State v. Mounts , 2023 Ohio 3861 ( 2023 )

[Cite as State v. Mounts, 2023-Ohio-3861.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210608
TRIAL NO. B-1801231
Plaintiff-Appellee, :
O P I N I O N.
vs. :
JOSHUA MOUNTS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 25, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Paul Croushore, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} Defendant-appellant Joshua Mounts appeals from his conviction for
felony murder in violation of R.C. 2903.02(B) in connection with the death of his
seven-month-old son J.F. In four assignments of error, Mounts argues his conviction
was against the manifest weight of the evidence, that the trial court erred in
prohibiting his expert witnesses from testifying outside the scope of their expert
reports while allowing the state’s expert witnesses to do the same, that the state
improperly presented a lay witness as an expert witness and allowed him to testify to
evidence of Mounts’s guilt, and that the prosecutor’s comments during rebuttal
argument amounted to prosecutorial misconduct. In his brief, Mounts pointed out on
a number of occasions that he does not challenge whether he received constitutionally
effective representation at his trial, expressly reserving that issue for another day.
{¶2} In reviewing the limited assignments of error Mounts raises on appeal,
we hold that Mounts has not demonstrated that the jury lost its way and created a
manifest miscarriage of justice. We further hold that Mounts waived any claim of error
regarding the scope of expert testimony and that the state did not improperly present
a lay witness as an expert witness. Lastly, we hold that, in most instances, Mounts
waived all but plain error by failing to object to the prosecutor’s comments during
rebuttal argument and that under the plain-error doctrine, these comments did not
amount to prosecutorial misconduct. In the one instance in which Mounts preserved
an objection, we hold that the prosecutor’s comments in closing argument were not
improper. Accordingly, we overrule each of Mounts’s assignments of error and affirm
the judgment of the trial court.
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OHIO FIRST DISTRICT COURT OF APPEALS
Factual and Procedural Background
{¶3} On the early afternoon of January 25, 2018, Emergency Medical
Services (“EMS”) responded to a 911 call for J.F., who was found unresponsive after
spending the night alone with Mounts. J.F. was admitted to Cincinnati Children’s
Hospital, where he was treated for a skull fracture. Because J.F.’s mother, Kayla
Fitzugh, was told by J.F.’s care team that J.F. had no chance of recovery due to severe
brain damage, she made the decision to take J.F. off of life support.
{¶4} The state subsequently charged Mounts with one count of aggravated
murder in violation of R.C. 2903.01(C) and one count of felony murder in violation of
R.C. 2903.02(B) in connection with the death of J.F.
{¶5} At trial, Kayla testified that she was the primary caretaker of J.F. and
lived with her grandparents, while Mounts resided with his parents and visited J.F.
weekly. Kayla testified that she had previously used unprescribed drugs, but had
stopped using a week after she learned that she was pregnant with J.F. Kayla further
testified that J.F. was born prematurely and had experienced at least one “Brief
Unresolved Event” (“BRUE episode”), which had caused J.F. to stop breathing. She
testified that J.F. had not had such an episode for months prior to becoming
unresponsive in Mounts’s care.
{¶6} She also testified that J.F. had been to the hospital six months prior to
his death for two instances of a cold. Kayla testified that J.F. was a happy baby who
had just started talking, had no recent change in temperament, and had never been
dropped. She testified that J.F.’s usual routine included waking up between 8:00 and
9:00 a.m. and that he rarely slept past that time. She also testified that J.F. slept on
his back and in his own crib.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} Kayla testified that the day before J.F. was found unresponsive, she and
J.F. had spent the day with Mounts. She also testified that she saw Mounts purchase
drugs that day. She did not notice anything unusual in J.F.’s behavior before she left
him in Mounts’s care. After realizing that she had an appointment scheduled for the
following morning, she decided to leave J.F. in Mounts’s care overnight. She testified
that she departed the Mounts residence at approximately 11:00 p.m. that evening.
{¶8} Kayla testified that before her appointment the following morning, she
received a text message from Theresa Mounts, Mounts’s mother, stating, “911
emergency. Call me.” Per Kayla’s testimony, EMS informed her that they were present
at the Mounts’s residence and that J.F. was not breathing. She testified that she was
told to go to Cincinnati Children’s Hospital immediately, but when she arrived,
Mounts was not there. As Kayla recounted, Mounts told her that he had begged EMS
for a ride to the hospital but was refused assistance, because he did not have custody.
