[Cite as State v. Wainscott, 2016-Ohio-1153.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLERMONT COUNTY 

STATE OF OHIO, : 

 CASE NO. CA2015-07-056 

 Plaintiff-Appellee, : 

 O P I N I O N 

 : 3/21/2016 

 - vs - 

 : 

ANTHONY M. WAINSCOTT, SR., : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS 

Case No. 2014-CR-0142 

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South 

Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee 

Joshua R. Crousey, One East Main Street, Amelia, Ohio 45102, for defendant-appellant 

 

 S. POWELL, J.

{¶ 1} Defendant-appellant, Anthony M. Wainscott, Sr., appeals from his conviction in 

the Clermont County Court of Common Pleas for three counts of child endangering. For the 

reasons outlined below, we affirm. 

{¶ 2} This case involves allegations against Wainscott in regards to unwarranted 

discipline utilized on three minor boys, four-year-old B.F., eight-year-old A.B., and 15-year-old 

A.W., who Wainscott and his then live-in girlfriend, A.R., resided with between January 2013 
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and October 25, 2013. It is undisputed that A.R. is the custodial parent of B.F. and is A.B.'s 

biological mother. It is likewise undisputed that Wainscott is A.W.'s biological father. 

Besides residing together, A.R. is not related to A.W., nor is Wainscott related to B.F. or A.B. 

A.R.'s other children, ten-year-old H.B., seven-year-old B.B., and two-year-old P.W., also 

resided in the home during this time. Wainscott is the biological father of P.W. 

{¶ 3} On March 6, 2014, the Clermont County Grand Jury returned an indictment 

charging Wainscott with three counts of child endangering in violation of R.C. 2919.22(B)(2), 

all third-degree felonies.1 Pursuant to that statute, no person shall "torture or cruelly abuse" 

a child under 18 years of age. In regards to each of these three charges, the indictment 

stated the following: 

* * * ANTHONY MICHAEL WAINSCOTT, SR., on or about 

January, 2013, through the 25th day of October, 2013, in 

Clermont County, Ohio, did to a child under eighteen years of 

age or a mentally or physically handicapped child under twentyone years of age, torture or cruelly abuse the child, contrary to 

and in violation of section 2919.22(B)(2) of the Revised Code of 

Ohio, a felony of the third degree, and against the peace and 

dignity of the State of Ohio. 

{¶ 4} On March 25, 2014, Wainscott filed a demand for discovery and request for a 

bill of particulars, to which the state responded on April 3, 2014. According to the bill of 

particulars, the three charges stemmed from the following alleged conduct: 

COUNT #[1] ENDANGERING CHILDREN: 

Now comes Scott C. O'Reilly, Assistant Prosecuting Attorney, 

and states that in the above-captioned case, the State of Ohio 

intends to present evidence to show, in addition to the facts 

alleged in the indictment that the defendant, on or about January 

2013, through the 25th day of October, 2013; at 2780 Lindale Mt. 

Holly #12; Clermont County, Ohio; did to a child under eighteen 

years of age, torture or cruelly abuse the child. Specifically, the 

defendant utilized unwarranted discipline on B.F. [D.O.B. 

12/1/2008], by forcing B.F. to stand in a corner for seven to 

fifteen hours a day. If B.F. left the corner, he was beaten. This 

 

1. Wainscott was also charged with three counts of child endangering in violation of R.C. 2919.22(B)(4). 

However, those charges were later dismissed. 
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was observed by several of the other children in the house. In 

addition, the defendant forced B.F. to sleep on the kitchen floor.

COUNT #[2] ENDANGERING CHILDREN: 

Now comes Scott C. O'Reilly, Assistant Prosecuting Attorney, 

and states that in the above-captioned case, the State of Ohio 

intends to present evidence to show, in addition to the facts 

alleged in the indictment that the defendant, on or about January 

2013, through the 25th day of October, 2013; at 2780 Lindale Mt. 

Holly #12; Clermont County, Ohio; did to a child under eighteen 

years of age, torture or cruelly abuse the child. Specifically, the 

defendant utilized unwarranted discipline on A.B. [age 8], by 

forcing A.B. to stand in a corner for seven to fifteen hours a day. 

