Court of Appeals of Ohio, First District, Hamilton
Criminal Appeal From: Hamilton County Court of Common Pleas
T. Deters, Hamilton County Prosecuting Attorney, and Sean
Donovan, Assistant Prosecuting Attorney, for
Raymond T. Faller, Hamilton County Public Defender, and
Krista Gieske, Assistant Public Defender, for
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.
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."
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.
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.
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.
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.
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.
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
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)
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."
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." 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, ¶ 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 ...