State of Ohio v. James Alliman
Court of Appeals No. OT-21-024
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY
Decided: July 28, 2023
2023-Ohio-2617
Osowik, J.
Trial Court No. 2020CR I 036A
*****
James J. VanEerten, Ottawa County Prosecuting Attorney, and Thomas A. Matuszak, Assistant Prosecuting Attorney, for appellee.
Michael H. Stahl, for appellant.
*****
DECISION AND JUDGMENT
OSOWIK, J.
{¶ 1} This matter is before the court on appellant’s, James Alliman, “Application for Reconsideration and Application for En Banc Consideration,” which was filed on February 6, 2023. For the following reasons, we grant appellant’s application for reconsideration and reverse the judgment of the Ottawa County Court of Common Pleas.
Our resolution of the application for reconsideration in appellant’s favor renders his application for en banc consideration moot, and it is hereby denied.
{¶ 2} On January 25, 2023, we issued our decision in appellant’s direct appeal, affirming the judgment of the Ottawa County Court of Common Pleas, and holding inter alia, that a licensed independent social worker, Diane Ottney, did not offer expert testimony requiring her to be qualified as an expert, and that the admission of two of the state‘s timeline exhibits, State’s Exhibit Nos. 1 and 2, was erroneous but harmless. State v. Alliman, 2023-Ohio-206, --- N.E.3d ---- (6th Dist.).
{¶ 3} Following our decision in Alliman, appellant timely filed the present motion seeking reconsideration under
{¶ 4} When reviewing a motion for reconsideration, we must determine “whether the motion * * * calls to the attention of the court an obvious error in its decision or raises an issue for our consideration that was either not considered at all or was not fully considered by us when it should have been.” Matthews v. Matthews, 5 Ohio App.3d 140, 450 N.E.2d 278 (10th Dist.1981), syllabus.
{¶ 6} First, appellant argues that Alliman held that “the pretrial ruling on the admissibility of expert testimony and a
{¶ 8} The facts in Boaston are different than the facts in this case. In Boaston, the defendant did not object to the admission of expert testimony until the trial had commenced. In failing to object prior to trial, we found that the defendant waived his argument under
{¶ 10} We squarely addressed this argument in our decision in Alliman, where we found that “the summary provided by the state contained all of the information that Koskela ultimately ended up providing during her testimony at trial.” Consequently, our decision in Alliman is in harmony with the legal principle articulated in Walls, where we found an expert’s testimony should have been excluded because it exceeded the scope of the expert report provided by the state prior to trial. The two decisions are not in conflict.
Ottney utilized her first-hand knowledge of child sexual abuse to draw conclusions that a rational person would form based on the observed facts. Specifically, Ottney identified common symptoms of child sexual abuse that she noticed while dealing with hundreds of victims throughout her career. She later testified as to certain behaviors she observed while counseling B.A. and V.A. At no point did she apply a specialized process of reasoning available only to specialists. Moreover, to the extent she offered opinions or drew inferences during her testimony, those opinions and inferences were “(1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.”
Evid.R. 701 . As such, Ottney testified as a lay witness, not an expert witness.
Alliman at ¶ 34.
{¶ 13} In McGlown, we recognized that several Ohio courts have found that “the manner in which child victims of sexual abuse disclose and report that abuse is beyond the knowledge and experience of lay persons.” McGlown, supra, 6th Dist. Lucas No. L-07-1163, 2009-Ohio-2160, at ¶ 41, citing Bortner; Carey; Carte, 8th Dist. Cuyahoga No. 72955, 1999 WL 13962 (Jan. 14, 1999); James, 3d Dist. No. 6-94-18, (Aug. 24, 1995). Similarly, in Solether, we held that an officer’s testimony about delayed reporting by sexual assault victims “is not within the knowledge of the average juror,” “required ‘specialized knowledge,’” and “is properly categorized as expert testimony” notwithstanding the fact that such testimony was based upon the officer’s personal experience. Solether, at ¶ 65.
{¶ 15} The record below establishes that the state did not provide an expert report from Ottney, as required under
“First, it must be determined whether the defendant was prejudiced by the error, i.e., whether the error had an impact on the verdict. * * * Second, it must be determined whether the error was not harmless beyond a reasonable doubt. * * * Lastly, once the prejudicial evidence is excised, the remaining evidence is weighed to determine whether it establishes the defendant’s guilt beyond a reasonable doubt.” (Citations omitted).
Id. at ¶ 63, quoting State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 37.
{¶ 18} Admittedly, the prosecution also elicited testimony about delayed disclosure from Koskela. Thus, one could argue that the testimony was merely duplicative, and thus harmless. However, Ottney’s testimony differed from Koskela’s testimony, because Koskela had never met the victims in this case and thus her testimony was limited to the basic symptoms of child sexual abuse and the prevalence of delayed disclosure of sexual abuse among child victims. Ottney, on the other hand, applied her familiarity with cases involving delayed disclosure of child sexual abuse to the victims in this case. After identifying the symptoms that are commonly manifest by victims of child sexual abuse, Ottney testified as to the victims’ manifestation of such symptoms.
