® IGNIAL

IN THE OHIO SUPREME COURT

STATE OF OHIO5 . CASE NO. 12 uPlaintiff/Appellee

ON APPEAL FROM THEvs. : SUMMIT COUNTY COURT OF

APPEALS, NINTH DISTRICT

TIFFANI CALISECOURT OF APPEALS

Defendants/Appellant : CASE NO.: CA-26027

MEMORANDUM IN SUPPORT OF JURISDICTION

William T. Whitaker # 0007322 Sherri Bevan Walsh # 0030038Andrea L. Whitaker # 0074461 Richard S. Kasay # 0013952William T. Whitaker Co., L.P.A. . Summit County Prosecutor's Office54 East Mill Street, Suite 301 53 University Avenue, 6th Floor

Akron, Ohio 44308 Akron, Ohio 44308(330) 762-0287; (330) 762-2669 Fax (330) 643-2800; (330) 643-2137 Facsimilewhitaker@whitakerlawlpa.com walsh@prosecutor.summitoh.netwhitakerandrea@yahoo.com kasay@prosecutor.summitoh.netCOUNSEL FOR APPELLANT COUNSEL FOR APPELLEES

Fp nn - f=- l^,

-0

QEQ

CLERK OF COURTSUPREME COURT OF OHIO

TABLE OF CONTENTS

TABLE OF CONTENTS ................................ ............... .......:....................................................... ii

EXPLANATION OF WHY THIS CASE RAISES ISSUES OFPUBLIC OR GREAT GENERAL INTEREST ANDINVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION .............................................1

STATEMENT OF THE CASE AND FACTS ................ ........ .................. ..... ............................4

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ...... . ........ .. ....... . ........ . ......... . ..............

PROPOSITION OF LAW NO. 1: If testing on relevant issues is conducted in amanner consistent with methodology and principles widely accepted in the scientificcommunity, it is error to exclude the expert testimony because the exact test was notpeer reviewed ......::.:.........:. ....... ....:.... .......... ...:............. ........ . ....... .. ......... ............5

PROPOSITION OF LAW NO. 2: Expert witnesses qualified to. offer opinions incertain areas but not trained or educated in other specific scientific issues cannot bepermitted to offer opinions on those issues ..... ................, ................ ........ ........ .....10

PROPOSITION OF LAW NO. 3: Additional expert testimony from an alreadydisclosed expert after a court deadline should not be excluded when the state hasfailed to disclose information making the expert testimony necessary .. ....:..:............12

PROPOSITION OF LAW NO. 4: To be admissible under the "immediatebackground" exception of 404(b), the conduct must form the foundation of the crimecharged and be inextricably related to the alleged criminal act.............. . .................... 13

PROPOSITION OF LAW NO. 5: A charge on a lesser included offense is requiredwhere the evidence presented at trial would reasonably support both an acquittal onthe crime charged and a conviction upon the lesser included offense .........................14

CONCLUSION ..............................................................................................................................15

CERTIFICATE OF SERVICE ......................................................................................................16

APPENDIX ........... ....................................................................................................:....................16

10%17/12 Decision and Journal Entry ...............................................:.............................. A-1

ii

This case is of public or great general interest and presents significant andimportant constitutional questions involving fundamental fairness and leaveto appeal should be granted

Tiffany Calise, the Appellant herein, was convicted of murder, in large part, because the

doctor certified in pediatric abuse who testified for the State claimed that Ms. Calise, 119 pounds

at the time, shook Aaliyah Ali, a 23 month old, 22 to 24 pound child, hard enough to cause the

serious brain injury that led to her death. The doctor testified to this conclusion despite the fact

that he acknowledged that the medical studies, tests and literature show no cases in which a child

of that age and that weight ever suffered traumatic brain injury from shaking. The State's child

abuse expert agreed as to the reasons this was true: 1) as the child matures beyond the early

months, when holding a baby requires a hand behind the head, the neck muscl'es grows stronger

making it virtually impossible to generate the force necessary to create traumatic brain injury; 2)

the head becomes more proportionate to the rest of the body; 3) the softness of an infant's brain,

necessary to the birthing process, is a transient condition that ends during the early months of

growth; and 4) quite simply, the child's weight has greatly increased making it far more difficult

to apply the force necessary to traumatic brain injury. The force necessary would also increase

the likelihood of additional indicia of shaking, such bruising, fractured ribs, etc. None were

present here. Evidence was presented that the median range of babies that suffer brain injury

from shaking is 2.2 months to 3.7 months and there was testimony that study after study

demonstrate that no babies over the age of one year suffer brain injuries from shaking. The

expert, Dr. Daryl Steiner, in testifying about a chart documenting the age ranges found in these

studies agreed with this essential truth:

Q. One of the reasons there are so many injuries down here [the 3 to 5 monthrange] and virtually zero above the age of 18 months is because of a variety ofreasons including the anatomy of children when they get to be two years old; am I

correct?

1

Whether Aaliyah died from an unwitnessed fall in a bathtub when Ms. Calise stepped

away from the bathroom for a few seconds to grab a towel, as Ms. Calise has consistently

claimed from the moment of her panicked 911 call seconds after the fall, or whether she was

murdered by young Ms. Calise was not fairly tried. The testimony that the injury was caused by

shaking was coupled with the claim that a fall in the bathtub could riever generate enough force

to create the injury suffered. The State's four medical doctors making this same claim had no

education, training or experience in the biomechanics of the amount of force that can be created

by a fall such as the one Aaliyah suffered. These doctors based their testimony solely on the

anecdotal fact that they had not seen personally such a significant injury from a shortfall.

On the other hand, Dr. John D. Lloyd, the Director of Research Laboratories at the

Center for Research Excellence at the John A. Haley Veterans Hospital in Tampa, Florida, a

specialist in injury biomechanics, who is also certified by the American Brain Injury Association

as a brain injury specialist, conducted tests based on a bathtub fall by a child of Aaliyah's height

and weight. He was able to determine that that the manner of the fall would affect the force and

certain bathtub falls can create the force necessary to cause the injury suffered by Aaliyah. The

jury, however, did not get to hear the testimony of this qualified expert because the Trial Court,

after a Daubert hearing, refused to permit Dr. Lloyd to testify because it claimed that the specific

test used by Dr. Lloyd in the Calise case had not been peer reviewed. The Trial Court, as well as

the Ninth District Court of Appeals, misunderstood the fact that that the peer review requirement

of Daubert applies to the methods and principles employed in the testing for a specific case not

the actual specific test. To hold otherwise would mean that each time an established meihod of

testing was accommodated to the facts of a specific case it would have to be peer reviewed. As

the peer review process takes months, if not years, the standard employed by the Trial Court and

2

upheld by the COA in this case would effectively preclude all testing based upon the facts of a

specific case. This reality is recognized in Miller v. Bike Ath. Co. (1998), 80 Ohio St. 3d 607.

The exclusion of Dr. Lloyd was made more egregious by testimony of the State's four doctors.

The State's expert also acknowledged that the developments in the study of shaken baby

injuries and the science of child traumatic brain injury since 2006 have been complex and

significant to the point that he will not and cannot diagnose shaken baby without additional

evidence of trauma, or a witness to the event. Nonetheless, in this case, notwithstanding the fact

that there was no evidence of additional trauma and no witness to the event, he testified that it

was his opinion that the traumatic injury to Aaliyah, was caused purely and simply from shaking.

Given the complexity of the medical/scientific issues in this case, given the fact that

many of the testimonial conclusions supporting conviction were contradictory to the underlying

studies and data and given the emotional force the death of a child creates in a jury's

consideration of the evidence, it is absolutely critical to the administration of justice in Ohio and

to the constitutional protection of fair trials to have a uniform and consistent approach to the

admission or exclusion of expert testimony. The Trial Court's management of the admission and

exclusion of testimony in this matter is at odds with this Court's holdings. This creates a matter

of great constitutional significance and important public concern regarding the administration of

justice and the full and complete ability to present a defense to serious charges and provides

compelling reasons for this Court to accept jurisdiction and address this important concern.

As will be set forth in the body of this memorandum, under specific propositions of law,

in addition to the issues mentioned above, decisions with respect to admission and exciusiori of

other evidence adversely impacted the decision making process of the jury and the inherent

fairness of the trial of Tiffany Calise. These include the decision to exclude testing on autopsy

3

slides by Dr. Peter Stephens, an experienced and qualified pathologist, which provided evidence

that the injury from the fall was exacerbated by a prior injury. This evidence was excluded on

the basis that the report was not timely despite the fact that it was established that the State

withheld evidence of prior abuse by a third person. This was only discovered by the defense

during the week before trial and confirmed by the lead detective on the day of trial. Also

included is the decision to admit unreliable, irrelevant and prejudicial testimony of a

conversation allegedly overheard from a distance many hours earlier not related to the injury.

The importance of properly instructing a jury as in a manner mandated by this Courtis.

another compelling reason to accept this appeal. This is particularly true when appellate courts

are in conflict on a specific issue. In the present case, the COA upheld the failure to instruct on a.

lesser degree of the charge of child endangering supported by a reasonable view of the evidence

contrary to State v Barker, 2012 Ohio 522; 2012 Ohio App. LEXIS 458 (1 lth App. Dist.)

A Trial Court's gate keeping role with respect to the admission of evidence, and

importantly, expert scientific evidence beyond the normal understanding of lay juries, is among

the most crucial, (crucial to fundamental fairness and the right to present a defense) tasks

entrusted to it. This Court should accept this appeal to insure that the Courts of Ohio have clear

guidance and an understanding of the constitutional safeguards inherent in this process.

STATEMENT OF THE CASE AND FACTS

On August 9, 2010, Ms. Calise was babysitting Aaliyah, nearly two years old, as she had

done many times before. She was also caring for her own young child. After she fed them, she

gave them baths. As she finished with Aaliyahs bath, she steppea away from the bathroom to

retrieve a towel. She heard three thumps, rushed back to the bathroom and saw Aaliyah lying on

her back in the tub. She picked her up, wrapped her in the towel and rushed into the living room.

4

Seconds later, upon realizing that Aaliyah was unresponsive, Ms. Calise, panicked, called 911.

She followed the dispatcher's CPR instructions and can be repeatedly heard begging the

dispatcher to get help to the house. During the nearly nine minutes before EMS arrived, Ms.

Calise continued to administer CPR. When EMS arrived, they administered preliminary

treatment and transported Aaliyah to Akron Children's Medical Center. At the hospital, Aaliyah

was diagnosed with a significant subdural hematoma and: brain swelling and an operation was

performed to relieve the swelling. It was the opinion of the State's medical witnesses that the

injuries must have been caused by shaking. Thedamage appeared to be irreversible. She was

removed from life support on August 12, 2010. Ms. Calise was indicted on August 20, 2010 on

charges of murder, involuntary manslaughter and two counts of child endangering. She was

incarcerated continuously from her arrest and gave birth to her second child while in custody.

Prior to trial, the Court determined that Dr. Lloyd was not qualified to offer opinions as to

whether specific types of brain injuries in a child could be sustained by a bathtub fall because he

lacked experience in pediatric brain injury and his experiment was not reliable because it had

never been tested or subjected to peer review. Calise, 2012 Ohio 4797, ¶ 15. Ms. Calise was

convicted on June 16, 2011 of all charges and sentenced to a term of fifteen years to life. Ms.

Calise appealed her conviction and the COA affirmed on October 17, 2012. It is from that ruling

that she now appeals.

Proposition of Law 1: If testing on relevant issues is conducted in a manner

consistent with methodology and principles widely accepted in the scientific

community, it is error to exclude the expert testimony because the exact test

was not peer reviewed.

The Ohio Supreme Court has held that "Courts should favor the admissibility of expert

testimony whenever it is relevant and the criteria of Evid.R. 702 are met." State v. Nemeth

(1998), 82 Ohio St.3d 202, 207. That criteria is met through an application of Daubert v. Merrell

5

Dow Pharmaceuticals, Inc. (1993). As articulated by this Court, "[t]he test for reliability

requires an assessment of the validity of the expert's methodology, by applying with flexibility

several factors set forth in Daubert, 509 U.S. at 592-593... None of these factors, of course, is

dispositive of the inquiry, and when gauging the reliability of a given expert's testimony, Trial

Courts should focus `solely on principles and methodology, not on the conclusions' generated.

Id. at 595." Terry. v. Caputo (2007), 115 Ohio St. 3d 351, 356-57 (emphasis added). "The focus

must be on whether the expert's opinion is based `upon scientifically valid principles[.] "' Calise,

2012 Ohio 4797, ¶ 87, (Belfance, J. concurring) (quoting Miller, 80 Ohio St. 3d 607, paragraph

one of the syllabus.)

The Trial Court and the COA failed to apply this well established law to the analysis of

Dr. Lloyd's testimony and further misunderstood the testimony to be offered by Dr. Lloyd'. The

majority opinion of the COA upheld the Trial Court's decision to exclude Dr. Lloyd's opinion

because the exact test had not been peered reviewed and the tests to which Dr. Lloyd cited in

support of his testing that were peer reviewed were not "comparable" to the test performed by

Dr. Lloyd. Calise, 2012 Ohio 4797, ¶ 15. Daubert, however, does not require an exact duplicate

experiment. Instead, what is required is that the method or theory is based upon scientifically

valid principles. Caputo, 115 Ohio St. 3d at 356-57. The hurdle created denied Ms. Calise the

ability to present any expert testimony about the force created by a fall in a bathtub.

1 The COA notes in a footnote that "Dr. Lloyd testified that he had proven throughbiomechanical analysis that shaking alone is insufficient to cause brain injury to an infant."

