IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellant,

v.

ROBERT FISCHER, Appellee.

No. 1 CA-CR 14-0183

Appeal from the Superior Court in Maricopa County

No. CR2012-006869-001 DT

The Honorable Karen A. Mullins, Judge

REVERSED AND REMANDED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Susan L. Luder

Counsel for Appellant

Dwane Cates Law Group PLC, Phoenix

By Dwane Cates

and

Smith Campbell Clifford Kearney Gore, Phoenix

By Stephen C. Biggs, Steven C. Smith and Richard R. Thomas

Co-Counsel for Appellee
STATE v. FISCHER

Opinion of the Court

2

OPINION

Presiding Judge Andrew W. Gould delivered the opinion of the Court, in 

which Judge Maurice Portley and Judge Jon W. Thompson joined.

G O U L D, Judge:

¶1 The State appeals the trial court’s order granting Defendant 

Robert Fischer’s motion for new trial. For the following reasons, we 

reverse, reinstate the guilty verdict, and remand for sentencing.

FACTS AND PROCEDURAL BACKGROUND

¶2 In late December 2010, Defendant visited his step-daughter, 

Belinda, and her family for Christmas. Shortly after Defendant arrived, 

the family went out to dinner. When they returned home, Defendant, 

Belinda, and her husband, Lee Radder, sat at the kitchen table and had a 

few drinks. Belinda went to bed around 11:30 p.m., while Defendant and 

Radder stayed up and continued drinking. 

¶3 Shortly after 5:00 a.m. the next morning, officers responded 

to a 911 call from Defendant. When the first officer arrived he found 

Defendant kneeling over Radder’s body. Radder was dead, having 

suffered a close contact gunshot wound to his right eye. In his right hand, 

Radder was holding Defendant’s pistol, his thumb on the trigger. 

¶4 Defendant was charged with Radder’s murder. At trial, the 

issue was whether Radder committed suicide or was murdered by 

Defendant. At the end of the trial, the jury found Defendant guilty of 

second degree murder. 

¶5 After the verdict, Defendant filed a motion for judgment of 

acquittal. The court denied the motion, finding there was sufficient 

evidence to support the verdict. 

¶6 Defendant also filed a motion for new trial, alleging (1)

prosecutorial misconduct and (2) the verdict was contrary to the weight of 

the evidence. The court determined there was no prosecutorial 

misconduct, but granted Defendant’s motion on the grounds the verdict 

was contrary to the weight of the evidence. Accordingly, the court set 

aside the verdict and granted Defendant a new trial. 
STATE v. FISCHER

Opinion of the Court

3

¶7 Based on the court’s order, the State moved to dismiss the 

case without prejudice to pursue an appeal. The court granted the State’s 

motion, and this appeal followed. 

DISCUSSION

I. Mootness

¶8 Defendant argues this appeal is moot because the State

voluntarily dismissed the indictment. Defendant contends that even if we 

reverse the trial court’s order granting the motion for new trial, our 

decision would have no effect on the parties because there is no pending 

case. See Cardoso v. Soldo, 230 Ariz. 614, 617, ¶ 5 (App. 2012) (“[W]e will 

dismiss an appeal as moot when our action as a reviewing court will have 

no effect on the parties.”). 

¶9 The issue presented is not whether we have jurisdiction over 

the State’s appeal; we have jurisdiction regardless of whether the case was

dismissed. See Arizona Revised Statute (“A.R.S.”) section 13-4032(2)

(appellate court has jurisdiction over an appeal by the State from a grant 

of a motion for new trial); State v. Birmingham, 96 Ariz. 109, 111 (1964)

(same). Rather, the issue we must decide is whether the procedure used 

by the State to pursue its appeal, a voluntary dismissal, renders the appeal 

moot. 

¶10 This appeal is not moot. The State is not seeking to reinstate 

the indictment; it is seeking to reinstate the guilty verdict. We have the 

authority to reverse an order granting a motion for new trial and “return 

the case to the posture it was in . . . before the trial court ruled on 

defendant’s motion for new trial.” State v. Moya, 129 Ariz. 64, 65 (1981). 

When a court grants a defendant’s post-verdict motion, the State’s success 

on appeal results “in the reinstatement of the general finding of guilt, 

rather than in further factual proceedings relating to guilt or innocence.” 

U.S. v. Morrison, 429 U.S. 1, 3-4 (1976); see State v. West, 226 Ariz. 559, 562, 

¶ 13 (2011) (stating that if a verdict is vacated and subsequently 

dismissed, if the ruling is reversed on appeal, “the verdict of guilt can 

simply be reinstated”); cf. U.S. v. Villamonte-Marquez, 462 U.S. 579, 581 n.2 

(1983) (reversal of an order vacating a defendant’s convictions would, 
STATE v. FISCHER

Opinion of the Court

4

despite the government’s subsequent voluntary dismissal, reinstate the

convictions).

1 

¶11 Nothing in the constitution precludes the State from 

pursuing an appeal after dismissing the charges. Reinstatement of a 

guilty verdict would not violate Defendant’s double jeopardy rights. U.S. 

v. Wilson, 420 U.S. 332, 344-45 (1975); State v. Wilson, 207 Ariz. 12, 15, ¶ 11

(App. 2004). Nor is there is any constitutional right prohibiting the State 

from dismissing a case to pursue an appeal. See State v. Million, 120 Ariz. 

