[Cite as State v. Decker, 2017-Ohio-4266.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                     No. 16AP-684
v.                                                 :              (C.P.C. No. 14CR-2164)

Louis Decker,                                      :           (REGULAR CALENDAR)

                 Defendant-Appellant.              :



                                             D E C I S I O N

                                      Rendered on June 13, 2017


                 On brief: Ron O'Brien, Prosecuting Attorney, and Laura R.
                 Swisher, for appellee. Argued: Laura R. Swisher.

                 On brief: Yeura R. Venters, Public Defender, and George
                 M. Schumann, for appellant. Argued: George M.
                 Schumann.

                  APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Defendant-appellant, Louis Decker, appeals a September 21, 2016 judgment
of the Franklin County Court of Common Pleas committing him to the Columbus
Developmental Center pursuant to R.C. 2945.39(D)(1) and 5122.01(B)(1). For the reasons
that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On April 24, 2014, a Franklin County Grand Jury indicted Decker for one
count of rape and three counts of gross sexual imposition arising from allegations that he
fondled and digitally penetrated a nine-year-old girl, H.W., and also forced her to touch
his genitals. (Apr. 24, 2014 Indictment.) Two months later, the trial court ordered a
competency evaluation. (June 9, 2014 Competency Evaluation Order.)
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No. 16AP-684
        {¶ 3} Pursuant to the court's order, Decker submitted to an evaluation by Dr.
Aracelis Rivera, who concluded that Decker was not competent but capable of being
restored to competency.          (July 8, 2014 Rivera Report.)            Dr. Rivera concluded that
although Decker performed well on the Competence Assessment for Standing Trial for
Defendants with Mental Retardation ("CAST-MR"), Decker lacked a real understanding of
the court processes and was not able to appreciate his situation sufficiently to evaluate
potential plea bargains. Id. at 10-14. The parties stipulated to Dr. Rivera's findings in a
hearing on July 30, 2014. (Tr. at 4-5.)
        {¶ 4} Following questions in the July 30, 2014 hearing as to whether Decker was
"subject to court-ordered institutionalization," on August 1, 2014, Dr. Rivera released an
updated report in which she added the opinion that, while Decker was intellectually
disabled,1 he was not subject to institutionalization by court order. (Aug. 1, 2014 Rivera
Report at 17.) Approximately one month later on September 5, 2014, the court ordered
Decker committed to a secure facility to undergo treatment for a maximum period of one
year to restore him to competency. (Sept. 5, 2014 Commitment Entry at 2.)
        {¶ 5} On March 18, 2016, the trial court convened a hearing to take evidence on
whether Decker had been successfully restored to competency. (Tr. at 8.) Two experts
testified at the hearing, Dr. Joseph Kovesdi and Dr. Naeem Khan. (Tr. at 11, 103.) In
addition to oral testimony, the trial court had several reports before it. It had the two
reports of Dr. Rivera, two reports by Dr. Kovesdi based on evaluations of Decker that took
place on July 31, 2015 and February 20, 2016 respectively, and one report by Dr. Khan
based on a review of Decker's records and an evaluation of him occurring on December 11,
2015. (Aug. 31, 2015 Kovesdi Report; Jan 5, 2016 Khan Report; Mar. 15, 2016 Kovesdi
Report.)
        {¶ 6} Dr. Kovesdi's testimony was consistent with his two reports that, in his
opinion, Decker was competent to stand trial. (Tr. at 100.) He testified that Decker is


