State v. DhimalState v. Dhimal
Christopher Bazeley, for appellant.
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O P I N I O N
BYRNE, P.J.
{¶ 1} In a criminal case, the Butler County Court of Common Pleas, General Division, determined that Achyut Dhimal was incompetent to stand trial, was not likely to be restored to competency, had committed the offenses of burglary and kidnapping, and
I. Facts and Procedural Background
A. Indictment, Plea, and Initial Competency Proceedings
{¶ 2} On March 4, 2024, the Butler County Grand Jury returned an indictment charging Dhimal with four counts as described below:
| Counts | Offense | Revised Code Section | Offense Level |
|---|---|---|---|
| 1 | Burglary | R.C. 2911.12(A)(1) | F2 |
| 2 | Kidnapping | R.C. 2905.01(A)(4) | F1 |
| 3 | Abduction | R.C. 2905.02(B) | F3 |
| 4 | Gross Sexual Imposition | R.C. 2907.05(A)(1) | F4 |
{¶ 3} The indictment stemmed from events that occurred on February 26, 2024. Early that morning, Dhimal allegedly broke into a family‘s home, entered the bedroom of a female minor child (“Melissa“), and restrained her against her will.1
{¶ 4} Dhimal pleaded not guilty by reason of insanity and suggested that he was incompetent to stand trial. As a result, the common pleas court ordered forensic evaluations of Dhimal. The court later found Dhimal incompetent to stand trial.2 The court ordered Dhimal to undergo treatment for up to a year to restore competency, pursuant to
{¶ 5} Almost a year later, the common pleas court conducted a competency review hearing. The next day, the court issued an entry finding that Dhimal had been restored to competency and could stand trial. But following another review hearing held almost two months later, the court ordered Dhimal to be reevaluated for competency.
{¶ 6} In anticipation of the court again finding Dhimal to be incompetent, the state filed a motion asking the court to retain jurisdiction of Dhimal pursuant to
{¶ 7} The common pleas court found during a competency hearing that Dhimal was again incompetent to stand trial and that he was “not restorable within the time allotted by law” (presumedly referring to the above-described one-year period under
{¶ 8} Over the course of two days in June 2025, the common pleas court held a hearing on the state‘s motion for the court to retain jurisdiction of Dhimal. The state presented four witnesses: Melissa, two City of Monroe police officers, and Melissa‘s mother‘s boyfriend (“Mother‘s Boyfriend“). Dhimal did not present any witnesses. We will summarize the relevant testimony below.
1. Melissa‘s Testimony
{¶ 9} At the hearing, Melissa testified that she lived in a house with her younger brother, her mother (“Mother“), and Mother‘s Boyfriend. Melissa testified that her bedroom was in the basement of the house. On the night in question, her brother invited a few friends to sleep over. Around 3:00 a.m., she “w[oke] up and [saw] somebody in [her] room,” and assumed it was her brother or one of his friends. But when the person turned toward her, she did not recognize him and realized he closed her bedroom door. She testified that she was “freaking out,” but that she waited to scream because she “didn‘t know this man” in her room, “didn‘t know if he had weapons,” and “didn‘t know what his intentions were.” At the hearing, Melissa identified Dhimal as the man who was in her bedroom that night.
{¶ 10} Melissa further testified that Dhimal “walked over to [her],” entered her bed, and “got on top of [her].” While he was on top of her, they were “face-to-face,” and he grabbed both of her wrists and held them up to her pillow. Melissa testified that she could not remember how they both got up from her bed, but when they did, she started hitting Dhimal‘s face, his arms, and “everything to get him off of [her].”
{¶ 11} Melissa testified that she moved towards her bedroom door while trying to repel Dhimal. But Dhimal began to pull her back toward her bed. He was “holding [her] arm back and holding [her] arms together.” Dhimal also put his hand over her mouth.
