[Cite as State v. Harvey, 2011-Ohio-1201.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. Julie A. Edwards, P.J.
                       Plaintiff-Appellee      :      Hon. W. Scott Gwin, J.
                                               :      Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :      Case No. 10-CA-45
DAVID L. HARVEY                                :
                                               :
                                               :
                       Defendant-Appellant     :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Richland County Court of
                                                   Common Pleas Case No. 09-CR-0663D


JUDGMENT:                                          AFFIRMED

DATE OF JUDGMENT ENTRY:                            March 4, 2011


APPEARANCES:

For Plaintiff-Appellee:                               For Defendant-Appellant:

JAMES J. MAYER 0021148                                CHARLES M. BROWN 0002950
Richland County Prosecutor                            76 North Mulberry Street
38 South Park Street                                  Mansfield, Ohio 44902
Mansfield, Ohio 44902

KIRSTEN PSCHOLKA-GARTNER
0077792
Assistant Prosecuting Attorney
(Counsel of Record)
[Cite as State v. Harvey, 2011-Ohio-1201.]


Delaney, J.

            {¶1}     Defendant-Appellant, David Harvey, appeals the determination of the

Richland County Court of Common Pleas, finding Appellant competent to stand trial and

thereafter accepting his no contest plea to four counts of gross sexual imposition,

felonies of the third degree, in violation of R.C. 2907.05.

            {¶2}     The facts leading up to the convictions are as follows:

            {¶3}     On May 24, 2009, five-year old M.S. was at her great-grandparents’ house

after church when Carol Harvey, Appellant’s legally blind wife, asked M.S. why she was

not wearing underwear under her church clothes.                                M.S. reported to her great-

grandmother that Appellant had removed her underwear, kissed her on the lips, touched

her on her privates, and tried to “put his bottom [penis] into her bottom [vagina].

            {¶4}     Mrs. Harvey contacted M.S.’s parents, S.S. and J.S,1 who came over

immediately.           The parents took M.S. to Med Central Hospital for a sexual assault

examination. The examination revealed redness in her vaginal area and three small

bruises on the back of her thigh which appeared to be fingerprints.                              M.S. was

subsequently interviewed and reported that Appellant had sexually assaulted her

previously. M.S. stated that it happened “all the time” and that her clothes were typically

removed during the encounters. M.S. additionally reported that Appellant had made her

touch his private parts in the past, but that the most recent time he had




1
    Initials are used to attempt to protect the identity of the minor child.
Richland County, Case No. 10-CA-45                                                       3


just “put his bottom in her bottom.”

       {¶5}   Additional investigation revealed allegations that Appellant had also

sexually abused other children in the family, including his own daughter, D.K., and his

grandchildren, B.H., J.H., K.K., and C.K.

       {¶6}   Pastor Sonny Thayer of the Marion Avenue Grace Brethren Church had

previously been made aware of the allegations and had encouraged the family to keep

the matter private. Instead of reporting the allegations to the authorities, Pastor Thayer

counseled Appellant regarding the sexual abuse.

       {¶7}   Appellant suffered a stroke in the summer of 2008 and his ability to speak

became limited. He was, however, able to function by completing his daily activities and

could communicate in a limited manner. He was able to provide short answers, he

understood questions that were asked to him, and was able to identify family members

by sight, and some by name.

       {¶8}   On May 27, 2009, Sergeant Jeff McBride of the Richland County Sheriff’s

Office went to Appellant’s residence to conduct a taped interview with Appellant.

Appellant had difficulty communicating because of his stroke; however, it was the

opinion of Sergeant McBride that Appellant was fully cognizant of the conversation, he

was able to answer questions with yes or no answers, short phrases, and gestures.

During the interview, Appellant admitted to sexually assaulting all of the victims with the

exception of B.H.

       {¶9}   As a result of the investigation, the Richland County Grand Jury indicted

Appellant on one count of gross sexual imposition as it relates to M.S., a felony of the

third degree, in violation of R.C. 2907.05 with a sexually violent predator specification
Richland County, Case No. 10-CA-45                                                        4


pursuant to R.C. 2941.148. Additionally, the Grand Jury indicted Appellant on three

counts of gross sexual imposition, in violation of R.C. 2907.05(A)(4), as they relate to

victims J.H., K.K., and C.K.

