[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 Appellee

v.

TIFFANI D. CALISE Appellant C.A. No. 26027

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 10 08 2322

DECISION AND JOURNAL ENTRY Dated: October 17, 2012

MOORE, Judge. {¶1} Defendant-Appellant, Tiffan i 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 lyin g 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 paramedi cs transferred her to Akron Children’s Hospital where doctors scanned her brain and performed br ain 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 extens ive brain damage she had suffered. Aaliyah’s2

mother, Gabrielle Moneypenny, ultimately deci ded to discontinue lif e 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. Calis e then removed her daughter from the bath, emptied the tub, and refilled it for Aaliyah. Wh en 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 ba throom to find Aaliyah lying unconscious in the bathtub. At that point, she carried Aali yah 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 st ories. 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 thre e 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 bath tub fall and were the result of

severe trauma. {¶5} A grand jury indicted Ms. Calise on the fo llowing counts: (1) murder, in violation of R.C. 2903.02(B); (2) involuntary manslaughter, in violation of R.C. 2903.04(A); and (3) two3

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 disc overy process. In particular, the defense consulted with Dr. John Lloyd, a Ph.D. in ergonomics. Dr. Lloyd agreed to conduct an experiment to dete rmine whether a child of Aaliyah’ s size could have sustained a traumatic brain injury by slippi ng 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 argument s 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 medi cal 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. {¶7} A jury trial commenced, at the conclusi on of which the jury found Ms. Calise guilty on all counts. On June 27, 2011, the trial c ourt 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 cour t 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 deni ed her motion, Ms. Calise filed a motion with this Court to supplement the record with the trial c ourt’s ruling as well as to amend her notice of appeal to include the ruling. This Court grante d both motions by way of journal entry. {¶8} Ms. Calise’s appeal is now before this Cour t. She raises nineteen assignments of error, many of which we consolidate or rearrange for ease of analysis.4

II.

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. {¶10} 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 re lates 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 regard ing the subject matter of the testimony; (C) The witness’ testimony is based on reliable scientific, technical, or other specialized information. To the extent th at the testimony reports the result 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 derive d 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 ex periment was conducted in a way that will yield 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, ¶ 17.5

“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 va lid principles.” Miller at paragraph one of the syllabus. Accord State v.

Nemeth , 82 Ohio St.3d 202, 211 (1998) (“The reliab ility requirement in Evid.R. 702 is a threshold determination that should focus on a partic ular type of scientific evidence, not the truth or falsity of an alleged sc ientific fact or truth.”). {¶11} Ms. Calise sought to have Dr. Lloyd tes tify as an expert in biomechanics, the study of the application of mechanics and Newtoni an 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 expe riment, which he descri bed 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 prep ared a 22 lb. CRABI1 biofidelic mannequin for his experiment, adding two pounds to the mannequin’s torso to appr oximate 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. Lloy d then interrupted the power to the magnet6

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 th is 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 conduc ted 25 data collec tion trials during which he allowed the mannequin to fall from three 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 in serted 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. Lloy d 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 erro r rate was discussed, no proof existed that the experiment was definite enough to generate accurate results , and the methodology Dr. Lloyd7

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 so le 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 performs experiments during his personal time. He began studying abusive head trauma in ch ildren 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. 1 He had never, however, performed the type of experime nt that he designed in this case. {¶17} Dr. Lloyd testified that biofidelic ma nnequins such as the CRABI1 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 manne quins and that he followed those guidelines in installing the CRABI1 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 te st 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 ha d proven through biomechanical an alysis that shaking alone is insufficient to cause brain injury to an infant.8

