State v. Henry

2024 Ohio 2369

Opinion

[Cite as State v. Henry, 2024-Ohio-2369.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Andrew J. King, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : ERIC HENRY : Case No. 23CAC080044 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Case No. 23TR00055

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 20, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

AMELIA BEAN-DEFLUMER APRIL F. CAMPBELL 70 North Union Street 545 Metro Place South Delaware, OH 43015 Suite 100 Dublin, OH 43017 Delaware County, Case No. 23CAC080044 2

King, P.J.

{¶ 1} Defendant-Appellant, Eric Henry, appeals his July 19, 2023 conviction in

the Municipal Court of Delaware County, Ohio, after the trial court found him competent

to stand trial. Plaintiff-Appellee is the State of Ohio. We affirm the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On December 30, 2022, Ohio State Highway Patrol Trooper S. Church

charged Henry with one count of operating a motor vehicle while under the influence in

violation of R.C. 4511.19, one count of failure to control in violation of R.C. 4511.202, and

one count of driving in marked lanes in violation of R.C. 4511.33.

{¶ 3} On February 22, 2023, Henry requested a competency evaluation. By order

filed March 8, 2023, the trial court granted the request. The evaluation was completed

by Amanda Conn, Psy.D., and Laura Sowers, Psy.D., with Forum Ohio LLC. They

submitted a report and opined that Henry was competent. Henry objected to the report.

{¶ 4} A hearing was held on May 15, 2023. The trial court deemed the report

admissible. Henry requested a second evaluation. The trial court denied the request.

By entries filed May 17, 2023, the trial court found Henry to be competent to stand trial.

{¶ 5} On July 19, 2023, Henry pled no contest to the OVI charge and the

remaining charges were dismissed. By final judgment entry filed on the same date, the

trial court sentenced Henry to one hundred eighty days in jail, one hundred seventy-seven

days suspended. The remaining three jail days were suspended in lieu of Henry

completing a driver intervention program.

{¶ 6} Henry filed an appeal with the following assignment of error: Delaware County, Case No. 23CAC080044 3

I

{¶ 7} "THE TRIAL COURT SHOULD NOT HAVE FOUND HENRY COMPETENT

BECAUSE THE TRIAL COURT CANNOT RELY ON AN INADMISSIBLE COMPETENCY

REPORT."

{¶ 8} In his sole assignment of error, Henry claims the trial court erred in finding

him competent because it relied on an inadmissible competency report. We disagree.

{¶ 9} Due process requires a criminal defendant be competent to stand trial.

State v. Berry, 72 Ohio St.3d 354 (1995). "It has long been accepted that a person who

lacks the capacity to understand the nature and object of the proceedings against him, to

consult with counsel, and to assist in preparing his defense may not be subjected to a

trial." Drope v. Missouri, 420 U.S. 162, 171 (1975). Thus, the conviction of a defendant

who is legally incompetent is a violation of due process.

{¶ 10} The United States Supreme Court set forth the test to determine whether a

defendant is competent to stand trial: "'[the] test must be whether he has sufficient present

ability to consult with his lawyer with a reasonable degree of rational understanding—and

whether he has a rational as well as factual understanding of the proceedings against

him.'" Dusky v. United States, 362 U.S. 402 (1960), quoting the Solicitor General.

{¶ 11} Under R.C. 2945.37, competence to stand trial, subsection (G) states a

defendant is presumed to be competent to stand trial. The subsection goes on to state:

"If, after a hearing, the court finds by a preponderance of the evidence that, because of

the defendant's present mental condition, the defendant is incapable of understanding Delaware County, Case No. 23CAC080044 4

the nature and objective of the proceedings against the defendant or of assisting in the

defendant's defense, the court shall find the defendant incompetent to stand trial . . . ."

The burden is on the defendant to prove by a preponderance of the evidence that he is

not competent. State v. Were, 2008-Ohio-2762, ¶ 45. The Court in Were at ¶ 46 went

on to state:

A trial court's finding that a defendant is competent to stand trial will

not be disturbed when there is some reliable and credible evidence

supporting those findings. State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-

3193, 790 N.E.2d 303, ¶ 33; State v. Williams (1986), 23 Ohio St.3d 16, 19,

23 OBR 13, 490 N.E.2d 906. Deference on these issues should be given

"to those who see and hear what goes on in the courtroom." State v.

Cowans (1999), 87 Ohio St.3d 68, 84, 717 N.E.2d 298.

{¶ 12} The trial court conducted a competency hearing on May 15, 2023. At the

start of the hearing, the following exchange occurred (T. at 4-5):

THE COURT: Certainly 2945.37 outlines that this is an absolutely

admissible - - admissible evaluation. I will hear you out, Mr. Smith, but it is

admissible, and I do find that by a preponderance of the evidence that it is

sufficient. I don't find any glaring mistakes in it unless you want to point

something out. But the bottom line is it is admissible, and I am going to

admit it here today. Delaware County, Case No. 23CAC080044 5

MR. SMITH: Understood, Your Honor.

THE COURT: So what - - what are your grounds?

MR. SMITH: Your Honor, my grounds are that this report certainly is

admissible; and following a hearing, I believe the Court could declare Mr.

Henry competent on this [unintelligible]. However, I do think it would be a

good idea to get a second report.

THE COURT: Why?

MR. SMITH: Reading this report and from speaking with Miss Conn

- - from Dr. Conn [unintelligible], it appears Mr. Henry was not a very good

participant in that hearing. I think that's uncontested.

