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Date: 06-09-2021
Case Style:
STATE OF OHIO -vs- TIMOTHY M. BLUE
Case Number: 2020AP080015
Judge: Patricia A. Delaney
Court: COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
Plaintiff's Attorney: RYAN STYER LINDSEY
TUSCARAWAS CO. PROSECUTOR
R. SCOTT DEEDRICK
Defendant's Attorney:
Description:
Canton, Ohio - Criminal defense attorney represented Timothy M. Blue with one count of gross sexual imposition; one count of rape; one count of sexual battery; one count of pandering obscenity involving a minor, one count of pandering obscenity involving a minor; one count of pandering sexually-oriented matter involving a minor charges.
{¶2} The following evidence is adduced from the record of appellant’s jury trial
which commenced on July 14, 2020.
Jane Doe discloses years of escalating sexual abuse
{¶3} This case arose on or around April 14, 2019, when Jane Doe disclosed to
her mother (“Mother”) that appellant, her biological father, systematically molested and
raped her on visitations, beginning when she was seven years old. The sexual assaults
were sometimes photographed and videotaped. Appellant also took nude photos of Doe
and photos of Doe engaged in sexual activity.
{¶4} Doe lives with Mother in a different city and county in Ohio than appellant.
At the time of the investigation, appellant lived in a trailer home in New Philadelphia and
also rented a single room in a house on Front Street. Prior to living in New Philadelphia,
appellant lived in various places in Mahoning and Trumbull Counties, including
Youngstown, Girard, and Hubbard.
{¶5} Mother and appellant had a brief relationship resulting in Mother’s
pregnancy with Doe. Doe first met appellant around age two and began voluntary
visitation with him around age six. Appellant obtained court-ordered visitation with Doe
around age seven. Appellant began molesting Doe almost immediately upon
commencement of visitation. Doe’s memories of the progressive acts of abuse were
associated with the various places where appellant lived and where visitations took place. [Cite as State v. Blue, 2021-Ohio-1703.]
{¶6} Doe testified that early court-ordered visitations took place at appellant’s
grandparents’ house in Girard, Ohio. Appellant began touching and molesting Doe during
these visits. Doe was frightened by the touching but did not disclose to anyone; she didn’t
remember if appellant specifically told her not to tell. Appellant’s grandparents walked in
on appellant molesting her once, but said nothing about the abuse in front of Doe. No one
stopped appellant from having visitation.
{¶7} Appellant next moved to Youngstown and the molestation continued,
progressing to forced oral sex. Doe was around age nine. Doe testified the molestation
and rapes occurred on most visits; appellant would “just tell her to do it;” and appellant
climaxed during the abuse. Doe did not recall appellant threatening her to keep the abuse
secret; appellant told her he would go to jail and “bad things would happen to him” if
anyone found out.
{¶8} Appellant then moved across town in Youngstown, and the touching and
oral sex continued.
{¶9} Appellant next moved to a residence in Boardman and lived there alone.
Doe was now around ten years old. The abuse progressed to penetrative vaginal
intercourse. Doe recalled the first time this happened, and that she was scared. Doe did
not disclose the abuse, which continued upon every visitation.
{¶10} Appellant then moved to a different residence in Youngstown, and lived
there with someone else. Doe was around ten or eleven years old. The abuse continued
with touching, oral, and vaginal sex. Doe testified appellant provided her with alcohol and
marijuana during visitations. [Cite as State v. Blue, 2021-Ohio-1703.]
{¶11} Appellant then moved in with his father in New Philadelphia. Doe testified
this was around 2016-2017, when she was twelve or thirteen years old. The abuse now
included touching, oral, vaginal, and anal intercourse. Doe testified the latter hurt and
scared her, although she did not disclose the abuse and visitation continued. She recalled
appellant telling her that he would go to jail if she told anyone.
{¶12} Appellant then moved into a house trailer in New Philadelphia with a woman
named Kayla. Doe testified the abuse continued “occasionally” at the trailer while she
was around age fourteen.
{¶13} Finally, appellant obtained a room in a rundown house on Front Street in
New Philadelphia, although his residence ostensibly remained Kayla’s trailer. Appellant’s
“room” is the house’s living room, walled off with blankets for privacy. It contains a bed
and a chest of drawers. The house is owned by Ed Hall, who lives in the basement.
