State v. Walls

104 N.E.3d 280

2018 Ohio 329

STATE of Ohio, Appellee

v.Michael WALLS, Appellant

Nos. E–16–027

E–16–028

Court of Appeals of Ohio, Sixth District, Erie County.

Decided: January 26, 2018

Kevin J. Baxter, Erie County Prosecuting Attorney, and Pamela A. Gross, Assistant Prosecuting Attorney, for appellee.

Loretta Riddle, for appellant.

DECISION AND JUDGMENT

MAYLE, J.

{¶ 1} In this consolidated appeal, defendant-appellant, Michael Walls, appeals the April 8, 2016, and May 18, 2016 judgments of the Erie County Court of Common Pleas. For the following reasons, we affirm, in part, and reverse, in part, the trial court's April 8, 2016 judgment, and we affirm its May 18, 2016 judgment. Because the trial court's error was prejudicial to Walls, we remand this matter for a new trial on all charges.

I. Background

{¶ 2} Michael Walls is the father of Me.W. and Mi.W. In June of 2013, Erie County Children's Services ("ECCS") received a referral alleging that then-16–year–old Me.W. and 13–year–old Mi.W. were not enrolled in school, were being locked in the house, and were being sexually abused by their father. On June 25, 2013, caseworker Rebecca Boger initiated a home visit. Detective Ken Nixon, of the Sandusky police department, accompanied her because Boger had been informed that there may be guns in the home.

{¶ 3} Boger and Detective Nixon knocked on the doors of the Walls' home, but no one answered. While they were discussing a plan of action, E.W., Walls' mother and the children's grandmother, drove up with the children in her car. They asked E.W. where they could find her son, and they talked with her about some of the allegations. Boger approached the vehicle to speak with the children, but they rolled up the windows and refused to speak to her. Detective Nixon approached the vehicle and Me.W. shouted, "Don't touch me!"

{¶ 4} Detective Nixon phoned Walls, and Walls indicated that he was on his way home. When he arrived, Boger and Detective Nixon briefly spoke with him about the allegations concerning the lack of schooling, sexual abuse, and guns in the home. Walls indicated that he would be contacting an attorney, and the home visit ended.

{¶ 5} Boger interviewed several family members, including the children's mother, M.S. Boger learned that Walls and M.S. married when Walls was in his twenties and M.S. was just 14 years old. The couple had four children together, and M.S. left the marriage when Me.W. was about three years old. After the interviews, Boger continued to have concerns about the well-being of the children, and on June 27, 2014, ECCS obtained an ex parte emergency order for custody. Detective Nixon took the order to the Walls' home that day to personally serve it, but no one was home. He left a notice on the door.

{¶ 6} On June 28, 2013, the children could not be located. Detective Nixon spoke with Walls on the phone, and Walls told him to contact his attorney, Richard Grubbe. Walls then hung up. Detective Nixon called him back immediately and left a message that he needed to surrender the children. Detective Nixon then called Grubbe.

{¶ 7} By July 2, 2013, Walls had not surrendered the children. Detective Nixon left messages for Walls on July 2 and July 3. On July 15, 2013, Nixon spoke with the prosecutor's office about charging Walls with interference with custody. The next day, by tracking the signals sent from Walls' phone to various cell phone towers, it was determined that the family was in Florida. Law enforcement officials there apprehended Walls, and took the children into custody. ECCS employees flew to Florida and brought the children back to Ohio. Me.W. and Mi.W. were placed with foster families.

{¶ 8} Boger separately interviewed the children on July 26, 2013, at Michael's House, a child advocacy center. Both were initially nervous and polite, but became more aggressive, demanding that they be appointed an attorney. Mi.W. had a severe speech impediment suggestive of hearing difficulties. And concerns remained that Me.W. was being sexually abused. The children were referred to Randall Schlievert, M.D., a pediatrician specializing in child abuse, for examinations.

{¶ 9} Dr. Schlievert interviewed the children, along with Kim Jones, the child abuse clinic coordinator for Mercy Children's Hospital. They generated a report summarizing those interviews. Neither Me.W. nor Mi.W. disclosed physical or sexual abuse. Me.W. surmised that her older brother had made up rumors about her dad, and she told Dr. Schlievert that her brother is "crazy." She denied that she had ever engaged in sexual relations with anyone, but provided intimate details about masturbation. She was adamant that she wanted to go home. Mi.W. expressed that he missed his sister very much and remarked at one point that he could protect her.

{¶ 10} Dr. Schlievert observed in his report that Mi.W.'s speech was impaired and he was difficult to understand. As to Me.W., he noted that she was guarded, that she controlled the interview, and that she maintained a locked gaze during the interview, making him uncomfortable. He described her affect and behavior as "disturbing," but ultimately deferred any forensic exams because (1) there had been no disclosure of sexual abuse, and (2) Me.W. disclosed masturbation techniques that could account for any exam findings. He concluded that no further medical care was needed at his office.

