State v. Mabberly , 2019 Ohio 891 ( 2019 )

[Cite as State v. Mabberly, 2019-Ohio-891.]
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
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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
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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.
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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.
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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, 2018-Ohio-198, 104 N.E.3d 143, ¶ 37 (2d Dist.), citing State v. Bailey, 2d
Dist. Montgomery No. 27177, 2017-Ohio-2679, ¶ 17. 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, 80 Ohio
St.3d 89, 113, 684 N.E.2d 668 (1997), citing State v. Thompkins, 78 Ohio St. 3d 380, 386,
678 N.E.2d 541 (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.’ ” Id., quoting State v. Jenks,
61 Ohio St. 3d 259, 574 N.E.2d 492 (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, 2015-Ohio-5490, 63
N.E.3d 410, ¶ 49 (2d Dist.), quoting Thompkins at 387. 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. Thompkins at 387, citing State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717
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(1st Dist.1983); State v. Hill, 2d Dist. Montgomery No. 25172, 2013-Ohio-717, ¶ 8. 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 Martin at 175.
{¶ 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,
2017-Ohio-216, ¶ 6. 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, 2011-Ohio-3161, ¶ 11; State v. Miller, 2d Dist. Montgomery
No. 25504, 2013-Ohio-5621, ¶ 48, 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.
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{¶ 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, 1995 WL 328957, *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.”
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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
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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
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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
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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, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984).” State v. Cardenas, 2016-Ohio-5537, 61 N.E.3d 20, ¶ 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.” Id., citing Strickland at 687.
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 * * *.” Strickland at 689, citing Michel v. Louisiana,
350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (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, 2018-Ohio-4886, ¶ 47. 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, 2009-Ohio-1404, ¶ 42. Nevertheless, the “rules
of evidence permit an expert to offer an opinion on an ultimate issue,” and “this includes
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a psychologist’s expert opinion on whether a * * * child was sexually abused.” Id., citing
State v. Stowers, 81 Ohio St. 3d 260, 261, 690 N.E.2d 881 (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
Stowers at 262-263; 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, 2015-Ohio-4116, 43 N.E.3d 833,
¶ 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, 2015-Ohio-4116, 43 N.E.3d 833, ¶ 97 (2d Dist.).
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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.
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Gross, 97 Ohio St. 3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 38; see also State v.
Jackson, 107 Ohio St. 3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 51. 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
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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, 142 Ohio St. 3d 277, 2015-Ohio-492, 29 N.E.3d
7 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).
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939, ¶ 46, citing State v. Griffin, 141 Ohio St. 3d 392, 2014-Ohio-4767, 24 N.E.3d 1147,
¶ 5, and State v. Lessin, 67 Ohio St. 3d 487, 493, 620 N.E.2d 72 (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, 2018-Ohio-3072, ¶ 27;
State v. Frazier, 2d Dist. Clark No. 2008 CA 118, 2010-Ohio-1507, ¶ 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, 135 Ohio
St.3d 343, 2013-Ohio-966, 986 N.E.2d 871, ¶ 34, citing State v. Adams, 62 Ohio St. 2d
151, 157, 404 N.E.2d 144 (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, 156 U.S. 51, 64-65 and
106, 15 S. Ct. 273, 39 L. Ed. 343 (1895); Tiersma, 66 Brook.L.Rev. at 1083. Before the
advent of pattern instructions, judges and lawyers had to prepare instructions themselves
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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, 90 Ohio App. 3d 338, 343, 629 N.E.2d 462 (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, 2010-Ohio-1680, ¶ 174, citing Murphy v.
Carrollton Mfg. Co., 61 Ohio St. 3d 585, 591, 575 N.E.2d 828 (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, 42 Ohio St. 3d 18, 537 N.E.2d 188 (1989), paragraph one of the syllabus;
see also Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).
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42 Ohio St. 3d 18, 537 N.E.2d 188 (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
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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
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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.
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{¶ 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, 2018-Ohio-3072, at ¶ 27; Frazier, 2d Dist. Clark No. 2008 CA
118, 2010-Ohio-1507, ¶ 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., 897 F.2d 293, 296-297 (7th
Cir.1990); United States v. Smith, 736 F.2d 1103, 1105-1107 (6th Cir.1984); State v.
Williams, 8th Dist. Cuyahoga No. 58549, 1991 WL 95061, *3 (May 30, 1991); State v.
Mahmoud, 2016 ME 135, 147 A.3d 833, ¶ 12-13; Commonwealth v. Gomes, 470 Mass.
352, 369-376, 22 N.E.3d 897 (2015); State v. Guilbert, 306 Conn. 218, 234-237, 49 A.3d
705 (2012); State v. Lawson, 352 Or. 724, 739-740, 291 P.3d 673 (2012); State v.
Henderson, 208 N.J. 208, 245-247, 253-254 and 267, 27 A.3d 872 (2011); State v. Long,
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721 P.2d 483, 488-490 (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-
40 Ohio St. 3d 277, 533 N.E.2d 682 (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, 42 Ohio St. 3d at 24, 537 N.E.2d 188.
{¶ 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, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), although the Court
drew the substance of the test from its earlier decision in Neil v. Biggers, 409 U.S. 188,
93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). Manson at 114; see also Biggers at 199-200.
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. Id. at 193:10-194:2.
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.
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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.
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{¶ 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