[Cite as State v. Henderson, 2017-Ohio-2620.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                   :   JUDGES:
                                                :   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellant                     :   Hon. John W. Wise, J.
                                                :   Hon. Earle E. Wise, Jr., J.
-vs-                                            :
                                                :
DONALD R. HENDERSON                             :   Case No. 16-CA-23
                                                :
        Defendant-Appellee                      :   OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 12CR533




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   April 28, 2017




APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

GREGG MARX                                          THOMAS R. ELWING
239 West Main Street                                60 West Columbus Street
Suite 101                                           Pickerington, OH 43147
Lancaster, OH 43130
Fairfield County, Case No. 16-CA-23                                                       2

Wise, Earle, J.

       {¶ 1} Plaintiff-Appellant, the state of Ohio, appeals the June 6, 2016 entry of the

Court of Common Pleas of Fairfield County, Ohio, terminating its previous commitment

of Defendant-Appellee, Donald Henderson.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On January 7, 2011, the Fairfield County Grand Jury indicted appellee on

two counts of rape in violation of R.C. 2907.02 (Case No. 2011-CR-7).

       {¶ 3} On January 11, 2011, appellee entered a plea of not guilty by reason of

insanity and filed a motion to determine competency.         Psychiatric evaluations were

ordered. Hearings were held on March 4, and April 26, 2011. By entry filed April 29,

2011, the trial court found appellee incompetent to stand trial, and ordered treatment at

Appalachian Behavioral Healthcare for restoration to competency.

       {¶ 4} A hearing on appellee's competency was held on February 8, 2012. By

entry filed February 21, 2012, the trial court found appellee competent to stand trial.

       {¶ 5} Following an additional evaluation regarding appellee's not guilty by

reason of insanity plea, hearings were held on July 20, and September 10, 2012. By

agreed entry filed September 25, 2012, appellee was again found to be incompetent to

stand trial, and restoration treatment was ordered.

       {¶ 6} On November 30, 2012, appellee was re-indicted on the same two rape

counts (Case No. 2012-CR-533). The state dismissed the first indictment on December

18, 2012. On January 23, 2013, appellee entered a plea of not guilty by reason of

insanity.
Fairfield County, Case No. 16-CA-23                                                         3


      {¶ 7} On February 12, 2013, appellee filed a motion to dismiss on speedy trial

grounds, and on March 6, 2013, filed a motion to dismiss the indictment for violating the

one year limitation for restoration to competency pursuant to R.C. 2945.38(C).         On

March 22, 2013, the state filed a motion to retain jurisdiction pursuant to R.C. 2945.39.

      {¶ 8} By entry filed April 1, 2013, the trial court determined the maximum period

for restoration to competency had expired on January 12, 2013 as argued by appellee.

      {¶ 9} A hearing to determine the trial court's continuing jurisdiction was held on

June 12, 2013.

      {¶ 10} By entry filed July 3, 2013, the trial court denied appellee's motions to

dismiss.

      {¶ 11} A hearing on appellee's competency to stand trial was held on August 1,

2013. By entries filed August 15, 2013, the trial court found continuing jurisdiction and

committed appellee to Appalachian Behavioral Healthcare, ordered appellee to undergo

an additional evaluation to determine competency to stand trial, and found appellee was

incompetent to stand trial as of January 12, 2013.

      {¶ 12} Appellee filed a notice of appeal and this court affirmed the trial court's

decision.   State v. Henderson, 5th Dist. Fairfield No. 13-CA-61, 2014-Ohio-2991

("Henderson I").

      {¶ 13} On April 23, 2015, the trial court ordered appellee to undergo a psychiatric

evaluation by Appalachian Behavioral Healthcare to determine his competency to stand

trial. Evaluations from two different psychologists were filed on May 20, and August 5,

2015. A hearing was held on October 1, 2015. By entry filed February 2, 2016, the trial

court determined appellee remained incompetent to stand trial.            The trial court
Fairfield County, Case No. 16-CA-23                                                       4


requested additional briefing as to whether appellee's commitment should be terminated

pursuant to R.C. 2945.401(J).

       {¶ 14} Following additional briefing and psychological reports, the trial court

found appellee was not a mentally ill person subject to court order and was not a

mentally retarded person subject to institutionalization by court order, and therefore

terminated appellee's commitment. Entry filed June 6, 2016.

       {¶ 15} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶ 16} "THE TRIAL COURT ERRED WHEN IT TERMINATED ITS PREVIOUSLY

ORDERED COMMITMENT OF APPELLEE PURSUANT TO R.C. 2945.401(J) BY

JOURNAL ENTRY FILED ON JUNE 6, 2016."

