[Cite as State v. Rohrer, 2015-Ohio-5333.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                               ROSS COUNTY

STATE OF OHIO,                 :
                               :    Case No. 14CA3471
     Plaintiff-Appellee,       :
                               :
     vs.                       :    DECISION AND JUDGMENT
                               :    ENTRY
JOHN J. ROHRER,                :
                               :
    Defendant-Appellant.       :    Released: 12/10/15
_____________________________________________________________
                         APPEARANCES:

David L. Kastner, Beavercreek, Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C.
Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for
Appellee.
_____________________________________________________________

McFarland, A.J.

        {¶ 1} On January 25, 2010, the Ross County Court of Common Pleas

found that Appellant, John J. Rohrer, had committed the offense of felonious

assault. On that date, the trial court further found that Rohrer was not guilty

by reason of insanity, pursuant to R.C. 2945.40. The trial court next

proceeded to find Appellant was mentally ill and subject to hospitalization.

Since that time, Appellant has been committed to the care of psychiatric

hospitals.
Ross App. No. 14CA3471                                                            2

      {¶ 2} On August 22, 2014, the trial court overruled a motion filed by

Appellant that argued the trial court had lost its jurisdiction as to Appellant

by failing to comply with the requirements of R.C. 2456.40(B) when it

conducted the original proceedings on January 25, 2010. On September 12,

September 15, and September 25, 2014, this matter came before the court

upon Appellant’s biannual review for continued commitment. The trial court

issued its decisions as to continuing commitment and forced medication

orders by separate entries journalized on November 3, 2014.

      {¶ 3} On December 1, 2014, Appellant gave notice that he is

appealing from the order entered on August 22, 2014, which he asserts

became merged into two November 3, 2014 entries, each entitled “Decision

& Order.” The two November 3, 2014 decisions and orders held: (1) that

Appellant remained a mentally ill person subject to hospitalization in the

least restrictive environment; and, (2) that the forced drugging order

previously issued by the trial court should be terminated.

      {¶ 4} On appeal, Appellant raises eight assignments of error.

However, upon review of the trial court record and the relevant Ohio law,

we find no merit to Appellant’s arguments. We overrule all assignments of

error and affirm the judgment of the trial court.
Ross App. No. 14CA3471                                                         3

                                   FACTS

      {¶ 5} Appellant, John J. Rohrer, was indicted for a violation of R.C.

2903.11, felonious assault, a felony of the second degree, on September 18,

2009, by the Ross County Grand Jury. The indictment stemmed from an

incident occurring on September 1, 2009. The record indicates Appellant

appeared for arraignment on September 21, 2009 and entered a not guilty

plea. The case was assigned to Judge William Corzine. On September 24,

2009, counsel from the Ohio Public Defender’s Office filed a notice of

appearance on Appellant’s behalf. On the same date, Counsel also entered a

written plea of not guilty by reason of insanity (NGRI) and a motion for a

competency examination of Appellant. The trial court granted the motion.

      {¶ 6} The next pleading of record is dated January 14, 2010, when the

trial court’s entry assigned the matter for an evaluation hearing on January

22, 2010. The record next reveals a written waiver of jury trial executed by

Appellant and filed on January 25, 2010. On February 1, 2010, the trial

court filed an entry summarizing hearings involving Appellant which took

place on January 25, 2010. The entry memorializes the following events:

      1. That Appellant was present and represented by counsel;

      2. That the parties stipulated to the report of a board-certified
      forensic psychologist, Dr. Stinson, on the issue of Appellant’s
      competency to stand trial;
Ross App. No. 14CA3471                                                                              4

        3. That based upon the competency report, Appellant was
        competent to stand trial;

        4. That Appellant had time to consult with counsel, was
        explained his constitutional rights, and waived his right to jury
        trial;

        5. That the matter proceeded to a trial by court wherein the
        parties stipulated to a police report of the September 1, 2009
        incident, and also stipulated to the report of Dr. Stinson as to
        Appellant’s mental condition at the time of the commission of
        the alleged offense on September 1, 2009;

        6. That based upon the stipulated matters, the trial court found
        Appellant knowingly caused physical harm to Warren Stevens
        by means of a deadly weapon;

        7. That further, the trial court found Appellant not guilty by
        reason of insanity;

        8. That by agreement of counsel, the matter then proceeded to a
        hearing pursuant to R.C. 2945.40;

        9. That the court explained to Appellant his rights as set forth
        in R.C. 2945.40(C);

        10. That the parties stipulated to the report of Dr. Dennis
        Eshbaugh, a clinical and forensic psychologist, and that based
        upon the report, the trial court found by clear and convincing
        evidence that Appellant was a mentally ill person subject to
        hospitalization by court order;

        11. That the least restrictive commitment alternative available,
        consistent with public safety and the welfare of Appellant, was
        the Timothy B. Moritz Forensic Center1; and,




1
 The complete name of this facility is Twin Valley Behavioral Healthcare, Timothy B. Moritz Unit,
hereinafter “Twin Valley.”
Ross App. No. 14CA3471                                                        5

      12. That the Appellant was committed to that facility, with the
      facility ordered to make reports to court as required by R.C.
      2945. 401.

      {¶ 7} The record reflects that at the time of his original commitment

in 2010, Appellant was 29-years old, single, with no children. Appellant

was born in Ohio, but had lived in California and Oklahoma during his

childhood. His father was a college professor and his mother is an attorney.

In the mid-1990’s, Appellant relocated to the Chillicothe area. He graduated

from high school in 1998. Appellant also earned an associate’s degree from

Ohio University. At the time of the incident which occurred in September

2009, Appellant was on a conditional release stemming from a 2006 NGRI

finding in a burglary case.

      {¶ 8} Appellant did not file an appeal of the February 1, 2010 entry.

The next docket entry reveals that on September 13, 2010, the court held a

continued commitment hearing, pursuant to R.C. 2945.401. Again,

Appellant was represented by counsel. The parties stipulated to the report of

Dr. Eshbaugh. Appellant also submitted a document he prepared. The trial

court found that Appellant remained a mentally ill person subject to

hospitalization by court order. The trial court ordered that Appellant remain

committed to the Moritz Unit at Twin Valley. Appellant did not file a notice

of appeal from this entry.
Ross App. No. 14CA3471                                                           6

      {¶ 9} The next judgment entry is dated March 14, 2011. The matter

was before the court on a motion from Twin Valley seeking an order of the

court to approve administration of psychotropic medications and laboratory

work. Appellant was present with an attorney. The parties stipulated to the

report of Dr. Hurst, a clinical officer, and Dr. Soehner, Appellant’s treating

psychiatrist. The court found Appellant remained a mentally ill person

subject to hospitalization, and the least restrictive treatment alternative

remained commitment to the facility. The trial court approved the

application for the forced administration of psychotropic medications as

needed. There was no appeal of this order.

      {¶ 10} On September 17, 2012, the trial court filed an entry

summarizing the continued commitment hearing held on September 10,

2012. On that date, Appellant was again accompanied by an attorney. The

parties again stipulated to the report of Dr. Eshbaugh. No other evidence or

testimony was offered. Based upon the report, the trial court found that

Appellant remained a mentally ill person subject to hospitalization.

However, the court found that the least restrictive treatment alternative

available was commitment to Appalachia Behavioral Healthcare, hereinafter

“ABH.” On September 18, 2012, the trial court journalized a nunc pro tunc
Ross App. No. 14CA3471                                                          7

entry, additionally ordering ABH to provide reports to the court as required

by law. Appellant pursued no appeal from either of these entries.

      {¶ 11} On or after December 4, 2013, Appellant began filing various

motions including: (1) a motion to require transportation; (2) a motion to

vacate forced drugging order of March 14, 2011, final termination of

commitment and/or alternatively for order restraining ABH for continuing

violations of patients’ rights legislation; and, (3) a motion to vacate order

for warrant of removal. On January 7, 2014, Judge Leonard Holzapfel,

retired, was assigned by the Supreme Court of Ohio to hear Appellant’s

case. On January 21, 2014, Appellant’s attorney of record filed a motion to

withdraw which was granted shortly thereafter.

      {¶ 12} Appellant continued filing various pleadings and motions

which included a “Notice of Absence of Jurisdiction.” Appellant also took

issue with the state of the trial court record and filed various motions to

correct the record and suspend proceedings until the trial court had ruled

upon the jurisdictional question. On August 12, 2014, the State filed a

memorandum concerning jurisdiction. On August 20, 2014, Appellant filed

a response brief to the State’s memorandum.

      {¶ 13} On August 22, 2014, the trial court overruled Appellant’s

motion as to jurisdiction. On August 27, 2014, the trial court overruled
Ross App. No. 14CA3471                                                          8

appellant’s motion to suspend all proceedings. On August 29, 2014, an

attorney on behalf of Appellant’s counsel filed a motion requesting Judge

Holzapfel to recuse himself from further involvement in the case. On

September 8, 2013, Judge Holzapfel overruled the motion. On September 9,

2014, a notice of appearance of additional counsel for Appellant was filed.

      {¶ 14} On September 12, September 15, and September 25, 2014 the

trial court heard testimony from the parties regarding Appellant’s continued

commitment and the forced medication order. On November 3, 2014, the

trial court issued its decision that Appellant continues to be mentally ill

subject to hospitalization and that the least restrictive environment is ABH.

By separate entry of the same date, the trial court terminated the forced

medication order. Appellant filed several post-judgment motions.

Additional facts, where relevant, will be set forth below. This timely appeal

followed.

                      ASSIGNMENT OF ERROR ONE

      “I. THE TRIAL JUDGE NO LONGER HAS SUBJECT
      MATTER JURISDICTION UNDER OHIO REV. CODE SEC.
      2945.40 OR 2945.401 BECAUSE IN THE ORIGINAL 1/25/10
      CONFINEMENT PROCEEDINGS APPELLANT WAS
      DENIED A HEARING WITHIN THE MEANING OF OHIO
      REV. CODE SEC. 2945.40(C) AND SUBSTANTIVE AND
      PROCEDURAL DUE PROCESS UNDER SPECIFIC
      PROVISIONS OF THE FOURTEENTH AMENDMENT TO
      THE U.S. CONSTITUTION, SUCH THAT APPELLANT
      SHOULD NOW BE RELEASED PURSUANT TO OHIO
Ross App. No. 14CA3471                                                                                     9

         REV. CODE SEC. 2945.40(B) AS HE SHOULD HAVE BEEN
         IN 2010.”

