concurring in part and dissenting in part.
{¶ 128} I concur in the majority’s analysis and resolution of Blankenburg’s second, third, fifth, sixth, and seventh assignments of error. I also concur, albeit in judgment only, in the majority’s decision regarding Blankenburg’s first assignment of error. However, because I find that the trial court abused its discretion *228by admitting approximately 4,000 of the so-called child erotica photographs into evidence, I dissent in part from the majority’s decision regarding Blankenburg’s fourth assignment of error.
Blankenburg’s First Assignment of Error: The Problems of Duplicity
{¶ 129} As noted above, I concur, albeit in judgment only, with the majority’s decision regarding Blankenburg’s first assignment of error. I write separately to emphasize the potential problems of duplicity when prosecuting child sex offenses and urge our Supreme Court to provide the courts of this state with the necessary guidance.
{¶ 130} “The prohibition against duplicity is geared to protect the accused’s Sixth Amendment right to notice of the nature of the charge against him and prevent confusion as to-the basis of the verdict.” State v. Smith, 9th Dist. No. 8869, 1978 WL 215411, *1 (Oct. 4, 1978), citing United States v. Tanner, 471 F.2d 128, 139 (7th Cir.1972). Although most courts discussing the matter combine the two, see, e.g., State v. Ward, 9th App. No. 09CA009720, 2011-Ohio-518, 2011 WL 378799; State v. Ficklin, 8th Dist. No. 92228, 2009-Ohio-6103, 2009 WL 3862399, arguably, there are actually two forms of duplicity: (1) duplicity in the indictment and (2) duplicity in the charge.1
{¶ 131} Duplicity in the indictment, the more common form of duplicity, occurs when two or more distinct offenses are joined in a single count. See State v. Abuhilwa, 9th Dist. No. 16787, 1995 WL 134746, *5 (Mar. 29, 1995). Crim.R. 8(A) prohibits duplicity in indictments by requiring each offense to be separately charged. However, despite this prohibition otherwise, when two or more offenses are part of a course of criminal conduct, the offenses may be charged “in separate counts for each offense.” Such issues regarding a duplicitous indictment, although usually not labeled as such, are easily remedied through a motion to sever in a request for separate trials upon a showing of prejudice. See State v. Moshos, 12th Dist. No. CA2009-06-008, 2010-Ohio-735, 2010 WL 703242, ¶ 75-89; see also State v. Hill, 5th Dist. No. 2002-CA-00046, 2007-Ohio-56, 2007 WL 60668, ¶ 10-24.
{¶ 132} On the other hand, Blankenburg argues duplicity in the charge. Duplicity in the charge, a more theoretical and less discussed form of duplicity, exists when an indictment refers to but one criminal act when multiple acts are then introduced at trial to prove the charged offense. While many states use this term and discuss this concept, case law in Ohio provides courts with minimal *229guidance regarding this theory of duplicity. See Cooksey v. State, 359 Md. 1, 752 A.2d 606 (2000); State v. Saluter, 715 A.2d 1250 (R.I.1998); State v. Patch, 135 N.H. 127, 599 A.2d 1243 (1991); People v. Van Hoek, 200 Cal.App.3d 811, 246 Cal.Rptr. 352 (Cal.App.1988); People v. Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790, 502 N.E.2d 577 (1986).
{¶ 133} Issues regarding duplicity first appeared in Ohio in the case of Barnhouse v. State, 31 Ohio St. 39 (1876). In that case, Barnhouse was indicted and tried on a single count of incest. However, although he was charged with only one count, the evidence adduced at trial indicated that his incestuous conduct occurred continuously between 1865 and 1876. Id. at 39. The Ohio Supreme Court, upon noting that incest is a single-act crime,2 reversed Barnhouse’s conviction on the theory of duplicity by finding: “An indictment for incest which charges the criminal act [had] been committed continuously through a specified period of years, is to be regarded as charging several distinct offenses, and is bad for duplicity.” Id.
