[Cite as State v. Bellamy , 2021-Ohio-40.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : ERIC BELLAMY : Case No. 19 CAA 08 0048 : Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 19 CRI 010063

JUDGMENT: Vacated and remanded

DATE OF JUDGMENT: January 8, 2021

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant HAWKEN FLANAGAN APRIL F. CAMPBELL 145 North Union Street 545 Metro Place South 3rd Floor Suite 100Delaware County, Case No. 19 CAA 08 0048 2

Delaware, OH 43015 Dublin, OH 43017 Wise, Earle, J.

{¶ 1} Defendant-Appellant Eric Bellamy appeals the August 2, 20 19 judgment of conviction and sentence of the Delaware County Court of Common Pleas memorializing his convictions for six counts of rape, three counts of gross s exual imposition, and one count of menacing by stalking. Plaintiff-Appellee is the state of Ohio. FACTS AND PROCEDURAL HISTORY {¶ 2} LaDawn Knight and Eric Bellamy met in 2008, married short ly thereafter, and divorced a year later. During their marriage, they first li ved in Cardington Ohio and then Ashley Ohio. Knight's 4 children also resided with the cou ple including N.S. who was six and seven years-old during the marriage. Bellamy did not wo rk at the time and was frequently home with the children while Knight worked. {¶ 3} On Thanksgiving 2018, Knight was using N.S.'s cell phone to perform a Google search. As she entered her search, N.S.'s search history appeared and Knight noticed Bellamy's name in the search history. Knight asked why N.S. was looking for information on Bellamy. N.S. stated she wanted to know if Bella my was living with other little girls and if he was doing the same things to them that h e had done to her. Asked what Bellamy had done, N.S. stated Bellamy had done "everything " to her. Concerned "everything" had a sexual connotation, Knight called police. {¶ 4} An officer arrived at the house and advised Knight to tak e N.S. to the children's advocacy center (CAC) located at Nationwide Children 's Hospital. Knight was further advised to refrain from discussing the matter with N.S.Delaware County, Case No. 19 CAA 08 0048 3

{¶ 5} At the CAC, N.S. was interviewed by Kerri Wilkinson, a fo rensic interviewer. The interview was preserved on video. {¶ 6} During the interview N.S. explained she and her younger s iblings had lived in two different homes with Bellamy. At the first home in Cardi ngton, N.S. explained Bellamy began by exposing his genitals to her and then progress ed to making her put her hand on his bare penis, or occasionally on his penis but over h is clothing. {¶ 7} When the family moved to Ashley, N.S. stated Knight conti nued to work and Bellamy continued to stay home. Bellamy frequently prevented N. S. from going to a babysitter with her siblings and on one occasion tried to preve nt her from going to her father's home for the weekend. He would make the excuse she was in trouble and needed to stay home as punishment. He also chose her clothing, usually tank tops and skirts with

no underwear. {¶ 8} Also during the interview, N.S. explained that it was in the Ashley house that Bellamy first "tried" to rape her. When it happened, she s creamed because it hurt and he stopped because her siblings were at home. Another time when he "actually raped" her, Bellamy took off his clothing, forced N.S. to disro be, then wanted to "cuddle." N.S. resisted, trying to pull away but Bellamy pulled her back, smacked her face, put his hand over her mouth, and vaginally raped her. {¶ 9} N.S. further described an instance of anal rape which too k place in a "blanket fort" which Bellamy had constructed in the living room . N.S. stated she bled after this particular attack.Delaware County, Case No. 19 CAA 08 0048 4

{¶ 10} N.S. further described numerous instances wherein Bellam y would force her to perform fellatio and instances when he performed cunnili ngus on her. She stated these activities happened nearly every day during summer of 200 9. {¶ 11} Based on N.S.'s disclosure at the CAC, in January 2019, the Delaware County Grand Jury returned an indictment charging Bellamy with six counts of rape; two counts for vaginal rape, one for anal rape, one for cunnilingus , one for fellatio and one for digital penetration. Each count also alleged the victim was les s than 10 years of age, and the acts were committed by force or threat of force. Bellamy wa s further charged with three counts of gross sexual imposition and one count of menaci ng by stalking. Bellamy entered pleas of not guilty and elected to proceed to a jury tr ial. {¶ 12} Before trial, in April, 2019, the state provided supplem ental discovery which included the curriculum vitae of Dr. Stuart Bassman, but did no t include a report from Bassman. Although counsel for Bellamy requested a continuance o n May 15, 2019 to hire an expert based on the state's supplemental discovery, a d efense expert was never hired. Five days before trial, the state provided Bassman's exp ert report to the defense. {¶ 13} Bellamy's trial began on July 23, 2019. Before the start of trial counsel for Bellamy made a motion in limine stating that while he had not f iled any motion to suppress Bassman's testimony, there may be objections to his testimony d epending on what opinions the state sought to elicit. Counsel noted Bassman neve r met with N.S. and it appeared he would be testifying generically as to what a victim of sexual abuse might experience if indeed they were a victim. Counsel argued it was the jury's role to determine if N.S. was a victim. Transcript of Trial (T.) 10-11. The trial court noted the motion and indicated it would rule on objections as they arose. T. 11.Delaware County, Case No. 19 CAA 08 0048 5