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

about them. {¶18} Dr. Lloyd admitted that CRABI1 mannequins were specifically developed to study impact biomechanics in motor vehicle accide nts and that the injury thresholds upon which he relied were developed for automotive impact testing. Nevertheless, Dr. Lloyd claimed that the same mannequins and thres hold data from the automotive i ndustry could be applied to simulated fall experiments because the principles of biomechanics, physics, and gravity apply equally to any instance of force. Dr. Lloyd expl ained that one would simply need to adjust their calculations to account for any differences, such as the diffe rence between a vertical and horizontal impact or the difference between an adu lt’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 biof idelic mannequins from a hospita l 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 th e 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 re sult of the angular, as opposed to only linear,9

acceleration strengthened the force of the impact. Dr. Lloyd testified that he and his colleague published the results of their experime nt in a peer reviewed journal. {¶20} The second experiment Dr. Lloyd referen ced 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 ma nnequin 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-revie wed 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 publi cation and that he had only disc ussed 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 ha d 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 ba thtub where Aaliyah allegedly fell. He did not know what type of bathtub the apartment had or whether the bathtub he had purcha sed 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 fall10

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 ex periment he performe d. The experiment conducted by Dr. Van Ee reportedl y 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 comp aring 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 us e of a widely accepted theory is only one component of reliabilit y under Evid.R. 702(C). See Evid.R. 702(C)(1). {¶23} Dr. Lloyd designed the bathtub experime nt 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 an d his results had not been published or subjected to any type of peer review, other than Dr. Lloy d’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 Aa liyah 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, trial courts must ensure that any such extrapolation accords with scientific principles11

and methods. * * * A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. Because expert opinion based on nebulous methodology is unhelp ful to the trier of fact, it has no place in courts of law. (Internal quotations a nd citations omitted.) Valentine , 110 Ohio St.3d 42, 2006-Ohio-3561, at ¶ 18. Although Dr. Lloyd used several widely a ccepted 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 fo r the calibration of the se nsors he installed in the CRABI1 mannequin. No known or potential rate of error was discussed with regard to any other instruments he used or any ot her 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 ar gues 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 the trial court di d not abuse its discretion when it determined that Dr. Lloyd’s testimony was not scientifically reliable under Evid.R. 702(C).12

{¶25} The trial court also determined that Dr. Lloyd was not qualified to offer any opinion as to whether specific type s 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 diagnos is that Dr. Lloyd was not qualified to make.

See Evid.R. 702(B). We will not addr ess this portion of the trial c ourt’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 th is [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 MEDICAL WITNESSES TO TESTIFY AS EXPE RTS ON THE FORCE NECESSARY TO CAUSE 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 Akron13

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 an d fallen in a bathtub. All four witnesses based their conclusions on their training, education, experience, a nd their personal evaluations of Aaliyah. {¶28} Ms. Calise argues that Drs. Patel, Pope, and Steiner were not competent to opine as to 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 qualificati ons 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 Di st.). 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 reason able 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 a ssignment of error is overruled.14

ASSIGNMENT OF ERROR XI THE TRIAL (sic) ERRED IN EXCLUDING A NEWLY-PROFFERED EXPERT OPINION FROM DR. PETER STEPHENS, WHO WOULD HAVE TESTIFIED THAT 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, coul d have been the cause of Aaliyah’s death. We disagree. {¶30} Although a criminal defendant has the righ t to present witness testimony on his behalf, a trial court may “exclude such evidence 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 disc overy, 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 pe rmissible sanction ‘as long as it would not completely deny the defendant his constitutional right to present a defense.’” Id. , quoting State v. Sinkfield , 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 par ties and the court summarized their contents. In his first report, Dr. Stephens opined that Aaliyah’s injuries were consistent with her having fallen15

in Ms. Calise’s bathtub. Dr. Stephe ns 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 ta ken 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 cause d her death with or without add itional trauma, such as a fall in the bathtub. Defense counsel produced Dr. Stephe ns’ first report before the expiration of the discovery deadline that the tria l court set for the parties. Defense counsel produced Dr. Stephens’ second report on the morning of trial. {¶32} The State objected to Dr. St ephens’ second report on the basis that it amounted to a new defense, premised upon a theory of old a buse at the hands of someone other than Ms.

