[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Sheckles, Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.




                          SLIP OPINION NO. 

            THE STATE OF OHIO, APPELLANT, v. SHECKLES, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Sheckles, Slip Opinion No. 

.]
Criminal law—Touhy regulations do not create rights for criminal defendants, and
        a violation of such regulations is not generally a basis for a criminal
        defendant to request an exclusionary remedy—Touhy regulations are not
        rules of procedural admissibility to be wielded by a criminal defendant to
        exclude testimony of a current or former federal employee—Court of
        appeals’ judgment reversed and cause remanded to trial court.
(No. 2023-0294—Submitted November 14, 2023—Decided September 6, 2024.)
              APPEAL from the Court of Appeals for Hamilton County,
                    Nos. C-220255 and C-220256, 

.
                                   __________________
        BRUNNER, J., authored the opinion of the court, which KENNEDY, C.J., and
FISCHER, DEWINE, DONNELLY, and EKLUND, JJ., joined. STEWART, J., dissented,
                                 SUPREME COURT OF OHIO




with an opinion. JOHN J. EKLUND, J., of the Eleventh District Court of Appeals, sat
for DETERS, J.


        BRUNNER, J.
                                   I. INTRODUCTION
        {¶ 1} At the outset of a criminal trial related to an alleged shooting at a bar,
the prosecution and the defense presented arguments about the admission of
testimony from a former federal prosecutor and the admission of an edited video of
the alleged shooting compiled from footage obtained from the bar’s security
cameras. The trial court ruled that both would be excluded from evidence at trial.
It found that appellant, the State of Ohio, had not shown that the former federal
prosecutor had permission to testify under the United States Department of Justice’s
Touhy regulations,1 and it found that the bar owner could not authenticate the video,
because she did not prepare the video from the raw footage. Instead of seeking
final rulings on these evidentiary issues at trial, the State certified that the trial
court’s rulings had rendered the State’s proof with respect to the pending charges
so weak in its entirety that any reasonable possibility of an effective prosecution
had been destroyed, and the State appealed both of the trial court’s evidentiary
rulings under Crim.R. 12(K). The First District Court of Appeals affirmed the
judgments of the trial court.
        {¶ 2} The State appealed to this court, but its propositions of law do not
challenge the merits of the trial court’s ruling on the video-authentication issue.
Instead, the questions before this court are whether the Touhy regulations should



1. In accordance with United States ex rel. Touhy v. Ragen, 

 (1951), “agencies of the
United States government may draft procedural rules and regulations that govern requests for
information and the agency’s determination of whether it will release the information.” State v.
Hudson, 

, ¶ 26 (8th Dist.). These regulations are often referred to as Touhy
regulations. See Agility Pub. Warehouse Co. K.S.C.P. v. United States Dept. of Defense, 

 (D.D.C. 2017).




                                               2
                                 January Term, 2024




have been relied on by the trial court to prevent the former federal prosecutor from
testifying and whether the trial court’s pretrial evidentiary rulings should have been
deemed preliminary rather than final.
       {¶ 3} We hold that Touhy regulations do not create rights for criminal
defendants and that a violation of such regulations is not generally a basis for a
criminal defendant to request an exclusionary remedy. The regulations are not rules
of procedural admissibility or a sword that may be wielded by a criminal defendant
to seek the exclusion of testimony of a current or former federal employee, who in
this case was apparently willing to testify and had the authorization to do so. The
judgment of the First District on this question is therefore reversed.
       {¶ 4} We further find no basis for addressing the State’s proposition of law
regarding the finality of the trial court’s pretrial evidentiary rulings. We therefore
reverse the First District’s judgment with respect to the State’s first and second
propositions of law, vacate its judgment with respect to the State’s third proposition
of law, and we remand this case to the trial court for further proceedings consistent
with the law and this opinion.
                 II. FACTS AND PROCEDURAL HISTORY
       {¶ 5} In January 2020, appellee, Sontez Sheckles, was indicted in the
Hamilton County Common Pleas Court for attempted murder, felonious assault,
and having a weapon while under a disability. The charges stemmed from an
alleged shooting that occurred at Chalet Bar in Cincinnati on November 29, 2019.
After Sheckles requested discovery, the prosecution largely declined to disclose the
names and addresses of its witnesses based on its belief that disclosure would
compromise the safety of the witnesses or subject them to intimidation or coercion.
However, one witness the prosecution did disclose to Sheckles in April 2022 was a
former federal prosecutor, Zachary Kessler. It appears that Kessler had prosecuted
a federal case against Sheckles on an offense seemingly related to the Hamilton