A.B. would attend school tired and hungry from lack of sleep 

from standing for such lengthy periods. Additionally, A.B. would 

sustain beatings if he were ever to leave the kitchen corner as 

well.

COUNT #[3] ENDANGERING CHILDREN: 

Now comes Scott C. O'Reilly, Assistant Prosecuting Attorney, 

and states that in the above-captioned case, the State of Ohio 

intends to present evidence to show, in addition to the facts 

alleged in the indictment that the defendant, on or about January 

2013, through the 25th day of October, 2013; at 2780 Lindale Mt. 

Holly #12; Clermont County, Ohio; did to a child under eighteen 

years of age, torture or cruelly abuse the child. Specifically, the 

defendant utilized unwarranted discipline on A.W. [age 15], by 

forcing A.W. to stand in a corner for seven to fifteen hours a day.

(Emphasis added.) 

At the state's request, the matter was then twice continued and Wainscott agreed to waive 

his speedy trial rights. 

{¶ 5} On March 30, 2015, the state filed a notice of its intent to use so-called "other 

acts" evidence at trial in accordance with Evid.R. 404(B). This proposed evidence included 

testimony that Wainscott had admittedly (1) punched holes in the walls of the house, (2) 

threatened to burn down the house after pouring gasoline down the hallway, (3) called A.R. 

derogatory names and otherwise degraded her, and (4) broke a car windshield, all within the 

presence and general vicinity of the children. According to the state, this evidence was 

admissible at trial because it illustrated Wainscott's intent and proved that his conduct was 
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not merely an accident. 

{¶ 6} On April 10, 2015, after holding a hearing on the matter, the trial court issued a 

decision precluding the state from introducing any of the purported "other acts" evidence at 

trial. In so holding, the trial court found "the proposed other acts evidence [is] not relevant to 

the charges" and is "markedly different" than the underlying conduct set forth in the bill of 

particulars. The trial court also found that, pursuant to Evid.R. 403(A), "even if the other acts 

evidence could be relevant to these counts, any probative value is substantially outweighed 

by the danger of confusion of the issues and of misleading the jury." Nevertheless, because 

the trial court construed the state's notice as a motion in limine, the trial court noted that it 

was "at liberty to change its ruling on [the] disputed evidence in the actual context at trial." 

{¶ 7} On April 14, 2015, a mere four days after the trial court issued its decision, the 

state filed a motion to amend the bill of particulars pursuant to Crim.R. 7(E) to include 

allegations regarding the same previously characterized "other acts" evidence. Specifically, 

the state requested to amend the bill of particulars as follows: 

COUNT #[1] ENDANGERING CHILDREN: 

Now comes Scott C. O'Reilly, Assistant Prosecuting Attorney, 

and states that in the above-captioned case, the State of Ohio 

intends to present evidence to show, in addition to the facts 

alleged in the indictment that the defendant, on or about January 

2013, through the 25th day of October, 2013; at 2780 Lindale Mt. 

Holly #12; Clermont County, Ohio; did to a child under eighteen 

years of age, torture or cruelly abuse the child. Specifically, the 

defendant utilized unwarranted discipline on B.F. [D.O.B. 

12/1/2008], by forcing B.F. to stand in a corner for seven to 

fifteen hours a day. If B.F. left the corner, he was beaten. This 

was observed by several of the other children in the house. In 

addition, the defendant forced B.F. to sleep on the kitchen floor. 

B.F. was also witness to the defendant punching holes in the 

walls, threatening his mother, breaking a car window, and 

dousing the interior of the residence with gasoline and 

threatening to light it on fire. 

COUNT #[2] ENDANGERING CHILDREN: 

Now comes Scott C. O'Reilly, Assistant Prosecuting Attorney, 

and states that in the above-captioned case, the State of Ohio 
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intends to present evidence to show, in addition to the facts 

alleged in the indictment that the defendant, on or about January 

2013, through the 25th day of October, 2013; at 2780 Lindale Mt. 

Holly #12; Clermont County, Ohio; did to a child under eighteen 

years of age, torture or cruelly abuse the child. Specifically, the 

defendant utilized unwarranted discipline on A.B. [age 8], by 

forcing A.B. to stand in a corner for seven to fifteen hours a day. 

