State v. SniderState v. Snider
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Adam Parker, The Goldberg Law Firm, 323 West Lakeside Avenue, Suite 450, Cleveland, OH 44113 (For Defendant-Appellant).
OPINION
{¶1} Defendant-appellant, Jason J. Snider, appeals from his convictions for multiple counts of Attempted Rape, Gross Sexual Imposition, Unlawful Sexual Conduct with a Minor, and Sexual Battery, following a jury trial in the Portage County Court of Common Pleas. For the following reasons, we reverse and remand for further proceedings consistent with this opinion.
{¶3} A jury trial was held on June 29-July 1, 2021. The following pertinent testimony was presented:
{¶4} Johnna Cozza became a foster mother to H.S., born in July 2003, in January 2018 after H.S. was removed from her home where she lived with her biological father, Snider, as well as his girlfriend and H.S.‘s siblings. In May or June 2018, Cozza noticed concerning behaviors, asked H.S. if anything was wrong, and H.S. disclosed sexual abuse. Melinda Andel, a pediatric sexual assault nurse examiner employed with the Children‘s Advocacy Center of Portage County, interviewed H.S. on August 10, 2018. During this interview, H.S. disclosed sexual abuse by Snider, which occurred over a period of several years. It had been a number of months since the last sexual abuse had occurred.
{¶5} Greg Francis, a detective for the Ravenna City Police Department, attempted to discuss these allegations with Snider, who declined to speak with him. He did not attempt to speak to H.S.‘s other family members including her brothers.
{¶6} According to Cozza, in December 2018, H.S. was visiting her brothers and was taken to the public defender‘s office to give a statement, wherein she denied the sexual abuse occurred. This was without Cozza‘s knowledge. H.S. later indicated to social workers that her recantation was not true and she wanted the matter to “go away.”
{¶7} H.S. testified that she had lived in her home with Snider, his girlfriend, her two brothers, and her father‘s friend prior to her removal in 2017. When she was aged five to seven, Snider touched her vaginal area with his fingers. She could not recall how many times this occurred but it was less than five. During that age, Snider also attempted to have sexual intercourse with her but stopped due to the pain she experienced. During the ages of eight to nine, she testified that he again touched her vaginal area more than five but less than ten times. He continued these acts when she was between the ages of ten and twelve. Between the ages of thirteen and fourteen, he had intercourse with her two times. She described these incidents occurring in the basement in an area she described as his “apartment.” Before she was removed in 2017, her “stepmother,” Snider‘s girlfriend, asked her if “stuff happened” and H.S. denied it. H.S. stated that she eventually told Cozza about the abuse because she “suspected something” and it was hard to keep silent.
{¶8} In December 2018, H.S. had a visit with her brothers, who inquired whether the abuse she disclosed happened and who did not believe her. She testified that they wanted her to end the case and she wanted to make them happy. On Christmas Eve, H.S. and her two brothers drove to their dad‘s lawyer‘s office and she made a statement to his lawyer and a court reporter wherein she said she lied and the sexual assaults did not happen. In that statement she said that she thought he needed help for his drinking and she did not want to go home, which was the reason for her allegations. Her case worker subsequently reached out and H.S. told her the recantation was a lie.
{¶10} Tara Wiseman, Snider‘s fiancé, testified that she never saw anything inappropriate and never asked H.S. if she had been abused.
{¶11} Sebastian Snider, Snider‘s son, lived with his father and sister and did not witness any sexual abuse. He testified that he did not tell H.S. to recant. When H.S. mentioned calling her dad‘s attorney, he told her to “do the right thing” but that no matter what happened, they would still be family.
{¶12} At the conclusion of the trial, the State moved to dismiss five counts of Rape, one count of Gross Sexual Imposition, four counts of Unlawful Sexual Conduct with a Minor, and four counts of Sexual Battery. The jury found Snider guilty of two counts of the lesser-included offense of Attempted Rape, six counts of Gross Sexual Imposition, two counts of Unlawful Sexual Conduct with a Minor, and two counts of Sexual Battery.
