[Cite as State v. Aeschilmann, 2014-Ohio-4462.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 2013CA00192
ALAN J. AESCHILMANN :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No. 2013-
CR-0287
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 6, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN FERRERO JAMES BURDON
Stark County Prosecutor 137 South Main Street
By: RONALD MARK CALDWELL Suite 201
Assistant Prosecuting Attorney Akron, OH 44308
110 Central Plaza South, Ste. 510
Canton, OH 44702
[Cite as State v. Aeschilmann, 2014-Ohio-4462.]
Gwin, P.J.
{¶1} Appellant Alan J. Aeschlimann [“Aeschlimann”] appeals his convictions on
one count of felony murder and one count of child endangering for the death of two-
year-old Bri'Sean T. Gamble on October 19, 2011.
Facts and Procedural History
A. The Parties
{¶2} Aeschlimann, also known as “A.J.” was a 28-year-old divorced father and
sole custodian of his 4-year-old daughter Hannah. He withdrew from Kent State
University to begin employment with the Ohio Department of Youth Services at the
Indian River Correctional Facility where he had served for 5 years as a corrections
officer. Brittany Boitnott was a 24-year-old single parent of 2 1/2 year old Bri'Sean
Gamble. A romance developed between Brittany and Aeschlimann in May of 2011 and
in September of that same year Brittany and Bri'Sean moved into the residence
occupied by Aeschlimann and Hannah. In August of 2013, at the time of the trial,
Aeschlimann was married and residing with his wife Amanda Aeschlimann.
B. The Home
{¶3} Aeschlimann’s home was small with a living room, kitchen, and three
bedrooms, one of which was vacant because Aeschlimann’s ex-wife had removed all
the furnishings. Bri'Sean and Hannah slept in separate bedrooms at the end of the hall
and across the hall from one another. Because they had no bedroom furniture of their
own, Aeschlimann and Brittany slept on the living room couch together. Aeschlimann
slept with his back to the backrest of the couch and Brittany with her back to
Aeschlimann stomach, heads going the same direction.
Stark County, Case No. 2013CA00192 3
C. Wednesday, October 19, 2011
{¶4} During the period that Aeschlimann, Brittany and the two children lived
together, their daily routines were consistent and predictable. Brittany was unemployed
and stayed home with the two children except on those days Hannah attended
preschool or visited her paternal grandparents. Hannah attended Oak Park Preschool
three to four times per week.
{¶5} Wednesday, October 19, 2011 was no different. Aeschlimann awoke at
approximately 7:30 a.m., as did Brittany. They ate breakfast together and Aeschlimann
left for his usual work shift at 1:45 p.m. to 10:00 p.m. Hannah did not attend preschool
that day. Brittany, Bri'Sean and Hannah stayed home all day. The only visitors were
Aeschlimann parents who stopped by with groceries a little after 8:00 p.m. staying for
approximately 20 minutes. According to Jody Aeschlimann, Hannah's grandmother, she
noticed nothing unusual about the children but did observe that Brittany appeared
upset.
{¶6} Brittany testified that she fed Bri'Sean, and gave him a bath around 9:15
p.m. She then put Bri’Sean to bed at between 10:00 and 10:15 p.m., which was his
normal bedtime. She further testified that Aeschlimann was not yet home from work
when she put Bri'Sean to bed and that was normal.
{¶7} Aeschlimann’s memory of those events was consistent. He recalls leaving
work at 10:00 p.m. and arriving home approximately 10 minutes later. An excited
Hannah greeted him and, although he could see Brittany in the back of the hall, he did
not see Bri'Sean at all. He further observed that Bri’Sean was usually already in bed
when he returned from work.
Stark County, Case No. 2013CA00192 4
{¶8} Shortly after Aeschlimann’s arrival home, and as he played with Hannah in
the living room, Brittany left in Aeschlimann’s car to go to Wal-Mart. The car was
actually owned by Aeschlimann’s parents, and Brittany was not insured to drive it.
Aeschlimann testified that she had never driven his car before. Brittany testified that she
had driven this car in the past. Aeschlimann testified Brittany had called him at work
several times that day; however, she did not ask him to stop at Wal-Mart on his way
home even though it was located across the street from his place of employment.
Brittany testified that she left for Wal-Mart at "10:15, 10:20" -- "probably a little later" and
"at the latest 10:20-10:25" returning home a little before 11:00 p.m.
{¶9} While Brittany was at Wal-Mart, Aeschlimann remained home with
Hannah while Bri'Sean remained in his bedroom. Brittany and Aeschlimann each
testified that Bri'Sean had "good sleeping habits”. When Brittany returned Hannah was
still awake. Hannah stayed awake until approximately 11:00 p.m. for two reasons. First,
to give her time to interact with her father and second, because Aeschlimann’s custody
agreement included the right of her non-custodial mother to make a nightly phone call.
In fact, her mother made her nightly call at approximately 10:20 p.m. and Aeschlimann
monitored the content of the conversations.
{¶10} At 11:00 p.m., Brittany returned from Wal-Mart. Aeschlimann put Hannah
to bed between 11:00 and 11:30 p.m. Aeschlimann and Brittany went to sleep on the
couch and awakened together the next morning. Brittany concedes that no one got up
during the night and Detective Von Spiegel concluded that no one had contact with
Bri'Sean throughout the night.
Stark County, Case No. 2013CA00192 5
D. Bri’Sean’s Body is Discovered
{¶11} The next morning Aeschlimann and Brittany awakened and resumed their
predictable routines. Aeschlimann took Hannah to preschool at 9:00 a.m., where they
both met and spoke with her teacher Samantha Carr. Ms. Carr testified that neither
demonstrated unusual conduct. Aeschlimann returned home at 10:00 a.m. Bri'Sean had
not awakened by the time Aeschlimann returned which was beyond his normal arising
time of 9:30 a.m. Brittany entered his bedroom at 10:30 a.m. and found his lifeless
body. A frantic and emotional 9-1-1 call was played for the jury.
E. EMS Arrives.
{¶12} EMS technicians arrived along with a Deputy from the Stark County
Sheriff's Office. En route dispatch informed the technicians that a two-year old child
might be in cardiac arrest and a possible choking. Upon arrival, Brittany came running
from the house, followed by Aeschlimann. Brittany had Bri’Sean in her arms and was
crying hysterically.
{¶13} EMS firefighter/paramedic Jennifer Mohler testified that the child was
pulse less and apenic. (1T. at 62). He had rigor mortis or “stiffening of his jaw, his
shoulder, his knees.” (1T. at 63). According to Mohler, this meant that the child had
been gone too long and resuscitation was futile. The medical personnel at the scene
could find no “lividity” or pooling of the blood that occurs after death.
{¶14} When Mohler informed Aeschlimann that the child was gone, she testified,
“he dropped to his knees and put his hands on his head.” (1T. at 66).
Stark County, Case No. 2013CA00192 6
{¶15} While photographing the child’s body at the direction of the deputy sheriff,
Mohler observed what she believed could be a small bruise on the child’s rib cage. (1T.
at 68)
F. The Autopsy
{¶16} Stark County Coroner P.S. Murthy, M.D. testifed that he conducted an
autopsy upon the body of Bri’Sean Gamble on October 21, 2011. (2T. at 428).
{¶17} During his external examination of the body, Dr. Murthy noted a one-half
inch contusion or bruise in the left chest area, a contusion under the chin of less than
half an inch and extremely small contusions at each eyebrow. (2T. at 446-447). No
evidence of injury was noted on the surface of the skin in the area of the back of the
head, front of the head and the scalp. (2T. at 452).
{¶18} During his internal examination of the body, Dr. Murthy observed a tiny
contusion in the left chest area extending to the lung. (2T. at 449-451). Dr. Murthy
observed more than two “maybe ten, twelve, thirteen in that range, multiple, prominent,
subgaleal contusions.” (2T. at 452; State’s Exhibits 8G; 8H; 8I; 8N and 8J). The
subgaleal contusions were “on the top of the head, right side, left side and the back.”
(2T. at 459-460). Dr. Murthy further observed “the massive accumulation of acute
subdural hemorrhage.” (2T. at 464). Dr. Murthy concluded that the primary cause of
death was blunt impacts to the head. (Id.)
