[Cite as State v. Fowler, 2021-Ohio-2854.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

COLUMBIANA COUNTY

STATE OF OHIO, 

Plaintiff-Appellee, 

v. 

ROGER D. FOWLER, II, 

Defendant-Appellant.

 

OPINION AND JUDGMENT ENTRY 

Case No. 20 CO 0002 

 

Criminal Appeal from the 

Court of Common Pleas of Columbiana County, Ohio 

Case No. 2018 CR 186 

BEFORE: 

Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges. 

JUDGMENT: 

Affirmed in part. Reversed and Remanded in part. 

Sentence Vacated. 

Atty. Vito Abruzzino, Columbiana County Prosecutor and Atty. Ryan P. Weikart, Assistant

Prosecuting Attorney, 105 South Market Street, Lisbon, Ohio 44432, for Plaintiff-Appellee
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Atty. Timothy Young, Ohio Public Defender and Atty. Craig M. Jaquith, Assistant State 

Public Defender, Office of the Ohio Public Defender, 250 E. Broad Street, Suite 1400,

Columbus, Ohio 43215, for Defendant-Appellant. 

 

Dated: August 11, 2021 

 

WAITE, J. 

{¶1} Appellant, Roger D. Fowler, II, appeals his conviction and sentence for 

gross sexual imposition in the Columbiana County Court of Common Pleas. On appeal, 

Appellant claims the trial court erred in several respects: in barring expert witness 

testimony; in letting the state’s expert testify beyond the scope of his written report; and 

in permitting police to testify regarding the truthfulness of the victim and credibility of the 

accused. Appellant also argues cumulative error and that he improperly received a 

mandatory sentence. For the following reasons, Appellant’s first, second, third and fourth 

assignments of error are without merit and his conviction is affirmed. Appellant’s fifth 

assignment of error regarding sentencing is sustained and the matter is remanded to the 

trial court for resentencing. 

Factual and Procedural History 

{¶2} On February 18, 2017, Appellant and his wife attended a surprise birthday 

party at the home of a former coworker. The coworker (T.W.) resided in Lisbon, Ohio 

with his wife, 8-year-old daughter (A.W.); and two younger sons. At the party, Appellant 

and his wife became extremely intoxicated and unable to drive home. T.W. offered to let 

them spend the night on a sectional couch on the first floor of the house. Appellant’s wife 

became ill and went to sleep on the couch while Appellant and T.W. continued to drink. 

T.W. eventually went to bed and Appellant joined his wife on the couch. The Fowlers left 

prior to the family waking the following morning. 
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{¶3} T.W. testified at trial that approximately eleven months after the party, he 

found A.W. looking at pornography on her tablet computer. He asked her why she was 

viewing it and how she knew to access it. At first the child told him that a friend from 

school had shown her. T.W. took the tablet and told A.W. he was going to check it and 

intended to call her friend’s parents. The child then became extremely upset and told her 

father that her friend played no part in her venture into viewing pornography, but that 

something else had happened. She said that a man who was at her father’s birthday 

party entered her room that night and fondled her between her legs. When her father 

asked if she knew who the man was, A.W. told him it was the man who slept on the couch. 

Her father showed her a picture of three men who were at the party. She pointed to 

Appellant and said that he was the man who touched her. (11/7/19 Tr., p. 236.) T.W. 

then contacted the Columbiana County Sheriff’s office and A.W. was taken to Akron 

Children’s Hospital Advocacy Center, where she underwent a full diagnostic interview and 

complete physical examination. 

{¶4} Paula Beverly (“Beverly”), intake investigator with the Department of Job 

and Children Services, conducted a home visit and safety assessment. She testified that 

A.W.’s parents were concerned Appellant would return to their home. Beverly referred 

the family to the Akron Children’s Hospital Advocacy Center and, after A.W.’s interview 

and physical examination were completed, Beverly compiled the written reports and audio 

CDs of the child’s assessments. She also collaborated with Detective Caleb Wycoff (“Det. 

Wycoff”) of the Columbiana County Sheriff’s Department to conduct a background check 

of Appellant. As part of her investigation, Beverly is required to review all interviews and 

make a determination on the allegations. Beverly testified that she reviewed the interview 
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Case No. 20 CO 0002

of Appellant conducted by Det. Wycoff. She testified that she had participated in 

“thousands” of child sexual abuse investigations over a span of approximately 20 years. 

(11/7/19 Tr., p. 332.) After reviewing the video interview of Appellant, she noted that he 

seemed “very somber” during the course of the 40-minute interview. (11/7/19 Tr., p. 331.) 

She stated that, “[i]n my experience when we advise the [accused] of a sexual assault 

they usually get very excitable, very denial [sic], I didn’t do this, this is wrong, they stop 

the interview. They ask for an attorney. And none of these things seem [sic] to occur – it 

did not occur in this interview, which was surprising to me.” (11/7/19 Tr., p. 333.) Beverly 

ultimately concluded, based on her review of the reports and interviews, that A.W.’s 

allegations of sexual abuse were substantiated. (11/7/19 Tr., p. 336.) 

{¶5} The next witness presented by the state was Megan Early (“Early”), a family 

friend of the victim’s parents. Early testified that she was at the surprise birthday party 

and witnessed Appellant and his wife drinking heavily throughout the evening. She 

testified that they were slurring their words, and that both were carrying firearms and were 

asked to give their firearms to the homeowners. (11/7/19 Tr., p. 372.) She testified that 

she and her husband were the last to leave the party, with the exception of Appellant and 

his wife, when it was determined that the Fowlers should spend the night on the couch. 

(11/7/19 Tr., pp. 373-374.) 

{¶6} Det. Wycoff, Detective Sergeant with the Columbiana County Sheriff’s 

Office, was the next witness to testify for the state. He testified that after reviewing the 

investigation by Children Services, he contacted Appellant by telephone and told him he 

was a suspect in a criminal investigation. Det. Wycoff requested an in-person interview 

at the police station. Immediately after setting up the interview, Det. Wycoff testified that 
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Case No. 20 CO 0002

he received a call from A.W.’s father, who told him that Appellant had called and sent text 

messages to A.W.’s father asking about the investigation. Appellant was interviewed at 

the Columbiana Sheriff’s office on February 20, 2018 by Det. Wycoff and Detective 

Sergeant Steve Walker (“Det. Walker”). Appellant’s attorney was also present. A video 

recording of the interview was offered into evidence and was played for the jury at trial. 

