[Cite as State v. Mounts, 2026-Ohio-1443.]
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, :
vs. :
JOSHUA MOUNTS, : JUDGMENT ENTRY Defendant-Appellant. :
This cause was heard upon the appeal, the record, the briefs, and arguments. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is reversed and the cause is remanded. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.
To the clerk: Enter upon the journal of the court on 4/22/2026 per order of the court.
By:_______________________ Administrative Judge [Cite as State v. Mounts, 2026-Ohio-1443.]
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, :
vs. : OPINION JOSHUA MOUNTS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: April 22, 2026
Connie Pillich, Hamilton County Prosecuting Attorney, and Ronald W. Springman, Jr., Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Elizabeth R. Miller, Ohio Public Defender, Randall L. Porter, Kathryn L. Sandford, and Erika M. LaHote, Assistant Public Defenders, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Presiding Judge.
{¶1} In this reopened appeal, defendant-appellant Joshua Mounts
challenges his conviction for felony murder in connection with the death of his seven-
month-old son, J.F. We initially affirmed the judgment of the trial court convicting
Mounts of J.F.’s murder. See State v. Mounts, 2023-Ohio-3861 (1st Dist.). We held
that Mounts’s conviction was not against the manifest weight of the evidence, that
Mounts’s trial attorney failed to preserve any claim of error regarding the scope of
expert testimony, that the State did not improperly present a lay witness as an expert
witness, and that trial counsel waived all but plain error by failing to object to the
prosecutor’s comments during closing argument. Id. at ¶ 2. In doing so, we noted that
Mounts had raised “limited assignments of error” on appeal. Id.
{¶2} We then permitted Mounts to reopen his appeal on the basis of
ineffective assistance of appellate counsel and to raise new assignments of error that
were omitted from his initial appeal. See App.R. 26(B). He now claims that defense
counsel rendered ineffective assistance at trial in the two ways our initial opinion
suggested—acquiescing to the State’s objection to the scope of a defense expert’s
testimony and failing to object to improper comments by the prosecutor in closing
argument. He also takes issue with trial counsel’s failure to object to the testimony of
an expert witness called by the State, as well as other alleged omissions and missteps.
In addition, he argues that his original appellate attorney provided ineffective
assistance on appeal for failing to assign trial counsel’s ineffectiveness as error. We
agree. Therefore, because our review of the record leads us to hold that Mounts
received ineffective assistance from both his trial and appellate counsel, we vacate our
prior opinion in his direct appeal, reverse the judgment of the trial court, and remand
the cause for a new trial.
3 OHIO FIRST DISTRICT COURT OF APPEALS
Factual and Procedural History
{¶3} On January 25, 2018, emergency medical services responded to a 9-1-1
call after J.F. was found unresponsive at Mounts’s home. An ambulance transported
J.F. to Cincinnati Children’s Hospital, where he was diagnosed with a skull fracture
and severe brain injuries. After doctors informed J.F.’s mother, Kayla, that he had no
chance of recovery, she chose to remove him from life support. J.F. had solely been in
Mounts’s care the night before his death. The State accordingly charged Mounts with
J.F.’s murder.1
{¶4} No eyewitness testified as to what precisely occurred to cause J.F.’s
death. Thus, the evidence at trial largely advanced two competing theories about how
J.F. died. On the one hand, the State contended that J.F. suffered blunt force trauma
to the head during his overnight visit to Mounts’s home that Mounts, as his sole
caregiver during that period of time, must have perpetrated. On the other, Mounts
argued that the injuries to J.F.’s brain were long-standing and could have been
attributed to previous medical trauma, including both his mother’s prenatal drug use
and J.F.’s history of “Brief Resolved Unexplained Events” (“BRUE episodes”) in which
J.F. would stop breathing. Both sides relied heavily on expert testimony to support
their competing theories.
{¶5} One of the few lay witnesses at trial was Kayla, J.F.’s mother. Kayla
testified that J.F. lived with her, her grandparents, and J.F.’s half-brother, but that she
was J.F.’s primary caretaker. According to Kayla, Mounts lived with his parents and
brother but also saw J.F. at times.
1 Mounts was charged 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). The jury acquitted Mounts of aggravated murder but found him guilty of felony murder.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Kayla admitted that she had previously used drugs. J.F.’s medical
records indicated that he was born prematurely as a result of opiates in Kayla’s system,
but Kayla testified that she had stopped using as soon as she learned she was pregnant.
Kayla agreed that J.F. had experienced at least one previous BRUE episode before his
death, which caused him to stop breathing.2 But she testified that he had not had an
episode for months prior to becoming unresponsive in Mounts’s care.
{¶7} When Kayla arrived at the hospital the day of the incident, she told
hospital staff that J.F. had been experiencing cold symptoms but was otherwise well.
According to Kayla, J.F. was a happy baby, despite having colic. His routine was to
wake up between 8:00 and 9:00 a.m., although he had slept until late morning a few
times when he was sick. Kayla denied ever dropping J.F. while he was in her care.
{¶8} Kayla testified that the day before J.F. became unresponsive, she and
J.F. spent the evening with Mounts running errands. During that time, Mounts
bought drugs. After they arrived back at Mounts’s residence, she remembered that
she had an appointment the next day, so she decided to leave J.F. with Mounts.3 She
fed J.F. a bottle and placed him in Mounts’s bed. She did not notice anything unusual
in J.F.’s behavior prior to leaving him overnight with Mounts.
