RYAN N. EVANS,                              )
                                            )
       Movant-Appellant,                    )
                                            )
v.                                          )       No. SD35635
                                            )       Filed: May 24, 2019
STATE OF MISSOURI,                          )
                                            )
       Respondent-Respondent.               )

           APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY

                        Honorable John D. Beger, Circuit Judge

AFFIRMED

       Ryan Evans (Evans) appeals from an order denying his amended Rule 29.15 motion

to set aside his convictions for abuse of a child and second-degree felony murder. See

§§ 568.060, 565.021.1(2).1   Because the motion court’s decision to deny relief after an

evidentiary hearing was not clearly erroneous, we affirm.

       Evans bore the burden of proving the grounds asserted in his post-conviction

motion by a preponderance of the evidence. See Rule 29.15(i); McLaughlin v. State, 378

S.W.3d 328, 337 (Mo. banc 2012). Our review of the denial of a Rule 29.15 motion is



       1
         All rule references are to Missouri Court Rules (2019). All statutory references
are to RSMo (2000).
limited to determining whether the motion court’s findings of fact and conclusions of law

are clearly erroneous. Rule 29.15(k); Williams v. State, 168 S.W.3d 433, 439 (Mo. banc

2005). We will find clear error only if a full review of the record leaves us with a definite

and firm impression that a mistake has been made. Zink v. State, 278 S.W.3d 170, 175

(Mo. banc 2009). We presume the motion court’s findings and conclusions are correct.

McLaughlin, 378 S.W.3d at 336-37. Further, “this Court defers to the motion court’s

determination of credibility.” Smith v. State, 413 S.W.3d 709, 715 (Mo. App. 2013). The

following summary of facts has been prepared in accordance with these principles.

       Evans was charged with second-degree felony murder for allegedly committing the

class A felony of abuse of a child, resulting in death. See §§ 565.021.1(2), 568.060.3(2).

These charges stemmed from events that occurred in October 2006 against an 18-month-

old child (Victim). Insofar as relevant here, an autopsy was performed soon after Victim’s

death. Prior to Evans’ jury trial, his defense counsel, Mark Prugh (Prugh), filed a motion

in limine to exclude the autopsy results. Prugh argued that the results were inadmissible

because the doctor who performed the autopsy, Dr. Joshua Lanter, was not a “certified

child death pathologist” as required by § 58.722. In response, the State argued that the

cited statute only applied if there is a disagreement about whether an autopsy should be

performed. Because there was no disagreement in this case, the prosecutor argued that the

statute did not require that the autopsy be performed by a certified child death pathologist.

The trial court agreed and denied the motion.

       At trial, Prugh did not object to Dr. Lanter’s testimony concerning the autopsy. The

doctor testified to a reasonable degree of medical certainty that the cause of Victim’s death

was a closed head injury inflicted by blunt trauma and that the manner of death was

homicide. This opinion was confirmed by his supervisor, Dr. Phillip Burch. Dr. Burch was

                                             2
a deputy chief medical examiner for the City of St. Louis, Missouri, and a certified forensic

pathologist, who observed Victim’s autopsy and independently reviewed Dr. Lanter’s

results. Other medical professionals treating Victim before he died similarly testified that

Victim suffered traumatic brain injury consistent with child abuse that caused his death.

       The jury found Evans guilty as charged. He was sentenced to concurrent terms of

life imprisonment for abuse of a child and 30 years for second-degree murder. This Court

affirmed his convictions and sentences on direct appeal. State v. Evans, 517 S.W.3d 528

(Mo. App. 2015).

       Evans filed a pro se motion seeking relief pursuant to Rule 29.15. Thereafter,

appointed counsel filed an amended motion.2 In the amended motion, Evans claimed, inter

alia, that Prugh was ineffective for failing to object to the trial testimony of Dr. Lanter “on

the basis that he was the physician that conducted the autopsy … and he was statutorily

unqualified to do so” pursuant to § 58.722.

       The motion court conducted an evidentiary hearing, at which Prugh was the only

witness. Prugh did not object to Dr. Lanter’s testimony because an objection would have

likely been “shot down” and may have done more harm than good:

       I think everybody who’s done a trial who’s trying to win a jury trial knows
       if you’re trying to discredit an expert, if you object and you know your
       objection is gonna be shot down, you’re just – you’re enhancing the
       credibility of that expert and you’re not doing your client any good.

