[Cite as State v. Aeschilmann, 2014-Ohio-4462.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                          JUDGES:
STATE OF OHIO                                     :       Hon. W. Scott Gwin, P.J.
                                                  :       Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellee       :       Hon. Patricia A. Delaney, J.
                                                  :
-vs-                                              :
                                                  :       Case No. 2013CA00192
ALAN J. AESCHILMANN                               :
                                                  :
                    Defendant-Appellant           :       OPINION




CHARACTER OF PROCEEDING:                              Criminal appeal from the Stark County
                                                      Court of Common Pleas, Case No. 2013-
                                                      CR-0287

JUDGMENT:                                             Affirmed

DATE OF JUDGMENT ENTRY:                               October 6, 2014

APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

JOHN FERRERO                                          JAMES BURDON
Stark County Prosecutor                               137 South Main Street
By: RONALD MARK CALDWELL                              Suite 201
Assistant Prosecuting Attorney                        Akron, OH 44308
110 Central Plaza South, Ste. 510
Canton, OH 44702
[Cite as State v. Aeschilmann, 2014-Ohio-4462.]


Gwin, P.J.

        {¶1}    Appellant Alan J. Aeschlimann [“Aeschlimann”] appeals his convictions on

one count of felony murder and one count of child endangering for the death of two-

year-old Bri'Sean T. Gamble on October 19, 2011.

                                        Facts and Procedural History

        A. The Parties

        {¶2}    Aeschlimann, also known as “A.J.” was a 28-year-old divorced father and

sole custodian of his 4-year-old daughter Hannah. He withdrew from Kent State

University to begin employment with the Ohio Department of Youth Services at the

Indian River Correctional Facility where he had served for 5 years as a corrections

officer. Brittany Boitnott was a 24-year-old single parent of 2 1/2 year old Bri'Sean

Gamble. A romance developed between Brittany and Aeschlimann in May of 2011 and

in September of that same year Brittany and Bri'Sean moved into the residence

occupied by Aeschlimann and Hannah. In August of 2013, at the time of the trial,

Aeschlimann was married and residing with his wife Amanda Aeschlimann.

        B. The Home

        {¶3}    Aeschlimann’s home was small with a living room, kitchen, and three

bedrooms, one of which was vacant because Aeschlimann’s ex-wife had removed all

the furnishings. Bri'Sean and Hannah slept in separate bedrooms at the end of the hall

and across the hall from one another. Because they had no bedroom furniture of their

own, Aeschlimann and Brittany slept on the living room couch together. Aeschlimann

slept with his back to the backrest of the couch and Brittany with her back to

Aeschlimann stomach, heads going the same direction.
Stark County, Case No. 2013CA00192                                                     3


         C. Wednesday, October 19, 2011

         {¶4}   During the period that Aeschlimann, Brittany and the two children lived

together, their daily routines were consistent and predictable. Brittany was unemployed

and stayed home with the two children except on those days Hannah attended

preschool or visited her paternal grandparents. Hannah attended Oak Park Preschool

three to four times per week.

         {¶5}   Wednesday, October 19, 2011 was no different. Aeschlimann awoke at

approximately 7:30 a.m., as did Brittany. They ate breakfast together and Aeschlimann

left for his usual work shift at 1:45 p.m. to 10:00 p.m. Hannah did not attend preschool

that day. Brittany, Bri'Sean and Hannah stayed home all day. The only visitors were

Aeschlimann parents who stopped by with groceries a little after 8:00 p.m. staying for

approximately 20 minutes. According to Jody Aeschlimann, Hannah's grandmother, she

noticed nothing unusual about the children but did observe that Brittany appeared

upset.

         {¶6}   Brittany testified that she fed Bri'Sean, and gave him a bath around 9:15

p.m. She then put Bri’Sean to bed at between 10:00 and 10:15 p.m., which was his

normal bedtime. She further testified that Aeschlimann was not yet home from work

when she put Bri'Sean to bed and that was normal.

         {¶7}   Aeschlimann’s memory of those events was consistent. He recalls leaving

work at 10:00 p.m. and arriving home approximately 10 minutes later. An excited

Hannah greeted him and, although he could see Brittany in the back of the hall, he did

not see Bri'Sean at all. He further observed that Bri’Sean was usually already in bed

when he returned from work.
Stark County, Case No. 2013CA00192                                                            4


       {¶8}   Shortly after Aeschlimann’s arrival home, and as he played with Hannah in

the living room, Brittany left in Aeschlimann’s car to go to Wal-Mart. The car was

actually owned by Aeschlimann’s parents, and Brittany was not insured to drive it.

Aeschlimann testified that she had never driven his car before. Brittany testified that she

had driven this car in the past. Aeschlimann testified Brittany had called him at work

several times that day; however, she did not ask him to stop at Wal-Mart on his way

home even though it was located across the street from his place of employment.

Brittany testified that she left for Wal-Mart at "10:15, 10:20" -- "probably a little later" and

"at the latest 10:20-10:25" returning home a little before 11:00 p.m.

       {¶9}   While Brittany was at Wal-Mart, Aeschlimann remained home with

Hannah while Bri'Sean remained in his bedroom. Brittany and Aeschlimann each

testified that Bri'Sean had "good sleeping habits”. When Brittany returned Hannah was

still awake. Hannah stayed awake until approximately 11:00 p.m. for two reasons. First,

to give her time to interact with her father and second, because Aeschlimann’s custody

agreement included the right of her non-custodial mother to make a nightly phone call.

In fact, her mother made her nightly call at approximately 10:20 p.m. and Aeschlimann

monitored the content of the conversations.

       {¶10} At 11:00 p.m., Brittany returned from Wal-Mart. Aeschlimann put Hannah

to bed between 11:00 and 11:30 p.m. Aeschlimann and Brittany went to sleep on the

couch and awakened together the next morning. Brittany concedes that no one got up

during the night and Detective Von Spiegel concluded that no one had contact with

Bri'Sean throughout the night.
Stark County, Case No. 2013CA00192                                                  5


       D. Bri’Sean’s Body is Discovered

       {¶11} The next morning Aeschlimann and Brittany awakened and resumed their

predictable routines. Aeschlimann took Hannah to preschool at 9:00 a.m., where they

both met and spoke with her teacher Samantha Carr. Ms. Carr testified that neither

demonstrated unusual conduct. Aeschlimann returned home at 10:00 a.m. Bri'Sean had

not awakened by the time Aeschlimann returned which was beyond his normal arising

time of 9:30 a.m. Brittany entered his bedroom at 10:30 a.m. and found his lifeless

body. A frantic and emotional 9-1-1 call was played for the jury.

       E. EMS Arrives.

       {¶12} EMS technicians arrived along with a Deputy from the Stark County

Sheriff's Office. En route dispatch informed the technicians that a two-year old child

might be in cardiac arrest and a possible choking. Upon arrival, Brittany came running

from the house, followed by Aeschlimann. Brittany had Bri’Sean in her arms and was

crying hysterically.

       {¶13} EMS firefighter/paramedic Jennifer Mohler testified that the child was

pulse less and apenic. (1T. at 62). He had rigor mortis or “stiffening of his jaw, his

shoulder, his knees.” (1T. at 63). According to Mohler, this meant that the child had

been gone too long and resuscitation was futile. The medical personnel at the scene

could find no “lividity” or pooling of the blood that occurs after death.

       {¶14} When Mohler informed Aeschlimann that the child was gone, she testified,

“he dropped to his knees and put his hands on his head.” (1T. at 66).
Stark County, Case No. 2013CA00192                                                       6


         {¶15} While photographing the child’s body at the direction of the deputy sheriff,

Mohler observed what she believed could be a small bruise on the child’s rib cage. (1T.

at 68)

         F. The Autopsy

         {¶16} Stark County Coroner P.S. Murthy, M.D. testifed that he conducted an

autopsy upon the body of Bri’Sean Gamble on October 21, 2011. (2T. at 428).

         {¶17} During his external examination of the body, Dr. Murthy noted a one-half

inch contusion or bruise in the left chest area, a contusion under the chin of less than

half an inch and extremely small contusions at each eyebrow. (2T. at 446-447). No

evidence of injury was noted on the surface of the skin in the area of the back of the

head, front of the head and the scalp. (2T. at 452).

         {¶18} During his internal examination of the body, Dr. Murthy observed a tiny

contusion in the left chest area extending to the lung. (2T. at 449-451). Dr. Murthy

observed more than two “maybe ten, twelve, thirteen in that range, multiple, prominent,

subgaleal contusions.” (2T. at 452; State’s Exhibits 8G; 8H; 8I; 8N and 8J). The

subgaleal contusions were “on the top of the head, right side, left side and the back.”