{¶9} The next morning, Kayla received a message from Mounts’s mother
indicating that there was a medical emergency and that J.F. was not breathing. J.F.
was transported to Cincinnati Children’s Hospital where he was treated for a skull
fracture. When Kayla spoke with Mounts, he denied that J.F. had fallen out of bed.
{¶10} First responders to the scene also testified at trial, both as to their
2 J.F.’s medical records indicate that he had suffered from several BRUE episodes. 3 Contrary to this testimony, Kayla told medical staff at the hospital that she left J.F. with Mounts
because she “needed a break.”
5 OHIO FIRST DISTRICT COURT OF APPEALS
activities and as to Mounts’s description of what happened. Per these witnesses,
Mounts reported J.F. had slept through the night and woke up crying late the next
morning around 11:00 a.m. Mounts said he found J.F. unresponsive after he went to
prepare a bottle. One first responder testified to finding a warm bottle in Mounts’s
bedroom, which was consistent with Mounts’s statement. But he also found a device
commonly used for smoking marijuana. The bed had also been pushed against the
wall, and a pillow had been placed on the other side as if to prevent J.F. from falling
off.
{¶11} Detective Brad Hondorf, the lead detective in the investigation of J.F.’s
death, also testified at trial. Hondorf reviewed a report another officer gave him from
Cincinnati Children’s Hospital which noted “suspected child abuse” in J.F.’s case. He
accordingly focused his investigation on Mounts.
{¶12} Hondorf conducted four lay interviews as part of his investigation:
Kayla, Mounts, and each of Mounts’s parents. Mounts’s father told Hondorf that J.F.
appeared to have a “deer in the headlights” look the night before he was found
unresponsive. Although Hondorf consulted with the doctor who performed the
autopsy, the information regarding J.F.’s vacant look was never communicated at any
point. Hondorf also attended a meeting of the physician team who evaluated J.F. at
the hospital. The meeting occurred a few days following J.F.’s death. According to
Hondorf, the physician team was unsure why J.F. stopped breathing on his own,
despite the fact that he exhibited a skull fracture. They indicated that the cause could
have been “child abuse, accidental, or genetic.”
{¶13} One member of the team Hondorf remembered seeing at the meeting
was Dr. Kathi Makoroff. Dr. Makoroff was a physician at Cincinnati Children’s
Hospital associated with the Mayerson Center for Safe and Healthy Children. The
6 OHIO FIRST DISTRICT COURT OF APPEALS
record does not contain a report of Dr. Makoroff’s opinions about the case, although
it does contain her curriculum vitae, which was admitted as an exhibit at trial. Even
though she had not submitted an expert report, Dr. Makoroff was permitted to testify
for the State as an expert in child-abuse pediatrics without objection from the defense.
{¶14} Dr. Makoroff began her testimony by describing the function of the
Mayerson Center. The Mayerson Center consults in cases of suspected child abuse. In
that capacity, she was asked to evaluate J.F. while he was in the hospital. J.F.
presented to the hospital with a skull fracture and subdural bleeding, types of injuries
that Dr. Makoroff explained do not occur spontaneously.4 According to Dr. Makoroff,
J.F.’s injuries indicated that he suffered trauma. When asked if “the Mayerson Center
came to a conclusion about whether or not this case constituted child abuse,” Dr.
Makoroff respond, “We did, yes.” She testified that in her expert opinion J.F.’s injuries
were consistent with child physical abuse. Without an objection from the defense, she
also opined that J.F.’s injuries did not predate his overnight stay with Mounts. She
explained that, in her expert opinion, a child would not behave normally after
sustaining the types of injuries J.F. had.
{¶15} On cross-examination, Dr. Makoroff conceded that J.F. did not have
bruising on his body when she evaluated him in the hospital. She did not recall
whether Hondorf was at the team meeting that occurred two days after J.F.’s death,
whether the team discussed J.F.’s case, or whether the Mayerson Center team
developed an explanation for why J.F. stopped breathing. She admitted that the team
did not keep notes from its weekly patient meetings.
{¶16} Dr. Dorothy Dean, a forensic pathologist at the Hamilton County
4 J.F.’s injuries were documented by his medical records, which were admitted into evidence during
Dr. Makoroff’s testimony.
7 OHIO FIRST DISTRICT COURT OF APPEALS
Coroner’s Office, performed J.F.’s autopsy. She testified at trial as an expert in forensic
pathology, and her autopsy report was admitted into evidence. Dr. Dean testified that
J.F. had a fracture of the parietal bone, as well as a small bruise above his right eye, a
bruise over the skull fracture, and four small bruises on his back. She also testified
that there was fresh blood, referring to a subdural hematoma, near the fracture site
and that there was no evidence of healing, which indicated that this was a very recent
injury. According to Dr. Dean, 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
in the process of healing a new fracture. Thus, when looking at the fracture
microscopically, she saw a fresh fracture without evidence of healing. Accordingly, Dr.
Dean did not believe J.F.’s previous BRUE episodes played a role in his death. Rather,
it was her opinion that J.F. had likely died from a traumatic brain injury with a skull
fracture due to blunt impacts to his head.
{¶17} In addition to establishing what she believed was the cause of death, a
central component of Dr. Dean’s testimony was her role in creating histological slides
of J.F.’s brain. Other experts examined the slides to form their own opinions about
the type of fracture J.F. suffered and its stage of healing. Dr. Dean testified that she
provided Mounts’s expert witnesses with “recut” slides, rather than the originals, but
that the experts could have come to her office to view the originals in person. She also
dispelled any notion that the recut slides were less reliable than the originals. She
testified that if there had been any substantial difference between the originals and the
recuts, she would have informed Mounts’s expert witnesses. Finally, she explained
that, according to her report, the recut slides of the fracture included “[a] section
through one limb of the displaced fracture of the skull that includes the lambdoid
suture . . . .” She testified that a suture is fibrous material holding the bone plates of
8 OHIO FIRST DISTRICT COURT OF APPEALS
an infant’s skull together and eventually hardens after the brain has reached its full
size.
