[Cite as State v. Eick, 2011-Ohio-1498.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Julie A. Edwards, J.
-vs-
                                                   Case No. 2010 CA 00267
DEAN A. EICK

        Defendant-Appellee                         OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2010 CR 00462


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         March 28, 2011



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                BERNARD L. HUNT
PROSECUTING ATTORNEY                           2395 McGinty Road, NW
RENEE M. WATSON                                North Canton, Ohio 44720
ASSISTANT PROSECUTOR
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2010 CA 00267                                                     2

Wise, J.

         {¶1}   Appellant Dean A. Eick appeals his conviction entered in the Stark County

Court of Common Pleas on three counts of gross sexual imposition.

                        STATEMENT OF THE FACTS AND CASE

         {¶2}   On April 3, 2010, Appellant Dean Eick, went to the Wal-Mart in Massillon,

Stark County, Ohio. Appellant wandered around the store for approximately two hours,

during which time he fondled the buttocks of two girls, eleven and twelve years old.

Appellant first touched “Jane Doe I” on the buttocks in the magazine department. He

then followed her to the picture frame aisle and again fondled her buttocks. Appellant

victimized “Jane Doe II” in the electronics department, also by fondling her buttocks.

         {¶3}   When Massillon police officer David McConnell arrived at the scene, he

noted that Appellant had an erection and smelled strongly of alcohol. Appellant told the

officer he suffers from panic attacks and sometimes stumbles. He denied touching the

girls.

         {¶4}   As a result of the above events, Appellant was arrested. On May 3, 2010,

the Stark County Grand Jury indicted Appellant on three counts of gross sexual

imposition, in violation of R.C. §2907.05(A)(4), felonies of the third degree.

         {¶5}   Appellant pled not guilty to the charges and his case was assigned to

Judge Frank Forchione in the Stark County Court of Common Pleas.

         {¶6}   On May 24, 2010, Appellant entered an additional plea of Not Guilty by

Reason of Insanity.
Stark County, Case No. 2010 CA 00267                                                     3


      {¶7}   By Judgment Entry filed June 1, 2010, the trial court therefore ordered an

evaluation of Appellant's mental condition at the time of the offense and ordered the

Akron Psycho-Diagnostic Clinic to conduct the evaluation.

      {¶8}   Holly Trivett, a forensic mental health specialist, conducted an information

gathering interview and the evaluation was completed by Dr. Kenneth Gruenfeld.

      {¶9}   On July 20, 2010, Appellant filed an Objection to Sanity Evaluation of Dr.

Gruenfeld; Request for Evidentiary Hearing on Sanity Report; Motion for Appointment of

Second Examiner for a Sanity at the Time of the Offense Evaluation.

      {¶10} On August 9, 2010, a hearing was held on the matter during which the

state presented testimony from Dr. Gruenfeld. Appellant testified on his own behalf.

      {¶11} Dr. Gruenfeld explained the protocol for a "sanity at the time of the act"

evaluation. He explained that first a forensic mental health specialist from Summit

Diagnostic Center, in this case Trivett, conducts a basic psychosocial history. This

includes gathering information regarding family history, educational history and mental

health and substance abuse history. Dr. Gruenfeld then receives a copy of the write up,

after which he conducts his own interview and any necessary psychological testing. Dr.

Gruenfeld stated this was the protocol he followed in Appellant's case.

      {¶12} Dr. Gruenfeld further explained that his obligation in a “sanity at the time of

the act” evaluation is to first determine if Appellant suffers from severe mental disease

or defect, and if so, whether that defect or disease prevented Appellant from knowing

the wrongfulness of his actions. In Appellant's case, Gruenfeld stated that he looked at

the information gathered by Trivett and his own interview focused on records from the

Crisis Intervention and Recovery Center where Appellant had been treated in the past,
Stark County, Case No. 2010 CA 00267                                                     4


as well as Stark County Jail records. He also administered the Miller Forensic

Assessment of Symptoms Test (M-FAST).

         {¶13} Dr. Gruenfeld’s findings were that Appellant has a history of depression,

panic attacks and anxiety beginning at age 30 and has received various medications for

these conditions. Additionally, Appellant has a history of alcohol dependence.

         {¶14} During Dr. Gruenfeld's interview with Appellant, Appellant alleged that at

the time of the incident, he was in the grip of a panic attack and thus does not

remember committing the crimes. Appellant explained that the night before the

incidents, he was staying at his sister's home and that he consumed "4-6 pints" of beer

and then fell asleep. The next morning, he consumed 1 or 2 more pints and then

decided to go to Wal-Mart. Once at Wal-Mart, Appellant reported that he felt a panic

attack building as he was browsing in the meat department. He continued to walk

around, eventually going into the electronics, small appliances and then pharmaceutical

aisles, where he was arrested.

