[Cite as State v. Milby, 2020-Ohio-5569.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

WARREN COUNTY 

STATE OF OHIO, 

 Appellee, 

 - vs - 

JASON W. MILBY, 

 Appellant. 

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CASE NO. CA2019-06-068 

O P I N I O N 

12/7/2020 

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS 

Case No. 18CR34562 

David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice 

Drive, Lebanon, Ohio 45036, for appellee 

Jeffrey W. Stueve, 530 North Broadway Street, Lebanon, Ohio 45036, for appellant 

Joshua G. Burns, 500 Justice Drive, Lebanon, Ohio 45036, for appellant 

 RINGLAND, J. 

{¶1} Jason Milby appeals from his convictions for murder in the Warren County 

Common Pleas Court. For the reasons discussed below, this court affirms Milby's 

convictions. 

{¶2} In 2011, the state charged Milby with felonious assault and child endangering 
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after two-year-old Bryce Shannon sustained a severe brain injury while under Milby's care.1 

That brain injury left Bryce in a permanent vegetative state. At Milby's trial, multiple medical 

experts opined that Bryce's brain injury was the result of abusive head trauma. The jury 

convicted Milby as charged and the court sentenced him to eight years in prison. Milby 

appealed to this court, which affirmed his conviction. State v. Milby, 12th Dist. Warren No. 

CA2013-02-014, 2013-Ohio-4331. 

{¶3} Bryce died in May 2016. An autopsy revealed that the immediate cause of 

death was pneumonia due to complications resulting from the brain injury. The state 

subsequently indicted Milby on two counts of murder under R.C. 2903.02(B). The 

indictments charged Milby with causing the death of another, as the proximate result of 

committing an offense of violence, specifically, the offenses of felonious assault and child 

endangering of which he had been previously convicted (referred to collectively as the 

"predicate offenses"). 

{¶4} At trial, the state presented exhibits consisting of certified copies of court 

records related to Milby's earlier convictions for the predicate offenses, including the 

indictment, bill of particulars, verdict forms signed by the jurors, and judgment entry of 

sentence. The bill of particulars indicated that the state alleged that on or about July 14, 

2011, between approximately 6:30 p.m. and 9:30 p.m., Milby had caused serious physical 

harm and recklessly abused Bryce by inflicting a traumatic brain injury. 

{¶5} Bryce's mother, Collette, testified about the struggle of keeping Bryce alive 

and well-cared for in the years following the brain injury. Following the brain injury, Bryce 

was never able to see, feed himself, talk, or walk. He was a quadriplegic. He suffered 

various ailments related to his permanent vegetative state, including seizures, scoliosis, 

 

1. Milby was in a relationship with Bryce's mother, Collette Shannon, and had been left alone babysitting 

Bryce and Bryce's siblings. 
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repeated bouts of pneumonia, and sepsis. He was hospitalized multiple times, sometimes 

for months at a time. 

{¶6} On May 24, 2016, Collette noted Bryce's breathing began to sound "very dry." 

Collette called Bryce's respiratory therapist, who said she would prepare a "bubbler" device. 

Collette then left Bryce with Bryce's grandmother and left to retrieve the bubbler. She 

returned 25 minutes later and installed the bubbler. Subsequently, Bryce's vital monitors 

began to alarm. Collette saw that Bryce was not breathing and began CPR. She told her 

daughter to call 9-1-1. Bryce never responded to the resuscitative efforts of Collette or the 

first responders. 

{¶7} Dr. Bryon Casto is a forensic pathologist and testified about performing 

Bryce's autopsy. Dr. Casto believed that Bryce appeared well-cared for based on the 

condition of his body. Dr. Casto found that Bryce's lungs were "involved in widespread 

pneumonia." Dr. Casto indicated that there was a link between Bryce's physical condition 

of being in a bedfast state and pneumonia. This is because someone who is mobile and 

also has the ability to clear his or her airway has a better ability to avoid respiratory illnesses. 

Bryce's scoliosis, which could also be caused by his bedfast state, would also have 

contributed to his pneumonia. Ultimately, Dr. Casto opined, within a reasonable degree of 

medical certainty, that Bryce's death was the result of lobar pneumonia due to complications 

of remote traumatic brain injury. 