         {¶ 15} We begin by noting that Appellant has appealed from the

August 22, 2014 entry (finding that the trial court fully complied with the

requirements of R.C. 2945.40(B), and the November 3, 2014, entry (finding

Appellant is a mentally ill person subject to hospitalization in the least

restrictive environment.) Appellant’s notice of appeal states that the entries

are merged. Although the language of the entries does not reflect merger,

Appellant is correct.2 An entry holding that a court has jurisdiction is

interlocutory and cannot be the basis of an appeal. See, Federal Land Bank

of Louisville v. DeRan, 740 Ohio App. 365, 59 N.E.2d 54 (6th Dist. 1944).

“[I]nterlocutory orders * * * are merged into the final judgment. Thus, an

appeal from the final judgment includes all interlocutory orders merged with

it * * *.” (Citation omitted.) See, USA Freight, LLC. v. CBS Outdoor Group,

Inc., 2nd Dist. Montgomery No. 26425, 2015-Ohio-1474, ¶ 15. Grover v.

Bartsch, 170 Ohio App.3d 188, 2006-Ohio-6115, 866 N.E.2d 547, ¶ 9 (2nd

Dist.). An interlocutory order is “[a]n order that relates to some intermediate

matter in the case; any order other than a final order.” Black's Law


2
  Actually, there was a second November 3, 2014 entry. The second entry pertained to Appellant’s motion
to terminate forced medication. The first November 3, 2014 entry references the forced medication issue
and states that it will be “[addressed] by separate entry.” In that sense, the two November 2014 entries are
merged. Although both November entries are referenced in the notice of appeal, Appellant does not
challenge the court’s ruling as to the termination of forced medication order.
Ross App. No. 14CA3471                                                         10

Dictionary (10th Ed. 2014). Therefore, there is no issue regarding the

finality and appealability of the order in this case.

      {¶ 16} We next pause to emphasize App.R. 16(A)(7) which requires

Appellant to prepare a brief containing the contentions of the appellant with

respect to each assignment of error presented for review and the reasons in

support of the contentions, with citations to the authorities, statutes, and

parts of the record on which appellant relies.” At the outset, Appellant has

directed us to his July 2014 pretrial statement for a full argument regarding

the issues. However, it is not our responsibility to “hunt through” the

record. King v. King, 4th Dist. Washington No 13CA7, 2014-Ohio-5836,

¶ 35, quoting State v. Allen, 4th Dist. Scioto No. 96CA2421, 1997 WL

691470, *6, fn. 12 (Nov. 7, 1997). “The provisions of App.R. 16(A)(7) for

fully briefing each assignment of error place this responsibility squarely on

appellant.” Id. Therefore, we consider Appellant’s eight assignments of

error based on the arguments summarily argued in his brief.

      {¶ 17} Finally, before we begin our analysis, we pause to set forth the

relevant statutes and definitions, as well as case law which recognize the

interplay between Chapters 2945 and 5122. The procedure for the

determination of the appropriate disposition of a person who has been

acquitted of a criminal charge by reason of insanity is governed by R.C.
Ross App. No. 14CA3471                                                      11

2945.40. State v. Johnson, 5th Dist. Stark No. 2012 CA00231, 2013-Ohio-

3691, ¶ 10; State v. Thomas, 4th Dist. Lawrence No. 92CA32, 1993 WL

293636, *3. Specifically, R.C. 2945.40, acquittal by reason of insanity,

provides:

      (A) If a person is found not guilty by reason of insanity, the
      verdict shall state that finding, and the trial court shall conduct
      a full hearing to determine whether the person is a mentally ill
      person subject to court order or a mentally retarded person
      subject to institutionalization by court order.

      ***

      (B) The court shall hold the hearing under division (A) of this
      section to determine whether the person found not guilty by
      reason of insanity is a mentally ill person subject to court order
      or a mentally retarded person subject to institutionalization by
      court order within ten court days after the finding of not guilty
      by reason of insanity.

      ***

      (C) If a person is found not guilty by reason of insanity, the
      person has the right to attend all hearings conducted pursuant to
      sections 2945.37 to 2945.402 of the Revised Code. At any
      hearing conducted pursuant to one of those sections, the court
      shall inform the person that the person has all of the following
      rights:

      (1) The right to be represented by counsel and to have that
      counsel provided at public expense if the person is indigent,
      with the counsel to be appointed by the court under Chapter
      120. of the Revised Code or under the authority recognized in
      division (C) of section 120.06, division (E) of section 120.16,
      division (E) of section 120.26, or section 2941.51 of the
      Revised Code;
Ross App. No. 14CA3471                                                      12

     (2) The right to have independent expert evaluation and to have
     that independent expert evaluation provided at public expense if
     the person is indigent;

     (3) The right to subpoena witnesses and documents, to present
     evidence on the person's behalf, and to cross-examine witnesses
     against the person;

     (4) The right to testify in the person's own behalf and to not be
     compelled to testify;

     (5) The right to have copies of any relevant medical or mental
     health document in the custody of the state or of any place of
     commitment other than a document for which the court finds
     that the release to the person of information contained in the
     document would create a substantial risk of harm to any person.

     D) The hearing under division (A) of this section shall be open
     to the public, and the court shall conduct the hearing in
     accordance with the Rules of Civil Procedure. The court shall
     make and maintain a full transcript and record of the hearing
     proceedings. 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 in relation to which the person was
     found not guilty by reason of insanity, and any history of the
     person that is relevant to the person's ability to conform to the
     law.

     ***
     (F) If, at the hearing under division (A) of this section, the court
     finds by clear and convincing evidence that the person is a
     mentally ill person subject to court order, the court shall
     commit the person either to the department of mental health and
     addiction services for treatment in a hospital, facility, or agency
     as determined clinically appropriate by the department of
     mental health and addiction services or to another medical or
     psychiatric facility, as appropriate.

     {¶ 18} R.C. 5122.011 states:
Ross App. No. 14CA3471                                                        13


      “The provisions of this chapter regarding hospitalization apply
      to a person who is found incompetent to stand trial or not guilty
      by reason of insanity and is committed pursuant to section
      2945.39, 2945.40, 2945.401, or 2945.402 of the Revised
      Code to the extent that the provisions are not in conflict with
      any provision of sections 2945.37 to 2945.402 of the Revised
      Code. If a provision of this chapter is in conflict with a
      provision in sections 2945.37 to 2945.402 of the Revised Code
      regarding a person who has been so committed, the provision in
      sections 2945.37 to 2945.402 of the Revised Code shall
      control regarding that person.”

      {¶ 19} The Ohio Supreme Court has made clear that involuntary-

commitment proceedings are civil in nature. State v. Jackson, 1st Dist.

Hamilton No. C-130420, 2014-Ohio-613, 9. See, State v. Williams, 126

Ohio St.3d 65, 2010-Ohio-2453, 930 N.E.2d 770, ¶ 37 (incompetency

commitments under R.C. 2945.39 and recommitments under R.C. 2945.401

are civil in nature); see, also, State v. Tuomala, 104 Ohio St.3d 93, 2004-

Ohio-6239, 818 N.E.2d 272, ¶ 16 (a determination under R.C. 2945.40 that a

criminal defendant was insane at the time of the alleged acts is an acquittal,

not a conviction). In Jackson, supra, the appellate court found while

Jackson's involvement with the court was initiated by a criminal indictment,

the case ceased to be a criminal matter once he was acquitted of the charges

by reason of insanity.

                    A. STANDARD OF REVIEW
Ross App. No. 14CA3471                                                                                    14

         {¶ 20} The right to procedural due process is protected by the

Fourteenth Amendment to the United States Constitution and Section 16,

Article I of the Ohio Constitution. State v. Hudson, 2013. State v. Hayden,

96 Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d 502, ¶ 6. Individuals in

Ohio committed to mental institutions are protected both by the due process

clauses of the U.S. and Ohio Constitutions and by statute under Chapter

5122.3 State v. Pollock, 2nd Dist. Greene No. 2001-CA-32, 2002-Ohio-102,

¶ 9; In re Fisher (1974), 39 Ohio St.2d 71, 313 N.E.2d 851; State v. Thomas

(Aug. 20, 1985), Lawrence App. No. 1742, unreported.

         {¶ 21} The involuntary commitment of an individual constitutes a

significant deprivation of liberty. In re Kister, 194 Ohio App.3d 270, 2011-

Ohio-2678, 955 N.E.2d 1029 (4th Dist.), ¶ 22, citing, See Addington v.

Texas (1979), 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323; In re

Miller (1992), 63 Ohio St.3d 99, 101, 585 N.E.2d 396. Thus, “it is

particularly important that the statutory scheme be followed, so that the

[individual's] due-process rights receive adequate protection.” Miller at 101,

585 N.E.2d 396. In applying the statutory scheme, “the individual's right

against involuntary confinement depriving him or her of liberty must be

balanced against the state's interest in committing those who are mentally
3
  5122.42, preservation of rights and privileges, provides: “Nothing in this chapter limits any
rights, privileges, or immunities under the constitution, and laws of the United States or this state.”
Ross App. No. 14CA3471                                                       15

ill” and who pose a continuing risk to society or to themselves. Id. In State

ex rel. Hattie v. Goldhardt, 69 Ohio St.3d 123, 125, 1994-Ohio-81, 630

N.E.2d 696, the Ohio Supreme Court addressed due process rights as

follows:

       “The Fourteenth Amendment forbids a state to ‘deprive any
      person of life, liberty, or property, without due process of law
      * * *.’ Hence, the Due Process Clause applies ‘only if a
      government action will constitute the impairment of some
      individual's life, liberty, or property.’ ”2 Rotunda & Nowak,
      Treatise on Constitutional Law (1992) 580, Section 17.2.
      Woodson, supra at 25.

      {¶ 22} Although due process is “ ‘flexible and calls for such

procedural protections as the particular situation demands,’ ” Mathews v.

Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), quoting

Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484

(1972), the basic requirements of procedural due process are notice and an

opportunity to be heard. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773

N.E.2d 502, at ¶ 6, citing State v. Hochhausler, 76 Ohio St.3d 455, 459, 668

N.E.2d 457 (1996).

