Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 1 of 25

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Peter D. Todd

Elkhart, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Moussa I. Dahab,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 27, 2018

Court of Appeals Case No.

20A03-1706-CR-1369

Appeal from the Elkhart Superior 

Court

The Honorable Kristine Osterday,

Magistrate

Trial Court Cause No.

20D01-1503-F5-77

Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 2 of 25

Case Summary

[1] Moussa I. Dahab appeals his conviction for Level 5 felony battery with a deadly 

weapon. We reverse and remand for retrial.

Issue

[2] The sole issue before us is whether the prosecutor committed misconduct that 

amounts to fundamental error.

Facts

[3] Dahab was employed at Chassix, a manufacturing company located in Elkhart 

County. Rafed Alsaad also worked at Chassix as a team leader and 

occasionally supervised Dahab’s work.1 Both men are of Middle Eastern 

descent. In July 2014, Alsaad told his superiors at work that Dahab had 

misloaded machine components. Dahab, who denied making the mistake, 

became very angry and shouted at Alsaad. In October 2014, Dahab again 

berated Alsaad, allegedly without provocation. 

[4] On January 22, 2015, Alsaad was again supervising Dahab, and they argued

multiple times. As Alsaad collected readings from a machine, Dahab struck 

him twice with a metal pipe. When Alsaad asked why Dahab had struck him, 

 

1 Dahab states Alsaad’s first name as “Rafal” in his brief, while the State refers to him as “Rafed.” At trial, 

Alsaad identified himself on the stand as “Rafed Alsaad”; we will do so here. Tr. Vol. II p. 161. 
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 3 of 25

Dahab replied, “F*** you. This is ISIS.”2 Tr. Vol. II p. 182. Alsaad sustained 

significant head wounds. 

[5] On March 30, 2015, the State charged Dahab with Level 5 felony battery with a 

deadly weapon and Level 6 felony battery resulting in moderate bodily injury. 

Dahab was tried by a jury on May 16, 2017. Before the trial commenced, 

Dahab filed a motion in limine seeking to bar the terroristic statement as 

irrelevant and overly prejudicial hearsay. Defense counsel denied that Dahab 

had made the statement and argued that the resulting question of credibility was 

unlikely to be resolved in Dahab’s favor given societal “animosit[ies].” Id. at 

18. The State countered that the statement was relevant to establishing the 

extent to which Alsaad—an Iraqi refugee who had fled his country after aiding 

the United States—was afraid of Dahab. The trial court denied the motion as 

to any general references to the Muslim faith, stating:

. . .[T]he Court finds very clearly that it would be improper to 

bring up the religious term “Muslim.” It doesn’t seem relevant in 

the circumstances.

And I would agree with you, [defense counsel], [that such 

reference] has the ability to really inflame, potentially inflame, 

some of the people in our area.

 

2 The Islamic State of Iraq and Syria or “ISIS” is a terrorist organization.
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Id. at 20. Regarding “any mention of any foreign terrorist groups,” the trial 

court took the matter under advisement, stating that it would “see how the facts 

play[ed] out . . . .” Id. The trial court added,

If the State is able to induce [sic] testimony through the alleged 

victim in this case regarding comments that were allegedly made 

by the defendant regarding ISIS, [defense counsel], I respectfully 

disagree with you, that’s not hearsay. That’s a statement of a 

party opponent and if the State is able to elicit that testimony I do 

believe that is relevant and it is admissible but we will wait to see 

how the facts play out. Certainly, [defense counsel], you are free 

to attack the credibility of that witness’s recollection of the events 

as you see fit.

Id.

[6] Ultimately the trial court allowed Alsaad to testify that Dahab said, “This is 

ISIS.” Id. at 182. Also, Alsaad testified that, in 2006, he fled Iraq after being 

targeted for aiding the United States military; and that he and his family were 

granted asylum to enter the United States as refugees in 2012. The following 

colloquy then ensued between Alsaad and the prosecutor, without objection 

from defense counsel:

Q: So was—is your understanding of ISIS, is that a terrorist 

organization?

A: Yes.

* * * * *
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Q: So does the term ISIS or does that group—does that scare 

you?

A: It scare me and I take, like, really serious. That’s why—

it’s just scare me because myself but it’s my family.

Id. at 183-184. Alsaad testified further that, the day after the incident, he and 

his wife encountered Dahab outside a grocery store. Dahab gestured to him, 

and Alsaad described the encounter as follows: 

Q: It was in the afternoon. When he was saying, “Come on. 

