[Cite as State v. Hammad,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 26057

v. : T.C. NO. 13CR1625

MAJDI HAMMAD : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 22nd day of August , 2014.

..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

ELIZABETH C. SCOTT, Atty. Reg. No. 0076045, 120 W. Second Street, Suite 603, Dayton, Ohio 45402 Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} Defendant-appellant Majdi Hammad appeals his conviction and sentence for 2

one count of felonious assault (deadly weapon), in violation of R.C. 2903.11(A)(2), a felony

of the second degree. Hammad filed a timely notice of appeal with this Court on January

17, 2014.

{¶ 2} The incident which forms the basis for the instant appeal occurred on May

30, 2013, when Abbel Rents was scheduled to erect an outdoor tent for a wedding at 1231

Hooks Estate Drive (hereinafter “Hooks Estate”) located in Dayton, Ohio. Hammad, who

was employed by Abbel, traveled to Hooks Estate with the owner, Carolyn Martin, and

several other employees. En route to Hooks Estate, Carolyn1 noticed that Hammad seemed

irritable. Carolyn testified that she asked Hammad what was wrong, but he did not answer.

{¶ 3} Upon arriving at Hooks Estate late in the afternoon on May 30, 2013, the

employees began unloading the tent in order to set it up. Carolyn’s husband, Ben Martin,

was already at the site when she arrived with the employees. Ben had arrived at the site at

approximately 3:30 p.m. As the crew began erecting the tent, Carolyn observed that

Hammad was not helping and kept walking back to one of the Abbel trucks to get water.

When Carolyn approached Hammad and told him that he needed to get to work, he ignored

her. Carolyn testified that she did not use any obscene language or racial slurs when she

asked him to start working. Carolyn informed Ben that Hammad was not working and that

he was ignoring her. Ben asked Hammad if he had heard what Carolyn said. At that point

Hammad became very angry. Hammad threw the water he had been drinking at Ben and

took off his Abbel uniform shirt and dropped it on the ground. Hammad also began cursing

at Carolyn and calling her obscene names. Carolyn ordered Hammad to leave the site.

1 We utilize first names when necessary for clarity. 3

Ultimately, Carolyn called 9-1-1 at approximately 7:00 p.m. Officer Jordan Alexander from

the Dayton Police Department arrived shortly thereafter and escorted Hammad away from

Hooks Estate. Officer Alexander did not arrest Hammad at that time, but rather dropped

him off at a nearby intersection where he said someone was coming to get him. After

Hammad left with the police, Carolyn, Ben, and the remaining Abbel employees went back

to work.

{¶ 4} Approximately two hours later, Hammad returned to Hooks Estate and

immediately began behaving in a very belligerent manner. Almost immediately upon

returning, Hammad began shouting obscenities at Carolyn and Ben. Carolyn testified that

Hammad picked up a folding chair and began swinging it at her head. Before she could be

hit with the chair, Carolyn testified that she ran away. Hammad then dropped the chair on

the ground and picked up a ten to twelve pound sledgehammer that was being used to pound

large tent stakes into the ground. Carloyn testified that at this point, Hammad swung the

sledgehammer over his shoulder and announced his intention to use the sledgehammer to

knock the entire tent down. Hammad then walked over to the tent stakes and began striking

them with the sledgehammer, stating that he was going to take the whole tent down.

Carolyn testified that she yelled at him to stop damaging the tent. Hammad stopped hitting

the tent stakes and turned his attention to Carolyn. As he walked toward Carolyn, she

testified that Hammad told her, “I’m going to kill you, white b****.” When Hammad was

approximately six to seven feet away from Carolyn, the other Abbel employees managed to

get between them and form a wall to protect her. Eventually, some of the Abbel employees

were also able to persuade Hammad to stop his pursuit of Carolyn. [Cite as State v. Hammad,

.] {¶ 5} Carolyn called 9-1-1 again. While she was speaking with the 9-1-1

operator, Hammad apparently dropped the sledgehammer, walked over to an Abbel van, and

kicked it. At approximately 9:20 p.m., Officer Philip Adams arrived at Hooks Estate to

investigate the second 9-1-1 call. Officer Adams testified that he observed that Hammad

was very agitated and yelling obscenities. After Carolyn spoke to Officer Adams, he

arrested Hammad, handcuffed him, and placed him in his cruiser. Hammad was still very

agitated and continued to call Carolyn obscene names. While being transported to the jail,

Hammad called Officer Adams names, using racial slurs. We note that the testimony

adduced at trial, with the exception of Hammad’s, established that neither Carolyn nor Ben

used obscene language or cursed during the confrontation at Hooks Estate.

