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State v. Hall

Court of Appeals of Ohio, First District, Hamilton

July 24, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
RANDY HALL, Defendant-Appellant.

          Criminal Appeal From: Hamilton County Court of Common Pleas No. B-1607043

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant.

          OPINION

          BERGERON, JUDGE.

         {¶1} The state secured these criminal convictions by the thinnest of margins-indeed, of the 12 counts of the indictment that proceeded to trial, the trial court granted a Crim.R. 29 acquittal on five counts, the jury returned a defense verdict on two, and the state now concedes that the evidence does not support an additional count. The trial also hinged on a credibility battle between the defendant and his accusers. In light of that backdrop, we find that two interrelated errors deprived the defendant of a fair trial. First, the state belatedly sprung an expert witness on the defense at trial without providing an expert report as mandated by Crim.R. 16(K). And second, the prosecutor engaged in pervasive misconduct during closing argument, demonizing the defendant as a "wolf and "predator," and repeatedly vouching for the credibility of the accusers. Based on these errors, we reverse the convictions and remand for a new trial on the remaining four counts.

         I.

         {¶2} In the summer of 2016, Randy Hall was living with his girlfriend, Meleaka Porter, in an apartment on Harrison Avenue. Crammed into the apartment with the couple were Ms. Porter's six children, her mother, and Mr. Hall's biological daughter, H.H. A few doors down lived neighbor Chorquance Brown with her children, including daughter J.C. The two families had amicable relations, with Ms. Brown's daughter J.C. spending a fair amount of time with Ms. Porter's daughter, T.R. Mr. Hall would frequent the Brown residence, play basketball with Ms. Brown's older sons, and referred to Ms. Brown as "Mom."

         {¶3} Things took a darker turn, however, when in August 2016 Ms. Brown's daughter, J.C, came forward with allegations of sexual abuse by Mr. Hall. Detective Jane Noel, a veteran detective, led the investigation into these allegations. In the midst of the investigation process, other reports of abuse surfaced from both Ms. Porter's daughter, T.R., and Mr. Hall's daughter, H.H. These allegations culminated in an indictment of Mr. Hall on 12 counts of either rape or gross sexual imposition ("GSI") regarding J.C., T.R., and H.H.

         {¶4} Due to the absence of physical evidence, the trial focused upon testimony by the victims and persons involved with the investigation. All three victims, J.C., T.R., and H.H. testified. Also called to testify was Detective Noel regarding her investigation and experience with child-sexual-abuse investigations. Additionally, Dr. Kathy Makaroff, a child-abuse pediatrician who works with the Mayerson Center for Safe and Healthy Children evaluating children suspected of physical or sexual abuse, testified as an expert medical witness for the state.

         {¶5} Mr. Hall took the stand in his own defense, where he theorized that T.R. and H.H. were engaged in a conspiracy instigated by another of Ms. Porter's daughters, who had recanted her accusations against Mr. Hall before trial. To explain J.C.'s accusations, he posited that she was retaliating after he had told her to stay away from H.H. because of an altercation between the two girls.

         {¶6} At the close of the state's evidence and pursuant to Crim.R. 29(A), the defense moved for acquittal based on insufficient evidence as to counts six, seven, eight, and nine of the indictment (counts relating to rape of T.R.), which the trial court granted. Additionally, the court, upon its own motion, acquitted Mr. Hall on count ten of the indictment (related to rape of H.H.). The case ultimately went to the jury and, after deliberation, the jury returned a verdict finding Mr. Hall guilty of counts one, two, and three for rape of J.C. and count four for GSI of J.C. The jury also found him guilty of count 12 for GSI of H.H. Finally, the jury found him not guilty of the two remaining counts of rape, counts five and 11 of the indictment (both pertaining to rape of T.R. and H.H.). Mr. Hall was ultimately sentenced to ten years to life on each of the rape charges and five years for each of the two GSI counts.

         {¶7} Mr. Hall now appeals from his convictions, asserting four assignments of error. On appeal he challenges the sufficiency and weight of the evidence supporting his convictions, the application of Ohio's rape-shield statute to the exclusion of evidence in this case, the admission of Detective Noel's testimony despite the lack of an expert witness report pursuant to Crim.R. 16(K), and finally, prosecutorial misconduct based on statements made by the state during closing arguments.

         II.

         A.

         {¶8} We begin with count 12 of the indictment, and Mr. Hall's first assignment of error. Given our disposition below, we only address this assignment of error insofar as it relates to Mr. Hall's conviction for count 12, GSI of H.H., and whether sufficient evidence supported it. R.C. 2907.05(A)(4) requires that "[n]o person shall have sexual contact with another, not the spouse of the offender, cause another, not the spouse of the offender, to have sexual contact with the offender * * * when * * * [t]he other person * * * is less than thirteen years of age, whether or not the offender knows the age of that person." Sexual contact is defined as "any touching of any erogenous zones of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B). The jury was instructed at trial that in order to find Mr. Hall guilty on count 12 they must "find beyond a reasonable doubt that * * * [Mr. Hall] caused [H.H.] to have sexual contact with him * * *." The state acknowledges that, during trial, H.H. testified that Mr. Hall touched her vagina and digitally penetrated her, but she did not testify that he caused her to have sexual contact with him. Thus, the state concedes in its appellate brief that "[Mr.Hall's] conviction for Count 12 was not supported by sufficient evidence and should be dismissed." We accept the state's concession, and accordingly sustain Mr. Hall's first assignment of error with respect to count 12 and reverse his conviction on that count.

         B.

         {¶9} With count 12 resolved, we turn our focus to the third assignment of error, relating to the admission of expert testimony by Detective Noel, which we ultimately find dispositive. The trial court admitted Detective Noel's testimony at trial as an "expert in investigating child abuse and neglect," and she offered several opinions in this vein. We note that while the standard for reviewing the trial court's admission of expert testimony is for abuse of discretion, an error of law can constitute an abuse of discretion. Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 9; see State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, 932 N.E.2d 345, ¶ 24-25 (2d Dist.) (explaining that trial court could in fact abuse its discretion by committing an error of law). Defense counsel duly objected to Detective Noel's testimony, arguing that the state furnished no Crim.R. 16(K) report.

         {¶10} Crim.R. 16(K) requires that an expert witness must 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." That report must be turned over to the other side "no later than twenty-one days prior to trial" in the absence of good cause shown that does not prejudice the other side. Crim.R. 16(K). The rule also contains a simple remedy for a violation: "Failure to disclose the written report to opposing counsel shall preclude the expert's testimony at trial." Id.

         {¶11} This rule is one of fairly recent vintage, promulgated in 2010. The purpose of the rule is straightforward, as reflected in its plain language and echoed by the Staff Notes: "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 witness's testimony by not requesting a written report from the expert, or not seeking introduction of a report."[1] Our sister districts have explained that the purpose of Crim.R. 16(K) is 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). Supplying a Crim.R. 16(K) report alleviates "unfair surprise by providing notice to the defense and allowing the defense an opportunity to challenge the expert's findings, analysis, or qualifications, possibly with the support of an adverse expert who could discredit the opinion after carefully reviewing the written report." State v. Fetty, 11th Dist. Portage No. 2011-P-0091, 2012-Ohio-6127, ¶ 36, quoting State v. Perry, 11th Dist. Lake No. 2011-L-125, 2012-Ohio-4888, ΒΆ 55 (no prejudice to defendant when medical records had been supplied, thwarting any undue surprise from medical expert's testimony). Providing the report in advance of trial affords the opposing party an ...


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