[Cite as State v. Decker, 2020-Ohio-1464.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                      No. 16AP-684
v.                                                 :               (C.P.C. No. 14CR-2164)

Louis Decker,                                      :           (REGULAR CALENDAR)

                 Defendant-Appellant.              :



                                             D E C I S I O N

                                      Rendered on April 14, 2020


                 On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
                 Taylor, for appellee.

                 On brief: Yeura R. Venters, Public Defender, Terrence K.
                 Scott, and Patrick T. Clark, for appellant.

                    REOPENED APPEAL from the Franklin County Court of
                                  Common Pleas

BRUNNER, J.
        {¶ 1} Defendant-appellant, Louis Decker, previously appealed a September 21,
2016 entry of the Franklin County Court of Common Pleas committing him to the
Columbus Developmental Center pursuant to R.C. 2945.39(D)(1) and 5122.01(B)(2). State
v. Decker, 10th Dist. No. 16AP-684, 2017-Ohio-4266 ("Decker I"). We affirmed the
commitment decision. Id. However, in a memorandum decision issued on December 5,
2017, we granted an application for reopening of the appeal pursuant to App.R. 26(B).
State v. Decker, 10th Dist. No. 16AP-684, ¶ 14-25 (Dec. 5, 2017) (memorandum decision)
("Decker II"). Because we find that trial counsel was ineffective in failing to adequately
contest the question of Decker's guilt and because appellate counsel was likewise ineffective
in failing to raise that issue on appeal, we vacate our prior decision and reverse.
No. 16AP-684                                                                               2


I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} Decker was indicted on April 24, 2014, for one count of rape and three counts
of gross sexual imposition arising from allegations that he fondled and digitally penetrated
a nine-year-old girl, H.W., and also forced her to touch his genitals. (April 24, 2014
Indictment.) It is undisputed that Decker is intellectually disabled and has the mentality of
a nine or ten-year-old. Decker I at ¶ 2-8. Based on a series of medical examinations, an
evaluation period of slightly less than one year, written reports of several experts, and live
hearings, the trial court found that Decker was not competent to assist in his defense and
could not be criminally tried. Id. (Tr. at 145-48).
       {¶ 3} The trial court then took up the question of whether Decker should be subject
to the continuing jurisdiction of the court as a person subject to institutionalization by court
order due to mental illness or intellectual disability. Decker I at ¶ 9. (Tr. at 150, 190, 243.)
One necessary component of that inquiry was whether there was clear and convincing
evidence that "[t]he defendant committed the offense with which the defendant [was]
charged." R.C. 2945.39(A)(2)(a). We have previously summarized the evidence presented
on that issue:
                 [A detective with the Franklin County Sheriff's Office]
                 recounted that on April 11, 2014, the FCSO received a report
                 from another law enforcement agency that H.W. had been
                 sexually abused by Decker. (Tr. at 193-94, 220.) H.W. was
                 interviewed on April 14, 2014, and the detective testified that
                 he observed that interview. (Tr. at 195-96, 221.) He testified
                 (without defense objection) that H.W. had alleged that Decker
                 touched her vagina and breast and made her touch his penis.
                 (Tr. at 195-96.)

                 The detective next testified that he interviewed Decker for over
                 two hours on April 17, 2014. (Tr. at 210-11, 220.) He testified
                 that he was not aware that Decker was intellectually disabled
                 and that Decker had been read his rights and indicated that he
                 understood. (Tr. at 209-10.) He explained that during the
                 interview Decker initially denied the allegations. (Tr. at 212.)
                 But after the detective and the other interviewers (there were
                 one to three in the room at a time) repeatedly told Decker that
                 he was lying, after they had Decker perform a "stress test," after
                 they informed him that the test showed he was lying, and after
                 they brought Decker's girlfriend into the interrogation to
                 encourage him to confess, Decker broke down and admitted he
                 had touched H.W. inappropriately. (Tr. at 200, 211-16;
No. 16AP-684                                                                             3


              Interview Video in passim). Approximately the final 20
              minutes of the interview were introduced into evidence and
              played during the hearing. (Tr. at 202.)

              During the video, on the occasions that Decker managed to
              speak intelligibly, he did not sound obviously mentally
              handicapped. (Interview Video in passim.) However, during
              much of the approximately 20-minute video depicting the end
              of the over two-hour interrogation, Decker was crying and
              hyperventilating. Id. During the video, the police and his
              girlfriend told him that he should confess and after
              approximately several minutes of sobbing, Decker admitted to
              touching H.W.'s privates. Id. at 0:00-4:15. Initially Decker
              denied that his fingers went inside H.W. at all. Id. at 12:25-
              14:15. But after prompting from the officers and repeated
              suggestions that Decker was still lying, Decker admitted that
              his fingers could have gone in slightly. Id.

Decker I at ¶ 10-12.
       {¶ 4} On direct appeal, we noted some significant unanswered questions about the
vigor of his defense and the reliability of the evidence presented to the trial court on the
question of Decker's guilt.    Id. at ¶ 22-25.     Specifically, we noted that Decker (an
intellectually disabled man prone to acquiesce and agree with any forceful suggestion) only
confessed after the detective and the other interviewers repeatedly told Decker over the
course of more than two hours that he was lying, after they brought his girlfriend into the
interrogation to encourage him to confess, and after they had Decker perform a "stress test"
and informed him that the test showed he was lying. Id. at ¶ 7, 22-23; see also Tr. at 200,
211-16; Interview Video in passim. We also observed that this confession was corroborated
only by the unsworn out of court statement of the child victim, as relayed through the
hearsay testimony of a detective, without consideration of whether a hearsay exception
enhanced the statement's reliability to the point of admissibility or whether the child victim
(who was under ten years of age) was competent to testify under Evid.R. 601(A). Decker I
at ¶ 24. Nevertheless, we observed that these issues were not raised in the trial court or on
appeal, and Decker's appellate counsel stated, during oral argument, "the 'whether he did
it part' is done and over with and I'm not disputing that." Id. at ¶ 25. (Apr. 26, 2017 Oral
Argument at 9:26:31-9:26:37.) We therefore declined to address such matters further.
Decker I at ¶ 25.
No. 16AP-684                                                                              4