{¶ 20} In light of the foregoing, we find that Ottney’s expert testimony bolstered the credibility of the victims in this case. Consequently, we find that the erroneous admission of such testimony had an impact on the verdict and prejudiced appellant. Moreover, we cannot say, beyond a reasonable doubt, that the error was harmless. When excising the erroneously admitted expert testimony and weighing the remaining evidence, we do not find that appellant’s guilt is established beyond a reasonable doubt. Accordingly, we find that appellant’s seventh assignment of error is well-taken.
{¶ 22} It is so ordered.
Judgment reversed,
and remanded.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
CONCURS AND WRITES ____________________________
SEPARATELY. JUDGE
Charles E. Sulek, J. ____________________________
CONCURS IN PART, AND
DISSENTS, IN PART.
MAYLE, J.
{¶ 23} I concur in the lead decision granting reconsideration, but I do so for the reasons articulated in my original dissent. I also believe it necessary to address several aspects of the dissenting opinion on the current motion.
{¶ 25} To be clear, I believe that the cumulative effect of these three errors requires reversal—not one error alone. And that is because this case rested solely on the credibility of the victims. There was no physical evidence, no confession, and no eyewitnesses. Without question, this type of independent evidence is not required to sustain a conviction; the victims’ testimony alone, if believed by the fact-finder, may sustain a conviction. See State v. Riffle, 9th Dist. Medina No. 07CA0114-M, 2008-Ohio-4155, ¶ 13 (“[T]he state’s case ‘contained no physical evidence and rested solely on the credibility of the state’s witnesses.’ * * * While this is certainly sufficient evidence, it is not overwhelming.”). But where the victims’ credibility is central to the case, the more errors that are committed—particularly errors in admitting evidence that has the effect of bolstering the victims’ credibility—the more difficult it is to say, with any degree of confidence, that the evidence did not impact the jury’s credibility determinations, and, thus, its verdict. State v. Carter, 5th Dist. Stark No. 2002CA00125, 2003-Ohio-1313, ¶ 38 (“[N]umerous harmless errors may add up to harmful error.”); State v. Jones, 1st Dist. Hamilton No. C-950005, 1995 WL 763604, * 3 (Dec. 29, 1995) (finding that three unobjected-to errors in the admission of evidence combined to produce cumulative error requiring reversal).
{¶ 27} The Cambridge dictionary defines “bolster” as “to support or improve something or make it stronger.” (See https://dictionary.cambridge.org/us/dictionary/english/bolster, last accessed Jul. 17, 2023). Black’s Law Dictionary defines it to mean “[t]o enhance (unimpeached evidence) with additional evidence.” Black’s Law Dictionary (11th ed. 2019). Ottney testified about the signs and symptoms exhibited by sexual abuse victims, then described behaviors exhibited by B.A. and V.A. that are consistent with those signs and symptoms. Without a doubt, the state called Ottney to testify to “support,” “enhance,” or “improve” B.A. and V.A.’s testimony “with additional evidence” in an effort to “make it stronger.” If Ottney’s testimony did not bolster the victims’ credibility in any appreciable way, we can be sure the state would not have called her to testify.
{¶ 28} It is also worth noting that Ottney’s testimony was not just “duplicative” of Koskela’s testimony. It was intentionally duplicative and was meant to drive home the state’s position that the victims exhibited signs and symptoms of sexual abuse and were not unique in failing to immediately report it. During its closing, the state highlighted for the jury that it had heard about delayed disclosure “from not one, not two, but three counselors.” This court has recognized that the state’s action in emphasizing improper testimony for the jury may make it more likely that the defendant was prejudiced by its admission. See State v. Walls, 2018-Ohio-329, 104 N.E.3d 280, ¶ 51 (6th Dist.). See also State v. Ferricci, 8th Dist. Cuyahoga No. 110208, 2022-Ohio-1393, ¶ 73, appeal not allowed, 169 Ohio St.3d 1431, 2023-Ohio-381, 202 N.E.3d 720, quoting State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 31 (“[T]he conduct of the prosecutor ‘may combine with an evidentiary error to cause greater impact.’”). Here, while downplaying the significance of Ottney’s testimony on the basis that it was duplicative, the dissent ignores that the state not only emphasized the testimony in its closing, but also argued that it should be believed precisely because it was duplicative of other testimony.1
{¶ 30} Even setting aside this misstatement, the dissent excuses the error in admitting the summaries by rationalizing that the state “did not include any information reflecting the inferences and conclusions to be drawn from B.A.’s and V.A.’s testimony.” This is an incredible contention given that the exhibits contained the very facts the state wanted the jury to find, crafted succinctly and organized into table form—carefully worded by the state’s attorney—for ease of use. They were the Cliff’s Notes version of the victims’ expected testimony intended for reference during deliberations.