       Thereafter, the motion court issued findings of fact and conclusions of law denying

Evans’ amended motion for post-conviction relief. In rejecting the aforementioned claim,




       2
         This Court has independently verified the timeliness of Evans’ post-conviction
motions. See Moore v. State, 458 S.W.3d 822, 825-26 (Mo. banc 2015); Dorris v. State,
360 S.W.3d 260, 268 (Mo. banc 2012).
                                          3
the motion court concluded that trial counsel Prugh’s decision not to object was reasonable

trial strategy:

        Trial counsel certainly was reasonable in concluding that an objection to
        [Dr. Lanter], based on § 58.722, would not be successful. As Mr. Prugh
        stated on several occasions, he did not think it sound strategy to object to
        the qualifications of an expert, only to have that objection overruled and,
        and as a result, the expert’s qualifications be affirmed in the minds of the
        jurors by the trial judge’s ruling.

This appeal followed.

        In Evans’ sole point on appeal, he argues that Prugh’s failure to object to Dr.

Lanter’s testimony constituted ineffective assistance of trial counsel. To prevail on a claim

of ineffective assistance of trial counsel, the movant must satisfy a two-prong test. Zink,

278 S.W.3d at 175. First, the movant must “show that counsel’s representation fell below

an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688

(1984). “A fair assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”

Id. at 689. Second, the movant must show that trial counsel’s failure prejudiced him. Id.

at 687; Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006) (to satisfy the prejudice

prong under the Strickland test, movant is required to show there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different). Both of these prongs must be shown in order to prove ineffective

assistance of counsel. Zink, 278 S.W.3d at 175. Movant must overcome a strong

presumption that counsel’s conduct was reasonable and effective. Id. at 176.

        Evans’ point contends the motion court clearly erred because “trial counsel was

ineffective for failing to object to testimony of Dr. Lanter and evidence derived from the

autopsy[.]” According to Evans, “Dr. Lanter was not qualified to perform the autopsy
                                        4
under Section 58.722 [and had] counsel objected to all evidence derived from the autopsy,

the state would not have been able to use that evidence against him and there is a reasonable

probability that the result of the trial would have been different.” We disagree.

        Here, Evans failed to demonstrate that trial counsel’s failure to object was

unreasonable trial strategy. As Prugh himself recognized, even seasoned trial attorneys

will oftentimes not object to otherwise improper questions or arguments, because it is

feared that certain objections “highlight the statements complained of, resulting in more

harm than good.” Barton v. State, 432 S.W.3d 741, 754 (Mo. banc 2014) (citation

omitted); see Marshall v. State, 567 S.W.3d 283, 293 (Mo. App. 2019) (merely because

trial counsel failed to object to everything objectionable does not equate to incompetence

or ineffective assistance of counsel).

        In addition, Evans failed to prove that he was prejudiced by trial counsel’s alleged

error. Evans’ argument concerning prejudice is based on the premise that counsel’s

objection to Dr. Lanter’s testimony under § 58.722 would have been meritorious. That

premise is false. The upshot of Evans’ argument is that: (1) § 58.722 required Victim’s

autopsy to be performed by a certified child death pathologist; and (2) failure to follow that

procedure rendered Dr. Lanter’s autopsy results inadmissible. That is not a correct

interpretation of the statute.

        Section 58.722 applies to death of a child under the age of 18. Insofar as relevant

here, the statute states:

        3. When a child under the age of eighteen years, who is eligible to receive
        a certificate of live birth, dies, the medical examiner shall notify a certified
        child death pathologist to determine the need for an autopsy. The certified
        child death pathologist, in conjunction with the medical examiner, shall
        determine the need for an autopsy. If there is disagreement concerning the
        need for the autopsy, the certified child death pathologist shall make the
        determination unless the child fatality review panel, within twelve hours,
        decides against the certified child death pathologist.
                                                5
       4. When there is a disagreement regarding the necessity for an autopsy, the
       certified child death pathologist shall file a report with the chairman of the
       child fatality review panel indicating the basis for the disagreement. The
       pathologist’s report on the disagreement shall be included in the report to
       the department of social services, state technical assistance team. If an
       autopsy is determined necessary, the autopsy shall be performed by a
       certified child death pathologist within twenty-four hours of receipt of the
       body by the pathologist or within twenty-four hours of the agreement by the
       pathologist to perform the autopsy, whichever occurs later.