{¶8} On cross-examination, Milby's defense counsel asked whether Dr. Casto had 

determined Bryce's manner of death. Over the state's objection, which was premised on 

an earlier agreement between the parties not to present expert testimony concerning the 

predicates offenses, Dr. Casto testified that Bryce's manner of death was "undetermined." 

Dr. Casto explained that, based on the autopsy and other information he had reviewed, he 

could not rule out that Bryce's original brain injury was not an accident. On redirect, Dr. 
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Casto confirmed that he had not treated Bryce in 2011 and clarified that it was not his 

opinion that Bryce's original injury was accidental. 

{¶9} Dr. Randall Alexander is a professor of pediatrics at the University of Florida 

and testified as an expert in pediatrics and child abuse, including abusive head trauma. He 

had been involved as a consultant in the case since 2012, when he diagnosed Bryce with 

abusive head trauma. Dr. Alexander opined that Bryce's initial injury on July 14, 2011, was 

the proximate cause of his death in 2016. 

{¶10} Milby took the stand in his defense case. He testified that he was watching 

Bryce as well as Collette's other children, and that they were all outside playing. He picked 

up Bryce and playfully tossed him in the air. As Bryce was in the air, Milby's foot slipped 

and then both he and Bryce fell onto concrete. Afterwards, Bryce cried for a short time. But 

within a few minutes, they went inside to get something to eat. They ate nachos. Then 

Bryce went into his room and played with cars and dinosaurs. Milby went back and forth 

checking on the children outside and checking on Bryce inside. 

{¶11} At one point, Milby watched as Bryce jump off a dresser onto the bed. Milby 

told him to get down. Milby later went to check on Bryce and saw that he was "napping" on 

the floor, "hunched over like with his butt in the air." Milby was concerned but left Bryce 

"napping" and continued going back and forth checking on the other children. At some 

point, he observed that Bryce had vomited on the floor. He put Bryce on a couch, and then 

moved him to the floor again, where Bryce again vomited. 

{¶12} Milby said he began texting Collette with his concerns, and she told him to call 

Bryce's grandmother for assistance. When Bryce's grandmother arrived, she realized that 

Bryce was "not awake" and was "doing nothing" and that they needed to call 9-1-1. Then 

she decided she would take Bryce herself to urgent care. 

{¶13} On cross-examination, Milby confirmed that he had never told this story to the 
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police and admitted that he had earlier lied to police. The state also confronted Milby with 

a pro se motion for judicial release that he filed in 2015. In it, Milby expressed remorse to 

the sentencing judge. Milby denied writing the motion and stated that he paid another 

inmate to write the motion for him. 

{¶14} The state called Dr. Alexander to rebut Milby's testimony about the accidental 

fall. After the prosecutor relayed Milby's version of events, Dr. Alexander indicated that it 

did not change his opinion. Dr. Alexander further indicated that Milby's version of events 

was not consistent with the serious brain injury Bryce suffered. The jury found Milby guilty 

of both counts of murder. Milby appeals and raises four assignment of error. 

{¶15} Assignment of Error No. 1: 

{¶16} THE TRIAL COURT VIOLATED THE APPELLANT'S CONSTITUTIONAL 

DUE PROCESS RIGHTS. 

{¶17} Milby argues that the court violated his right to a fair trial by denying him funds 

to hire an expert who could present evidence that Bryce's brain injury was the result of an 

accident. Milby argues that the court denied him funds for an expert based upon the state's 

representation that it would not present expert medical testimony "regarding the underlying 

felony offenses." However, Milby argues that the state did present such expert testimony. 

Milby further argues that because he was denied access to an expert, his defense counsel 

was unable to effectively cross-examine the state's expert witnesses. 

{¶18} The record reflects that prior to the trial, the prosecutor e-mailed defense 

counsel and the court, asking for guidance as to whether there would be a need to call the 

medical experts who treated Bryce in 2011 and who testified at the trial of the predicate 

offenses. The prosecutor indicated his understanding that the state was not required to 

retry and prove the predicate offenses but wanted to confirm if that was so and whether he 

could release those witnesses from subpoena. Defense counsel responded that he did not 
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intend to present any "counter evidence regarding the original assault" and that the defense 

had no experts to dispute the original incident but that Milby was reserving his right to testify 

and deny that the assault occurred. 

