[Cite as State v. Hammond, 2017-Ohio-8574.]


                Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 105297



                                          STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                       RAMAL HAMMOND

                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED




                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-586371-A

        BEFORE: S. Gallagher, J., McCormack, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: November 16, 2017
ATTORNEY FOR APPELLANT

Stephen L. Miles
20800 Center Ridge Road, Suite 405
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Brent Kirvel
Assistant Prosecuting Attorney
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

       {¶1} Appellant Ramal Hammond appeals his conviction for murder, two counts of

felonious assault, and having a weapon while under disability, and the trial court’s determination

that he was competent to stand trial. Upon review, we affirm.

       {¶2} Appellant was indicted on multiple counts relating to the alleged murder of Jamal

Rolling (“the victim”). Within 24 hours of the victim being shot, appellant was shot and

suffered a traumatic brain injury that caused severe cognitive impairment, including amnesia for

the time surrounding the events involved in this matter.            Appellant was evaluated for

competency, and a competency hearing was held by the trial court. On June 27, 2016, the trial

court issued a journal entry with a detailed decision finding appellant competent to stand trial.

       {¶3} Appellant waived his right to a jury trial, and the case proceeded to a bench trial.

Fifteen witnesses were called to testify by the state. Appellant chose not to testify.

       {¶4} The record reflects that the victim was shot and killed in the early morning hours of

April 14, 2014, shortly after leaving his girlfriend’s apartment with appellant, who had come to

the window. Although there were no eyewitnesses to the shooting, several witnesses placed the

victim with appellant prior to the shooting, there was evidence that appellant left the scene and

returned without a jacket he had been wearing, and there was evidence that the victim repeated

appellant’s name to his girlfriend before losing consciousness.

       {¶5} The victim’s girlfriend testified that after hearing the gunshot, she looked out the

window and saw the victim trying to run toward her house, and that by the time she made it to

him, he collapsed to the ground, and he kept saying “Ramal, Ramal.” Two other witnesses

testified to seeing appellant and the victim walking off by themselves several minutes before

hearing the shooting.    The men had approached them and asked for a shell for smoking
marijuana. Fifteen to twenty minutes after appellant and the victim walked away together, a

gunshot was heard followed shortly after by a scream. The victim was observed on the ground

mumbling to his girlfriend with blood coming out of his mouth.

       {¶6} Testimony and evidence of the crime scene reflected that the victim had traveled

several hundred feet before collapsing. The medical examiner confirmed that this would have

been possible and that it would have been possible for the victim to verbalize before losing

consciousness, though he would expect the individual to lose consciousness immediately or

within a few seconds of collapsing.

       {¶7} DNA from a firearm found at the scene matched the victim. The firearm was fully

loaded with one round in the chamber, the safety off, and the hammer cocked back and prepared

for shooting. A spent casing was also found that was determined not to have been fired from the

same firearm.

       {¶8} A former girlfriend of appellant testified that she picked up appellant from his

mother’s home a short time after the shooting of the victim. She testified that appellant denied

anything to do with what happened to the victim. Appellant’s mother offered testimony that

appellant told her he and the victim were going to get a shell in which to roll marijuana and that

when appellant left the victim to go in search for better marijuana, he heard gunshots. Detective

Kathleen Carlin, an investigating officer, testified that she learned from appellant’s mother that

the shooting of the victim may have been in retaliation for an attempted robbery or a robbery

incident involving the victim.

       {¶9} Later in the day, appellant requested a ride to the home of an acquaintance and was

heard remarking that something was “fishy.” Nobody answered the door at the home, and
appellant told others to leave him there. A few minutes later, appellant was shot in the driveway

by an unidentified individual.