10, 14-15 (1978) (State may voluntarily dismiss a case to pursue an appeal

of an order granting a motion to suppress). Indeed, we have gone so far 

as to reinstate charges voluntarily dismissed by the State after reversing 

an order granting a motion to suppress. See State v. Crotty, 152 Ariz. 264, 

267 (App. 1986) (reversing order suppressing “breathalyzer” results and 

ordering reinstatement of charges voluntarily dismissed by the State); 

State v. Soto, 195 Ariz. 429, 432 (App. 1999) (reinstating charges and 

remanding case to the trial court upon reversal of a motion to suppress). 

¶12 Defendant contends that Criminal Procedure Rule 31.16, 

which permits a stay of the proceedings when the State appeals an order 

granting a defendant’s motion for new trial, prohibits the State from 

dismissing the case to pursue an appeal.2 We disagree. 

¶13 Rule 31.16 neither creates a substantive right nor prescribes 

the procedure to enforce that right. See Birmingham, 96 Ariz. at 110-11 

 

1 Defendant argues in his supplemental brief that VillamonteRodriguez is distinguishable from the present case because it dealt with an 

order reversing and reinstating a judgment and sentencing, rather than a 

guilty verdict. Defendant asserts that the doctrine of merger, which 

provides an indictment merges into a defendant’s judgment at the time of 

sentencing, was the sole basis for the Supreme Court’s decision. 

However, the doctrine of merger was not the only basis for the Supreme 

Court’s decision. The Court noted that, apart from merger, the 

government’s voluntary dismissal of the case did not prevent the Court 

from reversing and reinstating the defendant’s conviction. VillamonteMarquez, 462 U.S. 579, 581 n.2. 

2 Rule 31.16 states: “An appeal by the state is inoperative to stay 

order in favor of defendant, except when the appeal is from an order 

granting a new trial or from an order granting a motion to suppress which 

directs the return of evidence.”
STATE v. FISCHER

Opinion of the Court

5

(rules of criminal procedure do not create a right to appeal; the right to an 

appeal “can only be given or denied by constitution or the legislature of 

the [S]tate.”). Rule 31.16 provides that, as a general matter, orders in favor 

of defendants will not be stayed while the State pursues an appeal. The 

purpose of the Rule is to prevent a defendant from being held in custody 

while the State pursues an appeal. Ariz. R. Crim. P. 31.16, Cmt.; State ex 

rel. Berning v. Alfred, 186 Ariz. 403, 404 (App. 1996). Rule 31.16 also creates 

an exception to this general rule, permitting a stay when the State appeals

an order granting a new trial or an order granting a motion to suppress. 

Ariz. R. Crim. P. 31.16. 

¶14 We do not, however, read Rule 31.16 as requiring the State to 

seek a stay before appealing an order granting a motion for new trial. 

Indeed, although Rule 31.16 allows the State to obtain a stay when 

appealing an order granting a motion to suppress, we have also permitted 

the State to dismiss the charges and file an appeal. Million, 120 Ariz. at 14-

15; State v. Rosengren, 199 Ariz. 112, 115, ¶ 8 (App. 2000) (State permitted 

to voluntarily dismiss charges and appeal an order suppressing 

defendant’s statements and DUI test results). 

¶15 In sum, there were no constitutional or procedural grounds 

barring the State from dismissing the charges and filing an appeal. 

Accordingly, this appeal is not moot, and we will consider the merits. 

II. Motion for New Trial

¶16 The State argues the weight of the evidence supported the 

verdict, and that the trial court abused its discretion in granting 

Defendant’s motion for new trial. Ariz. R. Crim. P. 24.1(c)(1). 

A. Standard for Granting a Motion for New Trial

¶17 Arizona Rule of Criminal Procedure 24.1(c) sets forth several

grounds for granting a new trial. Ariz. R. Crim. P. 24.1 (c)(1)–(5); See Ariz. 

R. Civ. P. 59(a) (grounds for a new trial in a civil case). One basis for

granting a new trial is when the verdict is “contrary to...the weight of the 

evidence.” Ariz. R. Crim. P. 24.1(c)(1); State v. McIver, 109 Ariz. 71, 72 

(1973); see Ariz. R. Civ. P. 59(a) (8). 

¶18 Unlike a motion for judgment as a matter of law or acquittal, 

a trial court ruling on a motion for new trial based on the weight of the 

evidence does not view the evidence in the light most favorable to 
STATE v. FISCHER

Opinion of the Court

6

sustaining the verdict, nor does it resolve all conflicting inferences in favor 

of sustaining the verdict.

3 State v. Thomas, 104 Ariz. 408, 411-12 (1969);

General Petroleum Corp. v. Barker, 77 Ariz. 235, 243-44 (1954); State v. Clifton, 

134 Ariz. 345, 348-49 (App. 1982). Rather, the court is permitted to weigh 

the evidence and make credibility determinations, and it may set aside the 

verdict and grant a new trial even if there is sufficient evidence to support 

the verdict. Thomas, id.; General Petroleum, id.; Clifton, id.; see Tibbs v. 

Florida, 457 U.S. 31, 42-43 (1982) (“A reversal based on the weight of the 

evidence, moreover, can occur only after the State...has presented 

sufficient evidence to support the conviction”).

¶19 Given this broader discretion, some cases describe the 

judge’s role as “the ‘thirteenth juror’ (the ninth juror in a civil case).”

Hutcherson v. City of Phoenix, 192 Ariz. 51, 55, ¶ 23 (1998); Thomas, 104 Ariz. 

at 412; McBride v. Kieckhefer Associates, Inc., 228 Ariz. 262, 267, ¶ 20 (App. 