{¶13} A sentencing hearing was held on August 9, 2021. The court sentenced Snider to serve consecutive terms of 11 years for each count of Attempted Rape, concurrent terms of sixty months for four counts of Gross Sexual Imposition, and sixty months for each of the two counts of Sexual Battery, to be served concurrent to each other and consecutive to the remaining sentence. The other offenses merged for sentencing.
{¶14} Snider timely appeals and raises the following assignments of error:1
{¶15} “[1.] Appellant‘s Convictions are Against the Sufficiency of The Evidence.
{¶16} “[2.] Appellant‘s Convictions are Against the Manifest Weight of the Evidence.
{¶17} “[3.] The Trial Court Plainly Erred by Allowing a State‘s Witness to Offer Opinion Testimony Beyond the Scope of his Expert Report.
{¶18} “[4.] Appellant Received Ineffective Assistance of Counsel Where Trial Counsel Failed to Object to Opinion Testimony Beyond the Scope of the Expert‘s Report.”
{¶19} We will first address Snider‘s third and fourth assignments of error jointly, which are dispositive of the appeal. In his third assignment of error, Snider argues that the court committed plain error by allowing Dr. McPherson to testify as an expert regarding recantation in child sexual abuse cases when his expert report provided to defense counsel did not discuss recantation. In his fourth assignment of error, Snider contends that counsel was ineffective for failing to object to the admission of Dr. McPherson‘s testimony.
{¶20} “Plain error exists when it can be said that but for the error, the
{¶21} To demonstrate ineffective assistance of counsel, a defendant must prove “(1) that counsel‘s performance fell below an objective standard of reasonableness, and (2) that counsel‘s deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel‘s errors, the result of the trial would have been different.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus. “There is a strong presumption that the attorney‘s performance was reasonable.” State v. Gotel, 11th Dist. Lake No. 2006-L-015, 2007-Ohio-888, ¶ 10.
{¶22} At issue here is whether allowing Dr. McPherson to testify about certain topics not included in his expert report constituted reversible error.
{¶23} As an initial matter, we observe that Dr. McPherson‘s expert report was not made part of the record before the trial court and is not present for review before this court. As to its contents, Snider observes that it mentions the topic of delayed disclosure but not recantation. It has been held that where an expert‘s report was not part of the appellate record, the appellate court could not review the trial court‘s determination regarding compliance with
{¶24} We note that both Snider and the State argue that this issue was addressed to some degree at trial, with the State observing in its brief that “[a]lthough his report is not part of the record, questioning revealed that the report addressed the concept of delayed disclosure but not the concept of recantation.” During cross-examination of Dr. McPherson, Snider‘s counsel observed that in his expert report, Dr. McPherson cited studies relating to
{¶25} We first must address an issue raised by the State at oral argument. There, the State contended that it had conversations with the defense attorney prior to trial, outside of court, in which defense counsel conceded that Dr. McPherson‘s testimony should be admitted, thereby precluding the defense from arguing error relating to its admission. This issue was raised by the State for the first time at oral argument and was not set forth in its appellate brief. A party may not advance new arguments for the first time at oral argument. Hughes v. Hughes, 2020-Ohio-4653, 159 N.E.3d 893, ¶ 19 (10th Dist.).
{¶26} Nonetheless, even considering the merits of such argument, we do not find that it alters the result of this appeal. The alleged discussions were held outside of the presence of the trial court and were not made part of the record. We observe that there are procedures for adding or correcting statements excluded from the record.
