[Cite as State v. Mabberly,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee/Cross- : Appellate Case No. 27729 Appellant : : Trial Court Case No. 2016-CR-2397 v. : : (Criminal Appeal from JERRY A. MABBERLY : Common Pleas Court) : Defendant-Appellant/Cross- : Appellee

...........

OPINION

Rendered on the 15th day of March, 2019.

...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee/Cross-Appellant

BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 371 West First Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant/Cross-Appellee

JOHN K. CARROLL, Atty. Reg. No. 0002288, 4 Times Square, Suite 39-336, New York, New York 10013 Attorney for Amicus Curiae, The Innocence Project, Inc.

ALEXIS AGATHOCLEOUS, Atty. Reg. No. 0002298, 40 Worth Street, Suite 701, New -2-

York, New York 10013 Attorney for Amici Curiae, The Innocence Project, Inc., The Innocence Network, and The Ohio Innocence Project

ELIZABETH BERRY, Atty. Reg. No. 0095524, 1255 New Hampshire Avenue, Apartment 832, Washington, D.C. 20036 Attorney for Amicus Curiae, The Innocence Project, Inc.

.............

TUCKER, J.

{¶ 1} Defendant-appellant, Jerry A. Mabberly, appeals from his convictions for four

counts of rape of a person under 13 years of age, first degree felonies pursuant to R.C.

2907.02(A)(1)(b) and (B), and two counts of unlawful sexual conduct with a minor, third

degree felonies pursuant to R.C. 2907.04(A) and (B)(3). Raising five assignments of

error, Mabberly argues that his convictions should be reversed because the trial court

overruled his motion for acquittal under Crim.R. 29(A) in the absence of evidence

sufficient to prove his guilt; because the jury found him guilty contrary to the weight of the

evidence; because his defense counsel rendered ineffective assistance by failing to

object to testimony offered by an expert witness pertaining to the victim’s credibility, and

again by failing to object to certain remarks made by the State during voir dire; and

because the trial court purportedly referred to the charges against him in its instructions

to the jury as established facts, rather than as unproven allegations, thereby implying his

guilt.

{¶ 2} We find that the State introduced sufficient evidence to prove that Mabberly

committed the charged offenses and that the jury did not clearly lose its way by returning

verdicts of guilty in reliance on that evidence. We find further that Mabberly’s defense

counsel did not render ineffective assistance, and that the trial court did not refer to the -3-

charges against Mabberly in its instructions to the jury such that Mabberly’s guilt was

implied. Therefore, Mabberly’s convictions are affirmed.

{¶ 3} The State raises a single cross-assignment of error in which it argues that

the trial court abused its discretion by delivering an instruction to the jury regarding the

limits of human memory. Although the basic principle articulated by the trial court may

have been valid, we hold that the instruction as delivered arbitrarily incorporated critical

concepts without defining them and effectively advised jurors to mistrust witnesses’

recollections, rather than neutrally cautioning jurors that witnesses’ memories can be

inaccurate. By delivering the instruction and also allowing Mabberly to present expert

testimony on the same subject, the trial court additionally risked giving jurors the

impression that they should accept the expert’s testimony as true, as opposed to

determining for themselves whether, and to what extent, to credit the expert.

I. Facts and Procedural History

{¶ 4} On November 2, 2016, a Montgomery County grand jury issued an

indictment against Mabberly charging him with seven violations of R.C. Chapter 2907.

Counts 1 and 2 of the indictment charged Mabberly with unlawful sexual conduct with a

minor, in violation of R.C. 2907.04(A), and Counts 3 through 7 of the indictment charged

Mabberly with rape of a person under 13 years of age, in violation of R.C.

2907.02(A)(1)(b). The victim of these offenses was the daughter of Mabberly’s former

girlfriend.

{¶ 5} With Mabberly’s trial date approaching, the trial court submitted its proposed

jury instructions to the parties for their review on May 1, 2017. State’s Motion in Limine

Regarding Jury Instructions 1, May 3, 2017. The proposed instructions included a -4-

nonstandard component, drafted by the trial court, directed to the limitations and potential

inaccuracy of human memory. See Transcript of Proceedings 13:3-15:13.1 Two days

later, the State filed a motion in limine objecting to that portion of the proposed instruction.

{¶ 6} At a hearing on May 5, 2017, the trial court indicated that it would use the

instruction over the State’s objection and expressed its intention to call an expert as the

court’s witness to testify on the subject of memory during Mabberly’s trial. See id. at

19:15-20:3. The State then filed a pair of motions on August 1, 2017, objecting in the

first to the prospect of the court’s witness testifying at the trial, and requesting in the

second that the court not question the witness under any circumstances. On August 3,

2017, the court overruled the first of the motions as moot, noting that it had reversed

course and already “assured [the parties] that [it], * * *, would not call [the witness] at trial,”

and on August 8, 2017, it overruled the second.

{¶ 7} The trial court thus convened a somewhat unconventional deposition on

August 16, 2017, for the purpose of consulting Dr. Craig Stark, a psychologist with

expertise in the neuroscience of memory, about the text of the instruction. With the State

and the defense present, along with Mabberly himself, the court examined Dr. Stark and

afterward allowed the State and the defense to pose questions of their own. See id. at

58:2-58:19 and 87:9-118:17. Dr. Stark characterized the content of the instruction as

scientifically accurate. See id. at 69:14-69:15 and 80:1-80:13.

