[Cite as State v. Weaver, 2018-Ohio-2998.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.       17CA0092-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
WILLIAM WEAVER                                        COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   16CR0487

                                 DECISION AND JOURNAL ENTRY

Dated: July 30, 2018



        CALLAHAN, Judge.

        {¶1}     Defendant-Appellant, William Weaver, appeals from the judgment of the Medina

County Court of Common Pleas, committing him to an in-patient psychiatric facility. This Court

affirms.

                                                 I.

        {¶2}     The police arrested Mr. Weaver after a seven-year-old girl told her family that he

had hugged her, kissed her, and forced his tongue into her mouth on several occasions. He was

indicted on two counts of kidnapping and two specifications alleging that he had acted with a

sexual motivation. Following a brief period of discovery, his appointed counsel requested a

competency evaluation, and the trial court referred him to the Psycho-Diagnostic Clinic of

Summit County. Dr. Michael Biscaro, a psychologist at the clinic, conducted Mr. Weaver’s

evaluation and issued a written report. He reported that Mr. Weaver suffered from a mild

intellectual disability and was incompetent to stand trial. Even so, he opined that there was a
                                                 2


substantial probability Mr. Weaver’s competency could be restored if he received treatment. The

parties stipulated to his findings, and, based on his report, the court ordered Mr. Weaver to

undergo competency restoration treatment at Heartland Behavioral Healthcare.

        {¶3}    After six months of treatment at Heartland Behavioral Healthcare, Dr. Phillip

Seibel reevaluated Mr. Weaver’s competency and issued a written report. He reported that Mr.

Weaver suffered from an intellectual disability and remained incompetent to stand trial.

Additionally, he reported that there was not a substantial likelihood Mr. Weaver’s competency

could be restored within the statutorily allotted time period. Dr. Seibel initially recommended

that Mr. Weaver remain at Heartland Behavioral Healthcare for inpatient treatment, should the

court find him incompetent and unrestorable. Subsequently, however, he amended his report

based on his further review of what he believed to be the applicable statutory law. In the

amended version of his report, he recommended that, if found incompetent and unrestorable, Mr.

Weaver undergo a separate intellectual disability evaluation to determine whether he was subject

to institutionalization.

        {¶4}    The parties stipulated to the findings in Dr. Seibel’s report, and, consistent with

that report, the court found Mr. Weaver incompetent and unrestorable. Upon motion of the

State, the court then held a hearing to determine whether it was appropriate to retain jurisdiction

over Mr. Weaver and commit him to a mental health facility. Although Dr. Seibel testified at the

hearing, he indicated that, by statute, he was not qualified to offer an opinion as to whether Mr.

Weaver was subject to institutionalization.          Consistent with his amended report, he

recommended that Mr. Weaver undergo an additional evaluation to address that issue. The trial

court ultimately adopted his recommendation and ordered Mr. Weaver to undergo a separate

intellectual disability evaluation.
                                                3


       {¶5}    Dr. Daniel Cowan, a Psychology Director for the Ohio Department of

Developmental Disabilities, conducted Mr. Weaver’s intellectual disability evaluation and issued

a written report. The trial court then set the matter for an additional hearing on the issue of

institutionalization. Consistent with his written report, Dr. Cowan testified at the hearing that

Mr. Weaver suffered from a mild intellectual disability, but was not an individual who required

institutionalization by court order.   He, therefore, recommended that Mr. Weaver receive

ongoing support and assistance from the Department of Developmental Disabilities in a

community-based setting. At the close of the hearing, the court ordered the parties to file written

closing arguments.

       {¶6}    Upon review of the written arguments and evidence presented, the court issued its

judgment. The court determined that the State set forth clear and convincing evidence that Mr.

Weaver (1) had committed the offenses with which he was charged, (2) suffered from a moderate

intellectual disability, and (3) suffered from a mental illness. Based on those determinations and

the totality of the circumstances, the court found that Mr. Weaver was subject to

institutionalization by court order.   Consequently, it ordered him committed to Heartland

Behavioral Healthcare.

       {¶7}    Mr. Weaver now appeals from the trial court’s judgment and raises three

assignments of error for this Court’s review.

                                                II.

                              ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED BY FINDING BY CLEAR AND CONVINCING
       EVIDENCE THAT MR. WEAVER COMMITTED THE OFFENSES IN THE
       INDICTMENT, AND BY PERMITTING THE ALLEGED CHILD VICTIM’S
       STATEMENTS INTO EVIDENCE, OVER OBJECTION, IN VIOLATION OF
       EVID.R. 601(A), 802, AND 807.
                                                 4


       {¶8}    In his first assignment of error, Mr. Weaver argues that the trial court erred when

it admitted the statements of S.W., the seven-year-old he allegedly kidnapped, through the

testimony of a social worker. He further argues that the court erred when it relied on those

statements and found, by clear and convincing evidence, that he committed his charged offenses.

For the reasons that follow, this Court rejects his arguments.

