State v. Evans

• Decision Date: 30 September 2014
• Docket Number: No. ED 100110.,ED 100110.
• Citation: 455 S.W.3d 452
• Parties: STATE of Missouri, Respondent, v. Nicholas A. EVANS, Appellant.
• Court: Missouri Court of Appeals

455 S.W.3d 452

STATE of Missouri, Respondent

v.Nicholas A. EVANS, Appellant.

No. ED 100110.

Missouri Court of Appeals, Eastern District, Division Three.

Sept. 30, 2014.

Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 27, 2014.

Application for Transfer Denied March 31, 2015.

Samuel Buffaloe, Columbia, MO, for appellant.

Chris Koster, Karen L. Kramer, Jefferson City, MO, for respondent.

GARY M. GAERTNER, JR., Judge.

Introduction

Nicholas Evans(Defendant) appeals the judgment entered upon his conviction after a jury found him guilty of assault in the first degree and armed criminal action.This case, along with another case handed down today, State v. Murphy,443 S.W.3d 721(Mo.App.E.D.2014), present the question of whether a hand or a fist can qualify as a “dangerous instrument” in support of a conviction for the unclassified felony of armed criminal action.We conclude that the plain language of the statutory definition does not contemplate a hand or fist as a “dangerous instrument.”Defendant also argues that the trial court abused its discretion in allowing the State to present a prejudicial photograph to the jury, which had an outcome-determinative effect on his trial.We reverse in part and affirm in part.

Background

Viewed in the light most favorable to the verdict, the evidence at trial was the following.During the early morning hours of December 31, 2012, Megan Crawford(Crawford) rode with her cousin, Emily Martin(Martin), to Georgee's Bar to pick up Martin's boyfriend, LJ.Martin drove her compact car, and Crawford rode in the passenger seat.Crawford's boyfriend went with them as well and rode in the backseat.When they arrived at Georgee's, Crawford saw her friend James Zemek(Victim) outside, and she got out of the car to go talk to him.After a brief conversation, Crawford returned to the car to wait for LJ.Crawford believed Victim was intoxicated.

Eventually, LJ. came out of the bar with Defendant and two other men.LJ., Defendant, and one other man attempted to get in the backseat of Martin's car, where Crawford's boyfriend was seated.Crawford told them there was not enough space for everyone to fit, and she believed they were there to pick up LJ. only.

Victim approached the car and asked Crawford if she was okay.Defendant asked Victim why he was getting involved because it was not any of Victim's business, which caused Defendant and Victim to argue.Two other men, one of whom was Crawford's uncle, Zack Richter(Richter), came over to the car and asked if everyone was all right.Crawford told them everything was fine.After that, Victim walked away with Richter and the other man.As Victim walked away, Defendant's friends were physically restraining Defendant.

Defendant broke away from his friends and ran over to Victim.Defendant punched Victim on the side of Victim's face, and Victim appeared to become unconscious after the first punch.Defendant continued to punch Victim.Richter unsuccessfully attempted to pull Defendant away from Victim.Another man, Anthony Winebarger(Winebarger) did pull Defendant away briefly, but Defendant broke free and said, “I'm going to get you, white boy.It's on now.”Defendant ran back to Victim and punched him again.After this, LJ and another man ran over to Victim, and one of them kicked Victim in his upper torso area.Defendant had punched Victim four to five times in total, but Victim never moved after the first punch.

After the attack was over, Defendant and the men with him ran away.When Crawford and her friends saw that Victim was still not waking up and was bleeding profusely from his face, they put him in the back of a car and took him to the hospital.He regained consciousness at the hospital, but he had to be flown by helicopter to a hospital in St. Charles.

Victim sustained severe brain trauma, swelling, and bleeding, as well as a skull fracture.These injuries created a life-threatening situation, and Victim would likely have died without treatment.Victim spent two weeks in the hospital, and he underwent surgery after that to repair his skull.Since this incident, Victim has been more confused and forgetful, and he struggles with speech.He experiences dizziness regularly and has to lay down and rest during the day.He is not able to play with his kids in the same way he did before.He has migraine headaches, and his vision is also impaired since this incident.He does not remember the incident at all.

Defendant was charged with assault in the first degree and armed criminal action.The State argued that the jury could find Defendant guilty of armed criminal action, because he committed the assault through use of a “dangerous instrument,” in this case, his fists.The jury found Defendant guilty of both counts, and the trial court sentenced Defendant to concurrent terms of ten years in prison for first-degree assault and three years for armed criminal action.This appeal follows.