{¶19} Later, the court responded to the state's question on whether it would have to 

retry the predicate offenses. The court indicated that the state could not use principles of 

collateral estoppel to establish the previous offenses, but would instead need to present 

sufficient evidence to prove the fact of the prior convictions, such as through certified copies 

of the indictment, bill of particulars, verdict forms, and judgment entry of conviction. The 

court additionally noted that Milby would have the ability to contest the claim that he 

committed the acts of which he was convicted. 

{¶20} Subsequently, and with approximately 20 days remaining to the trial date, 

Milby moved the court to continue the trial and provide him state funds to hire an expert 

witness "to contest the State's evidence that he committed the underlying assault in this 

matter." Following an in-chambers meeting, the court denied this motion. In that decision, 

the court indicated that during the in-chambers meeting the state had represented that it 

would not present expert testimony concerning the predicate offenses. 

{¶21} At trial, during defense counsel's cross-examination of Dr. Casto, counsel 

asked Dr. Casto whether he had an opinion as to Bryce's manner of death. The state 

objected. A sidebar discussion ensued, and the state indicated that based upon the court's 

earlier ruling, the state had only intended to call Dr. Casto to testify to Bryce's cause of 

death. The defense then explained that they intended to question Dr. Casto concerning a 

portion of his written autopsy report in which he stated that he could not rule out an 

"accidental mechanism" for Bryce's original brain injury. 

{¶22} In response, the state argued that if Milby wanted to present this evidence to 

the jury, it would open the door to contrary expert evidence demonstrating that the original 
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brain injury was nonaccidental. Ultimately, the court overruled the state's objection and 

allowed Milby's counsel to proceed with the intended line of questioning. Dr. Casto then 

confirmed that, based on the autopsy he performed and the information he had reviewed, 

he was unable to rule out an accidental mechanism for the original injury and therefore, in 

his opinion, Bryce's manner of death was undetermined. 

{¶23} Later in the trial, and prior to Dr. Alexander's testimony, the state discussed 

its plans with opposing counsel and the court with regard to Dr. Alexander's direct 

examination. The state indicated that in light of Dr. Casto's testimony, the state would 

question Dr. Alexander as to potential accidental explanations for Bryce's brain injury and 

why Dr. Alexander was able to rule out those explanations. Milby's counsel objected, but 

the court indicated that it would withhold any ruling until the objection was presented during 

testimony. Later, and over Milby's objection, Dr. Alexander testified that he found no 

accidental causes to account for the trauma inflicted on Bryce's brain. 

{¶24} The decision to grant, set, or deny an indigent defendant's request for funds 

to employ an expert witness is within the discretion of the trial court. State v. Peeples, 94 

Ohio App.3d 34, 39 (4th Dist.1994). Therefore, this court reviews for an abuse of discretion, 

which implies that the court's decision was unreasonable, arbitrary, or unconscionable. 

State v. Warman, 12th Dist. Butler No. CA2016-02-029, 2017-Ohio-244, ¶ 35. 

{¶25} For purposes of due process, neither the United States Constitution nor the 

Ohio Constitution require the government to provide expert assistance to an indigent 

defendant. State v. Mason, 82 Ohio St.3d 144, 150 (1998). In order to establish a due 

process violation, "a defendant must show more than a mere possibility of assistance from 

an expert." Id. Rather, a defendant must make "a particularized showing (1) of a 

reasonable probability that the requested expert would aid in his defense, and (2) that denial 

of the requested expert assistance would result in an unfair trial." Id. 
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{¶26} This court does not find that Milby met his burden of making a particularized 

showing that an expert would aid in his defense, that an expert was reasonably necessary 

to present a defense, or that the denial of expert assistance resulted in an unfair trial. Milby 

speculates that he could locate an expert witness to bolster his claim that the brain injury 

suffered by Bryce was accidental. However, Milby's speculation alone does not establish 

a reasonable probability. "'[U]ndeveloped assertions that the proposed assistance would 

be useful to the defense are patently inadequate.'" State v. Gumm, 73 Ohio St.3d 413, 427 

(1995), quoting State v. Scott, 41 Ohio App.3d 313 (8th Dist.1987). Moreover, given that 

the state presented unrefuted documentary and testimonial evidence that a jury convicted 

Milby of the predicate offenses, Milby cannot show a reasonable probability that 

hypothetical, contrary expert testimony as to the cause of the original injury would have 

aided in his defense at this trial. 

