State of Iowa v. Abdalla Elehamir Mousa ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1748
Filed March 2, 2022
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ABDALLA ELEHAMIR MOUSA,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg
(motion to suppress), and William P. Kelly (trial), Judges.
Abdalla Mousa appeals his conviction for third-degree sexual abuse.
AFFIRMED.
Jamie Hunter of Dickey, Campbell & Sahag Law Firm, PLC, Des Moines,
for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee.
Considered by Ahlers, P.J., Potterfield, S.J.,* and Mullins, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
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POTTERFIELD, Senior Judge.
Abdalla Mousa appeals his conviction for third-degree sexual abuse,
contending there is insufficient evidence the sex act was “by force or against the
will of” the complainant, C.K. Mousa also asserts the trial court erred in allowing
hearsay statements made ten to twelve hours after the incident as an excited
utterance; the court improperly instructed the jury and trial counsel were ineffective
in requesting an erroneous jury instruction; and the court improperly concluded his
waiver of Miranda rights1 was knowing, intelligent, and voluntary. Finding sufficient
evidence supports the conviction for third-degree sexual abuse, no error in
admitting C.K.’s excited utterances, and that Mousa’s Miranda waiver was knowing
and voluntarily entered, we affirm the conviction. We do not address claims of
ineffective assistance of counsel on direct appeal. We therefore affirm.
I. Background Facts.
On the afternoon of August 24, 2016, C.K. and her best friend, Lacey,
shared a bottle of wine at Lacey’s house. At about 7:00 p.m., C.K. drove to a bar,
where she and Lacey spent the next few hours drinking. The bartender called a
cab to take them home. Lacey was dropped off first at about 11:00 p.m. C.K.
declined Lacey’s invitation to stay with her overnight. C.K. was dropped off and
remembers being at her front gate, unable to find her cell phone or keys in her
purse. She next remembers waking up on a couch in the basement of an
unfamiliar house. Her skirt was up around her waist and a man was sitting at a
nearby table, smoking a hookah.
1See Miranda v. Arizona, 384 U.S. 436, 479 (1966) (requiring police to advise
suspects of their constitutional rights before beginning a custodial interrogation).
3
C.K. ran up the stairs avoiding Mousa’s attempts to block her. She ran out
the door of the house, yelling and screaming. Mousa followed her outside. At
1:43 a.m. on August 25, he called 9-1-1. The emergency log states the caller
reported a woman wearing a blue skirt and black t-shirt. “She is lost and
intoxicated. She was dropped off here by yellow cab.”
Two police officers responded to the dispatcher’s “trip” to the area, and
Officer Gretchen Hays located Mousa and C.K. near the curb. C.K. was “heavily
intoxicated.” Officer Hays described C.K. as “having some trouble standing on her
own, swaying, staggered gait. When I got closer to her and started talking to her,
her speech was slurred and she smelled like an alcoholic beverage.”
Mousa told Officer Hays he had seen C.K. dropped off by a cab in that area
where they were standing. He tried to help her figure out where she lived. He was
unable to do so, and that’s when he decided to call police because he did not know
who the woman was or where she was from. Mousa wanted them to figure out
how to get her home.
C.K. was disoriented and wanted to go home but did not seem to know
where she lived. Officer Hays drove as C.K. gave her several wrong addresses,
but they eventually passed a house that looked familiar—it was across the street
from Mousa’s house and just one or two houses down. After checking the mail,
Officer Hays determined it was C.K.’s home and C.K. went inside. Officer Hays
noted Mousa was nearby and went back and spoke with him again. The “trip” was
closed at 2:11 a.m.
Once home, C.K. began to notice the state of her clothes, her underwear,
and her body. The back of her skirt was smeared and stained with dirt, and her
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underwear was stiff as if “stuff had dried.” She saw fresh bruises along the inside
of her thighs and felt severe pain in her vagina. C.K. realized she did not have her
cell phone and plugged in her tablet to charge the battery. She slept for a time,
and when she awoke, she used her tablet to text Lacey. C.K. also contacted her
sister, who drove her back to the bar, where C.K. found her phone on the ground
next to her car. C.K. called Lacey and was “hysterical,” crying and sobbing. She
told Lacey she had been sexually assaulted. C.K. also called her family doctor,
went home to retrieve her clothes from the night before, and went to the hospital
for a sexual assault exam.