Come on,” what did you think that meant or what did that mean 

to you?

A: It’s not this way –when he start to say come on he asked 

me to take off from my car, and when I just turned my car and I 

left he just smile and he do the sign and this sign in our country 

is, like, different from here. This here is for peace. In our 

country, it’s like victory or ISIS win.

[Prosecutor]: And just for the record, the State would ask the 

record to reflect the witness was holding up two fingers when he 

was talking about the gesture that was made.

THE COURT: The record will so reflect.

[Prosecutor]: So, typically, in the U.S. when somebody holds 

their two fingers up like that people think that means peace, 

right?

A: Yes . . .
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Q: Okay. And you’re saying in the Middle East that means 

something different?

A: Yes.

Q: What does that mean in the Middle East?

* * * * *

A: That’s mean ISIS win. . . . .

Q: So did you feel threatened by that gesture?

A: Yes . . . 

Id. at 197-98. In her closing remarks, the prosecutor stated,

[Dahab had] been intimidating Rafed Alsaad the entire eight 

months since he met Rafed Alsaad at Chassix. That’s what was 

going on, that’s what [Alsaad] testified to.

And why was he doing that? Was he part of ISIS? Who knows. 

That was what he said. Who knows if that’s what it really was or 

if that’s what he knew would scare Rafed Alsaad.

Id. at 170. 

[7] Additionally, in the following exchange, the prosecutor elicited testimony that 

Dahab was court-ordered to pay Alsaad’s medical bills in advance of trial:

Q: Did you do anything else to protect yourself and your 

family from [Dahab]?
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* * * * *

[Alsaad]: It’s for the medical bills. It’s coming too high and I 

can’t pay, that’s why I went to the court, ask if he’s guilty or he 

need to pay.

Q: So did the Court order him to pay your medical bills?

A: Yes. 

Id. at 199-200. Again, defense counsel did not object. After Dahab testified, 

the trial court posed the following juror question to Alsaad, “For clarification, 

did [the] court already ask Dahab to pay [your] medical bills?” Tr. Vol. III p. 9. 

Alsaad replied, “Yes.” Id. 

[8] Additionally, the State presented the testimony of Chassix line leader Andrew 

Holley-Potter, who responded to Alsaad’s radio distress call and saw Dahab in a 

posture of swinging the pipe to hit Alsaad “again”: 

[Alsaad] was calling for help saying he was hit. I took off 

towards his area. I’m the first one there to see them both 

wrestling over a pipe and, at that time, I got over there to where 

[Dahab] was getting ready to hit [Alsaad] again, and I was able 

to grab the pipe.

Id. at 24. Dahab testified that on the date of the incident, Alsaad initiated the 

physical confrontation; that he did not strike Alsaad; and that Alsaad’s injuries 

may have occurred when Alsaad “slipped” and “landed on the pipe” as they 

struggled. Id. at 121.
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[9] On May 17, 2017, the jury found Dahab guilty on both counts. The trial court 

merged the Level 6 felony battery resulting in moderate bodily injury into the 

Level 5 felony battery with a deadly weapon due to double jeopardy concerns 

and sentenced Dahab to three years in the Department of Correction, with two 

years ordered suspended to probation. He now appeals.

Analysis

[10] Dahab argues that the State deployed evidentiary harpoons—namely, the

prosecutor’s references to his court-ordered advance payments and statements 

linking him to ISIS—during the course of his jury trial. An evidentiary harpoon

is deployed when the prosecution places inadmissible evidence before the jury 

for the deliberate purpose of prejudicing jurors against the defendant. Evans v. 

State, 643 N.E.2d 877, 879 (Ind. 1994).

In reviewing a claim of prosecutorial misconduct properly raised 

in the trial court, we determine (1) whether misconduct occurred, 

and if so, (2) “whether the misconduct, under all of the 

circumstances, placed the defendant in a position of grave peril to 

which he or she would not have been subjected” otherwise. A 

prosecutor has the duty to present a persuasive final argument 

and thus placing a defendant in grave peril, by itself, is not 

misconduct. “Whether a prosecutor’s argument constitutes 

misconduct is measured by reference to case law and the Rules of 

Professional Conduct. The gravity of peril is measured by the 

probable persuasive effect of the misconduct on the jury’s 

decision rather than the degree of impropriety of the conduct.” 