                                          3
                              SUPREME COURT OF OHIO




County charges at issue in this case. The federal case apparently resulted in
Sheckles agreeing to plead guilty to a federal offense.
        {¶ 6} The Hamilton County case was set for trial on May 12, 2022, but the
trial court granted a continuance because the State lacked a witness who could
authenticate a video of the alleged shooting that had been compiled from raw
footage obtained from the bar’s security cameras. The trial court warned that the
failure to have a witness present to authenticate the video at the next trial date would
result in the video being excluded from evidence at trial.
        {¶ 7} Trial was rescheduled to begin on May 25, 2022. However, two
issues arose that morning. First, the State had subpoenaed Kessler but had not
obtained a Touhy letter that would permit him to testify. The trial court gave the
State some time to obtain the letter and moved on to consider the second issue—
identifying the witness who would authenticate the video of the alleged incident.
The State sought to have the bar owner authenticate the video, but the defense
objected, pointing out that the video had been edited by the police, not the bar
owner. Later that day, the trial court returned to consideration of the missing Touhy
letter, noted that ample opportunity had been given to the State to obtain the letter,
and excluded Kessler from testifying. The State indicated that it intended to appeal
that decision.
        {¶ 8} The trial court returned to consideration of the video-authentication
issue. The State called the bar owner to testify and authenticate the video. But the
trial court excluded the video after determining that the bar owner could not
authenticate it, because she had not compiled the video from the raw security-
camera footage. Prior to the trial court’s ruling, the State offered to have the police
officer who compiled the video attest to its authenticity and told the court that she
could be there in about 30 minutes. The trial court, however, chose to rule on the
issue without waiting for the additional witness.




                                           4
                                January Term, 2024




       {¶ 9} On June 2, 2022, the State appealed both of the trial court’s
evidentiary rulings under Crim.R. 12(K), claiming that the rulings had rendered the
State’s proof with respect to the pending charges so weak in its entirety that any
reasonable possibility of an effective prosecution had been destroyed. The First
District consolidated both appeals and affirmed the trial court’s rulings. 2023-
Ohio-133 (1st Dist.). The First District found that the trial court was not presented
with a Touhy letter, that the Code of Federal Regulations indicates that a former
employee of the Department of Justice may testify only with such a
preauthorization, and that the State had not advanced any legal basis before the trial
court in support of its assertion that Kessler could testify without a Touhy letter.

 (1st Dist.). Regarding the video-authentication issue, the
First District found that the video could have been authenticated by someone who
personally witnessed the events depicted therein or who was familiar with the
reliability of the process or system that produced the edited video, but the State had
presented neither. Id. at ¶ 34-39.
       {¶ 10} The State appealed to this court, and we accepted jurisdiction to
review three propositions of law, none of which challenges the merits of the First
District’s judgment on the video-authentication issue:


               [1.] The burden of showing testimony ought to be excluded
       under a claimed privilege that a former federal employee cannot
       testify under federal regulations is on the party seeking to exclude
       the former federal employee’s testimony.
               [2.] Federal regulations generally prohibit employees and
       former employees of the Department of Justice from testifying when
       the United States is not a party. However, such regulations do not
       mandate that the employee produce written authorization by the
       Department to defense counsel or the trial court.