{¶19} Dr. Murthy also found bronchopneumonia in the lungs. (2T. at 472). Dr.
Murthy testifed concerning this finding,
Well, to me, it indicates he sustained multiple, forceful blunt impacts
injuries to the head. Again, to the best of my judgment and knowledge,
Stark County, Case No. 2013CA00192 7
two or three forceful impacts on the head, the kid is unconscious, he’s
lying there and then the brain gets swollen, the brain is injured and the
respiratory system gets labored, he gets snoring, shallow respirations and
the celia does not move the secretions, so he’s a beautiful candidate to
develop bronchopneumonia. So injury on top of injury—a chain of events
starts.
2T. at 473-474.
{¶20} Dr. Murthy testified that the child suffered multiple impacts, “maybe nine,
ten, twelve, thirteen, I don’t know. But two or three impacts itself would be sufficient to
make a little child unconscious.” (2T. at 475)
{¶21} Dr. Murthy concluded that Bri’Sean died as a result of multiple massive
blunt impact injuries to his head and the back of his neck. (2T. at 477). Concerning the
time of death, Dr. Murthy opined,
Q. Can you tell how long it would have taken this child to die
after becoming unconscious and then, as you said, becoming a candidate
for that bronchopneumonia?
A. To the best of my judgment and experience, the sequence
would be something like this, three or four blunt impact injuries of this
magnitude, the child would be unconscious, then the brain gets injured,
starts getting swollen, and the accumulation of blood in the subdural
space is a very strong thing you find in fatal head injuries. And then the
subarachnoid hemorrhage. Subarachnoid hemorrhage is also an irritant
and sometimes the medulla oblongata, where the heart and the brain
Stark County, Case No. 2013CA00192 8
centers – brain functions, cardio-respiratory centers are located, when
they're bathed in blood they get into spasm so the -- the chain of events
take place and then he becomes a candidate for pneumonia so -- and
then he will probably die of pneumonia three, four hours after injury, and
then three or four hours later he dies, approximately.
2T. at 480.
G. The Homicide Investigation
{¶22} Deputy Rick Stauffer of the Stark County Sherriff’s Department responded
to the 9-1-1 call at Aeschlimann’s home on October 20, 2011. (1T. at 236). He
attempted to obtain written statements from Aeschlimann and Brittany. Deputy Stauffer
noted and photographed the small bruise on Bri’Sean’s chest. (1T. at 246-247; State’s
Exhibit 4D).
{¶23} The following day, Deputy Stauffer was informed by an investigator from
the coroner’s office that Bri’Sean’s death was ruled a homicide. Deputy Stauffer notified
Detective John Von Spiegel. The pair met with the coroner’s investigator and reviewed
the physical findings.
{¶24} Detective Von Spiegel contacted Aeschlimann. He did not inform
Aeschlimann about the results of the autopsy. Instead, Detective Von Spiegel told
Aeschlimann he just had some follow-up questions. (2T. at 334). Detective Von Spiegel
asked Aeschlimann to bring Brittany and Hannah to the station. Aeschlimann then took
Hanna to his parents who were dining at a local restaurant. Aeschlimann subsequently
informed Detective Von Spiegel that Hanna was not home, she was out to dinner with
his parents. Detective Von Spiegel contacted Aeschlimann’s parents, Jody and Alan,
Stark County, Case No. 2013CA00192 9
who brought Hannah to the Sherriff’s office around 8:30 p.m. Brittany’s mother, Leslie
Hoover, arrived around the same time.
{¶25} Detective Von Spiegel contacted C.J. Taylor of the Child Advocacy Center
to conduct a "forensic interview" of Hannah at the police station. Ms. Taylor met Hannah
in the lobby area when she arrived. Ms. Taylor described Hannah as “very bubbly,
cheery, appeared to be above her developmental age.” (1T. at 206). Hannah asked Ms.
Taylor when it was going to be her time to talk. Brittany’s mother told Ms. Taylor that
she was shocked that Hanna had to be brought there at the time to go over things. (1T.
at 308). Ms. Taylor conceded that it is "very rare" that such interviews are conducted
outside their offices and never before in her 14 years and 1500 interviews had she been
asked to do so in a police station because it is not the best environment. (1T. at 211-
212). Aeschlimann and his parents both objected to the interview unless one of them
was present. The interview did not take place at that time.
{¶26} Aeschlimann and Brittany were placed in separate interview rooms.
Detective Von Spiegel testifed that Aeschlimann emptied his pockets of his keys, cell
phone and wallet even though Detective Von Spiegel had not told him too. Aeschlimann
testifed that one of the deputies told him to leave them. (3T. at 881-882). He further
testified that he has never carried a wallet. Brittany’s mother testifed that in response to
his mother’s question about why he was giving her his things, Aeschlimann responded,
“Well, just in case something happens. I don’t anticipate anything happening, but just in
case.” (1T. at 309). Aeschlimann testified that he said, “Can you hold on to these until
I’m done.” (3T. at 882). Aeschlimann further testified that Leslie Hoover was mistaken
about what she had heard. (Id.)
Stark County, Case No. 2013CA00192 10
{¶27} Detective Von Spiegel testifed that Aeschlimann admitted that he had
spanked Bri’Sean on the butt on three occasions in the past. (2T. at 343-344).
Aeschlimann testified that he told the Detective he had “patted” his butt. (3T. at 883-
884).
{¶28} When Aeschlimann and Brittany were alone in their separate interview
rooms, Brittany asked Aeschlimann “just tell me what happened. (1T. at 138; 2T. at
350). Aeschlimann responded that Brittany should tell them she does not want to talk
anymore and that they will talk when they get home. (1T. at 138; 2T at 350).
{¶29} Aeschlimann told Detective Von Spiegel about Brittany’s trip to Wal-Mart
on October 19, 2011. When confronted, Brittany admitted the trip to Wal-Mart and
produced a receipt. Surveillance photographs from Wal-Mart showed Brittany arriving at
Wal-Mart at 10:35 p.m. and leaving the parking lot at 10:50 p.m. (1T. at 277-279).
{¶30} No admissions were obtained during the police interviews of Brittany or
Aeschlimann. Aeschlimann was not permitted to have any contact with Hannah.
Hannah left with her grandparents.
{¶31} With Aeschlimann’s permission Chelsea Eberling, a forensic interviewer,
interviewed Hannah two days later. (2T. at 599). The interview took place at the home
of her grandparents. Aeschlimann was not present when the interview was conducted.
The interview lasted four to five minutes because Hannah became distracted and did
not want to talk. (2T. at 619). Hannah disclosed nothing traumatic during the interview.
{¶32} In March 2013, the Stark County Grand Jury returned an indictment that
charged Aeschlimann with the charges of felony murder and child endangering for the
death of two-year-old Bri'Sean T. Gamble on October 19, 2011.
Stark County, Case No. 2013CA00192 11
{¶33} Deputy Stauffer and Detective Von Spiegel, the only two investigators
assigned to this case, admit that during the interim of October 19, 2011 and
Aeschlimann’s arrest some 17 months later, they developed no witnesses to the
inflicted injuries; nor witnesses to Bri'Sean's death; there were no admission or
confessions to the alleged assault; no relevant physical evidence; nor did they even
request forensic examinations other than the autopsy. In fact, other than the interviews
of Brittany and Aeschlimann whom they declared to be the only two suspects, the only
subsequent investigation include speaking to personnel at Wal-Mart; Brittany’s ex-
boyfriend Sean Gamble; and common associates of each. None were called as
witnesses. After October 31, 2011, neither investigator did anything further related to
this investigation, and "gathered no new evidence about this case." (2T. at 398). Both
officers testified that during the 17 month idle time between October 31, 2011 and the
indictment, Brittany's relatives were very active and public in attempts to see
Aeschlimann charged including phone calls to Detective Von Spiegel, the prosecutor
and others; letters to the editor; and a petition drive. (2T. at 388-389).
H. The Defense Case.
{¶34} The three pathologists who testified in this case all agreed that Bri'Sean
suffered from, and died as a result of, subdural hematomas and his death was a
homicide. Dr. P.S. Murthy (2T. at 464; 515) and Dr. Frank Miller (3T. at 965) for the
state; and Dr. Jonathan Arden (2T. at 646) for the defense.