{¶ 134} In response to Bamhouse and its progeny, the General Assembly enacted a duplicitous-indictment statute now codified at R.C. 2941.28(B).3 In essence, this statute precludes the trial court from dismissing a duplicitous indictment instead of merely severing the indictment into separate counts. Unfortunately, Crim.R. 8(A) does not address any remedy for duplicity in the indictment, nor does it address the related issue of duplicity in the charge.
{¶ 135} As noted by the majority, Counts 15 through 18 charged Blankenburg with one count of gross sexual imposition, one count of corruption of a minor, and two counts of compelling prostitution against M.K., each within a specified time frame over an eight-year period. Counts 37 through 41 charged Blankenburg with five separate counts of gross sexual imposition perpetrated against B.B., each within a specified one-year time frame over a five-year period. Each count was charged as part of “an ongoing and continuing course of criminal conduct.”
{¶ 136} On its face, the indictment is sufficient to charge Blankenburg with each of the nine separate offenses as provided in Counts 15 through 18 and Counts 37 through 41, respectively. I do not take issue with the lack of specificity as to the time and date of the offenses. See State v. Wagers, 12th Dist. No. CA2009-06-018, 2010-Ohio-2311, 2010 WL 2026779, ¶ 17-18; State v. Sellards, 17 Ohio St.3d 169, 171, 478 N.E.2d 781 (1985). Nor do I find that the *230counts create issues of carbon-copy indictments as discussed in Valentine v. Konteh, 395 F.3d 626 (6th Cir.2005); and State v. Warren, 168 Ohio App.3d 288, 2006-Ohio-4104, 859 N.E.2d 998 (8th Dist.). However, while both M.K. and B.B. provided sufficient evidence to establish each specific count charged, they then testified, albeit in generalized terms, that these acts occurred numerous times within the specified time frame.4 Arguably, this creates issues regarding duplicity in the charge.
{¶ 137} The state argued that duplicity is no longer followed by courts in Ohio. I believe that State v. Jackson, 8th Dist. No. 95920, 2011-Ohio-5920, 2011 WL 5588708, a case distinguished by the majority, nevertheless stands for the proposition that duplicity is alive in Ohio. In fact, the cases cited by the majority, i.e., State v. Chaney, 3d Dist. No. 13-07-30, 2008-Ohio-3507, 2008 WL 2718509; State v. Michael, 5th Dist. No. 10AP090034, 2011-Ohio-2691, 2011 WL 2174984; State v. Bruce, 8th Dist. No. 92016, 2009-Ohio-6214, 2009 WL 4170493; and State v. Heft, 3rd Dist. No. 8-09-08, 2009-Ohio-5908, 2009 WL 3720562, address the problems caused by duplicity but do not discuss duplicity per se.
{¶ 138} Appellant’s strongest argument concerning the problem with duplicity, and more specifically duplicity in the charge, is that it allows for many criminal acts to be alleged in a single count. This creates a risk of obtaining a nonunanimous jury verdict and begs the question as to which criminal act, if any, the jury unanimously agreed upon.
{¶ 139} The most recent case from the Ohio Supreme Court to discuss jury unanimity, although not addressing duplicity specifically, is State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995. In Gardner, the Ohio Supreme Court discussed a defendant’s rights under the United States and Ohio Constitutions to receive a unanimous jury verdict where alternate means to commit a single count of aggravated burglary occurred. Admittedly, the court’s holding in Gardner is not directly on point. However, the Gardner majority also discussed whether a unanimous jury verdict was required in multiple-act cases — a theory similar to that of duplicity in the charge. Quoting the Washington Supreme Court’s decision in State v. Kitchen, 110 Wash.2d 403, 756 P.2d 105 (1988), the majority in Gardner stated:
In multiple acts cases * * * several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as *231to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts eases, we require that either the state elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt.
