IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 27, 2018 Session

STATE OF TENNESSEE v. NEHAD SOBHI ABDELNABI

Appeal from the Criminal Court for Knox County

No. 100273A Steven Wayne Sword, Judge

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No. E2017-00237-CCA-R3-CD

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The Knox County Grand Jury indicted the Defendant, Nehad Sobhi Abdelnabi, on two 

counts of especially aggravated kidnapping, two counts of aggravated assault, and one 

count of aggravated burglary. The Defendant’s first trial resulted in a mistrial. At the 

Defendant’s second trial, the jury convicted him of aggravated kidnapping in count one, 

especially aggravated kidnapping in count two, and aggravated assault in counts three 

and four. The jury acquitted the Defendant of aggravated burglary in count five. The 

trial court sentenced the Defendant to serve twelve years for count one, seventeen years 

for count two, and six years for counts three and four, respectively. The trial court 

merged the Defendant’s conviction in count one into count two and merged count four 

into count three and ordered that he serve the sentences concurrently, for a total effective 

sentence of seventeen years in the Tennessee Department of Correction (TDOC) at 100% 

release eligibility. On appeal, the Defendant argues the following: (1) the trial court erred 

in denying the Defendant’s motion to dismiss the indictment because the State violated 

the rule against double jeopardy by intentionally eliciting objectionable testimony from a 

State witness in the Defendant’s first trial; (2) the trial court erred by denying the 

Defendant’s motion for mistrial when the victim told the Defendant to “[b]e a man” and 

“[t]ake the stand” during the victim’s cross-examination; (3) the State committed 

prosecutorial misconduct by allowing the victim’s objectionable testimony, which 

violated the Defendant’s right to not testify; (4) the victim’s objectionable testimony and 

“the subsequent denial of the motion for mistrial[] violated his constitutional right to a 

fair trial”; (5) the trial court erred by limiting the Defendant’s cross-examination of the 

co-defendant, Lowi Akila, which violated the Defendant’s right to confrontation; (6) the 

trial court erred by excluding testimony regarding the victim’s alleged bias; (7) the trial 

court erred under Tennessee Rule of Evidence 604 and Tennessee Supreme Court Rule 

42 in denying the Defendant’s request to require witnesses to testify in the language that 

the testimony was originally given in; (8) the trial court violated the Defendant’s right to 

due process by allowing witnesses to testify in English about conversations that occurred 

in Arabic; (9) the trial court erred by admitting the victim’s medical records; (10) the 

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State violated Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose that the 

victim received compensation from the State of Tennessee; (11) the evidence was 

insufficient for a rational juror to have found the Defendant guilty of aggravated 

kidnapping, especially aggravated kidnapping, and aggravated assault beyond a 

reasonable doubt; (12) the trial court erred in its application of enhancement factors to the 

Defendant’s sentence; (13) the Defendant’s sentence contravenes the principles and 

purposes of the Tennessee Sentencing Act; and (14) the Defendant is entitled to 

cumulative error relief. After a thorough review of the facts and applicable case law, we 

affirm.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN 

EVERETT WILLIAMS and J. ROSS DYER, JJ., joined.

Robert L. Jolley, Jr., and Megan A. Swain, Knoxville, Tennessee, for the appellant, 

Nehad Sobhi Abdelnabi.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant 

Attorney General; Charme Allen, District Attorney General; and Kevin Allen, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural History

This case arises from the kidnapping and assault of the victim, Naser Ferwanah, 

by the Defendant and co-defendant, Lowi Fathi Akila, on February 1, 2012. On 

September 18, 2012, the Knox County Grand Jury indicted the Defendant on two counts 

of especially aggravated kidnapping, two counts of aggravated assault, and one count of 

aggravated burglary. The Defendant’s case proceeded to trial in November 2015. The 

trial court granted the Defendant’s motion for mistrial after Mr. Akila referred to a 

previous incident where the Defendant allegedly threatened another man with a gun.

The State’s Proof

At the Defendant’s second trial, Michael Mays testified that he worked for the 

Knox County Emergency Communications District as the keeper of the records. He 

stated that someone called 911 on February 2, 2012, around 1:56 a.m. from a residence 

on Halifax Road regarding an assault. 
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Naser Ferwanah testified that he was born in Palestine and immigrated to the 

United States in 1992. Mr. Ferwanah visited the Defendant in Knoxville in 1992 but did 

not move to Knoxville until 2005. Mr. Ferwanah went to high school in Palestine with 

the Defendant. Prior to moving to Knoxville, Mr. Ferwanah owned a business that was in 

financial trouble, and the Defendant lent him $13,000 to help the business. Mr. Ferwanah 

had visited with the Defendant and his family in the past, but he had never been alone 

with the Defendant’s wife. Mr. Ferwanah also visited the Defendant at his business, 

Electronics Tech, about once a month. In December 2011, the Defendant called Mr. 

Ferwanah and asked if they could meet. Mr. Ferwanah agreed to meet the Defendant 

after he recovered from an illness. On January 3, Mr. Ferwanah drove to Electronics 

Tech to speak with the Defendant. The Defendant commented that Mr. Ferwanah looked 

sick and asked to see Mr. Ferwanah’s skin. The Defendant said that he would talk with 

Mr. Ferwanah later because Mr. Ferwanah was still feeling ill. 

A few days later, the Defendant called Mr. Ferwanah and asked to stop by Mr. 

Ferwanah’s house to speak with him. Mr. Ferwanah stated that the Defendant appeared 

nervous, but his behavior was not otherwise unusual. Mr. Ferwanah invited the 

Defendant to come into his house and sit down. The Defendant asked Mr. Ferwanah to 

go get his Quran and his oldest son, who was at school. Mr. Ferwanah explained that, in 

his community, individuals would swear on the Quran in the presence of their oldest son 

to tell the truth. Mr. Ferwanah obtained his Quran, and the Defendant asked him if he 

had a “relationship” with the Defendant’s wife. Mr. Ferwanah explained that the 

Defendant was referring to an extramarital affair. Mr. Ferwanah swore on his Quran that 

he was not having an affair with the Defendant’s wife. Mr. Ferwanah asked the 

Defendant why he believed that Mr. Ferwanah was having an affair with his wife, and the 

Defendant stated that the description of the individuals in a video1fit his wife and Mr. 

Ferwanah. 

Later that day, Mr. Ferwanah picked his children up from school and took his 

oldest son to Electronics Tech to again swear that he was not having an affair with the 

Defendant’s wife. The Defendant told Mr. Ferwanah that he believed Mr. Ferwanah. 

The Defendant mentioned a video that showed his wife having sex with another man 

from the neck down. The Defendant explained that he had a friend who was a former 

FBI agent who was analyzing the video for the Defendant to determine the identity of the 

man. The Defendant asked Mr. Ferwanah to pull up his shirt so the Defendant could take 

a photograph of Mr. Ferwanah’s chest to compare to the video. Mr. Ferwanah complied. 

 

1 As explained later in this opinion, the Defendant believed that a pornographic video on the 

internet depicted his wife and Mr. Ferwanah engaging in sexual intercourse.
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A few days after the Defendant took a photograph of Mr. Ferwanah’s chest, Mr. 

Ferwanah called the Defendant and asked who told the Defendant about the video that 

allegedly depicted the Defendant’s wife. The Defendant told Mr. Ferwanah not to worry 

about it and invited Mr. Ferwanah to go to dinner with him and one of his employees, 

Lowi Akila. Mr. Ferwanah knew Mr. Akila from high school in Palestine, but he was not 

friends with Mr. Akila. Neither the Defendant nor Mr. Ferwanah brought up the video at 

dinner. After they finished eating, the Defendant suggested that the three men meet for 

dinner every week. On January 31, 2012, the Defendant asked to come over to Mr. 

Ferwanah’s residence. When the Defendant arrived, he asked to see Mr. Ferwanah’s 

bedroom because he was remodeling his own residence. The Defendant also asked to see 

Mr. Ferwanah’s attic. While Mr. Ferwanah was in his attic, he accidentally stepped 

through the drywall; the Defendant agreed to send someone to Mr. Ferwanah’s residence 

the next day to repair the drywall. The Defendant stopped by Mr. Ferwanah’s house the 

next day, February 1, to check on the drywall repair. Mr. Ferwanah stated that the 

Defendant appeared nervous. The Defendant asked Mr. Ferwanah to have dinner with 

him after the repair was complete. 

Mr. Ferwanah drove to Electronics Tech that evening between 6:30 and 7:00 p.m.

and stayed in his vehicle while he waited for the Defendant and Mr. Akila to come out of 

the business. However, the Defendant waved at Mr. Ferwanah to come into the store. 

The Defendant stated that he wanted to show Mr. Ferwanah how someone can get untied 

if they are tied up. Inside Electronics Tech, the Defendant asked Mr. Ferwanah and Mr. 

Akila to sit in wooden chairs in the office area. The Defendant locked the door, tied Mr. 

Akila’s hands to the chair arms, and put duct tape around Mr. Akila’s chest. The 

Defendant then tied Mr. Ferwanah’s hand to the chair arms and taped Mr. Ferwanah’s 

chest and legs to the chair. The Defendant untied Mr. Akila and said, “Let’s go.” A

masked man2came into the room from the garage door. The masked man and the 

Defendant lifted Mr. Ferwanah’s chair, walked to the garage, and threw Mr. Ferwanah 

onto the concrete floor. Mr. Akila was behind Mr. Ferwanah, so Mr. Ferwanah was 

unsure if Mr. Akila also helped carry the chair. Mr. Ferwanah’s chair broke, but his 

hands and legs were still tied to the chair pieces. The masked man tied Mr. Ferwanah’s 

hands behind his back with a zip tie, and the Defendant began hitting Mr. Ferwanah with 

a baseball bat and kicking him. The masked man hit Mr. Ferwanah with a “two-by-four.”

The Defendant informed Mr. Ferwanah that he had “guys waiting outside” that were 

going to take Mr. Ferwanah and throw him into the Tennessee River to drown. Mr. 

Ferwanah was screaming and asking the Defendant to let him go. The Defendant told 

Mr. Ferwanah that he would let Mr. Ferwanah go if Mr. Ferwanah gave him the tapes. 

Mr. Ferwanah told the Defendant that he did not have any tapes, and the Defendant 

 

2 Mr. Ferwanah testified that the Defendant called this man “Sam.” 
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continued kicking Mr. Ferwanah. Mr. Ferwanah stated that the Defendant also had a gun 

and a knife on a table. 

Mr. Ferwanah testified that, during the assault, Mr. Akila held a camera. After the 

Defendant assaulted Mr. Ferwanah, the Defendant and Mr. Akila went back into the 

office area. Mr. Akila returned to the garage area and told Mr. Ferwanah that the 

Defendant would let him go if he gave the Defendant the tapes. The Defendant then 

returned to the garage and continued assaulting Mr. Ferwanah. Mr. Akila and the 

Defendant continued alternating between assaulting Mr. Ferwanah and asking for the 

tapes. At one point, the Defendant opened and closed the gun to show Mr. Ferwanah that 

it was loaded and pointed it at Mr. Ferwanah’s head. The Defendant also wanted Mr. 

Ferwanah to watch a video that allegedly showed the Defendant’s wife, but Mr. 

Ferwanah refused to watch the video. When Mr. Ferwanah was unable to remain on his 

knees, Mr. Akila untied him. The assault lasted between two and three hours. The 

Defendant and Mr. Akila dragged Mr. Ferwanah to a table in the garage and asked Mr. 

Ferwanah for his passwords to various accounts on the internet. The masked man 

pointed the gun at Mr. Ferwanah’s head and told Mr. Ferwanah that he would kill Mr. 

Ferwanah’s wife and children if Mr. Ferwanah told the police about the offenses. 

The Defendant and Mr. Akila carried Mr. Ferwanah to a bathroom, washed the 

blood off of Mr. Ferwanah, and put him in the passenger seat of his vehicle. The 

Defendant got into the driver’s seat of Mr. Ferwanah’s vehicle and asked if Mr. Ferwanah 

had health insurance. When Mr. Ferwanah stated that he had health insurance, the 

Defendant offered to take Mr. Ferwanah to a hospital if Mr. Ferwanah came up with an 

explanation for his injuries. However, Mr. Ferwanah asked the Defendant to drive him to 

his residence instead. When Mr. Ferwanah and the Defendant arrived at Mr. Ferwanah’s 

residence, the Defendant helped Mr. Ferwanah inside, gave him a bath, changed his 

clothes, and put him into bed. The Defendant told Mr. Ferwanah’s wife that Mr. 

Ferwanah had been in an accident. After the Defendant left, Mr. Ferwanah told his wife 

that the Defendant had assaulted him and was going to kill his family. Mr. Ferwanah fell

asleep or was unconscious for several hours after the Defendant left. His wife woke him 

up, and he called 911. An ambulance took Mr. Ferwanah to Parkwest Hospital, and he 

was later transferred to the trauma center at the University of Tennessee Medical Center. 

Mr. Ferwanah sustained fractures in his left ankle, right wrist, and left wrist and bruising 

and lacerations on various places on his body. He also sustained an injury to his head.

Mr. Ferwanah testified that his pain level after the offenses was ten out of ten, and his 

pain did not lessen until he was given morphine at the hospital. He stated that he could 

not return to work for four and a half months. Mr. Ferwanah still had pain in his right 

shoulder, and he occasionally “mixed up” words due to his head injury. Mr. Ferwanah 

testified that he filed a civil suit against the Defendant, Electronics Tech, Mr. Akila, and 
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“John Doe” after the offenses. However, he did not know the current status of his civil 

case. 

On cross-examination, Mr. Ferwanah explained that he believed the Defendant 

had jokingly tied him up until the Defendant and the masked man threw Mr. Ferwanah 

onto the concrete floor of the garage while tied to the chair. Mr. Ferwanah agreed that, 

when he was discharged from the University of Tennessee trauma center, he received a 

prescription for Tylenol 3 and Percocet. Mr. Ferwanah also agreed that he requested 

$15,500,000 in damages in his civil suit. He explained that he informed his attorneys of 

the details of the offenses and that the attorneys decided on the amount to request in 

damages. Mr. Ferwanah was aware that Mr. Akila was originally charged with a Class A 

felony but pled guilty to accessory after the fact, a Class E felony, in exchange for a 

sentence of two years. 