To preserve a claim of prosecutorial misconduct, the defendant 

must—at the time the alleged misconduct occurs—request an 

admonishment to the jury, and if further relief is desired, move 

for a mistrial. 
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Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). 

[11] Where, as here, the appellant has waived his or her claim of prosecutorial 

misconduct by failing to preserve the claim of error, we apply a different 

standard of review. As our supreme court has explained,

The defendant must establish not only the grounds for 

prosecutorial misconduct but must also establish that the 

prosecutorial misconduct constituted fundamental error. 

Fundamental error is an extremely narrow exception to the 

waiver rule where the defendant faces the heavy burden of 

showing that the alleged errors are so prejudicial to the 

defendant’s rights as to “make a fair trial impossible.” In other 

words, to establish fundamental error, the defendant must show 

that, under the circumstances, the trial judge erred in not sua 

sponte raising the issue because alleged errors (a) “constitute 

clearly blatant violations of basic and elementary principles of 

due process” and (b) “present an undeniable and substantial 

potential for harm.” The element of such harm is not established 

by the fact of ultimate conviction but rather “depends upon 

whether [the defendant’s] right to a fair trial was detrimentally 

affected by the denial of procedural opportunities for the 

ascertainment of truth to which he otherwise would have been 

entitled.”

Id. at 668 (internal citations and quotations omitted). In evaluating the issue of 

fundamental error, our task in this case is to “look at the alleged misconduct in 

the context of all that happened and all relevant information given to the jury—

including evidence admitted at trial, closing argument, and jury instructions—

to determine whether the misconduct had such an undeniable and substantial 

effect on the jury’s decision that a fair trial was impossible.” Id. 
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I. Prosecutorial Misconduct

A. ISIS References

[12] We begin by addressing the prosecutor’s various references to ISIS. Indiana 

Evidence Rule 403, governing exclusion of relevant evidence for reasons of 

prejudice, confusion, or other reasons, provides:

The court may exclude relevant evidence if its probative value is 

substantially outweighed by a danger of one or more of the 

following: unfair prejudice, confusing the issues, misleading the 

jury, undue delay, or needless presenting cumulative evidence.

Evid. R. 403. Most notably for purposes of our analysis, Rule 403 provides for 

the exclusion of even relevant evidence if its probative value is substantially 

outweighed by the danger of unfair prejudice. The balancing of the probative 

value against the danger of unfair prejudice must be determined with reference 

to the issue to be proved by the evidence. Bryant v. State, 984 N.E.2d 240, 249

(Ind. Ct. App. 2013). 

[13] The prosecutor argued that the terroristic references showed the jury the extent 

to which Alsaad—an Iraqi national turned United States refugee—was afraid of

Dahab. However, the key issue at trial was whether Dahab knowingly or 

intentionally battered Alsaad and either used a deadly weapon or caused 

moderate bodily injury. That there was animus between Dahab and Alsaad

was readily established by evidence of the men’s documented history of verbal 

altercations and their fraught workplace dynamic, in which Dahab believed that 
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Alsaad was intentionally discrediting him and undermining his job performance 

to their superiors at Chassix. 

[14] We must attempt to balance the mandate of Evidence Rule 403 regarding unfair 

prejudice and probative value. In so doing, we find that the statements were 

inadmissible, unfairly prejudicial, and violated Indiana Evidence Rule 403. 

Moreover, in the post-9/11 era, gratuitously linking a person of Middle Eastern 

descent to a terrorist organization—ISIS—is both unfair and uncalled for. As 

the trial court rightly noted, insinuating a terrorist affiliation “ha[d] the ability 

to really inflame, potentially inflame, some of the people in our area.” Tr. Vol. 

II p. 20. However, although the trial court recognized the potential for grave 

harm, it took the matter under advisement and permitted the prosecutor to 

make multiple statements that suggested a link between Dahab and ISIS. 

[15] Dahab has succeeded in establishing that, under the circumstances, the trial 

court erred in allowing the prosecutor such latitude, and that the error 

constituted a “clearly blatant violation of basic and elementary principles of due 

process” and “present[ed] an undeniable and substantial potential for harm.” 

See Ryan, 9 N.E.3d at 668. 