{¶35} Dr. Murthy would only say that the "injuries must have taken place after
8:30 p.m.," the last time Bri'Sean was observed to have appeared normal. (2T. at 542-
543). Dr. Miller did not render an opinion regarding the time of injury explaining that the
Stark County, Case No. 2013CA00192 12
observations of an "independent person" may have been helpful. However, he could not
rely upon Brittany Boitnott, who was home with Bri'Sean, because he knew her to be a
suspect (3T. at 972-973). Dr. Arden could only say that it is more likely that Bri'Sean
was injured after 8:30 p.m. "but even that cannot be stated categorically." (2T. at 697).
{¶36} The defense introduced evidence of the principle of "lucid interval” after
which an injury has been inflicted yet the subject does not appear to show symptoms of
injury.
{¶37} Dr. Murthy agreed that he was aware of the principle and had read the
studies on the subject by Dr. Jan Leestma in a publication entitled Forensic
Neuropathology (2T. at 525). He also agreed, and stated, that a lucid interval is the
proven principle that some people who suffer from a subdural hematoma do not show
any "significant or neuro visible changes", i.e. symptoms. (2T. at 525-526). However, in
the case at bar, Dr. Murthy unequivocally testified that the injuries to Bri’Sean were such
that he would not have been able to function normally after the infliction.
{¶38} Dr. Miller opined that, he was familiar with the studies of Dr. Leestma and
the principle of lucid interval and although he would not expect it, there is no way to
"conclusively" determine whether Bri'Sean experienced a lucid interval. (3T. at 968-969;
971).
{¶39} Dr. Arden explained that the very nature of subdural hematomas, in that
they bleed at different rates, makes it most difficult to determine the time of the injury
(2T. at 650). He testified that he agrees with Dr. Leestma that subdural hematomas,
especially in children, frequently have a lucid interval and the studies reflect conclusions
derived from the studies of serious injuries to deaths in children (2T. at 656-657). In this
Stark County, Case No. 2013CA00192 13
case, the mere fact that Bri'Sean may have appeared normal before 8:30 p.m. "does not
exclude that he could have had that subdural hematoma already and he could have
been in that lucid interval" and -be could have been injured as much as an hour or two
before 8:30." (2T. at 657; 684). However, Dr. Arden noted,
I think it’s more likely that he’s injured after 8:30, but he could have
been injured any time between 8:30 and sometime in the early morning
hours. Could have happened at any time in that - - the injury could have
happened any time in that time frame, and actually death could have
happened pretty much almost any time in that time frame as well given the
variabilities [sic.] for accumulation of subdural hemorrhage and given the
rigor mortis when found the next morning.
2T. at 685.
{¶40} The following exchange occurred during Dr. Arden’s testimony,
Q. Is it any more reasonable to say that these injuries were
inflicted between 10:20 and 11:00 [while Brittany was at Wal-Mart] than to
say that the injuries were inflicted between 8:30 and 10:00? [When
Brittany was alone with both children]?
A. No, it's not more reasonable at all. There's nothing medical
that allows you to say it was more likely the 10:20 to midnight versus the
8:30 to 10:20. There’s nothing you can do medically, that you can base an
opinion on medically, that says it more likely happened in one time frame
than the other.
Stark County, Case No. 2013CA00192 14
Q. And both Dr. Murthy and Dr. Miller have said it could have
occurred any time after 8:30?
A. Yes, sir.
2T. at 269.
I. Verdict and Sentence
{¶41} The jury first indicated that it had become deadlocked and was unable to
reach a verdict. After the trial court rendered a “Howard charge1,” the jury returned with
a unanimous verdict of guilty of both counts charged in the indictment.
{¶42} On September 4, 2013, Aeschlimann was sentenced on Count 1 to a term
of 15 years to life. The Court did not impose a sentence on Count 2 in light of the allied
offense provisions of R.C. 2941.25.
Assignments of Error
{¶43} Aeschlimann raises five assignments of error,
{¶44} “I. PROOF THAT APPELLANT AND THE MOTHER OF AN INFANT
CHILD WERE THE ONLY CAREGIVERS DURING A TIME PERIOD WHEN THE
CHILD SUFFERED TRAUMATIC INJURIES RESULTING IN HIS DEATH, WITHOUT
ANY EVIDENCE OF WHEN, HOW, OR BY WHOM THE INJURIES WERE INFLICTED,
IS INSUFFICIENT CIRCUMSTANTIAL EVIDENCE TO ESTABLISH GUILT BEYOND A
REASONABLE DOUBT.
{¶45} “II. THE CORONER RENDERED TRIAL TESTIMONY UNDER OATH, ON
CRITICAL SUBJECTS, THAT WAS CONFLICTING AND IRRECONCILABLE, WHICH
1
In State v. Howard, 42 Ohio St.3d 18, 537 N.E.2d 188(1989), the Ohio Supreme Court approved
a supplemental charge to be given to juries that have become deadlocked on the question of conviction
or acquittal.
Stark County, Case No. 2013CA00192 15
PREJUDICED APPELLANT AND DENIED HIM DUE PROCESS UNDER THE
CONSTITUTION OF THE UNITED STATES.
{¶46} “III. THE TRIAL COURT DENIED APPELLANT HIS CONSTITUTIONAL
RIGHT TO DUE PROCESS AND A FAIR TRIAL BY PERMITTING EVIDENCE THAT
HE HAD ENGAGED IN PROFESSIONAL MIXED MARTIAL ARTS FIGHTING.”
{¶47} “IV. THE TRIAL COURT'S ORDER PROHIBITING APPELLANT'S
COUNSEL, FROM READING, ARGUING OR REFERRING TO THE BILL OF
PARTICULARS IN ARGUMENT DENIED APPELLANT HIS CONSTITUTIONAL
RIGHTS TO A FAIR TRIAL UNDER THE CONSTITUTION OF THE UNITED STATES.
{¶48} “V. THE TRIAL COURT DENIED APPELLANT HIS CONSTITUTIONAL
RIGHT TO DUE PROCESS AND A FAIR TRIAL BY PROHIBITING THE DEFENSE
FROM THE PRESENTMENT OF RELEVANT EVIDENCE REGARDING AN
ALTERNATIVE SUSPECT.”
I.
{¶49} Aeschlimann’s first assignment of error challenges the sufficiency of the
evidence. Subsumed within his argument, Aeschlimann contends his convictions are
against the manifest weight of the evidence produced by the state at trial. [Appellant’s
Brief at 13].
{¶50} Our review of the constitutional sufficiency of evidence to support a
criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether
“after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
Stark County, Case No. 2013CA00192 16
doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d
582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d
1239, 2010–Ohio–1017, ¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,
2010–Ohio–2720, ¶68.
{¶51} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded
by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the
inclination of the greater amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing the evidence in
their minds, they shall find the greater amount of credible evidence sustains the issue,
which is to be established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,
quoting Black's Law Dictionary (6th Ed. 1990) at 1594.
{¶52} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely
substitute its view for that of the jury, but must find that “‘the jury 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. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.
Stark County, Case No. 2013CA00192 17
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).
Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case
in which the evidence weighs heavily against the conviction.’” Id.
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶53} There is no dispute in the case at bar that a Bri’Sean died because of
blunt force trauma to his head and neck. Aeschlimann’s main argument is that there
was insufficient evidence to identify him as the assailant in the death of the child.
{¶54} The gravamen of Aeschlimann argument is that the time frame for
Bri'Sean's injuries included two time periods when the two adults were separately alone
with the child. Aeschlimann argues that the evidence did not prove beyond a reasonable
doubt that he inflicted Bri’Sean’s fatal injuries when he was alone with the boy, as
opposed to Brittany inflicting the injuries when she was alone with her son.
Stark County, Case No. 2013CA00192 18
{¶55} Aeschlimann relies upon State v. Miley, 114 Ohio App.3d 738, 684
N.E.2d 102 (4th Dist.1996). In Miley, the state presented evidence that the defendant’s
infant daughter had been intentionally abused, and that the defendant and the child’s
mother were the only individuals with access to the child. However, there was no direct
evidence that either the defendant or the mother had abused the child. Furthermore, the
state could not establish a specific time period during which the child was abused.