{¶28} Further, where a report is provided, failure to disclose the specific topics to be addressed in the testimony also requires exclusion of such testimony. In State v. Walls, 2018-Ohio-329, 104 N.E.3d 280 (6th Dist.), the court found that although an expert report was disclosed, where the expert‘s testimony “far exceeded the scope of his report,” and did not include that he intended to testify about grooming, delayed disclosure, or recantation, such testimony must be excluded. Id. at ¶ 23, 37. See State v. White, 8th Dist. Cuyahoga No. 110452, 2022-Ohio-2130, ¶ 39, 42 (“the state violated
{¶29} As the Ohio Supreme Court emphasized, “[t]he purpose of the rule [
{¶30} Courts have addressed the foregoing issue under a plain error standard where defense counsel failed to object, as was the case here. State v. Carpenter, 7th Dist. Monroe No. 19 MO 0010, 2020-Ohio-5295, ¶ 26 (applying plain error standard to admission of expert testimony); State v. Slade, 7th Dist. Mahoning No. 16 MA 0177, 2018-Ohio-2767, ¶ 16-17. One court has observed, however, that a plain error review in these circumstances is “effectively unnecessary because a trial court cannot address a
{¶31} Here, we similarly observe that the court would not have been aware of the concern that the testimony did not match the expert report where this issue was not raised. While questions were asked regarding the report at the end of
{¶32} As noted above, because expert testimony was presented outside of the scope of what was disclosed in the expert report, had defense counsel moved for exclusion of such testimony, such motion would necessarily have been granted consistent with the law. Defense counsel made no such motion or objection to the admission of the testimony. The State argues that it was a matter of trial strategy not to object to Dr. McPherson‘s testimony because counsel did not disagree with the reasons for recanting but sought to disprove them. In this instance, we cannot discern a benefit from or strategy for allowing this testimony. Dr. McPherson‘s testimony indicated that there are various reasons to recant one‘s statement, all of which were not related to the untruthful nature of the accusations. This testimony could have easily demonstrated to the jury that H.S.‘s recantation did not discredit her testimony or render her lacking in credibility. Further, to the extent that the State emphasizes that Snider‘s counsel questioned H.S. about the events surrounding her recantation, counsel could have done this regardless of whether McPherson had testified on this topic. This would allow the defense to discredit H.S. without allowing the jury to hear expert testimony justifying the reasons her recantation was false. The State essentially emphasizes the actions counsel took to disprove the reasons for recantation given by McPherson, but McPherson‘s testimony would not have required refutation if it was not admitted in the first place. We recognize that there is a strong presumption that a challenged action by counsel “might be considered sound trial strategy,” State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995), but we do not find that presumption applies here. It has been held that “the failure to object to the admission of the expert testimony [given in violation of
{¶33} To reverse based on ineffective assistance, it is also necessary to find the error was prejudicial. In the present matter, the convictions were based on the testimony of H.S. There was no physical evidence to corroborate her testimony or witnesses to the abuse. After disclosing the sexual abuse to authorities, H.S. recanted the allegations to Snider‘s attorney and before a court reporter. She subsequently stated she had been lying when recanting. Given her inconsistent statements regarding whether the abuse occurred, testimony from Dr. McPherson regarding reasons a child victim may recant was of significant importance in this case. It likely had an impact on the jury‘s determination of guilt.
{¶34} In McGhee, this court found that expert testimony which explained delayed disclosure was important to the State‘s case and may have “significantly buttressed” the victim‘s credibility to the prejudice of the defendant, since the jury might otherwise “question” the victim‘s testimony that the defendant had been molesting her for four years. 2017-Ohio-5773, at ¶ 20. Similarly, in Walls, the court determined that failure to properly disclose an expert report was prejudicial because the expert‘s testimony was intended to “carry great weight” and there was no physical evidence in the case. 2018-Ohio-329, ¶ 45-46. As the court noted, “[t]he state‘s case hinged largely upon whether the jury believed” the victim
{¶35} The third and fourth assignments are with merit.
