[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State v. Boaston , Slip Opinion No. 2020-Ohio-1061.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2020-O HIO -1061
T HE S TATE OF O HIO , A PPELLEE , v . B OASTON , A PPELLANT
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as State v. Boaston , Slip Opinion No. 2020-Ohio-1061.] Criminal Law—Crim.R. 16(K)—It is error to admit expert opinion testimony when the expert’s opinion was not set forth in a written report prepared in compliance with Crim.R. 16(K)—The tr ial court’s admission of testimony that went beyond the scope of the expert’s written report was harmless error as the remaining evidence overwhel mingly established appellant’s guilt beyond any reasonable doubt—Court of appeals’ judgment affirmed. (No. 2018-0364—Submitted June 11, 2019— Decided March 26, 2020.)
A PPEAL from the Court of Appeals for Lucas County, No. L-15-1274, 2017-Ohio-8770.

_________________ D ONNELLY , J. {¶ 1} This discretionary appeal from a judgment of the Sixth District Court of Appeals presents us with the opportunity to construe Crim.R. 16(K). The issue is whether the admission of exp ert opinion testimony that was n ot set forth in aS UPREME C OURT OF O HIO

2 written report is reversible error. We hold that it is error t o admit expert opinion testimony when the expert’s opinion was not set forth in a writ ten report prepared in compliance with Crim.R. 16(K). In this case, however, the t rial court’s admission of testimony that went beyond the scope of the expert ’s written report was harmless error. Therefore, we affirm the judgment of the S ixth District Court of Appeals, although on grounds othe r than those stated in its opinion.
I. FACTS {¶ 2} In April 2014, appellant, Ronald Boaston (“Boaston”), was indic ted
on one count of murder in viola tion of R.C. 2903.02(A) and one count of murder in violation of R.C. 2903.02(B) for the death of his ex-wife, B randi GonyerBoaston (“Brandi”). {¶ 3} Boaston’s trial began on Sept ember 15, 2015. The jury heard testimony from numerous witnesses, including the deputy coroner , family members, Brandi’s co-workers and friends, police officers, and other lawenforcement personnel. Although Boaston did not take the stand , his recorded voluntary interviews with the police were played and admitted i nto evidence. A. Early relationship history {¶ 4} Boaston and Brandi were neighbors and met when 16-year-old Bran di began to babysit two of Boaston’s children. At the time, Boast on was in his late 20s. When Brandi was 18, she became pregnant with the first of two children she and Boaston had together. They got married in 2005. Their mar riage ended in 2006, according to Boaston, due to Brandi’s infidelity. Althou gh Boaston and Brandi never remarried, they rec onciled the following year and lived together with their two children and three children from previous relationshi ps. In early 2014, all seven were living together in a condominium unit on Amanda Circ le, in Toledo, located in Lucas County.January Term, 2020

3 B. 2013 {¶ 5} In 2013, Brandi graduated from nursing school and started worki ng at a senior-care facility, Arbors of Waterville. Through her job, Brandi developed a friendship with Daron Walls-Jones (“Jones”), a co-worker. In t he fall of 2013,
Boaston discovered that Brandi a nd Jones were exchanging text m essages. Because Boaston suspected that Brandi was being unfaithful, he had inst alled spyware on her cell phone, software that allo wed him to monitor her text m essages without her knowledge. {¶ 6} In late-October 2013, Boaston contacted Jones and asked him if he was sleeping with Brandi. Although Jones denied having a sexual relationship with Brandi, Jones and Brandi decided to stop texting and instead be gan communicating by voice calls. Stymied by the inability to monitor Brandi and Jones’s cell-phone calls, Boaston added a second sp yware program to Brandi’s phone that enabled him
to record and listen to he r voice conversations.
C. 2014
1. Bathtub incident {¶ 7} Sometime near the end of January or the beginning of February 2 014, Brandi and Boaston were in the bathroom together at their Amand a Circle residence. According to testimony elicited from several witnes ses, Brandi told
them that Boaston tried to drown her in the bathtub while she w as taking a bath. Brandi suffered two black eyes and an injury to her nose. A ne ighbor who lived in the bordering condominium testifie d that one day during this ti me frame, she heard a woman’s scream and the sound of running water coming from the Boaston residence through an adjoining wall. {¶ 8} Boaston admitted that Brandi sustained a black eye and bruises one day when they had just finished taking a bath together. He cla imed that after he stepped out of the tub, Brandi ask ed whether he intended to har m her. In response to this question, he forcefully splashed water two to three tim es at Brandi who wasS UPREME C OURT OF O HIO

4 lying back in the bathtub. Boaston denied striking Brandi or a ttempting to drown her, and instead claimed that B randi had “spazzed out” and was somehow injured while overreacting to having water splashed in her face.
2. Brandi leaves {¶ 9} On February 3, shortly after the bathtub incident, Brandi moved out of the Amanda Circle residence and moved in with her mother. S oon thereafter, Brandi and her mother applied to rent a mobile home together. After Brandi moved out, Boaston closed their joint checking account and opened his own personal checking and savings accounts. {¶ 10} Although Brandi and Boaston’s re lationship remained tumultuous over the next several days, Bra ndi returned to the Amanda Circl e residence nearly every day to prepare the children for school and to help them w ith homework in the
afternoons. 3. Cell-phone activity {¶ 11} Brandi purchased a new cell phone around the time of her move. Her number, however, remained unchang ed, and Boaston was able to ad d spyware to this phone as well. {¶ 12} At trial, the state introduced cell-phone communications it had retrieved for the time period from February 1 through February 15. According to the cell-phone records and Jones’ s testimony, Brandi and Jones resumed texting each other shortly after she moved out. Boaston monitored thei r communications and on numerous occasions contacted Brandi after a particularly suggestive communication. For instance, on one occasion after Brandi had texted Jones, “should have let me kidnap you,” Boaston immediately texted Bra ndi, “I wish u would stop acting so hateful towards me.” {¶ 13} Boaston’s phone-harassment campaig n against Brandi persisted. On February 12, Brandi texted him, “Don’t start being a jerk. i ca n call my kids * * * anytime I want.” After this text, Boaston called Brandi eight times in six minutesJanuary Term, 2020

5 prompting Brandi to text: “Stop calling me. I’m not guna talk t o u n hv u calln me a c**t.” Despite Brandi’s text, Boaston persisted, calling Bra ndi’s phone seven more times over the next several minutes and texting, “Why wont u answer ur phone???” {¶ 14} That same day, Boaston went to Brandi’s mother’s home while
Brandi was there alone. Bra ndi called her mother and told her that Boaston was at
the house. When Brandi’s mother arrived home, she heard Boasto n tell Brandi that “either [she] or [Jones] was gonn a pay.” Brandi’s mother told Boaston to leave. {¶ 15} That afternoon, Brandi also texted Jones that Boaston “just sta rted trippn” and “[h]e f**kn came over n went through my phone n got pissed I was textn u. Don’t know if he was threatn me or wat.” Previously, Brandi had also told Jones that Boaston had pictures of Jones on a desk at the Amand a Circle condominium. Jones responded to B randi’s texts expressing his concerns about Boaston, and he and Brandi discussed taking a break from each o ther. In an attempt to reassure Jones, Brandi explained, “He just mad bc I won’t go back he is not going to do anything to u or me bc he know he guna get in trouble if he does” and, “He
don’t want to lose the kids n he w ill if something happens.” 4. February 13 and early-morning hours of February 14 {¶ 16} The next day, February 13, Brandi spent time alone with Boaston at the Amanda Circle residence before reporting to work for her sh ift, which started at 6:00 p.m. Earlier in the day, w hile Brandi slept, Boaston r ead the text messages on her phone because the spyware program attached to Brandi’s n ew phone did not
work as well as the earlier vers ions he had used. Additionally , Boaston purchased $20.00 of gas for Brandi’s car at approximately 8:30 a.m. that morning. {¶ 17} Brandi began her shift at Arbors of Waterville at 6:00 p.m. Wh ile at work, she and a co-worker made p lans for the following night of February 14. Brandi and Jones began texting at approximately 8:30 p.m. By 1 0:30 p.m., their exchanges turned flirtatious and at roughly 12:15 a.m., the con versation was evenS UPREME C OURT OF O HIO

