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«No. M2015-01360-CCA-R3-CD – Filed August 22, 2016 Following a jury trial, the Defendant, Mervan Eyup Ibrahim, was convicted of two counts of ...»

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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 19, 2016

STATE OF TENNESSEE v. MERVAN EYUP IBRAHIM

Appeal from the Criminal Court for Davidson County

No. 2012-D-3544 J. Randall Wyatt, Jr., Judge

No. M2015-01360-CCA-R3-CD – Filed August 22, 2016

Following a jury trial, the Defendant, Mervan Eyup Ibrahim, was convicted of two counts of aggravated rape, a Class A felony. See Tenn. Code Ann. § 39-13-502. The trial court subsequently sentenced the Defendant to twenty-five years‟ incarceration to be served at one hundred percent. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his convictions because the State failed to prove that the victim suffered a bodily injury; (2) that the trial court erred in denying his motion to suppress his interview with the police; (3) that the trial court erred in admitting the audio recording of a 911 call; (4) that the trial court erred in allowing a witness to read, verbatim, portions of a report made during a forensic medical examination of the victim and in admitting that report into evidence; (5) that the trial court erred in denying his motion for a mistrial after one of the witnesses stated that the Defendant “had engaged in the illegal sale of marijuana and the illegal acquisition of Xanax pills” on the night of the offenses; and (6) that the State committed prosecutorial misconduct during its rebuttal closing argument. Following our review, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and TIMOTHY L. EASTER, JJ., joined.

David Harris (at motion for new trial hearing and on appeal); and Patrick T. McNally (at trial), Nashville, Tennessee, for the appellant, Mervan Eyup Ibrahim.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Amy Hunter, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

The victim, J.L.,1 testified at trial that in November 2012, she was “living a nomadic lifestyle,” addicted to the opioid Dilaudid, “recreationally” using cocaine, and “would prostitute sometimes” to support her addiction. J.L. testified that she had been prostituting herself for “a couple of months” on Dickerson Road in Nashville and that the area was “known” for prostitution. J.L. stated that on November 12, 2012, she was picked up by a man on Dickerson Road, she went to the man‟s house, she performed oral sex on the man in exchange for forty or sixty dollars, and the man drove her back to Dickerson Road. J.L. testified that she “only had one date that night” because she “had gotten the money that [she] needed” to buy more Dilaudid. According to J.L, she walked along Dickerson Road for three or four hours after the man dropped her off because she was planning to meet a friend later.

At some point, the Defendant2 got J.L.‟s attention and offered her a ride in his “green GMC Jimmy.” J.L. testified that she did not know the Defendant, but she did not hesitate to get in the Defendant‟s SUV because “[i]t was really cold” that night.

According to J.L., she and the Defendant started “talking about partying,” and the Defendant “mentioned that he could get some Xanax.” J.L. told the Defendant that “it sounded... good to [her].” J.L. explained that she “really didn‟t have anything else to do... [and the Defendant] was talking about having a good time and drinking and getting some Xanax and [she] didn‟t see any reason not to” go with him. J.L. testified that at no point did she discuss having sex with the Defendant and that he never offered her drugs or money in exchange for sex.

The Defendant offered to buy J.L. a beer. J.L. accepted, and they stopped at a gas station where the Defendant purchased the beer and talked to someone J.L. did not know.

After stopping at the gas station, J.L. believed that they “were going to [the Defendant‟s] friend‟s house to hang out and buy some Xanax and drink a beer.” The Defendant eventually took her to a house on Eckhart Drive. The Defendant got out of the SUV and told her to give him “a minute.” J.L. testified that she assumed the Defendant “was checking to see if his friend was home.” The Defendant returned and said, “[I]t‟s cool, come on.” J.L. recalled that as she and the Defendant walked to the front door, the Defendant said that “the electricity [was] off” inside the house.

J.L. testified that “as soon as the door [shut],” she realized “it was a vacant house.” There was no furniture in the house; J.L. recalled only seeing empty beer cans and other It is the policy of this court to refer to victims of rape by their initials.