       {¶10} On September 11, 2009, Appellant filed a written plea of not guilty by

reason of insanity. He also requested an evaluation to determine whether he was

competent to stand trial. The trial court referred Appellant to the District V Forensic

Diagnostic Center for evaluation. Dr. James Karpawich reviewed Appellant’s medical

records and conducted an interview with Appellant.          Based on the interview and

Appellant’s medical records, Dr. Karpawich determined that Appellant was incompetent

to stand trial because he lacked the ability to understand the nature of the proceedings

against him and that he could not assist his attorney in his defense.

       {¶11} Subsequent to Dr. Karpawich’s evaluation, the trial court conducted a two

day competency hearing, wherein defense counsel presented testimony from Dr.

Karpawich, Appellant’s daughter, D.K., who he has also been accused of molesting

years earlier, and her husband, J.K.

       {¶12} The State of Ohio called several witnesses as well.         First, they called

Richland County Adult Probation Officers Dan Myers and Lisa Snay, who were both

involved in Appellant’s pretrial supervision. Additionally, the State called M.S.’s parents,

S.S. and J.S., Appellant’s son, Ken Harvey, and Detective McBride.

       {¶13} In rebuttal, Appellant then called Pastor Lester Vnasdale of the Grace

Brethren Church.

       {¶14} Following the presentation of the evidence, the trial court issued a written

opinion on January 14, 2010, finding the Appellant competent to stand trial. Appellant
Richland County, Case No. 10-CA-45                                                      5


filed a motion for reconsideration, which the trial court denied. Appellant then entered a

no contest plea to the indictment.

       {¶15} Appellant was sentenced to an aggregate term of eleven years to life in

prison with a mandatory five years of post release control.    Appellant was additionally

ordered to register as a Tier III sex offender.

       {¶16} Appellant now appeals the trial court’s finding of competency, raising one

Assignment of Error:

       {¶17} “I. THE DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO DUE

PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES CONSTITUTION, AND ARTICLE 1,

SECTION 16, OF THE OHIO CONSTITUTION, IN THAT HE WAS FOUND GUILTY

WHILE INCOMPETENT TO STAND TRIAL.”

                                              I.

       {¶18} In his sole assignment of error, Appellant argues that the trial court erred

in refusing to find him incompetent to stand trial. We disagree.

       {¶19} A defendant is presumed competent to stand trial. R.C. 2945.37(G). If

the issue of a defendant’s competency is raised, the defendant must prove by a

preponderance of the evidence that he is incompetent. See State v. Pruitt (1984), 18

Ohio App.3d 50, 480 N.E.2d 499. In order to find a defendant incompetent, the court

must find that based on the defendant’s present mental condition, he (1) is incapable of

understanding the nature and objective of the proceedings against him; and (2) he is

unable to assist in his own defense. R.C. 2945.37(G).
Richland County, Case No. 10-CA-45                                                         6


       {¶20} A court is prohibited from finding a defendant incompetent because he is:

(1) receiving or has received treatment as a voluntary or involuntary mentally ill or

mentally retarded patient; or (2) receiving or has received psychotropic drugs or other

medication, even if the defendant might become incompetent to stand trial without the

drugs or medication. R.C. 2945.37(F).

       {¶21} At any time prior to trial, either the prosecution or defense may raise the

issue of the defendant’s competence to stand trial. R.C. 2945.37(B). If the issue of

competency is raised prior to trial, it is mandatory for the court to hold a hearing on the

issue. See R.C. 2945.37(B); State v. Were (2002), 94 Ohio St.3d 173, 761 N.E.2d 591,

2002-Ohio-481.

       {¶22} A hearing on competency is to be heard within thirty (30) days after the

issue is raised, unless the defendant has been referred for evaluation.           See R.C.

2945.37(C). If the defendant has been referred for evaluation, the hearing shall be held

within ten days after the filing of the report of the evaluation.

       {¶23} Both the prosecution and defense counsel are permitted to submit

evidence on the issue of defendant’s competence.

       {¶24} A written report of the evaluation of the defendant may be admitted by

stipulation. If the parties do not stipulate to the evaluation or object to the admissibility

of it, the report may still be admitted unless a “substantial injustice” will be done to the

opposing party. See R.C. 2317.36. The party seeking to admit the report must give

advance notice to the opposing party and afford him a reasonable opportunity to inspect

and copy any records or other documents in the offering party’s possession or control

on which the report or findings were based. R.C. 2317.38.
Richland County, Case No. 10-CA-45                                                     7


      {¶25} The examiner must file a written report with the court within 30 days after

entry of a court order for evaluation and the court is required to provide copies of the

report to the prosecutor and defense counsel. R.C. 2945.371(G).