Calise, 2012 Ohio 4797, ¶ 16, fn. 1. While this fact was not proposed as part of Dr. Lloyd'stestimony, it bears noting that this finding does not stand alone in the legal or medicaicommunity. As recently noted by three Justices in the dissent in an opinion from the UnitedStates Supreme Court, "[d]oubt has increased in the medical community `over whether infantscan be fatally injured through shaking alone."' Cavazos v. Smith (2011), 132 S. Ct. 2, 10

(internal citations omitted; relying on many articles and studies including one by Ms. Calise's

expert, Dr. Ronald Uscinski).

6

"Dr. Lloyd's experiment purported to demonstrate that, should an infant fall in a bathtub,

the fall could create enough force to cause the injuries sustained by Aaliyah." Calise, 2012 Ohio

4797, ¶ 87, (Belfance, J. concurring). Dr. Lloyd testified regarding the linear and angular

kinematics of the head, the linear and rotational accelerations, and force and acceleration. As Dr.

Lloyd testified and the Concurrence noted, the theory and method used by Dr. Lloyd has been

used "for more than 40 years." Calise, 2012 Ohio 4797, ¶ 89, (Belfance, J. concurring). He

summarized his experiment and matched the design and procedure with established methods.

The Trial Court and the COA both took issue with the fact that Dr. Lloyd used roller

skates to approximate the slip portion of the fall. The COA went so far as to indicate that it

needed Dr. Lloyd to "explain how accurately a pair of roller skates could simulate a fall

condition when, in actuality, any fall would have occurred in bare feet." Calise, 2012 Ohio 4797,

¶ 21. Further, that is a methodology that Dr. Lloyd has used before in his research for the

Veterans Hospital (Id. at ¶ 89, (Belfance, J. concurring)), was peer reviewed, and has received

grants to employ.

The majority's opinion upheld the Trial Court because it believed the peer reviewed tests

relied upon by Dr. Lloyd were not comparable because they were not exactly like the test

performed by Dr. Lloyd here. As noted in the concurrence,

these studies are comparable to the experiment performed in this case in that theuse of a mannequin and the simulation of a slip and fall can provide dataconceming the amount of force generated from a fall. Essentially, Dr. Lloydtestified that the type of mannequin that he used to simulate Aaliyah's potentialfall is used in many studies to measure the force resulting from an impact. Thefact that Dr. Lloyd used the mannequin to measure the force of a fall in a bathtubas opposed to a faii from a bed, a faii from play equipment, or from ariautomobile crash is inconsequential to the question of whether his methodologyis widely accepted by other experts in his field. The techniques he used tomeasure the force from a fall are widely accepted by others in his field.Furthermore, the principles of mathematics and physics underlying thecalculations of force are well established. To accept the general theories and

7

methods in Dr. Lloyd's - experiment would hardly be an example of the lawleading science but rather accepting principles accepted by experts for many,many years.Calise, 2012 Ohio 4797, ¶ 90, (Belfance, J. concurring).

The COA also found that Dr. Lloyd's testimony was properly excluded because the

experiment by Dr. Lloyd was not an exact recreation of the fall suffered by Aaliyah. Calise,

2012 Ohio 4797, ¶¶ 21-23. This is contrary to this Court's holding in Miller. "When an out-of-

court experiment is not represented to be a reenactment of the accident and deals with one aspect

or principle directly related to the cause or result of the occurrence, the conditions of the accident

need not be duplicated." Miller, 80 Ohio St. 3d 607, paragraph one of the syllabus. An out-of-

court experiments "'tending to prove or disprove a contention in issue is admissible if there is a

substantial similarity between conditions existing when the experiments are made and those

existing at the time of the occurrence in dispute; dissimilarities, when not so marked as to

confuse the jury, go to the weight rather than the admissibility of the evidence."' Id. at 614

(quoting St. Paul Fire & Marine Ins. Co. v. Baltifnore & Ohio RR Co. (1935) 129 Ohio St. 401,

at paragraph one of the syllabus.) See e.g., State v. Wegmann, 2008 Ohio 622; 2008 Ohio App.

LEXIS 555, ¶ 51 (Third App. Dist.) (holding that the Trial Court incorrectly excluded an

experiment and noting that any dissimilarities would go to the weight of the evidence rather than

the admissibility.) "Quite obviously, if we were to hold that a test or.experiment must exactly

recreate the conditions present at the time an injury was sustained, a plaintiff would rarely be

able to overcome an opponent's motion for summary judgment." Miller, 80 Ohio St. 3d at 615.

The Trial Court also misunderstood the testimony to be offered by Dr. Lloyd.2 Dr.

Lloyd did not intend to testify as a medical doctor regarding his opinion of the causes of

2 It should be noted in her Appellate Brief, Ms. Calise continually pointed out that Dr.

Lloyd's testimony was not that of a medical expert but based upon the head injury criteria that is

8

Aaliyah's injuries. As pointed out in the concurring opinion, "Instead, he intended to testify that

his research showed that, if a child of her stature slipped and fell in abathtub, it could generate a

certain amount of force and possibly cause the injury Aaliyah sustained." Calise, 2012 Ohio

4797, T 85, (Belfance, J. concurring).

Finally, the Concurrence, while correct about its analysis of the flaws of the majority's

opinion, inaccurately upheld the Trial Court on a different ground. It determined Dr. Lloyd

"lacked a scientific basis for concluding that the results of his experiment were conservative" and

thus believed his entire testimony was properly excluded. Calise, 2012 Ohio 4797, ¶ 92,

(Belfance, J. concurring). The Concurrence concluded that in order to substantiate such a

statement Dr. Lloyd should have conducted "control experiments" or point to studies that would

support his assertion that his results were conservative. Id. at ¶ 88. However, if a single

statement was not admissible, the proper remedy from the Court would have been to grant the

State's motion in limine with regard to that minute portion of his testimony. Moreover, the

statements made by Dr. Lloyd at the Daubert hearing indicating that his results were

`Gconservative" were virtually all in response to questions from the State. 4/11/11 Tr., pp. 91-92,

98, 118. For example, one such statement was that if Aaliyah were two inches shorter than the

model used, the results of the force of the fall in the experiment would be conservative. There is

widely used and generally accepted. ("These include the Head Injury Criterion developed at

Wayne State University in Detroit." "The Head Injury Criterion is what Dr. Lloyd used in his

publicly-funded and peer-reviewed study of patient falls for the . Veterans Health

Adrr11131'. ^

sLrC1.L4 4^

1or^1." GG

.4Lll1.

elu'^ n' ^i+4 ^

f 1111V1r

1H^11a11

nrVil v

nllu

+[ ^ii

Pvi

Pv

Y' ^-

Ylua^'f says 1

f

^v^.. haveT you ha JP a head iniv,, . .." J a 1Vl V .ia^v ^^-ir,

criteria that exceeds this value you have like a 25 percent chance to have a brain injury.""Whether there is a sufficient risk of injury from a fall of a certain distance is "based upon injury

thresholds that have been previously calculated by biomechanists.")

9

no additional experimentation needed to demonstrate that because it is a statement based on

physics and gravity and his expertise in biomechanics.

As Dr. Lloyd was the only expert from either the Defense or the State with the necessary

training and experience to be able to offer qualified testimony regarding the force necessary to an

injury similar to Aaliyah's, the failure to allow his testimony was prejudicial to Ms. Calise. This

was not repetitive testimony. Any testimony offered by the medical personnel on either side was

not similar in quality or content to the testimony offered by Dr. Lloyd. Further, given that Dr.

Steiner admitted that the medical literature provided no examples of a child Aaliyah's size or age

suffering traumatic brain injury from shaking, the failure to allow Ms. Calise to present scientific

evidence in support of an alternate cause of Aaliyah's injuries was highly prejudicial.

Proposition of Law 2: Expert witnesses quahfied to oiier opinions in certain

areas but not trained or educated in other specific scientific issues cannot be

permitted to offer opinions on those issues.

While brief to conform to the COA's page requirements, Ms. Calise presented an

assig-nment of error that that argued that -the State's medical experts3 (Drs. Steiner, Dean; Patel

and Pope) should not have been permitted to testify that Aaliyah's injuries could not have been

caused by a fall in the bathtub. Ohio Rules of Evidence No. 702 sets forth three (3) requirements

that must be met prior to the admission of said testimony. The second of the three requirements

is that the "witness is qualified as an expert by specialized knowledge, skill, experience, training,

or education regarding the subject matter of the testimony." Evid.R. 702(B). The testimony of

the State's doctors that a short fall cannot cause this type of injury is not within their expertise.

3 Ms. Calise's Appellate Brief cited testimony from the transcripts in support of herargument. However, she incorrectly indicated that her cite to Vol. 5, p. 498 was a reference totestimony of Dr. Patel. In fact, that page included the relevant testimony of Dr. Dean. TheCOA's statement that Ms. Calise did not fault the admission of Dr. Dean's testimony is,

therefore, inaccurate.

10

The Trial Court's opinion excluding Dr. Lloyd made clear that an expert must possess sufficient

biomechanical and/or engineering specialized knowledge, skill, experience, training, or

education to opine on whether a short fall could cause the types of injuries with which Aaliyah

presented. Drs. Steiner, Dean, Patel and Pope did not possess such specialized knowledge, skill,

experience, training, or education and, thus, should not have been permitted to offer any such

opinion. Ms. Calise objected both pretrial in a motion in limine and during trial.

In ruling on Ms. Calise's motion in limine, the Trial Court stated it was an "[i]ssue of

whether a medical doctor can opine on this, and if they previously indicated in a report to the

Court that they have an opinion on this whether it can cause injury or cannot, I think that's fair

game ... [because] I don't know if the medical literature says or talks about the specific, like,

number, okay, mathematical number, degree of force, but there's certainly a plethora of medical

literature. They did studies on it, It's been around for decades," Tr. Vol 1, pp. 13-14,16-17. No

studies were ever relied upon or argued that certain forces or falls were not capable of causing

injuries of the type suffered by Aaliyah. Since the State was seeking this expert testimony, it

was its burden to demonstrate that its experts were qualified regarding the challenged area of

testimony or that the testimony met the test of Daubert. The State offered nothing to meet its

burden. It did not respond to Ms. Calise's motion in lime and offered only one argument to the

Trial Court. It claimed that Dr. Stephans' report opined on the same issue and he was a medical

doctor, therefore, it was fair game. Tr. Vol 1, p. 13. However, what Dr. Stephens' report

indicated was that there were reported cases of a fall causing the type of injury in question.

L t;+^ to +v ; ^.It is important to note that Ms. Caiise did not cnaiienge, tne doc4wrs' aui^^^ «. ^.,st«^,^

regarding their opinions about the cause of the injuries. The doctors could also testify that they

had not seen this type of injury from a short fall or that this type of injury has been associated

11

with other types of mechanisms in their experience. However, to allow the doctors to opine that

the force created from a fall in the bathtub was not great enough to cause the injury seen was to

abandon the Trial Court's gatekeeping function. This was especially prejudicial given that Dr.

Lloyd, the only expert who could provide such testimony, was prohibited from doing so.

Proposition of Law 3: Additional expert testimony from an already disclosedexpert after a court deadline should not be excluded when the state has failedto disclose information making the expert testimony necessary.

The defense discovered the week prior to trial that there was evidence in the State's

possession that Aaliyah had suffered prior abuse at the hand of someone other than Ms. Calise.

This information had been disclosed to the investigators for the State at the inception of the

investigation. Upon receiving that information, Dr. Stephens, Ms. Calise's expert pathologist,

examined the slides he had recently received from the State's pathologist. The purpose in

examining the slides was now to determine whether the slides contained additional evidence that

the victim might have suffered a prior injury or abuse. Dr. Stephens did determine that the slides

contained evidence (the existence of old blood in the area of the new injury) that Aaliyah had

been the victim of a prior injury. Dr. Stephens was prepared to testify that even with no

additional trauma there could be a "rebleed." From his inspection of the slides, there was

evidence of a subaccute or even a chronic subdural hematoma. His report then said: "Not only

did it probably start before the bathtub slip and fall, but the process of organizations of subdural

hematoma renders it susceptible to rebleed with no additional trauma."

This was relevant to actual innocence because, if the child had suffered a prior injury, it

would have affected the determination of the force necessary to the injury. T hat is, a prior injury

would have made the victim susceptible to injury that is more significant from less force and

would have required reconsideration by the State's witnesses of whether a fall in the bathtub

12

could have caused Aaliyah's injuries. As the State's expert phrased it, a prior injury would be

significant in the diagnosis because the prior injury could exacerbate the progress of the new

injury. Notwithstanding the importance of the finding, notwithstanding the withheld evidence by

the State of prior abuse, the Court would not let Dr. Stephens testify about the autopsy evidence

indicating the existence of a prior injury.

Exclusion of even untimely expert testimony is an extreme sanction. Mckernan v.

Massillon Comm. Hosp., 2002 Ohio 7395; 2002 Ohio App. LEXIS 7239 (5th App. Dist.) The

remedy to grant a continuance should the State need one was a far more reasonable resolution of

theissue. Id. at ¶55 (internal cites omitted.) The exclusion of the testimony in conjunction with

the other evidentiary errors adds to the importance of the acceptance of this appeal.

Proposition of Law 4: To be admissible under the "immcdiate background"

exception of 404(b), the conduct must form the foundation of the crime charged and

be inextricably related to the alleged criminal act.