1 The competency procedure statutes were recently amended to remove the use of the term "retarded" and

use instead variants of the phrase "intellectual disability." 2016 Am.Sub.H.B. No. 158. In addition, this
Court notes that the United States Supreme Court has recently chosen to substitute the term "intellectual
disability" for "mental retardation." Hall v. Florida, __ U.S. __, 134 S. Ct. 1986, 1990 (2014). While some
of the reports on assessment of Decker refer to mental retardation as did the statutory language at the time
in question, we shall endeavor in this decision to use the modern terminology where possible without
creating confusion.
                                                                                            3
No. 16AP-684
intellectually disabled but is properly categorized in the mild range of intellectual
disability. (Tr. at 72-73.) He explained that on both occasions on which he tested Decker,
Decker performed better on the CAST-MR than the average competent intellectually
disabled person. (Tr. at 19-21, 51-53; Mar. 15, 2016 Kovesdi Report at 3.) He testified that
for someone of his intelligence, Decker has a good working memory, is capable of some
abstract thinking, is able to categorize, and could assist his attorney in planning a defense.
(Tr. at 29, 37, 44-48, 67-68.) He also testified that Decker knew what the charges were,
that they were serious, and knew that plea bargaining was making a deal. (Tr. at 53-55.)
However, he acknowledged that predicting outcomes was difficult for Decker and that he
would have to rely heavily on his attorney in assessing any plea offers. (Tr. at 55-56, 87-
88.) He admitted that acquiescence is a personality trait of being intellectually disabled.
(Tr. at 83-84.) He also acknowledged that some decisions cannot be made for the client
yet simultaneously agreed that Decker would likely defer to his attorney on such matters.
(Tr. at 84-86.) Finally, he admitted that Decker would have trouble understanding the
trial without special procedures and probably could not testify under cross-examination.
(Tr. at 90-92.)
       {¶ 7} Dr. Khan testified that Decker was not competent to stand trial. (Tr. at
106.) Dr. Khan explained that Decker has the age equivalence of a nine or ten-year-old.
(Tr. at 108-10.) Like a child, he is good at rote memorization, but he lacks more than a
rudimentary grasp of abstract or deductive reasoning. (Tr. at 111-13.) Dr. Khan explained
that Decker can be taught to parrot vocabulary or understand what the roles of court
personnel are but he lacks a real (or intrinsic) understanding of them. (Tr. at 111-13, 117-
20, 137-38.) Khan testified that when he administered the CAST-MR to Decker, Decker
could answer questions that called for names of things or simple definitions, but on
follow-up questioning, Decker showed no understanding of the particular concept. (Tr. at
113-20.) For instance, when asked when a person has to go to jail, Decker was able to
correctly select "when you break the law" from multiple choice answers. (Tr. at 114.) But
follow-up questioning showed that, to Decker, breaking something was a concrete idea
like breaking a glass, and he did not really understand what "breaking the law" was. Id.
Dr. Khan, like Dr. Kovesdi, testified that acquiescence is a common trait of being
intellectually disabled. (Tr. at 139-40.) However, he also explained that there is a
difference between understanding and acquiescing through weakness of will as a person
                                                                                         4
No. 16AP-684
of normal intelligence might do and acquiescing when intellectually disabled, which is
more akin to a simple failure to understand how to make a decision. Id. Dr. Khan opined
that Decker would be likely to acquiesce to almost anything the prosecutor might propose
on cross-examination and could easily be talked into pleading guilty to a serious offense
because he simply does not understand and therefor acquiesces. Id.
       {¶ 8} Following the presentation of evidence, the trial court found that Decker
was not competent to stand trial. (Tr. at 145-48.) The trial court explained that it found
credible testimony that Decker had the mentality of a ten-year-old and that his ability to
understand simple, concrete terms, and analogies does not mean that he could
comprehend the choices and issues he would face in a trial. Id.
       {¶ 9} The trial court then held a series of three hearings, on May 26, June 28, and
July 14, 2016 on the topic of whether Decker should be subject to the continuing
jurisdiction of the court as a person subject to institutionalization by court order due to
mental illness or intellectual disability. (Tr. at 150, 190, 243.) The first of the three
hearings consisted of arguments by counsel about whether Decker was mentally ill based
on the reports and evidence already developed in order to explore the competency issue.
(Tr. at 150-89.) Neither side objected to using previously developed materials in arguing
this different issue. Id.
       {¶ 10} In the second hearing, the trial court took evidence on the question of
whether Decker committed the offenses with which he was charged. At that hearing, a
single witness, a detective from the Franklin County Sheriff's Office ("FCSO"), testified.
(Tr. at 191.) The detective recounted that on April 11, 2014, the FCSO received a report
from another law enforcement agency that H.W. had been sexually abused by Decker.
(Tr. at 193-94, 220.) H.W. was interviewed on April 14, 2014, and the detective testified
that he observed that interview. (Tr. at 195-96, 221.) He testified (without defense
objection) that H.W. had alleged that Decker touched her vagina and breast and made her
touch his penis. (Tr. at 195-96.)
       {¶ 11} The detective next testified that he interviewed Decker for over two hours
on April 17, 2014. (Tr. at 210-11, 220.) He testified that he was not aware that Decker was
intellectually disabled and that Decker had been read his rights and indicated that he
understood. (Tr. at 209-10.) He explained that during the interview Decker initially
                                                                                         5
No. 16AP-684
denied the allegations. (Tr. at 212.) But after the detective and the other interviewers
(there were one to three in the room at a time) repeatedly told Decker that he was lying,
after they had Decker perform a "stress test," after they informed him that the test showed
he was lying, and after they brought Decker's girlfriend into the interrogation to
encourage him to confess, Decker broke down and admitted he had touched H.W.
inappropriately. (Tr. at 200, 211-16; Interview Video in passim). Approximately the final
20 minutes of the interview were introduced into evidence and played during the hearing.
(Tr. at 202.)
       {¶ 12} During the video, on the occasions that Decker managed to speak
intelligibly, he did not sound obviously mentally handicapped.          (Interview Video in
passim.) However, during much of the approximately 20-minute video depicting the end
of the over two-hour interrogation, Decker was crying and hyperventilating. Id. During
the video, the police and his girlfriend told him that he should confess and after
approximately several minutes of sobbing, Decker admitted to touching H.W.'s privates.
Id. at 0:00-4:15. Initially Decker denied that his fingers went inside H.W. at all. Id. at
12:25-14:15. But after prompting from the officers and repeated suggestions that Decker
was still lying, Decker admitted that his fingers could have gone in slightly. Id.
       {¶ 13} The final hearing on July 14, 2016 consisted solely of the court's decision
delivered orally on the record. (Tr. at 243-55.) The parties had argued about whether
Decker was subject to court ordered institutionalization based on R.C. 5122.01(B)(4) (that
the person "[w]ould benefit from treatment for the person's mental illness and is in need
of such treatment as manifested by evidence of behavior that creates a grave and
imminent risk to substantial rights of others or the person"). (Tr. at 228-36.) Yet in
enunciating its ruling, the trial court instead focused on R.C. 5122.01(B)(2) (that the
person "[r]epresents 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"). Compare Tr. at 228-36 with Tr. at 251-52. The trial
court orally found, by clear and convincing evidence, that Decker had committed the
offenses with which he was charged and that he was a mentally ill person subject to court
                                                                                         6
No. 16AP-684
order. (Tr. at 243-54.) The trial court issued an entry memorializing the findings on
September 21, 2016. (Sept. 21, 2016 Entry.)
       {¶ 14} Decker now appeals.
II. ASSIGNMENTS OF ERROR
       {¶ 15} Decker posits two assignments of error:

              [1.] The trial court abused its discretion by solely relying on
              psychological testimony and reports from a previous R.C.
              2945.38(H) competency hearing to make findings of mental
              illness and court-ordered hospitalization in a subsequent R.C.
              2945.39(A)(2) hearing.

              [2.] The trial court's finding that the defendant-appellant was
              a mentally ill person subject to court order was against the
              manifest weight of the evidence.

For clarity we discuss them in reverse order.
III. DISCUSSION
   A. Second Assignment of Error—Whether the Trial Court Erred in
      Finding that Decker was a Mentally Ill Person Subject to Court-
      Ordered Hospitalization
       1. Standard of Review
       {¶ 16} Many jurisdictions have reviewed and continue to review commitment
decisions using the highly deferential "civil" manifest weight standard set forth in C.E.
Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978). See, e.g., State v. McIntosh, 2d
Dist. No. 26445, 2015-Ohio-2786, ¶ 6; State v. Sloan, 11th Dist. No. 2007-L-053, 2007-
Ohio-6558, ¶ 16-17; see also State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24-
26 (explaining the distinction formerly drawn between the "civil" and "criminal" manifest
weight standards). However, the Supreme Court of Ohio clarified in 2012 that there is no
separate "civil" manifest weight standard—rather the same manifest weight standard from
criminal cases (as set forth in State v. Thompkins) applies in civil cases. Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 14-23, citing State v. Thompkins, 78
Ohio St.3d 380 (1997) (critiquing the use of the "some competent, credible evidence"
                                                                                                       7
No. 16AP-684
standard set forth in C.E. Morris as having resulted in an incorrect merger of the concepts
of weight and sufficiency).2
        {¶ 17} Prior to the decision in Eastley limiting C.E. Morris' deferential "civil"
manifest weight standard, this Court had determined there was a question as to which of
the two alternative standards should be used when commitment orders were under
appellate review:

                C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d
                279, 376 N.E.2d 578 ("Judgments supported by some
                competent, credible evidence going to all the essential
                elements of the case will not be reversed by a reviewing court
                as being against the manifest weight of the evidence."). This is
                known as the manifest-weight standard of review for verdicts
                in civil cases. See, e.g., State v. Wilson, 113 Ohio St.3d 382,
                2007 Ohio 2202, ¶ 24, 865 N.E.2d 1264 (referring to "a civil
                manifest-weight-of-the-evidence standard."). In criminal
                cases, the standard of review is somewhat different. See id. at
                ¶ 25 (citing State v. Thompkins, 78 Ohio St.3d 380, 1997 Ohio
                52, 678 N.E.2d 541). "In Thompkins, the court distinguished
                between sufficiency of the evidence and manifest weight of the
                evidence, finding that these concepts differ both qualitatively
                and quantitatively." Wilson at ¶ 25. Although both C.E.
                Morris Co. and Thompkins afford the trial court's fact
                determinations great deference, under the former, the
                reviewing court affords more deference to the trial court's
                findings than under the latter. Id. at ¶ 26.