                          B. LEGAL ANALYSIS

      {¶ 23} Appellant argues that at his January 25, 2010 hearing
Ross App. No. 14CA3471                                                                                      16

pursuant to R.C. 2945.40(A), the constitutional and statutory rights of due

process were not afforded him.4 Appellant directs us to the “full inventory

of such rights violations” contained in his pretrial statement of July 30,

2014, and incorporated by reference. In his brief, Appellant specifically,

contends:

         1. He was never provided with written or oral notice of the
         State’s intent to involuntarily hospitalize him. He was also
         never informed that the State had to prove each of the elements
         of R.C. 5122.01(A) and (B) by clear and convincing evidence;

         2. He was never given a meaningful opportunity to be heard;

         3. An actual evidentiary hearing never took place;

         4. He was deprived of a meaningful opportunity to call
         witnesses on his own behalf;

         5. The right to cross-examine witnesses was never read.
         Appellant was not informed of his right to exclude privileged,
         confidential information. Neither Appellant nor his counsel
         waived his right to confront or to cross-examine Dr. Eshbaugh
         or his report;

         6. Appellant was rendered ineffective assistance of counsel in
         that his counsel refused to meet with him, investigate his
         claims, rendered no assistance, and did nothing but serve as a
         bystander; (here again, Appellant references his pretrial
         statement and advises us to incorporate his argument.)

         7. Appellant was never advised of his right to jury trial and his
         right to waive jury trial under the Ohio and federal


4
 Appellant directs us to the “full inventory of such rights violations contained in his pretrial statement of
July 30, 2014, and incorporated by reference. As indicated above, we will consider only Appellant’s
arguments made in the brief herein.
Ross App. No. 14CA3471                                                           17

      constitutions. (Appellant references his July 15, 2014 jury
      demand for the full argument).

Appellant concludes he has been unlawfully confined for over five years and

must now be discharged.

      {¶ 24} Appellee responds that the original February 1, 2010 entry

finding Appellant not guilty by reason of insanity (NGRI) and mentally ill

subject to hospitalization was a final appealable order. However, no appeal

or attempt to file a delayed appeal was made nor did Appellant challenge the

subsequent orders of the trial court until December 2013. Appellee contends

that the doctrine of res judicata applies to bar the current appeal. However,

Appellee further argues that, should this court disagree that res judicata

applies, the trial court did comply with all Appellant’s fundamental and

statutory rights of due process.

      {¶ 25} Our research has not yielded any Ohio cases specifically

challenging the trial court’s exercise of jurisdiction in proceedings wherein

an Appellant is acquitted by reason of insanity. The cases generally present

challenges to the trial court’s finding that an individual is mentally ill and

subject to hospitalization, as we will address later herein. In fact, a NGRI

finding has been held to be not final or appealable. In State v. Janney, 55

Ohio App.2d 257, 259, 380 N.E.2d 753, (10th Dist. 1977), the appellate

court cited State v. Chamberlain (1964), 177 Ohio St. 104, at 105, 202
Ross App. No. 14CA3471                                                                                   18

N.E.2d 695; Berman v. United States (1937), 302 U.S. 211, at 212, 58 S.Ct.

164, 82 L.Ed. 204, for the principle that a final judgment in a criminal case

means sentence. The Janney court reasoned, therefore, that a finding of not

guilty by reason of insanity was not a final judgment or order appealable to

that court. And, Janney held that appellant's remedy was to petition for a

writ of habeas corpus as provided in the relevant statute. The Janney court

concluded it did not have jurisdiction to hear the appeal.5

         {¶ 26} Due to the various constitutional violations alleged, Appellant

concludes that he must be completely discharged, which would be the

remedy to be obtained through a writ of habeas corpus.6 A writ of habeas

corpus is an extraordinary writ which will lie only when an individual is

without an adequate remedy at law. Woodson v. Mohr, 4th Dist. Ross No.

01CA2643, 2002-Ohio-3706, ¶ 15. (internal citations omitted.) Generally, a

writ of habeas corpus will issue only when the petition successfully attacks

the jurisdiction of the sentencing court. Woodson, supra, at ¶ 23. See State

5
  R.C. 5122.30, writ of habeas corpus, provides: “Any person detained pursuant to this chapter or
section 2945.39, 2945.40, 2945.401, or 2945.402 of the Revised Code shall be entitled to the writ
of habeas corpus upon proper petition by self or by a friend to any court generally empowered to
issue the writ of habeas corpus in the county in which the person is detained.

No person may bring a petition for a writ of habeas corpus that alleges that a person involuntarily
detained pursuant to this chapter no longer is a mentally ill person subject to court order unless the
person shows that the release procedures of division (H) of section 5122.15 of the Revised Code
are inadequate or unavailable.”
6
  We are aware Appellant filed a writ for habeas corpus in the Supreme Court of Ohio which was denied on
the pleadings on July 23, 2014 by the Court’s decision in State ex rel. Rohrer v. Holzapfel, 139 Ohio St.3d
1481, 2014-Ohio-3195, 112 N.E.3d 1227.
Ross App. No. 14CA3471                                                                                 19

ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 187, 1995-Ohio-746, 652

N.E.2d at 748 (citing R.C. 2725.05).

         {¶ 27} By contrast, this court considered the arguments of a

defendant found not guilty by reason of insanity in State v. Wachtel, 4th

Dist. Athens No. 99CA24, 2000 WL 1038112. Wachtel was found NGRI in

May 1998. In November 1998, the trial court held a hearing and determined

Wachtel’s commitment should be continued. On April 30, 1999, Wachtel

filed a motion for reconsideration of various motions to vacate his plea of

NGRI. The trial court denied his motion. On appeal, Wachtel claimed

various due process and equal protection violations. Included within his

argument, Wachtel asserted the trial court did not have jurisdiction to find

him NGRI because it did not comply with R.C. 2945.05.7 This court

construed Wachtel’s filing in this court as a petition for post-conviction

relief, although it was not entitled as such. We held:

         “Because we find that Wachtel was seeking post-conviction
         relief even though he was not convicted, and because Wachtel
         attempts to substitute motions seeking vacation and
         reconsideration for a direct appeal, we find no error in the trial
         court's denial of Wachtel's motions.” *1.8


7
  This code section pertains to the subpoenaing of witnesses.
8
  Post-conviction relief is governed by R.C. 2953.21. The statute provides, in pertinent part, that:
“Any person who has been convicted of a criminal offense * * * and who claims that there was
such a denial or infringement of the person's rights as to render the judgment void or voidable
under the Ohio Constitution or the Constitution of the United States, * * * may file a petition in
the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to
vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner
Ross App. No. 14CA3471                                                                               20


         {¶ 28} We further concluded:

         “Even if Wachtel was entitled to seek PCR, the matters that he
         seeks to appeal are res judicata. Wachtel did not file an appeal
         from the trial court's decision that found him NGRI. Because
         Wachtel did not appeal the trial court's finding that he was
         NGRI, all matters that could have been reviewed had an appeal
         been taken are now res judicata and are not appealable. See e.g.,
         In re Adoption of Greer (1994), 70 Ohio St.3d 293, 638 N.E.2d
         999, fn. 1.”

Appellant’s brief is replete with unsupported allegations of improper ex

parte communication, “pre-arranged off-record” discussions, the appearance

of impropriety, “questionable impartiality of the decisionmaker,” “sham

proceedings,” and ineffective assistance. Such issues are to be raised in

post-conviction petitions. State v. Banks, 10th Dist. Franklin No. 12AP-96,

2012-Ohio-3770, ¶ 7. However, construing Appellant’s appeal at this late

date as an attempt for post-conviction relief, as cited above, it is not a

remedy available to him because as in Wachtel, Appellant here was not

convicted.

         {¶ 29} More importantly, we agree, as in Wachtel, that Appellant’s

Appellant’s arguments are long since barred by the doctrine of res judicata.

Not until December 2013 did Appellant begin filing various motions in the



may file a supporting affidavit and other documentary evidence in support of the claim for relief.
R.C. 2953.21(A)(1)(a).”
Ross App. No. 14CA3471                                                         21

trial court protesting irregularity in the commitment procedures followed by

the trial court in 2010. By that time it was too late to file any direct appeal.

      {¶ 30} In order to render this decision, we have completely reviewed

the record on appeal. Even if the doctrine of res judicata did not apply, the

trial court’s August 22, 2014 ruling is supported by the record. Although we

need go no further, in the interests of justice, we observe that the transcript

of the January 25, 2010 hearing reveals that the trial judge fully complied

with the requirements of R.C. 2945.40(B).

      {¶ 31} The January 2010 proceedings began with a stipulation as to

Appellant’s competency to stand trial, to understand the nature and

objectives of the proceedings against him, and the ability to assist in his own

defense. The trial court next engaged in a colloquy with Appellant regarding

his right to trial by jury and associated rights. Appellant fully participated,

explaining his educational background and the medications he used for his

mental condition. Appellant stated he felt able to make decisions and that he

was reasonably “clear-headed.” Appellant answered affirmatively that he

understood everything that had been discussed to that point.

      {¶ 32} The trial court next explained Appellant’s rights to trial by

jury, that all elements of his criminal charge had to be proven beyond a

reasonable doubt, and the maximum penalties involved. Appellant answered
Ross App. No. 14CA3471                                                          22

affirmatively that he had the opportunity to discuss with his counsel his

waiving of his right to jury trial. Appellant again answered affirmatively

that he voluntarily waived and relinquished his right to a jury trial, and he

executed a written waiver. The trial court next stated “By agreement of

counsel” that the parties were ready to proceed with the R.C. 2945.40(B)

hearing. He again advised Appellant of his right to counsel, the right to have

an independent expert evaluation, the right to testify, and the right to copies

of relevant medical documents. The court then recessed to review Dr.

Eshbaugh’s report. At the end of the recess, when both parties had

opportunity to review the report, Appellant’s counsel declined an

opportunity to present other evidence or testimony and stipulated to Dr.

