State v. Sims

2022 Ohio 3365, 197 N.E.3d 14

• Court: Ohio Court of Appeals
• Decided: September 26, 2022
• Docket: 13-21-14
• Status: Published

Opinion

[Cite as State v. Sims, 2022-Ohio-3365.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 13-21-14

v.

NOEL G. SIMS, II, OPINION

DEFENDANT-APPELLANT.

Appeal from Seneca County Common Pleas Court Trial Court No. 19 CR 0118

Judgment Affirmed in Part, Reversed in Part and Cause Remanded

Date of Decision: September 26, 2022

APPEARANCES:

Brian A. Smith for Appellant

Derek W. DeVine for Appellee Case No. 13-21-14

ZIMMERMAN, P.J.

{¶1} Defendant-appellant, Noel G. Sims, II, (“Sims”), appeals the May 25,

2021 judgment of the Seneca County Court of Common Pleas retaining jurisdiction

over him and committing him to Twin Valley Behavioral Healthcare-Moritz. For

the reasons that follow, we affirm in part and reverse in part.

{¶2} On June 19, 2019, the Seneca County Grand Jury indicted Sims on

Count One of aggravated burglary in violation of R.C. 2911.11(A)(1), (B), a first-

degree felony, Count Two of kidnapping in violation of R.C. 2905.01(A)(4), (C)(1),

a first-degree felony, and Count Three of attempted rape in violation of R.C.

2907.02(A)(2), (B), 2923.02(A), (E)(1), a second-degree felony.

{¶3} In response to Sims’s June 21, 2019 motion contesting his

competency to stand trial under R.C. 2945.37, the trial court ordered a competency

evaluation of Sims in accordance with R.C. 2945.371(G)(3) and (4) on June 28,

2019.1 “Under R.C. 2945.38(B)(1) and (C)(1), a common pleas court presiding over

a criminal case involving a defendant charged with a violent first- or second-degree

felony who has been found incompetent to stand trial pursuant to R.C. 2945.37 may

require the defendant to undergo treatment for up to one year.” State v. Williams,

126 Ohio St.3d 65, 2010-Ohio-2453, ¶ 11.

1 R.C. 2945.371 was amended in August 2021; however, the trial court proceeded under the version of the statute in effect at the time that Sims committed the offenses at issue in this case. See R.C. 2945.371(G)(3), (4) (2016) (current version at R.C. 2945.371(H)(3), (4) (2021)). Accordingly, this court will address the version of the statute in effect at the time Sims committed the offenses at issue in this case.

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{¶4} After a hearing on September 5, 2019, the trial court concluded that

Sims was not competent to stand trial but that there was a substantial probability

that his competence to stand trial could be restored within the one-year period. See

Williams at ¶ 11 (“One situation in which the court is authorized to order treatment

is when it finds that there is a “substantial probability” that the incompetent

defendant will become competent to stand trial within one year while undergoing

treatment.”), citing R.C. 2945.38(B)(1)(a). That same day, the trial court appointed

a new attorney to represent Sims at Sims’s request.

{¶5} Following a hearing on December 18, 2019, the trial court concluded

that Sims was competent to stand trial but ordered that his mental condition at the

time of the offenses charged be evaluated under R.C. 2945.371(G)(4). See R.C.

2945.371(G)(4) (2016) (current version at R.C. 2945.371(H)(4) (2021)).

Notwithstanding the trial court’s order for Sims to be evaluated under R.C.

2945.371(G)(4), the examiner evaluated Sims under R.C. 2945.371(G)(3) after

developing “concern[s] regarding [Sim’s] mental state, appreciation for the alleged

offenses, and [his] capacity to understand the nature and objective of the

proceedings against him and of assisting in his defense.” (Doc. No. 37).

Consequently, the trial court again concluded on February 3, 2020 that Sims was

not competent to stand trial but that there was a substantial probability that his

competence to stand trial could be restored within the one-year period.

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{¶6} After a hearing on May 22, 2020, the trial court concluded that Sims

was competent to stand trial and that Sims knew the wrongfulness of his actions at

the time of the offenses charged. At the same hearing, the trial court entered pleas

of not guilty to the counts of the indictment on behalf of Sims and Sims informed

the trial court that he “no longer wishes representation by counsel in this matter.”

(Doc. No. 43). Thereafter, Sims executed a written waiver of counsel on May 28,

2020. On June 10, 2020, the trial court appointed standby counsel to assist Sims in

the proceedings if necessary.

{¶7} On October 2, 2020, over Sims’s objection, the trial court granted the

State’s R.C. 2945.37(B) request that Sims undergo a competency evaluation under

R.C. 2945.371(G)(3). After a hearing on February 2, 2021, the trial court concluded

that Sims was not competent to stand trial because he was not “currently capable of

assisting counsel in preparing a legal defense.” (Doc. No. 152).

{¶8} On April 26, 2021, because the time-limit for treatment was

approaching, the State filed a motion requesting that the trial court retain jurisdiction

over Sims and commit him for mental-health treatment under R.C. 2945.39(A)(2).

See Williams, 126 Ohio St.3d 65, 2020-Ohio-2453, at ¶ 12 (explaining that, “[i]f the

one-year time for treatment expires and the defendant remains incompetent to stand

trial, * * * R.C. 2945.39(A) provides two options that can be pursued”: (1) “the

court or prosecuting attorney may seek the defendant’s civil commitment in probate

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court under R.C. Chapter 5122” or (2) “the court or prosecuting attorney may seek

to have the common pleas court retain jurisdiction over the defendant”).

{¶9} After a hearing on May 12, 2021, the trial court determined on May

24, 2021 that Sims was not competent to stand trial and that the maximum time

permitted under R.C. 2945.38(C) for treatment to restore competency expired.

(Doc. No. 163). Consequently, the trial court granted the State’s motion after

concluding that the State proved by clear and convincing evidence that Sims

committed the offenses alleged in the indictment and that Sims is a mentally ill

person subject to court order.2 As a result, the trial court retained jurisdiction over

Sims and committed him to Twin Valley Behavioral Healthcare-Moritz under R.C.

2945.40(F) until a maximum date of May 12, 2051. See R.C. 2945.401(J)(1); R.C.

2929.14(A)(1), (2). Importantly, the trial court concluded in its journal entry that

Sims “confirmed to the Court that he was still representing himself in this matter.”

(Doc. No. 163).

{¶10} On October 14, 2021, Sims filed his notice of appeal. He raises three

assignment of error for our review. For ease of our discussion, we will be begin by

addressing Sims’s third assignment of error, followed by his second assignment of

error, then his first assignment of error.

2 The trial court filed its judgment entry of commitment on May 25, 2021. (Doc. No. 163).

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Assignment of Error No. III

Because the evidence did not support the trial court’s findings the trial court abused its discretion in finding Appellant incompetent to stand trial, in violation of Appellant’s right to Due Process under the Fifth, Sixth, and Fourteenth Amendments to the Untied States Constitution and Article I, Section 16 of the Ohio Constitution.

{¶11} In his third assignment of error, Sims argues that the trial court abused

its discretion by determining that he was not competent to stand trial. Specifically,

Sims contends that the record reflects that he has the capacity to understand the

nature and object of the proceedings against him and that he is capable of assisting

in preparing his defense.

Standard of Review

{¶12} “‘A trial court’s decision on competency will not be disturbed absent

an abuse of discretion.’” State v. Adkins, 3d Dist. Allen No. 1-19-71, 2020-Ohio-

6799, ¶ 10, quoting State v. Lechner, 4th Dist. Highland No. 19CA3, 2019-Ohio-

4071, ¶ 24. “An abuse of discretion is more than a mere error in judgment; it

suggests that a decision is unreasonable, arbitrary, or unconscionable. State v.

