State v. Bellamy , 2021 Ohio 40 ( 2021 )

[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 : OPINION
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 100
Delaware 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, 2019 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 sexual 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 shortly thereafter,
and divorced a year later. During their marriage, they first lived in Cardington Ohio and
then Ashley Ohio. Knight's 4 children also resided with the couple including N.S. who was
six and seven years-old during the marriage. Bellamy did not work 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 Bellamy was living with other
little girls and if he was doing the same things to them that he 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 take 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 forensic interviewer.
The interview was preserved on video.
{¶ 6} During the interview N.S. explained she and her younger siblings had lived
in two different homes with Bellamy. At the first home in Cardington, N.S. explained
Bellamy began by exposing his genitals to her and then progressed to making her put her
hand on his bare penis, or occasionally on his penis but over his clothing.
{¶ 7} When the family moved to Ashley, N.S. stated Knight continued 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 prevent 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 screamed 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 disrobe, 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 took 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 Bellamy would force
her to perform fellatio and instances when he performed cunnilingus on her. She stated
these activities happened nearly every day during summer of 2009.
{¶ 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 less than 10 years of age, and
the acts were committed by force or threat of force. Bellamy was further charged with
three counts of gross sexual imposition and one count of menacing by stalking. Bellamy
entered pleas of not guilty and elected to proceed to a jury trial.
{¶ 12} Before trial, in April, 2019, the state provided supplemental discovery which
included the curriculum vitae of Dr. Stuart Bassman, but did not include a report from
Bassman. Although counsel for Bellamy requested a continuance on May 15, 2019 to
hire an expert based on the state's supplemental discovery, a defense expert was never
hired. Five days before trial, the state provided Bassman's expert 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 filed any motion to suppress
Bassman's testimony, there may be objections to his testimony depending on what
opinions the state sought to elicit. Counsel noted Bassman never 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 and 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 testimony.
{¶ 15} The state called Bassman as its last witness on the final day of trial. Before
his testimony, counsel for Bellamy moved to exclude the testimony of the doctor pursuant
to the state's violation of Crim.R. 16(K) which requires the state to provide the report of
an expert witness 21 days before trial. Counsel for Bellamy again 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) and gave no
explanation for its failure to provide the report to the defense. 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 experience 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 disclosure, what makes
a victim's story credible, and the grooming behaviors of offenders. He further explained it
was important for him to testify because "offenders don't touch * * *[t]hey molest; they
offend; they violate; they assault * * * it's not a touch; it's an assault." T. 428-433.
{¶ 18} Bellamy testified in his own defense, called two character 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 important Bassman's
testimony was to its case because it showed N.S.'s story was consistent with being the
victim of sexual abuse and that Bellamy's behavior was completely 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 before 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 CAUSE
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 FAIR
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 CAUSE
BECAUSE OF CUMULATIVE ERROR."
Delaware County, Case No. 19 CAA 08 0048 7
I
{¶ 26} In his first assignment of error, Bellamy argues the trial 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 Bassman's report. We agree.
CRIM.R. 16 HISTORY
{¶ 27} Crim.R. 16(K) provides:
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.
{¶ 28} In 2010, amendments were made to Crim.R. 16, including the enactment of
Crim.R. 16(K). This section required for the first time that experts generate written reports
and that those reports be disclosed to the opposing party 21 days before trial. “The
purpose of Crim.R. 16(K) is to avoid unfair surprise by providing 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 the
Delaware County, Case No. 19 CAA 08 0048 8
opinion after carefully reviewing the written report.” (Internal 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 disclose the written report to
opposing counsel shall preclude the expert's testimony at trial.”
{¶ 30} Before the 2010 amendments to the rule, discretion was granted 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 permit the discovery or
inspection, grant a continuance, or prohibit the party from introducing in evidence the
material not disclosed, or it may make such other order as it deems just under the
circumstances.”
{¶ 31} Under amendments to the rule, the trial court still maintains some discretion
to sanction discovery violations, which is recognized under Crim.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 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 or with an order issued pursuant to this rule, the court
may order such party to permit the discovery or inspection, grant a
continuance, or prohibit the party from introducing in evidence the
material not disclosed, or it may make such other order as it deems
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 relied upon the
language of Crim.R. 16(L)(1) to find that even following amendments to Crim.R. 16, the
trial court maintained broad discretion to regulate the admission 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 reasoning and found Crim.R.
16(K) limited the trial court's discretion in regard to the report 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 required:
“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 trial 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 modifying 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 supplemental report within the time
constraints of Crim.R. 16(K).The supplemental report included the coroner's time-of-
death 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. Defense counsel met with
the coroner 19 days before trial, discovered this information and then suggested the state
needed to supply the defense the supplement to the coroner's report. 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 requires a
harmless error analysis. Crim.R. 52(A) defines harmless error in the context of criminal
cases and provides: “Any error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded.” A harmless-error inquiry requires the state to
prove the error did not affect the substantial rights of the defendant. 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 prejudiced
by the error, i.e., whether the error had an impact on the verdict.
[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 remaining
Delaware 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-Ohio-
166, 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 was
prejudiced by the admission of this evidence. The time-of-death
opinion was not essential to the state's prosecution of the charged
crimes. * * * The deputy coroner's time-of-death opinion merely
corroborated the precise time frame that Boaston's own statement
and relevant cell-phone records already established. Likewise, Dr.
Scala-Barnett's glove-buckle testimony did little more than connect
dots that were all too readily apparent. Thus, we do not find that
Boaston was truly prejudiced by the admission of this evidence.
{¶ 38} Boaston, ¶ 64.
{¶ 39} The court further found, that even without the information contained in the
supplemental report, "[T]he remaining evidence adduced by the state 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 MATTER
Delaware 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 state's case, here the state
failed to disclose any report at all on a matter absolutely central 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 curriculum 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 before trial. Even so, the state
argues appellant suffered no prejudice because counsel for appellant 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 and curriculum vitae
in discovery (defendant's exhibit 3), no mention was made in these 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 appellant 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 exhibit 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 an 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 forensic evidence, and no testimony
from anyone who may have seen or heard anything of the events alleged to have taken
place 10 years before N.S. disclosed. There was no testimony from 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 state'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 away 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 above, the case
rests entirely on the testimony of N.S. and her forensic interview. 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 was not timely provided
and the case otherwise rests solely upon the testimony of the victim, other courts have
found failure to comply with Crim.R. 16(K) warrants reversal. See, 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 here. The first
assignment of error is sustained.
II, III, IV
{¶ 47} Given our resolution of the first assignment of error, Bellamy's remaining
assignments of error are moot.
{¶ 48} The judgment of the Delaware County Court of Common Pleas is vacated.
This matter is remanded to the trial court for a new trial without the testimony of Dr.
Bassman.
{¶ 49} The judgment of the Delaware County Court of Common Pleas is vacated,
and the matter is remanded for proceedings consistent with this opinion.
By Wise, Earle, J.
Gwin, P.J. and
Baldwin, J. concur.
EEW/rw