{¶ 6} Hammad was indicted on June 26, 2013, for two counts of felonious assault

with a deadly weapon. Count I of the indictment referred to the felonious assault against

Carolyn Martin, while the second count referred to Ben Martin. The case was tried to a jury

in early November of 2013. The jury found Hammad not guilty on Count II, but the jury

could not reach a verdict on Count I. On December 16, 2013, a second jury trial was held.

On December 18, 2013, the jury returned a verdict finding Hammad guilty of felonious

assault with a deadly weapon. At the sentencing hearing on December 20, 2013, the trial

court sentenced Hammad to prison for two years.

{¶ 7} It is from this judgment that Hammad now appeals.

{¶ 8} Because they are interrelated, Hammad’s first and second assignments of

error will be discussed together as follows:

{¶ 9} “MR. HAMMAD’S CONVICTION IS AGAINST THE WEIGHT OF THE

EVIDENCE.” 5

{¶ 10} “THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT

TO CONVICT MR. HAMMAD.”

{¶ 11} In his first assignment, Hammad contends that his conviction for felonious

assault with a deadly weapon is against the manifest weight of the evidence. In his second

assignment, Hammad argues that the evidence adduced by the State was insufficient to find

him guilty of the charged offense.

{¶ 12} “A challenge to the sufficiency of the evidence differs from a challenge to

the manifest weight of the evidence.” State v. McKnight,

,

,

. “In reviewing a claim of insufficient evidence, ‘[t]he

relevant inquiry is whether, after reviewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt.’ (Internal citations omitted). A claim that a jury

verdict is against the manifest weight of the evidence involves a different test. ‘The court,

reviewing the entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence, the

jury clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. The discretionary power to grant a new trial

should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction.’”

{¶ 13} The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of facts to resolve. State v. DeHass,

,

(1967). “Because the factfinder * * * has the opportunity to see and hear the 6

witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a

judgment is against the manifest weight of the evidence requires that substantial deference

be extended to the factfinder’s determinations of credibility. The decision whether, and to

what extent, to credit the testimony of particular witnesses is within the peculiar competence

of the factfinder, who has seen and heard the witness.” State v. Lawson, 2d Dist.

Montgomery No. 16288,

(Aug. 22, 1997).

{¶ 14} This court will not substitute its judgment for that of the trier of facts on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its way in

arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03,

(Oct. 24, 1997).

{¶ 15} Hammad was convicted of felonious assault with a deadly weapon in

violation of R.C. 2903.11(A)(2), which states that “[n]o person shall knowingly *** cause or

attempt to cause physical harm to another *** by means of a deadly weapon or dangerous

ordnance.”

{¶ 16} With the foregoing standards in mind, we conclude that the evidence

adduced at trial established all of the elements necessary to sustain Hammad’s conviction for

felonious assault with a deadly weapon. Carolyn testified that after Hammad returned to

Hooks Estate after being escorted away by Officer Alexander, he picked up a sledgehammer

and began striking the tent stakes, with the stated intent of bringing the tent down. Carolyn

further testified that she yelled at him to stop damaging the tent. Hammad stopped hitting

the tent stakes and turned his attention to Carolyn. As he walked toward Carolyn, she

testified that Hammad told her, “I’m going to kill you, white b****.” Based on Hammad’s 7

actions, Carolyn testified that she believed he intended to seriously harm her. Ben testified

that if Carolyn had not been able to evade Hammad while he was wielding the

sledgehammer, he would have killed her. When Hammad was approximately six to seven

feet away from Carolyn, the other Abbel employees managed to get between them and form

a wall to protect her.