Adams, 62 Ohio St.2d 151, 157-158 (1980).

{¶13} “‘A criminal defendant’s competency to stand trial * * * is a question

of fact.’” State v. Stutzman, 9th Dist. Wayne No. 18AP0038, 2019-Ohio-1695, ¶

13, quoting State v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580, ¶ 92.

“Deference, therefore, generally ought to be afforded to a trial court’s competency

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determination, as ‘factual determinations are best left to those who see and hear

what goes on in the courtroom.’” Id., quoting State v. Cowans, 87 Ohio St.3d 68,

84 (1999), and citing State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, ¶ 59

(“As with other witnesses, the trial judge heard all of the expert testimony, and it

was his job to judge their credibility and weigh all the evidence in making his

findings.”). “Therefore, an appellate court will not overrule the trial court’s

competency determination if the record contains credible, reliable evidence in

support of the trial court’s determination that the defendant understood the nature

and objective of the proceedings against him.” State v. Heatherington, 5th Dist.

Richland No. 2021 CA 0021, 2022-Ohio-1375, ¶ 33, citing State v. Williams, 23

Ohio St.3d 16, 19 (1986). See also Stutzman at ¶ 13 (“A trial court’s competency

findings ‘will not be disturbed when there is some reliable and credible evidence

supporting those findings.’”), quoting State v. Were, 118 Ohio St.3d 448, 2008-

Ohio-2762, ¶ 46.

Analysis

{¶14} “Due process requires a criminal defendant be competent to stand

trial.” Adkins at ¶ 11, citing State v. Berry, 72 Ohio St.3d 354, 359 (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.’” Id., quoting Drope v.

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Missouri, 420 U.S. 162, 171, 95 S.Ct. 896 (1975). Thus, convicting an accused

while he or she is considered to be legally incompetent violates the accused’s due-

process rights. Id.

{¶15} “The United States Supreme Court established the test for competency

and requires the trial court to determine if an accused ‘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.’” (Emphasis added.) Id. at ¶12, quoting Dusky v. United States, 362 U.S. 402,

80 S.Ct. 788 (1960). See also State v. Lawson, 165 Ohio St.3d 445, 2021-Ohio-

3566, ¶ 50 (recognizing the application in Ohio of the competency test announced

in Dusky). Ohio codified this competency test under R.C. 2945.37, which provides,

in its relevant part:

A defendant is presumed to be competent to stand trial. 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 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 and shall enter an order authorized by section 2945.38 of the Revised Code.

R.C. 2945.37(G).

{¶16} “Therefore, if a defendant is capable of understanding the nature and

objective of the proceedings and assisting in the defense, then the defendant is

competent to stand trial.” Heatherington, 2022-Ohio-1375, at ¶ 37. “A defendant

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with mental illness or intellectual deficiencies may still be competent to stand trial.”

Lechner, 2019-Ohio-4071, at ¶ 27. “‘Incompetency must not be equated with mere

mental or emotional instability or even with outright insanity. A defendant may be

emotionally disturbed or even psychotic and still be capable of understanding the

charges against him and of assisting his counsel.’” Id., quoting State v. Bock, 28

Ohio St.3d 108, 110 (1986).

{¶17} Based on our review of the record, we conclude that the trial court did

not abuse its discretion by concluding that Sims was not competent to stand trial.

That is, there is credible and reliable evidence supporting the trial court’s

determination that there is a preponderance of evidence that Sims was not competent

to stand trial and that he could not be restored to competency in the statutory time

allotted for restoration. See State v. Hoffer, 2d Dist. Montgomery No. 17241, 1999

WL 335136, *4 (May 28, 1999) (stating “‘a psychiatrist’s written report and

corroborative testimony’” can be sufficient evidence to support a trial court’s

competency determination), quoting State v. Stauter, 2d Dist. Greene No. 97 CA

72, 1998 WL 399907, *4 (July 17, 1998). Specifically, at the May 12, 2021 hearing

Dr. Aracelis Rivera (“Dr. Rivera”), a clinical and forensic psychologist with Twin

Valley Behavioral Healthcare-Moritz, testified that Sims was not competent to stand

trial. (May 12, 2021 Tr. at 15-16). Further, Dr. Rivera identified State’s Exhibit

One as the report she prepared on April 21, 2021 assessing Sims’s competency to

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stand trial and State’s Exhibit Two as an April 26, 2021 addendum to her report

dictated by David Forman (“Forman”), the forensic services director with Twin

Valley Behavioral Healthcare-Moritz, which were admitted into evidence over

Sims’s objections.

{¶18} State’s Exhibit One reflects Dr. Rivera’s opinion that “Sims

demonstrated a reasonably thorough factual understanding but not a rational

understanding of the legal proceedings”—that is, “Sims did not provide a rational

account of the acts charged”; “[i]nstead, his version was infused with paranoid

delusional material.” (State’s Ex. 1). Compare State v. Halder, 8th Dist. Cuyahoga

No. 87974, 2007-Ohio-5940, ¶ 118 (Boyle, M.J., J., dissenting) (“Rationally

assisting with one’s own defense presumes that one is able to make significant legal

decisions about one’s defense-with the advice counsel.”). See also United States v.

Nagy, S.D.N.Y. No. 96 CR. 601(RWS), 1998 WL 341940, *7 (June 26, 1998)

(“Although Nagy understands factually the roles of the lawyers and the judge, as

well as the difference between a complaint and an indictment, this is insufficient to

support a finding of competency. He must also be able to assist properly in his

defense.”).

{¶19} Specifically, according to Dr. Rivera, Sims “believed he was being

framed for the alleged charges, as a means of diverting attention from his mother,

who reportedly kidnapped him during childhood.” (State’s Ex. 1). See Nagy at *7

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(“Nagy’s desire to proceed to trial so that the conspiracy against him may be

exposed is an example of his irrational thought process.”). Furthermore, Dr. Rivera

disclosed that “Sims evidenced paranoid delusions and delusions of grandeur during

th[e] examination,” which would cause “his attorney and the court [to] have * * *

difficulty understanding him.” (State’s Ex. 1). Importantly, Dr. Rivera resolved

that, “[b]ecause of his refractory psychiatric symptoms, Mr. Sims will be unable to

testify with relevance if such testimony is deemed necessary” since he is “unable to

provide reality-based answers to questions because those answers are likely to be

disorganized.” (Id.).

{¶20} In sum, Dr. Rivera concluded, “because of [Sims’s] refractory

psychotic symptoms, he lacks a rational understanding about the nature and

objective of legal proceedings and lacks the capacity to assist his attorney.” (Id.).

Accord Halder at ¶ 121 (Boyle, M.J., J., dissenting) (“Halder may have understood

the nature and objectives of the proceedings against him, but in no way could he

understand it rationally, nor could he rationally assist with his defense.”). Further,

in State’s Exhibit Two, Forman updated Dr. Rivera’s opinion that “Sims cannot be

restored to competency to stand trial in the time allotted by law” since Sims’s

“statutory time for restoration will be expiring on May 15, 2021.” (State’s Ex. 2).

