IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 21, 2012

STATE OF TENNESSEE v. ABBAS H. NEJAT A.K.A. ABBAS H. NEJAD

Direct Appeal from the Criminal Court for Davidson County

No. 2008-C-2274 Steve R. Dozier, Judge

No. M2010-00783-CCA-R3-CD - Filed October 24, 2012

A Davidson County Criminal Court Jury found the appellant, Abbas H. Nejat a.k.a. Abbas

H. Nejad, guilty of retaliation for past action, a Class E felony. The trial court sentenced the

appellant to six years in the Tennessee Department of Correction. On appeal, the appellant

challenges the sufficiency of the evidence sustaining his conviction. The appellant also

challenges the trial court’s ruling regarding the admissibility of evidence concerning the

appellant’s membership in the Kurdish Pride Gang. Finally, the appellant challenges the

sentence imposed by the trial court. Upon review, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and ROGER A. PAGE, JJ., joined.

Paul Julius Walwyn, Madison, Tennessee, for appellant, Abbas H. Nejat a.k.a. Abbas H.

Nejad.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant

Attorney General; Victor S. Johnson, III, District Attorney General; and Rachel Marie

Sobrero and Jennifer McMillen, Assistant District Attorneys General, for the appellee, State

of Tennessee.

OPINION

I. Factual Background

This case resulted from the appellant’s making a threatening telephone call to a

witness in a prior matter. At trial, Metropolitan Nashville Police Detective Lee Freeman
testified that in late 2006, brothers Aso and Ako Nejat planned retaliation against Darien

Coleman and Brian Woods, who had robbed them. See State v. Aso Hassan Nejad, No.

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M2009-00481-CCA-R3-CD, 2010 WL 3562015, at *1 (Tenn. Crim. App. at Nashville, Sept.

14, 2010), perm. to appeal denied, (Tenn. 2011). At Ako’s instruction, Delsosh Ahmed

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called Coleman and Woods to lure them to Edwin Warner Park with the promise of a drug

deal. Brushsa Salee was parked there as the “bait,” while Aso, Ako, and Nejee Benjuja

waited in the tree line to shoot Coleman and Woods. However, before Coleman and Woods

arrived, Officer Jim Spray patrolled the area and approached Salee. Salee, who was on

probation and had a gun in the passenger seat of his car, quickly drove away. Officer Spray

pursued in his vehicle. Salee wrecked his car and ran away; he was apprehended later that

night. When Officer Spray stepped out of his car, he discovered numerous bullet holes in his

vehicle.

Detective Freeman testified that after the perpetrators involved were apprehended,

Ahmed agreed to testify against Ako and Aso. Detective Freeman said the trial began on

Monday July 14, 2008, and lasted three days. At around 4:30 p.m. on Wednesday July 17,

2008, the jury found Ako guilty of conspiracy to commit first degree murder. Aso was found

guilty of conspiracy to commit first degree murder and attempted second degree murder.

Later that night, either Detective Mark Anderson or District Attorney General Rob McGuire

informed Detective Freeman that Ahmed had received threatening telephone calls.

Delsosh Ahmed testified that he was originally from Iraq and that he had been in

Nashville since 2003. He said that he was friendly with other members of the Kurdish

community and that all members of the community knew each other. He had had frequent

contact with the appellant and had spoken with him on the telephone. He said that he

believed the appellant was the cousin of Ako and Aso.

Ahmed said that after the Edwin Warner Park incident, he was arrested and was

appointed trial counsel. After negotiations, Ahmed agreed to testify against Ako and Aso.

Following his testimony, Ahmed entered a guilty plea to conspiracy to facilitate aggravated

robbery and received a five-year probationary sentence. Ahmed confirmed that his trial

testimony mirrored the version of events related by Detective Freeman. Additionally, he

testified that he left before the shooting because he got scared. Ahmed recalled that he

Some of the witnesses in this case share a surname. Therefore, for clarity, we have chosen to 1

utilize their first names. We mean no disrespect to these individuals.