Evidence of an alleged incident hours before the State asserted the crime occurred was

impermissible character evidence under Ohio R. Evid. 404(b) and only served to inflame the

jury. The State alleged that Ms. Calise committed this crime in her home between 11:00 p.m.

and 12:00 a.m. The Trial Court admitted testimony of Shelby Pompeo and Gretchen Rothacher,

over objection, that Ms. Calise was seen with Aalyiah Ali and Ms. Calise's minor child outside

of their apartment raising her voice at the children and pulling them inside the building.

The COA did not address the Trial Court's ruling that the evidence was necessary to

prove absence of mistake or accident (neither was an issue in this case) but instead determined

that the testimony "was admissible because it formed a part of the immediate background of Ms.

Calise's offense" and "helped to provide context for the jurors." Calise, 2012 Ohio 4797, ¶ 43.

The COA indicated that "[t]he incident tended to show that Ms. Calise was, at the very least,

13

frustrated with Aaliyah shortly before her death, as evidenced by Ms. Calise grabbing her,

roughly shoving her, and using profanity with her despite the fact that she was less than two

years old." This justification is a misapplication of this Court's precedent and its analysis of

"immediate background" related to 404(b). The COA relied upon State v. Morris (2012), 132

Ohio St. 3d 337 for its discussion of immediate background. Morris' single reference to

immediate background cites to State v. Curry (1975), 43 Ohio St. 2d 66, 73 which offers a

discussion of what the exception is meant to reach:

"Scheme, plan or system" evidence is relevant in two general factual situations.First, those situations in which the "other acts" form part of the immediatebackground of the alleged act which forms the foundation of the crime charged inthe indictment. In such cases, it would be virtually impossible to prove that theaccused committed the crime charged without also introducing evidence of theother acts. To be admissible pursuant to this sub-category of "scheme, plan orsystem" evidence, the "other acts" testimony must concern events which areinextricably related to the alleged criminal act.

There is simply no argument that the evidence introduced here is "inextricably" related or that its

exclusion would make it virtually impossible to prove that Ms. Calise committed the crime

charged. The COA's reliance upon this legal theory was in error. Further, this error was not

harmless. It tainted the jury and denied Ms. Calise a trial free from unfair prejudice. The other

act evidence produced by the State created a substantial danger that the jury convicted Ms. Calise

solely because it assumed that she has a propensity to act violently toward Aalyiah Ali.

Proposition of Law 5: A charge on a lesser included offense is required wherethe evidence presented at trial would reasonably support both an acquittalon the crime charged and a conviction upon the lesser included offense.

Tiffany Calise presented evidence that the injury to Aaliyah.resulted from a fall in the

bathtub when Ms. Calise stepped out of the bathroom to get a towel. Ms. Calise also presented

evidence. that the injury suffered by Aaliyah could have resulted from such a fall. Because a jury

could conclude that leaving Aaliyah unattended constituted child endangering and because, from

14

the testimony by the State's medical witnesses, the jury could have concluded that the injury

suffered by Aaliyah was not foreseeable (that is, that it was not foreseeable that Aaliyah would

suffer serious physical harm or death), the Court should have granted Ms. Calise's request to

instruct the jury on the misdemeanor charge of child endangering and on the fact that a

misdemeanor underlying act would support an involuntary manslaughter conviction. The failure

of the Court to give that instruction denied Ms. Calise a fair trial and due process of law.

In the State v Barker, 2012 Ohio 522; 2012 Ohio App. LEXIS 458, the 11 th District

reversed a trial court for failing to give the lesser included instruction in circumstances similar to

the present case. In both cases, the trial court failed to give the requested instruction (in Barker it

was a request for a misdemeanor assault charge that would have supported an involuntary

manslaughter conviction) because the primary defense was that the defendant was not guilty of

any crime. The COA in this case failed to recognize that if under any reasonable view of the

evidence, it is possible for the trier of fact to find the defendant not guilty of the greater offense

and guilty of the lesser offense the instruction on the lesser offense must be given. The evidence

must be considered in the light most favorable to the defendant. Id. at ¶144 (citing State v

Wilkins, (1980) 64 Ohio S. 2d 382, 388, and State v Shane, (1992) 63 Ohio St, 3d 630, 632-637).

The COA in the present case, in conflict with the 1 lth district in Barker, failed to follow

this Court's direction with regard to instructing on a lesser included offense. Here, as in Barker,

there is no question that evidence was presented that would support the misdemeanor child

endangering which, if believed by the jury, would have required an acquittal on the more serious

charge and which supported a conviction on the lesser included offense.

CONCLUSION

For the foregoing reasons, this case raises issues of public or great general interest and

involves substantial constitutional question. This Court should accept jurisdiction of this appeal.

15

Respectfully submitted,WILLIAM T. WHITAKER CO., L.P.A.

W liam T. rtaker # 007322Andrea Whitaker # 007446154 East Mill Street, Suite 301Akron, Ohio 44308Phone: (330)762-0287;(330) 762-2669 Facsimilewhitaker@whitakerlawlpa.comwhitakerandrea@yahoo.comAttorneys for Appellant Tiffani Calise

CERTIFICATE OF SERVICE

A copy of the foregoing was served by regular U.S. mail this 3rd day of December, 2012

upon:

Sherri Bevan WalshRichard S. KasaySummit County Prosecutor's Office53University Avenue, 6th FloorAkron, Ohio 44308

William T. Whitaker

16

[Cite as State v. Calise, 2012-Ohio-4797.]

STATE OF OHIO ) IN THE COURT OF APPEALS)ss: NINTH JUDICIAL DISTRICT

COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26027

Appellee

v APPEAL FROM JUDGMENTENTERED IN THE

TIFFANI D. CALISE COURT OF COMMON PLEASCOUNTY OF SUMMIT, OHIO

Appellant CASE No. CR 10 08 2322

DECISION AND JOURNAL ENTRY

Dated: October 17, 2012

MOORE, Judge.

{¶1} Defendant-Appellant, Tiffani Calise, appeals from her convictions in the Summit

County Court of Common Pleas. This Court affirms.

I.

{¶2} Shortly before midnight on August 9, 2010, Ms. Calise called 911 and told the

dispatcher that the child she was babysitting, Aaliyah Ali, had bumped her head and was

unresponsive. Paramedics responded to the scene while Ms. Calise tried to perform CPR. When

the paramedics arrived, they found Aaliyah lying unclothed on the living room floor of the

apartment. Aaliyah was only breathing four to six times per minute and displayed decorticate

posturing, a sign of brain injury. The paramedics transferred her to Akron Children's Hospital

where doctors scanned her brain and performed brain surgery in an attempt to reduce serious

swelling. It soon became clear, however, that even if Aaliyah survived she would remain in a

persistent, vegetative state due to the extensive brain damage she had suffered. Aaliyah's

A-1

2

mother, Gabrielle Moneypenny, ultimately decided to discontinue life support, and Aaliyah

succumbed to her injuries. At the time of her death, Aaliyah was 23 months old.

{¶3} According to Ms. Calise, Aaliyah was injured when she fell in Ms. Calise's

bathtub. Ms. Calise told the police that she decided to bathe Aaliyah and her own daughter

sometime after she fed both girls at approximately. 10:30 p.m. She bathed her daughter first

while Aaliyah watched and played. Ms. Calise then removed her daughter from the bath,

emptied the tub, and refilled it for Aaliyah. When Ms. Calise finished bathing Aaliyah, she lifted

the, drain and stood Aaliyah in the tub. She then realized that she did not have a towel for

Aaliyah, so she walked out of the bathroom to get one. After she left the bathroom, Ms. Calise

heard three loud thumps. She returned to the bathroom to find Aaliyah lying unconscious in the

bathtub. At that point, she carried Aaliyah into the living room and dialed 911.

{¶4} Aaliyah's CT scans and autopsy revealed that she had suffered a subdural

hemorrhage on the right-side of her brain, severe swelling that had caused her brain to shift out

of place, and bilateral retinal hemorrhaging. Two of the doctors who treated Aaliyah compared

her injuries to those generally observed in traumatic impact situations such as high speed,motor

vehicle accidents or falls from multiple stories. The Summit County Medical Examiner

ultimately determined that Aaliyah died from complications of blunt impact trauma as a result of

shaking and ruled her death a homicide. The three doctors who evaluated Aaliyah after she came

to Akron's Children Hospital and the Medical Examiner who performed her autopsy all

concluded that Aaliyah's injuries were not consistent with a bathtub fall and were the result of

severe trauma.

{¶5} A grand jury indicted Ms. Calise on the following counts: (1) murder, in violation

of R.C. 2903.02(B); (2) involuntary manslaughter, in violation of R.C. 2903.04(A); and (3) two

A - a

3

counts of child endangering, in violation of R.C. 2919.22(A) and 2919.22(B)(1). Both the

defense and the State consulted with expert witnesses during the discovery process. In

particular, the defense consulted with Dr. John Lloyd, a Ph.D. in ergonomics. Dr. Lloyd agreed

to conduct an experiment to determine whether a child of Aaliyah's size could have sustained a

traumatic brain injury by slipping and falling in a bath tub.

{¶6} Dr. Lloyd's experiment and conclusions led the State to file a motion in limine to

exclude his testimony from trial. The court conducted a Daubert hearing and also permitted the

parties to submit written arguments after the hearing. On May 16, 2011, the court issued a

written opinion in which it concluded that Dr. Lloyd would not be permitted to testify.

Specifically, the court held that (1) Dr. Lloyd's expertise in his field did not qualify him to

render a medical opinion as to the types of medical conditions or brain injuries Aaliyah could

have sustained from a bath tub fall, and (2) the experiment Dr. Lloyd conducted did not

withstand the strictures of Daubert and Evid.R. 702.

{17} A jury trial commenced, at the conclusion of which the jury found Ms. Calise

guilty on all counts. On June 27, 2011, the trial court sentenced Ms. Calise to a total of fifteen

-years to life in prison. Ms. Calise filed a motion for a new trial and appealed from her

convictions before the trial court ruled on her motion. This Court stayed the appeal and granted

Ms. Calise's request to remand the matter for the purpose of permitting the trial court to rule on

her motion for a new trial. After the court denied her motion, Ms. Calise filed a motion with this

Court to supplement the record with the trial court's ruling as well as to amend her notice of

appeal to include the ruling. This Court granted both motions by way ofjournal entry.

{¶8} Ms. Calise's appeal is now before this Court. She raises nineteen assignments of

error, many of which we consolidate or rearrange for ease of analysis.

A• 3

4

IL

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN EXCLUDING THE TESTIMONY OF DR.JOHN LLOYD.

{¶9} In her first assignment of error, Ms. Calise argues that the trial court abused its

discretion by excluding the testimony of Dr. John Lloyd. We disagree.

{T10} Evid.R. 702 governs the admissibility of expert testimony. Miller v. Bike Athletic

Co., 80 Ohio St.3d 607, 610 (1998). The rule provides:

A witness may testify as an expert if all of the following apply:

(A) The witness' testimony either relates to matters beyond the knowledge orexperience possessed by lay persons or dispels a misconception common among

lay persons;

(B) The witness is qualified as an expert by specialized knowledge, skill,experience, training, or education regarding the subject matter of the testimony;

(C) The witness' testimony is based on reliable scientific, technical, or otherspecialized information. To the extent that the testimony reports the result of aprocedure, test, or experiment, the testimony is reliable only if all of the following

apply:

(1) The theory upon which the procedure, test, or experiment is based isobjectively verifiable or is validly derived from widely accepted knowledge, facts,

or principles;

(2) The design of the procedure, test, or experiment reliably implements the

theory;

(3) The particular procedure, test, or experiment was conducted in a way that willyield an accurate result.

Evid.R. 702. "The qualification and reliability requirements of Evid.R. 702 are distinct.

Because even a qualified expert is capable of rendering scientifically unreliable testimony, it is

imperative for a trial court, as gatekeeper, to examine the principles and methodology that

underlie an expert's opinion." Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, ¶ 17.

A-`I

5

"In evaluating the reliability of scientific evidence, several factors are to be considered: (1)

whether the theory or technique has been tested, (2) whether it has been subjected to peer review,

(3) whether there is a known or potential rate of error, and (4) whether the methodology has

gained general acceptance." Miller at 611, citing Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579, 593-594 (1993). The focus must be on whether the expert's opinion is based

"upon scientifically valid principles." Miller at paragraph one of the syllabus. Accord State v.

Nemeth, 82 Ohio St.3d 202, 211 (1998) ("The reliability requirement in Evid.R. 702 is a

threshold determination that should focus on a particular type of scientific evidence, not the truth

or falsity of an alleged scientific fact or truth.").

{¶11} Ms. Calise sought to have Dr. Lloyd testify as an expert in biomechanics, the

study of the application of mechanics and Newtonian principles to biological systems such as

humans. Had the court permitted Dr. Lloyd to testify, he would have opined that it was possible

for a bathtub fall to have produced the type of head injuries that Aaliyah sustained. Dr. Lloyd

reached that conclusion by conducting an experiment, which he described in detail at the

Daubert hearing.

{¶12} Dr. Lloyd purchased a porcelain bathtub from a local Home Depot and placed the

bathtub in his home laboratory. He then prepared a 22 lb. CRABII biofidelic mannequin for his

experiment, adding two pounds to the mannequin's torso to approximate Aaliyah's weight and

installing several force sensors to the mannequin's head. Dr. Lloyd also prepared electronic

equipment to record the fall sequences that he conducted and to receive data from the force

sensors mounted inside the mannequin's head.