{¶18} Dr. Andrea Wiens, Dr. Satish Chundru, and Dr. Andrew Guajardo
testified as expert witnesses for Mounts, and their expert reports were admitted into
evidence. As to J.F.’s cause of death, they agreed that the blood near the fracture site
they identified was not fresh and that J.F.’s skull exhibited evidence of healing,
including new bone formation, which indicated that J.F.’s injuries were not recent. Dr.
Wiens also testified that J.F.’s repeated BRUE episodes created a greater likelihood
that underlying but unidentified etiology explained his death.
{¶19} As one of only 50 experts board certified in both forensic pathology and
neuropathology, Dr. Wiens had initially been hired by the State to evaluate J.F.’s skull
injury and review Dr. Dean’s autopsy report. But when Dr. Wiens sent her report to
the State, which disagreed with Dr. Dean’s conclusion that the injuries were recent,
the prosecutor informed her in a phone call that she had incorrectly identified the
fracture site on the slide because she had not reviewed the original slide.
{¶20} Dr. Wiens attempted to clear up the confusion as to the basis for her
testimony about the fracture after a break in her testimony. She began to do so by
indicating that she had reviewed the original histology slide containing the fracture
during the break, which had been admitted into evidence during Dr. Dean’s testimony.
But Dr. Wiens’s expert report only concerned the recut slide, not the original slide she
reviewed midtrial, so the State objected to her testifying to information outside of her
report.
{¶21} The trial court conducted a sidebar to discuss the State’s objection. At
the sidebar, Mounts’s counsel proffered that Dr. Wiens would testify as to the
difference between the original slide and the recut slide. According to Mounts’s
9 OHIO FIRST DISTRICT COURT OF APPEALS
counsel, the difference in the slides would not alter Dr. Wiens’s opinion that J.F.’s
injuries were not recent, and, if permitted to testify, she would explain that, despite
the prosecutor’s concern on the phone call, she had correctly identified the fracture
site.
{¶22} Given these representations from defense counsel, the trial court
broached the topic of having Dr. Wiens amend her expert report. At that point, the
trial court had not yet ruled on the State’s objection to Dr. Wiens’s intended testimony
and had not excluded her explanation about the differing slides. But rather than agree
to the trial court’s proposed solution, and without responding directly to the State’s
objection, Mounts’s counsel instead said he would move on from this line of
questioning. He therefore abandoned the attempt to have Dr. Wiens clarify that she
had in fact reviewed the original histology slide and reached the same conclusion about
J.F.’s cause of death. Only then did the trial court sustain the State’s objection.
{¶23} Dr. Chundru testified that he was shocked by Dr. Dean’s diagnosis of
J.F. because it was clear that J.F.’s injuries predated the incident at Mounts’s home.
Dr. Guajardo testified that J.F.’s injuries were a minimum of three weeks or older at
the time of his death.
{¶24} On rebuttal, the State played the deposition of Dr. Rebecca Folkerth, a
neuropathologist, and called Dr. Karen Looman, Chief Deputy Coroner at the
Hamilton County Coroner’s Office, to testify. Both essentially testified that they
agreed with Dr. Dean’s conclusions except Dr. Looman testified that the subdural
hematoma appeared to be an older injury than the skull fracture. Finally, Dr. Dean
10 OHIO FIRST DISTRICT COURT OF APPEALS
testified again on rebuttal, emphasizing that she was still confident in her findings.5
She accused the three defense experts of misidentifying the fracture site as the
lambdoid suture on the histology slide.
{¶25} The jury found Mounts guilty of felony murder but acquitted him of
aggravated murder. He was sentenced to an aggregate sentence of 15 years to life in
prison.
{¶26} In his initial appeal, Mounts raised four assignments of error, all of
which we overruled. See Mounts, 2023-Ohio-3861, at ¶ 1 (1st Dist.). His first
assignment of error was that his conviction was against the manifest weight of the
evidence. Id. His second assignment of error challenged the trial court’s decision to
prevent Dr. Wiens from testifying about her review of the original histology slide
because this information was not in her expert report. Id. at ¶ 31. His third assignment
of error alleged that the trial court improperly admitted the observations of first
responders about Mounts’s behavior. Id. at ¶ 37. And his fourth assignment
challenged the propriety of comments made by the prosecutor in closing argument.
Id. at ¶ 45.
{¶27} None of these assignments of error took issue with the performance of
his trial counsel. Id. at ¶ 1. Thus, Mounts moved to reopen his appeal pursuant to
App.R. 26(B) on the basis that his appellate attorney had been ineffective on appeal by
failing to raise the ineffective assistance of his trial counsel as an assignment of error.
We granted this relief and ordered the parties to file additional briefs addressing this
specific assignment of error and any others Mounts wished to pursue.
5 Dr. Dean’s rebuttal testimony was based on a separate expert report.
11 OHIO FIRST DISTRICT COURT OF APPEALS
{¶28} Mounts then filed a brief in the reopened appeal that advanced three
new assignments of error, but not the argument that his original appellate counsel had
rendered ineffective assistance of counsel. Following the Ohio Supreme Court’s
decision in State v. Clark, 2025-Ohio-4410, he moved to submit a supplemental brief
for the purpose of including the ineffective-assistance-of-appellate-counsel issue he
had initially omitted.6 We granted that motion, and Mounts filed a supplemental brief
including that additional assignment of error.
