[Cite as State v. Hammad, 2014-Ohio-3638.]

 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 : 

 : 

 . . . . . . . . . . 

O P I N I O N

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 
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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. 

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We utilize first names when necessary for clarity. 

{¶ 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. 
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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, 2014-Ohio-3638.]

{¶ 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.” 
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{¶ 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, 107 Ohio St.3d 101,112, 

2005-Ohio-6046, 837 N.E.2d 315. “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.’” Id. 

{¶ 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, 10 Ohio St.2d 230, 231, 227 

N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the 
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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, 1997 WL 476684 (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, 1997 WL 

691510 (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 
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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, 

2004-Ohio-5825, ¶ 15. 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, 48 Ohio St.2d 127, 357 

N.E.2d 1059 (1976). “To constitute a substantial step, the conduct must be strongly 

corroborative of the actor’s criminal purpose.” Id. In State v. Brooks, 44 Ohio St.3d 185, 

542 N.E.2d 636 (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.” Id. at 192. 

{¶ 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 
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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, 2012-Ohio-4080, ¶ 7. 

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

resolution of conflicting testimony is reasonable. Id. 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, 466 U.S. 668, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley
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(1989), 42 Ohio St.3d 136, * * * . 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, 466 U.S. at 688. 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. Id. 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, 2008-Ohio-493, ¶ 31. 

{¶ 25} In State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, 

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 
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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, 
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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. 
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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 
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#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