{¶9} Kalya testified that J.F. was taken to the Pediatric Intensive Care Unit
and was treated for a fracture. She stated that Mounts denied that J.F. had fallen out
of the bed when she asked. She testified that although Mounts appeared visibly upset
when she saw him in the parking lot of the hospital, Mounts never came inside the
hospital to see J.F.
{¶10} Officer Darian Bookman, a retired officer with the Sharonville Police
Department, was a first responder at Mounts’s residence. At trial, Bookman testified
that when he arrived on the scene and asked Mounts what happened, Mounts told him
that J.F. had slept through the night and woken up crying around 11:00 a.m. He
further testified that Mounts told him that after getting up to make J.F. a bottle, he
came back to find J.F. unresponsive. Bookman recounted his observations of
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OHIO FIRST DISTRICT COURT OF APPEALS
Mounts’s bedroom, noting that the bottle Mounts referenced was still warm when he
picked it up, that the bed had been pushed against a wall presumably to prevent J.F.
from rolling off, and that he noticed a device commonly used for smoking marijuana.
{¶11} Benjamin Casteel, a clerk for the city of Sharonville and former
firefighter and paramedic for the Springfield Township Fire Department, was also
present at the scene. At trial, Casteel testified that at the time he arrived, J.F. was
already being carried inside an ambulance. Casteel testified that Mounts was unsure
of J.F.’s date of birth and medical history. Casteel also recalled that he found it
unusual that Mounts was rather distant in discussing J.F.’s condition. He further
testified that Mounts refused his offer to take a ride with EMS to the hospital.
{¶12} Dr. Kathi Makoroff, a doctor at Cincinnati Children’s Hospital and an
expert in child-abuse pediatrics, also testified at trial. She testified that J.F. had a skull
fracture on the right parietal bone and subdural bleed on the left side of his head. She
further testified that for a child of J.F.’s age, a fracture like this would not have
happened spontaneously, and this was an indication of some kind of trauma.
{¶13} Dr. Dorothy Dean, a forensic pathologist at the Hamilton County
Coroner’s Office, performed J.F.’s autopsy. At trial, Dr. Dean testified that she found
bruising on J.F.’s back that could have been caused by shaking, as the marks were
consistent with fingerprints. She also testified that there was fresh blood near the
fracture site and that there was no evidence of healing, which indicated that this was
a very recent injury. Dr. Dean did not believe the BRUE episodes had anything to do
with J.F.’s cause of death. Rather, she testified that J.F. had likely died from traumatic
brain injury with a skull fracture due to blunt impacts to his head.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} Dr. Dean further testified that J.F.’s skull fell apart in her hands when
she made cuts, which indicated that the bone had not yet formed the fibrous tissue
that cells generate when healing a new fracture. She testified that when looking at the
fracture microscopically, she saw a fresh fracture and did not see any evidence of
healing. She also testified that she provided Mounts’s expert witnesses with recuts of
histology slides from J.F.’s autopsy, but that these experts could have come into the
office to view the original slides in person. And she testified that if there had been any
substantial difference between the original and recut slides, she would have informed
Mounts’s expert witnesses.
{¶15} Detective Brad Hondorf, a police officer for the city of Sharonville and
the lead detective in the investigation surrounding J.F.’s death, also testified at trial.
He testified that Officer Bookman gave him a report from Cincinnati Children’s
Hospital which noted suspected abuse in J.F.’s case. He also testified that he
interviewed Mounts over the phone and Mounts told him that J.F. was not acting
abnormally before he became unresponsive. But on cross-examination, Hondorf
admitted that Mounts had told him that J.F. had a deer-in-headlight stare when he
looked at light, but Hondorf did not relay this information to Dr. Dean during the
course of his investigation. Hondorf further testified that he obtained a search warrant
and subpoena for Kayla’s and Mounts’s Facebook messages, and in these messages,
Mounts had relayed to Kayla that he was refused a ride to the hospital, because he did
not have custody of J.F.