Fatma Sekik testified that she had been married to the Defendant for twenty years. 

She explained that she and the Defendant were obtaining a divorce. Ms. Sekik stated 

that, approximately six weeks prior to the current offenses, the Defendant accused her of 

having an affair. The Defendant showed her a video of two individuals having sex and 

claimed that the woman in the video was her. Ms. Sekik denied that she was in the video. 

The Defendant repeated his accusation for several days. The Defendant told Ms. Sekik 

that he was going to have an expert enhance the video so that he could determine whether 

she was in the video. Ms. Sekik identified Mr. Ferwanah as her husband’s friend and 

stated that she had never been alone with or had an affair with Mr. Ferwanah. 

Officer Russell Whitfield testified that he worked in the forensic unit of the 

Knoxville Police Department (“KPD”). On February 2, 2012, Officer Whitfield 

responded to a report of an assault at Electronics Tech. He met with the officers who 

were already at the scene and took photographs of the building. Officer Whitfield 

noticed that the garage area of the building was very clean, and he could smell cleaner.

Beth Goodman testified that she formerly worked as an evidence technician with 

the KPD. In February 2012, Ms. Goodman assisted in investigating Mr. Ferwanah’s 

kidnapping and assault. She documented, photographed, and recovered items from a 

dumpster at an apartment complex in west Knoxville. Those items included a blue 

blanket, a large plastic sheet, and pieces of a broken chair. 

Darren James Luna testified that he formerly worked at Electronics Tech for 

approximately eight years. Mr. Luna described February 1, 2012, as a normal work day 

at Electronics Tech. He explained that he mainly worked in the garage area of the 

business and that he left between 6:00 and 6:30 p.m. Mr. Luna stated that, on February 2, 

2012, the Defendant did not come to Electronics Tech, which was “somewhat” unusual. 
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Mr. Luna noticed “the strong smell of bleach” when he walked into the building. He also 

observed that “the floor was really clean” like it had just been mopped. Mr. Luna saw a 

bucket with bloody blankets and noticed that his tools had blood on them. He also saw “a 

bat or stick or something with some blood on it.” Mr. Luna cleaned the blood off of his 

tools and explained that it “was unusual, but it wasn’t unusual” to see blood in the garage 

area. 

On cross-examination, Mr. Luna stated that, when he left Electronics Tech on 

February 1, the Defendant and Mr. Akila were at the business. Mr. Luna saw Mr. 

Ferwanah at Electronics Tech “every once in a while.” He stated that the elevator that 

went from the office area to the garage area was large enough to fit a chair. He explained 

that the garage door was opened by a button on the wall of the garage and a remote that 

typically stayed inside the garage. 

Lowi Fathi Akila testified that he was charged as a co-defendant in the indictment 

in the Defendant’s case. He stated that, in exchange for testifying truthfully in the 

Defendant’s case, he would plead guilty and that his conviction would be diverted after

the service of two years’ probation. Mr. Akila explained that he was distantly related to 

the Defendant and that he grew up with the Defendant and Mr. Ferwanah in Palestine. 

Mr. Akila immigrated to the United States in 1984 and lived in Knoxville. He explained 

that, in 2011, a female dancer and singer had an affair with a businessman in Egypt; this 

affair was discussed in the news in the Middle East. Mr. Akila found a video of the 

dancer and the businessman on a website and showed it to the Defendant. In February 

2012, Mr. Akila worked at Electronics Tech with the Defendant and Wheels Auto Sales. 

Mr. Akila occasionally saw Mr. Ferwanah at Electronics Tech. Approximately three or 

four months prior to the offenses, the Defendant wanted to show Mr. Akila a video that 

he had found on the internet that he believed showed his wife cheating on him. The 

Defendant showed Mr. Akila the video and continued to discuss the video with Mr. Akila 

“almost every day.” Mr. Akila stated the following about his interaction with the 

Defendant about the video:

He just simply sa[id], [“]I found out she’s cheating [on] me and I 

have the proof and I want to show you.[”] And I told him that I can’t 

believe that and there is no way. I know your wife. And he said, well, let 

me show you. 

So he played the videotape. And I simply left. And I said, you must 

be kidding me. By looking at this video, you can’t even see the woman’s 

face. And you accusing him -- or the guy’s face and you saying that’s your 

wife and Mr. Ferwanah. That is ridiculous. It does not make any sense to 
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me. I don’t see any single thing that can -- tells me that it would be a 

possibility.

Mr. Akila stated that the Defendant “kept insinuating he[] [had] other help, other 

information to support his theory” that his wife was having an affair with Mr. Ferwanah. 

The Defendant told Mr. Akila that he had hired two former FBI agents who believed that 

the video depicted Mr. Ferwanah based on Mr. Ferwanah’s voice and photographs. Mr. 

Akila saw the former FBI agents at Electronics Tech speaking with the Defendant. Mr. 

Akila also testified that the Defendant made an audio recording of himself and his wife to 

compare with the video that he found on the internet. Mr. Akila felt “very embarrassed 

and very ashamed” about the Defendant’s actions. He described the Defendant as 

“always extremely nervous” and “always extremely on edge.” When Mr. Akila 

expressed his belief that the woman in the video was not the Defendant’s wife, the 

Defendant “look[ed] at [Mr. Akila] with his eyes blaring [and asked], [‘][H]ow do you 

know? You have never seen her body, or have you?[’]” Mr. Akila told the Defendant 

that Mr. Ferwanah and the Defendant’s wife were not the type of people who would have 

an affair. The Defendant later showed Mr. Akila a photograph of Mr. Ferwanah’s chest 

that the Defendant compared to the internet video. The Defendant also asked Mr. Akila 

to regularly join him and Mr. Ferwanah for dinner. 

On the day of the offenses, Mr. Akila worked at Wheels Auto Sales. The 

Defendant told Mr. Akila that he needed to come to Electronics Tech after he finished 

working at Wheels Auto Sales because the Defendant wanted to speak with Mr. 

Ferwanah about the video. The Defendant believed that Mr. Ferwanah would confess to 

the affair after the Defendant presented evidence of the affair to him. Mr. Akila informed 

the Defendant that he did not want to be involved, but the Defendant told Mr. Akila that 

he just wanted to talk with Mr. Ferwanah and that he wanted Mr. Akila to be a witness. 

Mr. Akila arrived at Electronics Tech around 5:50 p.m., collected his paycheck from the 

Defendant, drove to his bank, and deposited the check. When Mr. Akila returned to 

Electronics Tech, the other employees had left. Mr. Akila explained that the Defendant 

and Michael Corleon Desouzaneti3 were at Electronics Tech, although Mr. Akila was 

initially unaware of Mr. Desouzaneti’s presence in the business. The Defendant informed 

Mr. Akila that, when Mr. Ferwanah arrived, he wanted to speak with Mr. Ferwanah about 

the allegations and then the three men would go to dinner. Mr. Ferwanah pulled into the 

parking lot and called Mr. Akila, who told Mr. Ferwanah to come inside the building. 

When Mr. Ferwanah entered, the Defendant said he wanted to show Mr. Akila and 

Mr. Ferwanah something interesting. Mr. Akila and Mr. Ferwanah sat in chairs, and the 

Defendant put duct tape around Mr. Akila. Mr. Akila explained that the Defendant did 

 

3 Mr. Akila identified Mr. Desouzaneti as the third person involved in the offenses.
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not mention restraining him with duct tape prior to Mr. Ferwanah’s arrival. After taping 

Mr. Akila, the Defendant also restrained Mr. Ferwanah with duct tape. The Defendant 

cut Mr. Akila’s tape and “screamed” for Mr. Desouzaneti to “come over here.” Mr. 

Desouzaneti came out of the office, and the Defendant and Mr. Desouzaneti carried Mr. 

Ferwanah into the garage. Mr. Ferwanah screamed for Mr. Akila, who was scared. Mr. 

Akila saw the Defendant and Mr. Desouzaneti throw Mr. Ferwanah onto the garage floor. 

Mr. Desouzaneti tied Mr. Ferwanah’s hands and legs with zip ties, and the Defendant and 

Mr. Desouzaneti began hitting Mr. Ferwanah. Mr. Akila stated that the Defendant was 

hitting Mr. Ferwanah with a “baseball stick,” and Mr. Desouzaneti was hitting Mr. 

Ferwanah with “a metal device for hitting people.” Mr. Desouzaneti also had a gun in his 

belt, and he was kicking Mr. Ferwanah. The Defendant and Mr. Desouzaneti assaulted 

Mr. Ferwanah “[o]ff and on for . . . an hour and a half, two hours.” The Defendant told 

Mr. Ferwanah that his wife had admitted to having an affair with Mr. Ferwanah and that 

the Defendant had already taken care of her. Mr. Akila told Mr. Ferwanah that he should 

confess if he knew anything, and Mr. Akila would get the Defendant to stop the assault. 

The Defendant also asked Mr. Ferwanah where he was hiding the original video 

recordings. The Defendant took Mr. Ferwanah’s cell phone so that he could inspect Mr. 

Ferwanah’s emails. The Defendant told Mr. Akila to go to the office and retrieve the 

Defendant’s gun. When Mr. Akila brought the gun to the garage, the Defendant pointed 

it at Mr. Ferwanah’s head. The Defendant told Mr. Ferwanah that, if Mr. Ferwanah did

not tell the Defendant where the video recording was, the Defendant would shoot Mr. 

Ferwanah in the head and throw Mr. Ferwanah’s body in the lake. 

Mr. Akila stated that Mr. Ferwanah was bleeding from his head, legs, eyes, and 

mouth. Mr. Akila helped the Defendant clean up the garage area for business the next 

day. The Defendant told Mr. Akila to take the plastic tarp and towels that were on the 

garage floor and the broken chair that Mr. Ferwanah had sat in and put the items in the 

dumpster of a nearby apartment complex. Mr. Akila saw the Defendant pour bleach on 

the garage floor to clean it. Mr. Akila told the Defendant that Mr. Ferwanah needed to go 

to a hospital. As Mr. Akila helped Mr. Ferwanah get into a vehicle, he heard Mr. 

Ferwanah tell the Defendant that he did not want to go to the hospital because the 

hospital employees would ask Mr. Ferwanah how he became injured. The Defendant 

told Mr. Ferwanah that he was “man enough” to admit that he caused Mr. Ferwanah’s 

injuries. Mr. Akila left Electronics Tech shortly after the Defendant left to take Mr. 

Ferwanah to the hospital. 

On cross-examination, Mr. Akila stated that the Defendant asked him to 

photograph the assault on Mr. Ferwanah, but Mr. Akila did not turn the camera on. Mr. 

Akila agreed that he was currently on bond for his participation in the current offenses

and that he was charged with especially aggravated kidnapping. Mr. Akila explained that 

he previously borrowed money from the Defendant, and he repaid the Defendant by 
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working for him. Mr. Akila stated that, before the Defendant cleaned the garage, the

Defendant carried Mr. Ferwanah to a bathroom in the garage and washed the blood off of 

him. When the Defendant left with Mr. Ferwanah, Mr. Akila believed that they were 

going to a hospital. However, the Defendant later called Mr. Akila and asked Mr. Akila 

to pick him up from Mr. Ferwanah’s residence. 

The Defendant’s Proof

Joy Gensheimer testified that she had known the Defendant for approximately 

seven and one-half years. She held a good opinion of the Defendant’s character. Dr. 

Adel Hussein testified that he had known the Defendant for more than twenty years. In 

his opinion, the Defendant had a good reputation. Tiki Dixon testified that he had known 

the Defendant for approximately sixteen years and that the Defendant had a reputation for 

having good character. Ramadan Damiri testified that he had known the Defendant for 

over twenty years and that the Defendant had a good reputation in the Islamic community 

of Knoxville. 

The jury convicted the Defendant of aggravated kidnapping in count one, 

especially aggravated kidnapping in count two, aggravated assault in count three, and 

aggravated assault in count four. The jury acquitted the Defendant of aggravated 

burglary in count five.

Sentencing Hearing

At the Defendant’s sentencing hearing, the trial court noted that it had read the 

presentence report, which the trial court admitted as an exhibit at the State’s request. Mr. 

Ferwanah gave a victim impact statement. He stated that he sustained a broken ankle, 

two broken wrists, bleeding in his head, and bruising from the Defendant’s offenses. Mr. 

Ferwanah took unpaid leave from his job for five months to recover from the injuries he 

received during the Defendant’s assault. 

Ms. Gensheimer testified by reading a letter that she had previously written. She 

stated that the Defendant was “a very good citizen” and “a very hard-working man[.]” 

She described the Defendant as “an outstanding father.” Ms. Gensheimer testified that 

the Defendant helped others financially when they were in need. Dr. Hussein testified 

that he had known the Defendant for more than twenty years. Dr. Hussein described the 

Defendant as a very helpful person who had good character. He stated that the Defendant 

was “very attached to his family.” Mr. Damiri testified that he had known the Defendant 

for twenty years as a member of the Islamic community in Knoxville. He stated that the 

Defendant was “a very good person.” Sharin Abdelnabi, the Defendant’s oldest 

daughter, testified that the Defendant was her best friend and that life without him was 
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impossible. Nesma Abdelnabi, the Defendant’s younger daughter, testified that she and 

her siblings looked up the Defendant. The Defendant made an allocution and stated that 

he was “extremely sorry[.]” 

The trial court found that the Defendant was a Range I standard offender. The 

trial court found that the Defendant was not eligible for a probated sentence on counts

one and two. The trial court found that the Defendant was a leader in the commission of 

the offense that involved one or more actors. The trial court stated that “[t]he facts 

clearly show that [the Defendant] organized this attack on Mr. Ferwanah and that 

everyone was following his directions. He not only set it up, but he was calling the shots 

throughout the entire thing, including the end of it[.]” The trial court gave this factor “a 

significant deal of weight[.]” The trial court also found that the Defendant treated or 

allowed Mr. Ferwanah to be treated with exceptional cruelty during the commission of 

the offenses. The trial court noted that Mr. Ferwanah felt terrified and helpless during the 

offenses and believed that he was going to die. The trial court stated that Mr. Ferwanah’s 

kidnapping was “one of the worst” that the trial court had seen. However, the trial court 

did not give this enhancement factor much weight because treating the victim with 

exceptional cruelty was “subsumed in the elements of especially aggravated kidnapping 

and aggravated assault.”4 The trial court found that the Defendant possessed or employed 

a firearm or other deadly weapon during the commission of the offenses. The trial court 

applied this enhancement factor to counts two and three only and gave the factor “some 

weight.” 

