[Cite as State v. Rac, 2019-Ohio-893.]




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

 STATE OF OHIO                                  :
                                                :
         Plaintiff-Appellant                    :   Appellate Case No. 27536
                                                :
 v.                                             :   Trial Court Case No. 2016-CR-4002
                                                :
 DAVOR RAC                                      :   (Criminal Appeal from
                                                :    Common Pleas Court)
         Defendant-Appellee                     :
                                                :

                                          ...........

                                          OPINION

                             Rendered on the 15th day of March, 2019.

                                          ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellant

ADELINA E. HAMILTON, Atty. Reg. No. 0078595, 117 S. Main Street, Suite 400, Dayton,
Ohio 45422
      Attorney for Defendant-Appellee

MICHAEL T. GMOSER, by LINA N. ALKAMHAWI, Atty. Reg. No. 0075462, Butler County
Prosecutor’s Office, Appellate Division, Government Services Center, 315 High Street,
11th Floor, Hamilton, Ohio 45011
                                                                                          -2-


       Attorney for Amicus Curiae, Butler County Prosecutor’s Office

SARAH C. LARCADE, Atty. Reg. No. 0095905, and ELIZABETH A. WELL, Atty. Reg. No.
0087750, 3976 North Hampton Drive, Powell, Ohio 43065
     Attorneys for Amicus Curiae, Ohio Crime Victim Justice Center

SARAH GROSSNICKLE, Atty. Reg. No. 20869, 1000 Louisiana Street, Suite 6800,
Houston, Texas 77002
      Attorney for Amicus Curiae, The Innocence Project, Inc.

ALEXIS AGATHOCLEOUS, Atty. Reg. No. 0002298, 40 Worth Street, Suite 701, New
York, New York 10013
       Attorney for Amicus Curiae, The Innocence Network, The Innocence Project, Inc.,
       and The Ohio Innocence Project

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

FROELICH, J.

       {¶ 1} A jury found Davor Rac not guilty of a single count of domestic violence under

R.C. 2919.25(A). With leave of this Court, the State of Ohio appeals from the trial court’s

decision to instruct the jury regarding the fallibility of human memory. As we find that the

trial court erred by giving the challenged preliminary jury instructions in this case, the

State’s assignment of error is sustained.

                     Factual Background and Procedural History

       {¶ 2} On December 30, 2016, a Montgomery County grand jury indicted Rac on

one count of domestic violence, based on Rac’s alleged assault on his live-in girlfriend.

Because Rac had been convicted of two or more prior domestic violence offenses,1 this

offense was charged as a third-degree felony under R.C. 2919.25(D)(4). The matter

proceeded to a jury trial.


1
 Prior to trial, the parties entered a joint stipulation as to the two prior convictions; Rac
waived a jury trial on those elements of the felony domestic violence offense. (See Tr.
13).
                                                                                       -3-


       {¶ 3} Over the State’s objection, after the jury was empaneled, but before opening

statements, the trial court read to the jury “preliminary instructions” that included the

following:

             It is for you alone to decide the believability of witnesses and the

       weight to give their testimony. In making these decisions you will apply the

       tests of truthfulness that you apply in your daily lives. These tests include

       the appearance of each witness on the stand; the witness’[s] manner of

       testifying; the reasonableness of the testimony; the opportunity the witness

       had to see, hear and know the things about which he or she testified; the

       witness’[s] accuracy of memory, frankness or lack of it[,] intelligence,

       interest and bias, if any[;] together with all the facts and circumstances

       surrounding the testimony. In applying these tests, you will assign to the

       testimony of each witness such weight as you deem proper.2

             Importantly, imperfect memory is the norm. Memory is imperfect and

       is 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 itself based upon a witness’[s] biases and

       experiences. Memory is not infallible and it should not be treated as such.

             Errors in memory are often driven by bias and experience because

       human brains are geared to look for regularities in the world. Indeed, people



2
 This paragraph is consistent with Ohio Jury Instructions, CR Section 409.05 (Rev. Aug.
15, 2012).
                                                                                 -4-

may actually remember nonexistent information based upon their

expectations. Eyewitnesses, jurors and judges are not immune to this

reality. This is not abnormal. If we think an event should’ve happened in a

certain way on the basis of our previous experience we’re likely to think that

the event did, indeed, happen in that fashion even if it did not.

       Previously learned information, including experiences and biases,

can influence the learning of new information. Whatever happens in an

event becomes associated not just with the elements actually present in the

event but also what we expect 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 may well adversely affect

accurate recall of the memory. This is because recent memories compete

with older memories at the time of retrieval and simply retrieving a memory

can make it subject to alteration or even elimination.