{¶16} At the close of the state’s case, Mounts moved for an acquittal under
Crim.R. 29. The trial court denied Mounts’s motion.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} Dr. Andrea Wiens, Dr. Satish Chundru, and Dr. Andrew Guajardo
testified as expert witnesses for Mounts. They were all in agreement that the blood
near the fracture site they identified was not fresh and that there was evidence of
healing, which indicated that J.F.’s injuries were not recent. Dr. Wiens also testified
that with repeated BRUE episodes, there was a greater likelihood that there was an
underlying etiology for J.F.’s condition that had not yet been found.
{¶18} Returning from a break in her testimony, Dr. Wiens attempted to testify
as to the original histology slides that were not included in her expert report, but the
state objected to her testifying to information outside of her expert report. During a
sidebar to discuss the state’s objection, Mounts’s counsel agreed to move on from this
line of questioning. After defense counsel essentially abandoned the attempt to have
Dr. Wiens testify about the original histology slides, the trial court sustained the state’s
objection.
{¶19} Dr. Chundru testified that Dr. Dean may have mislabeled some slides
and that he was shocked by her diagnosis of J.F. Dr. Guajardo testified that J.F.’s
injuries were a minimum of three weeks or older.
{¶20} Theresa Mounts testified as a witness for Mounts. She testified that she
noticed J.F. was not making eye contact with her on the date of the incident and that
he had a blank stare. On cross-examination, Theresa testified that she did not relay
this information to either the police officers investigating J.F.’s death or the physicians
that were treating him. Mounts did not testify.
{¶21} On rebuttal, the state played the deposition of Dr. Rebecca Folkerth. Dr.
Karen Looman, Chief Deputy Coroner at the Hamilton County Coroner’s Office, also
testified on rebuttal. She testified that she agreed with Dr. Dean’s findings. And Dr.
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OHIO FIRST DISTRICT COURT OF APPEALS
Dean testified again on rebuttal, emphasizing that she was still confident in her
findings.
{¶22} The jury found Mounts guilty of felony murder but acquitted Mounts of
aggravated murder. Mounts filed a motion for a new trial and an acquittal, which the
trial court denied. Mounts was sentenced to an aggregate sentence of 15 years to life
imprisonment. He now appeals.
Manifest Weight
{¶23} When reviewing a challenge to the manifest weight of the evidence,1 we
sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 388, 678 N.E.2d
541 (1997). Unlike our review of a sufficiency challenge, review of a manifest-weight
challenge requires us to independently “review the entire record, weigh the evidence,
consider the credibility of the witnesses, and determine whether the trier of fact clearly
lost its way and created a manifest miscarriage of justice.” State v. Powell, 1st Dist.
Hamilton No. C-190508, 2020-Ohio-4283, ¶ 16, citing Thompkins at 397. “A
manifest-weight argument * * * challenges the believability of the evidence.” State v.
Carter, 1st Dist. Hamilton No. C-220041, 2023-Ohio-18, ¶ 12.
{¶24} However, we will reverse the trial court’s decision to convict and grant
a new trial only in “ ‘exceptional cases in which the evidence weighs heavily against the
conviction.’ ” State v. Sipple, 1st Dist. Hamilton No. C-190462, 2021-Ohio-1319, ¶ 7.
“This is because the weight to be given [to] the evidence and the credibility of the
1 Though Mounts also includes the standard of review for a sufficiency challenge, he does not
develop this argument. Pursuant to App.R. 16(A)(7), “an appellant must provide an argument and
the reasons in support of the contentions, with citations to the authorities, statutes, and parts of
the record on which the appellant relies.” (Internal quotation marks omitted.) State v. Covington,
1st Dist. Hamilton No. C-190731, 2021-Ohio-2907, ¶ 25. Accordingly, we do not consider Mounts’s
sufficiency challenge here.
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OHIO FIRST DISTRICT COURT OF APPEALS
witnesses are primarily for the trier of the facts.” (Internal quotation marks omitted.)
Carter at ¶ 13.
{¶25} In his first assignment of error, Mounts argues the state’s case was
conjectural or unsupported by the evidence. He further asserts that the only evidence
supporting the argument that he struck J.F. was that J.F. had a skull fracture and
marks on his head. But the evidence supporting Mounts’s conviction was not as
limited as he suggests.