6 more sexually charged. At 12:25 a.m., Brandi invited Jones to come out with her and her co-worker the following evening and Jones agreed to mee t them. At 1:25 a.m., Brandi texted, “Well wat if I jump on u?” to which Jones replied, “Well wat can I say.” Brandi then asked, “U really want to do something or u playn around.” Jones responded, “I do” and Brandi answered, “Well what should we do.” Boaston
texted Brandi six minutes later , but the text content was unrec overable. {¶ 18} Around 2:00 a.m. on February 14, Boaston drove to the apartment
of his friend Matt Gwozdz. 1 Gwozdz’s friend Mark Reno was there as well. Boaston admitted to having discu ssed his relationship problems with them. {¶ 19} According to Reno, Boaston asked Reno for a gun or for someone to “take care of some business.” Reno asked if they needed to “ga ther up the home boys and go take care of some shit,” and whether someone needed to be “pistolwhip[ped]” or put “in ICU or something.” Reno testified that B oaston responded, “Something like that, but deeper .” At first, Reno thought Boas ton was kidding. However, Reno then realized Boa ston was serious and surmised th at Boaston meant to do harm to some guy “that was f**king with his family.” At some point after this discussion, Reno left Gwozdz’s home. After he left, Boast on called Reno at 2:51 a.m. with his prepaid Verizon cell phone. 2 The call lasted for over eight minutes, and the record of the call was subsequently deleted fr om Boaston’s phone. Reno testified that during the ca ll, Boaston asked if they coul d “meet up tomorrow afternoon sometime and mayb e have lunch and talk.” {¶ 20} At 2:59 a.m., Boaston purchased gas for his car. He then drove across town and at 4:06 a.m., wit hdrew $100 from an ATM. {¶ 21} Brandi left work at approximate ly 7:00 a.m. Before she left, B randi told a co-worker that she was going to Boaston’s house to get t he kids ready for

1. Matt Gwozdz was deceased at the time of trial.
2. Boaston had a prepaid Verizon cell phone, which he used infr equently, and a Sprint cell phone that he used on a regular basis for most of his texts and voice calls.January Term, 2020

7 school, then was going back to her mother’s to sleep, and would later drive one of Boaston’s sons and his son’s girl friend to a restaurant for din ner. 5. February 14, 2014 {¶ 22} Boaston placed a call to Brandi at 6:40 a.m. According to Boas ton, the purpose of the call was to confirm she was coming over to t he Amanda Circle
residence after work. Brandi ret urned Boaston’s call at 7:02 a .m. On her way to Amanda Circle, Brandi stopped at a McDonald’s near the condomin ium and bought two sausage breakfast sandwiches at 7:21 a.m. According to Bo aston, he and
Brandi ate the sandwiches shortl y after Brandi arrived at the r esidence, and then Brandi helped the kids get ready for school. {¶ 23} Boaston told Brandi’s mother th at Brandi took a shower after th e kids left for school. According to Brandi’s mother, Boaston sa id that he wanted to engage in intercourse, but when Brandi refused, Boaston said so mething to the effect of, “[I]f I were Daron you would,” and “asked if she was saving it for Daron.” In an interview with the police, Boaston stated that he and Bra ndi showered that morning and although he wanted to have sexual relations, Brandi declined because she had an upset stomach. According to Boaston, Brandi lay dow n, he rubbed her, and Brandi slept. Boaston told t he police that when Brandi wok e up, she put her dirty clothes back on, gave him a kiss, and left the house betw een 10:30 and 10:45 a.m. He said Brandi intended to return later that day to file their taxes, give his son a ride to dinner, and then celebra te Valentine’s Day with the f amily. 6. Cell-phone record s and activity {¶ 24} A Toledo detective, an expert in cell-phone-record analysis, te stified that cell-phone records show which cell towers and which side o f a particular tower a given cell phone is transmitting signals to when the phone ma kes or receives a call. Further, the records offer an approximate distance betwe en the cell phone and the tower receiving the signal. He explained that with this in formation, an expertS UPREME C OURT OF O HIO

8 can determine the “general vicinity” a given phone was in at a particular time the
device was used to make or answer a call. {¶ 25} By tracking the signals sent from Brandi’s and Boaston’s phones to various cell-phone towers, the de tective determined that both B oaston’s and Brandi’s cell phones were near the southeast sector of Tower 17 in the vicinity of the Amanda Circle residence until 10:41 a.m. that morning. At 11:15 a.m., Brandi’s phone registered data use to a tower (Tower 929) in Fulton Coun ty, which is far west of the Amanda Circle residence. Twelve minutes later, at 11:27 a.m., Brandi’s phone received an incoming call, r egistering to its final cell tower (Tower 976) from
another location in Fulton Count y—approximately 20 miles from t he Amanda Circle residence—where Brandi’s body and her phone and SUV were eventually found the following morning. {¶ 26} During this time period, Boaston’ s last registered phone activi ty occurred at 10:41 a.m. near the Amanda Circle residence. Boast on’s phones did not record any activity from 10:41 a.m. until 11:36 a.m. Testi mony established that a cell phone will not transmit signals to cell towers if it is turned off. At 11:36 a.m., Boaston’s Sprint phone received an incoming call from one of hi s sons. At that time, Boaston’s phone transmitted a signal to Tower 17, but not from the sector closest to Amanda Circle, suggesting he was near—but not at—the residence. Boaston called Brandi’s phone at 12:04 p.m., at which point his phone was back
near the Amanda Circle home. {¶ 27} Boaston withdrew $60 from another ATM at 12:41 p.m. Between 12:04 and 1:48 p.m., Boaston called Brandi five times using his Sprint phone and texted her asking, “kids are going to be home s oon. Did you still want to file taxes today or what?” 7. February 15, 2014 {¶ 28} Just before 8:00 a.m. on the morning of February 15, hunters
discovered Brandi’s S UV, with its engine running, parked in a s now-covered ruralJanuary Term, 2020