       {¶ 5} On September 13, 2017, Decker (now represented by different appellate
counsel) applied to reopen the direct appeal under App.R. 26(B).             (Sept. 13, 2017
Application for Reopening.) Based on the arguments presented and an affidavit from
Decker's former appellate counsel, we found genuine questions as to whether appellate
counsel had rendered ineffective assistance in two ways: first, by failing to argue that trial
counsel had performed ineffectively, and second, by failing to assert that the trial court
erred in finding clear and convincing evidence of Decker's guilt. Decker II at ¶ 14-25.
       {¶ 6} The parties have now filed new briefing and the appeal is once again before
this Court.
II. ASSIGNMENTS OF ERROR
       {¶ 7} In this reopened appeal, Decker raises three assignments of error for review:
              [1.] The trial court violated Mr. Decker's rights to due process
              and a fair trial when it found that Mr. Decker, without clear and
              convincing evidence, committed acts of sexual assault in
              violation of R.C. 2945.39(A)(2)(a). Fifth and Fourteenth
              Amendments, United States Constitution; Article I, Section 16
              of the Ohio Constitution.

              [2.] Defense counsel provided ineffective assistance of counsel,
              in violation of the Sixth Amendment to the United States
              Constitution and Article I, Section 10 of the Ohio Constitution.

              [3.] Previous appellate counsel rendered ineffective assistance,
              in violation of Mr. Decker's rights under the Fourteenth
              Amendment to the United States Constitution, and Article I,
              Section 16 of the Ohio Constitution.

III. DISCUSSION
   A. Standard – Ineffective Assistance of Counsel
       {¶ 8} We discuss Decker's second assignment of error first, concerning ineffective
assistance of counsel. Ineffective assistance of counsel claims are reviewed using the two-
pronged approach set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). "First,
the defendant must show that counsel's performance was deficient. * * * Second, the
defendant must show that the deficient performance prejudiced the defense." Id. at 687.
In evaluating counsel's performance, "[a] court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the circumstances, the
No. 16AP-684                                                                               5


challenged action 'might be considered sound trial strategy.' " Id. at 689, quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955); see also State v. Roush, 10th Dist. No. 12AP-201, 2013-
Ohio-3162, ¶ 37. To show that a defendant has been prejudiced by counsel's deficient
performance, the "defendant must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland at 694; see also State v. Griffin, 10th Dist. No. 10AP-902, 2011-Ohio-4250, ¶ 42,
quoting State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus. "A
reasonable probability is a probability sufficient to undermine confidence in the outcome."
Strickland at 694.
   B. Second Assignment of Error – Whether Trial Counsel Rendered
      Ineffective Assistance of Counsel
       {¶ 9} As we recognized in Decker II, because Decker was accused of rape of a child,
if the trial court determined that he committed the offense and decided to institutionalize
him, the period of commitment was going to be essentially lifelong. Decker II at ¶ 22; R.C.
2945.401(J)(1)(a) through (c); R.C. 2907.02(A)(1)(b); R.C. 2907.02(B). Decker's trial
counsel also acknowledged this fact:
                Your Honor, this is a very important proceeding in Louis
                Decker's life. The lead charge on this case is rape of a child
                under ten, which carries a potential of life imprisonment. So as
                a result of this hearing, it may involve Louis being committed
                under the jurisdiction of this court for the rest of his life.

(Tr. at 164.)
       {¶ 10} Yet, despite acknowledging the gravity of the situation, Decker's defense
counsel presented neither evidence nor witnesses in his defense. (Tr. at 164, 190-242.)
Although counsel speculated during closing that, in a trial, it was "entirely possible that
th[e] interview [in which Decker confessed] would not have been able to be admitted as
evidence," defense counsel did not object to the introduction of the partial recording. (Tr.
at 233-34.) Despite the existence of numerous authorities suggesting that tactics of the sort
used by detectives in this case pose a significant danger of eliciting false confessions from
mentally disabled suspects (like Decker), counsel did not, either orally or in writing, present
such authorities or call a witness to testify regarding such matters. (Mar. 22, 2018 Decker's
Brief at 20-22.) Hall v. Florida, 572 U.S. 701, 709 (2014); Miranda v. Arizona, 384 U.S.
436, 455-56, fn. 24 (1966). (Tr. at 190-227.)
No. 16AP-684                                                                                               6


        {¶ 11} Moreover, in closing, although the rape and gross sexual imposition charges
were closely linked (and separated only by the question of whether Decker ever put his
fingers inside the victim's vagina in the course of committing gross sexual imposition),
Decker's defense counsel admitted that the State had "[p]erhaps" met its burden "with gross
sexual imposition, but not rape." (Tr. at 235.) At another point in defense counsel's closing,
she again appeared to concede Decker's guilt by arguing that no evidence was presented
that Decker had "done this more than once or that [Decker] ha[d] expressed any ideation
that he [was] going to do this again." (Tr. at 237.) In total, the hearing on whether Decker
had committed an offense that would result in lifelong confinement consisted of one
witness (the detective) testifying in one morning session, spanning just 53 pages of
transcript (including all opening and closing proceedings). (Tr. at 190-242.)
        {¶ 12} The transcript of the hearing on whether Decker committed the offense
leaves the reader with the unmistakable impression that defense counsel chose to present
only token resistance on this issue. (Tr. 150-253.) Indeed, defense counsel spent a
significant portion of her closing during the hearing arguing not about guilt but instead
about treatment Decker could receive, his propensity to reoffend, and whether he was
mentally ill. (Tr. at 236-38.) Where a lifetime of confinement was at stake, and where the
evidence against Decker was subject to a number of serious unanswered questions about
its reliability, this was deficient representation to such an extent that our confidence in the
outcome of the hearing is undermined. Strickland, 466 U.S. at 687, 694.
        {¶ 13} Decker's second assignment of error is sustained.
    C. Third Assignment of Error – Whether Appellate Counsel Rendered
       Ineffective Assistance of Counsel
        {¶ 14} App.R. 26 provides that "[a]n application for reopening shall be granted if
there is a genuine issue as to whether the applicant was deprived of the effective assistance
of counsel on appeal." App.R. 26(B)(5). We found such genuine issues and therefore
granted the application.1 Decker II at ¶ 14-25. However, the rule further instructs us in