{¶26} Each of the state’s expert witnesses testified that there was fresh blood
near the fracture site and no evidence of healing, indicating that J.F.’s injuries were
recent. In particular, Dr. Makoroff testified that on the day that J.F. was brought to
Cincinnati Children’s Hospital, she was asked to evaluate him. She further testified
that she specialized in child-abuse pediatrics and that she believed J.F.’s injuries were
caused by some kind of trauma. Though Mounts’s expert witnesses testified to the
contrary, the jury was free to give less weight to their testimony and more weight to
the testimony of physicians who had physically evaluated J.F., including Dr. Makoroff
and Dr. Dean. “Because the trier of fact sees and hears the witnesses at trial, we must
defer to the factfinder’s decisions whether, and to what extent, to credit the testimony
of particular witnesses.” State v. Johnson, 1st Dist. Hamilton No. C-170354, 2019-
Ohio-3877, ¶ 52.
{¶27} Additionally, Kayla testified that J.F. had never been dropped before
and that he was behaving normally before she left him with Mounts. Theresa testified
that on the day Kayla left J.F. with Mounts, she observed that J.F. had a blank stare
and would not make eye contact with her. But on cross-examination, Theresa testified
that she did not note these oddities in J.F.’s behavior when speaking with the police or
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OHIO FIRST DISTRICT COURT OF APPEALS
J.F.’s physicians. Moreover, Theresa testified on cross-examination that she did not
see J.F. often.
{¶28} Kayla also testified that she saw Mounts purchase drugs the day before
J.F. died and that he was the sole caregiver present when J.F. stopped breathing.
Further, Casteel testified that Mounts refused his offer for a ride when J.F. was taken
to the hospital.
{¶29} All of this evidence, taken together, may have undercut Mounts’s theory
of the case in the eyes of the jury. Moreover, even reviewing the evidence in the best
light for Mounts, there were competing experts on both sides and lay-witness
testimony supporting the state’s version of events. We therefore cannot say that the
evidence points overwhelmingly against conviction. On this record, Mounts has
therefore not demonstrated that the jury lost its way and created a manifest
miscarriage of justice. Mounts’s first assignment of error is accordingly overruled.
Scope of Expert Testimony
{¶30} Crim.R. 16(K) requires that “expert witnesses generate written reports
and that those reports be disclosed to the opposing party no later than 21 days before
trial.” State v. Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153 N.E.3d 44, ¶ 46. In
this way, Crim.R. 16(K) “avoid[s] unfair surprise by providing notice to the defense
and allowing the defense an opportunity to challenge the expert’s findings, analysis,
or qualifications.” (Internal quotation marks omitted.) Id. at ¶ 48. Further, we have
held that “Crim.R. 16(K) removes the trial court’s discretion and requires the exclusion
of expert testimony when a written report has not been disclosed in accordance with
the rule.” Id. at ¶ 52, citing State v. Hall, 1st Dist. Hamilton Nos. C-170699 and C-
170700, 2019-Ohio-2985, ¶ 20.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶31} Here, Mounts asserts that the trial court erred in prohibiting Dr. Wiens
from testifying to information outside the scope of her expert report. At trial, the state
objected to Dr. Wiens testifying to an original histology slide she had not seen prior to
the trial and failed to include in her report. The state asserted that Dr. Wiens was
provided with a recut slide and that she did not request to see the original slide when
she had the opportunity, and it attempted to prohibit her testimony on this basis.
When the trial court inquired as to the purpose of Dr. Wiens testifying to the original
slide, Mounts’s counsel provided contradictory reasoning. Initially, he asserted that
the recut slides had “some differences” from the original slides. Later, he asserted:
This testimony answers that question about how [Mounts’s expert
witnesses] have an opinion of two sides of a healing fracture. They are
looking at the same thing, that’s my point, and nothing that they’re
talking about here is anything new. It comes down to the critical issue
of what these three experts were looking at. They are going to testify
they are looking at the fracture.
(Emphasis added.)
{¶32} Then, when the trial court inquired as to the difference between the
slides, Mounts’s counsel replied, “at the fracture site, her testimony is there’s a slight
ridge that contains – and I could be misquoting this – it’s going to have bone formation
as well as healing blood within it. That is never mentioned in Dr. Dean’s report
because it’s a different slide.”
{¶33} Before the trial court could make a ruling as to the objection, it offered
Mounts the opportunity to submit an amended expert report for Dr. Wiens. But
Mounts’s counsel stated he could “move off of this particular slide.” And when the
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OHIO FIRST DISTRICT COURT OF APPEALS
trial court sustained the objection to the extent that Dr. Wiens would testify to new
information outside of her report, Mounts’s counsel again stated he would “move on.”