2011). This description, however, overstates the judge’s role. A judge 

may not set aside a verdict “merely because, if he had acted as trier of fact, 

he would have reached a different result,” nor may he substitute his own 

judgment for that of the jury. Cano v. Neill, 12 Ariz. App. 562, 569 ( 1970) 

(citing J. Moore, Federal Practice, § 59.08(5), at 3818-19 (2d ed. 1953); see 

Hutcherson, 192 Ariz. at 56, ¶ 27 (in ruling on a motion for new trial, a 

judge may not substitute his own judgment for that of the jury); Cal X-Tra 

v. W.V.S.V. Holdings, L.L.C., 229 Ariz. 377, 403, ¶ 88 (App. 2012) (same);

Clifton, 134 Ariz. at 349 (same). 

¶20 The basis for this limitation on a court’s discretion is the 

right to a jury trial, which includes the right to have a jury determine 

issues of fact. U.S. Const. amend. VII (right to a jury trial); Ariz. Const. 

art. 2, § 23 (same); see Fisher v. Edgerton, 236 Ariz. 71, 82, ¶ 35 (App. 2014) 

(“laws affecting the right to trial by jury” may not “significantly burden or 

impair the right to ultimately have a jury determine the issues of fact”).

 

3 Unfortunately, it is not uncommon for courts to confuse the 

standard for a motion for new trial with the standard for a motion for 

judgment of acquittal (criminal) or a judgment as a matter of law (civil). 

See General Petroleum Corp. v. Barker, 77 Ariz. 235, 243-44 (1954) 

(disapproving of several decisions that improperly applied the standard 

for a directed verdict/judgment as a matter of law when ruling on a 

motion for new trial); see also Charles Alan Wright & Arthur R. Miller, 11 

Federal Practice and Procedure Civil § 2806, pp. 80-81 & n. 1-4 (3d ed. 

2015) (discussing federal cases where the court applied the wrong 

standard). 
STATE v. FISCHER

Opinion of the Court

7

“The very essence of [a jury’s] function is to select from among conflicting 

inferences and conclusions that which it considers most reasonable.” 

Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 35 (1944). Thus, when a judge 

proceeds to reweigh the evidence, she is necessarily invading the province 

of the jury. State v. Neal, 143 Ariz. 93, 97 (1984); see Cano, 12 Ariz. App. at 

569; Lind v. Schenley Industries Inc., 278 F.2d 79, 90 (3d Cir. 1960); see Vander 

Zee v. Karabatsos, 589 F.2d 723, 729 (D.C. Cir. 1978) (recognizing the danger 

of judicial encroachment “on the jury's important fact-finding function”). 

¶21 As a result, a court considering a motion for a new trial must

be mindful of maintaining the role of the jury and the integrity of the jury 

trial system. Cal X-Tra, 229 Ariz. at 403, ¶ 88 (appellate courts will

“‘scrutinize with care an order granting a new trial because ‘meaningful 

review in such cases is required to maintain the integrity of the jury trial 

system and the practical value of court adjudication.’”), citing Zugsmith v. 

Mullins, 86 Ariz. 236, 237–38 (1959). The evidence may sharply conflict as 

to one or more critical factual issues, causing the court to have serious 

doubts about how the jury resolved those conflicts. However, 

...the court must proceed with great care in examining the 

defendant's motion [for new trial]. As has been stated many 

times, motions for a new trial are not looked upon with 

favor and are to be granted with great caution...Trial by jury 

is one of the most treasured guarantees of the Bill of Rights. 

Any interference with the jury's province must be exercised 

punctiliously.

Clifton, 134 Ariz. at 349.

¶22 We therefore emphasize the well-established rule in Arizona 

that motions for new trial should be granted with great caution. 

Specifically, courts should “abstain from interfering with the verdict

unless it is quite clear that the jury has reached a seriously erroneous 

result” and it is necessary to set aside the verdict to avoid a “miscarriage 

of justice.” Cano, 12 Ariz. App. at 569; see Clifton, 134 Ariz. at 349; Bradley 

v. Philhower, 81 Ariz. 61, 63 (1956) (a new trial may only be granted “where 

it is manifest from all the evidence that there has been a miscarriage of 

justice”); Jimenez v. Starkey, 85 Ariz. 194, 198 (1959) (new trial will not be 

granted where substantial evidence supports the jury verdict).
STATE v. FISCHER

Opinion of the Court

8

B. Appellate Review

¶23 We review a court’s grant of a motion for new trial based on 

the weight of the evidence for an abuse of discretion.4 State v. Neal, 143 

Ariz. 93, 97 (1984). We “afford the trial court wide deference” in weighing 

the evidence and making credibility determinations “because ‘[t]he [trial] 

judge sees the witnesses, hears the testimony, and has a special 

perspective of the relationship between the evidence and the verdict 

which cannot be recreated by a reviewing court from the printed record.’” 

Cal X-Tra, 229 Ariz. at 403, ¶ 88 (citing Hutcherson, 192 Ariz. at 53, ¶ 12

(quoting Reeves v. Markle, 119 Ariz. 159, 163(1978)). 

¶24 Although a trial judge has “wide discretion because of his 

intimate relation to the trial,” “[t]his does not mean...that [we] abandon 

all supervision and fail to impose the limitation of legal standards on the 

exercise of” his discretion. McMinn, 88 Ariz. at 262. If our review of the 

record reveals “the evidence fully sustains the conviction, it is an abuse of 

discretion to grant a new trial.” State v. Moya, 129 Ariz. 64, 66 (1981); State 

ex rel Morrison v. McMinn, 88 Ariz. 261, 262 (1960); State v. Saenz, 88 Ariz. 