{¶ 13} Melissa testified that as she was straddling Dhimal to hold him down, he lifted her sweatshirt and touched her breasts. She was not wearing anything under her sweatshirt, and she recollected that while she was straddling him, he began thrusting his hips up and down and stated, “let me fuck you.”4
{¶ 14} Melissa testified that Mother and Melissa‘s brother came downstairs to her bedroom in the basement when they heard her screams. When they came downstairs, Melissa‘s mother turned on the bedroom light and held Dhimal down. Melissa then fled upstairs to tell Mother‘s Boyfriend “to get the gun.”
{¶ 15} Melissa further testified that when she went upstairs, she noticed that Dhimal brought a “Ziploc bag full of stuff” into the house, and she saw the family‘s drill sitting next to Dhimal‘s shoes near the garage door.
2. Police Testimony
{¶ 16} After Melissa‘s testimony, the state called a City of Monroe police officer, Sergeant Adam Binder, to testify. Sergeant Binder stated that he responded to a call and arrived around 2:00 a.m. to stop an “active burglary.” Upon his arrival, he was responsible for finding Dhimal‘s place of entry into the house. Sergeant Binder stated that the only
{¶ 17} Another City of Monroe police officer, Zachary Baxter, also testified at the hearing. He testified that he questioned Dhimal at the scene and asked him why he went into the home. Dhimal told him that his brother lived a few doors down and that no one would open the front door at the house, so he decided to go under the garage door to go into the house.
3. Mother‘s Boyfriend‘s Testimony
{¶ 18} Mother‘s Boyfriend also testified at the hearing. He stated that on the night in question, he left the garage door slightly open so that the cat could sleep inside. He added that the garage door of the house leads to the laundry room, and that the garage door was “typically locked” but sometimes was “left unlocked.”
{¶ 19} Mother‘s Boyfriend also testified that the family‘s house has a security system that included cameras. The security footage from the night Dhimal entered the house showed Dhimal on the porch near the front door at around 1:55 a.m. He also testified that the security system notified him that at 2:23 a.m. that morning, their garage door opened. He testified that he identified “a pair of shoes, a backpack, and a drill and a charger from [his] garage sitting on [his] kitchen table.” The drill and charger were from the garage, but the backpack was not Mother‘s Boyfriend‘s. His tools in the garage looked as though they were rummaged through.
{¶ 20} During closing arguments, Dhimal‘s counsel agreed that the state identified Dhimal as the defendant and admitted to Dhimal committing the physical acts of burglary and kidnapping (the “actus reus,” as discussed below). However, Dhimal‘s counsel disagreed with the state‘s contention that it presented sufficient evidence that Dhimal acted with the mental state (the “mens rea,” as discussed below) of purpose necessary to prove burglary and kidnapping.
5. Common Pleas Court‘s Factual Findings
{¶ 21} At the hearing, after both parties presented their closing arguments, the common pleas court orally stated its factual findings. The court found that on February 26, 2024, Dhimal committed the offenses of burglary in violation of
{¶ 22} As to the burglary offense, the court found that Dhimal entered the home through the garage door, and that he did not have permission [to] enter the house. The court also recognized that Dhimal “clearly developed the intent to commit multiple criminal offenses while trespassing inside” the home. The court explained that once Dhimal entered the garage, he “took a drill out of a box and entered the home, setting it next to some of his own items” and “proceeded to the basement.” The court also found that Dhimal entered Melissa‘s room, closed the door, lay on top of her on the bed and “grabbed
{¶ 23} As to the kidnapping offense, the common pleas court found that Dhimal‘s restraint of Melissa “was for the purpose of engaging in sexual activity against [Melissa‘s] will.” The court determined that Dhimal had the purpose of engaging in sexual contact with Melissa because he entered Melissa‘s room, shut the door, “climbed onto [Melissa‘s] bed,” “laid himself on top of [Melissa], and held her arms down.” The court also found that Dhimal continued to try to hold Melissa down and tried to restrain her when they were up from Melissa‘s bed. The court found that Dhimal lifted her “sweatshirt up, touched her breasts on her skin, and lifted his hips up off the ground, saying, let me fuck” which revealed his purpose to engage in sexual activity with Melissa.
