State v. Zink

2026 Ohio 868

• Court: Ohio Court of Appeals
• Decided: March 16, 2026
• Docket: CA2025-04-026; CA2025-06-047
• Status: Published

Opinion

[Cite as State v. Zink, 2026-Ohio-868.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, : CASE NOS. CA2025-04-026 Appellee, : CA2025-06-047

vs. : OPINION AND JUDGMENT ENTRY THOMAS LEE ZINK, : 3/16/2026

Appellant. :

:

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2024 CR 000160

Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant Prosecuting Attorney, for appellee.

Paul Croushore and Clyde Bennett II, for appellant.

____________ OPINION

SIEBERT, J.

{¶ 1} Thomas Lee Zink appeals his conviction for 11 counts of gross sexual

imposition and six counts of unlawful sexual conduct with a minor. Zink argues the trial

court committed three errors at trial: (1) overruling objections regarding a detective's lay Clermont CA2025-04-026 CA2025-06-047

testimony on the frequency of delayed disclosures in sexual abuse cases; (2) limiting

Zink's cross-examination of a victim as to purportedly false allegations she made against

another person (her father); and (3) overruling his objection to statements made by the

prosecution during closing argument about defense counsel and Zink's mother.

{¶ 2} Upon review, we overrule each assignment of error. We conclude the trial

court did not abuse its discretion in allowing a detective's lay testimony regarding the

frequency of delayed disclosures in child abuse cases because he was trained and

experienced on the topic. In addition, the trial court properly limited questioning on the

victim's purported prior and false allegation of sexual assault by her father because such

questioning was based on inadmissible extrinsic evidence that, at best, tangentially

referred to the issue. Finally, the prosecutor's sarcastic and pointed comments about

Zink's counsel and mother during closing argument were made as parts of larger,

permissible arguments and were not prejudicial to the overall fairness of Zink's trial.

Background

{¶ 3} Though the factual and procedural history of this case is long and at times

confusing, we need only examine specific parts of the record to address Zink's

assignments of error. In summary, a grand jury indicted Zink in February of 2024 on 12

counts of gross sexual imposition, 12 counts of unlawful sexual conduct with a minor, two

counts of disseminating matter harmful to juveniles, two counts of endangering children,

and two counts of corrupting another with drugs. Zink pled not guilty to the charges of the

indictment, and the matter proceeded to a jury trial in February 2025.

{¶ 4} During trial, the State argued that Zink sexually abused his two stepsisters,

Jane and Alice.1 Jane and Alice are the daughters of Zink's stepfather, Jeff. Zink's sexual

1. "Alice" and "Jane" are pseudonyms adopted for this opinion for the purposes of privacy and readability. -2- Clermont CA2025-04-026 CA2025-06-047

abuse of Jane involved Zink having her straddle his lap while he would grind his erect

penis against her and touch her breasts, buttocks, and vagina. The sexual abuse of Alice

involved digital penetration, fellatio, and vaginal intercourse. Alice and Zink also

exchanged explicit photos and messages and used marijuana together. These instances

of abuse spanned from 2016 to 2019.

Delayed Disclosure

{¶ 5} Jane and Alice did not disclose their abuse until telling their paternal

grandmother in March 2021, and this delayed disclosure became a point of contention at

trial. During trial, the State called upon Emily Harmon as an expert witness. Harmon

worked as a social worker for the Mayerson Center for Safe and Healthy Children at

Cincinnati Children's Hospital Medical Center where she conducted over 2,000 forensic

interviews, including those of Jane and Alice. Harmon testified that in her experience,

"most" of the children she interviewed delayed the disclosure of their abuse. Harmon

asserted there were various reasons for this, including shame, the abuser was a family

member, fear they would not be believed, and that disclosing would get themselves or

their family in trouble. However, on cross-examination by Zink's counsel, Harmon agreed

she had no specific opinion on why Jane and Alice delayed their disclosure or whether

they were telling the truth and had, in fact, been abused.

{¶ 6} Detective Swallen, the State's representative at trial and one of the

detectives on the case, also testified at trial. His professional experience included 17

years in law enforcement. In the years immediately preceding Zink's trial, Swallen's

investigations focused predominately on sexual or physical abuse of children. In addition

See State v. Cansler, 2025-Ohio-2558, ¶ 1, fn. 1 (12th Dist.), Supreme Court of Ohio Writing Manual 115 (3rd Ed. 2024). -3- Clermont CA2025-04-026 CA2025-06-047

to investigating approximately 100 child sexual assaults, Det. Swallen regularly received

continuing education on child abuse and taught educators on the symptoms and warning

signs of child abuse.