B. Medical Bills

[16] Next, Dahab argues that the prosecutor committed misconduct when she 

elicited testimony that he was court-ordered to pay Alsaad’s medical bills in 

advance of trial. Specifically, Dahab argues that the State impermissibly 

introduced “the civil order mandating [his] payment of [Alsaad’s] medical 
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 12 of 25

expenses” in order to demonstrate his guilt and in contravention of Indiana 

Rule of Evidence 409. Appellant’s Br. p. 10. Rule 409 states:

Evidence of paying, furnishing, promising to pay, or offering to 

pay:

(a) medical, hospital, or similar expenses resulting from an 

injury; or

(b) damage to property,

is not admissible to prove liability for the injury or damages.

Evid. R. 409; see Ind. Code § 34-44-2-2 (“An advance payment shall not be 

construed as an admission of liability by any person.”).

[17] As was the case with the ISIS references, the jury here was allowed to hear that 

Dahab had been court-ordered to pay the victim’s hospital bills in advance of 

trial. There is a dearth of legal precedent on this issue. Like Dahab, we look to 

Simon v. Clark, 660 N.E.2d 634, 637 (Ind. Ct. App. 1996), for guidance. 

Plaintiff Simon was injured while he was a passenger in defendant Clark’s 

automobile; he sued Clark and others for damages. At trial, Simon tried 

unsuccessfully to introduce an insurance adjuster’s testimony that, in relevant 

part, he had received medical coverage payments under Clark’s insurance 

policy after the accident. In upholding the trial court’s decision to exclude the 

adjuster’s testimony, we found no abuse of discretion, concluding that the trial 

court “could have correctly determined [pursuant to Rule 409] that the 
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testimony as a whole implied to the jury that Clark was liable for any damages 

resulting from” the accident. Id. at 637.

[18] Similarly, here, the evidence of Dahab’s court ordered payment of Alsaad’s 

medical bills violated Rule 409. It takes no legal scholar to deduce from the 

transcript that the State introduced this evidence in an attempt to invite the jury 

to infer guilt. We find that these references were a violation of Indiana 

Evidence Rule 409. 

[19] Reviewing “in the context of all that happened” the prosecutor’s remarks about 

Dahab’s court-ordered advance payments and the ISIS references that she 

elicited and included in her closing remarks, and guided by Simon, we find 

overwhelmingly that violations of Rules 403 and 409 occurred, the cumulative 

effect of which had such an undeniable and substantial effect on the jury’s 

decision that a fair trial was impossible for Dahab. Accordingly, we must 

conclude that Dahab has carried his heavy burden of establishing fundamental 

error that placed him in grave peril to which he would not have been 

otherwise subjected. See Ryan, 9 N.E.3d at 668. Because the doctrine of 

fundamental error overcomes his procedural default, we must reverse 

Dahab’s conviction.

[20] We are puzzled by the dissent’s failure to find the prosecutor’s overuse of ISIS 

references before the jury troubling:

. . . Dahab would have this court reach the conclusion that the 

deputy prosecutor deliberately introduced the challenged 

evidence for an improper purpose. That is, to inflame the 
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passions of the jury and to put [Dahab] in a position of grave 

peril by prejudicing the jury against him. Such a conclusion does 

not withstand scrutiny of the record in this case.

While it is true that the State did not directly say, “Mr. Dahab is definitively a 

member of ISIS,” we find at least seventeen separate instances in the State’s 

opening statement, case-in-chief, and closing argument in which the 

prosecuting attorney mentioned ISIS to the jury. While we fully appreciate the 

zeal that a prosecuting attorney must employ—particularly in the heat of a 

felony jury trial—the drumbeat of ISIS references and the admission of Dahab’s 

court-ordered advance payments of Alsaad’s hospital expenses simply violated 

fair trial standards. No defendant is guaranteed a perfect trial; however, every 

defendant is constitutionally guaranteed a fair trial. That did not happen here. 

II. Double Jeopardy

[21] Lastly, we address whether double jeopardy permits Dahab’s retrial. “When 

deciding whether retrial is permissible, we consider all of the evidence admitted 

by the trial court, including any erroneously admitted evidence.” Harmon v. 

State, 849 N.E.2d 726, 735 (Ind. Ct. App. 2006). “If that evidence, viewed as a 

whole, would have been sufficient to sustain the judgment, retrial would not 

offend double jeopardy principles.” Id. If not, however, the State may not retry 

Dahab. See id.