(2T. at 459-460). Dr. Murthy further observed “the massive accumulation of acute

subdural hemorrhage.” (2T. at 464). Dr. Murthy concluded that the primary cause of

death was blunt impacts to the head. (Id.)

         {¶19} Dr. Murthy also found bronchopneumonia in the lungs. (2T. at 472). Dr.

Murthy testifed concerning this finding,

               Well, to me, it indicates he sustained multiple, forceful blunt impacts

         injuries to the head. Again, to the best of my judgment and knowledge,
Stark County, Case No. 2013CA00192                                                       7


       two or three forceful impacts on the head, the kid is unconscious, he’s

       lying there and then the brain gets swollen, the brain is injured and the

       respiratory system gets labored, he gets snoring, shallow respirations and

       the celia does not move the secretions, so he’s a beautiful candidate to

       develop bronchopneumonia. So injury on top of injury—a chain of events

       starts.

2T. at 473-474.

       {¶20} Dr. Murthy testified that the child suffered multiple impacts, “maybe nine,

ten, twelve, thirteen, I don’t know. But two or three impacts itself would be sufficient to

make a little child unconscious.” (2T. at 475)

       {¶21} Dr. Murthy concluded that Bri’Sean died as a result of multiple massive

blunt impact injuries to his head and the back of his neck. (2T. at 477). Concerning the

time of death, Dr. Murthy opined,

                 Q.   Can you tell how long it would have taken this child to die

       after becoming unconscious and then, as you said, becoming a candidate

       for that bronchopneumonia?

                 A.   To the best of my judgment and experience, the sequence

       would be something like this, three or four blunt impact injuries of this

       magnitude, the child would be unconscious, then the brain gets injured,

       starts getting swollen, and the accumulation of blood in the subdural

       space is a very strong thing you find in fatal head injuries. And then the

       subarachnoid hemorrhage. Subarachnoid hemorrhage is also an irritant

       and sometimes the medulla oblongata, where the heart and the brain
Stark County, Case No. 2013CA00192                                                     8


       centers – brain functions, cardio-respiratory centers are located, when

       they're bathed in blood they get into spasm so the -- the chain of events

       take place and then he becomes a candidate for pneumonia so -- and

       then he will probably die of pneumonia three, four hours after injury, and

       then three or four hours later he dies, approximately.

2T. at 480.

       G. The Homicide Investigation

       {¶22} Deputy Rick Stauffer of the Stark County Sherriff’s Department responded

to the 9-1-1 call at Aeschlimann’s home on October 20, 2011. (1T. at 236). He

attempted to obtain written statements from Aeschlimann and Brittany. Deputy Stauffer

noted and photographed the small bruise on Bri’Sean’s chest. (1T. at 246-247; State’s

Exhibit 4D).

       {¶23} The following day, Deputy Stauffer was informed by an investigator from

the coroner’s office that Bri’Sean’s death was ruled a homicide. Deputy Stauffer notified

Detective John Von Spiegel. The pair met with the coroner’s investigator and reviewed

the physical findings.

       {¶24} Detective Von Spiegel contacted Aeschlimann. He did not inform

Aeschlimann about the results of the autopsy. Instead, Detective Von Spiegel told

Aeschlimann he just had some follow-up questions. (2T. at 334). Detective Von Spiegel

asked Aeschlimann to bring Brittany and Hannah to the station. Aeschlimann then took

Hanna to his parents who were dining at a local restaurant. Aeschlimann subsequently

informed Detective Von Spiegel that Hanna was not home, she was out to dinner with

his parents. Detective Von Spiegel contacted Aeschlimann’s parents, Jody and Alan,
Stark County, Case No. 2013CA00192                                                        9


who brought Hannah to the Sherriff’s office around 8:30 p.m. Brittany’s mother, Leslie

Hoover, arrived around the same time.

       {¶25} Detective Von Spiegel contacted C.J. Taylor of the Child Advocacy Center

to conduct a "forensic interview" of Hannah at the police station. Ms. Taylor met Hannah

in the lobby area when she arrived. Ms. Taylor described Hannah as “very bubbly,

cheery, appeared to be above her developmental age.” (1T. at 206). Hannah asked Ms.

Taylor when it was going to be her time to talk. Brittany’s mother told Ms. Taylor that

she was shocked that Hanna had to be brought there at the time to go over things. (1T.

at 308). Ms. Taylor conceded that it is "very rare" that such interviews are conducted

outside their offices and never before in her 14 years and 1500 interviews had she been

asked to do so in a police station because it is not the best environment. (1T. at 211-

212). Aeschlimann and his parents both objected to the interview unless one of them

was present. The interview did not take place at that time.

       {¶26} Aeschlimann and Brittany were placed in separate interview rooms.

Detective Von Spiegel testifed that Aeschlimann emptied his pockets of his keys, cell

phone and wallet even though Detective Von Spiegel had not told him too. Aeschlimann

testifed that one of the deputies told him to leave them. (3T. at 881-882). He further

testified that he has never carried a wallet. Brittany’s mother testifed that in response to

his mother’s question about why he was giving her his things, Aeschlimann responded,

“Well, just in case something happens. I don’t anticipate anything happening, but just in

case.” (1T. at 309). Aeschlimann testified that he said, “Can you hold on to these until

I’m done.” (3T. at 882). Aeschlimann further testified that Leslie Hoover was mistaken

about what she had heard. (Id.)
Stark County, Case No. 2013CA00192                                                     10


        {¶27} Detective Von Spiegel testifed that Aeschlimann admitted that he had

spanked Bri’Sean on the butt on three occasions in the past. (2T. at 343-344).

Aeschlimann testified that he told the Detective he had “patted” his butt. (3T. at 883-

884).

        {¶28} When Aeschlimann and Brittany were alone in their separate interview

rooms, Brittany asked Aeschlimann “just tell me what happened. (1T. at 138; 2T. at

350). Aeschlimann responded that Brittany should tell them she does not want to talk

anymore and that they will talk when they get home. (1T. at 138; 2T at 350).

        {¶29} Aeschlimann told Detective Von Spiegel about Brittany’s trip to Wal-Mart

on October 19, 2011. When confronted, Brittany admitted the trip to Wal-Mart and

produced a receipt. Surveillance photographs from Wal-Mart showed Brittany arriving at

Wal-Mart at 10:35 p.m. and leaving the parking lot at 10:50 p.m. (1T. at 277-279).

        {¶30} No admissions were obtained during the police interviews of Brittany or

Aeschlimann. Aeschlimann was not permitted to have any contact with Hannah.

Hannah left with her grandparents.

        {¶31} With Aeschlimann’s permission Chelsea Eberling, a forensic interviewer,

interviewed Hannah two days later. (2T. at 599). The interview took place at the home

of her grandparents. Aeschlimann was not present when the interview was conducted.

The interview lasted four to five minutes because Hannah became distracted and did

not want to talk. (2T. at 619). Hannah disclosed nothing traumatic during the interview.

        {¶32} In March 2013, the Stark County Grand Jury returned an indictment that

charged Aeschlimann with the charges of felony murder and child endangering for the

death of two-year-old Bri'Sean T. Gamble on October 19, 2011.
Stark County, Case No. 2013CA00192                                                      11


       {¶33} Deputy Stauffer and Detective Von Spiegel, the only two investigators

assigned to this case, admit that during the interim of October 19, 2011 and

Aeschlimann’s arrest some 17 months later, they developed no witnesses to the

inflicted injuries; nor witnesses to Bri'Sean's death; there were no admission or

confessions to the alleged assault; no relevant physical evidence; nor did they even

request forensic examinations other than the autopsy. In fact, other than the interviews

of Brittany and Aeschlimann whom they declared to be the only two suspects, the only

subsequent investigation include speaking to personnel at Wal-Mart; Brittany’s ex-

boyfriend Sean Gamble; and common associates of each. None were called as

witnesses. After October 31, 2011, neither investigator did anything further related to

this investigation, and "gathered no new evidence about this case." (2T. at 398). Both

officers testified that during the 17 month idle time between October 31, 2011 and the

indictment, Brittany's relatives were very active and public in attempts to see

Aeschlimann charged including phone calls to Detective Von Spiegel, the prosecutor

and others; letters to the editor; and a petition drive. (2T. at 388-389).

