State v. Mounts - Murder Conviction Reversed for Ineffective Counsel

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April 22, 2026 Get Citation Alerts Download PDF Add Note

State v. Mounts

Ohio Court of Appeals

• Citations: 2026 Ohio 1443
• Docket Number: C-210608

• Judges: Kinsley

• Opinion

• Authorities (21)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.9K)

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Syllabus

APP.R. 26(B) — INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL — INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL — REOPENED APPEAL — EXPERT TESTIMONY — PROSECUTORIAL MISCONDUCT: In defendant's jury trial for murder that hinged on expert medical testimony regarding the timing of the infant's skull fracture, his trial counsel provided ineffective assistance (1) by acquiescing to the State's objection limiting the scope of a defense expert's testimony and abandoning the expert's clarification that she had reviewed the original histology slide prepared by the autopsy physician and it had not changed her opinion that the fracture predated the period in which the child was in defendant's care; (2) by failing to object to the testimony of a State's expert who had not provided the written report required by Crim.R. 16(K), allowing undisclosed expert opinions to be heard by the jury, including the assertion that the victim's injuries were the result of intentional child abuse rather than accidental trauma or another unidentified etiology; and (3) by failing to object when the prosecutor asserted, during closing argument, that the State could have called eight additional medical experts who purportedly would have testified that the injuries were recent and caused by child abuse. Because defendant's appellate counsel in his original appeal provided ineffective assistance by failing to raise on appeal the meritorious issue of defense counsel's effectiveness at trial, we vacate our prior judgment in this appeal. See App.R. 26(B)(9).

Combined Opinion

[Cite as State v. Mounts, 2026-Ohio-1443.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-210608
TRIAL NO. B-1801231
Plaintiff-Appellee, :

vs. :

JOSHUA MOUNTS, :
JUDGMENT ENTRY
Defendant-Appellant. :

This cause was heard upon the appeal, the record, the briefs, and arguments.
For the reasons set forth in the Opinion filed this date, the judgment of the trial
court is reversed and the cause is remanded.
Further, the court holds that there were reasonable grounds for this appeal,
allows no penalty, and orders that costs be taxed under App.R. 24.
The court further orders that (1) a copy of this Judgment with a copy of the
Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial
court for execution under App.R. 27.

To the clerk:
Enter upon the journal of the court on 4/22/2026 per order of the court.

By:_______________________
Administrative Judge
[Cite as State v. Mounts, 2026-Ohio-1443.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-210608
TRIAL NO. B-1801231
Plaintiff-Appellee, :

vs. :
OPINION
JOSHUA MOUNTS, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: April 22, 2026

Connie Pillich, Hamilton County Prosecuting Attorney, and Ronald W. Springman,
Jr., Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Elizabeth R. Miller, Ohio Public Defender, Randall L. Porter, Kathryn L. Sandford,
and Erika M. LaHote, Assistant Public Defenders, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS

KINSLEY, Presiding Judge.

{¶1} In this reopened appeal, defendant-appellant Joshua Mounts

challenges his conviction for felony murder in connection with the death of his seven-

month-old son, J.F. We initially affirmed the judgment of the trial court convicting

Mounts of J.F.’s murder. See State v. Mounts, 2023-Ohio-3861 (1st Dist.). We held

that Mounts’s conviction was not against the manifest weight of the evidence, that

Mounts’s trial attorney failed to preserve any claim of error regarding the scope of

expert testimony, that the State did not improperly present a lay witness as an expert

witness, and that trial counsel waived all but plain error by failing to object to the

prosecutor’s comments during closing argument. Id. at ¶ 2. In doing so, we noted that

Mounts had raised “limited assignments of error” on appeal. Id.

{¶2} We then permitted Mounts to reopen his appeal on the basis of

ineffective assistance of appellate counsel and to raise new assignments of error that

were omitted from his initial appeal. See App.R. 26(B). He now claims that defense

counsel rendered ineffective assistance at trial in the two ways our initial opinion

suggested—acquiescing to the State’s objection to the scope of a defense expert’s

testimony and failing to object to improper comments by the prosecutor in closing

argument. He also takes issue with trial counsel’s failure to object to the testimony of

an expert witness called by the State, as well as other alleged omissions and missteps.

In addition, he argues that his original appellate attorney provided ineffective

assistance on appeal for failing to assign trial counsel’s ineffectiveness as error. We

agree. Therefore, because our review of the record leads us to hold that Mounts

received ineffective assistance from both his trial and appellate counsel, we vacate our

prior opinion in his direct appeal, reverse the judgment of the trial court, and remand

the cause for a new trial.

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OHIO FIRST DISTRICT COURT OF APPEALS

Factual and Procedural History

{¶3} On January 25, 2018, emergency medical services responded to a 9-1-1

call after J.F. was found unresponsive at Mounts’s home. An ambulance transported

J.F. to Cincinnati Children’s Hospital, where he was diagnosed with a skull fracture

and severe brain injuries. After doctors informed J.F.’s mother, Kayla, that he had no

chance of recovery, she chose to remove him from life support. J.F. had solely been in

Mounts’s care the night before his death. The State accordingly charged Mounts with

J.F.’s murder.1

{¶4} No eyewitness testified as to what precisely occurred to cause J.F.’s

death. Thus, the evidence at trial largely advanced two competing theories about how

J.F. died. On the one hand, the State contended that J.F. suffered blunt force trauma

to the head during his overnight visit to Mounts’s home that Mounts, as his sole

caregiver during that period of time, must have perpetrated. On the other, Mounts

argued that the injuries to J.F.’s brain were long-standing and could have been

attributed to previous medical trauma, including both his mother’s prenatal drug use

and J.F.’s history of “Brief Resolved Unexplained Events” (“BRUE episodes”) in which

J.F. would stop breathing. Both sides relied heavily on expert testimony to support

their competing theories.