Regarding mitigating factors, the trial court noted that the Defendant had no prior 

convictions. The trial court gave this factor “a good deal of weight[.]” The trial court 

found that the factor in Tennessee Code Annotated section 39-13-305(b)(2) and -

304(b)(2), that “[i]f the offender voluntarily releases the victim alive or voluntarily 

provides information leading to the victim’s safe release, such actions shall be considered 

by the court as a mitigating factor at the time of sentencing[,]” applied because the 

Defendant took Mr. Ferwanah home and cleaned him up. However, the trial court found 

that the statutory mitigating factor was “tempered” by the fact that the Defendant “was 

trying to cover his tracks a little bit[.]” The trial court also found that the Defendant was 

a good father and had “employed other individuals” as “a long-time businessman[.]” The 

trial court noted that the Defendant had been generous and helpful towards others. The 

trial court believed that the Defendant’s apology for his offenses was sincere. 

The trial court ordered the Defendant to serve a sentence of twelve years in TDOC

for count one, aggravated kidnapping. Regarding count two, especially aggravated 

 

4 As explained later in this opinion, the trial court was incorrect in its statement that “exceptional 

cruelty” was an element of especially aggravated kidnapping or aggravated assault.
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kidnapping, the trial court ordered the Defendant to serve a sentence of seventeen years 

in TDOC. The trial court ordered the Defendant to serve sentences of six years for 

counts three and four. The trial court ordered all the Defendant’s sentences to be 

concurrently aligned. The trial court merged count one into count two and count four 

into count three. Thus, the Defendant received a total effective sentence of seventeen 

years at 100% release eligibility.

The Defendant filed a timely motion for new trial, which the trial court denied. 

The Defendant now timely appeals the trial court’s judgments. 

II. Analysis

Motion to dismiss the indictment

The Defendant argues that his second trial violates the prohibition against double 

jeopardy. He contends that the trial court erred by “allow[ing] the State, with all its 

resources and power, to make repeated attempts to convict [the Defendant] for the alleged 

offenses, subjecting him to embarrassment, expense and ordeal[,] and compelling him to 

live in a continuing state of anxiety and insecurity before his second trial.” The State 

asserts that the trial court properly denied the Defendant’s motion to dismiss the 

indictment because the State did not intentionally elicit Mr. Akila’s statement in the first 

trial, and the Defendant “has not shown that the State was trying to provoke [the 

Defendant] into seeking a mistrial, which is necessary for double jeopardy to bar retrial 

here.”

The Double Jeopardy Clause of the Fifth Amendment to the United States 

Constitution, made applicable to the states through the Fourteenth Amendment, states, 

“No person shall . . . be subject for the same offense to be twice put in jeopardy of life or 

limb.” U.S. Const. amend. V. Similarly, the Tennessee Constitution guarantees “[t]hat 

no person shall, for the same offense, be twice put in jeopardy of life or limb.” Tenn. 

Const. art. I, § 10. Both clauses provide three distinct protections: “(1) protection against 

a second prosecution for the same offense after acquittal; (2) protection against a second 

prosecution for the same offense after conviction; and (3) protection against multiple 

punishments for the same offense.” State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012).

In State v. Tucker, 728 S.W.2d 27, 31 (Tenn. 1986), our supreme court adopted the 

standard set out in Oregon v. Kennedy, 456 U.S. 667 (1982), for determining when 

prosecutorial misconduct will bar a retrial. In Tucker, our supreme court held that “[o]nly 

when it is shown that the prosecutor is ‘goading’ the defense into moving for a mistrial 

will double jeopardy bar a retrial.” 728 S.W.2d at 31. The Tennessee Supreme Court 

stated that, “when the case is collapsing around the prosecutor because the witnesses are 
- 13 -

weaker than expected, adverse rulings have kept out important evidence, or key witnesses 

cannot be found or did not appear, the trial judge can infer the prosecutor’s intent and 

reach the conclusion that a mistrial was actually desired.” Id. 

In State v. Clint Elmore, No. 03C01-9403-CR-00119, 1995 WL 84447, at *1

(Tenn. Crim. App. Feb. 28, 1995), perm. app. denied (Tenn. July 10, 1995), the 

defendant was charged with aggravated rape of a ten-year-old victim. The trial court 

granted the defendant’s motion in limine to limit the victim’s testimony to exclude 

references to any other victims. Id. When the victim testified at trial, he mentioned his 

sister. Id. The trial court granted the defendant’s motion for mistrial but “specifically 

found that there was no prosecutorial misconduct.” Id. On appeal, the defendant argued 

that a retrial would violate double jeopardy because the State’s actions were intended to 

goad the defendant into seeking a mistrial. Id. This court concluded that, prior to the 

victim’s testimony, the State explained to the victim the limitations on his testimony. Id.

at *2. This court stated that “[i]t [wa]s clear that the questions which prompted the 

controversial responses were not designed to insinuate that the [defendant] had molested 

other children, but rather were asked in order to show the sequence of events surrounding 

the abuse and its effect on the victim.” Id. (emphasis in original). Thus, this court 

concluded that the State’s question was not intended to provoke the defendant to request 

a mistrial and affirmed the trial court’s denial of the defendant’s motion to dismiss. Id. at 

*2-3.

“The defendant bears the burden of showing that the evidence preponderates 

against the trial court’s [factual] findings” regarding the prosecutor’s intent to “goad” the 

defendant into moving for a mistrial. State v. Huskey, 66 S.W.3d 905, 917 (Tenn. Crim. 

App. 2001). 

At the Defendant’s first trial, Mr. Akila stated that the Defendant “also doubted his 

wife at a previous occasion with another friend of his, and [the Defendant] pulled a gun 

on [his friend].” The Defendant objected, and the trial court held a jury-out hearing on 

the Defendant’s motion for a mistrial. The State argued that Mr. Akila’s statement was 

non-responsive to the State’s question: “Mr. Akila, were you aware of the [D]efendant 

taking any action because of his suspicions?” The prosecutor additionally noted that it 

had spoken with Mr. Akila about the testimony prior to trial and did not anticipate 

bringing out the testimony during direct examination. The State alternatively argued that 

it was not required to give the Defendant notice of its intent to introduce evidence under 

Tennessee Rule of Evidence 404(b) and that the statement was relevant to the 

Defendant’s motive and intent to commit the current offenses. The trial court noted that 

Mr. Akila’s statement discussed an event that was “almost identical” to the current 

offenses. Thus, the trial court held that a reasonable juror could not disregard the 
- 14 -

testimony and declared a mistrial. The trial court stated that it did not believe that the 

prosecutor intentionally solicited the statement from Mr. Akila. 

The Defendant filed a motion to dismiss the indictment, arguing that a second trial 

on the charges would violate double jeopardy and his right to due process. The

Defendant asserted that, at his first trial, the State elicited improper testimony from Mr. 

Akila, which resulted in the mistrial. In a written order, the trial court denied the 

Defendant’s motion to dismiss the indictment. The trial court found that the State did not 

elicit Mr. Akila’s statement in the first trial and that the State was not attempting to goad 

the Defendant into requesting a mistrial. Thus, the trial court found that “manifest 

necessity did exist to declare a mistrial and that retrial does not violate due process or 

double jeopardy.” The Defendant then filed a motion to stay the trial proceedings and 

filed an application for permission to appeal to the Tennessee Court of Criminal Appeals 

under Tennessee Rule of Appellate Procedure 9. The trial court denied the Defendant’s 

Rule 9 application for permission to appeal and his motion to stay the proceedings. The 

Defendant then filed an extraordinary appeal under Tennessee Rule of Appellate 

Procedure 10 with the Tennessee Court of Criminal Appeals. This court stayed the trial 

proceedings, see Tenn. R. App. P. 10(a), but later denied the Defendant’s Rule 10 

extraordinary appeal. This court concluded that, the trial court had not departed from the 

accepted and usual course of judicial proceedings in its denial of the Defendant’s motion 

to dismiss the indictment. The Defendant then proceeded to his second trial.

Prior to Mr. Akila’s testimony at the Defendant’s second trial, the Defendant 

renewed his motion to dismiss the indictment on double jeopardy grounds and asserted 

that Mr. Akila intentionally mentioned the prior incident in his first trial. The trial court 

stated that “[t]he State did not ask anything to try to elicit that response from the 

witness.” The trial court again denied the Defendant’s motion to dismiss the indictment. 

The trial court also instructed Mr. Akila, outside of the jury’s presence, to refrain from 

mentioning any prior incidents with the Defendant. 

Similar to this court’s conclusion in Clint Elmore, we conclude that the State did 

not intend to goad the Defendant into requesting a mistrial by asking Mr. Akila the 

following question: “Mr. Akila, were you aware of the [D]efendant taking any action 

because of his suspicions?” At the Defendant’s first trial, the State noted that it had 

spoken with Mr. Akila prior to his testimony and did not intend on eliciting the 

objectionable testimony. The Defendant has not presented any proof that the State 

intentionally asked Mr. Akila whether he knew if the Defendant had acted on his 

suspicions that his wife was having an affair for the purpose of goading the Defendant

into requesting a mistrial. The trial court did not err in denying the Defendant’s motion 

to dismiss the indictment, and the State was not barred from retrying the Defendant by 

double jeopardy.
- 15 -

Motion for mistrial

Next, the Defendant asserts that the trial court erred in denying his motion for 

mistrial because Mr. Ferwanah testified that the Defendant should take the stand. He 

argues that a mistrial was necessary because the jury heard Mr. Ferwanah’s statement,

and “no reasonable trier of fact could reach an impartial verdict after such a dramatic 

statement of potential guilt.” The State contends that the trial court properly denied the 

motion for mistrial because the State did not elicit the comment, and “the trial court 

repeatedly instructed the jury that [the Defendant] was not required to testify, including 

right after the outburst, ensuring that the jury understood [the Defendant]’s right to 

remain silent.”

The decision of whether to grant a mistrial is within the sound discretion of the 

trial court. State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). 

Normally, a mistrial should be declared only in the event that a manifest necessity 

requires such action. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). 

“In other words, a mistrial is an appropriate remedy when a trial cannot continue, or a 

miscarriage of justice would result if it did.” State v. Land, 34 S.W.3d 516, 527 (Tenn. 

Crim. App. 2000). The burden to show the necessity for a mistrial falls upon the party 

seeking the mistrial. Id. This court will not disturb the trial court’s decision unless there 

is an abuse of discretion. State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990). In 

evaluating whether the trial court abused its discretion, we may consider: “(1) whether 

the State elicited the testimony, (2) whether the trial court gave a curative instruction, and 

(3) the relative strength or weakness of the State’s proof.” State v. Welcome, 280 S.W.3d 

215, 222 (Tenn. Crim. App. 2007). 

During Mr. Ferwanah’s cross-examination, the following exchange occurred:

[TRIAL COUNSEL:] And what you’re concerned with is the 

beating, not anything else; is that true, sir?

[MR. FERWANAH:] For everything he did to me, for the look 

when I look in my kids’ eyes the next day, because when he took me home, 

my kids walk up there -- they were in bed, they walk up, they looked at me, 

they saw me how I looked, what he did to me. The next day and the next 

day when they all come in the middle of the night, my children, I look at 

them and I cry.

[TRIAL COUNSEL:] Well -
- 16 -

[MR. FERWANAH:] We had to take them to therapy, the whole 

family, so they can (inaudible) what he did to them.

[TRIAL COUNSEL:] And my question, sir, was, that you were 

concerned with the beating; is that correct?

[MR. FERWANAH:] What do you mean, I was concerned --

[THE STATE]: Asked and answered.

THE [TRIAL] COURT: I’m not -- can you rephrase? I think you’re 

asking is there something other than the beating.

[TRIAL COUNSEL]: Okay.

[TRIAL COUNSEL:] So that when Mr. Akila and, what you say, 

[the Defendant] did about carrying you down the hallway, not -- you’re not 

concerned about that, about what Mr. Akila and what you say [the 

Defendant] did about throwing you into the garage? You’re not concerned 

about that; is that correct?

[MR. FERWANAH:] I’m concerned about all that, all that 

happened, all what he did.

[TRIAL COUNSEL:] But Mr.

[MR. FERWANAH:] He did all that. How can that man sit here 

and say he didn’t do [sic]? Take the stand. Be a man and acknowledge 

what you did.

THE [TRIAL] COURT: You need to wait.

[TRIAL COUNSEL:] Your Honor, may we approach?

[MR. FERWANAH:] I’m sorry. I’m sorry, Your Honor.

THE [TRIAL] COURT: That’s all right. We’re just going to take a 

recess so we can calm down. Please don’t discuss this case among 

yourselves. You may leave your notebooks in your chairs. I’ll see you in a 

few minutes.
- 17 -

. . . .

THE [TRIAL] COURT: All right, folks. You can have a seat. [trial

counsel].

[TRIAL COUNSEL:] Your Honor, we are, again, in a position that 

we would move for a mistrial because of the insistence by Mr. Ferwanah 

that, quote, [the Defendant] be a man and take the stand and admit what he 

did. Your Honor, that is an improper comment on my client’s right to 

remain silent, be it by the State or a State’s witness, it is still an improper 

comment. Whatever the emotional concerns were or not, this is a totally 

improper comment. We cannot get past it by the jury being told that, well, 

[the Defendant] has a right to remain silent, when you got somebody in the 

emotional state that Mr. Ferwanah has and being non-responsive to the 

question, talking about [the Defendant] taking the stand and being a man 

and admitting what he did. 

THE [TRIAL] COURT: All right. I’m going to deny your Motion 

for Mistrial. We did spend a lot of time on this during voir dire and even 

excused one potential juror because he said that . . . would be stuck in his 

mind, that he’d be wondering what the person would say. 

And so, Mr. Ferwanah, you can’t comment on him not testifying. I

understand. You’re very emotional. It’s a very stressful situation. 

I’m going to instruct the jury to disregard that. I instructed them 

already. They’ve heard this instruction before. I’ve read it to them during 

jury selection and I’m going to read it to them again at the end, but I’ll tell 

them to disregard Mr. Ferwanah’s statement.