In the direct appeal of Ako and Aso Nejat, their surname was spelled “Nejad.” However, we will

2

utilize the spelling employed in the instant case. 

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testified the day before the verdict was returned and that nothing happened the night of his

testimony.

The following day, July 17, 2008, Ahmed went to work at Azido’s Tight Whips,

which sold automobile accessories. That afternoon, he received three threatening telephone

calls, one of which was made by the appellant. Ahmed said that when the appellant called,

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the appellant “told [me] that he was going to kill [me] because [I] snitched on [the

appellant’s] brother.” Ahmed stated that although he could not remember the exact words

used, he definitely recalled that his life was threatened and that the call scared him.

Ahmed said that after the calls, he telephoned the police and his attorney.

Additionally, because he wore an ankle monitor as part of his probationary sentence, he

called the “monitoring people” to obtain permission to go home early. After being granted

permission to leave, Ahmed went home around 5:00 p.m. Thereafter, a policeman came to

his home, and Ahmed told the officer about the threatening calls. Ahmed said that after the

calls, he left Tennessee. He explained, “I wouldn’t have left the state if it wasn’t that

serious.”

On cross-examination, Ahmed acknowledged that he could not recall the order in

which the threatening calls were received. However, he recalled that the telephone call from

the appellant “was real threatening.”

On redirect examination, Ahmed stated that he was not a member of the Kurdish Pride

Gang but that the appellant, Ako, and Aso were members. Ahmed acknowledged that a

person did not have to be a member of the gang or be “affiliated” with the gang in order to

“hang out” with the members. Ahmed said that at one time he stored the appellant’s

telephone number in his cellular telephone and that he used to be familiar with the number.

However, at the time of trial, he could not remember the appellant’s telephone number. He

maintained that at the time of the threatening call, he recognized that the call was coming

from the appellant’s telephone number. He recalled that the appellant had come to Ahmed’s

mother’s house a couple of days before Ako and Aso’s trial to “make sure [Ahmed] wouldn’t

talk.”

Officer Richard Michael Wilson testified that around 6:50 p.m. on July 16, 2008, he

responded to Ahmed’s residence at 4911 Pearson Place because of Ahmed’s complaint of

threatening telephone calls. Ahmed told Officer Wilson that he had received threatening

The appellant had two co-defendants who were charged for the other two calls, namely the 3

appellant’s brother, Mohammad Nejad, and Feriya Yuzdanparast. We have limited ourrecitation of the facts

adduced at trial to those relating to the appellant. 

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telephone calls from family members of people whom he had testified against earlier that

day. Ahmed said that around 4:40 p.m., the appellant called from telephone number (615)

589-5371 and said, “You testified against my brother, I’m going to kill you.” Officer Wilson

recalled that Ahmed was “scared,” “twitchy,” and “honestly nervous.” Ahmed insisted that

they speak near the officer’s car because he feared for his family’s safety.

Jim Merkling, an employee of Cricket Communications, testified that Ahmed’s

cellular telephone records reflect that at 4:39 p.m. on July 16, 2008, Ahmed received a

telephone call from (615) 593-1578. Merkling said that the number from which the call

originated belonged to a subscriber named Amir Nejad, whose address was 661 North Sugar

Mill Drive in Nashville. Merkling also confirmed that following that call, Ahmed called the

police.

Detective Mark Anderson testified that he worked with the Metropolitan Nashville

Police Department’s gang unit. The trial court allowed Detective Anderson to testify as an

expert in the Kurdish Pride Gang. Detective Anderson said that the Kurdish community was

tight knit and acted as “a city within a city.” He explained, “They have their own businesses,

they interact with themselves quite often.” He said that the gang members were very close,

considered each other to be family, and called each other brothers. He stated that the leaders

of the gang were the older members and that they were known as “OG’s, or original

gangsters.” The appellant, Ako, and Aso were the “[m]ost prevalent” OG’s. Detective

Anderson said that Ako and Aso were brothers and that the appellant was their cousin.