       H. The Defense Case.

       {¶34} The three pathologists who testified in this case all agreed that Bri'Sean

suffered from, and died as a result of, subdural hematomas and his death was a

homicide. Dr. P.S. Murthy (2T. at 464; 515) and Dr. Frank Miller (3T. at 965) for the

state; and Dr. Jonathan Arden (2T. at 646) for the defense.

       {¶35} Dr. Murthy would only say that the "injuries must have taken place after

8:30 p.m.," the last time Bri'Sean was observed to have appeared normal. (2T. at 542-

543). Dr. Miller did not render an opinion regarding the time of injury explaining that the
Stark County, Case No. 2013CA00192                                                       12


observations of an "independent person" may have been helpful. However, he could not

rely upon Brittany Boitnott, who was home with Bri'Sean, because he knew her to be a

suspect (3T. at 972-973). Dr. Arden could only say that it is more likely that Bri'Sean

was injured after 8:30 p.m. "but even that cannot be stated categorically." (2T. at 697).

          {¶36} The defense introduced evidence of the principle of "lucid interval” after

which an injury has been inflicted yet the subject does not appear to show symptoms of

injury.

          {¶37} Dr. Murthy agreed that he was aware of the principle and had read the

studies on the subject by Dr. Jan Leestma in a publication entitled Forensic

Neuropathology (2T. at 525). He also agreed, and stated, that a lucid interval is the

proven principle that some people who suffer from a subdural hematoma do not show

any "significant or neuro visible changes", i.e. symptoms. (2T. at 525-526). However, in

the case at bar, Dr. Murthy unequivocally testified that the injuries to Bri’Sean were such

that he would not have been able to function normally after the infliction.

          {¶38} Dr. Miller opined that, he was familiar with the studies of Dr. Leestma and

the principle of lucid interval and although he would not expect it, there is no way to

"conclusively" determine whether Bri'Sean experienced a lucid interval. (3T. at 968-969;

971).

          {¶39} Dr. Arden explained that the very nature of subdural hematomas, in that

they bleed at different rates, makes it most difficult to determine the time of the injury

(2T. at 650). He testified that he agrees with Dr. Leestma that subdural hematomas,

especially in children, frequently have a lucid interval and the studies reflect conclusions

derived from the studies of serious injuries to deaths in children (2T. at 656-657). In this
Stark County, Case No. 2013CA00192                                                       13


case, the mere fact that Bri'Sean may have appeared normal before 8:30 p.m. "does not

exclude that he could have had that subdural hematoma already and he could have

been in that lucid interval" and -be could have been injured as much as an hour or two

before 8:30." (2T. at 657; 684). However, Dr. Arden noted,

              I think it’s more likely that he’s injured after 8:30, but he could have

      been injured any time between 8:30 and sometime in the early morning

      hours. Could have happened at any time in that - - the injury could have

      happened any time in that time frame, and actually death could have

      happened pretty much almost any time in that time frame as well given the

      variabilities [sic.] for accumulation of subdural hemorrhage and given the

      rigor mortis when found the next morning.

2T. at 685.

      {¶40} The following exchange occurred during Dr. Arden’s testimony,

              Q.     Is it any more reasonable to say that these injuries were

      inflicted between 10:20 and 11:00 [while Brittany was at Wal-Mart] than to

      say that the injuries were inflicted between 8:30 and 10:00? [When

      Brittany was alone with both children]?

              A.     No, it's not more reasonable at all. There's nothing medical

      that allows you to say it was more likely the 10:20 to midnight versus the

      8:30 to 10:20. There’s nothing you can do medically, that you can base an

      opinion on medically, that says it more likely happened in one time frame

      than the other.
Stark County, Case No. 2013CA00192                                                                14


               Q.      And both Dr. Murthy and Dr. Miller have said it could have

       occurred any time after 8:30?

               A.      Yes, sir.

2T. at 269.

       I. Verdict and Sentence

       {¶41} The jury first indicated that it had become deadlocked and was unable to

reach a verdict. After the trial court rendered a “Howard charge1,” the jury returned with

a unanimous verdict of guilty of both counts charged in the indictment.

       {¶42} On September 4, 2013, Aeschlimann was sentenced on Count 1 to a term

of 15 years to life. The Court did not impose a sentence on Count 2 in light of the allied

offense provisions of R.C. 2941.25.

                                          Assignments of Error

       {¶43} Aeschlimann raises five assignments of error,

       {¶44} “I. PROOF THAT APPELLANT AND THE MOTHER OF AN INFANT

CHILD WERE THE ONLY CAREGIVERS DURING A TIME PERIOD WHEN THE

CHILD SUFFERED TRAUMATIC INJURIES RESULTING IN HIS DEATH, WITHOUT

ANY EVIDENCE OF WHEN, HOW, OR BY WHOM THE INJURIES WERE INFLICTED,

IS INSUFFICIENT CIRCUMSTANTIAL EVIDENCE TO ESTABLISH GUILT BEYOND A

REASONABLE DOUBT.

       {¶45} “II. THE CORONER RENDERED TRIAL TESTIMONY UNDER OATH, ON

CRITICAL SUBJECTS, THAT WAS CONFLICTING AND IRRECONCILABLE, WHICH


       1
          In State v. Howard, 42 Ohio St.3d 18, 537 N.E.2d 188(1989), the Ohio Supreme Court approved
a supplemental charge to be given to juries that have become deadlocked on the question of conviction
or acquittal.
Stark County, Case No. 2013CA00192                                                   15


PREJUDICED APPELLANT AND DENIED HIM DUE PROCESS UNDER THE

CONSTITUTION OF THE UNITED STATES.

       {¶46} “III. THE TRIAL COURT DENIED APPELLANT HIS CONSTITUTIONAL

RIGHT TO DUE PROCESS AND A FAIR TRIAL BY PERMITTING EVIDENCE THAT

HE HAD ENGAGED IN PROFESSIONAL MIXED MARTIAL ARTS FIGHTING.”

       {¶47} “IV. THE TRIAL COURT'S ORDER PROHIBITING APPELLANT'S

COUNSEL, FROM READING, ARGUING OR REFERRING TO THE BILL OF

PARTICULARS IN ARGUMENT DENIED APPELLANT HIS CONSTITUTIONAL

RIGHTS TO A FAIR TRIAL UNDER THE CONSTITUTION OF THE UNITED STATES.

       {¶48} “V. THE TRIAL COURT DENIED APPELLANT HIS CONSTITUTIONAL

RIGHT TO DUE PROCESS AND A FAIR TRIAL BY PROHIBITING THE DEFENSE

FROM      THE   PRESENTMENT        OF   RELEVANT       EVIDENCE     REGARDING       AN

ALTERNATIVE SUSPECT.”

                                              I.

       {¶49} Aeschlimann’s first assignment of error challenges the sufficiency of the

evidence. Subsumed within his argument, Aeschlimann contends his convictions are

against the manifest weight of the evidence produced by the state at trial. [Appellant’s

Brief at 13].

       {¶50} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable
Stark County, Case No. 2013CA00192                                                           16

doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d

1239, 2010–Ohio–1017, ¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,

2010–Ohio–2720, ¶68.

       {¶51} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio

St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the

inclination of the greater amount of credible evidence, offered in a trial, to support one

side of the issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the evidence in

their minds, they shall find the greater amount of credible evidence sustains the issue,

which is to be established before them. Weight is not a question of mathematics, but

depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,

quoting Black's Law Dictionary (6th Ed. 1990) at 1594.

       {¶52} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.
Stark County, Case No. 2013CA00192                                                      17

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).

Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case

in which the evidence weighs heavily against the conviction.’” Id.

              “[I]n determining whether the judgment below is manifestly against

       the weight of the evidence, every reasonable intendment and every

       reasonable presumption must be made in favor of the judgment and the

       finding of facts.

                                            ***

               “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent

       with the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

       {¶53} There is no dispute in the case at bar that a Bri’Sean died because of

blunt force trauma to his head and neck. Aeschlimann’s main argument is that there

was insufficient evidence to identify him as the assailant in the death of the child.

       {¶54} The gravamen of Aeschlimann argument is that the time frame for

Bri'Sean's injuries included two time periods when the two adults were separately alone

with the child. Aeschlimann argues that the evidence did not prove beyond a reasonable

doubt that he inflicted Bri’Sean’s fatal injuries when he was alone with the boy, as

opposed to Brittany inflicting the injuries when she was alone with her son.
Stark County, Case No. 2013CA00192                                                    18

      {¶55} Aeschlimann relies upon State v. Miley, 114 Ohio App.3d 738, 684

N.E.2d 102 (4th Dist.1996). In Miley, the state presented evidence that the defendant’s

infant daughter had been intentionally abused, and that the defendant and the child’s

mother were the only individuals with access to the child. However, there was no direct

evidence that either the defendant or the mother had abused the child. Furthermore, the

state could not establish a specific time period during which the child was abused.