{¶29} We now address Mounts’s reopened appeal.
Reopened Appeal
{¶30} In his principal and supplemental briefs, Mounts raises four new
assignments of error for our review: (1) Mounts’s trial counsel provided ineffective
assistance at trial; (2) the trial court erred by excusing for cause all prospective jurors
who had not been vaccinated against Covid-19; (3) Mounts’s due process rights were
violated by the State’s presentation of “fundamentally unreliable testimony”; and (4)
Mounts’s appellate counsel provided ineffective assistance. As they are dispositive of
this reopened appeal, we address the ineffective-assistance-of-counsel claims first.
{¶31} In reviewing Mounts’s ineffective-assistance claims, we are conscious of
App.R. 26(B)(9), which governs reopened appeals. That rule provides that
If the court finds that the performance of appellate counsel was deficient
6 Mounts’s initial brief in the reopened appeal did not assert an assignment of error advancing the
argument that his appellate counsel was ineffective. This was despite the fact that his App.R. 26(B) motion to reopen the appeal indicated that he wanted to raise this particular issue, and despite our order clearly instructing Mounts to raise it. After initial briefing was complete in the reopened appeal, Mounts filed a motion to submit a supplemental brief so that he could raise ineffective assistance of appellate counsel in accordance with Clark, 2025-Ohio-4410, at ¶ 3, which requires an appellate court to find ineffective assistance of appellate counsel to grant relief in a reopened appeal. The concurrence in Clark suggests that a defendant may raise ineffective assistance of appellate counsel in a reopened appeal in a supplemental brief. See Clark at ¶ 28 (Hawkins, J., concurring). And, notably, the State did not object to Mounts’s request to supplement his brief.
12 OHIO FIRST DISTRICT COURT OF APPEALS
and the applicant was prejudiced by that deficiency, the court shall
vacate its prior judgment and enter the appropriate judgment. If the
court does not so find, the court shall issue an order confirming its prior
judgment.
{¶32} Because App.R. 26(B)(9) focuses on the performance of appellate
counsel, we may vacate our prior judgment and grant Mounts relief only if the
performance of his appellate attorney was prejudicially deficient. See State v. Stultz,
2023-Ohio-4754, ¶ 2 (9th Dist.). We therefore consider Mounts’s claim that his trial
counsel rendered ineffective assistance of counsel for the purpose of determining
whether his appellate attorney was ineffective in failing to raise it on appeal.
A. Ineffective Assistance of Trial Counsel
{¶33} In his first assignment of error, Mounts argues that his trial counsel
rendered ineffective assistance. To establish ineffective assistance of counsel, a
defendant must demonstrate both that (1) counsel’s performance was deficient, and
(2) counsel’s deficient performance prejudiced the defendant. Strickland v.
Washington, 466 U.S. 668 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989).
{¶34} Counsel’s performance is deficient if it falls below an objective standard
of reasonableness. State v. Payne, 2019-Ohio-848, ¶ 8 (1st Dist.). Counsel is
presumed to have provided adequate assistance. State v. Smith, 17 Ohio St.3d 98, 100
(1985). Consequently, to demonstrate deficient performance, a defendant must
overcome the presumption that trial counsel’s challenged action “might be considered
sound trial strategy.” Id.
{¶35} To demonstrate prejudice, appellant must show that there is “a
reasonable probability that but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Bradley at 146. “A reasonable probability is
13 OHIO FIRST DISTRICT COURT OF APPEALS
a probability sufficient to undermine confidence in the outcome.” Id., quoting
Strickland at 694. Prejudice may result from the cumulative effect of trial counsel’s
errors. State v. Gondor, 2006-Ohio-6679, ¶ 72. In considering the impact of an
attorney’s mistakes, “[s]ome errors will have had a pervasive effect on the inferences
to be drawn from the evidence, altering the entire evidentiary picture.” Id., citing
Strickland at 694-695. But errors cannot become prejudicial simply because of their
sheer number. State v. Hill, 75 Ohio St.3d 195, 212 (1996).
1. Deficient Performance
{¶36} Mounts points to many instances of alleged deficient performance by
trial counsel throughout his case. We focus on three—trial counsel’s acquiescence in
the State’s objection to Dr. Wiens’s testimony about her review of the original fracture
slide, trial counsel’s failure to object to Dr. Makoroff’s testimony in light of the fact
that she did not disclose an expert report, and trial counsel’s failure to object to a
statement by the prosecutor in closing argument that eight additional doctors could
have been called to testify that J.F.’s injuries were recent and caused by child abuse.
a. Dr. Wiens
{¶37} First, Mounts argues that trial counsel performed deficiently by
acquiescing to the State’s objection to Dr. Wiens’s testimony about the original
histology slide rather than taking advantage of the trial court’s offer to have Dr. Wiens
amend her expert report. We agree that this decision fell below the objective standard
of reasonableness for a defense attorney and therefore constituted deficient
performance.