Detective Anderson testified that Ahmed told him that following Ako and Aso’s trial,

he received a telephone call from the appellant, during which the appellant threatened to kill

him. Detective Michael Gooch arrested the appellant at the appellant’s residence at 661

Sugar Mill Road, then the appellant was taken to the Criminal Justice Center (CJC). After

the appellant arrived at the CJC, Detective Anderson told the appellant that he had been

arrested because of allegations that the appellant had threatened someone after a trial the

week before. The appellant responded that he had not called anyone. When Detective

Anderson said that he had not mentioned a telephone call, the appellant asked to speak to his

attorney.

Detective Anderson said that he reviewed the cellular telephone records associated

with (615) 589-5371, the origin of the threatening call Ahmed had attributed to the appellant.

The records reflected that the number was registered to Amir Hasan, the appellant’s brother,

who lived at 661 Sugar Mill Drive.

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On cross-examination, Detective Anderson acknowledged that Ahmed was never

physically assaulted. He also acknowledged that he did not know if Detective Gooch had

mentioned the telephone calls to the appellant.

On redirect, Detective Anderson stated that Detective Gooch did not file a

supplemental report to reflect anything said during the appellant’s arrest. Detective

Anderson stated that the Kurdish Pride Gang was involved in “[a]ssaults, intimidation, [and]

retaliation.”

On recross-examination, Detective Anderson said that when the appellant was

arrested, he stated that his home telephone number was (615) 781-4074. The appellant did

not give a cellular telephone number, and Detective Anderson could not recall if the

appellant had a cellular telephone when he was arrested.

After Detective Anderson’s testimony, the State rested its case. The appellant did not

put on any proof in defense. The jury found the appellant guilty of retaliation for past action.

On appeal, the appellant challenges the sufficiency of the evidence, the trial court’s rulings

regarding the admissibility of information regarding the Kurdish Pride Gang and the

appellant’s membership in the gang, and the sentence imposed by the trial court.

II. Analysis

A. Sufficiency of the Evidence

On appeal, a jury conviction removes the presumption of the appellant’s innocence

and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to

this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier of fact

could have found the essential elements of the offense beyond a reasonable doubt. See

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).

Accordingly, on appeal, the State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefrom. See State v.

Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the

credibility of witnesses and the weight and value to be given the evidence, as well as all

factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate

courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

Tennessee Code Annotated section 39-16-510(a)(1) providesthat “[a] person commits

the offense of retaliation for past action who harms or threatens to harm a witness at an

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official proceeding . . . by any unlawful act in retaliation for anything the witness . . . did in

an official capacity as witness.” The appellant argues that the only proof of the charged

offense was Ahmed’s testimony and that Ahmed lacked credibility. However, determining

the credibility of a witness is within the purview of the jury. See State v. Millsaps, 30

S.W.3d 364, 368 (Tenn. Crim. App. 2000) (stating that “the weight and credibility of the

witnesses’ testimony are matters entrusted exclusively to the jury as the trier[ ] of fact”). In

the instant case, the jury clearly resolved the issue of credibility in the State’s favor. We may

not now reconsider the jury’s credibility assessment. See State v. Carruthers, 35 S.W.3d

516, 558 (Tenn. 2000).

In the light most favorable to the State, the proof at trial revealed that Ako and Aso

Nejat were brothers and that the appellant was their cousin. Ahmed testified against Ako and

Aso at trial, and the brothers were convicted. Immediately afterward, Ahmed received

threatening telephone calls. Specifically, Ahmed testified that the appellant called him and

threatened to kill Ahmed because of his testimony at trial. Ahmed testified that he was

familiar with the appellant’s voice and that he had previously spoken with the appellant on

the telephone. Telephone records revealed that the number from which the call was placed

was registered to the appellant’s brother, Amir Nejad, whose address was 661 North Sugar

Mill Drive. The appellant was later arrested at the same Sugar Mill Drive address.