{¶56} The trial court in Miley denied the defendant’s Crim.R. 29 motion for
acquittal. The jury found the defendant guilty of child endangering, in violation of R.C.
2919.22(A). The Fourth District Court of Appeals reversed, finding that the evidence
was insufficient to support the conviction. The circumstantial evidence merely supported
a fifty-percent possibility that either the defendant or the child’s mother committed the
abuse. Furthermore, the evidence did not establish that the defendant should have
been aware that the child had been abused. Thus, the Court found that reasonable
minds could only conclude that the state had not proven the material elements of child
endangerment beyond a reasonable doubt. Id. at 745, 684 N.E.2d at 107.
{¶57} We find Miley to be distinguishable. In Miley, the other caregiver, the
child’s mother, did not testify during trial. In the case at bar, the only other person
present during the period when the injuries occurred was the child’s mother, Brittany.
She testified that she did not inflict the fatal blows upon her son. Aeschlimann also
testified in his own defense. Thus, the jury was able to hear and see the only persons
who could have committed the crime.
Stark County, Case No. 2013CA00192 19
{¶58} Indeed, the Fourth District Court of Appeals itself distinguished Miley on
this basis in State v. Sampsill, 4th Dist. Pickaway No. 97CA17, 1998WL346680(June
29, 1998), wherein the court stated,
The only other person present during the time-frame [when the
child was injured] was Vanchure. He testified that he did not injure Brittany
and the jury was free to believe his testimony. Further, appellant was
alone with Brittany for a much larger portion of the time-frame than
Vanchure.
See also, State v. Swain, 4th Dist. Ross No. 01CA2591, 2002-Ohio-414.(“Although
some evidence exists that appellant was not the sole caretaker during the period of time
when the abuse occurred, once again the jury was free to reject appellant’s other
evidence...”).
{¶59} If the state relies on circumstantial evidence to prove an essential element
of an offense, it is not necessary for “such evidence to be irreconcilable with any
reasonable theory of innocence in order to support a conviction.” State v. Jenks, 61
Ohio St.3d 259, 272, 574 N.E. 2d 492(1991), paragraph one of the syllabus,
superseded by State constitutional amendment on other grounds as stated in State v.
Smith, 80 Ohio St.3d 89, 684 N.E.2d 668(1997). “Circumstantial evidence and direct
evidence inherently possess the same probative value [.]” Jenks, 61 Ohio St.3d at
paragraph one of the syllabus. Furthermore, “[s]ince circumstantial evidence and direct
evidence are indistinguishable so far as the jury's fact-finding function is concerned, all
that is required of the jury is that i[t] weigh all of the evidence, direct and circumstantial,
against the standard of proof beyond a reasonable doubt.“ Jenks, 61 Ohio St.3d at 272,
Stark County, Case No. 2013CA00192 20
574 N.E. 2d 492. While inferences cannot be based on inferences, a number of
conclusions can result from the same set of facts. State v. Lott, 51 Ohio St.3d 160, 168,
555 N.E.2d 293(1990), citing Hurt v. Charles J. Rogers Transp. Co, 164 Ohio St. 329,
331, 130 N.E.2d 820(1955). Moreover, a series of facts and circumstances can be
employed by a jury as the basis for its ultimate conclusions in a case. Lott, 51 Ohio
St.3d at 168, 555 N.E.2d 293, citing Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.
{¶60} The jury heard evidence from the grandparents that the child was
functioning normally as late as 8:30 p.m. The jury further was presented evidence that
due to the severity of the blows inflicted upon him, Bri’Sean would most likely have been
rendered unconscious. All three experts agreed that it was more likely that the injuries
were inflicted after 8:30 p.m.
{¶61} The jury heard Brittany’s explanation concerning the events that occurred
after the grandparents had left. Brittany testified that she fed her son and gave him a
bath around 9:15 p.m. She put him to bed around 10:00 to 10:15 p.m. Bri’Sean patted
his pillow indicating that he wanted Brittany to lay with him. She did for a short time.
{¶62} The jury heard Aeschlimann’s explanation as well. He testified that he did
not interact with the child after he came home from work. The jury was aware that
Aeschlimann was alone in the home with the children while Brittany went to Wal-Mart.
{¶63} Evidence was presented which if believed inferred that when asked by
Detective Von Spiegel to bring Hanna with him, Aeschlimann instead deliberately took
his daughter to his parents. The jury was presented with evidence that Aeschlimann
refused to allow the authorities to interview Hannah that night in spite of the precautions
that were taken to make her feel comfortable. The jury further heard evidence that when
Stark County, Case No. 2013CA00192 21
asked by Brittany what had happened, Aeschlimann responded that she should stop
talking to the police and he would discuss it when they got home.
{¶64} The jury heard the parties’ evidence and counsels’ arguments and was
free to reject Aeschlimann’s claims of innocence.
{¶65} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Aeschlimann committed the crimes. We hold, therefore, that the state met its burden of
production regarding each element of the crimes and, accordingly, there was sufficient
evidence to support Aeschlimann's convictions.
{¶66} As an appellate court, we are not fact finders; we neither weigh the
evidence nor judge the credibility of witnesses. Our role is to determine whether there is
relevant, competent and credible evidence upon which the fact finder could base his or
her judgment. Cross Truck v. Jeffries, 5th Dist. No. CA–5758, 1982 WL 2911(Feb. 10,
1982). Accordingly, judgments supported by some competent, credible evidence going
to all the essential elements of the case will not be reversed as being against the
manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d
279, 376 N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n
determining whether the judgment below is manifestly against the weight of the
evidence, every reasonable intendment and every reasonable presumption must be
made in favor of the judgment and the finding of facts. * * *.’” Eastley v. Volkman, 132
Ohio St.3d 328, 334, 972 N.E. 2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc.
v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio
Jurisprudence 3d, Appellate Review, Section 603, at 191–192 (1978). Furthermore, it is
Stark County, Case No. 2013CA00192 22
well established that the trial court is in the best position to determine the credibility of
witnesses. See, e.g., In re Brown, 9th Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing
State v. DeHass, 10 Ohio St .2d 230, 227 N.E.2d 212(1967).
{¶67} Ultimately, “the reviewing court must determine whether the appellant or
the appellee provided the more believable evidence, but must not completely substitute
its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,
¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964
(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of
the evidence or two conflicting versions of events, neither of which is unbelievable, it is
not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning
No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197,
201, 722 N.E.2d 125(7th Dist. 1999).
{¶68} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-
Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,
62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.
843, 74 L.Ed.2d 646 (1983).
{¶69} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. "While the jury may
take note of the inconsistencies and resolve or discount them accordingly * * * such
inconsistencies do not render defendant's conviction against the manifest weight or
Stark County, Case No. 2013CA00192 23
sufficiency of the evidence." State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236,
1996 WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness'
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889,
citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992).
Although the evidence may have been circumstantial, we note that circumstantial
evidence has the same probative value as direct evidence. State v. Jenks, supra;
{¶70} We find that the jury neither lost his way nor created a miscarriage of
justice in convicting Aeschlimann of the charges.
{¶71} Based upon the foregoing and the entire record in this matter, we find
Aeschlimann’s convictions were not against the sufficiency or the manifest weight of the
evidence. To the contrary, the jury appears to have fairly and impartially decided the
matters before them. The jury as a trier of fact can reach different conclusions
concerning the credibility of the testimony of the state’s witnesses and the defendant’s
witnesses. This court will not disturb the jury's finding so long as competent evidence
was present to support it. State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978).
The jury heard the witnesses, evaluated the evidence, and was convinced of
Aeschlimann’s guilt.
{¶72} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of
each crime beyond a reasonable doubt.
Stark County, Case No. 2013CA00192 24
{¶73} Aeschlimann’s first assignment of error is overruled.
II.
{¶74} In his second assignment of error, Aeschlimann argues that he was
denied due process trial because the testimony of Dr. Murthy was conflicting in
several respects. Aeschlimann first points to Dr. Murthy’s testimony that he
believed that a pillow or a towel had been used to cushion the blows delivered to
Bri’Sean. Aeschlimann characterizes this testimony as false. Secondly, the
coroner rendered testimony on cross-examination, on three separate occasions,
that "any normal healthy adult, pretty much of any size, shape, or, you, know
capability" could have inflicted the injuries that caused Bri'Sean's death.
