Court of Appeals of Missouri, Southern District, Second Division
RYAN N. EVANS, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.
FROM THE CIRCUIT COURT OF PHELPS COUNTY Honorable John D.
Beger, Circuit Judge
JEFFREY W. BATES, J.
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). Because the motion
court's decision to deny relief after an evidentiary
hearing was not clearly erroneous, we affirm.
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 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.
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
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
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.
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).
filed a pro se motion seeking relief pursuant to
Rule 29.15. Thereafter, appointed counsel filed an amended
motion. 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.
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
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.
the motion court issued findings of fact and conclusions of
law denying Evans' amended motion for post-conviction
relief. In rejecting the aforementioned claim, 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.
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 ...