A.B. would attend school tired and hungry from lack of sleep 

from standing for such lengthy periods. Additionally, A.B. would 

sustain beatings if he were ever to leave the kitchen corner as 

well. A.B. was also witness to the defendant punching holes in 

the walls, threatening his mother, breaking a car window, and 

dousing the interior of the residence with gasoline and 

threatening to light it on fire. 

COUNT #[3] ENDANGERING CHILDREN: 

Now comes Scott C. O'Reilly, Assistant Prosecuting Attorney, 

and states that in the above-captioned case, the State of Ohio 

intends to present evidence to show, in addition to the facts 

alleged in the indictment that the defendant, on or about January 

2013, through the 25th day of October, 2013; at 2780 Lindale Mt. 

Holly #12; Clermont County, Ohio; did to a child under eighteen 

years of age, torture or cruelly abuse the child. Specifically, the 

defendant utilized unwarranted discipline on A.W. [age 15], by 

forcing A.W. to stand in a corner for seven to fifteen hours a day. 

A.W. was also witness to the defendant punching holes in the 

walls, threatening [A.R.], and dousing the interior of the 

residence with gasoline and threatening to light it on fire. 

(Emphasis added.) 

{¶ 8} On April 17, 2015, the trial court held a hearing on the matter, issuing a 

decision from the bench denying the state's motion to amend the bill of particulars. In 

reaching this decision, the trial court stated, in pertinent part, the following: 

I will say candidly it's somewhat disconcerting that this is filed on 

April 14th about two weeks before trial when allegedly it's been 

known for more than a year, and it – it's disconcerting. It's also 

disconcerting the manner in which it was filed and that it was – 

we had a hearing on this and I assumed the State was 

proceeding in good faith with indicating that this was other acts[.] 

The trial court's decision to deny the state's motion was then incorporated into an entry filed 

on April 21, 2015. 

{¶ 9} On May 1, 2015, three days before the jury trial was scheduled to begin, the 
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parties reconvened for purposes of conducting a videotaped deposition of the state's expert 

witness, Dr. Brooks Keeshin, who had since moved out of state. As part of this deposition, 

the state requested permission to illicit testimony from Dr. Keeshin regarding the impact that 

the previously characterized "other acts" evidence had on B.F., A.B., and A.W., if any. In 

support of this claim, the state argued that it had "established a foundation that connects 

these other acts to the indictment as charged. And at this point, we would like to ask the 

doctor about some of those issues related to the holes in the wall, the pouring of the 

gasoline, and busting of the windows." (Emphasis added.) Wainscott objected, noting that 

these issues were not included in bill of particulars, and had since been denied inclusion 

when the state attempted to amend the bill of particulars. Wainscott also noted the following: 

You know, the defense is being asked to defend against these 

allegations that were in the original Bill of Particulars. Some of 

these items that are now being asked to be admitted are items 

that it could take a matter of months trying to come up with 

witnesses trying to come up with documentation. I don't know 

whatever evidence we might seek out to try to defend against 

those issues. So, I think here again at this late hour it's unfair to 

ask the defense to have to defend that. 

{¶ 10} After considering both parties' arguments, the trial court granted the state's 

request and permitted the state to introduce evidence regarding the previously characterized 

"other acts" evidence. The trial court then stated that it would also not give a limiting 

instruction to the jury since "I don't believe these are other acts now." Specifically, the trial 

court stated: 

I believe these are part and parcel of the total underlying course 

of maltreatment of the child that would clearly fall under cruelly 

abuse, torture or cruelly abuse. So, I don't believe these are 

other acts. I believe these are part and parcel now of what 

would be appropriate and relevant for the State to prove that Mr. 

Wainscott cruelly abused the child. So, I don't believe there's 

any need for an other acts. This is just an other act on his part. I 

mean it's – yeah. I don't believe I need another other acts 

instruction on that piece because now based on Dr. Keeshin's 

testimony and the exhibits that's been presented this is evidence, 
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I think, that is relevant to establishing whether Mr. Wainscott 

terrorized the child and that's part of the doctor's expert 

testimony of maltreatment, psychological maltreatment and truly 

cruelly abuse, as I indicated in my decision, can be not only 

physical but, can be mental and emotional. So, we can start with 

Dr. Keeshin's testimony that had been proffered, it can now be 

presented to the jury. 

(Emphasis added.) 