{¶38} The decision to call a particular expert witness is typically strategic, and
an attorney does not perform deficiently by failing to present expert testimony. See
State v. Clarke, 2024-Ohio-2921, ¶ 40 (1st Dist.). But Mounts does not challenge his
14 OHIO FIRST DISTRICT COURT OF APPEALS
attorney’s decision to put an expert on the stand. Rather, he questions his attorney’s
failure to rehabilitate a central point in Dr. Wiens’s testimony that the State then used
to undermine her credibility with the jury. Where the State’s case involves evidence
the jury cannot properly understand without the assistance of experts, the failure to
engage a competent expert can constitute deficient performance. Hinton v. Alabama,
571 U.S. 263, 273 (2014). So too can the failure to present an expert be deficient when
the crux of a defendant’s defense turns on evidence that cannot be properly provided
to a jury without the use of expert testimony. See State v. Herring, 2014-Ohio-5228,
¶ 73-79, 80.
{¶39} A critical issue in Mounts’s trial was the timing of when J.F. incurred
the skull fracture and subdural hematoma—a question that all experts agreed could be
determined only through microscopic examination of the histology slides of J.F.’s
brain. As she explained in her expert report, Dr. Wiens formed her opinion that J.F.’s
skull exhibited new bone formation indicative of healing, and therefore, an older
injury by reviewing a recut slide supplied by Dr. Dean. This conclusion caused her
services to be terminated by the State, because the prosecution believed she had
reviewed the wrong section of the slide and had therefore misidentified the fracture in
J.F.’s skull. Defense counsel was well aware that the State would critique Dr. Wiens’s
methodology in this way, thereby attempting to undermine her credibility, because she
relayed the nature of her phone call with the prosecutor in her expert report. And at
the very least, defense counsel became aware of the issue when Dr. Wiens herself
testified to the prosecutor’s phone call during direct examination.
{¶40} The record reflects that the trial court ordered a lunch break shortly
after Dr. Wiens testified about her call with the prosecutor concerning the recut slide.
Defense counsel appeared to understand the gravity of that testimony, because upon
15 OHIO FIRST DISTRICT COURT OF APPEALS
return from lunch, he immediately asked Dr. Wiens questions to rehabilitate her
conclusion about the location of the fracture on the recut histology slide. To that end,
Dr. Wiens explained that she had reviewed the original histology slide, which she had
not seen before, during lunch. This is what prompted the State’s objection, because
Dr. Wiens did not disclose her opinion of the original slide in her expert report.
Responding to that objection, defense counsel again appeared to appreciate the
importance of Dr. Wiens’s testimony, because he proffered at sidebar that her review
of the original slide had not changed her opinion about J.F.’s injuries. It was not until
the trial court suggested that defense counsel amend Dr. Wiens’s report to include the
information she gleaned from viewing the original slide that defense counsel indicated
he would abandon the entire line of questioning.
{¶41} This exchange strongly suggests that defense counsel’s actions were the
product of something other than “sound trial strategy.” See Smith, 17 Ohio St.3d at
100. Rather, it appears that, after initially mounting a robust proffer of Dr. Wiens’s
intended testimony, defense counsel inexplicably retreated from having Dr. Wiens
clarify her methodology and opinions in court to avoid having to produce an amended
expert report. Had it been defense counsel’s plan to deemphasize the role of the recut
slides in Dr. Wiens’s report, we question why he would have asked Dr. Wiens to testify
about this very thing upon returning to court after lunch. We also question why trial
counsel would have proffered Dr. Wiens’s testimony if he felt that it was strategically
unhelpful to Mounts. Indeed, nothing in defense counsel’s approach leading up to his
decision to abandon Dr. Wiens’s testimony about the original slide suggests that it was
a strategic one.
{¶42} But even if it was, the decision of Mounts’s attorney to acquiesce in the
State’s objection was not strategically reasonable. Defense counsel knew when he
16 OHIO FIRST DISTRICT COURT OF APPEALS
abandoned the line of questioning about the slides that the State would question Dr.
Wiens’s credibility on the basis that she had misidentified the fracture in the recut
slide. Because the entire case rested on which cause-of-death theory the jury found
more believable—that Mounts caused a blunt force head injury to J.F. or that J.F. had
preexisting brain injuries that manifested in his loss of consciousness—Dr. Wiens’s
credibility was critical to Mounts’s defense. It was theoretically possible for another
witness to testify as to the difference between the original and recut slides and whether
they provided the same view of the fracture in J.F.’s brain. In fact, Dr. Dean herself
had explained that there were no significant differences between the original and recut
slides. But the only person who could testify that Dr. Wiens had in fact reviewed the
original slide and that it had not altered her opinion that the fracture in J.F.’s skull was
preexisting was Dr. Wiens.
{¶43} In State v. Bunch, 2022-Ohio-4723, ¶ 34, 47, the Ohio Supreme Court
noted that the lack of alternative sources for an expert’s opinion can be a factor in
considering whether an attorney’s decision to forego expert testimony is strategically
reasonable. It is certainly a factor here. Given the importance of Dr. Wiens’s opinion
to Mounts’s defense, and the fact that she was the only person who could explain her
methodology, defense counsel’s performance in abandoning her testimony about the
original slides fell below an objective standard of reasonableness.
b. Dr. Makoroff
{¶44} Mounts next argues that his trial counsel rendered deficient
performance in failing to object to Dr. Makoroff’s expert testimony when she did not
submit an expert report. We agree. Crim.R. 16(K) requires an expert witness to
prepare a written report summarizing the expert’s testimony, findings, analysis,
conclusions, or opinion and the expert’s qualifications. The purpose of this rule is to
17 OHIO FIRST DISTRICT COURT OF APPEALS
strengthen the right to a fair trial and to prevent unfair surprise by giving notice to the
defendant, so he has an opportunity to challenge the expert’s findings or
qualifications. State v. Boaston, 2020-Ohio-1061, ¶ 44. An expert may generally not
testify at trial if the expert’s written report was not disclosed to opposing counsel. Id.
at ¶ 65. However, where an expert is a treating physician, some courts have found the
report requirement satisfied by the disclosure of discovery documents, like medical
records, that contain the substance of the expert’s testimony. See, e.g., State v.