       For example, memory distortion can occur unconsciously merely

with retelling. Repeated questioning about an event can increase a

witness’[s] confidence in the accuracy of the memory. Leading and

misleading questions can imply facts not actually presented into evidence

by a witness. Consider the difference in these two questions – when did you

see the gun versus did you see a gun. Slight variations in the wording of

questions can result in memory distortion. For example, asking how fast

was the black car going when it slammed into the white car can result in a
                                                                                      -5-

      memory for increased speed as opposed to merely asking how fast was the

      black car going when it contacted the white car. Indeed, a question using

      the word “slammed” is more likely to elicit false memories of broken glass

      in an accident.

             The general belief that confident detailed memories are always

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

      quite possible[:] that confidently recalled memories can sometimes be

      inaccurate and that real memories are not always highly confident or

      detailed.

             In s[um], eyewitness memory should not be considered indelible

      even if the events were traumatic. Witnesses’[s] biases and experiences will

      change over time. New information or misinformation can alter memory.

             A witness’[s] confidence in accuracy is no guarantee that memory is

      indeed accurate because humans have a tendency to fill in gaps in any

      given memory.

             You are not required to believe the testimony of any witness simply

      because the testimony was given under oath. You may believe or disbelieve

      all or part of the testimony of any witness.3

(Emphasis added.) (Tr. 167-169).

      {¶ 4} In its case in chief, the State presented the testimony of Rac’s girlfriend,

Wanda, and that of two police officers who responded to Wanda’s complaint. Wanda



3
 The final paragraph also is taken from Ohio Jury Instructions, CR Section 409.05 (Rev.
Aug. 15, 2012).
                                                                                              -6-


testified that she and Rac had dated “[o]n and off” for four or five years prior to the night

in question. On December 24, 2016, the two were living together in a pay-by-the-week

motel in Miami Township. Wanda, who was working nights, awoke at about 3 p.m. and

told Rac that she wanted to go to Kroger for groceries before the store closed at 6 p.m.

Rac expressed anger that Wanda was leaving immediately after getting up. When Wanda

returned from grocery shopping, Rac, still “in a bad mood,” left the hotel room and

returned with a six-pack of beer. To avoid confrontation, Wanda went to bed, while Rac

sat in a chair in front of the television, drinking.

       {¶ 5} Wanda testified that when she awoke later that night, Rac was “passed out”

in the same chair, but soon woke up “pretty drunk” and “just started cussing.” According

to Wanda, Rac walked over and punched the refrigerator twice, then picked up a chair as

if to throw it at Wanda, but instead threw it to the floor. Rac next pulled from the refrigerator

a ham that Wanda had received as a Christmas gift, cutting it “real violently” while talking

about how much he wanted to kill Wanda. He threw the knife into the sink and ran toward

Wanda, shoving her head and neck “down into [her] shoulder blades,” causing pain that

lasted nearly two weeks. When Rac stepped away, Wanda grabbed her coat, phone, and

purse and fled the room. She sat in her car for about 10 minutes before returning to the

room to see if Rac had “calmed down.” When Rac immediately began yelling, Wanda left

the room again and called the police. Wanda waited about 15 minutes for two police

officers to arrive, then admitted the officers to the hotel room with her key card. On cross-

examination, Wanda acknowledged that she did not seek medical treatment for her neck

pain and had no visible signs of injury.

       {¶ 6} Officer Crystal Hart of the Miami Township police department testified that
                                                                                       -7-


she met Officer Shawn Todd and a “frightened,” tearful Wanda outside the motel. After

reporting that her boyfriend had been drinking and had assaulted her by “slamm[ing]” his

hands down on her head, Wanda used her key card to let Officers Hart and Todd into the

motel room. Inside, Officer Hart saw dents in the refrigerator and several steak knives in

the sink. The officer said that Rac, who was sitting in a chair watching television, was

“nonchalant” at first, not even acknowledging the officers’ presence, but became

increasingly “aggressive” in response to their questions. When Rac began yelling at

Wanda and calling her names, Officers Hart and Todd took him into custody to avoid

disrupting other sleeping motel guests. Rac was non-compliant and “very combative,”

even as the officers tried to help him put on some pants before taking him outside. Based

on her experience, Officer Hart testified that Rac “absolutely” was intoxicated, with a

strong odor of alcohol, slurred speech, and lack of balance. The officers placed Rac in

Officer Todd’s cruiser. Officer Hart confirmed that Wanda declined to have medics called

and had no obvious signs of injury.

      {¶ 7} Officer Todd testified similarly regarding his interactions with Wanda and Rac

shortly before midnight on December 24, 2016. He said that Wanda was crying and

“visibly shaken” when he arrived outside the motel. He detected nothing to suggest that

Wanda was impaired by drugs or alcohol. Once inside the motel room, he saw Rac seated

in front of a television wearing only underwear. Rac looked at the officers, then turned

back around and resumed watching television. Officer Todd opined that Rac was

intoxicated and “seemed to have mood swings;” he would act dismissively of the officers,

have “outbursts” of screaming profanities at Wanda and the officers, “[t]hen he’d go back

to ignoring me.” When the officers asked for his version of events, Rac denied any
                                                                                          -8-


altercation with Wanda, but offered no explanation for her allegations. Because Rac

kicked at Officer Todd when the officers tried to get him to put on pants, they ultimately

took him to the cruiser in his underwear.