         {¶15} Appellant claimed he was in Wal-Mart for 1-2 hours, and during that time

the panic attack escalated. He reported his heart was racing and he was sweating and

trembling. Dr. Gruenfeld questioned Appellant as to everywhere he was while he was in

the store, which Appellant had no trouble recalling. In fact, Appellant recalled everything

about that day except touching the girls. He denied being confused about anything that

day other than why he was arrested. Additionally, Appellant reported he had never

experienced memory loss as the result of a panic attack and that "this was the first

time."
Stark County, Case No. 2010 CA 00267                                                     5


       {¶16} When Dr. Gruenfeld asked Appellant if he knew it was illegal to fondle the

minor girls, Appellant stated: "Yes. Yes. Of course I knew that. I knew it was wrong.

That is pretty sick to do that. I never did that before and I knew it was wrong to do it

then. I don't remember it happening and I don't believe it happened. I knew it was wrong

to do something like that, yes, of course.”

       {¶17} Dr. Gruenfeld concluded to a reasonable degree of psychological certainty

that Appellant does suffer from severe mental diseases, specifically anxiety, depression

and alcohol dependence. He concluded, however, that these diseases did not prevent

Appellant from knowing the wrongfulness of his actions at the time of the offenses.

       {¶18} Following Dr. Gruenfeld's testimony, the State rested. Appellant indicated

he wanted to testify on his own behalf. The trial court advised Appellant he did not have

to testify, and then took a recess so Appellant could discuss the matter with his counsel.

       {¶19} Appellant chose to take the stand. During his testimony, Appellant took

issue with Dr. Gruenfeld's report regarding the amount and type of alcohol he consumed

the day in question. Appellant testified that he told Trivett he consumed 3-4 ounces of

vodka at 2 a.m. and 2-4 more ounces at 6 a.m. Although Dr. Gruenfeld's report

indicated that the M-FAST, was administered, Appellant denied being tested. He

claimed that Dr. Gruenfeld never asked him any questions about the panic attack he

had in Wal-Mart. Additionally, Appellant denied saying he has never experienced

memory loss as a result of panic attacks and claimed Dr. Gruenfeld had misquoted him

in regard to his awareness of the wrongfulness of his actions.
Stark County, Case No. 2010 CA 00267                                                    6


       {¶20} At the conclusion of the hearing, Appellant argued that Dr. Gruenfeld's

evaluation was inconsistent and untrustworthy. He therefore requested that the trial

court order a second evaluation.

       {¶21} By Judgment Entry filed August 13, 2010, the trial court denied Appellant’s

Motion for Appointment of Second Examiner for Sanity.

       {¶22} On August 13, 2010, Appellant changed his plea to no contest to the

charges. The trial court found him guilty, convicted him and sentenced him to five years

on each count, to be served concurrently. (See Judgment Entry filed August 23, 2010).

       {¶23} Appellant now appeals to this Court, assigning the following sole error for

review:

                              ASSIGNMENT OF ERROR

       {¶24} “I. THE TRIAL COURT COMMITTED ERROR WHEN IT FAILED TO

GRANT THE DEFENDANT’S MOTION FOR APPOINTMENT OF A SECOND

EXAMINER FOR A SANITY AT THE TIME OF THE OFFENSE EVALUATION.”

                                            I.

       {¶25} In his sole assignment of error, Appellant claims that the trial court abused

its discretion in denying his request for a second psychological evaluation. We disagree.

       {¶26} Appellant herein argues that Dr. Gruenfeld’s evaluation contains

inconsistencies which make it untrustworthy.

       {¶27} The trial court, in its August 13, 2010, Judgment Entry, reviewed

Appellant’s claims and found that any discrepancies were not critical for its decision

during the sanity report.
Stark County, Case No. 2010 CA 00267                                                     7


       {¶28} The definition for the legal insanity standard is set forth in R.C.

§2901.01(A)(14). A person is “not guilty by reason of insanity” if the person proves that

at the time of the commission of the offense, he did not know, as a result of a severe

mental disease or defect, the wrongfulness of his acts. Notably, the standard for

competency is different, in that it relates to the defendant's present mental condition and

his ability to understand the nature of the proceedings against him and to assist his

counsel in his defense. See R.C. §2945.37.