                C.E. Morris Co. and Thompkins notwithstanding, the
                textbook standard of review for decisions finding a person
                mentally ill and subject to court-ordered hospitalization, is
                clear and convincing evidence. See William H. Wolff Jr., et al.,
                Anderson's Appellate Practice & Procedure in Ohio (2006
                ed.Lexis) 97 (citing In re Mental Illness of Thomas (1996),
                108 Ohio App.3d 697, 700, 671 N.E.2d 616); see also State v.
                Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54 ("Where
                the proof required must be clear and convincing, a reviewing
                court will examine the record to determine whether the trier


2 The Supreme Court, without citing either Eastley or Thompkins, recently quoted C.E. Morris and its

immediate successor, Seasons Coal Co. v. Cleveland, in a criminal case for the manifest weight standard.
State v. Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, ¶ 63, quoting Seasons Coal Co. v. Cleveland, 10 Ohio
St.3d 77 (1984); C.E. Morris at syllabus. Even at the time when the C.E. Morris "some competent, credible
evidence" standard was in favor, it was applicable only in civil, not criminal, cases. Wilson at ¶ 24-26
(explaining the difference between the "civil" and "criminal" manifest weight standards).
                                                                                            8
No. 16AP-684
              of facts had sufficient evidence before it to satisfy the requisite
              degree of proof."). * * *

              ***

              There is no dispute that involuntary commitments are civil in
              nature. The only question is whether the standard of review is
              governed by the clear and convincing standard, as in Scheibel
              [sic] and In re Mental Illness of Thomas, supra, or whether
              we must affirm the probate court's judgment if there is
              competent, credible evidence to support it, as in C.E. Morris
              Co.

Licking & Knox Community Mental Health & Recovery Bd. v. T.B., 10th Dist. No. 10AP-
454, 2010-Ohio-3487, ¶ 4-5, 8.
       {¶ 18} We never resolved the question set forth in Licking & Knox. But, upon our
present revisit of the issue, we find that the Supreme Court has effectively resolved it by
clarifying that C.E. Morris should not have been read to have created a distinct and more
deferential manifest weight standard for civil cases and that sufficiency and weight are
distinct concepts. Eastley at ¶ 8-23. Freed of the C.E. Morris standard, we rely instead
on the language of the statute and the alternative proposed by Licking & Knox. We thus
review Decker's appeal based on whether the trial court had evidence before it that was
both sufficient and weighty enough to find the elements necessary for commitment by
"clear and convincing evidence." R.C. 2945.39(A)(2); Licking & Knox at ¶ 5. Clear and
convincing evidence is that degree of proof that will produce in the mind of the trier of
fact a firm belief or conviction as to the facts to be established. Cross v. Ledford, 161 Ohio
St. 469 (1954), paragraph three of the syllabus. It is more than a mere preponderance of
the evidence but does not require proof beyond a reasonable doubt. Id.
       2. Whether Decker was a Mentally Ill Person Subject to Court Order
       {¶ 19} In the case of a defendant such as Decker who is found incompetent to
stand trial and not restored to competency within the time limit provided in R.C.
2945.38(C), the Ohio Revised Code provides:

              (2) On the motion of the prosecutor or on its own motion, the
              court may retain jurisdiction over the defendant if, at a
              hearing, the court finds both of the following by clear and
              convincing evidence:
                                                                                        9
No. 16AP-684
              (a) The defendant committed the offense with which the
              defendant is charged.

              (b) The defendant is a mentally ill person subject to court
              order or a person with an intellectual disability subject to
              institutionalization by court order.

R.C. 2945.39(A)(2)(a) and (b); see also R.C. 2945.38(C)(1)(b). A "[p]erson with an
intellectual disability subject to institutionalization by court order" must, among other
criteria, have "at least a moderate level of intellectual disability" characterized by a
number of factors including a full-scale IQ at or below 55. R.C. 5123.01(O) and (P).
Decker does not meet these criteria, being more high functioning but nevertheless
intellectually disabled.   Since his disability was not "at least a moderate level of
intellectual disability," the trial court apparently focused instead on whether Decker was
"a mentally ill person subject to court order." R.C. 2945.39(A)(2)(b).
       {¶ 20} Mental illness is defined as "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." R.C. 5122.01(A). The
Ohio statutory definition of "mentally ill person subject to court order" is potentially
relevant to Decker as follows:

              "Mentally ill person subject to court order" means a mentally
              ill person who, because of the person's illness:

              ***

              (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;

              ***

              (4) Would benefit from treatment for the person's mental
              illness and is in need of such treatment as manifested by
              evidence of behavior that creates a grave and imminent risk to
              substantial rights of others or the person.
                                                                                                            10
No. 16AP-684
R.C. 5122.01(B).3 Although the statutory language does not indicate whether this list is
conjunctive or disjunctive, the Supreme Court has stated that the definition may be
satisfied if at least one of the categories is met. In re Mental Illness of Boggs, 50 Ohio
St.3d 217, 219 (1990). The totality of the circumstances are also to be considered in
evaluating whether a person should be committed for hospitalization, including but not
limited to:

                 (1) whether, in the court's view, the individual currently
                 represents a substantial risk of physical harm to himself or
                 other members of society; (2) psychiatric and medical
                 testimony as to the present mental and physical condition of
                 the alleged incompetent; (3) whether the person has insight
                 into his condition so that he will continue treatment as
                 prescribed or seek professional assistance if needed; (4) the
                 grounds upon which the state relies for the proposed
                 commitment; (5) any past history which is relevant to
                 establish the individual's degree of conformity to the laws,
                 rules, regulations and values of society; and (6) if there is
                 evidence that the person's mental illness is in a state of
                 remission, the court must also consider the medically
                 suggested cause and degree of the remission and the
                 probability that the individual will continue treatment to
                 maintain the remissive state of his illness should he be
                 released from commitment.