{¶21} Moreover, since the trial court was in the best position to determine

the credibility of expert witnesses, the weight given to the evidence and the

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credibility of the witnesses is to be assessed by the trier of fact. Lechner, 2019-

Ohio-4071, at ¶ 32. See also Stutzman, 2019-Ohio-1695, at ¶ 16 (“As a reviewing

court, ‘we are in no position to second-guess factual determinations made by a trial

judge, which may be based on a person’s demeanor, conduct, gestures, tone of

voice, or facial expressions.’”), quoting Cowans, 87 Ohio St.3d at 84. In that role,

evidently the trial court chose to believe the evidence reflecting that Sims has neither

a sufficient present ability to consult with his lawyer with a reasonable degree of

rational understanding nor a rational or factual understanding of the proceedings

against him.

{¶22} Therefore, based on our review of the record, there is reliable and

credible evidence supporting the trial court’s competency determination.

Consequently, the trial court did not act arbitrarily, unreasonably, or unconscionably

by concluding that Sims was not competent to stand trial and that the maximum time

permitted under R.C. 2945.38(C) for treatment to restore competency expired.

{¶23} Therefore, Sims’s third assignment of error is overruled.

Assignment of Error No. II

Because the trial court conducted a hearing to determine Appellant’s competency to stand trial, pursuant to R.C. 2945.37(D), and Appellant was not represented by counsel at the hearing, the trial court erred in finding Appellant incompetent to stand trial, in violation of Appellant’s right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution, and in Violation of Appellant’s right to Due Process under the

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Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution.

{¶24} In his second assignment of error, Sims argues that the trial court erred

by permitting him to waive his right to counsel and exercise his right to self-

representation. Specifically, Sims contends that the trial court should have rejected

his request to represent himself because he lacked the competency required to

engage in self-representation.

{¶25} “We review de novo whether a defendant knowingly, voluntarily, and

intelligently waived his right to counsel.” State v. Godley, 3d Dist. Hancock No. 5-

17-29, 2018-Ohio-4253, ¶ 9. “De novo review is independent, without deference to

the lower court's decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-

Ohio-647, ¶ 27.

{¶26} “The right to counsel for the criminally accused is enshrined in both

the Sixth Amendment to the United States Constitution and the Ohio Constitution.”

State v. Newman, 8th Dist. Cuyahoga No. 109182, 2020-Ohio-5087, ¶ 17, citing

Sixth Amendment to the United States Constitution and Article I, Section 10, Ohio

Constitution. “Nevertheless, a defendant may waive his or her right to counsel and

proceed pro se so long as that waiver is made voluntarily, knowingly, and

intelligently.” Id., citing State v. Nelson, 1st Dist. Hamilton No. C-150480, 2016-

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Ohio-8064, ¶ 18. “For such a waiver to be valid though, the record must

demonstrate that the trial court made a sufficient inquiry to determine that the

defendant ‘fully understood and intelligently relinquished his or her right to

counsel.’” Id., quoting State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 39.

“Crim.R. 44(C) further provides that ‘[w]aiver of counsel shall be in open court and

the advice and waiver shall be recorded [and,] in serious offense cases the waiver

shall be in writing.’” Id. at ¶ 17, quoting Crim.R. 44(C). See also Godley at ¶ 12.

{¶27} This court has observed that there is no prescribed “‘“formula or script

to be read to a defendant who states that he elects to proceed without counsel.”’”

Godley at ¶ 11, quoting State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶

101, quoting Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379 (2004). Rather, “‘“[t]he

information a defendant must possess in order to make an intelligent election * * *

will depend on a range of case-specific factors, including the defendant’s education

or sophistication, the complex or easily grasped nature of the charge, and the stage

of the proceeding.’” Id., quoting Johnson at ¶ 101, quoting Tovar at 88. “Stated

differently, ‘the sufficiency of the trial court’s inquiry will depend on the totality of

the circumstances * * * .’” Id., quoting State v. Edmonds, 12th Dist. Warren No.

CA2014-03-045, 2015-Ohio-2733, ¶ 26.

{¶28} “Although a defendant’s waiver of his right to counsel and decision

to invoke his right of self-representation are afforded tremendous respect and

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deference, the right of self-representation is not absolute, and it is subject to some

limitation on its invocation and exercise.” Id. at ¶ 13. See also United States v.

Veltman, 9 F.3d 718, 721 (8th Cir.1993) (“The right to counsel varies depending on

the context in which it is invoked, as do the requisites for waiver.”). “First, ‘“[t]he

assertion of the right to self-representation must be clear and unequivocal.”’”

Godley at ¶ 13, quoting State v. Kramer, 3d Dist. Defiance No. 4-15-14, 2016-Ohio-

2984, ¶ 6, quoting Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, at ¶ 72. “Second,

‘“[t]he defendant must also assert the right [to self-representation] in a timely

fashion.”’” Id. at ¶ 14, quoting Kramer at ¶ 7, quoting State v. Steele, 155 Ohio

App.3d 659, 2003-Ohio-7103, ¶ 14 (1st Dist.). “Finally, trial courts may

constitutionally deny a defendant his right to self-representation when there are

lingering doubts concerning the defendant’s competency to represent himself.” Id.

at ¶ 15.

{¶29} “The United States Supreme Court has stated that ‘the Constitution

permits States to insist upon representation by counsel for those competent enough

to stand trial * * * but who still suffer from severe mental illness to the point where

they are not competent to conduct trial proceedings by themselves.” Id., quoting

Edwards, 554 U.S. at 178. See also Newman, 2020-Ohio-5087, at ¶ 19 (“Trial

courts have discretion, however, to inquire beyond a defendant’s competency to

stand trial in determining whether he or she is competent to proceed pro se.”), citing

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Edwards at 178. However, “even when a trial court doubts that a defendant is

competent to represent himself because of a severe mental illness, the Supreme

Court’s decision in Edwards does not require the trial court to deny the defendant

his constitutional right to self-representation.” Godley at ¶ 15, citing State v.

McQueen, 10th Dist. Franklin No. 09AP-195, 2009-Ohio-6272, ¶ 19, State v.

Griffin, 10th Dist. Franklin No. 10AP-902, 2011-Ohio-4250, ¶ 20-21, and United

States v. Bernard, 708 F.3d 583, 590 (4th Cir.2013).

{¶30} “Rather, a trial court may constitutionally permit an arguably

incompetent defendant to represent himself so long as the trial court is otherwise

satisfied that the defendant knowingly, voluntarily, and intelligently waived counsel

and elected self-representation.” Id., citing Godinez v. Moran, 509 U.S. 389, 399-

402, 113 S.Ct. 2680 (1993). See also Veltman at 720 (“This standard is case-specific

‘because the “ultimate focus of inquiry must be on the fundamental fairness of the

proceeding whose result is being challenged.”’”), quoting Meyer v. Sargent, 854

F.2d 1110, 1114 (8th Cir.1988), quoting Strickland v. Washington, 466 U.S. 668,

696, 104 S.Ct. 2052 (1984). Importantly, “‘[t]he competency that is required of a

defendant seeking to waive his [or her] right to counsel is the competence to waive

the right, not the competence to represent himself [or herself].’” Newman at ¶ 18,

quoting Godinez at 399, and citing State v. Watson, 132 Ohio App.3d 57, 63 (8th

Dist.1998). To illustrate,

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[t]he United States Supreme Court has explained the distinction between a competency determination and an inquiry into the knowing and voluntary character of a rights waiver as follows:

“The focus of a competency inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings. * * * The purpose of the ‘knowing and voluntary’ inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced.”

(Emphasis sic.) Lawson, 165 Ohio St.3d 445, 2021-Ohio-3566, at ¶ 73, quoting

Godinez at 401, fn. 12, quoting Parke v. Raley, 506 U.S. 20, 28, 113 S.Ct. 517

(1992).