{¶ 13} Defense counsel argued Henry's mental health issues are what caused him

to not participate or cooperate in the competency evaluation. T. at 5-7. Defense counsel

argued "this is one of those cases where if he had participated, I don't know if there would

have been a different result. And I think Miss Conn would testify today that if he

participated better, there may have been a different result. You know, it's hard to tell." T.

at 7. Defense counsel produced an extensive document from a 2016 Social Security

case that discussed his medical history and mental impairments. T. at 9; Defendant's

Exhibit A. Defense counsel argued the exhibit could explain why Henry did not participate

in his evaluation. T. at 10. The trial court pointed out the exhibit could explain mental

health issues, but not necessarily competency issues, and defense counsel agreed. Id.

Dr. Conn was present and available to testify, but everyone agreed she would testify to

the report and there was no need to question her. T. at 11. Defense counsel pointed out Delaware County, Case No. 23CAC080044 6

that Dr. Conn stated in her report "that had he participated more fully, a different result

could have been reached. It might have been reached." Id. But defense counsel chose

not to question Dr. Conn on this opinion.

{¶ 14} The trial court took a recess to review Defendant's Exhibit A. After its

review, the trial court admitted it was a close call to order a second evaluation, but given

the totality of the record and Dr. Conn's comprehensive report "that does go into the

history - - she did go into his - - like to his current evaluations or most recent evaluations

at Southeast - - based on everything here, I am going to find the defendant competent."

T. at 14.

{¶ 15} Defense counsel agreed the report was admissible and the trial court could

declare Henry competent based on the report. The crux of defense counsel's argument

is Henry should have been afforded a second evaluation because he did not participate

fully in the first evaluation. Yet defense counsel did not question Dr. Conn on this point,

nor did defense counsel outline his concerns with Henry.

{¶ 16} The crux of appellate counsel's argument is the report was not admitted into

evidence, nor was it stipulated to, so the trial court could not rely on it under R.C.

2945.37(E) which states:

The prosecutor and defense counsel may submit evidence on the

issue of the defendant's competence to stand trial. A written report of the

evaluation of the defendant may be admitted into evidence at the hearing

by stipulation, but, if either the prosecution or defense objects to its Delaware County, Case No. 23CAC080044 7

admission, the report may be admitted under sections 2317.36 to 2317.38

of the Revised Code or any other applicable statute or rule.

{¶ 17} R.C. 2317.36 permits the admissibility of a report as long as the expert

testifies; R.C. 2317.37 permits cross-examination by the opposing party, "but the fact that

his testimony is not obtainable shall not render the report or finding inadmissible, unless

the trial court finds that substantial injustice would be done to the adverse party by its

admission"; and R.C. 2317.38 requires notice of intention to offer the report to the

opposing party. Defense counsel did not object to the report's admission, and chose not

to cross-exam Dr. Conn on her report; defense counsel wanted a second evaluation.

{¶ 18} The trial court received a competency evaluation report per its March 8,

2023 order. An examination of the record shows the report is included in the exhibit

packet of the case, although it does not contain an exhibit sticker. The trial court was

clear in stating it was admitting the report and defense counsel did not object, agreeing

to its admissibility. T. at 4-5.

{¶ 19} The trial court noted in their report, the evaluators considered Henry's

mental health history and relied on documents from his current mental health provider,

Southeast, Inc. See Entry & Order Finding Defendant Competent to Stand Trial and

Denying Defendant's Motion for a Second Competency Evaluation filed May 17, 2023.

The trial court further noted the following:

Significantly, Dr. Conn in her report noted that Defendant's lack of

cooperation and poor distress tolerance during the evaluation 'appears to

be an effort to appear more impaired than he actually is and a reaction to Delaware County, Case No. 23CAC080044 8

not being able to control the interview.' April 4, 2023 Competency

Evaluation at p. 21. Dr. Conn specifically found that ["]Southeast noted no

concerns about [Defendant's] psychiatric stability or his cognitive abilities…"

Id. At p. 22. Dr. Conn specifically found that although Defendant was

uncooperative and agitated during his evaluation, Defendant did not

demonstrate signs of a disorder of thought, mood, perception, orientation,

or memory that would impair his judgement (sic), behavior, capacity to

recognize reality, or ability to mee (sic) the ordinary demands of life.

{¶ 20} The trial court concluded based upon the evaluation report, Henry "is

presently capable of understanding the nature and objective of the proceedings against

him and of presently assisting in his defense." The trial court determined a second

evaluation was not necessary as the submitted evaluation report was "thorough and very

detailed."

{¶ 21} The trial court's finding of competency was made after receiving a

competency evaluation report and holding a hearing on the matter. The determination

was based on the detailed evaluation and report prepared by Dr. Conn, a licensed

psychologist, and Dr. Sowers, a postdoctoral forensic psychology fellow. They based

their opinion in part on mental health information they reviewed from Southeast dated

2022. The mental health information contained in Defendant's Exhibit A was dated 2016.

The 2022 information is a more current view of Henry's mental health issues. While they

acknowledged Henry was uncooperative during his evaluation, they opined his "functional

abilities suggest that he exaggerated his impairment." Based upon the various Delaware County, Case No. 23CAC080044 9

assessments and questions they asked Henry and the totality of the evidence, the

evaluators concluded Henry "has the ability to understand the nature and objective of the

proceedings against him and he is able to assist in his defense if he chooses to do so."

We find the trial court's decision of competency is based on reliable, credible evidence.

{¶ 22} Upon review, we find the trial court did not abuse its discretion in

determining Henry was competent to stand trial.

{¶ 23} The sole assignment of error is denied.

{¶ 24} The judgment of the Municipal Court of Delaware County, Ohio is hereby

affirmed.

By King, P.J.

Wise, J. and

Baldwin, J. concur.