{¶ 31} The dissent is critical that I continue to consider these errors cumulatively because “Alliman does not raise and separately argue the issue of cumulative error in his application for reconsideration despite including it as an assignment of error in his underlying appeal.” I do not read his motion so narrowly. Rather, I believe his motion must be read in conjunction with his merit brief, and we must decide the motion with reference to what has already been decided in this appeal. And as I previously stated, with each piece of erroneously-admitted evidence, it becomes more difficult to say that the improper evidence did not impact the verdict. I simply stand by the same conclusions I reached when we considered these errors the first time around.2
{¶ 34} When courts consider whether overwhelming evidence of guilt exists, they often look at evidence like confessions, eyewitness testimony, DNA evidence, or other physical evidence. See, e.g., State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 53 (9th Dist.), aff’d, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153 (concluding that there was not overwhelming evidence of guilt “[i]n the absence of any confession, physical evidence, or eyewitnesses” other than the testimony of the victim herself); State v. Hall, 1st Dist. Hamilton No. C-170699, 2019-Ohio-2985, ¶ 39 (finding that where case lacked physical evidence and was premised on witness credibility, erroneous admission of expert testimony and improper comments by the state during closing were not harmless); State v. Williams, 6 Ohio St.3d 281, 291, 452 N.E.2d 1323 (1983) (concluding that there was overwhelming evidence of guilt where defendant made incriminating statements to three witnesses, he had the murder weapon in his possession, and testimony established that defendant’s claim that gun accidentally fired was not feasible); State v. Sargent, No. 2015-Ohio-704, 29 N.E.3d 331, ¶ 35 (6th Dist.) (concluding that the victim’s credibility was central to the case, therefore, the erroneous admission of other-acts evidence, which could affect the jury’s weighing of credibility, was not harmless); State v. Hart, 2018-Ohio-3272, 118 N.E.3d 454, ¶ 42 (8th Dist.) (explaining that in a case “where credibility is paramount,” it could not say that the erroneous admission of other-acts evidence was harmless).
SULEK, J.
{¶ 37} I join with the lead opinion’s conclusion that Mindy Koskela’s testimony was properly admitted. I also agree with the lead opinion’s conclusion on reconsideration that it was error for the trial court to allow Diana Ottney to testify as an expert witness and that her testimony should have been excluded as a result of the state’s failure to provide defendant James Alliman with an expert report as required by
I. Trial Testimony
{¶ 38} Making a harmless error determination warrants a detailed examination of the evidence. In this case, the trial consisted of seven witnesses for the state.
B.A.
{¶ 39} The state first presented the testimony of B.A. She began by explaining that she was 20 years old, but was not currently working because she has “very bad” anxiety and is very nervous. B.A. testified that she is currently prescribed lithium as a mood stabilizer, Latuda for depression and anxiety, and Ambien to sleep. B.A. also testified that she has been in therapy “for as long as I can remember, from a young age,” and that she has been seeing her current therapist since December 2019.
{¶ 40} In addition to the therapy, B.A. developed a close relationship with her high school counselor, Callie Haas. B.A. testified that she was an average student, who had good attendance during her sophomore and junior years. But, during her senior year, B.A. had very poor attendance and only attended school for about two months. Before she stopped attending school, B.A. changed her phone number because she was getting text messages from Alliman, and she wanted to put the past behind her and “be better, actually be happy.”
{¶ 41} After B.A. stopped attending school, Haas reached out and B.A. agreed to meet with her. When the two met in September 2019, B.A. became overwhelmed with emotion while she was talking and disclosed the sexual abuse by Alliman. B.A. testified that she had no intention of disclosing the sexual abuse when she began talking with Haas. And while she was glad that she told Haas, she stated she “[was] not happy it all came out because [Alliman] has so much to lose. I didn’t, I didn’t tell anybody because he works on the railroad. That’s good money. He was paying child support. It was helping my mom and me out. So, I didn’t want him to have to lose a good job for it.”
{¶ 42} B.A. spoke with a detective that same day, but initially did not want to pursue charges. Several weeks later, however, B.A. listened to a school speaker share her history of abuse, and after talking with the speaker, B.A. changed her mind and decided to pursue charges.
{¶ 43} B.A. next testified to the specific details of Alliman’s abuse. B.A. testified that the abuse first occurred during the fall when she was ten years old. Her mother worked at a corn maze almost all day, every day. Alliman worked on the railroad, but he would usually be asleep at home when B.A. and her sister got home from school. One time, however, B.A. was upstairs on the bed in her room playing “the little clip game” on her Nintendo DS, while her sister, V.A., was downstairs taking a shower. Alliman came
{¶ 44} B.A. testified that she never told anyone what had happened because Alliman said he would kill her. Alliman is a large man, standing six feet, seven inches tall, and weighing approximately 385 pounds, and B.A. testified that she was scared of him because he towered over her. Whenever B.A. did something wrong, Alliman would become very upset, and she was afraid of him when he would discipline her.