       {¶9}    In certain instances, R.C. 2945.39 authorizes a trial court to retain jurisdiction

over an incompetent defendant and commit him to the care of a treatment facility.             See

Discussion, infra, under Assignment of Error No. 2. One prerequisite is that the court must be

able to find, by clear and convincing evidence, that the defendant committed the violent first- or

second-degree felony with which he was charged. See R.C. 2945.39(A)(2)(a). See also R.C.

2945.38(C)(1)(b). “In making its determination * * *, the court may consider all relevant

evidence * * *.” R.C. 2945.39(B).

       {¶10} The decision to admit or exclude evidence lies in the sound discretion of the trial

court. State v. Sage, 31 Ohio St.3d 173, 180 (1987). “Absent an issue of law, this Court,

therefore, reviews the trial court’s decision regarding evidentiary matters under an abuse of

discretion standard of review.” State v. Aguirre, 9th Dist. Lorain No. 13CA010418, 2015-Ohio-

922, ¶ 6. See also State v. Walters, 9th Dist. Summit No. 28582, 2018-Ohio-1175, ¶ 32. An

abuse of discretion indicates that the court’s attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an

abuse of discretion standard, a reviewing court is precluded from simply substituting its own

judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶11} “This Court has recognized repeatedly that ‘statements made to social workers for

the purpose of facilitating medical treatment are admissible under the medical exception to
                                                 5


hearsay’ even where the child has not been determined competent to testify.” In re T.L., 9th

Dist. Medina No. 09CA0018-M, 2011-Ohio-4709, ¶ 15, quoting In re I.W., 9th Dist. Wayne Nos.

07CA0056, 07CA0057, 2008-Ohio-2492, ¶ 17. See also State v. Muttart, 116 Ohio St.3d 5,

2007-Ohio-5267, syllabus. Evid.R. 803(4) pertains to statements “made for purposes of medical

diagnosis or treatment and describing medical history, or past or present symptoms, pain, or

sensations, or the inception or general character of the cause or external source thereof insofar as

reasonably pertinent to diagnosis or treatment.”         “To determine whether statements are

admissible under [that rule], a court must look to the primary purpose of the statements.” State v.

Just, 9th Dist. Wayne No. 12CA0002, 2012-Ohio-4094, ¶ 19.

        {¶12} Statements made for the primary purpose of medical diagnosis or treatment are

nontestimonial and, therefore, admissible under Evid.R. 803(4). State v. Arnold, 126 Ohio St.3d

290, 2010-Ohio-2742, ¶ 28. Conversely, statements made for the primary purpose of forensic

investigation are testimonial, id., and admissible only if “the declarant is unavailable and the

accused has had a prior opportunity to cross-examine him [or her].” State v. McNair, 9th Dist.

Lorain No. 13CA010485, 2015-Ohio-2980, ¶ 37, citing Crawford v. Washington, 541 U.S. 36,

68-69 (2004). “Considerations that should be taken into account in making [a primary purpose]

determination include the manner in which the child was questioned, whether there was a motive

to fabricate, and whether the child understood the need to tell the truth.” Walters at ¶ 33, citing

Muttart at ¶ 49. The court also may consider “the child’s age and whether the proper protocol

for interviewing children alleging sexual abuse was followed.” Walters at ¶ 33, citing Muttart at

¶ 49.

        {¶13} Initially, this Court pauses to address the application of the Ohio Rules of

Evidence in this matter. According to the parties, no Ohio appellate court has yet decided
                                                 6


whether the Ohio Rules of Evidence apply in the context of commitment proceedings that occur

pursuant to R.C. 2945.39. The State argues that the rules are inapplicable because a proceeding

under R.C. 2945.39 is more akin to a “miscellaneous criminal proceeding” such as sentencing.

See Evid.R. 101(C)(3). Meanwhile, Mr. Weaver asks this Court to apply the rules and follow, by

logical extension, the Ohio Supreme Court’s decision in State v. Jones, 9 Ohio St.3d 123 (1984).

Though both parties have invited this Court to decide this issue, this Court need not do so to

resolve this appeal. See, e.g., State v. Adamson, 83 Ohio St.3d 248, 250-251 (1998). That is

because, even if the rules apply, Mr. Weaver’s assignment of error fails on its merits.

       {¶14} In support of its argument that the trial court ought to commit Mr. Weaver, the

State presented the testimony of Emily Justice, a caseworker from Medina County Children

Services. Ms. Justice testified that she is a universal caseworker, meaning that she remains with

a case “from beginning to end * * *.” She stated that, when she receives notice of a complaint or

referral, she initiates contact with the family at issue to complete certain assessments, such as a

safety assessment to address any safety concerns. She first became aware of S.W., the victim in

this matter, when she received a call about possible sexual abuse. In particular, she testified that

there were allegations of “multiple incidents of [Mr. Weaver] kissing [S.W.] with his tongue * *

*.”