Id. at ¶ 50.
{¶ 140} In Kitchen, a case involving multiple acts spread over several different locations, the Washington Supreme Court found that the state had failed to elect the particular criminal act it would rely upon for a conviction and that the trial court had failed to properly instruct the jury on unanimity. While the court found that this was error, it nevertheless determined that if there was no conflicting testimony regarding the details of the multiple acts so that the jury could not have entertained reasonable doubt as to one or more of those acts, the error would be harmless. However, because the multiple acts presented in Kitchen involved different locations that could have allowed some jurors to make a finding of guilt based on acts that occurred at one location while other jurors could have found guilt based on acts occurring at a different location, the Washington Supreme Court found that the jury could have entertained reasonable doubt as to which of the alleged acts actually occurred.
{¶ 141} In the case at bar, B.B. and M.K. provided specific testimony of a single sex act regarding each of the nine separate offenses charged in Counts 15 through 18 and Counts 37 through 41, respectively. B.B. and M.K. then testified that the specific sex act occurred numerous times within the charged time frame. There is no conflicting testimony regarding these specific acts but, instead, generalized testimony by each of the two victims. In turn, because the testimony provided by B.B. and M.K. regarding the multiple sex acts was generalized and vague when compared to their previous specific testimony, I find that the jury could not have entertained reasonable doubt as to which of the alleged acts actually occurred.5
{¶ 142} The same analysis would occur concerning double jeopardy in that the multiple acts do not have any specificity allowing for future indictments. For example, in Heft, a case upon which the majority relies, Heft argued that his indictment charging him with rape, sexual battery, and two counts of gross sexual imposition failed to protect him from future prosecution because it was “unascertainable from the face of the indictment whether only two acts of gross sexual imposition were alleged, or whether the State was relying on testimony about *232many more acts, and merging these instances into one act during each time period.” Heft, 2009-Ohio-5908, 2009 WL 3720562 at ¶ 51. In finding that the indictment protected Heft against double jeopardy, the Third District Court of Appeals found that the indictment “differentiated the counts by the type of offense alleged and the time period.” Id. at ¶ 58. I find that the same can be said here, thereby alleviating any double jeopardy concerns.6
{¶ 143} In light of the foregoing, I base my concurring opinion to Blankenburg’s first assignment of error on the rationale of Gardner and Kitchen. I realize that the discussion of multiple offenses in Gardner may be considered obiter dicta and not stare decisis. However, I find that the dicta presented by Gardner, which quotes Kitchen, sheds some light on how the majority of our highest court might rule on issues of duplicity. Moreover, while I find the Gardner discussion beyond its holding persuasive, I believe that the Maryland Supreme Court provides an excellent discussion of duplicity and the problems it creates in Cooksey. Therefore, I believe that Gardner should be revisited with the concept of duplicity in mind and in light of Cooksey rather than Kitchen so that the court can specifically address the issues regarding duplicity in order to provide the courts of this state with the necessary guidance.7
{¶ 144} Where I part ways with the majority, with the arguments presented by the state, and with some of the case law that they rely upon, e.g., State v. Yaacov, 8th Dist. No. 86674, 2006-Ohio-5321, 2006 WL 2902794; and State v. Ambrosia, 67 Ohio App.3d 552, 587 N.E.2d 892 (6th Dist.1990), is the premise supporting their conclusion — sex offenses can be brought as continuing-course-of-conduct crimes. This premise is contrary to the law in Ohio, detracts from the analysis of duplicity, and minimizes, if not compounds, the potentially deleterious effect of duplicity and multiple offenses within each charge.