1 The State at this juncture attempts to raise questions about whether reopening should have been granted in
Decker II based on the arguments that App.R. 26 is an unconstitutional extension of our jurisdiction and, by
its own terms, applies only to criminal cases involving convictions and sentences. (May 29, 2018 State's Brief
at 16-19.) The State failed to raise these arguments in contesting Decker's application for reopening. (Oct. 12,
2017 State's Memo. in Opp. in passim.) We therefore consider such issues to have been forfeited. But we note
that this case was a criminal case and the final appealable result (though not denominated a "conviction and
sentence") was nonetheless an order requiring Decker to serve essentially a lifetime term of involuntary
No. 16AP-684                                                                                               7


how to proceed in the reopened appeal after granting the application. Specifically, it
provides:
                 (7) If the application is granted, the case shall proceed as on an
                 initial appeal in accordance with these rules except that the
                 court may limit its review to those assignments of error and
                 arguments not previously considered. * * * The parties shall
                 address in their briefs the claim that representation by prior
                 appellate counsel was deficient and that the applicant was
                 prejudiced by that deficiency.

                 ***

                 (9) If the court finds that the performance of appellate counsel
                 was deficient and the applicant was prejudiced by that
                 deficiency, the court shall vacate its prior judgment and enter
                 the appropriate judgment. If the court does not so find, the
                 court shall issue an order confirming its prior judgment.

App.R. 26(B)(7) and (9). We are therefore also required by App.R. 26(B)(5) to address
whether Decker's appellate counsel was ineffective.
        {¶ 15} In the initial appeal of this case, appellate counsel not only did not raise trial
counsel's inefficacy, appellate counsel stated, during oral argument, "the 'whether he did it
part' is done and over with and I'm not disputing that." (Apr. 26, 2017 Oral Argument at
9:26:31-9:26:37; Jan. 11, 2017 Decker's Brief in passim.) In other words, appellate counsel,
far from decrying trial counsel's failure to vigorously defend Decker, essentially embraced
that mistake by directly conceding the issue of Decker's guilt and failing to raise
assignments of error bearing on that issue. Under the circumstances, where there were
significant unchallenged reliability questions affecting all the evidence against Decker, and
where the record makes clear that trial counsel did little to contest whether Decker
committed the offense, we cannot view appellate counsel's concession as a valid strategic
choice. Strickland, 466 U.S. at 687, 689. Because we have now found that trial counsel
was ineffective, it also is now clear that the outcome of the first appeal was altered by
appellate counsel's failure to argue the issue of trial counsel's deficient representation. Id.
at 687, 694.


confinement. App.R. 26(b)(1). Moreover, the Supreme Court of Ohio has held that we retain jurisdiction,
even after a decision has issued in a direct appeal, to entertain collateral attacks, such as an application for
reopening. State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, ¶ 20-22; Morgan v. Eads, 104 Ohio St.3d
142, 2004-Ohio-6110, ¶ 14-15, 25.
No. 16AP-684                                                                                                8


        {¶ 16} We sustain Decker's third assignment of error and vacate our decision on
Decker's first appeal. App.R. 26(B)(9).
    D. First Assignment of Error – Moot
        {¶ 17} Having determined that reversal and remand for a new hearing is warranted,
the question of whether the evidence before the trial court constituted clear and convincing
proof of Decker's guilt is moot.
IV. CONCLUSION
        {¶ 18} We find that trial counsel was ineffective in failing to adequately contest the
question of Decker's guilt for the underlying offense. Appellate counsel was also ineffective
because he failed to raise that issue on appeal. We sustain Decker's second and third
assignments of error. Decker's first assignment of error is moot. Therefore, we vacate our
prior appellate decision, reverse the decision of the Franklin County Court of Common
Pleas, and remand the matter for a new hearing.
                                                                      Prior appellate decision vacated;
                                                                    judgment reversed and remanded.

                                          KLATT, J., concurs.
                                         DORRIAN, J., dissents.

DORRIAN, J., dissenting.
        {¶ 19} I respectfully dissent. I would modify and affirm the trial court's
September 21, 2016 judgment entry.
        {¶ 20} This is a very difficult case involving a child victim, H.W., under the age of ten
and an adult male, defendant-appellant, who the court determined to be "mildly
intellectually disabled" and, as a result, not competent to stand trial and not restorable to
competency. I appreciate the majority's thoughtful reconsideration.
I. SECOND ASSIGNMENT OF ERROR: WHETHER TRIAL COUNSEL
   RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL

        {¶ 21} I dissent from the majority's sustaining of the second assignment of error
because I do not believe trial counsel provided ineffective assistance of counsel. Below I
address each of the reasons the majority found that trial counsel provided ineffective
assistance of counsel.2

2Although in its decision, the majority did not find ineffective assistance of trial counsel on these grounds, at
paragraph 4, the majority referred back to its observation in Decker I that appellant's confession was
No. 16AP-684                                                                                           9


        {¶ 22} First, the majority found appellant's counsel rendered ineffective assistance
of counsel because she provided "neither evidence nor witnesses in [appellant's] defense."
(Majority opinion at ¶ 10.) On May 26, June 28, and July 14, 2016, the trial court held
hearings regarding whether to retain jurisdiction over appellant pursuant to R.C.
2945.39(A)(2).3 Prior to those hearings, on July 30, 2014, the court conducted a hearing
regarding whether appellant was competent to stand trial. At that hearing, the state
presented and moved to admit into evidence the report of Clinical Psychologist Aracelis


