[Cite as State v. McGhee, 2017-Ohio-5773.]


                                  IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                :        OPINION

                 Plaintiff-Appellee,          :
                                                       CASE NO. 2014-T-0106
        - vs -                                :

BRIAN R. MCGHEE,                              :

                 Defendant-Appellant.         :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2014 CR
173.

Judgment: Reversed and remanded.


Dennis Watkins, Trumbull County Prosecutor, and Gabriel M. Wildman, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).




COLLEEN MARY O’TOOLE, J.

        {¶1}     Brian R. McGhee appeals from the judgment of the Trumbull County Court

of Common Pleas, entered on a jury verdict, sentencing him to a total term of

imprisonment of 39 years to life, for a series of sexual assaults carried out against his

minor stepdaughter, H.H. McGhee contends the trial court erred in permitting Dr. John

Melville to give expert testimony regarding the effects of sexual abuse on minors.
McGhee also contends the trial court erred in allowing testimony regarding racist

comments he allegedly made, and that his convictions are against the manifest weight

of the evidence. Finding that Dr. Melville should not have been allowed to testify, we

reverse and remand for new trial.

       {¶2}   The following facts are taken from the transcript of trial.

       {¶3}   McGhee began dating Carly, the mother of H.H., around 2007 or 2008.

The couple lived together for two years before getting married. H.H. was about eight

years old when McGhee and Carly met. Eventually, the couple moved to a trailer park.

H.H. testified she initially loved McGhee, and looked on him as the father she had never

had. H.H. testified this began to change when she was ten. McGhee was in the habit

of having her ride along with him to the store when he bought cigarettes, or odds and

ends for the house. Starting when she was ten, he began touching her breasts and

vagina, over her clothes, while they drove. Within a few weeks, his conduct escalated,

and he began putting his hand inside her blouse and panties, and digitally raping her.

Quickly, he required her to masturbate him, and provide him oral sex. Starting when

she was about 12, he began forcing vaginal sex on her at the trailer, when Carly and

H.H.’s younger sister, Madison, were not present. H.H. testified this conduct came to

an abrupt end when she was 14, and McGee discovered she was dating an African

American. H.H. testified McGee was a racist, who often spoke in derogatory terms

about African Americans.

       {¶4}   H.H. testified McGee would molest her four or five times a week, during

the four year period in question.




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      {¶5}    H.H. testified she lost about 30 lbs., and began slashing her wrists. She

testified she had nightmares.

      {¶6}    October 27, 2013, at the dinner table, Madison, who was ten or 11, called

H.H. a “thirsty ho” – evidently slang for a sluttish girl. McGhee began laughing, and

repeated the phrase. H.H. testified that she was extremely upset by this, that she felt it

was true because of the way McGhee had treated her. H.H.’s older cousin, Marie

Margel, then aged about 19, was visiting, and confirmed the incident and H.H.’s reaction

in her testimony.      Sometime around midnight, H.H. went to Marie, and revealed

McGhee’s conduct. Marie insisted H.H. call her mother, Carly, who was working as a

security guard at a local factory. The girls left the trailer, and went down to the trailer

park entrance, and called Carly. Carly called the Weathersfield Police Department.

Sergeant Todd Garlow and Patrolman George Antonell responded, and found the two

girls near the road. They testified H.H. was very upset, and crying. Carly arrived soon

after. The officers went to the McGhee trailer, on learning that Madison was still inside.

The officers found her to be asleep, and informed McGhee of his stepdaughter’s

allegations. McGhee gathered some items and left. Carly, H.H., Marie, and Madison

also gathered some items, and went to relatives in New Castle, Pennsylvania.

      {¶7}    At trial, McGhee testified on his own behalf, and firmly denied H.H.’s

allegations. He considered she was upset with him for being the family disciplinarian.

       {¶8}   Other relevant facts shall appear in connection with the analysis of the first

assignment of error.

       {¶9}   March 10, 2014, the Trumbull County Grand Jury returned an indictment

in 13 counts against McGhee: counts one through three, for gross sexual imposition,




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third degree felonies in violation of R.C. 2907.05(A)(4) and (C)(2); counts four through

nine, for rape, first degree felonies in violation of R.C. 2907.02(A)(1)(b) and (B), and

R.C. 2971.03(B)(1)(c); and counts ten through 13, for rape, first degree felonies in

violation of R.C. 2907.02(A)(2) and (B). McGhee pleaded not guilty that same day.

Motion practice ensued. The matter came on for jury trial October 20, 2014, and the

jury returned verdicts of guilty on each count October 22, 2014. Sentencing hearing

was held November 5, 2014. The trial court sentenced McGhee to concurrent terms of

3 years for each of the gross sexual imposition convictions.            It sentenced him to

concurrent terms imprisonment of 25 years to life on the convictions for rapes set for in

counts four through nine, to be served consecutive to the terms imposed for counts one

through three. It sentenced him to concurrent terms of imprisonment for the rapes set

forth in counts ten through 13, to be served consecutive to the terms imposed for counts

one through nine.    The trial court further informed McGhee regarding post release

control, and designated him a tier three sex offender. The sentence was memorialized

in a judgment entry filed November 17, 2014.

       {¶10} McGhee timely noticed appeal, assigning three errors. The first reads:

“The trial court erred and abused its discretion by denying appellant’s motion to exclude

the expert testimony of Dr. Melville.” McGhee presents the following issue for review:

“Whether a trial court errs and abuses its discretion by denying a criminal defendant’s

motion to exclude testimony of an expert witness, where the record reveals that a

written report was not provided by the expert until the last minute.”