{¶13} Once Dr. Lloyd placed the mannequin in the bathtub, he used an electromagnet to

hold the mannequin in a standing position. Dr. Lloyd then interrupted the power to the magnet

A• s

6

to allow the mannequin to fall. Due to the fact that the mannequin had rubberized feet, however,

the mannequin did not always fall. To rectify this problem, Dr. Lloyd purchased roller skates for

the mannequin at Build-a-Bear. The roller skates added height to the mannequin, which brought

it closer to Aaliyah's actual height. Dr. Lloyd also testified that, by using the roller skates, he

was better able to simulate a slip event in the bathtub.

{¶14} Dr. Lloyd ultimately conducted 25 data collection trials during which he allowed

the mannequin to fall fromthree different positions: a standing fall, a fall that occurred "while

initiating egress from [the] bathtub," and a fall "from [the] top edge of [the] bathtub." Dr. Lloyd

recorded the data he received from each fall and inserted the data into force calculations to arrive

at values representing the force with which the mannequin's head made impact when it fell. He

then compared the force values his experiment produced with head injury threshold criteria and

determined that the values he recorded exceeded the reported thresholds. Because the values he

recorded exceeded the reported thresholds, he concluded that it was possible a bathtub fall could

have produced the type of head injuries that Aaliyah sustained.

{¶15} The trial court excluded Dr. Lloyd's testimony on two separate bases. First, the

court determined that Dr. Lloyd was not qualified to offer any opinion as to whether specific

types of brain injuries in a child could be sustained by a bathtub fall because he lacked any

education, training, or experience in pediatric brain injury and any such testimony would amount

to a medical diagnosis that Dr. Lloyd was not qualified to make. See Evid.R. 702(B). Second,

the court determined that Dr. Lloyd's bathtub experiment was not reliable because it had never

been tested or subjected to peer review, no error rate was discussed, no proof existed that the

experiment was definite enough to generate accurate results, and the methodology Dr. Lloyd

A •6

7

employed was not widely accepted in the scientific community. See Evid.R. 702(C). We begin

by examining the reliability of Dr. Lloyd's experiment under Evid.R. 702(C).

{¶16} Dr. Lloyd admitted on cross-examination that he created and designed the bathtub

experiment he conducted for the sole purpose of this litigation. He explained that he performed

the experiment in his private lab at home because it was unrelated to his actual employment as a

researcher for the James A. Haley Veterans Hospital in Florida. Dr. Lloyd testified that he

advertises his services on the internet and perfornls experiments during his personal time. He

began studying abusive head trauma in children approximately 14 months before the Daubert

hearing when a colleague sought his opinion in a Shaken Baby Syndrome case. Since that time,

Dr. Lloyd had performed five experiments related to Shaken Baby Syndrome.' He had never,

however, performed the type of experiment that he designed in this case.

{¶17} Dr. Lloyd testified that biofidelic mannequins such as the CRABIl model are

used in the automotive industry to simulate car accidents and determine the likelihood of injury

to the occupants of a car. He testified that guidelines exist for the installation and calibration of

the electronic instrumentation used with the mannequins and that he followed those guidelines in

installing the CRABII model's sensors. Dr. Lloyd indicated that it is a generally accepted

principle in the scientific community that simulations during which force is applied can be used

to determine the likelihood of injuries. He further stated that the methodology he employed in

his experiment is commonly used in the motor vehicle industry as well as the sporting goods

industry, where force simulations are used to test the effectiveness of sporting equipment at

preventing injury. Finally, Dr. Lloyd testified that the injury thresholds he used in his

1 Dr. Lloyd testified that he had proven through biomechanical analysis that shaking alone isinsufficient to cause brain injury to an infant.

A• 7

8

calculations are widely used in the automotive industry and many articles have been published

about them.

{¶l8} Dr. Lloyd admitted that CRA.BII mannequins were specifically developed to

study impact biomechanics in motor vehicle accidents and that the injury thresholds upon which

he relied were developed for automotive impact testing. Nevertheless, Dr. Lloyd claimed that

the same mannequins and threshold data from the automotive industry could be applied to

simulated fall experiments because the principles of biomechanics, physics, and gravity apply

equally to any instance of force. Dr. Lloyd explained that one would simply need to adjust their

calculations to account for any differences, such as the difference between a vertical and

horizontal impact or the difference between an adult's and a child's injury threshold. Dr. Lloyd

relied upon two experiments as examples of the soundness of his methodology and the

experiment he performed.

{¶19} The first experiment Dr. Lloyd referenced was one in which he and a colleague

dropped adult-sized biofidelic mannequins from a hospital bed from varying heights and

positions in order to study the risk of any injury that might result and how to prevent the injury.

The results of the experiment allowed Dr. Lloyd to determine whether the risks of severe head

injuries increased or decreased based upon the type of fall that occurred as well as how much

those risks could be reduced by the presence of a bedside floor mat. Dr. Lloyd calculated the

likelihood of injury in each fall by referring to the same head injury threshold criteria sources he

used in this case. He and his colleague discovered that the risk of head injury was highest when

they dropped a mannequin in an angular fashion with its feet hitting the floor before its head

because the additional momentum attained as a result of the angular, as opposed to only linear,

AW 6

9

acceleration strengthened the force of the impact. Dr. Lloyd testified that he and his colleague

published the results of their experiment in a peer reviewed journal.

{1[20} The second experiment Dr. Lloyd referenced was one in which Dr. Chris Van Ee

and his colleagues performed a biomechanical recreation of a child's fall from play equipment in

her family's garage. In the recreation, Dr. Van Ee used a biofidelic mannequin to simulate the

child's fall. Dr. Van Ee was able to recreate the fall and the conditions of the fall exactly, as the

child's grandmother had been videotaping the child when she fell and a recording of the fall

existed. Based on the recreation he conducted, Dr. Van Ee determined that the fall the child took

was sufficient to cause the types of injuries that the child sustained. Dr. Lloyd specified that Dr.

Van Ee's study had been published and peer-reviewed and that the methodology Dr. Lloyd used

for his own experiment was "almost identical" to the methodology that Dr. Van Ee had used.

{¶21} Dr. Lloyd admitted on cross-examination that he had not submitted the results of

his bathtub experiment for publication and that he had only discussed his experiment with one

other person: a pathologist friend with whom he had dinner a few weeks before the Daubert

hearing. He further admitted that, unlike the experiment Dr. Van Ee conducted, no recording of

the fall he sought to simulate, if in fact there was a fall, existed. Dr. Lloyd was forced to create

three different fall scenarios and average his results because no one had witnessed the alleged

fall. Moreover, Dr. Lloyd conceded that he had not ensured the conditions of his experiment

were the same as the conditions that existed on the night of Aaliyah's injuries. Dr. Lloyd never

visited the actual apartment or bathtub where Aaliyah allegedly fell. He did not know what type

of bathtub the apartment had or whether the bathtub he had purchased was the same type. He did

not know how much water, if any, remained in the bathtub when Aaliyah allegedly fell.

Moreover, he did not explain how accurately a pair of roller skates could simulate a fall

A-4

10

condition when, in actuality, any fall would have occurred in bare feet. Even so, Dr. Lloyd

insisted that any inaccuracies or variations in the conditions of his experiment only would have

produced more conservative results.

{¶22} Neither one of the experiments to which Dr. Lloyd referred as support for his

methodology are comparable to the bathtub experiment he performed. The experiment

conducted by Dr. Van Ee reportedly constituted an exact recreation of the fall in question, as a

recording of the fall and the conditions of the fall existed. Likewise, the experiment that Dr.

Lloyd and one of his colleagues conducted involving mannequins dropped from beds only

sought to measure risks of injury by comparing repetitive falls under similar conditions. The

experiment did not encompass the comparison of the results of one of those falls with an injury

from an unknown cause. Although Dr. Lloyd may have premised the calculations in his

experiment upon widely accepted theories, the use of a widely accepted theory is only one

component of reliability under Evid.R. 702(C). See Evid.R. 702(C)(1).

{¶23} Dr. Lloyd designed the bathtub experiment he conducted by himself solely for

purposes of this litigation. He admitted that no one else had ever performed the experiment he

created. He also admitted that his experiment and his results had not been published or subjected

to any type of peer review, other than Dr. Lloyd's having discussed the experiment with a friend

over dinner. Moreover, Dr. Lloyd conceded that he did not have any knowledge of the actual

conditions of the apartment or bathtub in which Aaliyah allegedly fell or the exact nature of her

alleged fall. Compare Miller, 80 Ohio St.3d at 612-616.

{¶24} In affirming a decision to exclude expert testimony, the Ohio Supreme Court

wrote:

Although scientists certainly may draw inferences from a body of work, trialcourts must ensure that any such extrapolation accords with scientific principles

A ..ra

11

and methods. *** A court may conclude that there is simply too great ananalytical gap between the data and the opinion proffered. Because expertopinion based on nebulous methodology is unhelpful to the trier of fact, it has no

place in courts of law.

(Internal quotations and citations omitted.) Valentine, 110 Ohio St.3d 42, 2006-Ohio-3561, at ¶

18. Although Dr. Lloyd used several widely accepted theories in his experiment, we cannot

conclude that the trial court abused its discretion when it determined that his experiment was not

reliable. The experiment had never before been performed, so Dr. Lloyd's technique had never

been tested. See Miller, 80 Ohio St.3d at 611. Likewise, his technique had never been subjected

to peer review. See id. The only mention of any known or potential rate of error Dr. Lloyd

discussed at the hearing was the known error rate for the calibration of the sensors he installed in

the CRABII mannequin. No known or potential rate of error was discussed with regard to any

other instruments he used or any other component of his experiment. See id. Finally, other than

the limited examples Dr. Lloyd gave of the two experiments that were not comparable with his

own, there was no evidence that the methodology he used had gained general acceptance in the

scientific community. See id. In short, Ms. Calise did not demonstrate at the Daubert hearing

that Dr. Lloyd's testimony was scientifically reliable. See State v. Wooden, 9th Dist. No. 23992,

2008-Ohio-3629, ¶ 23-24. To the extent Ms. Calise argues in her brief that a law degree does not

equip one to question principles and methods acted upon by experts in their relevant fields, we

abide by the Supreme Court's cautionary instruction that the "courtroom is not the place for

scientific guesswork, even of the inspired sort. Law lags science; it does not lead it." Valentine

at ¶ 23, quoting Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir.1996). Accordingly, we

conclude that t'rie trial court did not abuse its discretion when it determined that Dr. Lloyd's

testimony was not scientifically reliable under Evid.R. 702(C).

A U

12

{¶25} The trial court also deterniined that Dr. Lloyd was not qualified to offer any

opinion as to whether specific types of brain injuries in a child could be sustained by a bathtub

fall because he lacked any education, training, or experience in pediatric brain injury and any

such testimony would amount to a medical diagnosis that Dr. Lloyd was not qualified to make.

See Evid.R. 702(B). We will not address this portion of the trial court's opinion in our analysis

because Ms. Calise has not set forth any argument that the court erred by so concluding. See

App.R. 16(A)(7). As this Court has repeatedly held, "[i]f an argument exists that can support

[an] assignment of error, it is not this [C]ourt's duty to root it out." Cardone v. Cardone, 9th

Dist..No. 18349, 1998 WL 224934, *8 (May 6, 1998). Ms. Calise's first assignment of error is

overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN ALLOWING THE STATE'S MEDICALWITNESSES TO TESTIFY AS EXPERTS ON THE FORCE NECESSARY TOCAUSE THE INJURIES SUFFERED BY AALIYAH ALI.

{¶26} In her third assignment of error, Ms. Calise argues that the trial court erred when

it allowed the State's medical witnesses to testify that Aaliyah's injuries could not possibly have

been caused by a bathtub fall. According to Ms. Calise, three of the State's medical witnesses

were not competent to testify as to the cause of an injury.

{¶27} "The determination of the admissibility of expert testimony is within the

discretion of the trial court." Valentine, 110 Ohio St.3d 42, 2006-Ohio-3561, at ¶ 9. The trial

court permitted the State to present the testimony of four medical experts: (1) Dr. Nirali Patel, a

pediatric emergency medicine fellow at Akron Children's Hospital; (2) Dr. John Pope, a

pediatric intensivist and the associate director of the pediatric critical care unit at Akron

Children's Hospital; (3) Dr. Richard Daryl Steiner, the director of the CARE Center at Akron

A- 1;^

13

Children's Hospital; and (4) Dr. Dorothy Dean, a forensic pathologist and the Summit County

Medical Examiner. All four witnesses testified, within a reasonable degree of medical certainty,

that the cause of Aaliyah's death was non-accidental head trauma and that her injuries were not

consistent with having slipped and fallen in a bathtub. All four witnesses based their conclusions

on their training, education, experience, and their personal evaluations of Aaliyah.

{1[28} Ms. Calise argues that Drs. Patel, Pope, and Steiner were not competent to opine

asto the cause of Aaliyah's injuries because "that is just not their field." She fails to point to any

authority in support of her argument. See App.R. 16(A)(7). ° Moreover, she does not challenge

any of the three experts' particular qualifications or explain why, as medical doctors with

pediatric experience who personally examined Aaliyah, they were not competent to testify as to

the cause of her injuries. See, e.g., Segedy v. Cardiothoracic & Vascular Surgery of Akron, Inc.,

182 Ohio App.3d 768, 2009-Ohio-2460, ¶ 18-19 (9th Dist.). This Court will not construct an

argument on behalf of an appellant. See Cardone, 1998 WL 224934, at *8. Further, this Court

will not conclude that an appellant was prejudiced by the admission of evidence where the

appellant has not shown that such prejudice exists. Ms. Calise does not explain how the

testimony of the three doctors harmed her in light of Dr. Dean's testimony. Dr. Dean performed

Aaliyah's autopsy and concluded, within a reasonable degree of medical certainty, that Aaliyah

died from blunt impact trauma and her injuries were "[a]bsolutely not" consistent with a fall in a

bathtub. Ms. Calise has not challenged Dr. Dean's competence to offer the foregoing

conclusions, and the testimony of the other medical doctors merely corroborated those

conclusions. Ms. Calise's third assignment of error is overruled.

