[Cite as State v. Nelson, 2014-Ohio-5757.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                   No. 14AP-229
v.                                                 :            (C.P.C. No. 13CR-4040)

Tyvaughn M. Nelson,                                :           (REGULAR CALENDAR)

                 Defendant-Appellant.              :



                                             D E C I S I O N

                                   Rendered on December 30, 2014



                 Ron O'Brien, Prosecuting Attorney, and Michael P. Walton,
                 for appellee.

                 Yeura R. Venters, Public Defender, and Timothy E. Pierce, for
                 appellant.

                   APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Defendant-appellant, Tyvaughn M. Nelson, appeals a judgment of the
Franklin County Court of Common Pleas rendered on February 20, 2014, which required
him, after having received two independent competency evaluations, to undergo a four-
month-long course of treatment and re-evaluation through the Ohio Department of
Developmental Disabilities ("ODDD") to permit the trial court to determine whether
Nelson could become competent to stand trial within one year. For the following reasons,
we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On July 29, 2013, a Franklin County Grand Jury indicted Nelson for
aggravated burglary, a felony of the first degree, with a firearm specification. Nelson pled
not guilty, and the court appointed a public defender to represent him.                  Then, on
No. 14AP-229                                                                                                 2


October 16, 2013, Nelson filed a motion raising questions about his competence to stand
trial and requesting an examination. The state agreed that an examination would be
appropriate, and the trial court ordered the assessment. Douglas Pawlarczyk, Ph.D.,
examined Nelson and authored a report. Due to the confidential nature of the evaluation,
copies were provided to chambers on December 2, 2013, and were not filed on the public
docket.
        {¶ 3} On December 19, 2013, the trial court held a hearing on Nelson's motion
concerning his competency to stand trial. The parties stipulated to Dr. Pawlarczyk's
report, and the trial court summarized and adopted, as findings of the court, the following
from the doctor's opinion:
                 It's my opinion with a reasonable degree of psychological
                 certainty that Tyvaughn Nelson does not have a serious
                 mental illness. He is mentally retarded. It is also my opinion
                 that he is presently incapable of understanding the nature and
                 objectives of the legal proceedings against him and is
                 incapable of assisting his attorney in his own defense.

(Dec. 19, 2013 Tr. 2-3.)1 However, Dr. Pawlarczyk's report did not address whether
Nelson could be restored to competency, that is, aided so as to be competent by
treatment. Further, Dr. Pawlarczyk, in his report, expressed the view that, at times during
the examination, Nelson may not have been putting his full effort into answering
questions. The state requested that ODDD conduct a second evaluation, and Nelson's
counsel did not object to the request.
        {¶ 4} The trial court, by entry filed December 20, 2013, ordered the second
evaluation. The entry was approved and signed by both parties. Pursuant to that order,
Nelson was examined a second time, this time by Ranju M. Kapahi, Ph.D., of ODDD. The
chambers of the trial court received Dr. Kapahi's report on February 10, 2014. Dr. Kapahi
concluded:



1 This court notes that the United States Supreme Court has recently chosen to substitute the term

"intellectual disability" for "mental retardation." Hall v. Florida, 134 S.Ct. 1986, 1990 (2014). While this
court agrees that sensitivity is due in any discussion of mental disabilities, the Ohio Revised Code and the
records in this case use the term "retarded." Thus, for clarity, this court shall do so also, but no pejorative
connotation from such use is intended by the appellate court.
No. 14AP-229                                                                                  3


              [I]t cannot be determined at this time whether there is a
              substantial probability that the defendant will become
              competent to stand trial within the time period allotted by
              law.    Hence, in accordance with Ohio Revised Code
              2945.38(B)(1)(a), continuing evaluation and treatment for a
              period not to exceed four months may be helpful in
              determining whether there is a substantial probability that
              Mr. Nelson will become competent to stand trial within the
              time period allotted by law if Mr. Nelson is provided with a
              course of treatment.