Other people come and go from the house occasionally.
{¶14} During recent visitations, Doe stayed with appellant in the room on Front
Street. This location is where the abuse became more “aggressive,” as Doe described it.
During sex acts, appellant tied Doe up, choked her, and hit her with a wooden spoon,
raising welts on her skin. Appellant used what were described at trial as “sexual devices”
including a ball gag, ropes, lingerie, a dildo, and a vibrator. Appellant took photos of the
abuse and videotaped it. Further, Doe testified people viewed the sex abuse online as it
occurred. Doe testified that no one else participated in the abuse.
{¶15} Appellee presented Doe with a number of sexually-explicit photographs and
asked her to identify them. The photos were of Doe nude and engaged in sexual acts,
sometimes with appellant, whose face was obscured. Doe also identified a video of [Cite as State v. Blue, 2021-Ohio-1703.]
appellant having vaginal intercourse with her. Appellee presented Doe with evidence
found by police at the Front Street address, including a ball gag, dildo, vibrator, ropes,
and lingerie. Doe identified these items as those used during the abuse.
{¶16} Around December 2018, Doe told a friend that she was being abused. She
was frightened because the abuse was becoming violent and aggressive and she didn’t
know what might happen next. She also refused to go to visitation with appellant.
{¶17} Doe disclosed the sexual abuse to her mother on April 14, 2019. At that
point, appellant and Mother were engaged in a court battle over visitation. Mother testified
that appellant had always been extremely cooperative about visitation, always showing
up for visits, arranging extra visits, etc. Several incidents occurred, however, which led
Mother to suspect sexual abuse. Doe began to refuse to go with appellant for visitation.
In March 2019, appellant showed up at Mother’s residence with a police officer, who told
Mother she could be cited for contempt if she didn’t allow Doe to attend visitation. Doe
didn’t want to go and Mother refused to make her go, despite the threat of contempt.
{¶18} Escalating tensions, Doe’s resistance to visitation, Doe’s behavior “acting
out” and her increasing psychological problems led Mother to seek counseling for her.
Doe was specifically questioned about potential sexual abuse at two different counseling
facilities and she denied abuse was occurring. Doe also met with guardian ad litem
several times over the course of the parties’ custody and visitation litigation and did not
disclose the sexual abuse.
{¶19} The day after Doe’s disclosure, Mother brought her to the New Philadelphia
Police Department. Detective Scott Nelson started an investigation. Doe described the
Front Street room to Nelson and told him where he could find pertinent evidence. Nelson [Cite as State v. Blue, 2021-Ohio-1703.]
went to the room and photographed it with Ed Hall’s permission, then obtained a search
warrant. Nelson found a bag containing the “sexual devices” described by Doe and
submitted them to the BCI crime lab. A forensic scientist testified DNA consistent with
appellant and Doe was found on the dildo, ball gag, and ropes. Nelson also found a
“Coolpad” cell phone described by Doe as the device used to take the photos and videos
of the abuse. Chief Todd Beeman of the Dennison Police Department used software to
extract the contents of the phone after Nelson obtained a search warrant. Doe provided
the passcode, which was appellant’s birthday. Nelson observed the photos and videos
described by Doe.
{¶20} Appellee presented the photos, videotape, “sexual devices,” and DNA
results as evidence in its case in chief.
Defense case: Doe didn’t disclose and denied abuse in the past
{¶21} Appellant called two defense witnesses at trial: the guardian ad litem and
one of Doe’s counselors from a psychiatric facility. Both witnesses testified Doe had
opportunities to disclose the sexual abuse to them and did not do so.
Indictment, trial, conviction and sentence
{¶22} Appellant was charged by indictment with one count of gross sexual
imposition pursuant to R.C. 2907.05(A)(4) and 2907.05(C)(2), a felony of the third degree
[Count I]; one count of rape pursuant to R.C. 2907.02(A)(1)(b) and 2907.02(B), a felony
of the first degree [Count II]; one count of sexual battery pursuant to R.C. 2907.03(A)(5)
and 2907.03(B), a felony of the third degree [Count III]; one count of pandering obscenity
involving a minor pursuant to R.C. 2907.321(A)(1) and 2907.321(C), a felony of the
second degree [Count IV]; one count of pandering obscenity involving a minor pursuant [Cite as State v. Blue, 2021-Ohio-1703.]
to R.C. 2907.321(A)(5) and 2907.321(C), a felony of the fourth degree [Count V]; one
count of pandering sexually-oriented matter involving a minor pursuant to R.C.
