State v. Speis , 2023 Ohio 1422 ( 2023 )

[Cite as State v. Speis, 2023-Ohio-1422.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2022-07-032
: OPINION
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:
ERIC J. SPEIS, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2020 CR 01043
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas Horton, Assistant
Prosecuting Attorney, for appellee.
Samuel H. Shamansky Co., L.P.A., and Samuel H. Shamansky and David J. Betras, for
appellant.
HENDRICKSON, J.
{¶1} Appellant, Eric Speis, appeals from his conviction in the Clermont County
Court of Common Pleas after a jury found him guilty of seven counts of gross sexual
imposition. For the reasons outlined below, we affirm his convictions.
I. Facts and Procedural History
{¶2} In December 2020, Speis was indicted on seven counts of gross sexual
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imposition under R.C. 2907.05(A)(4), all third-degree felonies. The charges stemmed from
allegations that Speis had sexually abused M.R., the eight-year-old daughter of his
girlfriend, over an eight-month period. At the time, Speis was living with his girlfriend, M.R.
and M.R.'s maternal grandmother in the girlfriend's home. In May of 2020, the girlfriend
observed Speis sitting in a recliner with M.R. on his lap. When M.R. saw her mother, she
jumped off Speis's lap and ran to the couch. Later, M.R. revealed that she and Speis had
been kissing when her mother saw them. The girlfriend had Speis run an errand with her
so she could confront him about the incident. When she did, Speis remained silent and did
not respond.
{¶3} When they returned to the home, the girlfriend and grandmother gathered
Speis and M.R. into the living room so that they could address Speis about the allegations
M.R. had made. Initially, Speis acted like he didn't know what they were talking about but
later admitted to "innocuous touching" and claimed he was trying to teach M.R. so that boys
would not take advantage of her.
{¶4} At this point, the girlfriend became irate and started yelling at Speis and told
him to leave. She then went outside and started throwing around patio furniture that was
on the back deck. This caused the neighbors to call the police. When the girlfriend went
back inside the home, she found Speis with a gun to his head threatening to kill himself.
Fortunately, the girlfriend and grandmother were successful in persuading him not to go
through with it.
{¶5} Sometime later, two police officers arrived at the scene. M.R. told them that
Speis had made her touch his penis. The police then found Spies packing up his belongings
and he advised them that he had been kicked out of the house by his girlfriend. Spies
appeared calm and questioned why they were there. The police asked him to make a
statement, but he declined and left.
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{¶6} M.R. was taken to Cincinnati Children's Hospital where she revealed that
Speis had engaged in a variety of sexual acts with her. She also reported that Speis had
told her not to tell anybody. A physical examination disclosed an abrasion in her vagina.
{¶7} In April 2022, the case was tried to a jury. During opening statements, the
prosecutor told the jury:
We'll hear that Officers Taylor and Rees responded to that call
[from the neighbor] about the disturbance and encountered
[M.R.'s mother] and [grandmother]. We'll hear that by the time
that they arrived the Defendant was already packing up his
belongings. He had been kicked out of the house by [Mother].
But at first he acted like he had no idea what was going on when
they got there. We'll hear that [Mother] and [Grandmother] told
the officers what had happened. They approached the
Defendant to make a statement but he declined.
(Emphasis added.) When the prosecutor finished, the trial court sua sponte questioned
whether Speis's Fifth Amendment privilege against self-incrimination had been impinged
upon by the prosecutor's comment about Speis's silence. Speis then moved for a mistrial.
The court denied the motion and instead gave the jury a limiting instruction.
{¶8} The trial proceeded with the testimony of several witnesses. M.R. testified
about the sexual conduct that occurred. Her mother testified about her discovery of the
abuse. The two officers mentioned above in opening statements testified that when they
arrived Speis was packing up his car and that he soon left. One officer testified that Speis
was not arrested that day, was not handcuffed, and that he was free to leave pending further
investigation. Speis did not take the stand at trial.
{¶9} Also testifying was Cecelia Freihofer, a social worker and a forensic
interviewer at the Mayerson Center at Cincinnati Children's Hospital, where M.R.'s mother
had taken her after discovering the sexual abuse. Freihofer conducted a forensic interview
with M.R. While she conducted the interview, Freihofer had Mother complete a Traumatic
Symptoms Checklist for Young Children (TSCYC). Freihofer explained that the TSCYC
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was a screening tool that listed several behaviors potentially indicative of mental stress and
asked the parent to identify the behaviors the parent has noticed and their frequency. After
the interview, she reviewed the TSCYC with Mother. Based on Mother's responses, the
TSCYC was positive for trauma symptoms and sexual concerns. Freihofer found that what
M.R. told her during the interview was consistent with inappropriate sexual contact and
indicated abuse. Freihofer recommended that Mother seek mental health treatment for
M.R. Freihofer summarized her findings in a written "Report of Suspected Child Abuse" for
the Mayerson Center, which was admitted into evidence.