,A-1 J

14

ASSIGNMENT OF ERROR XI

THE TRIAL (sic) ERRED IN EXCLUDING A NEWLY-PROFFERED EXPERTOPINION FROM DR. PETER STEPHENS, WHO WOULD HAVE TESTIFIEDTHAT AALIYAH'S INJURY GAVE EVIDENCE OF BEING AN OLD ONE.

{¶29} In her eleventh assignment of error, Ms. Calise argues that the trial court erred by

prohibiting defense expert Dr. Peter Stephens from testifying that pre-existing injuries,

aggravated by a fall in Ms. Calise's bathtub, could have been the cause of Aaliyah's death. We

disagree.

{¶30} Although a criminal defendant has the right to present witness testimony on his

behalf, a trial court may "exclude suchevidence when the orderly administration of justice is

threatened by the accused's failure to promptly disclose witnesses." State v. Moon, 74 Ohio

App.3d 162, 169 (9th Dist.1991). The rules of discovery, and more specifically Crim.R. 16,

imbue trial courts with the discretion to exclude testimony that is not disclosed in a timely

manner in order to prevent surprise and ensure a fair trial. State v. Barrios, 9th Dist. No.

06CA009065, 2007-Ohio-7025, ¶ 18. "Exclusion is a permissible sanction `as long as it would

not completely deny the defendant his constitutional right to present a defense."' Id., quoting

State v. Sinkji'eld, 2d Dist. No. 18663, 2001 WL 1517314, *8 (Nov. 30, 2001). Because a trial

court's decision to exclude testimony is a discretionary one, we review a court's decision to

exclude evidence under an abuse of discretion standard of review. Barrios at ¶ 18. An abuse of

discretion implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶31} Dr. Stephens prepared two expert reports on behalf of the defense. The actual

reports are not a part of the record, but the parties and the court summarized their contents. In

his first report, Dr. Stephens opined that Aaliyah's injuries were consistent with her having fallen

a -^'1

15

in Ms. Calise's bathtub. Dr. Stephens theorized that all of Aaliyah's injuries were the result of

the onset of rapid brain swelling, triggered by an impact. In his second report, however, Dr.

Stephens opined that slides taken from Aaliyah's autopsy evidenced the presence of older blood,

meaning that Aaliyah had suffered a head injury before the injuries she sustained while in Ms.

Calise's care. Dr. Stephens theorized that pre-existing injuries Aaliyah sustained, possibly at the

hands of another, could have caused her death with or without additional trauma, such as a fall in

the bathtub. Defense counsel produced Dr. Stephens' first report before the expiration of the

discovery deadline that the trial court set for the parties. Defense counsel produced Dr.

Stephens' second report on the morning of trial.

{1132} The State objected to Dr. Stephens' second report on the basis that it amounted to

a new defense, premised upon a theory of old abuse at the hands of someone other than Ms.

Calise. Defense counsel countered that the second report was consistent with the State's own

evidence, as the first technician who reviewed Aaliyah's original CT scan had reported that the

scan showed old blood. In doing so, defense counsel admitted that the State had provided the

defense with all of Aaliyah's medical records, including the first technician's report, and her

autopsy slides in a timely manner.

{1[33} The trial court determined that Dr. Stephens' second report amounted to a new

defense theory and that it would be unfair to allow Ms. Calise to present her expert's new theory

to the jury when the State had just learned of it on the morning of trial. The court noted that the

State had provided defense counsel with all of Aaliyah's medical records in a timely manner,

such that defense counsel had adequate time to prepare any defense theories premised upon

them. The court ruled that the testimony of Dr. Stephens would be limited to the contents of his

first expert report. Nevertheless, the court allowed the defense to question the State's experts

A •

16

about the presence of old blood on Aaliyah's CT scan and what effect, if any, a prior head injury

would have had on their diagnoses. The court also ruled that Ms. Calise could present lay

witness testimony to introduce the alternative theory of prior abuse if she chose to do so. The

court simply limited her from introducing expert testimony based on a report submitted on the

day of trial.

{¶34} Ms. Calise concedes that she failed to disclose Dr. Stephens' second expert report

within the discovery deadline that the court set, but argues that the court should have granted a

continuance instead of excluding the testimony based upon the second report. At that point,

however, the trial court already had granted a continuance at the request of the defense due to a

different issue defense counsel perceived with the State's experts. Moreover, at that point, the

potential jurors were at the courthouse waiting to be seated, and there was no guarantee that a

continuance would have resolved the situation. As the trial court noted, the theory that Aaliyah

died primarily as a result of prior abuse was not the theory that the defense had pursued and for

which the State had prepared up to that point. See Lakewood v. Papadelis, 32 Ohio St.3d 1, 5

(1987) ("Factors to be considered by the trial court include the extent to which the prosecution

will be surprised or prejudiced by the witness' testimony The theory represented a

considerable tactical shift on the morning of trial.

{¶35} Given our review of the record, we cannot conclude that the trial court abused its

discretion by excluding Dr. Stephens' testimony to the extent it encompassed his second report.

Defense counsel presented the report at the last moment, despite the fact that the State had

produced all of Aaliyah's medical records in a timely manner. The justification defense counsel

offered for the delay in seeking the second expert report was that the State had allegedly

withheld evidence about possible abuse. According to defense counsel, the State never disclosed

^V W

17

in discovery the fact that the police had received, but had never investigated, phone calls about

the possible abuse of Aaliyah by her mother. Ms. Calise maintains on appeal that the State's

nondisclosure violated Brady v. Maryland, 373 U.S. 83 ( 1963), and compounded the prejudice

that resulted from the trial court's ruling to exclude Dr. Stephens' testimony.

{136} Initially, we note that the State did not violate Brady v. Maryland. Ms. Calise

informed the trial court that she became aware of other possible acts of abuse toward Aaliyah the

week before trial. "Brady only applies when a defendant discovers post-trial that the State has

withheld exculpatory evidence." State v. Vu, 9th Dist. No. 11 CA0042-M, 2012-Ohio-746, ¶ 39.

Because Ms. Calise learned about the allegedly exculpatory evidence at issue before trial, no

Brady violation occurred. Further, as defense counsel conceded in the court below, the defense

had access to all of Aaliyah's medical records, including the first technician's report that her CT

scan depicted old blood, long before defense counsel sought to introduce expert testimony about

the old blood. Defense counsel, therefore, could have formulated the theory about a prior injury

based upon the information the State disclosed in discovery.

{¶37} Ms. Calise has not shown that the trial court abused its discretion. The court

excluded expert testimony in order to avoid unfair surprise and to ensure a fair trial. See Barrios,

2007-Ohio-7025, at ¶ 18. Additionally, the court's ruling did not completely deny Ms. Calise

her constitutional right to present a defense. See id. It merely prohibited Ms. Calise from

presenting expert testimony on a belated, alternative theory. Further, Ms. Calise was still able to

introduce that theory through cross-examination. Ms. Calise's eleventh assignment of error is

overruled.

ASSIGNMENT OF ERROR XIII

THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OFSHELBY POMPEO AND GRETCHEN ROTHACHER.

AA1

18

{1[38} In her thirteenth assignment of error, Ms. Calise argues that the trial court erred

by admitting the testimony of two witnesses: Shelby Pompeo and Gretchen Rothacher. Ms.

Calise argues that the testimony of both women amounted to inadmissible character evidence.

We disagree.

{1[39} The trial court permitted both Ms. Pompeo and Ms. Rothacher, two of Ms.

Calise's former neighbors, to testify that they saw Ms. Calise outside her apartment with Aaliyah

the same night Aaliyah died, heard Ms. Calise yell at Aaliyah, and watched her roughly grab

Aaliyah by the back of the neck and drag her back inside. Ms. Rothacher could not remember

what Ms. Calise had yelled, but Ms. Pompeo testified that Ms. Calise yelled "[w]e're going in

the f***ing house." Both Ms. Rothacher and Ms. Pompeo testified that the incident occurred at

approximately 8:30 p.m., just over three hours before Ms. Calise called 911.

{¶40} Evid.R. 404(B) provides, in pertinent part, that "[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to show action in

conformity therewith." Initially, we question Evid.R. 404(B)'s applicability in this instance, as

the rule only applies to "other crimes, wrongs, or acts." That is, we question whether the State

actually sought to introduce evidence of another crime, wrong, or act through the testimony of

Pompeo and Rothacher. See State v. Owens, 9th Dist. No. 21630, 2004-Ohio-601 ¶ 18 (Evid.R.

404(B) argument rejected because "[t]he evidence was not admitted to show a particular

character trait of Defendant"). Nevertheless, we recognize that the Ohio Supreme Court has

broadly construed Evid.R. 404(B), employing the rule to analyze a wide-range of testimony. See

State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 65-92 (other acts testimony involving

defendant's lack of parenting, poor housekeeping, and financial irresponsibility). As such, to the

A46

19

extent Evid.R. 404(B) applies here, we conclude that the admission of the testimony of Ms.

Pompeo and Ms. Rothacher did not violate the rule.

{¶41} Evid.R. 404(B) contains a non-exhaustive list of exceptions under which other

acts evidence may be admitted for a purpose other than to show propensity. Certain other acts

evidence also may be admissible when "the other. acts `form part of the immediate background of

the alleged act which forms the foundation of the crime charged in the indictment' and are

`inextricably related' to the crime." State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 13,

quoting State v. Curry, 43 Ohio St.2d 66, 73 (1975). `,`A jury is entitled to know the `setting' of a

case, including evidence of other crimes that explains the circumstances or tends logically to

prove any element of the offense charged." State v. Thomas, 9th Dist. No. 10CA009756, 2011-

Ohio-1629, ¶ 17. This Court reviews a trial court's admission of other acts evidence under an

abuse of discretion standard of review. Morris at ¶ 14, quoting Diar at ¶ 66.

{¶42} Ms. Calise argues that the trial court abused its discretion by admitting the

testimony of Ms. Pompeo and Ms. Rothacher because the testimony was not admissible under

the mistake or accident exception contained in Evid.R. 404(B). Absence of mistake or accident

was one basis that the trial court cited for its ruling. The court also determined, however, that the

testimony was admissible because it was close in time to Aaliyah's injury and part of the

background of the offense. Moreover, even if the trial court erred in its rationale, this Court may

affirm its ultimate decision on other legally correct grounds. State v. Scott, 9th Dist. No.

08CA009446, 2009-Ohio-672, ¶ 16, quoting State v. Danko, 9th Dist. No. 07CA0070-M, 2008-

Ohio-2903, ¶ 40.

{¶43} According to the defense, Ms. Calise had watched Aaliyah many times without

incident, she enjoyed watching Aaliyah, she never would have harmed her, and Aaliyah's

A-w ol

20

injuries were the result of a freak accident. The incident that Ms. Pompeo and Ms. Rothacher

described detracted from the defense's portrayal of the events and took place only a few hours

before Aaliyah's injury. The incident tended to show that Ms. Calise was, at the very least,

frustrated with Aaliyah shortly before her death, as evidenced by Ms. Calise grabbing her,

roughly shoving her, and using profanity with her despite the fact that she was less than two

years old. The testimony, if believed, would have helped to provide context for the jurors. See

Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, at ¶ 72 ("Testimony that [the defendant] left [the

victim], unattended, fed him fast food, and acted like [the victim] was a bother provided the

context for the alleged crimes and made [the defendant's] actions more understandable to the

jurors."); Thomas, 2011-Ohio-1629, at ¶ 17. Based on our review of the record, we must

conclude that the testimony of Ms. Pompeo and Ms. Rothacher was admissible because it

formed a part of the immediate background of Ms. Calise's offense. See Morris, 132 Ohio St.3d

337, 2012-Ohio-2407, at ¶ 13. As such, the trial court did not abuse its discretion by admitting

the testimony. Ms. Calise's thirteenth assignment of error is overruled.

ASSIGNMENT OF ERROR XV

THE TRIAL COURT ERRED IN FAILING TO GRANT A MOTION FORMISTRIAL BASED ON JUROR MISCONDUCT.

{1[44} In her fifteenth assignment of error, Ms. Calise argues that the trial court erred by

denying her motion for a mistrial. We disagree.

{¶45} "Mistrials need be declared only when the ends of justice so require and a fair

trial is no longer possible." State v. Franklin, 62 Ohio St.3d 118, 127 (1991). "The essential

inquiry on a motiot^i ^r ^^istriai is whetl^.er the substantial rights of the accused are adversely

affected. Great deference is afforded to a trial court's decision regarding a motion for mistrial.

Accordingly, this Court reviews the denial of a motion for mistrial for an abuse of discretion."

A . 716

21

(Internal citations, alterations, and quotations omitted.) State v. Howes, 9th Dist. No. 24665,

2010-Ohio-421, ¶ 11. An abuse of discretion means that the trial court was unreasonable,

arbitrary, or unconscionable in its ruling. Blakemore, 5 Ohio St.3d at 219.