{¶ 8} Mabberly’s case proceeded to trial on August 21, 2017. Over the State’s

1 The transcript referred to in this opinion as the “Transcript of Proceedings” comprises motion hearings held on May 5, 2017; a pretrial conference held on August 9, 2017; and a deposition held on August 16, 2017. Transcript of Proceedings 66:9-67:5. -5-

reiterated objection, the trial court included the challenged discussion of memory in its

preliminary instructions to the jury. 2 Trial Transcript 182:21-183:13. At the State’s

request, the court entered a nolle prosequi with respect to Count 6 on August 23, 2017,

and on August 24, 2017, the jury returned verdicts of guilty on the remaining charges.3

The court filed a judgment entry on September 14, 2017, reflecting Mabberly’s aggregate

sentence of 40 years to life, with 30 years being mandatory. Mabberly timely filed a

notice of appeal on September 19, 2017, followed by the State’s notice of cross-appeal

on October 13, 2017.

II. Analysis

{¶ 9} We address Mabberly’s first and second assignments of error together

because they are closely related. For his first assignment of error, Mabberly contends

that:

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

RULE 29 MOTION AS TO EACH COUNT IN THE INDICTMENT.

And for his second assignment of error, Mabberly contends that:

APPELLANT’S CONVICTIONS WERE ENTERED AGAINST THE

WEIGHT OF THE EVIDENCE.

{¶ 10} Mabberly argues in his first assignment that the trial court erred by

2 The trial court delivered the bulk of its jury instructions before the parties presented their cases; the memory instruction was therefore not repeated at the close of evidence. Trial Transcript 859:22-872:20 and 926:15-934:13. 3 The counts were renumbered for trial. Counts 1 and 2 of the indictment were respectively renumbered as Counts 5 and 6, and Counts 3-5 and 7 of the indictment were respectively renumbered as Counts 1-3 and 4. -6-

overruling his motion for acquittal under Crim.R. 29, though he acknowledges the

absence of any reference in the record to such a motion. Appellant’s Br. 3-6. In his

second assignment, he argues that the jury clearly lost its way in evaluating the evidence

and, as a result, returned verdicts that constitute a miscarriage of justice. See id. at 6-7.

{¶ 11} An appellate court reviews a trial court’s ruling on a motion under Crim.R.

29 by the same standard applicable to a claim based on the sufficiency of the evidence.

State v. Scott,

,

(2d Dist.), citing State v. Bailey, 2d

Dist. Montgomery No. 27177,

. Sufficiency of the evidence “is the

legal standard applied to determine whether * * * the evidence [in a given case] is

[adequate] as a matter of law to support the jury[’s] verdict.” State v. Smith,

,

(1997), citing State v. Thompkins,

,

(1997). On review of a challenge to a conviction based on the sufficiency

of the evidence, the “ ‘relevant inquiry is whether, after viewing the evidence in a light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.’ ”

quoting State v. Jenks,

,

(1991), paragraph two of the syllabus.

{¶ 12} By contrast, in a challenge based on the weight of the evidence, an

“appellate court acts as a ‘thirteenth juror.’ ” State v. Jackson,

,

, ¶ 49 (2d Dist.), quoting

. The appellate court must

therefore review the record; weigh the evidence and all reasonable inferences; consider

the credibility of witnesses; and determine whether in resolving conflicts in the evidence,

the jury clearly lost its way and created a manifest miscarriage of justice warranting a new

trial.

, citing State v. Martin,

,

-7-

(1st Dist. 1983); State v. Hill, 2d Dist. Montgomery No. 25172,

. A

conviction “should be reversed as being against the manifest weight of the evidence ‘only

in the exceptional case in which the evidence weighs heavily against the conviction.’ ”

See Hill at ¶ 8, quoting

.

{¶ 13} Although the appellate court “must defer to the factfinder’s decisions

whether, and to what extent, to credit the testimony of particular witnesses,” the court

“may determine which of several competing inferences suggested by the evidence should

be preferred.” (Citation omitted.) State v. Cochran, 2d Dist. Montgomery No. 27023,

. A determination that a conviction is supported by the manifest

weight of the evidence is also dispositive of the issue of the sufficiency of the evidence

because “a finding that a conviction is supported by the manifest weight of the evidence

necessarily includes a finding of sufficiency.” (Citation omitted.) State v. McCrary, 10th

Dist. Franklin No. 10AP-881,

, ¶ 11; State v. Miller, 2d Dist. Montgomery

No. 25504,

, citing McCrary at ¶ 11.

{¶ 14} As Mabberly concedes, the record includes no reference to a motion for

acquittal, and we find accordingly that Mabberly’s first assignment of error is not

supported by the record and is overruled. 4 We turn, then, to Mabberly’s second

assignment of error.

4 The State seems to assume that Mabberly did move for acquittal, although such a motion does not appear in the record. Appellee’s Br. 5-11. Mabberly contends in a footnote that in the absence of a motion for acquittal, his defense counsel failed to provide effective assistance. Appellant’s Br. 3 fn.4. Yet, our finding that the jury’s verdicts were not contrary to the weight of the evidence “necessarily includes a finding of sufficiency,” meaning that Mabberly could not have established that he was prejudiced by counsel’s omission of a motion for acquittal on his behalf. Miller at ¶ 48. -8-

{¶ 15} To prove that Mabberly committed rape of a person under 13 years of age,

the State had to present evidence showing that: (1) the victim was not his spouse, or the

victim was his spouse but did not reside with him; (2) Mabberly engaged in sexual conduct

with the victim;5 and (3) at the time the sexual conduct occurred, the victim was under 13

years of age, whether or not Mabberly knew as much. See R.C. 2907.02(A)(1)(b). With

respect to the first element, the State did not prove expressly that Mabberly and the victim

were never married, yet the victim testified that she and Mabberly had made plans to

marry once she reached 16 years of age and could be emancipated. Trial Transcript

472:1-472:11. This testimony allowed the jury to infer reasonably that Mabberly and the

victim were not married at the time of the offenses charged in the indictment. Compare

with In re Brown, 4th Dist. Ross No. 94 CA 2056,

, *4 (June 2, 1995).