{¶ 45} B.A. then described a second incident of sexual abuse that occurred in 2016, right before the start of her freshman year. B.A. was spending the night at a friend‘s house who lived nearby. In the morning, B.A.‘s friend‘s dad received a phone call from Alliman, stating that he wanted to speak to B.A. On the phone call, Alliman told B.A. that he just found out that B.A.‘s mother was cheating on him with one of his friends from work. B.A. felt terrible because she did not know that her parents were having trouble. Alliman came and picked up B.A. and drove to their home. B.A. testified that Alliman pulled around to the back of the house, where he started
{¶ 47} B.A. next testified to her history of self-harm. B.A. stated that she began cutting herself in approximately 2012, when she was twelve or thirteen years old. B.A. would use a razor blade to cut herself on several areas of her body. B.A. showed some of her scars to the jury. She also identified a photo that she took showing scars on her thighs. B.A. testified that when she looks at the photo, I can see a bunch of different scars from different times at a point in my life. When I see it, I actually see that there was, I was
{¶ 48} After a brief line of questioning where B.A. adopted the statements contained in State‘s Exhibit No. 1 as her own, B.A. began the final portion of her testimony pertaining to an interview that she had with Detective Amanda Cross in 2017. B.A. testified that she was not sure if she had ever met Cross before the interview. During the interview, Cross asked B.A. if Alliman ever sexually abused her, and B.A. denied that he had. B.A. told Cross that “he wouldn‘t do that.” However, B.A. testified that her statements to Cross were not the truth, and that she was scared at the time. B.A. elaborated, I wasn‘t ready for it to come out. I really, I mean you have somebody tell you they‘re going to kill you if you say something. You trust one human being that you‘re supposed to trust and supposed to be there. And when they say something to you like that, how are you supposed to trust a stranger? Somebody who you never really talked about, about something that, that big. I couldn‘t push myself to come out with it then. And [V.A.] my little sister said something about it, and I completely took that away from her. I said “No, that wouldn‘t happen.”
{¶ 50} Finally, the defense asked B.A. if it was true that while her parents were going through a divorce in 2016, she told a guardian ad litem that she wanted visitation with her dad, even though that would have occurred after the alleged sexual abuse. B.A. offered a lengthy explanation on re-direct: Everybody has two parents. A lot of people are not okay without being two parents - having two parents there. I‘m a strong believer in everybody deserves second chances. Even if that means five chances or seven chances, he‘s still my dad.
{¶ 52} V.A. then began to testify about the instances of sexual abuse. The first instance occurred between July and October 2008, when V.A. was five years old. V.A. and her sister had just recently stopped sharing a bedroom. V.A. testified that one night she woke up and Alliman was on top of her. She remembered that it was hard to breathe. V.A. testified that Alliman was “holding me down and covering my mouth and telling me to be quiet and not say anything or he would take me away and hurt me. It was then he had vaginal intercourse with me.” V.A. stated that she was not able to move and could not fight back. She remembered that it felt like it lasted forever, but was probably just a few minutes. After Alliman left the room, V.A. stayed there scared and cuddled her stuffed animals.
{¶ 54} V.A. testified that another instance of sexual abuse occurred between November 2011 and February 2012, when she was eight years old. V.A. stated that the same thing happened that she described the first time, and she affirmed that Alliman entered her bedroom, woke her up out of her sleep, and engaged in vaginal intercourse with her.
{¶ 55} The next instance occurred in June 2012, when V.A. was eight years old. V.A. remembered the time because she had the opportunity to ride in a helicopter on Father‘s Day, and the pilot let her fly it for a few seconds. V.A. testified that around that time, she woke up to Alliman on top of her again. He held her down, covered her mouth, and told her to shut up. Alliman had vaginal intercourse with her and told her that if she ever said anything, he would take her away and hurt her.
{¶ 57} The sixth instance of sexual abuse occurred in August 2014, when V.A. was 11 years old. Two weeks after V.A. was baptized at her church, she again woke up to Alliman on top of her, having vaginal intercourse. V.A. stated that Alliman made the same threats that she should not say anything or he would take her away and hurt her. V.A. testified that she did not tell anyone about the sexual abuse because she was scared of Alliman; she had seen him be violent and he had threatened her.
{¶ 58} The seventh instance of sexual abuse occurred between March and April 2016, when V.A. was 12 years old. V.A. remembered that time frame because she had chicks and ducks then. V.A. once more testified that she woke up and Alliman was on top of her, having vaginal intercourse. Alliman again threatened her not to say anything or he would take her away and hurt her.
{¶ 60} The last instances of sexual abuse occurred between July and August 2016, when V.A. was approximately 12 or 13 years old. These instances were not charged in the indictment, but V.A. testified that Alliman had vaginal intercourse with her three more times during this period.
{¶ 61} V.A. testified that the abuse stopped in 2016 or 2017 when her parents divorced and Alliman moved out.