{¶31} In this case, nearly one year before the trial court’s hearing during

which it determined to retain jurisdiction over Sims and commit him to the care of

a treatment facility, Sims unequivocally declared to the trial court that he wished to

represent himself. In particular, on May 22, 2020, during a period when Sims was

competent to stand trial, Sims asked to represent himself. Thereafter, Sims executed

a written waiver of counsel on May 28, 2020 reflecting that his waiver of counsel

was knowing, intelligent, and voluntary. However, subsequent to Sims’s knowing,

intelligent, and voluntary waiver of counsel, the trial court concluded on February

2 and May 24, 2021 (after the May 12, 2021 hearing during which Sims reasserted

that he wished to represent himself) that Sims was not competent to stand trial.

{¶32} Here, Sims contends that the trial court erred by permitting him to

represent himself during the May 12, 2021 hearing because he lacked the

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competency required to engage in self-representation—that is, Sims argues that the

trial court erred by concluding that he had the competency to waive his Sixth

Amendment right to counsel after concluding that he did not have the capacity to

stand trial. At first glance, it seems axiomatic that a defendant deemed incompetent

for purposes of trial would also be incompetent for purposes of waiving his or her

Sixth Amendment right to counsel. See, e.g., State v. Thomas, 1st Dist. Hamilton

No. C-170400, 2019-Ohio-132, ¶ 13 (acknowledging that the same standard applies

to assessing a defendant’s competency to stand trial as it does to assessing a

defendant’s request to waive his or her Sixth Amendment right to counsel).

{¶33} Nonetheless, based on our discussion in Sims’s first assignment of

error, we need not reach that issue in this case. “Unlike in cases of criminal

incarceration, the constitutional right to counsel in civil commitment proceedings

originates solely from the due process clause.” State v. Jackson, 1st Dist. Hamilton

No. C-130240, 2014-Ohio-613, ¶ 10, citing In re Fisher, 39 Ohio St.2d 71, 82

(1974). See In re Moser, 124 Ohio App.3d 117, 122 (2d Dist.1997) (“A person’s

right to counsel at a civil commitment proceeding is afforded not only by statute,

but also by constitutional guarantees of due process of law.”). See also United States

v. O’Laughlin, 934 F.3d 840, 841 (8th Cir.2019) (holding that “a civil commitment

proceeding * * * is not a criminal prosecution for purposes of the Sixth

Amendment”); Veltman at 721 (noting that due process protections apply to civil-

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commitment hearings), citing Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254 (1980).

“The Ohio Supreme Court has made clear that involuntary-commitment

proceedings are civil in nature.” Jackson at ¶ 9, citing Williams, 126 Ohio St.3d 65,

2010-Ohio-2453, at ¶ 37 and State v. Tuomala, 104 Ohio St.3d 93, 2004-Ohio-6239,

¶ 16. “While we recognize the significant interests at stake where a person is

involuntarily subjected to restraints on his physical liberty, we have been told that

civilly-committed persons ‘need not be afforded the constitutional rights afforded

to a defendant in a criminal prosecution.’” Jackson at ¶ 10, quoting Williams, 126

Ohio St.3d 65, 2010-Ohio-2453, at ¶ 37. See Addington v. Texas, 441 U.S. 418,

428, 99 S.Ct. 1804 (1979) (noting that “a civil commitment proceeding can in no

sense be equated to a criminal prosecution”).

{¶34} Consequently, by logical extension, a person subject to commitment

proceedings under R.C. 2945.39 may waive assistance of counsel. However, “‘such

waiver is valid only where a comprehensive examination is made to determine that

the person has sufficient knowledge of the particular facts and circumstances of his

individual case and that he possesses sufficient competence to understandingly and

wisely make the waiver decision.’” In re Moser at 122-123, quoting McDuffie v.

Berzzarins, 43 Ohio St.2d 23 (1975), syllabus. See also Fisher at 77-78

(“‘Fourteenth Amendment due process requires that the infirm person, or one acting

in his behalf, be fully advised of his rights and accorded each of them unless

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knowingly and understandingly waived.’”), quoting Heryford v. Parker, 396 F.2d

393, 396 (10th Cir.1968).

{¶35} Based the specific facts and circumstances of this case, we conclude

that Sims validly waived his right to counsel at the involuntary-commitment

proceeding conducted under R.C. 2945.39. See Veltman at 721 (“The record

demonstrates that Veltman made a valid waiver of his right to counsel in this civil

commitment proceeding.”). In addition to Sims’s prior knowing, intelligent, and

voluntary (written) waiver of counsel, Sims knowingly and understandingly waived

his right to counsel at the May 12, 2021 hearing. Indeed, the trial court documented

that Sims “confirmed to the Court that he was still representing himself in this

matter.” (Doc. No. 163). Nevertheless, standby counsel was available at the hearing

to assist Sims. Compare id. (noting that “Veltman waived counsel voluntarily and

without coercion” since he “knew of the availability of appointed counsel” but

averred to the court that he desired to represent himself).

{¶36} Furthermore, the record reflects that Sims had sufficient knowledge

of the particular facts and circumstances of his individual case and that he possessed

sufficient competence to understandingly and wisely make the waiver decision.

Even though the trial court concluded that Sims was incompetent to stand trial, the

record reflects that the trial court’s competency determination largely hinged on

Sims’s irrational accounting of the underlying matter. Importantly, State’s Exhibit

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One reflects that Sims “demonstrated a reasonably thorough factual understanding

* * * of the legal proceedings.” (State’s Ex. 1). In particular, “Sims named his

charges, the potential penalty associated with each charge listed in the indictment

and what each charge entailed”; “named key courtroom participants for a trial”; and

was familiar with basic courtroom procedures, including the “pleas available to a

defendant” and “the court process that follows a guilty plea.” (Id.).

{¶37} Therefore, after carefully reviewing the record before us, we conclude

that the totality of the circumstances reflects that Sims possessed sufficient

competence to understandingly and wisely waive representation by counsel and

engage in self-representation. Accord Veltman at 722 (concluding that the totality

of the circumstances in the case reflected that “Veltman possessed sufficient mental

capacity to waive his * * * right to counsel”).

{¶38} For these reasons, Sims’s second assignment of error is overruled.

Assignment of Error No. I

Because the trial court erred in finding that Appellant committed the offenses with which he was charged, and that Appellant was a mentally ill person subject to court order, the court erred in retaining jurisdiction over Appellant pursuant to R.C. 2945.39(A)(2), in violation of Appellant’s right to Due Process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution.

{¶39} In his first assignment of error, Sims argues that the trial court erred

by retaining jurisdiction over him and committing him to Twin Valley Behavioral

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Healthcare-Moritz. In particular, Sims argues that the State failed to present clear

and convincing evidence that he committed the offenses charged in the indictment

as required by R.C. 2945.39(A)(2)(a) or that he is a mentally-ill person subject to a

court order for purposes of 2945.39(A)(2)(b). Sims also contends that the trial court

erred by imposing consecutive terms of involuntary commitment in violation of

R.C. 2945.401(J)(1) and Ohio law.

{¶40} “‘In certain instances, R.C. 2945.39 authorizes a trial court to retain

jurisdiction over an incompetent defendant and commit him to the care of a

treatment facility.’” State v. McCain, 9th Dist. Medina No. 18CA0108-M, 2019-

Ohio-4392, ¶ 8, quoting State v. Weaver, 9th Dist. Medina No. 17CA0092-M, 2018-

Ohio-2998, ¶ 9. “A court may retain jurisdiction over a defendant if, following a

hearing, it determines by clear and convincing evidence that: (1) the defendant

committed the charged offense; and (2) the defendant is either ‘a mentally ill person

subject to court order or a person with an intellectual disability subject to

institutionalization by court order.’” Id., quoting R.C. 2945.39(A)(2)(a) and (b).