Calise. Defense counsel countered that the se cond 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. {¶33} The trial court determined that Dr. Stephens’ sec ond 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 de fense theories premised upon them. The court ruled that the testimony of Dr. Stephens would be limited to the contents of his first expert report. Neverthele ss, the court allowed the defense to question the State’s experts16

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 theo ry of prior abuse if she chose to do so. The court simply limited her from intr oducing expert testimony base d on a report submitted on the day of trial. {¶34} Ms. Calise concedes that she failed to di sclose 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 pe rceived 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 co urt 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. Stephe ns’ 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 ti mely manner. The justification defense counsel offered for the delay in seeking the second ex pert report was that th e State had allegedly withheld evidence about possible abuse. Accord ing to defense counsel, the State never disclosed17

in discovery the fact that the police had receiv ed, but had never inves tigated, 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. {¶36} 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 disc overs post-trial that the State has withheld exculpatory evidence.” State v. Vu , 9th Dist. No. 11CA0042-M, 2012-Ohio-746, ¶ 39. Because Ms. Calise learned about the allegedly ex culpatory evidence at issue before trial, no Brady violation occurred. Further, as defense couns el 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 coun sel sought to introduce expert testimony about the old blood. Defense counsel, therefore, could ha ve formulated the theory about a prior injury based upon the information the St ate disclosed in discovery. {¶37} Ms. Calise has not shown that the trial court abused its di scretion. The court excluded expert testimony in order to avoid unf air 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 OF SHELBY POMPEO AND GRETCHEN ROTHACHER.18

{¶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. {¶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. Po mpeo testified that the incident occurred at approximately 8:30 p.m., just over thr ee hours before Ms. Calise called 911. {¶40} Evid.R. 404(B) provides, in pertinent pa rt, that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the ch aracter of a person in order to show action in conformity therewith.” Initially, we question Evid.R. 404(B)’s appli cability 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 ev idence 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, a nd financial irresponsibility). As such, to the19

extent Evid.R. 404(B) applies he re, we conclude that the admi ssion of the testimony of Ms. Pompeo and Ms. Rothacher did not violate the rule. {¶41} Evid.R. 404(B) contains a non-exhaustiv e 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 ot her acts ‘form part of the immediate background of the alleged act which forms the foundation of th e 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 cour t’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 Ev id.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 ne ver would have harmed her, and Aaliyah’s20

injuries were the result of a freak accident. The incident that Ms. Pompeo and Ms. Rothacher described detracted from the defense’s portraya l 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 deat h, as evidenced by Ms. Calise grabbing her, roughly shoving her, and using profanity with he r 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 (“Tes timony that [the defendant] left [the victim] unattended, fed h im fast food, and acted like [the victim] was a bother provided the context for the alleged crimes a nd made [the defendant’s] acti ons 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 c ourt 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 FOR MISTRIAL BASED ON JUROR MISCONDUCT. {¶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 motion for mistrial is whether the s ubstantial 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.”21

(Internal citations, alterations, and quot ations omitted.) State v. Howes , 9th Dist. No. 24665, 2010-Ohio-421, ¶ 11. An abuse of discretion mean s that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore , 5 Ohio St.3d at 219. {¶46} Ms. Calise moved for a mistrial the day afte r 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 defe nse objected to that instruction, so the court indicated that it would modify it. Instead of instructing the juro rs 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 t ouched the bathtub and “s tart[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. {¶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 instru ctions regarding the jury view that we had yesterday. You were taken to the premises or scene and what you * * * observed at the scene is not evidence since the conditions may have changed. In fact, I think we informed you that perhaps some of the conditions did change since the time of the events in this case. The evidence as to the physical appearance of the scene must come to you from the witness stand. The sole purpose of th e viewing of the scene is to help you understand the evidence as it is presented during the trial. So I just wanted to make sure that you were aware of that. Evidence, actual evidence in this case, has to come from the witness stand or the exhibits. And we just 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.22

{¶48} Ms. Calise does not reference the court’s inst ruction in her argument that the court allowed the jurors to conduct their own experime nt. 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. Give n 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 affe cted. Ms. Calise has not set forth any argument as to how she was prejudiced by the jury’s co nduct in light of the other evidence the State

introduced at trial. See App.R. 16(A)(7). Because the court in structed the jury regarding the jury view and Ms. Calise has not shown that she was pr ejudiced 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. 11CA0050-M, 2012-Ohio-3636, ¶ 27. As such, Ms. Calise’s fifteenth a ssignment 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 VERDICT BECAUSE 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 c onvictions 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, 2010-23

