         [Cite as State v. Jones, 2017-Ohio-5517.]
                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO




STATE OF OHIO,                                       :   APPEAL NO. C-160735
                                                         TRIAL NO. B-1306896
        Plaintiff-Appellee,                          :
                                                            O P I N I O N.
  vs.                                                :

MATTHEW JONES,                                       :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 28, 2017




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

John Rutan, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




M OCK , Presiding Judge.

       {¶1}    Defendant-appellant Matthew Jones appeals the decision of the

Hamilton County Court of Common Pleas finding him to be a mentally ill person

subject to hospitalization and retaining jurisdiction over him. We find no merit in

his three assignments of error, and we affirm the trial court’s judgment.

       {¶2}    Jones was originally indicted on three counts of rape under R.C.

2907.02(A)(1)(b) and one count of attempted rape under R.C. 2923.02(A) and

2907.02(A)(1)(b). He was found incompetent to stand trial.

       {¶3}   On January 20, 2014, the trial court held a hearing under former R.C.

2945.39(A) (effective until September 16, 2104), to determine whether Jones was

still incompetent to stand trial, whether he could be restored to competency, and

whether it should retain jurisdiction over him. The parties stipulated to medical

reports showing that Jones was not competent to stand trial and that there was not a

substantial probability that he would become competent. Therefore, the only issue

remaining was whether clear and convincing evidence existed that Jones had

committed the charged offenses. See former R.C. 2945.39(A)(2)(a).

       {¶4}    The state presented the testimony of Sergeant Brian Delk of the

Village of Cleves Police Department. He was a school resource officer at Three Rivers

Educational Complex. On the day in question, he was called to the office by a teacher

“in reference to a juvenile male [who] went to a teacher in a cafeteria and stated that

he was sexually assaulted by an adult.” Sergeant Delk then spoke to the juvenile and

his mother.

       {¶5}    The juvenile, who was autistic, told Sergeant Delk that he had been in

the woods hunting, and Jones had invited him to jump on a trampoline. Because it




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was cold outside, Jones had invited the juvenile into his house to play a video game.

As they were playing, Jones unbuttoned the juvenile’s pants, unzipped the zipper,

and touched the juvenile’s penis with his hand and his mouth.

          {¶6}    The juvenile told Jones to stop. When Jones’s brother knocked on the

door, the juvenile pushed Jones away. Jones’s brother came in and told Jones to

stop. Jones told the juvenile that “he wouldn’t do it again” if the juvenile stayed and

continued playing video games.

          {¶7}    But Jones again unbuttoned the juvenile’s pants and touched his

penis. The juvenile got up and went down the steps, but Jones pulled him into a

bathroom. Jones then tried to force the juvenile to put his mouth on Jones’s penis.

          {¶8}    Subsequently, Sergeant Delk contacted Holly Mott “with Hamilton

County Children of Disabilities,” presumably Hamilton County Developmental

Disabilities Services, who assisted him with the investigation. Jones and his mother

came to the police department, and Mott questioned him. Jones confirmed some of

the details provided by the juvenile.       When Jones started making statements

incriminating himself, they stopped the questioning, and Sergeant Delk read him his

rights.

          {¶9}    Angela Jones, Jones’s mother, testified that her son had never been

aggressive and had never sexually acted out before. She stated that she had told the

juvenile not to come into her home. She had only been gone for 20 minutes and had

left Jones in the care of his brother. When she returned, she saw that the juvenile’s

pants were undone. She stated, “I wasn’t sure that my son had done something but I

knew that something had happened.”

          {¶10}   After the hearing, the trial court found by clear and convincing

evidence that Jones was “mentally ill subject to hospitalization or mentally retarded



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subject to hospitalization.” It also found by clear and convincing evidence that Jones

had committed the offenses charged in the indictment.            It, therefore, retained

jurisdiction over him. Subsequently, this court granted Jones’s motion to file a

delayed appeal.

       {¶11} In his first assignment of error, Jones contends that the trial court

erred by finding that clear and convincing evidence existed that he had committed

the offenses with which he was charged. He argues that the court’s decision was not

supported by sufficient evidence. This assignment of error is not well taken.

       {¶12} Under former R.C. 2945.38(B)(1) (effective until September 16, 2014),

a common pleas court presiding over a criminal case involving a defendant charged

with a violent first- or second-degree felony who had been found incompetent to

stand trial could require the defendant to undergo treatment for up to one year.

State v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, 930 N.E.2d 770, ¶ 11. If the

one-year period expired and the defendant remained incompetent to stand trial, and

there was not a substantial probability that the defendant would become competent

to stand trial within one year, the court could have ordered the defendant discharged

or the court could have retained jurisdiction over the defendant as provided in

former R.C. 2945.39. Former R.C. 2945.38(B)(2); Williams at ¶ 12.

       {¶13} To retain jurisdiction, the court had to find, by clear and convincing

evidence, both that the defendant had committed the charged offense and that the

defendant was a mentally ill person subject to hospitalization by court order. Former

R.C. 2945.39(A)(2); Williams at ¶ 13. Clear and convincing evidence is evidence that

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

sought to be established. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865

N.E.2d 1264, ¶ 20.     In making this determination, the court could consider all



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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. Former R.C. 2945.39(B).