{¶41} “‘Clear and convincing evidence is that measure or degree of proof

which will produce in the mind of the trier of facts a firm belief or conviction as to

the allegations sought to be established.’” Id., quoting Cross v. Ledford, 161 Ohio

St. 469, 477 (1954). “It is more than a mere preponderance of the evidence but

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does not require proof beyond a reasonable doubt.” Cross at paragraph three of the

syllabus. “‘Where the proof required must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.’” McCain at ¶ 8, quoting

State v. Schiebel, 55 Ohio St.3d 71, 74 (1990).

{¶42} When a trial court makes the appropriate “R.C. 2945.39(A)(2)

findings, then R.C. 2945.39(D)(1) directs the court to commit the defendant to a

hospital operated by the Department of Mental Health or to another appropriate

facility.” Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, at ¶ 15. “The court must

order that the defendant be placed in the least-restrictive commitment alternative

available consistent with public safety and the defendant’s welfare, ‘giv[ing]

preference to protecting public safety.” Id., quoting R.C. 2945.39(D)(1). “Once a

court commits a defendant under R.C. 2945.39(D)(1), all further proceedings are

governed by R.C. 2945.401 * * * and 2945.402 * * * .” Id. at ¶ 16, citing R.C.

2945.39(D)(3).

{¶43} However, “[i]f the court does not make both R.C. 2945.39(A)(2)

findings, it must dismiss the indictment and discharge the defendant unless the court

or the prosecuting attorney files for the defendant’s civil commitment in probate

court under R.C. Chapter 5122.” Id. at ¶ 14, citing R.C. 2945.39(C). “But ‘[a]

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dismissal of charges under [R.C. 2945.39(C)] is not a bar to further criminal

proceedings based on the same conduct.’” Id., quoting R.C. 2945.39(C).

{¶44} R.C. 2945.401(J) governs the termination of a commitment ordered

under R.C. 2945.39.

Under R.C. 2945.401(J)(1)(a) through (c), a commitment pursuant to R.C. 2945.39 terminates upon the earlier of (a) the trial court’s determination that the defendant is no longer a mentally ill person subject to hospitalization by court order, (b) the expiration of the maximum prison term the defendant could have received if the defendant had been convicted of the most serious offense charged, or (c) the trial court’s termination of the commitment under R.C. 2945.401(J)(2)(a)(ii), which requires findings that the defendant is competent to stand trial and is no longer a mentally ill person subject to hospitalization by court order.

Id. at ¶ 17. Importantly, “[i]f the trial court’s jurisdiction is terminated pursuant to

R.C. 2945.401(J)(1)(b) because the defendant’s commitment ends upon the

expiration of the maximum prison term the defendant could have received, the court

or prosecuting attorney may seek the defendant’s civil commitment in probate court

under R.C. Chapter 5122.” Id. at ¶ 18, citing R.C. 2945.401(A).

{¶45} Here, proceeding under R.C. 2945.39(A)(2), the trial court retained

jurisdiction over Sims and committed him to the care of a treatment facility after

determining that there is clear and convincing evidence that he is a mentally ill

person subject to court order and that he committed the offenses charged in the

indictment. Based on our review of the record, we conclude that there is sufficient

evidence supporting the trial court’s determination that there is clear and convincing

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evidence that Sims is a mentally ill person subject to court order and that he

committed the offenses of which he was charged.

{¶46} “The phrases ‘mental illness’ and ‘mentally ill person subject to court

order’ are statutorily defined terms of art.” Weaver, 2018-Ohio-2998, at ¶ 29, citing

R.C. 5122.01(A), (B), and R.C. 2945.37(A)(7). “A ‘mental illness’ is ‘a substantial

disorder of thought, mood, perception, orientation, or memory that grossly impairs

judgment, behavior, capacity to recognize reality, or ability to meet the ordinary

demands of life.’” Id., quoting R.C. 5122.01(A). The statute defines the phrase

“mentally ill person subject to court order” to include a mentally ill person who, due

to his or her mental illness:

(1) Represents a substantial risk of physical harm to self as manifested by evidence of threats of, or attempts at, suicide or serious self-inflicted bodily harm;

(2) Represents a substantial risk of physical harm to others as manifested by evidence of recent homicidal or other violent behavior, evidence of recent threats that place another in reasonable fear of violent behavior and serious physical harm, or other evidence of present dangerousness;

(3) Represents a substantial and immediate risk of serious physical impairment or injury to self as manifested by evidence that the person is unable to provide for and is not providing for the person’s basic physical needs because of the person’s mental illness and that appropriate provision for those needs cannot be made immediately available in the community;

(4) Would benefit from treatment for the person’s mental illness and is in need of such treatment as manifested by evidence of behavior

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that creates a grave and imminent risk to substantial rights of others or the person;

(5)(a) Would benefit from treatment as manifested by evidence of behavior that indicates all of the following:

(i) The person is unlikely to survive safely in the community without supervision, based on a clinical determination.

(ii) The person has a history of lack of compliance with treatment for mental illness and one of the following applies:

(I) At least twice within the thirty-six months prior to the filing of an affidavit seeking court-ordered treatment of the person under section 5122.111 of the Revised Code, the lack of compliance has been a significant factor in necessitating hospitalization in a hospital or receipt of services in a forensic or other mental health unit of a correctional facility, provided that the thirty-six-month period shall be extended by the length of any hospitalization or incarceration of the person that occurred within the thirty-six-month period.

(II) Within the forty-eight months prior to the filing of an affidavit seeking court-ordered treatment of the person under section 5122.111 of the Revised Code, the lack of compliance resulted in one or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical harm to self or others, provided that the forty-eight-month period shall be extended by the length of any hospitalization or incarceration of the person that occurred within the forty-eight- month period.

(iii) The person, as a result of the person’s mental illness, is unlikely to voluntarily participate in necessary treatment.

(iv) In view of the person’s treatment history and current behavior, the person is in need of treatment in order to prevent a relapse or deterioration that would be likely to result in substantial risk of serious harm to the person or others.

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R.C. 5122.01(B).3

{¶47} It is within the trial court’s discretion as to what evidence to review

when making its determination under R.C. 2945.39(A)(2)(b). Weaver at ¶ 28. “By

statute, it may consider ‘all relevant evidence, including, but not limited to, any

relevant psychiatric, psychological, or medical testimony or reports, the acts

constituting the offense charged, and any history of the defendant that is relevant to

the defendant’s ability to conform to the law.’” Id., quoting R.C. 2945.39(B).

Importantly, when “assessing whether a defendant is a mentally ill person subject

to court order,” a trial court is “to consider the totality of the circumstances.” Id. at

¶ 29, citing Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, at ¶ 15 and In re Burton,

11 Ohio St.3d 147, 149-150 (1984) (outlining the factors for a trial court to consider

when conducting its totality of the circumstances analysis).

{¶48} Here, the trial court concluded that the State presented clear and

convincing evidence that Sims is a mentally ill person subject to court order. In

State’s Exhibit One, Dr. Rivera concluded that Sims suffers from a mental illness in

the psychotic spectrum—namely, schizoaffective disorder. According to Dr.

