State v. Speis , 2023 Ohio 1422 ( 2023 )


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  • [Cite as State v. Speis, 
    2023-Ohio-1422
    .]
    IN THE COURT OF APPEALS
    TWELFTH APPELLATE DISTRICT OF OHIO
    CLERMONT COUNTY
    STATE OF OHIO,                                    :
    Appellee,                                  :        CASE NO. CA2022-07-032
    :                  OPINION
    - vs -                                                            5/1/2023
    :
    ERIC J. SPEIS,                                    :
    Appellant.                                 :
    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
    Case No. 2020 CR 01043
    Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas Horton, Assistant
    Prosecuting Attorney, for appellee.
    Samuel H. Shamansky Co., L.P.A., and Samuel H. Shamansky and David J. Betras, for
    appellant.
    HENDRICKSON, J.
    {¶1}     Appellant, Eric Speis, appeals from his conviction in the Clermont County
    Court of Common Pleas after a jury found him guilty of seven counts of gross sexual
    imposition. For the reasons outlined below, we affirm his convictions.
    I. Facts and Procedural History
    {¶2}     In December 2020, Speis was indicted on seven counts of gross sexual
    Clermont CA2022-07-032
    imposition under R.C. 2907.05(A)(4), all third-degree felonies. The charges stemmed from
    allegations that Speis had sexually abused M.R., the eight-year-old daughter of his
    girlfriend, over an eight-month period. At the time, Speis was living with his girlfriend, M.R.
    and M.R.'s maternal grandmother in the girlfriend's home. In May of 2020, the girlfriend
    observed Speis sitting in a recliner with M.R. on his lap. When M.R. saw her mother, she
    jumped off Speis's lap and ran to the couch. Later, M.R. revealed that she and Speis had
    been kissing when her mother saw them. The girlfriend had Speis run an errand with her
    so she could confront him about the incident. When she did, Speis remained silent and did
    not respond.
    {¶3}    When they returned to the home, the girlfriend and grandmother gathered
    Speis and M.R. into the living room so that they could address Speis about the allegations
    M.R. had made. Initially, Speis acted like he didn't know what they were talking about but
    later admitted to "innocuous touching" and claimed he was trying to teach M.R. so that boys
    would not take advantage of her.
    {¶4}    At this point, the girlfriend became irate and started yelling at Speis and told
    him to leave. She then went outside and started throwing around patio furniture that was
    on the back deck. This caused the neighbors to call the police. When the girlfriend went
    back inside the home, she found Speis with a gun to his head threatening to kill himself.
    Fortunately, the girlfriend and grandmother were successful in persuading him not to go
    through with it.
    {¶5}    Sometime later, two police officers arrived at the scene. M.R. told them that
    Speis had made her touch his penis. The police then found Spies packing up his belongings
    and he advised them that he had been kicked out of the house by his girlfriend. Spies
    appeared calm and questioned why they were there. The police asked him to make a
    statement, but he declined and left.
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    {¶6}   M.R. was taken to Cincinnati Children's Hospital where she revealed that
    Speis had engaged in a variety of sexual acts with her. She also reported that Speis had
    told her not to tell anybody. A physical examination disclosed an abrasion in her vagina.
    {¶7}   In April 2022, the case was tried to a jury. During opening statements, the
    prosecutor told the jury:
    We'll hear that Officers Taylor and Rees responded to that call
    [from the neighbor] about the disturbance and encountered
    [M.R.'s mother] and [grandmother]. We'll hear that by the time
    that they arrived the Defendant was already packing up his
    belongings. He had been kicked out of the house by [Mother].
    But at first he acted like he had no idea what was going on when
    they got there. We'll hear that [Mother] and [Grandmother] told
    the officers what had happened. They approached the
    Defendant to make a statement but he declined.
    (Emphasis added.) When the prosecutor finished, the trial court sua sponte questioned
    whether Speis's Fifth Amendment privilege against self-incrimination had been impinged
    upon by the prosecutor's comment about Speis's silence. Speis then moved for a mistrial.