154, 156 (1960). We will reverse an order granting a new trial if “the 

probative force of the evidence clearly demonstrates that the trial court’s 

action is wrong.” Smith v. Moroney, 79 Ariz. 35, 39 (1955).

C. Factual Findings 

¶25 In reaching its verdict, the jury had to resolve one issue: who 

shot Radder? The jury ultimately decided that Defendant shot Radder, 

rejecting Defendant’s claim Radder committed suicide. The court, 

however, determined this verdict was so clearly against the weight of the 

evidence that it was a miscarriage of justice. The trial court made several 

pages of express factual findings in support of this determination. 

 

4 The cases also have not been uniform in describing the standard of 

review for an order granting a motion for a new trial based on the weight 

of the evidence. Once again, this primarily stems from courts applying 

the standard of review for a motion for judgment of acquittal or a motion 

for judgment as a matter of law, rather than the standard of review for a 

motion for new trial. See supra, at ¶ 18 n.3; State v. Spears, 184 Ariz. 277, 

290 (1996) (stating that in reviewing a motion for new trial, court must 

“view the evidence in the light most favorable to sustaining the verdict, 

and [] resolve all inferences against the defendant.”); Styles v. Ceranski, 185 

Ariz. 448, 450 (App. 1996) (same). 
STATE v. FISCHER

Opinion of the Court

9

¶26 A court abuses its discretion in granting a motion for new 

trial if it reaches a conclusion without considering all the evidence. Grant 

v. Arizona Public Service, 133 Ariz. 434, 455-56 (1982); Flying Diamond 

Airpark, L.L.C. v. Meienberg, 215 Ariz. 44, 50, ¶ 27 (App. 2007). An abuse of 

discretion also occurs when a court makes factual findings lacking 

evidentiary support in the record. Grant, 133 Ariz. at 455-56; Flying 

Diamond, 215 Ariz. at 50, ¶ 27. 

¶27 In weighing the evidence, the law makes no distinction 

between direct and circumstantial evidence. State v. Carter, 118 Ariz. 562, 

564 (1978); State v. Salinas, 106 Ariz. 526, 527 (1971). A guilty verdict may

be affirmed based “primarily or entirely on circumstantial evidence,” even 

when there is “no direct evidence of the defendant’s... participation in [a]

murder.” State v. Fulminante, 193 Ariz. 485, 493-94, ¶ 25 (1999). In 

addition, “[p]hysical evidence is not required to sustain a conviction 

where the totality of the circumstances demonstrates guilt beyond a 

reasonable doubt.” State v. Canez, 202 Ariz. 133, 149, ¶ 42 (2002); see 

Fulminante, 193 Ariz. 485, 493-94, ¶ 26.

¶28 Finally, in considering the court’s express findings, we will 

infer the necessary findings to affirm, but we “will do so only if the 

implied findings do not conflict with the court's express findings.” State v. 

Zamora, 220 Ariz. 63, 67, ¶ 7 (App. 2009). 

¶29 In reviewing the record, we conclude the trial court abused 

its discretion in granting Defendant’s motion for new trial. The trial court 

erred by making factual findings that were not supported by the record, 

and by failing to consider all the evidence in reaching its conclusions. 

1. DNA and Fingerprint Evidence

¶30 Based on the fact Defendant’s DNA and fingerprints were 

not found on the gun,5 while Radder’s DNA and partial print were found 

on the gun, the trial court concluded that, “[i]f the Defendant had fired the 

gun, he would have left DNA and fingerprint evidence on the gun itself.” 

¶31 This finding is not supported by the record. No witness, 

expert or otherwise, testified that touching an item always transfers, or is 

even likely to transfer, DNA or fingerprints. In fact, the State’s DNA 

 

5 The DNA on the magazine and grip contained a mixture of DNA; 

the DNA analyst was unable to determine the identity of the minor 

contributor. 
STATE v. FISCHER

Opinion of the Court

10

expert, Kathleen Press, testified that simply because a person touches an 

item does not mean a DNA transfer will occur. 

¶32 The court’s finding is in direct conflict with the evidence. 

Defendant admitted he touched the gun the evening before the shooting. 

Specifically, Defendant told the officers the gun belonged to him, and that 

when he arrived at Belinda’s house the evening before the shooting, he 

disassembled the weapon to hide it from the children. This occurred only 

hours before the shooting. 

¶33 The trial court also determined that Radder’s “[non-blood] 

DNA on the grip is evidence that he held the gun,“ “[non-blood] DNA on 

the hammer is evidence that he cocked the gun,” and “non-blood” DNA 

on the magazine is evidence that he reloaded the magazine after 

Defendant had removed it the night before. The trial court concluded that 

there was no other reasonable explanation for the presence of Radder’s 

“non-blood” DNA on the gun. 

¶34 This finding is based on the court’s conclusion that the 

source of Radder’s DNA on the gun was “non-blood DNA,” as opposed to 

DNA whose source is blood.6 The court appears to have concluded that 

because Radder’s “non-blood” DNA was on the gun, as opposed to 

Radder’s “blood DNA” from the gunshot wound, this shows Radder held 

the gun before he allegedly shot himself. 

¶35 Again, the court’s finding is not based on the record. No 

witness testified that Radder’s non-blood DNA was on the gun. To the 

contrary, there was a significant amount of blood from the gunshot 

wound on Radder’s hands and the gun. As a result, the State’s DNA 

expert testified that because blood is a source of DNA, it was not 

surprising to find Radder’s DNA on the gun. 