9 field in Fulton County roughly 20 to 30 yards from the road. Tw o key fobs were lying on the passenger seat and one set of boot prints led from the driver’s side of the vehicle to the road. The po lice were called to the scene. {¶ 29} Brandi’s body was discovered in the rear cargo area of the SUV. Clear, heavy plastic was partially wrapped around her body. Br andi was dressed in a shirt, pants pulled down to the mid-thighs, underwear, and a single sock. Two coats, one inside the other, were stuffed behind her body, alon g with some boots and shoes. Brandi’s damaged cell phone was on the road nearby, and a McDonald’s receipt, dated February 14 and time-stamped 7:21 a.m., was in t he car. D. Physical and forensic evidence {¶ 30} A special agent in the Crime Scene Unit of the Bureau of Crimin al Investigation (“BCI”) testified that BCI personnel vacuumed the plastic tarp with a
handheld “forensic vacuum” and sw abbed various areas of Brandi’ s body and the SUV for DNA testing. {¶ 31} A DNA mixture was found on the vehicle’s push-start button from
which neither Boaston nor Brandi could be excluded. A DNA prof ile could not be
obtained from the swabs taken from the rear driver’s side inter ior door handle, the gear shifter, steering wheel, or trunk handle. However, the BC I DNA analyst testified that if someone was wearing gloves, that would preven t the transfer of DNA. The backs of Brandi’s pant legs were swabbed in the knee and calf areas since someone carrying her body would likely have made contact with these areas. It was determined that both areas contained genetic material ma tching the Boastonmale profile and at l east one other uniden tified male profile. {¶ 32} When Boaston was interviewed by the police on February 15,
detectives noticed two small sc ratches on his face and neck. A lso, in an area just below the hood of Boaston’s sweatshirt, police identified a 2.5 -inch rip in a seam, which corresponded with the scratch wounds on the back of his n eck. Testing near the rip revealed Boaston’s DNA but was “inconclusive” as to Bra ndi, which meantS UPREME C OURT OF O HIO

10 that she could not be included or excluded as the contributor. The sweatshirt sleeves tested positive for Boast on’s and Brandi’s DNA and also revealed
additional DNA. That additional DNA, however, was not sufficie nt for comparison. Detectives found a glove in each pocket of Boaston ’s coat. Each glove had a Velcro strap and buckl e that could be tightened aro und the wrist. One of the gloves had a lot of long, light-brown human hair embedde d in an outer Velcro strap and buckle that appeared t o have been forcefully “pulled” from the head. The buckles on the gloves and the hair were tested. The right glov e buckle contained DNA, but not from Brandi. Boast on’s left glove buckle did not contain sufficient material for testing, which could mean no DNA was even present. The hair was a
match for Brandi’s DNA. {¶ 33} The Amanda Circle residence wa s searched, but no blood evidence
was found. E. Deputy-coroner testimony {¶ 34} The forensic pathologist/deputy coroner, Dr. Scala-Barnett, tes tified that Brandi suffered visible injuries to her neck and face and that her face was dark purple in color, a condition consistent with asphyxiation. Bra ndi had an abrasion under her chin, with bruising and a laceration inside her lower lip. She had hemorrhages associated with asphyxiation in her eyeballs and di fferent layers of her neck muscles, and she had numerous tiny, pinpoint hemorrhag es all over her face and eyelids. The deputy cor oner concluded that the cause o f death was strangulation and the manne r of death was homicide. {¶ 35} Dr. Scala-Barnett examined the stomach contents as part of the autopsy protocol. She testified that a victim’s stomach conten ts may prove to be helpful information if it is know n when the victim last ate. S he explained that digestion ceases once a person is dead. She testified that Bra ndi had 110 cubic centimeters, just over three ounces, of food material in her st omach, including recognizable meat particles. Dr. Scala-Barnett said that durin g the digestion of aJanuary Term, 2020

11 small meal, such as a breakfast sandwich, “gastric contents wil l start to empty in
about two hours.” She concluded that “based on a reasonable de gree of scientific certainty,” Brandi died “withi n one to two hours after she ate her sandwich.” {¶ 36} Two days after the autopsy, a detective brought in a glove coll ected from Boaston for a side-by-side comparison of a rectangular abr asion under
Brandi’s chin. Dr. Scala-Barnett testified that she “test-fit” a buckle on one of the gloves by putting a clear plastic sheet over Brandi’s face and placing the buckle against the abrasion. Dr. Scala-Barnett testified that the abr asion was consistent with the pattern, shape, and roug hened material of the buckle a nd Velcro on one of Boaston’s gloves.
F. Conviction {¶ 37} After a six-day trial, the jury deliberated for three and a hal f hours and returned with guilty verdic ts for both murder counts. Boas ton was sentenced to a mandatory prison ter m of 15 years to life.
II. ARGUMENTS A. Information relevant to arguments {¶ 38} During the course of discovery, the state provided the deputy coroner’s written autopsy report. The report detailed Dr. Scal a-Barnett’s findings,
which included her dete rminations as to the appearance and weig ht of the contents in Brandi’s stomach, but did not include her opinion as to the time of death based
on those stomach contents. This report was turned over to defe nse counsel more than a year before the t rial began in September 2015. {¶ 39} In addition, during the course of discovery, the state produced numerous photographs of Brandi’s body. One photograph was a cl ose-up of Brandi’s face, which showed a distinct rectangular abrasion bel ow her chin. Another photograph depicted that same area of Brandi’s face cov ered with a sheet of flexible plastic wrap with a buckle of a glove laid against the abrasion to permit a visual comparison of the size and shape of the abrasion and t he buckle on theS UPREME C OURT OF O HIO

12 glove. The state also produced a detective’s report regarding his comparison of the chin abrasion with the glove buc kle. However, the coroner’s re port did not mention
the test-fit that was conducte d or Dr. Scala-Barnett’s opinion on this topic. {¶ 40} Dr. Scala-Barnett met with defen se counsel 19 days before trial and, based on the findings contained in the autopsy report, shared h er opinion as to Brandi’s time of death and her opinion that the shape of the ab rasion under Brandi’s chin was consistent with the shape of the buckle on a glove tha t had been collected from Boaston. Defense counsel then “suggested” that the state supply a supplemental report, but the s tate chose not t o provide one. {¶ 41} At trial, defense counsel moved to exclude any opinion testimon y by the deputy coroner as to the time of death and glove-buckle com parisons because Dr. Scala-Barnett failed to provide a written report summarizin g these opinions at least 21 days prior to trial, as required by Crim.R. 16(K), or alternatively, she failed to supplement her report with an addendum following defense cou nsel’s meeting
with her. The trial court overru led counsel’s objections and p ermitted the opinion testimony, noting that defense counsel had the autopsy report w ell in advance of trial and had “chose[n]” to meet with Dr. Scala-Barnett 19 days before the trial began. The court of appeals upheld the trial court’s judgment based on the trial court’s broad discretion in reg ulating the admission of evidenc e and on waiver. 2017-Ohio-8770, 100 N.E.3d 1002, ¶ 49. We accepted the discret ionary appeal. B. Arguments of the parties {¶ 42} Boaston argues that the state’s failure to supply a written rep ort providing the deputy coroner’s opinions and “scientific reasoni ng” that (1) Brandi
died within one to two hours afte r eating and (2) the bruise un der Brandi’s chin was consistent with Boaston’s glove v iolated Crim.R. 16(K). He cla ims that these “two critical opinions * * * provide[d] the only circumstantial link s to implicate [him] with the murder.” Therefore, Boaston contends that “the trial court was mandatedJanuary Term, 2020