      {¶56} The trial court in Miley denied the defendant’s Crim.R. 29 motion for

acquittal. The jury found the defendant guilty of child endangering, in violation of R.C.

2919.22(A). The Fourth District Court of Appeals reversed, finding that the evidence

was insufficient to support the conviction. The circumstantial evidence merely supported

a fifty-percent possibility that either the defendant or the child’s mother committed the

abuse. Furthermore, the evidence did not establish that the defendant should have

been aware that the child had been abused. Thus, the Court found that reasonable

minds could only conclude that the state had not proven the material elements of child

endangerment beyond a reasonable doubt. Id. at 745, 684 N.E.2d at 107.

      {¶57} We find Miley to be distinguishable. In Miley, the other caregiver, the

child’s mother, did not testify during trial. In the case at bar, the only other person

present during the period when the injuries occurred was the child’s mother, Brittany.

She testified that she did not inflict the fatal blows upon her son. Aeschlimann also

testified in his own defense. Thus, the jury was able to hear and see the only persons

who could have committed the crime.
Stark County, Case No. 2013CA00192                                                          19

       {¶58} Indeed, the Fourth District Court of Appeals itself distinguished Miley on

this basis in State v. Sampsill, 4th Dist. Pickaway No. 97CA17, 1998WL346680(June

29, 1998), wherein the court stated,

                 The only other person present during the time-frame [when the

       child was injured] was Vanchure. He testified that he did not injure Brittany

       and the jury was free to believe his testimony. Further, appellant was

       alone with Brittany for a much larger portion of the time-frame than

       Vanchure.

See also, State v. Swain, 4th Dist. Ross No. 01CA2591, 2002-Ohio-414.(“Although

some evidence exists that appellant was not the sole caretaker during the period of time

when the abuse occurred, once again the jury was free to reject appellant’s other

evidence...”).

       {¶59} If the state relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for “such evidence to be irreconcilable with any

reasonable theory of innocence in order to support a conviction.” State v. Jenks, 61

Ohio St.3d 259, 272, 574 N.E. 2d 492(1991), paragraph one of the syllabus,

superseded by State constitutional amendment on other grounds as stated in State v.

Smith, 80 Ohio St.3d 89, 684 N.E.2d 668(1997). “Circumstantial evidence and direct

evidence inherently possess the same probative value [.]” Jenks, 61 Ohio St.3d at

paragraph one of the syllabus. Furthermore, “[s]ince circumstantial evidence and direct

evidence are indistinguishable so far as the jury's fact-finding function is concerned, all

that is required of the jury is that i[t] weigh all of the evidence, direct and circumstantial,

against the standard of proof beyond a reasonable doubt.“ Jenks, 61 Ohio St.3d at 272,
Stark County, Case No. 2013CA00192                                                         20


574 N.E. 2d 492. While inferences cannot be based on inferences, a number of

conclusions can result from the same set of facts. State v. Lott, 51 Ohio St.3d 160, 168,

555 N.E.2d 293(1990), citing Hurt v. Charles J. Rogers Transp. Co, 164 Ohio St. 329,

331, 130 N.E.2d 820(1955). Moreover, a series of facts and circumstances can be

employed by a jury as the basis for its ultimate conclusions in a case. Lott, 51 Ohio

St.3d at 168, 555 N.E.2d 293, citing Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.

       {¶60} The jury heard evidence from the grandparents that the child was

functioning normally as late as 8:30 p.m. The jury further was presented evidence that

due to the severity of the blows inflicted upon him, Bri’Sean would most likely have been

rendered unconscious. All three experts agreed that it was more likely that the injuries

were inflicted after 8:30 p.m.

       {¶61} The jury heard Brittany’s explanation concerning the events that occurred

after the grandparents had left. Brittany testified that she fed her son and gave him a

bath around 9:15 p.m. She put him to bed around 10:00 to 10:15 p.m. Bri’Sean patted

his pillow indicating that he wanted Brittany to lay with him. She did for a short time.

       {¶62} The jury heard Aeschlimann’s explanation as well. He testified that he did

not interact with the child after he came home from work. The jury was aware that

Aeschlimann was alone in the home with the children while Brittany went to Wal-Mart.

       {¶63} Evidence was presented which if believed inferred that when asked by

Detective Von Spiegel to bring Hanna with him, Aeschlimann instead deliberately took

his daughter to his parents. The jury was presented with evidence that Aeschlimann

refused to allow the authorities to interview Hannah that night in spite of the precautions

that were taken to make her feel comfortable. The jury further heard evidence that when
Stark County, Case No. 2013CA00192                                                     21


asked by Brittany what had happened, Aeschlimann responded that she should stop

talking to the police and he would discuss it when they got home.

      {¶64} The jury heard the parties’ evidence and counsels’ arguments and was

free to reject Aeschlimann’s claims of innocence.

      {¶65} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Aeschlimann committed the crimes. We hold, therefore, that the state met its burden of

production regarding each element of the crimes and, accordingly, there was sufficient

evidence to support Aeschlimann's convictions.

      {¶66} As an appellate court, we are not fact finders; we neither weigh the

evidence nor judge the credibility of witnesses. Our role is to determine whether there is

relevant, competent and credible evidence upon which the fact finder could base his or

her judgment. Cross Truck v. Jeffries, 5th Dist. No. CA–5758, 1982 WL 2911(Feb. 10,

1982). Accordingly, judgments supported by some competent, credible evidence going

to all the essential elements of the case will not be reversed as being against the

manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d

279, 376 N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n

determining whether the judgment below is manifestly against the weight of the

evidence, every reasonable intendment and every reasonable presumption must be

made in favor of the judgment and the finding of facts. * * *.’” Eastley v. Volkman, 132

Ohio St.3d 328, 334, 972 N.E. 2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc.

v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio

Jurisprudence 3d, Appellate Review, Section 603, at 191–192 (1978). Furthermore, it is
Stark County, Case No. 2013CA00192                                                            22


well established that the trial court is in the best position to determine the credibility of

witnesses. See, e.g., In re Brown, 9th Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing

State v. DeHass, 10 Ohio St .2d 230, 227 N.E.2d 212(1967).

       {¶67} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,

¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964

(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of

the evidence or two conflicting versions of events, neither of which is unbelievable, it is

not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning

No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197,

201, 722 N.E.2d 125(7th Dist. 1999).

       {¶68} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-

Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.

843, 74 L.Ed.2d 646 (1983).

       {¶69} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. "While the jury may

take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or
Stark County, Case No. 2013CA00192                                                      23

sufficiency of the evidence." State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236,

1996 WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness'

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889,

citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992).

Although the evidence may have been circumstantial, we note that circumstantial

evidence has the same probative value as direct evidence. State v. Jenks, supra;

      {¶70} We find that the jury neither lost his way nor created a miscarriage of

justice in convicting Aeschlimann of the charges.

      {¶71} Based upon the foregoing and the entire record in this matter, we find

Aeschlimann’s convictions were not against the sufficiency or the manifest weight of the

evidence. To the contrary, the jury appears to have fairly and impartially decided the

matters before them. The jury as a trier of fact can reach different conclusions

concerning the credibility of the testimony of the state’s witnesses and the defendant’s

witnesses. This court will not disturb the jury's finding so long as competent evidence

was present to support it. State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978).

The jury heard the witnesses, evaluated the evidence, and was convinced of

Aeschlimann’s guilt.

      {¶72} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of

each crime beyond a reasonable doubt.
Stark County, Case No. 2013CA00192                                                     24


       {¶73} Aeschlimann’s first assignment of error is overruled.

                                                II.

       {¶74} In his second assignment of error, Aeschlimann argues that he was

denied due process trial because the testimony of Dr. Murthy was conflicting in

several respects. Aeschlimann first points to Dr. Murthy’s testimony that he

believed that a pillow or a towel had been used to cushion the blows delivered to

Bri’Sean. Aeschlimann characterizes this testimony as false. Secondly, the

coroner rendered testimony on cross-examination, on three separate occasions,

that "any normal healthy adult, pretty much of any size, shape, or, you, know

capability" could have inflicted the injuries that caused Bri'Sean's death.