Sexual Assault Nurse Examiner Maridith Morris examined C.K. just after
5:00 p.m. C.K. told Morris she did not remember what had occurred but she
believed she had been sexually assaulted. Morris noted bruising on C.K.’s calves,
inner thighs, and the side of her breast at the bra line. During the pelvic exam,
Morris observed white fluid coming from C.K.’s vagina. C.K.’s cervix was reddened
and had an abrasion or scrape on it. C.K. was experiencing vaginal and abdominal
pain. Swabs taken from her vaginal area tested positive for seminal fluid, as did
the underwear she was wearing before she arrived home. While at the hospital,
C.K. spoke with a police officer and gave an initial statement.
Detective Michael DeMoss later spoke with C.K., who told him she believed
the person who assaulted her was the cab driver. Detective DeMoss’s
investigation ruled out the cab driver. Detective DeMoss then investigated phone
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calls made to C.K.’s phone—they came from Mousa.2 DeMoss telephoned Mousa
and asked him to come to the police station. The next day, Mousa arrived at the
station with his five-year-old nephew. Detective DeMoss spoke with Mousa,
explaining there was no one who could stay with the child while they spoke and
asking Mousa to return later.
On August 31, Mousa returned to the police station. Detective DeMoss
escorted Mousa to a third-floor interview room and read Mousa his Miranda rights.
Mousa signed a waiver, which was written in English. Mousa is thirty-two years
old, was born in Sudan, completed high school in Sudan, and has been in the
United States since 2006. His primary language is Arabic, but the interview was
conducted in English.
Detective DeMoss asked Mousa what happened before he called 9-1-1 on
August 26. For the next thirty to thirty-five minutes, Mousa explained—with few
interruptions by the detective—he saw a woman being dropped off by a cab. The
two friends who had been with him on his porch left. Another car drove by on the
street, stopped near the woman, and exchanged words with her. Mousa said he
shined a flashlight on the car and it drove away. He told Detective DeMoss he left
his porch and approached the woman to see if he could help her. Mousa told
Detective DeMoss several times the woman was drunk and asked him where her
car was, where her cell phone was, and how she got there. He explained the
woman typed her phone number into his phone so he could call and attempt to find
2 There were several calls from Mousa’s phone placed on August 25 to C.K.’s
number: two calls at 1:16 a.m., five calls at 1:56 a.m., one call at 9:31 a.m., one
call at 12:40 p.m., and one call at 3:25 p.m.
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it. Mousa told the detective that after about twenty-five minutes of trying to help
the woman, she started to call him names. He called 9-1-1. Mousa was there
when the police arrived to help the woman and watched as the officers tried to help
her find her way home.
The detective asked Mousa if he had any physical contact with the woman
and if he hugged or kissed her. Mousa denied any physical contact. He denied
the woman had been in his house. After about seventy minutes in the interview,
Mousa requested a lawyer and the interview ceased.
A buccal swab was later obtained from Mousa. Lab analysis of the swabs
from C.K.’s sexual assault exam matched Mousa’s DNA. Mousa was charged with
third-degree sexual assault, in violation of Iowa Code sections 709.1 and
709.4(1)(a) (2016).
Mousa filed a motion to suppress his statements made to Detective
DeMoss, asserting his waiver of his Miranda rights was not knowing and voluntary.
He offered the report of a forensic psychiatrist, Dr. Jerome Fialkov, who opined:
In my professional opinion as a board-certified psychiatrist,
licensed in the State of Iowa, the Defendant appeared to have an
inadequate understanding of his rights to silence and legal counsel
before and during police questioning. His appreciation of rights was
substantially impaired.
Based upon my admittedly abbreviated evaluation, it is my
opinion to a reasonable degree of certainty that because of
intellectual and cultural limitations, the Defendant’s abilities to
meaningfully understand his Miranda rights and appreciate the
consequences of waiving them were compromised when he was
interrogated by the police officer on [August 31,] 2016 and more than
two years later he is (apparently) none the wiser.