{¶ 63} In addition, V.A. testified that she began cutting herself when she was in the seventh or eighth grade. One time she tried to kill herself by cutting “really deep” on her legs. V.A. testified that she is still cutting herself, although she has not done it in a while. When she cut herself, she would often cut her thighs. V.A. then authenticated some pictures from the summer of 2020, which depicted the cuts on her legs. V.A. testified that Alliman knew that she and B.A. were cutting themselves. She remembers Alliman texting B.A. when B.A. was a freshman or sophomore and encouraging her to cut herself and do drugs like mushrooms.
{¶ 65} V.A. also described an incident from April 2020, where she had an emotional breakdown. In a criminal justice course, the word “rape” was used two or three times during an exam. V.A. testified that this was a “trigger word” for her but she tried to push through and finish the exam. When she finished, she went to Callie Haas‘s office, where she broke down crying. Haas asked V.A. to write down how she was feeling. V.A. wrote, I couldn‘t move I couldn‘t do anything he was to big I was so scared the things he said why me why did this happen to me this is my fault why did it have to happen to [B.A] too I wish I said something sooner so it didn‘t happen so many times what he would do knowing I was alone through it knowing how it felt to not talk about it how I acted out and no one listened they just thought I had his bi polar no one asked what was truly wrong how I wanted to say something but couldn‘t the threat how strong he was and how scared I was how I never knew when it would happen again but knew it would happen never being able to act like it happened having to act normal and hide it all being so scared when we would be alone and just not knowing
{¶ 66} V.A. next testified to her interview with Detective Amanda Cross in 2017. Cross asked V.A. if her father had ever touched her inappropriately or sexually, and V.A. denied that he had. V.A. testified at trial that she did not tell Cross the truth because she was still really scared. Alliman had moved out of the house by that time, but he was living with his parents three houses down. V.A. also had the opportunity to tell the guardian ad litem that was appointed during the divorce, but she did not disclose the abuse to him because, again, she was scared.
{¶ 68} As the last part of her direct testimony, V.A. identified and adopted State‘s Exhibit No. 2, which was the summary of the instances of sexual abuse that she prepared with the prosecutor‘s office.
{¶ 70} Defense counsel also asked V.A. about her interview with Detective LaRue that occurred in 2019, after B.A. had disclosed her abuse. V.A. acknowledged that she did not tell LaRue the full truth and did not disclose to him that she had been sexually abused. On re-direct, V.A. explained that she did not tell the truth in 2017 or 2019 because she was still scared and was not ready yet. According to V.A., she wanted to say something but did not have the courage to do so. V.A. also explained that she only met with Detective LaRue for approximately one hour and his appearance reminded her of her dad, which made her uncomfortable.
Callie Haas
{¶ 72} Following V.A.‘s testimony, the state called Callie Haas as a witness. Haas testified that she met B.A. in 2017, when B.A. was a sophomore. Haas and B.A. developed a relationship, and the two met with some regularity. Haas testified that B.A. carried a lot of weight on her shoulders, and B.A. would talk to Haas about some of the toxic relationships she had at home. Eventually, Haas became concerned about B.A.‘s attendance during her senior year. In reaching out to B.A., Haas learned that B.A. had moved out of her home and was living with her boyfriend.
{¶ 74} After Haas reported the abuse, Detective LaRue came to speak with B.A. Haas sat in on that meeting. At the conclusion of the interview, B.A. indicated that she did not want to press charges because it happened a long time ago and she did not want anyone to get in trouble. Two months later though, B.A. attended a presentation put on by one of Haas‘s former students. The former student had been sexually abused and spoke to the students about her experience. After the presentation, B.A. met with the speaker, and Haas participated in that conversation. Haas testified that during the conversation, she sensed that B.A. developed a sense of hope and the motivation to tell her story.
{¶ 76} Haas then described a time when V.A. came to her office very upset. V.A. had been taking an exam, and the exam used a word that “triggered” V.A. According to Haas, V.A. was angry, rocking back and forth, and crying. Haas helped V.A. calm down. Another time when V.A. came to Hass upset, Haas suggested that V.A. write down what she was feeling to help her calm down. Haas verified that the message V.A. read during her testimony was the same message that she received. Finally, Haas testified that V.A. discussed sexual abuse one other time when she came to Haas‘s office very angry and said something to the extent of “I wish I was good enough so he didn‘t have to ruin my sister‘s life as well.” Based on their previous conversations, Haas believed that V.A. was speaking about the sexual abuse that both V.A. and B.A. experienced.
{¶ 77} The state next called Mindy Koskela as an expert witness in the field of counseling and treatment for victims of child sexual assault. Koskela emphasized that she has never met, interviewed, or interacted in any way with B.A. and V.A. Instead, Koskela testified more generally to child sexual abuse.