2907.322(A)(1) and 2907.322(C), a felony of the second degree [Count VI]; and one count
of pandering sexually-oriented matter involving a minor pursuant to R.C. 2907.322(A)(5)
and 2907.322(C), a felony of the fourth degree [Count VII].
{¶23} Appellant entered pleas of not guilty and filed a number of pretrial motions
which are not relevant to the issues in the instant appeal. Appellee also filed several
motions in limine.
Proposed testimony of Dr. Robin Tener regarding nondisclosure by child victims
of sexual abuse
{¶24} Relevant to the instant appeal, on July 1, 2020, appellant filed a Motion to
Exclude proposed expert testimony of Dr. Robin Tener on the basis of Crim.R. 16(K)
because appellee did not provide a written report from the expert within 21 days of trial.
Appellant also argued that pursuant to Evid.R. 702, there is no information Dr. Tener
could provide beyond the scope of a layperson because she did not interview the alleged
victim or otherwise play any role in the case.
{¶25} On July 8, 2020, appellee responded with a memorandum in opposition,
noting defense trial counsel was notified on December 18, 2019 that Dr. Tener would be
called as an expert witness for appellee at trial and provided with Dr. Tener’s detailed
C.V. On June 17, 2019, 28 days before trial, appellee provided counsel with a
“Supplemental Response to Request for Discovery” containing, e.g., a letter from Dr.
Tener, appellee’s expert witness. Tener’s letter is attached to appellee’s memorandum
and states in pertinent part:
* * * *. [Cite as State v. Blue, 2021-Ohio-1703.]
Regarding the scope of my testimony, I expect to discuss a
number of issues pertinent to this case, including, but not limited to,
the following topics: (1) Delayed disclosure of sexual abuse by child
victims and the wide variety of circumstances that contribute to a
victim’s denial of abuse. (2) Young children’s perceptions of adult
offender behavior when the offender is a trusted adult. (3) The
manner in which the relationship between a victim and an offender
can manipulate a child’s recognition of the wrongful nature of sexual
contact between a child and a trusted adult. (4) Family dynamics
that can contribute to confusion regarding family member roles,
parent-child loyalty conflicts and distorted parent-child relationships.
(5) The way in which issues 2-4 may impact a child’s
ability/willingness to provide a disclosure, versus deny that abuse is
occurring when it actually is.
* * * *.
{¶26} Upon receipt of appellant’s motion to exclude Tener’s testimony, appellee
also offered a telephone conference with Tener to discuss her expected testimony.
Appellee therefore argued that an “expert report” within the meaning of Crim.R. 16(K) had
been provided.
{¶27} On July 9, 2020, appellant filed a second “Memorandum Contra Testimony
of Potential Expert Witness” arguing that Tener’s letter cited supra is not an expert report
pursuant to Crim.R. 16(K) and even if it is, testimony outside of the topics mentioned in
the letter are prohibited by State v. Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153 [Cite as State v. Blue, 2021-Ohio-1703.]
N.E.3d 44, reconsideration denied, 159 Ohio St.3d 1438, 2020-Ohio-3634, 148 N.E.3d
586.
{¶28} The trial court overruled appellant’s motion to exclude Tener’s testimony on
July 14, 2020.
{¶29} The matter proceeded to trial by jury.
Dr. Tener’s testimony at trial
{¶30} Appellee presented, e.g., the testimony of Dr. Tener over appellant’s
continuing objection. Tener testified as an expert witness, specifically, a clinical
psychologist specializing in children, adolescents, and families. She has received specific
training in treatment of minor victims of sexual abuse, a field that has evolved over the
length of her career. Tener was not compensated for her testimony but was paid for her
time out of her office.