{¶34} As an initial matter, it is not entirely clear whether Mounts was trying
to elicit testimony that these slides were substantially the same or different. But even
if it was clear, Mounts failed to preserve this alleged error for appellate review by
acquiescing to the state’s objection to Dr. Wiens’s testimony. See, e.g., State v.
Phillips, 4th Dist. Pickaway Nos. 89-CA-32 and 89-CA-33, 1992 Ohio App. LEXIS
1016, 24 (Mar. 5, 1992); State v. Gentry, 10th Dist. Franklin No. 83AP-384, 1984 Ohio
App. LEXIS 8718, 3 (Feb. 16, 1984). Not only did Mounts ignore the trial court’s offer
to submit an amended expert report for Dr. Wiens, but he also agreed not to elicit
testimony from Dr. Wiens as to the original slide before the trial court ruled on the
state’s objection. Accordingly, Mounts has waived any claim of error here, and his
second assignment of error is overruled.
{¶35} In presenting this assignment of error, Mounts also points to comments
by the state in its rebuttal closing in which the state suggested that the recut slides
were less accurate than the original slides. Mounts argues that these comments
demonstrate the prejudice of prohibiting Dr. Wiens’s testimony as to the original
slides. But because Mounts’s counsel failed to preserve an issue with regard to Dr.
Wiens’s testimony, we do not consider the prosecutor’s statements in closing
argument as to whether Dr. Wiens’s testimony was admissible. Moreover, to the
extent Mounts argues that the prosecutor’s comments themselves were improper, we
address that issue later in this opinion. In short, because Mounts did not object to
these comments at trial, we are limited to plain-error review, and the elements of the
plain-error doctrine are not met here.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶36} Lastly, Mounts contends without explanation that the trial court erred
in prohibiting Dr. Guajardo from testifying outside the scope of his expert report, while
allowing Dr. Looman and Dr. Dean to do the same. As the state correctly notes,
however, Mounts completely abandons these undeveloped arguments regarding the
testimony of Dr. Guajardo and Dr. Looman. Pursuant to App.R. 16(A)(7), an appellant
must provide “an argument containing the contentions of the appellant with respect
to each assignment of error presented for review and the reasons in support of the
contentions, with citations to the authorities, statutes, and parts of the record on which
appellant relies.” “[W]e will consider all cognizable contentions presented but will not
create an argument if a * * * litigant fails to develop one.” Marreez v. Jim Collins Auto
Body, Inc., 1st Dist. Hamilton No. C-210192, 2021-Ohio-4075, ¶ 4. Thus, we overrule
this undeveloped aspect of Mounts’s claim and overrule Mounts’s second assignment
of error in full.
Lay Testimony as to Evidence of Guilt
{¶37} In his third assignment of error, Mounts argues the trial court erred in
admitting the testimony of Casteel. Mounts makes two separate contentions as to
Casteel’s testimony. First, Mounts argues that Casteel, a lay witness, was improperly
presented as expert witness by the state. Second, Mounts argues that Casteel should
not have been allowed to testify that Mount’s behavior was evidence of guilt.
{¶38} Decisions regarding the admissibility of evidence are reviewed for an
abuse of discretion. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d
1032.
{¶39} As to the first argument, Mounts’s belief that Casteel was held out as an
expert witness is wholly misplaced. The state did not in any way hold out Casteel as
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OHIO FIRST DISTRICT COURT OF APPEALS
an expert, did not move to qualify him as such, and did not submit a resume or expert
report that would have given the impression that Casteel was an expert.
{¶40} At most, the state asked Casteel about the details of his job history as a
firefighter and paramedic. And Casteel’s testimony as to these details did not qualify
him as an expert. For example, the fact that Casteel testified that he held that position
for almost two decades did not qualify or present him as a court-defined expert, but
rather emphasized his credibility on the subject just as any layperson in a seasoned job
role would have credibility to speak to the nuances of his or her own profession.
{¶41} As to the second issue, Evid.R. 701 governs opinion testimony by lay
witnesses. State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841,
¶ 59. The rule provides:
If the witness is not testifying as an expert, the witness’ testimony in the
form of opinions or inferences 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.