{¶ 145} Although some courts assume otherwise without any discussion, see Heft, 2009-Ohio-5908, 2009 WL 3720562 at ¶ 63, sex offenses do not permit a continuing-course-of-conduct charge.8 See Lafave, Isreal, King & Kerr, Criminal *233Procedure (3d Ed.2007), Section 19.3(c). Nearly every state that has addressed this issue has ruled that sex offenses by their very nature are single-act crimes requiring the legislature to amend the statutory framework to allow for prosecution under a continuing course of conduct. See Cooksey, 359 Md. 1, 752 A.2d 606; Saluter, 715 A.2d 1250; Patch, 135 N.H. 127, 599 A.2d 1243; Van Hoek, 200 Cal.App.3d 811, 246 Cal.Rptr. 352; Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790, 502 N.E.2d 577. For this court to construe sex offenses as something other than single-act crimes would be to infringe upon the legislature’s ability to amend and revise the law as it sees fit. See, e.g., State v. Phillips, 12th Dist. No. CA200903-001, 2010-Ohio-2711, 2010 WL 2373150 (finding that defendant could not be charged for multiple offenses under a single theft count unless facts demonstrate a course of continuing conduct as provided for by the legislature).
{¶ 146} The General Assembly has expressly provided for numerous continuing-course-of-conduct crimes. E.g., R.C. 2913.61 (theft offenses), 2923.23(A) (engaging in “pattern of corrupt activity”), 2903.15(A) (permitting child abuse “for a prolonged period”), 2903.211(A) (menacing by stalking by “engaging in a pattern of conduct”), and 2919.22(B) (endangering children by parties who “repeatedly administer unwarranted disciplinary measures”). However, no such language expressly or implicitly indicates that the offenses charged in this case can be brought as continuing-course-of-conduct crimes. The General Assembly has specifically stated that no conduct constitutes a criminal offense against the state unless it is defined as an offense in the Ohio Revised Code. R.C. 2901.03(A). Therefore, as it relates to Blankenburg’s first assignment of error, I concur in judgment only.9
Blankenburg’s Fourth Assignment of Error: Admitting 4,000 Photographs at Trial
{¶ 147} Although I believe it shows intent as opposed to motive, I agree with the majority’s analysis and resolution of Blankenburg’s fourth assignment of error as it relates to their decision that the photographs taken from Blankenburg’s home constitute admissible other-acts evidence under Evid.R. 404(B). *234However, because I find that the trial court abused its discretion by admitting approximately 4,000 of the so-called child-erotica photographs into evidence, I must dissent in part.
{¶ 148} Initially, I find it necessary to note that although the state removed tens of thousands of so-called child-erotica photographs from Blankenburg’s home, nothing in the record indicates how many of those photographs came from the basement common area as opposed to those photographs that were removed from a bedroom containing Blankenburg’s personal effects. Both Blankenburg and his brother took photographs during various local male youth sporting events over a period of several years. It is undisputed that Blankenburg shared the home not only with his brother, but also with their father. In turn, although the record contains some evidence that would allow one to infer that Blankenburg possessed a portion of the photographs taken from his home, without a more concrete record, I find that an issue remains as to how many of those photographs should be directly attributed to him.
{¶ 149} That said, while I agree with the majority’s decision that the photographs taken from his home constituted otherwise admissible other-acts evidence, I find that the introduction of approximately 4,000 of these photographs depicting teenage boys spanning numerous boxes and binders went well beyond that which could be construed as merely showcasing Blankenburg’s sexual motivation or intent. Instead, by admitting such an overpowering number of photographs in conjunction with the compelling testimony of Dr. Sharon Cooper, the state’s expert witness on “child erotica,” the trial court essentially allowed the state to introduce inadmissible character evidence indicating that Blankenburg had a propensity for young boys so pervasive that it rose to the level of a repulsive perversion. See State v. Woodard, 68 Ohio St.3d 70, 73, 623 N.E.2d 75 (1993), (evidence of other acts inadmissible to show criminal propensity); State v. Buchanan, 12th Dist. No. CA2008-04-001, 2009-Ohio-6042, 2009 WL 3808519, ¶ 57; State v. Meador, 12th Dist. No. CA2008-03-042, 2009-Ohio-2195, 2009 WL 1278439, ¶ 75; see also Evid.R. 404(A). When taken together, this evidence would inflame even the most passive of jurors.10 As Weissenberger explained in his treatise on Ohio Evidence:
[Extrinsic-act evidence is excluded] not because it has no appreciable probative value, but because it has too much. The natural and inevitable tendency of the *235tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take proof of it as justifying a condemnation irrespective of guilt of the present charge.