§ 58.722.3-.4 (italics added). Thus, according to the statute, a “certified child death

pathologist” is required to perform an autopsy only when there is a disagreement about the

need for an autopsy. § 58.722.4.3 Here, the trial court was told that there was no

disagreement in this case about the need for an autopsy. Evans does not argue otherwise.

Because § 58.722 does not apply, Evans cannot rely on this statute to argue that Dr. Lanter

was “not qualified” to perform the autopsy.4 Consequently, an objection based on § 58.722



       3
          We note that generally, § 58.725 requires the medical examiner to both: (1)
determine the need for an autopsy; and (2) perform the autopsy if the medical examiner is
a pathologist. Id.; News-Press & Gazette Co. v. Cathcart, 974 S.W.2d 576, 580 (Mo. App.
1998) (“[w]hen necessary, an autopsy shall be performed by the medical examiner”). The
autopsy may also be performed “by such competent pathologist as may be authorized and
employed by the medical examiner.” § 58.725. This requirement was met because Dr.
Lanter was a pathologist authorized to conduct Victim’s autopsy under Dr. Burch’s
supervision, and Dr. Burch was employed as a deputy chief medical examiner.
4
   Even if a certified child death pathologist was required to perform the autopsy in this
case, Evans’ argument to exclude the autopsy results fails. While § 58.722 requires a
certified child death pathologist to perform the autopsy under certain circumstances, the
statute provides no sanction for a failure to do so. There is nothing in the statute to suggest
that the results of an autopsy performed by someone else are inadmissible. Evans did not
allege any errors in the performance of Victim’s autopsy by Dr. Lanter that would render
his results unreliable. Accordingly, § 58.722 “is merely directory.” State ex rel. Hunter
v. Lippold, 142 S.W.3d 241, 244 (Mo. App. 2004) (“when a statute merely requires certain
things to be done and nowhere prescribes the results that shall follow if such things are not
done … the statute is merely directory”); see also City of St. Peters v. Roeder, 466 S.W.3d
538, 546 (Mo. banc 2015) (generally, the term “shall” has been interpreted to be directory
when the statute does not provide what result will follow for failing to comply with its
terms).

                                              6
would not have been meritorious. Trial counsel is not ineffective for failing to make a non-

meritorious objection. Zink, 278 S.W.3d at 188; Marshall, 567 S.W.3d at 292; see also

Anderson v. State, 564 S.W.3d 592, 615 (Mo. banc 2018); Tucker v. State, 468 S.W.3d

468, 475 (Mo. App. 2015).

       Moreover, Evans cannot show a reasonable likelihood of a different result had

counsel successfully objected to the autopsy results. Multiple medical professionals

testified as to Victim’s injuries and the causes of those injuries based on their own

observations and treatments that were independent of the autopsy. A CT scan taken at the

hospital before Victim died showed a swollen brain with bleeding on top of the brain.

Three doctors who treated Victim at the hospital testified that the injuries they observed

showed that Victim suffered traumatic, inflicted brain injuries that resulted in his death.

Even without the autopsy results, the jury had overwhelming evidence that supported a

finding that Victim died as a result of child abuse. It is well settled that a party cannot be

prejudiced by the admission of allegedly inadmissible evidence if the challenged evidence

is merely cumulative to other evidence admitted without objection. Swartz v. Gale Webb

Transp. Co., 215 S.W.3d 127, 134 (Mo. banc 2007); Williams v. State, 226 S.W.3d 871,

875 (Mo. App. 2007).

       For all these reasons, the motion court did not clearly err in denying Evans’ claim

that his trial counsel was ineffective for failing to object to Dr. Lanter’s testimony and

evidence derived from the autopsy. Evans’ point is denied.

       The judgment of the trial court is affirmed.

JEFFREY W. BATES, J. – OPINION AUTHOR

DANIEL E. SCOTT, J. – CONCUR

MARY W. SHEFFIELD, J. – CONCUR

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