MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                  FILED
this Memorandum Decision shall not be                        Mar 27 2018, 11:01 am

regarded as precedent or cited before any                         CLERK
                                                              Indiana Supreme Court
court except for the purpose of establishing                     Court of Appeals
                                                                   and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Peter D. Todd                                            Curtis T. Hill, Jr.
Elkhart, Indiana                                         Attorney General of Indiana

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Moussa I. Dahab,                                         March 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1706-CR-1369
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Kristine Osterday,
Appellee-Plaintiff.                                      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 1 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 2 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.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018   Page 3 of 25
      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.


                                                       *****



      Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018   Page 4 of 25
        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 . . .



Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018   Page 5 of 25
              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]?

      Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018   Page 6 of 25
                                                   *****


              [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.



      Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018   Page 7 of 25
[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.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018   Page 8 of 25
       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.


       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018   Page 9 of 25
                                        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



       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018   Page 10 of 25
       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 11 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


       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018   Page 12 of 25
       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
       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018   Page 13 of 25
               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

       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018   Page 14 of 25
               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

       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018   Page 15 of 25
       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.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018   Page 16 of 25
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Moussa I. Dahab,
       Appellant-Defendant,                                     Court of Appeals Case No.
                                                                20A03-1706-CR-1369
               v.

       State of Indiana,
       Appellee-Plaintiff.




       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

       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018   Page 17 of 25
       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.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018   Page 18 of 25
       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.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018   Page 19 of 25
[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

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

       Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018       Page 21 of 25
       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 22 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 23 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 24 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.




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