Discussion

Defendant raises two points on appeal.In Point I, he argues that the trial court abused its discretion in admitting Exhibit 19, a photograph that a witness had used to identify Defendant, because the photograph was more prejudicial than probative.In Point II, Defendant argues that the evidence was insufficient for the jury to find him guilty of armed criminal action because a fist cannot qualify as a “dangerous instrument.”

Standard of Review

Regarding Point I, a trial court has broad discretion in the admission of evidence, and we will reverse a conviction based on an evidentiary error “only if the error was so prejudicial that it deprived the defendant of a fair trial.”State v. Tokar,918 S.W.2d 753, 761(Mo. banc 1996).Such prejudice occurs when “the errors are more likely than not to have affected the outcome.”State v. Patton,419 S.W.3d 125, 133(Mo.App.E.D.2013).

In Point II, Defendant challenges the sufficiency of the evidence to support his conviction for armed criminal action by raising the question of whether a fist can qualify as a “dangerous instrument” under the statutory definition.Statutory interpretation is a legal question that we review de novo.S. Metro. Fire Protection Dist. v. City of Lee's Summit,278 S.W.3d 659, 666(Mo. banc 2009).Thereafter, we examine the whole record in light of our interpretation, to determine “whether the State has introduced sufficient evidence for any reasonable juror to have been convinced of the defendant's guilt beyond a reasonable doubt.”State v. Nash,339 S.W.3d 500, 509(Mo. banc 2011).

Point I

Defendant argues that the trial court abused its discretion in admitting Exhibit 19 into evidence because it was irrelevant and more prejudicial than probative.We agree.However, in light of the other evidence of Defendant's guilt, we conclude that the error was not outcome-determinative.

Exhibit 19 came into evidence during the State's examination of Winebarger, when the State recalled him after his initial testimony.Prior to that during Defendant's cross-examination of Winebarger, defense counsel asked Winebarger if he knew LJ, and Winebarger replied that he did not.Winebarger added that he had learned the names of LJ and Defendant when he saw their pictures on Facebook, which someone had accessed from a cell phone at the hospital.

The State recalled Winebarger to ask about a specific Facebook photograph of Defendant, Exhibit 19.The following colloquy occurred:

[STATE:][W]as this the photograph that you looked at when you were determining whether or not that was the same Nick Evans that you saw at Georgee's bar the evening in question?

[WINEBARGER:] Yes.This was one of them.This one here is not as good as the other ones.The other ones, we were able to identify him better.

...

[STATE:][W]ere you able to determine, based on that tag on that individual in the picture, that it was the same individual that you saw at Georgee's bar?

[WINEBARGER:] Not so much with this picture, but there was obviously other pictures that clearly were[,] ... other pictures where he had a more normal appearance....

The State moved for admission of Exhibit 19, and defense counsel argued that it was prejudicial because it pictured a group of people, including Defendant, who were making some kind of finger signs.Defense counsel argued the jury could draw an adverse inference about the signs, possibly that they were gang signs.The trial court decided that based on the fact that the Facebook photographs were first mentioned during cross-examination, the court would allow Exhibit 19 into evidence.

Evidence must be relevant to be admissible.State v. Anderson,76 S.W.3d 275, 276(Mo. banc 2002).Logically relevant evidence goes to the question of whether a material fact is true.Id.However, even logically relevant evidence is admissible only if it is legally relevant.Id.“Legal relevance weighs the probative value of the evidence against its costs—unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness.”Id.Though a trial court has broad discretion in admitting photographs, there are limitations on this discretion.State v. Floyd,360 S.W.2d 630, 633(Mo.1962).“[P]hotographs should not be admitted where their sole purpose is to arouse the emotions of the jury and to prejudice the defendant.”Id.(citation omitted).

Here, Exhibit 19 was one of many photographs that witnesses used to identify Defendant as the man who punched Victim.Thus, it was logically relevant.However, the legal relevance here is lacking.Defendant's identity was not contested.Defendant conceded he was there but gave a different version of events, arguing essentially self-defense and possible additional unintentional contact.¹Moreover, Winebarger stated that though he viewed Exhibit 19, it was not the most helpful in identifying Defendant.Thus, the probative value of this evidence was minimal.The photograph was prejudicial in that the jury saw a group of men, including Defendant, making faces and...