct evidence of the fact that a
               criminal offense has occurred, however, could render the
               instruction unlikely ever to be used, but requiring the instruction
               whenever there is no direct evidence of any single element would
               compel its use in almost all criminal cases because mens rea is often
               shown only by circumstantial evidence.

       Court of Appeals of Indiana | Opinion 18A-CR-780 | April 4, 2019           Page 12 of 14
               We thus hold that, when the trial court determines that the
               defendant’s conduct required for the commission of a charged
               offense, the actus reus, is established exclusively by circumstantial
               evidence, the jury should be instructed as follows: In determining
               whether the guilt of the accused is proven beyond a reasonable doubt, you
               should require that the proof be so conclusive and sure as to exclude every
               reasonable theory of innocence.


       Hampton, 961 N.E.2d at 490-91 (emphases in original). Thus, the requirement

       to provide this reasonable theory of innocence instruction turns on whether the

       trial court determines that the evidence of the defendant’s criminal conduct is

       exclusively circumstantial. If the trial court makes that determination, it is then

       required to provide this reasonable theory of innocence instruction so that the

       jury exercises “particular caution when considering whether to find guilt based

       solely on crucial circumstantial evidence[.]” Id. at 490.


[25]   Here, because Abd did not request this jury instruction, the trial court was never

       called upon to consider whether the evidence used to show criminal conduct

       under either the robbery or murder statutes was exclusively circumstantial. See

       generally Appellant’s App. Vol. III p. 91-143. As a result, the trial court did not

       make a Hampton determination.


[26]   Because the trial court was not asked to determine that the evidence used to

       convict Abd was exclusively circumstantial, it was under no obligation to give

       the reasonable theory of innocence jury instruction. See Hawkins, 100 N.E.3d at

       318 (reversing the trial court’s ruling only after determining that it had reached

       the wrong conclusion about whether the proffered evidence was purely


       Court of Appeals of Indiana | Opinion 18A-CR-780 | April 4, 2019                 Page 13 of 14
       circumstantial). As our Supreme Court reasoned above, only when the trial

       court finds that the evidence used to prove criminal conduct is exclusively

       circumstantial is it then obligated to provide the reasonable theory of innocence

       instruction. Hampton, 961 N.E.2d at 490. This Court will not qualitatively

       define which evidence in the record was circumstantial and which was direct

       after the trial court reached no such conclusion itself. Id. at 491 (holding that

       “[w]hether an instruction is supported by the evidence is a matter for the trial

       court to determine[]”). Such a task “is already the province of the trial [court] in

       deciding whether such instruction is required in light of the nature of the

       evidence presented.” Id. at 489. And in this case, the trial court was not asked

       to make such an evidentiary determination.


[27]   Because Abd contends that the evidence used to prove criminal conduct was

       exclusively circumstantial in nature, it was incumbent upon him to request this

       instruction, forcing the trial court to make a determination on the nature of the

       evidence. Or, if Abd was then unsatisfied with the instruction provided, he

       should have objected and then explained why the reasonable theory of

       innocence instruction was warranted. Given that Abd did not raise the issue

       and that, as a result, the trial court did not make a Hampton determination, it

       was not obligated to provide the reasonable theory of innocence instruction.

       Thus, we find that the trial court did not commit fundamental error.


[28]   The judgment of the trial court is affirmed.


       Robb, J., and Pyle, J., concur.

       Court of Appeals of Indiana | Opinion 18A-CR-780 | April 4, 2019          Page 14 of 14