The district court held a hearing, received testimony, viewed the recording
of Mousa’s interview, and denied the motion:
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Contrary to the evidence offered by [Mousa], [his] ability to
understand and communicate in English and to understand the
Miranda warnings and rights were demonstrated for over one hour in
the interview session. Clearly, [Mousa] had a complete ability to
speak, understand, and to communicate in the English language.
The court observed no pressuring by Officer DeMoss which
overborne the will of [Mousa] to either speak to the officer and/or to
waive his rights per Miranda and to engage in the interview. In fact,
it appeared [he] was eager to speak as Officer DeMoss asked few
questions during the entire one hour plus interview. The credibility
of Dr. Fialkov’s forensic psychiatry evaluation is highly suspect.
From the description Dr. Fialkov gave of [Mousa] during the
evaluation, it is not unreasonable to surmise that [Mousa] was either
being evasive or engaged in a tactic or tactics to convince Dr. Fialkov
that he could not understand English at all.
....
Based upon what the court observed in the DVD interview with
Officer DeMoss and also the testimony of [a legal assistant with the
county attorney’s office who spoke to Mousa], the court finds that the
findings of Dr. Fialkov are completely unsupportable. [Mousa] even
demonstrated his awareness of his Miranda rights when he indicated
that he would not provide a buccal swab without first speaking with
his attorney.
Accordingly, the motion to suppress is hereby denied except
for those portions that occurred during the interview after [Mousa]
wished to talk to an attorney.
At trial, Lacey testified she and C.K. were “pretty drunk” when they left that
bar in the cab. Over the defense’s hearsay objection, Lacey testified C.K. called
her in the afternoon and was “hysterical,” crying, and speaking fast. C.K. told
Lacey she thought she had been sexually assaulted, she was in pain and was
headed to the hospital. Lacey also testified C.K. had undergone a medical
procedure involving her uterus just months before, and when asked if C.K. was
actively looking for sexual partners when they went out, she responded, “No, not
at all.”
C.K. testified she and Lacey were intoxicated when they left the bar on
August 24 and the bartender called them a cab. She stated she had no memory
8
of any event between the time she was dropped off by the cab driver and was
standing by her fence unable to find her keys and the time she woke up on a couch
in Mousa’s basement. C.K. testified she “blacked out” and, when she came to,
she was still intoxicated. She did not know how her phone number would be on
Mousa’s phone. When she got her phone back, she ignored a text message and
calls from Mousa’s number because she did not recognize the number, and she
reported the calls to the police. She testified she had her uterus removed four or
five months prior to the assault and had not engaged in any sexual activity. C.K.
stated she did not have the ability to say no to Mousa or resist him, and the sex
act that occurred was against her will. On cross-examination C.K. stated she had
blacked out due to intoxication before.
The jury viewed Mousa’s interview with Detective DeMoss.
Mousa testified, stating he saw C.K. getting dropped off near his house and
she “came straight to me” and up on his porch. Mousa stated, “She was drunk,
but she was not falling over drunk.” She asked him if he had a phone because she
needed to find her phone. C.K. put her phone number into his phone and tried to
call her own phone “multiple times.” Mousa stated C.K. asked him for a beer but
he didn’t give her one. Then, while the two of them were sitting on his porch, C.K.
started “touching me and touched my cock,” “gave me a blow job,” “pulled down
her skirt and sat on my penis.” Mousa stated the sex was not forced. He said that
after he ejaculated, C.K. tried to walk into his house but he stopped her. She then
“got mad,” screaming, shouting, and pacing in front of the house. That is when
Mousa called the police.
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The jury found Mousa guilty and he now appeals, contending there is
insufficient evidence that sex with C.K. was by force or against her will. Mousa
also argues the court erred in allowing Lacey to testify about C.K.’s call to her,
improperly instructed the jury, and denied Mousa’s motion to suppress statements
made during a custodial interrogation. He stated he called C.K.’s number three
times the following day to offer to give her a ride to her car.