¶36 Amy Wilson, the State’s crime scene analyst, never testified 

there was non-blood DNA on the gun. More importantly, Press, the only 

DNA expert who testified at trial, stated that she did not test the swabs for 

 

6 According to the Sate’s expert, sources of DNA include blood, skin,

saliva, and semen. 
STATE v. FISCHER

Opinion of the Court

11

blood, and she did not know whether the source of the DNA was blood or 

non-blood DNA.7 

¶37 In sum, the trial court overstated the importance of the DNA 

and fingerprint evidence. This evidence only shows the obvious: Radder 

touched the gun. Given the fact the gun was in Radder’s hand when 

police arrived at the scene, this evidence is not particularly probative of 

Defendant’s guilt or innocence. 

2. Bloody Fingerprint

¶38 In its findings, the trial court did not consider the evidence

that Radder’s fingerprint on the trigger was a blood print. This evidence 

indicates that Radder’s print was transferred to the trigger after Radder 

was shot and started bleeding, supporting the State’s theory that 

Defendant placed the gun in Radder’s hand after the fatal shot. 

¶39 There is substantial evidence in the record showing that 

Radder’s bloody fingerprint was on the trigger. The parties and the trial 

court agree the partial print on the trigger was Radder’s fingerprint. 

Wilson, who collected and examined the print, was certain the print was 

made by blood. In addition, the print was not smudged, indicating that 

the thumb had not moved after the print was made. This was a relevant 

fact because the evidence indicated that if the wound was self-inflicted, 

Radder’s thumb may have moved, at least to some degree, on the trigger. 

¶40 The court seemed to discount this evidence because the print 

was never tested for blood. However, the evidence shows that Wilson is 

trained to collect biological evidence such as blood; therefore, it is 

reasonable to assume she can recognize blood when she sees it. Clearly, 

the trial court concluded that, at least for the purposes of collecting “nonblood DNA,” Wilson was able to recognize and avoid swabbing blood on 

the gun. See supra, ¶ 36 n.7. In addition, Wilson testified that it was the 

 

7 The court seemed to rely on the testimony of Wilson, who testified 

she tried to avoid swabbing visibly bloody areas on the gun. However, 

Wilson did swab some clearly bloody areas, such as one area on the 

magazine. Additionally, Press testified that she performed some 

preliminary chemical tests indicating the swabs did not contain blood. 

However, Press testified that these tests were not very sensitive for the 

presence of blood, and she did not perform the more sensitive DNA tests

to confirm whether or not the swabs contained blood. 
STATE v. FISCHER

Opinion of the Court

12

blood that created the print and made it visible; absent the blood, she 

would not have been able to locate and lift the print. 

3. Access to Gun

¶41 The trial court concluded the gun was equally available to 

“the Defendant, [Radder], and Belinda [Radder’s wife].” 

¶42 This finding is not supported by the record. Defendant told 

the police that when he arrived at Radder’s house, he disassembled the 

gun and put it in his bag to hide it from his grandchildren. There is no 

testimony that Radder saw the weapon or knew it was in the house prior 

to the shooting, or that Radder knew how to assemble the gun. Radder 

was unfamiliar with guns while Defendant, a retired police officer, clearly 

knew how to assemble and operate the gun. 

4. Gunshot Residue (GSR) 

¶43 The court reasoned that “the only evidence available to the 

jury to reconstruct the events surrounding Lee’s death consisted of the 

physical evidence from the scene as interpreted by the blood experts and 

the statements of the Defendant made prior to trial.” This is not correct. 

The State presented evidence showing that a particle of gunshot residue, 

or GSR, was found on Defendant’s shirt. Conversely, no gunshot residue 

was found on Radder. 

¶44 The court made several detailed findings concerning the 

presence of GSR on Defendant’s shirt. For example, the court concluded

the presence of GSR only means “that you either touched or were in the 

vicinity of a gunshot, but not that you shot a gun.” Likewise, the court 

stated that the blood on Radder’s hands may have cloaked any GSR that 

may have been located there. 

¶45 However, there is one inference noticeably absent from the

trial court’s findings: the GSR was on Defendant’s shirt because he shot 

Radder. Likewise, the absence of GSR on Radder is circumstantial 

evidence that he did not fire the gun. 

5. Defendant’s Statements

¶46 The court’s order referenceed several statements Defendant 

made to the police. After discussing these statements, the court concluded 

the statements “are not worthy of any significant weight.” 
STATE v. FISCHER

Opinion of the Court

13

¶47 The court, however, failed to weigh the incriminatory nature 

of Defendant’s statements. Defendant repeatedly told the police he was 

sleeping in the guest bedroom when Radder was shot. Based on the 

record, this statement is not true. The blood spatter evidence, discussed 

more fully below, establishes that Defendant was sitting next to Radder 

when he was shot. See infra, ¶¶ 54-56. The evidence was so clear on this 

issue that defense counsel conceded in his closing that Defendant was 

sitting next to Radder. 

¶48 While Defendant offered his intoxication8 and possible 

blackout as an explanation for this inconsistency, there is one reasonable 

inference the jury may have reached that is never mentioned by the trial 

court: Defendant lied to the police because he was guilty. It was error for 

the court to simply discard this inference as “not worthy of any significant 

weight.”9

6. Washing Hands

¶49 Defendant’s lack of candor with the police was further 

illustrated by the fact that he washed his hands even though the police 

told him not to do so. Based on this evidence, the jury could have 

reasonably concluded that by washing his hands, Defendant, a career 

police officer and practicing attorney, sought to eliminate any 

incriminating DNA or GSR evidence. However, the trial court did not 

weigh the incriminating nature of this evidence in its factual findings. 