    The court denied the motion and instead gave the jury a limiting instruction.
    {¶8}   The trial proceeded with the testimony of several witnesses. M.R. testified
    about the sexual conduct that occurred. Her mother testified about her discovery of the
    abuse. The two officers mentioned above in opening statements testified that when they
    arrived Speis was packing up his car and that he soon left. One officer testified that Speis
    was not arrested that day, was not handcuffed, and that he was free to leave pending further
    investigation. Speis did not take the stand at trial.
    {¶9}   Also testifying was Cecelia Freihofer, a social worker and a forensic
    interviewer at the Mayerson Center at Cincinnati Children's Hospital, where M.R.'s mother
    had taken her after discovering the sexual abuse. Freihofer conducted a forensic interview
    with M.R. While she conducted the interview, Freihofer had Mother complete a Traumatic
    Symptoms Checklist for Young Children (TSCYC). Freihofer explained that the TSCYC
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    was a screening tool that listed several behaviors potentially indicative of mental stress and
    asked the parent to identify the behaviors the parent has noticed and their frequency. After
    the interview, she reviewed the TSCYC with Mother. Based on Mother's responses, the
    TSCYC was positive for trauma symptoms and sexual concerns. Freihofer found that what
    M.R. told her during the interview was consistent with inappropriate sexual contact and
    indicated abuse. Freihofer recommended that Mother seek mental health treatment for
    M.R. Freihofer summarized her findings in a written "Report of Suspected Child Abuse" for
    the Mayerson Center, which was admitted into evidence.
    {¶10} Freihofer testified about her extensive training and experience and explained
    how forensic interviews at the Mayerson Center were conducted. She recounted what M.R.
    told her about the abuse and found that it was consistent with inappropriate sexual contact
    and indicated abuse. Concerning the TSCYC, Freihofer testified that it was not a diagnostic
    tool and was not made part of M.R.'s medical record. Rather, it was simply a screening tool
    that could indicate if further mental health treatment would be beneficial. Freihofer said that
    the TSCYC was only one piece of information that she used in her recommendations for
    follow-up care. She was clear that she did not diagnose M.R. as being traumatized, nor did
    she use the TSCYC to conclude that M.R. was definitively positive for trauma symptoms
    and sexual concerns. Freihofer noted that there have been many occasions where the
    TSCYC was negative for trauma symptoms and sexual concerns and that she still
    recommended follow-up mental health treatment. In this case, said Freihofer, based on her
    interview with M.R., she would have made the same recommendation for follow-up mental
    health treatment regardless of what the TSCYC showed.
    {¶11} The jury found Speis guilty on all counts. The trial court sentenced him to a
    total of 20 years in prison and designated him as a Tier II sex offender.
    {¶12} Speis now appeals his conviction raising two assignments of error.
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    II. Analysis
    {¶13} Speis first challenges the denial of his motion for a mistrial and then, secondly,
    challenges the admission of Freihofer's testimony.
    A. The denial of Speis's motion for a mistrial
    {¶14} The first assignment of error alleges:
    {¶15} THE TRIAL COURT ERRED BY FAILING TO GRANT A MISTRIAL AFTER
    THE    PROSECUTOR,         DURING      OPENING      STATEMENT        AND    WITHOUT       ANY
    REASONABLE JUSTIFICATION, COMMENTED UPON APPELLANT'S INVOCATION OF
    HIS CONSTITUTIONAL RIGHTS TO COUNSEL AND AGAINST SELF-INCRIMINATION.
    {¶16} The Fifth Amendment states that "[n]o person * * * shall be compelled in any
    criminal case to be a witness against himself." Fifth Amendment to the U.S. Constitution.
    Speis contends that the prosecutor's comment in opening statements on his pre-arrest
    silence improperly impinged on his Fifth Amendment privilege against self-incrimination.
    The state agrees that the comment was improper but argues that it was harmless. We
    disagree that the comment was improper.
