[Cite as State v. Smith, 2013-Ohio-5827.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                            LAKE COUNTY, OHIO


STATE OF OHIO,                                       :      OPINION

                 Plaintiff-Appellee,                 :
                                                            CASE NO. 2013-L-020
        - vs -                                       :

MITCHELL S. SMITH,                                   :

                 Defendant-Appellant.                :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR
00372.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Ron M. Graham, 6988 Spinach Drive, Mentor, OH 44060 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Mitchell S. Smith, appeals from the judgment of the Lake

County Court of Common Pleas, committing appellant to a facility operated by the Ohio

Department of Mental Retardation and Developmental Disabilities for life, pursuant to

R.C. 2945.401.         At issue is whether the trial court erred in admitting evidence of

appellant’s inculpatory statement to police and whether a seven-year-old eye witness
was competent to testify at the civil commitment hearing. For the reasons that follow,

we affirm.

       {¶2}   Appellant was indicted on the following counts: (1) rape, a felony of the

first degree, in violation of R.C. 2907.02(A)(1)(b); (2) kidnapping, a felony of the first

degree, in violation of R.C. 2905.01(A)(4), with a specification that the offense was

committed with a sexual motivation, in violation of R.C. 2941.147; (3) gross sexual

imposition, a felony of the third degree, in violation of R.C. 2907.05(A)(4); (4) gross

sexual imposition, a felony of the third degree, in violation of R.C. 2907.05(B); and (5)

kidnapping, a felony of the second degree, in violation of R.C. 2905.01(A)(4), with a

specification that the offense was committed with a sexual motivation, in violation of

R.C. 2941.147.

       {¶3}   Prior to arraignment, appellant filed a motion for competency evaluation,

pursuant to R.C. 2945.371, which the court granted. The court later ordered a separate

mental retardation evaluation, pursuant to R.C. 2945.371(H). The state subsequently

filed a motion to retain jurisdiction, pursuant to R.C. 2945.39(A)(2), which appellant

opposed. Appellant further filed a motion to suppress evidence relating to appellant’s

interview with police.

       {¶4}    Based upon the results of the foregoing evaluations, the trial court found,

by a preponderance of the evidence, appellant was incompetent to stand trial. The

court further found that, based upon appellant’s level of mental retardation, there was

not a substantial probability that he would become competent to stand trial within one

year. The court held the state’s motion to retain jurisdiction in abeyance pending the

resolution of appellant’s motions to dismiss and suppress.




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       {¶5}    After considering appellant’s motions, the court denied appellant’s motion

to dismiss the state’s motion to retain jurisdiction. The court concluded, pursuant to the

Ohio Supreme Court’s decision in State v. Williams, 126 Ohio St.3d 65, 2010-Ohio-

2453, that R.C. 2945.39 neither violates his constitutional right to a jury trial nor violates

his right to be free from cruel and unusual punishment.           The court reasoned that

because R.C. 2945.39 is civil in nature, a person committed under its procedures is not

entitled to the same constitutional protections as a defendant in a criminal prosecution.

The court further determined that, given the nature of the civil commitment proceedings,

it was unnecessary to consider the constitutional arguments set forth in appellant’s

motion to suppress.

       {¶6}    An evidentiary hearing was subsequently held on the state’s motion to

retain jurisdiction. At the commencement of the proceedings, defense counsel orally

converted his motion to suppress into a motion in limine.            In so doing, appellant

requested the court, based upon the finding of incompetence, not to permit appellant’s

inculpatory statement to police.      Appellant also requested the seven-year-old eye

witness be declared incompetent to testify. The court overruled each request.

       {¶7}    After considering the evidence, the trial court found, by clear and

convincing evidence, that appellant committed the underlying offenses and that he was

a mentally retarded person subject to institutionalization by court order pursuant to R.C.

2945.39.      Appellant was therefore committed to a facility operated by the Ohio

Department of Mental Retardation and Developmental Disabilities for life, pursuant to

R.C. 2945.401. This appeal followed.

       {¶8}    Appellant’s first assignment of error provides:




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      {¶9}   “The trial court erred by admitting appellant’s statement into evidence

since he was found incompetent to stand trial.”

      {¶10} R.C. 2945.31(A)(2) provides:

      {¶11} (A) If a defendant who is charged with an offense described in

             division (C)(1) of section 2945.38 of the Revised Code is found

             incompetent to stand trial, after the expiration of the maximum time

             for treatment as specified in division (C) of that section or after the

             court finds that there is not a substantial probability that the

             defendant will become competent to stand trial even if the

             defendant is provided with a course of treatment, one of the

             following applies:

      {¶12} * * *

      {¶13} (2) On the motion of the prosecutor or on its own motion, the court

             may retain jurisdiction over the defendant if, at a hearing, the court

             finds both of the following by clear and convincing evidence:

      {¶14} (a) The defendant committed the offense with which the defendant

             is charged.

      {¶15} (b) The defendant is a mentally ill person subject to hospitalization

             by court order or a mentally retarded person subject to

             institutionalization by court order.

