[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                  :

                                                        :

                                            ..........

                                            OPINION

                         Rendered on the         21st       day of    October    , 2011.

                                            ..........

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
                                                                                    3

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
                                                                                 4

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.”
                                                                                       5

       {¶ 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.
                                                                                    6

      {¶ 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
                                                                                   7

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
                                                                                        8

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
                                                                                     9

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
                                                                                                                                10

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.
                                                                                  11

         {¶ 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
                                                                                   12

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.

                                      ..........

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

Carley J. Ingram
Jay A. Adams
Hon. Mary Katherine Huffman