       {¶11} H.H. was examined at the Child Advocacy Center, part of Akron Children’s

Hospital, in Boardman, Ohio October 29, 2013, two days after she revealed the alleged




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abuse. The site director of the Center is Dr. John Melville, an expert in child sexual

abuse. He is assisted by Nurse Practitioner Jane Gorsuch, who conducted the actual

physical examination of H.H. On October 29, 2013, H.H. came in with her mother. Dr.

Melville testified the procedure is to conduct an interview with the parent or parents of

the alleged victim, followed by a forensic interview with the child, concerning his or her

allegations. In this case, the interview was actually conducted by Megan Martin, a

caseworker with Trumbull County Children Services, while Nurse Gorsuch observed

through a window. Dr. Melville testified this is normal protocol. Nurse Gorsuch then

conducted a complete physical examination of H.H., which revealed no signs of injury

that could result from sexual activity or assault.

       {¶12} November 6, 2013, Nurse Gorsuch prepared a written report of her

findings.   Dr. Melville testified he reviews Nurse Gorsuch’s findings, but does not

approve the actual reports. McGhee moved for discovery March 27, 2014. The state

responded July 21, 2014, three months prior to trial. The state’s witness list included

the names of both Dr. Melville and Nurse Gorsuch, and their curricula vitae were

attached. Evidently, Nurse Gorsuch’s report was also provided at some point.

       {¶13} October 15, 2014, five days prior to commencement of trial, McGhee

moved in limine to exclude any expert testimony by Dr. Melville, alleging he had failed to

provide an expert’s report 21 days prior to trial, as required by Crim.R. 16(K). The issue

had come up at a pretrial, where the state revealed it intended to question Dr. Melville

regarding the reasons for “delayed disclosure” of sexual abuse by children. In response

to the motion in limine, the state provided a report from Dr. Melville, supplementing that

prepared by Nurse Gorsuch, the following day.         Prior to trial, McGhee’s counsel




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renewed his motion in limine regarding Dr. Melville. Noting it has discretion to alter the

time limits set forth in Crim.R. 16(K), and that defense counsel had known for months

that Dr. Melville might testify, the trial court held the jury would benefit from Dr. Melville’s

general description of the effects of sexual abuse on children. Thus, the motion in

limine was overruled.

       {¶14} At trial, Dr. Melville testified extensively regarding the reasons children

delay disclosing sexual abuse. He testified this occurs commonly. He further testified

extensively on why H.H. might display no physical signs of sexual activity, and that this,

too, is common.

       {¶15} “A trial court’s evidentiary rulings are reviewed under an abuse of

discretion standard. State v. Poling, 11th Dist. No. 2008–A–0071, 2010–Ohio–1155,

¶19, citing State v. Sweeney, 11th Dist. No. 2006–L–252, 2007–Ohio–5223, ¶2. Even

where a court abuses its discretion in the admission of evidence, we must review

whether the defendant suffered material prejudice due to the ruling. Id.” State v. Perry,

11th Dist. Lake No. 2011-L-125, 2012-Ohio-4888, ¶61.

       {¶16} The term “abuse of discretion” is one of art, connoting judgment exercised

by a court which neither comports with reason, nor the record. State v. Ferranto, 112

Ohio St. 667, 676-678 (1925). An abuse of discretion may be found when the trial court

“applies the wrong legal standard, misapplies the correct legal standard, or relies on

clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-

Ohio-1720, ¶15 (8th Dist.)

       {¶17} Crim.R. 16(K) provides:

       {¶18} “An expert witness for either side shall prepare a written report




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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.” (Emphasis added.)

       {¶19} The purpose of Crim.R. 16(K) is to prevent surprise, trial by ambush. In

this case, the state provided Dr. Melville’s name to the defense three months before

trial. But it never provided any report by him until a few days before trial.   The report

submitted originally by the state was written by Nurse Gorsuch, who conducted the

actual examination of H.H., while Megan Martin conducted the forensic interview. The

state did call Ms. Martin to testify, so the summary in the report of the interview came in

properly. However, if the state wished to introduce expert testimony on the subject of

the physical examination, and its results, it should have called Nurse Gorsuch, and tried

to qualify her as an expert. It did not. Dr. Melville’s testimony regarding why female

children often do not display physical signs of sexual activity or trauma was extremely

important to the state’s case.

       {¶20} Further, Dr. Melville’s testimony regarding delayed disclosure was vital to

the state’s case. Otherwise, a jury might well question H.H.’s testimony that McGhee

had been molesting her for four years.           Thus, Dr. Melville’s testimony may have

significantly buttressed her credibility, to McGhee’s prejudice.

       {¶21} As the trial court noted, Crim.R. 16(K) allows the court to modify the 21

day time limit set forth in the rule. However, this may only be done for “good cause




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shown.” In this case, the state never made a showing of good cause for not obtaining a

report from Dr. Melville until days before trial. In opposing McGhee’s motion in limine

regarding Dr. Melville’s testimony, the assistant prosecutor told the trial court: “I

consider [Dr. Melville] a crucial witness to this case.” We agree. Consequently his

testimony should have been excluded for failure to comply with Crim.R. 16(K).

      {¶22} The first assignment of error has merit.

      {¶23} The second assignment of error reads: “The trial court erred and abused

its discretion by permitting testimony concerning racial remarks allegedly made by

appellant, which were extremely prejudicial and had no bearing on the case.” The third

assignment of error reads: “Appellant’s convictions are against the manifest weight of

the evidence.” We decline to reach these assignments of error deeming them moot.

App.R. 12(A)(1)(c).

      {¶24} The judgment of the Trumbull County Court of Common Pleas is reversed,

and this matter is remanded for new trial.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




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