[Cite as State v. Milby, 2013-Ohio-4331.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2013-02-014

                                                  :            OPINION
    - vs -                                                      9/30/2013
                                                  :

JASON W. MILBY,                                   :

        Defendant-Appellant.                      :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 11CR27727



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Gray & Duning, John C. Kaspar, 130 East Mulberry Street, Lebanon, Ohio 45036, for
defendant-appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, Jason W. Milby, appeals his conviction in the Warren

County Common Pleas Court for felonious assault and endangering children, for which he

was sentenced to eight years in prison. Appellant was charged with those offenses after the

two-year-old child of a woman with whom he was living sustained a severe brain injury while

under appellant's care that has left the child in a permanent vegetative state. For the
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reasons that follow, we affirm appellant's conviction and sentence.

       {¶ 2} Appellant was the live-in boyfriend of B.S.'s biological mother. The alleged

victim, B.S., was two years old at the time of the incident in question and one of his mother's

three children. Since both appellant and B.S.'s mother worked, B.S.'s mother watched the

children in the morning; B.S.'s maternal grandmother watched the children in the afternoon;

and appellant watched the children in the evening until B.S.'s mother returned home.

       {¶ 3} On July 14, 2011, B.S.'s grandmother arrived at his mother's house at about

2:30 p.m. to watch the children. Sometime after B.S.'s mother left for work, his grandmother

prepared snacks for the children. When B.S. was sitting on a chair in the kitchen eating his

snack, he turned around to look at his siblings who were playing a video game. As he did, he

got his legs caught on the legs of the kitchen table and fell off the chair, landing on his right

side. B.S. did not cry after he fell, but instead, got back on the chair and finished eating his

snack and drinking his milk. He then walked over to his sister, who was sitting on a nearby

love seat, curled up next to her and fell asleep.

       {¶ 4} Sometime after 6:00 p.m., appellant came home from work.                     B.S.'s

grandmother told appellant to wake B.S. because she felt he had been sleeping too long and

that might affect his ability to sleep at night. When B.S. woke up, he asked where his sister

was, and B.S.'s grandmother told him she was outside playing with their brother. B.S. went

outside and sat down by his sister on the backyard patio. B.S.'s grandmother allowed

appellant to take a shower, and when he finished, she left at 6:50 p.m., leaving appellant to

care for the three children. After B.S.'s grandmother left, the children continued to play

outside, and appellant went outside to watch them. However, after about 15 to 20 minutes,

appellant went inside to eat some dinner. He permitted B.S.'s older siblings to stay outside,

but he made B.S. go inside with him because B.S. was mischievous and he did not want him

to get into any trouble.
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       {¶ 5} At 8:05 p.m., appellant had a seven-minute cell phone conversation with B.S.'s

mother, during which appellant expressed no concern about B.S.'s health. However, from

8:54 p.m. to 9:04 p.m., appellant sent text messages to B.S.'s mother, asking her to call.

B.S.'s mother did not respond to these messages. At 9:15 p.m., appellant sent B.S.'s mother

a text message that said B.S. was asleep on the floor but was not right. B.S.'s mother

responded by sending appellant a message asking if B.S. was breathing. At 9:16 p.m.,

appellant called B.S.'s mother and had an 80-second conversation with her in which

appellant told her that B.S. was still breathing but had thrown up. B.S.'s mother told

appellant that if he was concerned, he should call B.S.'s grandmother, which he did at 9:21

p.m.

       {¶ 6} B.S.'s grandmother rushed over to B.S.'s home. When she arrived, she

immediately recognized that B.S. was in need of medical care, so she rushed him to a nearby

urgent care facility and carried him inside. The urgent care physician made efforts to

stabilize B.S., but realizing that she needed additional help, called 911. When the urgent

care physician and emergency personnel realized B.S. needed even greater assistance, they

had him CareFlighted to Dayton Children's Hospital. Upon his arrival, a CT scan was

performed on B.S., which revealed that he had a subdural hemorrhage and severe cerebral

edema. B.S. was rushed into surgery where a piece of his skull was removed in order to

relieve the swelling and the blood.