{1[46} Ms. Calise moved for a mistrial the day after a jury view took place, during which

the jurors visited an apartment identical to Ms. Calise's former apartment. Before the jurors

visited the apartment, the State requested for the trial court to instruct the jurors to touch the

bathtub in the apartment. The defense objected to that instruction, so the court indicated that it

would modify it. Instead of instructing the jurors that they had to touch the bathtub, the court

instructed the jurors that they would be permitted to do so. Ms. Calise requested a mistrial after

the jury view because "many" of the jurors touched the bathtub and "start[ed] banging it in

several places" before taking notes. According to Ms. Calise, the court's ruling permitted the

jurors to conduct their own experiment.

{1[47} The trial court refused to grant a mistrial, but agreed to issue an instruction to the

jury. The court instructed the jury as follows:

I wanted to give you a couple further instructions regarding the jury view that wehad yesterday.

You were taken to the premises or scene and what you *** observed at the sceneis not evidence since the conditions may have changed. In fact, I think weinformed you that perhaps some of the conditions did change since the time of theevents in this case.

The evidence as to the physical appearance of the scene must come to you fromthe witness stand. The sole purpose of the viewing of the scene is to help youunderstand the evidence as it is presented during the trial.

So I just wanted to make sure that you were aware of that. Evidence, actualvvidence in this case, has to come from the witness stand or the exhibits. And wejust did that to help aid you in understanding the evidence as it comes in ***.

.Thus, the trial court specifically told the jurors that they were not to consider any of the

conditions they observed during their jury view as evidence.

A-o*xl

22

{¶48} Ms. Calise does not reference the court's instruction in her argument that the court

allowed the jurors to conduct their own experiment. Yet, the court's instruction specifically

addressed that issue. This Court presumes that jurors follow the instructions of the trial court.

State v. Veal, 9th Dist. No. 26005, 2012-Ohio-3555, ¶ 28. Given that the trial court specifically

instructed the jury that they were not to consider any part of their jury view as actual evidence in

the case, we must presume that the jurors did not do so. Id. Further, we must conclude that Ms.

Calise's substantial rights were not adversely affected. Ms. Calise has not set forth any argument

as to how she was prejudiced by the jury's conduct in light of the other evidence the State

introduced at trial. See App.R. 16(A)(7). Because the court instructed the jury regarding the jury

view and Ms. Calise has not shown that she was prejudiced by it in light of the other evidence

introduced at trial, we conclude that the trial court did not abuse its discretion by refusing to

grant a mistrial. See, e.g., State v. Mohamed, 9th Dist. No. I 1CA0050-M, 2012-Ohio-3636, ¶ 27.

As such, Ms. Calise's fifteenth assignment of error is overruled.

ASSIGNMENT OF ERROR V

THE TRIAL COURT ERRED IN FAILING TO GRANT [MS. CALISE'S]

MOTIONS FOR ACQUITTAL.

ASSIGNMENT OF ERROR VI

THE COURT ERRED IN ENTERING JUDGMENT ON THE VERDICTBECAUSE IT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

{¶49} In her fifth and sixth assignments of error, Ms. Calise argues that the court erred

by denying her motion for acquittal and that her convictions are based on insufficient evidence.

We disagree.

{¶50} "We review a denial of a defendant's Crim.R. 29 motion for acquittal by

assessing the sufficiency of the State's evidence." State v. Frashuer, 9th Dist. No. 24769, 2010-

A•

23

Ohio-634, ¶ 33. In order to determine whether the evidence before the trial court was sufficient

to sustain a conviction, this Court must review the evidence in a light most favorable to the

prosecution. State v. Jenks, 61 Ohio St.3d 259, 273 (1991).

An appellate court's function when reviewing the sufficiency of the evidence tosupport a criminal conviction is to examine the evidence admitted at trial todetermine whether such evidence, if believed, would convince the average mindof the defendant's guilt beyond a reasonable doubt. The relevant inquiry iswhether, after viewing the evidence in a light most favorable to the prosecution,any rational trier of fact could have found the essential elements of the crimeproven beyond a reasonable doubt.

Id. at paragraph two of the syllabus; see also State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

"In essence, sufficiency is a test of adequacy." Thompkins at 386.

{1151} Ms. Calise does not challenge any particular element of her convictions. Instead,

she argues that reasonable doubt that she harmed Aaliyah existed because one of the State's own

experts acknowledged that (1) shaking injuries are difficult to diagnosis absent a witness to the

shaking, (2) Aaliyah did not suffer from several of the injuries commonly associated with

shaking, such as rib fractures, and (3) studies have cast doubt on the legitimacy of shaken-baby

syndrome. We do not agree that Ms. Calise's convictions are based on insufficient evidence.

{¶52} Summit County Sheriff's Deputy Scott Plymire responded to Ms. Calise's 911

call and arrived at her apartment along with paramedics from the City of Green's Fire

Department. Deputy Plymire spoke with Ms. Calise after Aaliyah received treatment. Ms.

Calise told Deputy Plymire that Aaliyah was injured at the end of her bath when Ms. Calise

briefly left the room to get a towel. According to Ms. Calise, she heard three "thump[s]" after

she left the bathroom and returned to find Aaliyah lying limp on the floor of the bathtub. Ms.

Calise stated that the water in the tub had "nearly drained" at that point and Aaliyah was

0A- 6

24

positioned on her back with her arms over her head. Ms. Calise then grabbed Aaliyah and

brought lier into the living room where she called 911.

{¶53} Thomas Wiles was one of the paramedics who treated Aaliyah at the scene. Mr.

Wiles testified that Aaliyah was lying unclothed onMs. Calise's living room floor when he

arrived and displayed decorticate posturing. Mr. Wiles explained that decorticate posturing

indicates a head injury and is typically associated with motorcycle crashes or high speed motor

vehicle accidents. At the time Mr. Wiles began to treat Aaliyah, her pupils were fixed and

dilated and she was only breathing four to six times per minute. The paramedics used a bag

valve mask to aid Aaliyah's respirations. Mr. Wiles could not actually see inside of Aaliyah's

mouth because her teeth were clenched. He indicated, however, that he was easily able to

squeeze the bag he placed on Aaliyah's face, meaning that he did not encounter any obstructions

in her airway that would have made bagging difficult.

{¶54} The State presented four medical experts at trial: Dr. Nirali Patel, Dr. John Pope,

Dr. Richard Daryl Steiner, and Dr. Dorothy Dean. Dr. Patel first examined Aaliyah when she

arrived at Akron Children's Hospital. At that time, Aaliyah was in critical condition and

required intubation. Dr. Patel testified that she administered a drug to Aaliyah to paralyze her

jaw muscles so that she could open her mouth and complete the intubation. She further testified

that, although she had to suction foreign material from Aaliyah's throat before successfully

completing the intubation, Aaliyah did not have any airway blockages.

{1[55} Dr. Patel only observed a small bruise on Aaliyah's forehead when she examined

her, but ordered a CT scan. The CT scan displayed a subdural hemorrhage, cerebral edema, and

mass effect swelling in Aaliyah's brain. It further showed that Aaliyah did not have any skull

fractures. Dr. Patel opined that a skull fracture generally would occur with a traumatic impact

A-P al

25

situation and that the type of injuries Aaliyah sustained were usually seen in high impact,

acceleration-deceleration situations such as motor vehicle accidents or falls from a great height.

Dr. Patel testified that she had never seen a slip and fall injury result in the types of injuries that

Aaliyah sustained and that Aaliyah's injuries were not proportional to the reported history the

hospital received from Ms. Calise. Dr. Patel opined, based on a reasonable degree of medical

certainty, that Aaliyah's injuries were the result of non-accidental trauma, not injuries associated

with either a bathtub fall or choking.

{¶56}, Dr. Pope received Aaliyah into his care before her surgery. At that time, Aaliyah

displayed signs of a severe brain injury. Dr. Pope received the results of Aaliyah's blood tests

and testified that her lactic acid levels were normal. Dr. Pope explained that oxygen deprivation

causes lactic acid build-up, such that Aaliyah's levels would have been elevated if she had been

significantly deprived of oxygen or blood flow. Dr. Pope reviewed Aaliyah's CT scan and noted

that her injuries were of a type typically seen in a severe car crash situation or a fall from a

second or third story window. Dr. Pope noted that he did not observe any exterior impact

injuries on Aaliyah and that falls generally present with outside injuries, fractures, or epidural

hematomas. He opined that Aaliyah's injuries did not match the history given and, based on a

reasonable degree of medical certainty, they were the result of a violent force.

{¶57} Dr. Steiner testified that he evaluated Aaliyah and her case for signs of abuse in

his capacity as the Director of the CARE Center. Based on his examination of Aaliyah and his

review of all of her medical records, Dr. Steiner concluded that Aaliyah had suffered physical

abuse that resulted in traumatic brain injury and, ultimately, her death. Dr. Steiner explained that

the history Ms. Calise gave was incongruent with the injuries he observed on Aaliyah, as she had

not suffered from any scalp bruising or contusions, she did not suffer any skull fractures (a

*W^

26

common injury in an impact situation), and her condition deteriorated rapidly.. Dr. Steiner

further explained that Aaliyah suffered from retinal hemorrhages, an injury indicative of a

rotational acceleration-deceleration, whiplash-type injury. Although Dr. Steiner admitted that it

was possible for a child to sustain a serious head injury from a short fall, he opined that such

injuries were very rare. He testified that Aaliyah's particular injuries were not consistent with a

slip and fall due to their violent and complex nature. Dr. Steiner opined, within a reasonable

degree of medical certainty, that Aaliyah suffered an acute injury from physical abuse. More

specifically, he concluded that Aaliyah died as the result of her head being violently and

repetitively whipped back and forth.

{¶58} Dr. Dean performed Aaliyah's autopsy and ruled Aaliyah's. death a homicide. Dr.

Dean testified that Aaliyah did not present with any underlying health problems and that there

was no evidence that she had ever experienced brain bleeding before this event. According to

Dr. Dean, Aaliyah died as a result of complications of blunt impact trauma and had suffered

severe damage as a result of severe trauma. Dr. Dean opined, based on a reasonable degree of

medical certainty and the types of injuries Aaliyah had sustained, that Aaliyah had been shaken

to death. More specifically, Dr. Dean testified that Aaliyah's brain "was slammed inside her

skull forcibly" whether by shaking alone or shaking in conjunction with some impact on a

surface. Dr. Dean opined that a bathtub fall could "[a]bsolutely not" have caused Aaliyah's

severe brain damage.

{¶59} The State presented evidence that Ms. Calise was the only adult with Aaliyah at

the time she suffered severe brain injuries. Further, the State presented extensive expert medical

testimony that Aaliyah's injuries were the result of non-accidental trauma and could not possibly

have occurred from the simple fall in the bathtub that Ms. Calise described. Although Dr.

A' Wp

27

Steiner admitted that it was possible in some instances for a short fall to produce a serious head

injury, he testified that Aaliyah's specific injuries were not consistent with that type of fall. Ms.

Calise criticizes Dr. Steiner's expert opinion on the basis that he admitted he would not diagnose

an injury as shaken-baby syndrome in the absence of eyewitness testimony. What Dr. Steiner

actually said, however, was that he would not conclude that injuries were purely the result of

shaking, and not some other combination of injury such as shaking and impact, without

additional evidence. There was also testimony that, although Aaliyah did not suffer some of the

injuries commonly associated with shaking, such as rib fractures, she did suffer from another

common injury, retinal hemorrhaging.

{¶60} Viewing all of the evidence in a light most favorable to the State, including the

extensive expert medical testimony the State produced, a rational trier of fact could have found

that the State proved its case against Ms. Calise beyond a reasonable doubt. All of the State's

experts opined, within a reasonable degree of medical certainty, that Aaliyah's injuries were not

the result of accidental trauma. Dr. Dean in particular testified that Aaliyah died from violent

shaking. Ms. Calise's statement that Aaliyah was injured when she fell in the bathtub did not

comport with the medical evidence the State produced at trial. Based on our review of the

record, we conclude that Ms. Calise's convictions are not based on insufficient evidence. Ms.

Calise's fifth and sixth assignments of error are overruled.

ASSIGNMENT OF ERROR VIII

THE TRIAL COURT ERRED IN ENTERING JUDGMENT ON A VERDICTTHAT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

61' In her eighth assigr^irient of eior, Ms. Calise argues that the jury's verdicts aref11^

against the manifest weight of the evidence. We disagree.

a• x7

28

{¶62} In determining whether a conviction is against the manifest weight of the

evidence an appellate court:

must review the entire record, weigh the evidence and all reasonable inferences,consider the: credibility of witnesses and determine whether, in resolving conflictsin the evidence, the trier of fact clearly lost its way and created such a manifestniiscarriage of justice that the conviction must be reversed and a new trial

ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A weight of the evidence challenge

indicates that a greater amount of credible evidence supports one side of the issue than supports

the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis

that the conviction was against the manifest weight ofthe evidence, the appellate court sits as the

"thirteenth juror" and disagrees with the factfinder's resolution of the conflicting testimony. Id.

Therefore, this Court's "discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction." State v. Martin,

20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten, 33 Ohio App.3d at 340.

{¶63} Ms. Calise argues that her convictions are against the manifest weight of the

evidence because there was testimony that a short fall can produce a fatal head injury. Again,

Ms. Calise points to Dr. Steiner's testimony, in which he admitted that serious head injuries from

short falls are possible. Dr. Steiner also testified, however, that Aaliyah's particular injuries

were not the result of a short fall even if such a possibility generally exists. He specified that

Aaliyah did not suffer any injuries that would commonly be associated with short falls, such as a

skull fracture or scalp bruising or contusions. Further, he specified that the totality of Aaliyah's

injuries, including her retinal hemorrhaging, evidenced that she was subjected to a rotational

acceleration/deceleration, whiplash injury and not a fall. All of the State's other medical experts

also concluded that Aaliyah's injuries were not the result of a fall in a bathtub.