13 to prohibit” Dr. Scala-Barnett’s testimony on these topics purs uant to Crim.R. 16(K), and that its ad mission entitles him to a new trial. {¶ 43} The state asserts, among other arguments, that Crim.R. 16(K) si mply requires “a written report summarizing ‘the expert witness’s te stimony, findings, analysis, conclusions, or opinions’ ” and does not require “sci entific reasoning.” Therefore, it contends the rule did not require the exclusion o f certain portions of Dr. Scala-Barnett’s opinion testimony that were not specificall y articulated in the autopsy report. The state also argues, in the alternative, tha t even if it did violate Crim.R. 16(K), the rule is subject to the requirements of Crim. R. 52 so that error in the admission of an expert opinion not specifically stated in t he deputy coroner’s written report is reversible only when the error is prejudicial to the defendant’s substantial rights.
III. LAW AND ANALYSIS
A. Crim.R. 16 {¶ 44} Crim.R. 16 governs discovery in criminal cases. Effective July 1, 2010, Crim.R. 16 underwent comprehensive changes in large part to strengthen the protections of a defendant’s constitutional due-process rights to a fair trial. Grove, Criminal Discovery in Ohio: “Civilizing” Criminal Rule 16 , 36 U.Dayton L.Rev. 143, 144-145 (2011). The new Crim.R. 16 promoted “more open di scovery,” id . at 144, leveling the playing field by strengthening the defendant’ s right to know the evidence the state will present against him at trial. {¶ 45} Crim.R. 16 begins by providing th at the purpose of the rule is:

[T]o provide all parties in a criminal case with the informati on necessary for a full and fair adjudication of the facts, to pro tect the integrity of the justice system and the rights of defendants, a nd to protect the well-being of witn esses, victims, a nd society at la rge.S UPREME C OURT OF O HIO

14 Crim.R. 16(A). {¶ 46} As part of the rule’s changes in 2010, Crim.R. 16(K) was adopte d, requiring that expert witnesses generate written reports and th at those reports be disclosed to the opposing party no later than 21 days before tr ial. See State v. Walls, 2018-Ohio-329, 104 N.E.3d 280, ¶ 27 (6th D ist.). Crim.R. 16(K) states:

An expert witness for either side shall prepare a written report summarizing the expert witness’s testimony, findings, analysis, conclusions, or opini on, and shall include a summary of the expert’s qualifications. The written report and summary of qualifications shall be subject t o disclosure under this rule n o later than twenty-one days prior to trial, which period may be modifi ed by the court for good cause shown, which does not prejudice any other party. Failure to disclo se the written report to opposin g counsel shall preclude the ex pert’s testimony at trial.

{¶ 47} Here, to be clear, an autopsy report was provided to the defens e well in advance of 21 days before trial, so this is not a case invol ving the admission of expert testimony in the complete absence of an expert report. But that report did not contain all the opinions that the state ultimately sought t o elicit from the deputy coroner at trial. The question, then, is whether Crim.R. 16(K) required the exclusion of Dr. Scala-Barnett’s testimony that went beyond the scope of her written autopsy report. {¶ 48} Consistent with the overall purpos e of Crim.R. 16, lower courts have found that “ ‘[t]he purpose of Crim.R. 16(K) is to avoid unfair surprise by providing notice to the defense and allowing the defense an opportunity t o challenge the expert’s findings, analysis, or qualifications, possibly with t he support of an adverse expert who could discredit the opinion after carefully reviewin g the writtenJanuary Term, 2020

15 report.’ ” State v. Fetty, 11th Dist. Portage No. 2011-P-0091, 2012-Ohio-6127, ¶ 36, quoting State v. Perry , 11th Dist. Lake No. 2011-L-125, 2012-Ohio-4888, ¶ 55; see also State v. Buck , 2017-Ohio-273, 81 N.E.3d 895, ¶ 33 (9th Dist.). {¶ 49} Here, the state provided Dr. Scala-Barnett’s autopsy report to defense counsel over one year before trial. Of no less importa nce, defense counsel met with Dr. Scala-Barnett 19 days before trial and learned her conclusions regarding Brandi’s stomach contents and time of death and the g love-buckle comparison. To the extent that Crim.R. 16(K) gives a trial cou rt discretion to adjust the date for the production of a report, the production of a su pplemental report could have cured any noncompliance with the rule without prejudicing Boaston’s right to
a fair trial. {¶ 50} Moreover, there is no suggestion that Dr. Scala-Barnett’s unwri tten opinions affected Boaston’s defen se strategy. No continuance w as requested. In fact, defense counsel engaged in a rigorous cross-examination o f Dr. Scala-Barnett as to her time-of-death and glove-buckle-analysis opinions. See State v. Mobley, 2d Dist. Montgomery No. 26858, 2016-Ohio-4579, ¶ 36 (defendant failed to demonstrate prejudice when he made no showing of surprise or a need for
additional information or that he would have obtained his own e xpert if he had known the expert’s opinion earlier); see also State v. Groesser, 5th Dist. Stark No. 2017CA00182, 2018-Ohio-2713, ¶ 30 (defendant was aware before t rial of the substance of testimony to be offered by witnesses, and he faile d to elucidate with any specificity how, even assuming the witnesses had testified as experts, the lack of a report prevented him from retaining his own expert witness ). Insofar as the purpose of Crim.R. 16 is to avoid unfair surprise, no such unfa ir surprise occurred
here. But that does not end our analysis. {¶ 51} Appellate courts have split on the issue whether trial courts m ust exclude expert testimony in all cases of noncompliance with Cri m.R. 16(K). Some courts have held that exclusion is not always required, reasoni ng that a trial courtS UPREME C OURT OF O HIO

16 retains discretion in regard to evidentiary matters. See State v. Proby, 10th Dist. Franklin No. 14AP-1067, 2015-Ohio-3364, ¶ 32-33; State v. Opp , 3d Dist. Seneca No. 13-13-33, 2014-Ohio-1138, ¶ 16; State v. Retana, 12th Dist. Butler No. CA2011-12-225, 2012-Ohio-5608, ¶ 53-54. {¶ 52} Other courts have found that Crim. R. 16(K) removes the trial co urt’s discretion and mandates the exclusion of expert testimony when a written report
has not been disclosed in accordance with the rule. Walls, 2018-Ohio-329, 104 N.E.3d 280, at ¶ 31; State v. Hall, 1st Dist. Hamilton Nos. C-170699 and C-170700, 2019-Ohio-2985, ¶ 20; State v. McGhee , 11th Dist. Trumbull No. 2014-T-0106, 2017-Ohio-5773, ¶ 21. {¶ 53} Many of the cases that rely on a court’s broad discretion in re gulating the admission of evidence, see, e.g., Proby at ¶ 33, cite to another section of the rule, namely Crim.R. 16(L) (1), which states:

The trial court may make orders regulating discovery not inconsistent with this rule. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule o r with an order issued pursuan t to this rule, the court may order su ch party to permit the discove ry or inspection, grant a continuan ce, or prohibit the party from introducing in evidence the material not disclosed, or it may m ake
such other order as it deems just under the circumstances.