(Dr. Kapahi Report at 9.) Like Dr. Pawlarczyk, Dr. Kapahi noted that some of Nelson's
poor performance during Dr. Kapahi's competency evaluation might have been due to
lack of effort rather than lack of intellectual capacity. In his report, Dr. Kapahi stated:
              [T]here are indications that Mr. Nelson may not have put
              forth maximum effort due to his tendency to give up easily, his
              lack of persistence on difficult tasks and especially when
              tested on his competency to stand trial. It is unclear, at this
              time, whether he lacks the necessary knowledge of the legal
              concepts and proceedings or was essentially unwilling to fully
              participate in this evaluation, at the time.

(Dr. Kapahi Report at 9.)
       {¶ 5} On February 12, 2014, the trial court held a second hearing on Nelson's
competency to stand trial. The parties and the trial court discussed Dr. Kapahi's report on
the record, but the parties did not stipulate to the report or otherwise take steps to
formally admit it into evidence. Defense counsel for Nelson stated on the record that she
had spoken to the first evaluator, Dr. Pawlarczyk, who informed her that Nelson could not
be rendered competent to stand trial, even with treatment.
       {¶ 6} The trial court noted that in the second report to the court, the one
reporting on Dr. Kapahi's evaluation of Nelson, Dr. Kapahi suggested that a four-month
evaluation and treatment program might yield a different result on the question of
Nelson's competence. At that hearing and in response, the state informed the trial court
that, in its view, no entity was available to restore Nelson to competence. The trial court
voiced concern that Nelson would be released "without any controls [or] any supervision,"
but orally stated that Nelson was "nonrestorable" and that it would dismiss the charge
against him. (Feb. 12, 2014 Tr. 5.) No journal entry was filed to that effect.
No. 14AP-229                                                                            4


       {¶ 7} Two days later, on February 14, 2014, the trial court held another hearing,
explaining "[w]e are here today based upon a request by the State that Mr. Nelson not be
released and that he be transferred to [a developmental center] for a period not to exceed
four months for an evaluation to determine whether or not he is restorable." (Feb. 14,
2014 Tr. 2.) The assistant prosecutor then stated on the record that he had spoken with
representatives of the probation department and ODDD and learned of the option, under
R.C. 2945.38(B)(1)(a), to order Nelson to undergo up to four months of treatment and
evaluation to allow the court and parties to gain an understanding of whether he could be
restored to competence. Accordingly, the trial court determined not to dismiss the case
and, over Nelson's objection, ordered Nelson to be treated and evaluated at the
Warrensville Developmental Center for a time not to exceed four months. Thereafter, on
February 20, 2014, the trial court entered a written order referring Nelson for treatment
and a third evaluation.
       {¶ 8} On March 21, 2014, Nelson filed a notice of appeal.
II. ASSIGNMENTS OF ERROR
       {¶ 9} Nelson presents us with two assignments of error for review:
              [I.] The trial court violated Appellant's right to due process of
              law memorialized in the Fourteenth Amendment of the
              United States Constitution and Article I, Section 16 of the
              Ohio Constitution when it failed to discharge him from the
              legal proceedings below pursuant to R.C. 2945.38(B)(2)
              inasmuch as the only evidence lawfully admitted indicated
              that Appellant was not competent to stand trial and not
              restorable to competency.

              [II.] The trial court's unauthorized order made pursuant to
              R.C. 2945.371(H) as well as its consideration of the report
              prepared thereunder resulted in the issuance of a void
              judgment entry on February 20, 2014. Because this violated
              Appellant's right to due process of law memorialized in the
              Fourteenth Amendment of the United States Constitution and
              Article I, Section 16 of the Ohio Constitution the February 20,
              2014 entry must be vacated.
No. 14AP-229                                                                             5