With respect to the second element, the victim testified that Mabberly engaged in sexual

conduct with her on numerous occasions, and with respect to the third element, the

victim’s testimony demonstrated that many of these incidents occurred before her

thirteenth birthday. Trial Transcript at 445:6-445:10, 464:21-465:23 and 472:15-482:22.

Despite the victim’s uncertainty about the exact dates on which most of the sexual

conduct occurred, her testimony established that at least four distinct incidents of sexual

conduct occurred before she reached 13 years of age.

{¶ 16} To prove that Mabberly violated R.C. 2907.04(A) (unlawful sexual conduct

5 R.C. 2901.01(A) defines the term “[s]exual conduct” as “vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another.” -9-

with a minor), the State had to present evidence showing that: (1) Mabberly engaged in

sexual conduct with the victim; (2) the victim was not his spouse when the sexual conduct

occurred; (3) Mabberly was 18 years of age or older at the time; (4) the victim was 13

years of age or older, but under 16 years of age; and (5) Mabberly knew the victim’s age

or was reckless in that regard. With respect to the first and second elements, the victim

testified that Mabberly repeatedly engaged in sexual conduct with her, and as noted, her

testimony supported a reasonable inference that she and Mabberly were not married.

See Trial Transcript 472:1-472:11 and 485:25-491:19. With respect to the third element,

an officer with the City of Riverside Police Department testified to Mabberly’s date of birth,

which indicated that Mabberly was over 18 years of age at all relevant times, and with

respect to the fourth element, the victim’s testimony showed that she was over 13, but

under 16, during several incidents of sexual conduct. See id. at 445:6-445:10, 487:15-

491:19 and 746:19-746:21. With respect to the fifth element, the State did not introduce

evidence specifically directed to Mabberly’s knowledge, although the combined testimony

of the victim and her mother provided the jury with ample support for the reasonable

inference that Mabberly knew or recklessly disregarded the victim’s age—for instance,

the victim and her mother testified that Mabberly accompanied the victim to a dance held

at her middle school. See id. at 445:6-445:10, 481:3-483:3 and 658:22-659:25.

{¶ 17} The State also presented the testimony of a psychologist who specializes

in providing therapy “to children who’ve experienced trauma or who have disclosed sexual

abuse,” and the testimony of a gynecologist who examined the victim in connection with

the allegations against Mabberly. Id. at 251:21-252:16 and 333:7-335:1. In her

testimony, the psychologist discussed her therapeutic assessment of the victim’s -10-

emotional well-being, her treatment of the victim, the reasons that children often delay in

reporting sexual abuse, and briefly, the susceptibility of memory to alteration over time,

though she ultimately offered no opinion regarding the truth of the victim’s testimony.

See id. at 259:16-260:25, 262:17-263:13, 272:4-273:16 and 285:12-288:13. The

gynecologist testified that her examination of the victim did not permit her to determine

conclusively whether the victim had previously engaged in vaginal intercourse. Id. at

336:24-339:21. Additionally, the State called the victim’s mother, who testified that after

she and Mabberly discontinued their romantic relationship, Mabberly refused her

repeated demands to stop contacting the victim. See id. at 657:5-658:6, 666:22-670:16,

675:3-679:17 and 681:3-682:13.

{¶ 18} In response to the State’s evidence, Mabberly called a clinical and forensic

psychologist to testify about the reliability of the investigatory interviews of the victim, with

a particular emphasis on appropriate forensic interviewing techniques, along with the

limitations of memory and its susceptibility to external influences. See id. at 352:25-

353:6, 363:1-363:6, 364:12-366:20, 373:13-377:5 and 380:12-388:5. The witness

expressed his concern that the victim’s account of events during such investigatory

interviews suggested the possibility that “there might [have] be[en] * * * some external

influences on what she had to say.” Id. at 391:6-391:18. Among other reasons, the

witness noted that certain of the victim’s statements “were actually quite vague.” Id. at

391:9-391:11. Similarly, Mabberly’s counsel sought to cast doubt on the accuracy of the

victim’s allegations by attempting to illustrate supposed gaps and inconsistencies in her

recollections, including her description of Mabberly’s genital organs. See id. at 611:20-

634:1. As well, Mabberly presented the testimony of four character witnesses, including -11-

his mother; his son; the victim’s aunt, who was romantically involved with his son; and a

neighbor who lived next to the victim and her mother.

{¶ 19} On this record, we cannot conclude that the jury clearly lost its way in finding

Mabberly guilty of rape of a person under 13 years of age and guilty of unlawful sexual

conduct with a minor. The State adduced prima facie evidence of each of the elements

of the offenses, and the collective testimony of the expert and character witnesses—the

State’s and Mabberly’s alike—did not suffice to prove or to disprove the allegations

against Mabberly. As a result, the jury essentially had to decide whether the victim’s

allegations were credible, and the record provides no indication that the jury’s decision to

credit the victim’s testimony was unreasonable or unfounded. Mabberly’s second

assignment of error is overruled.

{¶ 20} Mabberly’s third and fourth assignments of error are also closely related, so

we address them together, as well. For his third assignment of error, Mabberly contends

that:

TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO

THE STATE’S EXPERT TESTIFYING [sic] TO THE DIAGNOSIS AND

TREATMENT OF THE ALLEGED VICTIM.

And for his fourth assignment of error, Mabberly contends that:

TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO

THE STATE REFERENCING [sic] THE FACTS OF THE CASE IN VOIR

DIRE.