                                             I

       {¶ 17} Appellant claims the trial court erred in terminating appellee's commitment.

We disagree.

       {¶ 18} R.C. 2945.401 governs termination of commitment.1            Subsection (A)

stated the following in pertinent part:



               A defendant found incompetent to stand trial and committed

       pursuant to section 2945.39 of the Revised Code or a person found not



1R.C. 2945.401 was amended effective October 12, 2016, to replace the term "mental
retardation" with "intellectual disability." The cited provisions in this opinion follow the
language in effect at the time of the trial court's decision, June 6, 2016, prior to the
effective date of the amendment. Same for R.C. 5122.01 and 5123.01 discussed later
in this opinion.
Fairfield County, Case No. 16-CA-23                                                   5


      guilty by reason of insanity and committed pursuant to section 2945.40 of

      the Revised Code shall remain subject to the jurisdiction of the trial court

      pursuant to that commitment, and to the provisions of this section, until the

      final termination of the commitment as described in division (J)(1) of this

      section.



      {¶ 19} Subsection (J)(1) provided the following:



             (J)(1) A defendant or person who has been committed pursuant to

      section 2945.39 or 2945.40 of the Revised Code continues to be under

      the jurisdiction of the trial court until the final termination of the

      commitment.      For purposes of division (J) of this section, the final

      termination of a commitment occurs upon the earlier of one of the

      following:

             (a) The defendant or person no longer is a mentally ill person

      subject to court order or a mentally retarded person subject to

      institutionalization by court order, as determined by the trial court;

             (b) The expiration of the maximum prison term or term of

      imprisonment that the defendant or person could have received if the

      defendant or person had been convicted of the most serious offense with

      which the defendant or person is charged or in relation to which the

      defendant or person was found not guilty by reason of insanity;
Fairfield County, Case No. 16-CA-23                                                  6


             (c) The trial court enters an order terminating the commitment

      under the circumstances described in division (J)(2)(a)(ii) of this section.



      {¶ 20} Subsection (E) stated the following:



             (E) In making a determination under this section regarding

      nonsecured status or termination of commitment, the trial court shall

      consider all relevant factors, including, but not limited to, all of the

      following:

             (1) Whether, in the trial court's view, the defendant or person

      currently represents a substantial risk of physical harm to the defendant or

      person or others;

             (2) Psychiatric and medical testimony as to the current mental and

      physical condition of the defendant or person;

             (3) Whether the defendant or person has insight into the

      defendant's or person's condition so that the defendant or person will

      continue treatment as prescribed or seek professional assistance as

      needed;

             (4) The grounds upon which the state relies for the proposed

      commitment;

             (5) Any past history that is relevant to establish the defendant's or

      person's degree of conformity to the laws, rules, regulations, and values of

      society;
Fairfield County, Case No. 16-CA-23                                                 7


             (6) If there is evidence that the defendant's or person's mental

      illness is in a state of remission, the medically suggested cause and

      degree of the remission and the probability that the defendant or person

      will continue treatment to maintain the remissive state of the defendant's

      or person's illness should the defendant's or person's commitment

      conditions be altered.



      {¶ 21} Subsection (G) stated the following:



             (G) In a hearing held pursuant to division (C) or (D)(1) of this

      section, the prosecutor has the burden of proof as follows:

             (1) For a recommendation of termination of commitment, to show

      by clear and convincing evidence that the defendant or person remains a

      mentally ill person subject to court order or a mentally retarded person

      subject to institutionalization by court order;

             (2) For a recommendation for a change in the conditions of the

      commitment to a less restrictive status, to show by clear and convincing

      evidence that the proposed change represents a threat to public safety or

      a threat to the safety of any person.



      {¶ 22} "Clear and convincing evidence is that measure or degree of proof which

is more than a mere 'preponderance of the evidence,' but not to the extent of such

certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will
Fairfield County, Case No. 16-CA-23                                                       8


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

to be established."     Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),

paragraph three of the syllabus. "Where the degree of proof required to sustain an

issue 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." Cross at 477.

         {¶ 23} "[T]he weight to be given the evidence and the credibility of the witnesses

are primarily for the trier of the facts." State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212 (1967), paragraph one of the syllabus. That is because the trier of fact "has the

best opportunity to view the demeanor, attitude, and credibility of each witness,

something that does not translate well on the written page." Davis v. Flickinger, 77 Ohio

St.3d 415, 418, 1997-Ohio-260, 552 N.E.2d 1159.