{¶36} In his first assignment of error, Snider argues that his convictions were not supported by sufficient evidence. Although reversing the convictions on the grounds stated above, we will address this issue since a finding that a conviction is supported by insufficient evidence “is functionally an acquittal” and bars retrial. State v. Ramirez, 159 Ohio St.3d 426, 2020-Ohio-602, 151 N.E.3d 598, ¶ 12.
{¶37} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black‘s Law Dictionary (6 Ed.1990), 1433. In reviewing the sufficiency of the evidence, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶38} To convict Snider of Gross Sexual Imposition, the State was required to prove, beyond a reasonable doubt, that he had “sexual contact with another” when “[t]he other person * * * is less than thirteen years of age.”
{¶39} First, Snider argues that the “only evidence of Appellant‘s guilt was the testimony of H.S.” and that, “[g]iven her contradictory statements, H.S.‘s testimony was not sufficient for a reasonable jury to find Appellant guilty beyond a reasonable doubt.” “In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact.” State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, 968 N.E.2d 27, ¶ 25 (1st Dist.). The issue of whether H.S.‘s testimony was believable is not a relevant consideration in a sufficiency analysis.
{¶40} H.S. testified as to multiple acts of sexual conduct and sexual contact committed by her father when she was between five and fourteen years old. These included repeated acts of touching her vaginal area and multiple acts of penetration or attempted penetration. This testimony established each of the elements of the offenses, including sexual conduct and sexual contact, her age at the time of the sexual acts, and, for Sexual Battery, that Snider was the victim‘s parent.
{¶41} Snider also argues that “the evidence for the second of Appellant‘s convictions for attempted rape is particularly lacking” since she testified that the Attempted Rape occurred “once or twice” which could not support two convictions. The Attempted Rape convictions were for conduct that occurred when H.S. was less than ten years old. H.S. testified that when she was between five and seven, Snider began to penetrate her with his penis but stopped because it hurt her, saying this happened “once or twice.” However, she also later said that there were “attempts” at penetration during that time period. The prosecutor followed up, stating, “I think you said that happened on approximately a couple of occasions in that time frame [between the ages of five and seven], to which H.S. responded affirmatively. While her statement about “one or two” attempts and later statements referencing “attempts” in the plural may be conflicting and raise questions about how much weight to give such testimony, we find that there is sufficient evidence to demonstrate multiple attempted rapes occurred.
{¶42} The first assignment of error is without merit.
{¶43} In his second assignment of error, Snider argues that his convictions were not supported by the weight of the evidence. Since we are reversing the convictions for the reasons addressed above, this assignment of error is moot.
{¶44} For the foregoing reasons, Snider‘s convictions for Attempted Rape, Gross Sexual Imposition, Unlawful Sexual Conduct with a Minor, and Sexual Battery are reversed and this matter is remanded for further proceedings consistent with this opinion. Costs to be taxed against appellee.
THOMAS R. WRIGHT, J., concurs,
CYNTHIA WESTCOTT RICE, J., dissents, with a Dissenting Opinion.
CYNTHIA WESTCOTT RICE, J., dissents, with a Dissenting Opinion.
{¶45} I respectfully dissent.
{¶46} While I agree it was erroneous to allow Dr. Pherson to testify as an expert regarding recantation in child sexual abuse cases when his expert report provided to
{¶47} Moreover, even if the failure to object was not trial strategy, I would find that such error was not prejudicial and constituted only harmless error. “After finding that the trial court[ ] erred in admitting the expert testimony, * * * courts of appeals next consider[ ]
{¶48}
{¶49} The Supreme Court of Ohio has set forth a three-part analysis to guide appellate courts in determining whether the erroneous admission of certain evidence affected the defendant‘s substantial rights so as to require a new trial or whether the admission of that evidence was harmless error 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.) State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, ¶ 37.
{¶50} As the majority stated, the purpose of
{¶51} Because I would find that counsel was not ineffective for failing to object to Dr. McPherson‘s testimony regarding recantation and because the inclusion of his testimony was harmless error, I would affirm the decision of the lower court. I respectfully dissent.