Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Joseph V. Pagano.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Jeffrey Schnatter Assistant County
BEFORE: Jones, J., Keough, P.J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION
A. JONES, SR., J.
Defendant-appellant, Walter Harris ("Harris"),
appeals his convictions on multiple counts related to the
sexual assault of H.S. We affirm.
Procedural History and Facts
In 2015, Harris was charged with 28 counts as follows: nine
counts of rape, eight counts of kidnapping, six counts of
sexual battery, four counts of gross sexual imposition, and
one count of attempted rape. The counts were accompanied by
various repeat violent offender and sexual motivation
specifications. The date of Harris's offenses ranged from
March 1, 2012 to June 2014, and the victim was his
girlfriend's minor daughter.
The matter proceeded to trial in April 2016, but the jury was
unable to reach a verdict. The case proceeded to a second
jury trial in May 2016 on 27 counts because the state
dismissed one count of rape prior to the second trial. The
repeat violent offender and sexual motivation specifications
were tried to the court.
The following pertinent evidence was presented at trial.
Harris dated H.S.'s mother. H.S. did not have a stable
home life. At first, H.S. and her brother, "E.S., "
lived out of state with their mother. Because Harris lived in
Cleveland, H.S. would visit with her mother and brother on
the weekends. H.S. subsequently lived with her grandmother,
her mother in a homeless shelter, and finally with Harris and
Harris eventually became the legal guardian of H.S. and E.S.
H.S. testified that she thought of Harris as her
"father." From 2005 through 2012, H.S. lived with
Harris, E.S., and Joanna Wilcox ("Wilcox"), who was
dating Harris. Harris and Wilcox's relationship ended in
September 2012 and Wilcox moved out. H.S. and Wilcox remained
When H.S. was in the eighth grade, she discovered she was
attracted to girls. Harris found out and was mad. H.S.
testified that Harris first assaulted her when she was in the
eighth grade and after Harris found out she was gay. One
night, Harris called H.S. downstairs. According to H.S.,
there was a pornographic movie playing on the television,
depicting two females. Harris grabbed H.S.'s arm, threw
her down onto his bed, and touched her. H.S. testified that
although she did not want Harris to be touching her in that
way, she was frightened and did not feel that she was able to
H.S. testified that the next instance occurred toward the
beginning of her ninth grade school year. E.S. was at school
and H.S. was on the couch. Harris approached her with his
pants off and touched her. Again, H.S. was frightened but did
not feel like she could leave.
H.S. testified that after Wilcox moved out, Harris was
"lonely and wanted H.S. and E.S. to sleep in his
bedroom. The siblings slept on couch cushions on the bedroom
floor. During one of these nights, H.S. remembered she was at
a friend's house for the evening. She returned home, fell
asleep on the couch cushions, and woke up in Harris's bed
without pants. Harris touched her.
H.S. testified that eventually Harris's assaults
escalated to sexual intercourse. H.S. testified that one such
occurrence took place when she was in the tenth grade, before
Harris moved them from their house on East 64th Street to a
house on Homer Avenue. H.S. remembered she had been sleeping
on the couch because she was sick. During the night, she got
up to get a drink of water; when she returned, Harris was
sitting on the couch waiting for her. Harris told H.S. to
come to his bedroom, where he had sex with her.
The sexual abuse continued after they moved to the new house.
H.S. testified to another instance that occurred shortly
after the move, sometime between the Thanksgiving and
Christmas holidays. Harris called H.S. into his bedroom and
told her that they needed to "mess around." H.S.
testified that Harris grabbed her, took off her pants, turned
her around, and made her have sex with him.
According to H.S., the last time Harris assaulted her was
toward the end of 2014. She testified that Harris
continuously and repeatedly raped and sexually assaulted her
until the end of 2014 and would never wear a condom. Instead,
Harris bought H.S. the "morning after pill." The
state entered into evidence a receipt from Discount Drug
Mart, dated September 12, 2014, that detailed the purchase of
emergency contraceptive. The state also entered into evidence
video surveillance from September 12, 2014, at the same
Discount Drug Mart, that showed Harris making a purchase in
Veronique White, a Discount Drug Mart pharmacy technician,
testified that Harris was a regular customer at the pharmacy.