III. DISCUSSION
      A. First Assignment of Error
      {¶ 10} For his first assignment of error, Nelson argues the trial court erred when it
ordered him to undergo continuing evaluation and treatment for a period not to exceed
four months, pursuant to R.C. 2945.38(B)(1)(a), and that it should have instead
discharged him, pursuant to R.C. 2945.38(B)(2). This argument relies on an asserted
premise that "the only evidence lawfully admitted indicates that [Nelson] was not
competent to stand trial and not restorable to competency." As this asserted premise is
inaccurate, we disagree with the conclusions therefrom that Nelson seeks to draw.
      {¶ 11} R.C. 2945.38(B)(2) provides, in relevant part:
             If the court finds that the defendant is incompetent to stand
             trial and that, even if the defendant is provided with a course
             of treatment, there is not a substantial probability that the
             defendant will become competent to stand trial within one
             year, the court shall order the discharge of the defendant.

Conversely, R.C. 2945.38(B)(1)(a) provides:
             If * * * the court is unable at that time to determine whether
             there is a substantial probability that the defendant will
             become competent to stand trial within one year if the
             defendant is provided with a course of treatment, the court
             shall order continuing evaluation and treatment of the
             defendant for a period not to exceed four months to
             determine whether there is a substantial probability that the
             defendant will become competent to stand trial within one
             year if the defendant is provided with a course of treatment.

In short, if the evidence showed that there was no substantial probability that Nelson
would become competent to stand trial within one year, discharge would have been
required. However, if the evidence did not supply this answer, the statute requires a
period of further evaluation and treatment in order for the court to make that
determination. As Nelson's assignment of error correctly indicates, the important issue is
what evidence the court had before it when it made its decision to continue further
evaluation and treatment for up to four months.
      {¶ 12} The record contains three items of evidence to this effect: Dr. Pawlarczyk's
report, hearsay statements of Dr. Pawlarczyk offered by Nelson's counsel, and Dr.
No. 14AP-229                                                                               6


Kapahi's report. Each of these items are potential sources of information that may be
evidence from which the trial court could have drawn inferences concerning the
substantial likelihood that Nelson could become competent to stand trial on the
indictments against him. Nelson asserts error in that Dr. Kapahi's report should not have
been considered, that Dr. Pawlarczyk's hearsay statements should have been, and that Dr.
Pawlarczyk's report found Nelson incompetent to stand trial and, thus, no further
information was needed. The state argues for affirming the trial court's decision and
asserts that using Dr. Kapahi's report was proper but, if it was not, then the hearsay
statements offered by Nelson's counsel also should not be considered.
       {¶ 13} First, we consider Dr. Pawlarczyk's written report. Both parties stipulated
to this report at the first hearing held December 19, 2013. Though the parties did not
precisely clarify the nature of the stipulation, we may assume, based on common practice,
that, at a minimum, the parties were agreeing that the report was authentic and
admissible. However, though the report was provided to the trial court chambers (and
though the record before this court has since been supplemented with a copy of the
report), the report was not formally filed (even under seal) with the trial court. Nelson did
not object to the trial court's ordering or using this report. Further, Nelson continues to
rely on that report for this appeal without any objection. However, even if considered in
full, this report says nothing whatsoever about whether Nelson could be made competent
through treatment. This report does nothing to advance Nelson's claim that dismissal,
pursuant to R.C. 2945.38(B)(2), would have been more appropriate than further
evaluation, pursuant to R.C. 2945.38(B)(1)(a).
       {¶ 14} The second item of evidence for our consideration supplements the first. In
a hearing on February 12, 2014, Nelson's counsel stated on the record that Dr. Pawlarczyk
had orally told her, prior to even the first competency hearing on December 19, 2013, that
Nelson could not be restored to competence. The state offered no objection to this
hearsay testimony by Nelson's trial counsel. Nelson urges on appeal that this hearsay
statement by counsel was properly before the trial court because the state, by failing to
object to Nelson's counsel's statements, approved the trial court's use of and reliance on
what amounted to hearsay testimony of his counsel. " ' "The trial court has broad
discretion in the admission * * * of evidence and unless it has clearly abused its discretion
No. 14AP-229                                                                                7