       {¶15} Ms. Justice testified that she normally would interview a child of S.W.’s age at

her department’s child advocacy center. In this particular instance, however, she interviewed

S.W. in one of the interview rooms at the Medina City Police Department. Ms. Justice testified

that the interview occurred there because S.W.’s mother would not respond when she repeatedly

called her and attempted an unannounced home visit. Ms. Justice explained that she already had

an open case with S.W.’s mother due to a separate concern, so the implication was that S.W.’s
                                                7


mother was avoiding her. Ms. Justice testified that she had a conversation with a detective,

feeling “that he [might] have more luck being able to schedule with [S.W.’s mother] * * *.”

That proved to be the case, so Ms. Justice interviewed S.W. at the police station when her mother

brought her there.

       {¶16} Ms. Justice described S.W. as friendly and “matter of fact” when she met with

her. She indicated that, when S.W. sat down for their interview, S.W. said “she had come to tell

[Ms. Justice] about being molested.” S.W. told Ms. Justice that Mr. Weaver was a friend of her

mother’s and, on a number of occasions, he had kissed her. Ms. Justice then began to describe

three different incidents during which Mr. Weaver had kissed S.W. At that point, Mr. Weaver

objected on the basis of hearsay, and the State responded that S.W.’s statements were admissible

pursuant to Evid.R. 803(4). The court then overruled the objection, and Ms. Justice continued to

testify without further objection.

       {¶17} Ms. Justice relayed the three incidents that S.W. described to her. During the first

incident, Mr. Weaver was helping S.W. clean her room when he hugged her, pressed his chest

“as well as his private part” against her, kissed her on the lips, and then “put his tongue inside

her mouth and wiggled it around.” S.W. indicated that, when Mr. Weaver hugged her, he pinned

her arms to her sides such that she was unable to move. During the second incident, S.W. and

Mr. Weaver were on the first floor of her home nearby a mattress that she and Mr. Weaver

sometimes jumped on. Mr. Weaver then lifted up S.W., held her there, and kissed her five times.

S.W. indicated that a few of the kisses were closed-mouth, but other kisses “were with an open

mouth where his tongue was put [into] her mouth.” During the third incident, S.W. and Mr.

Weaver were in the kitchen at her home when he kissed her. Ms. Justice could not recall if S.W.

described Mr. Weaver as using his tongue on that particular occasion. She indicated, however,
                                                  8


that S.W. described Mr. Weaver using his tongue “most of the time” when he kissed her. S.W.

described Mr. Weaver’s tongue as “wet and slobbery.” She also stated that “it tasted awful and *

* * she still had that taste in her mouth.”

       {¶18} Ms. Justice testified that she conducted S.W.’s interview outside the presence of a

caregiver because she did not want S.W. to be influenced or hesitate to tell her things during

their interview. She testified that she had undergone Beyond the Silence training, as well as

additional sexual abuse and forensic interview trainings. She indicated that a few of the things

S.W. said during her interview, such as the fact that she used the word “molested,” led her to

believe that S.W. might “have been influenced by overhearing conversations with adults * * *.”

Even so, she testified that she “felt that [S.W.’s] disclosure and the details of her interaction with

[Mr. Weaver] were truthful.”

       {¶19} Mr. Weaver argues that the trial court erred by admitting S.W.’s statements

through Ms. Justice because the statements were not admissible under Evid.R. 803(4).

According to Mr. Weaver, S.W.’s interview was conducted at the police station, in the presence

of a police officer, so her statements were not elicited for the purpose of medical treatment. He

further argues that, in the absence of her statements, there was not clear and convincing evidence

to support the conclusion that he committed his charged offenses.

       {¶20} Contrary to Mr. Weaver’s assertion, it is entirely unclear from the record whether

Ms. Justice conducted her interview with S.W. in the presence of a police officer. Though a

detective arranged the interview and it took place at a police station, there was no testimony to

establish that the detective or any other officer participated in or was present at the actual

interview. Mr. Weaver essentially asks this Court to infer that fact from the location of the

interview, but “this Court will not engage in speculation.” State v. Moreland, 9th Dist. Summit
                                                9


No. 27910, 2016-Ohio-7588, ¶ 34. Likewise, this Court will not conclude that Ms. Justice

elicited S.W.’s statements for a forensic purpose solely because she interviewed her at a police

station. See Michigan v. Bryant, 562 U.S. 344, 366 (2011) (formality of an encounter “is not the

sole touchstone of [a] primary purpose inquiry”).

       {¶21} Ms. Justice explained that the only reason S.W.’s interview occurred at a police

station was that she had to rely on a detective to arrange it. See Ohio v. Clark, 576 U.S. ___, 135

S.Ct. 2173, 2180 (2015), quoting Bryant at 369 (in conducting primary purpose inquiry, a court

“must consider ‘all of the relevant circumstances’”). She specifically testified that, but for the

trouble she had contacting S.W.’s mother, the interview would have taken place at a child

advocacy center. The interview constituted Ms. Justice’s first contact with S.W., and, at that

point, she was aware that the girl might have been a victim of sexual abuse. Ms. Justice testified

that she had been trained to interview victims of sexual abuse and, when first meeting with

victims or their families, she conducted a variety of assessments, including a safety assessment.