{¶31} In the instant case, Tener testified she never met Doe personally; she was
not the assessing clinician, did not write a report specific to Doe’s issues, and did not
review any records pertinent to Doe. She was aware of Doe’s age, her relationship with
appellant, the failure to disclose over many years, and the denials of abuse followed by a
disclosure of abuse. She had no contact with Doe and appellee did not request specific
conclusions or opinions so that Tener could strictly limit her testimony to general
educational commentary about children and sexual abuse.
{¶32} Tener testified it is not unusual for a child to fail to disclose sexual abuse.
Depending upon the child’s age, he or she may not recognize the sexual activity as
“abuse.” Typically, offenders have a relationship with the victim and do not frighten or
distress the child victim in an extreme way. Children do not have “body boundaries” with [Cite as State v. Blue, 2021-Ohio-1703.]
adults, making it easy for an offender to acclimate a young child to touching which
progressively becomes more serious. Upsetting the child is not in the offender’s best
interest, and to secure secrecy, the offender will typically start at a relatively “low level” of
abuse.
{¶33} As the child becomes older, the offender has a stronger need for secrecy;
the offender may tell the child to keep the abuse secret, or lead the child to believe the
acts are part of the child’s “special relationship” with the offender which no one else would
understand. The offender may tell the child that something bad will happen to the offender
if the child tells anyone.
{¶34} Tener pointed out that if the abuser is a parent or other close relative, there
is an additional dynamic to consider because the child’s relationship with that person is
not entirely abusive; there are positive aspects of a “normal” relationship as well, which
the child wants to preserve. As the child grows older, he or she will recognize that the
abusive acts are wrong, but once the child is capable of recognizing that the abuse
shouldn’t be happening, the child may have been involved in touching the perpetrator.
The child feels culpable now and doesn’t realize they’re being manipulated by the adult
offender.
{¶35} Tener testified that children have a lot of fear surrounding abusive
relationships, and the fear is not necessarily premised upon explicit threats. Most
offenders don’t have to resort to threats because they can manipulate their relationship
with the victim, providing advantages such as gifts and privileges. Children also realize
they don’t want to lose the relationship with the offender or the offender’s extended family,
and realize disclosure means the likely loss of those relationships. [Cite as State v. Blue, 2021-Ohio-1703.]
{¶36} Reasons for failure to disclose become more complex and layered as the
victim grows older. Older children worry how they will be viewed by their peers and
perceive a social cost to disclosure. The child realizes the abuse is inappropriate but the
relationship with the offender has grown and the child feels loyalty to the offender. Older
children begin to worry about pregnancy. The abuse may become more deviant over
time, leading to confusion and fear on the part of the victim, who may have felt physical
pleasure at some point and adds to the victim’s worry and hesitation to disclose.
{¶37} Tener testified that child victims are often in a quandary for a long time,
afraid for the abuse to continue but conflicted about disclosure and the consequences.
The child may feel they are treated as an adult by the offender, almost in a “girlfriend”
type of role. The offender might provide alcohol or drugs, and use those as an incentive
to maintain the victim’s silence. The child does not have the self-awareness to recognize
the offender’s manipulation.
{¶38} The psychological pressures on the victim can extend to the victim denying
abuse is taking place, if questioned directly. The child wants to protect the offender and
tolerates the abuse to maintain the relationship.
{¶39} When asked why a child under these circumstances might eventually
disclose the abuse, Tener opined that if the abuse has become more serious, or more
painful for the victim, or is bizarre in a way that scares them, they might tell. The
relationship with the offender might give way to jealousy of friends and the child victim
realizes he or she cannot have normal relationships with peers because the offender
interferes. The offender will likely be threatened by the victim’s other relationships and
may become possessive, insinuating himself into the victim’s other relationships. [Cite as State v. Blue, 2021-Ohio-1703.]
{¶40} Tener explained that upon disclosure, the child may exhibit a range of
reactions. The child might be very emotional, or very blank and closed-off. The child
might be angry. Sometimes the child’s manner during a disclosure depends upon how
many times they’ve told the story of the abuse. The longer the abuse has gone on, and
the more acclimated the child is to it, the child may act as though the abusive behavior
was a routine part of the relationship.
{¶41} Tener also testified to the psychological ramifications of child sexual abuse.