When reviewing a claim of insufficient evidence, an appellate 

court considers only the evidence most favorable to the verdict 

and any reasonable inferences that may be drawn from that 

evidence. If a reasonable finder of fact could determine from the 
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evidence that the defendant was guilty beyond a reasonable 

doubt, then we will uphold the verdict. We do not reweigh the 

evidence or judge the credibility of witnesses. These evaluations 

are for the trier of fact, not appellate courts. In essence, we assess 

only whether the verdict could be reached based on reasonable 

inferences that may be drawn from the evidence presented. 

Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (quotations omitted) (citations 

omitted).

[22] Here, a reasonable finder of fact could determine from the State’s evidence that 

Dahab was guilty beyond a reasonable doubt. Alsaad testified that Dahab 

struck him twice in the head with a metal pipe, resulting in severe head 

wounds. Chassix line leader Holley-Potter testified that he responded to 

Alsaad’s radio distress call and observed Dahab in a posture of swinging the 

pipe in preparation to hit Alsaad “again.” See Tr. Vol. III p. 24. Dahab, on the 

other hand, testified that Alsaad’s severe head injuries resulted from Alsaad’s 

slipping and falling onto the pipe during the men’s struggle. A reasonable 

finder of fact could determine from the foregoing evidence that Dahab was 

guilty beyond a reasonable doubt and could reasonably resolve the conflicts in 

the witnesses’ testimony against Dahab. Because the evidence as a whole was 

sufficient to sustain Dahab’s convictions, double jeopardy does not preclude 

retrial. 

Conclusion

[23] It is clear that the double-barreled evidentiary admissions—the ISIS references 

and the hospital expenses—combined to deny Dahab a fair trial. Double 
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jeopardy does not preclude retrial because the evidence as a whole was 

sufficient to sustain Dahab’s convictions. We reverse and remand for a retrial.

[24] Reversed and remanded for retrial.

May, J., concurs.

Bradford, J., dissents with separate opinion.
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I N T H E

COURT OF APPEALS OF INDIANA

Moussa I. Dahab, 

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

Court of Appeals Case No.

20A03-1706-CR-1369

Bradford, Judge, dissenting in part and concurring in part.

[25] Because I disagree with the majority’s conclusion that the deputy prosecutor 

committed prosecutorial misconduct, I respectfully dissent in part. However, to 

the extent that the majority’s conclusion renders retrial necessary, I concur with 

the majority’s conclusion that double jeopardy concerns do not preclude retrial.

I. Prosecutorial Misconduct

[26] Prosecutorial misconduct is a serious matter and cannot be taken lightly. At its 

base, prosecutorial misconduct is a type of attorney misconduct that, if 

committed, not only effects a defendant’s right to due process and fair trial but 

also erodes the public’s confidence in its system of justice. A finding of 

prosecutorial, like any attorney misconduct, can lead to disciplinary actions 
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against the offending attorney. With this in mind, a brief overview of the law 

relating to prosecutorial misconduct is merited. 

1. Addressing a Claim of Prosecutorial Misconduct

[27] “A claim of prosecutorial misconduct requires a determination that there was 

misconduct by the prosecutor and that it had a probable persuasive effect on the 

jury’s decision.” Overstreet v. State, 783 N.E.2d 1140, 1154 (Ind. 2003). “The 

standard to determine whether prosecutorial misconduct has occurred is 

whether the conduct under all circumstances was designed to arouse the passions 

of the jury or place the defendant in a position of grave peril.” Mengon v. State, 

505 N.E.2d 788, 792 (Ind. 1987) (emphasis added). In determining whether 

specific conduct amounted to prosecutorial misconduct, “[w]e defer to the 

discretion of the trial judge who was on the scene and in the best position to 

evaluate the conduct, its propriety, its inadvertence and its impact, if any, on 

the jury and the fairness of the proceedings.” Id.

2. Dahab’s Prosecutorial Misconduct Claim

A. An Evidentiary Harpoon

[28] On appeal, Dahab claims that the State “launched an evidentiary harpoon” by 

deliberately introducing evidence (A) linking him to the terrorist group ISIS and 

(B) that he had been ordered to pay Alsaad’s medical bills. Appellant’s Br. p. 7. 

“An ‘evidentiary harpoon’ occurs when the prosecution places inadmissible 

evidence before the jury for the deliberate purpose of prejudicing the jury against 

the defendant and his defense.” Roberts v. State, 712 N.E.2d 23, 34 (Ind. Ct. 
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App. 1999) (emphasis added). Thus, in order to obtain a reversal of one’s 

conviction, the defendant must prove both that the evidence was inadmissible 

and that the prosecutor acted deliberately. Id. (emphasis added). 