{¶ 11} The state then proceeded to ask Dr. Keeshin about the prior incidents and the 

impact the incidents may have had on the three boys. According to Dr. Keeshin, these prior 

incidents evidenced the "chronic exposure to really terrorizing acts" that established severe 

and significant "psychological maltreatment" to B.F., A.B., and A.W. Dr. Keeshin further 

testified that being exposed to these "terrorizing" incidents contributed to the three boys 

exhibiting symptoms of post-traumatic stress disorder. 

{¶ 12} A four-day jury trial was then held between May 4 and May 7, 2015, during 

which time the jury heard extensive testimony from, among others, A.R., A.B., A.W., H.B., 

and Wainscott himself. As part of this testimony, Wainscott admitted to ordering B.F., A.B., 

and A.W. to stand in the corner with their hands behind their back for periods of up to seven 

hours a day. Wainscott also admitted that he would "spank" the boys with his hand or with a 

belt if they moved from that position, and that he had forced B.F. to sleep on the kitchen floor 

after he urinated in his bedroom. Wainscott further admitted to punching a hole in the wall, 

breaking a glass table, and pouring gasoline in the house while A.R. and the other children 

were inside. Wainscott similarly admitted to calling A.R. derogatory names such as a "cum 

guzzling gutter slut," slapping A.R. in the back of the head, and cracking a car windshield, all 

within the presence and general vicinity of the children. The state also introduced evidence 

that the three boys, particularly B.F. and A.B., were fearful of Wainscott and that being 

subject to his repeated punishments, which were referred to as "corners" and "whoopings," 

made them upset and sad. 
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{¶ 13} After both parties rested, the jury issued a decision finding Wainscott guilty as 

charged. The trial court then sentenced Wainscott to a total period of eight years in prison. 

Wainscott now appeals from his conviction, raising three assignments of error for review. 

{¶ 14} Assignment of Error No. 1: 

{¶ 15} THE TRIAL COURT ERRED AS A MATTER OF LAW BY PERMITTING 

EVIDENCE OF "OTHER ACTS" AS SUBSTANTIVE EVIDENCE. 

{¶ 16} In his first assignment of error, Wainscott argues the trial court erred by 

permitting the state to introduce the previously characterized "other acts" evidence that the 

trial court later considered "part and parcel of the total underlying course of maltreatment" 

when these prior incidents were not referenced in the indictment or bill of particulars and had 

previously been found inadmissible under both Evid.R. 404(B) and 403(A). 

{¶ 17} A trial court has broad discretion in the admission and exclusion of evidence. 

State v. Martin, 12th Dist. Butler No. CA2007-01-022, 2007-Ohio-7073, ¶ 9. In turn, a 

reviewing court should not disturb evidentiary decisions in the absence of an abuse of 

discretion that has created material prejudice. State v. Smith, 12th Dist. Fayette No. 

CA2007-10-035, 2008-Ohio-5931, ¶ 33. An abuse of discretion implies that the court's 

decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or 

judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 129-130. "A review under 

the abuse-of-discretion standard is a deferential review." State v. Morris, 132 Ohio St.3d 

337, 2012-Ohio-2407, ¶ 14. 

{¶ 18} Evidence that an accused committed a crime other than the one for which he is 

on trial is not admissible when its sole purpose is to show the accused's propensity or 

inclination to commit crime or that he acted in conformity with bad character. State v. 

Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 40. 

In turn, pursuant to Evid.R. 404(B), evidence of other crimes, wrongs, or acts is not 
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admissible to prove the character of a person in order to show that a person acted in 

conformity therewith on a particular occasion. State v. Hart, 12th Dist. Warren No. CA2008-

06-079, 2009-Ohio-997, ¶ 11. Such evidence, however, is permitted for other purposes, 

including proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or the 

absence of mistake or accident. State v. Thomas, 12th Dist. Butler No. CA2012-11-223, 

2013-Ohio-4327, ¶ 22. 

{¶ 19} That being said, Evid.R. 404(B) only applies to limit the admission of so-called 

"other acts" evidence that is "extrinsic" to the crime charged. State v. Stallworth, 11th Dist. 