          {¶10} The trial court found appellant not guilty of aggravated murder (R.C. 2903.01(A))

and of discharging a firearm on or near prohibited premises (R.C. 2923.162(A)(3)). The trial

court found appellant guilty of murder (R.C. 2903.02(B)) with one- and three-year firearm

specifications; two counts of felonious assault (R.C. 2903.11(A)(1) and 2903.11(A)(2)), each

with one- and three-year firearm specifications; and having a weapon while under disability (R.C.

2923.13(A)(2)). Following merger, the trial court sentenced appellant.

          {¶11} Appellant timely filed this appeal. He raises four assignments of error for our

review.

          {¶12} Under his first assignment of error, appellant claims his due process rights to a fair

trial were violated when the trial court found him competent to stand trial.

          {¶13} “Fundamental principles of due process require that a criminal defendant who is

legally incompetent shall not be subjected to trial.” State v. Berry, 72 Ohio St.3d 354, 359,

1995-Ohio-310, 650 N.E.2d 433. Although R.C. 2945.37(G) establishes a presumption that a

defendant is competent to stand trial, the statute provides that a court shall find a defendant

incompetent to stand trial “[i]f, after a hearing, the court finds by a preponderance of the

evidence that, because of the defendant’s present mental condition, the defendant is incapable of

understanding the nature and objective of the proceedings against the defendant or of assisting in

the defendant’s defense[.]”

          {¶14} The Supreme Court of Ohio has recognized that in considering whether a defendant

is competent to stand trial, the test is whether he has sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding, and a rational as well as factual
understanding of the proceedings against him. Berry at 359, citing Dusky v. United States, 362

U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). A trial court’s finding that a defendant is

competent to stand trial is to be afforded deference and will not be disturbed when there is some

reliable and credible evidence supporting those findings. State v. Were, 118 Ohio St.3d 448,

2008-Ohio-2762, 890 N.E.2d 263, ¶ 46.

       {¶15} In reaching its determination of competency in this case, the trial court “carefully

considered the expert reports, the testimony elicited at the hearing, and the arguments of counsel

presented both at the hearing and in briefs.” The trial court heard testimony from Dr. John

Fabian and Dr. Galit Askenazi regarding their evaluations of appellant. The court also heard

from Detective Carlin regarding her investigation of the shooting of the victim.

       {¶16} Both experts agreed that appellant suffered from amnesia. Both experts also

agreed that appellant had a comprehension and understanding of the nature and objectives of the

legal proceedings. However, the experts had different opinions regarding appellant’s ability to

assist in his own defense.

       {¶17} Dr. Fabian questioned appellant’s ability to assist and to make legal decisions

“because of his brain damage and his genuine amnesia[.]” However, he believed that appellant

“would be able to testify minimally to the facts of the court case, and [the] facts preceding the

incident, but would not be able to provide much information and testimony about the nature of

the alleged offenses, nor be able to question prosecution witness testimony appropriately.” Dr.

Fabian testified that appellant’s short-term memory was “significantly impaired” and that

appellant has difficulties with learning, attention, and recalling new information. Dr. Fabian

opined that appellant’s brain functioning impairments rendered him incapable of assisting in his

defense or making legal decisions in a competent fashion.
        {¶18} Dr. Askenazi testified that although appellant has impairments in new learning and

in memory, she believed his skills are “adequate enough to have reasonable conversations with

his attorney, to understand everything that is provided to him, to make reasonable decisions * *

*, even if he may need extra time or extra explanation regarding such.” She testified that even

though appellant has no memory for the events surrounding this case, his memory from some

time predating those events was intact. She indicated that appellant knew who the victim was,

he knew he had interactions with him, and he did not personally recall anything that might have

led to the alleged actions. Dr. Askenazi testified that appellant was still able to demonstrate

complex reasoning skills. She stated that appellant was able to follow everything she was

stating. She indicated that although he may rapidly forget new information he is introduced to,

he was able to learn and form memories from repeated exposure. Dr. Askenazi stated that

appellant was able to articulate reasons why he thought plea bargaining in a murder case was not

a good idea for him. Her opinion was that appellant “has the ability to not only understand the

nature and objectives of the proceedings against him, but to assist counsel in his defense” with

the court making accommodations.