{¶5} One of the few lay witnesses at trial was Kayla, J.F.’s mother. Kayla

testified that J.F. lived with her, her grandparents, and J.F.’s half-brother, but that she

was J.F.’s primary caretaker. According to Kayla, Mounts lived with his parents and

brother but also saw J.F. at times.

1 Mounts was charged with one count of aggravated murder in violation of R.C. 2903.01(C) and
one count of felony murder in violation of R.C. 2903.02(B). The jury acquitted Mounts of
aggravated murder but found him guilty of felony murder.

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OHIO FIRST DISTRICT COURT OF APPEALS

{¶6} Kayla admitted that she had previously used drugs. J.F.’s medical

records indicated that he was born prematurely as a result of opiates in Kayla’s system,

but Kayla testified that she had stopped using as soon as she learned she was pregnant.

Kayla agreed that J.F. had experienced at least one previous BRUE episode before his

death, which caused him to stop breathing.2 But she testified that he had not had an

episode for months prior to becoming unresponsive in Mounts’s care.

{¶7} When Kayla arrived at the hospital the day of the incident, she told

hospital staff that J.F. had been experiencing cold symptoms but was otherwise well.

According to Kayla, J.F. was a happy baby, despite having colic. His routine was to

wake up between 8:00 and 9:00 a.m., although he had slept until late morning a few

times when he was sick. Kayla denied ever dropping J.F. while he was in her care.

{¶8} Kayla testified that the day before J.F. became unresponsive, she and

J.F. spent the evening with Mounts running errands. During that time, Mounts

bought drugs. After they arrived back at Mounts’s residence, she remembered that

she had an appointment the next day, so she decided to leave J.F. with Mounts.3 She

fed J.F. a bottle and placed him in Mounts’s bed. She did not notice anything unusual

in J.F.’s behavior prior to leaving him overnight with Mounts.

{¶9} The next morning, Kayla received a message from Mounts’s mother

indicating that there was a medical emergency and that J.F. was not breathing. J.F.

was transported to Cincinnati Children’s Hospital where he was treated for a skull

fracture. When Kayla spoke with Mounts, he denied that J.F. had fallen out of bed.

{¶10} First responders to the scene also testified at trial, both as to their

2 J.F.’s medical records indicate that he had suffered from several BRUE episodes.
3 Contrary to this testimony, Kayla told medical staff at the hospital that she left J.F. with Mounts

because she “needed a break.”

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OHIO FIRST DISTRICT COURT OF APPEALS

activities and as to Mounts’s description of what happened. Per these witnesses,

Mounts reported J.F. had slept through the night and woke up crying late the next

morning around 11:00 a.m. Mounts said he found J.F. unresponsive after he went to

prepare a bottle. One first responder testified to finding a warm bottle in Mounts’s

bedroom, which was consistent with Mounts’s statement. But he also found a device

commonly used for smoking marijuana. The bed had also been pushed against the

wall, and a pillow had been placed on the other side as if to prevent J.F. from falling

off.

{¶11} Detective Brad Hondorf, the lead detective in the investigation of J.F.’s

death, also testified at trial. Hondorf reviewed a report another officer gave him from

Cincinnati Children’s Hospital which noted “suspected child abuse” in J.F.’s case. He

accordingly focused his investigation on Mounts.

{¶12} Hondorf conducted four lay interviews as part of his investigation:

Kayla, Mounts, and each of Mounts’s parents. Mounts’s father told Hondorf that J.F.

appeared to have a “deer in the headlights” look the night before he was found

unresponsive. Although Hondorf consulted with the doctor who performed the

autopsy, the information regarding J.F.’s vacant look was never communicated at any

point. Hondorf also attended a meeting of the physician team who evaluated J.F. at

the hospital. The meeting occurred a few days following J.F.’s death. According to

Hondorf, the physician team was unsure why J.F. stopped breathing on his own,

despite the fact that he exhibited a skull fracture. They indicated that the cause could

have been “child abuse, accidental, or genetic.”

{¶13} One member of the team Hondorf remembered seeing at the meeting

was Dr. Kathi Makoroff. Dr. Makoroff was a physician at Cincinnati Children’s

Hospital associated with the Mayerson Center for Safe and Healthy Children. The

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OHIO FIRST DISTRICT COURT OF APPEALS

record does not contain a report of Dr. Makoroff’s opinions about the case, although

it does contain her curriculum vitae, which was admitted as an exhibit at trial. Even

though she had not submitted an expert report, Dr. Makoroff was permitted to testify

for the State as an expert in child-abuse pediatrics without objection from the defense.

{¶14} Dr. Makoroff began her testimony by describing the function of the

Mayerson Center. The Mayerson Center consults in cases of suspected child abuse. In

that capacity, she was asked to evaluate J.F. while he was in the hospital. J.F.

presented to the hospital with a skull fracture and subdural bleeding, types of injuries

that Dr. Makoroff explained do not occur spontaneously.4 According to Dr. Makoroff,

J.F.’s injuries indicated that he suffered trauma. When asked if “the Mayerson Center

came to a conclusion about whether or not this case constituted child abuse,” Dr.

Makoroff respond, “We did, yes.” She testified that in her expert opinion J.F.’s injuries

were consistent with child physical abuse. Without an objection from the defense, she

also opined that J.F.’s injuries did not predate his overnight stay with Mounts. She

explained that, in her expert opinion, a child would not behave normally after

sustaining the types of injuries J.F. had.

{¶15} On cross-examination, Dr. Makoroff conceded that J.F. did not have

bruising on his body when she evaluated him in the hospital. She did not recall

whether Hondorf was at the team meeting that occurred two days after J.F.’s death,

whether the team discussed J.F.’s case, or whether the Mayerson Center team

developed an explanation for why J.F. stopped breathing. She admitted that the team

did not keep notes from its weekly patient meetings.