Lake No. 2013-L-122, 2014-Ohio-4297, ¶ 37. In other words, "Evid.R. 404(B) does not apply 

when the acts are intrinsic as opposed to extrinsic, i.e., the acts are part of the events in 

question or form part of the immediate background of the alleged act which forms the basis 

for the crime charged." State v. Crew, 2d Dist. Clark No. 2009 CA 45, 2010-Ohio-3110, ¶ 99. 

Thus, "evidence of other crimes or wrongs may be admitted when such acts are so 

inextricably intertwined with the crime as charged that proof of one involves the other, 

explains the circumstances thereof, or tends logically to prove any element of the crime 

charged." State v. Davis, 64 Ohio App.3d 334, 341 (12th Dist.1989), citing State v. 

Wilkinson, 64 Ohio St.2d 308, 317 (1980); State v. Long, 64 Ohio App.3d 615, 617 (9th 

Dist.1989). 

{¶ 20} In this case, although the previously characterized "other acts" evidence was 

not referenced in the indictment or bill of particulars, was denied inclusion in the state's 

attempt to amend the bill of particulars, and had been found inadmissible under both Evid.R. 

404(B) and 403(A), the trial court nevertheless determined, a mere three days before trial 

was set to begin, that such evidence was actually "part and parcel of the total underlying 

course of maltreatment." Although we may agree that such evidence was relevant to prove 

whether Wainscott tortured or cruelly abused B.F., A.B., and A.W. as alleged in the 
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indictment, the trial court's decision to permit the state to introduce this evidence at trial 

ignores the general principles and purposes behind a bill of particulars, which is "'to clarify 

the allegations in the indictment so that the accused may know with what he is charged in 

order to prepare his defense.'" State v. Shirley, 12th Dist. Butler No. CA2012-07-127, 2013-

Ohio-1948, ¶ 20, quoting Foutty v. Maxwell, 174 Ohio St. 35, 38 (1962); see also State v. 

Sellards, 17 Ohio St.3d 169, 171 (1985) (purpose of a bill of particulars is to "elucidate or 

particularize the conduct of the accused alleged to constitute the charged offense"). 

{¶ 21} Pursuant to Crim.R. 7(E), upon written request from the defendant, the state 

shall furnish a bill of particulars to the defendant that sets forth "specifically the nature of the 

offense charged and the conduct of the defendant alleged to constitute the offense." A bill of 

particulars, however, is not designed to provide the accused with specifications of evidence 

or to serve as a substitute for discovery. State v. Ray, 12th Dist. Brown No. CA2009-06-022, 

2010-Ohio-2434, ¶ 13. Nevertheless, as this court has stated previously, upon supplying the 

defendant with such a bill, the state "should be restricted in its proof to the indictment and the 

particulars as set forth in the bill." State v. Fairbanks, 172 Ohio App.3d 766, 2007-Ohio4117, ¶ 22 (12th Dist.), citing State v. Miller, 63 Ohio App.3d 479, 485-486 (12th Dist.1989). 

Yet, even then, a bill of particulars "may be amended at any time subject to such conditions 

as justice requires." Crim.R. 7(E). 

{¶ 22} Here, while the state attempted to amend the bill of particulars to include 

reference to such evidence at trial, the trial court denied the state's motion finding it was 

"disconcerting" that the motion was filed "two weeks before trial when allegedly it's been 

known for more than a year," as well as the "manner in which it was filed" since "we had a 

hearing on this and I assumed the State was proceeding in good faith with indicating that this 

was other acts[.]" Therefore, after a thorough review of the record, and because the trial 

court denied the state's motion to amend the bill of particulars, we find the state should have 
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been restricted in its proof to the nature of the offenses charged as set forth in the indictment 

and bill of particulars; namely, that between January 1, 2013 and October 25, 2013, while at 

2780 Lindale Mt. Holly #12, Clermont County, Ohio, Wainscott tortured or cruelly abused 

four-year-old B.F., eight-year-old A.B., and 15-year-old A.W., utilizing unwarranted discipline 

by forcing the three boys to "stand in a corner for seven to fifteen hours a day," subjecting 

them to beatings if they ever left the corner, and by forcing B.F. "to sleep on the kitchen 

floor." 