      {¶26} The report must include the following information: (1) the examiner’s

findings; (2) the facts in reasonable detail on which the findings are based; (3) if the

examination was held to determine the defendant’s competence to stand trial, all of the

following findings that are applicable: (a) whether the defendant is capable of

understanding the nature and objective of the proceedings against him or of assisting in

his defense; (b) if the examiner’s opinion is that the defendant is incapable of

understanding the nature and objective of the proceedings against him or of assisting in

his defense, whether he presently is mentally ill or mentally retarded and, if the

examiner’s opinion is that he is mentally retarded, whether the defendant appears to be

a mentally retarded person subject to institutionalization by court order; (c) if the

examiner determines that the defendant is incapable of assisting in his defense or

cannot understand the nature and circumstances of the crime, whether the defendant

can become capable of understanding such matters within one year if he is provided

with a course of treatment; (d) if the examiner determines that the defendant is

incapable of assisting in his defense or cannot understand the nature and

circumstances of the crime, the examiner’s recommendation as to the least restrictive

treatment alternative, consistent with the defendant’s treatment needs for restoration to

competency and with the safety of the community. R.C. 2945.371(G).

      {¶27} If, after a hearing, the court finds by a preponderance of the evidence that,

because of the defendant's present mental condition, the defendant is incapable of
Richland County, Case No. 10-CA-45                                                        8


understanding the nature and objective of the proceedings against the defendant or of

assisting in the defendant's defense, the court shall find the defendant incompetent to

stand trial and shall enter an order authorized by section 2945.38 of the Revised Code.

R.C. 2945.37(G). A trial court’s decision will not be overturned absent an abuse of

discretion. State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54.

       {¶28} The trial court may consider an expert's credentials when determining the

expert's credibility. State v. Stanley (1997), 121 Ohio App.3d 673, 700 N.E.2d 881. The

court may also rely upon its own observations of the defendant, provided that the trial

court has other competent credible evidence upon which to rely. Id. at 694. In this

matter, there was evidence to support the trial court's observation of the defendant's

competency.

       {¶29} In reviewing the present case, this Court must determine first, if Appellant

is capable of understanding the nature of the proceedings against him, and second, if

he is able to assist in his own defense.

       {¶30} The court made the following determinations of facts in its journal entry:

       {¶31} “1. Defendant is a 75 year old man accused of molesting his daughters

and granddaughters over many years. He is charged in this case with four counts of

gross sexual imposition, the most recent allegations being an offense against his step-

granddaughter on May 24, 2009.

       {¶32} “2. On June 5, 2008, defendant had a stroke resulting in right-sided

weakness and aphasia with poor naming and repetition abilities. Initially he could not

speak at all. Although he has quickly recovered his mobility, he still has significant

difficulty in speaking and writing.
Richland County, Case No. 10-CA-45                                                       9


       {¶33} “3. James Karpawich, Ph.D., a clinical psychologist, who evaluated Mr.

Harvey’s competency at the District 5 Forensic Center, found great difficulty in

communicating with Mr. Harvey, saying he couldn’t tell from Mr. Harvey’s responses

whether he always understood his questions. He also noted the defendant had difficulty

with the resulting limited verbal ability from his stroke in defining basic legal terms. He

consequently opined that the defendant was unable to assist his attorney at trial and

[was] incompetent to be tried. The court, based on the other evidence at [trial], finds

that opinion not to be credible.

       {¶34} “4. A few days after his stroke, the defendant began physical therapy and

speech therapy. He is now able to exercise his own daily living skills and to assist his

elderly wife (who is blind) with her needs.

       {¶35} “5. Mr. Harvey lives a substantially normal life for a man of his age. He

prepares the meals and does some of the housekeeping.                  He dispenses the

medications he and his wife are taking and places them in their daily pill boxes. He

writes down the sugar readings from a test instrument used daily for his wife. He travels

by car alone to his own doctor and probation appointments and to haircuts and other

errands. He drives his wife to her doctor appointments. He drives to the pharmacy to

pick up their prescriptions.

       {¶36} “6. He makes a grocery shopping list by copying names from empty

containers to be checked over by his daughter. He drives to the store himself for the

easy shopping like milk and bread and pays by credit card.