{¶16} Dr. Dorothy Dean, a forensic pathologist at the Hamilton County

4 J.F.’s injuries were documented by his medical records, which were admitted into evidence during

Dr. Makoroff’s testimony.

7
OHIO FIRST DISTRICT COURT OF APPEALS

Coroner’s Office, performed J.F.’s autopsy. She testified at trial as an expert in forensic

pathology, and her autopsy report was admitted into evidence. Dr. Dean testified that

J.F. had a fracture of the parietal bone, as well as a small bruise above his right eye, a

bruise over the skull fracture, and four small bruises on his back. She also testified

that there was fresh blood, referring to a subdural hematoma, near the fracture site

and that there was no evidence of healing, which indicated that this was a very recent

injury. According to Dr. Dean, J.F.’s skull fell apart in her hands when she made cuts,

which indicated that the bone had not yet formed the fibrous tissue that cells generate

in the process of healing a new fracture. Thus, when looking at the fracture

microscopically, she saw a fresh fracture without evidence of healing. Accordingly, Dr.

Dean did not believe J.F.’s previous BRUE episodes played a role in his death. Rather,

it was her opinion that J.F. had likely died from a traumatic brain injury with a skull

fracture due to blunt impacts to his head.

{¶17} In addition to establishing what she believed was the cause of death, a

central component of Dr. Dean’s testimony was her role in creating histological slides

of J.F.’s brain. Other experts examined the slides to form their own opinions about

the type of fracture J.F. suffered and its stage of healing. Dr. Dean testified that she

provided Mounts’s expert witnesses with “recut” slides, rather than the originals, but

that the experts could have come to her office to view the originals in person. She also

dispelled any notion that the recut slides were less reliable than the originals. She

testified that if there had been any substantial difference between the originals and the

recuts, she would have informed Mounts’s expert witnesses. Finally, she explained

that, according to her report, the recut slides of the fracture included “[a] section

through one limb of the displaced fracture of the skull that includes the lambdoid

suture . . . .” She testified that a suture is fibrous material holding the bone plates of

8
OHIO FIRST DISTRICT COURT OF APPEALS

an infant’s skull together and eventually hardens after the brain has reached its full

size.

{¶18} Dr. Andrea Wiens, Dr. Satish Chundru, and Dr. Andrew Guajardo

testified as expert witnesses for Mounts, and their expert reports were admitted into

evidence. As to J.F.’s cause of death, they agreed that the blood near the fracture site

they identified was not fresh and that J.F.’s skull exhibited evidence of healing,

including new bone formation, which indicated that J.F.’s injuries were not recent. Dr.

Wiens also testified that J.F.’s repeated BRUE episodes created a greater likelihood

that underlying but unidentified etiology explained his death.

{¶19} As one of only 50 experts board certified in both forensic pathology and

neuropathology, Dr. Wiens had initially been hired by the State to evaluate J.F.’s skull

injury and review Dr. Dean’s autopsy report. But when Dr. Wiens sent her report to

the State, which disagreed with Dr. Dean’s conclusion that the injuries were recent,

the prosecutor informed her in a phone call that she had incorrectly identified the

fracture site on the slide because she had not reviewed the original slide.

{¶20} Dr. Wiens attempted to clear up the confusion as to the basis for her

testimony about the fracture after a break in her testimony. She began to do so by

indicating that she had reviewed the original histology slide containing the fracture

during the break, which had been admitted into evidence during Dr. Dean’s testimony.

But Dr. Wiens’s expert report only concerned the recut slide, not the original slide she

reviewed midtrial, so the State objected to her testifying to information outside of her

report.

{¶21} The trial court conducted a sidebar to discuss the State’s objection. At

the sidebar, Mounts’s counsel proffered that Dr. Wiens would testify as to the

difference between the original slide and the recut slide. According to Mounts’s

9
OHIO FIRST DISTRICT COURT OF APPEALS

counsel, the difference in the slides would not alter Dr. Wiens’s opinion that J.F.’s

injuries were not recent, and, if permitted to testify, she would explain that, despite

the prosecutor’s concern on the phone call, she had correctly identified the fracture

site.

{¶22} Given these representations from defense counsel, the trial court

broached the topic of having Dr. Wiens amend her expert report. At that point, the

trial court had not yet ruled on the State’s objection to Dr. Wiens’s intended testimony

and had not excluded her explanation about the differing slides. But rather than agree

to the trial court’s proposed solution, and without responding directly to the State’s

objection, Mounts’s counsel instead said he would move on from this line of

questioning. He therefore abandoned the attempt to have Dr. Wiens clarify that she

had in fact reviewed the original histology slide and reached the same conclusion about

J.F.’s cause of death. Only then did the trial court sustain the State’s objection.

{¶23} Dr. Chundru testified that he was shocked by Dr. Dean’s diagnosis of

J.F. because it was clear that J.F.’s injuries predated the incident at Mounts’s home.

Dr. Guajardo testified that J.F.’s injuries were a minimum of three weeks or older at

the time of his death.

{¶24} On rebuttal, the State played the deposition of Dr. Rebecca Folkerth, a

neuropathologist, and called Dr. Karen Looman, Chief Deputy Coroner at the

Hamilton County Coroner’s Office, to testify. Both essentially testified that they

agreed with Dr. Dean’s conclusions except Dr. Looman testified that the subdural

hematoma appeared to be an older injury than the skull fracture. Finally, Dr. Dean

10
OHIO FIRST DISTRICT COURT OF APPEALS

testified again on rebuttal, emphasizing that she was still confident in her findings.5

She accused the three defense experts of misidentifying the fracture site as the

lambdoid suture on the histology slide.

{¶25} The jury found Mounts guilty of felony murder but acquitted him of

aggravated murder. He was sentenced to an aggregate sentence of 15 years to life in

prison.