       {¶14} The Ohio Supreme Court has determined that former R.C. 2945.39

was “manifestly civil in its intent.” Williams at ¶ 35. In civil cases, as in criminal

cases, the sufficiency of the evidence is quantitatively and qualitatively different from

the weight of the evidence. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-

2179, 972 N.E.2d 517, paragraph two of the syllabus.

       {¶15} Our review for sufficiency asks whether some evidence exists on each

element. Eastley at ¶ 19; In re A.B., 1st Dist. Hamilton Nos. C-150307 and C-150310,

2015-Ohio-3247, ¶ 15. It is a test of adequacy, and whether the evidence is legally

sufficient to sustain the judgment is a question of law. Eastley at ¶ 11; In re A.B. at ¶

15. We hold that Sergeant’s Delk’s testimony was sufficient to show by clear and

convincing evidence that Jones had committed the offenses with which he was

charged.

       {¶16} Jones argues that Sergeant Delk’s testimony was unreliable because it

involved hearsay. He argues that the state should have called the juvenile victim and

others to testify. First, we note that former R.C. 2945.39(B) gave the court the

discretion to consider all relevant evidence. See State v. Smith, 11th Dist. Lake No.

2013-L-020, 2013-Ohio-5827, ¶ 19.

       {¶17} Further, the record shows that before the court heard any testimony,

Jones’s counsel stated that “[m]y understanding is that hearsay evidence, because it’s

a pretrial motion, will be admissible so it’s not objectionable at this time.” The court

stated “that’s why you are not objecting.” Counsel replied, “Correct, Judge.” The



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trial court then stated, “That’s on the record. And it is a pretrial hearing so the

officer can continue to testify about his investigation, and even hearsay that he

received from people that told him about the case.” Thus, even if the admission of

hearsay into evidence was error, Jones forfeited or even invited the error. See State

v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21; State v. Allen,

1st Dist. Hamilton No. C-150769, 2016-Ohio-5258, ¶ 9; Blair v. McDonagh, 177 Ohio

App.3d 262, 2008-Ohio-3698, 894 N.E.2d 377, ¶ 39 (1st Dist.).

       {¶18} Jones also sets forth numerous reasons why Sergeant Delk’s testimony

was not credible. But in deciding whether the evidence was sufficient, we neither

resolve evidentiary conflicts nor assess the credibility of the witnesses. M.J. v. L.P.,

9th Dist. Medina No. 15CA0036-M, 2016-Ohio-7080, ¶ 8; State v. Thomas, 1st Dist.

Hamilton No. C-120561, 2013-Ohio-5386, ¶ 45. Consequently, we overrule Jones’s

first assignment of error.

       {¶19} In his second assignment of error, Jones contends that “the evidence

was not sufficient to support [his] conviction as it was against the manifest weight of

the evidence.” But Jones was not actually convicted of any crime. The trial court

simply determined that it could retain jurisdiction over him.

       {¶20} Former R.C. 2945.39 did not “affix criminal culpability for prior

criminal conduct.” Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, 930 N.E.2d 770,

at ¶ 33. A trial court’s determination by clear and convincing evidence that the

defendant committed the offense was “merely a factor considered in determining the

propriety of the commitment; it play[ed] no role beyond that limited purpose.” Id.

       {¶21} As to the court’s decision to retain jurisdiction, our review for weight

of the evidence asks whether the evidence on each element satisfies the burden of

persuasion, which in this case was a clear-and-convincing standard. In re A.B., 1st



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Dist. Hamilton Nos. C-150307 and C-150310, 2015-Ohio-3247, at ¶ 15, citing Eastley,

132 Ohio St.3d 328, 2012-Ohio-2179, 927 N.E.2d 517, at ¶ 12 and 19.

       {¶22} After reviewing the record, we cannot hold that the trier of fact lost its

way and created such a manifest miscarriage of justice that we must reverse the

judgment and order a new hearing. Therefore, the judgment is not against the

manifest weight of the evidence. See Eastley at ¶ 12; A.B. at ¶ 16. Again, Jones is

arguing that Sergeant Delk’s testimony was not credible.          But when reviewing

evidence under the manifest-weight standard, an appellate court must defer to the

fact-finder’s credibility determinations. In re R.S., 4th Dist. Highland No. 13CA22,

2013-Ohio-5569, ¶ 33, citing Eastley at ¶ 21. Consequently, we overrule Jones’s

second assignment of error.

       {¶23} In his third assignment of error, Jones contends that his Sixth

Amendment right to confront the witnesses against him was violated. He argues that

he was denied the right to physically confront the witnesses against him due to the

use of hearsay. This assignment of error is not well taken.

       {¶24} First, the Ohio Supreme Court has stated that “[b]ecause [former] 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.”

Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, 930 N.E.2d 770, at paragraph two of

the syllabus. Additionally, Jones failed to object to the use of hearsay, and he did not

raise the confrontation issue in the trial court. Consequently, he forfeited any error.

See Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 21; Allen, 1st

Dist. Hamilton No. C-150769, 2016-Ohio-5258, at ¶ 9. We overrule Jones’s third

assignment of error.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶25} In sum, we find no merit in Jones’s three assignments of error. The

trial court did not err in retaining jurisdiction over Jones, and we affirm the trial

court’s judgment.

                                                                 Judgment affirmed.


M ILLER and D ETERS , JJ., concur.


Please note:
       The court has recorded its own entry this date.




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