         {¶ 24} Appellee's competency to stand trial has been an ongoing issue for many

years. On April 23, 2015, the trial court ordered appellee to undergo a psychiatric

evaluation by Appalachian Behavioral Healthcare to determine his competency to stand

trial.   An evaluation was conducted by Russell T. Fox, Ph.D., a psychologist with

Appalachian Behavior Healthcare.        A second evaluation at appellee's request was

conducted by Bradley A. Hedges, Ph.D., LPCC-S, a psychologist with Mid-Ohio

Psychological Services, Inc. Dr. Fox opined appellee was competent to stand trial. Dr.

Hedges opined appellee was not competent to stand trial and was not able to be

restored to competency.

         {¶ 25} A hearing was held on October 1, 2015.        Each psychologist testified

consistent with their evaluations.     By entry filed February 2, 2016, the trial court
Fairfield County, Case No. 16-CA-23                                                    9


determined appellee remained incompetent to stand trial. For several reasons set forth

in the entry, the trial court found Dr. Hedges to be "a more credible expert witness" on

appellee's present competency.     The trial court requested additional briefing as to

whether appellee should remain in continued commitment or treatment and whether

appellee's commitment should be terminated pursuant to R.C. 2945.401(J).

      {¶ 26} Following additional briefing and supplemental reports by Dr. Fox and Dr.

Hedges (State's Exhibit A and Defendant's Exhibit 1, respectively), the trial court found

appellee was not a mentally ill person subject to court order and was not a mentally

retarded person subject to institutionalization by court order, and therefore terminated

appellee's commitment. Entry filed June 6, 2016.

      {¶ 27} In his report dated April 6, 2016, Dr. Fox diagnosed appellee with Mild

Intellectual Disability (formerly known as Mild Mental Retardation). Dr. Fox concluded

appellee "is a mentally retarded person subject to institutionalization by court order."

Dr. Fox advised the following:



             It is also the professional opinion of this psychologist, with

      reasonable psychological certainty, that treatment and placement within a

      Developmental Center is the least restrictive environment to meet Mr.

      Henderson's treatment needs as well as his safety and the safety of the

      community. Though a state psychiatric hospital (such as ABH) could meet

      Mr. Henderson's safety needs, a Developmental Center (such as

      Cambridge Developmental Center) could provide the structure and

      supervision necessary to ensure safety, while being better equipped to
Fairfield County, Case No. 16-CA-23                                                 10


      meet Mr. Henderson's treatment needs related to his Mild Intellectual

      Disability diagnosis.



      {¶ 28} In his report dated May 4, 2016, Dr. Hedges also diagnosed appellee with

Mild Intellectual Developmental Disorder. Dr. Hedges opined the following:



             In summary, Donald Henderson is not a mentally ill person subject

      to court ordered hospitalization because he is not currently experiencing a

      mental illness. He is not a moderately retarded person subject to court

      ordered institutionalization because he experienced Mild Intellectual

      Developmental Disorder, not moderate, and because he has not

      experienced a "comprehensive evaluation" as required by statute. * * *

      Based on the currently available information, it would appear that Mr.

      Henderson would most appropriately be managed in a supported living

      environment that provides supervision of his behavior and support in

      getting his daily needs met. Such an environment may be established

      with the assistance of the local Developmental Disability Board.

      Additionally, Alvis, Inc., in Columbus, Ohio provides services specifically

      tailored to persons with these challenges. It is strongly recommended that

      Mr. Henderson be referred to the Fairfield County Board of Developmental

      Disability for consideration for placement at a facility such as Alvis.
Fairfield County, Case No. 16-CA-23                                                      11


      {¶ 29} Appellant argues in terminating appellee's commitment, the trial court

failed to consider the factors set forth in R.C. 2945.401(E) cited above. While the

statute states "the trial court shall consider all relevant factors," the statute does not

mandate findings on the factors, and does not limit consideration to the six factors only.

(Emphasis added.)

      {¶ 30} Rather than specifically addressing the factors in R.C. 2945.401(E), the

trial court considered appellee's mental retardation and mental illness pursuant to R.C.

