Abdallah v. State

Decision Date22 December 2021
Docket Number3D19-1581
CourtFlorida District Court of Appeals
PartiesNimer Abdallah, Appellant, v. The State of Florida, Appellee.

Not final until disposition of timely filed motion for rehearing.

An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. F16-21185, Marisa Tinkler Mendez, Judge.

Law Offices of Kawass, P.A., and Kristen A. Kawass, for appellant.

Ashley Moody, Attorney General, and Gabrielle Raemy Charest-Turken and Ivy R. Ginsberg, Assistant Attorneys General, for appellee.

Before LOGUE, SCALES and LOBREE, JJ.

ON MOTION FOR ISSUANCE OF A WRITTEN OPINION

SCALES, J.

We deny appellant Nimer Abdallah's motion for rehearing, but grant his motion seeking issuance of a written opinion withdraw our unelaborated per curiam affirmance of June 30 2021, and substitute the following opinion in its place.

Abdallah appeals his criminal conviction of two counts of sexual battery enhanced by specified circumstances and one count of burglary with assault and battery. Specifically, Abdallah argues that the trial court erred by denying his motions for judgment of acquittal and his request for a special jury instruction, and by making several evidentiary rulings. Because we find no reversible error, we affirm.

I. Background
A. The Alleged Crimes

On Friday October 14, 2016, K.N. and her friend, Adriana, each consumed one alcoholic drink in K.N.'s Miami apartment. They then took an Uber to a restaurant in Coral Gables. They sat at the restaurant's bar and had more drinks. After having a disagreement with the bartender, and feeling bothered by two men at the bar, the two women retreated to the bathroom. There, K.N. started to feel woozy and sick. When they emerged from the bathroom, they sat on some stools at the restaurant's outside seating area.

Almost immediately, K.N. fell off the stool and hit her head. From that point onward, she had no recollection of that night.

The restaurant manager told them to leave and, apparently, summoned an Uber using K.N.'s phone. Abdallah was the Uber driver. After he arrived at the restaurant, Abdallah was initially reluctant to drive K.N. and Adriana, concerned that they were intoxicated and might vomit in his car. Eventually, though, Abdallah agreed to drive the two women back to K.N.'s apartment.

When they arrived at K.N.'s apartment, the women had trouble getting out of Abdallah's car and, upon finally emerging from the car, K.N. laid on the sidewalk. Abdallah agreed to assist K.N. from the sidewalk to her apartment. Accompanied by Adriana, Abdallah carried K.N. to an elevator and then into her apartment. Abdallah had K.N.'s key fob for entry to both K.N.'s apartment building and her unit, though neither K.N. nor Adriana could recall how he came to possess it. Surveillance video showed the three of them at the exterior of the apartment building and their entry into the building and its elevator. The elevator video showed Abdallah propping up K.N. while Adriana stood apart from them. The video surveillance showed that eight to nine minutes elapsed between Abdallah's entry into the elevator with the two women and his eventual departure alone. What occurred during those eight to nine minutes is disputed.

In his sworn statement to police, Abdallah admitted to having a sexual encounter with K.N. in her bedroom. Specifically, he admitted that he had both digitally penetrated and touched his penis against K.N.'s vagina. He insisted that the encounter was consensual, initiated by K.N. kissing him. In her testimony, Adriana described the events in K.N.'s apartment differently. She testified that Abdallah carried an incoherent K.N. into the bedroom and placed K.N.'s limp body on her bed. Instead of leaving, Abdallah stood over K.N. Adriana did not see K.N. kiss Abdallah or give him any invitation. Adriana testified that she told Abdallah to leave, and Abdallah responded by pulling her arm and telling her to join him and K.N. Adriana fled the room and locked herself in the bathroom, where she blacked out. Because K.N. was unable to recall any of the evening's events occurring in her apartment, she could not rebut, at trial, Abdallah's version of events.

The next morning, a Saturday, K.N. stirred awake and was confused about why she was in bed and partially naked. She found Adriana in the living room. Together, they tried to recall the previous evening, and found the Uber call and a reference to Abdallah on K.N.'s phone. After Adriana left K.N.'s apartment, K.N. found semen stains on her comforter; DNA testing later matched them to Abdallah.[1] The Monday morning following the incident, K.N. went to a rape treatment center for examination.

