FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
WAYNE, OHIO CASE No. 2015 CRC-I 000094
T. WEINTRAUB, Attorney at Law, for Appellant.
R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant
Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
A. TEODOSIO, Judge.
Appellant, William M. Roberts, appeals from his convictions
in the Wayne County Court of Common Pleas. We affirm.
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.
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.
Mr. Roberts now appeals from his convictions and raises five
assignments of error for this Court's review.
OF ERROR ONE
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
"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
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.
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).
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 * * *."
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]."
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.