White stated that she personally sold Harris the emergency
contraceptive on two or three occasions, and that he told her
that he was buying the pills for his daughter.
According to H.S., Harris gave her these contraceptive pills
"too many times to count"; in fact, at one point
Harris told H.S. that she needed to go on birth control
because he was "tired" of buying her the expensive
pills. H.S. told Harris that she did not want to go on birth
control because she wanted to date only girls and wanted him
H.S. testified she was scared to tell anyone about Harris. At
one point, she asked E.S. what he would do if she told him
that someone was hurting her. Both H.S. and E.S. testified
that E.S. got angry and told H.S. that he would
"kill" anyone who hurt her. Because of this
response, H.S. decided not to tell her brother about Harris.
H.S. finally told her girlfriend, C.R., about Harris. H.S.
called C.R. after one instance of abuse. C.R. heard H.S.
crying on the phone and H.S. confided in C.R. about what
Harris had been doing to her. H.S. asked C.R. to keep the
abuse a secret, but C.R.'s mother found out and C.R. and
her mother reported the abuse to the police.
Cleveland Police Detective Alan Strickler was assigned to the
case. H.S. told the detective that the allegations were false
and to throw the case out. H.S. testified that she was scared
that if she divulged the abuse, E.S. would be placed in
H.S. then confided in Harris's former girlfriend, Wilcox.
Wilcox testified that H.S. texted her on October 15, 2014,
and asked if she would make H.S. tell if someone was hurting
her. Wilcox met with H.S. the next day. H.S. told Wilcox that
Harris was forcing her to have sex with him. Wilcox told H.S.
that she needed to tell someone right away but H.S. said she
did not want to go to the police because she was afraid of
Harris. According to Wilcox, H.S. thought people would
believe Harris over her and feared for her brother's
Towards the end of December 2014, Harris and H.S. got into an
argument over H.S.'s music. H.S. left the house and went
to stay with her girlfriend, C.R., without telling Harris
where she was going. H.S. called Wilcox and told her that she
was finally ready to go to the police and file a report.
Wilcox took H.S. to the police station.
Detective Cindy Bazilius ("Detective Bazilius")
interviewed H.S. Detective Bazilius testified that H.S.
indicated that the abuse had been going on for several years.
According to Detective Bazilius, when she interviews a child
victim that has been subjected to frequent abuse, she will
try to get the child to focus on a few detailed incidents,
rather than trying to remember every single incident. During
her interview, H.S. was able to relate specific incidents of
abuse to specific years in school and other major life
events, rather than specific dates.
The police secured a search warrant for Harris's house.
Detective Bazilius testified that she conducted the search
with the knowledge that it was important to look for old
towels and clothing in the home and particularly in
Harris's bedroom, because H.S. had stated that Harris
would often use towels and clothing to clean up after they
had sex. Forensic testing conducted on a blue towel taken
from the top of Harris's bedroom dresser contained
seminal material with a DNA profile that matched
Harris's. The police also took Harris's bedding into
evidence and forensic testing confirmed that the bedding
contained DNA from both Harris and H.S.
Cuyahoga County Department of Children and Family Services
social worker Hope Gula ("Gula") interviewed H.S.
Gula testified that in her experience as a social worker in
the sex abuse unit, child sex abuse victims often delay
disclosure of their abuse. Gula noted that it is common for
children to be mistaken about the time elements of the abuse,
especially when the abuse occurred frequently over a long
period of time. Gula testified that while interviewing H.S.,
H.S. disclosed to her certain behaviors that Harris possessed
that are typically known as "grooming behaviors" in
which the level of sexual activity he subjected H.S. to was
slowly increased. Gula explained that these activities were
consistent with her experience with other victims of sexual
The jury found Harris guilty on all counts and the sexual
motivation specifications. The court convicted Harris of the
repeat violent offender specifications, acquitted him of the
sexually violent offender specifications, and sentenced him
to a total of 11 years in prison.
Harris now appeals, raising the following six assignments of
error for our review:
I. The trial court erred by denying appellant's motion to
suppress evidence in violation of his fourth and fourteenth
amendment rights to the United States Constitution and
Article I, Section 14 of the Ohio Constitution.
II. Appellant's constitutional rights were violated
because social worker Gula was permitted to give expert
testimony in violation of Evid.R. 702 and testimony that