STATE OF OHIO, Plaintiff-Appellee, vs. RANDY HALL, Defendant-Appellant.
APPEAL NO. C-170699, C-170700; TRIAL NO. B-1607043
IN THE COURT OF APPEALS, FIRST APPELLATE DISTRICT OF OHIO, HAMILTON COUNTY, OHIO
July 24, 2019
2019-Ohio-2985
BERGERON, Judge.
Criminal Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Reversed and Cause Remanded
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant.
OPINION.
{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
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
{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
{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
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.
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
{10}
{13} At trial, the state qualified Detective Noel as an expert, and the trial court recognized her as such and allowed her to offer a series of opinions over objections. Given the absence of any expert report, Mr. Hall understandably emphasizes the rule‘s mandatory “shall” language and the simple remedy contained within the rule.
{14} Once given the mantel of “expert,” Detective Noel proceeded to explain how “normally” in sexual-assault cases against a child, “we have very limited physical evidence, mostly due to a delay in reporting[.]” She offered her opinion that “normally” these cases do not involve assault by a stranger but rather “it‘s a trusted member of the family, a loved one, a family friend who engages in this activity with the child.” She reiterated this point a few
{15} Detective Noel also offered an opinion that “typically” children victimized by sexual assault begin to convey information “bit by bit. They might disclose just a small portion of the incident and then, as the child begins to feel more comfortable about telling, they‘ll disclose more.” That, according to her expert opinion, is “a typical reaction to most children.” She further explained how children recall time, and that most children “are bad about judging even how old they were at the time the abuse started.”
{16} The state also elicited, effectively, Detective Noel‘s perspective on this case by asking her “have you ever had a case that you do not feel was worthy of an investigation or going forward.” Detective Noel agreed that she had: “Frequently, I‘ve had cases that there wasn‘t enough corroborating evidence or there wasn‘t enough substantiating evidence coming from the other direction, and the case would not be prosecutable, so it is not presented to be indicted.” Her investigations “take a rather lengthy amount of time,” and “[m]aybe not half of them, but a good portion of them go for indictment.” But this case met her standards for further pursuit, and after she wrapped up her investigation, Detective Noel “sent [it] over to the Hamilton County Prosecutor‘s office for consideration for indictment.”
{17} Detective Noel‘s opinions overlaid with the factual situation before the jury. For example, Detective Noel rebuffed defense attempts to undermine her lack of investigative efforts (for instance, failing to search for evidence in either of the locations where the assaults allegedly occurred) by explaining that, as she had already opined, she would not expect to uncover any evidence pertinent to the investigation. Time and again, Detective Noel tied her opinions to the case at hand by showing how the children‘s delayed
{18} Detective Noel‘s testimony also helped shore up that of the state‘s medical expert (Dr. Makaroff), who testified that the results of J.C.‘s medical examination were normal. Dr. Makaroff explained that normal findings from such an examination could still be consistent with allegations of sexual abuse, and the passage of time after a sexual assault factors into whether there are visible signs of the assault when the child is examined. Detective Noel essentially validated those points through her own testimony.
{19} Detective Noel was the state‘s final witness and helped the state wrap up its case. In closing argument, the state relied heavily on many of the points she articulated. The state sought to blunt any concerns about H.H. by acknowledging that “[s]he may not have the best recall of time,” and of course Detective Noel testified about that precise subject. The state also brandished Detective Noel‘s “vast experience” and utilized her testimony to explain the lack of other corroborating evidence. After defense counsel hammered the lack of evidence and other perceived investigatory inadequacies in closing, the prosecutor came back in rebuttal, reminding the jury that “the experts came in and told you, there‘s typically not medical evidence in these cases * * * You had an expert come in and tell you about that and verify that.” In short, Detective Noel‘s opinions proved central to the state‘s case.
{20} Detective Noel‘s opinions constitute expert opinions submitted without a report in contravention of the plain language of
{21} In determining whether Mr. Hall suffered prejudice by the admission of the testimony, we note that here the state intended Detective Noel‘s testimony “to carry great weight with the jury.” See Walls at ¶ 45. The state presented her as an accomplished expert with 27 years of experience in child-abuse investigations, specialized training, and commendations when introducing her testimony to the jury, and the state emphasized her (and her opinions) throughout closing argument. Id. at ¶ 45 (introduction of doctor‘s credentials at trial emphasized the weight of his testimony with the jury). Moreover, her testimony assumed importance because it bolstered the victims’ credibility by explaining the lack of physical evidence and delayed reporting in this case, as she chronicled why she would not expect to find physical evidence and why the victims delayed their reporting (all of which dovetailed with her opinions above as well as those of the medical expert).