                                          5
                             SUPREME COURT OF OHIO




               [3.] A trial court should not definitively exclude evidence at
       a pretrial motion in limine. A motion in limine is tentative and
       precautionary in nature and should reflect the court’s anticipated,
       not definitive ruling, of an evidentiary issue at trial.


See 

.
                                III. DISCUSSION
      A. Whether Kessler Should Have Been Prevented from Testifying
       {¶ 11} In United States ex rel. Touhy v. Ragen, 

(1951), the United States Supreme Court held that an employee of the United States
Department of Justice correctly refused to produce subpoenaed records when doing
so would have violated a regulation that the United States Attorney General had
issued under statutory authorization. This holding is part of the foundation for the
practice of federal agencies to enact regulations for responding to subpoenas and
requests for documents. As noted above, these regulations are often referred to as
Touhy regulations. See Agility Pub. Warehouse Co. K.S.C.P. v. United States Dept.
of Defense, 

 (D.D.C. 2017), citing 5 U.S.C. 301; see also State
v. Hudson, 

, ¶ 26 (8th Dist.). Relevant to this case, one of the
current Touhy regulations of the United States Department of Justice provides:


               (a) In any federal or state case or matter in which the United
       States is not a party, no employee or former employee of the
       Department of Justice shall, in response to a demand, produce any
       material contained in the files of the Department, or disclose any
       information relating to or based upon material contained in the files
       of the Department, or disclose any information or produce any
       material acquired as part of the performance of that person’s official
       duties or because of that person’s official status without prior




                                           6
                                  January Term, 2024




          approval of the proper Department official in accordance with §§
          16.24 and 16.25 of this part.
                 (b) Whenever a demand is made upon an employee or former
          employee as described in paragraph (a) of this section, the employee
          shall immediately notify the U.S. Attorney for the district where the
          issuing authority is located. The responsible United States Attorney
          shall follow procedures set forth in § 16.24 of this part.


28 C.F.R. 16.22(a) and (b). The provisions of 28 C.F.R. 16.24 provide for a chain
of command in deciding whether to honor the subpoena or request and refer the
decision-maker to 28 C.F.R. 16.26, which sets forth the considerations in
determining whether production or disclosure should be made in response to a
demand. In short, these regulations set forth a general prohibition and then the
grounds on which the Department of Justice may permit one of its current or former
employees to testify or produce records.
          {¶ 12} The “[p]urpose and scope” provision of the Department of Justice’s
Touhy regulations specify that they apply even in state proceedings. 28 C.F.R.
16.21(a).
          {¶ 13} The regulations also clarify that they do not create any enforcement
rights:


                 (d) This subpart is intended only to provide guidance for the
          internal operations of the Department of Justice, and is not intended
          to, and does not, and may not be relied upon to create any right or
          benefit, substantive or procedural, enforceable at law by a party
          against the United States.


28 C.F.R. 16.21(d).




                                            7
                             SUPREME COURT OF OHIO




       {¶ 14} The Department of Justice’s Touhy regulations that are set forth in
28 C.F.R. 16.21 et seq. are designed to safeguard the information of that department
and provide a process and command structure to organize, when appropriate, the
release of requested information. The regulations do not govern evidentiary
procedural admissibility such that a litigant may seek the exclusion of testimony
from a federal employee who is willing to testify. Decisions by courts addressing
federal employees’ refusing to testify or provide records have been upheld, see,
e.g., Cabral v. United States Dept. of Justice, 

 (1st Cir. 2009),
and reversed, see, e.g., United States v. Ritchie, 

, 878-879 (4th
Cir. 2018). But we find no legal support for a judge to rely on Touhy in order to
forbid a federal employee, who is willing to testify, from testifying. Moreover, the
Department of Justice’s Touhy regulations make clear that a criminal defendant has
no right to rely on Touhy in order to object to the admission of evidence; instead, a
federal employee holds the right to refuse to testify or produce records until he or
she has been given permission to do so.
       {¶ 15} Even if the Touhy regulations were enforceable by criminal
defendants, violations of statutes or rules are not generally grounds for applying the
exclusionary rule. See Kettering v. Hollen, 

