State v. Rac, 27536

CourtUnited States Court of Appeals (Ohio)
Citation2019 Ohio 893,124 N.E.3d 878
Docket NumberNo. 27536,27536
Parties STATE of Ohio, Plaintiff-Appellant v. Davor RAC, Defendant-Appellee
Decision Date15 March 2019
OPINION

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.

{¶ 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 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 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 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 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 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 membe...

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6 cases
  • State v. Turney
    • United States
    • United States Court of Appeals (Ohio)
    • June 12, 2020
    ...2018 WL 1578825, ¶ 27. But whether a jury instruction correctly states the applicable law is reviewed de novo. State v. Rac , 2019-Ohio-893, 124 N.E.3d 878, ¶ 17 (2d Dist.), citing Echevarria . Under either review standard, a jury instruction " ‘must be viewed in the context of the overall ......
  • State v. Turney, Appellate Case No. 28364
    • United States
    • United States Court of Appeals (Ohio)
    • June 12, 2020
    ...No. 105815, 2018-Ohio-1193, ¶ 27. But whether a jury instruction correctly states the applicable law is reviewed de novo. State v. Rac, 2019-Ohio-893, 124 N.E.3d 878, ¶ 17 (2d Dist.), citing Echevarria. Under either review standard, a jury instruction " 'must be viewed in the context of the......
  • State v. Baker
    • United States
    • United States Court of Appeals (Ohio)
    • May 6, 2021
    ...2017 WL 11603285, ¶ 1 ); "the trial court's decision to instruct the jury regarding the fallibility of human memory" ( State v. Rac , 2019-Ohio-893, 124 N.E.3d 878, ¶ 1 (2d Dist.) ); and "the trial courts issuance of a jury instruction regarding a detective's non-compliance with R.C. 2933.8......
  • State v. Baker
    • United States
    • United States Court of Appeals (Ohio)
    • May 6, 2021
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1 books & journal articles
  • Witness
    • United States
    • James Publishing Practical Law Books Trial Objections
    • May 5, 2022
    ...content of her prior statements to lay the foundation for admission of extrinsic evidence of statements. State v. Rac , 2019-Ohio-893, 124 N.E.3d 878 (Ohio Ct. App. 2019). The trial court abused its discretion by administering preliminary jury instructions, regarding the fallibility of huma......

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