       {¶29} NGRI is an affirmative defense that must be proved by the defendant by a

preponderance of the evidence. State v. Jennings, 10th Dist. No. 05AP-1051, 2006-

Ohio-3704, 2006 WL 2022235, ¶ 10; State v. Taylor, 98 Ohio St.3d 27, 2002-Ohio-

7017, 781 N.E.2d 72, ¶ 64; R.C. 2901.05(A). With an insanity defense, the defendant

must persuade the trier of fact that at the time of the commission of the offense, he did

not know the wrongfulness of his acts, as a result of a severe mental disease or defect.

Jennings at ¶ 10. The proper standard for determining whether a defendant has

successfully demonstrated this defense and thus is entitled to an NGRI instruction is

whether he has “ ‘ “introduced sufficient evidence, which, if believed, would raise a

question in the minds of reasonable men concerning the existence of such issue.” ’ ”

State v. Thomas, 10th Dist. No. 06AP-675, 2007-Ohio-1171, 2007 WL 778606, ¶ 11,

quoting State v. Tantarelli (May 23, 1995), 10th Dist. No. 94APA11-1618, 1995 WL

318730, quoting State v. Melchior (1978), 56 Ohio St.2d 15, 20-21, 10 O.O.3d 8, 381

N.E.2d 195.

       {¶30} Pursuant to R.C. §2945.371(A):
Stark County, Case No. 2010 CA 00267                                                       8


       {¶31} “If the issue of a defendant's competence to stand trial is raised or if a

defendant enters a plea of not guilty by reason of insanity, the court may order one or

more evaluations of the defendant's present mental condition or, in the case of a plea of

not guilty by reason of insanity, of the defendant's mental condition at the time of the

offense charged.”

       {¶32} Based on the wording of R.C. §2945.371, the ordering of any second

competency evaluation is a matter within the discretion of the trial court.” State v. Bailey

(1992), 90 Ohio App.3d 58, 67. In order to find that the trial court abused its discretion in

denying Appellant's request for a competency re-evaluation, we must find that the trial

court's decision was unreasonable, arbitrary or unconscionable and not merely an error

of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217.

       {¶33} The discrepancies that Appellant focuses on are the amount of time Dr.

Gruenfeld spent interviewing him at the jail and the actual amount of alcohol he

consumed the night before and the morning of the day in question.

       {¶34} Dr. Gruenfeld stated that his interview with Appellant lasted 51 minutes,

and that he rounded that number off to one hour on his report. When confronted with a

record from the jail which reflected that he had spent only 27 minutes with Appellant, Dr.

Gruenfeld maintained that he had in fact spent 51 minutes with Appellant. Additionally,

he stated that during his interview with Appellant, he took seven pages of notes, which

he produced for the trial court. (T. at 17-18).

       {¶35} The trial court found that it was irrelevant whether the actual time spent

with Appellant was 27 minutes or 51 minutes, finding that Dr. Gruenfeld was able to

produce ample notes from the interview.
Stark County, Case No. 2010 CA 00267                                                     9


       {¶36} As to the discrepancy as to the amount of alcohol Appellant admitted to

consuming, such discrepancy appears to arise due to Appellant providing two different

accounts to Dr. Gruenfeld and Ms. Trivett. Further, the trial court found that the amount

of alcohol consumed was not relevant because voluntary intoxication would not relieve

him of culpability for his crimes.

       {¶37} Finally, and most importantly, the trial court found that Appellant did not

deny his quote to Dr. Gruenfeld indicating his knowledge that touching young girls in a

sexual manner was wrong.

       {¶38} Upon review, we have reviewed the record in this matter and find any

discrepancies in the testimony go to the credibility of the witness, which the trial court

was in the best position to assess, and does not necessarily result in the trial court

discrediting any, let alone all, of the witness's testimony.

       {¶39} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d

180, certiorari denied (1990), 498 U.S. 881, 111 S.Ct. 228, 112 L.Ed.2d 183. The trier of

fact “has the best opportunity to view the demeanor, attitude, and credibility of each

witness, something that does not translate well on the written page.” Davis v. Flickinger,

77 Ohio St.3d 415, 418, 674 N.E.2d 1159, 1997-Ohio-260.

       {¶40} Based on the foregoing, we do not find the evaluation in this matter to be

unreliable and further do find that the trial court did not abuse its discretion in denying

Appellant’s request for a second evaluation.
Stark County, Case No. 2010 CA 00267                                          10


      {¶41} Appellant’s sole assignment of error is overruled.

      {¶42} For the foregoing reasons, the judgment of the Court of Common Pleas,

Stark County, Ohio, is affirmed.


By: Wise, J.

Farmer, P. J., and

Edwards, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                                 JUDGES
JWW/d 0316
Stark County, Case No. 2010 CA 00267                                         11


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
DEAN A. EICK                              :
                                          :
       Defendant-Appellee                 :         Case No. 2010 CA 00267




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