After the video was played, Det. Wycoff testified regarding Appellant’s demeanor during 

the interview: 

Nervous. His voice constantly cracking. His eyes were watering. Kind of 

hunched over most of the time. Always fidgeting with hands, fingers, and 

hands and avoiding eye contact -- was looking down and stuff like that. 

(11/7/19 Tr., p. 401.) 

{¶7} Det. Wycoff testified that when Appellant was confronted with A.W.’s 

allegation he had a “lack of reaction” and “[d]id not seem surprised by the allegations.” 

(11/7/19 Tr., p. 401.) Appellant did not act indignant or make any vehement denials. 

During the interview, Appellant was asked if his DNA or fingerprints could be found in 

A.W.’s room. He admitted he had been in A.W.’s room, telling Det. Wycoff he had been 

given a tour on the night of the party of the recently completed home. Appellant also said 

that during the party he may have blacked out. Although Det. Wycoff did not inform 

Appellant of the specific incident that gave rise to his questioning, Appellant stated that 

after the interview was scheduled he asked his wife if anything had happened at the 

birthday party. 
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Case No. 20 CO 0002

{¶8} On cross-examination Det. Wycoff testified that he did not interview A.W. 

but had reviewed her interview from Akron Children’s Hospital. Importantly, defense 

counsel also questioned Det. Wycoff about the portion of the interview between Det. 

Wycoff and Appellant where Det. Wycoff told Appellant that a 7-year-old would not make 

up a story like this, to which Det. Wycoff admitted, “[y]es, it was an error on my part.” 

(11/7/19 Tr., p. 422.) 

{¶9} Courtney Wilson (“Wilson”) a social worker who interviewed A.W., testified 

that A.W. described details of the incident, including experiential and sensory details. 

Wilson testified that this level of detail strongly supported A.W.’s allegations and strongly 

inferred that the child had not been coached. (11/7/19 Tr., pp. 492-496.) A video 

recording of Wilson’s interview with A.W. was played for the jury. During the interview, 

A.W. described how Appellant had touched her and that it stung. According to Wilson’s 

testimony, because A.W. was able to describe how the incident felt physically, and was 

able to both provide a narrative and answer follow up questions, this demonstrated to 

Wilson that she had not been coached. (11/7/19 Tr., pp. 492-493.) 

{¶10} A.W., who was ten years of age at the time of trial, also testified. On the 

night of the incident she said she woke up when a man entered her room. (11/7/19 Tr., 

p. 550.) She could not see his face at the time, but remembered that he had a beard. 

(11/7/19 Tr., p. 552.) She testified that she was wearing a nightgown, and the man took 

off her underwear, licked his finger, and put it on her “private.” (11/7/19 Tr., pp. 549, 553.) 

She testified that it hurt when he touched her. (11/7/19 Tr., p. 554.) Before the man left 

he told her he loved her and not to tell anyone. (11/7/19 Tr., p. 555.) After the man left, 

A.W. became concerned about her younger brothers, so she went to their room to check 
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Case No. 20 CO 0002

on them. After checking on her brothers she peered over the railing and saw the man 

who had been in her room lying down on the couch. (11/7/19 Tr., pp. 555-556.) 

{¶11} On cross-examination A.W. testified that her father had been upset when 

he discovered her watching pornography. She said she had originally told her father that 

a school friend had introduced her to pornography, “I was trying -- when the guy told me 

not to tell anyone - -.” (11/7/19 Tr., p. 566.) “But [the friend] didn’t tell me about the 

videos.” (11/7/19 Tr., p. 566.) On redirect, A.W. testified that she was watching the videos 

to try and figure out what had happened to her the night of the birthday party. (11/7/19 

Tr., p. 575.) 

{¶12} The last witness called by the state was Dr. Paul McPherson, Medical 

Director of the three child abuse clinics operated by Akron Children’s Hospital. He 

testified as an expert witness. The physician who examined A.W., Dr. Sharma, was no 

longer practicing at Akron Children’s Hospital and had relocated to California, but Dr. 

McPherson testified that in his role as medical director, he has access to all patient 

records. Dr. McPherson reviewed A.W.’s file and prepared a written report that was 

submitted to defense counsel prior to trial. He testified that it was not unusual that A.W. 

disclosed the abuse to her father ten months after it occurred, as it is common for a child 

to delay disclosing sexual abuse. (11/7/19 Tr., p. 589.) Dr. McPherson stated that 

because children are trusting of adults and do not fully understand issues surrounding 

sexuality, they are likely to delay such disclosure. (11/7/19 Tr., p. 590.) He testified that 

the 10-month delay in A.W.’s disclosure was age-appropriate for an 8-year-old. (11/7/19 

Tr., p. 591.) Dr. McPherson stated that it was not atypical in abuse cases to find no 

physical injury, as 90 percent of cases do not reveal any physical findings. (11/7/19 Tr., 
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Case No. 20 CO 0002

p. 595.) He also concluded that the type of abuse described by A.W. would not have 

resulted in findings of physical injury ten months later. (11/7/19 Tr., p. 597.) Dr. 

McPherson was also asked about A.W. viewing pornography and whether it was 

“surprising behavior for a child sexual assault victim.” Defense counsel objected, noting 

that Dr. McPherson’s written report contained no findings or conclusions regarding A.W. 

viewing pornography as a result of sexual abuse, making his testimony on the issue at 

trial inadmissible. The trial court overruled the objection, concluding that Dr. McPherson 

was offering his opinion based both on his general knowledge and of A.W., specifically. 

(11/7/19 Tr., p. 600.) 

{¶13} In Dr. McPherson’s direct testimony he stated that A.W.’s testimony 

regarding the night of the incident contained detailed information that would not be typical 

for the life experience of an 8-year-old. He also testified, over defense objection, that the 

description of the incident by A.W. “would be very difficult to glean from watching 

pornography[.]” (11/7/19 Tr., p. 603.) Finally, Dr. McPherson testified that he agreed with 

the examining physician and opined that with a reasonable degree of medical certainty 

A.W.’s evaluation was consistent with child sexual abuse. (11/7/19 Tr., p. 604.) 

{¶14} On cross-examination, defense counsel inquired: 

Q. Doctor, because you didn’t interview the child or the family, you don’t 

know how much video pornography the child watched; do you? 

A. No, I do not know how much. 
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Case No. 20 CO 0002

Q. And you don’t know the timeframe that she watched internet video 

pornography either before the alleged incident or after the alleged incident; 

correct? 

A. That wasn’t recorded in the medical record. 

Q. Okay. 

A. Other than it did happen after the incident. 

Q. But you don’t know when it happened? 

A. Well, it happened after the incident. Did it happen before? I don’t know. 

That wasn’t recorded in the medical record. 