{¶10} Freihofer testified about her extensive training and experience and explained
how forensic interviews at the Mayerson Center were conducted. She recounted what M.R.
told her about the abuse and found that it was consistent with inappropriate sexual contact
and indicated abuse. Concerning the TSCYC, Freihofer testified that it was not a diagnostic
tool and was not made part of M.R.'s medical record. Rather, it was simply a screening tool
that could indicate if further mental health treatment would be beneficial. Freihofer said that
the TSCYC was only one piece of information that she used in her recommendations for
follow-up care. She was clear that she did not diagnose M.R. as being traumatized, nor did
she use the TSCYC to conclude that M.R. was definitively positive for trauma symptoms
and sexual concerns. Freihofer noted that there have been many occasions where the
TSCYC was negative for trauma symptoms and sexual concerns and that she still
recommended follow-up mental health treatment. In this case, said Freihofer, based on her
interview with M.R., she would have made the same recommendation for follow-up mental
health treatment regardless of what the TSCYC showed.
{¶11} The jury found Speis guilty on all counts. The trial court sentenced him to a
total of 20 years in prison and designated him as a Tier II sex offender.
{¶12} Speis now appeals his conviction raising two assignments of error.
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II. Analysis
{¶13} Speis first challenges the denial of his motion for a mistrial and then, secondly,
challenges the admission of Freihofer's testimony.
A. The denial of Speis's motion for a mistrial
{¶14} The first assignment of error alleges:
{¶15} THE TRIAL COURT ERRED BY FAILING TO GRANT A MISTRIAL AFTER
THE PROSECUTOR, DURING OPENING STATEMENT AND WITHOUT ANY
REASONABLE JUSTIFICATION, COMMENTED UPON APPELLANT'S INVOCATION OF
HIS CONSTITUTIONAL RIGHTS TO COUNSEL AND AGAINST SELF-INCRIMINATION.
{¶16} The Fifth Amendment states that "[n]o person * * * shall be compelled in any
criminal case to be a witness against himself." Fifth Amendment to the U.S. Constitution.
Speis contends that the prosecutor's comment in opening statements on his pre-arrest
silence improperly impinged on his Fifth Amendment privilege against self-incrimination.
The state agrees that the comment was improper but argues that it was harmless. We
disagree that the comment was improper.
{¶17} Our conclusion is based on Salinas v. Texas, 570 U.S. 178, 133 S.Ct. 2174
(2013), in which a plurality of the U.S. Supreme Court held that the use of a defendant's
pre-arrest, pre-Miranda silence as substantive evidence of guilt does not violate the Fifth
Amendment privilege against self-incrimination if the defendant fails to expressly invoke the
privilege. In Salinas, the defendant agreed to accompany the police to the station for
questioning. There was no dispute that the interview was noncustodial and that the
defendant was not read Miranda warnings. The Court described what happened during the
interview:
For most of the interview, petitioner answered the officer's
questions. But when asked whether his shotgun "would match
the shells recovered at the scene of the murder," * * * petitioner
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declined to answer. Instead, petitioner "[l]ooked down at the
floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in
his lap, [and] began to tighten up." * * * After a few moments of
silence, the officer asked additional questions, which petitioner
answered.
Salinas at 182. The defendant did not testify at trial. Over the defendant's objection, the
prosecutor used the defendant's reaction to the officer's question during the interview as
substantive evidence of guilt. The Court held that the defendant's silence could be used as
evidence against him because he did not clearly and unambiguously invoke his Fifth
Amendment right to remain silent. Therefore, the defendant's Fifth Amendment claim failed
"because he did not expressly invoke the privilege against self-incrimination in response to
the officer's question." Id. at 181.
{¶18} The Court explained that the Fifth Amendment has an "express invocation
requirement." Id. at 183. The "general rule" is that "a witness must assert the privilege to
subsequently benefit from it." Id. at 186. Silence is not sufficient to invoke the privilege.
The express invocation requirement is subject to only two exceptions. Id. at 183. The first
is that a defendant need not take the stand at trial and assert the privilege. Id. at 184. And
the second is when the circumstances of the questioning are coercive (e.g., custodial
interrogation). Id. at 185. The "critical question," said the Court, is "whether, under the
'circumstances' of this case, [the defendant] was deprived of the ability to voluntarily invoke
the Fifth Amendment." Id. at 186. "So long as police do not deprive a witness of the ability
to voluntarily invoke the privilege, there is no Fifth Amendment violation." Id. at 191. The
Court pointedly stated that "the Fifth Amendment guarantees that no one may be 'compelled
in any criminal case to be a witness against himself'; it does not establish an unqualified
'right to remain silent.'" Id. at 189.