and the defendant has been materially prejudiced thereby, [an appeals] court should be
slow to interfere." ' " State v. Lowe, 69 Ohio St.3d 527, 532 (1994), quoting State v.
Maurer, 15 Ohio St.3d 239, 265 (1984), quoting State v. Hymore, 9 Ohio St.2d 122, 128
(1967). Furthermore, the "[f]ailure to object to evidence at the trial constitutes a waiver of
any challenge." Maurer at 259; see also State v. Humberto, 196 Ohio App.3d 230, 2011-
Ohio-3080, ¶ 28 (10th Dist.). Taken alone, it was permissible for the trial court to not
only admit but to rely on the statement of counsel as evidence toward the adjudication of
Nelson's competency to stand trial, as long as Nelson was not materially prejudiced
thereby. Maurer at 265.
       {¶ 15} Regarding the third item of evidence, the state asks that we consider the
report by Dr. Kapahi, even though it was not formally moved into evidence, stipulated to
by the parties, or admitted by the trial court (it is before us via a motion to supplement the
record filed August 25, 2014). Dr. Kapahi's report was provided to the chambers of the
trial court on February 10, 2014, having been ordered by that court with the approval of
both parties. Dr. Kapahi's report was discussed on the record at the February 12, 2014
hearing, without objection, by both parties and the trial court. The report indicates that
Dr. Kapahi could not determine whether Nelson is capable of being made competent and
suggests that an extended evaluation and treatment period might shed some light on the
matter. Nelson argues that, though he failed to object and, in fact, approved the order
that generated this second evaluation and report, Dr. Kapahi's report should never have
been prepared or considered, because it constituted an illegal second evaluation.
       {¶ 16} As Nelson points out, R.C. 2945.371(H) requires a second evaluation in
cases where an individual is found to be "a mentally retarded person subject to
institutionalization by court order." However, Nelson would have the appellate court
interpret this section as having an implied converse, that when a person has not been
found to be "subject to institutionalization by court order" a court is prohibited from
ordering more than one evaluation of that person's competency to stand trial. To support
this argument, Nelson urges that the canon of statutory interpretation, inclusio unius est
exclusio alterius (the inclusion of one is the exclusion of others), means that R.C.
2945.371(H) forbids whatever it does not mandate. However, this argument incorrectly
No. 14AP-229                                                                                8


presumes that division (H) is a trial court's only source of authority for ordering more
than one evaluation. In fact, R.C. 2945.37(A) reads:
               If the issue of a defendant's competence to stand trial is raised
               or if a defendant enters a plea of not guilty by reason of
               insanity, the court may order one or more evaluations of the
               defendant's present mental condition.

(Emphasis added.) R.C. 2945.371(B) further envisions more than one evaluation in
situations other than when a criminal defendant has been found to be "a mentally
retarded person subject to institutionalization by court order." R.C. 2945.37(B) reads:
               If the court orders more than one evaluation under division
               (A) of this section.

(Emphasis added.) Divisions (A) and (B) of R.C. 2945.371 make clear that a court may,
under the aegis of division (A), order "more than one evaluation" of a defendant, and
neither even suggests that such a circumstance would only occur when a defendant is
"subject to institutionalization" as contemplated in division (H). See, e.g., State v. Hix, 38
Ohio St.3d 129, 131 (1988) ("The trial court is granted the discretion to decide if more
than one psychiatric examination is necessary.") (Footnote omitted.); In re J.B., 12th Dist.
No. CA2004-09-226, 2005-Ohio-7029, ¶ 35 ("R.C. 2945.371(A) states that the court may
order one or more evaluations of the defendant's present mental condition if the
defendant raises the issue of competency. The number of evaluations to be ordered is left
to the sound discretion of the trial court."). (Citations omitted; internal quotation marks
omitted.) Moreover, even if there were a conflict between divisions (H) and (A), as Nelson
seems to suggest, R.C. 1.51 requires that we must read division (H) as an exception to
division (A), not in lieu of (A).
       {¶ 17} As a factual matter, Dr. Kapahi's report may not, in fact, be a second report.
The first report by Dr. Pawlarczyk lacked vital information including, salient to this
appeal, an opinion on whether Nelson could be made competent to stand trial. See R.C.
2945.371(G)(3)(c). Dr. Kapahi's report may not be so much a true second look at an
already fully explored situation as it is a remedial measure to complete the tasks of the
first evaluation. While Nelson's trial counsel later attempted to fill the gaps in Dr.
Pawlarczyk's report with hearsay testimony, even if such statements of counsel were to be
No. 14AP-229                                                                                       9