I certainly think that the jury understands the law. The fact that Mr. 

Ferwanah said that is really no different than us commenting on it during 

voir dire, that, certainly -- Mr. Ferwanah’s opinion is, is that he should get 

up and testify. The jury knows he doesn’t have to do that. And they have 

been instructed already and will be instructed again that they are not to 

place any significance on the fact that if [the Defendant] chooses not to 

testify or to put on any evidence, and I’ll tell them to disregard that 

statement. I think everybody understands that was a heat-of-the-moment 

statement made out of frustration by Mr. Ferwanah, so . . .
- 18 -

I’m going to deny your Motion for Mistrial. I don’t think there’s 

manifest necessity for it. I think the jury can follow my instructions on 

that.

While the jury was still out of the courtroom, the Defendant requested that the trial 

court also give “the no prejudice or sympathy instruction.” The trial court stated the 

following:

THE [TRIAL] COURT: I don’t think I need to -- to add that in. I

mean, you were yelling earlier. . . . I don’t know if you know it, but you 

get really aggressive and your voice gets raised and I didn’t ask you to calm 

down. I think . . . the jury understands it’s a stressful situation. You’re 

trying to represent your client as zealously as possibly. And I think Mr. 

Ferwanah finally just got pushed over the edge and -- I don’t think your 

questions were inappropriate. You weren’t yelling when you asked that 

one. It’s just earlier, I think . . . your tone of voice kind of built up a very 

adversarial situation, so . . . 

I’m just going to ask that everybody calm down. We’re going to 

take a recess. We’ll collect our . . . thoughts. I don’t think I need to give 

any additional instructions other than disregard the statement about 

testifying.

After the jury returned to the courtroom, the trial court instructed the jury to 

“disregard and strike from the record of your proceedings the statement of Mr. Ferwanah 

challenging the defendant to testify.” The trial court also instructed the jury that it could 

not consider the fact that the Defendant testified or did not testify at trial. 

Here, we conclude that the trial court did not err in denying the Defendant’s 

motion for mistrial. The State did not elicit Mr. Ferwanah’s statement. During the 

Defendant’s cross-examination of Mr. Ferwanah, trial counsel conducted a line of 

questioning regarding what concerned Mr. Ferwanah most about the offenses. Mr. 

Ferwanah apparently became emotional, and his outburst challenging the Defendant to 

take the stand was non-responsive to trial counsel’s question. Additionally, the trial court 

instructed the jury to disregard Mr. Ferwanah’s statement, and we must presume that the 

jury followed the trial court’s instruction. State v. Reid, 91 S.W.3d 247, 279 (Tenn. 

2002) (citing State v. Stout, 46 S.W.3d 689, 715 (Tenn. 2001); State v. Williams, 977 

S.W.2d 101, 106 (Tenn. 1998)). Lastly, we conclude that the State’s proof in this case 

was strong. Both the Defendant’s accomplice, Mr. Akila, and the victim, Mr. Ferwanah, 

testified that the Defendant tricked Mr. Ferwanah into being tied up, and with the 

assistance of Mr. Desouzaneti, took Mr. Ferwanah into the garage and beat him severely. 
- 19 -

Thus, the trial court properly determined that there was no manifest necessity for a 

mistrial.

Further, the Defendant argues that “Mr. Ferwanah’s challenge[] and the 

subsequent denial of the motion for mistrial[] violated his constitutional right to a fair 

trial.” The Defendant cites to the Fourteenth Amendment of the United States 

Constitution, and Article I, section eight of the Tennessee Constitution, and argues that 

the trial court’s instruction was insufficient to resolve the error committed when Mr. 

Ferwanah told the Defendant to “[b]e a man” and “[t]ake the stand[.]” The State notes 

that the trial court instructed the jury several times to disregard Mr. Ferwanah’s 

statements, and “the trial court reasonably concluded that multiple curative instructions 

were sufficient to mitigate [Mr.] Ferwanah’s outburst.”

The United States Constitution and the Tennessee state constitution guarantee 

criminal defendants the right to trial by jury. U.S. Const. amend. VI; Tenn. Const. art. I, 

§ 6 (providing “that the right of trial by jury shall remain inviolate”). We have already 

concluded that Mr. Ferwanah’s outburst did not create the manifest necessity for a 

mistrial. We agree with the State that the trial court’s prompt action of sending the jurors 

out, holding a jury-out sidebar, and instructing the jury upon its return ensured that the 

Defendant’s right to a fair trial was not violated. The Defendant is not entitled to relief 

on this ground.

Improper prosecutorial comment on the right not to testify

The Defendant further argues that Mr. Ferwanah’s statement violated his right to 

remain silent and constituted prosecutorial misconduct because Mr. Ferwanah was a 

witness of the State. The State asserts that Mr. Ferwanah’s outburst was not elicited by 

the State and notes that the trial court instructed the jury several times regarding the 

Defendant’s right to testify or not testify.

Both the United States Constitution and the Tennessee Constitution “guarantee 

criminal defendants the right to remain silent and the right not to testify at trial.” State v. 

Jackson, 444 S.W.3d 554, 585 (Tenn. 2014). The Tennessee Supreme Court has 

previously cautioned that “[t]he subject of a defendant’s right not to testify should be 

considered off limits to any conscientious prosecutor.” Id. at 586 (quoting State v. Hale, 

672 S.W.2d 201, 203 (Tenn. 1984)) (internal quotation marks omitted). In addition to 

direct comments on a defendant’s decision not to testify, “indirect references on the 

failure to testify also can violate the Fifth Amendment privilege.” Id. at 587 (quoting 

Byrd v. Collins, 209 F.3d 486, 533 (6th Cir. 2000)) (internal quotation marks omitted).
- 20 -

In Jackson, our supreme court overturned a second-degree murder conviction 

where the prosecutor, during closing rebuttal argument, “walked across the court room, 

stood in front of [the d]efendant, gestured toward her, and demanded in a loud voice, 

‘Just tell us where you were! That’s all we are asking, Noura!’” Id. at 585, 602. In its 

ruling, the court adopted a two-part test for determining whether a prosecutor’s remark 

amounts to an improper comment on a defendant’s constitutional right to remain silent 

and not testify. Id. at 587-88. The two-part test analyzes: “(1) whether the prosecutor’s 

manifest intent was to comment on the defendant’s right not to testify; or (2) whether the 

prosecutor’s remark was of such a character that the jury would necessarily have taken it 

to be a comment on the defendant’s failure to testify.” Id. at 588. This court reviews a 

defendant’s claim of impermissible prosecutorial comment on the right not to testify de 

novo. Id.

In the case at hand, we conclude that the State did not improperly comment on the 

Defendant’s right to testify or remain silent. Most notably, Mr. Ferwanah challenged the 

Defendant to testify during the defense’s cross-examination. While Mr. Ferwanah 

testified for the State, it is clear that the State had no role in eliciting Mr. Ferwanah’s 

statement. Thus, we conclude that the State had no manifest intent to comment on the 

Defendant’s right to testify. The Defendant is not entitled to relief on this ground.

Cross-examination of Mr. Akila

Prior to Mr. Akila’s testimony at the Defendant’s second trial, the trial court 

addressed the issue of Mr. Akila’s testimony regarding his plea agreement during a juryout hearing. The trial court stated the following: 

When a co-defendant is charged with the exact same thing, the 

statute that prohibits you [from] talking about sentencing applies to codefendants. It’s a tricky road you got . . . to follow. And I think you . . . 

managed it well with Mr. Ferwanah, about his understanding. But when 

you come time to question Mr. Akila, you can’t talk to him about any 

specific length of time that he’s . . . looking at. You can talk about, you 

know, you’re eligible for probation, you’re eligible for diversion. You can 

ask him that, but you can’t talk about specific lengths of prison sentences.

During Mr. Akila’s cross-examination, the following exchange occurred:

[TRIAL COUNSEL]: Your Honor, may we approach? 

THE [TRIAL] COURT: Yes, sir.
- 21 -

(Bench conference:)

[TRIAL COUNSEL]: I don’t want to violate Your Honor’s rule. I

need to know the questions that I can ask him about the penalty that he was 

facing.

THE [TRIAL] COURT: The substance of it is, is that your 

understanding is that you’re getting a significantly reduced sentence than 

what you were facing, your original charge. Does that make sense?

[TRIAL COUNSEL]: And that’s the limitation that I can --

THE [TRIAL] COURT: I think you’ve already asked. I mean, 

that’s the substance of what you can get to.

[TRIAL COUNSEL]: Okay.

THE [TRIAL] COURT: Nothing about time percentages.

(Open court:)

[TRIAL COUNSEL:] Mr. Akila, you understand that by your 

coming to court today and testifying in front of this jury, that you are to 

receive a significantly reduced punishment for what you were charged 

with?

[MR. AKILA:] I do know I was offered two years’ probation and 

judicial diversion if the Judge accepts that, in return.

[TRIAL COUNSEL:] My question is, you understand that that is a 

significant reduction from the offenses that you are currently charged with?

[MR. AKILA:] I don’t know what’s the scale of the significant is.

[TRIAL COUNSEL]: Your Honor, I understand I can’t ask another 

question; that correct?

THE [TRIAL] COURT: Will you approach?

(Bench conference:)
- 22 -

THE [TRIAL] COURT: Follow-up question is, you do understand 

that you were facing a larger sentence than what you’re getting now? If he 

doesn’t, then we send the jury out and we’ll talk about it. So ask him that 

and see what he says.

[TRIAL COUNSEL]: I’ll ask him that way.

(Open court:)

[TRIAL COUNSEL:] You understand that your agreement allows 

you to receive a much reduced sentence from the harsher punishment that 

you were facing?

[MR. AKILA:] Correct.

Harmless Error Review

The Defendant asserts that the trial court erred in limiting his cross-examination of 

Mr. Akila regarding his plea agreement with the State because “Tennessee courts have 

not interpreted Tenn[essee] Code Ann[otated] [section] 40-35-201(b) as an absolute bar 

to the cross-examination of witnesses, or other presentation of proof and argument, that 

may inadvertently comment upon sentences.” The State contends that the trial court’s 

limitation was within its discretion because further discussion of Mr. Akila’s plea 

agreement would have revealed the Defendant’s sentence exposure to the jury, which 

would have violated section 40-35-201(b). The State also argues that “when a defendant 

offers testimony that a co-defendant is receiving a favorable sentence in return for 

testifying, a co-defendant’s possible sentence without a plea is only marginally relevant 

to his bias.”

“The propriety, scope, manner and control of the cross-examination of witnesses, 

however, rests within the sound discretion of the trial court.” State v. Dishman, 915 

S.W.2d 458, 463 (Tenn. Crim. App. 1995) (citing Coffee v. State, 216 S.W.2d 702, 703 

(Tenn. 1948); Davis v. State, 212 S.W.2d 374, 375 (Tenn. 1948)). Absent a clear abuse 

of discretion that results in manifest prejudice to the defendant, this court will not 

interfere with the trial court’s exercise of its discretion on matters pertaining to the 

examination of witnesses. State v. Johnson, 670 S.W.2d 634, 636 (Tenn. Crim. App. 

1984) (citing Monts v. State, 379 S.W.2d 34 (Tenn. 1964)). The trial court has authority 

to “exercise appropriate control over the presentation of evidence and conduct of the trial 

when necessary to avoid abuse by counsel.” Tenn. R. Evid. 611(a).
- 23 -

In State v. Bolden, the Tennessee Supreme Court held that the following 

safeguards should “be followed before admitting testimony procured through plea 

bargain agreements[:]”

(1) full disclosure of the terms of the agreements struck with the witnesses; 

(2) the opportunity for full cross-examination of those witnesses concerning 

the agreements and the effect of those agreements on the testimony of the 

witnesses; and (3) instructions cautioning the jury to carefully evaluate the 

weight and credibility of the testimony of such witnesses who have been 

induced by agreements with the State to testify against the defendant.

979 S.W.2d 587, 590 (Tenn. 1998) (internal citations omitted). In State v. Paul Spears, 

this court stated that “[t]he essence of Bolden is that the defense must be given wide 

latitude in cross-examination of a plea-bargaining accomplice regarding the terms of the 

plea agreement, actions or promises of the prosecution, and any other facts bearing on 

the truthfulness or credibility of the accomplice.” No. E1999-00383-CCA-R3-CD, 2000 

WL 760758, at *4 (Tenn. Crim. App. June 13, 2000) (emphasis in original), perm. app. 

denied (Tenn. Dec. 27, 2000).

Tennessee Code Annotated section 40-35-201(b) states that “[i]n all contested 

criminal cases, . . . the judge shall not instruct the jury, nor shall the attorneys be 

permitted to comment at any time to the jury, on possible penalties for the offense 

charged nor all lesser included offenses.” Tenn. Code Ann. § 40-35-201(b). 

In State v. Jereco Tynes, No. W2010-02511-CCA-R3-CD, 2013 WL 1043202, at 

*13 (Tenn. Crim. App. Mar. 13, 2013), perm. app. denied (Tenn. June 11, 2013), the 

defendant argued on appeal that the trial court committed plain error and violated his 

right to confrontation by “not permitting him to cross-examine [the co-defendants] to 

establish that, prior to their guilty pleas to second degree murder, they each faced the 

possibility of life in prison on the original charge of first degree felony murder.” This 

court conducted a plain error review of the issue and held that, “under the facts and 

circumstances of this case, the trial court did not abuse its discretion in prohibiting the 

defense from cross[-]examining [the co-defendants] about their total sentence exposure 

prior to pleading guilty.” Id. at *14. This court noted that because the co-defendants 

were charged with first degree felony murder, the defendant’s “eliciting the penalties they 

faced on that charge simultaneously would have informed the jury about the penalties the 

[d]efendant also faced.” Id. This court also concluded that “the trial court allowed 

sufficient cross-examination to inform the jury that [the co-defendants] pled guilty to a 

lesser offense than first degree murder and, accordingly, received a lower sentence” 

which “allowed the jury to discount [the co-defendant]’s testimony as it deemed 

appropriate.” Id. at *15. Further, this court concluded that a trial court does not abuse its 
- 24 -

discretion by “preventing a defendant from examining a witness about the exact range of 

potential sentences [the witness] faced because such information is not necessary to 

uncover any bias and would add only marginally to the jury’s understanding of [the 

witness’] credibility.” Id. (quoting State v. Alejandro Chevo Guana, No. W2008-01304-

CCA-R3-CD, 2010 WL 2593631, at *8 (Tenn. Crim. App. June 29, 2010), perm. app. 

denied (Tenn. Nov. 18, 2010)) (internal quotation marks omitted) (alterations in original).