      {¶16} To retain jurisdiction under R.C. 2945.39, the trial court was required to

find, by clear and convincing evidence, both that a defendant committed the charged

offense and he is a mentally retarded person subject to institutionalization by court




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order.    The trial court, in entering the requisite findings, considered, inter alia, the

statements appellant made to police. Appellant argues the trial court erred in admitting

appellant’s statements because he had been deemed incompetent to stand trial. We do

not agree.

         {¶17} Appellant cites no authority for his position that statements made to

police, by a person later deemed incompetent to stand trial, are inadmissible for

purposes of an involuntary civil commitment hearing. R.C. 2945.39(B) provides:

         {¶18} (B) In making its determination under division (A)(2) of this section

                as to whether to retain jurisdiction over the defendant, the court

                may consider all relevant evidence, including, but not limited to, any

                relevant psychiatric, psychological, or medical testimony or reports,

                the acts constituting the offense charged, and any history of the

                defendant that is relevant to the defendant’s ability to conform to

                the law. (Emphasis added.)

         {¶19} This subsection specifically gives a trial court the discretion to consider all

relevant evidence.1 In his statement, appellant admitted he masturbated and performed

fellatio on the victim. It is beyond cavil that this statement was relevant to R.C.

2945.39(A)(2)(a) because it provided factual details demonstrating appellant committed

the charged offenses. Appellant’s argument, in this regard, lacks merit.




1. It is worth noting that, in Williams, supra, the Supreme Court of Ohio declared the statute constitutional.
The court determined the statute is civil and remedial in nature. Id. at ¶36-37. And, because it is a civil
statute, a person committed under its provisions need not be afforded the constitutional rights to which a
defendant in a criminal prosecution is entitled. Id. at paragraph two of the syllabus. In particular, the
court determined the procedures set forth under R.C. 2945.39 do not violate an individual’s rights to due
process or equal protection.


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       {¶20} Appellant also seems to argue the statements were inadmissible because

they were obtained through a potential violation of Miranda v. Arizona, 384 U.S. 436

(1966).   In particular, psychologist Dr. Jeff Rindsberg testified he did not believe

appellant understood what he was doing when he waived his rights after being advised

pursuant to Miranda.        From this, as well as other testimony relating to his low

intelligence, appellant contends he was “incompetent to give any statement and any

statement could not be used in an evidentiary hearing.” Appellant maintains, therefore,

his statements should have been excluded. Again, we do not agree.

       {¶21} Appellant was deemed incompetent to stand trial; in effect, this means

evidence was presented to show he was either unable to understand the proceedings or

assist in his defense. See e.g. State v. Wise, 11th Dist. Trumbull No. 2012-T-0028,

2012-Ohio-4896, ¶21. Simply because appellant was found incompetent to stand trial,

however, does not imply he was “incompetent” to give a truthful rendition of the incident

which led to the criminal charges. Detective Petro testified appellant capably responded

to the questions she posed to him. According to the detective, appellant was able to

recount the entirety of the incident and provide clear, specific details of his actions.

       {¶22} Moreover, Dr. Rinsberg testified he did not believe appellant had the

capacity to knowingly and intelligently waive his constitutional Miranda rights; during the

hearing, the doctor clarified that this did not imply appellant was incapable of rendering

a truthful and voluntary statement to the police. Given the foregoing, there was an

adequate foundation for the court to conclude appellant was sufficiently coherent during

the interview such that his rendition of the incident could assist in the R.C.

2945.39(A)(2)(a) inquiry.




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      {¶23} Furthermore, even assuming appellant did not knowingly, intelligently, and

voluntarily waive his rights under Miranda, the admissibility of the statement is not

dependent upon the constitutionality of the waiver. Unlike a typical criminal prosecution,

this case proceeded pursuant to R.C. 2945.39, which involves a civil proceeding. The

privilege against self-incrimination, and thus the Miranda doctrine, concerns the use of

compelled statements in criminal prosecution.      Courts have noted that the principle

proscribing the use of out-of-court statements in violation of Miranda is inapplicable to

civil proceedings. See Baxter v. Palmigiano, 425 U.S. 308, 315 (1976) (“[t]he Court has

never held, and we decline to do so now, that the requirements of [Miranda] must be

met to render pretrial statements admissible in other than criminal cases.”); In re Kuhn,

4th Dist. Athens No. 1279, 1986 Ohio App. LEXIS 6173, *18-19 (Mar.7, 1986); Copley

Twp. Trustees v. 10,600 in United States Currency, 9th Dist. Summit No. 18985, 1998

Ohio App. LEXIS 6425, *9 (Dec. 30, 1998); see also Williams, supra, paragraph two of

the syllabus (“[b]ecause R.C. 2945.39 is civil in nature, a person committed under the

statute need not be afforded the constitutional rights afforded to a defendant in a

criminal prosecution.”) Therefore, even if appellant did not execute a valid waiver, his

statement was relevant and therefore admissible pursuant to R.C. 2945.39.