Ohio-634, ¶ 33. In order to determine whether th e 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 to support a criminal conviction is to exa mine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, 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 crime proven 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. {¶51} Ms. Calise does not challenge any particular element of her convictions. Instead, she argues that reasonable doubt th at she harmed Aaliyah existed because one of the State’s own experts acknowledged that (1) shaking injuries ar e 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 Pl ymire 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 Aali yah 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 was24

positioned on her back with her arms over her head. Ms. Calise then grabbed Aaliyah and brought her 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 on Ms. 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 associat ed with motorcycle crashes or high speed motor

vehicle accidents. At the time Mr. Wiles began to treat Aali yah, 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 resp irations. Mr. Wiles could not act ually 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, mean ing that he did not encounter any obstructions in her airway that would have made bagging difficult. {¶54} The State presented four me dical experts at trial: Dr. Nirali Patel, Dr. John Pope, Dr. Richard Daryl Steiner, and Dr. Dorothy Dea n. Dr. Patel first examined Aaliyah when she arrived at Akron Children’s Hospital. At th at time, Aaliyah was in critical condition and required intubation. Dr. Pa tel testified that she ad ministered a drug to Aa liyah 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 materi al from Aaliyah’s throat before successfully completing the intubation, Aaliyah did not have any airway blockages. {¶55} Dr. Patel only observed a sma ll bruise on Aaliyah’s forehead when she examined her, but ordered a CT scan. The CT scan disp layed 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 fractur e generally would occur with a traumatic impact25

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 be fore 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 norma l. 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 presen t with outside injuries, fractures, or epidural hematomas. He opined that Aa liyah’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 Aa liyah and her case for signs of abuse in his capacity as the Director of the CARE Center . Based on his examina tion of Aaliyah and his review of all of her medical records, Dr. Stei ner concluded that Aaliya h had suffered physical

abuse that resulted in traumatic brain injury and, ultimately, her d eath. 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 contusi ons, she did not suffer any skull fractures (a26

common injury in an impact situation), and he r condition deteriorated rapidly. Dr. Steiner further explained that Aaliyah suffered from re tinal hemorrhages, an injury indicative of a

rotational acceleration-decelerati on, whiplash-type injury. Although Dr. Steiner admitted that it was possible for a child to sustai n 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 na ture. 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 complica tions of blunt impact trauma and had suffered severe damage as a result of severe trauma. Dr. Dean opine d, based on a reasonable degree of medical certainty and the types of injuries Aaliya h had sustained, that Aaliyah had been shaken to death. More specifically, Dr. Dean testifie d that Aaliyah’s brain “w as 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 resu lt of non-accidental trauma and could not possibly have occurred from the simple fall in the bathtub that Ms. Calise described. Although Dr.27

Steiner admitted that it was possible in some inst ances 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 conc lude 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 th at, 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 tr ier 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 medi cal 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. Ca lise’s convictions are not based on insufficient evidence. Ms. Calise’s fifth and sixth assignme nts of error are overruled.

ASSIGNMENT OF ERROR VIII

THE TRIAL COURT ERRED IN ENTERING JUDGMENT ON A VERDICT THAT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶61} In her eighth assignment of error, Ms. Calise argues that the jury’s verdicts are against the manifest weight of the evidence. We disagree.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 conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the convicti on 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 of the 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 “discre tionary 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 ar e 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 testif ied, 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 comm only be associated with short falls, such as a skull fracture or scalp bruising or contusions. Fu rther, 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 we re not the result of a fall in a bathtub.29

{¶64} The defense presented two medical expert s: 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 di sagreed 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 bl ocked for any length of time. To the contrary, both the paramedics and the hospital staff who first treated Aaliyah were able to penetrate her airway with ease. {¶65} Dr. Stephens agreed that Aaliyah’s injuries were consistent with the history that Ms. Calise gave and that an impact could have di srupted 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. Ste phens testified at le ngth 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. {¶66} 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 overw helming 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 & 25480,30