 (1980)
(“The exclusionary rule has been applied by this court to violations of a
constitutional nature only.”), citing State v. Myers, 

 (1971),
State v. Downs, 

 (1977), vacated on other grounds sub nom.
Downs v. Ohio, 

 (1978), and State v. Davis, 

 (1978);
see also State v. Brown, 

, ¶ 22-25 (evidence seized in search
incident to arrest suppressed because arrest was for a minor misdemeanor when
none of the R.C. 2935.26 exceptions were applicable and thus the arrest violated
the Ohio Constitution).
       {¶ 16} Sheckles’s case is atypical. The State, not Sheckles, is the party
seeking testimony or records from Kessler.        And Sheckles’s reliance on the




                                          8
                                      January Term, 2024




Department of Justice’s Touhy regulations to support excluding Kessler’s
testimony does not measure up, because it appears that Kessler was willing to
testify and had the authorization to do so. Sheckles held no rights under Touhy that
could be asserted in support of his request to exclude Kessler’s testimony. The trial
court should not have excluded Kessler’s testimony on that basis.2 The judgment
of the First District on the Touhy issue is therefore reversed.
                         B. Whether Rulings Were Preliminary
         {¶ 17} Within the context of the trial court’s evidentiary rulings on the
Touhy issue and the video-authentication issue, the State argues that the trial court
erred in definitively excluding Kessler’s testimony and the video—rather than
entering preliminary rulings that could be revisited during trial.
         {¶ 18} It is true that generally, “an order denying a motion in limine is a
preliminary ruling about an evidentiary issue that is anticipated, and the issue is
preserved only by a timely objection when the issue is actually reached during the
trial.” State v. Brunson, 

, citing State v. Grubb, 

 (1986). In this case, however, the State viewed the trial court’s evidentiary
ruling as definitive and appealed the ruling under Crim.R. 12(K).3


2. Discovery sanctions, however, may include excluding evidence under Crim.R. 16(L)(1).

3. That rule provides:

                   When the state takes an appeal as provided by law from an order
         suppressing or excluding evidence . . . , the prosecuting attorney shall certify that
         both of the following apply:
                   (1) the appeal is not taken for the purpose of delay;
                   (2) the ruling on the motion or motions has rendered the state’s proof
         with respect to the pending charge so weak in its entirety that any reasonable
         possibility of effective prosecution has been destroyed . . . .
                   The appeal from an order suppressing or excluding evidence shall not be
         allowed unless the notice of appeal and the certification by the prosecuting
         attorney are filed with the clerk of the trial court within seven days after the date
         of the entry of the judgment or order granting the motion. Any appeal taken under
         this rule shall be prosecuted diligently.
                   If the defendant previously has not been released, the defendant shall,
         except in capital cases, be released from custody on the defendant’s own




                                                  9
                                  SUPREME COURT OF OHIO




        {¶ 19} Our resolution of the first two propositions of law renders it
unnecessary for us to reach the third proposition. Our decision about the Touhy
issue necessarily means that proceedings will resume in the trial court. There is no
barrier on remand to the State seeking to introduce evidence with proper
authentication or to the trial court considering an evidentiary issue afresh based on
the arguments made at trial. See State v. Bellamy, 