{¶ 7} During trial, Det. Swallen testified that in his experience, "over seventy

percent of child victims are going to disclose usually five years later in life or after the

event happened." Zink objected to this testimony, but the trial court overruled the

objection holding that Zink could press the issue further on cross-examination. Det.

Swallen subsequently testified that delayed disclosure often occurs because the "victims

like to disassociate with the situation and part of that is they like to rid themselves of, of

that event." Zink did not specifically object to this testimony at trial.

Prior Allegation of Abuse?

{¶ 8} At another point during trial—during the defense's cross-examination of

Alice—Zink sought to impeach her testimony by questioning her about a previous,

purportedly false allegation that her father, Jeff, had sexually abused her. During a court

recess, Zink's counsel referred to a transcript from Jeff's divorce from Tiffonie Caudill,

Zink's mother, in which he testified that Alice "didn't want to come over for two months"

during a dispute Jeff had with his previous wife. According to Zink's counsel—who spoke

with Zink and Tiffonie—this statement in the transcript referred to a period of time where

Alice was removed from Jeff's home after she—purportedly—falsely alleged Jeff sexually

abused her. Zink's counsel and the trial court agreed that while counsel could not use the

transcript as extrinsic evidence, counsel could ask Alice if she had made a false allegation

against Jeff and would be "stuck" with her answer to the question. When counsel

subsequently asked Alice about whether she had made a false allegation of sexual abuse

against Jeff, Alice simply replied "no."

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Closing Arguments

{¶ 9} During closing arguments, Zink's counsel discussed Harmon's cross-

examination testimony and noted, "She gives no opinion whatsoever on the credibility of

the claimants or the alleged victim. She said that . . . the purpose of [her] interviewing

[victims] is to gather information to pass onto the rest of [her] team for treatment and

diagnosis." Zink's counsel further observed that Harmon "did not have an opinion about

whether or not Jane or Alice were telling the truth."

{¶ 10} The prosecutor later remarked that while Zink's counsel "want[ed] to take

all the credit for Harman" agreeing that she had no opinion about the veracity of Jane and

Alice's allegations, Harmon "had to" agree because "[t]hat's not her job. That's not her

role. She is a neutral witness. I would never have asked her does this mean that she was

abused by this man? Never . . . But he wants to take all the credit for it. Fine." The trial

court overruled the subsequent objection of Zink's counsel but cautioned the prosecutor

that those arguments were "a little more personal maybe than it needs to be."

{¶ 11} The prosecutor later called Tiffonie "an evil, wicked stepmother" to Alice and

Jane and asserted that if Zink were "so innocent you better believe [Tiffonie] would have

had those [phone/message] records. You'd better believe the police would have had his

cell phone." The trial court overruled Zink's immediate objection, asserting the statements

were not evidence.

The Verdict and Sentencing

{¶ 12} The jury found Zink guilty of 11 counts of felony gross sexual imposition and

six counts of unlawful sexual conduct with a minor. The other charges were ultimately

dismissed. At sentencing, the trial court imposed an aggregate prison term of 18 years.

{¶ 13} Zink now appeals.

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First Assignment of Error – Lay v. Expert Testimony

{¶ 14} Zink argues the trial court erred in allowing Det. Swallen's testimony

regarding delayed disclosures because the testimony on this "key issue" improperly

bolstered their credibility. Zink postulates that Harmon's "weak" expert testimony on

delayed disclosures compelled the State to bolster it with Det. Swallen's lay opinions. Det.

Swallen's testimony, Zink asserts, should have been required to meet expert testimony

requirements.

Standard of Review and Applicable Law

{¶ 15} "'A trial court has considerable discretion in admitting the opinion testimony

of lay witnesses.'" State v. Speis, 2023-Ohio-1422, ¶ 30 (12th Dist.), quoting State v.

Marshall, 2010-Ohio-5160, ¶ 43 (2d Dist.). However, an abuse of discretion, meriting

reversal, occurs where the trial court's decision is "unreasonable, arbitrary, or

unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶ 16} A witness "may testify as an expert" if all of the following are demonstrated:2

(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;

(C) The witness' testimony is based on reliable scientific, technical, or other specialized information and the expert's opinion reflects a reliable application of the principles and methods to the facts of the case . . .

