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

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

WARREN COUNTY 

STATE OF OHIO, : 

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

 

 : O P I N I O N

 - vs - 9/30/2013 

 : 

JASON W. MILBY, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS 

Case No. 11CR27727 

David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive, 

Lebanon, Ohio 45036, for plaintiff-appellee 

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

defendant-appellant 

 HENDRICKSON, P.J.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

p.m. 

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

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

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

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

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

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

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

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

relieve the swelling and the blood. 

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

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

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

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

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

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

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

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

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

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

sentenced him to eight years in prison for felonious assault. 

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

{¶ 10} Assignment of Error No. 1: 

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

TRIAL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL. 

{¶ 12} Assignment of Error No. 2: 

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

EVIDENCE AND NOT SUPPORTED BY SUFFICIENT EVIDENCE AS THE TRIAL COURT 

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

{¶ 14} Assignment of Error No. 3: 

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

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

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

THE EXPERT TESTIMONY UNDER DAUBERT. 

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

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

raised in this appeal. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

injury became apparent, B.S. rode on his tricycle "around 90 miles per hour." 
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{¶ 24} Appellant also argues his trial counsel was ineffective because he could not find 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

State v. Edmunds, 308 Wis.2d 374 (2007), and a number of law review articles as well as 

other scholarly articles.1 We find this argument unpersuasive. 

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

in this state and others. See, e.g., Woodson, 8th Dist. Cuyahoga No. 85727, 2005-Ohio5691, at ¶ 49; Hendrex, 11th Dist. Trumbull No. 2009-T-0091, 2010-Ohio-2820; and Day v. 

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

 

1. The articles cited by appellant include, Keith A. Findley, et al., Shaken Baby Syndrome, Abusive Head 

Trauma, and Actual Innocence: Getting it Right, 12 Hous. J. Health L. & Pol'y 230 (2012), and Deborah 

Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and The Criminal Courts, 87 Wash. U.L. 

Rev. 1 (2009). 
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{¶ 28} In rejecting a claim similar to the one appellant is raising here, the Day court 

stated: 

[Appellant] claims that, even if we previously accepted the 

evidence [of SBS], it is no longer reliable under Daubert [v. 

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 

2786 (1993)] because it has been discredited by other scientific 

evidence. This is an exaggeration. The most the record before 

us shows is that experts disagree on the diagnosis of Shaken 

Baby Syndrome (SBS), particularly where there is no evidence 

of some impact injury. This disagreement is vigorous. However, 

neither the testimony at trial nor the references [appellant] cites 

support a conclusion that the theory of abusive head trauma, or 

SBS, has been discredited. Expert testimony is not rendered 

unreliable by criticism. Harris v. State, 2004 OK CR 1, ¶ 31 n. 

10, 84 P.3d 731, 746 n. 10. [Appellant's] jury determined the 

weight and credibility to give to each witness. Warner [v. State],

2006 OK CR 40, ¶ 40, 144 P.3d at 863. Jurors had the benefit 

of hearing "[v]igorous cross-examination, presentation of 

contrary evidence, and careful instruction on the burden of 

proof." Daubert, 509 U.S. at 596, 113 S.Ct. at 2798. 

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

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

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

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

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

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

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

reliability of such expert testimony. 

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

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

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

disagree with this argument. 

{¶ 32} Dr. Kleiner testified, within a reasonable degree of medical certainty, that B.S. 
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sustained a subdural hematoma and severe edema that was of an acute, rather than chronic, 

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

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

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

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

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

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

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

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

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

bruising just to the side of his anus. 

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

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

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

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

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

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

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

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

* * * 

[Appellant]: I don't know. 

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

[Appellant]: I don't know. 

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

* * * 
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[Appellant]: I'm ready to go. I'm serious. Ten, fifteen, 

thirty, whatever, let's do it. That's what I 

meant. 

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

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

call. 

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

[Appellant]: (inaudible) f____ deal (inaudible) getting 

ready to go. I woke up all night sweating. 

My heart was beating (inaudible). 

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

to prison and say f____ it? 

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

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

[Appellant]: Why should I sit here? (inaudible) going 

on, so that's what's going to happen, 

because I done did it. I dreamed 

everything, you know, everything that 

happened. That's why I am wasting even 

more (inaudible) because I dreamed that 

that m_____ f____. I mean for me - - you 

don't know how it is. 

[B.S.'s Mother]: No, I don't know how it is in there, but I 

know I don't - - you know, we have wasted 

$25,000 for you to say hey I'm just going to 

go to prison for 30 years and say f____ it. 

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

[B.S.'s Mother]: Well, you're sitting here talking like you're 

just going to make a deal and get it over 

and f_____ done with. Baby, if that's what 

you want to do, then I will go tell [your 

attorney] to give the f______ money back 

and go do it then. If you want to be an a__ 

like that. 

(Emphasis added.) 

{¶ 35} When B.S.'s mother was recalled to the stand on rebuttal, she testified that 
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when appellant said, "I done did it[,]" he was only talking about a dream he had in which he 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

unpersuasive. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

appellant. 

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

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

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

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

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

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

justice requires." 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and to enable him to defend against those charges. 

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

 

 S. POWELL and PIPER, JJ., concur.