{¶26} In his initial appeal, Mounts raised four assignments of error, all of

which we overruled. See Mounts, 2023-Ohio-3861, at ¶ 1 (1st Dist.). His first

assignment of error was that his conviction was against the manifest weight of the

evidence. Id. His second assignment of error challenged the trial court’s decision to

prevent Dr. Wiens from testifying about her review of the original histology slide

because this information was not in her expert report. Id. at ¶ 31. His third assignment

of error alleged that the trial court improperly admitted the observations of first

responders about Mounts’s behavior. Id. at ¶ 37. And his fourth assignment

challenged the propriety of comments made by the prosecutor in closing argument.

Id. at ¶ 45.

{¶27} None of these assignments of error took issue with the performance of

his trial counsel. Id. at ¶ 1. Thus, Mounts moved to reopen his appeal pursuant to

App.R. 26(B) on the basis that his appellate attorney had been ineffective on appeal by

failing to raise the ineffective assistance of his trial counsel as an assignment of error.

We granted this relief and ordered the parties to file additional briefs addressing this

specific assignment of error and any others Mounts wished to pursue.

5 Dr. Dean’s rebuttal testimony was based on a separate expert report.

11
OHIO FIRST DISTRICT COURT OF APPEALS

{¶28} Mounts then filed a brief in the reopened appeal that advanced three

new assignments of error, but not the argument that his original appellate counsel had

rendered ineffective assistance of counsel. Following the Ohio Supreme Court’s

decision in State v. Clark, 2025-Ohio-4410, he moved to submit a supplemental brief

for the purpose of including the ineffective-assistance-of-appellate-counsel issue he

had initially omitted.6 We granted that motion, and Mounts filed a supplemental brief

including that additional assignment of error.

{¶29} We now address Mounts’s reopened appeal.

Reopened Appeal

{¶30} In his principal and supplemental briefs, Mounts raises four new

assignments of error for our review: (1) Mounts’s trial counsel provided ineffective

assistance at trial; (2) the trial court erred by excusing for cause all prospective jurors

who had not been vaccinated against Covid-19; (3) Mounts’s due process rights were

violated by the State’s presentation of “fundamentally unreliable testimony”; and (4)

Mounts’s appellate counsel provided ineffective assistance. As they are dispositive of

this reopened appeal, we address the ineffective-assistance-of-counsel claims first.

{¶31} In reviewing Mounts’s ineffective-assistance claims, we are conscious of

App.R. 26(B)(9), which governs reopened appeals. That rule provides that

If the court finds that the performance of appellate counsel was deficient

6 Mounts’s initial brief in the reopened appeal did not assert an assignment of error advancing the

argument that his appellate counsel was ineffective. This was despite the fact that his App.R. 26(B)
motion to reopen the appeal indicated that he wanted to raise this particular issue, and despite our
order clearly instructing Mounts to raise it. After initial briefing was complete in the reopened
appeal, Mounts filed a motion to submit a supplemental brief so that he could raise ineffective
assistance of appellate counsel in accordance with Clark, 2025-Ohio-4410, at ¶ 3, which requires
an appellate court to find ineffective assistance of appellate counsel to grant relief in a reopened
appeal. The concurrence in Clark suggests that a defendant may raise ineffective assistance of
appellate counsel in a reopened appeal in a supplemental brief. See Clark at ¶ 28 (Hawkins, J.,
concurring). And, notably, the State did not object to Mounts’s request to supplement his brief.

12
OHIO FIRST DISTRICT COURT OF APPEALS

and the applicant was prejudiced by that deficiency, the court shall

vacate its prior judgment and enter the appropriate judgment. If the

court does not so find, the court shall issue an order confirming its prior

judgment.

{¶32} Because App.R. 26(B)(9) focuses on the performance of appellate

counsel, we may vacate our prior judgment and grant Mounts relief only if the

performance of his appellate attorney was prejudicially deficient. See State v. Stultz,

2023-Ohio-4754, ¶ 2 (9th Dist.). We therefore consider Mounts’s claim that his trial

counsel rendered ineffective assistance of counsel for the purpose of determining

whether his appellate attorney was ineffective in failing to raise it on appeal.

A. Ineffective Assistance of Trial Counsel

{¶33} In his first assignment of error, Mounts argues that his trial counsel

rendered ineffective assistance. To establish ineffective assistance of counsel, a

defendant must demonstrate both that (1) counsel’s performance was deficient, and

(2) counsel’s deficient performance prejudiced the defendant. Strickland v.

Washington, 466 U.S. 668 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989).

{¶34} Counsel’s performance is deficient if it falls below an objective standard

of reasonableness. State v. Payne, 2019-Ohio-848, ¶ 8 (1st Dist.). Counsel is

presumed to have provided adequate assistance. State v. Smith, 17 Ohio St.3d 98, 100

(1985). Consequently, to demonstrate deficient performance, a defendant must

overcome the presumption that trial counsel’s challenged action “might be considered

sound trial strategy.” Id.

{¶35} To demonstrate prejudice, appellant must show that there is “a

reasonable probability that but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Bradley at 146. “A reasonable probability is

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OHIO FIRST DISTRICT COURT OF APPEALS

a probability sufficient to undermine confidence in the outcome.” Id., quoting

Strickland at 694. Prejudice may result from the cumulative effect of trial counsel’s

errors. State v. Gondor, 2006-Ohio-6679, ¶ 72. In considering the impact of an

attorney’s mistakes, “[s]ome errors will have had a pervasive effect on the inferences

to be drawn from the evidence, altering the entire evidentiary picture.” Id., citing

Strickland at 694-695. But errors cannot become prejudicial simply because of their

sheer number. State v. Hill, 75 Ohio St.3d 195, 212 (1996).