Eshbaugh’s report. The trial court found by clear and convincing evidence

based upon the stipulated report of Dr. Eshbaugh that Appellant was

mentally ill and subject to hospitalization. Before the hearing was

concluded, the trial court inquired of both parties if there was anything

further. By virtue of the record reflecting Appellant’s indictment, notice of

appearance of counsel in September 2009, various pleadings filed on behalf

of Appellant, and his appearance in court with counsel at the January 2010

proceedings, we conclude Appellant had notice of the proceedings. We

further conclude that after the dialogue between Appellant and the trial court
Ross App. No. 14CA3471                                                          23

at the January 25, 2010 proceedings, although it was brief, Appellant had an

opportunity to be heard.

      {¶ 33} In State v. Pollock, 2nd Dist. Greene No. 2001-CA-32, 2002-

Ohio-102, the defendant argued that the trial court failed to follow the 10-

day time limitation for holding the commitment hearing set forth in R.C.

2945.40(B) and concluded, therefore, he was entitled to a writ of habeas

corpus. The appellate court set forth the statute and noted it did not

specifically address the issue raised. The appellate court held that while it

had found no cases directly on point, Ohio Supreme Court precedent and

public policy considerations lead to the determination that the failure to

conduct the hearing within the time limits did not deprive the trial court of

jurisdiction to order the commitment. The appellate court further observed

that Pollock had not demonstrated any manner in which he had been

prejudiced by the untimely hearing. We conclude, as in Pollock, that despite

Appellant’s sweeping and unsubstantiated allegations of vast impropriety of

the proceedings, he has not demonstrated that he was prejudiced by the

manner in which the R.C. 2945.40(B) initial commitment hearing in January

2010 was conducted.

      {¶ 34} For the foregoing reasons, we find no merit to Appellant’s first

assignment of error. Appellant’s argument that the trial court committed
Ross App. No. 14CA3471                                                          24

various due process violations and as a result lost its jurisdiction, first raised

after December 2013, is barred by the doctrine of res judicata. As such, we

overrule the first assignment of error and affirm the judgment of the trial

court.

                      ASSIGNMENT OF ERROR TWO

         “II. THE TRIAL JUDGE ERRED BY REFUSING TO FIND THAT
         HE LACKED SUBJECT MATTER JURISDICTION UNDER OHIO
         REV. CODE SEC. 2945.40 OR 2945.401 TO ISSUE ANY ORDERS
         OF INVOLUNTARY TREATMENT BECAUSE THE 2011
         ENACTMENT OF SEC.1.21 OF THE OHIO CONSTITUTION
         PROHIBITS FORCED TREATMENT.”

                        A. STANDARD OF REVIEW

         {¶ 35} The common law doctrine of “informed consent” has been

viewed as generally encompassing the right of a competent adult to refuse

medical treatment, In re S. H. 2013, 9th Dist. Medina No. 13CA0066-M,

2013-Ohio-4380, ¶ 10, quoting Cruzan v. Director, Miss. Dept. of Health,

497 U.S. 261, 277, 110 S.Ct. 2841, (1990). “The right to be free from

unwanted medical attention is a right to evaluate the potential benefit of

treatment and its possible consequences according to one's own values and

to make a personal decision whether to subject oneself to the intrusion.”

Cruzan, 497 U.S. 261, 309, 110 S.Ct. 2841, (Brennan, dissenting). In

Cruzan, the Court found the right of a competent adult to refuse unwanted

medical treatment to be a constitutionally protected liberty interest under the
Ross App. No. 14CA3471                                                         25

due process clause of the Fourteenth Amendment. This constitutionally

protected right to refuse unwanted medical treatment has been recognized in

Ohio.

        {¶ 36} The Supreme Court of Ohio recognizes an Ohioan's

fundamental right to refuse medical treatment on the basis that “personal

security, bodily integrity, and autonomy are cherished liberties.” Steele v.

Hamilton Cty. Community Mental Health Bd., 90 Ohio St.3d 176, 736

N.E.2d 10, 2000-Ohio-47 at 180, 736 N.E.2d 10. “These liberties were not

created by statute or case law. Rather, they are rights inherent in every

individual.” Id. at 180-81, 736 N.E.2d 10 (citing Section 1, Article I, Ohio

Constitution). The court has further held that “[e]very human being of adult

years and sound mind has a right to determine what shall be done with his

own body.” Id. at 181, 736 N.E.2d 10 (quoting Schloendorff v. Soc. of N.Y.

Hosp. (1914), 211 N.Y. 125, 105 N.E. 92, 93). Licking & Knox Community

Mental Health & Recovery Bd. v. T.B., 10th Dist. Franklin No. 10AP-454,

2010-Ohio-3487, ¶ 19. A competent person may refuse medical treatment

regardless of the fact that there may be severe consequences involved for

refusing treatment. Cruzan, 497 U.S. 261, 306, 110 S.Ct. 2841, 111 L.Ed.2d

224 (Brennan, dissenting). That the state may disagree with a competent

individual's decision to forego medical treatment is of no consequence,
Ross App. No. 14CA3471                                                            26

“[t]he regulation of constitutionally protected decisions * * * must be

predicated on legitimate state concerns other than disagreement with the

choice the individual has made * * *. Otherwise the interest in liberty would

be a nullity * * *.” (emphasis sic.) Cruzan, 497 U.S. 261, 313-314, 110 S.Ct.

2841, 111 L.Ed.2d 224 (Brennan, dissenting) ( quoting Hodgson v.

Minnesota, 497 U.S. 417, 435, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990).

                             B. LEGAL ANALYSIS

       {¶ 37} An individual who is found not guilty by reason of insanity

and committed pursuant to R.C. 2945.40 remains subject to the jurisdiction

of the court until: (1) the individual is no longer mentally ill and subject to

hospitalization as determined by the trial court; (2) the maximum prison

sentence that could have been imposed for the most serious offense with

which the individual was charged expires; or (3) the individual becomes

competent to stand trial. R.C. 2945.401(J)(1). See also, R.C. 2945.401(A);

Townsend v. McAvoy,12 Ohio St.3d 314, 315, 466 N.E.2d 555 (1984). As

set forth above, Appellant was originally found NGRI on January 25, 2010.

Per our resolution of Assignment of Error One, Appellant remains subject to

the jurisdiction of the trial court.

       {¶ 38} On December 9, 2011, the Ohio legislature enacted Section

1.21 of the Ohio Constitution. Section 1.21, “preservation of the freedom to
Ross App. No. 14CA3471                                                           27

choose health care and health care coverage,” states: “(A) No federal, state,

or local law or rule shall compel, directly or indirectly, any person * * * to

participate in a health care system.” Appellant argues that this

constitutional provision prohibits forced treatment, be it hospitalization or

“drugging.” As such, Appellant contends he has the right not to be forced to

participate in any manner in “medical treatment” without informed consent.

      {¶ 39} Appellee counters Appellant’s argument that the

constitutional provision prohibits forced medical treatment by directing us to

Section (D) of the same provision. Section 1.21 further provides:

      “(D) This section does not affect laws or rules in effect as of
      March 19, 2010; affect which services a health care provider or
      hospital is required to perform or provide * * *.”

      {¶ 40} As relates to Appellant’s contention about “forced drugging,”

that issue has become moot. The trial court determined in its separate entry

of November 3, 2014 that:

      “From the testimony presented on behalf of defendant and
      defendant’s own testimony the court finds, although the
      defendant is a mentally ill person subject to hospitalization, has
      the mental capacity to participate in his medical treatment.
      However defendant cannot refuse treatment deemed advisable
      by his treating physician. * * * It is therefore ordered that the
      forced drugging order previously issued by this court is
      terminated.”
Ross App. No. 14CA3471                                                       28

As such, we have no need to consider whether the constitutional amendment

prohibits unwanted medical treatment in the context of court-ordered

medications.

      {¶ 41} Pertaining to Appellant’s argument that his hospitalization

is prohibited by the constitutional amendment, we reiterate that pursuant to

Cruzan and Steele, a competent adult has the fundamental right to refuse

unwanted medical treatment. Black’s Law Dictionary defines “competent”

as follows:

      “Duly qualified; answering all requirements; having sufficient
      capacity, ability or authority; possessing the requisite physical
      mental, natural or legal qualifications; able, adequate; suitable;
      sufficient; capable; legally fit.” Id. Abridged Sixth Edition,
      1991.

Our research has revealed no Ohio cases in which this constitutional

amendment was used as a justification to avoid the jurisdiction of the

committing court. The trial court found that Appellant had the “mental

capacity to participate in his medical treatment, while finding he remains

mentally ill subject to hospitalization. We conclude, therefore, in this sense,

Appellant is not “sufficiently competent” to have the fundamental right to

refuse hospitalization.

      {¶ 42} We further agree with Appellee that the constitutional

amendment is not applicable to this case. The plain language of Section
Ross App. No. 14CA3471                                                         29

1.21 states that it does not affect “services a health care provider or hospital

is required to perform.” Appellant is currently residing at ABH, which is a

psychiatric hospital. He is, thus, an involuntary admission pursuant to

judicial procedure as provided for in R.C. 5122.05(A)(2).

      {¶ 43} R.C. 5122.01(F) defines “hospital” as “a hospital or inpatient

unit licensed by the department of mental health and addiction services

under section 5119.33 of the Revised Code, and any institution, hospital, or

other place established, controlled, or supervised by the department under

Chapter 5119. of the Revised Code.” “Mental health services” is defined as

“services for the assessment, care, or treatment of persons who have a

mental illness as defined in this section.”

        {¶ 44} The pertinent definitions have been set forth above. ABH is

required to provide mental health services, i.e. “hospitalization” to Appellant

by virtue of his commitment pursuant to R.C. 2945.40 and R.C. 2945.401.

We find no merit to Appellant’s argument that Section 1.21 of the Ohio

Constitution prohibits forced treatment or, with its enactment, deprived the

trial court of jurisdiction in this matter. As such, it is hereby overruled.

                     ASSIGNMENT OF ERROR SEVEN

      {¶ 45} For ease of analysis, we will consider Appellant’s seventh

assignment of error out of order.
Ross App. No. 14CA3471                                                         30

      “VII. THE TRIAL JUDGE ERRONEOUSLY ADMITTED OVER
      OBJECTION, OPINION TESTIMONY FROM STATE WITNESSES
      BASED ON THEIR INTERPRETATIONS OF CONFIDENTIAL
      PATIENT TREATMENT RECORDS DURING THE SEPTEMBER,
      2012 (sic) PROCEEDINGS.”