(Emphasis added.). Evid.R. 702. In order to testify as an expert witness, "a written report

2. "In statutory construction, the word 'may' is construed as permissive while the word 'shall' is construed as mandatory, unless there appears a clear and unequivocal legislative intent that these words receive a construction other than their ordinary usage." State ex rel. Moore v. Fornshell, 2025-Ohio-65, ¶ 19 (12th Dist.). -6- Clermont CA2025-04-026 CA2025-06-047

summarizing the expert witness's testimony, findings, analysis, conclusions, or opinion .

. . includ[ing] a summary of the expert's qualifications" must be timely prepared and

disclosed to all parties prior to trial Crim.R. 16(K). "Failure to disclose the written report

to opposing counsel shall preclude the expert's testimony at trial." Id.

{¶ 17} If a 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." Evid.R. 701. The Supreme

Court of Ohio recognized that nonexpert, lay opinion evidence is proper on matters

outside of common knowledge when the witnesses' opinion is "rationally based on

firsthand observations and helpful in determining a fact in issue." State v. McKee, 2001-

Ohio-41, ¶ 13. Stated differently, if the lay opinion is "not based on specialized knowledge

within the scope of Evid.R. 702, but rather are based upon a layperson's personal

knowledge and experience" such testimony is permissible. Id.

{¶ 18} Though lay witnesses were traditionally "required to testify as to facts rather

than opinions . . . the practical possibility of distinguishing between fact and opinion

proved to be elusive, if not impossible to draw" and led to the creation of evidentiary rules

that removed this rigid distinction. Id. at 296. "[C]onsistent with this emerging view . . .

courts have permitted lay witnesses to express their opinions in areas in which it would

ordinarily be expected that an expert must be qualified under Evid.R. 702." Id.

{¶ 19} As a result of this trend, "[i]t is well-settled that a police officer may testify

concerning matters that are within his experience and observations that may aid the trier

of fact in understanding the other testimony pursuant to Evid.R. 701." State v. Tatum,

2011-Ohio-907, ¶ 17 (10th Dist.); State v. Speis, 2023-Ohio-1422, ¶ 31 (12th Dist.), quoting

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Tatum. More specifically, courts have permitted police officer lay opinion testimony

concerning children's delayed disclosure of sexual abuse. "[W]here an officer who is

trained in child abuse cases provides testimony arising from his or her experience about

delayed disclosures, such as that it is common for children to delay their disclosure, this

testimony is admissible as lay opinion testimony." State v. Sellers, 2022-Ohio-581, ¶ 30

(11th Dist.), citing State v. Jones, 2015-Ohio-4116, ¶ 111 (2d Dist.).

Analysis

{¶ 20} In light of this clear precedent, we conclude the trial court did not abuse its

discretion in admitting Det. Swallen's testimony concerning Alice and Jane's delayed

disclosure of being sexually abused by Zink. Det. Swallen possessed vast experience on

the topic of delayed disclosures, including (1) 17 years of experience as a law

enforcement officer, (2) several years of more specific experience in investigating

approximately 100 child abuse cases, and (3) regularly teaching about and attending

seminars/continuing education on child abuse. Nonetheless, Zink asserts that parts of

Det. Swallen's testimony—such as his assertion that "over seventy percent of child

victims" delay their disclosures—rose to a level of "specificity and certainty lacked any

basis under Evid.R. 702, was prejudicial . . . unfairly biased the jury, and violated Mr.

Zink's right to a fair trial." While Swallen's testimony may have indeed been more specific

and certain than simply saying its delayed disclosures are "common," that does not mean

his testimony could not be "rationally based on his training and personal experience in

child abuse cases, [or] aid[] the trier of fact in determining [Alice and Jane's] credibility"

Jones at ¶ 111. Zink had the ability to question and challenge the specificity of Det.

Swallen's statements at trial but did not do so. We therefore ultimately conclude the trial

court did not abuse its discretion in admitting this testimony.

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{¶ 21} We overrule this assignment of error.

Second Assignment of Error – Limiting Cross-Examination of Alice Regarding Prior, Purportedly False Allegations of Abuse

{¶ 22} Next, Zink argues the trial court erred in not permitting him to further cross

examine Alice over whether she had a made a false allegation against Jeff as it was

probative of her credibility. Zink contends "the evidence was admissible under Evid.R.