       {¶ 8} The defense presented no witnesses, but argued in closing that the evidence

“boils down to Wanda[’s] * * * word” (Tr. 266) and that Wanda “ma[d]e up” the accusation

against Rac. (Tr. 267). At the close of evidence, the State repeated its objection to the

preliminary instructions regarding memory (Tr. 254); the trial court’s final instructions

omitted the prior detailed discussion of memory, adhering to the language of Ohio Jury

Instructions, CR Section 409.05 (Rev. Aug. 15, 2012). (See Tr. 259-260). The court

further instructed the jury that the parties had stipulated that Wanda was a “household

member” for purposes of domestic violence. (Tr. 262). After deliberating, the jury returned

a verdict of not guilty. (Tr. 286).

       {¶ 9} The State thereafter sought leave to pursue this appeal challenging the trial

court’s preliminary jury instructions. We granted that motion, as well as motions by the

Butler County (Ohio) Prosecutor’s Office, the Ohio Crime Victim Justice Center, the

Innocence Project, Inc., the Innocence Network, and the Ohio Innocence Project to file

amicus curiae briefs.

       {¶ 10} In its single assignment of error, the State argues that “[t]he trial court

abused its discretion by giving jury instructions regarding the fallacies of memory that

represented opinion rather than law.”

                          Law Regarding Discretionary Appeals

       {¶ 11} R.C. 2945.67(A) provides that a prosecuting attorney “may appeal by leave

of the court to which the appeal is taken[,] any * * * decision, except the final verdict, of
                                                                                             -9-


the trial court in a criminal case.” That provision grants a court of appeals “discretionary

authority to review substantive law rulings * * * which result in a judgment of acquittal so

long as the judgment itself is not appealed.” State v. Bistricky, 51 Ohio St.3d 157, 555

N.E.2d 644 (1990), syllabus. Even where principles of double jeopardy preclude retrial so

that no current controversy exists, appellate review is permitted if “the underlying legal

question is capable of repetition yet evading review.” (Citations omitted.) Id. at 158.

       {¶ 12} Courts have refused to allow State appeals challenging jury instructions

where any error was limited to the facts of the particular case and the State does not

claim that the instruction incorrectly stated the law. See, e.g., State v. Gott, 6th Dist. Lucas

No. L-11-1086, 2011-Ohio-3608, ¶ 15. Here, however, the trial court has signaled its

intent to use in future cases the same preliminary jury instructions given during Rac’s trial

(see Tr. 4-20), and the State contends that those instructions represent an incorrect

statement of law. Because, from the State’s perspective, the propriety of the instructions

is an issue “capable of repetition yet evading review,” see Bistricky at 158, we granted

the State’s motion for leave to pursue this discretionary appeal.

            Standard of Review Regarding Preliminary Jury Instructions

       {¶ 13} “The purpose of jury instructions is to properly guide the jury” in deciding

questions of fact based on the applicable substantive law. Griffis v. Klein, 2d Dist.

Montgomery No. 19740, 2004-Ohio-3699, ¶ 48. With regard to preliminary jury

instructions, Crim.R. 30(B) provides:

       At the commencement and during the course of the trial, the court may give

       the jury cautionary and other instructions of law relating to trial procedure,

       credibility and weight of the evidence, and the duty and function of the jury
                                                                                              -10-


       and may acquaint the jury generally with the nature of the case.

       {¶ 14} Crim.R. 30(B) “plays an important part in the trial process.” State v. Comen,

50 Ohio St.3d 206, 209, 553 N.E.2d 640 (1990). “Preliminary instructions prepare the jury

for trial [by] providing orientation so the jury is properly informed as to its duties and

responsibilities.” Id. “A trial court, however, is not required to give preliminary instructions,”

but may do so at its discretion. State v. Grant, 67 Ohio St.3d 465, 476, 620 N.E.2d 50

(1993). See also Mont. Co. C.P.R. 1.23(K)(2)(a).

       {¶ 15} Although a trial court “has broad discretion to decide how to fashion jury

instructions,” such instructions must “present a correct, pertinent statement of the law that

is appropriate to the facts” of the case. State v. White, 142 Ohio St.3d 277, 2015-Ohio-

492, 29 N.E.3d 939, ¶ 46, citing State v. Griffin, 141 Ohio St.3d 392, 2014-Ohio-4764, 24

N.E.3d 1147, ¶ 5; State v. Lessin, 67 Ohio St.3d 487, 493, 620 N.E.2d 72 (1993).