{¶ 54} Here, the Sixth District app eared to follow this reasoning. 3 2017- Ohio-8770, 100 N.E.3d 1002, at ¶ 44, 52-53. However, we cannot subscribe to this

3. The appellate court also concluded that Boaston waived the i ssue by not raising it at trial pursuant to Crim.R. 12(C)(4). 2017-Ohio-8770, 100 N.E.3d 1002, at ¶ 50, 53. This is a misreading of Crim.R. 12(C)(4). Crim.R. 12(C)(4) does not require a party to object to every Crim.R. 16 discovery violation before trial. The rule simply requires that a party must raise objections regarding requestsJanuary Term, 2020

17 analysis for the simple fact that the plain language of Crim.R. 16(K) limits the trial
court’s discretion a nd provides its own specific remedy for a v iolation of the rule.
See State ex rel. Law Office of Montgomery Cty. Pub. Defender v. Rosencrans , 111 Ohio St.3d 338, 2006-Ohio-5793, 856 N.E.3d 250, ¶ 23 (“To inter pret court rules, this court applies general princi ples of statutory construction ”). Thus, if a court rule is unambiguous, it is to be applied as written. Erwin v. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 22. {¶ 55} The plain language of Crim.R. 16(K) expressly provides the consequence for failing to disclose an expert’s report as requi red: “Failure to
disclose the written re port to opposing counsel shall preclude the expert’s testimony at trial.” (Emphasis added.) Crim.R. 16(L)(1) impli citly acknowledges this remedy: “The trial court may make orders regulating discov ery not inconsistent
with this rule .” (Emphasis added.) And while C rim.R. 16(K) confers some measure of discretion on trial judges, it is limited to modifyi ng the 21-day requirement “for good cause s hown, which does not prejudice any other party.” B. Inadmissible Expert Testimony {¶ 56} In this case, it is clear that Dr. Scala-Barnett formed opinion s as to when Brandi’s death occurred and whether Boaston’s glove buckle could have caused the rectangular abrasion under Brandi’s chin. These opi nions—and the studies she discussed regarding her time-of-death opinion—were not set forth in her autopsy report. The significance of the time-of-death opin ion based on the stomach-content findings is impor tant because it puts Brandi’s time of death during a period when Boaston admitted to having been alone with Brandi at his residence. Additionally, the glove-buckle comparison provided an explanat ion for what may

for discovery under Crim.R. 16 before trial. Here, Boaston’s moti on was to exclude evidence that the state sought to introduce—the deputy coroner’s time-of-deat h and glove-buckle-comparison testimony—that was not properly included in the written report required under Crim.R. 16(K).S UPREME C OURT OF O HIO

18 have caused the distinct chin abrasion likely inflicted during Brandi’s struggle or her strangulation. {¶ 57} Because these were opinions that Dr. Scala-Barnett formulated a nd the state intended to offer into evidence, they should have bee n set forth in a report or supplemental report pursuant t o Crim.R. 16(K). This would h ave placed Boaston on formal notice of this substantive opinion testimony and give n him the opportunity to seek other expert-opinion testimony on these iss ues. Even the state’s brief concedes that “Crim.R. 16(K) would have been satisfied through a single additional sentence: ‘I will testify that the victim died with in 1 to 2 hours after she
ate a breakfast sandwich and th at the buckle on the glove marke d as an exhibit appears consistent in shape and pattern with the mark on the vi ctim’s neck.’ ” 4 (Emphasis added.) {¶ 58} We agree with Boaston that the state violated Crim.R. 16(K) by failing to provide a written report that contained Dr. Scala-Ba rnett’s opinions on these topics. The trial court accordingly erred in allowing th e opinion testimony that went beyond the scope of the supplied expert report. {¶ 59} We therefore hold that it was error to admit Dr. Scala-Barnett’ s opinion testimony on Brandi’s time of death and the glove-buckl e comparison, as those topics were not set forth in a written report prepared in compliance with Crim.R. 16(K). Having found that the admission of this evidenc e was error, we now consider whether tha t error was harmless.
C. Harmless Error {¶ 60} We agree with the reasoning advanced in Walls and Hall, which found that Crim.R. 16(K) removes a trial court’s discretion and mandates the exclusion of expert testimony when a written report was not dis closed in accordance with the rule. However, this did not end the analys is in those cases.

4. We take no position as to whether the limited disclosure env isioned by the state would in fact satisfy the requirements of Crim.R. 16(K).January Term, 2020

19 After finding that the trial courts erred in admitting the expe rt testimony, the courts of appeals next considered Crim. R. 52 and applied the harmless- error analysis
established in State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 23, in order to determine whether the error was reversi ble. Walls, 2018- Ohio-329, 104 N.E.3d 280, at ¶ 40-41; Hall, 2019-Ohio-2985, at ¶ 20. We agree with this approach. {¶ 61} Crim.R. 52(A) provides: “Any error, defect, irregularity, or v ariance
which does not affect substantial rights shall be disregarded.” See also Morris at ¶ 24. (“not every error requires that a conviction be vacated o r a new trial granted”). Furthermore, R.C. 2945.83 states:

No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court because of:
* * * (C) The admission or rejecti on of any evidence offered against or for the accused unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby;

(Emphasis added.) {¶ 62} Under Crim.R. 52, in order to prejudice a defendant’s substanti al rights, the error “ ‘must have affected the outcome of the [tri al] court proceedings.’ ” State v. Fisher , 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting United States v. Olano , 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). {¶ 63} In State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, we set out the three-part analysis, established previousl y in Morris , 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, that should guide ap pellate courts inS UPREME C OURT OF O HIO

20 determining whether the erroneous admission of certain evidence affected the defendant’s substantial rights s o as to require a new trial or whether the admission
of that evidence was harmle ss error under Crim.R. 52(A):

First, it must be determined whether the defendant was prejudic ed by the error, i.e., whether the error had an impact on the verd ict. [ Morris ] at ¶ 25 and 27. Second, it must be determined whether the error was not harmless beyond a reasonable doubt. Id. at ¶ 28. 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. Id. at ¶ 29, 33.

Harris at ¶ 37 ; see also State v. Arnold , 147 Ohio St.3d 138, 2016-Ohio-1595, 62 N.E.3d 153, ¶ 50 (plurality opinion). {¶ 64} Applying that analysis here, we first fail to see how Boaston w as prejudiced by the admission of this evidence. The time-of-deat h opinion was not essential to the state’s prosecution of the charged crimes. It was relevant only because of Boaston’s voluntary statement to the police admittin g that he and Brandi ate sausage sandwiches shortly after Brandi arrived at the cond ominium and that
Brandi left between 10:30 and 10: 45 a.m. that morning. The dep uty coroner’s timeof-death opinion merely corroborated the precise time frame tha t Boaston’s own statement and relevant cell-phone records already established. Likewise, Dr. ScalaBarnett’s glove-buckle testimony did little more than connect d ots that were all too readily apparent. Thus, we do not find that Boaston was truly prejudiced by the
admission of this evidence. {¶ 65} And even without the deputy coroner’s opinion testimony on Brandi’s time of death and the glove-buckle comparison, the rem aining evidence overwhelmingly establishes Boas ton’s guilt beyond any reasonabl e doubt.January Term, 2020