A xro

29

{¶64} The defense presented two medical experts: Dr. Ronald Uscinski and Dr. Peter

Stephens. Dr. Uscinski, a clinical neurosurgeon, testified within a reasonable degree of medical

certainty that Aaliyah's injuries were consistent with the history Ms. Calise gave. Dr. Uscinski

explained that all of Aaliyah's injuries could have been the result of intracranial pressure and

swelling due to choking and oxygen deprivation. Dr. Uscinski disagreed with the State's expert,

Dr. Pope, that blood testing always would reveal oxygen deprivation due to lactic acid build-up

and related organ damage. Nevertheless, Dr. Uscinski admitted on cross-examination that there

was no. evidence that Aaliyah's airway had been blocked for any, length of time. To the contrary,

both the paramedics and the hospital staff who first treated Aaliyah were able to penetrate her. . . . 3 . . . . . . . . . . . . . . . . .

airway with ease.

{1[65} Dr. Stephens agreed that Aaliyah's injuries were consistent with the history that

Ms. Calise gave and that an impact could have disrupted Aaliyah's breathing pattern, which then

could have triggered oxygen deprivation and swelling. Dr. Stephens also opined that retinal

hemorrhaging is consistent with both abusive and accidental trauma, as it can be caused simply

by the brain swelling. Dr. Stephens testified at length about the possibility of severe head

injuries in short fall situations and the fact that it is possible for a child to suffer severe brain

damage from a short fall in the absence of any external marks or bruises. Dr. Stephens

concluded that Aaliyah died as the result of a fall.

{166} The jury was presented with two conflicting theories based on the expert medical

testimony produced by the State and the defense. We cannot conclude that the jury lost its way

simply because it chose to believe the overwhelming amount of medical evidence the State

presented. The jury was not obligated to believe the testimony of Dr. Uscinski or Dr. Stephens

simply.because they were experts. See Waugh v. Chakonas, 9th Dist. Nos. 25417 & 25480,

A• Xq

30

2011-Ohio-2764, ¶ 23. This Court has conducted an extensive review of the record in this

matter. Based upon our review of the record, this is not the exceptional case where the jury lost

its way in choosing to believe the State's version of the events. See Otten, 33 Ohio App.3d at

340. Ms. Calise's convictions are not against the manifest weight of the evidence, and her eighth

assignment of error is overruled.

ASSIGNMENT OF ERROR XVII

THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ONLESSER-INCLUDED OFFENSES AND IN FAILING TO PROPERLYINSTRUCT ON THE ELEMENTS OF THE OFFENSES WITH WHICH MS.CALISE WAS CHARGED.

ASSIGNMENT OF ERROR XVIII

THE TRIAL COURT ERRED IN FAILING TO GRANT AN ACQUITTALBASED ON THESE ERRONEOUS JURY INSTRUCTIONS.

{¶67} In her seventeenth assignment of error, Ms. Calise argues that the trial court erred

by refusing to instruct the jury on lesser-included offenses and by improperly instructing the jury

on her indicted offenses. In her eighteenth assignment of error, she argues that the court erred by

not acquitting her based on its erroneous jury instructions. We disagree with both propositions.

{¶68} A jury may consider an unindicted crime if it is a lesser-included offense or

inferior degree of the crime charged. State v. Deem, 40 Ohio St.3d 205, 208 (1988). "An

instruction on a lesser-included offense is required only where the evidence presented at trial

would reasonably support both an acquittal on the crime charged and a conviction on the lesser-

included offense." State v. Carter, 89 Ohio St.3d 593, 600 (2000). This. Court reviews a trial

court's decision to give or not give jury instructions for an abuse of discretion under the

particular facts and circumstances of the case. State v. Sanders, 9th Dist. No. 24654, 2009-Ohio-

a• !0

31

5537, ¶ 45. An abuse of discretion means that the trial court was unreasonable, arbitrary, or

unconscionable in its ruling. Blakemore, 5 Ohio St.3d at 219.

{1[69} Ms. Calise argues that the trial court erred by not instructing the jury on

misdemeanor child endangering, an inferior degree of felony child endangering, with regard to

the child endangering count (Count Four) linked to her involuntary manslaughter count (Count

Two). In conjunction with that argument, Ms. Calise avers that the trial court erred by not

providing a more complete definition of foreseeability. According to Ms.Calise, had the court

properly instructed the jury, the jury could have determined that it was not foreseeable that her

act of leaving Aaliyah alone in a bathtub would result in serious physical harm to Aaliyah. See

R.C. 2919.22(E)(2)(c), (d); State v. Shirey, 9th Dist. No. 22593, 2006-Ohio-256, ¶ 18 (for an

offense to constitute felony child endangering, the State must prove that serious physical harm to

the child resulted from the act of endangerment).

{¶70} "A trial court must charge a jury with instructions that are a correct and complete

statement of the law." State v. Estright, 9th Dist. No. 24401, 2009-Ohio-5676, ¶ 46. The trial

court here instructed the jury in accordance with the Ohio Jury Instructions on Child

Endangerment and causation in a homicide case. See State v. Armstrong, 9th Dist. No. 24479,

2009-Ohio-5941, ¶ 13 (instructions found in Ohio Jury Instructions are the recommended

instructions in Ohio). Specifically, the trial court instructed the jury as follows:

Causation. The State charges that the Defendant's commission of EndangeringChildren caused the death of Aaliyah Ali. Cause is an essential element of theoffense. Cause is an act or failure to act which in a natural and continuoussequence directly produces the death and without which it would not have

occurred.

The Defendant's responsibility is not limited to the immediate or most obviousresult of the Defendant's act or failure to act. The Defendant is also responsiblefor the natural and foreseeable consequences or results that follow in the ordinarycourse of events from the act or failure to act.

A,I

32

There may be one or more causes of an event. However, if the Defendant's act orfailure to act was one cause, then the existence of other causes is not a defense.The Defendant is responsible for the natural consequences of the Defendant'sunlawful act or failure to act even though death was also caused by theintervening act or failure to act of another.

If the Defendant inflicted an injury not likely to produce death, and if the sole andonly cause of death was a natural cause, the Defendant who inflicted the originalinjury is not responsible for the death.

See 4 Ohio Jury Instructions, Section 417.23 (2010); 4 Ohio Jury Instructions, Section 417.25

(2010). Ms. Calise has not set forth any argument as to why the court's causation instruction did

not suffice or in what particular way the court's instruction was deficient. According to Ms.

Calise, the court's instruction did not adequately convey to the jury that the end result of serious

physical harm to Aaliyah, rather than merely some injury, must have been foreseeable to Ms.

Calise when she acted or failed to act. The plain language of the causation instruction, however,

required the jury to find that Ms. Calise caused Aaliyah's death. The court specifically

instructed the jury that Ms. Calise would not be responsible for Aaliyah's death if the injury she

inflicted was "not likely to produce death." The court also properly defined "recklessly" for the

jury, as discussed below. As such, the jury could convict Ms. Calise only if it found that she

recklessly caused Aaliyah's death. Absent a reasoned argument from Ms. Calise supported by

applicable legal authority, we will not conclude that the trial court improperly instructed the jury

on causation. See App.R. 16(A)(7).

{1[71} As to Ms. Calise's argument that the court should have instructed the jury on the

inferior degree of child endangering, Ms. Calise concedes that there was evidence from which

the jury could have concluded that she was guilty of felony child endangering. Indeed, the entire

theory of the defense was that Aaliyah fell in the bathtub after Ms. Calise left her unattended and

it was entirely possible for a child to sustain a severe head injury from such a fall. The evidence

Aa $a

33

presented at trial would not reasonably have supported an acquittal on the crime charged. See

¶Carter, 89 Ohio St.3d at 600. See also State v. Moss, 9th Dist. No. 24092, 2008-Ohio-3956,

26-27. Thus, the trial court did not abuse its discretion by refusing to instruct the jury on

misdemeanor child endangering.

{¶72} Lastly, Ms. Calise argues that the trial court erred by not providing a better

definition of "recklessness" and by not instructing the jury that the mens rea for both murder and

involuntary manslaughterwas recklessness. As with the other definitions that the trial court

issued, the court provided the jury with the definition of recklessness contained in the Ohio Jury

Instructions. The court instructed the jury as follows:

Recklessly. A person acts recklessly when, with heedless indifference to theconsequences, she perversely disregards a known risk that her conduct is likely tocause a certain result or to be of a certain nature.

A person is reckless with respect to circumstances when with heedlessindifference to the consequences she perversely disregards a known risk that suchcircumstances are likely to exist.

Since you cannot look into the mind of another, recklessness is determined fromall_ the facts and circumstances in evidence. You will determine from these factsand circumstances whether the Defendant recklessly abused Aaliyah Ali causing

her serious physical harm.

See 4 Ohio Jury Instructions, Section 417.17 (2010). The court's definition also matched the

statutory definition of recklessness contained in R.C. 2901.22(C). Further, the court instructed

the jury on "risk" and "substantial risk," both of which contrasted a significant or strong

possibility of causing a certain result with a remote possibility of a certain result. See id. Ms.

Calise has not shown that the trial court's recklessness instruction was deficient or led the jury to

« .,,,,.< »+,. e ali^ ah was foreseeable. See App.R. 16(A)(7).convict her mereiy oecaase soii-ie i^^july to . a .^

Nor has she shown that the trial court erred by not instructing the jury that recklessness was the

mens rea for her felony murder or involuntary manslaughter counts. Felony murder does not

,rq^» 33

34

contain a mens rea component; it is the predicate offense that contains the mens rea component

for felony murder. State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, ¶ 43. The same is true for

involuntary manslaughter, as its degree depends upon the felony underlying it. See, e.g., State v.

Evans, 93 Ohio App.3d 121, 126 (9th Dist.1994). The court provided a complete definition of

recklessness for Ms. Calise's counts of child endangering. Thus, we conclude that the trial court

did not err in instructing the jury.

{¶73} Ms. Calise's seventeenth assignment of error is overruled, as the trial court did

not abuse its discretion or otherwise err by instructing the jury. Further, because the court did

not issue erroneous instructions to the jury, the court also did not err by refusing to acquit Ms.

Calise on the basis of any alleged erroneous instructions. Ms. Caiise's eighteenth assignment of

error is likewise overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIALBECAUSE OF THE IMPROPER EXCLUSION OF DR. LLOYD'S

TESTIMONY.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIALBECAUSE OF THIS IMPROPERLY-ADMITTED EVIDENCE.

ASSIGNMENT OF ERROR VII

THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIALBECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE

VERDICT[.]

ASSIGNMENT OF ERROR IX

THE TRIAL COURT ERicED iN FANWAS AGAINST THE MANIFESTTHE GROUND THAT THE VERDICTWEIGHT OF THE EVIDENCE.

a• a9

35

ASSIGNMENT OF ERROR X

THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL ONTHE BASIS OF PROSECUTORIAL MISCONDUCT.

ASSIGNMENT OF ERROR XII

THE TRIAL (sic) ERRED IN DENYING A NEW TRIAL BECAUSE OF ITSEXCLUSION OF THIS OPINION FROM DR. STEPHENS.

ASSIGNMENT OF ERROR XIV

THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIALBASED ON THE ADMISSION OF THAT TESTIMONY.

ASSIGNMENT OF ERROR XVI

THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIALBECAUSE OF THE JUROR MISCONDUCT.

ASSIGNMENT OF ERROR XIX

THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIALBASED ON THE ERRONEOUS INSTRUCTIONS.

{1[74} The foregoing nine assignments of error all arise from the trial court's ruling on

Ms. Calise's motion for a new trial. We conclude that Ms. Calise's motion for new trial was

properly denied.

{¶75} Initially, we address the State's argument that the trial court should have denied

Ms. Calise's motion for new trial on the basis that it was untimely. "Application for a new trial

shall be made by motion which *** shall be filed within fourteen days after the verdict was

rendered *** unless it is made to appear by clear and convincing proof that the defendant was

unavoidably prevented from filing [her] motion for a new trial ***." Crim.R. 33(B). If the

defendant demonstrates that filing an extension is warranted, "the motion shall be filed within

seven days from the order of the court finding that the defendant was unavoidably prevented

from filing such motion * * *." Id. A trial court "may not extend the time for taking any action

A•3s

36

under *** Rule 33 *** except to the extent and under the conditions stated in [the rule]."

Crim.R. 45(B). "In the absence of compliance with the procedures set forth in Crim.R. 33(B), a

motion for a new trial is not properly before the trial court." State v. Hernon, 9th Dist. Nos.

3262-M & 3267-M, 2002-Ohio-3741, ¶ 9. Accord State v. Charlton, 9th Dist. No. 98CA007121,

1999 WL 689895, *2 (Sept. 1, 1999).

{¶76} The jury entered its verdict against Ms. Calise on June 16, 2011. On June 28,

2011, the trial court issued an order extending the filing deadline for Ms. Calise's motion. The

order provided:

Upon motion and for good cause shown, this Court hereby ORDERS that, due tothe extensive trial preparation and;complexity of the issues involved in the abovecaptioned case, the deadline for [Ms. Calise's] Motion for New Trial be extendedseven (7) days. [Ms. Calise's] motion will be due no later than July 6, 2011.