Rivera, Sims

has a substantial disorder or [sic] thought (i.e., paranoid and grandiose delusions, mood (irritability), perception (i.e., Mr. Sims has a history of auditory hallucinations) that grossly impair his judgment (i.e., Mr. Sims has a history of non-compliance with medication leading to

3 “An individual who meets only the criteria described in division (B)(5)(a) of [R.C. 5122.01(B)] is not subject to hospitalization.” R.C. 5122.01(B)(5)(b).

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psychiatric decompensation), behavior (i.e., While in the community, he has failed to follow through with outpatient mental health treatment)[,] capacity to recognize reality (i.e., Mr. Sims lacks insight into his mental illness and need for ongoing medication and treatment to maintain his psychiatric stability and functioning.)

(Emphasis sic.) (State’s Ex. 1). Significantly, Dr. Rivera emphasized that,

“[d]espite being compliant with medications, Mr. Sims continues to experience

refractory psychotic symptoms (i.e., flat affect, paranoia, irritability, thought

disorganization and delusions).” (Id.).

{¶49} In addition, the record reflects that Sims has a history of criminal

conduct, including criminal convictions for trafficking in drugs and juvenile-

delinquency adjudications. Further, the record reflects that Sims “has been

hospitalized on at least five separate occasions” because of his mental illness.

(State’s Ex. 1). Consequently, based on that evidence along with the evidence

presented constituting the offenses charged, we conclude that there is sufficient

evidence supporting the trial court’s conclusion that there is clear and convincing

evidence that Sims is a mentally ill person subject to court order.

{¶50} Furthermore, there is sufficient evidence in the record supporting the

trial court’s conclusion that there is clear and convincing evidence that Sims

committed the offenses of which he was charged. In this case, Sims was charged

with attempted rape in violation of R.C. 2907.02(A)(2) and 2923.02(A); aggravated

burglary in violation of R.C. 2911.11(A)(1); and kidnapping in violation of R.C.

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2905.01(A)(4). R.C. 2907.02 sets forth the offense of rape and provides, in its

pertinent part, that “[n]o person shall engage in sexual conduct with another when

the offender purposely compels the other person to submit by force or threat of

force.” R.C. 2907.02(A)(2). R.C. 2923.02, Ohio’s attempt-crime statute, provides,

in its relevant part, “No person, purposely or knowingly, and when purpose or

knowledge is sufficient culpability for the commission of an offense, shall engage

in conduct that, if successful, would constitute or result in the offense.” R.C.

2923.02(A).

{¶51} R.C. 2907.01(A) defines “sexual conduct,” in relevant part, as

“vaginal intercourse between a male and female.” “A person acts purposely when

it is the person’s specific intention to cause a certain result, or, when the gist of the

offense is a prohibition against conduct of a certain nature, regardless of what the

offender intends to accomplish thereby, it is the offender’s specific intention to

engage in conduct of that nature.” R.C. 2901.22(A).

{¶52} R.C. 2901.01(A)(1) defines “force” as “any violence, compulsion, or

constraint physically exerted by any means upon or against a person or thing.” In

addressing the force-or-threat-of-force language under the rape statute, “[t]he

Supreme Court of Ohio has further clarified that ‘[a] defendant purposely compels

another to submit to sexual conduct by force or threat of force if the defendant uses

physical force against that person, or creates the belief that physical force will be

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used if the victim does not submit. A threat of force can be inferred from the

circumstances surrounding sexual conduct[.]’” State v. Henry, 3d Dist. Seneca No.

13-08-10, 2009-Ohio-3535, ¶ 26, quoting State v. Schaim, 65 Ohio St.3d 51 (1992),

paragraph one of the syllabus.

{¶53} R.C. 2911.11(A)(1) sets forth the offense of aggravated burglary and

provides:

(A) No person, by force, stealth, or deception, shall trespass in an occupied structure * * *, when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if any of the following apply:

(1) The offender inflicts, or attempts or threatens to inflict physical harm on another.

The same definition of force that we discussed above applies to the crime of

aggravated burglary. See R.C. 2901.01(A)(1). Trespass occurs when a person,

without privilege to do so, knowingly enters on the premises of another. State v.

O’Neal, 87 Ohio St.3d 402, 408 (2000); R.C. 2911.21(A)(1). “R.C. 2901.01(A)(12)

defines ‘privilege’ as ‘an immunity, license, or right conferred by law, bestowed by

express or implied grant, arising out of status, position, office, or relationship, or

growing out of necessity.’” State v. Worth, 10th Dist. Franklin No. 10AP-1125,

2012-Ohio-666, ¶ 42, quoting R.C. 2901.01(A)(12). Finally, “physical harm to

persons” is defined as “any injury * * * regardless of its gravity or duration.” R.C.

2901.01(A)(3).

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{¶54} The offense of kidnapping is codified under R.C. 2905.01, which

provides, in its relevant part:

(B) No person, by force, threat, or deception * * * shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes:

***

(4) To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against the victim’s will.

R.C. 2905.01(A)(4). Under R.C. 2905.01(A), “‘the mens rea of the statute is

purpose,’” which we defined above. State v. Montgomery, 2d Dist. Montgomery

No. 22193, 2009-Ohio-1415, ¶ 12, quoting State v. Carver, 2d Dist. Montgomery

No. 21328, 2008-Ohio-4631, ¶ 145.

{¶55} “Kidnapping under R.C. 2905.01(A)(4) ‘requires only that the

restraint or removal occur for the purpose of nonconsensual sexual activity.’” State

v. Murphy, 8th Dist. Cuyahoga No. 107836, 2019-Ohio-4347, ¶ 26, quoting State v.

Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 197, and citing State v. Dove, 8th Dist.

Cuyahoga No. 101809, 2015-Ohio-2761, ¶ 37.

“Ohio law is clear that ‘[a]n offense under R.C. 2905.01 does not depend on the manner in which an individual is restrained. * * * Rather, it depends on whether the restraint “is such as to place the victim in the offender’s power and beyond immediate help, even though temporarily.” * * * The restraint “need not be actual confinement, but may be merely compelling the victim to stay where he is.”’”

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Id., quoting State v. Wright, 8th Dist. Cuyahoga No. 92344, 2009-Ohio-5229, ¶ 24,

quoting State v. Mosley, 178 Ohio App.3d 631, 2008-Ohio-5483, ¶ 20 (8th Dist.,

quoting State v. Wilson, 10th Dist. Franklin No. 99AP-1259, 2000 WL 1639621, *5

(Nov. 2, 2000).

{¶56} At the May 12, 2021 hearing, Detective Shilo Frankart (“Detective

Frankart”) of the Fostoria Police Department, who investigated the case, testified

that Sims was discovered by a nurse in the victim’s room at the Good Shepherd

Home, which is located “[i]n the Seneca County portion of Fostoria” on June 2,

2019 at approximately 6:30 a.m. (May 12, 2021 Tr. at 25). According to Detective

Frankart, Sims was observed “naked” and “on top of [the victim] as she was laying

on the bed clothed with a nightgown on”; however, her “[u]ndergarments had been

removed.” (Id. at 26).

{¶57} Detective Frankart testified that the victim told him that she “never

had met” Sims, did not “know who he was,” and “[d]id not invite him into the

room.” (Id. at 28). He testified that the victim described that Sims “attempted

several times to turn her over onto her stomach and she was resisting that attempt.”

(Id. at 30). He further testified that the victim was assessed by medical

professionals, who “found bruising to her body, redness to her vaginal area as well.”

(Id. at 29). (See also id. at 31-32). In particular, Detective Frankart identified that

the victim sustained a bruise to her upper left arm.