In re Burton, 11 Ohio St.3d 147, 149 (1984).
        {¶ 21} The trial court ordered Decker to be committed because it found (1) that he
had committed the crime with which he was charged, (2) that he was mentally ill, and
(3) that he "[r]epresent[ed] a substantial risk of physical harm to others as manifested by
* * * other evidence of present dangerousness." R.C. 5122.01(B)(2); R.C. 2945.39(A)(2)(a)
and (b). Specifically, the trial court stated:

                 In the instant case there is clear and convincing evidence --
                 this courts [sic] finds that there is clear and convincing
                 evidence that the defendant sexually assaulted [H.W.]
                 beginning when she was age seven and ending when she was

3R.C. 5122.01(B)(1), (3), and (5) also include several provisions related to whether such persons are likely to
harm themselves intentionally or through neglect and whether such persons are unable to survive without
supervision as demonstrated by a history of lack of compliance with treatment. Decker gave no indications
of being likely to inflict harm on himself (either purposefully or neglectfully) and had no history of
noncompliance with treatment. Thus, there is no value in exploring those portions of the statute in this case.
                                                                                          11
No. 16AP-684
                  age nine. The evidence and the defendant's own admission
                  support the conclusions that the defendant touched [H.W.]'s
                  breasts and vaginal area, inserted his finger or fingers in her
                  vagina, and made [H.W.] touch his penis. To subject a child
                  to this kind of lawless, traumatic, and essential [sic] behavior
                  is, in this court's belief, clear and convincing evidence of the
                  defendant's present dangerousness as outlined in 5122.01
                  Subsection B2.

(Tr. at 251-52.)
          {¶ 22} As to whether Decker committed the crimes for which he was charged, the
evidence was presented by a single detective witness. The detective showed a video of a
short portion of a more than two-hour interview in which Decker admitted the offense.
(Tr. at 202, 211-16; Interview Video in passim.) While, in normal circumstances, that
would be strong evidence, Decker's circumstances are not normal. Decker is intellectually
disabled and, as is typical for such persons, is prone to acquiescence on matters which he
does not understand. (Tr. at 139-40.) Thus, it seems unlikely that he understood and
voluntarily waived his Miranda4 rights from the single read-through administered by the
detectives.      (Tr. at 210.)     While constitutional issues underlying Miranda have less
applicability in civil proceedings like commitments, the fact that Decker probably did not
understand his rights casts doubts on the voluntariness (and thus reliability) of his
confession, lessening its value as evidence. State v. Williams, 126 Ohio St.3d 65, 2010-
Ohio-2453, paragraph two of the syllabus.
          {¶ 23} It is also troubling that Decker only confessed after the detective and the
other interviewers (there were one to three in the room at a time) repeatedly told Decker
over the course of more than two hours that he was lying, after they brought Decker's
girlfriend into the interrogation to encourage him to confess, and after they had Decker
perform a "stress test" and informed him that the test showed he was lying. (Tr. at 200,
211-16; Interview Video in passim.)            Decker's mannerisms and mode of speech as
recorded in the video interview did not obviously indicate that he had an intellectual
disability, and the detective testified that he was not aware of Decker's disability. (Tr. at
209-10.) But Decker's low effective mental age and hysteria during the latter portion of
the interrogation—the part of the interview shown at the hearing—raise more questions