Following the appellant’s arrest, Detective Anderson advised the appellant that he had

been arrested due to allegations that he had threatened someone. Despite Detective

Anderson’s not mentioning that the threats occurred over the telephone, the appellant denied

telephoning anyone. Further, Detective Anderson testified that the appellant, Ako, and Aso

were leaders in the Kurdish Pride Gang and that the gang engaged in “intimidation [and]

retaliation.” Detective Anderson also testified that the members of the gang considered

themselves family and would refer to each other as “brothers.” We conclude that this

evidence is sufficient to sustain the appellant’s conviction for retaliation for past action. See

State v. Manning, 909 S.W.2d 11, 13 (Tenn. Crim. App. 1995); State v. Shanta Jones, No.

W2010-01081-CCA-R3-CD, 2011 WL 5335190, at *11 (Tenn. Crim. App. at Jackson, Nov.

4, 2011).

B. Evidentiary Issues

Next, the appellant contends that the trial court erred by allowing Detective Anderson

to testify about the appellant’s membership and status in the Kurdish Pride Gang and the

close relationship between gang members. The appellant maintains that the trial court erred

by finding the evidence admissible under Tennessee Rule of Evidence 404(b), which

concerns evidence of other crimes, wrongs, or acts, before allowing introduction of evidence

of a gang affiliation. The appellant complains that the State introduced evidence of the

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appellant’s gang membership to establish the appellant’s predisposition to commit the

charged offense.

Tennessee Rule of Evidence 404 provides:

(b) Other Crimes, Wrongs, or Acts. - Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity with the character

trait. It may, however, be admissible for other purposes. The

conditions which must be satisfied before allowing such

evidence are:

(1) The court upon request must hold a hearing outside the

jury’s presence;

(2) The court must determine that a material issue exists other

than conduct conforming with a character trait and must upon

request state on the record the material issue, the ruling, and the

reasons for admitting the evidence;

(3) The court must find proof of the other crime, wrong, or act

to be clear and convincing; and

(4) The court must exclude the evidence if its probative value is

outweighed by the danger of unfair prejudice.

See also State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005), State v. Parton, 694 S.W.2d

299, 302 (Tenn. 1985). A trial court’s decision regarding the admission of Rule 404(b)

evidence will be reviewed under an abuse of discretion standard; however, “the decision of

the trial court should be afforded no deference unless there has been substantial compliance

with the procedural requirements of the Rule.” State v. DuBose, 953 S.W.2d 649, 652 (Tenn.

1997).

The record reveals that the State filed a notice of intent to introduce gang evidence

pursuant to Tennessee Rule of Evidence 404(b), which included a request for a pretrial

evidentiary hearing on the matter. Although the record includes the exhibits introduced at

the hearing, the record does not include a transcript of the hearing or a statement of the

evidence summarizing the proof adduced at the hearing.

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The appellant carries the burden of ensuring that the record on appeal conveys a fair,

accurate, and complete account of what has transpired with respect to those issues that are

the bases of appeal. See Tenn. R. App. P. 24(b); see also Thompson v. State, 958 S.W.2d

156, 172 (Tenn. Crim. App. 1997). “In the absence of an adequate record on appeal, this

court must presume that the trial court’s rulings were supported by sufficient evidence.” State

v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). Without a transcript or statement

of the evidence, which would have included the parties’ arguments, the evidence presented,

and the trial court’s oral findings, we are unable to consider the merits of the appellant’s

issues regarding the introduction of gang evidence.

C. Sentencing

Finally, although the appellant challenges the sentence imposed by the trial court, the

appellant failed to include a transcript or a statement of the evidence of the sentencing

hearing. Once again, in the absence of an adequate record, we are constrained to presume

that the trial court correctly imposed a six-year sentence. See Tenn. R. App. P. 24(b); Oody,

823 S.W.2d at 559.

III. Conclusion

In sum, we conclude that the evidence is sufficient to sustain the appellant’s

conviction. Additionally, because the record is not adequate to review the appellant’s

complaints regarding the admission of evidence and sentencing, we presume the trial court’s

rulings on those issues are correct. Accordingly, we affirm the judgment of the trial court.

___________________________________

NORMA MCGEE OGLE, JUDGE

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