{¶27} Moreover, it appears that Milby's need for his own medical expert was based 

upon his decision to disregard the state's agreement that no expert medical testimony would 

be presented concerning causation of the predicate offenses. Instead, Milby chose to 

present an expert opinion that the original injury to Bryce's brain could have been 

accidental. This made the matter of accidental versus nonaccidental cause a contested 

issue at trial and opened the door to contrary causation evidence. 

{¶28} This court also finds no merit in the argument that Milby's defense attorneys 

were limited in their ability to cross-examine the state's witnesses because of Milby's 

inability to secure an expert witness at the state's expense. Milby's counsel vigorously 

cross-examined both of the state's expert witnesses and was able to obtain evidence 

favorable to Milby through the cross-examination of Dr. Casto. 

{¶29} Milby cites State v. Sellers, 8th Dist. Cuyahoga No. 85611, 2005-Ohio-6010, 

for a factually similar case where the appeals court concluded that it was an abuse of 
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discretion for the trial court to deny a request for funds to hire an expert witness. There, the 

victim died eight years after being assaulted by the defendant, an assault that left the victim 

in a vegetative state. Id. at ¶ 2. The defendant moved the court to appoint an expert witness 

to determine cause of death, a motion the court denied. Id. In reversing, the court of 

appeals held that defendant had presented a "developed" assertion of his need for expert 

testimony, because causation was the only issue in the case and the court's denial of expert 

testimony led the defendant to plead no contest in lieu of going to trial. Id. at ¶ 20. 

{¶30} Unlike Sellers, Milby did not request funds for expert assistance in challenging 

the state's medical evidence that Bryce's death was the proximate result of the original 

injury. At trial, Milby effectively conceded this issue. Instead, Milby requested funds to 

present medical expert testimony challenging causation with regard to Bryce's original brain 

injury, for which he was previously tried and convicted in a separate jury trial, and for which 

the state presented unrefuted evidence. Milby also did not present a "developed" argument 

establishing his need for a medical expert. "[A] generalized assertion does not qualify as 

the 'particularized showing' required by Mason * * *." State v. McKnight, 107 Ohio St.3d 

101, 2005-Ohio-6046, ¶ 66. Milby's motion for expert funds merely indicated that the funds 

would be used to "contest the State's evidence that he committed the underlying assault in 

this matter." Accordingly, this court does not find that Sellers suggests a different result 

and concludes that Milby has not demonstrated that the trial court's decision was 

unreasonably, arbitrary, or unconscionable. This court overrules Milby's first assignment of 

error. 

{¶31} Assignment of Error No. 2: 

{¶32} THE APPELLANT'S CONVICTION IS A VIOLATION OF THE DOUBLE 

JEOPARDY CLAUSE. 

{¶33} Milby argues that the predicate offenses were lesser included offenses of the 
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two counts of murder, and that because the state failed to reserve the right to later indict 

him for murder, his subsequent murder convictions arising out of the same acts violated his 

rights under the Double Jeopardy Clause. "The Double Jeopardy Clause of the Fifth 

Amendment prohibits successive prosecutions for the same criminal act or transaction 

under two criminal statutes unless each statute 'requires proof of a fact which the other 

does not.'" State v. Tolbert, 60 Ohio St. 3d 89, 90 (1991), quoting Blockburger v. United 

States, 284 U.S. 299, 304, 52 S.Ct. 180 (1932). Furthermore, "the Double Jeopardy Clause 

prohibits prosecution of a defendant for a greater offense when he or she has already been 

acquitted or convicted on the lesser included offense." Id. citing Brown v. Ohio, 432 U.S. 

161, 97 S.Ct. 2221 (1977). 

