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7th District rejects “truth experts” theory in child rape case

TRACEY BLAIR
Legal News Reporter

Published: March 12, 2020

A Mahoning County trial court did not err by allowing medical witnesses to testify as “truth experts” in a child rape case, the 7th District Court of Appeals recently ruled.
Kenneth Thomas was convicted of 19 counts of rape and sentenced to two consecutive life sentences following a jury trial.
In 2007, court records show Thomas moved in with his girlfriend, A.R., and her son, O.M., who was 4 or 5 years old at the time. Thomas and A.R. had a baby boy together in 2008, K.T. He appeared to have a good relationship with both boys and O.M. called Thomas “dad.”
In mid-January 2016, the couple’s relationship ended and Thomas moved out of A.R.’s house. On March 17, 2016, O.M., who was now 13 years old, told his mother that Thomas had been molesting him since he was about 9 years old. A.R. immediately took O.M. to the emergency department.
At trial, the jury heard testimony from numerous witnesses, including Thomas and the alleged victim, who testified that appellant raped him “probably” 100 times. Thomas denied all allegations.
On appeal, Thomas argued the trial court should not have permitted the nurse practitioner, Janet Gorsuch, and the physician’s assistant, Mark Gorospe, who examined O.M., to tell the jury the boy was telling the truth when he testified. Thomas alleged their testimony was required to meet the admissibility requirements of expert testimony.
The state noted Thomas did not object to either Gorospe’s or Gorsuch’s testimony at trial, which waived all but plain error review.
On the stand, Gorospe said O.M. reported that his mother’s boyfriend started to touch him three years ago and that it appeared to be a case of “delayed disclosure” of sexual assault.
Meanwhile, Gorsuch testified that she did not observe any physical injuries to O.M. during his examination, but that in most cases of child sexual abuse, the physical examination is normal. Gorsuch agreed O.M.’s was a case of delayed disclosure. She also stated she learned that O.M. had some bedwetting issues that ended around the time appellant moved out of O.M.’s home.
In addition, Gorsuch testified O.M. had a history of genital herpes that started around the same time O.M claimed the sexual abuse started.
The appellate panel examined two cases, State v. Burrell (Ohio-1993-34) and State v. Muhleka (Ohio-2004-1822).
“In Burrell, an alleged child victim of sexual abuse was examined by a doctor,” 7th District Judge Gene Donofrio said in his opinion. “The physical examination showed nothing, but the doctor believed that the child ‘was sexually assaulted and molested.’ On cross-examination, the doctor admitted he based his opinion solely on the history the child gave him. The Ninth District concluded that this was an improper opinion on the veracity of the child. The appellate court reversed the conviction and remanded the case for a new trial because the expert's opinion that the child was abused was based solely on his assessment of the child's veracity.”
In Muhleka, the expert testified the child was a victim of sexual abuse despite the fact that there were no physical findings. The court found that the opinion was admissible because the expert relied upon the information he received from his examination and interview of the victim and his past experience of dealing with approximately 200 physically or sexually abused children.
“We agree with both the decisions in Burrell and Muhleka,” Donofrio wrote. “… If the expert relies on other facts in addition to the child's statements, then the expert's opinion will not be an improper statement on the child's veracity.”
Donfrio noted that the experts never actually offered their opinions on whether O.M. was telling the truth.
“Moreover, Gorsuch relied on much more than O.M.’s statements in reaching her conclusions,” the appellate judge added. “According to her testimony, she considered O.M.’s interview, her physical examination of O.M., O.M.’s medical history including a diagnosis of genital herpes around the time the assaults allegedly began, and bedwetting that stopped when appellant moved out. Therefore, she clearly relied on other facts in addition to O.M.’s statements, meaning her opinion was not an improper statement on O.M.’s veracity.”
Appellate judges Cheryl L. Waite and Carol Ann Robb concurred.
The case is cited State v. Thomas, 2020-Ohio-633.


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