However, in response to the question of a juror, propounded by the Court, the

coroner said the opposite. Aeschlimann cites Ward-Collins v. Sugar, 8th Dist.

Cuyahoga No. 87546, 2006-Ohio-5589, 2006 WL 3030981 for the proposition

that the Court of Appeals has a clear duty to grant a new trial on the weight of the

evidence where it appears probable that a verdict is based upon false testimony.

       {¶75} In Tanzi v. New York Central RR. Co., 155 Ohio St. 149, 153, 98

N.E.2d 39, 42(1951), the Ohio Supreme Court stated the following rule for

granting new trials where the movant claims that false testimony was given:

              A witness is required to take an oath before giving his testimony

       and is subject to prosecution for perjury if he gives false testimony.

       Furthermore, juries have the duty to detect and disregard false testimony.

       Finally, in the event that a jury does not detect and disregard false

       testimony, the trial court and the Court of Appeals [both have] a clear duty
Stark County, Case No. 2013CA00192                                                       25


       to grant a new trial on the weight of the evidence where it appears

       probable that a verdict is based upon false testimony.

       {¶76} In Markan v. Sawchyn, 36 Ohio App.3d 136, 138, 521 N.E.2d 824(8th

Dist. 1987), the Court observed,

              In this case, defendant claims the record indicates that a key

       witness’s testimony consisted of false statements. In reviewing the record,

       we conclude to the contrary. Although the testimony may at times have

       been inconsistent and contradictory, there is insufficient basis for a

       determination that it was false. If apparent contradictions by witnesses

       justified new trials, courts would be besieged with motions for new trials

       because such evidence is found in almost every trial.

Accord, Silver v. Jewish Home of Cincinnati, 190 Ohio App.3d 549, 2010-Ohio-5314,

943 N.E.2d 577(12th Dist.), ¶33. In this case, although the testimony may at times have

been inconsistent and contradictory, there is insufficient basis for a determination that it

was false. The statements were Dr. Murthy’s opinions based upon hypothetical

questions. They were subject to cross-examination and argument of counsel. Any

inconsistency in Dr. Murthy’s testimony goes to the weight, not the admissibility of the

testimony. In other words, ‘[t]he jury is the sole judge of the weight of the evidence and

the credibility of witnesses. It may believe or disbelieve any witness or accept part of

what a witness says and reject the rest.’ ” McKay Machine Co. v. Rodman, 11 Ohio

St.2d 77, 82, 228 N.E.2d 304(1967).

       {¶77} Aeschlimann has failed to demonstrate that any of Dr. Murthy’s testimony

was false.
Stark County, Case No. 2013CA00192                                                    26


      {¶78} Aeschlimann’s second assignment of error is overruled.

                                              III.

      {¶79} In his third assignment of error, Aeschlimann contends that evidence

admitted at trial that he had engaged in professional mixed martial arts fighting denied

him due process and a fair trial because it was used as impermissible character

evidence.

      {¶80} In advance of trial, Aeschlimann’s counsel filed a Motion in Limine

notifying the Court of its objection to the admission of other acts and character

evidence. Specifically, evidence that Aeschlimann was a professional mixed martial arts

fighter. (See, T. August 2, 2013 at 14-25). The state responded:

             As the material issue in the case is not the cause of death, but

      rather the identity of the perpetrator, evidence of the defendant's extensive

      training, knowledge and experience in fighting is extremely probative and

      material.

      {¶81} At trial, the state asked Brittany Boitnott where she had met defendant,

she responded, “When I did ring card girl for Fight Fest,” and defendant objected. (1T at

91). The court allowed the testimony but reserved ruling on the publication of a

photograph of defendant in his fighting apparel. The prosecution then asked if he was

"involved as a fighter.” Again, defense objections were overruled (1T. at 94). Boitnott

then testified that he was involved in that kind of fighting throughout the time she knew

him and he was definitely less muscular now. She then identified his photograph but it

was not displayed to the jury.
Stark County, Case No. 2013CA00192                                                    27


       {¶82} During cross-examination of Aeschlimann, the prosecutor returned to the

subject of Aeschlimann's professional fighting by asking whether he was healthy

enough to "train and workout in MMA fighting,” and later, whether he had to be

physically fit "in order to be a cage fighter." (3T. at 886).

       {¶83} During closing argument the character references continued as the

prosecutor said, “This defendants a fighter, he's aware of his power, his strength." (4T.

at 1013). The argument continued as the prosecutor compared Aeschlimann to Brittany

Boitnott by asserting, "It's not her who's used to using his strength in the way that he

does in the ring or the cage.” (4T. at 1019).

       {¶84} Evid.R. 404(B) is in accord with R.C. 2945.59 in that it precludes the

admission of evidence of other crimes, wrongs, or acts offered to prove the character of

an accused in order to show that the accused acted in conformity therewith, but it does

not preclude admission of that evidence for other purposes. State v. Williams, 134 Ohio

St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, syllabus. The Court in Williams noted,

              The General Assembly, however, has codified certain exceptions to

       the common law regarding the admission of evidence of other acts of

       wrongdoing. Those exceptions are contained in R.C. 2945.59:

              In any criminal case in which the defendant's motive or intent, the

       absence of mistake or accident on his part, or the defendant's scheme,

       plan, or system in doing an act is material, any acts of the defendant

       which tend to show his motive or intent, the absence of mistake or

       accident on his part, or the defendant's scheme, plan, or system in doing

       the act in question may be proved, whether they are contemporaneous
Stark County, Case No. 2013CA00192                                                     28


      with or prior or subsequent thereto, notwithstanding that such proof may

      show or tend to show the commission of another crime by the defendant.

             This court likewise has promulgated Evid.R. 404(B), which states:

             Evidence of other crimes, wrongs, or acts is not admissible to prove

      the character of a person in order to show action in conformity therewith. It

      may, however, be admissible for other purposes, such as proof of motive,

      opportunity, intent, preparation, plan, knowledge, identity, or absence of

      mistake or accident.

134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶15.

      {¶85} The admissibility of other acts evidence is carefully limited because of the

substantial danger that the jury will convict the defendant solely because it assumes

that the defendant has a propensity to commit criminal acts, or deserves punishment

regardless of whether he or she committed the crime charged in the indictment. See

State v. Curry (1975), 43 Ohio St.2d 66, 68, 330 N.E.2d 720(1975). This danger is

particularly high when the other acts are very similar to the charged offense, or of an

inflammatory nature, as is certainly true in this case. State v. Schaim, 65 Ohio St.3d 51,

60, 1992-Ohio-31, 600 N.E.2d 661,669.

      {¶86} Other acts may prove identity by establishing a modus operandi applicable

to the crime with which a defendant is charged. “Other acts forming a unique,

identifiable plan of criminal activity are admissible to establish identity under Evid.R.

404(B).” State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180(1990), syllabus. “‘Other

acts' may be introduced to establish the identity of a perpetrator by showing that he has

committed similar crimes and that a distinct, identifiable scheme, plan, or system was
Stark County, Case No. 2013CA00192                                                    29

used in the commission of the charged offense.” State v. Smith, 49 Ohio St.3d 137, 141,

551 N.E.2d 190(1990); State v. Lowe, supra, 69 Ohio St.3d at 531, 1994-Ohio-345, 634

N.E.2d at 629.

      {¶87} “Pattern” evidence refers to other acts evidence that is admissible when

the defendant's scheme, plan, or system in doing an act is relevant at trial. Evidence of

a defendant's scheme, plan, or system in doing an act can be relevant for two reasons:

(1) the other acts are part of one criminal transaction such that they are inextricably

related to the charged crime, and (2) a common scheme or plan tends to prove the

identity of the perpetrator. State v. Curry (1975), 43 Ohio St.2d 66, 72-73, 330 N.E.2d

720(1975).

      {¶88} In the case at bar, without any evidence directly implicating Aeschlimann’s

mixed martial arts background in the death of Bri’Sean we fail to see how evidence of

Aeschlimann’s mixed martial arts training or background was a matter genuinely in

issue. Put differently, we fail to see how such evidence was circumstantially connected

to the manner or cause of Bri’Sean’s death. The record in this case presents no basis to

conclude that Aeschlimann’s fighting background was in any sense intrinsic to the death

of the child. As we have noted, there is no evidence connecting the amount or type of

force necessary to inflict the injuries to any expertise or training in the mixed martial

arts. Rather, the experts agreed that any adult could have inflicted the fatal blows. The

only purpose of such testimony and argument appears to have been to portray

Aeschlimann as a person with violent propensities. State v. Johnson, 71 Ohio St.3d

332, 340, 1994-Ohio-304, 643 N.E.2d 1098. Accord, State v. Burson, 38 Ohio St.2d
Stark County, Case No. 2013CA00192                                                   30

157, 159-160, 311 N.E.2d 526(1974); State v. Griffin, 142 Ohio App.3d 65, 75-76, 753

N.E.2d 967(1st Dist. 2001).