 (holding
that an expert whose testimony was excluded at trial because of untimely disclosure
of his report could, on remand to the trial court for retrial, be permitted to testify if
disclosure of his report complies with discovery rules). Because our remand to the
trial court in accordance with the first two propositions of law makes it unnecessary
to reach the third proposition of law, we vacate the judgment of the First District
Court of Appeals upholding the trial court’s decision to exclude the video
evidence.4
                                     IV. CONCLUSION
        {¶ 20} Touhy regulations do not create rights for criminal defendants, and a
violation of such regulations is not generally sufficient to invoke an exclusionary
remedy. Touhy regulations are not rules of procedural admissibility to be wielded
by a criminal defendant to exclude the testimony of a current or former federal
employee, who is otherwise willing and authorized to testify. In this case, a former



        recognizance pending appeal when the prosecuting attorney files the notice of
        appeal and certification.
                  This appeal shall take precedence over all other appeals.
                  If an appeal from an order suppressing or excluding evidence pursuant
        to this division results in an affirmance of the trial court, the state shall be barred
        from prosecuting the defendant for the same offense or offenses except upon a
        showing of newly discovered evidence that the state could not, with reasonable
        diligence, have discovered before filing of the notice of appeal.

Crim.R. 12(K).

4. We express no opinion on the correctness of the court of appeals’ analysis regarding the video-
authentication issue.




                                                  10
                                 January Term, 2024




federal prosecutor was apparently willing to testify and had the authorization to do
so at Sheckles’s trial. We therefore reverse the judgment of the First District Court
of Appeals affirming the trial court’s judgment, and we remand the case to the trial
court for further proceedings.
       {¶ 21} Because of this decision regarding the State’s first and second
propositions of law and the posture of the case, we do not address the State’s third
proposition of law regarding the finality of the trial court’s pretrial evidentiary
rulings and vacate that portion of the judgment of the court of appeals.
                                                                   Judgment reversed
                                               and cause remanded to the trial court.
                                 __________________
       STEWART, J., dissenting.
       {¶ 22} Whether a defendant may wield the lack of a Touhy letter as a
“sword” in a motion in limine is certainly a valid question worthy of this court’s
consideration. See majority opinion, ¶ 3. But this is not the case to resolve that
question for at least two reasons.
                                     Forfeiture
       {¶ 23} First, appellant, the State of Ohio, forfeited the arguments it raises
here about the trial court improperly shifting the burden on the Touhy issue to the
State because it did not raise those arguments below. See State v. Rogers, 2015-
Ohio-2459, ¶ 21 (stating that “forfeiture is the failure to timely assert a right or
object to an error”). Nor did the State substantively argue that United States ex rel.
Touhy v. Ragen, 

 (1951), was somehow inapplicable in this case, as
the entirety of its argument on that issue in its brief to the First District Court of
Appeals was as follows:


               It should also be noted that there is no definitive legal rule or
       an issue of constitutional import that would prevent [former federal




                                          11
                              SUPREME COURT OF OHIO




        prosecutor Zachary] Kessler from testifying against [appellee,
        Sontez] Sheckles. The primary reason Sheckles wanted to exclude
        Attorney Kessler’s testimony was based on a federal regulation.
        Attorney Kessler could have legally testified against Sheckles. Of
        course, Attorney Kessler, without the “Touhy” letter risked possible
        consequences from the [United States Department of Justice
        (“DOJ”)] if he violated the regulations regarding a former federal
        DOJ employee from [sic] testifying in a state proceeding.


Thus, the State admitted that “[o]f course” Kessler “risked possible consequences
from the DOJ if he violated the regulations regarding a former federal DOJ
employee from [sic] testifying in a state proceeding”—i.e., he needed a Touhy letter
to testify without risking DOJ sanctions. But rather than argue that it should be
exempt from producing the letter, the State specifically asked the First District to
remand the case to the trial court: “The state should be given the opportunity to
either produce the ‘Touhy’ letter at a motion in limine and/or again at trial before
it calls Attorney Kessler to testify.” The State also filed an amended brief below,
but it did not deviate from its original brief with respect to these issues.
        {¶ 24} The arguments that the State raises here about burden shifting seem
to be derived entirely from the dissenting appellate-court judge’s opinion. The
State concedes as much, stating in its reply brief that while it raised one type of
procedural error to the First District (the trial court’s converting Sheckles’s motion
in limine into a suppression motion), it was the dissenting appellate-court judge
who noted another potential procedural error (the trial court’s shifting the burden
to the State to prove that Kessler’s testimony should not be excluded). And the
State raises the latter concern for the first time in its arguments here. But this court
does not review arguments that have been forfeited, see Rogers at ¶ 21, and there
is no reason to depart from that rule in this case.