"corroborated only by the unsworn out of court statement of the child victim, as relayed through the hearsay
testimony of a detective, without consideration of whether a hearsay exception enhanced the statement's
reliability to the point of admissibility or whether the child victim (who was under ten years of age) was
competent to testify under Evid.R. 601(A)." State v. Decker, 10th Dist. No. 16AP-684, 2017-Ohio-4266, ¶ 4.
Here, I note the Supreme Court of Ohio's holdings in State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267,
¶ 46, and State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, ¶ 2, and the exception to hearsay at Evid.R.
803(4). Much of Detective Schluer's testimony addressed statements made by H.W., which I would determine
were made for the purpose of medical diagnosis and treatment. Therefore, pursuant to Muttart and Arnold,
the statements were admissible and it was not necessary that the court conduct competency examinations of
H.W., pursuant to Evid.R. 601, or consider the factors in Evid.R. 807 as suggested by the majority. To the
extent the testimony addressed other statements made by H.W. which were forensic in nature, taking all other
evidence into consideration, I would find no prejudice resulted from the same.
3 The majority opinion states that the trial court's decision to commit appellant "would result in lifelong

confinement" and that a "lifetime of confinement was at stake." (Majority opinion at ¶ 11-12.) However, the
text of R.C. 2945.39(D) states:
                (1) If the court conducts a hearing as described in division (A)(2) of this
                section and if the court makes the findings described in divisions (A)(2)(a)
                and (b) of this section by clear and convincing evidence, the court shall
                commit the defendant, if determined to require mental health treatment,
                either to the department of mental health and addiction services for
                treatment at a hospital, facility, or agency as determined clinically
                appropriate by the department of mental health and addiction services or to
                another medical or psychiatric facility, as appropriate. Prior to placing the
                defendant, the department of mental health and addiction services shall
                obtain court approval for that placement. If the court conducts such a
                hearing and if it makes those findings by clear and convincing evidence, the
                court shall commit the defendant, if determined to require treatment for an
                intellectual disability, to a facility operated by the department of
                developmental disabilities, or another facility, as appropriate. In
                determining the place of commitment, the court shall consider the extent to
                which the person is a danger to the person and to others, the need for
                security, and the type of crime involved and shall order the least restrictive
                alternative available that is consistent with public safety and the welfare of
                the defendant. In weighing these factors, the court shall give preference to
                protecting public safety.
                ***
                (3) If a court makes a commitment under division (D)(1) of this section, all
                further proceedings shall be in accordance with sections 2945.401 and
                2945.402 of the Revised Code.
(Emphasis added.)
No. 16AP-684                                                                         10


Rivera, Psy.D., stating that appellant was not competent to stand trial. In that report,
Dr. Rivera noted appellant "had difficulty generalizing information into his current legal
situation and was prone to acquiescing" and "[appellant] would be unduly vulnerable to
influence during cross-examination." (Emphasis added.) (July 8, 2014 Dr. Rivera Report
at 16.) Appellant's counsel stipulated to the findings in Dr. Rivera's report.
       {¶ 23} Almost two years later, on March 18, 2016, at a hearing regarding whether
appellant had been restored to competency, appellant's counsel moved to admit the report
of Psychologist Naeem Khan, Ph.D., and presented Dr. Khan for direct examination. In the
report, Dr. Khan echoed much of what the state's expert, Dr. Rivera, stated in her report
regarding competency, noting in particular Dr. Rivera's caution that "[appellant] would be
unduly vulnerable to influence during cross examination." (Emphasis added.) (Dr. Khan's
Report at 17.) Appellant's attorney presented Dr. Khan as a witness, direct examined, and
redirect examined Dr. Khan. On redirect examination, appellant's attorney specifically
questioned Dr. Khan regarding appellant being prone to "acquiescing":
              BY MS. MURRAY:

              Q. Talking about acquiescing as being a personality trait or lack
              of understanding, there is a difference between the two, isn't
              there, acquiescing to somebody else's wishes as a function of
              perhaps being weak willed, and then acquiescing to somebody
              else's wishes because you don't understand how to make the
              decision yourself, is that a fair statement?

              A. It is. It is a fair statement, and also by their own
              characteristic, people with intellectual disability try to please,
              try to please, because they want to fit in. They don't want to
              disagree with you, because they cannot relate to challenges.

              Subjecting an individual like him to a cross-examination, that
              is a nightmare, because he acquiesces to what you say, and he
              will acquiesce to what you say. And ultimately, you can
              convince him that he could plead guilty to even a more heinous
              crime, and he would.
(Tr. at 139-40.)
       {¶ 24} At the same hearing, the state moved to admit the report of Clinical
Psychologist Joseph E. Kovesdi, PhD., to support its argument that appellant had been
restored to competency. Dr. Kovesdi stated in his report: "While [appellant] is able to
follow along in a conversation and engage in simple logic, it is important that the speaker
No. 16AP-684                                                                         11


be aware of his deficiencies. While functional, his abilities are in the lower end of the
percentile ranking in the population. It may be necessary to speak in a simpler manner,
present information a little more slowly, and give him time to process information before
moving on." (Mar. 16, 2016 Dr. Kovesdi Report at 3.) Appellant's counsel cross-examined
Dr. Kovesdi at the hearing and, in particular, asked him about the opinions of Drs. Rivera
and Khan that appellant was "prone to acquiescing to others." (Tr. at 83.) Dr. Kovesdi
agreed with that assessment:
             Q. Okay. And was prone to acquiescing to others?

             A. Yes, he is. And that one, I didn't really see much of those
             reports prior, but the acquiescing is a personality trait. It is not
             really a cognitive capacity. I could be of normal intelligence,
             very smart, and have a tendency to acquiesce; and if I
             acquiesced, that could - - I could easily, because I want to
             acquiesce, become confused.

             But I don't think we are going to use a personality trait such as
             acquiescing to determine competence. If we did, that would be
             a new area to me, let's give personality testing to see * * * if they
             are competent to stand trial. If they have certain personality
             traits, then they should not be competent to stand trial. To me,
             that is not a cognitive capacity. That is a personality trait.

             Q. Isn't it a personality trait that is common to people who have
             mild mental retardation?

             A. I would say it is associated, yes. It is not a defining trait, but
             it is more common, sure.

             Q. And would that, would being prone to acquiescing, would
             that be caused by somebody's inability to understand
             information and process information?