{¶ 78} Koskela testified that when looking for signs and symptoms of child sexual abuse, she considers whether there has been a change in behavior patterns. For five-year-olds, Koskela would look for whether the child is reaching developmental milestones, whether he or she is demonstrating regressive behaviors such as beginning to wet or soil himself or herself, and whether he or she is demonstrating extreme changes in anger, hostility, or wanting to withdraw. Koskela added that the child might have difficulty developing relationships or might have inappropriate boundaries. Another factor Koskela would look for is if the child has advanced sexual knowledge for his or her age.
{¶ 79} For older children, Koskela would look for some of the same symptoms, but also more self-mutilating or self-harm. In her experience, Koskela has seen many forms of self-harm, including head banging, cutting, burning, eating disorders, and punching walls. She explained that self-harm often times gives the individual a sense of control and allows him or her to express a physical pain in response to the sexual abuse. Koskela was then shown a picture of the cuts on V.A.‘s legs. Koskela commented that she would classify the cuts as self-harm and described that it was “up there” on the spectrum of severity.
Diana Ottney
{¶ 81} The next witness to testify was B.A.‘s and V.A.‘s therapist, Diana Ottney. Ottney‘s testimony began with an explanation of trauma focused therapy, detailing that a therapist will first address the symptoms of trauma before addressing the trauma itself. Ottney then testified that over the last 12 years she has worked with “a couple hundred” youth that have been victims of sexual abuse or assault. She stated that she knows the youth have been victims of sexual abuse or assault either based on their symptoms or based on their disclosure. Regarding the symptoms that she looks for in an individual that has not disclosed the abuse, Ottney testified that “[t]here is a laundry list, but anger; risky, more risky behavior sometimes falls in that; self-harming; you‘ll see the anxiety and depression.” After an objection, Ottney was asked the same question, and again responded, Again, self harming. It could be depression, withdraw, isolation, or sometimes anger. Usually see it throughout, not just one category. You usually see it, you may see it at school. They may start getting in more trouble. You may see it at home, where they‘re not following the rules or there is a lot more arguing. You may see it in criminal behavior, where they‘re doing more riskier things with a friend. It could be drug use. There is a lot of -
{¶ 82} Following another objection regarding the expert nature of the testimony, the state indicated that it would proceed with Ottney as a fact witness.
{¶ 83} Notwithstanding the state‘s pronouncement, it asked Ottney to provide testimony that attempted suicide was a common symptom of prior sexual abuse, that delayed disclosure is very common, that there is no time frame for disclosing the abuse and that it can be within 30 days of the beginning of a therapy relationship or it can take years, and that most of the time victims do not speak up out of fear.
{¶ 84} Ottney then testified regarding her interaction with B.A. According to Ottney, during their initial meeting in December 2019, B.A. was extremely anxious and was “dumping.” Ottney explained that B.A. was sharing a lot of things that had happened, including past trauma, but that she was “all over the place” and was hard to track. Ottney testified that it has taken a long time to build trust with B.A. because “in general when you have a trauma, you don‘t trust adults at all.”
{¶ 85} Ottney next described B.A.‘s symptoms, testifying that B.A.‘s symptoms of anxiety and depression “are huge.” B.A. struggles every day with her thoughts and worries, and Ottney‘s treatment has focused on coping skills to help control those symptoms. Ottney testified that despite meeting with B.A. for a year and a half, B.A. is still not ready to talk about the trauma in detail in therapy sessions.
{¶ 86} Ottney also testified that she helped B.A. prepare for trial by talking with her about coping skills and by helping her understand that she is “a survivor, not necessarily a victim.” The goal was to help B.A. control her stress and anxiety—which sometimes manifests itself as anger or irritation—so that she would be prepared to answer the questions at trial.
{¶ 87} Ottney next testified regarding her interaction with V.A. Ottney began treating V.A. in March or April 2021, only a few months before the trial. Ottney described V.A. as “very guarded.” In addition, Ottney testified, The only emotion that she‘ll show to other people is usually more anger and irritation. However, if you peel back that, you can see she just feels alone. Her, she has anxiety, but hers is mostly depression. She deals with it herself. She has self-harmed in the past for quite sometime, quite extensively. When shown pictures of cuts on V.A.‘s legs, Ottney testified that the pictures depict a “pretty bad” level of self-harm.
Agent Bill Marshall
{¶ 88} Following Ottney, the state called Bill Marshall, who is an investigative agent with the Ottawa County Prosecutor‘s Office. Marshall testified that he reviewed the investigation conducted by Cross and LaRue and stated that he would have done things differently. First, he would have investigated more thoroughly B.A.‘s and V.A.‘s allegations of physical abuse such as being spanked with a belt. Second, he would have tried to interact with B.A. and V.A. on more of a human level as opposed to interviewing them with more of a law enforcement mindset. Finally, he would have had one group interview with each of the girls as opposed to doing a series of interviews.