Ms. Calise filed her motion for a new trial on July 6, 2011, eight days after the court issued its

June 28th order extending Ms. Calise's filing deadline. In response, the State argued that the

court should deny the motion as untimely because Ms. Calise had filed it beyond Crim.R. 33's

seven-day timeframe. See Crim.R. 33(B). The court acknowledged that Ms. Calise had filed her

motion eight days after its order granting an extension. Nevertheless, the court proceeded to

consider the motion on its merits. In doing so, the court noted that its own order had set forth

July 6, 2011, as the deadline for Ms. Calise's motion, and the interests of justice would be best

served by the court's consideration of the motion. The court then denied the motion on its

merits.

{¶77} We agree with the State's proposition that a motion for a new trial generally must

be filed within the deadline set forth by Crim.R. 33(B). in State v. Ross, the ^,'hio Supreme

Court examined the interplay between Crim.R. 29, Crim.R. 45, and their federal counterparts.

State v. Ross, 128 Ohio St.3d 283, 2010-Ohio-6282. Much like Crim.R. 33, Crim.R. 29 contains

A• 3tv

37

a deadline for the filing of a Crim.R. 29 post-verdict motion. See Crim.R. 29(C). It is also

subject to the constraints of Crim.R. 45, which prohibits a court from extending its filing

deadline in any manner other than the manner set forth in Crim.R. 29. See Crim.R. 45(B). The

Ross Court examined the State's appeal from a ruling on a renewed Crim.R. 29 motion that Ross

had filed beyond the rule's filing deadline. Ross at ¶ 34. The Supreme Court ultimately

concluded that the trial court erred by considering Ross' untimely motion because it was not

properly before the trial court and the State had objected to its untimeliness. Id. at ¶48-49. In

reaching its result, the Supreme Court relied in part upon Eberhart v. United States, 546 U.S. 12

(2005).

{¶78} In Eberhart, the United State Supreme Court considered the nature of the deadline

set forth in Fed.R.Crim.P. 33, the federal rule governing the filing of motions for new trial. The

Court took care to note that the deadline contained in Fed.R.Crim.P. 33 is not a jurisdictional one

that would bar a trial court from considering an untimely-filed motion on its merits. Eberhart at

17-19. Nevertheless, the Court described the rule as "a claim-processing rule [} that is

admittedly inflexible because of [Former] Rule 45(b)'s2 insistent demand for a definite end to

proceedings." Id. at 19. The Court stated that trial courts "must observe the clear limits of the

Rules of Criminal Procedure when they are properly invoked." Id. at 17. The Court specified

that when the government objects to an untimely filed motion for a new trial the strict time limit

contained in Fed.R.Crim.P. 33 "assure[s] relief." Id. at 19. In Ross, the Ohio Supreme Court

2 At the time of the Court's decision, Fed.R.Crim.P; 45(b) mirrored Crim.R. 45(B) to the extentthat it prohibited a trial court from extending the filing deadlines for certain enumerated rules.

k37

38

favorably cited the foregoing language fromEbeNhart as it pertains to motions for new trial.

Ross at ¶ 26, quoting Eberhart at 19. Therefore, the Supreme Court has recognized that a

defendant must abide by Crim.R:33(B)'s filing deadlines when filing a motion for a new trial.

{¶79} Even so, neither Ross, nor Eberhart, involved a miscalculation on the part of the

trial court with regard to the filing deadline for a defendant's motion for new trial. Ms. Calise

complied with the filing deadline the trial court set forth in its order. The problem is that the

court mistakenly extended the filing deadline for one additional day past Crim.R. 33(B)'s seven-

day, time limit. Ross and Eberhart arise from different procedural postures than the posture at

issue in this case, and we do not believe that those cases extend to this exact scenario. We agree

with the trial court that the interests of justice would not be served by penalizing Ms. Calise for

having filed her motion in conformance with the trial court's stated filing deadline. Thus, while

we agree that a defendant generally must comply with Crim.R. 33(B)'s rigid filing deadline, we

do not agree that the general rule applies in this specific instance. Ms. Calise's motion was

properly before the trial court, so the court did not err by considering it.

{¶80} Ms. Calise sets forth nine assignments of error that stem from the trial court's

denial of her motion for new trial. Yet, each of the assignments of error present issues that this

Court has already addressed in analyzing Ms. Calise's other assignments of error. Ms. Calise

does not set forth any separate argument in the foregoing nine assignments of error that she did

not already set forth, and that this Court did not already reject, in her other assignments of error.

As such, we likewise reject Ms. Calise's second, fourth, seventh, ninth, tenth, twelfth, fourteenth,

sixteenth, and nineteenth assignments of error. See Lorenzo v. Fuerst, 9th Dist. No. 17722, 1997

WL 13666, *9 (Jan. 8, 1997).

A00

39

III.

}91} Ms. Calise's assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediatelyupon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerkof the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CARLA MOOREFOR THE COURT

WT_IITMORE, P. J.CONCURS.

A• 39

40

BELFANCE, J.CONCURRING IN JUDGMENT ONLY.

{¶82} I concur in the majority's judgment because I believe that the results of Dr.

Lloyd'.s experiment do not meet the reliability requirements of Evid.R. 702. However, my

reasons for coming to this conclusion differ from those of the majority.

{¶83} Evid.R. 702 governs the admissibility of expert testimony and requires that the

testimony meet all of the following requirements:

(A) The witness' testimony either relates to matters beyond the knowledge

or experience possessed by lay persons or dispels a misconception

common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge, skill,

experience, training, or education regarding the subject matter of the

testimony;

(C) The witness' testimony is based on reliable scientific, technical, or

other specialized information. To the extent that the testimony reports theresult of a procedure, test, or experiment, the testimony is reliable only if

all of the following apply:

(1) The theory upon which the procedure, test,.. or experiment is based is

objectively verifiable or is validly derived from widely accepted

knowledge, facts, or principles;

(2) The design of the procedure, test, or experiment reliably implements

the theory;

(3) The particular procedure, test, or experiment was conducted in a way

that will yield an accurate result.

{¶84} There is little doubt that Dr. Lloyd qualifies as an expert of biomechanics. Dr.

Lloyd holds adoctorate in ergonomics. He is also the associate director of the Research Center

of Excellence and director of the Biomechanics ResearchLaboratory at the Jan:es A. Haley

Veterans Hospital. He has published 19 peer-reviewed articles and consistently presents at

national conventions on ergonomics and biomechanics.

p.qo

41

{1[85} As Dr. Lloyd explained,

[A] biomechanist has to understand anatomy and physiology. As a biomechanistI can say this amount of force would cause this kind of injury in a person of thisage, height, [and] weight. What I can't say *** because I'm not a medicaldoctor is this force caused this injury in this person. *** I can say the forcecould cause a brain injury in a two[-]year[-]old, but I can't say it caused the brain

injury in this two[-]year[-]old.

In other words, Dr. Lloyd did not intend to testify that Aaliyah fell and that caused her brain

injury. Instead, he intended to testify that his research showed that, if a child of her stature

slipped and fell in a bathtub, it could generate a certain amount of force and possibly cause the

injury Aaliyah sustained.

{1[86} However, "[b]ecause even a qualified expert is capable of rendering scientifically

unreliable testimony, it is imperative *** to examine the principles and methodology that

underlie an expert's opinion." Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, ¶ 17.

Although Dr. Lloyd is certainly an expert in ergonomics and biomechanics, I cannot conclude

that the trial court erred when it excluded the results of his experiment because Dr. Lloyd did not

establish that they were reliable.

{187} "In evaluating the reliability of scientific evidence, several factors are to be

considered: (1) whether the theory or technique has been tested, (2) whether it has been subjected

to peer review, (3) whether there is a known or potential rate of error, and (4) whether the

methodology has gained general acceptance." Miller v. Bike Athletic Co., 80 Ohio St.3d 607,

611 (1998), citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-594 (1993).

The focus must be on whether the expert's opinion is based "upon scientifically valid

principles[.]" Miller at paragraph one of the syllabus. Dr. Lloyd's experiment purported to

demonstrate that, should an infant fall in a bathtub, the fall could create enough force to cause

the injuries sustained by Aaliyah. To that end, Dr. Lloyd ran 25 tests, dropping a CRABII

A• qI

42

mannequin, the type of mannequin typically used in safety-testing fo"r automobiles, of similar

size and weight to Aaliyah from three different positions around the bathtub to see what force

°generated from the impact of its head on the tub. He then compared the force generated by the

falls to injury thresholds that have been developed from over 40 years of automotive-crash-

testing. He asserted that his results were conservative estimates of the force generated. In other

words, he claimed that any discrepancies between his experiment and the conditions where

Aaliyah potentially fell served to reduce the impact recorded in the experiment and, therefore, if

Aaliyah fell, the force from the impact would have been at least as great as those recorded inhis

experiment.

{188} However, Dr. Lloyd did not conduct any control experiments nor did he point to

any studies that would support his assertion that his results were conservative. For example, he

stated that he "would have expected the results to be at least the same if not greater[]" if the

bathtub were made of a different material or installed in a different manner. In other words, Dr.

Lloyd's presumption that his results were conservative was conjecture beyond the data available

to him. For this reason, Dr. Lloyd's potential testimony cannot be said to have been reliable

because it was based upon assumptions that were not confirmed through scientific testing. See

Valentine, 110 Ohio St.3d 42, 2006-Ohio-3561, at ¶ 21 (affirming a trial court's finding that

experts failed to adequately explain the scientific basis for their conclusions that required

extrapolation from the underlying materials).

{¶89} However, while I agree that the trial court correctly excluded the report, I disagree

with the majority that Dr. Lloyd failed to establish the reliability of his methods. The majority

concludes that the report is unreliable because Dr. Lloyd did not point to any other experiments

"comparable" to his experiment. However, as Dr. Lloyd pointed out, this general methodology

^ ^^

43

essentially has been done to study effects of automobile collisions for more than 40 years.

Furthermore, he testified that he used roller skates to simulate slips in his research for the

Veterans Hospital and also gave two examples of experiments using the type of mannequin that

he used to measure impact from falls. The first example was an experiment by a colleague that

recreated an infant's fall from play equipment in the infant's garage. The second example was

Dr. Lloyd and another researcher dropping mannequins out of beds of different heights from

different angles onto different surfaces to measure the forces of the resulting impacts. The

majority, seems to believe that these examples are not comparable enough because one was a

precise recreation of a specific fall while the other dealt with falls from a bed onto the floor.

However, the fact that the play-equipment test was a recreation of an exact fall is irrelevant to

whether the methodology was comparable. The researchers in that test used the same type of

mannequin as Dr. Lloyd to determine what the impact would be if an infant were to fall from the

equipment onto a garage floor. Similarly, in the second example, Dr. Lloyd used a mannequin to

measure the impact sustained by an adult who fell out of bed. In other words, it was essentially

the same as the experiment conducted for this case, albeit with an adult-sized mannequin and no

bathtub. While neither of the experiments were exactly the same as the one conducted by Dr.

Lloyd in this case, they did both use the same general methodology.

{¶90} Thus, unlike the majority I believe these studies are comparable to the experiment

performed in this case in that the use of a mannequin and the simulation of a slip and fall can

provide data concerning the amount of force generated from a fall. Essentially, Dr. Lloyd

testified that the type of mannequin that he used to simulate Aaliyah's potential fall is used in

many studies to measure the force resulting from an impact. The fact that Dr. Lloyd used the

mannequin to measure the force of a fall in a bathtub as opposed.to a fall from a bed, a fall from

Aw ys

44

play equipment, or from an automobile crash is inconsequential to the question of whether his

methodology is widely accepted by other experts in his field. The techniques he used to measure

the force from a fall are widely accepted by others in his field. Furthermore; the principles of

mathematics and physics underlying the calculations of force are well established. To accept the

general theories and methods in Dr. Lloyd's experiment would hardly be an example of the law

leading science but rather accepting principles accepted by experts for many,many, yyears.

D{¶91} I also disagree with the suggestion that a prerequisite to the admission of r.

Lloyd's findings was that he demonstrate a precise recreation of the conditions in the bathtub.

"When an out-of-court experiment is not represented to be a reenactment of the accident and

deals with one :aspect or principle directly related to the cause or result of the occurrence, the

conditions of the accident need not be duplicated." Miller, 80 Ohio St.3d at paragraph two of the

syllabus. Here, Dr. Lloyd did not suggest that he had constructed a precise recreation of the

accident scene; instead, he employed both established techniques and scientific principles from

which he could measure the degree of force generated by a fall in a bathtub.

{¶92} Thus, I would conclude Dr. Lloyd's proposed testimony did not meet the

reliability standards of Evid.R. 702 but not because he used unsound techniques or theories or

because he did not recreate the precise scene of the fall. Instead, Dr. Lloyd lacked a scientific

basis for concluding that the results of his experiment were conservative, see Valentine, .110

Ohio St.3d 42, 2006-Ohio-3561, at ¶ 21, because he did not conduct more extensive

experimentation to thoroughly test some of the assumptions underlying his experiment in this

case (e.g. the fact that the force from the impacts he measured was at the low end of the potential

forces generated from slipping and falling in a bathtub). While it is understandable that Dr.

A- tiq

45

Lloyd did not conduct a more thoroughexperiment given the timeline he operated under in this

case, his report still failed to meet the requirements of Evid.R. 702.

{¶93} With respect to Ms. Calise's fourth assignment of error, Ms. Calise frames her

argument in terms of prosecutorial misconduct, arguing that the State had failed to disclose

exculpatory information during discovery. However, this claim is not supported by the record,

and, thus, I would overrule the assignment of error on that basis.

{1[94} Accordingly, I concur in the judgment.

APPEARANCES:

DONALD J. MALARCIK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant

Prosecuting Attorney, for Appellee.

A- 9s