David Oxley v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 14 2016, 9:19 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brent B. Gibson Gregory F. Zoeller
Lafayette, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Oxley, April 14, 2016
Appellant-Defendant, Court of Appeals Case No.
38A02-1507-CR-1028
v. Appeal from the Jay Circuit Court
The Honorable Brian D.
State of Indiana, Hutchison, Judge
Appellee-Plaintiff Trial Court Cause No.
38C01-1205-FC-14
Mathias, Judge.
[1] David Oxley (“Oxley”) was convicted in Jay Circuit Court of Class C felony
reckless homicide. He appeals his conviction and raises four issues, which we
consolidate and restate as:
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I. Whether Oxley was prejudiced when the trial court excluded the
testimony of his expert witness;
II. Whether Oxley was prejudiced and is entitled to a new trial due to
certain statements made during the State’s closing argument; and,
III. Whether the evidence is sufficient to sustain Oxley’s Class C felony
reckless homicide conviction.
[2] We affirm.
Facts and Procedural History
[3] On January 7, 2012, Oxley spent the evening with friends and, over the course
of the evening, consumed several beers. At approximately 10:00 p.m., Oxley
and Mathew Marshall (“Marshall”) left a friend’s residence in separate vehicles.
Marshall was ahead of Oxley until they turned north onto County Road 250
West, which is a paved, two-lane county road that does not have speed limit or
do-not-pass signs.
[4] As they proceeded north on County Road 250 West, Oxley passed Marshall
and safely returned to the northbound lane. A few minutes later, Oxley moved
into the southbound lane to pass a truck in the northbound lane driven by Josh
Hess (“Hess”). Hess had three passengers in his truck: Tyler Bruggerman,
Nicole Bertke, and Lauren Bruns. Tyler was in the front passenger seat and
observed that as Oxley tried to pass Hess’s truck, Hess sped up to prevent Oxley
from passing.
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[5] Oxley and Hess traveled side-by-side on County Road 250 West for almost a
mile, during which the trucks passed over two culverts and through an
intersection. The two trucks jockeyed back and forth, slowing and increasing
their speeds. As they approached the crest of a hill, Oxley remained in the
southbound traffic lane.
[6] At the crest of the hill, Oxley hit a sedan head-on killing the driver Michael
Limbert (“Limbert”). Marshall had been following Oxley and Hess but could
not keep up with their rate of speed. When he arrived at the scene just seconds
after the collision, Marshall checked on Limbert first. Limbert was already
clearly dead. Oxley’s truck was engulfed in flames, and Marshall pulled Oxley
from the truck. Oxley sustained serious injuries as a result of the accident.
[7] After the collision, Hess’s truck rolled several times until it came to rest in an
adjacent field. Bertke, who was in the rear passenger seat of Hess’s truck, was
also seriously injured.
[8] On May 24, 2012, Oxley was charged with Class C felony reckless homicide
and two counts of Class D felony criminal recklessness resulting in serious
bodily injury. A jury trial was held in August 2013, and Oxley was acquitted of
the Class D felony charges. However, the jury was deadlocked on the reckless
homicide charge. Shortly thereafter, Oxley moved to dismiss the reckless
homicide charge. His motion was denied, and that denial was affirmed on
interlocutory appeal.
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[9] A second jury trial on the reckless homicide charge commenced on June 10,
2015. During trial, Oxley wanted to present testimony from Phil Dickenson
(“Dickenson”), who is a crash reconstruction expert. Although the State agreed
that Dickenson is an expert in his field, the State argued that he should not be
allowed to testify concerning information or facts that he obtained from Officer
Merkling’s initial crash investigation report because the officer was not called as
a State’s witness and was not under subpoena by Oxley. The trial court agreed
with the State and concluded that Dickenson could not give his opinion about
how the crash occurred by relying on facts obtained from examining Officer
Merkling’s report or the initial crash investigation report, which were not
admitted into evidence.
[10] At the close of evidence, Oxley argued that Hess’s actions were the intervening
cause of the accident. The jury disagreed and found Oxley guilty of Class C
felony reckless homicide. Oxley was ordered to serve a four-year sentence, with
two years executed at the Department of Correction and two years suspended
to formal probation. Oxley now appeals.
Excluded Testimony
[11] Questions regarding the admission or exclusion of evidence are within the
discretion of the trial judge and are reviewed on appeal only for an abuse of that
discretion. Wells v. State, 904 N.E.2d 265, 269 (Ind. Ct. App. 2009), trans. denied.
The trial court abuses its discretion only if its decision is clearly against the logic
and effect of the facts and circumstances before it, or if the court has
misinterpreted the law. Id.
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[12] Furthermore, whether rooted in the Due Process Clause of the Fourteenth
Amendment or the Compulsory Process or Confrontation clauses of the Sixth
Amendment, the United States Constitution guarantees criminal defendants a
meaningful opportunity to present a complete defense. Hyser v. State, 996
N.E.2d 443, 447 (Ind. Ct. App. 2013), trans. denied. The Indiana Supreme Court
has stated:
The right to offer the testimony of witnesses . . . is in plain terms
the right to present a defense, the right to present the defendant’s
version of the facts as well as the prosecution’s to the jury so it
may decide where the truth lies. Just as an accused has the right
to confront the prosecution’s witnesses for the purpose of
challenging their testimony, he has the right to present his own
witnesses to establish a defense. This right is a fundamental
element of due process of law.