                                          12
                                 January Term, 2024




                   Rulings on motions in limine are preliminary
        {¶ 25} Second, like the dissenting appellate-court judge, see 2023-Ohio-
133, ¶ 45 (1st Dist.) (Myers, J., dissenting), I am reluctant to resolve the serious
question about whether a defendant may wield the lack of a Touhy letter as a sword
in this case. Here, that question stems from the trial court’s granting of a motion in
limine; but rulings on motions in limine “reflect[] the court’s anticipatory treatment
of an evidentiary issue at trial” and “the trial court is at liberty to change its ruling
on the disputed evidence in its actual context at trial,” Defiance v. Kretz, 

 (1991). While some rulings on motions in limine may in effect be
definitive, they are, by definition, preliminary. See id.; see also Merriam-Webster
Dictionary Online, https://www.merriam-webster.com/dictionary/in%20limine
(accessed Aug. 20, 2024) [https://perma.cc/B6E3-VUT8] (defining “in limine” as
“a preliminary matter” and noting that the etymology of the term is Latin for “on
the threshold”).
        {¶ 26} The preliminary nature of the trial court’s ruling cuts against many
of the State’s arguments about the timing of the ruling and why it felt it had no
choice but to appeal instead of proceeding to trial. For example, the State claims
that the Touhy letter was on Kessler’s phone, but it did not proffer that letter into
evidence, despite the trial court’s request to view it. The State also claimed at the
outset of the proceedings that it could provide the letter to the trial court “shortly,”
but the State did not choose to go forward with the trial and trust that the letter
would arrive in the time that it would have taken to, for example, select a jury and
conduct pretrial procedures. Similarly, with respect to the video evidence of the
alleged shooting in this case that was compiled from footage obtained from a bar’s
security cameras, the State claims in its brief that its authenticating witness was
approximately 30 minutes away from the courthouse when the trial court made its
ruling to grant the motion in limine. Yet instead of using that half hour to begin the
trial, the State chose to immediately appeal.




                                           13
                             SUPREME COURT OF OHIO




       {¶ 27} It is because of the State’s choices and trial strategy that neither this
court nor the appellate court was able to review the evidence at issue, since the State
did not proffer the Touhy letter, Kessler’s testimony, or the video evidence.
Without more factual development and a final versus preliminary evidentiary
ruling, I am reluctant to resolve the serious question raised in this case.
                                     Conclusion
       {¶ 28} I agree with the majority’s conclusion that “Touhy regulations do not
create rights for criminal defendants and that a violation of such regulations is not
generally a basis for a criminal defendant to request an exclusionary remedy,”
majority opinion at ¶ 3, and I also agree that a remand to the trial court would be
appropriate since the State could and should have gone forward with the trial rather
than instituting an immediate appeal. However, because I believe this appeal was
improvidently accepted given the forfeiture of the State’s main arguments, I would
dismiss it as such.
                               __________________
       Melissa A. Powers, Hamilton County Prosecuting Attorney, and Ronald W.
Springman Jr., Chief Assistant Prosecuting Attorney, for appellant.
       Raymond T. Faller, Hamilton County Public Defender, and Lora Peters,
Assistant Public Defender, for appellee.
       Dave Yost, Attorney General, Michael J. Hendershot, Chief Deputy
Solicitor General, and Zachery P. Keller, Deputy Solicitor General, urging reversal
for amicus curiae, Ohio Attorney General Dave Yost.
                               __________________




                                           14