    {¶17} Our conclusion is based on Salinas v. Texas, 
    570 U.S. 178
    , 
    133 S.Ct. 2174 (2013)
    , in which a plurality of the U.S. Supreme Court held that the use of a defendant's
    pre-arrest, pre-Miranda silence as substantive evidence of guilt does not violate the Fifth
    Amendment privilege against self-incrimination if the defendant fails to expressly invoke the
    privilege. In Salinas, the defendant agreed to accompany the police to the station for
    questioning.   There was no dispute that the interview was noncustodial and that the
    defendant was not read Miranda warnings. The Court described what happened during the
    interview:
    For most of the interview, petitioner answered the officer's
    questions. But when asked whether his shotgun "would match
    the shells recovered at the scene of the murder," * * * petitioner
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    declined to answer. Instead, petitioner "[l]ooked down at the
    floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in
    his lap, [and] began to tighten up." * * * After a few moments of
    silence, the officer asked additional questions, which petitioner
    answered.
    Salinas at 182. The defendant did not testify at trial. Over the defendant's objection, the
    prosecutor used the defendant's reaction to the officer's question during the interview as
    substantive evidence of guilt. The Court held that the defendant's silence could be used as
    evidence against him because he did not clearly and unambiguously invoke his Fifth
    Amendment right to remain silent. Therefore, the defendant's Fifth Amendment claim failed
    "because he did not expressly invoke the privilege against self-incrimination in response to
    the officer's question." Id. at 181.
    {¶18} The Court explained that the Fifth Amendment has an "express invocation
    requirement." Id. at 183. The "general rule" is that "a witness must assert the privilege to
    subsequently benefit from it." Id. at 186. Silence is not sufficient to invoke the privilege.
    The express invocation requirement is subject to only two exceptions. Id. at 183. The first
    is that a defendant need not take the stand at trial and assert the privilege. Id. at 184. And
    the second is when the circumstances of the questioning are coercive (e.g., custodial
    interrogation). Id. at 185. The "critical question," said the Court, is "whether, under the
    'circumstances' of this case, [the defendant] was deprived of the ability to voluntarily invoke
    the Fifth Amendment." Id. at 186. "So long as police do not deprive a witness of the ability
    to voluntarily invoke the privilege, there is no Fifth Amendment violation." Id. at 191. The
    Court pointedly stated that "the Fifth Amendment guarantees that no one may be 'compelled
    in any criminal case to be a witness against himself'; it does not establish an unqualified
    'right to remain silent.'" Id. at 189.
    {¶19} The coercion exception did not apply to the defendant in Salinas because it
    was undisputed that his interview with police was voluntary. He agreed to accompany the
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    officers to the station and was free to leave at any time. Because the defendant did not
    expressly invoke his Fifth Amendment privilege, there was no violation. See Abby v. Howe,
    
    742 F.3d 221
    , 228 (6th Cir.2014) (acknowledging that Salinas "held that prosecutors may
    use a defendant's pre-arrest silence as substantive evidence of his guilt if the defendant did
    not expressly invoke his right to remain silent"); State v. Horwitz, 
    191 So.3d 429
    , 440
    (Fla.2016) (stating that Salinas permits pre-arrest silence to be used as substantive
    evidence of a defendant's guilt).
    {¶20} Here, the state relied upon an earlier Ohio Supreme Court decision, State v.
    Leach, 
    102 Ohio St.3d 135
    , 
    2004-Ohio-2147
    . In that case, the state presented testimony
    from a police officer that the defendant had left him a message saying that he wanted to
    speak with an attorney before talking to the police.        The prosecutor referred to the
    defendant's pre-arrest silence during opening arguments as well. The defendant did not
    testify at trial. The state argued that this evidence was admissible as substantive evidence
    of guilt.