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 ma nifest 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 ON LESSER-INCLUDED OFFENSES AND IN FAILING TO PROPERLY INSTRUCT 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 ACQUITTAL BASED 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 err oneous 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 require d only where the evidence presented at trial would reasonably support both an acquittal on th e crime charged and a conviction on the lesserincluded 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 in structions for an abuse of discretion under the particular facts and circumstances of the case. State v. Sanders , 9th Dist. No. 24654, 2009-Ohio-31

5537, ¶ 45. An abuse of discretion means that the trial court was unreasona ble, arbitrary, or unconscionable in its ruling. Blakemore , 5 Ohio St.3d at 219. {¶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 th e Defendant’s commission of Endangering Children caused the death of Aaliyah Ali. Cause is an essential element of the offense. Cause is an act or failure to act which in a natural and continuous sequence directly produces the death and without which it would not have occurred. The Defendant’s responsibility is not limited to the immediate or most obvious result of the Defendant’s act or failure to act. The Defendant is also responsible for the natural and foreseeable consequences or results that follow in the ordinary course of events from the act or failure to act.32

There may be one or more causes of an event. However, if the Defendant’s act or failure to act was one cause, then the existence of other causes is not a defense. The Defendant is responsible for the na tural consequences of the Defendant’s unlawful act or failure to act even though death was also caused by the intervening act or failure to act of another. If the Defendant inflicted an injury not likely to produce death, and if the sole and only cause of death was a natural cause, th e Defendant who inflicted the original injury 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 plai n language of the causation instruction, however, required the jury to find that Ms. Calise cau sed 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). {¶71} As to Ms. Calise’s argument that the court should have instructed the jury on the inferior degree of child endangering, Ms. Calis e 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 evidence33

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 manslaughter was recklessness. As w ith the other definitions that the trial court issued, the court provided the jury with the defin ition 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 the consequences, she perversely disregards a known risk that her conduct is likely to cause a certain result or to be of a certain nature. A person is reckless with respect to circumstances when with heedless indifference to the consequences she perver sely disregards a known risk that such circumstances are likely to exist. Since you cannot look into the mind of a nother, recklessness is determined from all the facts and circumstances in evidence. You will determine from these facts and 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 convict her merely because “some inju ry” to Aaliyah was foreseeable. See App.R. 16(A)(7). 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 not34

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 c ourt provided a complete definition of recklessness for Ms. Calise’s counts of child endanger ing. Thus, we conclude that the trial court did not err in instructing the jury. {¶73} Ms. Calise’s seventeenth assi gnment of error is overrule d, 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 instru ctions. Ms. Calise’s eighteenth assignment of

error is likewise overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL BECAUSE OF THE IMPROPER EXCLUSION OF DR. LLOYD’S TESTIMONY.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL BECAUSE OF THIS IMPROPERLY-ADMITTED EVIDENCE.

ASSIGNMENT OF ERROR VII

THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL BECAUSE THE EVIDENCE WAS IN SUFFICIENT TO SUPPORT THE VERDICT[.]

ASSIGNMENT OF ERROR IX

THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL ON THE GROUND THAT THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.35

ASSIGNMENT OF ERROR X

THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL ON THE BASIS OF PROSECUTORIAL MISCONDUCT.

ASSIGNMENT OF ERROR XII THE TRIAL (sic) ERRED IN DENYING A NEW TRIAL BECAUSE OF ITS EXCLUSION OF THIS OPINION FROM DR. STEPHENS.

ASSIGNMENT OF ERROR XIV

THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL BASED ON THE ADMISSION OF THAT TESTIMONY.

ASSIGNMENT OF ERROR XVI

THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL BECAUSE OF THE JUROR MISCONDUCT.