However, in response to the question of a juror, propounded by the Court, the
coroner said the opposite. Aeschlimann cites Ward-Collins v. Sugar, 8th Dist.
Cuyahoga No. 87546, 2006-Ohio-5589, 2006 WL 3030981 for the proposition
that the Court of Appeals has a clear duty to grant a new trial on the weight of the
evidence where it appears probable that a verdict is based upon false testimony.
{¶75} In Tanzi v. New York Central RR. Co., 155 Ohio St. 149, 153, 98
N.E.2d 39, 42(1951), the Ohio Supreme Court stated the following rule for
granting new trials where the movant claims that false testimony was given:
A witness is required to take an oath before giving his testimony
and is subject to prosecution for perjury if he gives false testimony.
Furthermore, juries have the duty to detect and disregard false testimony.
Finally, in the event that a jury does not detect and disregard false
testimony, the trial court and the Court of Appeals [both have] a clear duty
Stark County, Case No. 2013CA00192 25
to grant a new trial on the weight of the evidence where it appears
probable that a verdict is based upon false testimony.
{¶76} In Markan v. Sawchyn, 36 Ohio App.3d 136, 138, 521 N.E.2d 824(8th
Dist. 1987), the Court observed,
In this case, defendant claims the record indicates that a key
witness’s testimony consisted of false statements. In reviewing the record,
we conclude to the contrary. Although the testimony may at times have
been inconsistent and contradictory, there is insufficient basis for a
determination that it was false. If apparent contradictions by witnesses
justified new trials, courts would be besieged with motions for new trials
because such evidence is found in almost every trial.
Accord, Silver v. Jewish Home of Cincinnati, 190 Ohio App.3d 549, 2010-Ohio-5314,
943 N.E.2d 577(12th Dist.), ¶33. In this case, although the testimony may at times have
been inconsistent and contradictory, there is insufficient basis for a determination that it
was false. The statements were Dr. Murthy’s opinions based upon hypothetical
questions. They were subject to cross-examination and argument of counsel. Any
inconsistency in Dr. Murthy’s testimony goes to the weight, not the admissibility of the
testimony. In other words, ‘[t]he jury is the sole judge of the weight of the evidence and
the credibility of witnesses. It may believe or disbelieve any witness or accept part of
what a witness says and reject the rest.’ ” McKay Machine Co. v. Rodman, 11 Ohio
St.2d 77, 82, 228 N.E.2d 304(1967).
{¶77} Aeschlimann has failed to demonstrate that any of Dr. Murthy’s testimony
was false.
Stark County, Case No. 2013CA00192 26
{¶78} Aeschlimann’s second assignment of error is overruled.
III.
{¶79} In his third assignment of error, Aeschlimann contends that evidence
admitted at trial that he had engaged in professional mixed martial arts fighting denied
him due process and a fair trial because it was used as impermissible character
evidence.
{¶80} In advance of trial, Aeschlimann’s counsel filed a Motion in Limine
notifying the Court of its objection to the admission of other acts and character
evidence. Specifically, evidence that Aeschlimann was a professional mixed martial arts
fighter. (See, T. August 2, 2013 at 14-25). The state responded:
As the material issue in the case is not the cause of death, but
rather the identity of the perpetrator, evidence of the defendant's extensive
training, knowledge and experience in fighting is extremely probative and
material.
{¶81} At trial, the state asked Brittany Boitnott where she had met defendant,
she responded, “When I did ring card girl for Fight Fest,” and defendant objected. (1T at
91). The court allowed the testimony but reserved ruling on the publication of a
photograph of defendant in his fighting apparel. The prosecution then asked if he was
"involved as a fighter.” Again, defense objections were overruled (1T. at 94). Boitnott
then testified that he was involved in that kind of fighting throughout the time she knew
him and he was definitely less muscular now. She then identified his photograph but it
was not displayed to the jury.
Stark County, Case No. 2013CA00192 27
{¶82} During cross-examination of Aeschlimann, the prosecutor returned to the
subject of Aeschlimann's professional fighting by asking whether he was healthy
enough to "train and workout in MMA fighting,” and later, whether he had to be
physically fit "in order to be a cage fighter." (3T. at 886).
{¶83} During closing argument the character references continued as the
prosecutor said, “This defendants a fighter, he's aware of his power, his strength." (4T.
at 1013). The argument continued as the prosecutor compared Aeschlimann to Brittany
Boitnott by asserting, "It's not her who's used to using his strength in the way that he
does in the ring or the cage.” (4T. at 1019).
{¶84} Evid.R. 404(B) is in accord with R.C. 2945.59 in that it precludes the
admission of evidence of other crimes, wrongs, or acts offered to prove the character of
an accused in order to show that the accused acted in conformity therewith, but it does
not preclude admission of that evidence for other purposes. State v. Williams, 134 Ohio
St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, syllabus. The Court in Williams noted,
The General Assembly, however, has codified certain exceptions to
the common law regarding the admission of evidence of other acts of
wrongdoing. Those exceptions are contained in R.C. 2945.59:
In any criminal case in which the defendant's motive or intent, the
absence of mistake or accident on his part, or the defendant's scheme,
plan, or system in doing an act is material, any acts of the defendant
which tend to show his motive or intent, the absence of mistake or
accident on his part, or the defendant's scheme, plan, or system in doing
the act in question may be proved, whether they are contemporaneous
Stark County, Case No. 2013CA00192 28
with or prior or subsequent thereto, notwithstanding that such proof may
show or tend to show the commission of another crime by the defendant.
This court likewise has promulgated Evid.R. 404(B), which states:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶15.
{¶85} The admissibility of other acts evidence is carefully limited because of the
substantial danger that the jury will convict the defendant solely because it assumes
that the defendant has a propensity to commit criminal acts, or deserves punishment
regardless of whether he or she committed the crime charged in the indictment. See
State v. Curry (1975), 43 Ohio St.2d 66, 68, 330 N.E.2d 720(1975). This danger is
particularly high when the other acts are very similar to the charged offense, or of an
inflammatory nature, as is certainly true in this case. State v. Schaim, 65 Ohio St.3d 51,
60, 1992-Ohio-31, 600 N.E.2d 661,669.
{¶86} Other acts may prove identity by establishing a modus operandi applicable
to the crime with which a defendant is charged. “Other acts forming a unique,
identifiable plan of criminal activity are admissible to establish identity under Evid.R.
404(B).” State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180(1990), syllabus. “‘Other
acts' may be introduced to establish the identity of a perpetrator by showing that he has
committed similar crimes and that a distinct, identifiable scheme, plan, or system was
Stark County, Case No. 2013CA00192 29
used in the commission of the charged offense.” State v. Smith, 49 Ohio St.3d 137, 141,
551 N.E.2d 190(1990); State v. Lowe, supra, 69 Ohio St.3d at 531, 1994-Ohio-345, 634
N.E.2d at 629.
{¶87} “Pattern” evidence refers to other acts evidence that is admissible when
the defendant's scheme, plan, or system in doing an act is relevant at trial. Evidence of
a defendant's scheme, plan, or system in doing an act can be relevant for two reasons:
(1) the other acts are part of one criminal transaction such that they are inextricably
related to the charged crime, and (2) a common scheme or plan tends to prove the
identity of the perpetrator. State v. Curry (1975), 43 Ohio St.2d 66, 72-73, 330 N.E.2d
720(1975).
{¶88} In the case at bar, without any evidence directly implicating Aeschlimann’s
mixed martial arts background in the death of Bri’Sean we fail to see how evidence of
Aeschlimann’s mixed martial arts training or background was a matter genuinely in
issue. Put differently, we fail to see how such evidence was circumstantially connected
to the manner or cause of Bri’Sean’s death. The record in this case presents no basis to
conclude that Aeschlimann’s fighting background was in any sense intrinsic to the death
of the child. As we have noted, there is no evidence connecting the amount or type of
force necessary to inflict the injuries to any expertise or training in the mixed martial
arts. Rather, the experts agreed that any adult could have inflicted the fatal blows. The
only purpose of such testimony and argument appears to have been to portray
Aeschlimann as a person with violent propensities. State v. Johnson, 71 Ohio St.3d
332, 340, 1994-Ohio-304, 643 N.E.2d 1098. Accord, State v. Burson, 38 Ohio St.2d
Stark County, Case No. 2013CA00192 30
157, 159-160, 311 N.E.2d 526(1974); State v. Griffin, 142 Ohio App.3d 65, 75-76, 753
N.E.2d 967(1st Dist. 2001).