Dr. Vishwas Mashalkar
{¶ 89} The last witness to testify for the state was V.A.‘s psychiatrist, Dr. Vishwas Mashalkar. Mashalkar testified that he saw V.A. as a patient between 2017 and 2019, beginning when she was sixteen years old. During that time, V.A. presented with severe depressive symptoms and suicidal ideations. V.A. also displayed anger, agitation, irritability, depression, anxiety, and insomnia. Mashalkar testified that he saw some initial success with prescribing lithium for V.A., but the success did not last. Mashalkar also tried prescribing Latuda, which is used for bipolar depression, but it did not help V.A. Mashalkar explained that when the treatments did not work, he began to suspect that there were other, environmental issues that were causing V.A.‘s problems. At first, Mashalkar primarily believed that it was V.A.‘s parents’ divorce and custody proceedings
{¶ 90} Mashalkar next testified that he also treated B.A. briefly for about a year, beginning when B.A. was hospitalized at Rescue Crisis, an in-patient facility for children. Mashalkar testified that B.A. was displaying a lot of behavioral issues and B.A.’s mother was having a difficult time with her, but B.A. did not want medical treatment, so Mashalkar offered her therapy and counseling services.
{¶ 91} Finally, Mashalkar testified that he was not surprised that in 2019 B.A. and V.A. disclosed the sexual abuse; he anticipated that it would have come out at some point.
{¶ 92} Under harmless error analysis, “[a]ny error, defect, irregularity, or variance
which does not affect substantial rights shall be disregarded.” Crim.R. 52(A). In
determining whether the erroneous admission of Ottney’s testimony affected Alliman’s
substantial rights so as to require a new trial, it must first be determined whether Alliman
“was prejudiced by the error, i.e., whether the error had an impact on the verdict. * * *
Second, it must be determined whether the error was not harmless beyond a reasonable
{¶ 94} Having examined all of the evidence, I agree with the panel that this case hinges upon the credibility of B.A. and V.A. Upon review of the trial testimony, Ottney’s testimony did not bolster their credibility in any appreciable way. Thus, Alliman was not prejudiced by the admission of this evidence.
{¶ 95} Ottney’s testimony can be fairly divided into two parts. In the first part, Ottney testified generally about delayed disclosure and the symptoms she sees in child sexual abuse cases. Those symptoms include anger, risky behavior, self-harming, anxiety, depression, withdrawal, isolation, drug use, and suicidal ideations. As
{¶ 97} While caselaw has established that these topics fall within the domain of expert witnesses, the jury did not need to hear from two experts to believe that a child who is sexually abused is going to experience all sorts of emotional problems and may not disclose the abuse right away, particularly where no contradictory expert testimony is provided. A basic understanding of human nature and the tragically increasing prevalence of this type of abuse in society leads me to conclude that any reasonable juror would have believed Koskela’s general testimony regarding child sexual abuse. Therefore, to the extent that Ottney provided expert testimony on delayed disclosure and the signs and symptoms of child sexual abuse, her testimony is entirely duplicative and had no impact on the jury’s verdict.
{¶ 100} The uncontroverted testimony from Koskela identified the symptoms of child sexual abuse as regressive behaviors, extreme changes in anger, hostility, or wanting to withdraw, difficulty developing relationships or having inappropriate boundaries, and self-harm like head banging, cutting, burning, eating disorders, and punching walls.
{¶ 102} Regarding V.A., Ottney testified that she is “very guarded” and usually just displays anger and irritation. Ottney described that V.A. has some anxiety, but mostly just deals with depression and feeling alone. Ottney also recognized that V.A. has self-harmed quite extensively.
{¶ 104} If Ottney’s testimony was the only evidence of B.A.’s and V.A.’s symptoms, then I would agree that her testimony would not be harmless. But the transcript is replete with testimony regarding the mental and emotional anguish that B.A. and V.A. have experienced. First, B.A. and V.A. described their own history of psychological and emotional trouble. Both of them have been seeing counselors since
{¶ 106} In addition to their testimony, Haas testified that B.A. carried “a lot of weight on her shoulders” and that V.A. became angry, was rocking back and forth, and was crying when she saw the word “rape” during an exam.
{¶ 108} Excluding Ottney’s testimony, a reasonable person reviewing the remaining testimony from the trial could only conclude that B.A. and V.A. have dealt with significant mental and emotional issues throughout their lives, and that those mental and emotional issues align with the symptoms of child sexual abuse. Therefore, Ottney’s description of B.A.’s and V.A.’s symptoms is redundant and had no impact on the jury’s verdict.
{¶ 110} their allegations of sexual abuse. First, B.A.’s and V.A.’s testimony describes in detail Alliman’s conduct and the circumstances surrounding the conduct. Second, Haas’s description of B.A.’s behavior when she disclosed the sexual abuse gives credibility to the disclosure. Third, B.A.’s initial reluctance to press charges and the subsequent change in her decision following her conversation with Haas’s former student makes it more likely that she is not fabricating the allegations. Fourth, V.A.’s emotional response to seeing the word “rape” on an exam, and her subsequent stream-of-consciousness message to Haas about the abuse suggests that she is telling the truth. Finally, V.A.’s credibility is bolstered by Mashalkar’s testimony that because the medical interventions were not working, he suspected that environmental factors were causing V.A.’s problems, and he was not surprised, but in fact expected, that V.A. would have disclosed the sexual abuse.