       {¶ 7} B.S. survived his initial injuries but they proved catastrophic. Nearly half his

brain died and that portion of it had to be removed. As a result of his injuries, B.S. can no

longer speak, walk, see or move himself. He must be fed through a gastric tube, transported

by a wheelchair and take numerous medications to continue his bodily functions. He will

require life-long medical care, and his chances of long-term survival have been significantly

reduced.
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       {¶ 8} Appellant was indicted for felonious assault in violation of R.C. 2903.11(A)(1)

and endangering children in violation of R.C. 2919.22(B)(1), with both charges being felonies

of the second degree. Appellant's first trial ended in a mistrial after the jury deadlocked.

However, a jury convicted appellant as charged in his second trial. The trial court merged

appellant's conviction for endangering children with his conviction for felonious assault and

sentenced him to eight years in prison for felonious assault.

       {¶ 9} Appellant now appeals, assigning the following as error:

       {¶ 10} Assignment of Error No. 1:

       {¶ 11} APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A FAIR

TRIAL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.

       {¶ 12} Assignment of Error No. 2:

       {¶ 13} THE JURY'S VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE AND NOT SUPPORTED BY SUFFICIENT EVIDENCE AS THE TRIAL COURT

REVERSED THE BURDEN OF PROOF FROM THE STATE TO THE APPELLANT.

       {¶ 14} Assignment of Error No. 3:

       {¶ 15} THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING

APPELLANT'S MOTION IN LIMINE TO EXCLUDE THE STATE'S EXPERT TESTIMONY OR

IN THE ALTERNATIVE FAILED TO CONDUCT A HEARING ABOUT THE RELIABILITY OF

THE EXPERT TESTIMONY UNDER DAUBERT.

       {¶ 16} We shall discuss appellant's assignments of error in a slightly different order

than the one in which he has presented them, in order to facilitate our analysis of the issues

raised in this appeal.

       {¶ 17} In his first assignment of error, appellant argues he was denied his

constitutional right to effective assistance of counsel because his trial counsel failed to

formally request that the state provide the defense with its expert witnesses' reports in
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previous cases in which they provided expert testimony. We disagree with this argument.

       {¶ 18} To establish a claim of ineffective assistance of counsel, a defendant must

show that his trial counsel's representation fell below an objective standard of

reasonableness and that there exists a reasonable probability that, but for counsel's errors,

the outcome of the proceeding would have been different. Strickland v. Washington, 466

U.S. 668, 687-688, 104 S.Ct. 2052 (1984). A "reasonable probability" is "a probability

sufficient to undermine confidence in the outcome of the proceeding." Id. at 694.

       {¶ 19} The state presented testimony from three medical experts to prove its charges

against appellant: (1) Dr. Laurence Kleiner, M.D., a pediatric neurosurgeon, who performed

the surgery on B.S. that saved his life; (2) Dr. Lori Vavul-Roediger, M.D., who is a child abuse

pediatrician; and (3) Dr. Rendell Alexander, M.D., who is also a child abuse pediatrician and

who is an expert on shaken baby syndrome (SBS) or abusive head trauma (AHT).

       {¶ 20} In support of his ineffective-assistance argument, appellant notes that, in this

case, Dr. Alexander testified that retinal hemorrhaging occurs in 80% to 90% of SBS cases,

but that, in a 1997 case, he testified that, "when we talk about definitions of [SBS], the retinal

hemorrhages we see 90% of the time, 95% of the time (and) once in a while we don't see

retinal hemorrhages on a shaken baby[.] But on a severe case you will undoubtedly see

them." Appellant notes that, in this case, Dr. Alexander acknowledged during his testimony

that there were no signs of retinal hemorrhaging in B.S. even though he had classified B.S.'s

case as severe. Appellant further notes that when this inconsistency was brought to his

attention, Dr. Alexander altered his testimony by stating that B.S.'s case was "moderately

severe." Appellant asserts that "[t]his one instance demonstrates how vitally important prior

expert reports are in impeaching an expert witness." We find this argument unpersuasive.