{¶42} In Graham, the Ohio Supreme Court held that the lay witness’s
testimony satisfied both requirements of Evid.R. 701, reasoning that the lay witness’s
observation of the defendant’s demeanor was relevant to showing the defendant's
evasiveness. Id. at ¶ 60. In the same way, Casteel observed Mounts’s withdrawn and
distant behavior when EMS arrived on scene, and this was relevant in showing
Mounts’s reaction to J.F.’s dire condition. Like that in Graham, Casteel’s testimony
meets both requirements of Evid.R. 701.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶43} First, Casteel’s testimony was rationally based on his own perception,
having been both personally present at the scene and well-versed in emergency
situations such as this one. Second, Casteel’s observations were helpful to a clearer
understanding of his testimony about Mounts’s casual demeanor when his child was
in life-threatening distress. Importantly, the jury was free to weigh this evidence
either for or against Mounts’s guilt.
{¶44} For these reasons, the trial court did not abuse its discretion in
admitting Casteel’s testimony, and the third assignment of error is accordingly
overruled.
Prosecutorial Misconduct
{¶45} In his fourth assignment of error, Mounts asserts that certain comments
made by the prosecutor in rebuttal arguments amounted to prosecutorial misconduct.
Specifically, Mounts takes issue with the following comments:
A forensic person – according to Webster – and unless the Judge gives
you a different definition in his jury instructions, you use the common
word or the common definition for a word – forensic means you’re
trained in the law, trained for court.
***
So Dr. Guajardo and Dr. Wiens are neuropathologists like Dr. Folkerth,
but they’re neuropathologists that are trained to come to court and
trained to testify. And you got to consider that when you’re considering
their testimony. They’re actual professional testifiers, is what they are.
***
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OHIO FIRST DISTRICT COURT OF APPEALS
[Dr. Wiens] said that the cuts weren’t always as good as the first section
that was taken, or the first cut of the section afterwards made. And as
you go down and down and you remember that it’s kind of like
somebody described it as slicing wool pants. And as it gets lower and
lower, the cut, the recut, the legal recut that they were calling it, isn’t as
good.
And so Dr. Wiens says I – she says the first one isn’t as good.
***
The Defense witnesses called it a team when they were trying to explain
why they didn’t pick up the phone and call Dr. Dean. ‘We’re not on her
team. We’re on his team.’
***
[Dr. Chundru’s] got a big stake in the game. This is his business. You
think he makes business by telling him, “I’m sorry; the doctor was
correct.” You think he makes business by advertising and by having the
newspaper like The Washington Post in here covering this story * * *
writing an article about him coming to court and testifying, saving the
day. Oh my gosh. He gave up his fee; that’s how committed he is. You
think he’s not getting a benefit from being here?
***
When you look at those medical records, I read a whole list of names to
you that I subpoenaed. And I just want you to think about how long the
trial would have been if we called every one of those doctors. Dr. Lauren
Jacobs, Amy Holden, Meredith Drake, Hee Kyung, Bernadette Koch,
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OHIO FIRST DISTRICT COURT OF APPEALS
Marguerite Care, Julie Guerin, Maya Linn Dewan. They’re all part of
the treatment team treating [J.F.], trying to [save] his life, and treating
him as if he was a victim of child abuse and blunt force trauma, recent
injuries.
***
It’s all these doctors who – incidentally, every one of these doctors are
licensed to practice medicine and actively practice medicine in the State
of Ohio. Not these outside doctors who can come in here for money and
say what they want to say and then fly back off to wherever they have to
fly back off to and hope that you believe what they say.
{¶46} “The test for prosecutorial misconduct is whether the remarks were
improper and, if so, whether the remarks prejudicially affected the accused’s
substantial rights.” State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80,
¶ 238. And when reviewing alleged prosecutorial misconduct, “we must consider all
of the prosecutor’s remarks, irrespective of whether the defense preserved an
objection.” (Internal quotation marks and citations omitted.) State v. Ford, 158 Ohio
St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 385.
{¶47} Here, Mounts only objected to the prosecutor’s comment regarding Dr.