                       A. STANDARD OF REVIEW

      {¶ 46} “The trial court has broad discretion in the admission and

exclusion of evidence * * *.” State v. Gavin, 4th Dist. Scioto No.

13CA3592, 2015-Ohio-2996, ¶ 20, quoting State v. Kirkland, 140 Ohio

St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67. “Appeals of such decisions

are considered by an appellate court under an abuse-of-discretion standard of

review.” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d

528, syllabus. The Supreme Court of Ohio has defined “abuse of discretion”

as an “unreasonable, arbitrary, or unconscionable use of discretion, or as a

view or action that no conscientious judge could honestly have taken.”

Kirkland at ¶ 67, quoting State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-

4493, 894 N.E.2d 671, ¶ 23.

                          B. LEGAL ANALYSIS

      {¶ 47} R.C. 5122.31, confidentiality, provides:

      “(A) All certificates, applications, records, and reports made for
      the purpose of this chapter and sections 2945.38, 2945.39,
      2945.40, 2945.401, and 2945.402 of the Revised Code, other
      than court journal entries or court docket entries, and directly or
      indirectly identifying a patient or former patient or person
      whose hospitalization or commitment has been sought under
Ross App. No. 14CA3471                                                       31

      this chapter, shall be kept confidential and shall not be
      disclosed by any person except:

       ***

      (4) Pursuant to a court order signed by a judge.

      (12) That records pertaining to the patient's diagnosis, course of
      treatment, treatment needs, and prognosis shall be disclosed and
      released to the appropriate prosecuting attorney if the patient
      was committed pursuant to section 2945.38, 2945.39, 2945.40,
      2945.401, or 2945.402 of the Revised Code, or to the attorney
      designated by the board for proceedings pursuant to involuntary
      commitment under this chapter.”

      {¶ 48} We begin by noting Appellant’s argument under this

assignment of error does not specify any particular witness or any particular

records or reports as being objectionable. Appellant argues “the ABH

witnesses” unlawfully disclosed confidential patient information without his

consent. Appellant argues since essentially all of the State’s testimony was

based on “confidential psychiatric records,” the testimony should all be

stricken.

      {¶ 49} Appellee responds that the ABH records relied on by its

experts were not protected by physician/patient privilege. Appellee points

out Appellant’s commitment proceeding was pursuant to R.C. 2945.401, not

R.C. 5122.01. Appellee contends Appellant waived his right to privilege by

pleading NGRI. Appellee directs us to State v. Hall, 141 Ohio App.3d 561,

752 N.E.2d 318 (4th Dist. 1991).
Ross App. No. 14CA3471                                                         32

      {¶ 50} At the September 2014 hearings, Dr. Scott testified she

reviewed Appellant’s “morning reports” which outlined “what a patient is

going through on a daily basis.” She testified the reports were conducted in

the course of daily business at ABH. She acknowledged some of the reports

were done prior to Appellant’s hospitalization at ABH. She obtained the

reports from his medical record and forensic files. Dr. Scott testified the

reports are placed in Appellant’s record as part of the duties of the

employees of ABH who daily generate the reports.

      {¶ 51} Dr. Scott also testified as to State’s Exhibit A, which was a

report she generated. Dr. Scott testified it was an accurate copy of her

original report. She testified that page one of her report listed the documents

she reviewed in order to conduct her evaluation for purposes of the

continued commitment hearing. At this point, Appellant’s counsel objected

to the report’s admissibility, in part, because: (1) it was a summary report

based on records not made available before trial; and, (2) the report was

based on hearsay. The State responded, in part, that the records Dr. Scott

reviewed in making her determination were kept by ABH in the course of

their record-keeping process. Counsel responded that the reports contained

confidential information which Appellant had not waived. At this point, the

trial court overruled the objection.
Ross App. No. 14CA3471                                                     33

      {¶ 52} In State v. Hall, we noted:

      “Ohio's Public Records Act also requires that ‘public records’
      be made available for inspection. R.C. 149.43(B)(1). It is well
      settled that any document pertaining to a court proceeding, or
      any record necessary to the execution of the responsibilities of a
      governmental unit, is a ‘public record’ within the meaning of
      R.C. 149.43. Such record must be made available for public
      inspection unless there is a specific statutory exclusion which
      applies. State ex rel. Mothers Against Drunk Drivers v. Gosser
      (1985), 20 Ohio St.3d 30, 20 OBR 279, 485 N.E.2d 706, at
      paragraph one of the syllabus; Potchen v. Kelly (1998), 130
      Ohio App.3d 21, 26, 719 N.E.2d 570, 573; State ex rel. Swigart
      v. Barber (1997), 118 Ohio App.3d 238, 240, 692 N.E.2d 639,
      640.” Id. at 1-2.

      {¶ 53} In Hall, we concluded:

      “We believe that the psychiatric evaluations at issue in the
      instant case are judicial records or documents submitted to the
      court to assist it in its responsibility to determine whether
      appellant is competent to stand trial. As such, the evaluations
      are ‘public records’ that must remain open to inspection, under
      both common law and R.C. 149.43, unless appellant can show
      some authority to the contrary.” Id. at 3.

      {¶ 54} Hall argued his psychiatric evaluations should have been

exempted from the Public Records Act because they were “medical

records.” However, we stated:

      “It is true that ‘medical records’ are excluded from the rubric of
      ‘public records’ that must remain open for inspection. R.C.
      149.43(A)(1)(a). However, ‘medical records’ are defined for
      purposes of this statute as documents that are ‘generated and
      maintained in the process of medical treatment.’ Id. at (A)(3).
      Medical reports compiled for reasons other than ‘medical
      treatment’ do not fall within this exception. See, e.g., State ex
      rel. Multimedia, Inc. v. Snowden (1995), 72 Ohio St.3d 141,
Ross App. No. 14CA3471                                                        34

      144-145, 647 N.E.2d 1374, 1379; State ex rel. Natl.
      Broadcasting Co. v. Cleveland (1992), 82 Ohio App.3d 202,
      214, 611 N.E.2d 838, 846. As the trial court aptly noted below,
      the psychiatric reports at issue in this case were not generated
      as a part of appellant's ‘medical treatment.’ The reports at issue
      were compiled solely to assist the court in determining whether
      appellant was competent to stand trial. Thus, those reports are
      not ‘medical reports’ exempt from public disclosure
      requirements.” Id. at 4-5.

      {¶ 55} Further, in Hall, the appellant also cited R.C. 2317.02(B)(1)

“physician-patient privilege” and suggested the provision required that his

psychiatric evaluations be sealed. Again, this court disagreed, reasoning as

follows:

      “R.C. 2317.02(B)(1) states, inter alia, that a physician shall not
      testify as to any communication made by a patient to the
      physician in the course of that relationship. This is a
      testimonial privilege and has no bearing in those instances such
      as the instant case in which a court must consider whether to
      make available to the public a report already prepared by a
      psychiatrist. Moreover, the physician-patient privilege attaches
      only when a person consults a doctor for treatment or diagnosis
      and does not extend to the situation when the doctor is hired to
      render an opinion for purposes of litigation. See, e.g., State v.
      Fears (1999), 86 Ohio St.3d 329, 343, 715 N.E.2d 136, 150;
      State v. Hopfer (1996), 112 Ohio App.3d 521, 552-553, 679
      N.E.2d 321, 341-342. In the case sub judice, the doctors
      prepared the evaluations for purposes of determining appellant's
      competency to stand trial. Those evaluations were not prepared
      in the course of a traditional physician-patient relationship ( i.e.,
      when treatment is being sought and provided) and, hence, these
      evaluations are not privileged under R.C. 2317.02(B)(1).” Id.
      at 7.
Ross App. No. 14CA3471                                                       35

      {¶ 56} In Hall, we held that even assuming, arguendo, the statute

applied, we would still find no violation of its provisions because “a number

of exceptions are made to the confidentiality requirements of R.C. 5122.31.”

The same is true here. It appears that R.C. 5122.01(A)(4) and (12) both

clearly address the situation where psychiatric records are used for an initial

or continued commitment hearing.

       {¶ 57} Dr. Scott performed an evaluation of Appellant’s medications

in order to prepare a report for the continued commitment proceedings and

in the course of doing so, reviewed Appellant’s medical records. She

testified these records were kept in the course of ABH’s daily business

activities. In fact, Dr. Janson, Appellant’s own expert, also testified he

reviewed Appellant’s records available up to September 2013, specifying

review of ABH’s files, clinical notes, psychological reports prior to

September 2013, and Dr. Scott’s report. As in Hall, we believe the medical

reports were compiled for reasons other than medical treatment. The

psychiatric reports were generated for purposes of the continued

commitment proceedings. See also State v. Santana (psychiatric reports are

relevant admissible evidence.)

      {¶ 58} Both doctors utilized the same medical records and reports to

form their opinions. As such, we find the trial court did not abuse its
Ross App. No. 14CA3471                                                  36

discretion by allowing the testimony and opinions of ABH’s witnesses based

on an argument that Appellant’s psychiatric records were confidential

patient treatment records. We find no merit to Appellant’s seventh

assignment of error. Accordingly, it is hereby overruled.

      ASSIGNMENTS OF ERROR THREE, FOUR, FIVE, AND SIX

      “III. THE TRIAL JUDGE ERRED BY FINDING JOHN TO
      BE A MENTALLY ILL PERSON SUBJECT TO
      HOSPITALIZATION FOLLOWING THE SEPTEMBER,
      2014 EVIDENTIARY PROCEEDINGS BY MAKING AN
      ADDITIONAL FALSE FINDING THAT DR. JANSON
      ‘CONCURRED’ IN SUCH A NOTION WHEN THE
      RECORD PLAINLY SHOWS HE DID NOT, AND DESPITE
      THE ABSENCE OF ANY OTHER FACTUAL EVIDENCE
      TO SUPPORT THE ELEMENTS OF SUCH A FINDING
      UNDER OHIO REV.CODE SEC. 5122.01(A) OR (B).