       {¶ 21} Appellant is asking this court to infer from this one example that his trial counsel

would have found a substantial number of significant conflicts between Dr. Alexander's
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expert testimony in this case and his expert testimony in past cases if counsel had formally

requested that the state provide him with Dr. Alexander's past expert reports. However, the

inference he is requesting this court to draw amounts to mere speculation. Moreover, when

Dr. Alexander modified his testimony by describing B.S.'s case as "moderately severe," after

having initially described it as "severe," Dr. Alexander added, "I mean [B.S.] didn't die, and so

I call those severe cases. But I would say this is pretty serious[.]"

       {¶ 22} We also disagree with appellant's argument that his trial counsel provided him

with ineffective assistance by failing to effectively cross-examine Dr. Alexander on the topic

of "lucid interval." The defense argued at trial that B.S.'s injury was caused when he fell from

a 17-inch chair, and that while B.S. initially appeared to be unhurt from this fall, this was

because he experienced a lucid interval between the time he fell and the time at which the

true extent of his brain injury became evident. However, appellant has failed to present any

persuasive argument as to how his defense counsel could have cross-examined Dr.

Alexander more effectively on the topic of lucid interval. Instead, he merely cites, once again,

defense counsel's failure to formally ask for the state's medical experts' past reports.

However, we have already determined that this alleged performance error cannot establish

an ineffective-assistance claim because it amounts to mere speculation.

       {¶ 23} Furthermore, all three of the state's medical experts disagreed with the defense

theory that B.S. experienced a lucid interval after he sustained his injuries. The state's

medical experts opined that B.S.'s fall from the kitchen chair could not have caused his

severe injuries, and that, due to the severity of his injuries, B.S. would not have experienced

any lucid interval after those injuries were inflicted. Appellant's claim that B.S. experienced a

lucid interval after he fell from the kitchen chair was further undermined by evidence that

appellant told the police that, after B.S. fell from the chair but before the full extent of his

injury became apparent, B.S. rode on his tricycle "around 90 miles per hour."

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       {¶ 24} Appellant also argues his trial counsel was ineffective because he could not find

a scholarly text with which Dr. Alexander was familiar, in order to effectively impeach him on

the topic of lucid interval. However, this alleged failure also fails to demonstrate that he was

deprived of effective assistance because it, too, is speculative and fails to show a

"reasonable probability" of a different outcome, i.e., "a probability sufficient to undermine

confidence in the outcome of the proceeding." Strickland, 466 U.S. at 694.

       {¶ 25} Therefore, appellant's first assignment of error is overruled.

       {¶ 26} In his third assignment of error, appellant argues the trial court erred by denying

his motion in limine to exclude the state's expert testimony regarding SBS or AHT, or, in the

alternative, by refusing to conduct a Daubert hearing about the reliability of expert testimony

regarding SBS or AHT. He asserts that the theory of SBS or AHT has fallen out of favor with

medical experts in this country over the last ten years, and therefore the trial court should

have prohibited the state's experts from testifying about it, or, at least, should have held a

Daubert hearing so that it could make an informed ruling on the reliability of such testimony.

In support of this assertion, appellant relies on one appellate court case from another state,

State v. Edmunds, 308 Wis.2d 374 (2007), and a number of law review articles as well as
                         1
other scholarly articles. We find this argument unpersuasive.

       {¶ 27} While there are experts who disagree about SBS, it remains an accepted theory

in this state and others. See, e.g., Woodson, 8th Dist. Cuyahoga No. 85727, 2005-Ohio-

5691, at ¶ 49; Hendrex, 11th Dist. Trumbull No. 2009-T-0091, 2010-Ohio-2820; and Day v.

State, 2013 OK CR 8, 303 P.3d 291, 296, ¶ 7.