Chundru, and thus this is the only statement that is preserved for our review. But this
particular comment did not amount to prosecutorial misconduct. This is the case
because evidence of bias and pecuniary interest is a legitimate subject of inquiry with
respect to an expert witness. “Reasonable inferences and deductions may be drawn
from evidence adduced at trial, * * * and an expert’s bias and pecuniary interest are
fair subjects for a closing argument.” (Citations omitted.) Hyden v. Kroger Co., 10th
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Dist. Franklin No. 06AP-446, 2006-Ohio-6430, ¶ 21. Because the prosecutor was
merely highlighting the potential influence of The Washington Post’s reporting on Dr.
Chundru’s motivations to testify, the prosecutor’s remarks were not improper and did
not affect Mounts’s substantial rights. See Dean at ¶ 238.
{¶48} Because Mounts did not object at trial to the remaining statements he
now challenges on appeal, our review of those comments is limited to plain error. See
State v. West, 168 Ohio St.3d 605, 2022-Ohio-1556, 200 N.E.3d 1048, ¶ 22.
{¶49} The Ohio Supreme Court most recently explained the plain-error
doctrine in State v. Bailey:
Under the plain-error doctrine, intervention by a reviewing court is
warranted only under exceptional circumstances to prevent injustice.
To prevail under the plain-error doctrine, [the appellant] must establish
that an error occurred, that the error was obvious, and that there is a
reasonable probability that the error resulted in prejudice, meaning
that the error affected the outcome of the trial.
(Internal quotation marks and citation omitted.) State v. Bailey, Slip Opinion No.
2022-Ohio-4407, ¶ 8.
{¶50} The court in Bailey did not explain what it meant by defining prejudice
based upon the impacts of the plain error on the outcome of the trial. However, in
previous cases, the Ohio Supreme Court has held that, to demonstrate that error
affected the outcome of the trial, the defendant must show that but for the error, the
outcome of the proceeding would have been otherwise. West at ¶ 22.
{¶51} For example, in State v. Brunson, the Ohio Supreme Court rejected a
plain-error claim, because the defendant could not demonstrate a reasonable
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probability that but for his inability to cross-examine a witness using a recorded
statement, the result of the trial would have been different. State v. Brunson, Slip
Opinion No. 2022-Ohio-4299, ¶ 25.
{¶52} Reading Bailey in concert with West and Brunson, we hold that, under
the plain-error standard, Mounts must demonstrate that a reasonable probability that
but for these comments made by the prosecutor, the outcome of the trial would have
been different.
{¶53} Most of the comments Mounts did not object to touched on the possible
bias, prejudice, or pecuniary interest of Mounts’s expert witnesses. These comments,
including calling Dr. Guajardo and Dr. Wiens “professional testifiers,” referring to
Mounts’s expert witnesses as a “team,” and noting that Mounts’s expert witnesses were
licensed outside of Ohio, emphasized the motivation for Mounts’s expert witnesses to
testify and their potential biases. Though unartfully stated, these are not comments
which are “so inflammatory as to render the jury’s decision a product solely of passion
and prejudice.” See Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, at
¶ 385.
{¶54} For example, in State v. Debardeleben, during cross-examination of the
defendant’s expert witness, the prosecutor noted, “I don’t want to keep you from your
next endeavor * * * Your next baby death case.” (Internal quotation marks omitted.)
State v. Debardeleben, 8th Dist. Cuyahoga No. 108277, 2020-Ohio-661, ¶ 38. The trial
court admonished these comments as inappropriate and prejudicial. Id. at ¶ 38. The
appellate court, however, held that the defendant did not demonstrate a reasonable
probability that but for these comments the outcome of the trial would have been
different. Id. at ¶ 39.
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{¶55} Likewise, here, we note that the prosecutor could have exercised more
restraint and caution in pointing out the possible bias, prejudice, or pecuniary interest
of Mounts’s expert witnesses. But we do not conclude that but for these comments,
the outcome of the trial would have been different. See West, 168 Ohio St.3d 605,
2022-Ohio-1556, 200 N.E.3d 1048, at ¶ 22.
{¶56} The prosecutor’s statement regarding potential expert witnesses for the
state who could have testified but did not, however, is more egregious. Because
Mounts was the only witness at the time J.F. stopped breathing, expert testimony as
to the cause and manner of J.F.’s death was particularly important in this case. In
reaching its verdict, the jury was necessarily required to weigh the testimony of the
state’s three expert witnesses against the testimony of Mounts’s three expert
witnesses. By alluding to additional expert witnesses on behalf of the state, the
prosecutor may have improperly tipped the weighing of expert witness testimony in
favor of the state.