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{¶58} Detective Frankart testified that his investigation revealed that Sims

gained access to the nursing facility “[t]hrough an unlocked exit/entrance that was

alarmed.” (Id. at 30). According to Detective Frankart, the door through which

Sims gained access to the facility is “not labeled” as a public entrance to the nursing

facility. (Id. at 31). However, even though a silent alarm sounded, Sims was not

discovered until he was found in the victim’s room. Rather, according to Detective

Frankart, “one of the nurses * * * thought[] * * * that actually a resident had exited

the door instead of entered. It was the time of morning that she felt someone may

have walked out [so s]he walked out that exit/entrance door, checked outside, did

not locate anything or anybody so then walked back in and continued her rounds.”

(Id. at 30-31).

{¶59} In sum, Detective Frankart testified that his investigation revealed that

Sims restrained the victim’s liberty by force to engage in sexual activity and that

Sims attempted to engage in sexual conduct with the victim by force or threat of

force.

{¶60} On appeal, Sims argues that there is insufficient evidence that he

attempted to engage in sexual conduct with the victim by force or threat of force or

that he restrained the victim, by force, to engage in that sexual activity. Moreover,

Sims contends that there is insufficient evidence that he “used ‘force, stealth or

deception,’” to trespass in the Good Shepherd Home. (Appellant’s Brief at 9).

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{¶61} However, contrary to any argument raised by Sims, the State was not

required to present clear and convincing evidence that Sims acted with the requisite

mens rea. Indeed, “[a] trial court’s determination by clear and convincing evidence

under R.C. 2945.39(A)(2) that the defendant committed the offense does not require

a finding of scienter and is merely a factor considered in determining the propriety

of the commitment; it plays no role beyond that limited purpose.” (Emphasis

added.) Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, at ¶ 33. “Instead, a trial

court’s finding under this evidentiary standard that the defendant has committed the

offense charged is used only to determine the defendant’s degree of dangerousness.”

Id. at ¶ 60.

{¶62} Therefore, applying the appropriate evidentiary lens, we conclude the

trial court had sufficient evidence before it to satisfy the clear-and-convincing

burden of proof based on the evidence presented. Accord McCain, 2019-Ohio-

4392, at ¶13, citing Schiebel, 55 Ohio St.3d at 74. Specifically, Detective Frankart

testified that Sims was discovered on top of the victim in her bed in the Good

Shepherd Home in the early morning and that he had removed her undergarments.

See State v. Stevens, 3d Dist. Allen No. 1-14-58, 2016-Ohio-446, ¶ 27. Likewise,

there is evidence in the record that the victim was asleep when the offense began.

See id. In addition, the record reflects that the victim is an elderly resident of the

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Good Shepherd Home, while Sims is a younger man that the victim described as

“very strong.” (Id. at 35).

{¶63} Moreover, for an offender to commit rape, the statute does not require

that a victim prove that he or she physically resisted the offender. R.C. 2907.02(C).

Yet, that the victim physically resisted Sims as he tried to turn her to her stomach

suggests that Sims compelled the victim to submit to the sexual conduct by means

of physical force. Accord Stevens at ¶ 25, citing State v. Henry, 3d Dist. Seneca No.

13-08-10, 2009-Ohio-3535, ¶ 45, 60 (Shaw, J., dissenting) (concluding that the

victim’s resistance should “be used to infer any force or threat of force on the part

of the defendant in trying to complete the sexual act” and that “[t]he degree of force

necessary for [the victim] to use to get away from Henry is further indication of the

degree of force being used by Henry to perpetrate the offense”). Similarly,

Detective Frankart described the injuries that the victim suffered as a result of

Sims’s actions, which are indicative of restraint and that Sims attempted to engage

in sexual activity with the victim. See Davis, 116 Ohio St.3d 404, 2008-Ohio-2, at

¶ 198-200.

{¶64} Thus, based on the totality of the circumstances of this case, the trial

court had sufficient evidence to conclude by clear and convincing evidence that

Sims attempted to engage in sexual conduct with the victim by force or threat of

force and that he restrained the victim, by force, to engage in that sexual activity.

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See Stevens at ¶ 21 (“‘[T]he amount of force [necessary to prove forcible rape under

R.C. 2907.02(A)(2)] must be examined in light of the circumstances.’”), quoting

State v. Runyons, 3d Dist. Union No. 14-91-30, 1992 WL 136196, *2 (June 9, 1992).

See also State v. Matthieu, 3d Dist. Mercer No. 10-02-04, 2003-Ohio-3430, ¶ 17

(noting that R.C. 2905.01 “‘punishes certain removal or restraint done with a certain

purpose and the eventual success or failure of the goal is irrelevant’”), quoting State

v. Moore, 8th Dist. Cuyahoga No. 60334, 1992 WL 104220, *3 (May 14, 1992).

{¶65} Turning to Sims’s aggravated-burglary charge, even though “‘stealth’

is not defined by the Ohio Revised Code,” the term has been defined to mean “‘any

secret, sly or clandestine act to avoid discovery’ when attempting to gain entry into

a premises.” State v. Evans, 9th Dist. Summit No. 28924, 2019-Ohio-603, ¶ 19,

quoting State v. Fleming, 9th Dist. Lorain Nos. 15CA010792 and 15CA010793,

2017-Ohio-871, ¶ 9. Detective Frankart testified that Sims entered the Good

Shepherd Home through a silent-alarmed entrance (which is not available to the

public) and that his entrance went unnoticed until he was found in the victim’s room.

Furthermore, Detective Frankart testified that the victim did not invite Sims into her

room.

{¶66} Based on this evidence, the trial court had sufficient evidence to

conclude that Sims “acted in the required ‘secret’ fashion to avoid detection.” State

v. Trikilis, 9th Dist. Medina No. 04CA0096-M, 2005-Ohio-4266, ¶ 32. In other

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words, the trial court had sufficient evidence to conclude by clear and convincing

evidence that Sims trespassed by stealth in the Good Shepherd Home and, therefore,

that Sims committed the offense of aggravated burglary.

{¶67} Finally, to the extent that the State is required to establish that Seneca

County is the proper venue at a hearing pertaining to whether a trial court is

permitted to retain jurisdiction over a defendant whose competence to stand trial has

not been restored, we conclude that the State presented sufficient evidence of venue.

That is, based on our review of the record, there is clear and convincing evidence

that Sims committed the offenses of which he was charged in Seneca County, Ohio.

See, e.g., State v. Patterson, 3d Dist. Hancock No. 5-11-15, 2012-Ohio-2839, ¶ 73.

{¶68} Nevertheless, Sims attacks much of Detective Frankart’s testimony as

inadmissible hearsay. Hearsay is defined as “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Evid.R. 801(C). Hearsay is generally not admissible

unless an exception applies. Evid.R. 802.

{¶69} Before proceeding, this court must pause to address the application of

the Ohio Rules of Evidence in this matter. See Weaver, 2018-Ohio-2998, at ¶ 13.