1. The articles cited by appellant include, Keith A. Findley, et al., Shaken Baby Syndrome, Abusive Head
Trauma, and Actual Innocence: Getting it Right, 12 Hous. J. Health L. & Pol'y 230 (2012), and Deborah
Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and The Criminal Courts, 87 Wash. U.L.
Rev. 1 (2009).

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       {¶ 28} In rejecting a claim similar to the one appellant is raising here, the Day court

stated:

              [Appellant] claims that, even if we previously accepted the
              evidence [of SBS], it is no longer reliable under Daubert [v.
              Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct.
              2786 (1993)] because it has been discredited by other scientific
              evidence. This is an exaggeration. The most the record before
              us shows is that experts disagree on the diagnosis of Shaken
              Baby Syndrome (SBS), particularly where there is no evidence
              of some impact injury. This disagreement is vigorous. However,
              neither the testimony at trial nor the references [appellant] cites
              support a conclusion that the theory of abusive head trauma, or
              SBS, has been discredited. Expert testimony is not rendered
              unreliable by criticism. Harris v. State, 2004 OK CR 1, ¶ 31 n.
              10, 84 P.3d 731, 746 n. 10. [Appellant's] jury determined the
              weight and credibility to give to each witness. Warner [v. State],
              2006 OK CR 40, ¶ 40, 144 P.3d at 863. Jurors had the benefit
              of hearing "[v]igorous cross-examination, presentation of
              contrary evidence, and careful instruction on the burden of
              proof." Daubert, 509 U.S. at 596, 113 S.Ct. at 2798.

Day at ¶ 8. The Day court also found that the trial court did not abuse its discretion in

refusing to hold a Daubert hearing, because the knowledge involving SBS or AHT has long

been recognized as the proper subject of expert testimony, the testimony is not novel, and

therefore no Daubert hearing was necessary. Id. ¶ at 4-6.

       {¶ 29} We find the reasoning in Day to be persuasive. Therefore, we conclude that

the trial court did not err in denying appellant's request to exclude the state's expert testimony

on SBS or AHT, nor did it abuse its discretion in refusing to conduct a Daubert hearing on the

reliability of such expert testimony.

       {¶ 30} Consequently, appellant's third assignment of error is overruled.

       {¶ 31} In his second assignment of error, appellant asserts that the jury's verdict is not

supported by sufficient evidence and is against the manifest weight of the evidence. We

disagree with this argument.

       {¶ 32} Dr. Kleiner testified, within a reasonable degree of medical certainty, that B.S.

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sustained a subdural hematoma and severe edema that was of an acute, rather than chronic,

nature. He testified that the subdural hematoma was caused when the bridging veins in

B.S.'s skull were torn by an "acceleration/deceleration injury" in which there was "some kind

of acceleration of the skull[,]" followed by a "whipping or torque," which then came "to an

abrupt stop." He testified that, once B.S. received the injury, he would not have been able to

engage in any normal activity. He opined that B.S.'s injury was the result of AHT.

       {¶ 33} Dr. Vavul-Roediger and Dr. Alexander agreed with Dr. Kleiner's diagnosis,

including his assessment that B.S.'s injuries were caused by AHT. Dr. Vavul-Roediger noted

that B.S. had several bruises on his body at the time he was brought in, including two bruises

on the very low bottom portion of his back near his buttocks and a two-centimeter area of

bruising just to the side of his anus.

       {¶ 34} In addition to the testimony of its medical experts, the state presented evidence

showing that at least 20 minutes elapsed between the time appellant first saw B.S. lying on

the floor, not looking "right," and the time he summoned B.S.'s grandmother for assistance.

The state also presented a taped telephone conversation between appellant and B.S.'s

mother that took place while appellant was in jail awaiting trial, in which appellant told B.S.'s

mother that he was considering accepting the state's plea bargain offer:

              [Appellant]:          * * * It's about to end here real soon.

              [B.S.'s Mother]:      Really. What are you going to do?

              ***

              [Appellant]:          I don't know.
              [B.S.'s Mother]:      S___. What are you going to do?