{¶ 17} Although the determination of whether a substantial step has been taken

toward the commission of felonious assault is a factual one, it is not dependent on the

subjective impressions of the victim. State v. Abdoulaye, 2d Dist. Montgomery No. 20050,

. Furthermore, we note that a criminal attempt is a purposeful act or

omission which constitutes a substantial step in a course of conduct planned to culminate in

his commission of the crime. Id. at ¶ 13, citing State v. Woods,

,

(1976). “To constitute a substantial step, the conduct must be strongly

corroborative of the actor’s criminal purpose.”

In State v. Brooks,

,

(1989), the Ohio Supreme Court concluded that drawing a firearm and

threatening to kill constituted an attempt. In that case, the victim and the defendant had

become embroiled in an argument at a bar. The defendant “suddenly drew a revolver and

angrily told [the victim] that he would kill her.” The court held that, under those

circumstances, a reasonable jury could have “concluded that the defendant’s actions were

‘strongly corroborative’ of his intent to cause physical harm to [the victim] by means of his

deadly weapon.”

.

{¶ 18} In the instant case, Hammad’s conduct consisting of carrying a

sledgehammer over his shoulder as if preparing to swing it, walking toward Carolyn in an 8

aggressive manner, and stating, “I’m going to kill you, white b****,” was “strongly

corroborative” of his intent to cause physical harm to the victim by means of his deadly

weapon. Thus, a review of the record convinces us that the State’s evidence, taken in its

entirety, was sufficient to sustain Hammad’s conviction for felonious assault with a deadly

weapon.

{¶ 19} Moreover, having reviewed the record, we find no merit in Hammad’s

manifest-weight challenge. It is well settled that evaluating witness credibility is primarily

for the trier of fact. State v. Benton, 2d Dist. Miami No. 2010-CA-27,

.

A trier of fact does not lose its way and create a manifest miscarriage of justice if its

resolution of conflicting testimony is reasonable.

Here the jury quite reasonably could

have credited Carolyn and Ben’s testimony that Hammad intended to strike her with the

sledgehammer. Accordingly, the jury did not lose its way and create a manifest miscarriage

of justice in reaching a guilty verdict.

{¶ 20} Hammad’s first and second assignments of error are overruled.

{¶ 21} Hammad’s third and final assignment of error is as follows:

{¶ 22} “MR. HAMMAD’S COUNSEL WAS INEFFECTIVE.”

{¶ 23} In his final assignment of error, Hammad argues that his trial counsel was

ineffective for failing to meaningfully address any prejudice or biases the jury might have

related to his middle-eastern heritage.

{¶ 24} “We review the alleged instances of ineffective assistance of trial counsel

under the two prong analysis set forth in Strickland v. Washington,

,

,

(1984), and adopted by the Supreme Court of Ohio in State v. Bradley 9

(1989),

, * * * . Pursuant to those cases, trial counsel is entitled to a

strong presumption that his or her conduct falls within the wide range of reasonable

assistance. Strickland,

. To reverse a conviction based on ineffective

assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an

objective standard of reasonableness and that his errors were serious enough to create a

reasonable probability that, but for the errors, the result of the trial would have been

different.

Hindsight is not permitted to distort the assessment of what was reasonable

in light of counsel’s perspective at the time, and a debatable decision concerning trial

strategy cannot form the basis of a finding of ineffective assistance of counsel.” (Internal

citation omitted). State v. Mitchell, 2d Dist. Montgomery No. 21957,

.

{¶ 25} In State v. Mundt,

,

,

,

the Supreme Court of Ohio addressed claims of ineffective assistance of counsel during voir

dire. The Court stated that “trial counsel is entitled to exercise broad discretion in

formulating voir dire questions.” Id. at ¶ 84. Furthermore, the Supreme Court wrote, at

¶ 63-64:

We have consistently declined to “second-guess trial strategy

decisions” or impose “hindsight views about how current counsel might have

voir dired the jury differently.”