{¶ 14} Knight, Wilkinson, a Delaware County Sheriff's Deputy an d N.S. were the first four witnesses to testify for the state. The video of N.S .'s CAC forensic interview was played for the jury in its entirety during Wilkinson's testimon y. {¶ 15} The state called Bassman as its last witness on the fina l day of trial. Before his testimony, counsel for Bellamy moved to exclude the testimo ny of the doctor pursuant to the state's violation of Crim.R. 16(K) which requires the st ate to provide the report of an expert witness 21 days before trial. Counsel for Bellamy aga in argued the state failed to provide the doctor's report until five days before trial. {¶ 16} The state acknowledged its violation of Crim.R. 16(K) an d gave no explanation for its failure to provide the report to the defens e. The state nonetheless complained that the timing of counsel's motion put the state in "a difficult spot" as it planned to call Bassman as its next witness, and stated Bassman had been listed as a potential witness for the state during discovery months prior. The state further argued that Bassman's testimony was "general in nature," that he never met with N.S. and that the purpose of his testimony was to educate the jury "with his expe rience in this field." The trial court ruled it was willing to let the doctor testify, but gave defense counsel time to talk to Bassman before his testimony. T. 410-414. {¶ 17} During his testimony, Bassman explained delayed disclosu re, what makes a victim's story credible, and the grooming behaviors of offend ers. He further explained it was important for him to testify because "offenders don't touch * * *[t]hey molest; they offend; they violate; they assaul t * * * it's not a touch; it's an assault." T. 428-433. {¶ 18} Bellamy testified in his own defense, called two charact er witnesses, and N.S.'s boyfriend C.M.Delaware County, Case No. 19 CAA 08 0048 6

{¶ 19} During its closing argument the state highlighted how im portant Bassman's testimony was to its case because it showed N.S.'s story was co nsistent with being the victim of sexual abuse and that Bellamy's behavior was complete ly consistent with being

an abuser. T. 568-569. {¶ 20} Bellamy was found guilty as charged and sentenced to an aggregate prison term of 28 years to life. {¶ 21} Bellamy timely filed an appeal and the matter is now bef ore us for consideration. He raises four assignments of error as follow:

I {¶ 22} "THE TRIAL COURT ERRED IN ALLOWING THE STATE'S EXPERT WITNESS TO TESTIFY DESPITE THE STATE'S FAILING TO SHOW GOOD CAU SE UNDER CRIM.R. 16(K), WITH PREJUDICE TO BELLAMY SUCH THAT IT WAS NOT HARMLESS."

II {¶ 23} "THE STATE VIOLATED BELLAMY'S DUE PROCESS RIGHT TO A FAI R TRIAL THROUGH PROSECUTORIAL MISCONDUCT, WHICH PREJUDICIALLY AFFECTED HIM IN A MANNER THAT REQUIRES REVERSAL."

III {¶ 24} "BECAUSE THE EVIDENCE WEIGHED MANIFESTLY AGAINST CONVICTING BELLAMY, REVERSAL OF HIS CONVICTIONS IS REQUIRED."

IV {¶ 25} "BELLAMY WAS DENIED HIS RIGHT TO A FAIR TRIAL IN THIS CA USE BECAUSE OF CUMULATIVE ERROR."Delaware County, Case No. 19 CAA 08 0048 7

I {¶ 26} In his first assignment of error, Bellamy argues the tri al court erred in allowing Dr. Bassman to testify despite the state's failure to show good cause under Crim.R. 16(K) for failing to timely provide the defense with Ba ssman's report. We agree. CRIM.R. 16 HISTORY {¶ 27} Crim.R. 16(K) provides:

An expert witness for either side shall prepare a written repor t summarizing the expert witness's testimony, findings, analysis, conclusions, or opinion, and shall include a summary of the exp ert's qualifications. The written report and summary of qualification s shall be subject to disclosure under this rule no later than twenty-o ne days prior to trial, which period may be modified by the court for g ood cause shown, which does not prejudice any other party. Failure to disclose the written report to opposing counsel shall preclude the expert's testimony at trial.

