State v. Evans , 2011 Ohio 5415 ( 2011 )

[Cite as State v. Evans, 2011-Ohio-5415.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24032
v. : T.C. NO. 09CR3184
RICHARD A. EVANS : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 21st day of October , 2011.
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CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JAY A. ADAMS, Atty. Reg. No. 0072135, 424 Patterson Road, Dayton, Ohio 45419
Attorney for Defendant-Appellant
..........
FROELICH, J.
{¶ 1} Richard A. Evans was found guilty by a jury of two counts of felonious
assault, two counts of murder, two counts of involuntary manslaughter, and one
count of having a weapon under disability. He was sentenced to an aggregate
term of twenty years to life in prison. He appeals from his convictions.
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I
{¶ 2} On the evening of Friday, September 25, 2009, Evans and Stephen
Moody went separately to the Higgins Station Bar with various friends, family
members, and acquaintances. Both men were still present when the bar closed at
2:00 a.m. on Saturday, September 26, 2009.
{¶ 3} For the most part, the numerous witnesses who testified for the State
gave consistent testimony about the events that transpired that evening.
According to all of the witnesses, there were no problems inside the bar during the
course of the evening, but when the bar closed, several altercations broke out in
the parking lot among the departing patrons. The witnesses estimated that twenty
to forty people were in the parking lot shortly after the bar closed. The witnesses
stated that one woman was “jumped” and hit with a bottle by several other women,
a man who tried to intervene was sprayed with mace, and other men were throwing
punches. The witnesses testified about chaotic fighting in the parking lot; some of
the details varied, but most are not pertinent to this appeal. At least two people,
including the bar’s security personnel, called the police soon after the fighting broke
out.
{¶ 4} Several witnesses testified that, while the fighting in the parking lot
was underway, Evans drew a gun and waved it at the crowd, but not at anyone in
particular. One witness testified that Evans said “[E]verybody back the F up.” No
one else was observed with a gun.
{¶ 5} Several witnesses also testified that they saw Evans walk past Moody
and hit him on the left side of the head. The two men had not argued during the
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course of the evening, and none of the witnesses was aware of animosity between
them. Moody did not take any defensive measures as Evans approached him.
Most of the witnesses saw only the backside of Evans’s hand as he hit Moody, but
one witness testified that she saw the butt of a gun in Evans’s hand as he struck
Moody. All of the witnesses testified that, after Moody was struck with one blow to
the left side of his head, he dropped immediately to the ground, unconscious.
{¶ 6} Moody’s friends and family transported him to Good Samaritan
Hospital while the police tried to get control of the chaos in the parking lot. Moody
was transferred to Miami Valley Hospital soon thereafter, where he remained in a
coma until his death from his head injury in early October 2009.
{¶ 7} The coroner testified that Moody had suffered a “very large fracture”
of his skull that extended from his left ear to the right side of his head and that he
had suffered bleeding and swelling of his brain. The coroner opined that a fist
“could make” the type of rectangular- or trapezoidal-shaped abrasion found on
Moody’s left ear, but that Moody’s injury was “[not] consistent with just being
punched with the naked fist.” He stated that the type of injury observed in this
case “does not happen just with trivial trauma, okay. This is a significant blow to
damage this part of the skull and the other areas” shown in the autopsy
photographs. The coroner also testified that the injury was “so severe that it
actually *** sheared off many of the small blood vessels in the deep part of the
brain.”
{¶ 8} Moody’s emergency room treating physician from Good Samaritan
Hospital also testified that Moody suffered a “blunt trauma” and that she “would find
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it hard to have someone have that injury from a punch one time,” because it
requires a significant amount of force to break a bone and cause the amount of
bleeding that she had seen on Moody’s CAT scan.
{¶ 9} Evans did not call any witnesses at trial. In cross-examining the
State’s witnesses, the defense’s main focus appears to have been to try to
undermine the State’s position – presented through medical and eyewitness
testimony – that Evans hit Moody with a gun, rather than with his fist.
{¶ 10} Evans was indicted on felonious assault (serious physical harm)
(Count One), felonious assault (deadly weapon) (Count Two), murder (proximate
result of felonious assault - serious physical harm) (Count Three), murder
(proximate cause of felonious assault - deadly weapon) (Count Four), involuntary
manslaughter (felonious assault - serious physical harm) (Count Five), involuntary
manslaughter (proximate result of felonious assault - deadly weapon) (Count Six),
and one count of having a weapon under disability (Count Seven). A jury found him
guilty on all counts. The trial court merged Counts One, Two, Four, Five, and Six
into Count Three and imposed a mandatory sentence of fifteen years to life. The
court imposed an additional mandatory five-year sentence on Count Seven, to be
served consecutively.
{¶ 11} Evans raises three assignments of error on appeal.
II
{¶ 12} Evans’s first assignment of error states:
{¶ 13} “THE JURY’S VERDICT WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE AND WAS SUPPORTED BY INSUFFICIENT EVIDENCE.”
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{¶ 14} Evans claims that his conviction was supported by insufficient
evidence and was against the manifest weight of the evidence because “only one of
the multiple eye-witnesses claim to have seen a weapon actually used in the
assault of Mr. Moody,” and no handgun was ever found that could be tied to the
crimes.
{¶ 15} An argument regarding the sufficiency of the evidence challenges
whether the State has presented adequate evidence on each element of the
offense to allow the case to go to the jury or to sustain the verdict as a matter of
law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. “An appellate
court’s function when reviewing the sufficiency of the evidence to support a criminal
conviction is to examine the evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the defendant’s guilt
beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259,
paragraph two of the syllabus.
{¶ 16} In contrast, when reviewing an argument based on the weight of the
evidence, “‘[t]he court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the [factfinder] clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered. The discretionary power to grant a new trial should be
exercised only in the exceptional case in which the evidence weighs heavily against
the conviction.’” Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin (1983),
20 Ohio App.3d 172, 175.
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{¶ 17} One count of felonious assault was charged “by means of a deadly
weapon ** to- wit: handgun,” and one count each of murder and involuntary
manslaughter was predicated upon Evans’s commission of a felonious assault with
a deadly weapon. Evans’s strategy at trial appears to have been to undercut the
State’s theory that he had a gun in his hand when he struck Moody in the head,
rather than to deny his involvement or that he hit Moody. Evans’s argument on
appeal with respect to the sufficiency and weight of the evidence also focuses on
the evidence regarding his use of a gun to hit Moody.
{¶ 18} Candace Hester was, indeed, the only witness who testified that she
saw a weapon in Evans’s hand when he hit Moody. Nonetheless, her testimony, if
believed by the jury, was sufficient evidence that Evans possessed a deadly
weapon and used it in the commission of the offenses. The jury could have – but
was not required to – discredit Hester’s testimony because she was the only person
to testify that Evans had a weapon in his hand when he hit Moody. Several other
witnesses testified that Evans had a gun in his hand moments before he struck
Moody, and the coroner and emergency room physician testified that they
associated his type of injury with blunt force trauma not usually inflicted by a fist.
The jury could have reasonably concluded that Hester’s testimony was credible and
that other witnesses’ testimony corroborated Hester’s testimony.
{¶ 19} Evans also points to Hester’s friendship with Moody as a basis to
discredit her testimony. In fact, many of the witnesses were family, friends, or
acquaintances with Evans and/or Moody. Hester testified that Moody was an
acquaintance of hers from middle school and a friend of a friend; the defense did
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not inquire further about the nature of her relationship with Moody on
cross-examination. Such relationships are one factor to be considered by a jury in
weighing the evidence, but they do not require that a witness’s testimony be
disregarded. The jury was entitled to give these relationships, including Hester’s
acquaintance with Moody, whatever weight it felt was appropriate after hearing the
witnesses’ testimony.
{¶ 20} The State’s evidence, if believed, could have convinced the jury of
Evans’s guilt beyond a reasonable doubt. Thus, Evans’s conviction was not
supported by insufficient evidence. Further, considering the record before us, we
cannot conclude that the jury clearly lost its way and created a manifest miscarriage
of justice in reaching the verdicts that it did. Evans’s conviction was not against
the manifest weight of the evidence.
{¶ 21} The first assignment of error is overruled.
III
{¶ 22} Evans’s second assignment of error states:
{¶ 23} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT BY ALLOWING A LAYPERSON TO PROVIDE EXPERT
TESTIMONY.”
{¶ 24} Evans claims that emergency room physician Kindra Engle testified
”beyond the scope of the observations she was qualified to testify to” and that she
“speculated” that Moody’s injury would have caused him permanent incapacity if he
had lived. He contends that she also testified “without any evidence or scientific
data as support nor with any first or second hand knowledge, that some blunt object
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must have been used,” which was the ultimate issue for the jury.
{¶ 25} Evid.R. 702 states: “A witness may testify as an expert if all of the
following apply: (A) The witness’ testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a misconception
common among lay persons; (B) The witness is qualified as an expert by
specialized knowledge, skill, experience, training, or education regarding the
subject matter of the testimony; (C) The witness’ testimony is based on reliable
scientific, technical, or other specialized information. ***” Generally,
“determinations of expert qualifications to testify are within the discretion of the trial
court.” State v. Awkal (1996), 76 Ohio St.3d 324, 331.
{¶ 26} We do not understand Evans’s references to the emergency room
physician’s testimony about medical treatment as being that of a “layperson.”
Although the State did not expressly assert that it was calling Dr. Engle as an
expert witness, it did establish her education, training, and experience and the fact
that she was licensed to practice medicine in Ohio. Under Ohio law, a doctor
licensed to practice medicine may testify as an expert on medical issues. State v.
Snodgrass, 177 Ohio App.3d 556, 2008-Ohio-4019, ¶7-8. Her testimony also
satisfied the requirements of Evid.R. 702. Evans objected to one question asked
of Dr. Engle on direct examination – which related to whether Moody’s injury could
have been inflicted by a “punch” – on the basis of “foundation;” he did not object to
Engle’s testimony at trial on the basis that she was not qualified to testify as an
expert on medical matters. Evans’s assertion that Dr. Engle was a “layperson”
who was improperly allowed to testify as an expert on medical issues is without
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merit.