{23} We also note that the weight that expert testimony carries with the jury is fundamentally different than that of lay testimony (particularly when the expert is a police officer), and countering such testimony requires unique considerations, of which defense counsel was deprived in this instance. See State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 39 (“[G]iven the weight the jury would likely have assigned to [the expert‘s] testimony, a reasonable juror would be inclined to view with suspicion [the defendant‘s] own testimony * * *.“); Walls at ¶ 45, citing State v. Holt, 17 Ohio St.2d 81, 86, 246 N.E.2d 365 (1969) (“Because of the witness‘s educational background and his apparent prestige, his testimony undoubtedly made an impression on the jury and was accorded greater weight that it was entitled to.“). Without access to the content of her opinions
{24} Furthermore, this error was not harmless beyond a reasonable doubt. Detective Noel‘s testimony bolstered the children‘s testimony by lending it credibility in a case without any physical evidence against the defendant, thus likely impacting the jury‘s verdict. See Harris at ¶ 39 (psychologist‘s opinion that defendant was feigning mental illness created a “reasonable possibility that * * * testimony had an impact on the verdict and was not harmless beyond a reasonable doubt.“). Acquittal was granted on five counts of the indictment at the close of state‘s evidence precisely because of insufficient evidence, with the state conceding on appeal that Mr. Hall should be acquitted of count 12 for the same reason. In other words, this is not the prototypical case where evidence of guilt is strong, and we can have confidence that the error did not impact the outcome.
{25} Excising this testimony and reviewing the strength of the remaining evidence, the state‘s case depended on which witness was more credible, J.C. or Mr. Hall. Thus, admission of Detective Noel‘s expert testimony likely colored the jury‘s ability to properly weigh the credibility of the witness. See id. at ¶ 43 (“Because of [the expert‘s] improperly admitted testimony, the jury was unable to properly weigh credibility.“).
{26} Both the Sixth and Eleventh Districts have recently reversed convictions in sexual-assault cases for allowing experts to testify beyond the bounds of their reports (Walls and McGhee). We find their reasoning persuasive, and note that, at least in those cases, the defense received an expert report of some fashion. No such report was tendered here, magnifying the extent of the error.
{27} We also note another distinction with Walls and McGhee that renders this case even more suited for reversal—pervasive prosecutorial misconduct during the closing
{28} Initially, we note that no objections were raised below to the closing argument, which normally confines our review to plain error. State v. Fudge, 2018-Ohio-601, 105 N.E.3d 766, ¶ 49 (10th Dist.);
{29} We accordingly turn to the closing argument. Reviewing a challenge of prosecutorial misconduct in closing argument requires evaluation of whether the comments were improper and prejudicial to the accused‘s substantial rights. State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446, ¶ 44. Prosecutorial misconduct determinations require that “on the record as a whole, the misconduct can be said to have deprived the appellant of a fair trial.” State v. Hunter, 1st Dist. Hamilton Nos. C-140684, C-140704 and C-140717, 2016-Ohio-123, ¶ 34. On appeal, Mr. Hall draws our attention to the following discourse by the prosecutor during closing argument:
This defendant, this predator, told you that he is the victim of a conspiracy of little girls. * * * Do not be fooled. [Mr. Hall] is a wolf and he is the predator. He raped [J.C.] by raping her with his penis. He raped her vaginally by penetrating her vagina with his penis. He did this at her house. *
* * He forced her to touch his penis with her hand. That‘s rape, gross sexual imposition.
* * *
Predators like his man, Randy Hall, pick their victims wisely so there isn‘t corroboration. He knows how to deal with these girls. He was nice to them, but also sort of threatening and controlling. He chose easy targets.
* * *
After reviewing the evidence and applying the law, justice demands that this defendant, this predator, be found guilty of these charges. Any verdict other than guilty would not be reasonable, it would defy common sense, and it would be contrary to your instructions.
{30} In evaluating these remarks, we are reminded that “[p]rosecutors serve a special role in our justice system requiring them to adhere to the highest standards and to avoid improper arguments, insinuations, and assertions calculated to mislead the jury.” State v. Freeman, 138 Ohio App.3d 408, 419, 741 N.E.2d 566 (1st Dist.2000), quoting State v. Fears, 86 Ohio St.3d 329, 351, 715 N.E.2d 136 (1999) (Moyer, C.J., concurring in part and dissenting in part). Therefore, a “prosecutor should not invade the jury‘s realm by rendering a personal belief regarding guilt.” State v. Simmons, 2014-Ohio-3695, 19 N.E.3d 517, ¶ 77 (1st Dist.), citing State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). While we acknowledge that prosecutors are afforded some latitude in closing, this leeway crosses the line when a prosecutor “deliberately saturate[s] trials with emotion.” State v. Keenan, 66 Ohio St.3d 402, 409, 613 N.E.2d 203 (1993) (“[P]rosecutor‘s histrionic approach to this case crossed the line that separates permissible fervor from a denial of a fair trial” by expressing opinion about the guilt of the defendant). We have little hesitation in finding
{31} Over a decade ago, in State v. Burrell, 1st Dist. Hamilton No. C-030803, 2005-Ohio-34, we faulted this prosecutor‘s office for calling a defendant a “psychopath” in closing argument, and emphasized that this was not an isolated misstep: “We agree that the prosecutor‘s comments went beyond zealous advocacy into the realm of the patently improper. Yet again, we caution the state about using these tactics.” (Emphasis added.) (Citations omitted.) Id. at ¶ 25. That message has apparently not resonated, as we faced essentially the same issue several years later in Simmons, where this court explained that continued reference to a defendant as an “offender” during closing arguments insinuated the prosecutor‘s belief regarding the defendant‘s guilt and was improper. Simmons at ¶ 77. (We did not grant relief in either Burrell or Simmons in light of the overwhelming evidence in those cases.). We fail to understand why prosecutors must resort to improper name-calling during closing argument rather than letting the strength of their evidence do the talking.