Accordingly, “a court should not give an instruction unless it is specifically applicable to

the facts in the case.” State v. Fritz, 163 Ohio App. 3d 276, 2005-Ohio-4736, 837 N.E.2d

823, ¶ 19 (2d Dist.), citing State v. Guster, 66 Ohio St.2d 266, 421 N.E.2d 157 (1981). “A

trial court has discretion to determine whether the evidence adduced at trial was sufficient

to warrant an instruction.” State v. Austin, 8th Dist. Cuyahoga Nos. 106215 and 106530,

2018-Ohio-3048, ¶ 54, citing State v. Fulmer, 117 Ohio St.3d 319, 2008-Ohio-936, 883

N.E.2d 1052, ¶ 72. “In reviewing the record to ascertain the presence of sufficient

evidence to support the giving of a [particular] jury instruction, an appellate court should

determine whether the record contains evidence from which reasonable minds might

reach the conclusion sought by the instruction.” State v. Stevens, 2017-Ohio-498, 85

N.E.3d 119, ¶ 37 (12th Dist.), citing State v. Davis, 2016-Ohio-1166, 61 N.E.3d 650, ¶ 35
                                                                                            -11-


(12th Dist.).

       {¶ 16} A trial court’s actions as to preliminary jury instructions should not be

disturbed absent an abuse of discretion. State v. Valentine, 2d Dist. Montgomery No.

13192, 1992 WL 137101, *3 (June 19, 1992), citing State v. Frost, 14 Ohio App.3d 320,

322, 471 N.E.2d 171 (11th Dist.1984). The facts and circumstances of the case are

relevant in determining whether a trial court abused its discretion in giving a particular

instruction. State v. Grissom, 2d Dist. Montgomery No. 25750, 2014-Ohio-857, ¶ 30, citing

State v. Fair, 2d Dist. Montgomery No. 24388, 2011-Ohio-4454, ¶ 65. “A trial court abuses

its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary,”

Id., citing State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.

“An abuse of discretion includes a situation in which the trial court did not engage in a

‘sound reasoning process’.” Id., quoting State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-

2407, 972 N.E.2d 528, ¶14; see also State v. Underwood, 2d Dist. Montgomery No.

26711, 2016-Ohio-1101, ¶ 9 (abuse of discretion includes decisions that are “grossly

unsound, unreasonable, illegal, or unsupported by the evidence”).

       {¶ 17} A different standard of review is implicated when an appellant contends that

a jury instruction misstated the applicable law, however. See, e.g., State v. Glenn, 2d

Dist. Montgomery No. 27639, 2018-Ohio-2326, ¶ 20 (“Although we generally review trial

court decisions related to * * * proper jury instructions for an abuse of discretion, * * * [w]e

review questions of law de novo.”). “Whether jury instructions correctly state the law is a

legal issue that an appellate court reviews de novo.” State v. Echevarria, 8th Dist.

Cuyahoga No. 105815, 2018-Ohio-1193, ¶ 27, citing State v. Dean, 146 Ohio St.3d 106,

2015-Ohio-4347, 54 N.E.3d 80, ¶ 135; State v. Brown, 2016-Ohio-1358, 62 N.E.3d 945,
                                                                                            -12-


¶ 71 (11th Dist.). “If * * * the jury instructions incorrectly state the law, then an appellate

court will conduct a de novo review to determine whether the incorrect jury instruction

probably mislead [sic] the jury in a manner materially affecting the complaining party’s

substantial rights.’ ” Id., quoting State v. Barker, 11th Dist. Portage No. 2010-P-0044,

2014-Ohio-522, ¶ 91.

       {¶ 18} Under either standard of review, a jury instruction to which an objection

has been made “ ‘must be viewed in the context of the overall charge, * * *’ rather than in

isolation.” State v. Burchfield, 66 Ohio St.3d 261, 262, 611 N.E.2d 819 (1993), quoting

State v. Price, 60 Ohio St.2d 136, 398 N.E.2d 772 (1979), paragraph four of the syllabus.

Overall, “[t]he relevant principle for jury instructions is not one of abstract correctness, but

is whether an instruction – even if a correct statement of the law – is potentially

misleading.” State v. Banks, 2015-Ohio-5413, 56 N.E.3d 289, ¶ 47 (8th Dist.), quoting

White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, at ¶ 52.