The child has been in a secret, coercive relationship and feels guilty. It is not uncommon
for a victim to experience anxiety, stress, and depression, or to have low self-esteem, or
resentment and anger over the realization that this doesn’t happen to all children. Older
children might cut themselves or self-harm, have academic problems and problems with
concentration. The minor victim might be sexualized beyond the age of their peer group,
and exhibit inappropriate sexual interest and knowledge. The child may be acclimated to
being viewed in a sexual way, and might be sexually aggressive with others, as he or she
realizes they are now in control of a sexual feeling. Other children become very phobic
about sex.
{¶42} Upon cross-examination, Tener testified that it is possible in a high-conflict
family for false allegations of sexual abuse to be made, but in her experience, false
allegations of sexual abuse are not typical. Red flags for false allegations arise when a
child can’t provide details of the abuse and tries to fill in details from a child’s point of
view. If the child has been coached, the story will change and the child won’t be able to
provide a narrative of how, when, and where the abuse occurred. A child who fabricates
abuse is unlikely to keep the story straight over time. [Cite as State v. Blue, 2021-Ohio-1703.]
{¶43} Tener also pointed out that if a child has been abused over a long period of
time, with many instances of abuse, the child may have difficulty recalling individual
events because multiple episodes blend together. It is not uncommon, therefore, for a
child victim to be unable to parse specific dates of the abuse.
Appellant found guilty and Crim.R. 29(A) reconsidered
{¶44} Appellant made a motion for a judgment of acquittal pursuant to Crim.R.
29(A). The trial court overruled the motion and appellant was found guilty as charged.
{¶45} After trial, the trial court reconsidered its judgment upon the motion for
acquittal as to Count I only and reversed its decision, finding appellee failed to prove that
the acts charged in Count I occurred in Tuscarawas County, Ohio between the dates
alleged. The trial court thereupon imposed an aggregate sentence of an indefinite term
of ten years minimum to life in prison upon Counts II through VII. The trial court further
found that appellant’s convictions upon Counts V, VI and VII were allied offenses which
merged with Count IV for purposes of sentencing.
{¶46} Appellant now appeals from the July 21, 2020 judgment entry of convictions
and sentence.
{¶47} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶48} “THE TRIAL COURT COMMITTED A FATAL ERROR WHEN IT
PERMITTED THE TESTIMONY OF EXPERT WITNESS DR. ROBIN TENER.”
ANALYSIS
{¶49} Appellant argues his conviction must be overturned and a new trial granted
because the trial court permitted the expert testimony of Dr. Robin Tener. We disagree. [Cite as State v. Blue, 2021-Ohio-1703.]
{¶50} An appellate court's standard of review on evidentiary and discovery
matters is an abuse of discretion. State v. Kopchak, 5th Dist. Muskingum No. CT2017-
0036, 2018-Ohio-1136, ¶ 15, citing State v. Elliott, 5th Dist. Tuscarawas No.
2007AP070044, 2008–Ohio–5673, ¶ 23. An abuse of discretion is more than an error of
law and implies that the trial court acted “unreasonably, arbitrarily or unconscionably.”
Blackmore v. Blackmore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶51} In 2010, Ohio Crim.R. 16 was amended to include the enactment of Crim.R.
16(K). This section required for the first time that experts generate written reports and
that those reports be disclosed to the opposing party 21 days before trial. State v.
Bellamy, 5th Dist. Delaware No. 19 CAA 08 0048, 2021-Ohio-40, ¶ 28. Ohio Crim. R.
16(K) provides:
An expert witness for either side shall prepare a written report
summarizing the expert witness’s testimony, findings, analysis,
conclusions, or opinion, and shall include a summary of the expert’s
qualifications. The written report and summary of qualifications shall
be subject to disclosure under this rule no later than twenty-one days
prior to trial, which period may be modified by the court for good
cause shown, which does not prejudice any other party. Failure to
disclose the written report to opposing counsel shall preclude the
expert’s testimony at trial.