B. Evidence Linking Dahab to ISIS

[29] Dahab contends that “the State of Indiana deliberately introduced evidence that 

[he] was a member of the terrorist group, ISIS” and that such evidence was 

irrelevant and unfairly prejudicial. Appellant’s Br. p. 13. These contentions, 

however, are not supported by the record. It is important to note that the term 

ISIS was only introduced into the facts of this case through Dahab’s own 

words. Dahab himself referenced ISIS during a struggle that occurred after he 

approached Alsaad and struck him twice in the back of the head with a pipe. 

Dahab does not dispute on appeal that he referred to ISIS during his attack on 

Alsaad. Dahab has pointed to nowhere in the record where any other party or 

witness independently states that Dahab is a member of ISIS. 

[30] Dahab acknowledges on appeal that the deputy prosecutor offered a legitimate 

purpose for introducing the challenged evidence, that being to prove that 

Alsaad was afraid of Dahab. Dahab claims, however, that whether Alsaad was 

afraid of him is irrelevant. Thus, Dahab asserts that “the only reason for asking 

such a question was to prejudice the jury against [him] by associating him with 

a radical Islamic terrorist group.” Appellant’s Br. p. 16. This assertion fails to 

take into account how Dahab’s words were relevant to the issue of motive. 
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[31] We have previously concluded that “while motive is not an element of the 

offense, it is always relevant in the proof of a crime.” Knight v. State, 556 

N.E.2d 968, 969 (Ind. Ct. App. 1990). The record reveals that Alsaad and his 

family fled Iraq after receiving threats connected to Alsaad’s work with the 

United States government. One may reasonably infer that an individual 

claiming affiliation to ISIS would want to seek potential retaliation for Alsaad’s 

work. Dahab’s reference to ISIS, therefore, becomes relevant as it provides a 

potential motive for his attack on Alsaad. 

[32] Rather than have this court review the relevancy of his statement to Alsaad, 

Dahab would have this court reach the conclusion that the deputy prosecutor 

deliberately introduced the challenged evidence for an improper purpose. That 

is, to inflame the passions of the jury and to put him in a position of grave peril 

by prejudicing the jury against him. Such a conclusion does not withstand 

scrutiny of the record in this case.

[33] Further, Dahab’s assertion that the deputy prosecutor acted with some 

improper purpose simply by allowing the victim to testify to comments made by 

Dahab during his attack on the victim to be illogical. The deputy prosecutor 

acted in accordance with the trial court’s pre-trial orders. At no time did the 

trial court caution the deputy prosecutor to refrain from this topic of ISIS. 

Rather, the trial court indicated that it could foresee some potential relevance in 

Dahab’s comments. The trial court further indicated that it would consider the 

introduction of the statements in context during trial. Defense counsel did not 

object and the trial court allowed Dahab’s statements to be admitted into 
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evidence. These statements involved a sensitive subject matter and may have 

been ruled inadmissible under Evidence Rule 403 by this or another judge if an 

objection had been properly made during trial. This we will never know, 

however, because defense counsel made no such objections. To now transform 

this record into a finding that the deputy prosecutor participated in a “clear and 

blatant violation of basic elementary principles of due process[,]” see Ryan v. 

State, 9 N.E.3d 663, 668 (Ind. 2014), is an inaccurate interpretation of the 

record of this trial. 

[34] In addition, the record does not support the inference that the deputy 

prosecutor deliberately painted him as a member of ISIS during closing 

argument. During closing argument, the deputy prosecutor stated the 

following: 

... [Alsaad] told you that he was challenged to again fight with 

[Dahab], saying “Come on. Come on. Come on.” Said it three 

times and he holds up his fingers like this to intimidate 

[Alsaad].[3] He’d been intimidating [Alsaad] the entire eight 

months since he met [Alsaad] at Chassix. That’s what was going 

on, that’s what [Alsaad] testified to.

Was he part of ISIS? Who knows. That was what he said. Who 

knows if that’s what it really was or if that’s what he knew would 

scare [Alsaad].... 