616(A) to show bias, prejudice, or motive for misrepresentation."

{¶ 23} There are two main issues with Zink's contention. First is that Zink does not

identify the "evidence" he claims was improperly excluded. If Zink is referring to testimony

Alice may have provided if he had been permitted to further cross-examine her on the

subject, the record does not (indeed, cannot) reflect what that testimony would have

been. Assuming for the sake of argument Zink refers to the transcript from Jeff's divorce

proceeding, we fail to see any error by the trial court in not admitting it because Zink's

trial counsel agreed that the transcript could not be used as extrinsic evidence to prove

Alice's potential character for untruthfulness. Generally speaking, extrinsic evidence

cannot be used to prove an individual's character for untruthfulness. See Evid.R. 608.

Moreover, none of the statements within the transcript were Alice's—they were Jeff's—

and they were, at best, ambiguous statements that possibly alluded to an allegedly false

allegation of sexual abuse in the past. The only reason in the record for us to believe

even this much is the assertion by Zink's trial counsel that Zink and Tiffonie told him it

was so. Such tangential support ultimately cannot be the basis for extended questioning

on this issue.

{¶ 24} The second issue with Zink's argument is even if we were to assume Jeff's

testimony referred to a false allegation of abuse by Alice against him, such falsity would

perhaps show bias, prejudice, or motivation for misrepresentation against Jeff, but not

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Zink.

{¶ 25} We also overrule this assignment of error.

Third Assignment of Error – Prosecutorial Misconduct

{¶ 26} Finally, Zink argues the prosecutor's comments during closing arguments

about defense counsel (regarding the defense's cross-examination of Harmon being

effective) and Zink's mother (including her being "an evil, wicked stepmother") were too

personal and derogatory. As a result, Zink asserts the trial court erred in overruling his

objections.

{¶ 27} For remarks in closing arguments to be deemed prosecutorial misconduct,

the statements must be improper and must be prejudicial to a defendant's substantial

rights. State v. Miller, 2021-Ohio-162, ¶ 44 (12th Dist.). Stated differently, "a defendant

must show that the improper acts were so prejudicial that the outcome of the trial would

clearly have been different had those improper acts not occurred." State v. Kaufhold,

2020-Ohio-3835, ¶ 42 (12th Dist.). As a result, "[t]he focus of 'an inquiry into allegations

of prosecutorial misconduct is upon the fairness of the trial, not upon the culpability of the

prosecutor.'" State v. Combs, 2020-Ohio-5397, ¶ 19 (12th Dist.), quoting State v. Gray,

2012-Ohio-4769, ¶ 57 (12th Dist.); see also Miller, 2021-Ohio-162, at ¶ 45. Ultimately, a

defendant is entitled to "a fair trial, not a perfect one." State v. Kaaz, 2017-Ohio-5669, ¶

102 (12th Dist.).

{¶ 28} Here, the prosecutor's comments about defense counsel, when viewed

holistically, clearly sought to establish to the jury that Harmon was never meant to testify

as to her opinion on the truth or falsity of Alice and Jane's allegations. Her job was merely

to document them. Viewed in that light, the prosecutor's comments merely expressed

some frustration that defense counsel put Harmon into a corner the prosecutor believed

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the witness should not have been placed in to begin with.

{¶ 29} Similarly, the prosecutor's comments about Tiffonie sought to demonstrate

to the jury that (1) Tiffonie did not have a good relationship with the girls, and (2) her

testimony in favor of Zink—her biological child—could be viewed as an attempt to help

cover up his crimes. While the prosecutor's comments could have perhaps been less

sarcastic and personal (a sentiment the trial court also expressed), none of the comments

rose to the level of being improper. Even if they had, we cannot conclude the result of the

trial would have been different were they not made because, again, they were part of

larger arguments made by the prosecutor regarding the questioning of witnesses and

witness motivations.

{¶ 30} We overrule this final assignment of error.

{¶ 31} Judgment affirmed.

HENDRICKSON, P.J., and M. POWELL, J., concur.

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JUDGMENT ENTRY

The assignments of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, affirmed.

It is further ordered that a mandate be sent to the Clermont County Court of Common Pleas for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27.

Costs to be taxed in compliance with App.R. 24.

/s/ Robert A. Hendrickson, Presiding Judge

/s/ Mike Powell, Judge

/s/ Melena S. Siebert, Judge

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