    {¶21} The question before the Leach Court was whether the Fifth Amendment was
    violated with the admission of testimony that a defendant, who had not yet been arrested
    or Mirandized, remained silent and/or asserted his right to counsel in the face of questioning
    by law enforcement. The Court noted that whether the admission of such evidence violates
    the Fifth Amendment was a question that the U.S. Supreme Court has not answered. The
    Supreme Court "has not yet addressed the issue of whether a defendant's pre-arrest, pre-
    Miranda silence may be used as substantive evidence of guilt in the state's case-in-chief."
    (Emphasis sic.) Id. at ¶ 20.
    {¶22} Using a two-pronged Fifth Amendment analysis, the Court concluded that the
    substantive use of the defendant's pre-arrest, pre-Miranda silence subverts the policies
    behind the Fifth Amendment privilege against self-incrimination and is not a legitimate
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    governmental practice." Id. at ¶ 37. Thus the Ohio Supreme Court held that the "use of a
    defendant's pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment
    privilege against self-incrimination." Id. at ¶ 38.
    {¶23} Leach, though, is factually distinguishable from the case before us and from
    Salinas. The silence of the Leach defendant came after a reference to his right to counsel.
    But Speis was completely silent, as was the Salinas defendant. Thus, Leach applies in the
    case of a defendant not yet been arrested or Mirandized who asserted his right to counsel
    in the face of questioning by law enforcement. But Salinas applies in a case, like the present
    one, where, in the face of questioning, a defendant remained completely silent.
    {¶24} Here, as the prosecutor said in opening statements, officers approached
    Speis to see if he wanted to make a statement, but he declined. There is no evidence even
    suggesting that Speis invoked his Fifth Amendment privilege against self-incrimination at
    that time.    As Salinas taught, Speis's silence was not sufficient.          Moreover, the
    circumstances of the police officers' question were not coercive. Speis was not deprived of
    the ability to voluntarily invoke the Fifth Amendment, as there is no allegation or evidence
    that his failure to assert the privilege was involuntary. The state could have used Speis's
    silence as substantive evidence of his guilt without a Fifth Amendment problem. Therefore,
    by merely referring to his silence during opening statements, the prosecutor did not
    improperly impinge Speis's Fifth Amendment privilege against self-incrimination.
    {¶25} The first assignment of error is overruled.
    B. Freihofer's testimony
    {¶26} The second assignment of error alleges:
    {¶27} THE TRIAL COURT ERRED BY ALLOWING THE STATE TO ELICIT
    EXPERT TESTIMONY FROM CECILIA FREIHOFER DESPITE THE ABSENCE OF AN
    EXPERT REPORT AND DEMONSTRABLE NON-COMPLIANCE WITH OHIO CRIM.R.
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    16(K).
    {¶28} Speis argues that the state failed to provide him with a copy of the TSCYC,
    on which Freihofer's assessment was based in part, which he says was a violation of the
    discovery rule in Crim.R. 16(K). Speis contends that the failure to provide the TSCYC
    rendered it impossible for him to meaningfully confront Freihofer or her opinions, so the
    testimony should have been excluded.
    {¶29} Crim.R. 16(K) provides that any expert witness must "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" and that the report must be timely
    disclosed to the opposing party. "Failure to disclose the written report to opposing counsel
    shall preclude the expert's testimony at trial." Crim.R. 16(K).
    {¶30} The trial court permitted Freihofer to testify as a lay witness.    Evid.R.   701
    governs opinion testimony by lay witnesses and provides that such testimony "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." "A trial court has considerable discretion in admitting the opinion testimony
    of lay witnesses." (Citation omitted.) State v. Marshall, 
    191 Ohio App.3d 444
    , 2010-Ohio-
    5160, ¶ 43 (2d Dist.).
    {¶31} The Ohio Supreme Court has said that lay opinions may be based on the
    witness's training and experience:
    [C]ourts 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. * * * Although these cases
    are of a technical nature in that they allow lay opinion testimony
    on a subject outside the realm of common knowledge, they still
    fall within the ambit of the rule's requirement that a lay witness's
    opinion be rationally based on firsthand observations and
    helpful in determining a fact in issue. These cases are not
    based on specialized knowledge within the scope of Evid.R.