      IV. THE TRIAL JUDGE ERRED IN FINDING THAT JOHN
      WAS A ‘MENTALLY ILL PERSON SUBJECT TO
      HOSPITALIZATION’ BASED ON THE SEPTEMBER, 2014
      OPINION TESTIMONY FROM ABH EMPLOYEE SCOTT
      WHEN HER TESTIMONY WAS OBJECTED TO AS NOT
      BASED ON ANY ACTUAL FACTS, ANY FACTS OF HER
      OWN KNOWLEDGE, OR ANY FACTS CONTAINED IN
      THE RECORD.

      V. THE TRIAL JUDGE ERRED IN FINDING THAT JOHN
      WAS A ‘MENTALLY ILL PERSON SUBJECT TO
      HOSPITALIZATION’ BASED ON THE SEPTEMBER, 2014
      OPINION TESTIMONY FROM ABH EMPLOYEE SCOTT
      WHEN SUCH TESTIMONY LACKED FOUNDATION DUE
      TO HER FAILURE TO HAVE EVER INTERVIEWED JOHN
      OR RULED OUT GENERAL MEDICAL CONDITIONS.

      VI. THE TRIAL JUDGE ERRED DURING THE
      SEPTEMBER, 2014 PROCEEDINGS BY ADMITTING
Ross App. No. 14CA3471                                                          37

      OVER OBJECTION, TESTIMONY FROM STATE
      WITNESSES BASED ON HEARSAY, INCLUDING
      HEARSAY WITHIN HEARSAY FROM OFTEN UNKNOWN
      AND UNNAMED SOURCES, AND IN VIOLATION OF
      OHIO EVID. RULES 602, 702(C), 703, and 705.”

                    A. STANDARD OF REVIEW

      {¶ 59} As to what constitutes “mental illness subject to

hospitalization,” courts are directed to employ the standards set forth in R.C.

Chapter 5122 when those provisions are not in conflict with the criminal

code. State v. Johnson, 5th Dist. Stark No. 2012-CA00231, 2013-Ohio-

3691, ¶ 10. “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). Johnson, supra, at ¶ 11. “Mentally ill

person subject to hospitalization by court order” is defined as a mentally ill

person who, because of his illness, represents a substantial risk of physical

harm to himself or others, represents a substantial and immediate risk of

serious physical impairment or injury to himself, or would benefit from

treatment in a hospital and is in need of such treatment. R.C. 5122.01(B)(1)-

(4). Johnson, supra, at ¶ 12. The state must establish these elements by

clear and convincing evidence in order to justify continued commitment.

State v. Johnson, 32 Ohio St.3d 109, 111, 512 N.E.2d 652 (1987); State v.
Ross App. No. 14CA3471                                                         38

Williams (Mar. 3, 1989), Mahoning App. No. 88CA83, unreported. “Clear

and convincing evidence” is that measure or degree of proof which is more

than a mere preponderance of the evidence, but not to the extent of such

certainty as is required beyond a reasonable doubt in criminal cases, and

which will provide in the mind of the trier of fact a firm belief or conviction

to the facts sought to be established. Cincinnati Bar Assn. v. Massengale

(1991), 58 Ohio St.3d 121, 122, citing Cross v. Ledford (1954), 161 Ohio St.

469, paragraph three of the syllabus.

      {¶ 60} A “totality of the circumstances” test is to be utilized by the

court to determine whether an alleged mentally ill person is subject to

hospitalization under R.C. 5122.01(B). In re Burton, 11 Ohio St.3d 147,

464 N.E.2d 530 (1984), paragraph one of the syllabus; In the Matter of Goss,

1992 WL 281324, *2. Factors to be considered by the court include, but are

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
Ross App. No. 14CA3471                                                      39

      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.” Burton, supra, at 149-150; Goss, supra.
      See also R.C. 2945.401(E) 1-6.

      {¶ 61} Where the burden of proof at the trial court level is clear and

convincing evidence, the trial court's judgment will not be reversed on

appeal as being against the manifest weight of the evidence where it is

supported by some competent, credible evidence going to all the essential

elements of the case. State v. Schiebel, 55 Ohio St.3d 71, 74, 566 N.E.2d 54

(1990); Goss, supra. See also State v. Santana, 8th Dist. Cuyahoga No.

95478, 2011-Ohio-3685, ¶ 12.

                           B. LEGAL ANALYSIS

      {¶ 62} Because Assignments of Error III, IV, V, and VI are

interrelated, we will consider them together. In its November 3, 2014 entry,

the trial court found as follows:

      “Dr. [Jean] Scott is a psychologist employed by ABH. Dr.
      Scott testified she reviewed the records and reports of
      defendant’s treatment providers and reports in his medical
      records and forensic files. Dr. Scott also requested an interview
      with the defendant, who refused requests and would not talk
      with Dr. Scott. Dr. Scott testified the defendant has
      schizoaffective disorder, a mental illness, and that diagnosis
      remains. Dr. Scott further testified that in her opinion the
      defendant remains mentally ill subject to hospitalization.”

      {¶ 63} The entry further found:
Ross App. No. 14CA3471                                                         40

      “Defendant presented the testimony of Dr. Gregory Jansen,
      PhD. Dr. Janssen is a clinical psychologist who conducted an
      evaluation of the defendant’s capacity to give informed consent
      to medication. During his testimony he concurred that
      defendant is a mentally ill person subject to hospitalization and
      that his current placement at ABH is an appropriate placement.

      ***

      Additionally, the parties presented evidence of the strained
      relationship between ABH and the defendant. This strain in the
      relationship appears to the court to be a result of defendant's
      perception of the “forced drugging order” which this court will
      address by separate entry. Plaintiff presented testimony of the
      disruptive behavior of the defendant, some of which defendant
      admits. Defendant and the witnesses on his behalf testified
      these actions of defendant relate to the forced drugging order
      and that if defendant was able to participate in his medical
      treatment his behavior would improve.

      Based on the foregoing the court finds by clear and convincing
      evidence that defendant John J. Rohrer is a mentally ill person
      subject to hospitalization…”

      1. The trial court’s finding that Appellant was mentally ill
      subject to hospitalization was supported by competent credible
      evidence.

      {¶ 64} Although Appellant raises various arguments within these

assignments of error, he essentially challenges the trial court’s general

finding that Appellant is mentally ill subject to hospitalization. The trial

court’s entry emphasized, briefly, the testimony of Dr. Scott and Dr. Janson.

The continuing commitment and motion hearings occurred over three days

in September 2014. Our review of the record demonstrates that the trial
Ross App. No. 14CA3471                                                         41

court heard lengthy testimony from additional witnesses which included Dr.

John Hamill, Dr. Sandra Pinkham, Steve Copper, and Appellant. The trial

court also heard rebuttal testimony from Dr. Timothy Hogan.

      {¶ 65} Dr. Jean Scott testified to a reasonable degree of psychological

certainty that Appellant suffers from mental illness known as schizoaffective

disorder. She explained schizophrenia is a chronic mental illness that occurs

over a long period of time. Schizoaffective disorder is a combination of

schizophrenia with a mood disorder component, meaning that Appellant also

had a manic episode or major depressive episode at some point along with

the schizophrenia. In her opinion, Appellant had delusions and

hallucinations, when he was originally diagnosed in 2006 and 2007. She

testified that currently, she was seeing evidence of delusions, paranoia, lack

of cooperation with treatment providers, and irrational thinking.

      {¶ 66} Dr. Scott elaborated that she had seen evidence of these

symptoms by a review of the records. Specifically, she testified that there

was evidence of mood disorder, i.e. rambling speech and a manic episode.

She testified over the course of Appellant’s history, he also presented with

severe depression.

      {¶ 67} Dr. Scott further testified to a reasonable degree of

psychological certainty that Appellant was subject to hospitalization due to
Ross App. No. 14CA3471                                                        42

his mental illness. She based her opinion on the past history of Appellant’s

inability to function when released to a less restrictive environment. He had

required a more structured environment because he was not compliant with

treatment, recommendations, or medications when released from a hospital.

She testified Appellant’s past history of not taking his medications was

documented in her report. She testified he was on a conditional release in a

secured controlled structured environment when the current felony assault

offense had occurred. Dr. Scott opined Appellant needed to be in an

environment with even more structure than ABH provided because he was

not cooperating with his treatment team and because he interfered with other

patients’ treatment.

      {¶ 68} On cross-examination, Dr. Scott acknowledged she was not

able to testify about Appellant’s medications or rule out organic causes of

Appellant’s behavior because she is not a medical doctor. She reiterated that

her diagnoses of mental illness was based on the medical records and

hospital records reviewed and nothing within her direct knowledge.

      {¶ 69} The next witness was Dr. John Hamill, a licensed physician in

Ohio employed at ABH as staff psychiatrist. Dr. Hamill was declared an

expert in the field of psychiatry by the trial court. Although Dr. Hamill’s
Ross App. No. 14CA3471                                                        43

testimony addressed the forced medication order, we find his testimony

relevant in that it also addresses Appellant’s symptoms of mental illness.

           {¶ 70} Dr. Hamill testified he was not familiar with Appellant,

because Appellant had refused to talk to him, but he had done a capacity

assessment for purposes of the forced medication order. Dr. Hamill based

his capacity assessment, in part, on Appellant’s refusal, a review of the Twin

Valley documents, and Dr. Scott’s report.

           {¶ 71} Dr. Hamill’s capacity assessment report was designated

State’s Exhibit B. He testified he prepared the report and it was reviewed by

two other doctors who concurred with his opinions. Dr. Hamill opined to a

reasonable degree of psychiatric certainty that Appellant did not have

capacity to give or withhold informed consent regarding treatment. He

further testified to a reasonable degree of psychiatric certainty, that the

benefits of Appellant’s forced medication order outweigh the risk of side

effects of medication.9 He testified Appellant had been violent without the

medications during two felonies. Dr. Hamill further testified that he had

seen nothing which made him believe any medication prescribed, street

drug, or general medical condition would be causing Appellant’s current




9
    The medication specifically at issue was Risperdal.
Ross App. No. 14CA3471                                                        44

mental illness. He also testified no medical conditions or outward

signs/symptoms would explain Appellant’s psychosis.

       {¶ 72} Dr. Gregory Janson testified on behalf of Appellant. Dr.