J.L. admitted that she was shown two photographic lineups and that she was unable to identify her attacker. However, J.L. identified the Defendant in court as the man who attacked her.

-2trash. According to J.L., the Defendant‟s demeanor changed once the door closed. The Defendant grabbed her hair, said, “Come on, b---h,” and “pull[ed] [her] up the stairs.” J.L. testified that “[i]t hurt” when the Defendant pulled her hair. J.L. further testified that she “was in complete shock” and “was just kind of going with it because [the Defendant] was dragging [her].” The Defendant took J.L. into an empty bedroom and demanded, “[B]---h, you get undressed.” Once J.L. undressed, the Defendant pulled her into a bathroom, put his hands on her shoulders, “shoved [her] on [her] knees,” and “stuck his penis in [her] mouth.” J.L.





testified that she was crying, shaking, telling the Defendant no, and trying to back away.

The Defendant “smacked [her] two or three times with [his] open hand” and said, “Whose your daddy? B---h, you‟re mine now. If you do what I say I won‟t hurt you. I won‟t kill you.” J.L. tried to back away again, and the Defendant “grab[bed] the back of [her] head and shove[d]... his penis down [her] throat.” J.L. gagged and “actually threw up a little bit.” The Defendant responded by saying, “Yeah, b---h, I want you to throw up.” After J.L. vomited, the Defendant told her to stand up and “put [her] hands on the wall over the toilet.” J.L. testified that she was terrified, that she repeatedly told the Defendant “no,” and that she was crying and shaking the whole time. J.L. further testified that she “freaked out” when she realized that the Defendant was about to “stick his penis... in [her] anus.” J.L. told the Defendant that she did not “do that” and that she “physically [could not] do that.” The Defendant responded by saying, “What b---h” and then “did it anyway.” J.L. testified that it hurt when the Defendant penetrated her anus but that “thank God[,] it didn‟t last as long as [she] thought it would.” She quickly heard the Defendant say, “Damn, girl, I came all over you.” J.L. testified that she could feel “[h]is cum all over [her].” J.L. then sat down on the toilet, crying, and asked the Defendant if she could put her clothes back on because she was “freezing.” The Defendant told her “no.” After the Defendant got dressed, he went in the other room and “was going through [her] stuff.” The Defendant came back into the bathroom and told her not to leave the house until after he did. J.L. testified that she heard the Defendant “speed off” and watched from the bathroom window as the Defendant drove away. J.L. was able to find her clothes and get dressed. J.L. discovered that her money was gone. J.L. could not find the door, so she opened a window, pushed out the screen, and “tumbled out” onto a bush.

J.L. ran to the first house she saw with “a big flood light” on. J.L. “[b]anged on the door” until a man answered. J.L. was “crying [and] telling him [that she] had just been raped.” The man called 911 for her, and the police arrived shortly thereafter. J.L.

was taken to a hospital where a forensic medical examination was performed on her. J.L.

had a scratch on her left arm from breaking the screen out of the window. J.L. testified

-3that she experienced pain while the Defendant penetrated her anus and that her anus hurt for “about a week.” J.L. also testified that her head “hurt a little bit” from being hit and that it hurt until she was “able to go home and sleep.” Tucker Daniel testified that he lived near the vacant house on Eckhart Drive. Mr.

Daniel recalled that on November 12, 2012, the victim “was knocking pretty loudly” and “with a sense of urgency” on his door. When he saw the victim standing outside, Mr.

Daniel noticed that she “seemed pretty distressed.” Mr. Daniel explained that she “kept looking over her shoulder,... kind of looking back and forth.” When he opened the door, the victim said that she had been raped and asked Mr. Daniel to call 911. Mr.

Daniel testified that the victim “was very shaken up,” seemed “really panicked” and “very scared,” and acted like she “didn‟t want to stand outside any longer.” Mr. Daniel let the victim inside while he called 911. Mr. Daniel testified that he did not know the victim and had not seen her since that day.