{¶89} In State v. Hirsch, 129 Ohio App.3d 294, 309, 717 N.E.2d 789(1st Dist.
1998), the Court observed,
More troublesome is Hirsch’s contention that the trial court admitted
evidence that Hirsch had a violent military background, that he collected
and carried weapons, that he had behaved violently, that he lived in a
desolate “compound,” and that he had the nicknames “Rambo” and
“Psycho Johnny.” Much of this evidence was other-acts evidence
presented solely for the purpose of painting Hirsch as a violent individual,
and it was clearly inadmissible under Evid.R. 404(B). See State v. Gillard
(1988), 40 Ohio St.3d 226, 230, 533 N.E.2d 272, 277, certiorari denied
(1989), 492 U.S. 925, 109 S.Ct. 3263, 106 L.Ed.2d 608; State v. Davis
(1989), 64 Ohio App.3d 334, 339–340, 581 N.E.2d 604, 607–608; State v.
Jones (Dec. 29, 1995), Hamilton App. No. C–950005, unreported, 1995
WL 763604. Some of it was not technically other-acts evidence, but it had
little relevance other than to portray Hirsch as a violent individual. See
Soke, supra, 105 Ohio App.3d at 249, 663 N.E.2d at 1001; Jones, supra.
Consequently, the trial court erred in admitting this evidence.
{¶90} Despite finding that the trial court erroneously admitted the other-acts
evidence in the case at bar, we must determine if the error was harmless. Pursuant to
Crim.R. 52(A), “any error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded.” See also State v. McKnight, 107 Ohio St.3d
Stark County, Case No. 2013CA00192 31
101, 2005–Ohio–6046, 837 N.E.2d 315, ¶88 (applying non-constitutional harmless-error
analysis to erroneous admission of other acts evidence). To find an error harmless, an
appellate court must be able to declare a belief that the error was harmless beyond a
reasonable doubt. State v. Lytle, 48 Ohio St.2d 391, 403, 358 N.E.2d 623 (1976).
{¶91} In determining whether an error in the admission of evidence is
“harmless”, we agree with the Supreme Court of Montana that at least three different
approaches appear in United States Supreme Court cases: (1) Focusing on the
erroneously admitted evidence or other constitutional error to determine whether it
might have contributed to the conviction e. g., Fahy v. Connecticut 375 U.S. 85, 84
S.Ct. 229, 11 L.Ed.2d 171(1963); (2) excluding the constitutional infirmity where
overwhelming evidence supports the conviction e. g., Milton v. Wainwright, 407 U.S.
371, 92 S.Ct. 2174, 33 L.Ed.2d 1(1972); (3) determining whether the tainted evidence is
merely cumulative or duplicates properly admitted evidence e. g., Harrington v.
California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284(1969). See, State v. McKenzie,
186 Mont. 481, 533, 186 P.2d 428(1980). These three differing approaches have been
noted in Ohio. See, State v. Rahman, 23 Ohio St.2d 146, 151, 492 N.E.2d
401(1986)(“Upon a thorough review of the record, we simply cannot state in good
conscience that the error in the admission of this privileged testimony was either
harmless beyond a reasonable doubt, did not have an impact on the jury, or did not
contribute to appellant’s conviction in any meaningful degree.” (Footnote omitted)).
{¶92} In Fahy v. Connecticut, the United States Supreme Court held that the
erroneous admission of unconstitutionally obtained evidence required reversal, noting
that the Supreme Court was “not concerned ... with whether there was sufficient
Stark County, Case No. 2013CA00192 32
evidence on which the [defendant] could have been convicted” absent the erroneously
admitted evidence, but rather whether there was a “reasonable possibility that the
evidence complained of might have contributed to the conviction.” 375 U.S. 85, 86–87,
84 S.Ct. 229, 11 L.Ed.2d 171 (1963).
{¶93} In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705
(1967), the Court rejected the view that all federal constitutional errors in the course of a
criminal trial require reversal. The Court held that the Fifth Amendment violation of
prosecutorial comment upon the defendant’s failure to testify would not require reversal
of the conviction if the State could show “beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.” Id., at 24, 87 S.Ct. at 828.
{¶94} In Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182
(1993), the Court further explained the harmless error analysis as set forth in Chapman,
Consistent with the jury-trial guarantee, the question it instructs the
reviewing court to consider is not what effect the constitutional error might
generally be expected to have upon a reasonable jury, but rather what
effect it had upon the guilty verdict in the case at hand. See Chapman,
supra, 386 U.S., at 24, 87 S.Ct. at 828 (analyzing effect of error on “verdict
obtained”). Harmless-error review looks, we have said, to the basis on
which “the jury actually rested its verdict.” Yates v. Evatt, 500 U.S. 391,
404, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991) (emphasis added).
The inquiry, in other words, is not whether, in a trial that occurred without
the error, a guilty verdict would surely have been rendered, but whether
the guilty verdict actually rendered in this trial was surely unattributable to
Stark County, Case No. 2013CA00192 33
the error. That must be so, because to hypothesize a guilty verdict that
was never in fact rendered—no matter how inescapable the findings to
support that verdict might be—would violate the jury-trial guarantee.
Sullivan at 279, 113 S.Ct. 2078, 124 L.Ed.2d 182.
{¶95} As one Court has explained,
Thus we, as a reviewing court, do not pretend that the constitutional
error did not occur and then evaluate how overwhelming the evidence
would have been to a hypothetical jury, or even to the jury charged with
fairly deciding this case. We do not hypothetically extract the error from
the trial which the jury heard; we must, however, consider and weigh the
effect of the error on the actual jury.
After evaluating the effect of the error in this case, if we find
“[u]nder these circumstances” that it is completely impossible for us to say
the prosecution has demonstrated, beyond a reasonable doubt, that the
trial prosecutor’s questioning and comments, and the trial judge’s error,
did not contribute to Mr. Marshall’s conviction, then we cannot find the
error harmless. See Chapman v. California, supra at 26, 87 S.Ct. 824. And
if the error is not harmless, then Mr. Marshall is entitled “to a trial free from
the pressure of unconstitutional inferences.” Id. But if we can find beyond
a reasonable doubt that this jury’s verdict is surely unattributable to the
constitutional error, then the error is harmless and the trial was fair.
(Citations omitted).
Stark County, Case No. 2013CA00192 34
State v. Marshall, 2012-0650, 120 So.3d 922, 929(La.App. 4 Cir. 7/31/13). In State v.
Rahman, the Ohio Supreme Court recognized this principal,
We are also mindful that our role upon review of this case is not to
sit as the supreme trier of fact, but rather to assess the impact of this
erroneously admitted testimony on the jury. In writing about the court’s
function on federal appellate review, Justice John Paul Stevens’
observation is particularly appropriate:
“‘[I]t is not the appellate court’s function to determine guilt or
innocence * * *. Nor is it to speculate upon probable reconviction and
decide according to how the speculation comes out * * *. [T]he question is,
not were [the jury] right in their judgment, regardless of the error or its
effect upon the verdict. It is rather what effect the error had or reasonably
may be taken to have had upon the jury’s decision. The crucial thing is the
impact of the thing done wrong on the minds of other men, not on one’s
own, in the total setting.’ ” United States v. Hasting (1983), 461 U.S. 499,
516, 103 S.Ct. 1974, 1984, 76 L.Ed.2d 96, Stevens, J. concurring (quoting
Kotteakos v. United States [1946], 328 U.S. 750, 763-764, 66 S.Ct. 1239,
1247-1248, 90 L.Ed. 1557).
State v. Rahman, 23 Ohio St.3d 146, n. 4, 492 N.E.2d 401. This standard of review has
been applied by the Ohio Supreme Court,
Thus, under Section 2945.83 of the Revised Code it would seem
that since there is substantial evidence to support the guilty verdict even
after the tainted evidence is cast aside, we should affirm. However, under
Stark County, Case No. 2013CA00192 35
Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171
(1963), and Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17
L.Ed.2d 705 (decided February 20, 1967), we are refused that course of
action. In Fahy, the court said that when constitutionally inadmissible
evidence has been admitted, a reversal is required where ‘there is a
reasonable possibility that the evidence complained of might have
contributed to the conviction.’ (Emphasis added.) In Chapman, the court
made it clear that the Fahy rule applied to federal constitutional errors in
spite of a state harmless-error statute to the contrary.