Janson holds a Ph.D. in clinical counseling and is licensed to independently

diagnose and treat mental and emotional disorders in the state of Ohio. He

was declared an expert in the field of psychology. Dr. Janson also prepared

a capacity assessment in order to determine if Appellant could give informed

consent. Dr. Janson testified he did a three-hour evaluation of Appellant and

had seen him 2-3 times since the initial evaluation. Dr. Janson’s report was

admitted as Defense Exhibit 1. Dr. Janson opined, to a reasonable degree of

psychological certainty, that Appellant was capable of giving informed

consent. Dr. Janson testified he saw no evidence of hallucinations,

psychosis, or delusions while he was talking to Appellant. However, on

cross-examination, Dr. Janson acknowledged he is not a medical doctor

      {¶ 73} Dr. Sandra Pinkham, a licensed medical doctor in the State of

Ohio, also testified on behalf of Appellant. She was qualified as an expert in

general medicine. She testified she has treated Appellant since 1997. Dr.

Pinkham prepared a report which was admitted as Defendant’s Exhibit 2.

She testified her report was based on her physical examination, the history

provided by him and his mother, and the treatment and medication records.
Ross App. No. 14CA3471                                                        45

Dr. Pinkham testified to a reasonable degree of scientific certainty that

Appellant was competent of making determinations about his own

medication. She opined he did not need to be hospitalized. She testified he

was not a threat to himself or the community.

      {¶ 74} On cross-examination, Dr. Pinkham testified she believed

Appellant had problems of post-traumatic stress disorder, problems getting

along with people in authority, and hypoglycemia. She testified she saw no

evidence that he had been violent without provocation. She testified

Appellant had a history of psychotic behavior but was not psychotic at this

point. She testified her decision as to the cause of his psychosis in 2006 was

based on the history Appellant provided.

      {¶ 75} Appellant’s next witness was Steve Copper, a certified peer

specialist and certified mental health educator for the State of Ohio. He has

never met Appellant, but testified he would be available for him to provide

peer support.

      {¶ 76} Appellant also testified and again, while his testimony relates

chiefly to the forced medication order, we find it relevant here as well.

Appellant stated he understood the issues before the court, i.e. the forced

medication order, the continued commitment, and possible transfer to

another hospital. Appellant admitted he physically resisted medication on
Ross App. No. 14CA3471                                                         46

four occasions. He testified he stopped resisting because his girlfriend and

mother were concerned; he considers himself a pacifist; and he did not want

to receive physical injuries. He testified he asked for his dosages to be

reduced because he feels better when he’s off medication; his emotions are

dulled. He also doesn’t like specific side effects which he contributes

directly to the injections. He attributes his side effects to both the chemical

being injected and the trauma of being injected. It is not his intention to go

completely off his medication.10 On cross examination, Appellant admitted

he had not taken any controlled substances or street drugs since he had been

at Twin Valley or ABH. He admitted in 2006 and 2009 he was using illegal

substances and alcohol.

           {¶ 77} Dr. Scott was then recalled to testify as to an addendum to her

report which documented incidents over the weekend of September 20 and

21, 2014. Dr. Scott testified on September 20, 2014, Appellant verbally

attacked two nurses after another patient was medicated. On September 21,

2014, Appellant began screaming while a patient was being medicated. In

turn other patients began screaming. Appellant brought other patients to

stand outside a closed restraint room and talked to them about alleged illegal

actions of psychiatric hospitals. At one point, a female patient punched the


10
     The medication at issue is Risperdal.
Ross App. No. 14CA3471                                                       47

restrained door and told staff that Appellant was scaring her. Other patients

acted in an agitated manner. Dr. Scott testified Appellant’s actions left staff

and patients fearful. Dr. Scott restated her opinion that Appellant should be

transferred to the Moritz Unit.

      {¶ 78} Further, Dr. Timothy Hogan was called on rebuttal. He

testified he is a medical services physician at ABH. He testified he performs

annual physical exams and does general blood screenings, much like the

work of a family doctor. He was qualified as an expert in medicine.

      {¶ 79} Dr. Hogan testified he had several encounters with Appellant

and had performed general blood tests in September and April 2014. He

opined to a reasonable degree of medical certainty there was no indication

Appellant’s psychosis was a result of his magnesium or thyroid levels. On

cross-examination, Dr. Hogan admitted he did not know what Appellant’s

thyroid levels or magnesium levels had been in 2006 or 2009.

      {¶ 80} In this matter, the trial court’s finding that Appellant remains

mentally ill was supported by clear and convincing evidence and further, the

conclusion that he remains subject to hospitalization was supported by a

totality of the circumstances. As such, we find competent credible evidence

supported the trial court’s decision. We acknowledge there was much

conflicting testimony.
Ross App. No. 14CA3471                                                         48

       {¶ 81} Dr. Scott opined that Appellant was mentally ill, remained

subject to hospitalization, and should be transferred to a more restrictive

environment. From both Dr. Hamill and Dr. Janson’s testimony, it may be

inferred that they considered Appellant to be mentally ill. However, Dr.

Hamill opined to a reasonable degree of psychiatric certainty that Appellant

did not have capacity to give or withhold informed consent regarding

treatment, while Dr. Janson opined to a reasonable degree of psychological

certainty that Appellant did have the capacity to make informed consent.

There was also conflict between the testimony of Dr. Pinkham and Dr.

Hogan. Dr. Pinkham testified to a reasonable degree of scientific certainty

that Appellant was competent to make determinations regarding his own

treatment. She had treated Appellant since 1997. She further opined he did

not need to be hospitalized. While Dr. Scott was unable to rule out organic

causes of Appellant’s mental problems, Dr. Hogan, called on rebuttal,

testified that there was no indication, based on tests he had performed in

April and September 2014, that Appellant’s mental illness was a result of

low magnesium or thyroid levels.

      {¶ 82} All the witnesses, though experts in their own fields, had weak

as well as strong areas in their testimonies. The trier of fact is free to believe

all, part or none of the testimony of each witness. State v. Crocker, - -
Ross App. No. 14CA3471                                                            49

N.E.3d - -, 2015-Ohio-2528 (4th Dist.), ¶ 22. The weight to be given to the

evidence and the credibility of the witnesses are issues for the trier of fact.

Johnson, supra, at ¶ 23, citing State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio

St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118. Accord, Glasser v.

United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall

v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983). We

are further guided by the presumption that the findings of a trial court are

correct since the trial judge “* * * is best able to view the witnesses and

observe their demeanor, gestures and voice inflections, and use their

observations in weighting the credibility of the proffered testimony.” State v.

Thomas, 4th Dist. Lawrence No. 92CA32, 1993 WL 293636, *5, quoting In

re Jane Doe 1, 57 Ohio St.3d 135, 138, 566 N.E.2d 1181, (1991), citing

Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273

(1984).

       {¶ 83} In this case, Appellant also testified on his own behalf. While

the trial court apparently found parts of his testimony believable, to the end

of terminating the forced medication order, the trial court also was in the

better position to view Appellant and all the other witnesses, observe their

demeanor, and weigh their credibility. For instance, while Appellant argues
Ross App. No. 14CA3471                                                                                  50

Dr. Scott’s testimony, as a representative of ABH, is biased, Dr. Scott

actually recommended Appellant be removed to another, more restrictive

facility.11 While Dr. Pinkham testified that Appellant was competent of

making decisions and did not need to be hospitalized, her opinions were

based, in part, on history provided by Appellant and his mother which may

be considered at least partly self-serving. While Appellant may have been

convincing to the degree that the trial court terminated the forced medication

order, his testimony regarding his behavior and his reasons for becoming

violent may also be considered self-serving.

         {¶ 84} Additionally, two of the evaluators, Dr. Scott and Dr. Hamill,

relied upon records they reviewed due to Appellant’s failure to agree to

speak to them. The trial court likely weighed the fact that these evaluators

did not see Appellant in person. However, the trial court also had the

testimony of two doctors who did meet Appellant in person. Dr. Janson was

not a medical doctor, however, and Dr. Pinkham admitted she relied on the

history given by Appellant and his mother in making her diagnosis.

         “Credibility, intelligence, freedom from bias or prejudice,
         opportunity to be informed, the disposition to tell the truth or
         otherwise, and the probability or improbability of the
         statements made, are all tests of testimonial value. Where the

11
   Interestingly, Dr. Scott also testified she was not Appellant’s treating psychologist. She explained that
when a client came into ABH as a NGRI acquittee, a client is assigned a treating physician and an
evaluator. She was assigned as Appellant’s evaluator. The evaluator’s role is to remain independent which
is why she had not participated in his treatment or therapy.
Ross App. No. 14CA3471                                                           51

      evidence is in conflict, the trier of facts may determine what
      should be accepted as the truth and what should be rejected as
      false.” Johnson, supra, at ¶ 24. See Rice v. City of Cleveland,
      114 Ohio St. 299, 58 N.E.2d 768.

The Johnson court held:

      “It is of no consequence that the trial court’s findings are in
      contravention of Johnson’s or any other witnesses’ testimony.
      Disciplinary Counsel v. Zingarelli, 89 Ohio St.3d 210, 217, 729
      N.E.2d 1167 (2000). Because the record does not weigh
      heavily against the findings of the trial court, “we defer to the
      [trial court's] credibility determinations, inasmuch as the [trial
      court] saw and heard [the witnesses] firsthand.” Cuyahoga Cty.
      Bar Assn. v. Wise, 108 Ohio St.3d 164, 2006-Ohio-550, 842
      N.E.2d 35, ¶ 24.”

      {¶ 85} Likewise, we defer to the trial court’s credibility

determinations in this matter because the trial judge was able to see and hear

all the witnesses, including Appellant. Based on our review of the record, as

well as the applicable law, we find no error in the trial court’s finding that

Appellant remains mentally ill subject to hospitalization.

      2. The trial court’s finding that Dr. Janson “concurred” can be
      inferred from his testimony.

      {¶ 86} The testimony of Dr. Janson has been set forth at length

above. Although he is recognized as an expert in psychology, he

acknowledged he is not a medical doctor. Dr. Janson’s testimony spoke

directly to the issue of Appellant’s medications and the forced medication

order in place. Dr. Janson’s testimony was, in sum, that he believed
Ross App. No. 14CA3471                                                         52

Appellant was capable of giving informed consent. He did not give an

explicit opinion as to whether or not Appellant was mentally ill. However,

Dr. Janson ended his testimony by concluding that ABH was an appropriate

placement for Appellant at the time of the hearing. From this, the trial court

logically inferred that Dr. Janson concurred that Appellant was mentally ill

subject to hospitalization. Similarly, we observe Dr. Hamill did not

specifically state that Appellant was mentally ill, yet this can be inferred

from his testimony. We see no abuse of discretion with the trial court’s

finding in this regard and, therefore, find no merit to Appellant’s arguments.