{¶19} The coercion exception did not apply to the defendant in Salinas because it
was undisputed that his interview with police was voluntary. He agreed to accompany the
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officers to the station and was free to leave at any time. Because the defendant did not
expressly invoke his Fifth Amendment privilege, there was no violation. See Abby v. Howe,
742 F.3d 221, 228 (6th Cir.2014) (acknowledging that Salinas "held that prosecutors may
use a defendant's pre-arrest silence as substantive evidence of his guilt if the defendant did
not expressly invoke his right to remain silent"); State v. Horwitz, 191 So.3d 429, 440
(Fla.2016) (stating that Salinas permits pre-arrest silence to be used as substantive
evidence of a defendant's guilt).
{¶20} Here, the state relied upon an earlier Ohio Supreme Court decision, State v.
Leach, 102 Ohio St.3d 135, 2004-Ohio-2147. In that case, the state presented testimony
from a police officer that the defendant had left him a message saying that he wanted to
speak with an attorney before talking to the police. The prosecutor referred to the
defendant's pre-arrest silence during opening arguments as well. The defendant did not
testify at trial. The state argued that this evidence was admissible as substantive evidence
of guilt.
{¶21} The question before the Leach Court was whether the Fifth Amendment was
violated with the admission of testimony that a defendant, who had not yet been arrested
or Mirandized, remained silent and/or asserted his right to counsel in the face of questioning
by law enforcement. The Court noted that whether the admission of such evidence violates
the Fifth Amendment was a question that the U.S. Supreme Court has not answered. The
Supreme Court "has not yet addressed the issue of whether a defendant's pre-arrest, pre-
Miranda silence may be used as substantive evidence of guilt in the state's case-in-chief."
(Emphasis sic.) Id. at ¶ 20.
{¶22} Using a two-pronged Fifth Amendment analysis, the Court concluded that the
substantive use of the defendant's pre-arrest, pre-Miranda silence subverts the policies
behind the Fifth Amendment privilege against self-incrimination and is not a legitimate
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governmental practice." Id. at ¶ 37. Thus the Ohio Supreme Court held that the "use of a
defendant's pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment
privilege against self-incrimination." Id. at ¶ 38.
{¶23} Leach, though, is factually distinguishable from the case before us and from
Salinas. The silence of the Leach defendant came after a reference to his right to counsel.
But Speis was completely silent, as was the Salinas defendant. Thus, Leach applies in the
case of a defendant not yet been arrested or Mirandized who asserted his right to counsel
in the face of questioning by law enforcement. But Salinas applies in a case, like the present
one, where, in the face of questioning, a defendant remained completely silent.
{¶24} Here, as the prosecutor said in opening statements, officers approached
Speis to see if he wanted to make a statement, but he declined. There is no evidence even
suggesting that Speis invoked his Fifth Amendment privilege against self-incrimination at
that time. As Salinas taught, Speis's silence was not sufficient. Moreover, the
circumstances of the police officers' question were not coercive. Speis was not deprived of
the ability to voluntarily invoke the Fifth Amendment, as there is no allegation or evidence
that his failure to assert the privilege was involuntary. The state could have used Speis's
silence as substantive evidence of his guilt without a Fifth Amendment problem. Therefore,
by merely referring to his silence during opening statements, the prosecutor did not
improperly impinge Speis's Fifth Amendment privilege against self-incrimination.
{¶25} The first assignment of error is overruled.
B. Freihofer's testimony
{¶26} The second assignment of error alleges:
{¶27} THE TRIAL COURT ERRED BY ALLOWING THE STATE TO ELICIT
EXPERT TESTIMONY FROM CECILIA FREIHOFER DESPITE THE ABSENCE OF AN
EXPERT REPORT AND DEMONSTRABLE NON-COMPLIANCE WITH OHIO CRIM.R.
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16(K).
{¶28} Speis argues that the state failed to provide him with a copy of the TSCYC,
on which Freihofer's assessment was based in part, which he says was a violation of the
discovery rule in Crim.R. 16(K). Speis contends that the failure to provide the TSCYC
rendered it impossible for him to meaningfully confront Freihofer or her opinions, so the
testimony should have been excluded.
{¶29} Crim.R. 16(K) provides that any expert witness must "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" and that the report must be timely
disclosed to the opposing party. "Failure to disclose the written report to opposing counsel
shall preclude the expert's testimony at trial." Crim.R. 16(K).
{¶30} The trial court permitted Freihofer to testify as a lay witness. Evid.R. 701
governs opinion testimony by lay witnesses and provides that such testimony "is limited to
those opinions or inferences which are (1) rationally based on the perception of the witness
and (2) helpful to a clear understanding of the witness' testimony or the determination of a
fact in issue." "A trial court has considerable discretion in admitting the opinion testimony
of lay witnesses." (Citation omitted.) State v. Marshall, 191 Ohio App.3d 444, 2010-Ohio-
5160, ¶ 43 (2d Dist.).