Accordingly, while S.W.’s interview occurred at a police station, the record does not support the

conclusion that it differed in any material way from the type of interview that Ms. Justice would

have conducted at a child advocacy center.

       {¶22} The Ohio Supreme Court has recognized that child advocacy center interviews are

conducted “with the purpose of gathering as much information as possible in a single setting to

reduce the trauma child-abuse victims may suffer as a result of having to recount their abuse

multiple times.” See Just, 2012-Ohio-4094, at ¶ 21, citing Arnold, 126 Ohio St.3d 290, 2010-

Ohio-2742, at ¶ 30-31. The result is that interviewers play a dual role and the same interview

may result in the interviewer eliciting both testimonial and nontestimonial statements. See

Arnold at ¶ 33.        While statements elicited primarily for the purpose of medical
                                                   10


diagnosis/treatment are admissible (i.e., nontestimonial), statements elicited primarily for the

purpose of forensic investigation are subject to the Confrontation Clause (i.e., testimonial). Id at

paragraphs one and two of the syllabus. The question, therefore, is not whether all of an

interviewee’s statements, taken together, are or are not admissible. Individual statements may

serve distinct purposes, and thus, the admissibility of any individual statement depends upon the

distinct purpose for which it was elicited. See id. at ¶ 34-44.

        {¶23} When objecting to Ms. Justice’s testimony in the lower court, Mr. Weaver only

indicated that he was objecting on the basis of hearsay. He did not reply to the State’s argument

that the testimony was admissible under Evid.R. 803(4). He also never renewed his objection to

clarify its basis or to assert that any of S.W.’s individual statements were not elicited for the

purpose of medical diagnosis or treatment.          Likewise, on appeal, he only argues that Ms.

Justice’s testimony, as a whole, was inadmissible because she interviewed S.W. for a forensic

purpose. He makes no attempt to examine any of S.W.’s individual statements or apply any of

the factors relevant to a primary purpose inquiry. See Walters, 2018-Ohio-1175, at ¶ 33, citing

Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, at ¶ 49. Accordingly, in conducting the analysis set

forth herein, this Court is mindful of the extremely limited nature of both his objection in the

court below and his argument on appeal. See Cardone v. Cardone, 9th Dist. Summit Nos.

18349, 18673, 1998 Ohio App. LEXIS 2028, *22 (May 6, 1998) (“If an argument exists that can

support this assignment of error, it is not this [C]ourt’s duty to root it out.”).

        {¶24} Upon review, the trial court did not abuse its discretion when it found that the vast

majority of the statements Ms. Justice elicited from S.W. were made for the purpose of medical

diagnosis or treatment. See Evid.R. 803(4). This Court has held that statements identifying a

perpetrator, describing instances of abuse, and describing the manner in which the perpetrator
                                              11


touched the victim’s body are all admissible as statements made for the purpose of medical

diagnosis and treatment. See Just at ¶ 22, citing In re T.L., 2011-Ohio-4709, at ¶ 17 and In re

I.W., 2008-Ohio-2492, at ¶ 18-22. The vast majority of S.W.’s statements described the ways in

which Mr. Weaver touched her and how that made her feel. S.W. was only seven years old at

the time of her interview, and the record does not disclose that she had any apparent motive to

fabricate. See Walters at ¶ 33. Ms. Justice stated that she purposely interviewed S.W. outside

the presence of a caregiver so that she would not be influenced, and the record does not contain

any indication that she questioned S.W. in a suggestive manner. See id. It also does not contain

any indication that S.W. did not understand the need to tell the truth. See id. To the contrary,

Ms. Justice indicated that she believed S.W. gave an honest account of her interactions with Mr.

Weaver. Even if certain portions of their interview served a forensic purpose, Mr. Weaver has

not shown that S.W.’s statements about his identity and the alleged abuse she suffered were

inadmissible under Evid.R. 803(4). Accordingly, we reject his argument to the contrary.

       {¶25} Mr. Weaver also argues that the court erred when it found, by clear and

convincing evidence, that he committed his charged offenses. See R.C. 2945.39(A)(2)(a). His

argument, however, is premised upon his having successfully proven that Ms. Justice’s

testimony was inadmissible.    Because this Court has reached the opposite conclusion, his

argument lacks merit. S.W.’s statements, as introduced through Ms. Justice, constituted clear

and convincing evidence that Mr. Weaver forcibly restrained S.W. on at least two occasions for

the purpose of kissing her and inserting his tongue into her mouth while doing so.        See R.C.

2905.01(A)(4) and (B)(2). As such, Mr. Weaver’s first assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ERRED BY FINDING BY CLEAR AND CONVINCING
       EVIDENCE THAT MR. WEAVER IS A MENTALLY ILL PERSON SUBJECT
                                                12


       TO COURT ORDER, AS REQUIRED BY R.C. § 2945.39(A)(2)(b) AND AS
       DEFINED BY R.C. §§ 5122.01(A) AND (B).