State v. Cowans, 10 Ohio St.2d 97,104-105, 227 N.E.2d 201(1967).
{¶96} In the case at bar, we find beyond a reasonable doubt, that the evidence
of Aeschlimann’s mixed martial arts background did not contribute to his conviction.
Both Aeschlimann and Brittany testified at trial. The jury was able to personally observe
the physical characteristics, size, relative strength and demeanor of each. Each expert
testified, in essence, that no special strength or skill was need to inflict the fatal blows.
Aeschlimann testifed that he uses strength and technique to restrain individuals in his
job as a corrections officer at a maximum-security facility for juvenile offenders2. Thus,
evidence of his mixed martial arts training is cumulative to other evidence that was
admitted concerning his strength and abilities.
{¶97} Based upon the entire record before us, we conclude that any error in the
admission of the mixed martial arts testimony was harmless beyond a reasonable
doubt.
2
Although Aeschlimann initially objected to this testimony at trial, he does not assign as error the
introduction of this testimony in this appeal. (3T. at 888).
Stark County, Case No. 2013CA00192 36
{¶98} Aeschlimann’s third assignment of error is overruled.
IV.
{¶99} In his fourth assignment of error, Aeschlimann maintains the trial court's
order prohibiting appellant's counsel from reading, arguing or referring to the bill of
particulars in argument denied appellant his constitutional rights to a fair trial.
{¶100} The content of a Bill of Particulars filed in this case and served upon the
defense on March 12, 2013 recited,
On or about October 19, 2011 between 10:20 p.m. and midnight...
defendant did recklessly abuse and cause serious physical harm to
Bri'Sean Gamble... by inflicting massive blunt force injuries to his head
and posterior neck, which proximately resulted in the child's death. . .
{¶101} The trial court sustained the state’s motion to amend the bill of particulars
to extend the timeframe during which the injuries were alleged to have been inflicted to
include "the early morning hours of October the 20.” (3T. 728; 935-941).
{¶102} Aeschlimann contends that the prosecution's claims regarding the time of
injury as first articulated in the Bill of Particulars and then as amended were relevant to
the understanding of the jury regarding the state's expressed uncertainty. Aeschlimann
then argues,
The jury had heard references to the Bill of Particulars during the
defense examination of Dr. Arden (R.674, 678). The Court conceded the
jury had asked questions regarding what a Bill of Particulars is (R.940)
and acknowledged that she didn't "think the jury knows what a Bill of
Particulars is." Yet the Court denied instruction thereon in violation of the
Stark County, Case No. 2013CA00192 37
Court's duty to provide relevant instruction that are necessary for the jury
to weigh the evidence and to discharge its duty as the fact finder. State v.
Steele, 2011WL5119107 (Ohio App. 1st Dist.), citing State v. Cornon
(1990), 50 Ohio St.3d 206, paragraph two of the syllabus. (Emphasis
added).
Appellant’s Brief at 23.
{¶103} This appears to be a different claim than the claim set forth in the fourth
assignment of error. Accordingly, we interpret Aeschlimann’s fourth assignment of error
in the following manner: The trial court erred in failing to provide the jury adequate
instructions concerning the purpose of a bill of particulars and the fact that the bill of
particulars in the case at bar had been amended. (3T. at 731).
{¶104} The giving of jury instructions is within the sound discretion of the trial
court and will not be disturbed on appeal absent an abuse of discretion. State v.
Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (3rd Dist.1993). In order to find an abuse
of that discretion, we must determine the trial court's decision was unreasonable,
arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140(1983). Jury instructions must be
reviewed as a whole. State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792(1988).
{¶105} Crim.R. 30(A) governs instructions and states as follows:
At the close of the evidence or at such earlier time during the trial
as the court reasonably directs, any party may file written requests that the
court instruct the jury on the law as set forth in the requests. Copies shall
be furnished to all other parties at the time of making the requests. The
Stark County, Case No. 2013CA00192 38
court shall inform counsel of its proposed action on the requests prior to
counsel's arguments to the jury and shall give the jury complete
instructions after the arguments are completed. The court also may give
some or all of its instructions to the jury prior to counsel's arguments. The
court need not reduce its instructions to writing.
On appeal, a party may not assign as error the giving or the failure
to give any instructions unless the party objects before the jury retires to
consider its verdict, stating specifically the matter objected to and the
grounds of the objection. Opportunity shall be given to make the objection
out of the hearing of the jury.
{¶106} Aeschlimann did not file a written request for specific jury instructions, and
did not object to the trial court's jury instructions. The trial court specifically asked trial
counsel "Does counsel desire anything further at this time?" (4T. at 1109). Both counsel
answered in the negative. (Id.).
{¶107} Based upon Aeschlimann's failure to proffer instructions or object to the
instructions and bring the issue to the trial court's attention for consideration, we must
address this assignment under the plain error doctrine pursuant to the Crim.R. 52(B).
{¶108} As the United States Supreme Court observed in Puckett v. United States,
526 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266, (2009),
If an error is not properly preserved, appellate-court authority to
remedy the error (by reversing the judgment, for example, or ordering a
new trial) is strictly circumscribed. There is good reason for this; “anyone
familiar with the work of courts understands that errors are a constant in
Stark County, Case No. 2013CA00192 39
the trial process, that most do not much matter, and that a reflexive
inclination by appellate courts to reverse because of unpreserved error
would be fatal.”
556 U.S. at 134. (Citation omitted).
[A]n appellate court may, in its discretion, correct an error not
raised at trial only where the appellant demonstrates that (1) there is an
error; (2) the error is clear or obvious, rather than subject to reasonable
dispute; (3) the error affected the appellant’s substantial rights, which in
the ordinary case means it affected the outcome of the district court
proceedings; and (4) the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.
United States v. Marcus, 560 U.S. 258, 130 S.Ct. 2159, 2164,176 L.Ed.2d 1012
(Internal quotation marks and citations omitted). The Ohio Supreme Court pertinently
addressed when structural error analysis should be used in State v. Perry,
We emphasize that both this court and the United States Supreme
Court have cautioned against applying a structural-error analysis where,
as here, the case would be otherwise governed by Crim.R. 52(B) because
the defendant did not raise the error in the trial court. See Hill, 92 Ohio
St.3d at 199, 749 N.E.2d 274; Johnson, 520 U.S. at 466, 117 S.Ct. 1544,
137 L.Ed.2d 718. This caution is born of sound policy. For to hold that an
error is structural even when the defendant does not bring the error to the
attention of the trial court would be to encourage defendants to remain
silent at trial only later to raise the error on appeal where the conviction
Stark County, Case No. 2013CA00192 40
would be automatically reversed. We believe that our holdings should
foster rather than thwart judicial economy by providing incentives (and not
disincentives) for the defendant to raise all errors in the trial court-where,
in many cases, such errors can be easily corrected.
101 Ohio St.3d 118, 802 N.E.2d 643, 2004-Ohio-297, ¶23. Thus, the defendant bears
the burden of demonstrating that a plain error affected his substantial rights and, in
addition that the error seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123
L.Ed.2d 508(1993); State v. Perry, 101 Ohio St.3d at 120, 802 N.E.2d 643. Even if the
defendant satisfies this burden, an appellate court has discretion to disregard the error.
State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240(2002); State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus; Perry, supra, at 118,
802 N.E.2d at 646.
{¶109} In the case at bar, the jury was instructed, in pertinent part,
The offenses charged are alleged to have taken place on or about
the 19th day of October 2011. It is not necessary that the State prove that
the offenses were committed on the exact day as charged in the
indictment. It is sufficient to prove that the offenses took place on a date
reasonably near the date claimed.
4T. at 1000. This is a correct statement of law. See, State v. Sellards, 17 Ohio St.3d
169, 478 N.E.2d 781(1985); State v. Adams, 5th Dist. Licking No. 02-CA-00043, 2002-
Ohio-5953, ¶8.