Martin, 2024-Ohio-5332, ¶ 81 (7th Dist.); State v. Heller, 2019-Ohio-4722, ¶ 8 (9th
Dist.).
{¶45} A treating physician may also testify as a fact witness without being
qualified as an expert. See, e.g., Henry v. Richardson, 2011-Ohio-2098, ¶ 33 (12th
Dist.) (holding that treating physician’s testimony about patient’s symptoms,
treatment, and health care costs was nonexpert testimony). In these instances,
Crim.R. 16(K) does not apply. State v. Fetty, 2012-Ohio-6127, ¶ 41 (11th Dist.).
{¶46} Thus, the threshold question with regard to Dr. Makoroff was whether
she testified as a treating physician or as an expert. In resolving this critical question,
we emphasize that the State expressly qualified Dr. Makoroff as an expert in child
abuse. While she provided some information about her examination of J.F. and the
injuries she observed, the crux of her testimony resounded in the kinds of opinions
only experts tend to offer. For example, Dr. Makoroff testified that J.F. was the victim
of intentional trauma and that he had not sustained the fatal injuries to his brain prior
to his overnight visit with Mounts. She also opined that a child with the type of injuries
J.F. suffered would not have presented normally, thus supporting her conclusion that
he had not been harmed before spending the night with Mounts. These opinions went
beyond describing Dr. Makoroff’s observations about J.F.’s condition and the
18 OHIO FIRST DISTRICT COURT OF APPEALS
treatment she provided. Rather, Dr. Makoroff formed conclusions, based on her
expertise, about what happened to J.F. She therefore testified as an expert who was
required to comply with Crim.R. 16(K).
{¶47} The record reflects, however, that Dr. Makoroff did not disclose an
expert report as required by that rule. To be clear, there is no direct evidence that
affirmatively documents this conclusion. No witness expressly indicated that Dr.
Makoroff failed to submit a report, and no exhibit directly states this either. This
absence, however, is not dispositive, as the circumstantial evidence overwhelmingly
permits the inference that no expert report was disclosed.
{¶48} For one thing, Dr. Makoroff’s report was not listed on the State’s
response to Mounts’s demand for discovery, even though the State identified and
disclosed Dr. Dean’s report and the report of a social worker. Dr. Makoroff was not
even disclosed as a State’s witness in this document. For another thing, the State twice
filed a “Certificate of Necessity for Expert Witness”—one for Dr. Wiens and one for Dr.
Folkerth—but it never filed such a certificate for Dr. Makoroff. This omission, like the
one in the State’s discovery response, further highlights the lack of disclosure about
Dr. Makoroff.7 To the extent that her report might have been disclosed to defense
counsel but not docketed in the record, defense counsel’s closing argument dispelled
that notion. In closing, defense counsel described each of the State’s expert disclosures
for the jury, naming each expert and the date that the expert’s report was submitted.
Conspicuously, counsel identified no such date for Dr. Makoroff. This omission is
telling. In the context of an otherwise complete accounting, it reflects that Dr.
7 The record does indicate that the State attempted to serve a subpoena on a “Kathy Makoroll,
M.D.,” but that subpoena was never endorsed and returned. Even if the defense knew Dr. Makoroff might be called as a witness, the defense was not alerted that she was going to offer an expert opinion until she did so at trial.
19 OHIO FIRST DISTRICT COURT OF APPEALS
Makoroff did not furnish an expert report. Nor do J.F.’s medical records provide a
substitute, as the records did not contain Dr. Makoroff’s opinion that J.F.’s injuries
resulted from intentional trauma.8
{¶49} The records were also silent as to Dr. Makoroff’s opinion that J.F.’s
injuries could not predate his visit to Mounts’s home. While the medical records noted
an acute fracture, Dr. Makoroff conceded on cross-examination that the age of a
fracture could not be determined through radiology alone.
{¶50} Under these circumstances, the substance of Dr. Makoroff’s expert
opinions was not adequately disclosed through the medical records, and her testimony
exceeded the permissible scope of a treating physician’s undisclosed opinions. See
Boaston, 2020-Ohio-1061, at ¶ 1, 55. Counsel’s failure to object to this testimony,
which introduced a previously-undisclosed expert opinion on a central issue in the
case, fell below an objective standard of reasonable representation and therefore
constituted deficient performance.
c. Closing Arguments
{¶51} Lastly, Mounts argues that his trial counsel was deficient for failing to
object to improper comments during the State’s closing argument. Specifically,
Mounts challenges the following statement made by the prosecutor:
But this case isn’t just a case built on the testimony of Dr. Dean, Dr.
Looman, and Dr. Folkerth, because they’re not the only doctors who
came to the conclusion that J.F. was killed by child abuse by blunt force
trauma and sustained the injuries that he sustained and that it was a
8 Notably, Hondorf testified that the medical team could not identify why J.F. stopped breathing at
their meeting two days after his death. According to Hondorf, they considered whether his injuries were the result of abuse, genetics, or an accident, but did not determine a definitive cause. J.F.’s medical records were therefore ambiguous as to his cause of death, whereas Dr. Makoroff expressed a single cause—child abuse.
20 OHIO FIRST DISTRICT COURT OF APPEALS
recent episode.