       {¶26} In his second assignment of error, Mr. Weaver challenges the trial court’s

determination that he is subject to court order because he suffers from a mental illness. He

argues that the State failed to prove, by clear and convincing evidence, that he suffers from a

mental illness, represents a substantial/grave risk to others, or is presently dangerous. This Court

disagrees.

       {¶27} “Under R.C. 2945.38(B)(1) and (C)(1), a common pleas court presiding over a

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

has been found incompetent to stand trial pursuant to R.C. 2945.37 may require the defendant to

undergo treatment for up to one year.” State v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, ¶

11. If the defendant does not respond to the treatment and remains incompetent, the law

authorizes two distinct paths forward. See R.C. 2945.38(H)(3) and 2945.39(A). The first is that

the court or prosecutor may petition the probate court to commence civil commitment

proceedings. Williams at ¶ 12, citing R.C. 2945.39(A)(1). The second is that the court or

prosecutor “may seek to have the common pleas court retain jurisdiction over the defendant.”

Williams at ¶ 12, citing R.C. 2945.39(A)(2). It is undisputed that the State moved the court to

retain jurisdiction over Mr. Weaver after the treatment he received to restore his competency

proved unsuccessful.

       {¶28} A court may retain jurisdiction over a defendant if, following a hearing, it

determines by clear and convincing evidence that: (1) the defendant committed the charged

offense (i.e., the violent first- or second-degree felony), R.C. 2945.39(A)(2)(a); and (2) the

defendant is either “a mentally ill person subject to court order” or “a person with an intellectual

disability subject to institutionalization by court order.”     R.C. 2945.39(A)(2)(b).      Accord
                                                13


Williams at ¶ 13. “The trial court has ‘broad discretion’ as to what to review in making [its]

determinations * * *.” State v. Decker, 10th Dist. Franklin No. 16AP-684, 2017-Ohio-4266, ¶

30, quoting In re Burton, 11 Ohio St.3d 147, 149 (1984). By statute, it may consider “all

relevant evidence, including, but not limited to, any relevant psychiatric, psychological, or

medical testimony or reports, the acts constituting the offense charged, and any history of the

defendant that is relevant to the defendant’s ability to conform to the law.” R.C. 2945.39(B).

       {¶29} The phrases “mental illness” and “mentally ill person subject to court order” are

statutorily defined terms of art. See R.C. 5122.01(A) and (B). See also R.C. 2945.37(A)(7). A

“mental illness” is “a substantial disorder of thought, mood, perception, orientation, or memory

that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the

ordinary demands of life.” Meanwhile, the phrase “mentally ill person subject to court order”

includes a defendant who, due to his or her mental illness:

       (2) Represents a substantial risk of physical harm to others as manifested by
       evidence of recent * * * violent behavior * * * or other evidence of present
       dangerousness; [or]

       ***

       (4) Would benefit from treatment for the person’s mental illness and is in need of
       such treatment as manifested by evidence of behavior that creates a grave and
       imminent risk to substantial rights of others or the person * * *.

R.C. 5122.01(B)(2) and (4). The Ohio Supreme Court has instructed trial courts, in assessing

whether a defendant is a mentally ill person subject to court order, to consider the totality of the

circumstances. See Williams at ¶ 13, citing In re Burton at paragraph one of the syllabus. See

also In re Burton at 149-150 (outlining a variety of factors for the court to consider in conducting

its totality of the circumstances analysis).

       {¶30} If a trial court determines that the State has set forth clear and convincing

evidence to satisfy the elements of R.C. 2945.39(A)(2)(a) and (b), “the court shall commit the
                                                 14


defendant.”   R.C. 2945.39(D)(1).       The defendant must be placed “in the least-restrictive

commitment alternative available consistent with public safety and the defendant’s welfare * *

*.” Williams at ¶ 15, citing R.C. 2945.39(D)(1). In making its determination as to the least-

restrictive commitment, “the court shall consider the extent to which the [defendant] is a danger

to [himself] and to others, the need for security, and the type of crime involved * * *.” R.C.

2945.39(D)(1). The statute provides that the court must “give preference to protecting public

safety.” Id. Accord Williams at ¶ 15.

       {¶31} “Clear and convincing evidence is that measure or degree of proof which will

produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to

be established.” Cross v. Ledford, 161 Ohio St. 469, 477 (1954). “Where the proof required

must be clear and convincing, a reviewing court will examine the record to determine whether

the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” State

v. Schiebel, 55 Ohio St.3d 71, 74 (1990). If an appellant challenges the weight of the evidence, a

reviewing court will apply the weight of the evidence standard set forth in State v. Thompkins, 78

Ohio St.3d 380 (1997), while remaining “mindful of the presumption in favor of the finder of

fact.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 21. See also In re P.A., 10th

Dist. Franklin No. 17AP-728, 2018-Ohio-2314, ¶ 13.