1. Deficient Performance

{¶36} Mounts points to many instances of alleged deficient performance by

trial counsel throughout his case. We focus on three—trial counsel’s acquiescence in

the State’s objection to Dr. Wiens’s testimony about her review of the original fracture

slide, trial counsel’s failure to object to Dr. Makoroff’s testimony in light of the fact

that she did not disclose an expert report, and trial counsel’s failure to object to a

statement by the prosecutor in closing argument that eight additional doctors could

have been called to testify that J.F.’s injuries were recent and caused by child abuse.

a. Dr. Wiens

{¶37} First, Mounts argues that trial counsel performed deficiently by

acquiescing to the State’s objection to Dr. Wiens’s testimony about the original

histology slide rather than taking advantage of the trial court’s offer to have Dr. Wiens

amend her expert report. We agree that this decision fell below the objective standard

of reasonableness for a defense attorney and therefore constituted deficient

performance.

{¶38} The decision to call a particular expert witness is typically strategic, and

an attorney does not perform deficiently by failing to present expert testimony. See

State v. Clarke, 2024-Ohio-2921, ¶ 40 (1st Dist.). But Mounts does not challenge his

14
OHIO FIRST DISTRICT COURT OF APPEALS

attorney’s decision to put an expert on the stand. Rather, he questions his attorney’s

failure to rehabilitate a central point in Dr. Wiens’s testimony that the State then used

to undermine her credibility with the jury. Where the State’s case involves evidence

the jury cannot properly understand without the assistance of experts, the failure to

engage a competent expert can constitute deficient performance. Hinton v. Alabama,

571 U.S. 263, 273 (2014). So too can the failure to present an expert be deficient when

the crux of a defendant’s defense turns on evidence that cannot be properly provided

to a jury without the use of expert testimony. See State v. Herring, 2014-Ohio-5228,

¶ 73-79, 80.

{¶39} A critical issue in Mounts’s trial was the timing of when J.F. incurred

the skull fracture and subdural hematoma—a question that all experts agreed could be

determined only through microscopic examination of the histology slides of J.F.’s

brain. As she explained in her expert report, Dr. Wiens formed her opinion that J.F.’s

skull exhibited new bone formation indicative of healing, and therefore, an older

injury by reviewing a recut slide supplied by Dr. Dean. This conclusion caused her

services to be terminated by the State, because the prosecution believed she had

reviewed the wrong section of the slide and had therefore misidentified the fracture in

J.F.’s skull. Defense counsel was well aware that the State would critique Dr. Wiens’s

methodology in this way, thereby attempting to undermine her credibility, because she

relayed the nature of her phone call with the prosecutor in her expert report. And at

the very least, defense counsel became aware of the issue when Dr. Wiens herself

testified to the prosecutor’s phone call during direct examination.

{¶40} The record reflects that the trial court ordered a lunch break shortly

after Dr. Wiens testified about her call with the prosecutor concerning the recut slide.

Defense counsel appeared to understand the gravity of that testimony, because upon

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OHIO FIRST DISTRICT COURT OF APPEALS

return from lunch, he immediately asked Dr. Wiens questions to rehabilitate her

conclusion about the location of the fracture on the recut histology slide. To that end,

Dr. Wiens explained that she had reviewed the original histology slide, which she had

not seen before, during lunch. This is what prompted the State’s objection, because

Dr. Wiens did not disclose her opinion of the original slide in her expert report.

Responding to that objection, defense counsel again appeared to appreciate the

importance of Dr. Wiens’s testimony, because he proffered at sidebar that her review

of the original slide had not changed her opinion about J.F.’s injuries. It was not until

the trial court suggested that defense counsel amend Dr. Wiens’s report to include the

information she gleaned from viewing the original slide that defense counsel indicated

he would abandon the entire line of questioning.

{¶41} This exchange strongly suggests that defense counsel’s actions were the

product of something other than “sound trial strategy.” See Smith, 17 Ohio St.3d at

100. Rather, it appears that, after initially mounting a robust proffer of Dr. Wiens’s

intended testimony, defense counsel inexplicably retreated from having Dr. Wiens

clarify her methodology and opinions in court to avoid having to produce an amended

expert report. Had it been defense counsel’s plan to deemphasize the role of the recut

slides in Dr. Wiens’s report, we question why he would have asked Dr. Wiens to testify

about this very thing upon returning to court after lunch. We also question why trial

counsel would have proffered Dr. Wiens’s testimony if he felt that it was strategically

unhelpful to Mounts. Indeed, nothing in defense counsel’s approach leading up to his

decision to abandon Dr. Wiens’s testimony about the original slide suggests that it was

a strategic one.

{¶42} But even if it was, the decision of Mounts’s attorney to acquiesce in the

State’s objection was not strategically reasonable. Defense counsel knew when he

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OHIO FIRST DISTRICT COURT OF APPEALS

abandoned the line of questioning about the slides that the State would question Dr.

Wiens’s credibility on the basis that she had misidentified the fracture in the recut

slide. Because the entire case rested on which cause-of-death theory the jury found

more believable—that Mounts caused a blunt force head injury to J.F. or that J.F. had

preexisting brain injuries that manifested in his loss of consciousness—Dr. Wiens’s

credibility was critical to Mounts’s defense. It was theoretically possible for another

witness to testify as to the difference between the original and recut slides and whether

they provided the same view of the fracture in J.F.’s brain. In fact, Dr. Dean herself

had explained that there were no significant differences between the original and recut

slides. But the only person who could testify that Dr. Wiens had in fact reviewed the

original slide and that it had not altered her opinion that the fracture in J.F.’s skull was

preexisting was Dr. Wiens.