{¶ 21} Mabberly argues in his third assignment that his defense counsel should

have objected when the psychologist called by the State as an expert witness described -12-

her diagnosis and treatment of the victim; according to Mabberly, the psychologist thereby

vouched for the victim’s credibility. In his fourth assignment, Mabberly argues that the

State improperly “outlined essentially all of the facts of the upcoming case” during voir

dire. Appellant’s Br. 15.

{¶ 22} To prevail on a claim of “ineffective assistance of counsel, a defendant must

satisfy the two-pronged test in Strickland v. Washington,

,

,

(1984).” State v. Cardenas,

,

, ¶ 38

(2d Dist.). The Strickland test requires a showing that: “(1) defense counsel’s

performance was so deficient that [it did not fulfill the right to assistance of counsel]

guaranteed under the Sixth Amendment to the United States Constitution; and (2) * * *

defense counsel’s errors prejudiced the defendant.”

citing

.

Judicial “scrutiny of counsel’s performance must be highly deferential,” so “a [reviewing]

court must indulge a strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance * * *.”

, citing Michel v. Louisiana,

,

,

(1955). To show prejudice, a defendant

bears the burden to demonstrate “a reasonable probability that, but for counsel’s

unprofessional errors, the result of [a given] proceeding would have been different.” Id.

at 694; State v. Southern, 2d Dist. Montgomery No. 27932,

. A

failure “to make either showing defeats” the claim. Cardenas at ¶ 38.

{¶ 23} Regarding Mabberly’s third assignment of error, an expert witness may not

offer a direct opinion on whether a child is telling the truth. (Citation omitted.) State v.

Rosas, 2d Dist. Montgomery No. 22424,

. Nevertheless, the “rules

of evidence permit an expert to offer an opinion on an ultimate issue,” and “this includes -13-

a psychologist’s expert opinion on whether a * * * child was sexually abused.”

citing

State v. Stowers,

,

(1998). An expert, then, may

not testify about the truthfulness of a child’s statements, but an expert may offer testimony

that constitutes “additional support for the truth of the facts testified to by the child, or

[otherwise] assists the [jury] in assessing the child’s veracity.” (Emphasis omitted.) See

; see also Rosas at ¶ 42.

{¶ 24} In her testimony, the State’s expert psychologist carefully avoided

expressing a direct opinion on the truthfulness of the victim’s statements. The

psychologist, instead, testified to her diagnosis and treatment of the victim, noting among

other things that the victim did “not present as traumatized by the events that have

occurred.” Trial Transcript 276:24-277:3. Mabberly complains that in the absence of

physiological evidence confirming that the victim suffered sexual abuse, the

psychologist’s testimony was impermissibly based solely on statements made to her by

the victim. Yet, we have “held that only expert testimony directly commenting on [a]

child’s veracity is improper, and that testimony indirectly bolstering a child’s credibility is

permissible,” even if the testimony is offered in the absence of corroborating physiological

evidence. (Emphasis added.) See State v. Jones,

,

,

¶ 97 (2d Dist.).6

{¶ 25} The psychologist gave her most potentially objectionable testimony on

cross-examination. After the psychologist observed that the precise details of the sexual

6 In support of his argument, Mabberly relies primarily on the decision of the Eighth District Court of Appeals in State v. Knight, 8th Dist. Cuyahoga No. 87737, 2006-Ohio- 6437, though this court has expressly declined to follow that decision. Compare Appellant’s Br. 7-9, with State v. Jones,

,

, ¶ 97 (2d Dist.). -14-

abuse were not “really important” for purposes of her treatment of the victim, Mabberly’s

counsel asked whether the truth of the victim’s allegations would “really make [any]

difference” at all, to which the psychologist answered that “if [the sexual abuse] truly didn’t

happen[,] then [she and the victim] would have a bigger issue to be discussing in therapy.”

Trial Transcript 299:11-300:4. This remark borders on impermissible, but inasmuch as

the psychologist gave a hypothetical answer to a hypothetical question, she did not

directly comment on the truth of any statement made by the victim.

{¶ 26} Moreover, the psychologist made the remark while being cross-examined,

specifically in the midst of an exchange during which Mabberly’s counsel sought to

convince the jury that the psychologist’s diagnosis and treatment of the victim should not

be perceived as circumstantial validation of the victim’s allegations; this line of questioning

invited the remark. See id. at 297:21-300:10. For that matter, even if the psychologist

indirectly indicated that she believed the victim, she simultaneously conceded the

possibility that the victim had been deceiving her. This hardly qualifies as a direct

comment on the victim’s veracity.

{¶ 27} We find that the psychologist’s testimony was not inadmissible, and by

extension, that the trial court would not have erred by overruling an objection to the

testimony. Consequently, Mabberly cannot demonstrate that he suffered prejudice in

the absence of an objection, and he therefore has not established that counsel rendered

ineffective assistance in this respect. Mabberly’s third assignment of error is overruled.

{¶ 28} Regarding Mabberly’s fourth assignment of error, although “fairness

requires that jurors be impartial, prospective jurors need not be totally ignorant of the facts

and issues involved [in a case] to be qualified [to serve] as jurors” at trial. See State v. -15-

Gross,

,

,

, ¶ 38; see also State v.

Jackson,

,

,

. The comments

Mabberly challenges reflected only the most basic facts of the case, such as the victim’s

age, the offenses with which Mabberly was charged, the years in which the offenses were

alleged to have occurred, and the nature of Care House. Trial Transcript 86:7-91:2,

93:16-94:5, 99:13-99:17 and 105:2-105:4. In making these comments, the State was

exercising its right to refer to the facts of the case in order to determine which of the

prospective jurors were suitable for service on the jury, and which might not be. See

Jackson at ¶ 50-51.