Weissenberger’s Ohio Evidence Treatise (2011), Section 404.22, at 73, quoting 1A Wigmore, Section 58.2.
{¶ 150} The state argues, and the majority seems to agree, that the trial court showed great restraint in its decision admitting only 4,000, or merely 10 percent, of the nearly 40,000 photographs taken from Blankenburg’s home. In essence, the majority seems to believe that because it could have been worse, the trial court somehow did not abuse its discretion. However, Evid.R. 403(A), which makes exclusion mandatory when the probative value of relevant evidence is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury, deals with evidence that actually was introduced as opposed to that which merely could have been. I know of no case that has construed Evid.R. 403(A) based upon the percentage of what could have been introduced. To take into account what could have been, not what actually was, circumvents the clear meaning of Evid.R. 403(A) and 404(A).
{¶ 151} The majority also cites State v. DePew, 38 Ohio St.3d 275, 528 N.E.2d 542 (1988), for the proposition that in the absence of gruesomeness or shock value, it is difficult to imagine how the sheer number of photographs could prejudice the accused. However, the photographs admitted in DePew went to a central issue of the case, namely, the cause of death in a capital murder trial. In this case, the 4,000 photographs went to the otherwise extrinsic issue of Blankenburg’s motive or intent that was otherwise admissible other-acts evidence under Evid.R. 404(B). The DePew case is therefore clearly distinguishable from the case at bar.
{¶ 152} After reviewing the record, I am not convinced that such an extraordinarily grandiose display was necessary to accurately portray Blankenburg’s sexual motivation or intent. While such a question simply cannot be answered with a bright-line test, should not 100 photographs emphasizing the buttocks and groin area of teenage boys been sufficient? If not 100, then 200? Or possibly even 400? I am unwilling to trudge down such a slippery slope here. The probative value garnered from of the admission of approximately 4,000 so-called child erotica photographs depicting teenage boys in various positions and states of undress pales in comparison to the substantial danger of unfair prejudice to the accused.11 See State v. Ford, 12th Dist. No. CA2009-01-039, 2009-Ohio-6046, *2362009 WL 3808374, ¶ 37 (“even if the evidence meets the prerequisites of Evid.R. 404(B), it may still be excluded under Evid.R. 403(A) if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, or misleading the jury”). Therefore, because this error cannot simply be classified as harmless, due to the substantial danger that the admission of these photographs in conjunction with Dr. Cooper’s testimony convinced the jury that Blankenburg deserved to be punished regardless of whether he actually committed the crimes charged, I find that the trial court abused its discretion by admitting all of the approximately 4,000 photographs into evidence and would sustain Blankenburg’s fourth assignment of error.
{¶ 153} As I discussed in my dissent in Sears v. State, 12th Dist. No. CA200807-068, 2009-Ohio-3541, 2009 WL 2140032, alleged child-victim sex offenders make poor exemplars for the protections of the law. Nevertheless, we are required to ensure that all trials are fair and supported by the rule of law. That did not happen here. Therefore, based on the above analysis, I dissent in part from the majority’s decision regarding Blankenburg’s fourth assignment of error.
{¶ 154} In light of the foregoing, I concur, albeit in judgment only, with the majority’s decision regarding Blankenburg’s first assignment of error. I dissent in part from the majority’s decision regarding Blankenburg’s fourth assignment of error.