5123.01 and 5122.01, respectively. In its entry filed June 6, 2016, the trial court noted

the following: "Pursuant to Ohio Revised Code Sections 2945.37(A)(8), as used in

Sections 2945.37 to 2945.402 of the Ohio Revised Code, a 'mentally retarded person

subject to institutionalization by Court order' has the same meaning as in Section

5123.01 of the Ohio Revised Code." The trial court also noted:



                Title 2945 of the Ohio Revised Code itself does not contain a

      definition of the term "mental illness" or "mentally ill person subject to court

      order."     Those terms are, however, defined in Title 5122 of the Ohio

      Revised Code, in particular Sections 5122.01(A) and (B). Further, Ohio

      Revised Code Section 2945.401(B) indicates: "All other Provisions of

      Chapters 5122 and 5123 of the Ohio Revised Code regarding

      hospitalization or institutionalization shall apply to the extent they are not

      in conflict with this Chapter.    The court finds that Ohio Revised Code

      Sections 5122.01(A) and (B) are not in conflict with Chapter 2945 of the

      Ohio Revised Code. Thus, the following provisions, Ohio Revised Code
Fairfield County, Case No. 16-CA-23                                                    12


         Sections 5122.01(A) and (B) apply to the Court's determination of whether

         the Defendant is a mentally ill person subject to Court order.



         {¶ 31} Pursuant to R.C. 5123.01(O) at the time of the trial court's decision, a "

'[m]entally retarded person subject to institutionalization by court order' means a person

eighteen years of age or older who is at least moderately mentally retarded * * *."

(Emphasis added.)

         {¶ 32} R.C. 2945.401(E)(2) states a trial court shall consider "[p]sychiatric and

medical testimony as to the current mental and physical condition of the defendant or

person." The trial court heard testimony from the two doctors during the October 1,

2015 hearing and reviewed their subsequent reports. The reports included opinions on

the factors set out in R.C. 2945.401(E)(1), (3), and (5). The subsequent reports were in

conflict.   However, they both agreed appellee was mildly mentally retarded, not

moderately mentally retarded.        Based on this agreed diagnosis, pursuant to R.C.

2945.401(J)(1)(a), the trial court properly determined appellee was not a mentally

retarded person as defined in R.C. 5123.01(O) subject to institutionalization by court

order.

         {¶ 33} "Mental illness" is defined in R.C. 5122.01(A) and "[m]entally ill person

subject to court order" is defined in R.C. 5122.01(B). As noted by the trial court in its

June 6, 2016 entry, Dr. Fox "did not explicitly express an opinion as to whether the

Defendant is or is not a mentally ill person subject to Court order or whether the

Defendant has a mental illness." On the other hand, the trial court noted Dr. Hedges
Fairfield County, Case No. 16-CA-23                                                   13


opined "the Defendant is not currently experiencing a mental illness." The trial court

concluded the following on this issue:



              In sum, Dr. Fox did not explicitly find that the Defendant was

       suffering from a mental illness; he did however, note that the Defendant

       was receiving treatment not for a mental illness, but rather for a Mild

       Intellectual Disability. Dr. Hedges unequivocally found that the defendant

       is not now, nor has he in the recent past, suffered from a mental illness.

       Therefore, the Court finds, from all available evidence that the Defendant

       is not a mentally ill person subject to court order, pursuant to Ohio

       Revised Code Section 2945.401(J)(1)(a).



       {¶ 34} The trial court then ordered the following:



              The Court directs Appalachian Behavioral Healthcare to refer the

       Defendant to the Developmental Disability Board of the county in which he

       will maintain his permanent residence, which would appear to be Fairfield

       County, Ohio, and that Appalachian Behavioral Healthcare recommend

       the Developmental Disability Board consider referring the Defendant for

       placement at the Alvis, Inc., facility, in Columbus, Ohio.



       {¶ 35} We find by choosing to rely on Dr. Hedges's report, the trial court tacitly

accepted his opinions on the factors listed in R.C. 2945.401(E)(1), (3), and (5).
Fairfield County, Case No. 16-CA-23                                                      14

       {¶ 36} As for appellant's arguments involving Henderson I, that opinion

concerned the trial court's decision filed August 15, 2013. We find our opinion was

based on the status of the record at that time, and has no bearing to the present state of

the record.

       {¶ 37} Upon review, we find appellant did not meet its burden to prove by clear

and convincing evidence that appellee was a mentally ill person subject to

hospitalization by court order or a mentally retarded person subject to institutionalization

by court order under R.C. 2945.401(J). We find the record contains sufficient evidence

to support the trial court's decision to terminate appellee's commitment.

       {¶ 38} The sole assignment of error is denied.

       {¶ 39} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Delaney, P.J. and

Wise, John, J. concur.



EEW/sg 405