4   Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                                           12
No. 16AP-684
about his confession, further impugning its reliability as evidence. (Interview Video in
passim.)
       {¶ 24} The confession was corroborated only through hearsay testimony by the
detective to the effect that H.W. said that Decker touched her vagina and breast and made
her touch his penis. (Tr. at 195-96.) While the hearsay was admitted without objection,
the Supreme Court has recognized that one of the rationales for excluding hearsay is
"because it is unreliable." State v. Young, 5 Ohio St.3d 221, 223 (1983) ("Hearsay is
inadmissible because it is unreliable."); see also, e.g., State v. Roquemore, 85 Ohio
App.3d 448, 453 (10th Dist.1993) ("excludable hearsay is inadmissible because it is
relevant but unreliable"). Moreover, the Ohio Rules of Evidence provide that children
under ten years of age (like H.W.) are incompetent to testify if they "appear incapable of
receiving just impressions of the facts * * * or of relating them truly." Evid.R. 601(A).
While H.W. may have been truthful and accurate despite her age, because her statements
were delivered via the inherently unreliable hearsay statements of another, the trial court
had no opportunity to ascertain for itself H.W.'s competency to testify or her credibility if
she was competent enough.
       {¶ 25} In short, Decker's confession was not strong evidence, having been obtained
during a two-hour interrogation of a semi-hysterical intellectually disabled man who it
cannot be said with certainty understood or voluntarily waived his Miranda rights. The
corroborating testimony was hearsay about the contents of a nine-year-old's statements
made without any prior court determination of her competency pursuant to Evid.R.
601(A). These circumstances cast doubt about whether the trial court had before it clear
and convincing evidence that Decker committed the offenses with which he was charged.
But Decker's counsel disclaimed this during oral argument stating "the 'whether he did it
part' is done and over with and I'm not disputing that." (Apr. 26, 2017 Oral Argument at
9:26:31-9:26:37.) Thus, that issue has been purposely waived by defense counsel on
appeal, not having been challenged before the trial court by previous counsel.
       {¶ 26} In the next step of the analysis, the trial court concluded Decker was
mentally ill. (Tr. at 249-51.) From a medical, scientific point of view, concluding there
exists an intellectual disability is a different diagnosis than concluding there exists mental
illness. But when a court construes the statute for the hospitalization of a mentally ill
                                                                                                        13
No. 16AP-684
person, it must abide by the plain meaning of the definition of mental illness as set forth
in R.C. 5122.01(A). In re McKinney, 8 Ohio App.3d 278, 280-81 (10th Dist.1983). ("If a
substantial disorder of thought, mood, perception, orientation or memory grossly
impairs judgment, behavior or ability to meet the ordinary demands of life, it is a
'mental illness' as defined by R.C. 5122.01 (A), irrespective of whether the disorder is
caused by mental retardation or some type of organic illness." Id. at syllabus.) Thus,
even though Decker's diagnosis is mental retardation and not mental illness, under
McKinney, the trial court may find that Decker's intellectual disability manifested in such
a way that he meets the definition of mental illness in R.C. 5122.01(A). Thus, the fact that
all three experts in this case who examined Decker found no mental illness is not
dispositive under McKinney. (July 8, 2014 Rivera Report at 15; Aug. 1, 2014 Rivera
Report at 15; Aug. 31, 2015 Kovesdi Report at 2, 5; Jan. 5, 2016 Khan Report at 5, 15;5
Mar. 15, 2016 Kovesdi Report at 2, 5.) Accordingly, our review turns on whether the trial
court should have found by clear and convincing evidence that Decker met the statutory
definition of mental illness for purposes of making him subject to court order pursuant to
R.C. 5122.01(B).
        {¶ 27} All three experts agreed that Decker was intellectually disabled, two of
whom believed he was intellectually disabled to the extent that he was incompetent to
stand trial. (July 8, 2014 Rivera Report at 15; Aug. 1, 2014 Rivera Report at 15; Aug. 31,
2015 Kovesdi Report at 2, 4-5; Jan. 5, 2016 Khan Report at 23; Mar. 15, 2016 Kovesdi
Report at 2, 5.) And Dr. Khan explained in his report the barriers Decker faces as a result
of his "extremely low * * * intellectual functioning" and "moderate to mild deficits noted
in his adaptive behavior." (Jan. 5, 2016 Khan Report at 22.) Dr. Khan stated that a
disability of Decker's magnitude results in:

                [G]ross cognitive, social, and personal deficits that affect his
                intellectual and cognitive processing power, his ability to learn
                new paradigms, and it impairs his judgment and reasoning,
                his memory, his ability to analyze and problem solve and his
                decision making ability. The condition is marked by the near
                absence of abstract thought processing, poor social

5Though Dr. Khan's 24-page report stated in one place that Decker had a mental illness, this conclusion was
repeated nowhere else in the report and was neither analyzed nor supported. (Jan. 5, 2016 Khan Report at
23 and in passim.) Thus, we question whether the phrase was included on page 23 of the report in error.
                                                                                       14
No. 16AP-684
                 perspective taking ability and failure to generalize learning. It
                 results in deficits in attention span, span of comprehension,
                 self-initiative and self-direction.     Having little personal
                 resources, an individual with this condition is given to
                 reliance upon others and readily acquiesce to please others.
                 Adding to their general risk, such persons tend to have poor
                 coping skills, are given to impulsivity and low frustration
                 tolerance when faced with stressful or taxing situations and
                 respond in atypical ways. Such persons require supervision,
                 structure and supports to enable them to safely function and
                 meet daily needs across all domains of living.