considered, trial counsel did not offer this additional information about Dr. Pawlarczyk's
report until Dr. Kapahi's completed evaluation and the second report were already being
discussed by counsel and the court at the hearing on February 12, 2014.2 We therefore
find that it was reasonable for the trial court to have ordered a second evaluation to
provide an expert opinion for what was required but lacking in the first expert's report.
       {¶ 18} It should also be noted that Nelson did not object when the evaluation by
Dr. Kapahi was ordered on December 20, 2013 or to the creation of Dr. Kapahi's report.
Further, Nelson did not object to the discussion of Dr. Kapahi's findings at the
February 12, 2014 hearing. While Nelson did later object to the trial court's use of that
report after informing the court of hearsay concerning Dr. Pawlarczyk's report at the
February 14, 2014 hearing, the trial court had discretion to consider it. See, e.g., Maurer
at 259.3
       {¶ 19} It is axiomatic that "[a]ppellate review is limited to the record as it existed at
the time the trial court rendered its judgment." Wiltz v. Clark Schaefer Hackett & Co.,
10th Dist. No. 11AP-64, 2011-Ohio-5616, ¶ 13. Since the trial court had and considered all
three items of evidence on February 14, 2014, ordering the four-month treatment and
evaluation it believed was necessary to render its judgment as to Nelson's competency to
stand trial, we do not violate the spirit of this rule by discussing all three items of that
evidence now. As to the procedurally based evidentiary issues of admission (stipulation
or waiver in that much of the information in this case was not formally admitted into
evidence or carefully adduced), the record is clear that neither side opposed the creation
or use of any of this material until it had already been discussed and considered by the
trial court. Fortunately, we need not sort out whether the use of any of this information
amounted to plain error because, whether or not the information had been used, the
result would be the same.
       {¶ 20} If, for example, we were inclined to disregard principles of waiver and insist
that the trial court should have ignored all evidence that had not been formally filed and


2The second evaluation was ordered on December 20, 2013.
3While Dr. Kapahi's report was not formally moved or accepted into evidence, nor stipulated to by the
parties, it was considered by all of them.
No. 14AP-229                                                                               10


admitted in strict compliance with the rules of evidence, we would be constrained to
conclude that the trial court had little information from which to determine whether
Nelson could have been made competent. That is, the most procedurally sound of the
three pieces of information is Dr. Pawlarczyk's written report. That report, however, does
not offer an opinion on the topic of whether Nelson could be made competent to stand
trial. If the trial court had either no evidence or just Dr. Pawlarczyk's written report, it
would have been "unable * * * to determine whether there [wa]s a substantial probability
that the defendant w[ould] become competent," and, thus, would have been correct to
"order continuing evaluation and treatment of the defendant for a period not to exceed
four months." R.C. 2945.38(B)(1)(a).
       {¶ 21} Conversely, if we were inclined to be "slow to interfere" out of respect for the
parties' choices not to object at the trial level and, thus, we were to consider all three
pieces of evidence, the result also would be the same. Nelson's counsel testified that Dr.
Pawlarczyk orally opined that Nelson could not become competent. But, Dr. Kapahi's
report noted Nelson's lack of effort in the evaluation process (and that he may have been
more competent with greater effort expended during the evaluation). This is consistent
with what is found within Dr. Pawlarczyk's report, that Nelson may not have been putting
forth his full effort in answering questions. Dr. Pawlarczyk's written report says nothing
about whether Nelson could become competent. Dr. Kapahi addresses that issue in his
report but concludes that he could not determine if Nelson was capable of becoming
competent. On such a mixed factual record, the trial court would have been well within its
discretion if it decided that it was unable to determine whether or not Nelson was
substantially likely to become competent and, accordingly, to order Nelson into an up-to-
four-month treatment and evaluation program. R.C. 2945.38(B)(1)(a).
       {¶ 22} Only if we were to ignore Dr. Kapahi's report while accepting Nelson's
counsel's hearsay additions to Dr. Pawlarczyk's opinion could we agree that "the only
evidence lawfully admitted indicates that [Nelson] was not competent to stand trial and
not restorable to competency." (Nelson's Brief at 1.) We cannot conclude that the trial
court considered any evidence it should not have.
       {¶ 23} On any reasonable view of the evidence in this case, the trial court did not
err when it ordered Nelson to undergo the up-to-four-month long evaluation.
No. 14AP-229                                                                               11