              [Appellant]:          I don't know.

              [B.S.'s Mother]:      Then why do you say stupid s___ like that?

              ***


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            [Appellant]:        I'm ready to go. I'm serious. Ten, fifteen,
                                thirty, whatever, let's do it. That's what I
                                meant.

            [B.S.'s Mother]:    Really?

            [Appellant]:        Yeah. I'm half-tempted to make the phone
                                call.

            [B.S.'s Mother]:     To who? [Sic.]

            [Appellant]:        (inaudible) f____ deal (inaudible) getting
                                ready to go. I woke up all night sweating.
                                My heart was beating (inaudible).

            [B.S.'s Mother]:    So you rather not take it to trial and just go
                                to prison and say f____ it?

            [Appellant]:        If I'm going to go (inaudible).

            [B.S.'s Mother]:    Really?

            [Appellant]:        Why should I sit here? (inaudible) going
                                on, so that's what's going to happen,
                                because I done did it.       I dreamed
                                everything, you know, everything that
                                happened. That's why I am wasting even
                                more (inaudible) because I dreamed that
                                that m_____ f____. I mean for me - - you
                                don't know how it is.

            [B.S.'s Mother]:    No, I don't know how it is in there, but I
                                know I don't - - you know, we have wasted
                                $25,000 for you to say hey I'm just going to
                                go to prison for 30 years and say f____ it.

            [Appellant]:        That's not what I want.

            [B.S.'s Mother]:    Well, you're sitting here talking like you're
                                just going to make a deal and get it over
                                and f_____ done with. Baby, if that's what
                                you want to do, then I will go tell [your
                                attorney] to give the f______ money back
                                and go do it then. If you want to be an a__
                                like that.

(Emphasis added.)

      {¶ 35} When B.S.'s mother was recalled to the stand on rebuttal, she testified that

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when appellant said, "I done did it[,]" he was only talking about a dream he had in which he

had been killed in prison. However, as the prosecutor noted during closing argument, B.S.'s

mother's explanation that appellant was merely talking about a dream does not account for

his seriously considering accepting the state's plea bargain offer that would have required

him to serve a lengthy prison sentence in order to avoid trial.

       {¶ 36} The defense tried to counter the state's evidence with expert testimony from Dr.

Leon Kazarian, an expert in "biomechanics," which Dr. Kazarian defines as "the application

of engineering principles to the human body." Dr. Kazarian opined that B.S.'s injuries were

caused by his fall from the chair in the kitchen while he was under B.S.'s grandmother's care.

Dr. Kazarian estimated B.S.'s fall to have been from "three-plus feet."          Dr. Kazarian

acknowledged that the chair's seat is 17 inches from the ground. However, he testified that

B.S.'s fall was from a distance of more than 17 inches because B.S. was in a seated position

on the kitchen chair, and therefore his head would have been "three-plus feet" away from the

floor at the time he fell from the chair. Dr. Kazarian further testified that B.S.'s injury was

consistent with a fall from the kitchen chair in which B.S. was "locking his feet on the table

leg, spinning around and hitting the floor on that carpet, on the cement floor underneath[.]"

Additionally, appellant's counsel suggested during closing argument that the evidence

presented showed that B.S.'s injury may have been caused when he tried to jump from a

dresser to a bed in one of the bedrooms in his home.

       {¶ 37} The jury was entitled to believe the state's witnesses and disbelieve the

defense's theory of the case. See State v. Coleman, 12th Dist. Butler No. CA2010-12-329,

2011-Ohio-4564, ¶ 26 (a jury may believe all, part or none of a witness' testimony and may

base its decision on circumstantial evidence). We conclude that the state presented ample

evidence to convict appellant on every element of felonious assault in violation of R.C.

2903.11(A)(1) and endangering children in violation of R.C. 2919.22(B)(1) and that the jury
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did not lose its way in finding him guilty of those offenses. State v. Williams, 12th Dist.

Warren No. CA2012-08-080, 2013-Ohio-3410, ¶ 29-30.

