[Cite as State v. Blair, 2012-Ohio-1112.]


                                         COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT




STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                    :       Hon. William B. Hoffman, J.
                                              :       Hon. Sheila G. Farmer, J.
-vs-                                          :
                                              :
SCOTT A. BLAIR                                :       Case No. 11CAA070069
                                              :
        Defendant-Appellant                   :       OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Court of Common
                                                      Pleas, Case No. 11CRI030150



JUDGMENT:                                             Affirmed




DATE OF JUDGMENT                                      March 12, 2012




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

ERIC C. PENKAL                                        JEFFREY P. UHRICH
140 North Sandusky Street                             P.O. Box 1977
3rd Floor                                             Westerville, OH 43086
Delaware, OH 43015
Delaware County, Case No. 11CAA070069                                                  2

Farmer, J.

       {¶1}    On March 18, 2011, the Delaware County Grand Jury indicted appellant,

Scott Blair, on two counts of sexual battery in violation of R.C. 2907.03.

       {¶2}    On May 18, 2011, appellant filed a suggestion of incompetency.          A

competency evaluation was conducted and a hearing was held on June 29, 2011. By

judgment entry filed June 30, 2011, the trial court found appellant to be incompetent and

restorable, and ordered him to be committed to the Twin Valley Behavioral Center for

restoration.

       {¶3}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶4}    "THE TRIAL      [COURT] ERRED WHEN IT               CONCLUDED THAT,

PURSUANT TO R.C. 2945.38(F), THAT THERE WAS SUFFICIENT EVIDENCE

CONTAINED IN THE FORENSIC EXAMINER'S REPORT TO SUPPORT A FINDING

THAT          THERE      WAS       A      'SUBSTANTIAL          PROBABILITY'       THAT

DEFENDANT/APPELLANT WILL BECOME COMPETENT WITH A COURSE OF

TREATMENT."

                                             I

       {¶5}    Appellant claims the trial court erred in determining there was sufficient

evidence to find a substantial probability that he would become competent within one

year with a course of treatment. We disagree.

       {¶6}    R.C. 2945.38(B)(1)(a) states the following:
Delaware County, Case No. 11CAA070069                                                         3


       {¶7}    "If, after taking into consideration all relevant reports, information, and

other evidence, the court finds that the defendant is incompetent to stand trial and that

there is a substantial probability that the defendant will become competent to stand trial

within one year if the defendant is provided with a course of treatment, the court shall

order the defendant to undergo treatment. If the defendant has been charged with a

felony offense and if, after taking into consideration all relevant reports, information, and

other evidence, the court finds that the defendant is incompetent to stand trial, but the

court is unable at that time to determine whether there is a substantial probability that

the defendant will become competent to stand trial within one year if the defendant is

provided with a course of treatment, the court shall order continuing evaluation and

treatment of the defendant for a period not to exceed four months to determine whether

there is a substantial probability that the defendant will become competent to stand trial

within one year if the defendant is provided with a course of treatment."

       {¶8}    Appellant argues the report of Jane Speicher-Bocija, Ph.D did not include

in its forensic conclusion a finding that there was a "substantial probability" that he will

become competent to stand trial within one year if he is provided with a course of

treatment. Appellant argues Dr. Speicher-Bocija's conclusion that it is "likely good" that

he could be restored to competency within the time frame required by law is not legally

sufficient to justify the trial court's decision.

       {¶9}    Throughout her report, Dr. Speicher-Bocija makes references to

appellant's ability to historically relate facts correctly, his ability to respond appropriately

to interview questions, and his logical and linear thinking. (Sealed Exhibit 1).
Delaware County, Case No. 11CAA070069                                                        4


       {¶10} As the cited statute indicates, it is the trial court's decision as to restoration

to competency given "any relevant reports, information, and other evidence." The trial

court acknowledged Dr. Speicher-Bocija's failure to use the "magic words" of

"substantial probability," but found the report sufficiently related to "substantial

probability:

       {¶11} "All right.   Based on that report, the Court would find Mr. Blair is not

presently seriously mentally ill, that he does not understand the nature and the objective

of the proceedings against him, at present he cannot assist in his own defense.

       {¶12} "However, although the report says a likelihood of restoring to

competency, the statute says substantial probability - - great likelihood with a

substantial probability that he could become competent to stand trial within one year if

he was provided with a course of treatment. Therefore, the Court orders Mr. Blair to

undergo treatment to restore his competency for a period of six months in that the most

serious offense here is a sexual battery, felony of the third degree."

       {¶13} Upon review, we find this reasoning is supported from the references in

the report to appellant's cognitive skills. The trial court did not err in its decision.

       {¶14} The sole assignment of error is denied.
Delaware County, Case No. 11CAA070069                                          5


      {¶15} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Farmer, J.

Delaney, P.J. and

Hoffman, J. concur.




                                        s/ Sheila G. Farmer_____________



                                        s/ Patricia A. Delaney____________



                                        _s/ William B. Hoffman_________

                                                     JUDGES




SGF/sg 228
[Cite as State v. Blair, 2012-Ohio-1112.]


                  IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT




STATE OF OHIO                                   :
                                                :
        Plaintiff-Appellee                      :
                                                :
-vs-                                            :        JUDGMENT ENTRY
                                                :
SCOTT A. BLAIR                                  :
                                                :
        Defendant-Appellant                     :        CASE NO. 11CAA070069




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

judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs to

appellant.




                                                s/ Sheila G. Farmer_____________



                                                s/ Patricia A. Delaney____________



                                                _s/ William B. Hoffman_________

                                                             JUDGES