Nonetheless, Nelson also argues that the trial court made the finding that Nelson was not
restorable and, accordingly, that it should not have ordered him to further evaluation
regardless of the evidence. It is true that the trial court made oral comments to that effect
during a hearing. But the trial court never found through any journal entry that Nelson
was not restorable. Moreover, "[t]hat a judge speaks as the court only through the journal
of the court[,] is well settled." State ex rel. Ruth v. Hoffman, 82 Ohio App. 266, 268 (1st
Dist.1947); Fountain v. Pierce, 123 Ohio St. 609 (1931), paragraph one of the syllabus.
While the trial court did mention in its final order that it had orally found Nelson not to be
competent, "[u]ntil finality has attached, the court has inherent power to reconsider any
matter." C.C.M. Enterprises, Inc. v. U.S. Fire Ins. Co., 1st Dist. No. C-870193 (Mar. 2,
1988). To the extent, then, that the trial court made inconsistent comments within its
final entry, it appears to have been enunciating its reconsidered prior views, which is
within its inherent power to do.
       {¶ 24} Nelson's first assignment of error is overruled.
       B. Second Assignment of Error
       {¶ 25} Nelson's second assignment of error essentially repeats his argument that
the trial court was deprived of authority, by implication of R.C. 2945.371(H), to order the
second evaluation with Dr. Kapahi or to consider his report. This, argues Nelson, resulted
in a void judgment.      However, the fact that R.C. 2945.371(H) mandates a second
evaluation in cases where a person is found to be subject to institutionalization does not
suffice to deprive a court of the authority to order a second evaluation in other
situations—particularly when (as here) the parties request (or, at least, do not object to)
the second evaluation and even approve of the order requiring it. "A party will not be
permitted to take advantage of an error which he himself invited or induced." Hal Artz
Lincoln-Mercury, Inc. v. Ford Motor Co., 28 Ohio St.3d 20 (1986), paragraph one of the
syllabus. We cannot require the trial court to disregard the second evaluation or declare
its order for it void when the record shows that it was invited or induced by Nelson.
Nelson should have objected to the second evaluation before it was ordered and
undertaken rather than after its results were revealed, discussed, and relied on by the
court. Appellant's second assignment of error is overruled.
No. 14AP-229                                                                             12


IV. MOTIONS
       {¶ 26} Through various motions, arguments in their briefs, and statements offered
at oral argument, the parties are in conflict as to whether Dr. Kapahi's report and Nelson's
counsel's hearsay statements about Dr. Pawlarczyk's opinions are properly before the
appellate court. They appear in the record, have been considered in the context in which
they appear, and have been thoroughly addressed within this decision, making the
settlement of those questions moot.
V. CONCLUSION
       {¶ 27} Appellant's two assignments of error are overruled, and the judgment of the
Franklin County Court of Common Pleas is affirmed.
                                                                       Judgment affirmed.
                      TYACK and LUPER SCHUSTER, JJ., concur.
