State v. Harvey
2014 Ohio 2683
Ohio Ct. App.2014Background
- Dustin C. Harvey (defendant) was indicted on June 12, 2013 for 4 counts of rape (first-degree) and 7 counts of gross sexual imposition relating to his minor daughter E.H.; he pleaded not guilty.
- Child was examined at a specialized center (Kid’s Place) by pediatric nurse practitioner Kelly Morrison, who interviewed and examined E.H.; E.H. disclosed digital, genital, and oral contact and Morrison opined the history/exam were consistent with sexual abuse despite no diagnostic physical findings.
- Appellant was interviewed by police, initially denied abuse, then admitted directing E.H. to rub her vagina and later said he rubbed her vagina several times; he denied penetration.
- Trial court denied motions to suppress and to exclude use of the term “victim”; E.H. testified at trial and was cross-examined. The jury convicted on all 11 counts; the court imposed concurrent sentences totaling 15 years to life and required Tier III sex-offender registration.
- On appeal, Harvey raised four assignments: (1) expert improperly opined on victim veracity (Boston issue); (2) inadequate foundation for expert opinion under Evid.R. 702; (3) trial court should have declared mistrial for prejudicial testimony; (4) ineffective assistance for failure to seek mistrial.
Issues
| Issue | State's Argument | Harvey's Argument | Held |
|---|---|---|---|
| Whether expert testimony violated Boston by opining on child’s veracity | Expert testimony described medical exam and concluded history/exam consistent with abuse; E.H. testified so Boston inapplicable or harmless | Expert (Morrison) impermissibly vouched for E.H.’s credibility in violation of Boston | Overruled: Boston did not bar Morrison’s testimony because E.H. testified and Morrison did not explicitly opine on veracity; testimony described medical findings and consistency with reported history |
| Whether expert lacked foundation under Evid.R. 702(C) | Morrison relied on training (450–500 exams), interview, anatomically correct drawings, history and physical exam — sufficient foundation | Opinion lacked scientific/specialized basis and was therefore inadmissible | Overruled: Court found adequate foundation — experience, interview, history, and exam supported opinion that sexual abuse occurred despite lack of physical findings |
| Whether trial court should have declared mistrial for prejudicial testimony (domestic violence, protection order, officer comments) | Objections were sustained, testimony struck, and court gave curative instructions; trial court discretion to deny mistrial | Such statements were highly prejudicial and warranted mistrial | Overruled: Trial court acted within discretion; curative instructions and juror admonitions remedied isolated statements and did not deprive defendant of fair trial |
| Whether counsel was ineffective for not moving for mistrial after prejudicial testimony | Counsel objected, motions for acquittal made, and curative instructions requested — reasonable strategy | Failure to move for mistrial was deficient and prejudicial | Overruled: Representation fell within wide range of reasonable professional assistance; no prejudice shown from counsel’s actions |
Key Cases Cited
- State v. Boston, 46 Ohio St.3d 108 (Ohio 1989) (expert may not vouch for child-witness veracity but may testify about medical findings and whether child has been abused)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective-assistance-of-counsel test)
- Pons v. Ohio State Medical Board, 66 Ohio St.3d 619 (Ohio 1993) (standard for abuse of discretion review)
- State v. Roberts, 156 Ohio App.3d 352 (Ohio App. 2004) (appellate review of evidentiary rulings under abuse-of-discretion)
- State v. Franklin, 62 Ohio St.3d 118 (Ohio 1991) (standards governing mistrial rulings)
- State v. Treesh, 90 Ohio St.3d 460 (Ohio 2001) (curative jury instructions presumed effective)