{¶ 28} In 2010, amendments were made to Crim.R. 16, including t he enactment of Crim.R. 16(K). This section required for the first time that ex perts generate written reports and that those reports be disclosed to the opposing party 21 da ys before trial. “The purpose of Crim.R. 16(K) is to avoid unfair surprise by providi ng notice to the defense and allowing the defense an opportunity to challenge the expert 's findings, analysis, or qualifications, possibly with the support of an adverse expert who could discredit theDelaware County, Case No. 19 CAA 08 0048 8

opinion after carefully reviewing the written report.” (Interna l citations and quotations omitted.) State v. Buck , 2017-Ohio-273, 81 N.E.3d 895, ¶ 33 (9th Dist.). {¶ 29} When a party fails to abide by the requirement of Crim.R . 16(K) to provide the report, the section imposes a consequence: “Failure to disc lose the written report to opposing counsel shall preclude the expert's testimony at trial .” {¶ 30} Before the 2010 amendments to the rule, discretion was g ranted to the trial court under Crim.R. 16(E)(3) to remedy a failure to comply with discovery requirements. That section provided: “the court may order such party to permi t the discovery or inspection, grant a continuance, or prohibit the party from int roducing in evidence the material not disclosed, or it may make such other order as it d eems just under the circumstances.” {¶ 31} Under amendments to the ru le, the trial court still main tains some discretion to sanction discovery violations, which is recognized under Cri m.R. 16(L)(1). But that discretion cannot be inconsistent with Crim.R. 16. Crim.R. 16(L )(1) provides:

The trial court may make orders regulating discovery not incons istent with this rule. If at any time during the course of the proceed ings it is brought to the attention of the court that a party has failed t o comply with this rule or with an order issued pursuant to this rule, t he court may order such party to permit the discovery or inspection, gra nt a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it d eems just under the circumstances.Delaware County, Case No. 19 CAA 08 0048 9

{¶ 32} Before the Supreme Court of Ohio's recent decision in State v. Boaston , 160 Ohio St.3d 46, 2020-Ohio-1061, 153 N.E.3d 44, some courts r elied upon the language of Crim.R. 16(L)(1) to find that even following amendm ents to Crim.R. 16, the trial court maintained broad discretion to regulate the admissi on of all evidence. See e.g. State v. Proby , 10th Dist. Franklin No. 2015-Ohio-3364 at ¶ 33. The Boaston court, in resolving a split between appellate districts, rejected that re asoning and found Crim.R. 16(K) limited the trial court's discretion in regard to the rep ort of an expert, and provided a specific remedy for violation of the rule. Boaston ¶ 54. The court stated:

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 report to opposing counsel shall preclude the expert's testimony at trial.” (Emphasis [original].) Crim.R. 16(L)(1) implicitly acknowledges this remedy: “The tria l court may make orders regulating discovery not inconsistent with this rule .” (Emphasis [original].) And while Crim.R. 16(K) confers some measure of discretion on trial judges, it is limited to modifyi ng the 21- day requirement “for good cause shown, which does not prejudice any other party."

{¶ 33} Boaston at ¶ 55.Delaware County, Case No. 19 CAA 08 0048 10

{¶ 34} The argument in Boaston concerned a supplement to a coroner's report. The state in that matter had failed to disclose the supplementa l report within the time constraints of Crim.R. 16(K).The supplemental report included t he coroner's time-ofdeath opinion and an opinion as to a distinctly shaped abrasion on the deceased victim's chin which was consistent with a glove belonging to Boaston. De fense counsel met with the coroner 19 days before trial, discovered this information a nd then suggested the state needed to supply the defense the supplement to the coroner's re port. The state never did.

Boaston ¶40-41. {¶ 35} After finding that this circumstance was a violation of Crim.R. 16(K) by the state, the Boaston court then found the matter does not end there, but rather req uires a harmless error analysis. Crim.R. 52(A) defines harmless error i n the context of criminal cases and provides: “Any error, defect, irregularity, or varian ce which does not affect substantial rights shall be disregarded.” A harmless-error inqu iry requires the state to prove the error did not affect the substantial rights of the de fendant. State v. Perry , 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15. The Boaston court then set forth its three-part analysis:

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. [ State v. Morris , 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153] 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 remainingDelaware County, Case No. 19 CAA 08 0048 11

evidence is weighed to determine whether it establishes the defendant's guilt beyond a reasonable doubt. Id . at ¶ 29, 33.