(11/7/19 Tr., p. 622.) 

{¶15} Appellant testified on his own behalf. Appellant said that he had been at 

the house once before while it was under construction but this was the first time he had 

been there since completion. A.W.’s father had shown him several areas of the house 

when he arrived, including the basement, where he tried to do a bench press. (11/7/19 

Tr., p. 662.) Appellant and his wife arrived at the party at approximately 7:30 p.m. and 

they went to sleep on the couch around 12:30 a.m. He testified that most of the adults 

were drinking, including himself, his wife, and T.W. His wife had vomited earlier in the 

evening, which he said could have been attributed to something she ate. He testified that 

he had no contact with A.W. that night. He and his wife slept on the L-shaped sectional 

couch with their heads meeting in the corner. (11/7/19 Tr., p. 666.) They woke up early, 
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Case No. 20 CO 0002

at approximately 6:00 a.m., and collected their shoes, coats and firearms, leaving the 

house before anyone else was awake. He testified that he only knew three people in 

Columbiana County and all three were individuals he previously worked with, including 

T.W. When Det. Wycoff contacted him to request an interview because he was a suspect 

in a Columbiana County criminal case, he thought one of his three acquaintances from 

Columbiana County was playing a prank on him. (11/7/19 Tr., p. 674.) Det. Wycoff did 

not provide any details of the crime during the phone call. After he agreed to be 

interviewed, he contacted all three acquaintances to see if they knew anything, still 

thinking someone was playing a joke. (11/7/19 Tr., p. 676.) He spoke to the two other 

acquaintances first, who denied involvement. T.W. did not answer his phone and did not 

return his calls. 

{¶16} Appellant decided to hire a lawyer to be present during the police interview. 

Appellant heard A.W.’s allegation for the first time during the interview and said he “was 

in complete shock.” (11/7/19 Tr., p. 679.) He was concerned that he and his wife were 

no longer going to be able to be foster parents because of the allegation. (11/7/19 Tr., p. 

681.) On cross-examination Appellant testified that he had a drinking problem and tended 

to binge drink. (11/7/19 Tr., p. 690.) He had to ask his wife if anything happened at the 

party that he was not aware of because of his level of intoxication. 

{¶17} On May 17, 2018, the Columbiana County Grand Jury issued a secret 

indictment alleging one count of gross sexual imposition involving a child less than 13 

years of age, in violation of R.C. 2907.05(A)(4). A superseding indictment on the same 

charge was issued on September 24, 2019. Appellant pleaded not guilty and the matter 

proceeded to a jury trial in November of 2019. At the conclusion of the four-day trial the 
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Case No. 20 CO 0002

jury returned a guilty verdict. On February 3, 2020, the trial court sentenced Appellant to 

a 42-month prison term, imposed as a mandatory sentence. Appellant was also classified 

as a Tier II sex offender. 

{¶18} Appellant filed this timely appeal. 

ASSIGNMENT OF ERROR NO. 1 

The trial court erred when it wholly barred an expert witness for Mr. Fowler 

from testifying on his behalf. Fifth and Fourteenth Amendments, United 

States Constitution and Article I, Sections 10 and 16, Ohio Constitution. 

(Judgment Entry, Nov. 1, 2019; Tr. Vol. 4, pp. 742-743.) 

{¶19} In Appellant’s first assignment he challenges the trial court’s exclusion of 

his expert witness testimony. Appellant frames his argument as a constitutional challenge 

to his ability to present an adequate defense, allowing us to affirm only if we find the error 

harmless beyond a reasonable doubt. However, this matter involves a question regarding 

evidence, and we review the trial court’s evidentiary rulings for an abuse of discretion. 

State v. Beshara, 7th Dist. Mahoning No. 07 MA 37, 2009-Ohio-6529, ¶ 55. An abuse of 

discretion connotes more than an error of judgment; it implies that the court's attitude is 

unreasonable, arbitrary, or unconscionable. Yashphalt Seal Coating, LLC v. Giura, 7th 

Dist. Mahoning No. 18 MA 0107, 2019-Ohio-4231, ¶ 14, citing Blakemore v. Blakemore,

5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 

{¶20} Pursuant to Evid.R. 702: 

A witness may testify as an expert if all of the following apply: 
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Case No. 20 CO 0002

(A) The witness' testimony either relates to matters beyond the knowledge 

or experience possessed by lay persons or dispels a misconception 

common among lay persons; 

(B) The witness is qualified as an expert by specialized knowledge, skill, 

experience, training, or education regarding the subject matter of the 

testimony; 

(C) The witness' testimony is based on reliable scientific, technical, or other 

specialized information. To the extent that the testimony reports the result 

of a procedure, test, or experiment, the testimony is reliable only if all of the 

following apply: 

(1) The theory upon which the procedure, test, or experiment is based is 

objectively verifiable or is validly derived from widely accepted knowledge, 

facts, or principles; 

(2) The design of the procedure, test, or experiment reliably implements 

the theory; 

(3) The particular procedure, test, or experiment was conducted in a way 

that will yield an accurate result. 

{¶21} In State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989) the Ohio 

Supreme Court held that, “[a]n expert may not testify as to the expert’s opinion of the 

veracity of the statements of a child declarant.” Id., at syllabus. On the other hand, in 
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Case No. 20 CO 0002

State v. Stowers, 81 Ohio St.3d 260, 690 N.E.2d 881 (1998), the Supreme Court held 

that an expert witness’s testimony that the behavior of an alleged child victim of sexual 

abuse is consistent with behavior generally observed in sexually abused children is 

admissible under the Ohio Rules of Evidence. “Boston’s syllabus excludes expert 

testimony offering an opinion as to the truth of a child’s statements (e.g., the child does 

or does not appear to be fantasizing or to have been programmed, or is or is not truthful 

in accusing a particular person),” but “does not proscribe testimony which is additional 

support for the truth of the facts testified to by the child, or which assists the fact finder in 

assessing the child’s veracity.” (Emphasis sic.) Stowers at 262-263. 

{¶22} In Boston, the Court held: 

[A] witness qualified as an expert by knowledge, skill, experience, training 

or education may have her testimony presented in the form of an opinion or 

otherwise and it need not be just scientific or technical knowledge. The rule 

includes more. The phrase “other specialized knowledge” is found in the 

rule and, accordingly, if a person has information which has been acquired 

by experience, training or education which would assist the trier of fact in 

understanding the evidence or a fact in issue and the information is beyond 

common experience, such person may testify. 

Id. at 118-119. 

