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State v. Roberts

Court of Appeals of Ohio, Ninth District, Wayne

December 18, 2017



          CRAIG T. WEINTRAUB, Attorney at Law, for Appellant.

          DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting Attorney, for Appellee.


          THOMAS A. TEODOSIO, Judge.

         {¶1} Appellant, William M. Roberts, appeals from his convictions in the Wayne County Court of Common Pleas. We affirm.


         {¶2} In January of 2014, Springfield police began investigating an adult male ("N.B.") regarding his attempt to lure a 12-year-old from Canada. The police executed a search warrant at N.B.'s home, discovered a large amount of child pornography, and arrested him for importuning and disseminating matter harmful to juveniles. N.B. is a convicted sex offender currently serving time in a federal penitentiary. The investigation of N.B. eventually led the police to conduct an interview with another man, Mr. Roberts. Wayne County Children Services soon became involved and interviewed Mr. Roberts' biological daughter ("E.R") and his ex-girlfriend's daughter ("B.S."). Although initially hesitant to disclose any wrongdoing by Mr. Roberts, both of the children eventually disclosed to various people that Mr. Roberts had sexually abused them.

         {¶3} Mr. Roberts was indicted on one count of gross sexual imposition related to E.R., four counts of rape related to B.S., and four counts of unlawful sexual conduct with a minor related to B.S. After a bench trial, Mr. Roberts was convicted of gross sexual imposition and four counts of unlawful sexual conduct with a minor. He was sentenced to an aggregate total of 25 years in prison.

         {¶4} Mr. Roberts now appeals from his convictions and raises five assignments of error for this Court's review.



         {¶5} In his first assignment of error, Mr. Roberts argues that: (1) the State did not timely provide discovery under Crim.R. 16(K), to wit: the name, qualifications, and written report of an expert witness; (2) the trial court erred by permitting the nurse to testify as an expert; and (3) the trial court erred when it failed to hold a Daubert hearing to determine the qualifications of the nurse to testify as an expert. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). We disagree with all propositions.

         Alleged Discovery Violations

         {¶6} "Crim.R. 16 governs discovery during criminal proceedings." State v. Buck, 9th Dist. Summit No. 27597, 2017-Ohio-273, ¶ 32, citing State ex rel Steckman v. Jackson, 70 Ohio St.3d 420, 428 (1994). When a discovery violation is alleged, the trial court "may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances." Crim.R. 16(L)(1). "A trial court must inquire into the circumstances surrounding a discovery rule violation and, when deciding whether to impose a sanction, must impose the least severe sanction that is consistent with the purpose of the rules of discovery." City of Lakewood v. Papadelis, 32 Ohio St.3d 1 (1987), paragraph two of the syllabus. Violations of Crim.R. 16 by the prosecutor constitute reversible error "'only when there is a showing that (1) the prosecution's failure to disclose was a willful violation of the rule, (2) foreknowledge of the information would have benefited the accused in the preparation of his defense, and (3) the accused suffered some prejudicial effect.'" State v. Halgrimson, 9th Dist. Lorain No. 99CA007389, 2000 Ohio App. LEXIS 5162, *7 (Nov. 8, 2000), quoting State v. Joseph, 73 Ohio St.3d 450, 458 (1995). Courts have broad discretion over discovery matters and appellate courts shall review a trial court's rulings on these matters for an abuse of discretion. State ex rel Duncan v. Middlefield, 120 Ohio St.3d 313, 2008-Ohio-6200, ¶ 27. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

         {¶7} Crim.R. 16(K) states:

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.

Crim.R. 16(K) prevents unfair surprise by providing notice and allowing the defense an opportunity to challenge the expert's findings, analysis, or qualifications, and possibly pursue support from an adverse expert who could discredit the opinion after carefully reviewing the written report. Buck at ¶ 33.

         {¶8} In the case sub judice, Mr. Roberts filed a discovery request on April 10, 2015. The State filed a response on May 2, 2015, which included a written report from Ms. Mary Anne Belanger, identifying her as a registered nurse ("RN") and a sexual assault nurse examiner ("SANE nurse") for adults, adolescents, and pediatrics. Mr. Roberts' trial was held almost one year later on April 18, 2016, and April 19, 2016. At trial, defense counsel objected to Ms. Belanger being allowed to testify. The prosecutor stated that Ms. Belanger's report was provided almost one year ago and contained a sufficient summary of her qualifications in compliance with Crim.R. 16(K) because it contained her signature, which explicitly identified her as an RN and a SANE nurse. Defense counsel conceded that he received the report almost one year before trial and was aware of who Ms. Belanger is, but argued that an expert's signature merely indicating she is an RN and a SANE nurse is an insufficient summary of qualifications under Crim.R. 16(K).

         {¶9} On April 12, 2016, six days before trial, the State filed an addendum to its discovery response that listed Ms. Belanger as a potential witness and included her address and curriculum vitae ("CV"). The prosecutor stated at trial that Ms. Belanger's CV "merely expand[ed] upon" the summary of qualifications provided a year ago. Mr. Roberts argued that notification of Ms. Belanger as a potential witness six days before trial violated Crim.R. 16. Crim.R. 16(I) states, in part, that "[e]ach party shall provide to opposing counsel a written witness list, including names and addresses of any witness it intends to call in its case-in-chief, or reasonably anticipates calling in rebuttal or surrebuttal." Notably, Crim.R. 16(I) does not explicitly provide a timeframe within which the witness list must be provided. See State v. Meyers, 11th Dist. Geauga Nos. 2015-G-0005, 2015-G-0006, & 2015-G-0007, 2015-Ohio-4238, ¶ 22. Defense counsel argued at trial that although he "was well aware of who Ms. Belanger is and [was] familiar with her work" and received her report "a long, long time ago, " he was not prepared for her testimony and "would want another expert to review [her] report and * * * interpret it * * *." Counsel did not request a continuance of the trial and instead stated, "[T]o say that the defense is required to help the State mitigate [its] error * * * is an inappropriate way to look at the law * * *."

         {¶10} The trial court reviewed Ms. Belanger's report and CV, inquired of the parties, and ultimately decided that no discovery violation had occurred. The court noted that Crim.R. 16(K) permits modification of the twenty-one day period to provide the written report and summary of qualifications for good cause shown if the parties are not prejudiced. The court further stated, "a lot of this curriculum vitae is just a list of all the talks she's given" and ultimately concluded, "I think the key point is the defense was provided with her report[, ] and to your point that you would have wanted an expert witness to review that, you had her report and what she was going to give an opinion on and I think that's the key, you know, for [close to one year]."

         {¶11} We cannot conclude that the trial court abused its discretion in finding no discovery violation here. Mr. Roberts was provided with Ms. Belanger's report, listing her as an RN and SANE nurse, almost an entire year before his trial, which allowed him ample opportunity to have another expert review and interpret it. Defense counsel was adamant that he did not want a continuance and instead chose to proceed and cross-examine Ms. Belanger at trial. Even assuming arguendo that the court had decided the prosecutor violated Crim.R. 16, it would not have been reversible error for the court to allow Ms. Belanger to testify because there is no evidence in the record that: (1) the prosecutor committed a willful violation, (2) foreknowledge of the information would have benefited Mr. Roberts in the preparation of his defense, and (3) Mr. Roberts suffered some prejudicial effect. See Halgrimson, 2000 Ohio App. LEXIS 5162, at *7.

         Ms. ...

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