Kubsch v. State, 784 N.E.2d 905, 924 (Ind. 2003).
[13] “When competent, reliable evidence is excluded that is central to the
defendant's case, this right is abridged.” Hyser, 996 N.E.2d at 448. However, a
criminal defendant does not enjoy an unlimited constitutional right to offer
exculpatory evidence, as the right is subject to reasonable restrictions. Hubbard
v. State, 742 N.E.2d 919, 922-23 (Ind. 2001). Evidence to support the defense
theory must comply with applicable evidentiary rules. Kubsch, 784 N.E.2d 926.
[14] At trial, the State conceded that Dickenson was an expert in accident
reconstruction but argued that his testimony should be excluded because, in
forming his opinion, he relied on reports that were not admitted at trial,
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including police reports, photos and diagrams.1 The trial court agreed and
excluded Dickenson’s testimony.
[15] However, “[e]xperts may testify to opinions based on inadmissible evidence,
provided that it is of the type reasonably relied upon by experts in the field.”
Ind. Evid. R. 703. Therefore, “under some circumstances, Rule 703 allows an
expert witness to testify to opinions based on facts not before the jury.” Schmidt
v. State, 816 N.E.2d 925, 938 (Ind. Ct. App. 2004), trans. denied.
[16] The State apparently concedes that the trial court erred when it excluded
Dickenson’s testimony because it argues only that “the trial court’s ruling
excluding Dickenson’s testimony was harmless error.” Appellee’s Br. at 15. It is
well established that “not every trial error requires reversal. Errors in the
admission or exclusion of evidence are to be disregarded as harmless error
unless they affect the substantial rights of the party.” Lewis v. State, 34 N.E.3d
240, 248 (Ind. 2015). To determine whether an error in the introduction of
evidence affected the appellant's substantial rights, we must assess the probable
impact of that evidence upon the jury. Id.
[17] If his testimony had not been excluded, Dickenson would have testified that
Oxley’s and Hess’s vehicles were traveling side-by-side at approximately 60 to
65 miles per hour when Oxley’s vehicle collided with Limbert’s vehicle. Tr. pp.
1
Dickenson also personally viewed the location where the accident occurred and viewed photos of the
damage to the vehicles, some of which were admitted into evidence. Tr. p. 108.
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126-27. Oxley was unable to avoid the collision due to the position of all three
vehicles on the roadway, but Hess could have driven his vehicle off to the right
of the roadway. Tr. pp. 127-28. Oxley also wanted to elicit testimony that
“black boxes” from the vehicles were not seized and analyzed.
[18] Dickenson’s proffered testimony is cumulative of other evidence offered at trial.
The evidence presented from multiple witnesses established that the vehicles
were traveling side-by-side when Oxley’s vehicle collided with Limbert’s
vehicle, and that Oxley and Hess were traveling between 50 to 70 miles per
hour as they proceeded northbound on County Road 250 West. For all of these
reasons, we conclude that any error the trial court committed when it excluded
Dickenson’s testimony was harmless.2 See Pierce v. State, 29 N.E.3d 1258, 1268
(Ind. 2015) (stating if the wrongfully excluded testimony is merely cumulative
of other evidence presented at trial, its exclusion is harmless error).
Prosecutorial Misconduct
[19] On appeal, when we review a claim of prosecutorial misconduct during closing
argument:
2
Oxley also argues that “if the trial court did not abuse its discretion in excluding Defendant’s expert
witness, then Oxley was denied effective assistance of counsel when trial counsel failed to subpoena
witnesses and introduce necessary testimony to admit his expert’s testimony.” Appellant’s Br. at 15. In
support of this claim, Oxley merely argues that Dickenson’s testimony would have “changed the jury’s
verdict regarding whether Oxley was reckless.” Id. at 16. However, Dickenson’s testimony was cumulative of
other evidence admitted at trial, and therefore, Oxley cannot establish that he was prejudiced because
Dickenson’s testimony was not presented to the jury. Moreover, the fact that Hess may have been able to
move his vehicle to the right of the roadway when the collision occurred is not relevant to whether Oxley
recklessly operated his vehicle in a manner that resulted in Limbert’s death.
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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.
Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (citation omitted). The gravity of
peril is determined by the probable persuasive effect of the misconduct on the
jury’s decision, not on the amount of impropriety of the conduct. Carter v. State,
956 N.E.2d 167, 169 (Ind. Ct. App. 2011), trans. denied.
[20] Oxley argues that the State urged the jury to “convict Oxley because Hess was
also going to have to pay,” which statement was “designed to inflame the
passions or prejudice of the jury.” Appellant’s Br. at 16. Specifically, during
closing argument, the prosecutor stated, “Mr. Hess made a terrible decision and
he’ll have to answer for that. Mr. Oxley is here today before you to answer for
his part in it.” Tr. p. 143. In response to Oxley’s closing argument, the
prosecutor also stated:
Jorden Hess screw[ed] up terribly, sure. But you’re hear today to judge
David Oxley’s responsibility. This Defendant. That’s your job today. Is
Jordan Hess a factor in this[?] Yeah. Is alcohol a factor[?] Yeah. Is
speed a factor[?] Yeah. Is the roadway a factor[?] Yes. All of
those are factors to consider.
Tr. p. 158 (emphasis added).
[21] Oxley’s trial counsel failed to object to these challenged statements. Therefore,
Oxley must establish both prosecutorial misconduct and additional grounds for
fundamental error. Carter, 956 N.E.2d at 170. For prosecutorial misconduct to
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be fundamental error, it must make a fair trial impossible or amount to obvious
blatant violations of basic and elementary principles of due process and present
an undeniable and substantial potential for harm. Id. Misconduct occurs when a
prosecutor requests the jury to convict a defendant for any reason other than his
or her guilt. Id.
[22] At trial, Oxley argued that he was not guilty of reckless homicide because
Hess’s refusal to allow him to pass or return to the northbound lane was the
cause of the collision between Oxley’s and Limbert’s vehicles. Therefore, the
prosecutor’s comments on Hess’s conduct were reasonably made in response to
Oxley’s defense. Moreover, the State specifically argued that the jury consider
Oxley’s responsibility for the accident when determining his guilt. Under these
facts and circumstances, the State did not commit any misconduct, and the
State’s closing argument did not place Oxley in a position of grave peril.
Sufficient Evidence
[23] When the sufficiency of evidence is challenged, we neither reweigh the
evidence nor judge the credibility of witnesses. Chappell v. State, 966 N.E.2d
124, 129 (Ind. Ct. App. 2012) (citing McHenry v. State, 820 N.E.2d 124, 126
(Ind. 2005)), trans. denied. Rather, we recognize the exclusive province of the
trier of fact to weigh any conflicting evidence and we consider only the
probative evidence supporting the conviction and the reasonable inferences to
be drawn therefrom. Id. If there is substantial evidence of probative value from
which a reasonable trier of fact could have drawn the conclusion that the
defendant was guilty of the crime charged beyond a reasonable doubt, then the
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verdict will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind.
Ct. App. 2008).
[24] To prove that Oxley committed Class C felony reckless homicide,3 the State
was required to establish that Oxley recklessly killed Michael Limbert by
“operating a motor vehicle in such a reckless manner and high speed resulting
in an accident wherein [Limbert] died from injuries from said accident.” See
Appellant’s App. p. 17; Ind. Code § 35-42-1-5 (“A person who recklessly kills
another human being commits reckless homicide”). “A person engages in
conduct ‘recklessly’ if he engages in the conduct in plain, conscious, and
unjustifiable disregard of harm that might result and the disregard involves a
substantial deviation from acceptable standards of conduct.” Ind. Code § 35-41-
2-2.
[25] Oxley argues that the evidence is insufficient to support his conviction because
Hess’s refusal to allow him over into the northbound lane was an intervening
cause of Limbert’s death.
An intervening cause is an independent force that breaks the
causal connection between the actions of the defendant and the
injury. In order for an intervening cause to break the chain of
criminal responsibility, it must be so extraordinary that it would
be unfair to hold the appellant responsible for the actual result. In
all other cases, “[a]n individual who inflicts injury upon another
is deemed by law to be guilty of homicide if the injury
3
The offense is now classified as a Level 5 felony. Ind. Code § 25-42-1-5 (eff. July 1, 2014).
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contributed mediately or immediately to the death of that
person.”
Wooley v. State, 716 N.E.2d 919, 928 (Ind. 1999) (internal citations omitted).
[26] Oxley contends that Hess’s driving was an intervening cause of Limbert’s death
because Hess increased and decreased his speed to prevent Oxley from
returning his vehicle to the northbound lane of traffic. However, Oxley ignores
the fact that the two vehicles traveled side by side at a high rate of speed on a
dark country road for nearly one mile before Oxley’s vehicle struck Limbert’s in
the head-on crash. It was reasonable for the jury to infer that Hess sped up to
prevent Oxley from passing him. However, it was also reasonable for the jury to
conclude that Oxley could have significantly decreased his speed to return to
the northbound lane, and his failure to do so was reckless. For these reasons,
we conclude that the evidence is sufficient to support Oxley’s conviction for
Class C felony reckless homicide.
Conclusion
[27] The trial court’s error in excluding Dickenson’s testimony did not prejudice
Oxley and was therefore harmless. Also, the prosecutor’s statements during
closing argument did not amount to fundamental error. Finally, the evidence is
sufficient to support Oxley’s Class C felony reckless homicide conviction. For
all of these reasons, we affirm.
[28] Affirmed.
Kirsch, J., and Brown, J., concur.
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