{¶ 36} Boaston ¶ 63 citing State v. Harris , 142 Ohio St.3d 211, 2015-Ohio166, 28 N.E.3d 1256, ¶ 37. {¶ 37} After applying this test, the court found:

Applying that analysis here, we first fail to see how Boaston w as prejudiced by the admission of this evidence. The time-of-death opinion was not essential to the state's prosecution of the cha rged crimes. * * * The deputy coroner's time-of-death opinion merely corroborated the precise time frame that Boaston's own statemen t and relevant cell-phone records already established. Likewise, Dr. Scala-Barnett's glove-buckle testimony did little more than con nect dots that were all too readily apparent. Thus, we do not find t hat Boaston was truly prejudiced by the admission of this evidence.

{¶ 38} Boaston , ¶ 64. {¶ 39} The court further found, that even without the informati on contained in the supplemental report, "[T]he remaining evidence adduced by the s tate established his guilt beyond any reasonable doubt. Therefore, Boaston is not entitled to a new trial." Boaston ¶ 70. APPLICATION OF CRIM.R. 16(K) AND HARMLESS ERROR TO THIS MATTERDelaware County, Case No. 19 CAA 08 0048 12

{¶ 40} Unlike Boaston , were the state failed to timely disclose a supplemental report containing information which was not central to the stat e's case, here the state failed to disclose any report at all on a matter absolutely cen tral to its case – the credibility of N.S. {¶ 41} The state does not dispute it failed to provide Bassman' s report to the defense until five days before trial. Instead, the state argues its conduct was not willful, and that defense counsel was provided with Bassman's name and c urriculum vitae months before trial. But nothing in Crim.R. 16(K) states these things relieve the state of its obligation to provide an expert's report at least 21 days b efore trial. Even so, the state argues appellant suffered no prejudice because counsel for appe llant was granted a continuance at the time Bassman’s name and curriculum vitae was disclosed and could have hired an expert but chose not to. {¶ 42} While it is accurate the state provided Bassman's name a nd curriculum vitae in discovery (defendant's exhibit 3), no mention was made in th ese documents as to what type of testimony the state intended to elicit from Bassman or what opinions if any he had formed in the matter. Without this information, counsel for app ellant could not know what type of expert he would need to hire and prepare because he did not know that Bassman would be discussing delayed disclosure by sex abuse victims and grooming behaviors by sex offenders until he received Bassman's report (state's exhib it 6) five days before trial. Before Bassman's trial testimony, counsel argued had he known, he could have hired a doctor to refute Bassman's testimony, or at minimum consulted a n expert to aid his understanding of Bassman's proposed testimony. T. 413-414.Delaware County, Case No. 19 CAA 08 0048 13

{¶ 43} Unlike the situation in Boaston where there was an abundance of evidence to support Boaston's convictions without the undisclosed report , the case sub judice hinged entirely on the credibility of N.S. There was no forensi c evidence, and no testimony from anyone who may have seen or heard anything of the events a lleged to have taken place 10 years before N.S. disclosed. There was no testimony fr om any doctor or nurse from the CAC who may have examined N.S. following her interview , and Bellamy made no incriminating statements. {¶ 44} Bassman's testimony here was therefore vital to the stat e's case. Without it the jury may have questioned N.S.'s failure to disclose for ten years. The testimony was used by the state to bolster the credibility of N.S., explain a way her delayed disclosure, and further, to cast appellant into the mold of sex offender. T . 426-451. We therefore find appellant was prejudiced by the state's failure to comply with Crim.R. 16(K), the state did not show good cause for failing to timely disclose the report, and the error in admitting the evidence was not harmless beyond a reasonable doubt. {¶ 45} If we excise Bassman's testimony, as already mentioned a bove, the case rests entirely on the testimony of N.S. and her forensic interv iew. After a thorough review of the record, we cannot say the remaining evidence establishes Bellamy's guilt beyond

a reasonable doubt. {¶ 46} In factually similar cases, wherein a doctor's report wa s not timely provided and the case otherwise rests solely upon the testimony of the v ictim, other courts have found failure to comply with Crim.R. 16(K) warrants reversal. S ee, e.g., State v. McGhee , 11th Dist. Trumbull No. 2014-T-0106, 2017-Ohio-5773; State v. Walls , 2018-Ohio-329,Delaware County, Case No. 19 CAA 08 0048 14

104 N.E.3d 280 (6th Dist.). We must reach the same conclusion h ere. The first assignment of error is sustained. II, III, IV {¶ 47} Given our resolution of the first assignment of error, B ellamy's remaining assignments of error are moot. {¶ 48} The judgment of the Delaware County Court of Common Plea s is vacated. This matter is remanded to the trial court for a new trial with out the testimony of Dr.

Bassman. {¶ 49} The judgment of the Delaware County Court of Common Plea s is vacated, and the matter is remanded for proceedings consistent with this opinion.

By Wise, Earle, J. Gwin, P.J. and Baldwin, J. concur.

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