{¶52} The prosecutor then identified eight additional doctors by name whom
the State could have called as witnesses and asserted that they would have offered
testimony consistent with the State’s experts. The prosecutor said they were not called
only to avoid prolonging the trial.
{¶53} “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, 2015-Ohio-4347, ¶ 238. Prosecutors are generally
afforded significant latitude in closing arguments. State v. Ballew, 76 Ohio St.3d 244,
255 (1996). Nonetheless, “[a] prosecutor cannot express his personal belief or opinion
as to the credibility of a witness or as to the guilt of the accused or go beyond the
evidence that is before the jury when arguing for a conviction.” (Emphasis added.)
State v. Gilbert, 2011-Ohio-4340, ¶ 46 (12th Dist.). In fact, a prosecutor has a duty to
avoid efforts to obtain a conviction that exceeds the evidence presented at trial. State
v. Pino, 2008-Ohio-3578, ¶ 53 (6th Dist.).
{¶54} Contrary to this principle, the prosecutor told the jury what eight
additional expert witnesses would supposedly have said if they would have been called
to testify. No evidence presented at trial supported this conclusion. This was
improper. See id. at ¶ 54, 57.
{¶55} Where a prosecutor engages in prosecutorial misconduct in closing
argument, an objectively reasonable defense attorney should object. See State v.
Junod, 2019-Ohio-743, ¶ 54 (3d Dist.) (finding deficient performance where defense
counsel failed to object to prolonged biblical references in State’s closing argument).
But here, trial counsel failed to object to the prosecutor’s improper insinuation that
eight additional doctors would testify that J.F. suffered child abuse and that the injury
21 OHIO FIRST DISTRICT COURT OF APPEALS
was recent. This constituted deficient performance that fell below an objective
standard of reasonable representation.
B. Prejudice
{¶56} We have determined that Mounts’s trial counsel performed deficiently
in three ways—in abandoning Dr. Wiens’s testimony about the original histology
slides, in failing to object to Dr. Makoroff’s expert testimony given the absence of her
expert report, and in failing to object to the prosecutor’s improper closing argument.
We accordingly consider whether the cumulative effect of these mistakes undermined
confidence in the outcome of Mounts’s trial.9 See Gondor, 2006-Ohio-6679, at ¶ 72.
{¶57} The State’s case rested largely on expert testimony asserting that J.F.’s
skull fracture was recent, thereby supporting the inference that the fatal injury
occurred while J.F. was in Mounts’s care. Yet there was no direct evidence linking
Mounts to the alleged abuse. As a result, this was quite simply a battle of the experts.
Whichever set of experts the jury found more credible and believable was likely to
prevail. This meant that any significant error or omission by defense counsel in his
presentation of J.F.’s medical information to the jury had the potential to tip the scales
against Mounts.
{¶58} And we believe they did in this case. Collectively and individually,
defense counsel’s mistakes allowed the jury to hear unchallenged or improper
testimony while limiting the defense’s ability to present a complete and responsive
9 The State argues this court’s prior plain-error review of the prosecutor’s comment concerning the
testimony of other experts that did not testify at trial applies equally to the prejudice inquiry here. But the prior appeal addressed the impact of a single error. See Mounts, 2023-Ohio-3861, at ¶ 57- 59 (1st Dist.). In contrast, the present ineffective-assistance claim requires consideration of multiple instances of deficient performance, which we evaluate collectively in assessing prejudice. See Bradley, 42 Ohio St.3d at 146-147, quoting Strickland, 466 U.S. at 694.
22 OHIO FIRST DISTRICT COURT OF APPEALS
expert opinion.10
{¶59} With respect to Dr. Wiens specifically, the jury heard the State accuse
her of misidentifying the fracture site on the recut slide and suggest that she had not
reviewed the original slide—which the State implied showed no healing. But the jury
never heard that Dr. Wiens did review the original slide and did not change her opinion
after doing so. This omission undercut a key defense position: that J.F.’s brain
injuries predated his time with Mounts. While other experts—Dr. Chundru and Dr.
Guajardo—testified consistently with Dr. Wiens, her opinion was critical to Mounts’s
defense because she alone reviewed the original histology slide and had previously
been retained by the State. The State’s attack on her credibility rested mainly on the
assumption that she had not examined the original material. Preventing her from
clarifying this left the jury with a misleading impression.
{¶60} The jury also heard damaging testimony from Dr. Makoroff that could
have been subject to exclusion or, at the very least, a continuance to avoid the surprise
of her expert opinions at trial.11 Despite the fact that Dr. Makoroff had not disclosed
an expert report of any kind, she was permitted to opine that J.F.’s injuries were
consistent with child abuse and did not predate his time with Mounts, opinions that
far exceeded facts she could have testified to as a treatment provider.12
10 The jury’s split verdict undermines any claim that counsel’s deficient performance caused no
prejudice. Instead, the jury’s mixed findings show that the jury accepted the undisclosed expert testimony that J.F.’s injuries resulted from intentional trauma rather than accident and were recent, but disagreed about Mounts’s level of intent. The jury did not conclude that Mounts intended to kill J.F.; rather, it found that Mounts knew the abuse was likely to cause serious harm. 11 We recognize that if defense counsel had objected the State could have sought a continuance and
perhaps provided an expert report. See Crim.R. 16(L)(1) (permitting a continuance as a remedy for a discovery violation); but see State v. Bellamy, 2022-Ohio-3698, ¶ 12 (holding that a continuance is not possible midtrial to remedy the nondisclosure of a required expert report). However, the question before us is not whether the State could have cured the violation, but whether the admission of Dr. Makoroff’s undisclosed expert opinion, as it actually occurred at trial, was improper and undermined confidence in the verdict. 12 Nothing prohibited Dr. Makoroff from testifying to her personal examination of J.F. from the
23 OHIO FIRST DISTRICT COURT OF APPEALS
{¶61} This testimony was neither harmless nor cumulative. Dr. Dean’s
findings—“blunt force trauma” and a homicide classification—did not, by themselves,
establish intentional injury. Dr. Makoroff supplied the missing inference. She was the
only expert to equate blunt force trauma with child abuse, converting an otherwise
ambiguous medical finding into an assertion of intentional, rather than accidental,
harm. And she did so without prior disclosure, depriving the defense of any
meaningful opportunity to prepare, investigate, or rebut that opinion given that J.F.’s
medical records did not contain such a conclusion.