{¶23} Therefore, where an expert has gained specialized knowledge through 

training and professional experience the average person lacks about behavioral 

characteristics of child abuse victims, his or her expert testimony is properly admitted. Id. 
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Case No. 20 CO 0002

However, where the expert’s testimony usurps the role of the jury and directly expresses 

an opinion about the child victim’s truthfulness, it must be excluded. Id., at syllabus. 

{¶24} The state’s motion in limine sought to exclude the testimony and report of 

Deborah Koricke, Ph.D. The state raised several issues: (1) Koricke’s report improperly 

proffered an opinion that Appellant did not commit the offense; (2) Koricke’s report 

contained personal opinions regarding the veracity of the child victim; and (3) Koricke’s 

report was couched as a psychological evaluation of the defendant, which is inadmissible 

when the defendant is not claiming a mental defect or raising a defense of not guilty by 

reason of insanity. 

{¶25} Appellant’s response points out that Koricke is a qualified clinical 

psychologist. Further, as the only evidence against Appellant was the child’s allegation, 

Koricke’s report focuses on the fact that the child’s statements made to her father and 

during her examination may not have been properly investigated by law enforcement and 

medical professionals. 

{¶26} In its judgment entry the trial court granted the state’s motion in limine, 

concluding: 

In the first 5 pages, the report of Ms. Koricke recounts significant personal 

and other information regarding the Defendant, including the results of a 

mental status and psychological examination. The Defendant has not 

demonstrated how any such testimony or opinion is relevant to the issues 

in this case. 

* * * 
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Case No. 20 CO 0002

The report of Ms. Koricke does contains [sic] a number of conclusions 

regarding her beliefs about this case. But the report does not directly 

conclude that the investigation in this case was inadequate. Instead, the 

report states it will “explore how these difficulties can be related to this 

case.” More troubling is that Ms. Koricke has not expressed any of her 

beliefs or conclusions based on any degree of probability. Instead, she 

uses words like “quite possible and likely” and “may have and could have 

made false allegation.” [sic] Any such opinion or testimony is not competent 

as a matter of law. 

Typically, a medical expert’s opinion testimony is only competent if it is held 

to a reasonable degree of medical certainty or probability. Admittedly, there 

is no requirement that an expert utter any magic words in terms of certainty 

or probability. But, the expert’s testimony, when considered in its entirety, 

must be equivalent to an expression of probability. 

The report also includes significant commentary regarding the veracity of 

the alleged child-victim. As an example, Ms. Koricke states, “There was 

definitively motive in creating the scenario of the alleged sexual abuse by 

this child.” She also writes, “As a result, an abhorrent criminal charge of 

sexually abusing a minor was placed onto a man without any evidence but 

the statements of a young girl with motive to create the scenario.” 

Any such statement or testimony is also improper. Determining the weight 

of the evidence and/or credibility of a witness are duties of the trier of fact. 
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Case No. 20 CO 0002

(11/1/19 J.E., pp. 2-3.) 

{¶27} Citing to State v. Lang, 129 Ohio St.3d 512,954 N.E.2d 596, 2011-Ohio4215, Appellant argues that the trial court’s exclusion of Koricke’s testimony goes against 

Ohio Supreme Court precedent. In Lang the Court concluded that an expert witness in a 

criminal case can testify in terms of possibility rather than reasonable scientific certainty 

or probability. Id. However, the treatment of such testimony is analyzed under a 

sufficiency and weight argument, meaning that it is considered along with all of the other 

evidence in the matter. Id. at ¶ 77-78. “While several decisions from this court indicate 

that speculative opinions by medical experts are inadmissible since they are based on 

possibilities and not probabilities, * * * the better practice, especially in criminal cases, is 

to let experts testify in terms of possibility.” State v. D’Ambrosio, 67 Ohio St.3d 185, 191, 

616 N.E.2d 909 (1993). 

{¶28} A review of this record reveals that the holding in Lang is inapplicable in this 

case. Here, the statements posited by Koricke in her report were not the result of 

specialized knowledge gained through training or experience. Boston at 118-119. 

Instead, Koricke directly challenged the veracity of the child-victim statements based on 

personal opinion, particularly with regard to her assumption that the child had a motive to 

be dishonest to avoid punishment for viewing pornography. Such broad statements 

regarding the credibility of the child-victim directly contradict the holdings of Boston and 

its progeny. Lang does permit the application of properly admitted scientific evidence to 

the facts of a case, but without any technical basis or relation to the expert’s purported 

area of specialty, such statements do not qualify as expert opinion under Evid.R. 702. 

Moreover, as the state notes, Koricke’s opinion that law enforcement failed to investigate 
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other theories or other suspects goes beyond her purported area of expertise as a 

psychologist and runs afoul of permissible expert testimony pursuant to Evid.R. 702. 

{¶29} Appellant argues that even though portions of Koricke’s report may have 

“touched on matters of witness credibility,” the trial court should have redacted those 

portions rather than exclude her testimony entirely. (Appellant’s Brf., p. 7.) However, 

where a purported expert’s report contains multiple conclusions which improperly call into 

question the veracity of a child-victim in a sexual abuse case, sets forth unsupported 

assertions of the defendant’s innocence, and concludes that law enforcement 

investigation was flawed (all of which is beyond the scope of her purported expertise) the 

trial court does not abuse its discretion in excluding the witness testimony. 

{¶30} Appellant’s first assignment of error is without merit and is overruled. 

ASSIGNMENT OF ERROR NO. 2 

The trial court erred when it allowed an expert witness for the State to 

testify, over objection, to matters beyond the scope of the expert’s written 

report. Crim.R. 16. (Defendant’s Ex. C; Tr. Vol. 3, pp. 597-604.) 

{¶31} Appellant contends Dr. McPherson testified beyond the scope of the written 

report submitted pursuant to Crim.R. 16(K) and thus, that he is entitled to a new trial. 

{¶32} Crim.R.16 governs discovery matters in criminal cases. Effective July 1, 

2010, Crim.R. 16 underwent comprehensive modifications in order to strengthen 

protections of the constitutional due process rights of defendants at trial and promote 

more open discovery. State v. Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153 N.E.3d 

44, ¶ 44. As part of that overhaul, Crim.R. 16(K) was adopted, which requires expert 
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Case No. 20 CO 0002

witnesses to generate a written report that must be disclosed to the opposing party no 

later than 21 days prior to trial. State v. Walls, 2018-Ohio-329, 104 N.E.3d 280, ¶ 27 (6th 

Dist.). Crim.R. 16(K) reads: 

An expert witness for either side shall prepare a written report summarizing 

the expert witness’s testimony, findings, analysis, conclusions, or opinion, 

and shall include a summary of the expert’s qualifications. The written 

report and summary of qualifications shall be subject to disclosure under 

this rule no later than twenty-one days prior to trial, which period may be 

modified by the court for good 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. 