. Blankenburg raises the concept of two distinct types of duplicity. While I have found no recognition of the distinction in Ohio, I believe the distinction is valid. However, as I will discuss below, based upon the current state of the law in Ohio, this distinction may prove to be academic only.
. As discussed below, a premise accepted by a majority is that sex crimes can be considered either single-act crimes or continuing-course-of-conduct crimes depending on the situation presented.
. Issues as to whether this statute has been superseded by Crim.R. 8(A) are not before this court, and therefore, I will not address those issues here.
. This court recently held that generalized testimony demonstrating “a continuing course of conduct of repeated acts of digital penetration, fellatio, cunnilingus, oral sex, and vaginal intercourse” was sufficient to support a conviction for one count of rape and two counts of sexual battery. See State v. Scott, 12th Dist. No. CA2011-02-003, 2011-Ohio-6534, 2011 WL 6382540, ¶ 79. The issue of duplicity and continuing course of conduct in sex crimes was not raised or addressed by this court in that case.
. I realize that the Washington Supreme Court's analysis in Kitchen differs from the analysis of the highest state courts in Maryland, Rhode Island, and New York. See Cooksey v. State, 359 Md. 1, 752 A.2d 606 (2000); State v. Saluter, 715 A.2d 1250 (R.I.1998); People v. Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790, 502 N.E.2d 577 (1986).
. A more problematic issue surrounding duplicity in this case is the fact that multiple offenses addressed in each separate count bring up the issue of prior bad acts or other acts and potential violation of Evid.R. 403 and 404(A). However, this issue was not specifically raised on appeal, and therefore, I will not address it here.
. The Ohio Supreme Court’s decision in Gardner has been construed as nonbinding on Ohio courts because a majority of the court did not concur with the analysis. See State v. Ward., 9th Dist. No. 09CA009720, 2011-Ohio-518, 2011 WL 378799, ¶ 6. This is but one more reason why the issue of duplicity and multiple offenses needs to be clarified.
. The term “continuing course of conduct” occurs in two other areas of criminal law: (1) venue under R.C. 2901.12(H) where the crime and/or the offender is mobile, and (2) Crim.R. 8(A), to permit criteria for consolidation of separate charges. Neither use of the term is an *233indication that the General Assembly or the Ohio Supreme Court intends single-act crimes to be charged as a continuing course of conduct.
. I realize that the only alternative in lieu of charging under the theory of a continuous course of conduct is to either forgo testimony of all but one of the multiple acts in each count or charge the numerous acts as separate counts. The former may deny the state's ability to seek justice, and the latter may create notice issues under cases adopting Valentine v. Konteh, 395 F.3d 626 (6th Cir.2005). See State v. Rice, 8th Dist. No. 82547, 2005-Ohio-3393, 2005 WL 1541007; State v. Hemphill, 8th Dist. No. 85432, 2005-Ohio-3726, 2005 WL 1706995; State v. Warren, 168 Ohio App.3d 288, 2006-Ohio-4104, 859 N.E.2d 998 (8th Dist.). This problem should be corrected by the legislature and not the courts.
. As Dr. Cooper testified, "child erotica,” such as the pictures taken from Blankenburg’s home, "serves as a source of sexual fantasy,” or "specific source of sexual gratification,” for an individual who has a "preferential interest in children.” Dr. Cooper then went through numerous photographs taken from Blankenburg’s home, specifically calling the jury’s attention to the children’s buttocks, genitalia, and in one instance, the position of the child’s "hands over his genitalia, as one might see when a person is masturbating.”
. As to the charges of gross sexual imposition, pursuant to R.C. 2907.05(E), evidence of specific instances of a defendant's "sexual activity” is admissible in certain circumstances *236where “the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.” (Emphasis added.) If possession of so-called child erotica and its purpose as explained by the states expert can be construed as “sexual activity,” then all that need be shown is that the inflammatory nature of the evidence merely "outweighs” rather than “substantially outweighs” the probative value as required by Evid.R. 403(A).