In State v. Lamar Parrish Carter, No. M2012-01734-CCA-R9-CD, 2013 WL 

4680401, at *2 (Tenn. Crim. App. Aug. 29, 2013), perm. app. granted (Tenn. Jan. 15, 

2014), app. dismissed (Tenn. Jan. 27, 2017), the trial court declared a mistrial after trial 

counsel asked the co-defendant about his sentencing exposure for the offenses. On 

appeal, the defendant argued that there was no manifest necessity for a mistrial and that 

the trial court erred in limiting his cross-examination of a witness. Id. at *3. This court 

held that the trial court acted within its discretion to declare a mistrial when trial counsel

“exposed the jury to statutorily prohibited information.” Id. 

We conclude that the trial court did not abuse its discretion by limiting the 

Defendant’s cross-examination of Mr. Akila regarding Mr. Akila’s sentencing exposure. 

Here, the Defendant and Mr. Akila were charged for the same offenses against Mr. 

Ferwanah. Mr. Akila negotiated a plea agreement with the State to testify truthfully in 

the Defendant’s trial in exchange for a plea to the lesser-included offense of accessory 

after the fact and a sentence of two years’ probation. On cross-examination, Mr. Akila 

agreed that his plea-bargained sentence was less than his original sentencing exposure. 

The Defendant made the jury aware of Mr. Akila’s potential bias through his crossexamination of Mr. Akila regarding his plea negotiations with the State. Any further

delving into Mr. Akila’s original sentencing exposure would have likely violated 

Tennessee Code Annotated section 40-35-201(b) by exposing the jury to the possible 

sentences for the Defendant’s charged offenses. Further, more information about Mr. 

Akila’s sentencing exposure would have had minimal probative value because the jury 

was already aware that Mr. Akila received a much reduced sentence in exchange for 

truthful testimony. Thus, we conclude the trial court properly limited the Defendant’s 

cross-examination of Mr. Akila regarding his sentencing exposure. See Jereco Tynes, 

2013 WL 1043202 at *14-15; but see State v. Kenneth Kissamore, No. M2010-01565-

CCA-R3-CD, 2011 WL 2474061, at *3-4 (Tenn. Crim. App. June 21, 2011) (“[S]ection 

40-35-201(b) does not by its terms prohibit a comment on the actual sentence received by 

one other than the criminal defendant himself.”), perm. app. denied (Tenn. Oct. 19, 

2011). The Defendant is not entitled to relief on this ground. 
- 25 -

Confrontation Clause

The Defendant also argues that “[t]he limitations on [the Defendant]’s crossexamination deprived him of his constitutional right to effectively confront the witnesses 

against him, specifically a co-defendant who had gained more than fifteen (15) years of 

freedom and a clean criminal record by testifying for the State against [the Defendant].”

In a criminal trial, the defendant has a right “to be confronted with the witnesses 

against him.” U.S. Const. amend. VI. Similarly, the Tennessee Constitution provides 

“[t]hat in all criminal prosecutions, the accused hath the right . . . to meet the witnesses 

face to face.” Tenn. Const. art. I, § 9. Our supreme court has described the Tennessee 

Constitution as imposing “a higher right than that found in the federal constitution.” 

State v. Deuter, 839 S.W.2d 391, 395 (Tenn. 1992). However, “when deciding claims 

based on the right to confrontation provided in article I, section 9, we have expressly 

adopted and applied the same analysis used to evaluate claims based on the Confrontation 

Clause of the Sixth Amendment.” State v. Dotson, 450 S.W.3d 1, 62 (Tenn. 2014).

A defendant’s right to cross-examine witnesses does not preclude a trial court 

from imposing limits upon the cross-examination of witnesses, taking into account such 

factors as “harassment, prejudice, issue confusion, witness safety, or merely repetitive or 

marginally relevant interrogation.” State v. Reid, 882 S.W.2d 423, 430 (Tenn. Crim. 

App. 1994). A defendant’s right to cross-examine witnesses also “does not mean that a 

defendant has a right to present irrelevant evidence.” State v. Sheline, 955 S.W.2d 42, 47 

(Tenn. 1997). 

The United States Supreme Court has stated that even “a constitutionally improper 

denial of a defendant’s opportunity” to confront a witness against him, “like other 

Confrontation Clause errors, is subject to [a] . . . harmless error analysis.” Delaware v. 

Van Arsdall, 475 U.S. 673, 684 (1986). The Supreme Court set out the following test:

The correct inquiry is whether, assuming that the damaging potential of the 

cross-examination were fully realized, a reviewing court might nonetheless 

say that the error was harmless beyond a reasonable doubt. Whether such 

an error is harmless in a particular case depends upon a host of factors, all 

readily accessible to reviewing courts. These factors include the 

importance of the witness’ testimony in the [defendant]’s case, whether the 

testimony was cumulative, the presence or absence of evidence 

corroborating or contradicting the testimony of the witness on material 

points, the extent of cross-examination otherwise permitted, and, of course, 

the overall strength of the [defendant]’s case. 
- 26 -

Id. (internal citations omitted).

Here, we conclude that the trial court’s limitation on the Defendant’s crossexamination of Mr. Akila did not violate the Defendant’s constitutional right to confront 

witnesses. We believe that Mr. Akila’s testimony that he was originally charged with 

felonies was not salient to the Defendant’s case and that this testimony would have been 

cumulative. The trial court allowed the Defendant to elicit testimony from Mr. Akila that 

showed that he received a favorable plea offer from the State; this showed the jury that 

Mr. Akila could have had a bias in favor of the State. Trial counsel asked Mr. Akila 

several times whether he was aware that he received a significantly reduced sentence 

through the State’s plea offer, and Mr. Akila agreed that he received a reduced sentence. 

Information about the exact charges that Mr. Akila originally faced and his original 

sentencing exposure would not likely have affected Mr. Akila’s credibility in the jury’s 

eyes. Additionally, we note that the State had a strong case against the Defendant. The 

victim, Mr. Ferwanah, and the co-defendant, Mr. Akila, both testified that the Defendant 

restrained Mr. Akila, and with the help of another, removed Mr. Ferwanah to the garage, 

assaulted him and threatened to kill him. Thus, we conclude that the trial court did not 

infringe on the Defendant’s right to confront Mr. Akila by limiting the scope of crossexamination. The Defendant is not entitled to relief.

Admissibility of Mr. Damiri’s testimony

The Defendant argues that the trial court erred by excluding testimony from Mr. 

Damiri regarding a monetary agreement among the Defendant, Mr. Ferwanah, and their 

representatives. The Defendant also asserts that the trial court erred in excluding Mr. 

Damiri’s testimony that Mr. Ferwanah cursed at some of the Defendant’s witnesses, 

including Mr. Damiri, outside of the courtroom. The Defendant contends that the 

testimony was relevant to show Mr. Ferwanah’s bias against the Defendant and that the 

limitation more probably than not affected the verdict. The State argues that the trial 

court properly excluded the testimony because it made “no fact at issue more or less 

probable, and the trial court reasonably found it immaterial.” 

Generally, “questions concerning the admissibility of evidence rest within the 

sound discretion of the trial court, and this [c]ourt will not interfere in the absence of 

abuse appearing on the face of the record.” State v. Plyant, 263 S.W.3d 854, 870 (Tenn. 

2008). A trial court abuses its discretion when it “applies an incorrect legal standard or 

reaches a conclusion that is ‘illogical or unreasonable and causes an injustice to the party 

complaining.’” Id. (citing State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006)).

In order for evidence to be admissible, it must be relevant. Tenn. R. Evid. 402. 

Evidence is relevant if it has “any tendency to make the existence of any fact that is of 
- 27 -

consequence to the determination of the action more probable or less probable than it 

would without the evidence.” Tenn. R. Evid. 401. However, even if evidence is relevant, 

it “may be excluded if its probative value is substantially outweighed by the danger of 

unfair prejudice, confusion of the issues, or misleading the jury . . . .” Tenn. R. Evid. 

403. “A witness may be cross-examined on any matter relevant to any issue in the case, 

including credibility[.]” Tenn. R. Evid. 611(b). “A party may offer evidence by crossexamination, extrinsic evidence, or both, that a witness is biased in favor of or prejudiced 

against a party or another witness.” Tenn. R. Evid. 616. 

During a jury-out hearing, the Defendant proffered Ramadan Damiri’s testimony 

to the trial court. Mr. Damiri stated that he was a member of the Islamic community in 

Nashville and had known the Defendant for twenty years. In April 2012, Mr. Damiri 

visited Mr. Ferwanah at Mr. Ferwanah’s residence. Mr. Ferwanah’s uncle and father-inlaw were also visiting. Mr. Damiri discussed the possibility of “resolv[ing] the problem 

peacefully” with the men. Mr. Damiri later met with a man named Mohammed5and Mr. 

Ferwanah’s father-in-law at a restaurant to discuss the offenses. Because Mr. Ferwanah’s 

father-in-law agreed to meet with Mr. Damiri while Mr. Ferwanah was present, Mr. 

Damiri understood that Mr. Ferwanah’s father-in-law represented Mr. Ferwanah’s 

interests in the discussions. At the restaurant, Mr. Damiri, Mohammed, and Mr. 

Ferwanah’s father-in-law discussed how Mr. Ferwanah should be compensated “to 

alleviate suffering by giving some monetary amount and paying some of his medical 

bills, basically.” The men met at least three times to discuss compensation. At the final 

meeting, Mr. Ferwanah’s father-in-law informed Mr. Damiri and Mohammed that “he 

would settle the issue” for $3,500,000. The father-in-law informed Mr. Damiri and 

Mohammed that he would accept $2,500,000 in cash and the remaining $1,000,000 in 

payments. He also set a deadline of forty-eight hours for delivery of the cash payment. 

Mr. Damiri stated that Mr. Ferwanah had not filed his civil lawsuit against the Defendant, 

Electronics Tech, and Mr. Akila when these discussions took place. 

The trial court denied the Defendant’s motion to admit Mr. Damiri’s testimony 

and stated the following:

All right. Well, here’s what I think. I -- when you’re trying to show 

bias of a witness, or particularly a victim, certainly, any monetary concerns 

are always fertile ground for that. I think the defense has started from 

opening statement, all the way through their cross-examination of Mr. 

Ferwanah, that that’s an issue. And so I think they’ve raised the issue. I

think the proof has made it an issue. And so the defense should be able to 

 

5 The record is unclear regarding Mohammed’s relationship to the Defendant or Mr. Ferwanah.
- 28 -

establish that, if they can. And they’ve asked Mr. Ferwanah about the civil 

lawsuit, which he’s admitted to and talked about the amount of money here.

What is concerning to me about this -- and the reason I asked the 

State if they’re objecting to it is because it sounds to me like the Muslim 

community believes this happened. And they’re coming in to try to settle 

this peacefully between the parties instead of coming into courts.

. . . .

I heard no proof that Mr. Ferwanah instigated this. It sounded to me 

like this witness, being part of the Islamic community, took the steps to try 

to reach a peaceful settlement here. Although, it could be argued that Mr. 

Ferwanah’s father-in-law was acting as his agent, we haven’t heard that 

from the father-in-law. There’s some -- something’s being made here, the 

father-in-law very well may have been acting on his own. What we don’t 

have is any statement[] from Mr. Ferwanah himself about demanding the 

2.5 or 3.5 million dollars, 2.5 in cash.

The proof that’s been presented to me seems more like the cultural 

community, following their cultural norm, to try to reach a peaceful 

settlement without going to court. That, to me, does not play at all into the 

bias -- the alleged bias of Mr. Ferwanah or seeking money in this. 

Obviously, there hasn’t been any settlement or we would have heard about 

it.

So I think that the testimony of [Mr. Damari] . . . I don’t think that 

goes to show that Mr. Ferwanah was seeking money in this. And so I’m 

going to deny your request to introduce the testimony . . . that Mr. Damari 

just presented.

Later, Mr. Damiri made another proffer regarding his opinion of the Defendant’s 

character and reputation. Mr. Damiri also stated that, while he was outside the courtroom 

during a recess, Mr. Ferwanah cursed at Mr. Damiri and Mr. Ramadan while returning to 

the courtroom. The trial court ruled that this testimony was inadmissible because it did 

not show bias and was not related to a material issue.

We conclude that the trial court did not err in excluding Mr. Damiri’s testimony 

regarding the monetary negotiations between the Defendant and Mr. Ferwanah or the 

testimony regarding Mr. Ferwanah cursing at Mr. Damiri and Mr. Ramadan. We agree 

with the trial court that Mr. Damiri’s proffered testimony was not relevant to any material 
- 29 -

issues at trial. While the Defendant had raised the issue of Mr. Ferwanah’s bias against 

him through proof of Mr. Ferwanah’s civil suit, the proffered testimony did not tend to 

make Mr. Ferwanah’s bias any more probable. The testimony was speculative, unclear, 

and did not sufficiently establish that Mr. Ferwanah’s father-in-law was acting as Mr. 

Ferwanah’s agent or acting as a leader in the Muslim community. Additionally, it is 

unclear whether Mr. Damiri and Mohammed accepted Mr. Ferwanah’s offer on behalf of 

the Defendant. Because Mr. Damiri’s proffered testimony was unclear and speculative, 

the trial court did not abuse its discretion by excluding the testimony. The Defendant is 

not entitled to relief on this ground. 

Denial of court-appointed certified interpreter

The Defendant asserts that the trial court erred by allowing Mr. Ferwanah and Mr. 

Akila to “testify in English regarding conversations that took place in Arabic without the 

requirement or benefit of a certified or court-appointed translator, . . . rendering the 

unofficial translations of the unqualified lay witnesses as unreliable, prejudicial, and 

inadmissible, violating constitutional due process and the Tennessee Rules of Evidence.” 

The State contends that the trial court did not “appoint” Mr. Ferwanah and Mr. Akila to 

be interpreters and that the trial court properly allowed Mr. Ferwanah and Mr. Akila to 

testify in English about conversations that were originally spoken in Arabic. The State 

additionally argues that the Defendant failed to prove he was prejudiced by the trial 

court’s decision because the Defendant did not “identify[] what conversations could be 

problematic or how [Mr.] Ferwanah and [Mr.] Akila might have misinterpreted what was 

said.” 