{¶ 29} The “scope of voir dire falls within [a] trial court’s sound discretion and varies

depending on the circumstances of a given case.” Id. at ¶ 48. On this record, we cannot

find that the trial court would have committed an abuse of discretion by allowing the

foregoing comments over an objection from Mabberly’s counsel. As a result, Mabberly

cannot demonstrate that he suffered prejudice because his counsel did not object,

meaning that he cannot establish that his counsel thereby failed to render effective

assistance. Mabberly’s fourth assignment of error is overruled.

{¶ 30} Mabberly’s fifth assignment of error and the State’s single cross-assignment

of error implicate the same standard of review, so we address these assignments of error

together. For his fifth assignment of error, Mabberly contends that:

APPELLANT WAS PREJUDICED BY THE TRIAL COURT LISTING

[sic] THE INDICTED SEXUAL CONDUCT AS SEQUENCES [sic].

And for its cross-assignment of error, the State contends that:

THE TRIAL COURT ABUSED ITS DISCRETION BY GIVING JURY -16-

INSTRUCTIONS REGARDING THE UNRELIABILITY AND FALLACIES

OF MEMORY THAT REPRESENTED OPINION RATHER THAN LAW.

{¶ 31} Mabberly argues that the “trial court may have erred” in its instructions to

the jury by labeling each of the charges against him with “an official sounding sequence

number.” Appellant’s Br. 16. He worries that “the jurors might very well have

[interpreted the labels] to mean that the trial had come to a point [at which] the allegations

had become so solid that they * * * no longer needed to be discussed as [though they

were] allegations,” rather than established facts. Id.

{¶ 32} The trial court further included a nonstandard instruction addressed to the

fallibility of human memory. Trial Transcript 194:3-195:15. According to the State, the

trial court thus abused its discretion because the instruction was “biased” in favor of a

skeptical assessment of the accuracy of witnesses’ memories, and because the

instruction was not warranted by the evidence. See Appellee’s Br. 22 and 24.

{¶ 33} In a criminal case being tried to a jury, the trial court has a statutory

obligation to instruct the jury on “all matters of law” that the jury must consider in reaching

a verdict, which includes “inform[ing] the jury that [it] is the exclusive judge of all questions

of fact” and cautioning the jury that “it must not consider the punishment” that could be

imposed on a defendant following a verdict of guilty.7 See R.C. 2945.11. The trial court

“has broad discretion * * * to fashion jury instructions” in fulfillment of this obligation,

though the instructions must “present a correct, pertinent statement of the law that is

appropriate to the facts.” State v. White,

,

,

Pursuant to R.C. 2901.05(C), the trial court must also “read the definitions of ‘reasonable doubt’ and ‘proof beyond a reasonable doubt’ ” stated in R.C. 2901.05(E). -17-

939, ¶ 46, citing State v. Griffin,

,

,

,

¶ 5, and State v. Lessin,

,

(1993). Appellate review

of the statements of law set forth in jury instructions is de novo; if the instructions correctly

set forth the law, however, the balance of the instructions, along with the trial court’s

decision to deliver or to withhold any specific instruction, is reviewed for abuse of

discretion. State v. Ramey, 2d Dist. Montgomery No. 27636,

;

State v. Frazier, 2d Dist. Clark No. 2008 CA 118,

, ¶ 37. A “trial court

abuses its discretion when it makes a decision [or otherwise exercises its authority in a

way] that is unreasonable, unconscionable, or arbitrary.” State v. Darmond,

,

,

, ¶ 34, citing State v. Adams,

,

(1980).

{¶ 34} The formalized practice of instructing juries is a relatively modern

development, and “the movement toward drafting and publishing * * * pattern instructions

by committees of judges and lawyers began [as recently as] the 1930s.” Rich, The Most

Grotesque Structure of All: Reforming Jury Instructions, One Misshapen Stone at a Time,

24 Geo.J.Legal Ethics 819, 821-822 (2011); Tiersma, The Rocky Road to Legal Reform:

Improving the Language of Jury Instructions, 66 Brook.L.Rev. 1081, 1082-1084 (2001).

In fact, even the seemingly a priori principle of the “separation of the functions of [trial]

court[s] and jur[ies],” by which “the duty of [a trial] court [is] to expound the law, and that

of [a] jury [is] to apply the law as thus declared to the facts,” was not affirmed by the United

States Supreme Court until 1895. See Sparf v. United States,

, 64-65 and

106,

,

(1895); Tiersma, 66 Brook.L.Rev. at 1083. Before the

advent of pattern instructions, judges and lawyers had to prepare instructions themselves -18-

on a case-by-case basis. Rich, 24 Geo.J.Legal Ethics at 821; Tiersma, 66 Brook.L.Rev.

at 1083.

{¶ 35} Under Ohio law, the drafting or compilation of jury instructions is still left

almost entirely to a trial court’s discretion in the first instance.8 Standard 16 of the Ohio

Trial Court Jury Use and Management Standards states that “trial judge[s]” should

“[p]repare and deliver instructions which are readily understood by [persons] unfamiliar

with the legal system,” and the official comment adds that “[r]eference may be made to

Ohio Jury Instructions.” (Emphasis added.) Sup.R., Appendix B; see also State v.

Martens,

,

(3d Dist. 1993) (noting that the

“instructions found in Ohio Jury Instructions are not mandatory”). Yet, other than

guidance of this kind, neither Standard 16 nor Crim.R. 30 establishes any formal process

for regulating the preparation and content of jury instructions. See Crim.R. 30.