                          Preliminary Jury Instructions at Issue

       {¶ 19} The State urges that the trial court both abused its discretion and committed

“an unmistakable error of law” by instructing the jury as it did about the fallibility of

memory. More specifically, the State argues that the trial court adopted “the untested and

unproven opinions of” a single, non-testifying expert in the field of memory 4 and

presented those opinions to the jury as statements of law, even though they were “wholly



4
  The expert on whom the trial court relied (see Tr. 6, 10) is Dr. Craig Stark, a professor
of neurobiology and behavior at the University of California, Irvine. According to the State,
during the trial of State v. Pettiford, 2d Dist. Montgomery No. 27490, Montgomery C.P.
No. 2016-CR-2713 (see ¶ 36, below), the trial court also indicated that it had conferred
with Dr. Stark in crafting the memory instructions at issue. (See Brief of Appellant, p. 10,
fn. 2).
                                                                                          -13-


unsupported by law” and in some instances “may very well be unsupported by fact.”

       a. Alleged Error Regarding Substance of Instructions

       {¶ 20} The State, which bears the burden on its appeal, does not provide citations

to support its assertion that the preliminary jury instructions about memory given by the

trial court were “wholly unsupported by law.” Moreover, after reviewing the legal

precedents advanced in the appellate briefs, we do not agree that the instructions given

by the trial court were completely devoid of legal support. Although the Ohio Supreme

Court has not addressed the specific issue now before us, this Court previously has

opined, in dicta, that the factors currently applied to evaluate the credibility of eyewitness

identifications may not fully reflect “the significant advancement of scientific

understanding of memory.” State v. Mayberry, 2d Dist. Montgomery No. 27530, 2018-

Ohio-2220, ¶ 16, fn. 2; State v. McComb, 2017-Ohio-4010, 91 N.E.3d 255, ¶ 32, fn. 1 (2d

Dist.); State v. Moody, 2d Dist. Montgomery No. 26926, 2016-Ohio-8366, ¶ 12, fn. 3; State

v. Frazier, 2016-Ohio-727, 60 N.E.3d 633, ¶18, fn. 1 (2d Dist.). Furthermore, authority

from other jurisdictions offers support for certain discrete jury instructions regarding the

fallibility of human memory. See, e.g., State v. Henderson, 208 N.J. 208, 27 A.3d 872

(2011); Commonwealth v. Gomes, 470 Mass. 353, 22 N.E.3d 897 (2015); State v.

Mahmoud, 2016 ME. 135, 147 A.3d 833 (2016).

       {¶ 21} In what generally appears to be recognized as the seminal case on this

issue, the New Jersey Supreme Court determined that the scientific evidence presented

had proven that “memory is malleable” and that “an array of variables can affect and dilute

memory.” Henderson at 247. Although the specific issue before that court concerned the

reliability of an eyewitness identification obtained through a photo array, id. at 222-224,
                                                                                            -14-

the court in Henderson reviewed a wide range of scientific studies and a number of

variables that such studies indicate may affect a witness’s memory, id. at 247-274, before

concluding that “enhanced jury instructions” would lessen the need for expert testimony

regarding the factors that impact the reliability of eyewitness testimony. Id. at 298. The

Maine Supreme Judicial Court likewise has concluded that evolving scientific research

regarding memory and the reliability of eyewitness identifications supports, “where

relevant, * * * instruct[ing] jurors on the reliability of eyewitness identification.” (Emphasis

added). Mahmoud at ¶ 13, 14.5

       {¶ 22} In Gomes, the Massachusetts Supreme Judicial Court held that the trial

court in the case before it did not err by declining to give specific jury instructions about

eyewitness identification requested by the defendant, because the defendant “offered no

expert testimony, scholarly articles, or treatises that established that [the principles set

forth in the proposed instructions] were ‘so generally accepted that ... a standard jury

instruction stating [those principles] would be appropriate.’ ” (Ellipsis sic.) Gomes at 353.

The court then continued its analysis, however, “tak[ing] this opportunity to revisit [its]

jurisprudence regarding eyewitness identification jury instructions * * *.” Id. at 360.6



5
 The court in Mahmoud specifically noted that such an instruction ordinarily would not be
appropriate “in instances when the identified person is already known to the witness.”
Mahmoud at ¶ 14.
6
  See also Bomas v. State, 412 Md. 392, 423, 987 A.2d 98 (2010), where Maryland’s
highest court affirmed a lower court holding that proffered expert testimony about the
unreliability of eyewitness identifications was inadmissible, for reasons including
“[in]adequate citation to studies or data” and an “insufficient[ ] relat[ionship] to the
identifications at issue.” Nevertheless, that court, too, discussed the prospect of updating
the state’s standard criminal jury instructions to reflect recent scientific advances. Id. at
418.
                                                                                         -15-


       {¶ 23} After reviewing a report compiled by “the Supreme Judicial Court Study

Group on Eyewitness Evidence” it previously had convened to explore the issue, id. at

354, 360-361, the court in Gomes proposed “a new provisional jury instruction”

incorporating five “generally accepted principles” about eyewitness identification it found

to have been established through scientific research. Id. at 376, 379-388.7 The principles

there deemed to be “so generally accepted” as to warrant inclusion in a model jury

instruction included:

             Human memory does not function like a video recording but is a

              complex process of three stages: acquisition, retention, and retrieval.

             An eyewitness’s expressed certainty in an identification, standing

              alone, may not indicate the accuracy of the identification, especially

              where the witness did not describe that level of certainty when the

              witness first made the identification.

             High levels of stress can reduce an eyewitness’s ability to make an

              accurate identification.

             Information that is unrelated to the initial viewing of the event, which

              an eyewitness receives before or after making an identification, can

              influence the witness’s later recollection of the memory or of the

              identification.

             A prior viewing of a suspect at an identification procedure may

              reduce the reliability of a subsequent identification procedure in


7
 The “Study Group” and subsequent actions outlined in Gomes apparently are part of a
process instituted in Massachusetts for generating provisional jury instructions and
soliciting public comment thereon; no comparable process exists in Ohio.
                                                                                          -16-


                which the same suspect is shown.

Id. at 369-376.

       {¶ 24} Similarly, Judge Mark W. Bennett of the United States District Court for the

Northern District of Iowa advocates for the adoption of model jury instructions on the topic

of witness credibility, and regularly uses such instructions in cases over which he

presides. See 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, 1374-1375 (2015), fn. 280.

       {¶ 25} Nevertheless, despite such examples of legal support for some of the

general concepts embodied within the preliminary jury instructions at issue in this case,

we cannot determine from the record before us whether the entirety of the preliminary

jury instructions given by the trial court represents “a correct, pertinent statement of the

law” based on the current scientific consensus about human memory “that is appropriate

to the facts” of this case. See White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939,

at ¶ 46. Notably, the State has failed to sustain its burden as to this assignment of error

by identifying any controlling law to the contrary. Absent such adverse authority, we

cannot say that the trial court committed an error of law with respect to its preliminary jury

instructions.

       {¶ 26} We also lack a sufficient basis to conclude that the trial court’s preliminary

jury instructions taken as a whole amount to a correct statement of law. Neither the Ohio

Supreme Court nor any Ohio court of appeals has approved instructions such as those

given by the trial court in this instance. Where an opinion is based on science that has

not previously been formally accepted as reliable, a trial court errs by permitting that
                                                                                          -17-

opinion to be presented to a jury without first determining its reliability and relevance. See

State v. Shalash, 2014-Ohio-2584, 13 N.E.3d 1202, ¶ 46, 52 (12th Dist), citing Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469

(1993).8 Parties must be permitted to explore whether an opinion “both rests on a reliable

foundation and is relevant to the task at hand.” See Daubert at 597; see also Terry v.

Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, 875 N.E.2d 72, ¶ 24-26.

       {¶ 27} In this case, the trial court completely bypassed that adversarial vetting

process, denying the parties any meaningful opportunity to explore the basis for the

opinions on which the court’s preliminary instructions were based. In so doing, the trial

court presented to the jury by way of a preliminary jury instruction what it would have been

error to present through an expert witness who had not been subjected to examination

prior to testifying. See Shalash at ¶ 52. Indeed, the problem identified in Shalash was

compounded herein by the fact that the expert’s (Dr. Stark’s) opinions were presented not

simply as witness testimony for the jury to consider, but rather as statements of law

coming from the court itself. The record does not contain sufficient evidence “from which

reasonable minds might reach the conclusion [about the fallibility of memory] sought by

the instruction” the trial court gave. See Stevens, 2017-Ohio-498, 85 N.E.3d 119, at ¶ 37.

Therefore, although we cannot determine that the trial court committed an error of law,

we determine that the trial court abused its discretion by administering preliminary jury

instructions without first establishing on the record that that such instructions represented



8This court also has acknowledged that “[t]here is logic in the contention that a court
should consider a challenge to an expert’s testimony prior to ruling” on the issue that
opinion would address. Heltzer-Young v. Elano Corp., 2d Dist. Greene No. 2013-CA-32,
2014-Ohio-1104, ¶ 50.
                                                                                        -18-


a correct statement of law based on the scientific consensus about human memory.

       {¶ 28} This is not to suggest that no means existed by which a jury properly could

have been presented with information about memory other than a verbatim recitation of

the existing Ohio Jury Instructions. The trial court failed to utilize other means at its

disposal that may have created a proper framework for conveying that information to the

jury. For example, under Evid.R. 614, a trial court “may, in the interest of justice, act

impartially in developing facts germane to an issue of fact to be determined by the jury.”

(Emphasis added.) State v. Davis, 79 Ohio App.3d 450, 454, 607 N.E.2d 543 (4th

Dist.1992). The trial court in this case did not employ Evid.R. 614 to call witnesses

regarding the scientific data about memory; the record does not establish the necessary

foundation for the preliminary instructions that were given.

       {¶ 29} Unlike the records in Henderson, 208 N.J. 208, 27 A.3d 872, and Mahmoud,

2016 Me. 135, 147 A.3d 833, the record here does not reflect a plethora of scientific data

supporting the concepts detailed in the trial court’s memory instruction. Instead, the

record before us contains only a synopsis of the trial court’s own understanding of current

scientific opinion about memory, apparently based largely on attending a single

presentation by (and perhaps independently conferring with) a single expert in the field.