II. Scope and Standards of Review.
We review challenges to the sufficiency of the evidence for correction of
legal errors. State v. Jones, 967 N.W.2d 336, 339 (Iowa 2021). “We review
evidentiary rulings on hearsay for errors at law.” State v. Skahill, 966 N.W.2d 1, 8
(Iowa 2021). The voluntariness of Mousa’s statements to law enforcement
implicates constitutional issues, so review is de novo. State v. Ortiz, 766 N.W.2d
244, 249 (2009).
III. Discussion.
Sufficiency of the evidence. Under Iowa Code section 709.4(1)(a), “[a]
person commits sexual abuse in the third degree when the person performs a sex
act” if “[t]he act is done by force or against the will of the other person.” Mousa
asserts there is insufficient evidence his sex act with C.K. was by force or against
her will. He notes “the fact that she had been drinking does not mean that the sex
act was against her will or by force. There was no evidence that she protested,
resisted, or was in fear.” While he acknowledges C.K.’s testimony that she could
not recall what happened, he argues “the surrounding facts and circumstances
demonstrate that C.K. was walking around and able to converse during this period
of time.”
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We view the evidence in the light most favorable to upholding the verdict,
accepting any legitimate inferences and presumptions. State v. Shanahan, 712
N.W.2d 121, 134 (Iowa 2006). We will uphold a verdict if substantial evidence
supports it. Id. Evidence is substantial if it would convince a rational fact finder
that the defendant is guilty beyond reasonable doubt. Id.“Against the will of the other person” means without the victim’s consent.
State v. Meyers, 799 N.W.2d 132, 142–46 (Iowa 2011) (noting “consent remains
the lynchpin of the crime, and the legislature has sought over the years to identify
more specific circumstances of nonconsent while leaving the broader ‘against the
will’ standard in place to capture all circumstances of actual nonconsent” and
“section 709.4(1) does not require evidence of both force and lack of consent, but
one or the other”). As the finders of fact, we recognize the jury is free to credit or
reject certain evidence. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). “[W]e
do not resolve conflicts in the evidence, pass upon the credibility of witnesses, or
weigh the evidence.” State v. Hutchison, 721 N.W.2d 776, 780 (Iowa 2006).
Mousa contends the sex act was consensual—“she started the whole
thing.” His description of his encounter with C.K. at trial was very different from
the description he gave to Detective DeMoss.
C.K. testified she was blacked out and had no ability to consent to sex. On
cross-examination, C.K. was asked:
Q. But to be very clear, based on your testimony, you blacked
out right when you got to your gate; correct? A. Yes.
Q. You came to on that couch; correct? A. Yes.
Q. Between those two periods of time, you have no
recollection of what happened? A. Correct.
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Q. So to be fair, you can’t really testify to what exactly
happened between those two periods of time? A. To be fair, I would
say that I sure don’t remember that, so I couldn’t have given consent.
Q. But we’re not quite sure what caused that blackout;
correct? . . . A. I already stated to you, sir, that I have blacked out
before because of alcohol. And the bruise on my head appeared
over a day after I went and saw the nurse, so I’m pretty sure that I
blacked out. I’ve experienced it before. I know the symptoms.
Nurse Morris described the bruising and other injuries she observed during
her examination of C.K. When asked a hypothetical question, she testified a
person who has blacked out cannot give consent.
Mousa testified C.K. was drunk. Whether C.K. was so intoxicated that she
could not apprise her own conduct or she was unconscious, the jury could
determine C.K. could not give meaningful consent to a sex act with Mousa—a
stranger she encountered when she got out of the cab. There is substantial
evidence to support the jury’s finding that the sex act was committed against C.K.’s
will.
Excited utterance exception. The trial court allowed Lacey to testify about
C.K.’s statements made on the phone call on the afternoon of August 25 under the
excited utterance exception to the hearsay rule. As our supreme court has recently
explained:
An excited utterance is “[a] statement relating to a startling event or
condition, made while the declarant was under the stress of
excitement that it caused.” Iowa R. Evid. 5.803(2). The statement
must be made under the excitement of the incident and not on
reflection or deliberation. State v. Mateer, 383 N.W.2d 533, 535
(Iowa 1986). The rationale for the exception is that when a declarant
makes a statement under the stress of the excitement, the declarant
is less likely to fabricate than if the statement was made under
reflection or deliberation. State v. Tejeda, 677 N.W.2d 744, 753
(Iowa 2004).