An audio recording of the 911 call was played for the jury. At several points during the recording, J.L. can be heard crying in the background. Mr. Daniel begins the call by saying that “a lady just came to [his] door and said that she was raped.” Mr.

Daniel gave his address and a description of J.L. to the 911 operator. Mr. Daniel stated that J.L. was “pretty messed up, pretty upset.” The 911 operator then began to ask several question which J.L. could hear. J.L. could be heard in the background answering the questions, followed by Mr. Daniel‟s repeating the answers back to the 911 operator.

At one point, J.L. stated that she was “held hostage in that vacant house over there.” J.L.

also stated that she did not know the rapist because she had just met him but that she thought his name was M.J. J.L. provided the 911 operator with a physical description of the Defendant and his SUV.

Kristi Smith testified that she was a friend of the Defendant‟s and that she had an “interaction” with him at a gas station on November 12, 2012. Ms. Smith recalled that she saw J.L. with the Defendant that night. Ms. Smith testified that she did not know J.L.

and that she had not seen her before or after November 12, 2012. Photographs from the gas station‟s surveillance system were entered into evidence at trial. The photographs showed the Defendant‟s SUV at the gas station, the Defendant‟s and Ms. Smith‟s speaking to each other inside the gas station, and the Defendant‟s purchasing a beer.

Officers searching the vacant house on Eckhart Drive found one of the windows open with the screen torn off. They also found several beer cans, used condoms, and condom wrappers. The officers collected three used condoms, three beer cans, some condom wrappers, a toothbrush, and a cigarette butt from the house. Two swabs of the bathroom floor were also taken.

-4Connie Barrow testified that she was a women‟s health nurse practitioner at Nashville General Hospital. Ms. Barrow performed a forensic medical examination of the victim on November 12, 2012. Ms. Barrow recalled that J.L. “was calm and collected” and even “laughed... at times” during the examination. Ms. Barrow noted that “there [was] an extremely wide gamut of ways that people present... emotionally” after a trauma like rape. Ms. Barrow testified that there were no marks or bruises on J.L.‟s face, neck, breasts, back, or buttocks. Ms. Barrow also noted that there were no injuries to J.L‟s scalp. However, Ms. Barrow testified that it was possible to feel pain “without whatever caused the pain leaving a mark.” Ms. Barrow recalled that there were some scratches on J.L.‟s stomach and thighs along with a scratch on one of her arms.

Ms. Barrow took swabs from the victim‟s mouth, labia, perianal, and anus for subsequent forensic testing. Ms. Barrow observed redness around the victim‟s anus and “some tenderness there.” Ms. Barrow recalled that J.L. jerked away from her when she first attempted to insert the swab into her anus. Ms. Barrow testified that she asked J.L.

when the last time was that she had voluntary sex. J.L. responded that she had oral sex “earlier that evening.” Ms. Barrow testified that J.L. tested positive for benzodiazepine and cocaine.

Ms. Barrow was allowed to read verbatim from the narrative portion of her report.

This portion of the report detailed the victim‟s statements about what had happened that night, beginning with when the Defendant picked her up on Dickerson Road. Much of it was consistent with J.L.‟s testimony at trial, including her description of the attack inside the Eckhart Drive house. The narrative also included statements that the Defendant and J.L. “chit-chatted about pot and pills,” that the Defendant “got some Xanax,” and that the Defendant “sold some pot to some people in the parking lot” of the gas station.

Subsequent forensic testing by the Tennessee Bureau of Investigation revealed the presence of sperm on the anal, perianal, and labia swabs taken from the victim. Sperm and blood were also found on the victim‟s jeans. A DNA profile was recovered from the sperm found on the anal swab of the victim, and it matched the Defendant‟s DNA profile.

The other swabs were not tested for DNA. The forensic scientist who performed the DNA analysis testified that she started with the most “intimate sample” and stopped if she received a positive result, assuming that the sperm on the other samples came from the same individual. No forensic testing was performed on any of the items taken from the Eckhart Drive house.



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