{¶34} However, the Ohio Supreme Court has noted an exception "where the state 

is unable to proceed on the more serious charge at the outset because the additional facts 

necessary to sustain that charge have not occurred or have not been discovered despite 

the exercise of due diligence." Id. at paragraph two of the syllabus. In so holding, the court 

recognized an exception to a double jeopardy statute by holding that a defendant's 

conviction of assault and battery did not prevent a subsequent prosecution for homicide 

after the death of the victim. Id. at 91, citing Diaz v. United States, 223 U.S. 442, 32 S.Ct. 

250 (1912). Accordingly, because Bryce was not deceased at the time of Milby's initial 

indictment and later convictions for the predicate offenses, Milby's subsequent convictions 

for murder would not violate his rights under the Double Jeopardy Clause. 

{¶35} Milby cites State v. Carpenter, 68 Ohio St.3d 59 (1993), for the argument that 

the state was required to reserve the right to later charge him with murder. In Carpenter, 

the court held that "[t]he state cannot indict a defendant for murder after the court has 

accepted a negotiated guilty plea to a lesser offense and the victim later dies of injuries 

sustained in the crime, unless the state expressly reserves the right to file additional charges 
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on the record at the time of the defendant's plea." Id. at syllabus. 

{¶36} Milby acknowledges that Carpenter involved a negotiated guilty plea, but 

urges this court to expand the rule in Carpenter to cases involving jury trials because it 

would provide finality and preserve a defendant's expectation that he or she will not be held 

accountable for further charges based on the same alleged actions. This court declines 

that invitation. Carpenter was expressly limited to plea agreements, and the Ohio Supreme

Court made clear that the requirement of reserving the right to bring additional charges was 

to protect plea agreements, which "are an essential and necessary part of the administration 

of justice." Id. at 61. Here, there is no strong public policy argument for extending the rule 

to provide finality to a criminal defendant whose victim survives an initial assault only to 

later die. Public policy dictates that a defendant who violently assaults another individual 

such that death could be a foreseeable result should anticipate being tried for murder if the 

victim dies. This court overrules Milby's second assignment of error. 

{¶37} Assignment of Error No. 3: 

{¶38} THE TRIAL COURT VIOLATED THE APPELLANT'S DUE PROCESS 

RIGHTS BY ADMITTING IRRELEVANT AND PREJUDICIAL EVIDENCE. 

{¶39} Milby contends that the court erred in admitting statements he made in his pro 

se motion for judicial release. In the statement, Milby expressed regret to the sentencing 

judge for his actions and blamed his trial attorney for advising him to remain silent. Milby 

further wrote: 

I wanted the court to know I accept fully, my actions of the day 

this crime was committed, I am often left to ask myself "What 

kind of man would commit the crime I committed that day?" 

Taking a program called "Roots for Success" has shown me that 

thinking things through before I act and not reacting to life so 

quickly would have allowed me the ability to avoid this time in

prison altogether. 

{¶40} Milby argues that his statement should have been excluded under Evid.R. 403 
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because it was unfairly prejudicial. Milby contends that the statute governing judicial 

release requires a finding of remorse on behalf of the defendant, thus, he argues that he 

was required to express remorse in his application. Milby further contends that, as a matter 

of public policy, statements of remorse expressed in a motion for judicial release should not 

be admissible evidence in a subsequent criminal trial. 

{¶41} Milby did not object to the admission of his statement. Under Crim.R. 52(B), 

this court will only conduct a review for plain error. To constitute plain error, there must be 

an obvious deviation from a legal rule that affected Milby's substantial rights, that is, the 

error must have affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 

(2002). Notice of plain error is to be taken with the utmost caution, under exceptional 

circumstances, and only to prevent a manifest miscarriage of justice. State v. Rogers, 143 

Ohio St.3d 385, 2015-Ohio-2459, ¶ 23. 

{¶42} This court does not find plain error. The statement was relevant as it tended 

to inculpate Milby in having committed the predicate offenses. Furthermore, the statement 

was admissible as non-hearsay, i.e., it was admissible as an admission by a partyopponent. Evid.R. 801(D)(2). Finally, the probative value of the statement was not 

outweighed by the danger of it being unfairly prejudicial. Simply because the statement 

would tend to inculpate Milby does not make it unfairly prejudicial. Milby voluntarily 

submitted the statement to the sentencing judge with no assurance that it would remain 

confidential. And there is nothing in the statement that would tend to incite or distract jurors 

from deciding the case based upon the facts. This court overrules Milby's third assignment 

of error. 