      {¶89} In State v. Hirsch, 129 Ohio App.3d 294, 309, 717 N.E.2d 789(1st Dist.

1998), the Court observed,

             More troublesome is Hirsch’s contention that the trial court admitted

      evidence that Hirsch had a violent military background, that he collected

      and carried weapons, that he had behaved violently, that he lived in a

      desolate “compound,” and that he had the nicknames “Rambo” and

      “Psycho Johnny.” Much of this evidence was other-acts evidence

      presented solely for the purpose of painting Hirsch as a violent individual,

      and it was clearly inadmissible under Evid.R. 404(B). See State v. Gillard

      (1988), 40 Ohio St.3d 226, 230, 533 N.E.2d 272, 277, certiorari denied

      (1989), 492 U.S. 925, 109 S.Ct. 3263, 106 L.Ed.2d 608; State v. Davis

      (1989), 64 Ohio App.3d 334, 339–340, 581 N.E.2d 604, 607–608; State v.

      Jones (Dec. 29, 1995), Hamilton App. No. C–950005, unreported, 1995

      WL 763604. Some of it was not technically other-acts evidence, but it had

      little relevance other than to portray Hirsch as a violent individual. See

      Soke, supra, 105 Ohio App.3d at 249, 663 N.E.2d at 1001; Jones, supra.

      Consequently, the trial court erred in admitting this evidence.

      {¶90} Despite finding that the trial court erroneously admitted the other-acts

evidence in the case at bar, we must determine if the error was harmless. Pursuant to

Crim.R. 52(A), “any error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded.” See also State v. McKnight, 107 Ohio St.3d
Stark County, Case No. 2013CA00192                                                     31


101, 2005–Ohio–6046, 837 N.E.2d 315, ¶88 (applying non-constitutional harmless-error

analysis to erroneous admission of other acts evidence). To find an error harmless, an

appellate court must be able to declare a belief that the error was harmless beyond a

reasonable doubt. State v. Lytle, 48 Ohio St.2d 391, 403, 358 N.E.2d 623 (1976).

      {¶91} In determining      whether an error in the admission of evidence is

“harmless”, we agree with the Supreme Court of Montana that at least three different

approaches appear in United States Supreme Court cases: (1) Focusing on the

erroneously admitted evidence or other constitutional error to determine whether it

might have contributed to the conviction e. g., Fahy v. Connecticut 375 U.S. 85, 84

S.Ct. 229, 11 L.Ed.2d 171(1963); (2) excluding the constitutional infirmity where

overwhelming evidence supports the conviction e. g., Milton v. Wainwright, 407 U.S.

371, 92 S.Ct. 2174, 33 L.Ed.2d 1(1972); (3) determining whether the tainted evidence is

merely cumulative or duplicates properly admitted evidence e. g., Harrington v.

California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284(1969). See, State v. McKenzie,

186 Mont. 481, 533, 186 P.2d 428(1980). These three differing approaches have been

noted in Ohio. See, State v. Rahman, 23 Ohio St.2d 146, 151, 492 N.E.2d

401(1986)(“Upon a thorough review of the record, we simply cannot state in good

conscience that the error in the admission of this privileged testimony was either

harmless beyond a reasonable doubt, did not have an impact on the jury, or did not

contribute to appellant’s conviction in any meaningful degree.” (Footnote omitted)).

      {¶92} In Fahy v. Connecticut, the United States Supreme Court held that the

erroneous admission of unconstitutionally obtained evidence required reversal, noting

that the Supreme Court was “not concerned ... with whether there was sufficient
Stark County, Case No. 2013CA00192                                                        32


evidence on which the [defendant] could have been convicted” absent the erroneously

admitted evidence, but rather whether there was a “reasonable possibility that the

evidence complained of might have contributed to the conviction.” 375 U.S. 85, 86–87,

84 S.Ct. 229, 11 L.Ed.2d 171 (1963).

       {¶93} In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705

(1967), the Court rejected the view that all federal constitutional errors in the course of a

criminal trial require reversal. The Court held that the Fifth Amendment violation of

prosecutorial comment upon the defendant’s failure to testify would not require reversal

of the conviction if the State could show “beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.” Id., at 24, 87 S.Ct. at 828.

       {¶94} In Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182

(1993), the Court further explained the harmless error analysis as set forth in Chapman,

              Consistent with the jury-trial guarantee, the question it instructs the

       reviewing court to consider is not what effect the constitutional error might

       generally be expected to have upon a reasonable jury, but rather what

       effect it had upon the guilty verdict in the case at hand. See Chapman,

       supra, 386 U.S., at 24, 87 S.Ct. at 828 (analyzing effect of error on “verdict

       obtained”). Harmless-error review looks, we have said, to the basis on

       which “the jury actually rested its verdict.” Yates v. Evatt, 500 U.S. 391,

       404, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991) (emphasis added).

       The inquiry, in other words, is not whether, in a trial that occurred without

       the error, a guilty verdict would surely have been rendered, but whether

       the guilty verdict actually rendered in this trial was surely unattributable to
Stark County, Case No. 2013CA00192                                                        33


      the error. That must be so, because to hypothesize a guilty verdict that

      was never in fact rendered—no matter how inescapable the findings to

      support that verdict might be—would violate the jury-trial guarantee.

Sullivan at 279, 113 S.Ct. 2078, 124 L.Ed.2d 182.

      {¶95} As one Court has explained,

             Thus we, as a reviewing court, do not pretend that the constitutional

      error did not occur and then evaluate how overwhelming the evidence

      would have been to a hypothetical jury, or even to the jury charged with

      fairly deciding this case. We do not hypothetically extract the error from

      the trial which the jury heard; we must, however, consider and weigh the

      effect of the error on the actual jury.

             After evaluating the effect of the error in this case, if we find

      “[u]nder these circumstances” that it is completely impossible for us to say

      the prosecution has demonstrated, beyond a reasonable doubt, that the

      trial prosecutor’s questioning and comments, and the trial judge’s error,

      did not contribute to Mr. Marshall’s conviction, then we cannot find the

      error harmless. See Chapman v. California, supra at 26, 87 S.Ct. 824. And

      if the error is not harmless, then Mr. Marshall is entitled “to a trial free from

      the pressure of unconstitutional inferences.” Id. But if we can find beyond

      a reasonable doubt that this jury’s verdict is surely unattributable to the

      constitutional error, then the error is harmless and the trial was fair.

      (Citations omitted).
Stark County, Case No. 2013CA00192                                                    34

State v. Marshall, 2012-0650, 120 So.3d 922, 929(La.App. 4 Cir. 7/31/13). In State v.

Rahman, the Ohio Supreme Court recognized this principal,

             We are also mindful that our role upon review of this case is not to

      sit as the supreme trier of fact, but rather to assess the impact of this

      erroneously admitted testimony on the jury. In writing about the court’s

      function on federal appellate review, Justice John Paul Stevens’

      observation is particularly appropriate:

             “‘[I]t is not the appellate court’s function to determine guilt or

      innocence * * *. Nor is it to speculate upon probable reconviction and

      decide according to how the speculation comes out * * *. [T]he question is,

      not were [the jury] right in their judgment, regardless of the error or its

      effect upon the verdict. It is rather what effect the error had or reasonably

      may be taken to have had upon the jury’s decision. The crucial thing is the

      impact of the thing done wrong on the minds of other men, not on one’s

      own, in the total setting.’ ” United States v. Hasting (1983), 461 U.S. 499,

      516, 103 S.Ct. 1974, 1984, 76 L.Ed.2d 96, Stevens, J. concurring (quoting

      Kotteakos v. United States [1946], 328 U.S. 750, 763-764, 66 S.Ct. 1239,

      1247-1248, 90 L.Ed. 1557).

