State v. Bellamy

2021 Ohio 40

• Court: Ohio Court of Appeals
• Decided: January 8, 2021
• Docket: 19 CAA 08 0048
• Status: Published

Opinion

[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

{¶ 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