[Cite as State v. Cunningham, 2016-Ohio-3050.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    :   JUDGES:
                                                 :   Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                       :   Hon. John W. Wise, J.
                                                 :   Hon. Craig R. Baldwin, J.
-vs-                                             :
                                                 :
NICHOLAS CUNNINGHAM                              :   Case No. 2015CA00224
                                                 :
        Defendant-Appellant                      :   OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2015CR0494




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    May 16, 2016




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      EUGENE O'BYRNE
Prosecuting Attorney                                 101 Central Plaza South
By: KRISTINE BEARD                                   Canton, OH 44702
Assistant Prosecuting Attorney
110 Central Plaza South, Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2015CA00224                                                      2

Farmer, P.J.

       {¶1}    On April 14, 2015, the Stark County Grand Jury indicted appellant, Nicholas

Cunningham, on one count of rape in violation of R.C. 2907.02 and one count of gross

sexual imposition in violation of R.C. 2907.05. Said charges arose from incidents in 2010

between appellant and a victim less than thirteen years old.

       {¶2}    On April 29, 2015, appellant requested a competency evaluation which the

trial court granted. Appellant was evaluated by Dr. Lynn Luna Jones who concluded

appellant was competent to stand trial.

       {¶3}    On July 7, 2015, appellant requested a second competency evaluation

which the trial court granted.    Appellant was evaluated by Dr. Robert Devies who

concluded appellant was not competent to stand trial.

       {¶4}    Hearings on the issue of competency were held on September 23, and

October 6, 2015. At the conclusion of the hearings, the trial court found appellant

competent to stand trial.

       {¶5}    On October 6, 2015, appellant pled no contest to an amended count of

sexual battery in violation of R.C. 2907.03 and the gross sexual imposition count. By

judgment entry filed October 16, 2015, the trial court found appellant guilty and ordered

a presentence investigation. By judgment entries filed November 4 and 18, 2015, the trial

court sentenced appellant to an aggregate term of thirty-six months in prison.

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

consideration. Assignment of error is as follows:
Stark County, Case No. 2015CA00224                                                      3


                                              I

       {¶7}   "THE TRIAL COURT'S DETERMINATION THAT APPELLANT WAS

COMPETENT TO STAND TRIAL WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE, IN LIGHT OF THE OVERWHELMING COMPETENT, CREDIBLE

EVIDENCE       DEMONSTRATING            APPELLANT'S        SUBSTANTIAL      COGNITIVE,

PSYCHOSOCIAL          PSYCHIATRIC,         AND      INTELLECTUAL      DEFECTS         AND

DISABILITIES."

                                              I

       {¶8}   Appellant claims the trial court's determination that he was competent to

stand trial was against the manifest weight of the evidence. We disagree.

       {¶9}   An appellate court will not disturb a competency determination if there was

"some reliable, credible evidence supporting the trial court's conclusion that appellant

understood the nature and objective of the proceedings against him." State v. Williams,

23 Ohio St.3d 16, 19 (1986). "[T]he adequacy of the data relied upon by the expert who

examined the appellant is a question for the trier of fact." Id.

       {¶10} In In the Matter of, Kristopher F., 5th Dist. Stark No. 2006CA00312, 2007-

Ohio-3259, ¶ 25, this court explained the following:



              Pursuant to R.C. 2945.37(G), a "defendant is presumed competent

       to stand trial unless it is proved by a preponderance of the evidence in a

       hearing under this section that because of his present mental condition he

       is incapable of understanding the nature and objective of the proceedings

       against him or presently assisting in his defense." In Dusky v. U.S. (1960),
Stark County, Case No. 2015CA00224                                                         4


      362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824, the Supreme Court stated that

      the test for competency is whether the defendant has a "sufficient present

      ability to consult with his lawyer with a reasonable degree of rational

      understanding and whether he has a rational as well as factual

      understanding of proceeding against him."          See also, In re Anderson,

      Tuscarawas App. No. 2001AP030021, 2002-Ohio-776, appeal not allowed,

      95 Ohio St.3d 1474, 2002 Ohio 2444, 768 N.E.2d 1182.



      {¶11} "Preponderance of the evidence" is "evidence which is of greater weight or

more convincing than the evidence which is offered in opposition to it; that is, evidence

which as a whole shows that the fact sought to be proved is more probable than not."

Black's Law Dictionary 1182 (6th Ed.1990).

      {¶12} The trial court was presented with two expert psychological opinions, one

from Robert Devies, Ph.D. and one from Lynn Luna Jones, Ph.D. Appellant argues Dr.

Devies's opinion is more compelling than the opinion of Dr. Jones.

      {¶13} Our brethren from the Fourth District in State v. Merryman, 4th Dist. Athens

No. 12CA28, 2013-Ohio-4810, ¶ 30, explained the following in reviewing a competency

determination involving opposing expert opinions:



             As the trier of fact, the trial court was in the position to determine the

      credibility of the expert witnesses. The weight to be given the evidence and

      the credibility of the witnesses are primarily for the trial court as the trier of

      fact. State v. Stewart, 4th Dist. Gallia No.91 CA24, 1992 WL 174699 (July
Stark County, Case No. 2015CA00224                                                          5

         22, 1992) citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E. 212 (1967).