Tennessee Rule of Criminal Procedure 28 states that the trial court “may appoint 

an interpreter pursuant to section 3 of Tennessee Supreme Court Rule 42.” Tenn. R. 

Crim. P. 28. Tennessee Supreme Court Rule 42, section 3 states the following:

(a) Appointing an interpreter is a matter of judicial discretion. It is 

the responsibility of the court to determine whether a participant in a legal 

proceeding has a limited ability to understand and communicate in English. 

If the court determines that a participant has such limited ability, the court 

should appoint an interpreter pursuant to this rule.

(b) Recognition of the need for an interpreter may arise from a 

request by a party or counsel, the court’s own voir dire of a party or 

witness, or disclosures made to the court by parties, counsel, court 

employees or other persons familiar with the ability of the person to 

understand and communicate in English.
- 30 -

Tenn. Sup. Ct. R. 42: § 3(a)-(b). Tennessee Rule of Evidence 604 states that “[a]n 

interpreter is subject to the provisions of these rules and applicable statutes relating to 

qualifications as an expert and the administration of an oath or affirmation to make a true 

interpretation.” Tenn. R. Evid. 604. “Appointment of an interpreter of a witness’s 

testimony in a criminal case is a matter for the trial court’s discretion subject to reversal 

only for abuse of that discretion.” State v. Van Tran, 864 S.W.2d 465, 475 (Tenn. 1993). 

A party contending that a translation of testimony is inaccurate must prove prejudice. Id.

at 476. 

On May 12, 2014, Judge Mary Beth Leibowitz6granted the Defendant’s motion 

for a continuance “due to need for the State to supply interpreter in [A]rabic language to 

translate [the] threat made to victim in [A]rabic language . . . .” 

On September 23, 2014, the trial court filed an order that addressed the 

Defendant’s motion to order witnesses to testify about prior statements in the language in 

which the statements were originally spoken. The trial court noted that this was a matter 

of first impression. The trial court stated the following:

The court finds merit in the arguments for both sides. All parties 

involved speak both English and Arabic. The statements in question were 

made in Arabic. What the hearer of those statements understood the 

meaning of those statements to be is highly relevant. It makes sense that 

the hearer testify in English as to what he or she understood the words to 

mean. On the other hand, the actual meaning, if different than the 

testimony of the hearer, would be relevant during cross-examination or as 

impeachment. 

Therefore, the court rules that the witness may testify in English as 

to what was said in Arabic. However, he may be required during crossexamination to testify as to the actual Arabic words that were spoken. The 

Defendant may have a certified interpreter present during this testimony. 

The Defendant may present proof by the interpreter during the Defendant’s 

case if he wishes to do so in order to impeach the hearer.

In this case, we conclude that the trial court did not err in declining to appoint a 

certified translator or by not requiring Mr. Ferwanah and Mr. Akila to testify in Arabic 

about statements made during the commission of the offenses. There is no evidence that 

any “participant in [this] legal proceeding ha[d] a limited ability to understand and 

 

6

Judge Leibowitz retired between the May 12, 2014 hearing and the September 23, 2014 hearing 

on this issue.
- 31 -

communicate in English.” See Tenn. Sup. Ct. R. 42, § 3(a). We note that the trial court 

permitted the Defendant to have a certified interpreter present during witness testimony 

to impeach the witness as to any Arabic translation. However, the Defendant did not take 

advantage of this portion of the trial court’s order. The Defendant also did not make a 

proffer to the trial court to set out any inaccuracies in Mr. Akila or Mr. Ferwanah’s 

testimony as to their testimony in English of conversations in Arabic. Thus, the 

Defendant cannot establish that he was prejudiced by the trial court’s denial of an 

interpreter. See Van Tran, 864 S.W.2d at 476. He is not entitled to relief on this ground. 

Additionally, the Defendant argues that: 

[b]ecause the trial [court] canceled the previously arranged interpreters’

services, allowed the witnesses to translate the statements without giving 

the original quote or cultural contact, and refused to compel the state to 

provide written, Arabic statements[,] [the Defendant] was faced with the 

choice to waive his right against self-incrimination or to not put on proof to 

refute potentially biased, inaccurate testimony.

However, the record reflects that neither Judge Leibowitz nor the trial court ordered the 

appointment of an interpreter. As set out above, the trial court’s order specifically 

allowed the Defendant to “have a certified interpreter present during this testimony” and 

to “present proof by the interpreter during the Defendant’s case if he wishes to do so in 

order to impeach [Mr. Ferwanah’s or Mr. Akila’s testimony].” The Defendant did not 

retain a certified interpreter to observe testimony. He also did not object to any improper 

translations during Mr. Ferwanah’s or Mr. Akila’s testimony. Rule 36(a) of the 

Tennessee Rules of Appellate Procedure states that “[n]othing in this rule shall be 

construed as requiring relief be granted to a party responsible for an error or who failed to 

take whatever action was reasonably available to prevent or nullify the harmful effect of 

an error.” “The failure to make a contemporaneous objection constituted waiver of the 

issue on appeal.” State v. Gilley, 297 S.W.3d 739, 762 (Tenn. Crim. App. 2008). We 

conclude that this issue is waived due to the Defendant’s failure to cite to applicable 

authorities in support of his argument as well as his failure to take action. In any event, 

we conclude that the Defendant’s right against self-incrimination was not implicated by 

the trial court’s actions because the Defendant had the ability to present his own 

interpreter as an expert witness. The Defendant is not entitled to relief on this ground.

Admission of the victim’s medical records

The Defendant argues that Mr. Ferwanah’s medical records are testimonial 

statements that “were recorded not for the limited purpose of medical treatment, but for 

the later prosecution of [the Defendant].” He points out that “Mr. Ferwanah was taken to 
- 32 -

the hospital after any emergency had ended, being transported after calling 911 and while 

law enforcement officers were present” and that “[h]is examination included both an 

interview and photographs taken by law enforcement.” The Defendant asserts that 

admitting these records without the testimony of an expert witness “allow[ed] the jury to 

speculate about what happened without explanation or cross-examination, [which] 

violat[ed] [the Defendant]’s right to confront witnesses against him and prejudiced him 

severely.” The State contends that the trial court properly admitted the medical records 

because they “were prepared as part of the hospital’s treatment of [Mr.] Ferwanah’s 

injuries, rather than as an attempt to accuse [the Defendant] of a crime.” 

As noted above, “questions concerning the admissibility of evidence rest within 

the sound discretion of the trial court, and this [c]ourt will not interfere in the absence of 

abuse appearing on the face of the record.” State v. Plyant, 263 S.W.3d 854, 870 (Tenn. 

2008). A trial court abuses its discretion when it “applies an incorrect legal standard or 

reaches a conclusion that is ‘illogical or unreasonable and causes an injustice to the party 

complaining.’” Id. (citing State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006)).

In State v. Cannon, our supreme court stated the following:

[U]nder both the United States and the Tennessee Constitutions, the 

appropriate analysis for determining whether an out-of-court statement may 

be admitted into evidence without violating an accused’s right of 

confrontation is as follows. A court must first determine whether the 

statement is testimonial or nontestimonial. Statements are testimonial if the 

primary purpose of the statement is to establish or to prove past events 

potentially relevant to later criminal prosecutions. A testimonial statement 

is inadmissible unless the State can establish that: “‘(1) the declarant is 

unavailable and (2) the accused had a prior opportunity to cross-examine 

the declarant.’” If the statement is nontestimonial, the Confrontation 

Clause does not apply, and the statement must be analyzed under the 

“traditional limitations upon hearsay evidence.” 

254 S.W.3d 287, 303 (Tenn. 2008) (internal citations omitted).

In Dotson, the Tennessee Supreme Court adopted the District of Columbia Court 

of Appeals’ reading of Williams v. Illinois, 567 U.S. 50 (2012) and held that “an out-ofcourt statement is testimonial under that precedent if its primary purpose is evidentiary 

and it is either a targeted accusation or sufficiently formal in character.” Dotson, 450 

S.W.3d at 69 (quoting Young v. United States, 63 A.3d 1033, 1043-44 (D.C. 2013)). 

“Whether the admission of hearsay statements violated a defendant’s confrontation rights 

is a question of law subject to de novo review.” State v. Davis, 466 S.W.3d 49, 68 (Tenn. 
- 33 -

2015) (citing State v. Lewis, 235 S.W.3d 136, 141-42 (Tenn. 2007)). “‘The application of 

the law to the facts found by the trial court is a question of law’ that is subject to de novo 

review.” Lewis, 235 S.W.3d at 142 (quoting State v. Maclin, 183 S.W.3d 335, 343 

(Tenn. 2006)).

Prior to trial, the Defendant made an oral motion in limine, arguing that the 

introduction of the victim’s medical records would violate the Defendant’s right to 

confront witnesses because the State had only notified the Defendant that it would call 

Parkwest Hospital’s records keeper. The trial court reserved its ruling for later in the 

trial.

After Mr. Ferwanah’s testimony, the State sought to admit his medical records into 

evidence. The Defendant objected on the grounds of relevance because the two witnesses 

through whom the State sought to admit the records were records keepers, rather than 

medical personnel, but would also testify about Mr. Ferwanah’s condition. The 

Defendant asserted that the introduction of the records through these witnesses would 

allow the jury to speculate as to the meaning of the information in the medical records. 

The Defendant also argued that the introduction of the medical records violated the 

Defendant’s right to confront witnesses, violated the rule against hearsay, and that the 

prejudice to the Defendant would outweigh any probative value. 

The trial court concluded that the affidavits of the custodians of the medical 

records authenticated the exhibits. The trial court held that the medical records were nontestimonial and thus, the Defendant’s right to confront witnesses would not be violated by 

their admission. The trial court further held that the medical records were business 

records that were maintained in the hospital’s regular course of business. The trial court 

concluded that the medical records were relevant to the issue of whether Mr. Ferwanah 

sustained a serious bodily injury during the offenses. The trial court further concluded 

that “that the probative value [wa]s high and the danger of unfair prejudice [wa]s low in 

this particular matter.” 

Nancy Dees testified that she worked as the custodian of records for Parkwest 

Hospital. The State admitted the records from Mr. Ferwanah’s admission to Parkwest 

Hospital through Ms. Dees. Cheryl Green testified that she worked as the custodian of 

records for the University of Tennessee Medical Center. The State admitted the records 

from Mr. Ferwanah’s admission to the University of Tennessee Medical Center through 

Ms. Green. 

As the State notes in its brief, it is unclear which statements in Mr. Ferwanah’s 

medical records the Defendant asserts are testimonial statements. The Defendant 

mentions that Mr. Ferwanah’s “examination included both an interview and photographs 
- 34 -

taken by law enforcement.” Mr. Ferwanah testified that, while he was hospitalized, law 

enforcement took photographs of his injuries. 

In the case sub judice, we conclude that the trial court properly admitted Mr. 

Ferwanah’s medical records. Mr. Ferwanah’s medical records from his admission to 

Parkwest Hospital do not contain any interview with law enforcement or any 

photographs. Thus, the Parkwest Hospital records are non-testimonial and were properly 

admitted. Mr. Ferwanah’s medical records from his admission to the University of 

Tennessee Hospital trauma center also do not contain any interview with law 

enforcement or any photographs, and we conclude that the trial court also properly 

admitted these records as non-testimonial. We agree with the trial court that the medical 

records fell under the business records hearsay exception. See Cannon, 254 S.W.3d at 

303 (stating that “to the extent medical records may be properly categorized as business 

records, such records are properly categorized as nontestimonial”). The Defendant is not 

entitled to relief on this ground.

Brady violation

The Defendant asserts that the State violated Brady v. Maryland, 373 U.S. 83, 87 

(1963), by failing to disclose that Mr. Ferwanah had received compensation from the 

State’s Criminal Injuries Compensation Fund (“the Fund”). The Defendant states the 

following:

Because [the Defendant] could only have known about the award of 

funds to Mr. Ferwanah by disclosure f[rom] the State, the State had notice 

that a crucial element to [the Defendant]’s defense was the improper 

financial motive of Mr. Ferwanah. Moreover, the State had knowledge that 

this claim not only contradicted Mr. Ferwanah’s previous testimony but 

that it also contradicted the testimony it intended to offer against [the 

Defendant] at the retrial. Because the State failed to disclose the award of 

funds, a preponderance of the evidence shows that [the Defendant] was 

deprived of his constitutional right to a fair trial and his conviction must be 

reversed.

The State responds that the Defendant “failed to show that this evidence was 

within the prosecution’s exclusive control, as the law surrounding the Fund indicates that 

it is not maintained by a prosecutorial entity” and that “the claim itself is cumulative to 

[the Defendant]’s other efforts to impeach [Mr.] Ferwanah, so there was no reasonable 

probability that it affected his verdict.” The State also notes that the Public Records Act, 

Tennessee Code Annotated section 10-7-504(k), does not prohibit individuals from 

discovering a claim, a claimant’s name, and the amount of the claim made to the Fund.
- 35 -

In Brady, the United States Supreme Court held that “suppression by the 

prosecution of evidence favorable to an accused upon request violates due process where 

the evidence is material either to guilt or to punishment, irrespective of the good faith or 

bad faith of the prosecution.” 373 U.S. at 87. In order to establish a Brady violation, 

four prerequisites must be met:

1. The defendant must have requested the information (unless the evidence 

is obviously exculpatory, in which case the State is bound to release the 

information whether requested or not);

2. The State must have suppressed the information;

3. The information must have been favorable to the accused; and

4. The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). “[W]hen there has been a general 

request or no request for Brady information, the undisclosed information is ‘material’ if it 

‘creates a reasonable doubt that did not otherwise exist.’” Id. (quoting United States v. 

Agurs, 427 U.S. 97, 112 (1976)). An omission of evidence must be evaluated in light of 

the entire record. Agurs, 427 U.S. at 112. 

The prosecution is not required to disclose information that the 

accused already possesses or is able to obtain, . . . or information which is 

not possessed by or under the control of the prosecution or another

governmental agency. Nor is the prosecution required to seek out 

exculpatory evidence not already in its possession or in the possession of a 

governmental agency. When exculpatory evidence is equally available to 

the prosecution and the accused, the accused “must bear the responsibility 

of [his] failure to seek its discovery.” 