{¶33} In this case Dr. McPherson did prepare a report in accordance with Crim.R. 

16(K) well in advance of trial. However, Appellant contends that testimony elicited at trial 

from Dr. McPherson by the state went beyond the conclusions contained within his report. 

The Ohio Supreme Court has stated that the purpose of Crim.R. 16(K) is to avoid unfair 

surprise by providing notice to the defense so that the expert’s findings and analysis can 

be challenged with the support of an adverse expert. Boaston, ¶ 48. Prior to Boaston, 

appellate courts had been split on whether the trial court must exclude expert testimony 

in all cases of noncompliance with Crim.R. 16(K), some deciding that exclusion is not 

always necessary because a trial court has discretion in evidentiary matters. However, 

in Boaston, the Ohio Supreme Court concluded the plain language of Crim.R. 16(K) limits 

the usual discretion of the trial court and “provides its own specific remedy for a violation 
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of the rule.” Boaston, ¶ 54. Crim.R. 16(K) states that “[f]ailure to disclose the written 

report to opposing counsel shall preclude the expert’s testimony at trial.” Crim.R. 16(K). 

Therefore, as Crim.R. 16(K) removes the trial court’s discretion it requires exclusion of 

expert testimony when a written report is not disclosed pursuant to rule. However, the 

reviewing court must still consider the matter in conjunction with Crim.R. 52 and a 

harmless error analysis is used in determining whether some error in this regard is 

reversible. See State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, 

¶ 23. 

{¶34} Crim.R. 52(A) provides: “Any error, defect, irregularity, or variance which 

does not affect substantial rights shall be disregarded.” Moreover, pursuant to R.C. 

2945.83: 

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 rejection 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[.] 

{¶35} In State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, the 

Ohio Supreme Court set out the analysis used to determine whether the erroneous 

admission of certain evidence so affected a defendant’s substantial rights that a new trial 

was required, or whether the admission was harmless pursuant to Crim.R. 52(A). First, 
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Case No. 20 CO 0002

we must determine whether a defendant was prejudiced, in that the error had an impact 

on the verdict. Second, we must decide whether the error was harmless beyond a 

reasonable doubt. Finally, we must determine, after we disregard the evidence in 

question, whether the remaining evidence proves the defendant was guilty beyond a 

reasonable doubt. Harris, ¶ 37. 

{¶36} It is undisputed here that Dr. McPherson’s written report was disclosed to 

defense counsel within the timeframe set forth in Crim.R. 16(K). Dr. McPherson testified 

at trial about A.W.’s delayed disclosure of her abuse as well as the fact that it was typical 

not to find evidence of physical abuse where the abuse occurred many months earlier. 

The following exchange was then held: 

Q: Now, [A.W.’s] father reported she was reviewing -- viewing websites 

dealing with sex or pornography. 

A: Yes. 

Q: Is this a surprising behavior for a child sexual assault victim in your 

experience? 

[defense counsel objected and a sidebar was held.] 

[DEFENSE COUNSEL]: Your Honor, this is a report of Doctor McPherson 

that was disclosed to us. He only has two conclusions in the entire report 

and he’s already testified to those two conclusions. 
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Case No. 20 CO 0002

The stuff about delayed disclosure and stuff about normal physical findings 

on the genital exam. That’s it. 

We have not had any opinions disclosed to us about video pornography 

watching. I know that came out a lot during the trial, but this man is called 

as an expert witness. They have to disclose opinions to us at least 30 days 

before trial. 

This is what was disclosed and there’s nothing about it in there. 

[PROSECUTOR]: Concerning sexual abuse. It gives the reasons in here 

from the reports. He is testifying as to how he came to those conclusions 

based on the reviews he was given in there. 

Now, you brought up a few topics with some of these people that I’m delving 

into with him given the fact that he is an expert. 

[DEFENSE COUNSEL]: It doesn’t -- 

[PROSECUTOR]: It’s permissible, * * * 

[DEFENSE COUNSEL]: No, it’s not. I brought up these things. And you 

can bring it up with fact witnesses, but you cannot bring it up with an expert 

witness unless you’ve disclosed those opinions to me in advance. 
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Case No. 20 CO 0002

That’s what the rules say. This is what’s disclosed, Your Honor, if you 

wanted to read the whole thing, you find anything about video pornography 

-- 

THE COURT: Hold on. 

* * * 

THE COURT: All right. Now, I have had an opportunity to review here at 

the sidebar a report dated September 16, 2019. 

The report does not specifically say anything about watching pornography. 

I think that was the nature of [the prosecutor’s] question, whether that would 

be surprising in a child who is suspected to be a victim of sexual abuse. 

So, [prosecutor], state for the record, I guess, what your position is. 

* * * 

[PROSECUTOR]: The question is based on his expertise as a sexual -- it’s 

not directed towards [A.W.], it’s towards his experience in sexual abuse 

cases. 

[SECOND PROSECUTOR]: My point was I think he’s being asked a 

question as an expert in the field of child sexual abuse as in general matters 

much like as many of the other matters that have been explored to this point 

time [sic]. 
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Case No. 20 CO 0002

And it’s appropriate. It doesn’t go to his ultimate opinion or conclusion. His 

ultimate opinion or conclusion about which he will testify has not even been 

addressed yet. 

But this is just as to general matters within his knowledge as an expert in 

the field of child sexual abuse designed to aid the jury in the understanding 

of child sexual abuse. 

[DEFENSE COUNSEL]: Nevertheless, he’s an expert. He’s not a fact 

witness. He doesn’t know a single fact based own [sic] observation. 

So he’s got to stick to the rules regarding experts. And if he’s going to give 

an opinion whether it’s general or specific, it’s got to be disclosed in advance 

so that I can prepare. 

I would have had my own expert prepare rebuttal for that, but I couldn’t 

because it’s not disclosed. They just can’t sandbag on an issue like this 

and bring their expert in and claim that he’s allowed to say opinions if he 

doesn’t use the girl’s name. He’s giving opinions and they’re not disclosed. 

* * * 

THE COURT: It sounds like the opinion is based upon his general 

knowledge. It’s not based on this specific child to the extent that watching 

pornography and watching pornographic videos has been discussed

repeatedly throughout this case. 
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Case No. 20 CO 0002

I’m going to let him answer the question and you can cross him on it. Thank 

you. 