         The adequacy of the "data relied upon by the expert who examined [the

         defendant] is a question for the trier of fact." Id . "Deference on these issues

         should be given 'to those who see and hear what goes on in the courtroom.'

         " State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263

         quoting State v. Cowans, 87 Ohio St.3d 68, 84, 1999-Ohio-250, 717 N.E.2d

         298 (1999). A trial court is permitted to disagree with an expert's opinion on

         competency where the trial court's decision is support by evidence in the

         record and by the court's own observations of the defendant. Were, 118

         Ohio St.3d at 456, 890 N.E.2d 263, 2008–Ohio–2762 at ¶ 52.



         {¶14} Dr. Devies testified appellant had an IQ of 53. September 23, 2015 T. at 7.

He explained a low IQ "sets a standard that suggests it is more likely than not a person

is not competent." Id. at 8. The mean IQ for people found not to be competent is 57 or

58. Id. at 9. While Dr. Devies believes IQ is a prime factor, he looks to other comorbid

conditions, i.e., autistic spectrum disorders and drug addiction. Id. at 10. Appellant has

a history of Aspergers and a drug addiction that requires Suboxone therapy. Id. at 10-

11.      Dr. Devies opined given appellant's lifelong cognitive challenges and his

developmental disorder, he could not be restored to competency within one year. Id. at

12. Dr. Devies also opined appellant's autism disorder affected his memory which could

impact his ability to be of assistance to his trial counsel, as it would be "almost near

impossible" for appellant "to have good recall and to be of assistance to counsel." Id. at

14-15.
Stark County, Case No. 2015CA00224                                                       6


       {¶15} Dr. Jones diagnosed appellant with an "intellectual disability" and concurred

his IQ could be 53. October 6, 2015 T. at 6, 10, 15-16. She classified appellant's

intellectual disability as "mild" and his "opiate use disorder" as "severe." Id. at 10, 11.

Appellant responded slowly to questions, but appeared to be cooperative. Id. at 12, 13.

Appellant was administered the Competency Assessment for Standing Trial for

Defendants with Mental Retardation. Id. at 18. The test has three sections: 1) basic legal

concepts, 2) skills to assist defense, and 3) understanding case events. Id. at 18-19.

Appellant scored high, "for a total of 94 percent correct," that score being "much higher

than the average mean score of Defendants with mental retardation that were found

competent to stand trial." Id. at 19. Dr. Jones stated appellant "was able to tell me not

only what happened at point one back in, I don't know, 2011 maybe when the police first

spoke to him about the case, and also what happened in 2015 when it came back up

again." Id. at 24. Appellant was able to relate to Dr. Jones the five year old allegations.

Id. at 25. Dr. Jones explained the basis for her opinion in finding appellant competent to

stand trial as follows (Id. at 28-29):



              THE WITNESS: Well, two things, Your Honor. First, I gave him the

       sort of structured interview like I would to a Defendant of any level of IQ,

       and he did stellar on it as far as I was concerned in just the open-ended

       questions part. I was incredibly impressed, for example, his definition of not

       guilty and how he understood that they were going to find evidence and

       reasonable doubt if I did it or not. I don't get people of much higher IQ than

       him giving answers like that. And then getting the 94 percent on that other
Stark County, Case No. 2015CA00224                                                         7


       instrument, to me - - I am not hundred percent but I am pretty sure it's the

       highest score that I have ever given that test to an individual with mental

       retardation has ever obtained.



       {¶16} As noted above, the trial court is in the best position to evaluate the opinions

of both experts and consider the underlying basis for their opinions. Also, the trial court

had the opportunity to observe the demeanor of appellant and his relationship to his

attorney.

       {¶17} While Dr. Devies premised his opinion on the belief that appellant's low IQ,

autistic spectrum disorder, and drug addiction rendered him incompetent, Dr. Jones

rested her opinion on appellant's ability to perform in a "stellar" fashion on the open-ended

questions related to case events and ability to participate in his defense.

       {¶18} At the conclusion of the hearing, the trial court determined the following

(October 6, 2015 T. at 34-35):



              Obviously from my questions of Dr. Jones it was apparent my

       primary concern here, given the IQ testing, was the ability to assist his

       counsel in his Defense, and thus my questions relating back five years. This

       isn't a five-month, five-week, five-day situation. This is five years, and that

       was troublesome to the Court given the rest of the report.

              And the primary thing I wanted to have addressed, which it was,

       clearly questions were asked that satisfied Dr. Jones. The performance on

       the additional tests given by this Defendant, the ability to relate medical
Stark County, Case No. 2015CA00224                                                     8


      terminology, all of this has led the Court to believe that, number one, he

      understands the nature of the proceedings, the pleas, he's able to relate

      that.

               And secondly and most importantly, the Court finds that he is able to

      assist his counsel in his Defense, and accordingly is, in fact, competent to

      stand trial.



      {¶19} Upon review, we find the preponderance of the evidence supports the trial

court's determination of competency.

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

      {¶21} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, P.J.

Wise, J. and

Baldwin, J. concur.




SGF/sg 502
