[Cite as State v. Evans, 2016-Ohio-7256.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                        C.A. No.       15AP0054

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
RICHARD CURTIS EVANS                                 COURT OF COMMON PLEAS
                                                     COUNTY OF WAYNE, OHIO
        Appellant                                    CASE No.   2015 CRC-I 000043

                                 DECISION AND JOURNAL ENTRY

Dated: October 11, 2016



        HENSAL, Judge.

        {¶1}     Richard Evans appeals a judgment of the Wayne County Court of Common Pleas

that convicted and sentenced him for aggravated vehicular homicide and operating a vehicle

under the influence of alcohol or drugs. For the following reasons, this Court affirms.

                                                I.

        {¶2}     On the evening of December 23, 2014, Mr. Evans was driving his niece home

when he collided with a vehicle being driven by Melanie Wickens, causing Ms. Wickens’s death.

Following the collision, Mr. Evans continued on to his niece’s house, where officers found him

outside a short time later. After Mr. Evans exhibited a number of clues during field sobriety

tests, the police obtained a warrant to draw his blood. Although the result of the blood draw was

.094, an expert extrapolated that Mr. Evans’s blood alcohol content at the time of the crash

would have been approximately .165.
                                                  2


       {¶3}    The Grand Jury indicted Mr. Evans on two counts of aggravated homicide, one

count of aggravated vehicular assault, one count of vehicular assault, and one count of operating

a vehicle under the influence of alcohol or a drug of abuse. Following voir dire, Mr. Evans

waived his right to a jury trial. The trial court found him guilty of the aggravated-homicide and

operating-a-vehicle-under-the-influence counts. After merging the aggravated homicide offenses

for the purpose of sentencing, it sentenced him to eight years imprisonment. Mr. Evans has

appealed, assigning three errors, which we have reordered for ease of consideration.

                                                 II.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING THE
       DEATH CERTIFICATE INTO EVIDENCE ABSENT A QUALIFIED
       WITNESS TO TESTIFY CONCERNING THE CAUSE OF DEATH.

       {¶4}    Mr. Evans argues that the trial court incorrectly admitted Ms. Wickens’s death

certificate. According to him, because there was no qualified witness to testify about Ms.

Wickens’s cause of death, her death certificate was inadmissible. Mr. Evans concedes that,

because he did not object to the admission of the death certificate at trial, he is limited to arguing

plain error. Crim.R. 52(B).

       {¶5}    Under Criminal Rule 52(B), “[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” “Notice of plain

error * * * is to be taken with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph

three of the syllabus. “Plain error does not exist unless it can be said that but for the error, the

outcome of the trial would clearly have been otherwise.” State v. Wickline, 50 Ohio St.3d 114,

120 (1990).
                                                  3


         {¶6}   In support of his argument, Mr. Evans relies on State v. Maxwell, 139 Ohio St.3d

12, 2014-Ohio-1019. In Maxwell, the Ohio Supreme Court confirmed that “an autopsy report

completed by a nontestifying medical examiner [is] admissible as a nontestimonial business

record under Evid.R. 803(6).” Id. at ¶ 47, 57. The Court explained that an autopsy report is

nontestimonial because its primary purpose is to document a person’s cause of death for public

records and the public health. Id. at ¶ 57. Its admission, therefore, did not violate Mr. Maxwell’s

confrontation rights. Id. at ¶ 63.

         {¶7}   Mr. Evans argues that his case is distinguishable from Maxwell because, even

though the medical examiner who performed the autopsy in that case did not testify, the

examiner’s successor did testify about the report. According to Mr. Evans, under Maxwell, a

death certificate is only admissible if a qualified medical professional testifies about the victim’s

cause of death. Otherwise, a defendant has no meaningful opportunity to challenge the cause of

death.

         {¶8}   Initially, we note that Maxwell involved the admissibility of an autopsy report, not

a death certificate. Regarding death certificates, Revised Code Section 313.19 specifically

provides that the “cause of death and the manner and mode in which death occurred, as * * *

incorporated in the coroner’s verdict and in the death certificate * * * shall be the legally

accepted manner and mode in which such death occurred, and the legally accepted cause of death

* * *.” See also Vargo v. Travelers Ins. Co., Inc., 34 Ohio St.3d 27, 30-31 (1987) (explaining

that a coroner’s duties under Section 313.19 are quasi-judicial in character and concluding that

the statute “suffers from no constitutional infirmities.”).

         {¶9}   Even if Maxwell’s holdings about the admissibility of autopsy reports apply to

death certificates, there is no language in Maxwell that suggests that an autopsy report or death
                                               4


certificate is inadmissible unless the coroner who completed it or a substitute is available for

cross-examination. See Maxwell at syllabus. In Maxwell, the Ohio Supreme Court did not hold

that an autopsy report is inadmissible unless another qualified medical professional testifies

about the report. The issue that it addressed about the successor medical examiner was whether

the successor was permitted to testify about an autopsy report he had not written. The Court held

that, because the successor had reached his own independent judgment about the victim’s cause

of death and was available for cross-examination, his testimony did not violate Mr. Maxwell’s

confrontation rights. Id. at ¶ 53.