State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App. 1992) (internal citations 

omitted) (some alterations in original). The defendant must prove, by a preponderance of 

the evidence, that a Brady violation has occurred. Edgin, 902 S.W.2d at 389.

In order to establish a Brady violation, the evidence need not be admissible; it only 

needs to be favorable to the defendant. State v. Spurlock, 874 S.W.2d 602, 609 (Tenn. 

Crim. App. 1993). Favorable evidence includes evidence that “provides some significant 

aid to the defendant’s case, whether it furnishes corroboration of the defendant’s story, 

calls into question a material, although not indispens[a]ble, element of the prosecution’s 
- 36 -

version of events, or challenges the credibility of a key prosecution witness.” Johnson v. 

State, 38 S.W.3d 52, 56-57 (Tenn. 2001) (internal quotation marks omitted). Evidence is 

material under Brady “only if there is a reasonable probability that, had the evidence been 

disclosed to the defense, the result of the proceeding would have been different.” United 

States v. Bagley, 473 U.S. 667, 682 (1985). A “reasonable probability” is “a probability

sufficient to undermine the confidence in the outcome.” Id.

In the Defendant’s motion for new trial, he asserted the following, in pertinent 

part:

The State erred by failing to disclose exculpatory evidence under Brady v. 

Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). As 

demonstrated by the Exhibit entered in the sentencing hearing in this case,7

Mr. Ferwanah was given $15,709.63 in compensation from the State of 

Tennessee. Throughout this case, and during the cross-examination 

through both trials, the defense raised the monetary motives of Mr. 

Ferwanah’s testimony. Therefore, the information regarding the 

compensation from the State of Tennessee is exculpatory Brady evidence 

that the State should have—but did not—disclose before trial, violating [the 

Defendant]’s constitutional rights to Due Process, Brady, 373 U.S. at 87, 83 

S. Ct. at 1196-97 ([stating that] “the suppression by the prosecution of 

evidence favorable to an accused upon request violates due process where 

the evidence is material either to guilt or to punishment, irrespective of the 

good faith or bad faith of the prosecution”), as well as his constitutional 

right to cross-examine effectively the witnesses against him.

At the Defendant’s motion for new trial hearing, trial counsel asked the trial court 

to order the release of Mr. Ferwanah’s claim to the Fund. The trial court found that, even 

if the State was in possession of Mr. Ferwanah’s claim prior to trial, the State did not 

violate Brady by failing to disclose the document to the Defendant. On January 13, 2017, 

the trial court released Mr. Ferwanah’s victim compensation fund claim to the Defendant. 

The trial court’s order stated the following, in pertinent part:

Upon request of the [D]efendant, the State provided to the court the 

State’s file regarding the victim compensation claim in the above titled 

action. After review, the court now releases to the [D]efendant the attached 

claim and reward. To be clear, the court is not finding that the materials are 

 

7 The State moved Mr. Ferwanah’s victim impact statement into evidence at the Defendant’s 

sentencing hearing. The statement mentions that Mr. Ferwanah applied to the Fund for financial 

reimbursement of $15,709. 63.
- 37 -

exculpatory or that the State has committed a Brady violation. Rather, the 

documents are being released to assist the [D]efendant in his appellate 

claim.

The documents included in Mr. Ferwanah’s claim show that he filed a claim for 

medical bills and lost wages. In Section D of the claim, “Crime Information[,]” Mr. 

Ferwanah listed the names and addresses of Mr. Akila and the Defendant. The form 

states that the Fund is required by law to notify offenders of the victim’s claim. The 

documents show that the Division of Claims Administration approved the following 

payments in Mr. Ferwanah’s claim:

Payee Type of Claim Amount

Mr. Ferwanah Economic Support $15,002.27

University Health Systems Medical/Dental $ 635.79

Mr. Ferwanah Medical/Dental $ 311.52

Mr. Ferwanah Medical/Dental $ 264.22

Rural Metro of Midsouth LP Medical/Dental $ 106.52

Parkwest Medical Center Medical/Dental $ 207.76

Mr. Ferwanah Medical/Dental $ 131.62

Here, we agree with the trial court that Mr. Ferwanah’s claim to the Fund was not 

material. It is not reasonably probable that, had the State disclosed Mr. Ferwanah’s claim 

prior to trial, the results of the Defendant’s trial would have been different. See Bagley, 

473 U.S. at 682. Cross-examining Mr. Ferwanah about this claim would have 

emphasized how severely Mr. Ferwanah was injured by the Defendant’s actions. 

Additionally, while the Defendant could have used the claim to further his theory that Mr. 

Ferwanah was financially motivated to pursue action against the Defendant, the claim 

would have been cumulative because the Defendant was able to cross-examine Mr. 

Ferwanah about his civil suit against the Defendant. Additionally, we note that the 

Defendant failed to include in the record any motion filed that requested that the State 

disclose Brady material.8 Thus, because the evidence is not clearly exculpatory and the 

Defendant did not request it, the State did not violate Brady by failing to disclose Mr. 

Ferwanah’s claim to the Defendant. See Jonathan Tears v. State, No. M2012-01080-

CCA-R3-PC, 2013 WL 6405734, at *30-31 (Tenn. Crim. App. Dec. 6, 2013) 

(determining that the victim’s claim to the Fund was not material), no perm. app. filed. 

The Defendant is not entitled to relief on this ground.

 

8 The only mention of a discovery request in the record is the “Defendant’s oral motion for 

specific discovery of 911 tape of call made at 9:30 p.m.” from a motion hearing. “It is the duty of the 

party seeking review of the action of the trial court to prepare a record sufficient to enable the reviewing 

court to determine if the discretion has been abused.” State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983).
- 38 -

Sufficiency of the evidence

Our standard of review for a sufficiency of the evidence challenge is “whether, 

after viewing the evidence in the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime beyond a reasonable doubt.” 

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Tenn. R. 

App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence 

are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This 

court will not reweigh the evidence. Id. Our standard of review “is the same whether the 

conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331 

S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 

2009)) (internal quotation marks omitted).

A guilty verdict removes the presumption of innocence, replacing it with a 

presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914 

(Tenn. 1982). The defendant bears the burden of proving why the evidence was 

insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at 

914. On appeal, the “State must be afforded the strongest legitimate view of the evidence 

and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221 

S.W.3d 514, 521 (Tenn. 2007). 

Count one - aggravated kidnapping with deadly weapon

The Defendant argues that “the White factors indicate that this event, if any crime, 

was an [a]ggravated [a]ssault and not any kidnapping offense, as demonstrated by the fact 

that the jury also convicted [the Defendant] of Aggravated Assault.” The Defendant 

asserts that his convictions in counts one and two should be vacated “[b]ecause there was 

no removal or confinement above that necessary for an [a]ggravated [a]ssault[.]” The 

Defendant also argues that the State failed to establish that the Defendant used a deadly 

weapon during the offenses. The State contends that the Defendant instructed Mr. 

Desouzaneti to restrain Mr. Ferwanah with zip ties, making the Defendant criminally 

responsible for the act. The State also notes that the Defendant tricked Mr. Ferwanah 

into coming into Electronics Tech and sitting in a chair. The Defendant then restrained 

Mr. Ferwanah and continued to confine Mr. Ferwanah.

As pertinent to the Defendant’s conviction in count one, “[a]ggravated kidnapping 

is false imprisonment[] . . . committed . . . [w]hile the defendant is in possession of a 

deadly weapon or threatens the use of a deadly weapon.” Tenn. Code Ann. § 39-13-

304(a)(5) (2012). The Tennessee Code Annotated defines “deadly weapon” as “[a] 

firearm or anything manifestly designed, made or adapted for the purpose of inflicting 
- 39 -

death or serious bodily injury[,]” or “[a]nything that in the manner of its use or intended 

use is capable of causing death or serious bodily injury[.]” Tenn. Code Ann. § 39-11-

106(a)(5)(A)-(B) (2012). “A person commits the offense of false imprisonment who 

knowingly removes or confines another unlawfully so as to interfere substantially with 

the other’s liberty.” Tenn. Code Ann. § 39-13-302(a) (2012).

In State v. White, our supreme court set out the following list of non-exclusive 

factors to consider in determining whether the State proved that the defendant’s removal 

or confinement of a victim “was to a greater degree than that necessary to commit the 

offense of [aggravated assault:]” (1) “the nature and duration of the victim’s removal or 

confinement by the defendant”; (2) “whether the removal or confinement occurred during 

the commission of the separate offense”; (3) “whether the interference with the victim’s 

liberty was inherent in the nature of the separate offense”; (4) “whether the removal or 

confinement prevented the victim from summoning assistance, although the defendant 

need not have succeeded in preventing the victim from doing so”; (5) “whether the 

removal or confinement reduced the defendant’s risk of detection, although the defendant 

need not have succeeded in this objective”; and (6) “whether the removal or confinement 

created a significant danger or increased the victim’s risk of harm independent of that 

posed by the separate offense.” 362 S.W.3d 559, 580-81 (Tenn. 2012). 

Here, the record reflects that the trial court gave the White instruction to the jury 

on counts one and two. When the evidence is viewed in the light most favorable to the 

State, we conclude that there was sufficient evidence for a rational juror to have found the 

Defendant guilty of aggravated kidnapping in count one. The Defendant’s actions of 

tying Mr. Ferwanah to the chair and removing him to the basement were beyond that 

which was necessary to effectuate the Defendant’s assault of Mr. Ferwanah. See State v. 

Jeffrey W. Tittle, No. M2016-02006-CCA-R3-CD, 2017 WL 4773427, at *11 (Tenn. 

Crim. App. Oct. 23, 2017) (concluding “that the attempted aggravated kidnapping 

involved a separate attempted removal or confinement when the [d]efendant dragged the 

victim down the driveway”), no perm. app. filed. Further, the Defendant’s restraint of 

Mr. Ferwanah and removal to the garage prevented Mr. Ferwanah from summoning 

assistance and reduced the Defendant’s risk of detection. See White, 362 S.W.3d at 580-

81. Mr. Ferwanah could not use his cellular phone or any phone in the building to call 

for help or medical assistance because his hands were tied.9 Additionally, the 

Defendant’s restraint and removal of Mr. Ferwanah increased Mr. Ferwanah’s risk of 

harm independent of the risk of harm posed by the Defendant’s aggravated assault 

because Mr. Ferwanah could not defend the Defendant’s assault while his hands were 

 

9 We acknowledge that the proof evidenced at trial reflects that Mr. Desouzaneti tied Mr. 

Ferwanah’s hands with zip ties. However, the jury could have found the Defendant guilty for this action 

under a theory of criminal responsibility. The record reflects that the trial court instructed the jury on 

criminal responsibility as to all four counts.
- 40 -

tied. We conclude that the Defendant’s actions of restraining and removing Mr. 

Ferwanah were not essentially incidental to the Defendant’s aggravated assault of Mr.

Ferwanah. 

Regarding the Defendant’s argument that the State failed to prove that the 

Defendant used a deadly weapon during the offenses, Mr. Ferwanah stated that the 

Defendant had a gun and a knife on a table during the offenses. The Defendant opened 

and closed the gun to show Mr. Ferwanah that it was loaded and pointed it at Mr. 

Ferwanah’s head. Mr. Akila testified that the Defendant told Mr. Akila to go to the office 

and retrieve the Defendant’s gun. When Mr. Akila brought the gun to the garage, the 

Defendant pointed it at Mr. Ferwanah’s head. Further, Mr. Ferwanah testified that the 

Defendant hit Mr. Ferwanah with a baseball bat and that the masked man hit Mr. 

Ferwanah with a “two-by-four.” It was within the province of the jury’s role as factfinder 

to credit Mr. Ferwanah’s and Mr. Akila’s testimony that the Defendant used a deadly 

weapon during the aggravated kidnapping. The Defendant is not entitled to relief on this 

ground.

Count two - especially aggravated kidnapping with serious bodily injury

Regarding count two, the Defendant argues that “there is no proof that Mr. 

Ferwanah sustained a serious bodily injury because the State declined to put on any 

testimony from any medical professionals.” As noted above, the Defendant also argues 

that the State failed to establish that Mr. Ferwanah was removed or confined to a degree 

beyond that necessary to accomplish aggravated assault.

As pertinent to the Defendant’s conviction in count two, “[e]specially aggravated 

kidnapping is false imprisonment[] . . . [w]here the victim suffers serious bodily injury.” 

Tenn. Code Ann. § 39-13-305(a)(4) (2012). The statutory definition of false 

imprisonment is set out above. Serious bodily injury is a bodily injury that involves “[a] 

substantial risk of death[,]” “[p]rotracted unconsciousness[,]” “[e]xtreme physical 

pain[,]” “[p]rotracted or obvious disfigurement[,]” or “[p]rotracted loss or substantial 

impairment of a function of a bodily member, organ or mental faculty[.]” Tenn. Code 

Ann. § 39-11-106(a)(34)(A)-(E) (2012).

We have previously concluded that the Defendant’s actions of restraining and 

removing Mr. Ferwanah were not essentially incidental to the Defendant’s aggravated 

assault of Mr. Ferwanah. Regarding the Defendant’s argument on serious bodily injury, 

the record reflects that Mr. Ferwanah sustained fractures in his left ankle and both wrists 

and bruising and lacerations on various places on his body. He also sustained an injury to 

his head. Mr. Ferwanah testified that his pain level after the offenses was ten out of ten, 

and his pain did not lessen until he was given morphine at the hospital. He stated that he 
- 41 -

could not return to work for four and a half months. At the time of trial, Mr. Ferwanah 

still had pain in his right shoulder, and he occasionally “mixed up” words due to his head 

injury. This court has previously stated that “the subjective nature of pain is a question of 

fact to be determined by the trier of fact[.]” State v. Eric A. Dedmon, No. M2005-00762-

CCA-R3-CD, 2006 WL 448653, at *5 (Tenn. Crim. App. Feb. 23, 2006), no perm. app. 

filed. Here, it was within the province of the jury’s role as factfinder to credit Mr. 

Ferwanah’s testimony that his pain level was ten out of ten. We conclude that Mr. 