       {¶32} The trial court determined that Mr. Weaver was a mentally ill person subject to

court order. It noted that his charges were extremely serious and stemmed from multiple

incidents, involving a seven-year-old girl. The court found that, during those incidents, Mr.

Weaver hugged the girl, pressed his body against her, and kissed her by placing his tongue in her

mouth. Although Mr. Weaver later apologized for his behavior when the police asked him to

complete a written statement, the court found that he had no appreciation for the seriousness of
                                               15


his conduct. The court noted that there was evidence Mr. Weaver suffered from limited insight

and judgment, had problems recognizing boundary issues, and was fixated “on reducing his

bond, getting back to normal life and [believing/hoping] his charges would just be dropped and

go away.” The court found that Mr. Weaver suffered from intellectual deficiencies and, under

these facts and circumstances, those deficiencies “manifested in such a way that he [met] the

definition of mental illness in R.C. 5122.01(A).” It also found that, due to his inability to

understand the seriousness of his behavior, Mr. Weaver represented a substantial risk of physical

harm to others. Based on those findings, it concluded that he was a “mentally ill person subject

to court order” under R.C. 5122.01(B).

       {¶33} This Court begins by outlining the evidence that the trial court received in this

matter. Dr. Biscaro evaluated Mr. Weaver for competency and opined that a mild intellectual

disability rendered him incompetent. The doctor reported that Mr. Weaver lived with his father

until 2013 when his father became critically ill and the Medina Board of Developmental

Disabilities (“the Board”) assisted Mr. Weaver in obtaining his own apartment. The doctor

indicated that Mr. Weaver did not have a history of mental health treatment, but had “exhibited

periods of mood disturbance” in the past and twice had been evaluated for psychiatric admission

when he reported feeling suicidal.       He indicated that the Board conducted a functional

assessment in 2012 and found that Mr. Weaver “functioned fairly independently in self-care[,]”

but required prompts for things like hygiene and household chores.         He opined that Mr.

Weaver’s difficulties “seem[ed] to be related primarily to his intellectual deficits, poor coping

skills, and limited insight/judgment.” As to Mr. Weaver’s criminal charges, he reported that Mr.

Weaver “did not understand [their] relative seriousness” and “had some difficulty describing

what he was accused of doing.”           He described Mr. Weaver’s “appraisal of the entire
                                                16


situation/outcome [as] unrealistic” and noted that he was simply “fixat[ed] on reducing his bond,

getting back to normal life and [believing/hoping] his charges would just be dropped and go

away.”

         {¶34} Dr. Seibel also evaluated Mr. Weaver’s competency after having had the

opportunity to observe him for six months. He ultimately concluded that Mr. Weaver suffered

from an intellectual disability rather than a mental illness. He reported that there was no

evidence Mr. Weaver suffered from a mood or thought disorder, but “at times he [had] shown a

lack of judgment and boundaries in his attempts to assist staff.” When testifying, he clarified

that Mr. Weaver was “overly friendly” with staff members and, at times, “intrusive * * * with his

peers.” He offered as examples that Mr. Weaver would tell female staff members, “‘You love

me. You know you love me,’” and would intervene when the staff attempted to address issues

with fellow patients. Though Dr. Seibel did not diagnose Mr. Weaver with a mental illness, he

testified that he had no doubt Mr. Weaver “need[ed] significant supervision * * * based on * * *

what [he] observed about him and what [he] [knew] about his charge and * * * the account that

[Mr. Weaver] gave [him] related to that * * *.” His initial recommendation was that his facility,

Heartland Behavioral Healthcare, was the least restrictive alternative for Mr. Weaver’s care,

“taking into consideration community safety * * *.” He later retracted that recommendation,

however, and instead recommended that Mr. Weaver undergo an intellectual disability

evaluation. Even so, he testified that the reason for his retraction was that, “taking a very close

look at the statute,” he did not believe he was qualified to offer an opinion as to whether Mr.

Weaver was subject to institutionalization.       It was his impression that, by statute, that

determination had to be made by a psychologist designated by the director of developmental

disabilities. But see R.C. 2945.371(G)(3)(b) and (G)(3)(d).
                                                 17


       {¶35} Dr. Cowan, the designated psychologist from the Ohio Department of

Developmental Disabilities, met with Mr. Weaver to conduct an intellectual disability evaluation.

He reported that he met with Mr. Weaver for an hour and a half and reviewed his records to

assess his intellectual and adaptive functioning. The doctor determined that Mr. Weaver suffered

from a mild rather than moderate intellectual disability and that his adaptive skills “overall

appear[ed] to be at least within the high Mild Range of Intellectual Disability * * *.” Based on

those determinations, he opined that Mr. Weaver was not subject to institutionalization and

would benefit from the Board’s support in a community-based setting.