7. Blood Spatter 

¶50 Three blood spatter experts testified at trial: Acosta and 

Griffin for the State, and Reeves for Defendant. Acosta opined, based on 

the blood spatter evidence, that Radder’s wound was not a self-inflicted 

gunshot wound, and the gun was placed in Radder’s hand after the 

 

8 The parties agreed that when the police arrived at Belinda’s 

residence shortly after 5:00 a.m., Defendant’s blood alcohol concentration 

was between .20 and .25. Detective Brooks testified that when he 

interviewed Defendant at the station between 9:30 and 10:00, Defendant 

was intoxicated but coherent and able to answer questions. 

9 In addition, when police asked Defendant “What do you feel 

happened,” Defendant responded twice with the same equivocal answer: 

“I don’t believe I shot him.” 
STATE v. FISCHER

Opinion of the Court

14

shooting. Reeves testified that Radder was killed by a self-inflicted 

gunshot wound, and there was no evidence the gun had been placed in 

Radder’s hand. Griffin testified that, based on Reeves’ theory as to how 

Radder was holding the gun, the source of the potential back spatter on 

Radder’s hands could not have been a self-inflicted gunshot wound. 

¶51 Ultimately, the trial court determined that Reeves was 

“highly credible,” Griffin was “credible” and Acosta was not credible. 

Based on this assessment, the trial court rejected Acosta’s opinions in their 

entirety, adopted all of Reeves’ opinions, and adopted those portions of 

Griffin’s testimony that were consistent with Reeves’ opinions. 

a. Undisputed Testimony

¶52 Despite the court’s rejection of Acosta’s testimony, there 

were some general areas of agreement between Reeves and Acosta. Both 

blood spatter experts, as well as the medical experts, agreed that the fatal 

gunshot occurred while Radder was sitting in a chair in the kitchen, and 

that after he suffered the gunshot wound, he slumped forward in his

chair. Acosta and Reeves disagreed as to how long Radder remained in 

the chair, but both agreed he remained in the chair bleeding from his 

wound for some period of time, causing the blood to drain down from his 

wound and form a small pool of blood on the floor near his chair.

10 

¶53 Acosta and Reeves agreed that at some point, Radder came 

to rest on the floor, where a larger pool of blood formed around his head 

and upper torso. Both experts agreed that Defendant walked in Radder’s 

blood after the shooting, leaving three “bloody” footprints at the scene. 

b. Defendant’s Pajamas 

¶54 Despite the trial court’s rejection of Acosta’s credibility, 

Acosta’s opinion regarding the blood spatter on Defendant’s pajamas and 

chair was uncontested. Acosta testified that based on the blood spatter on 

Defendant’s pajama pants and the corresponding void, or absence of 

blood, on the chair located directly next to Radder, Defendant was sitting 

next to Radder when the fatal shot was fired. Defense counsel conceded 

this fact in his closing argument. 

 

10 According to the medical experts, after the gunshot, Radder was 

unconscious and no longer capable of performing any voluntary 

movements, although he may have been capable of some involuntary 

movements. 
STATE v. FISCHER

Opinion of the Court

15

¶55 In considering this evidence, the court stated that “mere 

presence does not render one guilty of a crime,” and that Defendant’s 

presence in the chair next to Radder in conjunction with his statements to 

the police he was in the bedroom “does not mean Defendant fired the 

gun.” 

¶56 We agree this evidence is subject to differing interpretations. 

However, the trial court disregarded the incriminating nature of this 

evidence. Defendant was only a few feet away from Radder when he was 

shot, and he may well have been lying when he repeatedly told the police 

he was asleep in his bedroom at the time. 

c. State’s Theory

¶57 The trial court concluded “[t]he State’s case was predicated 

entirely on Det. Acosta’s theory that the Defendant manipulated the scene 

by picking up or dragging [Radder’s] body from his chair onto the floor.” 

In particular, the court found Acosta’s testimony regarding the location 

and direction of Defendant’s bloody footprints in support of this theory to 

be “wholly lacking in credibility.” 

¶58 The trial court inaccurately characterized the State’s theory. 

The State’s theory was not “entirely predicated” on how Radder ended up 

on the floor. The prosecutor conceded in his closing he did not know how 

Radder ended up on the floor. Acosta testified that it was only a theory, 

“just one of many possibilities,” and that he does not know how Radder 

ended up on the floor. Moreover, Acosta stated that the “bloody 

footprint” testimony was not meant to provide a step-by-step guide of 

Defendant’s movements at the scene. Rather, Acosta stressed the 

footprints showed that Defendant walked around Radder’s body after the 

gunshot, circumstantially indicating he was manipulating the scene. 

¶59 Nonetheless, the trial court assumed that every step 

Defendant made around Radder’s body had to be shown by a bloody 

footprint, and if Acosta was wrong about the location or direction of a 

footprint, this proves Acosta was not credible. This assumption placed far 

too much weight on the evidentiary value of the bloody footprints. Not 

every footstep made by Defendant at the scene would have been 

memorialized by a bloody footprint, because, as the experts testified, once 

Defendant stepped in Radder’s blood, as he walked around the house, the 

blood would have worn off the bottom of his foot. Perhaps more 

importantly, the court’s conclusion that Defendant never walked near 

Radder’s trunk or head area because there are no bloody footprints in 
STATE v. FISCHER

Opinion of the Court

16

these areas is contrary to the evidence. Indeed, when the police arrived 

Defendant was kneeling by Radder’s head, yet there was no trail of 

bloody footprints “proving” he was there. 