(11/7/19 Tr., pp. 597-600.) 

{¶37} Following this exchange and court ruling, the prosecutor then restated the 

question to Dr. McPherson: 

Q. There’s been some talk in here that the -- there was viewing -- dealing 

with some websites dealing with sex and porn. Given your training and 

experience, is that surprising behavior for a child sexual assault victim? 

A. Well, it would depend on the child, specifically the age. If it was 3- or 4-

year-old or a 5-year-old child, I wouldn’t necessarily expect them to look up 

something about what happened to them in that manner. 

But if you’re talking about someone older, 8, 9, 10, 12, not every case does 

the victim look up on the internet, but it’s not uncommon for children, if they 

don’t understand what’s going on, to seek information out. 

(11/7/19 Tr., p. 601.) 

{¶38} Appellant argues that Dr. McPherson’s answer went to a main issue in this 

case: whether A.W. may have viewed pornography because she was a victim of sexual 

abuse. Appellant claims the testimony had the effect of bolstering A.W.’s credibility with 

the jury, by supporting the idea that she was not fabricating her allegation of abuse to 

avoid being punished by her father for viewing pornography. The state counters that Dr. 

McPherson did not actually answer the question asked by the prosecutor; whether it 
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Case No. 20 CO 0002

would be surprising that a child victim of sexual abuse would view pornography. Instead, 

Dr. McPherson offered a general observation that an older child might seek out 

information when they encounter something they do not understand rather than one 

aimed specifically at A.W.’s conduct and the allegations of sexual abuse. 

{¶39} Dr. McPherson’s written report submitted in this case did not contain any 

conclusions or expert opinion regarding A.W.’s viewing of pornography and any 

relationship to her sexual abuse. Appellant argues the report and the doctor’s testimony 

must be excluded on this basis. However, this is not an accurate reading of the case law 

on the issue. Boaston held that although the trial court typically has discretion regarding 

admission of evidence, Crim.R. 16(K) limits that discretion and requires an expert report 

be excluded if it is not disclosed to opposing counsel. However, that is not what occurred 

in this case. The written report was disclosed in accordance with the rule, but the state 

asked the expert a question at trial that went outside of the scope of that report.

{¶40} While Appellant is incorrect that this line of questioning should result in 

exclusion of the expert’s report, we do find the question asked by the state is problematic 

for two reasons. As already stated, it goes beyond the scope of Dr. McPherson’s report, 

hampering defense counsel’s ability to prepare an adequate defense as to this issue. 

Second, depending on Dr. McPherson’s answer, it could be seen as an improper attempt 

to bolster A.W.’s credibility. Having a child abuse expert testify that A.W. was watching 

pornography because she was abused could potentially improperly influence the jury on 

the matter. 

{¶41} However, the record shows Dr. McPherson’s actual answer to the question 

was clearly general in nature. He spoke generally about the likelihood of children in 
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Case No. 20 CO 0002

specific age groups seeking information on the internet. He did not mention A.W. or relate 

his opinion to the case at issue. 

{¶42} Applying the analysis established in Harris, the question posed by the state 

regarding A.W.’s pornography viewing was improper, as it exceeded the scope of the 

expert’s report. However, Dr. McPherson’s response was general in nature and did not 

specifically address A.W.’s conduct in this case. Appellant has not demonstrated that he 

was prejudiced by the question or that this single question affected the verdict. When we 

view the record without including this question by the state and Dr. McPherson’s general 

observation in response, the record is replete with evidence presented by the state to 

support the verdict. Testimony from multiple witnesses was presented to the jury. Most 

importantly, the victim, herself, testified in this matter fairly extensively and addressed the 

issue in question both on direct examination and on the defense’s cross-examination. 

Hence, while it appears the trial court erred in allowing the state to question Dr. 

McPherson about a matter not addressed in his report, this error is harmless beyond a 

reasonable doubt. This record reveals the question and generalized answer did not affect 

the substantial rights of Appellant. The remaining evidence presented at trial established 

Appellant’s guilt beyond a reasonable doubt. Appellant is not entitled to a new trial on 

this issue. His second assignment of error is without merit and is overruled. 

ASSIGNMENT OF ERROR NO. 3 

The trial court committed plain error when it allowed the jury to hear 

investigating detectives state that “children don’t lie,” and conversely, 

indicate that Mr. Fowler was lying, during a recorded interview of Mr. Fowler 

that was played for the jury and made a trial exhibit for the State. Fifth and 
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Case No. 20 CO 0002

Fourteenth Amendments, United States Constitution; Article 1, Sections 10 

and 16, Ohio Constitution. (State’s Ex. 1; Tr. Vol. 2, p. 403.) 

{¶43} Appellant challenges the admission of portions of the videotaped interview 

between Det. Wycoff, Det. Walker, and Appellant. Appellant initially contends the trial 

court erred in allowing the jury to hear Det. Walker’s interview statements regarding 

Appellant’s truthfulness. After Appellant was informed of the allegation made by A.W., 

Det. Walker said, “I think something did happen ... I mean watching you while we’re 

interviewing you and your non-verbal cues, I have some concerns.” (State’s Ex. 1, at 

28:22 – 28:30.) The state argues these statements were admissible, as Det. Walker 

was permitted to remark on Appellant’s demeanor. 

{¶44} Defense counsel did not object to these statements or seek to have them 

redacted from the interview prior to trial and before the videotaped interview was played 

for the jury. Therefore, we review this matter for plain error. Crim.R. 52(B); State v. Hale, 

119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 89-90. Pursuant to Crim.R. 

52(B), a reviewing court has the discretion to correct plain errors or defects that affect a 

defendant’s substantial rights. State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 

N.E.2d 1240. However, the defendant has the burden of proof to demonstrate plain error 

on the record and must show an error that constitutes an obvious defect in the trial 

proceedings. Id. Further, a defendant must demonstrate a reasonable probability that 

the error resulted in prejudice, impacting a substantial right which affected the outcome 

of the trial. Id. 

{¶45} “A police officer’s opinion that an accused is being untruthful is 

inadmissible.” State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E. 2d 31, ¶ 122 
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Case No. 20 CO 0002

(citations omitted.) “[J]urors are likely to perceive police officers as expert witnesses, 

especially when such officers are giving opinions about the present case based upon their 

perceived experiences with other cases.” State v. Walker-Curry, 8th Dist. Cuyahoga No. 

106228, 2019-Ohio-147, ¶ 14, citing State v. Potter, 8th Dist. Cuyahoga No. 81037, 2003-

Ohio-1338, ¶ 38. This does not automatically result in error, however. 