{¶ 11} Boger conducted second interviews of Mi.W. on September 16, 2013, and Me.W. on September 20, 2013, after receiving information alleging that their older brother had sexually abused Me.W. She interviewed Me.W. a third time on November 22, 2013, after reviewing images on her laptop that were sexual in nature. No disclosures of sexual abuse by Walls were made at those interviews.

{¶ 12} On May 21, 2014, Me.W. for the first time disclosed to a teacher that she had been sexually abused by her father. On May 27, 2014, she told her father that she had disclosed this information, and shortly after telling him this, she recanted. In June of 2014, she went to the Sandusky police station and reaffirmed her earlier disclosures of abuse. She said that she recanted because her father told her to, and insisted that she had, in fact, been subjected to sexual abuse by her father. A review of telephone records revealed that Me.W. borrowed a friend's phone on May 27, 2014, from which she called her father.

{¶ 13} Walls was indicted on August 6, 2013, on two counts of interference with custody. These charges were premised on Walls transporting the children to Florida after receiving notice of the ex parte order granting custody to ECCS. On July 11, 2014, a 28–count indictment was issued, charging Walls with 10 counts of rape of a victim less than 10 years of age, violations of R.C. 2907.02(A)(1)(b) ; six counts of rape of a child less than 13 years of age, violations of R.C. 2907.02(A)(1)(b) ; eight counts of rape by force or threat of force, violations of R.C. 2907.02(A)(2) ; one count of pandering sexually oriented matter involving a minor, a violation of R.C. 2907.322(A)(1) ; and three counts of pandering obscenity involving a minor, violations of R.C. 2907.321(A)(3). Following a jury trial, Walls was convicted of all charges, save the pandering sexually oriented matter count, which was dismissed before trial.

{¶ 14} Walls appealed the trial court judgments, and he assigns the following errors for our review:

ASSIGNMENT OF ERROR NO. I:

A TRIAL COURT ERRS AND ABUSES ITS DISCRETION AND PREJUDICES A DEFENDANT WHEN IT ALLOWS AN EXPERT WITNESS FOR THE STATE TO TESTIFY WITHOUT THE STATE PROVIDING AN EXPERT REPORT PURSUANT TO CRIM.R. 16(K) [.]

ASSIGNMENT OF ERROR NO. II:

A TRIAL COURT ERRS AND ABUSES ITS DISCRETION WHEN THE COURT TELLS A WITNESS HOW TO ANSWER A QUESTION [sic] AND THE WITNESS ANSWERS THE QUESTIONS AS INSTRUCTED BY THE COURT[.]

ASSIGNMENT OF ERROR NO. III:

A TRIAL COURT ERRS, ABUSES ITS DISCRETION, AND VIOLATES A DEFENDANT'S CONSTITUTIONAL RIGHT WHEN A COURT ALLOWS AND INSTRUCTS PRIOR COUNSEL TO TESTIFY ABOUT PRIVILEGED AND CONFIDENTIAL COMMUNICATIONS[.] [sic]

ASSIGNMENT OF ERROR NO. IV:

A TRIAL COURT ERRS BY NOT DISMISSING [sic] THE PANDERING OBSCENITY COUNTS AS THE STATE FAILED TO PROVE AN ELEMENT OF THE CHARGES[.]

ASSIGNMENT OF ERROR NO. V:

MICHAEL WALLS RECEIVED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL FAILED TO MAKE OBJECTIONS TO PLAIN ERROR[.]

ASSIGNMENT OF ERROR NO. VI:

A TRIAL COURT ERRS BY NOT RETURNING DEFENDANT'S PROPERTY AFTER TRIAL[.]

II. Law and Analysis

{¶ 15} Walls challenges the trial court's decision to allow testimony from Dr. Schlievert (first assignment of error), and from Walls' former counsel (third assignment of error). He questions the trial judge's impartiality because he assisted a witness in wording an answer to a question on cross-examination (second assignment of error). He maintains that the evidence was not sufficient to support his convictions for pandering obscenity involving a minor (fourth assignment of error). He insists that his trial counsel was ineffective for failing to object to certain evidence (fifth assignment of error). And he argues that the trial court improperly denied his motion for return of property (sixth assignment of error). We address each of Walls' assignments of error.

A. Crim.R. 16(K)

{¶ 16} In his first assignment of error, Walls contends that the trial court erred by allowing Dr. Schlievert to testify beyond the scope of his written report, in violation of Crim.R. 16(K). He also contends that Dr. Schlievert's opinions were inadmissible because they were not stated to a reasonable degree of medical probability.

1. Dr. Schlievert's testimony exceeded the scope of his written report.

{¶ 17} Dr. Schlievert interviewed Me.W. and Mi.W. on August 1, 2013, and issued a report summarizing those interviews. The state produced this report to Walls well before trial, but in its opening statement, it became clear that it intended to elicit opinions that exceeded the scope of...