As such, we overrule the third assignment of error.

      3. The trial court did not abuse its discretion by admitting Dr.
      Scott’s opinion testimony although Appellant claims she lacked
      personal knowledge, failed to interview him, and failed to rule
      out general medical conditions.

      {¶ 87} “ ‘The admission or exclusion of relevant evidence rests

within the sound discretion of the trial court.’ ” Crocker, supra, at 49,

quoting, State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d

948, ¶ 185, quoting State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343

(1987), paragraph two of the syllabus. We will not reverse the trial court's

decision absent an abuse of discretion, which implies an unreasonable,

unconscionable, or arbitrary attitude. State v. Inman, 4th Dist. Ross No.

13CA3374, 2014-Ohio-786, 2014 WL 861499, ¶ 20.
Ross App. No. 14CA3471                                                       53

      {¶ 88} Dr. Scott’s September 2014 testimony was given at a

continued commitment hearing, pursuant to R.C. 2945.401, which requires

ABH to report to the court periodically regarding Appellant’s mental health

status. R.C. 2945.401 provides:

      “(C) The department of mental health and addiction services or
      the institution, facility, or program to which a defendant or
      person has been committed under section 2945.39 or 2945.40 of
      the Revised Code shall report in writing to the trial court, at the
      times specified in this division, as to whether the defendant or
      person remains a mentally ill person subject to court order or a
      mentally retarded person subject to institutionalization by court
      order and, in the case of a defendant committed under section
      2945.39 of the Revised Code, as to whether the defendant
      remains incompetent to stand trial. The department, institution,
      facility, or program shall make the reports after the initial six
      months of treatment and every two years after the initial report
      is made. The trial court shall provide copies of the reports to
      the prosecutor and to the counsel for the defendant or person.
      Within thirty days after its receipt pursuant to this division of a
      report from the department, institution, facility, or program, the
      trial court shall hold a hearing on the continued commitment of
      the defendant or person or on any changes in the conditions of
      the commitment of the defendant or person.”

      {¶ 89} Appellant argues Dr. Scott’s opinions, which were based upon

her written report required by law, were given in violation of Evidence Rules

602, 702, 703, and 705. Evid.R. 602 provides that a witness may not testify

to a matter unless evidence is introduced sufficient to support a finding that

he has personal knowledge of the matter. Evid.R. 702 provides that a

witness may testify as an expert if all of the following apply:
Ross App. No. 14CA3471                                                         54

      (A) The witness’ testimony either relates to matters beyond the
      knowledge or experience possessed by lay persons or dispels a
      misconception common among lay persons;

      (B) The witness is qualified as an expert by specialized
      knowledge, skill, experience, training, or education regarding
      the subject matter of the testimony;

      (C) The witness’ testimony is based on reliable scientific,
      technical, or other specialized information.

      {¶ 90} Evid.R. 703 provides that the fact or data in the particular case

upon which an expert bases an opinion or inference may be those perceived

by him or admitted in evidence at the hearing. Evid.R. 705 provides that the

expert may testify in terms of opinion or inference and give his reasons

therefore after disclosure of the underlying facts or data.

      {¶ 91} We disagree with Appellant’s contention that the trial court

abused its discretion in allowing Dr. Scott’s opinion testimony for lack of

personal knowledge. The transcript of the September 2014 hearings reveals

that Dr. Scott was qualified as an expert witness in the field of psychology

under 702, based on her testimony that she is a licensed psychologist in the

State of Ohio, determines diagnoses of mental illnesses, and writes

continuing commitment reports.

      {¶ 92} Dr. Scott testified Appellant refused to speak with her

so she reviewed Appellant’s records and spoke to his treating psychologist.

Her testimony was based on evidence which was properly before the court,
Ross App. No. 14CA3471                                                        55

which included the ABH records and reports properly submitted to the court

as previously discussed in our resolution of Assignment of Error Seven.

This fulfills the requirements of 602 and 703, that an expert witness base an

opinion on personal knowledge or facts admitted into evidence at a hearing.

Having fulfilled the above requirements, Dr. Scott’s opinion testimony was

proper under Evid.R. 705.

      {¶ 93} We also disagree with Appellant’s contention that Dr. Scott’s

failure to interview him caused an abuse of discretion. While R.C.

2945.401, the continued commitment statute, does not explicitly state what

evidence is to be considered by the trial court, R.C. 2945.40(D) provides that

in an initial commitment hearing, the trial court may consider all relevant

evidence. Dr. Scott considered Appellant’s failure to meet with her to be

some evidence of his mental illness. Appellant’s argument has no merit in

the sense that by his acknowledgment that he refused to meet with Dr. Scott

on the advice of counsel, he cannot now complain that Dr. Scott’s opinion is

deficient or erroneous when he invited such an outcome by his own failure

to cooperate.

      {¶ 94} Finally, we disagree that the trial court erred by allowing Dr.

Scott’s testimony when she failed to rule out general medical conditions.

Dr. Scott testified she was not a medical doctor. This was brought out by
Ross App. No. 14CA3471                                                       56

Appellant’s counsel on cross-examination. An expert's credentials go to the

weight, not the admissibility, of her testimony. State v. Hart, 94 Ohio

App.3d 665, 641 N.E.2d 755 (1st Dist. 1991).

      {¶ 95} Based on the foregoing, we find no abuse of discretion and

therefore, no merit to Appellant’s arguments under Assignments of Error

Four and Five. As such, we overrule both assignments of error.

      4. The trial court did not abuse its discretion by admitting testimony
      from state witnesses to which Appellant objected.

      {¶ 96} Appellant also argues that Dr. Hamill’s testimony was

improper expert testimony demonstrated by the doctor’s lack of personal

knowledge and reliance on hearsay psychiatric reports. We disagree.

      {¶ 97} Based on his credentials as a licensed physician in Ohio, and

his employment as a staff psychiatrist, Dr. Hamill was declared an expert in

psychiatry. Dr. Hamill’s report, properly admitted, was State’s Exhibit B.

Dr. Hamill opined to a reasonable degree of psychiatric certainty that

Appellant did not have capacity to give or withhold informed consent

regarding treatment. Like Dr. Scott, Dr. Hamill was required by statute to

prepare a competency evaluation. Appellant also refused to meet with Dr.

Hamill, so, like Dr. Scott, Dr. Hamill had to rely on a records review, in part,

to form his opinions. As discussed above, Dr. Hamill’s report and opinions

relied upon facts properly in the record. For the reasons set forth fully above
Ross App. No. 14CA3471                                                        57

in our resolution of Assignments of Error Three, Four, and Five, we find no

merit to Appellant’s argument. As such, we overrule Assignment of Error

Six.

                     ASSIGNMENT OF ERROR EIGHT

       “VIII. THE TRIAL JUDGE ERRED BY SUMMARILY
       DENYING APPELLANT’S JULY 15, 2014 JURY DEMAND
       FILED ONCE IT BECAME APPARENT THAT THE TRIAL
       JUDGE WOULD ERRONEOUSLY ASSUME
       JURISDICTION IT DID NOT HAVE.”

       {¶ 98} Appellant argues the trial judge never reconsidered the

denial of the July 15, 2014 jury demand after the judge ruled the court had

jurisdiction. Appellant briefly argues that due process was denied in 2014,

as well as in 2010, when the right to jury trial was never explained, just

denied.

       {¶ 99} Again, Appellee points out that R.C. 2945.401 governs

the continuing jurisdiction of the court after an insanity acquittal. R.C.

2945.401(F) provides that acquittees have the same rights as defendants at

commitment hearings pursuant to R.C. 2945.40(C). Pursuant to R.C.

2945.40(C):

       “If a person is found not guilty by reason of insanity, the person
       has the right to attend all hearings conducted pursuant to
       sections 2945.37 to 2945.402 of the Revised Code. At any
       hearing conducted pursuant to one of those sections, the court
       shall inform the person that the person has all of the following
       rights:
Ross App. No. 14CA3471                                                     58


      (1) The right to be represented by counsel and to have that
      counsel provided at public expense if the person is indigent,
      with the counsel to be appointed by the court under Chapter
      120. of the Revised Code or under the authority recognized in
      division (C) of section 120.06, division (E) of section 120.16,
      division (E) of section 120.26, or section 2941.51 of the
      Revised Code;

      (2) The right to have independent expert evaluation and to have
      that independent expert evaluation provided at public expense if
      the person is indigent;

      (3) The right to subpoena witnesses and documents, to present
      evidence on the person's behalf, and to cross-examine witnesses
      against the person;

      (4) The right to testify in the person's own behalf and to not be
      compelled to testify;

      (5) The right to have copies of any relevant medical or mental
      health document in the custody of the state or of any place of
      commitment other than a document for which the court finds
      that the release to the person of information contained in the
      document would create a substantial risk of harm to any
      person.”

Obviously the right to jury trial is not included among those enumerated

above, which must be explained to a defendant.

      {¶ 100} In In re Kister,194 Ohio App.3d 270, 2011-Ohio-2678, 955

N.E.2d 1029 (4th Dist.), we pointed out an individual does not possess a

constitutional or statutory right to a jury trial during a probate court

proceeding involving an involuntary commitment. Id. at 52. We further

noted that Kister had pointed to no provision in the involuntary commitment
Ross App. No. 14CA3471                                                      59

statutes which would entitle him to a jury trial. The same is true here.

Appellant has directed us to nothing in the case law or Ohio statutes which

supports his argument herein. As such, Appellant’s assignment of error is

without merit and is hereby overruled.

                                                JUDGMENT AFFIRMED.
Ross App. No. 14CA3471                                                       60

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Ross County Common Pleas Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment Only.

                                        For the Court,

                                 BY: _____________________________
                                     Matthew W. McFarland,
                                     Administrative Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