       {¶36} When testifying, Dr. Cowan stated that an intellectual disability concerns a deficit

in one’s cognitive and adaptive functions while a mental illness concerns a disturbance or

difficulty with mood or perception. He testified that he did not believe Mr. Weaver had a mental

illness, but he did not elaborate. Similarly, his written report only contained a brief paragraph

regarding Mr. Weaver’s mental status. In that paragraph, he noted that Mr. Weaver did not

appear to have an abnormal affect or mood, he denied suffering from hallucinations or

suicidal/homicidal ideations, and “there was no evidence of fixed delusional systems or

responding to internal stimuli.” The focus of Dr. Cowan’s examination was to identify Mr.

Weaver’s cognitive deficits and the extent of his adaptive functioning (e.g., his self-care skills).

       {¶37} Dr. Cowan made no note of Mr. Weaver’s criminal history, but both Dr. Biscaro

and Dr. Seibel included that information in their respective reports. Both reported that Mr.

Weaver accrued: (1) a public indecency/exposure charge in 1995 that was dismissed; (2) a drug

paraphernalia conviction in 2002; and (3) a disorderly conduct conviction in 2014. Dr. Seibel

noted that the instant action, as well as the 2014 case, occurred while Mr. Weaver was living on

his own.
                                                  18


       {¶38} Apart from the three experts who gave evidence, the trial court also heard

testimony from Ms. Justice and listened to a recording of Mr. Weaver’s police interview. As

previously noted, Ms. Justice interviewed S.W. in connection with a complaint regarding sexual

abuse. She testified as to the statements S.W. made during their interview, including that Mr.

Weaver had used his tongue to kiss her on multiple occasions. Meanwhile, during his police

interview, Mr. Weaver admitted he had kissed S.W. several times. He even admitted that he

used his tongue, but claimed that he did that on only one occasion. He indicated that he kissed

S.W. because he liked her and hoped she could be his girlfriend someday. He also admitted that

the kiss excited him.

       {¶39} Mr. Weaver argues that the court erred by finding him mentally ill and subject to

court order. With regard to the first finding, he asserts that there was no evidence he suffered

from a mental illness. He argues that not one of the three experts who examined him drew that

conclusion and two of those experts affirmatively testified that he did not have a mental illness.

According to Mr. Weaver, “the fact that all [the] experts concluded that he is not mentally ill is

dispositive * * *.” (Emphasis omitted.) Because his cognitive deficits only affect his intellectual

functioning and no one testified that he suffers from a substantial disorder that grossly impairs

his judgment, he argues that there is insufficient evidence that he suffers from a mental illness.

       {¶40} With regard to the court’s finding that he is subject to court order, Mr. Weaver

asserts that the State failed to set forth clear and convincing evidence that he satisfies the criteria

set forth in R.C. 5122.01(B)(2) or (B)(4). Other than the incidents for which he was indicted, he

argues that there was no evidence he is presently dangerous or represents a substantial risk to

society. He asserts that his criminal record is negligible and does not contain any convictions for

violent offenses or offenses related to sexual misconduct. He also asserts that there was a wealth
                                                  19


of evidence concerning his pleasant, cooperative demeanor and his ability to live independently.

Finally, because he apologized for his behavior, he argues that there was evidence he understood

the seriousness of his conduct.

       {¶41} This Court rejects Mr. Weaver’s contention that, before a court may declare a

defendant mentally ill, it must have before it expert evidence that the defendant has been

formally diagnosed as such. A “mental illness” is a “substantial disorder of thought, mood,

perception, orientation, or memory that grossly impairs judgment, behavior, capacity to

recognize reality, or ability to meet the ordinary demands of life.” R.C. 5122.01(A). Noticeably

absent from that definition is any requirement that a person be diagnosed with a recognized,

classifiable disorder (i.e., one recognized by the diagnostic and statistical manual of mental

disorders). See State v. Knoble, 9th Dist. Lorain No. 08CA009359, 2008-Ohio-5004, ¶ 12,

quoting Hubbard v. Canton City School Bd. of Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, ¶ 14

(clear and unambiguous statutes must be enforced as written). While the legislature linked the

statutory definition of a “moderate level of intellectual disability” to the diagnostic and statistical

manual of mental disorders, it did not do so when defining the phrase “mental illness.” Compare

R.C. 5123.01(P) with R.C. 5122.01(A). To that end, the Tenth District has rejected the notion

that a defendant must be professionally diagnosed as suffering from a classified mental disorder

before a court may adjudge him mentally ill for purposes of R.C. 5122.01(A). Decker, 2017-

Ohio-4266, at ¶ 26, citing In re McKinney, 8 Ohio App.3d 278, 280-281 (10th Dist.1983). Our

sister district has held that, “when a court construes the statute for the hospitalization of a

mentally ill person, it must abide by the plain meaning of the definition of mental illness as set

forth in R.C. 5122.01(A).” Decker at ¶ 26. This Court agrees with that proposition. See Knoble

at ¶ 12, quoting Hubbard at ¶ 14.
                                                20


       {¶42} The word “substantial” has several meanings, including “important, essential” and

“considerable in quantity: significantly great.” Merriam-Webster’s Collegiate Dictionary 1245

(11th Ed.2004).    Meanwhile, a “disorder” is defined as “an abnormal physical or mental

condition.” Id. at 360. See also id. at 259 (defining “condition” as “a state of being” and “a

[usually] defective state of health”). “Grossly” is synonymous with “flagrant” and can be

defined as “glaringly noticeable [usually] because of inexcusable badness or objectionableness.”