{¶62} Without this undisclosed testimony, the jury could have reasonably
viewed the medical evidence differently, including the possibility of accidental injury
or another etiology, as Dr. Wiens suggested. Allowing such an undisclosed opinion on
a central issue undermines confidence in the verdict.13
{¶63} Finally, we turn to counsel’s failure to object to the prosecutor’s closing
argument. In a case turning on expert credibility, the State’s suggestion that eight
additional doctors—none of whom testified—would have supported its theory of the
case dramatically altered the perceived balance of expert opinion. By effectively
inflating the State’s expert count from three to 11, the prosecutor invited the jury to
rely on evidence not in the record. In the absence of an objection, these comments
could only have influenced the jury’s assessment, further undermining confidence in
the outcome.
perspective of a treating physician. See Henry, 2011-Ohio-2098, at ¶ 33 (12th Dist.). In determining the prejudicial impact of Dr. Makoroff’s testimony, we solely consider the improper expert opinions she offered, not her first-hand observations of J.F.’s physical condition. 13 Dr. Makoroff’s expert testimony should have not been permitted, and, as we explain in this
opinion, appellate counsel’s failure to raise ineffective assistance of trial counsel as to this issue constitutes reversible error. See Boaston, 2020-Ohio-1061, at ¶ 1. But the mere fact that the State did not disclose Dr. Makoroff’s report at Mounts’s first trial does not preclude her from testifying at any subsequent retrial. See Bellamy, 2022-Ohio-3698, at ¶ 11-13. Provided the State complies with Crim.R. 16(K) in the future, nothing prohibits Dr. Makoroff from testifying in the future.
24 OHIO FIRST DISTRICT COURT OF APPEALS
{¶64} Even if each deficiency could not support a finding of prejudice on its
own, taken together, counsel’s errors deprived Mounts of the effective assistance of
trial counsel. Each deficiency—the failure to present Dr. Wiens’s full and accurate
opinion, the admission of undisclosed and highly consequential expert testimony from
Dr. Makoroff, and the failure to object to the prosecutor’s improper closing argument–
occurred in a case that turned entirely on expert credibility. In that context, even small
missteps carried outsized weight. Here, the errors did not merely accumulate; they
compounded one another, allowing the jury to hear misleading or undisclosed expert
opinions while preventing the defense from fully presenting the only defense expert
who reviewed the original histology slide.
{¶65} Under these circumstances, there is a reasonable probability that, but
for counsel’s deficient performance, the result of the proceeding would have been
different.
{¶66} The first assignment of error in Mounts’s reopened appeal is sustained.
C. Ineffective Assistance of Appellate Counsel
{¶67} In his fourth assignment of error, Mounts argues that his original
appellate attorney was constitutionally ineffective when he failed to raise the issue of
trial counsel’s effectiveness in his initial appeal. He additionally contends that his
appellate attorney should have raised two of his original assignments of error—the one
challenging the admissibility of Dr. Wiens’s testimony as to the original slides and the
one challenging improper comments by the prosecutor in closing arguments—as bases
for ineffective assistance of trial counsel.
{¶68} To prove ineffective assistance of appellate counsel, Mounts bears the
burden of demonstrating that “prejudicial errors were made in the trial court and that
ineffective assistance of appellate counsel in the prior appellate proceedings prevented
25 OHIO FIRST DISTRICT COURT OF APPEALS
these errors from being presented effectively to the court of appeals.” State v. Leyh,
2022-Ohio-292, ¶ 22, quoting 1993 Staff Notes to App.R. 26(B). Thus, our prior
judgment may not be changed unless Mounts shows “that the direct appeal was
meritorious and failed because appellate counsel rendered ineffective assistance under
the two-prong Strickland standard.” Id. at ¶ 24.
{¶69} We have already determined that Mounts received ineffective assistance
from trial counsel. Thus, the failure of Mounts’s original appellate counsel to raise the
issue was both deficient and prejudicial. Had Mounts raised ineffective assistance of
counsel in his initial appeal, we would have sustained this assignment of error, as we
do now, and Mounts’s conviction would have been reversed. We accordingly hold that
Mounts was deprived of his constitutional right to the effective assistance of appellate
counsel. Mounts’s fourth assignment of error is sustained.
D. Remaining Assignments of Error
{¶70} Given our disposition of Mounts’s first and fourth assignments of error,
his second and third assignments of error are moot, and we do not address them. The
assignments of error raised in Mounts’s initial appeal are also moot.
Conclusion
{¶71} Having determined that Mounts’s constitutional right to the effective
assistance of counsel both at trial and on appeal was violated, we vacate our prior
judgment in Mounts’s appeal, reverse his conviction for murder, and remand this
cause for further proceedings consisting with this opinion and the law.
Judgment accordingly.
ZAYAS and CROUSE, JJ., concur.