{32} Other courts in Ohio have shared our concern. The Ohio Supreme Court found references to the defendant as a “thug” and “hardnosed goon” improper in other circumstances. State v. Liberatore, 69 Ohio St.2d 583, 433 N.E.2d 561 (1982), fn. 9 (prosecutorial misconduct when prosecutor “characterized the defendant in derogatory terms clearly designed to inflame the jury.“). Even use of the word “predator” once during closing argument constituted improper conduct according to the Fourth District. State v. Canterbury, 4th Dist. Athens No. 13CA34, 2015-Ohio-1926, ¶ 24 (comment improper but not prejudicial in the face of other evidence before the jury).
{34} Second, and more fundamentally, the state cannot demonize (and even dehumanize) a defendant with this type of name-calling in argument. As noted above, such language invites the jury to make its decision based on emotion rather than facts, and we see no purpose for such language in a courthouse erected to serve the ends of justice and the search for truth. Notably, the state fails to identify any case where an Ohio court has upheld the propriety of terms like “wolf” and “predator” during the course of closing argument.
{35} Considering the entire closing argument in context only reinforces our view. In addition to the prosecutor‘s comments labeling Mr. Hall a “predator” and a “wolf,” the prosecutor engaged in improper vouching. Recall, without physical evidence at hand, this case involved a credibility battle between Mr. Hall and his accusers. In closing, the prosecutor vouched for the credibility of the accusers by assuring the jury that they lacked
{36} Nor were these statements accidental, as the prosecutor drove the point home multiple times:
And the [defense counsel] wants to talk about credibility. Who has the motive to lie in this case? This defendant right here, Randy Hall. Not these little girls. They don‘t have the capacity to continue on this year-long conspiracy against him. Give me a break.
* * *
You saw these girls. They do not have the capacity to carry on three independent accounts of sexual abuse by this defendant for over a year.
* * *
[The girls] came in here and did the best of their little girl brain ability to tell you what he did to them. They don‘t have the capacity to form a conspiracy against poor victim Randy Hall.
Prosecutors must not vouch for the credibility of witnesses. State v. Williams, 79 Ohio St.3d 1, 12, 679 N.E.2d 646 (1997) (“It is improper for an attorney to express his or her personal belief or opinion as to the credibility of a witness or as to the guilt of the accused.“); State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 145 (“It is improper for a prosecutor to vouch for the credibility of a witness at trial.“); State v. Wilson, 1st Dist. Hamilton No. C-000670, 2002 WL 598226, *7 (April 19, 2002) (“[T]he prosecutor‘s act of personally vouching for the credibility of the state‘s witnesses was an invasion on the province of the jury * * * it was clearly improper and constituted misconduct.“).
{38} In closing, the prosecutor returned to Detective Noel‘s testimony, reminding the jury that: “Detective Noel told you about her vast experience and how she would not be able to get a viable crime scene or evidence * * * yet, [Mr. Hall‘s] going to ask you to just completely disregard that.” The state also played up the significance of the expert testimony, and of course Detective Noel‘s opinions provided an important corroboration for those of the medical expert. Closing argument thus brings about the confluence of Detective Noel‘s expert testimony with the litany of problematic statements, all of which we must consider against a case without an overwhelming evidentiary foundation. Id. at 411. (“Without overwhelming evidence of guilt, we cannot know what the verdict might have been had not the prosecutor clouded the jury‘s vision with improper tactics.“).
{39} When the jury‘s determination of guilt rests solely on the question of which testimony they believed, the victims’ or Mr. Hall‘s, the prosecutor‘s conduct (denigrating the defendant, calling him a “wolf” and a “predator,” vouching for the state‘s witnesses) compounded the problems inherent in admitting Detective Noel‘s testimony. And under the circumstances, we cannot say with any degree of confidence that the jury‘s determination here was based on the actual credibility of the witnesses rather than the errors at trial because the errors were so significant in terms of their impact on credibility. Thus, Mr. Hall was prejudiced by the admission of the expert testimony, it is not clear beyond a reasonable doubt that this error did not affect the outcome, and the strength of the remaining evidence was no doubt buttressed by Detective Noel‘s testimony. In sum, under these circumstances
III.
{40} For all of the foregoing reasons, we sustain Mr. Hall‘s first assignment of error only insofar as it relates to count 12, and he is therefore discharged on that count. We also sustain his third assignment of error and remand for a new trial on the four remaining counts (one through four). Based on our disposition, we find that the remaining assignments of error are moot and we do not address them.3 See
Judgment reversed and cause remanded.
CROUSE, J., concurs.
ZAYAS, P.J., concurs in judgment only.
Please note:
The court has recorded its own entry this date.