A missed reporting deadline that can bar an expert witness from testifying at a trial does not prevent the expert from testifying in any retrial, the Supreme Court of Ohio ruled today.

In a unanimous decision, the Court reversed the Fifth District Court of Appeals ruling that an expert witness could not testify in the retrial of Eric Bellamy. The Fifth District vacated Bellamy’s prison sentence for rape and other sexual assault charges, and ordered a new trial.

Writing for the Court, Justice Michael P. Donnelly explained that Ohio Rules of Criminal Procedure preclude an expert witness from testifying at a trial if the expert does not provide the opposition a written report of the expert testimony 21 days in advance of the trial. But that rule only applies to the initial trial, and does not permanently bar the expert from testifying at a retrial, the Court determined.

The decision will allow psychologist Stuart Bassman to testify about the delayed disclosure by a 16-year-old girl who alleged Bellamy repeatedly abused her when she was 6 and 7 years old.

Accused Stepfather Challenges Expert’s Right to Testify
In 2008, Bellamy met a woman with children. In 2009 the couple married, and they all lived together in a Delaware County home. Bellamy and the woman divorced a year later.

In 2018, the woman’s 16-year-old daughter told her mother that Bellamy had sexually abused her about a decade earlier. Bellamy was indicted for rape and other sex crimes in January 2019.

As part of the discovery process, the Delaware County Prosecutor’s Office disclosed to Bellamy’s lawyers that Bassman would be testifying as an expert witness. The prosecutors did not provide Bellamy’s attorney with Bassman’s report until six days before the trial was scheduled to begin.

Crim.R. 16(K) requires expert witnesses to prepare written reports summarizing the testimony they intend to present at trial. If the report is not presented 21 days prior to the trial, the expert is prevented from testifying. A judge can allow an expert who misses the deadline to testify “for good cause shown.”

Bassman’s report noted he had not interviewed either Bellamy or the girl, but was hired to explain why victims delay disclosing sexual abuse and how offenders groom their victims.

On the opening day of the July 2019 trial, Bellamy’s lawyer did not seek to exclude Bassman’s testimony. On the second day of the trial, just before the psychologist was to testify, the defense attorney sought to exclude Bassman.

The trial judge overruled the motion to exclude Bassman, but allowed Bellamy’s lawyer to speak with the psychologist before he testified. Bassman and Bellamy both testified during the trial. A jury found Bellamy guilty on all counts, and the trial court sentenced him to 28 years to life in prison.

Bellamy appealed to the Fifth District, which reversed the trial court’s decision allowing Bassman to testify. In its decision, the Fifth District noted that a 2020 Supreme Court of Ohio decision (State v. Boaston) removed a trial court’s discretion and required experts to be excluded from testifying if the reporting process did not comply with Crim.R. 16(K).

The Fifth District remanded the case to the trial court for a new trial. The appellate court indicated its interpretation of Boaston meant that Bassman could not testify at any retrial of Bellamy.

The prosecutor’s office appealed the decision to the Supreme Court, which agreed to hear the case.

Supreme Court Examined Criminal Rule
Justice Donnelly explained the dispute centers on the definition in Crim.R. 16(K) of the phrase “at trial.” The rule states that failure to disclose the expert witness report to the opposing attorney “shall preclude the expert’s testimony at trial.”

The Fifth District believed the rule is meant to exclude Bassman’s testimony at any retrial or else it would give the prosecutors the benefit of breaking the rule and still being able to prosecute its case later using its expert witnesses, the opinion noted.

The prosecutor argued that the use of “at trial” in the rule means the original trial. A retrial would occur hundreds of days after the trial, the opinion noted, and Bellamy no longer faces the same harm as he did during his initial trial, when his lawyers received the report with little time to review it.

The Court said it agreed with the prosecutors, and stated the meaning of the text of the rule is “obvious here.” The Court explained that “trial” and “retrial” have separate meanings The rule specifically named “trials and not retrials,” the opinion stated.

The Court noted that when Bellamy appealed his conviction, he did not request that Bassman be barred from testifying at his new trial. The opinion stated it is difficult to see how a defendant benefits from barring an expert witness from testifying at a retrial, when the defendant knows what the expert intends to present. Otherwise at the retrial, the prosecutor could call a new expert witness with whom the defense is unfamiliar, the Court stated.

The Court also doubted the “prosecutorial gamesmanship” the Fifth District feared, as Bellamy’s case proceeded in an unusual fashion. Justice Donnelly explained that, typically, an attorney who does not receive the expert witness report on time will object before the trial begins. At that point, the trial court usually grants a continuance and does not begin the case until the defense has an adequate amount of time to review the expert report. In this case, Bellamy’s attorney did not object until the trial began and it was not possible to grant a continuance, the opinion noted.

“In a fair system of criminal justice, no party should be ambushed by evidence that was not provided with ample time for review prior to a proceeding,” the opinion stated.

However, excluding evidence at a retrial – “when the defense has had full notice of such evidence – does not serve the interest of the justice system,” the Court concluded.

2021-0481. State v. Bellamy, Slip Opinion No. 2022-Ohio-3698.

View oral argument video of this case.

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