21 {¶ 66} The jury heard evidence of Boaston’s jealousy; his controlling behavior, including his use of th ree different types of softwar e to monitor Brandi’s text messages and phone calls; hi s tumultuous relationship with Brandi, established through text messages and eyewitness testimony; his refusal to accept Brandi’s
decision to leave the relationshi p; and his threat to harm her or Jones. Further, the
record reflects clear evidence of Brandi’s desire to end her re lationship with Boaston, including her decision to move out of the Amanda Circl e residence, applying for alternate housing with her mother, and her text me ssage to Jones— “He just mad bc I won’t go back.” {¶ 67} Boaston’s actions taken in prep aration of Brandi’s murder provi de ample evidence of his guilt. Boaston withdrew $100 from an ATM and the jury could have concluded that this money was used as payment for hi s ride back into town from Fulton County several hours later; Boaston put $20 wo rth of gas into Brandi’s SUV and the engine was running when her car was found, which may have been because he intended for the vehicle to be found quick ly in order to support the alibi he attempted to create; his February 14 early -morning visit to a friend’s home and incriminating request to Mark Reno for assist ance “to take care of business,” closely followed by an eight-minute phone convers ation with Reno on Boaston’s prepaid phone that Boaston attempted to delete any record of; and his early-morning call to Brandi to ma ke sure she came over to the Amanda Circle residence after leaving work. {¶ 68} As previously discussed, Boaston’ s admissions are consistent wi th the time line of cell-phone activit y that occurred the morning of February 14. Boaston’s and Brandi’s cell phone s registered activity near the Amanda Circle residence during the time frame when Brandi left work until aro und 10:41 a.m. Brandi’s phone used data in Fulton County at 11:15 a.m., which is fairly distant
from the Amanda Circle residenc e. At 11:27 a.m., Brandi’s cell phone registered to the cell tower closest to where it was found the next day, w hich was near theS UPREME C OURT OF O HIO

22 location where her body was disc overed. During this same time period, Boaston’s phones did not register any activity until his Sprint phone, wh ich was in a sector of Tower 17—though not the sector clo sest to the Amanda Circle res idence—received his son’s call at 11:36 a.m. It was established that a phone t hat has been powered off will not register activity, so Boaston could have deliberat ely avoided any
detection of the location of h is phones while he drove Brandi’s SUV to Fulton County and during his return trip to Toledo. {¶ 69} Brandi’s body was discovered in the rear of her SUV in a dry bu t partially dressed state, partially wrapped in plastic sheeting. Only one set of footprints appeared in the snow leading away from the vehicle a nd toward the road, suggesting that her killer had assistance with transportation b ack to Toledo. It strains credulity to think that in the span of 46 minutes, Bran di left the Amanda Circle residence, was abducted by an unidentified assailant who partially undressed and killed her, wrapped her in plastic, stashed her body along with her dry clothing and shoes in the rear of her vehicle, drove the SUV 20 miles aw ay, abandoned it off the country road, and myster iously disappeared without a tr ace. {¶ 70} After applying the harmless-error analysis established in Morris, as articulated in Harris, we conclude that the improper admission of Dr. ScalaBarnett’s testimony beyond the scope of her report did not affe ct the substantial rights of Boaston. The remaining evidence adduced by the state established his guilt beyond any reasonable doubt. Therefore, Boaston is not e ntitled to a new trial.
IV. CONCLUSION {¶ 71} We hold that it is error to admit expert opinion testimony when the expert’s opinion was not set forth in a written report prepared in compliance with Crim.R. 16(K). In this case, howev er, the trial court’s admiss ion of testimony that went beyond the scope of the expe rt’s written re port was harmle ss error. We therefore affirm, albeit on diffe rent grounds, the judgment of the Sixth District Court of Appeals.January Term, 2020

23 Judgment affirmed.
O’C ONNOR , C.J., and F RENCH and D E W INE , JJ., concur.
K ENNEDY , J., concurs, with an opinion.
F ISCHER , J., concurs in judgment only.
S TEWART , J., concurs in part and disse nts in part, with an opinion.

_________________ K

ENNEDY , J., concurring. {¶ 72} I concur with the majority opinion because I must. While I con tinue
to believe that our decision in State v. Morris , 141 Ohio St.3d 399, 2014-Ohio5052, 24 N.E.3d 1153, was wrongly decided, it is nonetheless co ntrolling precedent
in this case. {¶ 73} I agree with the majority that the Sixth District Court of Appe als erred in holding that appellant , Ronald Boaston, waived his obj ection to expert opinion that was not previously d isclosed in the expert’s writt en report and that the failure to disclose that opinion before trial mandated its excl usion from evidence. Crim.R. 16(K) requires the propone nt of expert testimony to dis close a written report of the expert’s opinions, and therefore it is the duty o f the proponent to ensure that all relevant testimony it wishes to elicit at trial is inc luded in the report. Boaston had no duty to second-guess the state’s litigation stra tegy by alerting it to incriminating evidence that was omitted from its expert’s repor t, and the trial and appellate courts therefore improperly shifted the burden to him to ensure that the rule was followed. The consequence of the state’s failure to c omply with Crim.R. 16(K) is automatic—it “shall preclude the expert’s testimony.” {¶ 74} The issue, then, is whether the trial court’s improper admissio n of
evidence is harmless or reversible error. {¶ 75} In Morris , this court adopted a new harmless-error te st for instances
when the erroneous admission of e vidence during a defendant’s t rial affected his or her nonconstitutional rights. Such evidence will be deemed har mless underS UPREME C OURT OF O HIO

24 Crim.R. 52(A) if the state demons trates that the erroneous admi ssion was harmless beyond a reasonable doubt and th at the error did not contribute to the defendant’s
conviction. Id . at ¶ 28-30. As I explained in my dissent in Morris , this standard erroneously conflates the analysis applicable when a trial erro r violates the accused’s constitutional rights w ith the analysis that applies for other trial errors.
Id. at ¶ 61-64 (Kennedy, J., dissenting). When a constitutional er ror is involved, the state bears the burden to prove that the error was harmless beyond a reasonable doubt, such as by showing that there is overwhelming evidence o f guilt. Chapman v. California , 386 U.S . 18, 24, 87 S.Ct . 824, 1 7 L.Ed.2d 705 (1967); State v. Hood , 135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057, ¶ 43. A l esser showing is required when the trial error does not implicate a constitution al right. Morris at ¶ 61 (Kennedy, J., dissenting); id . at ¶ 43 (O’Donnell, J., dissenting) (explaining
that an “error is harmless if th e state can demons trate that it is more likely than not
that the error did not affect t he outcome of the trial”). {¶ 76} In construing Crim.R. 52(A)’s h armless-error provision, this co urt has previously relied on decisions from the United States Supre me Court addressing the analogous provisi ons of the Federal Rules of Cri minal Procedure. E.g., State v. Perry , 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15, citing United States v. Olano , 507 U.S. 725, 741, 113 S.Ct. 1770, 123 L.Ed.2d. 508 (1993). I therefore adhere to th e view expressed in my dissent in Morris that the
nonconstitutional harmless- error test originally set forth in Kotteakos v. United
States , 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), is the pro per framework for reviewing an evidentiary error that was objected to at tria l. Morris at ¶ 55, 66 (Kennedy, J., dissenting). That test provides that “ ‘without stripping the erroneous action from the whole,’ an error is harmless if the outcome was ‘not substantially swayed by the error.’ ” Id . at ¶ 55, quoting Kotteakos at 765. “The i nquiry cannot be merely whether there was enough to support the result, apart from the phaseJanuary Term, 2020