Moreover, the Ohio Supreme Court has refrained from drafting compulsory instructions

or even instituting a process for the creation of instructions; for example, when confronted

with a challenge to the use of the Allen “or ‘dynamite’ charge, as it is also known,” the

Court declined the opportunity to create a mandatory alternative and instead merely

“propose[d] a supplemental instruction” to replace the Allen charge.9 State v. Howard,

8 Ordinarily, a trial court should also give instructions requested by the parties if the instructions correctly state the law, if they are applicable to the facts of the case, and if “reasonable minds might reach the conclusion sought by the instructions.” State v. Thompson, 2d Dist. Montgomery No. 22984,

, ¶ 174, citing Murphy v. Carrollton Mfg. Co.,

,

(1991). 9 The Allen charge, taken from a decision of the United States Supreme Court, was “given to juries in Ohio [if they became] deadlocked on the question of conviction or acquittal.” State v. Howard,

,

(1989), paragraph one of the syllabus; see also Allen v. United States,

,

,

(1896). -19-

,

(1989).

{¶ 36} In his fifth assignment of error, Mabberly argues that the “trial court may

have erred” by “list[ing] the indicted instances of sexual conduct, not as ‘first charged [fill

in] encounter, or first alleged [fill in] encounter, but rather gave each indicated count an

official sounding sequence number.” Appellant’s Br. 16. He posits that the jurors might

have interpreted these labels to mean that Mabberly’s guilt had already been proven.

{¶ 37} Mabberly’s argument is utterly without merit. The trial court used the

labels, without objection, simply to distinguish each of the four counts of rape from the

others, and each of the two counts of unlawful sexual conduct from the other. Trial

Transcript 782:13-783:19. Furthermore, the record belies virtually any possibility that the

jury could have interpreted the labels as a suggestion of Mabberly’s guilt, because for

each of the six counts submitted to the jury, the trial court provided one verdict form for

the jury to indicate a verdict of guilty, and a separate verdict form for the jury to indicate

a verdict of not guilty. Id. at 926:20-930:21. Mabberly’s fifth assignment of error is

overruled.

{¶ 38} In its cross-assignment of error, the State challenges the trial court’s

instruction pertaining to the evaluation of witnesses’ credibility; the State objected to the

instruction before and during Mabberly’s trial. Trial Transcript 182:21-184:4. The

instruction incorporated the most generally applicable components of the pattern

instruction on credibility, Ohio Jury Instructions, CR Section 409.05 (Rev. Aug. 15, 2012),

but the trial court also advised the jurors, in its own words, that when evaluating the

testimony of a witness, they

should understand that imperfect memory is the norm. Memory can be -20-

imperfect and susceptible to distortion and loss because human memory

does not work like a video camera, simply accurately recording events we

see and hear, so that we need only recall them later. Rather, memory is

an adaptive process based upon reconstruction. Errors in memory can be

driven by bias and experience because human brains are geared to look for

regularities in the world.

For example, a person may actually remember nonexistent

information based upon their [sic] expectations. Witnesses, jurors and

judges are not immune to this reality. This is not abnormal. If a witness

believes an event should have happened in a certain way, based upon the

witness’s previous experiences, the witness may think the event happened

in that way, even if it did not. Previously learned information including

experiences in [sic] bias, [sic] can influence the learning of new information,

such that whatever happens in an event can become associated, not just

with elements actually present in the event, but also what is expected to be

present based upon past experiences and biases.

We have known for decades that the passage of time between

experiencing an event and later recalling it, [sic] can adversely affect

accurate recall of the memory, because recent memories compete with

older memories at the time of retrieval.

Simply retrieving a memory can subject it to alteration or even

elimination. Memory distortions can unconsciously occur merely with

retelling. Slight variations in the wording of questions can result in memory -21-

distortion. For example, asking “how fast was the black car going, [sic]

when it slammed into the white car?” can result in a memory for increased

speed as opposed to asking “how fast was the black car going when it

contacted the white car?”

The general belief that confident [sic] detailed memories are always

accurate and reliable is contrary to research suggesting that the opposite is

possible, that confidently recalled memories can be inaccurate and that real

memories are not always highly confident [sic] or detailed.

Trial Transcript 194:3-195:15.

{¶ 39} Maintaining that the instruction was “biased,” inasmuch as it was “directed

exclusively at the unreliability of memory,” and that it was “entirely irrelevant” under the

circumstances, the State argues that the trial court’s decision to give the instruction

should be reviewed for abuse of discretion. See Appellee’s Br. 21-22 and 24. Mabberly

replies to the State’s arguments with an unpersuasive defense of the content of the

instruction, but he takes no position on the appropriate standard of review. See generally

Appellant’s Reply 1-11, Oct. 25, 2018. The amici curiae contend, incorrectly, that jury

instructions are “reviewable only for abuse of discretion,” to which they add that “ ‘the

plain error rule should be applied with utmost caution and should be invoked only to

prevent a clear miscarriage of justice.’ ”10 (Emphasis added.) Brief of Amici Curiae 20,

quoting an unattributed source.

10The amici curiae fail to provide an accurate citation to the source of the material they quote, suggesting that their reference to the plain error rule might be the product of mistaken copying and pasting. Brief of Amici Curiae 20. -22-

{¶ 40} Although statements of legal principles included in jury instructions are

reviewed de novo, the instruction at issue here presents no such statement, meaning that

abuse of discretion is the proper standard of review in this case. Ramey, 2d Dist.