{¶ 23} Although we find the trial court erred by allowing the state to introduce the once 

characterized "other acts" evidence at trial, due to the overwhelming evidence of Wainscott's 

guilt, as well as the lack of any resulting prejudice, we find such error to be harmless. As this 

court has noted previously, an accused has "'a constitutional guarantee to a trial free from 

prejudicial error, not necessarily one free of all error.'" State v. Swartsell, 12th Dist. Butler 

No. CA2002-06-151, 2003-Ohio-4450, ¶ 31, quoting State v. Brown, 65 Ohio St.3d 483, 485 

(1992). Thus, pursuant to Crim.R. 52(A), any error, defect, irregularity or variance that does 

not affect the accused's substantial rights shall be disregarded as harmless error. State v. 

MaCausland, 12th Dist. Butler No. CA2007-10-254, 2008-Ohio-5660, ¶ 25. "A finding of 

harmless error is appropriate where there is 'overwhelming evidence of guilt' or 'some other 

indicia that the error did not contribute to the conviction.'" State v. Morgan, 12th Dist. Butler 

Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 46, quoting State v. Ferguson, 

5 Ohio St.3d 160, 166 (1983), fn. 5. 

{¶ 24} As noted above, Wainscott was convicted of three counts of child endangering 

in violation of R.C. 2919.22(B)(2), which provides that no person shall "torture or cruelly 

abuse" a child under 18 years of age. "The statute under review does not define the terms 

'torture' or 'cruelly abuse.'" State v. Nivert, 9th Dist. Summit No. C.A. Nos. 16806, 1995 WL 

608415, *2 (Oct. 18, 1995). However, the word "torture" as used in that section has been 
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defined as "the infliction of severe pain or suffering (of body or mind)," with the word "abuse" 

being defined as "ill-use, maltreat; to injure, wrong or hurt." State v. Surles, 9th Dist. Summit 

No. 23345, 2007-Ohio-6050, ¶ 5. Moreover, to treat someone "cruelly" means to 

"demonstrate indifference to or delight in another's suffering," as well as to treat that person 

"severely, rigorously, or sharply." State v. Brown, 9th Dist. Summit No. 23737, 2008-Ohio2956, ¶ 12. 

{¶ 25} Recklessness is the culpable mental state required for child endangering under 

R.C. 2919.22(B)(2). State v. Ossege, 12th Dist. Clermont Nos. CA2013-11-086 and 

CA2013-11-087, 2014-Ohio-3186, ¶ 55; State v. Adams, 62 Ohio St.2d 151 (1980), 

paragraph one of the syllabus. Pursuant to R.C. 2901.22(C), "[a] person acts recklessly 

when, with heedless indifference to the consequences, the person disregards a substantial 

and unjustifiable risk that the person's conduct is likely to cause a certain result or is likely to 

be of a certain nature." In addition, under that same section, "a person is reckless with 

respect to circumstances when, with heedless indifference to the consequences, the person 

disregards a substantial and unjustifiable risk that such circumstances are likely to exist." 

R.C. 2901.22(C). 

{¶ 26} At trial, A.B., who had since turned ten years old, testified Wainscott often 

forced him to stand in the corner with his hands behind his back for "a long time" as 

punishment when he misbehaved or if he accidentally wet himself. A.B. also testified that he 

would then "get whooped" with a belt and ordered "get back in the corner longer" if he ever 

turned around, talked to any of his brothers or sisters, wet himself again, or fell asleep. 

When asked how long he had to stand in the corner, A.B. testified that he had been forced to 

stand in the corner "from the time I get up, and then after school," which made him tired and 

impacted his ability to do his schoolwork. A.B. further testified that "a lot" of the time 

Wainscott forced him to stand in the corner all weekend, and that a typical Saturday 
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consisted of him standing in the corner from the time he got up until the time he went to bed. 

 A.B. testified the same was true for B.F. and A.W., but that B.F. was actually forced to stand 

in the corner the most. 