{¶57} But, despite the importance of expert witness testimony in this case, the
jury had other evidence of Mounts’s conduct to consider as well. See State v. Twyford,
94 Ohio St.3d 340, 356, 763 N.E.2d 122 (2002) (holding that although it was improper
for the prosecutor to comment on the defendant’s failure to testify, there was other
compelling evidence of the defendant’s guilt and so he was not prejudiced or denied a
fair trial). The jury may have found that evidence of Mounts’s drug use and withdrawn
behavior at the time of J.F.’s death undercut his theory of the case. And the jury may
have found that Kayla’s testimony regarding J.F.’s behavior prior to his death was
more persuasive than Theresa’s testimony, given Kayla was J.F.’s primary caregiver
and J.F. spent minimal time with Mounts and his family. Moreover, as discussed
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OHIO FIRST DISTRICT COURT OF APPEALS
above, the jury may have more heavily weighed the testimony of Dr. Dean and Dr.
Makoroff, given that they physically examined J.F. and the defense experts did not.
{¶58} As the Ohio Supreme Court emphasized in Bailey, “the plain-error
doctrine is warranted only under exceptional circumstances to prevent injustice.”
(Emphasis added.) Bailey, Slip Opinion No. 2022-Ohio-4407, at ¶ 15. To that end, the
instances in which this court, our sister courts, and the Ohio Supreme Court have
found prosecutorial misconduct under plain-error review are few and far between. See
e.g., State v. Keenan, 66 Ohio St.3d 402, 405-411, 613 N.E.2d 203 (1993) (holding that
despite the defendant’s failure to object to the prosecutor’s improper comments
during closing argument, these comments deprived the defendant of a fair trial where
the prosecutor disparaged defense counsel, encouraged the jury to substitute emotion
for reasoned advocacy, expressed his personal outrage, called the defendant an
animal, and stabbed a large knife into counsel’s table in front of the jury).
{¶59} With this context in mind, we cannot conclude that this case presents
exceptional circumstances, as required by Bailey. We certainly do not condone, and
in fact condemn, the prosecutor’s insinuation that additional expert witnesses who did
not testify would have bolstered the state’s case. But without an objection from
defense counsel at trial, we are limited by the application of the plain-error standard
in our review. Given the jury had other evidence of Mounts’s guilt to consider, we
cannot conclude that but for this comment, the outcome of the trial would have been
different. See West, 168 Ohio St.3d 605, 2022-Ohio-1556, 200 N.E.3d 1048, at ¶ 22.
{¶60} Finally, as to the prosecutor’s comment regarding the quality of the
recut slides, we note that the prosecutor incorrectly attributed Dr. Dean’s testimony to
Dr. Wiens. It was Dr. Dean, not Dr. Wiens, who analogized the difference between the
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OHIO FIRST DISTRICT COURT OF APPEALS
original and recut slides to slicing wool pants. Crucially, Dr. Dean also testified that
the original and recut slides were “substantially the same,” and that if there had been
any differences between the slides, she would have notified Mounts’s expert witnesses.
The jury also heard testimony from Dr. Dean that Mounts’s expert witnesses could
have requested to see the original slides in person but did not do so. And Dr. Wiens
never testified as to the quality of the recut slides. Therefore, no expert witness
testified that the recut slides were “not as good” as the original slides, as the prosecutor
appeared to suggest. But because the jury was able to consider the entirety of Dr.
Dean’s testimony, and because the prosecutor’s arguments in closing argument are
not testimony, we hold that the prosecutor’s mischaracterization of part of Dr. Dean’s
testimony did not amount to reversible error under the plain-error doctrine.
{¶61} Accordingly, because the one comment to which defense counsel did
object was not improper and because our review of the remaining comments is
constrained to plain error because defense counsel did not object, we hold that none
of the prosecutor’s comments amounted to prosecutorial misconduct. We therefore
overrule Mounts’s fourth assignment of error.
Conclusion
{¶62} For the reasons set forth above, we overrule each of Mounts’s
assignments of error. Therefore, we affirm the judgment of the trial court.
Judgment affirmed.
CROUSE, P.J., and ZAYAS, J., concur.
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Please note:
The court has recorded its own entry on the date of the release of this opinion.
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