Montgomery No. 27636,

; Frazier, 2d Dist. Clark No. 2008 CA

118,

, ¶ 37. We find accordingly that the trial court abused its discretion

in two respects by delivering the instruction. First, the text of the instruction incorporates

critical concepts and terms that are not adequately explained. Second, the instruction

actively encourages jurors to mistrust witnesses’ memories, rather than objectively

cautioning jurors that witnesses’ memories might not be completely accurate; this

problem was compounded by the trial court’s decision to allow the defense to call an

expert to testify on the same subject.

{¶ 41} Regarding the instruction itself, the text comprises two basic propositions of

fact: (1) human memory is imperfect for a number of reasons, such as the passage of

time; and (2) a witness’s expression of confidence in the accuracy of a memory is not a

reliable indicator of actual accuracy. Trial Transcript 194:3-195:15. We accept the

former proposition as axiomatic, and the latter proposition appears to reflect a broad

consensus among experts. See, e.g., Krist v. Eli Lilly & Co.,

(7th

Cir. 1990); United States v. Smith,

(6th Cir. 1984); State v.

Williams, 8th Dist. Cuyahoga No. 58549,

, *3 (May 30, 1991); State v.

Mahmoud,

,

; Commonwealth v. Gomes,

,

(2015); State v. Guilbert,

, 234-237,

(2012); State v. Lawson,

,

(2012); State v.

Henderson,

, 253-254 and 267,

(2011); State v. Long, -23-

(Utah 1986); Bennett, Unspringing the Witness Memory and

Demeanor Trap: What Every Judge and Juror Needs to Know About Cognitive

Psychology and Witness Credibility, 64 Am.U.L.Rev. 1331, 1340-1343 and 1355-1360

(2015).

{¶ 42} Nevertheless, in the form it was delivered to the jury, the instruction omits

definitions for several significant concepts and terms. For instance, the instruction

describes “memory [as] an adaptive process based upon reconstruction.” See Trial

Transcript 194:8:194:9. Neither the term “adaptive process” nor the term

“reconstruction” is precisely defined, however, and the use of these terms thus detracts

from the clarity of the fundamental premise that “human memory does not work like a

video camera, simply [generating] a recording [of] events” that can afterward be stored

indefinitely and retrieved repeatedly with absolute fidelity. Id. at 194:4-194:8. Similarly,

the instruction states that “[i]f a witness believes an event should have happened in a

certain way, based upon the witness’s previous experiences, [then] the witness may think

the event happened in that way, even if it did not.” Id. at 194:15-194:18. Yet, this

statement could mean that preconceived notions adversely affect a witness’s ability to

perceive an event accurately, or that preconceived notions adversely affect the accuracy

of a witness’s memory of an event. Likewise, the instruction states that the passage of

time “can adversely affect [the accuracy of a] memory” because “recent memories

compete with older memories at the time of retrieval.” Id. at 194:224-195:2. The

meaning of the word “compete” in this context is somewhat uncertain, and the reference

to competition among old and new memories specifically “at the time of retrieval” adds

ambiguity to the otherwise straightforward concept that the accuracy of a memory is likely -24-

to diminish over time.

{¶ 43} By introducing such ambiguity, the trial court distanced the instruction from

the core principle on which even experts cannot disagree—that memory is imperfect or,

in the words of the instruction, that “human memory is not like a video camera.” Trial

Transcript 194:6. A number of other assertions included in the instruction also appear

to reflect a broad consensus among experts, but the court’s arbitrary emphasis on certain

aspects of contemporary memory research results in the arbitrary exclusion of others,

further removing the instruction from solid scientific ground. Though the instruction notes

that personal “bias[es] and experience[s]” can produce “[e]rrors in memory,” it makes no

mention, for example, of the reliability of memories formed during “[e]motionally charged

events”; the distinction between long-term and short-term memory, and the various types

of each; or the possible effects of individual physiology or substance abuse. Id. at 194:9-

10; see, e.g., Jerome, The Biology of Memory, Time (Dec. 21, 2018) 10-13.

{¶ 44} Perhaps counterintuitively, a more concise instruction, focused tightly on

the basic idea that memory is imperfect, would have better informed the jurors and,

simultaneously, obviated the need to present the jurors with concepts and terms that

require a far more detailed analysis than is appropriate or helpful in the context of jury

instructions. The instruction’s relative prolixity, on the other hand, might mislead jurors.

More importantly, the instruction diverges from Ohio precedent with respect to the

statement that a witness’s confidence is not a reliable indication of the accuracy of the

witness’s memory. The apparent expert consensus notwithstanding, this statement

directly conflicts with one factor of the Manson test for the evaluation of eyewitness

identifications, which the Ohio Supreme Court adopted in its decision in State v. Broom, -25-

,

(1988).11

{¶ 45} Furthermore, the instruction effectively counsels jurors to discount the

accuracy of witnesses’ memories, as opposed to cautioning jurors objectively that

witnesses’ memories might be incorrect. The text of the instruction consists of 346 words

arranged into 15 sentences. Thirteen out of the 15 sentences either refer to the fallibility

of memory, or explain why a given memory might be unreliable.12 For the purpose of

reminding jurors that witnesses’ memories are subject to imperfections, the instruction is

needlessly repetitive, and it consequently verges on advocacy, rather than neutral

guidance.13 An instruction “must be balanced and neutral” to constitute an appropriate

exercise of discretion. See, e.g., Howard,

,

.

{¶ 46} The trial court compounded this problem by delivering the instruction at a

trial during which it also allowed the defense to present expert testimony on the

11 The Manson test refers to the decision of the United States Supreme Court in Manson v. Brathwaite,

,

,

(1977), although the Court drew the substance of the test from its earlier decision in Neil v. Biggers,

,

,

(1972).