We conclude that although a hearing pertaining to whether a trial court is permitted

to retain jurisdiction over a defendant whose competence to stand trial has not been

restored must comport with the requirements of due process, it is not a criminal

-37- Case No. 13-21-14

proceeding. See Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, at paragraph two

of the syllabus (“Because R.C. 2945.39 is civil in nature, a person committed under

the statute need not be afforded the constitutional rights afforded to a defendant in

a criminal prosecution.”). See also State v. McKeithen, 3d Dist. Marion No. 9-08-

29, 2009-Ohio-84, ¶ 22, citing State v. Ryan, 3d Dist. Union No. 14-06-55, 2007-

Ohio-4743, ¶ 8, citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756 (1973);

Evid.R. 101(C)(3). But see State v. Jones, 9 Ohio St.3d 123 (1984). Instead, we

associate such hearing with a miscellaneous criminal proceeding in which the Rules

of Evidence do not apply. See Weaver at ¶ 13 (presenting the argument that “a

proceeding under R.C. 2945.39 is more akin to a ‘miscellaneous criminal

proceeding’ such as sentencing”); State v. Kaimachiande, 3d Dist. Logan No. 8-18-

57, 2019-Ohio-1939, ¶ 20 (noting that “[i]t is well-settled that the Rules of Evidence

do not apply” in a community-control-revocation hearing). “Thus hearsay or other

evidence that may have been inadmissible during a criminal trial can be

permissible” in a hearing pertaining to whether a trial court is permitted to retain

jurisdiction over a defendant whose competence to stand trial has not been restored.”

(Emphasis added.) Kaimachiande at ¶ 20, citing State v. Ohly, 166 Ohio App.3d

808, 2006-Ohio-2353, ¶ 21 (6th Dist.).

{¶70} Generally, “[t]he decision to admit or exclude evidence lies in the

sound discretion of the trial court.” Weaver at ¶ 10. An abuse of discretion suggests

-38- Case No. 13-21-14

that a decision is unreasonable, arbitrary, or unconscionable. Adams, 62 Ohio St.2d

at 157-158. However, because Sims did not object to Detective Frankart’s

testimony, he waived all but plain error on appeal. Accord State v. Saffell, 9th Dist.

Wayne No. 15AP0041, 2016-Ohio-5283, ¶ 9, citing State v. Stephens, 6th Dist.

Huron No. H-98-045, 1999 WL 339254, *4 (May 28, 1999). See also State v.

Boykins, 3d Dist. Marion No. 9-14-28, 2015-Ohio-1341, ¶ 7 (applying plain-error

review to a community-control-revocation hearing). “A court recognizes plain error

with the utmost caution, under exceptional circumstances, and only to prevent a

miscarriage of justice.” State v. Smith, 3d Dist. Hardin No. 6-1414, 2015-Ohio-

2977, ¶ 63, citing State v. Saleh, 10th Dist. Franklin No. 07AP-431, 2009-Ohio-

1542, ¶ 68. Accordingly, to be reversible, we must conclude that there was error—

a deviation from a legal rule—and that the error was an obvious defect in the

proceedings that affected the outcome of the proceedings. See State v. Hare, 2d

Dist. Clark No. 2017-CA-4, 2018-Ohio-765, ¶ 41, citing State v. Barnes, 94 Ohio

St.3d 21, 27 (2002) and Crim.R. 52(B).

{¶71} It was not plain error for the trial court to admit Detective Frankart’s

testimony at Sims’s hearing. Importantly, R.C. 2945.39(B) “specifically gives a

trial court the discretion to consider all relevant evidence” when determining

whether to retain jurisdiction over a defendant. (Emphasis added.) State v. Smith,

11th Dist. Lake No. 2013-L-020, 2013-Ohio-5827, ¶ 19. Indeed, in situations

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“‘[w]hen hearsay testimony is admitted without objections, it may properly be

considered and given its natural probative effect as if it were in law admissible, the

only question being with regard to how much weight should be given thereto.’”

(Emphasis added.) State v. Bahns, 185 Ohio App.3d 805, 2009-Ohio-5525, ¶ 19

(2d Dist.), quoting State v. Petro, 148 Ohio St. 473, 500 (1947). Furthermore, at a

hearing pertaining to whether a trial court is permitted to retain jurisdiction over a

defendant whose competence to stand trial has not been restored, “the trial court,

being in the better position to observe the witnesses and hear their testimony, is

entitled to deference on issues of witness credibility and weight of the evidence.”

State v. Patierno, 3d Dist. Defiance No. 4-08-08, 2009-Ohio-410, ¶ 23.

{¶34} Here, based on our review of the record, Sims had the opportunity to

cross-examine Detective Frankart and Sims did not offer any evidence in his

defense. Accord Ryan, 2007-Ohio-4743, at ¶ 14. Likewise, since the trial court was

in the better position to assess witness credibility, it apparently chose to believe the

testimony presented by Detective Frankart. Accord Bahns at ¶ 19. Consequently,

the trial court’s admission of Detective Frankart’s testimony did not constitute a

defect affecting Sims’s substantial rights. See id.

{¶35} Finally, Sims argues that the trial court failed to merge the kidnapping

and attempted-rape offenses of which the trial court concluded that he committed.

Specifically, Sims contends that double-jeopardy protections—specifically the

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merger of allied offenses of similar import—should apply to an involuntary

commitment under R.C. 2945.39 since the State is required “to prove, by clear and

convincing evidence that ‘[he] committed the offense with which [he was]

charged.’” (Emphasis sic.) (Appellant’s Brief at 12, quoting R.C.

2945.39(A)(2)(a)). However, “[b]ecause R.C. 2945.39 is civil in nature [and] a

person committed under the statute need not be afforded the constitutional rights

afforded to a defendant in a criminal prosecution,” we hold that double-jeopardy

protections—namely, the merger of allied offenses of similar import—do not apply

to involuntary commitments under R.C. 2945.39. Williams, 126 Ohio St.3d 65,

2010-Ohio-2453, at paragraph two of the syllabus. See also State v. Stewart, 2d

Dist. Miami No. 2016-CA-13, 2017-Ohio-2785, ¶ 24; State v. Lowell, 8th Dist. No.

109684, 2021-Ohio-3098, ¶ 38.

{¶36} Nevertheless, Sims contends that the trial court erred by committing

him to Twin Valley Behavioral Healthcare-Moritz for a maximum of 30 years. We

agree. Because a trial court can only commit a defendant for the length of the

maximum prison term he or she could have received for the most serious offense

charged, the applicable maximum term in this case is 11 years. See State v.

Coleman, 6th Dist. Lucas No. L-15-1071, 2016-Ohio-1111, ¶ 15 (“The trial court is

permitted to commit appellant for psychiatric treatment only for the maximum

amount of time appellant would have received on the most serious offense.”);

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Williams at ¶ 17; R.C. 2945.401(J)(1)(b); 2929.14(A)(1)(a). See also Lowell at ¶

41. Consequently, it was error for the trial court to commit Sims for a maximum

term beyond 11 years. Accord Coleman at ¶ 15; State v. Lantz, 11th Dist. Portage

No. 2018-P-0015, 2019-Ohio-3439, ¶ 21.

{¶37} In sum, based on our review of the record, we conclude that the trial

court did not err by retaining jurisdiction of Sims and committing him to Twin

Valley Behavioral Healthcare-Moritz. That is, clear and convincing evidence

established that Sims committed the offenses of which he was charged and he is a

mentally-ill person subject to a court order. However, we conclude that the trial

court erred by committing Sims for a maximum term of 30 years.

{¶38} For these reasons, Sims’s first assignment of error is sustained in part

and overruled in part.

{¶39} Having found error prejudicial to the appellant herein in the

particulars assigned and argued in the first assignment of error, in part, we reverse

the judgment of the trial court and remand for further proceedings consistent with

this opinion. Having found no error prejudicial to the appellant herein in the

particulars assigned and argued in the second and third assignments of error, we

affirm the judgment of the trial court.

Judgment Affirmed in Part, Reversed in Part and Cause Remanded MILLER and WILLAMOWSKI, J.J., concur in Judgment Only.

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