{¶ 27} H.B., the then 12-year-old sister of A.B., testified that living in the house with 

Wainscott was "crazy" due to "[a] lot of punishment and stuff." Continuing, H.B. testified she 

saw Wainscott force B.F., A.B., and A.W. to stand in the corner with their hands behind their 

backs staring at the wall. Specifically, as it relates to B.F., H.B. testified Wainscott had 

forced B.F. to sleep on the kitchen floor and stand in the corner, sometimes for the entire day 

and into the night. H.B. also testified Wainscott hit B.F. with a belt, which made her scared 

"[b]ecause [B.F.] was young, and I know it would have hurt [him]." H.B. further testified 

Wainscott forced A.B. to stand in the corner and that A.B. would spend most of his weekends 

standing in the corner, with A.W. at one time having to stand in the corner "for three days 

because he got a detention or something." When asked if she ever saw the three boys have 

difficulties standing in the corner for such long periods of time, H.B. testified "[y]eah, if they 

were tired they would fall over." 

{¶ 28} A.W., who was then 16 years old, also testified that Wainscott had forced him 

to stand in the corner when he got in trouble for "not doing my work, or getting bad grades 

and not listening," with evidence indicating A.W. at one time had stood in the corner for a 

period of 13 hours. A.W. then testified Wainscott "whooped" him and forced him to get back 

in the corner when he tried to sit down, and that he was "spanked" when he tried to sneak out 

of the house. A.W. further testified Wainscott "sometimes" forced B.F. to sleep on the 

kitchen floor, and that both B.F. and A.B. had wet themselves after being forced to stand in 

the corner for such long periods of time. According to A.W., when this happened "[t]hey 

sometimes get whooped or stand in the corner longer." 

{¶ 29} A.R., the custodial parent of B.F., A.B.'s biological mother, and Wainscott's 
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former live-in girlfriend, also testified that Wainscott would punish B.F., A.B., and A.W. by 

forcing them to stand in the corner with their hands behind their backs for multiple hours a 

day, sometimes from "the time they got up to the time they went to bed." A.R. then testified 

that if any of the boys moved from that position that they would be "more in trouble" and 

"would have to stand even longer," which was oftentimes accompanied by being "hit," 

"swatted" or "whipped" with a belt. A.R. further testified B.F. was once forced to sleep on the 

kitchen floor after he urinated in his bedroom. According to A.R., the punishments levied 

against B.F., A.B., and A.W., were not reasonable and lasted "way too long." However, when 

asked why she did nothing to stop Wainscott from issuing these punishments, A.R. testified 

"[b]ecause I was – I was scared too." 

{¶ 30} Wainscott also testified and confirmed that he punished B.F., A.B., and A.W. by 

forcing them to stand in the corner for upwards of seven hours a day. However, when asked 

about the longest time any of the three boys stood in the corner, Wainscott testified "I can't 

really – I don't really remember exactly. I know it was some lengthy, like seven hours. I 

think, is pretty long." Wainscott then testified that he did not think this form of punishment 

was excessive because he "would rather have the time out and have them stand in the 

corner than have to, you know, spank them." Yet, even then, Wainscott acknowledged that 

he would "spank" and "sometimes" even "whoop" the boys with his hand or with a belt, but 

that he "didn't beat them or anything." Wainscott further admitted to making B.F. sleep on 

the kitchen floor for "a couple of nights" after B.F. urinated in his bedroom. 

{¶ 31} Dr. Keeshin's videotaped deposition was also played for the jury. As part of his 

deposition, Dr. Keeshin testified that forcing a child to stand in the corner for upwards of 

seven hours a day would never be an appropriate form of punishment, and that he would 

question any child being placed in a "time out" for "more than 15, 20 minutes in length 

because that's really outside of the normal (sic) of what we normally think about." Dr. 
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Keeshin further testified that placing a child in a corner for multiple hours a day would "meet 

criteria for a clear component of psychological maltreatment," with chronic exposure to such 

confinement falling into "truly cruel punishment techniques" due to the time of the punishment 

and significant pain that would result, thereby increasing "the risk of emotional, 

developmental and behavior impacts on that child." 

{¶ 32} After a thorough review of the record, we find this evidence, standing alone, 

constitutes overwhelming evidence of Wainscott's guilt for three counts of child endangering 

in violation of R.C. 2919.22(B)(2). Therefore, the trial court's decision permitting the state to 

introduce the previously characterized "other acts" evidence that the trial court later 

considered "part and parcel of the total underlying course of maltreatment" when these prior 

incidents were not referenced in the indictment or bill of particulars and had been found 

inadmissible under both Evid.R. 404(B) and 403(A), constitutes, at worst, harmless error. In 

so holding, we note that Wainscott generally admitted to all of the previously characterized 

"other acts" evidence at trial, and was otherwise permitted to cross-examine each witness at 

length regarding these prior incidents, thereby eliminating any prejudice that may have 

otherwise occurred. Accordingly, Wainscott's first assignment of error is overruled. 