{¶43} In State v. Bunch, 2022-Ohio-4723, ¶ 34, 47, the Ohio Supreme Court

noted that the lack of alternative sources for an expert’s opinion can be a factor in

considering whether an attorney’s decision to forego expert testimony is strategically

reasonable. It is certainly a factor here. Given the importance of Dr. Wiens’s opinion

to Mounts’s defense, and the fact that she was the only person who could explain her

methodology, defense counsel’s performance in abandoning her testimony about the

original slides fell below an objective standard of reasonableness.

b. Dr. Makoroff

{¶44} Mounts next argues that his trial counsel rendered deficient

performance in failing to object to Dr. Makoroff’s expert testimony when she did not

submit an expert report. We agree. Crim.R. 16(K) requires an expert witness to

prepare a written report summarizing the expert’s testimony, findings, analysis,

conclusions, or opinion and the expert’s qualifications. The purpose of this rule is to

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OHIO FIRST DISTRICT COURT OF APPEALS

strengthen the right to a fair trial and to prevent unfair surprise by giving notice to the

defendant, so he has an opportunity to challenge the expert’s findings or

qualifications. State v. Boaston, 2020-Ohio-1061, ¶ 44. An expert may generally not

testify at trial if the expert’s written report was not disclosed to opposing counsel. Id.

at ¶ 65. However, where an expert is a treating physician, some courts have found the

report requirement satisfied by the disclosure of discovery documents, like medical

records, that contain the substance of the expert’s testimony. See, e.g., State v.

Martin, 2024-Ohio-5332, ¶ 81 (7th Dist.); State v. Heller, 2019-Ohio-4722, ¶ 8 (9th

Dist.).

{¶45} A treating physician may also testify as a fact witness without being

qualified as an expert. See, e.g., Henry v. Richardson, 2011-Ohio-2098, ¶ 33 (12th

Dist.) (holding that treating physician’s testimony about patient’s symptoms,

treatment, and health care costs was nonexpert testimony). In these instances,

Crim.R. 16(K) does not apply. State v. Fetty, 2012-Ohio-6127, ¶ 41 (11th Dist.).

{¶46} Thus, the threshold question with regard to Dr. Makoroff was whether

she testified as a treating physician or as an expert. In resolving this critical question,

we emphasize that the State expressly qualified Dr. Makoroff as an expert in child

abuse. While she provided some information about her examination of J.F. and the

injuries she observed, the crux of her testimony resounded in the kinds of opinions

only experts tend to offer. For example, Dr. Makoroff testified that J.F. was the victim

of intentional trauma and that he had not sustained the fatal injuries to his brain prior

to his overnight visit with Mounts. She also opined that a child with the type of injuries

J.F. suffered would not have presented normally, thus supporting her conclusion that

he had not been harmed before spending the night with Mounts. These opinions went

beyond describing Dr. Makoroff’s observations about J.F.’s condition and the

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OHIO FIRST DISTRICT COURT OF APPEALS

treatment she provided. Rather, Dr. Makoroff formed conclusions, based on her

expertise, about what happened to J.F. She therefore testified as an expert who was

required to comply with Crim.R. 16(K).

{¶47} The record reflects, however, that Dr. Makoroff did not disclose an

expert report as required by that rule. To be clear, there is no direct evidence that

affirmatively documents this conclusion. No witness expressly indicated that Dr.

Makoroff failed to submit a report, and no exhibit directly states this either. This

absence, however, is not dispositive, as the circumstantial evidence overwhelmingly

permits the inference that no expert report was disclosed.

{¶48} For one thing, Dr. Makoroff’s report was not listed on the State’s

response to Mounts’s demand for discovery, even though the State identified and

disclosed Dr. Dean’s report and the report of a social worker. Dr. Makoroff was not

even disclosed as a State’s witness in this document. For another thing, the State twice

filed a “Certificate of Necessity for Expert Witness”—one for Dr. Wiens and one for Dr.

Folkerth—but it never filed such a certificate for Dr. Makoroff. This omission, like the

one in the State’s discovery response, further highlights the lack of disclosure about

Dr. Makoroff.7 To the extent that her report might have been disclosed to defense

counsel but not docketed in the record, defense counsel’s closing argument dispelled

that notion. In closing, defense counsel described each of the State’s expert disclosures

for the jury, naming each expert and the date that the expert’s report was submitted.

Conspicuously, counsel identified no such date for Dr. Makoroff. This omission is

telling. In the context of an otherwise complete accounting, it reflects that Dr.

7 The record does indicate that the State attempted to serve a subpoena on a “Kathy Makoroll,

M.D.,” but that subpoena was never endorsed and returned. Even if the defense knew Dr. Makoroff
might be called as a witness, the defense was not alerted that she was going to offer an expert
opinion until she did so at trial.

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OHIO FIRST DISTRICT COURT OF APPEALS

Makoroff did not furnish an expert report. Nor do J.F.’s medical records provide a

substitute, as the records did not contain Dr. Makoroff’s opinion that J.F.’s injuries

resulted from intentional trauma.8

{¶49} The records were also silent as to Dr. Makoroff’s opinion that J.F.’s

injuries could not predate his visit to Mounts’s home. While the medical records noted

an acute fracture, Dr. Makoroff conceded on cross-examination that the age of a

fracture could not be determined through radiology alone.

{¶50} Under these circumstances, the substance of Dr. Makoroff’s expert

opinions was not adequately disclosed through the medical records, and her testimony

exceeded the permissible scope of a treating physician’s undisclosed opinions. See

Boaston, 2020-Ohio-1061, at ¶ 1, 55. Counsel’s failure to object to this testimony,

which introduced a previously-undisclosed expert opinion on a central issue in the

case, fell below an objective standard of reasonable representation and therefore

constituted deficient performance.

c. Closing Arguments

{¶51} Lastly, Mounts argues that his trial counsel was deficient for failing to

object to improper comments during the State’s closing argument. Specifically,

Mounts challenges the following statement made by the prosecutor:

But this case isn’t just a case built on the testimony of Dr. Dean, Dr.

Looman, and Dr. Folkerth, because they’re not the only doctors who

came to the conclusion that J.F. was killed by child abuse by blunt force

trauma and sustained the injuries that he sustained and that it was a

8 Notably, Hondorf testified that the medical team could not identify why J.F. stopped breathing at

their meeting two days after his death. According to Hondorf, they considered whether his injuries
were the result of abuse, genetics, or an accident, but did not determine a definitive cause. J.F.’s
medical records were therefore ambiguous as to his cause of death, whereas Dr. Makoroff expressed
a single cause—child abuse.