        {¶19} The trial court applied the proper test for determining competency, and found

appellant competent to stand trial.         The judge indicated she would provide any necessary

accommodations during trial, including slowing the pace of trial and ordering preparation of trial

transcripts on a daily basis, and would closely monitor the matter and would not hesitate to

revisit the issue of competency if the circumstances required. During the trial, the trial court did

provide a number of accommodations suggested by the experts. 1 The judge noted that the


1
  The trial court issued a journal entry on October 18, 2016, detailing the accommodations that were made for
appellant.
defendant appeared to be engaged and asked the defendant how he was feeling. The judge

stated that during the course of this case, she observed the defendant and his interactions with

both of the attorneys. The judge made clear that “the court had no issue as it relates to this

defendant’s competency” and that the accommodations were designed to assist the defendant.

         {¶20} The ability to assist in one’s own defense does not require the ability to remember

the circumstances of the crime with which the accused is charged. State v. Brooks, 25 Ohio

St.3d 144, 151, 495 N.E.2d 407 (1986). The Supreme Court of Ohio has made clear that

“amnesia alone is not sufficient to render the accused incompetent to stand trial” and that it

neither denies an accused effective assistance of counsel or the opportunity to present a defense.

Id.2

         {¶21} Appellant argues the facts in Brooks, and cases relied on therein showed

overwhelming evidence of guilt. He contends the factual scenario in this case is much different

and that the evidence is “highly questionable and not sufficient to sustain a conviction for

murder.” Not only does our review of the case reflect otherwise, but we find the trial court

properly relied on the Brooks decision in considering whether appellant was competent to stand

trial.

         {¶22} Although the appellant suffered amnesia and his short-term memory was impaired,

the record reflects that appellant understood the proceedings against him and Dr. Askenazi

testified that appellant could make reasonable decisions. The trial court’s determination that

appellant could assist in his own defense was within the province of the trial judge who heard the


2
   We note that Ohio law does not require a trial court to make detailed written findings following the trial of a
defendant who claims amnesia and the Supreme Court of Ohio made no mention of a requirement of “detailed
written findings” as set forth in Wilson v. United States, 391 F.2d 460, 463-464 (D.C.Cir.1968). State v. Demarco,
11th Dist. Lake No. 2007-L-130, 2008-Ohio-3511, ¶ 14-17.
witnesses and observed appellant. Our review reflects that there was reliable and credible

evidence to support the trial court’s decision. Appellant’s first assignment of error is overruled.

       {¶23} Under his second assignment of error, appellant claims he received ineffective

assistance of counsel. He argues that his trial counsel should have filed a motion in limine or an

objection to the alleged dying declaration of the victim.

       {¶24} In order to substantiate a claim of ineffective assistance of counsel, the appellant

must show “(1) deficient performance by counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for

counsel’s errors, the proceeding’s result would have been different.” State v. Perez, 124 Ohio

St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 200, citing Strickland v. Washington, 466 U.S.

668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. The defendant has the burden

of proving his counsel rendered ineffective assistance. Perez at ¶ 223.

       {¶25} Evid.R. 804(B)(2) defines a dying declaration or a statement under belief of

impending death as “a statement made by a declarant while believing that his death was

imminent, concerning the cause or circumstances of what he believed to be his impending

death.” The Supreme Court of Ohio has indicated that for dying declarations to be admissible as

evidence, “‘it should be made to appear to the court, by preliminary evidence, not only that they

were made in articulo mortis (at the point of death), but also made under a sense of impending

death, which excluded from the mind of the dying person all hope or expectation of recovery.’”

State v. Woods, 47 Ohio App.2d 144, 147, 352 N.E.2d 598 (9th Dist.1972), quoting Robbins v.