25 affected by the error. It is rather, even so, whether the error itself had substantial
influence.” Kotteakos at 765. {¶ 77} Although I continue to believe that Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, was wr ongly decided, it remains binding precedent. For this reason, we adhered to principles of stare decisis and applied its three-part test in State v. Harris , 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 37-44. Nonetheless, in this case, the result would not be any different if the court applied what I b elieve to be the proper standard of harml ess-error review for nonconstitutional error, which is a less stringent showing than is required by
Morris

. {¶ 78} Here, the state built a strong circumstantial-evidence case aga inst Boaston for the killing of his ex-wife, Brandi Gonyer-Boaston, presenting evidence of prior domestic violence, cont rolling behavior, stalking, har assment, and jealousy. There also was evidence suggesting that Boaston had planned the murder after Gonyer-Boaston decided to end their relationship. Moreov er, his cell phone disappeared from the cell-tower network for 55 minutes, a suffi cient amount of time to take Gonyer-Boaston’s body to Fulton County and return home. And based on his own statements, Boaston was the last known person to have s een GonyerBoaston alive. He admitted that she had been in his apartment from around 7:30 a.m., when they each ate fast-f ood breakfast sandwiches togethe r, until she left his apartment between 10:30 a nd 10:45 a.m. that day. {¶ 79} The trial court erroneously allowed the state to present expert testimony that Gonyer-Boaston died “within one to two hours aft er she ate her sandwich” when that opinion had not been disclosed to Boaston’s defense counsel during discovery in accordance with Crim.R. 16(K). This testim ony helped the
state establish the victim’s time of death and placed her with Boaston in his apartment when she died. Howev er, the expert’s opinion did not hing more than close the loop on the state’s cas e. Review of the whole record demonstrates thatS UPREME C OURT OF O HIO

26 there was overwhelming circumstantial evidence that Boaston mur dered GonyerBoaston, and circumstantial evi dence “ ‘inherently possess[es] the same probative value’ ” as direct evidence, State v. Martin , 151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857, ¶ 112, quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus. {¶ 80} Because there is no indication that the jury was substantially swayed by the erroneously admitted evidence in a way that affected the outcome of Boaston’s trial, the evide ntiary error is harmless. {¶ 81} Accordingly, I concur with the majority’s judgment to affirm th e court of appeals’ decision upholdi ng Boaston’s murder convictio n.

_________________ S TEWART , J., concurring in part and dissenting in part. {¶ 82} I agree with the majority that it was error to admit the deputy coroner’s testimony regarding Brandi Gonyer-Boaston’s (“Brandi” ) time of death and the similarity between an abrasion found under Brandi’s chi n and the buckles on the gloves of appellant, Ronald Boaston (“Boaston”). Howeve r, because I find
that the erroneous admission of t hat evidence had a substantial impact on the jury’s verdict and that the remaining evidence failed to establish Boa ston’s guilt beyond a reasonable doubt, I dissent from the majority’s conclusion th at the error was
harmless. {¶ 83} In concluding that the introduction of the deputy coroner’s opi nion testimony amounted to harmless e rror, the majority uses the thr ee-part harmlesserror test established by this court in State v. Morris , 141 Ohio St.3d 399, 2014- Ohio-5052, 24 N.E.3d 1153, and embraced in State v. Harris , 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256. See also State v. Arnold , 147 Ohio St.3d 138, 2016-Ohio-1595, 62 N.E.3d 153, ¶ 50 (plurality opinion). I agr ee with the concurring opinion that Morris is problematic. Not only did Morris do away with any distinction in how Ohio courts review trial errors affectin g constitutional rightsJanuary Term, 2020

27 versus those affecting nonconstitutional rights, but the three- prong test that emerged as a result is redundant and confusing to apply. Never theless, the test set
forth in Morris is the prevailing law in Ohio and the parties have not asked us to reconsider that decision. Accordingly, I apply the Morris test, which requires the
state to show that the error di d not impact the verdict and the remaining evidence established guilt beyond a reasonable doubt, Morris at ¶ 33. {¶ 84} According to the opinion testimony of the deputy coroner, Dr. D iane Scala-Barnett, Brandi would ha ve died “[w]ithin one to two hour s after she ate her
breakfast sandwich” based on Dr. Scala-Barnett’s examination of Brandi’s stomach
contents. Evidence in the record established that Brandi ate h er breakfast soon after arriving at Boaston’s residence around 7:30 a.m. on the day of her murder. Thus, the deputy coroner’s testimony placed Brandi at Boaston’s resid ence at the time she is estimated to have died and affirmatively contradicted Boasto n’s statement that Brandi left his home around 10:30 a.m. that day. Similarly, Dr . Scala-Barnett’s testimony that the size and shape of an abrasion under Brandi’s chin matched the size and shape of a buckle on Boaston’s glove had the effect of directly implicating Boaston as the perpetrator of th e offense. Contrary to the maj ority and concurring opinions, this evidence did not just “d[o] little more than con nect dots that were all too readily apparent,” majorit y opinion at ¶ 64, nor did it mer ely “close the loop on the state’s case,” concurring opinion at ¶ 79. The evidence es tablished a direct link between Boaston and Brandi’s murder. Furthermore, because Dr. Scala-Barnett was a medical doctor and an expert with over thirty years of ex perience, it would have been reasonable for the jury to assign great weight to her testimony. See
Harris at ¶ 39. Consequently, it is reasonable to conclude that the improperly admitted testimony impacted the jury’s verdict and was not harm less beyond a
reasonable doubt. Id. {¶ 85} Without Dr. Scala-Barnett’s time-of-death and glove-buckle testimony, it cannot be said with any confidence that the jury would have foundS UPREME C OURT OF O HIO

28 that the remaining evidence established Boaston’s guilt beyond a reasonable doubt. At trial, the state introduced virtually no physical evidence d irectly connecting Boaston to the crime. Brandi’s body was found with dried blood on her face, neck, and fingernails. Dr. Scala-Barnett testified that lacerations to Brandi’s tongue and lip were likely caused by Brandi biting down while struggling t o free herself from her assailant. However, investig ators did not find any traces of Brandi’s blood at Boaston’s residence when they searched his home within hours of discovering the body. Nor did investigators disc over any signs of a struggle o r recent cleaning. Furthermore, although DNA was found on the plastic tarp coverin g Brandi’s body,
this DNA did not match Boaston’ s. And, while the state introdu ced evidence of
scratches on Boaston’s face a nd neck, his DNA was not found on fingernail clippings taken from Brandi’s body, nor was his DNA present on swabs taken from Brandi’s left hand and right thumb. Likewise, despite Dr. Scal a-Barnett’s opinion testimony that the abrasion on Brandi’s chin was consistent wit h the pattern and shape of the Velcro and buckle on Boaston’s glove, the glove bu ckle tested negative
for Brandi’s DNA. {¶ 86} Although it is true that Brandi’s hair was found on or near the Velcro strap of the glove-buckle, this is unremarkable considering how often Boaston and Brandi were together in the days and weeks leading up to her de ath and that human hair easily catches on and adheres to Velcro. 5 And although DNA found on the back of Brandi’s pant legs contai ned genetic material matching the Boaston-male

5. The majority opinion states that “a lot” of Brandi’s hair w as embedded in the glove buckle. Majority opinion at ¶ 32. But the state presented confusing an d potentially conflicting testimony on this point. According to the testimony of one investigator, a single blonde hair was found on the glove. This testimony is consistent with the photograph of the glove introduced at trial. However, testimony from another witness stated that there were approxima tely 15 hairs embedded in the Velcro of the glove and that some of the hairs had roots on the m, which indicated that they were forcefully removed.January Term, 2020