B. K.N.'s Settlement of a Civil Suit against Uber

The day after the alleged sexual assault, and before K.N. went to the rape treatment center, K.N. contacted Uber. About a year later, K.N. participated as a plaintiff in a federal class action civil lawsuit against Uber filed in California. The plaintiffs were Uber passengers who had suffered alleged sexual assaults or sexual harassment by Uber drivers. The parties entered into a confidential settlement agreement before the start of Abdallah's criminal trial. K.N. did not sue Abdallah civilly.

C. The Charges

A month after the incident, the State charged Abdallah with two felony counts: (i) violating section 794.011(4)(b) of the Florida Statutes by his digital penetration and/or digital union with K.N.'s vagina; and (ii) violating section 794.011(4)(b) by his penile penetration and/or penile union with K.N.'s vagina. Both of these sexual battery counts were charged with special circumstances enhancements based on K.N.'s alleged physical helplessness (under section 794.011(1)(e)) and physical incapacitation (under section 794.011(1)(j)). In an amended information, the State added a felony burglary charge of violating section 810.02 of the Florida Statutes by entering and then remaining in K.N.'s apartment with the intent to commit sexual battery.

D. Trial, Motions for Judgment of Acquittal, Verdict and Sentence

Abdallah's criminal trial was conducted in May of 2019. While Abdullah did not testify, his recorded statement to police was entered into evidence and played to the jury. During the trial, Abdallah made a motion and a renewed motion for judgment of acquittal as to all three counts. The trial court denied both motions. Ultimately, the jury found Abdallah guilty of all three charges and the trial court sentenced Abdallah to 170.25 months in prison, followed by ten years of probation. Abdallah timely appealed.

II. Analysis

Abdallah raises five separate issues on appeal.[2] We address each in turn.

A. Denial of motions for judgment of acquittal[3] Abdallah first asserts that the trial court erred by denying his motions for judgment of acquittal. Abdallah argues that the State failed to establish, with competent, substantial evidence each element of the charged crimes. We first address the two sexual battery counts, then the related burglary charge.

1. The sexual battery charges - section 794.011 (4)(b) a. The relevant statute - elements of the crime

Section 794.011(4)(b) of the Florida Statutes provides, in relevant part: "A person 18 years of age or older who commits sexual battery upon a person 18 years of age or older without that person's consent, under any of the circumstances listed in paragraph (e), commits a felony of the first degree[.]" § 794.011(4)(b), Fla. Stat. (2016).[4] The referenced paragraph (e) contains a schedule of seven specified circumstances that relate to and enhance the charge, making it a first-degree felony. In this case, the State alleged that K.N. was both "physically helpless to resist" and "physically incapacitated," thus implicating, respectively, the special circumstances described in subsections 794.011(4)(e)1. and 6.

Hence, the elements of a sexual battery pursuant to section 794.011(4)(b) are as follows: (i) a sexual battery as defined by section 794.011(1)(h); (ii) the act was not consented to; and (iii) as relevant here, the victim was either "physically unable to resist" or "physically incapacitated," as defined in sections 794.011(1)(e) and (j). See Coley v. State, 616 So.2d 1017, 1019 (Fla. 3d DCA 1993). The trial court incorporated these elements in its jury instructions.[5]

Abdallah asserts that the State failed to adduce evidence that K.N. was either physically helpless or physically incapacitated; Abdallah also argues that K.N. consented. Conceding that K.N. was inebriated, Abdallah argues that there was not competent, substantial evidence that K.N.'s state of inebriation reached a point of physical helplessness or physical incapacitation at which she could not resist him. And, according to Abdallah, she would have no cause to resist him because she consented to the sexual encounter.

b. The State's evidence and our standard of review While Abdallah urges us to accept his version of events, we do not reweigh the evidence presented to the jury. Fitzpatrick v. State, 900 So.2d 495, 508 (Fla. 2005) ("The fact that the evidence is contradictory does not warrant a judgment of acquittal because the weight of the evidence and the witnesses' credibility are questions solely for the jury. It is not this Court's function to retry a case or reweigh conflicting evidence submitted to the trier of fact.") (citation omitted). Our inquiry is limited to whether the jury's verdict is supported by competent, substantial evidence. Arroyo v. State, 252 So.3d 374, 379 (Fla. 3d DCA 2018) ("[W]e will not reverse if there is competent substantial evidence supporting the jury's finding."). "In moving for a judgment of acquittal, a defendant 'admits not only the facts stated in the evidence adduced, but also admits every...

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