{¶52} The underlying purpose of Crim.R.16(K) is stated in the Staff Notes as
follows: “Failure to comply with the rule precludes the expert witness from testifying during
trial. This prevents either party from avoiding pretrial disclosure of the substance of expert [Cite as State v. Blue, 2021-Ohio-1703.]
witness's testimony by not requesting a written report from the expert, or not seeking
introduction of a report.” Crim.R. 16(K) is thus designed to avoid “trial-by-ambush”
scenarios. See State v. Walls, 2018-Ohio-329, 104 N.E.3d 280, ¶ 39 (6th Dist.) [error to
allow doctor's expert testimony when testimony exceeded scope of report]. When the
prosecution timely provides a Crim.R. 16(K) report to the defense, undue surprise is
eliminated and the defense may challenge the expert’s findings, conclusions, or
qualifications, and/or obtain their own expert. See, State v. Hall, 1st Dist. Hamilton No.
C-170699, 2019-Ohio-2985, ¶ 11, appeal not allowed, 157 Ohio St.3d 1485, 2019-Ohio4600, 134 N.E.3d 204.
{¶53} In the instant case, appellant first argues that the letter provided by Dr.
Tener is not a “report” timely provided within the meaning of Crim.R. 16(K). We disagree.
First, we find the letter was timely provided to the defense. Tener’s letter was attached
to appellee’s “Memorandum in Opposition to Defendant’s Motion in Limine to Exclude
Expert” filed July 8, 2019, and appellee maintained the letter was first provided to
appellant in the discovery response filed June 17, 2019--28 days before trial.1
{¶54} We find the letter was an “expert report” within the meaning of the Rule
because it succinctly summarizes Tener’s expected testimony and her “findings, analysis,
conclusions, or opinion” regarding her knowledge of nondisclosure and denial by victims
of childhood sexual abuse. Upon the initial disclosure of Tener’s name and qualifications,
appellee consistently represented that Tener would testify to generalities only; she did not
meet Jane Doe in person or counsel her; she did not read any reports in the case; and
1 Appellant has not argued that appellee failed to timely disclose Dr. Tener’s qualifications
and the record indicates her C.V. was provided to the defense on December 18, 2019. [Cite as State v. Blue, 2021-Ohio-1703.]
knew only Doe’s age and relationship to appellant. The trial court ruled that Tener could
not offer an opinion concluding why Jane Doe specifically did not disclose in this case. T.
July 13, 2020, 55. We find Tener’s testimony is entirely consistent with the parameters
described in the letter and that Tener did not violate the limitations set by the trial court.
{¶55} The underlying purpose of Crim.R. 16(K) is fully satisfied in this case. The
identification of Tener as an expert witness was made six months prior to trial; the scope
of her expected testimony was timely provided via the letter; and the parties exhaustively
argued about the scope of the potential testimony in advance of trial. Appellant cannot
claim to have been ambushed by the limited scope of Tener’s testimony.
{¶56} Even if we were to conclude that Tener’s letter was not a 16(K) “expert
report,” other courts “have found that there is adequate compliance with the requirement
to produce an expert report where other evidence reflecting the expert's testimony has
been provided to the opposing party.” State v. Allenbaugh, 11th Dist. No. 2019-A-0017,
2020-Ohio-68, 151 N.E.3d 50, ¶ 36, appeal not allowed, 159 Ohio St.3d 1464, 2020-Ohio3882, 150 N.E.3d 118, citing State v. Fetty, 11th Dist. Portage No. 2011-P-0091, 2012-
Ohio-6127 [medical records in lieu of expert report adequately provided requesting party
with necessary information]; State v. Rich, 12th Dist. Butler No. CA2012-03-044, 2013-
Ohio-857, 2013 WL 939539, [detective’s evidence submission form containing summary
of findings and conclusions adequate in lieu of “expert report”]. We conclude that the
letter provided to appellant satisfies appellee’s obligations to provide an expert report
pursuant to Crim.R. 16(K).
{¶57} We are mindful that “common sense should not be ignored when there has
been clear compliance with the purpose of Crim.R. 16(K), which is to eliminate unfair [Cite as State v. Blue, 2021-Ohio-1703.]
surprise at trial by requiring advance disclosure of an expert's qualifications and opinions
so that opposing counsel has sufficient time to prepare for cross-examination, retain a
rebuttal expert, and seek court intervention if there is reason to believe that the
disclosures are inadequate.” State v. Walls, 2018-Ohio-329, 104 N.E.3d 280, ¶ 36 (6th
Dist). In the instant case, appellee’s disclosures regarding Tener’s qualifications and
expected testimony are adequate.