29 profile 6 it also contained at least one o ther unidentified male profile . The fact that Brandi might have Boaston’s DNA on her clothing is also not usu al given that she spent prolonged periods of time in his company and at his home. Accordingly, without the deputy coroner’s opinion testimony regarding the gl ove buckle, there would have been no appreciable physical evidence connecting Boa ston to the
crime. {¶ 87} In addition to the lack of physi cal evidence, the state’s case did not explain how Boaston managed to get back home after allegedly le aving Brandi’s car—with her body inside—alongside a rural road in Fulton Count y 20 miles from
his home. The state was unable to identify any coconspirators or accomplices despite having access to all of Boaston’s cell-phone records an d home-phone records. Further, Boaston’s cell-phone records did not place h im in Fulton County during the time frame in which the state argued that Brandi’s b ody was transported
to its eventual destination. I ndeed, the best the state could do with the cell-phone evidence was to hypothesize that Boaston must have turned off h is cell phone sometime around 10:41 a.m., just after the phone registered to Tower 17, the cellphone tower nearest to his home. T he state further speculated that Boaston then drove Brandi’s car and transported her body 20 miles to the cou ntry location,
hitched a ride back to Toledo with an unidentified person, and then turned his cell phone back on when he was almost home. All of this would have needed to happen before 11:36 a.m., when Boast on’s cell phone again transmitted a signal to Tower 17 upon receiving a call from his son. While it may not have b een impossible for Boaston to do all of this in less than an hour, there was no ev idence that actually
corroborated the state ’s version of events.

6. The type of DNA testing performed on Brandi’s clothing was designed to capture the Y chromosome, so that any male DNA could easily be distinguished from Brandi’s own DNA. Because the Y chromosome is passed from father to son, however, Boaston’s sons could not be excluded as a potential source of the DNA containing the Boasto n-male profile.S UPREME C OURT OF O HIO

30 {¶ 88} The majority’s analysis says nothing about the weaknesses in th e state’s case. Rather, the majority focuses on evidence of Boast on’s jealous and controlling behavior, majority opinion at ¶ 66, and what it con strues as “Boaston’s actions taken in preparation of Brandi’s murder,” id . at ¶ 67, to justify its harmlesserror finding. But the court cannot simply cherry pick which e vidence it wishes to review when conducting a harmless- error analysis. Harmless-err or review requires
the court to look at all the evidence that remains after the im properly admitted evidence is removed before determining whether that remaining e vidence proves the defendant’s guilt beyond a reasonable doubt. See Harris , 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 37. {¶ 89} In this case, the state did present a substantial amount of evi dence concerning Boaston’s jealous and controlling behavior toward Br andi. From this, the jury might have drawn the inference that Boaston became mot ivated to kill
Brandi once he realized that she intended to leave their relati onship and potentially
start a new one with s omeone else. Howeve r, it goes without sa ying that there is a difference between having a motive to kill and actually killing . This evidence of Boaston’s controlling behavior, which included psychological an d physical abuse, heavily focused suspicion on Boaston. But such evidence is not enough, in and of itself, to establish guilt beyond a reasonable doubt. It also is not enough even when combined with the evidence of (1) Boaston’s ATM withdrawals, (2 ) his purchase of gas for Brandi’s car, (3) Boaston’s comment to Mark Reno abo ut “tak[ing] care of some business,” and (4) his early-morning phone call to Bran di on the day of her death to see if she was coming over. Majority opinion at ¶ 19, 22. Indeed, if these actions are remarkable at all, it is only because they fit the state’s theory of the case, not because they are strong evidence of Boaston’s guilt. {¶ 90} In contrast, the time-of-death and glove-buckle testimony was s trong evidence of Boaston’s guilt. At a minimum, the testimony amoun ted to highly credible evidence compelling the conclusion that at the time Br andi was killed, sheJanuary Term, 2020

31 was alone with Boaston at his residence and that Boaston’s glov es were used in her strangulation. Although the impact of this evidence appears to be lost on the majority, it was not lost on the s tate during Boaston’s trial. {¶ 91} From the outset, the state fought to ensure that Dr. Scala-Barn ett’s testimony could be admitted at tri al despite its acknowledgment that it had not followed Crim.R. 16(K)’s require ment that an expert report cont ain all expert opinions that would be testified to at trial. Had the prosecut ion believed that this evidence was unimportant in proving Boaston’s guilt, it should have had no problem with the exclusion of the testimony in light of its fai lure to comply with Crim.R. 16(K). {¶ 92} Furthermore, during its closing argument, the prosecution drew specific attention to the deputy coroner’s time-of-death testim ony by calling it “important” and further asserting that it

puts the timeframe on there for us. So if [Brandi] ate that sa usage McMuffin at 7:30 or 7:45 in the morning, her time of death is e ither at 8:45 or 9:45 in the morning, which would place her, by everybody’s account, at 1126 Amanda Circle, alone with the
Defendant.

{¶ 93} As for the abrasions under Bra ndi’s chin, the prosecution argue d:

[Dr. Scala-Barnett] also testif ied about the unusual marks on [Brandi’s] neck. She said she actually put plastic over [Brand i’s] face when she did this because she didn’t want the gloves to di rectly touch the skin there. But she took photographs of the whole th ing and she said, oh, it’s such an unusual mark on there. You’ll s ee it, the photographs are back there with you, the gloves are back inS UPREME C OURT OF O HIO

32 evidence also with you, and she said that the buckle—and she pl aced it up there, she showed you the photograph then, that, in her o pinion,
that mark on the neck is consiste nt with the buckle of the Thin sulate gloves. Those same Thinsulate gloves that had the victim’s hair in it on the buckle and by the velcro. * * * And she says that [the] homicide occurred before [Brandi ] left Amanda Circle, placing t his homicide in Lucas County, Ohio. * * * But look at the photogra phs, examine the gloves, look at the DNA report about the hair. I submit to you that those items tie this Defendant to this homicide and no
one else.

(Emphasis added.) {¶ 94} After reviewing the evidence in the record and the state’s own statements at trial, it is ab undantly clear that Dr. Scala-Barn ett’s time-of-death and glove-buckle testimony played a central role in the state’s cas e against Boaston. In fact, this evidence may well ha ve been sufficient on its own to establish Boaston’s guilt. It was highly credible based on Dr. Scala-Barnett’s exp erience and qualifications and was no doubt at the forefront of the jurors’ minds when they left
the courtroom to deliberate. It simply cannot be said that the testimony had no impact on the jury’s verdict a nd that its erroneous admission w as harmless beyond a reasonable doubt. Further, the remaining evidence does not e stablish Boaston’s guilt beyond a reasonable doubt. What can be said, however, is that the improperly admitted evidence was highly incriminating and persuasive, and it likely overshadowed any remaining circumstantial evidence that the sta te produced when viewing its case as a whole. Accordingly, I would reverse the judgment of the appellate court and rem and for a new trial.

_________________January Term, 2020

33 Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee. Stephen P. Hanudel , for appellant. James A. Anzelmo, urging reversal for amicus curiae Ohio Assoc iation of Criminal Defense Lawyers.

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