State v. Rahman, 23 Ohio St.3d 146, n. 4, 492 N.E.2d 401. This standard of review has

been applied by the Ohio Supreme Court,

             Thus, under Section 2945.83 of the Revised Code it would seem

      that since there is substantial evidence to support the guilty verdict even

      after the tainted evidence is cast aside, we should affirm. However, under
Stark County, Case No. 2013CA00192                                                                       35

         Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171

         (1963), and Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17

         L.Ed.2d 705 (decided February 20, 1967), we are refused that course of

         action. In Fahy, the court said that when constitutionally inadmissible

         evidence has been admitted, a reversal is required where ‘there is a

         reasonable possibility that the evidence complained of might have

         contributed to the conviction.’ (Emphasis added.) In Chapman, the court

         made it clear that the Fahy rule applied to federal constitutional errors in

         spite of a state harmless-error statute to the contrary.

State v. Cowans, 10 Ohio St.2d 97,104-105, 227 N.E.2d 201(1967).

         {¶96} In the case at bar, we find beyond a reasonable doubt, that the evidence

of Aeschlimann’s mixed martial arts background did not contribute to his conviction.

Both Aeschlimann and Brittany testified at trial. The jury was able to personally observe

the physical characteristics, size, relative strength and demeanor of each. Each expert

testified, in essence, that no special strength or skill was need to inflict the fatal blows.

Aeschlimann testifed that he uses strength and technique to restrain individuals in his

job as a corrections officer at a maximum-security facility for juvenile offenders2. Thus,

evidence of his mixed martial arts training is cumulative to other evidence that was

admitted concerning his strength and abilities.

         {¶97} Based upon the entire record before us, we conclude that any error in the

admission of the mixed martial arts testimony was harmless beyond a reasonable

doubt.


         2
          Although Aeschlimann initially objected to this testimony at trial, he does not assign as error the
introduction of this testimony in this appeal. (3T. at 888).
Stark County, Case No. 2013CA00192                                                      36


       {¶98} Aeschlimann’s third assignment of error is overruled.

                                                 IV.

       {¶99} In his fourth assignment of error, Aeschlimann maintains the trial court's

order prohibiting appellant's counsel from reading, arguing or referring to the bill of

particulars in argument denied appellant his constitutional rights to a fair trial.

       {¶100} The content of a Bill of Particulars filed in this case and served upon the

defense on March 12, 2013 recited,

               On or about October 19, 2011 between 10:20 p.m. and midnight...

       defendant did recklessly abuse and cause serious physical harm to

       Bri'Sean Gamble... by inflicting massive blunt force injuries to his head

       and posterior neck, which proximately resulted in the child's death. . .

       {¶101} The trial court sustained the state’s motion to amend the bill of particulars

to extend the timeframe during which the injuries were alleged to have been inflicted to

include "the early morning hours of October the 20.” (3T. 728; 935-941).

       {¶102} Aeschlimann contends that the prosecution's claims regarding the time of

injury as first articulated in the Bill of Particulars and then as amended were relevant to

the understanding of the jury regarding the state's expressed uncertainty. Aeschlimann

then argues,

               The jury had heard references to the Bill of Particulars during the

       defense examination of Dr. Arden (R.674, 678). The Court conceded the

       jury had asked questions regarding what a Bill of Particulars is (R.940)

       and acknowledged that she didn't "think the jury knows what a Bill of

       Particulars is." Yet the Court denied instruction thereon in violation of the
Stark County, Case No. 2013CA00192                                                     37

       Court's duty to provide relevant instruction that are necessary for the jury

       to weigh the evidence and to discharge its duty as the fact finder. State v.

       Steele, 2011WL5119107 (Ohio App. 1st Dist.), citing State v. Cornon

       (1990), 50 Ohio St.3d 206, paragraph two of the syllabus. (Emphasis

       added).

Appellant’s Brief at 23.

       {¶103} This appears to be a different claim than the claim set forth in the fourth

assignment of error. Accordingly, we interpret Aeschlimann’s fourth assignment of error

in the following manner: The trial court erred in failing to provide the jury adequate

instructions concerning the purpose of a bill of particulars and the fact that the bill of

particulars in the case at bar had been amended. (3T. at 731).

       {¶104} The giving of jury instructions is within the sound discretion of the trial

court and will not be disturbed on appeal absent an abuse of discretion. State v.

Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (3rd Dist.1993). In order to find an abuse

of that discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140(1983). Jury instructions must be

reviewed as a whole. State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792(1988).

       {¶105} Crim.R. 30(A) governs instructions and states as follows:

              At the close of the evidence or at such earlier time during the trial

       as the court reasonably directs, any party may file written requests that the

       court instruct the jury on the law as set forth in the requests. Copies shall

       be furnished to all other parties at the time of making the requests. The
Stark County, Case No. 2013CA00192                                                          38


       court shall inform counsel of its proposed action on the requests prior to

       counsel's arguments to the jury and shall give the jury complete

       instructions after the arguments are completed. The court also may give

       some or all of its instructions to the jury prior to counsel's arguments. The

       court need not reduce its instructions to writing.

              On appeal, a party may not assign as error the giving or the failure

       to give any instructions unless the party objects before the jury retires to

       consider its verdict, stating specifically the matter objected to and the

       grounds of the objection. Opportunity shall be given to make the objection

       out of the hearing of the jury.

       {¶106} Aeschlimann did not file a written request for specific jury instructions, and

did not object to the trial court's jury instructions. The trial court specifically asked trial

counsel "Does counsel desire anything further at this time?" (4T. at 1109). Both counsel

answered in the negative. (Id.).

       {¶107} Based upon Aeschlimann's failure to proffer instructions or object to the

instructions and bring the issue to the trial court's attention for consideration, we must

address this assignment under the plain error doctrine pursuant to the Crim.R. 52(B).

       {¶108} As the United States Supreme Court observed in Puckett v. United States,

526 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266, (2009),

              If an error is not properly preserved, appellate-court authority to

       remedy the error (by reversing the judgment, for example, or ordering a

       new trial) is strictly circumscribed. There is good reason for this; “anyone

       familiar with the work of courts understands that errors are a constant in
Stark County, Case No. 2013CA00192                                                     39


       the trial process, that most do not much matter, and that a reflexive

       inclination by appellate courts to reverse because of unpreserved error

       would be fatal.”

556 U.S. at 134. (Citation omitted).

              [A]n appellate court may, in its discretion, correct an error not

       raised at trial only where the appellant demonstrates that (1) there is an

       error; (2) the error is clear or obvious, rather than subject to reasonable

       dispute; (3) the error affected the appellant’s substantial rights, which in

       the ordinary case means it affected the outcome of the district court

       proceedings; and (4) the error seriously affect[s] the fairness, integrity or

       public reputation of judicial proceedings.

United States v. Marcus, 560 U.S. 258, 130 S.Ct. 2159, 2164,176 L.Ed.2d 1012

(Internal quotation marks and citations omitted). The Ohio Supreme Court pertinently

addressed when structural error analysis should be used in State v. Perry,

              We emphasize that both this court and the United States Supreme

       Court have cautioned against applying a structural-error analysis where,

       as here, the case would be otherwise governed by Crim.R. 52(B) because

       the defendant did not raise the error in the trial court. See Hill, 92 Ohio

       St.3d at 199, 749 N.E.2d 274; Johnson, 520 U.S. at 466, 117 S.Ct. 1544,

       137 L.Ed.2d 718. This caution is born of sound policy. For to hold that an

       error is structural even when the defendant does not bring the error to the

       attention of the trial court would be to encourage defendants to remain

       silent at trial only later to raise the error on appeal where the conviction
Stark County, Case No. 2013CA00192                                                      40


       would be automatically reversed. We believe that our holdings should

       foster rather than thwart judicial economy by providing incentives (and not

       disincentives) for the defendant to raise all errors in the trial court-where,

       in many cases, such errors can be easily corrected.

101 Ohio St.3d 118, 802 N.E.2d 643, 2004-Ohio-297, ¶23. Thus, the defendant bears

the burden of demonstrating that a plain error affected his substantial rights and, in

addition that the error seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123

L.Ed.2d 508(1993); State v. Perry, 101 Ohio St.3d at 120, 802 N.E.2d 643. Even if the

defendant satisfies this burden, an appellate court has discretion to disregard the error.

State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240(2002); State v. Long, 53 Ohio

St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus; Perry, supra, at 118,

802 N.E.2d at 646.

       {¶109} In the case at bar, the jury was instructed, in pertinent part,

              The offenses charged are alleged to have taken place on or about

       the 19th day of October 2011. It is not necessary that the State prove that

       the offenses were committed on the exact day as charged in the

       indictment. It is sufficient to prove that the offenses took place on a date

       reasonably near the date claimed.

4T. at 1000. This is a correct statement of law. See, State v. Sellards, 17 Ohio St.3d

169, 478 N.E.2d 781(1985); State v. Adams, 5th Dist. Licking No. 02-CA-00043, 2002-

Ohio-5953, ¶8.