{¶58} Appellant further argues the trial court’s decision to permit Tener’s expert
testimony violates the Supreme Court of Ohio's decision in State v. Boaston, 160 Ohio
St.3d 46, 2020-Ohio-1061, 153 N.E.3d 44. The Boaston court found Crim.R. 16(K) limits
the trial court's discretion regarding expert reports and provides a specific remedy for
violation of the rule: exclusion of the expert’s testimony. Boaston, ¶ 54.
{¶59} We agree with the trial court that Boaston has limited application to the
instant case. T. July 13, 2020, 53. The issue in Boaston arose regarding a supplement
to a coroner's report which the state did not disclose within the time constraints of Crim.R.
16(K). The supplemental report was significant because it included the coroner's timeof-death opinion and an opinion that a distinctly-shaped abrasion on the deceased victim's
chin was consistent with a glove belonging to Boaston. Defense counsel met with the
coroner 19 days before trial, discovered this information, and suggested the state needed
to provide the supplemental coroner's report, but the state did not do so. Boaston, ¶40-
41.
{¶60} Although the Court found the state’s failure to provide the supplement
violated Crim.R. 16(K), the Boaston Court further found that a harmless-error analysis is
required. Crim.R. 52(A) provides: “Any error, defect, irregularity, or variance which does [Cite as State v. Blue, 2021-Ohio-1703.]
not affect substantial rights shall be disregarded.” A harmless-error inquiry requires the
state to prove the error did not affect the substantial rights of the defendant. State v. Perry,
101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15. The Boaston Court set forth
a three-part harmless-error analysis:
First, it must be determined whether the defendant was
prejudiced by the error, i.e., whether the error had an impact on the
verdict. [State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24
N.E.3d 1153] at ¶ 25 and 27. Second, it must be determined whether
the error was not harmless beyond a reasonable doubt. Id. at ¶ 28.
Lastly, once the prejudicial evidence is excised, the remaining
evidence is weighed to determine whether it establishes the
defendant's guilt beyond a reasonable doubt. Id. at ¶ 29, 33.
State v. Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153
N.E.3d 44, ¶ 63.
{¶61} In the instant case, we have found no violation of Crim.R. 16(K). Even if we
found the trial court erred in admitting Tener’s testimony, however, appellant was not
prejudiced by the error; the error was harmless beyond a reasonable doubt; and the
remaining evidence established appellant’s guilt beyond a reasonable doubt. Boaston,
supra, ¶ 63.
{¶62} Tener’s testimony was not vital to appellee’s case. See, State v. Bellamy,
5th Dist. Delaware No. 19 CAA 08 0048, 2021-Ohio-40, ¶ 44. Jane Doe explained why
she didn’t disclose the abuse earlier and why she denied sexual abuse when directly
questioned: she was afraid of the potential consequences for appellant. Appellant told [Cite as State v. Blue, 2021-Ohio-1703.]
her bad things would happen to him in jail if anyone found out. There was no need to
bolster Jane Doe’s credibility because of the horrific nature of appellee’s documentary
evidence: the testimony was corroborated by photos and video of the abuse. Doe’s
testimony was further corroborated by Detective Nelson, who found the “sexual devices”
as described in appellant’s rented room where Doe said they would be. Her testimony
was further corroborated by the D.N.A. results finding a mixture of her and appellant’s
D.N.A. on the items.
{¶63} Even if we were to conclude appellee failed to comply with Crim.R. 16(K),
appellant was not prejudiced and any error in admitting Tener’s testimony was harmless
beyond a reasonable doubt. Bellamy, supra, 5th Dist. Delaware No. 19 CAA 08 0048,
2021-Ohio-40, ¶ 44. If we excise Tener's testimony, the case does not rest entirely on
the testimony of Jane Doe. Id., ¶ 45. After a thorough review of the record, we are
convinced the remaining evidence establishes appellant's guilt beyond a reasonable
doubt. Id.
{¶64} Appellant’s sole assignment of error is overruled. [Cite as State v. Blue, 2021-Ohio-1703.]
Outcome: Appellant’s sole assignment of error is overruled and the judgment of the
Tuscarawas County Court of Common Pleas is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: