State v. Mabberly
| Decision Date | 15 March 2019 |
| Docket Number | Appellate Case No. 27729 |
| Citation | 2019 Ohio 891 |
| Parties | STATE OF OHIO Plaintiff-Appellee/Cross-Appellant v. JERRY A. MABBERLY Defendant-Appellant/Cross-Appellee |
| Court | Ohio Court of Appeals |
(Criminal Appeal from Common Pleas Court)
OPINIONMATHIAS 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
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.
{¶ 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 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.
{¶ 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 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'sreiterated 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.
{¶ 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 byoverruling 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 (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...
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