{¶31} The Ohio Supreme Court has said that lay opinions may be based on the
witness's training and experience:
[C]ourts have permitted lay witnesses to express their opinions
in areas in which it would ordinarily be expected that an expert
must be qualified under Evid.R. 702. * * * Although these cases
are of a technical nature in that they allow lay opinion testimony
on a subject outside the realm of common knowledge, they still
fall within the ambit of the rule's requirement that a lay witness's
opinion be rationally based on firsthand observations and
helpful in determining a fact in issue. These cases are not
based on specialized knowledge within the scope of Evid.R.
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702, but rather are based upon a layperson's personal
knowledge and experience.
State v. McKee, 91 Ohio St.3d 292, 296-297 (2001). Thus, for example, "[i]t is well-settled
that a police officer may testify concerning matters that are within his experience and
observations that may aid the trier of fact in understanding the other testimony pursuant to
Evid.R. 701." State v. Tatum, 10th Dist. Franklin No. 10AP-626, 2011-Ohio-907, ¶ 17. See
also State v. Bowling, 12th Dist. Butler No. CA2013-08-159, 2014-Ohio-1690, ¶ 14 (officer's
training and experience permitted him to testify as to what chemicals are used to
manufacture methamphetamine). Also, relevant here, "[s]ocial workers are permitted to
testify to their disposition in an alleged sexual abuse case." State v. Schentur, 8th Dist.
Cuyahoga No. 108448, 2020-Ohio-1603, ¶ 48. But the social worker may not testify as to
the veracity of the victim or whether the crime occurred. Id. at ¶ 50.
{¶32} Here, Freihofer testified that what M.R. told her during the interview was
"consistent with sexual contact and concerning for sexual abuse" and that the TSCYC was
"positive for trauma symptoms and sexual concerns." Based on this information, Freihofer
recommended mental health services. She did not testify that sexual contact in fact
occurred but merely that the sexual contact as described by eight-year-old M.R. was
inappropriate and suggested abuse.
{¶33} We find that this testimony was well within Freihofer's personal knowledge
and experience. Freihofer was a social worker and a forensic interviewer at the Mayerson
Center, where she had worked for over 15 years. She testified that she has had ongoing
training in forensic interviewing and has conducted well over 3,500 forensic interviews.
Freihofer's testimony was rationally based on her training and personal experience in child-
abuse cases and aided the trier of fact in determining M.R.'s credibility. The trial court
reasonably admitted her testimony as lay opinion under Evid.R. 701. Therefore, Crim.R.
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16(K) did not apply.
{¶34} Even if Freihofer were an expert witness, she prepared a written report that
was disclosed to Speis. Her "Report of Suspected Child Abuse" (State's Exhibit 2)
summarizes her "testimony, findings, analysis, conclusions, or opinion" as required by
Crim.R. 16(K). It is true that the report does not include "a summary of the expert's
qualifications." Crim.R. 16(K). But Speis fails to show that this was a willful violation of the
rule, that knowing Freihofer's qualifications would have benefited him in the preparation of
his defense, or that he suffered prejudice. See State v. Joseph, 73 Ohio St.3d 450, 458
(1995) ("Prosecutorial violations of Crim.R. 16 are reversible only when there is a showing
that (1) the prosecution's failure to disclose was a willful violation of the rule, (2)
foreknowledge of the information would have benefited the accused in the preparation of
his defense, and (3) the accused suffered some prejudicial effect").
{¶35} Lastly, regarding Speis's claim that the TSCYC was not disclosed to him,
Crim.R. 16(K) does not require that an expert report include the documentary basis for the
expert's "testimony, findings, analysis, conclusions, or opinion." Indeed, we have
questioned whether Crim.R. 16 requires a TSCYC to be disclosed at all. State v. Robinson,
12th Dist. Clermont No. CA2015-01-013, 2015-Ohio-4533, ¶ 23, fn. 1 (12th Dist.) ("Without
providing any opinion on the matter, we question whether a TSCYC assessment is required
to be disclosed pursuant to Crim.R. 16(B)(3), (B)(4) and (E)(1) as the trial court found. As
the state indicated at trial, a TSCYC assessment is not kept as part of the child's medical
records and is not used as a diagnostic tool of any kind").
{¶36} Accordingly, we find the trial court did not abuse its discretion by admitting
Freihofer's testimony. The second assignment of error is overruled.
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III. Conclusion
{¶37} Having overruled both the assignments of error presented, we the affirm trial
court's judgment.
S. POWELL, P.J., and M. POWELL, J., concur.
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