ASSIGNMENT OF ERROR XIX

THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL BASED ON THE ERRONEOUS INSTRUCTIONS. {¶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 convincin g 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 action36

under * * * Rule 33 * * * except to the extent a nd 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 to the extensive trial preparati on and complexity of the issues involved in the above captioned case, the deadline for [Ms. Ca lise’s] Motion for New Trial be extended seven (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. Calis e’s filing deadline. In response, the State argued that the court should deny the motion as untimely becau se Ms. Calise had file d it beyond Crim.R. 33’s seven-day timeframe. See Crim.R. 33(B). The court acknowledg ed that Ms. Calise had filed her motion eight days after its order granting an ex tension. 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 ju stice would be best served by the court’s consideration of the mo tion. 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 Ohio 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 contains37

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, whic h 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 tria l 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 cons idered the nature of the deadline set forth in Fed.R.Crim.P. 33, the federal rule gove rning the filing of motions for new trial. The

Court took care to note that the d eadline 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 de scribed the rule as “a claim- processing rule [] that is admittedly inflexible because of [Former] Rule 45(b)’s 2 insistent demand for a definite end to proceedings.” Id. at 19. The Court stated that trial c ourts “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 extent that it prohibited a trial court from extending the filing deadlines for certain enumerated rules.38

favorably cited the foregoing language from Eberhart as it pertains to motions for new trial.

Ross at ¶ 26, quoting Eberhart at 19. Therefore, the Suprem e 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 thecourt mistakenly extended the filing deadline for one additional day past Crim.R. 33(B)’s sevenday 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 th e 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. Ca lise’s other assignments of error. Ms. Calise does not set forth any separate argument in the fo regoing 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).39

III. {¶81} 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 manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent 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 Clerk of 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 MOORE FOR THE COURT

WHITMORE, P. J. CONCURS.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 reliabilit y requirements of Evid.R. 702. However, my reasons for coming to this conclusi on 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 re lates to matters beyond the knowledge or experience possessed by lay pe rsons 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 the result 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 valid ly derived from widely accepted knowledge, facts, or principles; (2) The design of the procedure, te st, 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 a doctorate in ergonomics. He is also the associate director of the Research Center of Excellence and director of the Biomechanics Research Laboratory at the James A. Haley Veterans Hospital. He has pub lished 19 peer-reviewed articles a nd consistently presents at national conventions on erg onomics and biomechanics.41

{¶85} As Dr. Lloyd explained, [A] biomechanist has to understand anatomy and physiology. As a biomechanist I can say this amount of force would cause th is kind of injury in a person of this age, height, [and] weight. What I can’t say * * * because I’m not a medical doctor is this force caused this injury in this person. * * * I can say the force could 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 test ify 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. {¶86} However, “[b]ecause even a qualified expert is capable of rendering scientifically unreliable testimony, it is imper ative * * * 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 resu lts of his experiment because Dr. Lloyd did not establish that they were reliable. {¶87} “In evaluating the reliability of scientific evidence, several factors are to be considered: (1) whether the theory or technique ha s 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 exper iment purported to demonstrate that, should an infant fall in a bath tub, the fall could create enough force to cause the injuries sustained by Aaliyah. To that end, Dr. Lloyd ran 25 tests, dropping a CRABI142

mannequin, the type of mannequin typically used in safety-testing for 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 year s of automotive-crashtesting. He asserted that his results were conservative estimates of the force generated. In other words, he claimed that any discrepancies be tween 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 in his experiment. {¶88} However, Dr. Lloyd did not conduct any c ontrol experiments nor did he point to any studies that would support his assertion that hi s 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 differe nt manner. In other words, Dr. Lloyd’s presumption that his results were cons ervative 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 (a ffirming 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 establ ish 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 methodology43

essentially has been done to study effects of au tomobile 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 manne quins 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 ot her 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 resear chers 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 th e 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 cas e, albeit with an adu lt-sized mannequin and no

bathtub. While neither of the experiments were exactly the sa me 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 ge nerated 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 ba thtub as opposed to a fall from a bed, a fall from44

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 technique s he used to measure

the force from a fall are widely accepted by others in his fi eld. 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 expe riment would hardly be an example of the law leading science but rather accepting principles accepted by experts for many, many years. {¶91} I also disagree with the suggestion that a prerequisite to the admission of Dr. 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 n eed 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 pr ecise recreation of the accident scene; instead, he employed both establ ished techniques and scientific principles from which he could measure the degree of fo rce 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 becau se 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 te st 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.45

Lloyd did not conduct a more thorough experime nt given the timeline he operated under in this case, his report still failed to m eet 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. Howeve r, this claim is not supported by the record, and, thus, I would overrule the assign ment of error on that basis. {¶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.