{¶46} We first note that the statements by both detectives Walker and Wycoff 

were made during a police interrogation of a suspect, and were not made during the 

detectives’ direct testimony at trial. Police statements made during an interrogation 

intended to get the suspect to tell the truth are not coercive in nature. State v. Hopfer, 

112 Ohio App.3d 521, 547-548, 679 N.E.2d 321 (2d. 2000). However, Det. Walker’s 

statements regarding Appellant’s body language in the face of the allegations could be 

seen by the jury as an expression on the part of Det. Walker of his doubt about Appellant’s 

credibility. Assuming arguendo that it may have been error to admit certain portions of 

this video, we turn to whether this error was prejudicial given the other evidence in the 

record. “Nonconstitutional error is harmless if there is substantial other evidence to 

support the guilty verdict.” State v. Webb, 70 Ohio St.3d 325, 335, 638 N.E.2d 1023 

(1994). In addition to the videotaped police interview, the state presented the testimony 

of Beverly, the intake investigator for Children’s Services. Beverly opined that, in her 

experience, Appellant’s body language and responses were not consistent with the 

vehement denials typically exhibited by an accused. The victim in this case testified, as 

did an expert in child abuse cases. Most importantly, Appellant also testified on his own 

behalf. He testified on both direct and cross-examination regarding his responses and 

demeanor during the police interview when he was informed of A.W.’s allegation. 
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Case No. 20 CO 0002

Through this testimony, the jury was able to assess the credibility of Appellant and 

ultimately determine his veracity for themselves. Considering the other evidence in the 

record, even if the inclusion of Det. Walker’s statements about Appellant’s truthfulness 

rises to the level of error, this error can only be called harmless under the facts of the 

case, as there is no reasonable probability that the comments contributed to Appellant’s 

conviction. State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 28. 

{¶47} Appellant also challenges another statement made by Det. Wycoff during 

the interview. When Det. Wycoff told Appellant about A.W.’s allegation of abuse, Det. 

Wycoff stated, “seven-year-olds don’t ...won’t lie about things like that[.]” (State’s Ex. 1, 

at 10:35-10:50.) Several minutes later Det. Wycoff states: “My real concern is that a 

seven-year-old girl is not going to make something up like that.” (State’s Ex. 1, at 18:23 

– 18:28.) The state asserts Det. Wycoff was not attacking Appellant’s credibility but was 

providing Appellant the opportunity to “deny the conduct and give an explanation.” 

(Appellee’s Brf., p. 12.) 

{¶48} In State v. Boston, 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989), modified on 

other grounds by State v. Dever, 64 Ohio St.3d 401, 596 N.E.2d 436 (1992), the Ohio 

Supreme Court held,”[a]n expert may not testify as to the expert’s opinion of the veracity 

of the statements of a child declarant” because such testimony “acted as a litmus test of 

the key issue in the case and infringed upon the role of the fact finder, who is charged 

with making determinations of veracity and credibility.” Id, at 128-129, quoting State v. 

Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988) (H. Brown, J. concurring). 

However, courts have limited Boston to only expert testimony. Det. Wycoff was not 

testifying as an expert. Further, as earlier discussed, the statements at issue were made 
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Case No. 20 CO 0002

during a police interrogation and not in testimony at trial. Defense counsel challenged 

Det. Wycoff on cross-examination regarding the statements at issue, and the detective 

admitted that he was wrong to address Appellant in that fashion. The jury certainly had 

the opportunity to determine Det. Wycoff’s credibility. However, because Det. Wycoff was 

the investigating officer, it is possible the jury perceived statements he made during his 

interrogation of Appellant as expert in nature, based on his experience as a police officer. 

State v. Walker-Curry, 8th Dist. Cuyahoga No. 106228, 2019-Ohio-147, ¶ 14, citing State 

v. Potter, 8th Dist. Cuyahoga No. 81037, 2003-Ohio-1338, ¶ 38. 

{¶49} Again, even assuming it was error to admit this portion of the video where 

these statements were made, Appellant has failed to demonstrate that the error affected 

any substantial right. Defense counsel cross-examined Det. Wycoff at trial regarding 

these statements. Additionally, the jury heard Appellant’s testimony at trial as to the 

reasons for his behavior during the interview, stating that he was simply too stunned to 

react. Moreover, A.W. testified at trial regarding every aspect of her allegations. A.W. 

was questioned extensively on cross-examination as to whether she was telling the truth 

or whether she accused Appellant in order to avoid her father’s punishment for watching 

pornography. The jury had the opportunity to make an independent determination as to 

both the child’s credibility and Appellant’s veracity. Other evidence presented, including 

the extensive testimony at trial, enabled the jury to properly make their own determination 

regarding both Appellant’s truthfulness and A.W.’s. Coupled with the overwhelming 

evidence of guilt as earlier discussed, this record reveals the admission of the 

questionable videotaped statements does not rise to the level of plain error. 

{¶50} Appellant’s third assignment of error is without merit and is overruled. 
 – 31 – 

Case No. 20 CO 0002

ASSIGNMENT OF ERROR NO. 4 

The cumulative effect of trial-court errors denied Mr. Fowler his right to a 

fair trial, in violation of the Fifth and Fourteenth Amendments to the United 

States Constitution and Article I, Sections 10 and 16 of the Ohio 

Constitution. (Judgment Entry, Nov. 1, 2019; Tr. Vol. 4, pp. 742-743; 

Defendant’s Ex. C; Tr. Vol. 3, pp. 597-600; State’s Ex. 1; Tr. Vol. 2, p. 403.) 

{¶51} Separate errors that may not individually rise to the level requiring reversal 

may, nonetheless, violate a defendant’s right to a fair trial when considered together. 

State v. Madrigal, 87 Ohio St.3d 378, 397, 721 N.E.2d 52 (2000). In order to affirm a 

conviction where there have been multiple errors, a reviewing court must find that the 

cumulative effect of the errors is also harmless beyond a reasonable doubt. State v. 

Anderson, 7th Dist. Mahoning No. 03 MA 252, 2006-Ohio-4618, ¶ 80, citing State v. 

DeMarco, 31 Ohio St.3d 191, 195, 509 N.E.2d 1256 (1987). If Appellant’s substantial 

rights were not affected, or where the record reveals that the errors did not contribute to 

the conviction, the judgment of the trial court should be affirmed. Crim.R. 52(A); Evid.R. 

103(A); State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 51. 

