2021 Ohio 501
Ohio Ct. App.2021Background
- Rebecca Romy was indicted on gross sexual imposition (R.C. 2907.05(B)) and child endangering (R.C. 2919.22(B)(2)) after her son (CS) reported that Romy held his legs while the boyfriend applied peanut butter to CS’s genitals and a dog licked it.
- CS testified identifying Romy as the person who held his legs; investigators, pediatric nurse practitioner, and psychologist (Carrie Schnirring) testified for the State; Romy denied the acts.
- Romy filed pretrial motions: request for state-funded expert, Daubert motion and motion in limine to exclude Schnirring; all were denied.
- During trial, juror misconduct (comments about defense needing to ‘‘prove its case’’) prompted removal of one juror; Romy’s counsel did not request a curative instruction or withdraw.
- Jury convicted Romy on both counts; trial court sentenced her to the statutory maximum five years; Romy appealed raising nine assignments of error.
Issues
| Issue | State's Argument | Romy’s Argument | Held |
|---|---|---|---|
| Exclusion of evidence about an alleged second victim | Evidence of an unverified second incident was irrelevant to Romy and unduly prejudicial | Trial court abused discretion by precluding questioning that could impeach CS’s credibility | Exclusion was not an abuse of discretion; matter was irrelevant and not contradictory impeachment evidence |
| Admissibility of Schnirring’s testimony (bolstering/credibility) | Schnirring’s testimony about behaviors consistent with abuse aids the jury and does not opine on veracity | Testimony impermissibly vouched for CS and usurped jury’s role | Testimony admissible; distinguished from Boston and allowed as propensity/consistency evidence to assess veracity |
| Request for state-funded defense expert | No particularized need shown; providing expert burdens the State | Due process required provision of funds for an expert to challenge Schnirring | Court did not abuse discretion denying funds; Romy failed to show particularized need |
| Daubert hearing / expert qualification | Schnirring’s methods are accepted and she was qualified; no separate Daubert hearing required | Trial court erred in certifying and admitting Schnirring without Daubert scrutiny | Court properly qualified Schnirring under Evid.R. 702 and did not abuse discretion |
| Ineffective assistance for not requesting curative instruction after juror comments | Burden is on State to prove beyond a reasonable doubt; jury instructions already placed burden on State | Counsel unreasonably failed to request curative instruction after juror said defense must prove its case | No deficient performance shown; jury was instructed correctly and counsel’s choice was within tactical range |
| Ineffective assistance for not withdrawing after friction with judge | No rule requiring withdrawal; counsel continued competence | Counsel should have withdrawn due to perceived animosity | No duty to withdraw under Rule 1.16; decision to continue was reasonable trial strategy |
| Trial judge bias / prejudicial comments | Most disputed remarks occurred outside jury presence; in‑court remarks were procedural and not plainly erroneous | Judge’s repeated interruptions and remarks showed partiality and prejudiced the jury | No prejudicial error; comments considered in context, and most were outside jury’s hearing; Romy failed to show prejudice |
| Excessive sentence / cruel and unusual punishment | Sentence within statutory range; court considered sentencing factors | Five-year maximum is disproportionate and punitive | Sentence not grossly disproportionate; within statutory range and supported by record |
| Manifest weight of the evidence | Direct testimony and corroborative medical/psychological evidence support conviction | Verdict against manifest weight given inconsistencies and lack of corroboration | Jury did not lose its way; convictions affirmed |
Key Cases Cited
- Chambers v. Mississippi, 410 U.S. 284 (1966) (defendant’s right to present a defense limited by rules of evidence)
- Ake v. Oklahoma, 470 U.S. 68 (1985) (framework for state provision of psychiatric experts to indigent defendants)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑pronged ineffective assistance standard)
- Boston v. State, 46 Ohio St.3d 108 (1989) (limits on expert testimony as to veracity of child declarant)
- Stowers v. State, 81 Ohio St.3d 260 (1998) (expert may testify that child’s behavior is consistent with sexual abuse)
- Mason, 82 Ohio St.3d 144 (1998) (factors to determine whether state must provide expert assistance)
- Hartman v. State, 93 Ohio St.3d 274 (2001) (trial court’s gatekeeping on expert qualifications reviewed for abuse of discretion)
- Thomas v. State, 97 Ohio St.3d 309 (2002) (analysis of when a witness may be qualified as expert)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse of discretion standard)
- Solem v. Helm, 463 U.S. 277 (1983) (three‑part test for disproportionality under Eighth Amendment)