       {¶37} “7. He takes his wife out for drives and out to eat at restaurants.
Richland County, Case No. 10-CA-45                                                       10


       {¶38} “8. Mr. Harvey enjoys watching television and is a sports fan who

responds appropriately to televised sporting contests and other televised events.

       {¶39} “9. During the hearing, Mr. Harvey was heard to say to his attorney, John

Allen, “John, I need the bathroom” showing that he remembers his attorney’s name and

can communicate with him.

       {¶40} “10. Mr. Harvey has a file folder in which he places legal papers for his

criminal case. He was able to fill out part of his pretrial supervision paperwork himself

on September 11, 2009.

       {¶41} “11. Dan Myers, defendant’s pretrial supervision officer, has made more

than eight home visits to Mr. Harvey’s home and has always been able to communicate

with him. Mr. Harvey always appears to understand Mr. Myers but sometimes has

difficulty putting his words together in his response. Mr. Harvey sometimes asks his

wife to help with a name or word and often uses nonverbal communication like pointing.

Mr. Harvey was able to explain to Mr. Myers the relationship of him to people pictured in

a photo gallery in Mr. Harvey’s hall and to tell him about his prior military service.

       {¶42} “12. The recorded interview of Mr. Harvey by Sgt. Jeff McBride on May

27, 2009 about his crimes, placed in evidence, lasted more than a half hour. That

interview shows Mr. Harvey does understand the questions he was asked and responds

appropriately but very often has difficulty in finding the words he is searching for. His

longest responses are short phrases like ”It’s not good,” “I know that” and “My

granddaughter.” This interview by Sgt. McBride shows that Mr. Harvey appreciates the

seriousness of the charges and that he denies many of the allegations made by Sgt.

McBride.”
Richland County, Case No. 10-CA-45                                                        11


       {¶43} Based on the trial court’s finding, as well as our thorough review of the

record, we find that Appellant failed to prove by a preponderance of the evidence that

he was incompetent to stand trial. Appellant was able to understand the nature and

objective of the proceedings, he was cooperative with his attorney, and always showed

up to his probation appointments on Mondays.

       {¶44} We agree with the trial court that difficulty in communicating is not an

incapability to assist a defense. We find the trial court’s conclusion that “it is reasonable

that – if Mr. Harvey can be trusted to drive to his own doctor appointments and

communicate with his doctor about his health – he can be trusted to communicate with

his attorney whom he trusts.”

       {¶45} The most recent allegations against Appellant occurred over a year after

his stroke. A difficulty in verbally communicating with others does not negate the fact

that he can be criminally liable for his acts nor does it prove that he is incompetent to

stand trial.

       {¶46} The trial court made allowances for Appellant to have extra time to

conference with his attorney when necessary during the hearing to communicate. The

court also permitted a family member to assist in those conferences if any translation

was needed.      The court said that these conferences could happen as often as

necessary during the trial.

       {¶47} After the court issued its ruling, Appellant entered a plea of no contest,

and the transcript of those proceedings further indicate that Appellant was able to

understand the nature and consequences of the proceedings. Throughout the hearing,

Appellant responded appropriately each time the trial court asked him a question. The
Richland County, Case No. 10-CA-45                                                       12


court repeatedly inquired about whether Appellant understood particular legal rights and

concepts. The court noted “everything is not just yes with him”, meaning that Appellant

responded appropriately to questions.

       {¶48} All of these factors indicate that the trial court did not abuse its discretion

in finding Appellant competent to stand trial.

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

       {¶50} For the foregoing reasons, the judgment of the Richland County Court of

Common Pleas is affirmed.

By: Delaney, J.

Edwards, P.J. and

Gwin, J. concur.



                                         HON. PATRICIA A. DELANEY



                                         HON. JULIE A. EDWARDS



                                         HON. W. SCOTT GWIN
[Cite as State v. Harvey, 2011-Ohio-1201.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                       Plaintiff-Appellee      :
                                               :
                                               :
-vs-                                           :    JUDGMENT ENTRY
                                               :
DAVID L. HARVEY                                :
                                               :
                       Defendant-Appellant     :    Case No. 10-CA-45
                                               :




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

judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed

to Appellant.



                                                   _________________________________
                                                   HON. PATRICIA A. DELANEY


                                                   _________________________________
                                                   HON. JULIE A. EDWARDS


                                                   _________________________________
                                                   HON. W. SCOTT GWIN