{¶ 112} generalized standard is warranted under existing caselaw, but instead each case must be analyzed under its particular facts.
{¶ 113} For example, I find the present situation to be most similar to State v. Carpenter, 7th Dist. Monroe No. 19 MO 0010, 2020-Ohio-5295, ¶ 51-68, in which the Seventh District held that any error in allowing a witness to testify as an expert without first providing an expert report as provided in Crim.R. 16(K) was harmless because the evidence against Carpenter was substantial. In that case, the evidence consisted of A.C.’s testimony regarding the details of the sexual abuse by her father, Carpenter, how she remembered it based upon what was happening in her life, her history of cutting herself and self-harm, and why she finally disclosed the repeated abuse five years after it began. The school counselor to whom A.C. disclosed the abuse testified that A.C., who was 11 or 12 years old at the time, was shaking and in tears and was having suicidal thoughts. The pediatric nurse practitioner who examined A.C. testified that the examination was normal, which was not unexpected given that the last incident of abuse occurred nearly one year prior. The nurse practitioner also testified that early onset of menstruation as well as self-harm can be signs of sexual abuse. The police chief who interviewed A.C. and Carpenter also testified, noting that Carpenter believed A.C. to be a truthful person and never called her a liar. In addition, a second child victim, G.B., also testified. G.B. was the daughter to Carpenter’s ex-girlfriend, and the half-sister to Carpenter’s son. G.B., who was nine years old at the time of the trial, described the abuse. G.B.’s mother
{¶ 114} testified that she did not know about A.C.’s disclosure. Two forensic interviewers who spoke with G.B. also testified, and their interviews with G.B. were played for the jury. In the interviews, G.B. identified the parts of her body that Carpenter touched. Based upon all of this evidence, the Seventh District concluded, The evidence was overwhelming that [Carpenter] sexually abused both girls. Both A.C. and G.B. testified that [Carpenter] sexually abused them. And neither girl knew that the other had disclosed abuse. In other words, they disclosed abuse by [Carpenter] independently of each other. This bolstered their testimonies. Additionally, the nurse who examined A.C. testified that A.C.’s condition was consistent with sexual abuse. And both A.C.’s counselor and her mother corroborated her disclosure. Moreover, the jury viewed the videos of G.B.’s forensic interviews so they were able to view her demeanor as she disclosed the abuse to the interviewers. Id. at ¶ 68.
{¶ 116} Likewise, in a case relied upon by the concurring opinion, the judges on the panel were split regarding whether there was overwhelming evidence of guilt. In State v. Morris, 2012-Ohio-6151, 985 N.E.2d 274 (9th Dist.), the Ninth District held that the trial court’s admission of two instances of other acts evidence were not harmless error. In that case, Morris was charged with two counts of raping his minor stepdaughter, S.K. At the trial, the state introduced evidence that Morris had once drunkenly propositioned a different, adult stepdaughter. Id. at ¶ 14. Also, the state introduced evidence that Morris would act out and kick the family dog if his wife refused to have sex with him. Id. at ¶ 41. The authoring judge held that the trial court abused its discretion in admitting that testimony because it constituted impermissible other acts testimony. In deciding that the trial court’s error was not harmless, the authoring judge noted that the other acts testimony was highly inflammatory and was “aimed at convincing the jury that Mr. Morris is a sex-crazed pervert.” Id. at ¶ 56. Further, the state repeatedly emphasized the other acts testimony, eliciting evidence about it from three different witnesses and referencing it on seven different occasions during closing, including referring to the adult stepdaughter as Morris’s “victim.” Id. at ¶ 59. The authoring judge also determined that there was not overwhelming evidence of Morris’s guilt, reasoning that “[i]n the absence of any confession, physical evidence, or eyewitnesses other than S.K. to sexual conduct or even sexual contact between Mr. Morris and S.K., the State’s case rested largely on
{¶ 118} harmless beyond a reasonable doubt. Id. at ¶ 59. The second judge on the panel concurred in judgment only without opinion.
4{¶ 120} “There can be no such thing as an error-free, perfect trial, and * * * the Constitution does not guarantee such a trial.” State v. Hall, 75 Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996). Here, while there were three identified errors, none of the errors prejudiced Alliman’s substantial rights. In my view, the first and third identified errors had no prejudicial impact, and the second identified error had very little, if any at all. “Such errors cannot become prejudicial by sheer weight of numbers.” Id. Accordingly, I conclude that there is not “a reasonable probability that the outcome of the trial would have been different but for the combination of the separately harmless errors.” Alliman at ¶ 105, quoting State v. Moore, 6th Dist. Wood No. WD-18-030, 2019-Ohio-3705, ¶ 87.
{¶ 121} For the above reasons, I respectfully concur in part and dissent in part.