Id.
       {¶ 28} With regard to whether Decker "[r]epresent[ed] a substantial risk of
physical harm to others as manifested by * * * other evidence of present dangerousness,"
the trial court found that evidence Decker committed the crime involving sexually abusing
H.W., sufficiently satisfied that criteria. R.C. 5122.01(B)(2); Tr. at 251-52. Despite the
questions surrounding the reliability of that evidence, the record does contain other
evidence of Decker's potential dangerousness. Dr. Khan, for example, wrote the following
in his report:

                 [Decker] is an at risk person who will re-offend because of his
                 deficient cognitive constitution, poor insight and poor
                 judgment. Absence of necessary supervision, support and
                 services places this man of poor social skills at the mercy of
                 his urges, impulses and whims. Unchecked and unprotected
                 any adult male mentally retarded person with a deficient
                 support system will repeatedly place himself in harms way
                 and present a danger to self and others. [Decker] may come
                 across as a street smart person who can negotiate city life in
                 terms of mobility or accessing limited resources and
                 destinations, but in reality he has limited and poor judgment
                 and deficient personal resources. [Decker] relies upon others
                 to manage his personal affairs. Due to compounding serious
                 offense history now, the untimely death of his mother as he is
                 awaiting trial, on going atypical family dynamics and almost
                 certain dissolution of support from the victim's family with
                 whom he spent a lot of time have made his life ecology even
                 more constricting. [Decker's] life events are certainly set to
                 take a turn for the worse if he is returned to the community
                 without wrap around services. Incarcerating him will subject
                 him to physical and psychological abuse and will be to his
                 further detriment. [Decker's] IQ does not fall below 56, a
                 cutoff point for forced/court ordered civil commitment to a
                                                                                          15
No. 16AP-684
              state operated developmental center per Ohio Revised Code.
              He could continue to be held there under criminal court
              jurisdiction. But more importantly the over-arching need is
              his and others safety as part of immediate treatment for his
              psycho-sexual affliction and his developmental disorder. To
              this end he should be placed in an exclusive setting for
              persons with intellectual disability/mental retardation who
              have offended. There are very few such facilities that treat MR
              sex offenders. In Columbus, the Wittwer Hall program of
              Alvis Inc., is one such options [sic] that should be looked into.
              The supervision, structure and supports made available in
              their certified inpatient mental retardation facilities can
              address the prospective cycle of violence in his life. Wrapped
              around support services and a viable relapse prevention plan
              would go a long way in averting a tragedy in the making that
              has already unfolded. Programs for mentally retarded sex
              offenders and offenders in general have high relapse rates if
              they are not maintained throughout the persons [sic] life
              context and futures planning. Any structured, viable plan
              must involve protection from harm for [Decker] as well as the
              community at large and must be an investment for the long
              haul.

(Jan. 5, 2016 Khan Report at 21-22.)
       {¶ 29} Under the circumstances, we are unable to conclude that the trial court
erred in finding that Decker was a mentally ill person subject to court order. We overrule
Decker's second assignment of error.
   B. First Assignment of Error—Whether the Trial Court Abused its
      Discretion by Relying on Psychological Testimony and Reports from a
      Competency Hearing to Find Decker Subject to Court-Ordered
      Hospitalization
       {¶ 30} Decker argues that the trial court erred in relying on the competency reports
of Doctors Rivera, Kovesdi, and Khan in assessing whether he was "a mentally ill person
subject to court order" rather than reports directly speaking to that inquiry. (Decker Brief
at 30-44.) However, R.C. 2945.39(B) provides that in making the determination of
whether a person is subject to court order as contemplated in division (A) of the section,
"the court 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
                                                                                          16
No. 16AP-684
to conform to the law." The trial court has "broad discretion" as to what to review in
making determinations under R.C. 5122.01(B). In re Burton at 149.
       {¶ 31} And neither side objected to the use of the already existing competency
reports for determining the questions of mental illness and institutionalization. (Tr. at
150-89.) We review the propriety of considering such reports not only for abuse of "broad
discretion" but also for plain error. The Supreme Court has described a plain error
analysis as follows:

              Crim.R. 52(B) affords appellate courts discretion to correct
              "[p]lain errors or defects affecting substantial rights"
              notwithstanding the accused's failure to meet his obligation to
              bring those errors to the attention of the trial court. However,
              the accused bears the burden of proof to demonstrate plain
              error on the record, and must show "an error, i.e., a deviation
              from a legal rule" that constitutes "an 'obvious' defect in the
              trial proceedings[.]" However, even if the error is obvious, it
              must have affected substantial rights, and "[w]e have
              interpreted this aspect of the rule to mean that the trial court's
              error must have affected the outcome of the trial." The
              accused is therefore required to demonstrate a reasonable
              probability that the error resulted in prejudice—the same
              deferential standard for reviewing ineffective assistance of
              counsel claims.

