CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 11CR27727
David P. Fornshell, Warren County Prosecuting Attorney, for plaintiff-appellee
Gray & Duning, John C. Kaspar, for defendant-appellant
(¶ 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 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.
(¶ 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.
(¶ 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 previous cases in which ...