             A. It probably plays a role. Not everybody with mild mental
             retardation acquiesces. We probably have a larger percentage
             of people with mild mental retardation that acquiesce than
             everybody else, but again, I didn't see acquiescing as a cognitive
             capacity or any kind of trait that I have ever seen that should be
             considered in one's ability to perform. I guess if I did, I would
             start giving personality tests and say, oh, I don't care what his
             intelligence is, but he acquiesces, so we better not find him
             competent.

             ***
No. 16AP-684                                                                        12



              Q. And I appreciate you not only with the positives in your
              report expressing that there are still some problem areas for
              [appellant]. Wouldn't you agree that showing willingness to
              defer to his attorney is kind of the same as acquiescing to what
              somebody else wants?

              A. I don't know about that. I mean, I would defer to my attorney
              on certain things. I would really want to defer to my attorney,
              because I don't understand all the positives and negatives of
              that. I would really want to know what is your advice to me? I
              mean, that is what you are familiar with this. I think he would
              do that. I think he would listen to what you have to * * * say. He
              has got ability to make judgments and to think things through.

              He does have a tendency to acquiesce. I don't think that is a
              determining factor. And if we are trying to talk him into doing
              something that was totally wrong, I don't think he would
              acquiesce in that situation when all of his judgment is against
              it.

              Q. I guess I will point out the second part of that sentence. If he
              lacks comprehension of an issue - - for example, I could give
              him advice on whether to take a plea bargain or whether to go
              to trial.

              A. Okay.

              Q. But if he doesn't completely understand everything that is
              going on, what you are saying is that he would do what I tell
              him to do?

              A. Yes. He probably would. He would do what you tell him, but
              would he understand? That is the key. To me, those - -

              Q. If he didn't understand - -

              A. If he didn't understand, he would cooperate. But I think - -

              Q. He would do what I told him to do?

              A. And I probably would too.
(Tr. at 83-87.)
       {¶ 25} On May 26, 2016, the court began hearings to determine whether the criteria
of R.C. 2945.39(A)(2) had been met. The court continued those hearings on June 28, and
No. 16AP-684                                                                              13


July 14, 2016. At these hearings, the state was required to present clear and convincing
evidence that: (1) the defendant committed the offense with which defendant is charged,
and (2) the defendant is a mentally ill person subject to court order or a person with an
intellectual disability subject to institutionalization by court order. This appeal addresses,
in particular, the trial court's determination that the state presented clear and convincing
evidence that appellant committed the offenses with which he was charged—rape and gross
sexual imposition. In particular, appellant takes issue with the evidence presented by the
state to support the determination that he committed these offenses: (1) Franklin County
Sheriff's Office Detective Joe Schluer's testimony summarizing the responses of H.W.
during the child advocacy center ("CAC") interview, and (2) video evidence of the police
interrogation of appellant and Detective Schluer's testimony regarding the same. I will
discuss the majority's concern with the evidence in more detail below. However, taking
into consideration appellant's counsel's presentation of Dr. Khan's report, stipulation to
Dr. Rivera's report, and examination of the experts, including Dr. Kovesdi, I would not find
appellant's counsel was ineffective on the grounds stated by the majority, that she provided
neither evidence nor witnesses in appellant's defense.
           {¶ 26} Second, I will address the majority's second and third concerns together. The
majority found appellant's counsel rendered ineffective assistance of counsel because:
(1) counsel did not object to the admission into evidence of the video of the police
interrogation of appellant, and (2) counsel did not present any authority to support the
argument that police interrogation tactics as used here "pose a significant danger of eliciting
false confessions from mentally disabled suspects." (Majority opinion at ¶ 10.) I find this
to be the most challenging of appellant's arguments because I share the majority's concern
that all counsel should take special care to effectively examine and question the
voluntariness and reliability of any confession by a defendant who has an intellectual
disability and that courts should take special care in considering the same. Nevertheless,
considering the totality of the circumstances in this case, I would not find trial counsel was
ineffective in this regard.
           {¶ 27} Here, I am mindful of several things. First, the video confession was shown
to a trial judge in the context of an R.C. 2945.39 hearing,4 not to a jury in the context of a


4   See discussion at ¶ 28 herein.
No. 16AP-684                                                                                                14


trial. Second, appellant states at one point in his brief that his confession was involuntary;
however, he does not argue police coerced him, rather his argument goes more to the
reliability5 and weight6 of his confession.7 Third, as noted above, the trial judge was aware
of the expert witnesses' concerns regarding appellant's vulnerability to influence and his
being prone to acquiesce and could consider such evidence when weighing and considering
the video confession and testimony of Detective Schluer regarding the same.
        {¶ 28} On June 28, 2016, the state presented Detective Schluer. Detective Schluer
testified regarding his interrogation of appellant and appellant's confession during the
same interrogation.          During direct examination, appellant's counsel objected to the
detective's responses regarding the voice stress test which the detective administered to
appellant. The court permitted testimony that a voice stress test was administered but
struck from the record testimony regarding the results of the test. As noted by the majority,
appellant's counsel did not, however, object to the state introducing and playing state's
exhibit A, a portion of the interview Detective Schluer conducted with appellant–the last 21
minutes when appellant's girlfriend talked to appellant and detectives followed up with
appellant after he confessed with his girlfriend present.
        {¶ 29} Nevertheless, appellant's counsel extensively cross-examined Detective
Schluer regarding his interview of appellant. Counsel asked questions regarding whether
the detective was aware appellant was developmentally disabled or slow. Counsel asked
numerous questions regarding Detective Schluer's and his colleague, Detective Jackson's,
interrogation strategy and tactics. Counsel asked questions such as:
                 Q. So at some point she [sic] even told him he was lying?

                 ***

                 Q. * * * Detective Jackson was saying, well, maybe this was all
                 an accident. Is that a technique that is used[?]