; see also

. 12 One of the remaining sentences indicates that “[w]itnesses, jurors and judges are not immune from this reality,” and the other assures jurors that “[t]his is not abnormal.” Trial Transcript 194:13-194:15. 13 The instruction on “the believability of witnesses and the weight if any to [be] give[n] to their testimony” provides an illustrative comparison. Trial Transcript 193:11-193:12. In this instruction, the court informs the jurors that “they alone” must determine whether a witness is credible and then presents a list of considerations that the jurors “may, if [they] wish,” consult for the purpose of making a credibility determination.

. After informing the jurors that they “must decide whether to believe a * * * witness,” the instruction does not redundantly remind jurors that they are charged with assessing witnesses’ credibility or that witnesses might not testify truthfully; by contrast, the instruction on memory begins by admonishing jurors that “imperfect memory is the norm” and follows its initial admonition with 12 variations on that theme. -26-

shortcomings of human memory and the reasons, apart from outright dishonesty, that a

memory might be inaccurate. In his testimony, the expert witness raised many of the

same issues that the court raised in its instruction, at times echoing the court’s language.

See Trial Transcript 364:12-366:20, 368:4-369:2, 370:3-370:25, 372:20-378:19, 383:24-

384:22, 386:5-388:2, 389:21-390:23. The combination of the instruction and the

testimony of the expert witness not only placed undue emphasis on the fallibility of

memory, but further posed a risk that jurors would feel obligated to credit the expert’s

testimony.

{¶ 47} For all of the foregoing reasons, we find that the trial court abused its

discretion by delivering the instruction on memory. The instruction arbitrarily

incorporated critical concepts and terms without defining or adequately explaining them;

moreover, irrespective of the lack of adequate explanation, these concepts and terms

were redundant elaborations on the basic proposition that a witness’s memory might not

be accurate to the last detail. As a result of this redundancy, the tone of the instruction

approached that of an editorial essay, in contrast to that of a detached, cautionary

notification. Although the facts of this case were sufficient to warrant either an instruction

on memory, or the presentation of expert testimony on memory, the trial court invested

the subject with an inappropriate, arbitrary degree of prominence by delivering the

instruction and also allowing the defense’s expert to testify. The State’s cross-

assignment of error is sustained.

III. Conclusion

{¶ 48} We find that the jury’s verdicts were not contrary to the weight of the

evidence; that Mabberly’s defense counsel was not ineffective for either of the reasons -27-

argued by Mabberly; and that the trial court did not refer to the charges against him such

that his guilt was implied. Therefore, Mabberly’s convictions are affirmed.

{¶ 49} Regarding the State’s cross-assignment of error, we find that the trial court’s

instruction on memory constituted an abuse of discretion with respect to the content of

the instruction, and with respect to the use of the instruction under the circumstances of

this case. Although we sustain the State’s cross-assignment of error, the State is not

entitled to any relief in this case.

{¶ 50} Finally, we note that this appeal is one of three pending appeals dealing

with the trial court's use of an instruction concerning the fallibility of human memory. See

also State v. Rac, 2d Dist. Montgomery No. 27536 (Montgomery C.P. No. 2016-CR-

04002); State v. Pettiford, 2d Dist. Montgomery No. 27490 (Montgomery C.P. No. 2016-

CR-02713). Each opinion confronts a distinct instruction, albeit differing only slightly

from the others, delivered within the context of a distinct record; nonetheless, each

opinion, though based upon somewhat different reasoning, holds that the trial court erred

by delivering the instruction. Collectively, the opinions can support the following three

conclusions.

{¶ 51} First, unless the Ohio Supreme Court rules otherwise, information

concerning memory and identification may be presented through expert testimony subject

to the adversarial process. In cases in which such expert testimony is presented,

however, a corresponding jury instruction-whether preliminary or final-would be

inappropriate if it appears either to endorse or to reject the testimony.

{¶ 52} Second, a concise, limited and neutral instruction on memory or

identification that accords with presently controlling precedent may be appropriate. -28-

Whether such an instruction would require validation through pre-trial presentation of

expert evidence-again, subject to the adversarial process-would depend upon the precise

wording of the instruction.

{¶ 53} Third, evaluated pursuant to either of the foregoing conclusions, none of the

three iterations of the trial court's memory instruction was appropriate. In the instant

case specifically, the instruction was an abuse of discretion by both measures.

.............

FROELICH, J., concurs.

WELBAUM, P.J., concurring:

{¶ 54} I disagree with the language in the majority opinion regarding the State’s

Cross Assignment of Error to the extent it suggests that, in the absence of Ohio Supreme

Court precedent, trial courts may instruct juries in enhanced detail about the science of

memory. As set forth in State v. Pettiford, 2d Dist. Montgomery No. 27490, I believe that

at this stage of development in Ohio, the science of witness memory relating to

identification or otherwise, is the proper subject of expert testimony rather than the use of

fortified jury instructions.

{¶ 55} Furthermore, where expert testimony on the subject has been provided to

the jury, trial courts should confine the jury instructions to general statements about

witness credibility. Experts are simply witnesses like any others, and to specifically

instruct juries in detail on what an expert has said improperly emphasizes the testimony.

{¶ 56} I believe the trial court committed an error of law and also abused its

discretion in giving the enhanced jury instructions on the subject of witness memory in

the absence of controlling authority from the Ohio Supreme Court. -29-

{¶ 57} Otherwise, I agree with the decision to sustain the State’s Cross-

Assignment of Error.

Copies sent to:

Mathias H. Heck, Jr. Andrew T. French Brock A. Schoenlein John K. Carroll Alexis Agathocleous Elizabeth Berry Hon. Steven K. Dankof