       {¶110} The trial court further instructed the jury in relevant part,
Stark County, Case No. 2013CA00192                                                      41


              Before you can find the Defendant Guility of this charge [murder],

       you must find beyond a reasonable doubt that on or about the 19th day of

       October, 2011, and in Stark County Ohio, the Defendant recklessly cause

       the death of Bri’Sean T. Gamble...

4T. at 1001. Ordinarily, precise times and dates are not essential elements of offenses.

Thus, the failure to provide dates and times in an indictment will not alone provide a

basis for dismissal of the charges. A certain degree of exactitude of averments, where

they relate to matters other than elements of the offense, is not per se impermissible or

necessarily fatal to a prosecution. State v. Sellards, 17 Ohio St.3d 169, 171(1985).

       {¶111} We note that the purpose of a bill of particulars is “to elucidate or

particularize the conduct of the accused alleged to constitute the charged offense.”

State v. Sellards, 17 Ohio St.3d 169, 171, 478 N.E. 2d 781, 784(1985). It also acts to

“inform an accused of the exact nature of the charges against him so that he can

prepare his defense thereto.” State v. Fowler, 174 Ohio St. 362, 364, 189 N.E.2d 133,

134(1963). Consistent with this purpose, Crim.R. 7(D) allows amendment of a bill of

particulars “before, during, or after a trial,” provided that “no change is made in the

name or identity of the crime charged.” See, also, State v. Brown, 99 Ohio App.3d 604,

610, 651 N.E.2d 470, 474(1994). Aeschlimann does not argue that the trial court erred

by permitting the state to amend the bill of particulars.

       {¶112} Accordingly, we find no error as the trial court properly instructed the jury

in accordance with the law. Further, we find Aeschlimann did in fact argue to the jury the

uncertainty concerning the time the injuries were inflicted. (4T. 1067-1071; 1075-1076).
Stark County, Case No. 2013CA00192                                                       42


Thus, any error in the trial court’s exclusion of evidence or argument concerning the Bill

of Particulars was harmless beyond a reasonable doubt.

       {¶113} Aeschlimann’s fourth assignment of error is overruled.

                                                V.

       {¶114} Aeschlimann's fifth assignment of error challenges the trial court's ruling

that allegedly prevented him from introducing evidence of an alternative suspect for

Bri'Sean's death. We note that this assignment of error appears overbroad. The only

other potential suspect was the child’s mother Brittany Boitnott. Aeschlimann does not

contend that he was prohibited from introducing evidence of a third party. Rather,

Aeschlimann wanted to introduce evidence that Brittany had been convicted of driving

while under the influence, and was going to Wal-Mart in order to obtain personal items

for her upcoming three-day attendance at the Driver Intervention Program. Aeschlimann

also wanted to present evidence that Brittany was therefore driving while under

suspension when she went to Wal-Mart. The trial court precluded this evidence.

       {¶115} “It is axiomatic that a determination as to the admissibility of evidence is a

matter within the sound discretion of the trial court. See Calderon v. Sharkey, 70 Ohio

St.2d 218, 24 O.O.3d 322, 436 N.E.2d 1008(1982). The issue of whether testimony is

relevant or irrelevant, confusing or misleading is best decided by the trial judge who is in

a significantly better position to analyze the impact of the evidence on the jury.” State v.

Taylor, 39 Ohio St.3d 162, 164, 529 N.E.2d 1382(1988).

       {¶116} The relevant fact that Brittany was going somewhere that she did not

relish going was introduced at trial. The addition of the fact that she was to attend a

driver intervention program is irrelevant because it does not have the tendency to make
Stark County, Case No. 2013CA00192                                                   43


the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence. Evid.R. 101. In

addition, Evid.R. 609(A) does not provide for using a witness’s prior misdemeanor OVI

conviction (punishable by imprisonment for a period of less than one year) for

impeachment purposes. To permit evidenced of the witness’s attendance at a driver’s

intervention program would circumvent Evid.R. 609 in the case at bar.

      {¶117} The trial court did permit evidence about whether Brittany was upset. (1T.

at 153; 188-189). Aeschlimann further was permitted to introduce evidence that Brittany

discussed being upset with Aeschlimann’s mother. (3T. at 752). Therefore, any error in

the trial court’s exclusion of the specific evidence Aeschlimann sought to admit was

harmless beyond a reasonable doubt.

      {¶118} We find that the trial court did not abuse its discretion by excluding

reference to the driver intervention program.

      {¶119} Aeschlimann next argues that he should have been permitted to introduce

evidence that Brittany had driven to Wal-Mart in violation of her driver license

suspension. This information was irrelevant because it does not have the tendency to

make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence. Evid.R. 101. In

addition, the introduction of this evidence may have been a two-edged sword. The fact

that her license was under suspension may have benefitted the state. The state could

have argued that Brittany did not volunteer that she had gone to Wal-Mart when

questioned by the police because she was afraid she would be charged with driving

under suspension.
Stark County, Case No. 2013CA00192                                                44


      {¶120} We accordingly find that the trial court did not abuse its discretion by

excluding reference to the driver license suspension.

      {¶121} Aeschlimann’s fifth assignment of error is overruled.

      {¶122} For the forgoing reasons, the judgment of the Court of Common Pleas,

Stark County, Ohio, is affirmed.

By Gwin, P.J., and

Farmer, J., concur

Delaney, J., dissents
Stark County, Case No. 2013CA00192                                                       45

Delaney, J., dissenting.

       {¶123} I respectfully dissent from the majority’s conclusion in ¶ 97 that the

admission of the mixed martial arts (“MMA”) testimony was harmless beyond a

reasonable doubt.

       {¶124} In the instant matter, the state argued the fatal head injuries suffered by

Bri’Sean were more likely caused by Aeschilmann because he was a larger, more

physically fit person than Brittany, he engaged in MMA fighting and worked as a

corrections officer.

       {¶125} MMA is a full contact combat sport that uses striking and grappling

techniques in a ring or fenced area, commonly called a “cage”. At the pre-trial stage the

state argued “the Defendant’s knowledge and expertise and training and fighting with

his hands is clearly relevant, probative evidence in this case because it makes the fact

more likely that he is the perpetrator of the offense. It shows his familiarity with

placement of blows in the back of the head or in areas - - specific areas of the body. It is

plain and simple Your Honor, highly probative evidence that is circumstantial evidence

that the jury can use in this case and should have the ability to use.” (Hearing

Transcript, p. 19-20).

       {¶126} At trial, however, the experts agreed that any adult could have inflicted

the fatal blows, as noted by the majority. The state never developed in the record how

Aeschilmann’s training in this sport was relevant to Bri’Sean’s injuries.        In closing

argument, the state portrayed Aeschilmann as the “fighter” and corrections officer who

was aware of his power and strength “in the ring or the cage” and in his job working with

“violent youth”.
Stark County, Case No. 2013CA00192                                                      46


       {¶127} I disagree with the majority’s conclusion the evidence of Aeschilmann’s

mixed martial arts involvement was cumulative and harmless. The trial record reflects

the state specifically relied upon this evidence in attempting to convince the jury

Aeschilmann was capable of inflicting the deadly trauma.

       {¶128} Recently, courts have addressed evidentiary issues involving a

defendant’s knowledge and training in MMA.            In State v. Boscarino, 2nd Dist.

Montgomery No. 25580, 2014-Ohio-1858, the court found the defendant’s status as a

licensed MMA fighter was relevant to his awareness that his punches could inflict

serious physical harm. The court cited to cases from other jurisdictions finding MMA or

boxing training can be probative of the defendant’s awareness his actions or culpable

mental state in causing injury. I would agree with this holding in cases when it is

undisputed the defendant inflicted injury but the defendant’s state of mind remains

disputed.

       {¶129} However, the state agrees on appeal this case was about time, not

manner, of death. Under the circumstances herein, I would conclude that the evidence

was not offered for a legitimate purpose, and had limited probative value which is

outweighed by the danger of unfair prejudice.           There were only two possible

perpetrators, Aeschilmann and Brittany. Thus, the credibility of the witnesses was key

to the case. Aeschilmann’s participation and training in MMA tempts the jury to find he

is not credible based on his participation in a violent sport, rather than the actual facts

and circumstances of the case.
Stark County, Case No. 2013CA00192                                                  47


       {¶130} For these reasons, I would sustain the third assignment of error, reverse

the judgment of the trial court and remand the matter for a new trial.