                 ***


5 "The circumstances of [appellant's] confession cast serious doubt on its reliability." (Appellant's Brief at 23.)
6  "And under these circumstances, [appellant's] confession was not clear and convincing evidence."
(Appellant's Brief at 24.)
7 Nowhere in appellant's brief or reply brief does appellant suggest the trial court or this court should conduct

an analysis of whether the confession was voluntary. Nor does appellant point to any caselaw regarding the
factors which a court should consider to determine the voluntariness of a confession of an adult defendant
who has been determined to be mildly intellectually disabled. Appellant does not address this in his briefs.
No. 16AP-684                                                                      15


              Q. * * * [One] of you said * * * is maybe she came on to you.

              ***

              Q. How about saying something to the effect, are you a good
              guy who just made a mistake, or somebody who likes to hurt
              children?
(Tr. at 212-14.) Appellant's counsel continued:
              Q. And that - - correct me if I am wrong - - that was kind of a
              theme throughout the interview, wasn't it? Are you a good guy
              who made a mistake, or are you a bad guy who likes to molest
              children?

              A. I mean, you are going back to how you are interviewing
              somebody and how it goes forward, so, yes, we asked them
              questions.

              Q. Now, do you believe that? Do you believe there is a difference
              between a good guy that makes a mistake or a serial child
              molester?

              A. To a certain degree.

              Q. Did you believe that about [appellant], or was that an
              interview technique?

              A. I would probably say that is an interview technique on that.
(Tr. at 219.) Appellant's counsel further asked:
              Q. You said you don't normally have outsiders come in and
              participate in the interview. That is when we were talking about
              having [appellant's girlfriend] come in, right?

              A. Yes, ma'am.

              Q. Why is it that you brought her in on this interview?

              A. I think he was wanting to talk to her, and also she wanted to
              see him. So we weren't going any further - - we weren't getting
              anywhere with the interview the way we were talking. So we
              decided to bring her on in.

              Q. Okay. Now, she encouraged him to tell you guys that he did
              it, right?

              A. Yes.
No. 16AP-684                                                                          16



             Q. And that is when he confessed?

             A. Yes.
(Tr. at 214-15.) Counsel asked additional questions about positive reinforcement the
detectives gave appellant when he confessed:
             Q. Now, after [appellant's girlfriend] came in and [appellant]
             said that he had done it, if you recall watching the last 20
             minutes of the interview, Detective Jackson kind of went over
             to [appellant] and kind of patted him on the shoulder and said,
             all right, now you are doing the right think, now you are the
             good guy now, right? Do you recall that?

             A. Yes. I saw him.

             Q. [Appellant] got some positive reinforcement?

             A. Yes.

             Q. For telling you what you wanted to hear?

             A. Yes.

             Q. Nobody was patting him on the back when he was denying
             the offense, correct?

             A. Correct.

             Q. And then you have [appellant's girlfriend] leave, and you
             start talking to [appellant] again about what exactly happened?

             A. Yes.
(Tr. at 216.) Appellant's counsel also inquired whether Detective Schluer thought appellant
knew what the word "labia" meant. (Tr. at 217.)
      {¶ 30} In closing, appellant's counsel referred back to Dr. Khan's assessment that
appellant was susceptible to acquiescence:
             Further, according to Dr. Khan, [appellant] is susceptible to,
             for lack of a better word, being manipulated by others. He is a
             people pleaser. That is the nature of somebody with his
             developmental disability.

             The detective's testimony was that they went through a
             significant portion of the interview of [appellant] where he
No. 16AP-684                                                                                            17


                continuously denied that he had done these things. They tried
                different techniques with him that they went over, they called
                him a liar, and finally, in the last 20 minutes of what was over
                a two-hour interview, they bring his girlfriend in to secure a
                confession from him.

                As we pointed out in cross-examination, there was
                approximately two hours of negative reinforcement by the
                detectives. When [appellant] finally told them what they
                wanted to hear, there was positive reinforcement by Detective
                Jackson. He even did so much as shake [appellant's] hand and
                patted him on the shoulder, said he was doing a good job, didn't
                he feel better?

                They went on to question him some more even after that
                positive reinforcement. As soon as [appellant] gave them an
                answer they didn't want to hear, which was a denial of touching
                [H.W.] on her vagina or in her folds, it was, come on,
                [appellant]. Negative reinforcement to somebody like
                [appellant]. Then he eventually did confess, did indicate with
                his hands what the detectives wanted him to indicate.

                So I would ask the court to give that consideration in
                determining how much weight you are going to give to what
                [appellant] said, and I would submit to the court that it should
                be given very little weight in comparison to the other evidence
                that the state presented.

                In addition to the state putting evidence on the record to try to
                prove by clear and convincing evidence that [appellant]
                committed the offense, I would submit they have not met that
                burden with the charge of rape. Perhaps with gross sexual
                imposition, but not rape.
(Tr. at 234-35.)
        {¶ 31} Taking all this into consideration, in particular appellant's counsel's cross-
examination of Detective Schluer and closing argument, as well as my review of state's
exhibit A,8 I would not find appellant's counsel was ineffective on the grounds stated by the
majority that: (1) counsel did not object to the admission into evidence of the video of the
police interrogation of appellant, and (2) counsel did not present any authority to support