(See Tr. 6-10).9 As a result, the circumstances here are more akin to those in Gomes,

where the Massachusetts Supreme Judicial Court affirmed the trial court’s refusal to give


9
  Although one amicus curiae brief includes attachments proffered as supplementary
scientific evidence, those attachments are not part of the record below and thus are not
properly before us for purposes of this appeal. See State v. Ishmail, 54 Ohio St.2d 402,
377 N.E. 500 (1978), paragraph one of the syllabus (“A reviewing court cannot add matter
to the record before it, which was not a part of the trial court’s proceedings, and then
decide the appeal on the basis of the new matter.”).
                                                                                            -19-


proposed jury instructions in the absence of “expert testimony, scholarly articles, or

treatises” substantiating the reliability of the principles set forth in those instructions. See

Gomes, 470 Mass. 353, 22 N.E.3d 897.

       {¶ 30} Similarly, Rac could have offered expert testimony regarding the fallibility of

memory, the State could have examined that expert outside the jury’s presence in order

to challenge the reliability and relevance of the proposed testimony, and the trial court, in

the exercise of its discretion, could have decided whether to admit that testimony subject

to cross-examination. If the expert testimony were admitted, the trial court then could have

instructed the jury on the appropriate factors to be used in weighing that evidence,

pursuant to both Ohio Jury Instructions, CR Sections 409.21(1) and (3) and 409.05.

       {¶ 31} Absent either a proper evidentiary foundation or existing Ohio Supreme

Court authority for the preliminary jury instructions given, the trial court abused its

discretion by instructing the jury, on its own initiative10 and over the State’s objection, as

it did in this case. We agree with the State’s argument that the trial court abused its

discretion in giving the jury instructions that it did, but we disagree that the trial court

committed an error of law.


10 The fact that no party requested such an instruction is significant. “[I]t is not required
in our adversary system that the court, especially absent a supportable, requested
instruction, educate the jury on the science underlying [the law applicable to eyewitness
identification]. Ideally, if warranted, the accused would call an expert on eyewitness
reliability or otherwise bring the rationale for [the applicable law] to the jury’s attention.”
(Emphasis added.) State v. Simpson, 2d Dist. Montgomery No. 25069, 2013-Ohio-1072,
¶ 72 (Froelich, J., concurring). There we cited Bomas, 412 Md. at 418, 987 A.2d 98, as
an example of another state’s highest court suggesting that updated jury instructions
regarding eyewitness testimony may be warranted. As with Henderson, Gomes and
Mahmoud, however, both Simpson and Bomas involved potentially suspect eyewitness
identifications, and thus are not directly on point where (as here) the defendant was well
known to the complainant. The principle, however, is very similar.
                                                                                              -20-

       b. Alleged Error Regarding Application of Instructions in Rac’s Case

       {¶ 32} We further determine that the trial court abused its discretion by instructing

the jury in the manner it did under the facts of this particular case. Significantly, the critical

issue in Henderson, Gomes and Mahmoud was the reliability of an eyewitness’s

identification of the defendant. Indeed, four of the five “generally accepted principles”

identified by the Massachusetts Supreme Judicial Court were directed specifically toward

eyewitness identification evidence. See Gomes, 470 Mass. at 369-376, 22 N.E.3d 897.

In contrast, the complainant’s identification of Rac in this case never was in doubt (see

fn. 5, above); rather, Rac’s defense rested on the theory that his girlfriend of four or more

years had fabricated her alleged injury and/or the entire incident. 11 The challenged

instructions were not “specifically applicable to the facts of the case,” and thus were not

warranted by the evidence presented. See Fritz, 163 Ohio App. 3d 276, 2005-Ohio-4736,

837 N.E.2d 823, ¶ 19; see also Guster, 66 Ohio St.2d 266, 271, 421 N.E.2d 157; Stevens,

2017-Ohio-498, 85 N.E.3d 119, ¶ 37; Davis, 2016-Ohio-1166, 61 N.E.3d 650, ¶ 35.12