{¶110} The trial court further instructed the jury in relevant part,
Stark County, Case No. 2013CA00192 41
Before you can find the Defendant Guility of this charge [murder],
you must find beyond a reasonable doubt that on or about the 19th day of
October, 2011, and in Stark County Ohio, the Defendant recklessly cause
the death of Bri’Sean T. Gamble...
4T. at 1001. Ordinarily, precise times and dates are not essential elements of offenses.
Thus, the failure to provide dates and times in an indictment will not alone provide a
basis for dismissal of the charges. A certain degree of exactitude of averments, where
they relate to matters other than elements of the offense, is not per se impermissible or
necessarily fatal to a prosecution. State v. Sellards, 17 Ohio St.3d 169, 171(1985).
{¶111} We note that the purpose of a bill of particulars is “to elucidate or
particularize the conduct of the accused alleged to constitute the charged offense.”
State v. Sellards, 17 Ohio St.3d 169, 171, 478 N.E. 2d 781, 784(1985). It also acts to
“inform an accused of the exact nature of the charges against him so that he can
prepare his defense thereto.” State v. Fowler, 174 Ohio St. 362, 364, 189 N.E.2d 133,
134(1963). Consistent with this purpose, Crim.R. 7(D) allows amendment of a bill of
particulars “before, during, or after a trial,” provided that “no change is made in the
name or identity of the crime charged.” See, also, State v. Brown, 99 Ohio App.3d 604,
610, 651 N.E.2d 470, 474(1994). Aeschlimann does not argue that the trial court erred
by permitting the state to amend the bill of particulars.
{¶112} Accordingly, we find no error as the trial court properly instructed the jury
in accordance with the law. Further, we find Aeschlimann did in fact argue to the jury the
uncertainty concerning the time the injuries were inflicted. (4T. 1067-1071; 1075-1076).
Stark County, Case No. 2013CA00192 42
Thus, any error in the trial court’s exclusion of evidence or argument concerning the Bill
of Particulars was harmless beyond a reasonable doubt.
{¶113} Aeschlimann’s fourth assignment of error is overruled.
V.
{¶114} Aeschlimann's fifth assignment of error challenges the trial court's ruling
that allegedly prevented him from introducing evidence of an alternative suspect for
Bri'Sean's death. We note that this assignment of error appears overbroad. The only
other potential suspect was the child’s mother Brittany Boitnott. Aeschlimann does not
contend that he was prohibited from introducing evidence of a third party. Rather,
Aeschlimann wanted to introduce evidence that Brittany had been convicted of driving
while under the influence, and was going to Wal-Mart in order to obtain personal items
for her upcoming three-day attendance at the Driver Intervention Program. Aeschlimann
also wanted to present evidence that Brittany was therefore driving while under
suspension when she went to Wal-Mart. The trial court precluded this evidence.
{¶115} “It is axiomatic that a determination as to the admissibility of evidence is a
matter within the sound discretion of the trial court. See Calderon v. Sharkey, 70 Ohio
St.2d 218, 24 O.O.3d 322, 436 N.E.2d 1008(1982). The issue of whether testimony is
relevant or irrelevant, confusing or misleading is best decided by the trial judge who is in
a significantly better position to analyze the impact of the evidence on the jury.” State v.
Taylor, 39 Ohio St.3d 162, 164, 529 N.E.2d 1382(1988).
{¶116} The relevant fact that Brittany was going somewhere that she did not
relish going was introduced at trial. The addition of the fact that she was to attend a
driver intervention program is irrelevant because it does not have the tendency to make
Stark County, Case No. 2013CA00192 43
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence. Evid.R. 101. In
addition, Evid.R. 609(A) does not provide for using a witness’s prior misdemeanor OVI
conviction (punishable by imprisonment for a period of less than one year) for
impeachment purposes. To permit evidenced of the witness’s attendance at a driver’s
intervention program would circumvent Evid.R. 609 in the case at bar.
{¶117} The trial court did permit evidence about whether Brittany was upset. (1T.
at 153; 188-189). Aeschlimann further was permitted to introduce evidence that Brittany
discussed being upset with Aeschlimann’s mother. (3T. at 752). Therefore, any error in
the trial court’s exclusion of the specific evidence Aeschlimann sought to admit was
harmless beyond a reasonable doubt.
{¶118} We find that the trial court did not abuse its discretion by excluding
reference to the driver intervention program.
{¶119} Aeschlimann next argues that he should have been permitted to introduce
evidence that Brittany had driven to Wal-Mart in violation of her driver license
suspension. This information was irrelevant because it does not have the tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence. Evid.R. 101. In
addition, the introduction of this evidence may have been a two-edged sword. The fact
that her license was under suspension may have benefitted the state. The state could
have argued that Brittany did not volunteer that she had gone to Wal-Mart when
questioned by the police because she was afraid she would be charged with driving
under suspension.
Stark County, Case No. 2013CA00192 44
{¶120} We accordingly find that the trial court did not abuse its discretion by
excluding reference to the driver license suspension.
{¶121} Aeschlimann’s fifth assignment of error is overruled.
{¶122} For the forgoing reasons, the judgment of the Court of Common Pleas,
Stark County, Ohio, is affirmed.
By Gwin, P.J., and
Farmer, J., concur
Delaney, J., dissents
Stark County, Case No. 2013CA00192 45
Delaney, J., dissenting.
{¶123} I respectfully dissent from the majority’s conclusion in ¶ 97 that the
admission of the mixed martial arts (“MMA”) testimony was harmless beyond a
reasonable doubt.
{¶124} In the instant matter, the state argued the fatal head injuries suffered by
Bri’Sean were more likely caused by Aeschilmann because he was a larger, more
physically fit person than Brittany, he engaged in MMA fighting and worked as a
corrections officer.
{¶125} MMA is a full contact combat sport that uses striking and grappling
techniques in a ring or fenced area, commonly called a “cage”. At the pre-trial stage the
state argued “the Defendant’s knowledge and expertise and training and fighting with
his hands is clearly relevant, probative evidence in this case because it makes the fact
more likely that he is the perpetrator of the offense. It shows his familiarity with
placement of blows in the back of the head or in areas - - specific areas of the body. It is
plain and simple Your Honor, highly probative evidence that is circumstantial evidence
that the jury can use in this case and should have the ability to use.” (Hearing
Transcript, p. 19-20).
{¶126} At trial, however, the experts agreed that any adult could have inflicted
the fatal blows, as noted by the majority. The state never developed in the record how
Aeschilmann’s training in this sport was relevant to Bri’Sean’s injuries. In closing
argument, the state portrayed Aeschilmann as the “fighter” and corrections officer who
was aware of his power and strength “in the ring or the cage” and in his job working with
“violent youth”.
Stark County, Case No. 2013CA00192 46
{¶127} I disagree with the majority’s conclusion the evidence of Aeschilmann’s
mixed martial arts involvement was cumulative and harmless. The trial record reflects
the state specifically relied upon this evidence in attempting to convince the jury
Aeschilmann was capable of inflicting the deadly trauma.
{¶128} Recently, courts have addressed evidentiary issues involving a
defendant’s knowledge and training in MMA. In State v. Boscarino, 2nd Dist.
Montgomery No. 25580, 2014-Ohio-1858, the court found the defendant’s status as a
licensed MMA fighter was relevant to his awareness that his punches could inflict
serious physical harm. The court cited to cases from other jurisdictions finding MMA or
boxing training can be probative of the defendant’s awareness his actions or culpable
mental state in causing injury. I would agree with this holding in cases when it is
undisputed the defendant inflicted injury but the defendant’s state of mind remains
disputed.
{¶129} However, the state agrees on appeal this case was about time, not
manner, of death. Under the circumstances herein, I would conclude that the evidence
was not offered for a legitimate purpose, and had limited probative value which is
outweighed by the danger of unfair prejudice. There were only two possible
perpetrators, Aeschilmann and Brittany. Thus, the credibility of the witnesses was key
to the case. Aeschilmann’s participation and training in MMA tempts the jury to find he
is not credible based on his participation in a violent sport, rather than the actual facts
and circumstances of the case.
Stark County, Case No. 2013CA00192 47
{¶130} For these reasons, I would sustain the third assignment of error, reverse
the judgment of the trial court and remand the matter for a new trial.