(Citations omitted.) State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 22.
       {¶ 32} A defendant is incompetent to stand trial when a 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." R.C. 2945.37(G). On the
face of the statutes, this inquiry is very different from the question of whether a defendant
"is a mentally ill person subject to court order" as set forth above and in R.C.
2945.39(A)(2)(b) and 5122.01(B).
       {¶ 33} All three experts' reports focused on the issues of whether Decker could
understand the charges against him and assist his counsel in his defense. (July 8, 2014
Rivera Report; Aug. 1, 2014 Rivera Report; Aug. 31, 2015 Kovesdi Report; Jan. 5, 2016
Khan Report; Mar. 15, 2016 Kovesdi Report.) All three experts also briefly considered
whether Decker should be committed due to his intellectual disability, with all three
concluding that he could not be as he did not meet the legal criteria. (Aug. 1, 2014 Rivera
                                                                                            17
No. 16AP-684
Report at 17; Aug. 31, 2015 Kovesdi Report at 5; Jan. 5, 2016 Khan Report at 21; Mar. 15,
2016 Kovesdi Report at 5.) All three additionally concluded that Decker did not suffer
from a mental illness and, thus, it could also reasonably be said that they implicitly opined
that he should be committed as a mentally ill person. (July 8, 2014 Rivera Report at 15;
Aug. 1, 2014 Rivera Report at 15; Aug. 31, 2015 Kovesdi Report at 2, 5; Jan. 5, 2016 Khan
Report at 5, 15; Mar. 15, 2016 Kovesdi Report at 2, 5.)
       {¶ 34} However, this Court explained in McKinney that the terms "mental illness"
and "mentally ill person" are to be defined according to the Ohio Revised Code, not
interpreted according to how the psychiatric profession may define the phrases. In re
McKinney. Thus, even though none of the experts diagnosed Decker as mentally ill, the
trial court still could have drawn that conclusion if Decker met the statutory definition.
Thus, the trial court could properly rely on the reports to commit Decker if they contained
information relevant to whether Decker suffered from "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." R.C.
5122.01(A).
       {¶ 35} All five reports from the three experts contained evaluations of Decker's
mental state and his ability to perceive and judge situations. (July 8, 2014 Rivera Report
at 6-14; Aug. 1, 2014 Rivera Report at 6-16; Aug. 31, 2015 Kovesdi Report 2-4; Jan. 5, 2016
Khan Report at 5-23; Mar. 15, 2016 Kovesdi Report at 2-5.) These reports supported the
trial court's determination of whether Decker was "incapable of understanding the nature
and objective of the proceedings against [him] or of assisting in [his] defense." R.C.
2945.37(G). Most of the reports did not conclude that Decker's deficits were "substantial"
or that they resulted in "gross[]" impairment as contemplated in R.C. 5122.01(A).
However, Dr. Khan stated that an intellectual disability of Decker's magnitude results in
deficits that require supervision for safe functioning. (Jan. 5, 2016 Khan Report at 22.)
       {¶ 36} The reports generally did not comment as to Decker's dangerousness (which
is a critical requirement for committing a person under both case law and statute). See
Williams at ¶ 32; R.C. 5122.01(B). However, Dr. Kahn 's report as offered (and as
reproduced in fuller detail above) indicates that Decker is likely to reoffend because of his
cognitive deficiencies. (Jan. 5, 2016 Khan Report at 21-22.)
                                                                                          18
No. 16AP-684
       {¶ 37} While it would have been preferable for the trial court to have obtained
reports directly on the topic of whether Decker was mentally ill and dangerous to others,
we are unable to find abuse of discretion or plain error in the trial court's reliance on the
competency reports for this purpose.       All the reports addressed Decker's ability to
accurately perceive events, judge them, and behave appropriately. Dr. Khan's report also
gave meaningful analysis to Decker's dangerousness and his ability to meet his daily
needs. Decker's first assignment of error is overruled.
IV. CONCLUSION
       {¶ 38} We affirm the conclusion of the trial court that, based on clear and
convincing evidence before it, Decker was a mentally ill person subject to court order. We
find no abuse of discretion or plain error in the trial court's reliance on relevant expert
reports notwithstanding the fact that the reports were not specifically generated for the
purpose of evaluating whether Decker should be institutionalized.          Accordingly, we
overrule both of Decker's assignments of error and affirm the judgment of the Franklin
County Court of Common Pleas.
                                                                       Judgment affirmed.
                                KLATT, J., concurs.
                     DORRIAN, J., concurs in part and in judgment.


DORRIAN, J., concurring in part and in judgment.

       {¶ 39} I concur with the majority that the trial court did not err in finding that
appellant was mentally ill pursuant to the definition set forth in R.C. 5122.01(A). I also
concur that the trial court did not commit plain error in relying on the competency
reports of Drs. Rivera, Kovesdi, and Khan in assessing whether appellant was mentally ill.
However, because appellant did not assert error regarding the trial court's finding that
appellant committed the offenses with which he was charged, I would not address the
same as the majority has at paragraphs 22-25.