       {¶ 33} We also are not persuaded that the trial court’s preliminary memory



11 It is impossible to know why the jury found the defendant not guilty. Arguably, the jury
may have accepted Rac’s argument that the complainant lied about everything, or may
have found that something happened but there was insufficient proof that Rac “knowingly”
(R.C. 2901.22(B) and Ohio Jury Instructions, CR Section 417.11 (Rev. Jan. 10, 2015))
(see Tr. 260-261) “caused or attempted to cause” (Ohio Jury Instructions, CR Sections
417.23 and 523.02) (see Tr. 261-262) “physical harm” (R.C. 2901.01(A)(3) and Ohio Jury
Instructions, CR Section 519.25 (Rev. May 3, 2014)) (see Tr. 262) to Wanda.
12
  Despite the State’s pretrial representation that no “big memory issue” was expected in
this case (see Tr. 4), the trial court may not have known when it gave the preliminary
instructions what the testimony would be. However, the court did not repeat the detailed
information pertaining to memory in its final instructions given after the close of evidence,
thereby underscoring the irrelevance and potentially misleading nature of the preliminary
instruction.
                                                                                          -21-


instruction was appropriate simply because memory arguably is at issue whenever any

witness testifies. As noted in our discussion above, because no expert testimony was

presented, we lack any basis in the record for concluding that the entirety of the instruction

delivered by the trial court accurately represents the current consensus of scientific

opinion regarding memory. In contrast to Gomes, where the trial court was found not to

have erred by refusing to give an instruction in the absence of expert testimony, the trial

court here did err by giving an instruction in the absence of evidentiary support.

       {¶ 34} Furthermore, notwithstanding the trial court’s stated goal of fashioning

“even-handed” memory instructions that “cut both ways” as to the parties’ respective

witnesses (Tr. 10), the form and sheer volume of the memory instructions at issue here

raise the prospect that such instructions may have placed undue emphasis on the

importance of the issue of memory relative to the jurors’ other responsibilities in assessing

evidence. A “potentially misleading” instruction may be erroneous even if it represents a

correct statement of the law. See Banks, 2015-Ohio-5413, 56 N.E.3d 289, at ¶ 47.

Particularly where, as here, the defendant presents no witnesses, instructions that stress

the unreliability of eyewitness testimony without enumerating factors that may be used to

assess the reliability of the prosecution witnesses’ testimony may not advance the neutral

purpose the trial court had intended.

       {¶ 35} As observed by another Ohio appellate court, “Henderson[, 208 N.J. 208,

27 A.3d 872] is not the law in Ohio, and our supreme court has yet to create any precedent

that would allow us as an intermediate court to deviate from [existing standards for

evaluating eyewitness testimony].” State v. Ranzy, 8th Dist. Cuyahoga No. 97275, 2012-

Ohio-2763, ¶ 33. We also do not have the benefit of an established process for officially
                                                                                          -22-


vetting proposed jury instructions derived from evolving scientific knowledge, such as that

outlined in Gomes. Accordingly, while we do not hold that a trial court commits error by

giving any preliminary instruction regarding identification and memory, we conclude,

based on this record, that the trial court abused its discretion by giving the challenged

preliminary jury instructions in this particular case.

                                            Conclusion

       {¶ 36} Also before this Court are the State’s appeals from similar jury instructions

given by the same trial court in State v. Pettiford, 2d Dist. Montgomery No. 27490

(Montgomery C.P. No. 2016-CR-2713), and State v. Mabberly, 2d Dist. Montgomery No.

27729 (Montgomery C.P. No. 2016-CR-2397).                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.

       {¶ 37} The first conclusion that can be reached from the three decisions

collectively is that, unless the Ohio Supreme Court rules otherwise, information

concerning memory and identification can be presented by expert testimony subject to

the adversarial process, but if so presented, a preliminary or final jury instruction that

appears to support or not support such testimony is inappropriate.

       {¶ 38} The second conclusion is that a concise, limited, and neutral memory or

identification instruction which accords with controlling precedent may be appropriate;

whether such an instruction may require pre-trial expert evidence, subject again to the

adversarial process, would depend on the precise wording of the instruction.
                                                                                            -23-


       {¶ 39} Third, the reviewed instructions in each case do not comply with these

conclusions.

                                         Conclusion

       {¶ 40} For the foregoing reasons, the State’s assignment of error is sustained

insofar as we find that the trial court abused its discretion in instructing the jury as it did.

However, this decision has no impact on Rac’s final judgment of acquittal, because he

cannot be twice placed in jeopardy. State v. Pawelski, 178 Ohio App.3d 426, 2008-Ohio-

5180, 898 N.E.2d 85, ¶ 28 (2d Dist.), citing State v. Hensley, 2d Dist. Montgomery No.

18886, 2002 WL 628626 (April 19, 2002).



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



TUCKER, J., concurs.

WELBAUM, P.J., concurs:

       {¶ 41} I concur with the judgment in this case, but I disagree with the language in

the majority opinion to the extent it suggests that, in the absence of Ohio Supreme Court

precedent, trial courts may instruct juries about the science of memory or identification by

conducting a pretrial Daubert hearing, or otherwise, and that after such evidence has

been submitted, courts may instruct jurors in detail on witness 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 Daubert-fortified jury

instructions.
                                                                                        -24-


         {¶ 42} 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 unduly emphasizes the testimony.

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

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

in the absence of controlling authority from the Ohio Supreme Court.

         {¶ 44} Otherwise, I agree with the decision to sustain the State’s assignment of

error.




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