“Few decisions at trial are as subjective or prone to individual

attorney strategy as juror voir dire, where decisions are often made on the

basis of intangible factors.” “The selection of a jury is inevitably a call upon

experience and intuition. The trial lawyer must draw upon his own insights 10

and empathetic abilities. Written records give us only shadows for

measuring the quality of such efforts. * * * [T]he selection process is more an

art than a science, and more about people than about rules.” For these

reasons, we have recognized that “counsel is in the best position to determine

whether any potential juror should be questioned and to what extent.”

(Citations omitted.)

{¶ 26} Contrary to the assertions made by Hammad, a cursory review of the record

establishes that his trial counsel directly addressed the issue of any potential bias regarding

his middle eastern ethnicity during voir dire. Specifically, defense counsel made the

following statements regarding his client’s middle eastern heritage during voir dire:

Now, Mr. Hammad is from the Middle East. Because of that there’s

– there’s been some things in the news, probably the past ten, fifteen years

about individuals from the Middle East. Now, just because he’s from the

Middle East, does anybody here necessarily think that Mr. Hammad would be

predisposed to violence?

Predisposed to activities that may cause someone to have injury?

We’ll move in further. Imagine we’re going to the airport. Okay?

We’re taking a group trip. Miami, Florida.

Get on the airplane, see four Middle Eastern men get on the airplane

before us. How many of you would have concerns about seeing that

particular situation? Nobody? Nobody would be concerned about that?

Does anyone think that because Mr. Hammad is from the Middle East, 11

that may be synonymous with a terrorist or the Taliban.

Or any organization that – that may have its roots and funding and causing problems

and causing injury?

***

Now, if you thought that Mr. Hammad might have some tendencies

toward violence just because of his background, that doesn’t make you a bad

person neither [sic]. Not at all. It just – maybe this is not the trial for you.

Maybe you have experiences; maybe you’ve had things you’ve gone through

that – that make you think, well, maybe that – that, you know, I kind of

connect those two.

I don’t know if any one of you would have been in New York City

during 9-11. If in fact that’s the circumstance and you told me you had a

problem, I’m like, well, yeah. I imagine I bet you do, but that’s not part of

this group’s experiences.

The State: Jay. Jay, you’ve got a hand.

Defense Counsel: Oh. I’m sorry. I’m sorry. I can get this.

[Prospective Juror #11]?

Prospective Juror #11: Yeah.

Q: Thank you.

A: I was part of 9-11. I was in the fourth grade, though.

Q: Oh. Wow.

A: So, that is a different impact versus me being twenty-two now. 12

Q: Yes.

A: I do not associate that with him at all. I do not. I associate that

with being a racial situation as far as I’m being. Also, I’m black. I would

never want somebody to think just because somebody did that that I would.

So, I don’t associate that with him at all. But, yes. I was involved in that.

Q: Did you live in New York?

A: Yes. I’m from the Bronx.

Q: Oh. From the Bronx.

A: Uh-huh.

***

Q: Any of your family members involved in 9-11?

A: Yes. My uncle was. Police officer for NYPD. Yes.

Q: Okay.

A: And that entire week, he was gone.

Q: Okay.

A: And came home with debris everywhere. I heard of that.

Q: Oh. And you were in the fourth grade?

A: Yes.

Q: Well, interesting perspective.

{¶ 27} It is clear from the above exchange that trial counsel thoroughly discussed

the issue of racial prejudice regarding Hammad’s middle eastern heritage with the potential

jury. Only Prospective Juror #11 raised her hand. In fact, the gist of Prospective Juror 13

#11's responses illustrate as a minority herself she would not be biased upon race or

ethnicity. Therefore, Hammad has failed to establish that his trial counsel was ineffective

based on his performance during voir dire. Accordingly, there is no basis on which to find

that trial counsel’s representation fell below an objective standard of reasonableness.

{¶ 28} Hammad’s third and final assignment of error is overruled.

{¶ 29} All of Hammad’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

..........

FROELICH, P.J. and HALL, J., concur.

Copies mailed to:

Michele D. Phipps Elizabeth C. Scott Hon. Mary Katherine Huffman