       {¶ 38} Appellant argues that, by allowing the state to present expert testimony

regarding SBS or AHT, the trial court reversed the burden of proof in this case by essentially

forcing him to prove that he did not cause B.S.'s injuries. He also objects to the fact that the

state proved its case against him with circumstantial evidence. We find these arguments

unpersuasive.

       {¶ 39} "Circumstantial evidence and direct evidence inherently possess the same

probative value. In some instances certain facts can only be established by circumstantial

evidence." State v. Jenks, 61 Ohio St.3d 259, 272 (1991). Appellate courts in this state have

upheld convictions obtained through the use of expert testimony regarding SBS or AHT.

See, e.g., State v. Woodson, 8th Dist. Cuyahoga No. 85727, 2005-Ohio-5691, ¶ 53. See

also, State v. Hendrex, 11th Dist. Trumbull No. 2009-T-0091, 2010-Ohio-2820, ¶ 40-41. "'[I]t

is not unusual that evidence of shaken baby syndrome may be primarily circumstantial,

especially where a child is in the sole custody of one adult at the time the injuries are

sustained.'" Woodson at ¶ 53, quoting State v. Brooks, 10th Dist. Franklin No. 00AP-1440,

2001 WL 1117464 (Sept. 25, 2001). See also Hendrex (quoting Woodson).

       {¶ 40} Appellant argues that Dr. Kleiner's testimony shows how weak the state's case

was. However, Dr. Kleiner's testimony was corroborated by that of Dr. Vavul-Roediger and

Dr. Alexander. Additionally, appellant's argument ignores the evidence regarding the extent

of B.S.'s injuries. Simply put, the injuries B.S. sustained are too severe for the explanations

offered by the defense. When Dr. Kleiner's testimony is looked at in conjunction with that of

the state's other evidence, it is clear that the state presented a very compelling case against

appellant.

       {¶ 41} Appellant also contends that the state's bill of particulars and amended bill of
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particulars failed to provide a reasonable amount of specificity describing the factual basis of

the offenses with which he was charged. We find this argument unpersuasive.

       {¶ 42} Crim.R. 7(E) requires the state to provide the defendant with a bill of particulars,

upon the defendant's request, that specifically sets forth the nature of the offense charged

and the conduct of the defendant that is alleged to constitute the offense. Crim.R. 7(E) also

provides that a "bill of particulars may be amended at any time subject to such conditions as

justice requires."

       {¶ 43} Prior to the first trial held in this case, the state provided appellant with a bill of

particulars that stated, "[o]n or about July 14, 2011, between 6:30 p.m. and 9:30 p.m. * * *,

the Defendant did knowingly cause serious physical harm, to wit: traumatic brain injury, to

minor, B.S., age 2 and/or recklessly abuse Minor B.S. in that it resulted in serious physical

harm to Minor B.S., to wit: traumatic brain injury."

       {¶ 44} Appellant moved for a more definite and certain bill of particulars as to the

"mechanism of injury" that sets forth "whether this is a 'shaken baby' case, a 'direct blow(s)'

case or a 'fall' case, or some combination of the three." The state responded by filing an

amended bill of particulars that stated, "[o]n or about July 14, 2011, between approximately

6:30 p.m. and 9:30 p.m., the Defendant did knowingly cause serious physical harm, to wit:

traumatic brain injury, to minor, B.S., age 2 and/or recklessly abuse Minor B.S. by means of

shaking, shaking and impact and/or mechanisms unknown, in that it resulted in serious

physical harm to Minor B.S., to wit: traumatic brain injury."

       {¶ 45} We conclude that the state provided sufficient information in its initial and

amended bill of particulars to comply with Crim.R. 7(E), because the information contained

therein was adequate to inform appellant of the conduct that led to the charges against him

and to enable him to defend against those charges.

       {¶ 46} Accordingly, appellant's second assignment of error is overruled.
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{¶ 47} Judgment affirmed.


S. POWELL and PIPER, JJ., concur.




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