{¶52} Appellant contends that even if we find his claimed errors are harmless, the 

cumulative effect of these errors violated his right to a fair trial. As earlier discussed, the 

trial court did not err in excluding Appellant’s expert witness testimony, as her written 

report contained multiple conclusions which improperly called into question the veracity 

of the child-victim and went well beyond the scope of her purported expertise. Evid.R. 

702. While the trial court did err in allowing the state to ask a question of Dr. McPherson 
 – 32 – 

Case No. 20 CO 0002

that exceeded his expert report, Dr. McPherson’s answer amounted to a general 

statement of possibility, and was not directed to A.W.’s conduct specifically. Thus, it was 

harmless as a matter of law. Detectives Wycoff and Walker did make statements 

appearing to attack Appellant’s veracity during their investigative video that was played 

for the jury. No objection was made until after the video was played. Both detectives 

explained their investigative technique and did not directly attack Appellant’s credibility in 

their testimony. To the extent the unredacted video questioning may have been 

erroneously shown to the jury, this was harmless as a matter of law. Hence, Appellant 

has not shown any prejudice and cannot show any error, either cumulative or individual, 

requiring reversal of his conviction in this case. 

Appellant’s fourth assignment of error is without merit and is overruled. 

ASSIGNMENT OF ERROR NO. 5 

The trial court erred when it imposed a mandatory sentence upon Mr. 

Fowler. (Sent. Tr. 34; Judgment Entry, Feb. 3, 2020.) 

{¶53} Appellant contends the trial court’s imposition of a mandatory prison term 

was contrary to law. Appellant argues that a resentencing hearing is required. The state 

concedes that the mandatory nature of the sentence is contrary to law but maintains that 

the error can be corrected via a nunc pro tunc entry. 

{¶54} In reviewing felony sentences, appellate courts must apply the standard of 

review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Pursuant 

to R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or 
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Case No. 20 CO 0002

may vacate the sentence and remand for resentencing, only if it “clearly and convincingly” 

finds either: (1) that the record does not support certain specified findings; or (2) that the 

sentence imposed is contrary to law. 

{¶55} R.C. 2907.05(C)(2) establishes that a conviction for gross sexual imposition 

pursuant to R.C. 2907.05(A)(4) is a third-degree felony for which “there is a presumption 

that a prison term be imposed.” State v. Bevly, 142 Ohio St.3d 41, 2015-Ohio-475, 27 

N.E.3d 516, ¶ 8. The maximum prison term for the offense is 60 months. R.C. 

2929.14(A)(3). R.C. 2907.05(C)(2)(a) purports to elevate the punishment to a mandatory 

prison term if there is corroborating evidence of the crime; however, the Ohio Supreme 

Court has deemed that provision to be unconstitutional. Bevly, paragraphs one and two 

of the syllabus. 

{¶56} At sentencing, defense counsel informed the trial court that the mandatory 

sentencing provision did not apply because neither of the subsections of R.C. 

2907.05(C)(2) were present, but did not reference the Bevly holding. When imposing 

sentence the trial court stated: 

I am not going to grant community control sanction or a 30-day residential 

sanction. The way I read the statute, I do believe it is incumbent upon me 

to impose a mandatory term of incarceration, which I am going to do here 

today. 

(1/31/20 Tr., p. 34.) 

{¶57} In Bevly, the Ohio Supreme Court held: 
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Case No. 20 CO 0002

1. Because there is no rational basis for the provision in R.C. 

2907.05(C)(2)(a) that requires a mandatory prison term for a defendant 

convicted of gross sexual imposition when the state has produced evidence 

corroborating the crime, the statute violates the due-process protections of 

the Fifth and Fourteenth Amendments to the United States Constitution. 

2. In cases in which a defendant has pled guilty, imposing a mandatory 

prison term pursuant to R.C. 2907.05(C)(2)(a) when corroborating evidence 

of the charge of gross sexual imposition is produced violates the 

defendant’s right to a jury trial as guaranteed by the Sixth and Fourteenth 

Amendments to the United States Constitution. 

Id., paragraphs one and two of the syllabus. 

{¶58} Although the trial court did not specify which statute it was reviewing in 

reaching its conclusion, it appears the trial court applied R.C. 2907.05(C)(2)(a), requiring 

mandatory prison time if corroborating evidence was presented at trial. However, as 

noted above, the Bevly Court held that R.C. 2907.05(C)(2)(a) violates the due process 

protections of the Fifth and Fourteenth Amendments to the United States Constitution. 

Thus, the presence or absence of corroborating evidence cannot be used to impose a 

mandatory sentence and is irrelevant for sentencing purposes. The imposition of a 

mandatory prison term in this matter was contrary to law. Appellant’s sentence is vacated 

and the matter is remanded to the trial court for the specific purpose of resentencing 

pursuant to Bevly. 

{¶59} Appellant’s fifth assignment of error has merit and is sustained. 
 – 35 – 

Case No. 20 CO 0002

Conclusion 

{¶60} The trial court did not abuse its discretion in excluding the testimony of 

Appellant’s proposed expert. While Dr. McPherson was erroneously asked a question 

regarding matters outside of his report, his answer was general in nature and did not rise 

to the level of prejudicial error. In addition, even if the comments of detectives Wycoff 

and Walker during their interview with Appellant may have been improperly admitted, this 

did not result in prejudice to Appellant and when considered alongside the other 

substantial evidence presented by the state, the statements did not result in plain error. 

Appellant had the opportunity to confront both detectives and the extensive testimony on 

the issue by the detectives, Appellant, and A.W. enabled the jury to independently 

determine the credibility of the witnesses and veracity of the allegations at issue. 

Appellant’s conviction is affirmed. However, as the trial court improperly characterized 

Appellant’s sentence as mandatory, the sentence imposed by the trial court is vacated 

and the matter is remanded to the trial court for resentencing consistent with this opinion. 

Robb, J., concurs. 

D’Apolito, J., concurs. 
 – 36 – 

Case No. 20 CO 0002

 

 

For the reasons stated in the Opinion rendered herein, Appellant’s first, second,

third and fourth assignments of error are overruled and Appellant’s conviction is hereby

affirmed. However, as the trial court improperly characterized Appellant’s sentence as

mandatory, his fifth assignment is sustained. It is the final judgment and order of this

Court that the judgment of the Court of Common Pleas of Columbiana County, Ohio, is 

affirmed in part and reversed in part. Appellant’s sentence is vacated and we hereby

remand this matter to the trial court for resentencing according to law and consistent with

this Court’s Opinion. Costs to be taxed against the Appellee. 

A certified copy of this opinion and judgment entry shall constitute the mandate in 

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution. 

 

 

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.