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OHIO FIRST DISTRICT COURT OF APPEALS

recent episode.

{¶52} The prosecutor then identified eight additional doctors by name whom

the State could have called as witnesses and asserted that they would have offered

testimony consistent with the State’s experts. The prosecutor said they were not called

only to avoid prolonging the trial.

{¶53} “The test for prosecutorial misconduct is whether the remarks were

improper and, if so, whether the remarks prejudicially affected the accused’s

substantial rights.” State v. Dean, 2015-Ohio-4347, ¶ 238. Prosecutors are generally

afforded significant latitude in closing arguments. State v. Ballew, 76 Ohio St.3d 244,

255 (1996). Nonetheless, “[a] prosecutor cannot express his personal belief or opinion

as to the credibility of a witness or as to the guilt of the accused or go beyond the

evidence that is before the jury when arguing for a conviction.” (Emphasis added.)

State v. Gilbert, 2011-Ohio-4340, ¶ 46 (12th Dist.). In fact, a prosecutor has a duty to

avoid efforts to obtain a conviction that exceeds the evidence presented at trial. State

v. Pino, 2008-Ohio-3578, ¶ 53 (6th Dist.).

{¶54} Contrary to this principle, the prosecutor told the jury what eight

additional expert witnesses would supposedly have said if they would have been called

to testify. No evidence presented at trial supported this conclusion. This was

improper. See id. at ¶ 54, 57.

{¶55} Where a prosecutor engages in prosecutorial misconduct in closing

argument, an objectively reasonable defense attorney should object. See State v.

Junod, 2019-Ohio-743, ¶ 54 (3d Dist.) (finding deficient performance where defense

counsel failed to object to prolonged biblical references in State’s closing argument).

But here, trial counsel failed to object to the prosecutor’s improper insinuation that

eight additional doctors would testify that J.F. suffered child abuse and that the injury

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OHIO FIRST DISTRICT COURT OF APPEALS

was recent. This constituted deficient performance that fell below an objective

standard of reasonable representation.

B. Prejudice

{¶56} We have determined that Mounts’s trial counsel performed deficiently

in three ways—in abandoning Dr. Wiens’s testimony about the original histology

slides, in failing to object to Dr. Makoroff’s expert testimony given the absence of her

expert report, and in failing to object to the prosecutor’s improper closing argument.

We accordingly consider whether the cumulative effect of these mistakes undermined

confidence in the outcome of Mounts’s trial.9 See Gondor, 2006-Ohio-6679, at ¶ 72.

{¶57} The State’s case rested largely on expert testimony asserting that J.F.’s

skull fracture was recent, thereby supporting the inference that the fatal injury

occurred while J.F. was in Mounts’s care. Yet there was no direct evidence linking

Mounts to the alleged abuse. As a result, this was quite simply a battle of the experts.

Whichever set of experts the jury found more credible and believable was likely to

prevail. This meant that any significant error or omission by defense counsel in his

presentation of J.F.’s medical information to the jury had the potential to tip the scales

against Mounts.

{¶58} And we believe they did in this case. Collectively and individually,

defense counsel’s mistakes allowed the jury to hear unchallenged or improper

testimony while limiting the defense’s ability to present a complete and responsive

9 The State argues this court’s prior plain-error review of the prosecutor’s comment concerning the

testimony of other experts that did not testify at trial applies equally to the prejudice inquiry here.
But the prior appeal addressed the impact of a single error. See Mounts, 2023-Ohio-3861, at ¶ 57-
59 (1st Dist.). In contrast, the present ineffective-assistance claim requires consideration of
multiple instances of deficient performance, which we evaluate collectively in assessing prejudice.
See Bradley, 42 Ohio St.3d at 146-147, quoting Strickland, 466 U.S. at 694.

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OHIO FIRST DISTRICT COURT OF APPEALS

expert opinion.10

{¶59} With respect to Dr. Wiens specifically, the jury heard the State accuse

her of misidentifying the fracture site on the recut slide and suggest that she had not

reviewed the original slide—which the State implied showed no healing. But the jury

never heard that Dr. Wiens did review the original slide and did not change her opinion

after doing so. This omission undercut a key defense position: that J.F.’s brain

injuries predated his time with Mounts. While other experts—Dr. Chundru and Dr.

Guajardo—testified consistently with Dr. Wiens, her opinion was critical to Mounts’s

defense because she alone reviewed the original histology slide and had previously

been retained by the State. The State’s attack on her credibility rested mainly on the

assumption that she had not examined the original material. Preventing her from

clarifying this left the jury with a misleading impression.

{¶60} The jury also heard damaging testimony from Dr. Makoroff that could

have been subject to exclusion or, at the very least, a continuance to avoid the surprise

of her expert opinions at trial.11 Despite the fact that Dr. Makoroff had not disclosed

an expert report of any kind, she was permitted to opine that J.F.’s injuries were

consistent with child abuse and did not predate his time with Mounts, opinions that

far exceeded facts she could have testified to as a treatment provider.12

10 The jury’s split verdict undermines any claim that counsel’s deficient performance caused no

prejudice. Instead, the jury’s mixed findings show that the jury accepted the undisclosed expert
testimony that J.F.’s injuries resulted from intentional trauma rather than accident and were
recent, but disagreed about Mounts’s level of intent. The jury did not conclude that Mounts
intended to kill J.F.; rather, it found that Mounts knew the abuse was likely to cause serious harm.
11 We recognize that if defense counsel had objected the State could have sought a continuance and

perhaps provided an expert report. See Crim.R. 16(L)(1) (permitting a continuance as a remedy for
a discovery violation); but see State v. Bellamy, 2022-Ohio-3698, ¶ 12 (holding that a continuance
is not possible midtrial to remedy the nondisclosure of a required expert report). However, the
question before us is not whether the State could have cured the violation, but whether the
admission of Dr. Makoroff’s undisclosed expert opinion, as it actually occurred at trial, was
improper and undermined confidence in the verdict.
12 Nothing prohibited Dr. Makoroff from testifying to her personal examination of J.F. from the