Ferwanah’s testimony was sufficient to establish that he sustained a serious bodily injury 

during the kidnapping. See State v. Dewayne Jones, No. W2016-00074-CCA-R3-CD, 

2017 WL 2998900, at *7 (Tenn. Crim. App. July 14, 2017) (concluding that the evidence 

was sufficient to establish aggravated assault based on the victim’s testimony that his 

pain level was ten out of ten), perm. app. denied (Tenn. Oct. 6, 2017). The Defendant is 

not entitled to relief on this ground.

Count three - aggravated assault with serious bodily injury

As noted above, the Defendant argues that the State failed to present any proof 

that Mr. Ferwanah sustained a serious bodily injury because no medical professionals 

testified at trial.

As applicable to count three, a person commits aggravated assault who 

“[i]ntentionally or knowingly commits an assault . . . and[] [c]auses serious bodily injury 

to another[.]” Tenn. Code Ann. § 39-13-102(a)(1)(A)(i) (2012). Serious bodily injury is 

defined above. A defendant commits assault when he “[i]ntentionally, knowingly or 

recklessly causes bodily injury to another[,]” “[i]ntentionally or knowingly causes 

another to reasonably fear imminent bodily injury[,]” or “[i]ntentionally or knowingly 

causes physical contact with another and a reasonable person would regard the contact as 

extremely offensive or provocative.” Tenn. Code Ann. § 39-13-101(a) (2012).

We have previously concluded that it was within the province of the jury’s role as 

factfinder to credit Mr. Ferwanah’s testimony that his pain level after the offenses was 

ten out of ten. We conclude that, when the evidence is viewed in the light most favorable 

to the State, a rational juror could have found beyond a reasonable doubt that the 

Defendant intentionally or knowingly caused Mr. Ferwanah to sustain a serious bodily 

injury. The Defendant is not entitled to relief on this ground.

Count four - aggravated assault with a deadly weapon

As noted above, the Defendant argues that the State failed to establish that the 

Defendant used a deadly weapon during the offenses.
- 42 -

As relevant to count four, a person commits aggravated assault who 

“[i]ntentionally or knowingly commits an assault . . . and[] uses or displays a deadly 

weapon[.]” Tenn. Code Ann. § 39-13-102(a)(1)(A)(ii) (2012). “Deadly weapon” and 

assault are defined above. We have previously stated that it was within the province of 

the jury’s role as factfinder to credit Mr. Ferwanah’s and Mr. Akila’s testimony that the 

Defendant used a gun, a deadly weapon, during the offenses. We conclude that the 

evidence introduced at trial was sufficient for a rational juror to have found that the 

Defendant intentionally or knowingly caused Mr. Ferwanah to sustain and fear bodily 

injury while using and displaying a deadly weapon.

Sentencing

The Defendant argues that the trial court erred in finding that the Defendant 

possessed or employed a firearm or a deadly weapon during the offenses against Mr. 

Ferwanah because the State charged the Defendant with two counts of aggravated assault 

on alternative theories, one of which was that the assault was committed with a deadly 

weapon. Thus, the Defendant contends that the enhancement factor was subsumed as an 

element of the offense in count four. Additionally, the Defendant argues that the trial 

court erred in finding that the Defendant treated, or allowed Mr. Ferwanah to be treated, 

with exceptional cruelty during the commission of the offenses because the factor was 

subsumed in the elements of especially aggravated kidnapping and aggravated 

kidnapping. The State argues that “[t]he trial court . . . properly treated [the Defendant]’s 

convictions as separate when determining which enhancement factors applied.”

When the record establishes that the trial court imposed a sentence within the 

appropriate range that reflects a “proper application of the purposes and principles of our 

Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of 

discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 

707 (Tenn. 2012). A finding of abuse of discretion “‘reflects that the trial court’s logic 

and reasoning was improper when viewed in light of the factual circumstances and 

relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 

555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). “[A] trial 

court’s misapplication of an enhancement or mitigating factor does not remove the 

presumption of reasonableness from its sentencing determination.” Bise, 380 S.W.3d at 

709. Moreover, under those circumstances, this court may not disturb the sentence even 

if it had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 

2008). 
- 43 -

In determining the proper sentence, the trial court must consider: (1) the evidence, 

if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the 

principles of sentencing and arguments as to sentencing alternatives; (4) the nature and 

characteristics of the criminal conduct involved; (5) evidence and information offered by 

the parties on the mitigating and enhancement factors set out in Tennessee Code 

Annotated sections 40-35-113 and -114; (6) any statistical information provided by the 

administrative office of the courts as to sentencing practices for similar offenses in 

Tennessee; and (7) any statement the defendant made in the defendant’s own behalf 

about sentencing. See Tenn. Code Ann. § 40-35-210(b)(1)-(7) (2016); State v. Taylor, 63 

S.W.3d 400, 411 (Tenn. Crim. App. 2001). The trial court must also consider the 

potential or lack of potential for rehabilitation or treatment of the defendant in 

determining the sentence alternative or length of a term to be imposed. Tenn. Code Ann. 

§ 40-35-103(5) (2016).

To facilitate meaningful appellate review, the trial court must state on the record 

the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code 

Ann. § 40-35-210(e) (2016); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in 

the articulation of the reasons for imposing a particular sentence . . . should not negate the 

presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging 

the sentence on appeal bears the burden of establishing that the sentence was improper. 

Tenn. Code Ann. § 40-35-401 (2016), Sentencing Comm’n Cmts.

In determining a specific sentence within a range of punishment, the trial court 

should consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of punishment is the 

sentence that should be imposed, because the general assembly set the 

minimum length of sentence for each felony class to reflect the relative 

seriousness of each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as 

appropriate, by the presence or absence of mitigating and enhancement 

factors set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c) (2016).

Although the trial court should also consider enhancement and mitigating factors, 

such factors are advisory only. See Tenn. Code Ann. § 40-35-114 (2016); see also Bise, 

380 S.W.3d at 698, 704; Carter, 254 S.W.3d at 346. We note that “a trial court’s 

weighing of various mitigating and enhancement factors [is] left to the trial court’s sound 

discretion.” Carter, 254 S.W.3d at 345. In other words, “the trial court is free to select 
- 44 -

any sentence within the applicable range so long as the length of the sentence is 

‘consistent with the purposes and principles of [the Sentencing Act].’” Id. at 343. A trial 

court’s “misapplication of an enhancement or mitigating factor does not invalidate the 

sentence imposed unless the trial court wholly departed from the 1989 Act, as amended 

in 2005.” Bise, 380 S.W.3d at 706. “[Appellate courts are] bound by a trial court’s 

decision as to the length of the sentence imposed so long as it is imposed in a manner 

consistent with the purposes and principles set out in sections -102 and -103 of the 

Sentencing Act.” Carter, 254 S.W.3d at 346. “By statute, an enhancement factor must 

be appropriate for the offense and not an essential element of the offense.” State v. 

Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002) (citing Tenn. Code Ann. § 40-35-114 (1997 & 

Supp. 2001)). 

The trial court found that the Defendant was a leader in the commission of an

offense that involved two or more actors because the Defendant organized the offenses

and directed Mr. Akila and Mr. Desouzaneti. See Tenn. Code Ann. § 40-35-114(2) 

(2016). The trial court gave this factor “a significant deal of weight[.]” The trial court 

also found that the Defendant treated or allowed Mr. Ferwanah to be treated with 

exceptional cruelty during the commission of the offenses. See Tenn. Code Ann. § 40-

35-114(5) (2016). However, the trial court did not give this enhancement factor much 

weight. The trial court found that the Defendant possessed or employed a firearm or 

other deadly weapon during the commission of the offenses. See Tenn. Code Ann. § 40-

35-114(9) (2016). The trial court only applied this enhancement factor to counts two and 

three and gave the factor “some weight.” 

Here, the trial court ordered the Defendant to serve sentences within the proper 

range for a Range I standard offender. The Defendant received a sentence of twelve 

years for his conviction in count one, aggravated kidnapping, which is a Class B felony. 

See Tenn. Code Ann. § 39-13-304(b)(1) (2012); § 40-35-112(a)(2) (2016) (a Range I 

sentence for a Class B felony is eight to twelve years). The Defendant received a 

sentence of seventeen years for his conviction of especially aggravated kidnapping, a 

Class A felony, in count two. See Tenn. Code Ann. § 39-13-305(b)(1) (2012); § 40-35-

112(a)(1) (2016) (a Range I sentence for a Class A felony is fifteen to twenty-five years). 

The Defendant received sentences of six years for each of his convictions of aggravated 

assault, a Class C felony, in counts three and four. See Tenn. Code Ann. § 39-13-

102(e)(1) (2012); § 40-35-112(a)(3) (2016) (A Range I sentence for a Class C felony is 

three to six years). Because the trial court gave the Defendant an in-range sentence, the 

trial court’s decision is afforded a presumption of reasonableness, and we will not reverse 

absent an abuse of discretion. 
- 45 -

Exceptional cruelty enhancement factor

The exceptional cruelty enhancement factor is usually applied “in cases of abuse 

or torture.” State v. Williams, 920 S.W.2d 247, 259 (Tenn. Crim. App. 1995) (citing 

State v. Davis, 825 S.W.2d 109, 113 (Tenn. 1991); State v. Haynes, 720 S.W.2d 76, 86 

(Tenn. Crim. App. 1986)). Our supreme court has stated that this enhancement factor 

“denotes the infliction of pain or suffering for its own sake or from the gratification 

derived therefrom, and not merely pain or suffering inflicted as the means of 

accomplishing the crime charged” and “requires more than the physical infliction of 

serious bodily injury upon a victim.” Reid, 91 S.W.3d at 311. In order for this factor to 

properly apply, “the facts must demonstrate a culpability distinct from and greater than 

that incident to the offense.” Id. (citing State v. Poole, 945 S.W.2d 93, 98 (Tenn. 1997)). 

In Reid, our supreme court noted that exceptional cruelty was not an element of the 

offense of especially aggravated robbery and that “proof of serious bodily injury, which 

is an element of especially aggravated robbery, does not necessarily establish the 

enhancement factor of ‘exceptional cruelty.’” Id. 

Initially, we note that “exceptional cruelty” is not an element of aggravated 

kidnapping, especially aggravated kidnapping, or aggravated assault. See Tenn. Code 

Ann. § 39-13-304(a)(5) (2012); § 39-13-305(a)(4) (2012); § 39-13-102(a)(1) (2012). We 

conclude that the trial court properly found that the Defendant treated or caused Mr. 

Ferwanah to be treated with exceptional cruelty during the offenses. The trial court noted 

that Mr. Ferwanah felt terrified and helpless during the offenses and believed that he was 

going to die. The trial court stated that Mr. Ferwanah’s kidnapping was “one of the 

worst” that the trial court had seen. The Defendant tricked Mr. Ferwanah into coming 

into Electronics Tech, sitting down, and being tied up. The Defendant then beat and 

threatened Mr. Ferwanah with various weapons while demanding that Mr. Ferwanah 

confess to having an affair with the Defendant’s wife. The Defendant also inferred that 

he had already killed the Defendant’s wife and would kill Mr. Ferwanah and dispose of 

his body. We agree with the trial court that the circumstances of these offenses show that 

the Defendant acted with exceptional cruelty. The Defendant is not entitled to relief on 

this ground.

Firearm or deadly weapon enhancement factor

When a defendant is convicted on multiple counts of the same offense that are 

based on alternative theories, the counts based on serious bodily injury may be enhanced 

by the use or possession of a deadly weapon. See State v. Carter, 986 S.W.2d 596, 598 

(Tenn. Crim. App. 1998) (“[T]he use of a deadly weapon is not an essential element of an 

aggravated assault causing serious bodily injury and can be an enhancement factor.”). 

We conclude that the trial court did not abuse its discretion in its application of the 
- 46 -

firearm or deadly weapon enhancement factor to the Defendant’s sentence. Here, the 

trial court specifically did not apply the firearm or deadly weapon enhancement factor to 

count four, aggravated assault based on the use or possession of a deadly weapon. Thus, 

the enhancement factor was not included as an element of the offense, and the trial court 

properly applied this enhancement factor.

Purposes and principles of the Sentencing Act

Additionally, the Defendant contends that his sentence does not abide by the 

principles and purposes of the Sentencing Act. As noted above, we afford the trial 

court’s sentencing decision a presumption of reasonableness because the trial court 

ordered sentences within the statutory range. We conclude that the trial court properly 

considered the purposes and principles of the Sentencing Act. The evidence supports the 

trial court’s decision to order the maximum sentence for the Defendant’s convictions of 

aggravated kidnapping in count one and aggravated assault in counts three and four. The 

Defendant tricked his friend, Mr. Ferwanah, into entering Electronics Tech, sitting in a 

chair, and being restrained. The Defendant then spent several hours beating and 

threatening Mr. Ferwanah with various weapons and directing Mr. Akila to film the 

offenses. The Defendant also directed Mr. Desouzaneti’s involvement in the offenses. 

The Defendant threatened to kill Mr. Ferwanah and dispose of his body if he did not 

confess to having an affair with the Defendant’s wife. Mr. Ferwanah sustained bruising, 

lacerations, and broken bones from the offenses. Mr. Ferwanah and his family also 

sustained serious emotional injury from the offenses and received counseling. The trial 

court ordered the Defendant to serve a sentence near the bottom of the range for his 

conviction of especially aggravated kidnapping, a Class A felony, in count two and 

ordered the Defendant’s sentences to be served concurrently with each other for a total 

effective sentence of seventeen years in TDOC. We conclude the trial court did not 

abuse its discretion in its sentencing of the Defendant. The Defendant is not entitled to 

relief on this ground. 

Cumulative Error

The cumulative error doctrine recognizes that there may be many errors 

committed in trial proceedings, each of which constitutes mere harmless error in 

isolation, but “have a cumulative effect on the proceedings so great as to require reversal 

in order to preserve a defendant’s right to a fair trial.” State v. Hester, 324 S.W.3d 1, 76 

(Tenn. 2010). To warrant review under the cumulative error doctrine, there must have 

been more than one actual error during the trial proceedings. Id. at 77. We have found 

no errors in this case. Thus, the Defendant is not entitled to cumulative error relief.
- 47 -

III. Conclusion

Based on the aforementioned reasons, we affirm the judgments of the trial court.

____________________________________

ROBERT L. HOLLOWAY, JR., JUDGE