State, 8 Ohio St. 131 (1857). A court may draw inferences from the circumstances surrounding
the declaration.    State v. Woods, 1st Dist. Hamilton Nos. C-130413 and C-130414,

2014-Ohio-3892, ¶ 21.

       {¶26} Appellant argues that no evidence was submitted that the victim was aware that

death was pending. However, the record reflects circumstances from which belief of impending

death could be inferred, including that the victim was mortally injured by a gunshot wound that

hit the left carotid artery, he traveled a short distance before collapsing to the ground, he was

bleeding significantly, and he verbalized appellant’s name before losing consciousness.

Although appellant argues that the victim was never asked who shot him, he cites no authority to

support his argument. Here again, it could be reasonably inferred that the statement concerned

the cause or circumstances of what the victim believed to be his impending death.

       {¶27} Appellant has failed to demonstrate his counsel’s performance was deficient, and

also has failed to demonstrate any reasonable probability that had counsel acted otherwise, the

result of the trial would have been different.      Appellant’s second assignment of error is

overruled.

       {¶28} Under his third assignment of error, appellant claims there was insufficient

evidence to support his convictions.      A claim of insufficient evidence raises the question

whether the evidence is legally sufficient to support the verdict as a matter of law. State v.

Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing a sufficiency

challenge, “[t]he relevant inquiry is whether, after viewing 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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.
       {¶29} It is well recognized that “[c]ircumstantial evidence and direct evidence inherently

possess the same probative value * * *.”            Jenks at paragraph one of the syllabus.

“‘[C]ircumstantial evidence is sufficient to sustain a conviction if that evidence would convince

the average mind of the defendant’s guilt beyond a reasonable doubt.’” State v. McKnight, 107

Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 75, quoting State v. Heinish, 50 Ohio St.3d

231, 238, 553 N.E.2d 1026 (1990).

       {¶30} Appellant cites the evidence favorable to his defense, while ignoring other

evidence in the case. Upon viewing the evidence in a light most favorable to the prosecution,

we find that any rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt. Our review reflects that several witnesses placed appellant with the

victim within minutes of the shooting, there was evidence that appellant left the scene and

returned without a jacket he had been wearing, a casing that did not match the weapon linked to

the victim was found at the scene, and there was evidence of a dying declaration. We find there

was sufficient evidence to establish the elements of the crimes for which appellant was

convicted. Appellant’s third assignment of error is overruled.

       {¶31} Under his fourth assignment of error, appellant claims his convictions were against

the manifest weight of the evidence. When reviewing a claim challenging the manifest weight

of the evidence, the court, reviewing the entire record, must weigh the evidence and all

reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving

conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins,

78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, at 387. Reversing a conviction as being
against the manifest weight of the evidence should be reserved for only the exceptional case in

which the evidence weighs heavily against the conviction. Id.

       {¶32} Appellant again points to evidence to support his defense. He questions the

statement by the victim’s girlfriend that the victim said appellant’s name, argues that the

testimony of the medical examiner drew into question the victim’s consciousness and ability to

verbalize after sustaining the significant injury to his left carotid artery, and points to the

testimony of appellant’s mother that indicated he had informed her he left the victim prior to the

shooting in search of stronger marijuana. Appellant again ignores other evidence in the case.

The victim’s girlfriend testified to the narrow time frame from hearing the gunshot to observing

the victim moving and collapsing. There also was evidence showing that the victim had walked

several hundred feet before collapsing and that it would have been possible for the victim to

verbalize before losing consciousness.

       {¶33} After having reviewed the entire record, we find that the trial court neither lost its

way nor created a miscarriage of justice in convicting appellant of murder, the two counts of

felonious assault, and having a weapon while under disability. Appellant’s fourth assignment of

error is overruled.

       {¶34} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed. The court finds

there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated.      Case remanded to the trial court for execution of

sentence.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

TIM McCORMACK, P.J., and
ANITA LASTER MAYS, J., CONCUR