Id. at 551. Finally, “impaired” means “in a less than perfect or whole condition” as in “disabled

or functionally defective * * *.” Id. at 622.

       {¶43} Upon review, the trial court had sufficient evidence before it from which it could

conclude that Mr. Weaver suffers from a mental illness for purposes of R.C. 5122.01(A). See

Schiebel, 55 Ohio St.3d at 74. Mr. Weaver was charged with two counts of kidnapping and

attendant sexual motivation specifications because, on several occasions, he restrained a seven-

year-old girl, kissed her, and forced his tongue into her mouth. See R.C. 2945.39(B) (instructing

court to consider all relevant evidence, including the acts constituting the offense charged). To

the extent he acknowledged his conduct, he said that he kissed the girl because he liked her, the

kiss excited him, and, someday, he hoped she could be his girlfriend.         There was expert

testimony that, due to an intellectual disability, Mr. Weaver suffered deficits in judgment, was

unable to understand the seriousness of his conduct, and had an “unrealistic” appraisal “of the

entire situation/outcome * * *.” Moreover, Dr. Seibel, the expert from the facility that housed

Mr. Weaver for six months, specifically testified that Mr. Weaver “need[ed] significant

supervision * * * based on * * * what [he] observed about him and what [he] [knew] about his

charge and * * * the account that [Mr. Weaver] gave [him] related to that * * *.” Under these

particular facts and circumstances, the trial court could have concluded that Mr. Weaver’s
                                                 21


intellectual disability manifested itself as a substantial disorder of thought or perception that

grossly impaired his judgment, behavior, or capacity to recognize reality. See R.C. 5122.01(A).

See also Decker at ¶ 26, citing In re McKinney at 280-281. As such, notwithstanding the lack of

a professional psychiatric diagnosis, the court did not err when it found, by clear and convincing

evidence, that Mr. Weaver had a mental illness for purposes of R.C. 5122.01(A).

       {¶44} With regard to the trial court’s determination that Mr. Weaver is subject to court

order, this Court likewise must conclude that the record contains sufficient evidence in support

of that determination. See Schiebel, 55 Ohio St.3d at 74. Mr. Weaver engaged in extremely

serious, grossly inappropriate conduct that will undoubtedly have a lasting effect on the seven-

year-old he assaulted. Again, while he completed a brief, written apology at the police station,

there was evidence that he simply did not appreciate the seriousness of his conduct and that he

had an “unrealistic” appraisal “of the entire situation/outcome * * *.” The court received

evidence that he lived with his father for the vast majority of his life, but, in the few years he had

been on his own, had been convicted of disorderly conduct and charged with his current

offenses. See In re Burton, 11 Ohio St.3d at 149 (court may consider “any past history which is

relevant to establish [an] individual’s degree of conformity to the laws” in its totality of the

circumstances review). There was evidence that his intellectual disability results in serious

deficits in his judgment and that, according to Dr. Seibel, he “need[s] significant supervision * *

*.” See id. (court may consider any psychiatric testimony as to individual’s condition). In fact,

it was Dr. Seibel’s initial recommendation, “taking into consideration community safety * * *,”

that Mr. Weaver remain in the care of Heartland Behavioral Health. Given Mr. Weaver’s

deficits in judgment, his inability to appreciate his wrongdoing, and the specific nature of his

wrongdoing, the trial court could have determined that he represented a substantial risk to others
                                                 22


and was in need of treatment. See R.C. 5122.01(B)(2), (4); In re Burton at 149-150. As such,

this Court cannot conclude that the court erred when it found, by clear and convincing evidence,

that Mr. Weaver was a mentally ill person subject to court order.            Mr. Weaver’s second

assignment of error is overruled.

                               ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT ERRED BY FINDING BY CLEAR AND CONVINCING
       EVIDENCE THAT MR. WEAVER IS A PERSON WITH AN INTELLECTUAL
       DISABILITY SUBJECT TO INSTITUTIONALIZATION BY COURT ORDER,
       AS REQUIRED BY R.C. § 2945.39(A)(2)(b) AND AS DEFINED BY R.C. §§
       5123.01(O) AND (P).

       {¶45} In his third assignment of error, Mr. Weaver challenges the trial court’s

determination that he suffers from a moderate intellectual disability and, due to that disability, is

subject to institutionalization. Given our resolution of Mr. Weaver’s second assignment of error,

his third assignment of error is moot, and we decline to address it. See App.R. 12(A)(1)(c).

                                                III.

       {¶46} Mr. Weaver’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                23


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



TEODOSIO, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

MATTHEW B. AMEER and PATRICK L. BROWN, Attorneys at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