{¶ 33} Assignment of Error No. 2: 

{¶ 34} THE TRIAL COURT ERRED BY DENYING ACCESS TO EVIDENCE 

FAVORABLE TO APPELLANT. 

{¶ 35} In his second assignment of error, Wainscott argues the trial court erred by 

denying him access to material evidence that was allegedly withheld by the state contrary to 

the United States Supreme Court's holding in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 

(1963). We disagree. 

{¶ 36} In Brady, the United States Supreme Court held "the suppression by the 

prosecution of evidence favorable to an accused upon request violates due process where 
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the evidence is material either to guilt or to punishment, irrespective of the good faith or bad 

faith of the prosecution."2 Id. at 87. However, as a rule, "undisclosed evidence is not 

material simply because it may have helped the defendant to prepare for trial." State v. 

Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, ¶ 49. Rather, undisclosed evidence withheld by 

the state is "material" only if "there exists a 'reasonable probability' that the result of the trial 

would have been different had the evidence been disclosed to the defense." State v. LaMar, 

95 Ohio St.3d 181, 2002-Ohio-2128, ¶ 27, citing Kyles v. Whitley, 514 U.S. 419, 433-434, 

115 S.Ct. 1555 (1995). A "reasonable probability" is a probability sufficient to undermine 

confidence in the outcome. State v. McKelton, 12th Dist. Butler No. CA2015-02-028, 2015-

Ohio-4228, ¶ 16. "If, however, the evidence that was allegedly withheld is merely cumulative 

to evidence presented at trial, no violation occurs." State v. Aldridge, 120 Ohio App.3d 122, 

145 (2d Dist.1997). 

{¶ 37} Wainscott argues the trial court erred by denying him access to a videotape 

allegedly withheld by the state showing his positive interaction with B.F., A.B., and A.W. 

when he was accidentally provided visitation time with the three boys by Clermont County 

Children's Protective Services. According to Wainscott, such evidence was material because 

it showed the "congenial nature" of the visit and demonstrated the three boys were not afraid 

of him and "enjoyed their interactions with him." However, based on the overwhelming 

evidence of Wainscott's guilt, we find this evidence falls well short of that needed to be 

considered "material" as there is simply no reasonable probability that the result of the trial 

would have been different had the videotape been disclosed to him. 

{¶ 38} We also find this evidence would merely be cumulative to the evidence 

presented at trial considering both Wainscott's mother and neighbor testified B.F., A.B., and 

 

2. The holding in Brady has since been extended to include evidence affecting a state witness's credibility. See

Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763 (1972). 
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A.W. got along "fine" with Wainscott, that Wainscott interacted with the three boys "real well," 

that the boys never acted afraid of Wainscott, and that they had a good relationship with 

Wainscott and loved him. Wainscott himself even testified that he had a "pretty good" 

relationship with B.F., A.B., and A.W., that they were always happy to see him, and that they 

never acted afraid of him. Therefore, because the videotape was not "material" evidence, 

and was otherwise merely cumulative to the evidence presented at trial, Wainscott's second 

assignment of error is overruled. 

{¶ 39} Assignment of Error No. 3: 

{¶ 40} THE TRIAL COURT ERRED AS A MATTER OF LAW BY NOT DISMISSING 

PURSUANT TO RULE 29. 

{¶ 41} In his third assignment of error, Wainscott argues the trial court erred by 

denying his Crim.R. 29(A) motion for acquittal because there was insufficient evidence to 

support his conviction for three counts of child endangering. However, as discussed more 

fully above, we find there was overwhelming evidence of Wainscott's guilt. Moreover, 

Wainscott's claim that the indictment was defective because it failed to charge a mens rea 

element of the crime lacks merit in light of the Ohio Supreme Court's decision in State v. 

Horner, 126 Ohio St.3d 466, 2010-Ohio-3830. Therefore, Wainscott's third assignment of 

error is overruled. 

{¶ 42} Judgment affirmed. 

 PIPER, P.J., and HENDRICKSON, J., concur.