      {¶24} Pursuant to the foregoing, we hold appellant’s inability to understand the

nuances of the criminal proceedings against him or his arguable inability to enter a valid

Miranda waiver do not render his statement to police inadmissible for purposes of R.C.

2945.39. The statement was relevant and the trial court did not abuse its discretion in

considering the same.

      {¶25} Appellant’s first assignment of error lacks merit.




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         {¶26} Appellant’s second assignment of error asserts:

         {¶27} “The trial court [erred] by finding the child witness competent to testify.”

         {¶28} Under this assignment of error, appellant argues a seven-year-old eye-

witness, M.P., was not competent to testify and, as a result, the trial court erred in

admitting the child’s testimony. We do not agree.

         {¶29} Evid.R. 601 sets forth general rules of competency.             Subsection (A)

provides:

         {¶30} “Every person is competent to be a witness except:

         {¶31} “(A) Those of unsound mind, and children under ten years of age, who

appear incapable of receiving just impressions of the facts and transactions respecting

which they are examined, or of relating them truly.”

         {¶32} The state, as the proponent of the child, shouldered the burden of

demonstrating M.P.’s competence to testify. State v. Clark, 71 Ohio St.3d 466, 469

(1994).     And the trial court conducted a proper hearing to determine the child’s

competency to testify. See State v. Frazier, 61 Ohio St.3d 247, 250-251 (1991). In

considering whether a child under the age of 10 is competent to testify, a court must

analyze the following factors: “the child’s ability to receive accurate impressions of fact,

the child’s ability to recollect those impressions, the child’s ability to communicate what

is observed, the child’s understanding of truth and falsity, and the child’s appreciation of

his or her responsibility to tell the truth.” Clark, supra, at 469, citing Frazier, supra.

         {¶33} Once the court concludes that the threshold requirements have been

satisfied, a witness under the age of ten will be deemed competent to testify. Clark,

supra.




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       {¶34} Appellant contends the trial court erred in permitting M.P. to testify

because, during the course of the competency hearing, the child was unable to answer

certain autobiographical questions. Appellant further underscores that M.P. was unable

to explain the importance of telling the truth and did not know “what happens if you lie.”

In support, appellant cites this court’s opinion in State v. Jett, 11th Dist. Portage No. 97-

P-0023, 1998 Ohio App. LEXIS 1451(Mar. 31, 1998).

       {¶35} In Jett, this court reversed the trial court’s decision that a five-year-old sex

abuse victim was competent to testify. This court observed the child only responded

“yes” or “no” to the trial court’s leading questions during the competency hearing and

the child gave no personal narrative about the incident. This court determined that, with

the “yes” and “no” inquiries, the child had a fifty percent chance of being correct simply

by guessing. This court also emphasized that the child could not “articulate clearly the

distinction between telling a lie and telling the truth.” And, during the trial, this court

pointed out the child was completely incorrect about independently verifiable

circumstances relating to the abuse. Hence, this court concluded the trial court abused

its discretion in finding the child competent to testify.

       {¶36} This matter is different from Jett. M.P. was able to distinguish between

the truth and a lie without the assistance of leading questions. When asked “do you

know what it means to tell the truth?” M.P. responded “It means you tell the real thing,

don’t lie.”   Although he stated he did not know what happens when one lies, he

specifically explained lying means “You don’t tell the truth.” Furthermore, the trial court

and the prosecutor tested M.P.’s understanding of the difference between a true

statement and a false statement by asking him empirically verifiable questions. For




                                               9
each question, M.P. was able to identify whether the court or prosecutor was making an

inaccurate or false statement and explain why. Moreover, M.P.’s testimony was

substantially consistent with the statement he provided to police and the rendition of

events he related to his mother. The concerns this court identified in Jett, therefore, are

not present in this case.

       {¶37} A review of the hearing demonstrates M.P. was able to receive and

discuss accurate, factual impressions and assure the court he remembered the incident

and the individuals involved.      As emphasized above, M.P. had a demonstrable

appreciation for the distinction between truth and falsity. And, although he initially told

the court he did not know what happens if one lies, he later, without prompting,

explained that “you get in trouble” if you lie. And, finally, during his testimony, M.P. was

able to provide clear and articulate responses to the questions posed to him regarding

the incident that were almost entirely consistent with past statements. The fact that

M.P. was unable to answer certain autobiographical questions, such as his birth date, or

identify geographical facts, such as the town in which he lives, does not bear upon the

Frazier inquiry. A child’s inability to remember a specific date or identify his home town

or the street on which he lives does not undermine his competence to testify to events

he witnessed; this is particularly true where, as here, the child has demonstrated the

ability to understand the concepts of truth and falsity as well as the import of telling the

truth. In the totality, therefore, we conclude the court did not abuse its discretion in

finding M.P. competent to testify pursuant to Frazier.

       {¶38} Appellant’s second assignment of error lacks merit.




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      {¶39} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




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