State v. Pettiford, Appellate Case No. 27490

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtWELBAUM, P.J.
Citation2019 Ohio 892
PartiesSTATE OF OHIO Plaintiff-Appellant v. STEPHEN M. PETTIFORD Defendant-Appellee
Decision Date15 March 2019
Docket NumberAppellate Case No. 27490

2019 Ohio 892

STATE OF OHIO Plaintiff-Appellant
STEPHEN M. PETTIFORD Defendant-Appellee

Appellate Case No. 27490


March 15, 2019

Trial Court Case No. 2016-CR-2713

(Criminal Appeal from Common Pleas Court)


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-Appellant

MICHAEL T. GMOSER, Atty. Reg. No. 0002132 and LINA N. ALKAMHAWI, Atty. Reg. No. 0075462, 315 High Street, 11th Floor, Hamilton, Ohio 45011 Attorneys 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

MARCY A. VONDERWELL, Atty. Reg. No. 0078311, P.O. Box 24805, Dayton, Ohio 45424 Attorney for Defendant-Appellee

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JOHN K. CARROLL, Atty. Reg. No. 0002288, 4 Times Square, Suite 39-336, New York, New York 10036 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

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


{¶ 1} Following Stephen Pettiford's acquittal on a single count of importuning, the State of Ohio filed a motion seeking leave to appeal under R.C. 2945.67(A) and App.R. 5(C). We granted the State's motion, and the State then filed a brief raising one assignment of error directed to instructions the trial court gave to the jury. Specifically, the State contends that the court abused its discretion by instructing the jury on the "fallacies" of memory. According to the State, the instructions were improperly based on the court's opinion, rather than the law.

{¶ 2} During the appeal, we granted leave to various amicus curiae, including the Butler County, Ohio, Prosecutor's Office, the Ohio Crime Victim Justice Center ("Victim Justice Center"), and the Innocence Project, all of whom assisted our understanding of the issues before us. We have carefully considered the arguments presented by all participants in the appeal.

{¶ 3} After considering the record and applicable law, we conclude that the trial court's jury instructions on fallacies of memory were based on legal authority supporting

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the instructions, rather than the court's opinion. However, the trial court erred when it instructed the jury on memory science studies. Neither side presented expert testimony, nor did the court call an expert witness using appropriate procedures under Evid.R. 614. At this stage of legal development in Ohio, the science of witness memory relating to identification is the proper subject of expert testimony rather than the use of these disputed jury instructions. Furthermore, this case does not involve identification, as the defendant and alleged victim were acquainted with each other. Accordingly, the State's sole assignment of error will be sustained. Due to Pettiford's acquittal, however, trial court's judgment will not be disturbed, because Pettiford cannot be placed twice in jeopardy.

{¶ 4} For the foregoing reasons, we also find 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 that if so presented, a preliminary or final jury instruction that appears to support or not support such testimony is inappropriate.

{¶ 5} We also conclude that a concise, limited, and neutral memory or identification instruction which accords with controlling precedent may be appropriate; whether such instruction may require pre-trial expert evidence, subject again to the adversarial process, would depend on the precise wording of the instruction.

{¶ 6} Finally, we find that the instructions given in this case did not comply with our conclusions herein.1

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I. Facts and Course of Proceedings

{¶ 7} This action arose from events that occurred in June 2016, during which Pettiford allegedly approached C.F., a 12-year old girl, and offered to give her money to engage in sexual conduct. Pettiford was 23 years old at the time.

{¶ 8} In September 2016, an indictment was filed, charging Pettiford with recklessly soliciting a person who was less than 13 years old to engage in sexual activity in violation of R.C. 2907.07(A), a third-degree felony. After Pettiford pled not guilty to the charge, a jury trial was held in February 2017, during which the State presented testimony from the following individuals: C.F., the alleged victim; C.F.'s grandmother; C.F.'s uncle; and an investigating police officer. The defense presented testimony from Pettiford, who denied the alleged conduct, and from two other witnesses. After hearing the evidence, the jury found Pettiford not guilty of the charge, and the trial court discharged him. The State then filed a timely motion for leave to appeal in order to challenge the trial court's jury instructions.

II. Alleged Abuse of Discretion in Instructing the Jury

{¶ 9} The State's sole assignment of error is as follows:

The Trial Court Abused Its Discretion by Giving Jury Instructions Regarding the Fallacies of Memory that Represented Opinion Rather than Law.

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{¶ 10} Under this assignment of error, the State contends that the trial court's instructions were not supported by the law and also improperly represented a one-sided opinion about the fallacy of memory without mentioning factors that support the reliability of memory. Before addressing these points, we will briefly discuss the applicable legal standards.

A. Appeal Under R.C. 2945.67

{¶ 11} As noted above, we granted the State leave to appeal under R.C. 2945.67(A), which gives us discretionary authority to hear appeals from decisions that are adverse to the State, other than final judgments. State v. Bistricky, 51 Ohio St. 3d 157, 555 N.E.2d 644 (1990), syllabus. Even though no current case in controversy exists due to double jeopardy principles, appellate review is nonetheless allowed where "the underlying legal question is capable of repetition yet evading review." Id. at 158, citing Storer v. Brown, 415 U.S. 724, 737, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), fn. 8. (Other citation omitted.) This point is particularly apt here, because the trial judge has specifically said that he will continue to instruct juries in every case as he has here. Transcript of Proceedings ("Tr.") p. 267.

{¶ 12} Courts have refused to allow appeal of jury instructions where the error would be limited to the facts within a particular case, or where the State does not claim that the instruction is an incorrect statement of law. See, e.g., State v. Gott, 6th Dist. Lucas No. L-11-1086, 2011-Ohio-3608, ¶ 15. However, that is not the situation here, as the State contends that the trial court's instruction incorrectly stated the law. Accordingly, we will consider the State's argument.

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B. Applicable Law Concerning Jury Instructions

{¶ 13} In the context of jury instructions, trial courts have certain duties under Crim.R. 30. In the case before us, the trial court included instructions on memory during preliminary instructions and in the final charge to the jury. Regarding preliminary instructions, Crim.R. 30(B) provides that:

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

{¶ 14} The Supreme Court of Ohio has stressed that "Crim.R. 30(B) plays an important part in the trial process. Preliminary instructions prepare the jury for trial providing orientation so the jury is properly informed as to its duties and responsibilities." State v. Comen, 50 Ohio St.3d 206, 209, 553 N.E.2d 640 (1990).

{¶ 15} Because the trial court's actions under this part of the rule are discretionary, we will not disturb the court's actions 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). An abuse of discretion signifies a trial court attitude that is arbitrary, unconscionable, or unreasonable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Nonetheless, "most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary." AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

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N.E.2d 597 (1990). Decisions are unreasonable if they are unsupported by a sound reasoning process. "It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result." Id.

{¶ 16} The duties under Crim.R. 30(A) are slightly different, as this part of the rule imposes a mandatory duty on the court. Comen at 209. Thus, after arguments have been completed, the court must "fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder." Id. at 210.

C. Preliminary Instructions Given Under Crim.R. 30(B)

{¶ 17} In the case before us, the trial court gave the jury preliminary instructions about memory. See Tr. at pp.123-126. The court had drafted these...

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