¶60 In addition, the trial court’s finding disregarded the fact, as 

discussed below, that a portion of Acosta’s testimony and all of Griffin’s 

testimony was focused on showing how the blood spatter on Radder’s 

hand could not have been made by a self-inflicted gunshot wound. See

infra, ¶¶ 63-66, 68-69, 71. The reason the State presented this testimony is 

clear from the record; the State’s case was not “entirely predicated” on 

how Radder ended up on the floor, but rather, the State tried to use the 

blood spatter evidence to prove Defendant shot Radder, then put the gun 

in Radder’s hand. 

d. Back Spatter

¶61 The court found Reeves’ testimony concerning the “high 

velocity back spatter on [Radder’s] hands,” in combination with his 

testimony concerning the blood spatter evidence on the gun, “compelling 

evidence of a self-inflicted gunshot wound.” 

¶62 Radder’s wound was a close range gunshot wound, 

meaning the gun was either touching or very close to his eye when he was 

shot. Reeves testified that Radder had a pattern of small blood stains on 

his hands that were consistent with the blood being blown back onto his

hands by a high velocity impact, such as a gunshot. Reeves opined that 

this pattern of high velocity back spatter was consistent with Radder 

holding the gun in his palms and pulling the trigger with his thumb. 

¶63 The court disregarded Acosta’s opinion that there was no 

high impact back spatter on Radder’s hands. However, it stated that 

Griffin was “credible in his conclusion that some high velocity back 

spatter was found on [Radder’s] hands, and that he could not rule out the 

possibility of a self-inflicted gunshot wound.” 

¶64 The court was not completely accurate in its characterization 

of Griffin’s testimony. Griffin testified there may have been evidence of 

back spatter on Radder’s hands, but he could not be sure it was back 

spatter. Griffin testified that other events, apart from back spatter from a 

gunshot, could have caused some of the subject blood spatter, including 

stains produced by coughing from a person’s mouth or expiating blood 

from the nose “where it’s under pressure,” a person landing in a pool of 

blood, or by “blood dripping into [a] pool of blood.” 
STATE v. FISCHER

Opinion of the Court

17

¶65 More importantly, Griffin testified that based on the grip 

proposed by Reeves, the “back spatter” did not line up with the wound 

path from Radder’s eye. Griffin stated that given the location and angle of 

the blood stains on Radder’s left and right hands, as well as certain stains 

on his wrist, if Radder was holding the gun with the grip proposed by 

Reeves, the alleged back spatter on Radder’s hands could not have come 

from the gunshot wound. He concluded, therefore, that some “event” 

other than the gunshot wound would have caused the “back spatter” on 

Radder’s hands. For example, Griffin stated that a person holding his 

hands in a defensive position near the gunshot wound could have 

produced the alleged back spatter stains. 

¶66 Finally, although Griffin could not rule out Reeves’ theory, 

he did not agree or even support it. What Griffin did state was that he 

could not rule out the “possibility” that, based on the back spatter, the 

wound was self-inflicted. However, the full context of Griffin’s testimony

was that even if Reeves was correct there was back spatter, he could not, 

based on the blood spatter evidence alone, rule out any cause of the back 

spatter. Griffin testified that in order to reach a conclusion on this issue, 

he would need additional information that he did not possess, such as the 

medical examiner’s report, the bullet trajectory, and information 

regarding the orientation of Radder’s chair and head at the time of the 

gunshot. 

e. Blood on Radder’s Hands and the Gun 

¶67 Both Acosta and Reeves offered testimony concerning 

whether the blood on Radder’s hands and the gun indicated the gunshot 

wound was a self-inflicted wound. 

¶68 Acosta testified that if Radder had shot himself, there would 

have been a void, or absence of blood, on his palms where he was 

gripping the gun; however, there was no such void. Reeves 

acknowledged there was some blood on Radder’s palms; however, he also 

noted there were some voids on his palms. Reeves explained the presence 

of blood on the palms as blood that was projected onto his palms from the 

gunshot and blood flow after the gunshot. Reeves also testified that a 

void of blood on Radder’s thumb next to the trigger guard showed that 

the spatter from the gunshot was blocked by the trigger while Radder was 

holding the gun.

¶69 In its findings, the trial court failed to consider Acosta’s

testimony concerning the blood drain patterns on Radder’s right hand. 
STATE v. FISCHER

Opinion of the Court

18

According to Acosta, the patterns show blood dripping downward from 

the gunshot wound to Radder’s fingers. Acosta testified, however, that 

there were no similar drain patterns on the gun. As a result, he opined 

that Radder’s hand was open and empty when the blood drained to his 

fingers. Otherwise, if the gun had been resting in Radder’s hand at the 

time of the gunshot, there would have (1) been drain marks on the gun 

and (2) the gun would have stopped the blood from draining down to his 

fingers. Acosta also noted that Radder’s fingers on the gun were curled 

up and around the grip. Yet, the blood flowed all the way down to 

Radder’s fingernails, which he testified was inconsistent with the gun 

being in Radder’s hand at the time of the gunshot, and more consistent 

with an empty hand hanging down towards the floor. 

¶70 Reeves disagreed with Acosta’s blood drain opinion, 

testifying that he observed damming of blood on Radder’s thumb by the 

trigger and trigger guard, indicating that the blood flowed from Radder’s

wound and was stopped by the gun while he was holding it in his hand. 