8During the police interrogation, after his confession, appellant expressed concern over and over again about
his fear of going to prison, and that: (1) H.W.'s family members would kill him, (2) he would get beat up in
prison, (3) no one would take care of his mother, (4) his girlfriend might not stay with him, and (5) he would
not receive his medications or medical treatment in prison.
No. 16AP-684                                                                           18


the argument that police interrogation tactics as used here "pose a significant danger of
eliciting false confessions from mentally disabled suspects." (Majority opinion at ¶ 10.)
       {¶ 32} Third, the majority found appellant's counsel rendered ineffective assistance
of counsel because counsel, in closing, conceded that the state "had '[p]erhaps' met its
burden 'with gross sexual imposition, but not rape.' " (Majority opinion at ¶ 11, quoting Tr.
at 235.) I have previously discussed appellant's counsel's cross-examination of Detective
Schluer regarding appellant's interrogation and H.W.'s interview. It is clear to me from this
cross-examination that appellant's counsel was, in particular, attempting to discredit the
state's evidence regarding the charge of rape. Appellant's counsel continued this effort in
closing argument by emphasizing that according to Detective Schluer, nowhere during the
CAC interview did H.W. state appellant touched her vagina or went inside of her labia.
Counsel then argued the court should give "very little weight" to appellant's confession
regarding the same given the tactics used by police interviewers. (Tr. at 235.) As noted
above, counsel summarized her argument regarding whether appellant committed the
offenses with which he was charged by stating: "In addition to the state putting evidence on
the record to try to prove by clear and convincing evidence that [appellant] committed the
offense, I would submit they have not met that burden with the charge of rape. Perhaps
with gross sexual imposition, but not rape." (Tr. at 235.)
       {¶ 33} I do not believe that counsel's particular focus on discrediting the evidence
pertaining to rape was ineffective. To the contrary, as I discuss further below, I would find
it to be effective and sound strategy. I would not find appellant's counsel rendered
ineffective assistance of counsel on these grounds.
       {¶ 34} Finally, the majority finds appellant's counsel rendered ineffective assistance
of counsel because in closing she "appeared to concede [appellant's] guilt by arguing that
no evidence was presented that [appellant] had 'done this more than once or that
[appellant] ha[d] expressed any ideation that he [was] going to do this again.' " (Majority
opinion at ¶ 11, quoting Tr. at 237.)
       {¶ 35} This statement was made in the context of appellant's counsel addressing
whether appellant is a danger to himself or others in the community and whether he should
be institutionalized—not in the context of whether he had committed the offense.
No. 16AP-684                                                                                19


Therefore, I would not find appellant's counsel rendered ineffective assistance of counsel
on these grounds and in this context.
II. THIRD ASSIGNMENT OF ERROR: WHETHER APPELLATE COUNSEL
    RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL
       {¶ 36} I would also dissent from the majority's sustaining of the third assignment of
error. Because I would not find appellant's trial counsel was ineffective, I would not find
that appellant's appellate counsel was ineffective for failing to raise the same on direct
appeal.
III. FIRST ASSIGNMENT OF ERROR: WHETHER CLEAR AND CONVINCING
    EVIDENCE SUPPORTED THE TRIAL COURT'S FINDING THAT
    APPELLANT COMMITTED THE OFFENSES WITH WHICH HE WAS
    CHARGED
       {¶ 37} The majority determines to be moot the first assignment of error. However,
because I would overrule the second and third assignments of error, I believe it is necessary
to consider the first assignment of error. As noted previously, R.C. 2945.39(A)(2) required
the court to find by clear and convincing evidence the defendant committed the offenses
with which he was charged. In State v. Decker, 10th Dist. No. 16AP-684, 2017-Ohio-4266,
we stated that "[c]lear and convincing evidence is that degree of proof that will produce in
the mind of the trier of fact a firm belief or conviction as to the facts to be established. * * *
It is more than a mere preponderance of the evidence but does not require proof beyond a
reasonable doubt." Id. at ¶ 18, citing Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph
three of syllabus.
       {¶ 38} Before considering whether the state met the burden of clear and convincing
evidence that appellant committed the offenses with which he is charged, I think it is
important to remember the purpose and context of such a finding pursuant to R.C. 2945.39.
In State v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, the Supreme Court explained
that "[t]he clear-and-convincing-evidence standard of R.C. 2945.39(A)(2) for determining
whether the defendant committed the crime charged does not violate the defendant's due-
process rights. Instead, a trial court's finding under this evidentiary standard that the
defendant has committed the offense charged is used only to determine the defendant's
degree of dangerousness." (Emphasis added.) Id. at ¶ 60. In Williams, the court further
explained: "R.C. 2945.39 is a civil statute with a primary goal of protecting the public. It is
of great significance to our due-process inquiry that R.C. 2945.39(D)(1) requires the court
No. 16AP-684                                                                               20


to order the least-restrictive commitment alternative available consistent with public safety
and the defendant's welfare, while also emphasizing that the court 'shall give preference to
protecting public safety.' " Id. at ¶ 58. Finally, the court cautioned that "[a] trial court's
determination by clear and convincing evidence under R.C. 2945.39(A)(2) that the
defendant committed the offense does not require a finding of scienter and is merely a
factor considered in determining the propriety of the commitment; it plays no role beyond
that limited purpose." (Emphasis added.) Id. at ¶ 33. I examine the first assignment of
error with the Supreme Court's statements in Williams in mind.
       {¶ 39} Appellant was charged with rape in violation of R.C. 2907.02, a felony of the
first degree. The indictment alleged that appellant "did engage in sexual conduct, to wit:
digital vaginal penetration, with H.W., * * * being less than thirteen (13) years of age, to wit:
nine (9) years of age, and the said H.W. being less than [ten] (10) years of age, to wit: nine
(9) years of age." (Indictment at Count 1.) The relevant portion of R.C. 2907.02 states:
              (A)(1) No person shall engage in sexual conduct with another
              who is not the spouse of the offender or who is the spouse of
              the offender but is living separate and apart from the offender,
              when any of the following applies:

              ***

              (b) The other person is less than thirteen years of age, whether
              or not the offender knows the age of the other person.