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OHIO FIRST DISTRICT COURT OF APPEALS

{¶61} This testimony was neither harmless nor cumulative. Dr. Dean’s

findings—“blunt force trauma” and a homicide classification—did not, by themselves,

establish intentional injury. Dr. Makoroff supplied the missing inference. She was the

only expert to equate blunt force trauma with child abuse, converting an otherwise

ambiguous medical finding into an assertion of intentional, rather than accidental,

harm. And she did so without prior disclosure, depriving the defense of any

meaningful opportunity to prepare, investigate, or rebut that opinion given that J.F.’s

medical records did not contain such a conclusion.

{¶62} Without this undisclosed testimony, the jury could have reasonably

viewed the medical evidence differently, including the possibility of accidental injury

or another etiology, as Dr. Wiens suggested. Allowing such an undisclosed opinion on

a central issue undermines confidence in the verdict.13

{¶63} Finally, we turn to counsel’s failure to object to the prosecutor’s closing

argument. In a case turning on expert credibility, the State’s suggestion that eight

additional doctors—none of whom testified—would have supported its theory of the

case dramatically altered the perceived balance of expert opinion. By effectively

inflating the State’s expert count from three to 11, the prosecutor invited the jury to

rely on evidence not in the record. In the absence of an objection, these comments

could only have influenced the jury’s assessment, further undermining confidence in

the outcome.

perspective of a treating physician. See Henry, 2011-Ohio-2098, at ¶ 33 (12th Dist.). In
determining the prejudicial impact of Dr. Makoroff’s testimony, we solely consider the improper
expert opinions she offered, not her first-hand observations of J.F.’s physical condition.
13 Dr. Makoroff’s expert testimony should have not been permitted, and, as we explain in this

opinion, appellate counsel’s failure to raise ineffective assistance of trial counsel as to this issue
constitutes reversible error. See Boaston, 2020-Ohio-1061, at ¶ 1. But the mere fact that the State
did not disclose Dr. Makoroff’s report at Mounts’s first trial does not preclude her from testifying
at any subsequent retrial. See Bellamy, 2022-Ohio-3698, at ¶ 11-13. Provided the State complies
with Crim.R. 16(K) in the future, nothing prohibits Dr. Makoroff from testifying in the future.

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OHIO FIRST DISTRICT COURT OF APPEALS

{¶64} Even if each deficiency could not support a finding of prejudice on its

own, taken together, counsel’s errors deprived Mounts of the effective assistance of

trial counsel. Each deficiency—the failure to present Dr. Wiens’s full and accurate

opinion, the admission of undisclosed and highly consequential expert testimony from

Dr. Makoroff, and the failure to object to the prosecutor’s improper closing argument–

occurred in a case that turned entirely on expert credibility. In that context, even small

missteps carried outsized weight. Here, the errors did not merely accumulate; they

compounded one another, allowing the jury to hear misleading or undisclosed expert

opinions while preventing the defense from fully presenting the only defense expert

who reviewed the original histology slide.

{¶65} Under these circumstances, there is a reasonable probability that, but

for counsel’s deficient performance, the result of the proceeding would have been

different.

{¶66} The first assignment of error in Mounts’s reopened appeal is sustained.

C. Ineffective Assistance of Appellate Counsel

{¶67} In his fourth assignment of error, Mounts argues that his original

appellate attorney was constitutionally ineffective when he failed to raise the issue of

trial counsel’s effectiveness in his initial appeal. He additionally contends that his

appellate attorney should have raised two of his original assignments of error—the one

challenging the admissibility of Dr. Wiens’s testimony as to the original slides and the

one challenging improper comments by the prosecutor in closing arguments—as bases

for ineffective assistance of trial counsel.

{¶68} To prove ineffective assistance of appellate counsel, Mounts bears the

burden of demonstrating that “prejudicial errors were made in the trial court and that

ineffective assistance of appellate counsel in the prior appellate proceedings prevented

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OHIO FIRST DISTRICT COURT OF APPEALS

these errors from being presented effectively to the court of appeals.” State v. Leyh,

2022-Ohio-292, ¶ 22, quoting 1993 Staff Notes to App.R. 26(B). Thus, our prior

judgment may not be changed unless Mounts shows “that the direct appeal was

meritorious and failed because appellate counsel rendered ineffective assistance under

the two-prong Strickland standard.” Id. at ¶ 24.

{¶69} We have already determined that Mounts received ineffective assistance

from trial counsel. Thus, the failure of Mounts’s original appellate counsel to raise the

issue was both deficient and prejudicial. Had Mounts raised ineffective assistance of

counsel in his initial appeal, we would have sustained this assignment of error, as we

do now, and Mounts’s conviction would have been reversed. We accordingly hold that

Mounts was deprived of his constitutional right to the effective assistance of appellate

counsel. Mounts’s fourth assignment of error is sustained.

D. Remaining Assignments of Error

{¶70} Given our disposition of Mounts’s first and fourth assignments of error,

his second and third assignments of error are moot, and we do not address them. The

assignments of error raised in Mounts’s initial appeal are also moot.

Conclusion

{¶71} Having determined that Mounts’s constitutional right to the effective

assistance of counsel both at trial and on appeal was violated, we vacate our prior

judgment in Mounts’s appeal, reverse his conviction for murder, and remand this

cause for further proceedings consisting with this opinion and the law.

Judgment accordingly.

ZAYAS and CROUSE, JJ., concur.

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