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    702, but rather are based upon a layperson's personal
    knowledge and experience.
    State v. McKee, 
    91 Ohio St.3d 292
    , 296-297 (2001). Thus, for example, "[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, 10th Dist. Franklin No. 10AP-626, 
    2011-Ohio-907
    , ¶ 17. See
    also State v. Bowling, 12th Dist. Butler No. CA2013-08-159, 
    2014-Ohio-1690
    , ¶ 14 (officer's
    training and experience permitted him to testify as to what chemicals are used to
    manufacture methamphetamine). Also, relevant here, "[s]ocial workers are permitted to
    testify to their disposition in an alleged sexual abuse case." State v. Schentur, 8th Dist.
    Cuyahoga No. 108448, 
    2020-Ohio-1603
    , ¶ 48. But the social worker may not testify as to
    the veracity of the victim or whether the crime occurred. Id. at ¶ 50.
    {¶32} Here, Freihofer testified that what M.R. told her during the interview was
    "consistent with sexual contact and concerning for sexual abuse" and that the TSCYC was
    "positive for trauma symptoms and sexual concerns." Based on this information, Freihofer
    recommended mental health services.        She did not testify that sexual contact in fact
    occurred but merely that the sexual contact as described by eight-year-old M.R. was
    inappropriate and suggested abuse.
    {¶33} We find that this testimony was well within Freihofer's personal knowledge
    and experience. Freihofer was a social worker and a forensic interviewer at the Mayerson
    Center, where she had worked for over 15 years. She testified that she has had ongoing
    training in forensic interviewing and has conducted well over 3,500 forensic interviews.
    Freihofer's testimony was rationally based on her training and personal experience in child-
    abuse cases and aided the trier of fact in determining M.R.'s credibility. The trial court
    reasonably admitted her testimony as lay opinion under Evid.R. 701. Therefore, Crim.R.
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    Clermont CA2022-07-032
    16(K) did not apply.
    {¶34} Even if Freihofer were an expert witness, she prepared a written report that
    was disclosed to Speis.      Her "Report of Suspected Child Abuse" (State's Exhibit 2)
    summarizes her "testimony, findings, analysis, conclusions, or opinion" as required by
    Crim.R. 16(K). It is true that the report does not include "a summary of the expert's
    qualifications." Crim.R. 16(K). But Speis fails to show that this was a willful violation of the
    rule, that knowing Freihofer's qualifications would have benefited him in the preparation of
    his defense, or that he suffered prejudice. See State v. Joseph, 
    73 Ohio St.3d 450
    , 458
    (1995) ("Prosecutorial violations of Crim.R. 16 are reversible only when there is a showing
    that (1) the prosecution's failure to disclose was a willful violation of the rule, (2)
    foreknowledge of the information would have benefited the accused in the preparation of
    his defense, and (3) the accused suffered some prejudicial effect").
    {¶35} Lastly, regarding Speis's claim that the TSCYC was not disclosed to him,
    Crim.R. 16(K) does not require that an expert report include the documentary basis for the
    expert's "testimony, findings, analysis, conclusions, or opinion."          Indeed, we have
    questioned whether Crim.R. 16 requires a TSCYC to be disclosed at all. State v. Robinson,
    12th Dist. Clermont No. CA2015-01-013, 
    2015-Ohio-4533
    , ¶ 23, fn. 1 (12th Dist.) ("Without
    providing any opinion on the matter, we question whether a TSCYC assessment is required
    to be disclosed pursuant to Crim.R. 16(B)(3), (B)(4) and (E)(1) as the trial court found. As
    the state indicated at trial, a TSCYC assessment is not kept as part of the child's medical
    records and is not used as a diagnostic tool of any kind").
    {¶36} Accordingly, we find the trial court did not abuse its discretion by admitting
    Freihofer's testimony. The second assignment of error is overruled.
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    III. Conclusion
    {¶37} Having overruled both the assignments of error presented, we the affirm trial
    court's judgment.
    S. POWELL, P.J., and M. POWELL, J., concur.
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