 

3

 At this point, the deputy prosecutor was describing another interaction between Dahab and Alsaad which 

occurred shortly after the incident at issue in the battery charge. 
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Tr. Vol. III, p. 170. Once again, given that Alsaad was an Iraqi refuge who fled 

Iraq after having received threats for his and his family’s safety, Dahab’s 

comments were relevant to prove his motive for attacking Alsaad. 

[35] The record does not support the determination that the deputy prosecutor’s 

actions were deliberately designed to unfairly prejudice Dahab. As such, the 

record does not support the conclusion that the deputy prosecutor committed 

prosecutorial misconduct in this regard.4

C. Evidence Relating to Alsaad’s Medical Bills

[36] Alsaad testified during trial that Dahab had previously been ordered to pay his 

medical bills. Alsaad did not give any information regarding the circumstances 

surrounding the alleged order or indicate what court had issued the order. The 

statements relating to Alsaad’s medical bills were made without objection and 

without comment by the trial court. 

[37] Indiana Evidence Rule 409 provides that “Evidence of paying ... (a) medical, 

hospital, or similar expenses resulting from an injury ... is not admissible to 

prove liability for the injury[.]” Given the language of Indiana Evidence Rule 

409, I believe that the evidence in question was inadmissible. However, I do 

 

4

 Further, it would be speculation and illogical to assume that the jury was so inflamed by the mere mention 

of a terrorist organization that it ignored the evidence presented during trial and automatically inferred the 

defendant’s guilt.
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 23 of 25

not believe that the record supports an inference that the deputy prosecutor 

acted with the deliberate intent to unfairly prejudice Dahab. 

[38] It is important to note that a potential inaccurate grasp of the rules of evidence, 

perhaps by all trial counsel in this case, does not amount to prosecutorial 

misconduct. Again, the challenged statements were admitted without objection 

and without comment by the trial court. There is nothing in the record to 

suggest that the evidence was introduced with the deliberate intent to unfairly 

prejudice Dahab. Thus, in order to find that the deputy prosecutor did act with 

the deliberate intent to prejudice Dahab would require us to rely purely on 

speculation. We shall not rely on speculation, but rather must rely on the 

record before us on appeal. See Shafer v. Lambie, 667 N.E.2d 226, 232 (Ind. Ct. 

App. 1996) (providing that “[w]e must decide the case on the record before us, 

and we will not speculate as to the actual facts of a case”). 

[39] Again, prosecutorial misconduct is conduct that is deliberately “designed to 

arouse the passions of the jury[.]” Mengon, 505 N.E.2d at 792. It is unclear 

from the record whether this evidence of liability for medical payment had any 

effect on the jury, much less that it aroused their passions. To find that it did so 

would again require us to rely purely on speculation, which we shall not do. 

See Shafer, 667 N.E.2d 232. Thus, the record provided in this case does not 

support a finding that the deputy prosecutor committed prosecutorial 

misconduct in this regard.
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 24 of 25

D. The Effect of the Challenged Evidence as a Whole

[40] The record indicates that the challenged evidence was so inconsequential 

during the course of trial that defense counsel did not even object to the 

admission of the evidence. Considering that defense counsel apparently did not 

believe that the challenged evidence even warranted an objection, it seems 

illogical to conclude that the evidence was so bad that it warranted a finding 

that the deputy prosecutor acted with the deliberate intent to unfairly prejudice 

Dahab by introducing this evidence.

[41] Furthermore, the admission of the challenged evidence was harmless in light of 

the other unrelated evidence of Dahab’s guilt. See Hunter v. State, 72 N.E.3d 

928, 932 (Ind. Ct. App. 2017) (providing that “[t]he improper admission of 

evidence is harmless error when the erroneously admitted evidence is merely 

cumulative of other evidence before the trier of fact.”). Alsaad testified in detail

at trial about Dahab’s actions. Alsaad’s testimony was corroborated by the 

testimony of Andrew Holley-Potter, another Chassiz employee who observed 

Dahab and Alsaad struggling over the pipe while Dahab attempted to hit 

Alsaad with the pipe. In addition, Dahab’s supervisor testified that 

immediately after the incident, Dahab admitted that he had struck Alsaad with 

the pipe. Given this evidence, it unlikely that the jury would not have found 

Dahab guilty but for the challenged evidence. 

Conclusion
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 25 of 25

[42] In sum, the record does not support the majority’s conclusion that the deputy 

prosecutor acted with the requisite intent to support a finding of prosecutorial 

misconduct. I therefore dissent from the majority’s conclusion to that effect.