State v. Wegmann, 2008 WL 434981 (Ohio Ct. App. Feb. 19, 2008)

Here, the trial court essentially found that a chicken was not substantially similar to human tissue to warrant admittance of the test results and photos. We agree with Wegmann that, based upon Brundage's explanation, a specific area of the chicken probably is substantially similar to a human cheek and that any dissimilarities would go to the weight of the evidence rather than the admissibility. However, dissimilarity was not the trial court's sole reason for the exclusion of the testing. The trial court also noted that the testing was not reliable based on the Miller and Daubert factors. A review of the record indicates that Wegmann did not address any of the four Miller factors in attempting to establish the reliability of the testing. While it is not a requirement that all four factors be met, the record is completely devoid of any evidence presented to demonstrate that testing on animals in order to duplicate human flesh wounds is a tested theory, is a technique that has been subjected to peer review, has a known or potential rate of error and, if so, what the rate of error is, or is a technique that has gained general acceptance in the field of ballistics. See, e.g., Miller, supra (expert's testing on football [**33] helmet admissible where evidence presented that the testing was conducted according to national operating standards and that publications supported expert's theory); State v. Harvey (1997), 11th Dist. No. 95-L-192, 1997 Ohio App. LEXIS 1791, 1997 WL 269195 (while not directly at issue, ballistics expert's testing on blocks of ordnance gelatin admissible where substance also used by army to test performance characteristics of projectiles); Roberts v. State (Fla. App. 1966), 189 So.2d 543 (ballistics expert's testing on manila paper not admissible where expert admitted that paper not sufficiently similar to human skin). Thus, we find that the trial court did not abuse its discretion in excluding both Brundage's testimony about the testing and the accompanying photos.