       {¶10} We also note that the death certificate in this case indicated only that Ms.

Wickens died from blunt force trauma to the head that occurred during a motor vehicle accident.

It did not indicate who was responsible for the collision. Contrary to Mr. Evans’s assertion,

therefore, the death certificate did not establish that “Mr. Evans caused the death of * * * Ms.

Wickens.” Upon review of the record, we conclude that Mr. Evans has not established that the

trial court committed plain error when it allowed the State to admit Ms. Wickens’s death

certificate even though the coroner did not testify. Mr. Evans’s second assignment of error is

overruled.

                                     ASSIGNMENT OF ERROR I

       MR. EVANS WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

       {¶11} Mr. Evans argues that his trial counsel was ineffective. To prevail on a claim of

ineffective assistance of counsel, Mr. Evans must show (1) that counsel’s performance was

deficient to the extent that “counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment” and (2) that but for counsel’s deficient performance the

result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687
                                                   5


(1984). A deficient performance is one that falls below an objective standard of reasonable

representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. A

court, however, “must indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered sound

trial strategy.’” Strickland at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955).

Further, to establish prejudice, Mr. Evans must show that there exists a reasonable probability

that, were it not for counsel’s errors, the result of the trial would have been different. Id. at 694.

           {¶12} According to Mr. Evans, his counsel was ineffective because he did not object to

the admission of Ms. Wickens’s death certificate. Mr. Evans repeats his argument that, under

Maxwell, the death certificate was inadmissible unless a qualified expert witness testified who

had reviewed the report and could form her own independent opinions about it. As we explained

earlier, however, the Ohio Supreme Court did not make such a holding in Maxwell. Instead, it

confirmed that an autopsy report is “a nontestimonial business record and that its admission did

not impinge on [the] defendant’s confrontation rights.” Maxwell, 139 Ohio St.3d 12, 2014-Ohio-

1019, at ¶ 54, 63. It also held that a medical examiner who did not prepare the autopsy report

could testify about “his own independent judgment on the cause and manner of * * * death.” Id.

at ¶ 53.

           {¶13} Mr. Evans also argues that his counsel should have objected when one of the

police officers who responded to the collision testified about Ms. Wickens’s cause of death. The

officer, however, simply read what was written on Ms. Wickens’s death certificate. Because the

death certificate was admissible, we conclude that counsel’s failure to object to the officer’s

testimony did not fall below an objective standard of reasonableness.
                                               6


       {¶14} Mr. Evans further argues that his counsel failed to undertake a reasonable

investigation of the facts of his case. According to Mr. Evans, his counsel should have consulted

with potential experts who could have disputed his blood alcohol content at the time of the

collision or determined whether the brakes and accelerator on his vehicle malfunctioned before it

happened.

       {¶15} Although Mr. Evans’s counsel was required to undertake a reasonable

investigation of the facts of a case, he was not required “to hire an investigator.” State v.

Hairston, 9th Dist. Lorain No. 05CA008768, 2006-Ohio-4925, ¶ 36. In addition, there is nothing

in the record that establishes that Mr. Evans’s counsel would have been able to find experts to

support his allegations. Upon review of the record, we conclude that Mr. Evans cannot establish

on direct appeal that he was prejudiced by his counsel’s failure to retain experts. See State v.

Rafferty, 9th Dist. Summit No. 26724, 2015-Ohio-1629, ¶ 132 (concluding that defendant could

not establish on direct appeal that counsel’s lack of investigation prejudiced him because this

Court’s review was confined to the record.); App.R. 12(A)(1)(b). Mr. Evans’s first assignment

of error is overruled.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED BY DENYING MR. EVANS’[S] CRIMINAL
       RULE 29 MOTION FOR ACQUITTAL ON COUNTS ONE AND TWO OF
       THE INDICTMENT.

       {¶16} Mr. Evans’s final argument is that, if Ms. Wickens’s death certificate had been

properly excluded, he would have been entitled to a judgment of acquittal on the aggravated

vehicular homicide counts. When reviewing the denial of a motion for acquittal, however, this

Court examines all “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.”
                                                 7


State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. Furthermore, as we

explained earlier, Ms. Wickens’s death certificate was admissible. Mr. Evans’s third assignment

of error is overruled.

                                                III.

       {¶17} Mr. Evans’s assignments of error are overruled. The judgment of the Wayne

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT
                                         8


CARR, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

PATRICK L. BROWN, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