{¶ 27} Evans also contends that Dr. Engle’s testimony was improper
because she was allowed to address the “ultimate fact to be determined by the
jury.” His argument is premised, in part, on his claim that Dr. Engle did not testify
as an expert. As Evans sees it, the ultimate issue was whether he had a gun in his
hand when he hit Moody on the side of the head.
{¶ 28} The Rules of Evidence permit an expert to offer an opinion on an
ultimate issue, which the jury was empaneled to decide. State v. Rosas,
Montgomery App. No. 22424, 2009-Ohio-1404, ¶42, citing State v. Stowers (1998),
81 Ohio St.3d 260-263; Evid.R. 704 (“Testimony in the form of an opinion or
inference otherwise admissible is not objectionable solely because it embraces an
ultimate issue to be decided by the trier of fact.”). What an expert may not do is
offer an opinion on the credibility or veracity of another witness. State v. Boston
(1989), 46 Ohio St.3d 108, syllabus; State v. Tobin, Greene App. No. 2005 CA 150,
2007-Ohio-1345, ¶24. Testimony that provides additional support for the truth of
the facts testified to by another witness or which assists the fact finder in assessing
witnesses’ veracity does not usurp the role of the jury, but rather gives information
to a jury which helps it make an educated determination. Stowers, 81 Ohio St.3d
at 263.
{¶ 29} At trial, Dr. Engle described how bleeding between the skull and outer
brain is often indicative of blunt trauma to the side of the head. She stated that, in
this case, bleeding from Moody’s left ear (near the bleeding on his brain) also
suggested that he had suffered blunt trauma on the side of his head. In
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expressing her opinion that she would find it hard to believe that a fist caused
Moody’s injury, she explained: “[b]ecause it would take a significant amount of force
to break a bone, cause that much bleeding ***. But that is just my assumption.”1
Dr. Engle did not claim to have specific information about how Moody was injured.
{¶ 30} Dr. Engle described the nature of Moody’s injury and provided some
insight into the amount of force that would typically be required to inflict such an
injury. The coroner offered similar testimony, stating that Moody suffered a “very
large fracture” and had “shearing” of the blood vessels deep in his brain, and that
his injury was “[not] consistent with just being punched with the naked fist.” This
testimony assisted the jury without usurping its role, and it was not improper.
{¶ 31} Finally, Evans contends that it was improper for Dr. Engle to testify
“over objection, [that] the injuries Mr. Moody sustained would have caused
permanent incapacity.” He claims that this was “speculation” on “one of the issues
to be determined by the jury,” which was impermissible because Dr. Engle was not
an expert. We have already addressed Engle’s qualifications as an expert and
rejected Evans’s position that she did not testify as an expert. The coroner
provided testimony similar to Engle’s about whether permanent incapacity would
have existed if Moody had survived, and it is undisputed that Moody died of his
injuries. We are unpersuaded that Evans suffered any prejudice from Dr. Engle’s
testimony about whether Moody would have suffered permanent incapacity if he
had survived.
1
Dr. Engle did not state her views about the cause of the injury in the form of an “opinion” based on her expertise, and
Evans did not object on this basis.
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{¶ 32} The second assignment of error is overruled.
IV
{¶ 33} Evans’s third assignment of error states:
{¶ 34} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
BY FAILING TO RULE ON HIS PRETRIAL MOTION FOR APPOINTMENT OF AN
INVESTIGATOR.”
{¶ 35} Evans contends that the trial court erred in failing to rule on his
“Motion for Authorization to Obtain Services of an Investigator” before trial. The
motion was filed on March 2, 2010, twenty days before trial, and it requested the
following: “to employ R.L. Emmons as the investigator. While counsel can and will
interview witnesses to the event[,] counsel cannot act as a witness to refute any
inconsistencies in their accounts.”
{¶ 36} According to the entry which granted Evans’s motion after trial, the
investigator that he hired was actually named Douglas Heard. Heard’s name
appears on the defense’s pre-trial witness list (March 15, 2010), although he was
not called as a witness at trial. The State also asserts that defense counsel
“certified the expenses incurred by the investigator” in documents filed with the
court. While these documents are not contained in the record before us, the
clerk’s office’s docket of the case does reflect that, after the notice of appeal was
filed, Evans’s trial attorney filed a fee request that included an Invoice requesting
the payment of fees to investigator Douglas Heard for “professional services
rendered.”
{¶ 37} Although Evans’s brief suggest that no investigation was conducted
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and that “we cannot determine if [such an] investigation would have yielded
exculpatory evidence,” nothing in the record before us suggests that Evans was, in
fact, denied investigative services. And there is not even the allegation of any
prejudice. It appears that he did have the benefit of an investigator before trial,
notwithstanding the court’s failure to formally rule on his motion before trial.
{¶ 38} Accordingly, the third assignment of error is overruled.
V
{¶ 39} The judgment of the trial court will be affirmed.
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FAIN, J. and DONOVAN, J., concur.
Copies mailed to:
Carley J. Ingram
Jay A. Adams
Hon. Mary Katherine Huffman