State v. Dessinger, 958 N.W.2d 590, 601 (Iowa 2021).
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We employ a five-factor test to determine whether a statement qualifies as
an excited utterance:
(1) the time lapse between the event and the statement, (2) the
extent to which questioning elicited the statements that otherwise
would not have been volunteered, (3) the age and condition of the
declarant, (4) the characteristics of the event being described, and
(5) the subject matter of the statement.
Id. (citation omitted). “While time-lapse is important, statements made hours and
even days after the event have been admissible.” Id. (citing Mateer, 383 N.W.2d
at 535 (one hour); State v. Galvan, 297 N.W.2d 344, 346 (Iowa 1980) (two days);
State v. Stevens, 289 N.W.2d 592, 596 (Iowa 1980) (one hour); State v. Stafford,
23 N.W.2d 832, 835–36 (Iowa 1946) (fourteen hours)).
We find no error in the court admitting testimony concerning C.K.’s
“hysterical” call made hours after C.K. awoke not knowing where she was or how
she got there, believing she had been sexually assaulted.
Jury instruction and ineffective assistance of counsel. Mousa seeks to
overturn his conviction, arguing a jury instruction requested by defense counsel
was improper, the court erred in giving it, and his trial counsel were ineffective in
seeking it. Because defense counsel requested the instruction, there is no error
preserved for our review. See State v. Beckwith, 53 N.W.2d 867, 869 (Iowa 1952)
(“Defendant cannot now predicate error upon the court’s doing the very thing they
requested the court to do.”).
Anticipating we would find any error concerning the instruction waived,
Mousa asserts trial counsel were ineffective. We do not address the claim
because, pursuant to Iowa Code section 814.7, “Iowa courts are ‘without the
authority to decide ineffective-assistance-of-counsel claims on direct appeal.’”
13
State v. Jackson-Douglass, ____ N.W.2d ___, ___, 2022 WL 332824, at *4 (Iowa
2022); State v. Treptow, 960 N.W.2d 98, 103 (Iowa 2021); State v. Tucker, 959
N.W.2d 140, 154 (Iowa 2021).
In the alternative, Mousa asks that we recognize plain error. We are bound
by precedent to deny his request. See Treptow, 960 N.W.2d at 109 (“We have
repeatedly rejected plain error review and will not adopt it now.”).
Miranda waiver. Mousa maintains the court erred in finding his waiver of
Miranda rights was knowing and voluntary.
In order to execute a valid waiver of one’s Miranda rights, the waiver
must be made “knowingly, intelligently, and voluntarily.”
“‘[V]oluntariness’ for . . . due process purposes and Miranda
purposes are identical.” Therefore, “a Miranda waiver is involuntary
only when it is shown to be the product of police misconduct or
overreaching.” “For a waiver to be made voluntarily, the
relinquishment of the right must have been voluntary, meaning it was
the product of the suspect’s free and deliberate choice rather than
intimidation, coercion, or deception.” The question of whether a
suspect voluntarily waived his or her Miranda rights “is to be made
by inquiring into the totality of the circumstances surrounding the
interrogation, to ascertain whether the suspect in fact ‘decided to
forgo his rights to remain silent and to have the assistance of
counsel.’”
State v. Tyler, 867 N.W.2d 136, 174–75 (Iowa 2015) (alterations in original)
(citations omitted).
On our de novo review, the video of Mousa’s interview supports a finding
that Mousa understands and converses in English, was able to understand the
Miranda warnings, and that he waived them voluntarily. The court properly denied
the motion to suppress.
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IV. Conclusion.
Finding sufficient evidence supports the conviction for third-degree sexual
abuse and no error in admitting hearsay as an excited utterance, and determining
Mousa’s Miranda waiver was knowing and voluntarily entered, we affirm the
conviction.
AFFIRMED.