              ***

              (B) Whoever violates this section is guilty of rape, a felony of
              the first degree. * * * [I]f the victim under division (A)(1)(b) of
              this section is less than ten years of age, in lieu of sentencing
              the offender to a prison term or term of life imprisonment
              pursuant to section 2971.03 of the Revised Code, the court may
              impose upon the offender a term of life without parole.
(Emphasis added.)
       {¶ 40} "Sexual conduct" means "vaginal intercourse between a male and female;
anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without
privilege to do so, the insertion, however slight, of any part of the body or any instrument,
apparatus, or other object into the vaginal or anal opening of another. Penetration,
however slight, is sufficient to complete vaginal or anal intercourse." R.C. 2907.01(A).
No. 16AP-684                                                                           21


       {¶ 41} In State v. D.H., 10th Dist. No. 16AP-501, 2018-Ohio-559, this court
extensively discussed the definition of "into the vaginal or anal opening of another" in the
context of R.C. 2907.01(A) as applied to offenses committed after August 3, 2006.
(Emphasis added.) See id. at ¶ 30-40 and 54-57.
       {¶ 42} On direct examination, Detective Schluer testified appellant made an
admission that he did in fact put his fingers between H.W.'s labia. However, as noted above,
in her cross-examination of Detective Schluer regarding H.W.'s responses to the CAC
interviewer questions, appellant's counsel asked many questions regarding whether H.W.
stated that appellant engaged in conduct which would meet the definition of "sexual
conduct":
                Q. So as specifically as [H.W.] got, she said [appellant] touched
                her private area?
                A. Yes.

                Q. And she didn't say it hurt, correct?

                A. I am sorry.

                Q. She didn't say it hurt?

                A. Not that I can recall.

                Q. She didn't say his finger went inside of her, correct?

                A. I don't recall that. Not that I can recall, no.

                Q. She didn't say that he made her spread her legs?

                A. No.
(Tr. at 207.)
       {¶ 43} Appellant's counsel also asked Detective Schluer numerous questions
regarding whether appellant stated he engaged in conduct which would meet the definition
of "sexual conduct":
                Q. And then you have [appellant's girlfriend] leave, and you
                start talking to [appellant] again about what exactly happened?

                A. Yes.

                Q. And he continues to deny that he put his finger inside [H.W.]
                I think you asked specifically her vagina. He said no, correct?
No. 16AP-684                                                                         22



              A. Correct.

              Q. And then you had asked him specifically about the folds,
              correct?

              A. Yeah. I don't remember how it was worded. That is close
              enough.

              Q. I think you said labia first, right?

              A. Okay.

              Q. Do you think [appellant] knew what the word labia meant?

              A. Probably not.

              Q. You didn't explain it to him, right?

              A. I think we ended up saying - - I don't recall how we worded
              that.

              Q. Okay. Regardless of how you worded it, he said, no, I didn't,
              right?

              A. Originally he did.

              Q. Yes. That is correct. And then Detective Jackson - - and I
              think you too, it is hard to tell - - said something like, come on,
              [appellant]. Do you recall seeing [sic] that?

              A. Yes.

              Q. So that would be negative, a negative reaction to that [sic] he
              was saying. Is that a fair statement?
(Tr. at 216-18.)
       {¶ 44} Taking into consideration this court's discussion regarding the definition of
"sexual conduct" in D.H., Detective Schluer's testimony and appellant's limited statement
and demonstration depicted in state's exhibit A regarding putting his fingers between
H.W.'s labia, I am not convinced the evidence presented by the state rises to the level of
clear and convincing evidence of rape. Accordingly, I would sustain the first assignment of
error as to rape.
No. 16AP-684                                                                             23


       {¶ 45} However, I would overrule the first assignment of error as to gross sexual
imposition. Appellant was charged with three counts of gross sexual imposition, in
violation of R.C. 2907.05, felonies of the third degree. The indictment alleged appellant
"did have sexual contact with H.W., * * * the said H.W. being less than thirteen (13) years
of age, to wit: nine (9) years of age." (Indictment at Counts 2 through 4.) The relevant
portion of R.C. 2907.05 states:
              (A) No person shall have sexual contact with another, not the
              spouse of the offender; cause another, not the spouse of the
              offender, to have sexual contact with the offender; or cause two
              or more other persons to have sexual contact when any of the
              following applies:

              ***

              (4) The other person, or one of the other persons, is less than
              thirteen years of age, whether or not the offender knows the age
              of that person.

              ***

              (B) No person shall knowingly touch the genitalia of another,
              when the touching is not through clothing, the other person is
              less than twelve years of age, whether or not the offender knows
              the age of that person, and the touching is done with an intent
              to abuse, humiliate, harass, degrade, or arouse or gratify the
              sexual desire of any person.

              ***

              (C)(2) Gross sexual imposition committed in violation of
              division (A)(4) or (B) of this section is a felony of the third
              degree.
(Emphasis added.)
       {¶ 46} "Sexual contact" means "any touching of an erogenous zone of another,
including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a
female, a breast, for the purpose of sexually arousing or gratifying either person." R.C.
2907.01(B).
       {¶ 47} Considering the evidence before the trial court in the form of state's exhibit
A, Detective Schluer's testimony regarding appellant's interrogation, and his testimony
regarding H.W.'s responses to CAC interview questions and description regarding
No. 16AP-684                                                                            24


appellant's conduct, I would find the state did present clear and convincing evidence that
appellant committed gross sexual imposition.
IV. CONCLUSION
       {¶ 48} Therefore, for the reasons outlined above, I respectfully dissent from the
majority's sustaining of the second and third assignments of error and vacating our prior
appellate decision and reversing the decision of the trial court. I would address the first
assignment of error, and sustain the same only as to the rape charge, but overrule the same
as to the gross sexual imposition charges. Accordingly, I would reverse and vacate only that
portion of the trial court's September 21, 2016 judgment which finds by clear and
convincing evidence that appellant committed the offense of rape. I would modify the
judgment accordingly and affirm all other findings of the trial court, including the finding
by clear and convincing evidence that appellant committed the offenses of gross sexual
imposition. On these grounds, therefore, I would affirm the trial court's order that:
              The Court therefore ORDERS:

              1. the defendant be committed, pursuant to Section
              2945.39(D)(1), of the Ohio Revised Code, to: Columbus
              Developmental Center, 1601 W. Broad Street, Columbus, OH
              43222 which the Court finds to be the least restrictive
              commitment available consistent with public safety and the
              defendant's welfare,

              2. the Prosecuting Attorney to provide to the above place of
              commitment all information by Section 2945.39(D)(2) of the
              Ohio Revised Code,

              3. all further proceedings shall be in accordance with Sections
              2945.401 and 2945.402 of the Revised Code.
(Emphasis sic.) (Sept. 21, 2016 Entry at 2.)