{¶43} Assignment of Error No. 4: 

{¶44} THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTIONS 

AND THE CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE 
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EVIDENCE. 

{¶45} Milby argues that the state failed to submit sufficient evidence to permit guilty 

verdicts and that his convictions were otherwise not supported by the weight of the 

evidence. When reviewing the sufficiency of the evidence underlying a criminal conviction, 

an appellate court examines the evidence in order to determine whether such evidence, if 

believed, would support a conviction. State v. Watson, 12th Dist. Warren No. CA2014-08-

110, 2015-Ohio-2321, ¶ 22. 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. 

{¶46} A manifest weight challenge scrutinizes the inclination of the greater amount 

of credible evidence, offered at a trial, to support one side of the issue over another. State 

v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. In assessing 

whether a conviction is against the manifest weight of the evidence, a reviewing court 

examines the entire record, weighs the evidence and all reasonable inferences, considers 

the credibility of the witnesses, and determines 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 conviction must be reversed and a new trial ordered. State v. Morgan, 12th 

Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34. 

{¶47} The state charged Milby with two counts of murder under R.C. 2903.02(B), 

which provides, in relevant part, that "[n]o person shall cause the death of another as a 

proximate result of the offender's committing or attempting to commit an offense of violence 

that is a felony of the first or second degree* * *." Milby alleges that the state failed to submit 

sufficient evidence that he committed the predicate offenses. Milby argues that the only 

evidence of his guilt of the predicate offenses were the certified copies of the indictments, 

bill of particulars, verdict forms, and judgment entries of sentence, as well as some 
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statements by the expert witnesses referring to his earlier convictions for the predicate 

offenses. 

{¶48} This court finds that the state submitted sufficient evidence to allow a rational 

trier of fact to find, beyond a reasonable doubt, that Milby was guilty of both counts of 

murder. Through the testimony of an investigating detective, the state introduced into 

evidence certified copies of Milby's earlier convictions for felonious assault and child 

endangering. Those documents reflected that the offense occurred on July 14, 2011, that 

the victim was Bryce, that the charges were felonies of the second degree, and that Milby 

was duly convicted and sentenced for those crimes. 

{¶49} Milby did not object to the admission of the certified records and presented no 

evidence challenging the fact of his convictions for the predicate offenses. In fact, Milby 

admitted in his testimony that he had been convicted of the predicate offenses. This court 

does not agree with Milby's suggestion, for which he cites no legal authority, that the state 

could not demonstrate the fact of the predicate offenses through the use of certified copies 

of court records. 

{¶50} Where a prior conviction is an element of an offense, the Revised Code 

provides that "a certified copy of the entry of judgment in such prior conviction together with 

evidence sufficient to identify the defendant named in the entry as the offender in the case 

at bar, is sufficient to prove such prior conviction." R.C. 2945.75(B)(1). Thus, if a prior 

conviction can be proven exclusively, and beyond a reasonable doubt, through certified 

records, then it is logical that the fact that Milby committed the offenses of felonious assault 

and child endangering could be demonstrated by certified court records admitted into 

evidence. 

{¶51} The state also presented evidence causally tying the predicate offenses to 

Bryce's death in May 2016. Dr. Casto opined that Bryce's death was from lobar pneumonia 
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due to complications resulting from a remote traumatic brain injury. And Dr. Alexander 

opined that the initial trauma to Bryce's brain in 2011 was the proximate cause of his death. 

The evidence also indicated that Bryce was well-cared for in the years following his injury 

and that there were no intervening medical causes contributing to his death. 

{¶52} For the same reasons, this court concludes that Milby's conviction was 

supported by the greater weight of the evidence. The only contradictory evidence presented 

was Milby's testimony regarding an alleged accidental drop, after which Bryce ate food and 

played with toys until eventually falling unconscious. However, Milby's testimony was 

contradicted by the expert medical evidence indicating that the injury to Bryce's brain was 

so severe, he would have been incapable of engaging in any of the activities claimed by 

Milby. The jury did not lose its way and this court overrules Milby's fourth assignment of 

error. 

{¶53} Judgment affirmed. 

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