¶71 Acosta testified that a significant amount of coagulating 

blood was found on both sides of the gun, including the grip. According 

to Acosta, there should not have been such a large amount of blood on 

both sides of the grip if Defendant was holding the gun. In response to 

this testimony, Reeves stated that the source of the blood on the gun was 

blood projecting onto Radder’s hand from the gunshot, the fall from his 

chair, and the subsequent blood flow after he was on the floor. 

Additionally, Reeves testified that there was no evidence of wiping or 

swiping of the blood on Radder’s hand to show someone had placed the 

gun in his hand. 

¶72 While the trial court gave Acosta’s opinions little weight, the 

court never addressed some glaring questions regarding Reeves’ 

credibility. For example, Radder’s unsmeared, bloody fingerprint on the 

trigger tends to contradict Reeves’ opinion the gun was in Radder’s hand 

before the gunshot wound. See, supra, ¶¶ 38-39.

¶73 The trial court also failed to examine the implausibility of 

Reeves’ theory that Radder committed suicide by shooting himself in the 

eye. Forensic pathologist Dr. Keen testified about a study of suicides 

showing that less than one-half of one percent of suicides involves the 

victim shooting himself in the eye. 

¶74 Additionally, while Reeves’ proposed weapon grip was 

possible, and had been observed in other prior suicides, it was certainly 
STATE v. FISCHER

Opinion of the Court

19

“atypical.” Reeves himself testified that although he had read about such 

cases, in 25 years as a police officer and 38 years as a blood spatter expert, 

he had personally never seen a suicide victim hold a gun in this manner. 

Dr. Keen testified that he had performed 12,000 to 15,000 autopsies, and 

that approximately twelve to fifteen percent of those were on suicide 

victims; of those, less than ten involved a suicide victim holding a gun 

with his thumb on the trigger. 

¶75 In sum, the trial court appears to have overlooked or 

disregarded the fact that Reeves’ theory was based on the questionable 

assumption that Radder, a man with a known distaste for guns, chose to 

(1) shoot himself in the eye, the least common location for a suicide victim 

to shoot himself, and (2) hold the gun backwards in his hand, using his 

thumb to pull the trigger, an extremely rare and uncommon grip for 

suicide victims. 

CONCLUSION

¶76 The evidence in this case was circumstantial, and the 

testimony of the blood spatter experts conflicting. However, examining 

all the evidence in this case, we conclude the jury properly weighed the 

evidence, and its verdict was not a miscarriage of justice. 

¶77 There were only two possibilities explaining the death of 

Radder; he either committed suicide, or he was murdered by Defendant. 

On the one hand, the jury could have chosen to believe Radder committed 

suicide. If so, the jury would have to believe that Radder, a man who 

hated guns, somehow found Defendant’s gun, which was hidden in his 

bag, and assembled it, despite there being no evidence that he had any 

idea how to put the gun together. Next, Radder walked into the kitchen, 

sat down, and shot himself in the eye, the most unlikely of all locations for 

a suicide victim to shoot himself. And of course, all of this occurred while 

Defendant was sitting a few feet away, apparently doing nothing to stop 

Radder. 

¶78 The jury, however, rejected this explanation for Radder’s 

death, concluding that Defendant shot Radder. Was this conclusion 

against the weight of the evidence? Did the jury run so far amok in its 

consideration of the evidence that this conclusion was a miscarriage of 

justice? Defendant certainly had the means to shoot Radder; he had 

brought his gun and ammunition to Radder’s house. When the police 

arrived at the scene, Radder was lying on the floor with Defendant’s gun 

in his hand. Radder’s thumb was on the trigger, a most unusual position, 
STATE v. FISCHER

Opinion of the Court

20

even for a suicide victim. Then, almost immediately after the police arrive 

and tell Defendant not to wash his hands, Defendant, a seasoned police 

officer and practicing attorney, does so anyway, potentially removing any 

incriminating evidence. 

¶79 During questioning by the police, Defendant repeatedly lied

to them, stating he was asleep in the guest bedroom during the shooting. 

In fact, Defendant was sitting right next to Radder when he was shot. 

Defendant argued he was too intoxicated to remember the whole thing, 

even though the physical evidence shows he was slipping and walking 

around in Radder’s blood after the shooting. 

¶80 The physical evidence also shows that both sides of the gun 

are covered in Radder’s blood, and Radder’s unsmeared, bloody 

fingerprint is on the trigger. Of course, Radder would only have been able 

to place a bloody fingerprint on the trigger after he was shot, not before. 

There is also gunshot residue on Defendant’s shirt, indicating Defendant 

fired the gun; despite Defendant’s theory that Radder held the gun next to 

his eye, there is not one particle of gunshot residue found on Radder. 

Finally, no matter how Radder got from the chair to the floor, both Acosta 

and Griffin testified that based on the blood spatter evidence, Radder did 

not shoot himself with the gun. 

¶81 We are often quick to criticize juries, but more often than 

not, their verdicts are based on a remarkable combination of wisdom and 

common sense. It is little wonder that we have placed our trust in them 

for centuries, and that the right to a jury trial is fundamental to our 

system. Duncan v. Louisiana, 391 U.S. 145, 151-54 (1968). There are times 

when they are clearly wrong, and a judge has a duty to step in and vacate 

a verdict that is so contrary to the weight of the evidence it is a 

miscarriage of justice. However, that is not the case here.
STATE v. FISCHER

Opinion of the Court

21

¶82 Accordingly, we conclude the trial court abused its 

discretion in granting Defendant’s motion for new trial. We therefore 

reverse the order granting a new trial, reinstate the guilty verdict and 

remand for sentencing.