{¶ 24} Consequently, finding that the elements of
C. Written Order and Dhimal‘s Appeal
{¶ 25} A few days after the hearing, the common pleas court issued a written order granting the state‘s motion to retain jurisdiction over Dhimal. The court found “by clear and convincing evidence,” pursuant to
II. Law and Analysis
{¶ 27} Dhimal‘s first assignment of error states:
THE TRIAL COURT‘S FINDINGS THAT DHIMAL ACTED WITH THE REQUISITE INTENT TO COMMIT KIDNAPPING AND BURGLARY IS BASED UPON INSUFFICIENT EVIDENCE.
{¶ 28} In support of his first assignment of error, Dhimal argues that the common pleas court erred in retaining jurisdiction over him because there was insufficient evidence to show that he acted with the statutorily-required mens rea of “purpose” to commit the offenses of burglary and kidnapping.
A. Background Law and Standard of Review
{¶ 29} Dhimal‘s first assignment of error concerns the common pleas court‘s application of a particular statute,
{¶ 30} With regard to such a defendant,
{¶ 31} First, the statute provides that a court or prosecutor may seek civil commitment of the defendant through a probate court action.
On the motion of the prosecutor or on its own motion, the court may retain jurisdiction over the defendant if, at a hearing, the court finds both of the following by clear and convincing evidence:
- The defendant committed the offense with which the defendant is charged.
- The defendant is a person with a mental illness subject to court order or a person with an intellectual disability subject to institutionalization by court order.
{¶ 33} If a court, as here, finds that these criteria are satisfied with respect to a defendant, the court “shall commit the defendant . . . 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 . . . or to another medical or psychiatric facility, as appropriate.”
{¶ 34} “Clear and convincing evidence is greater 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 produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” (Cleaned up.) State v. Tanner, 2025-Ohio-5689, ¶ 24 (12th Dist.).
{¶ 35} Though
B. Analysis
{¶ 36} As stated above, to retain jurisdiction over a criminal defendant, a common pleas court must make the two factual findings described in
{¶ 37} In Ohio, a defendant typically is not liable for a criminal offense unless the defendant both (1) “performs the conduct” prohibited by the criminal offense statute and (2) “has the requisite degree of culpability for each element as to which a culpable mental state is specified by the section defining the offense.”
the issue this court must resolve is not whether Dhimal committed any criminal offenses while inside the home. Rather, the issue is whether the record shows that he manifested the requisite “purpose” to support a conviction for a felony two Burglary or felony one Kidnapping that would justify the trial court retaining jurisdiction under
R.C. 2945.39 .
1. Was the common pleas court required to find mens rea?
{¶ 39} Before addressing the merits of Dhimal‘s argument, we first turn to a threshold argument raised by the state. The state, noting that
{¶ 40} First, the state cites State v. Sims, 2022-Ohio-3365 (3d Dist.), which we may consider as persuasive, but is not binding on this court. In Sims, the Third District Court of Appeals held that a trial court did not err in finding that a defendant committed the crimes with which he was charged (attempted rape, aggravated burglary, and kidnapping) and that he was a mentally ill person subject to court order. Id. at ¶ 45, 50. In doing so, the Third District concluded that the mens rea element of a criminal offense is not relevant to an
contrary to any argument raised by Sims, the State was not
required to present clear and convincing evidence that Sims acted with the requisite mens rea. Indeed, “[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.) [State v.] Williams, 126 Ohio St. 3d 65, 2010-Ohio-2453, at ¶ 33. “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.” Id. at ¶ 60.
Sims at ¶ 61. This language squarely supports the state‘s argument. But, notably, the Third District in Sims engaged in no analysis whatsoever of the text of
{¶ 41} In Williams, the Ohio Supreme Court stated—as quoted in Sims—that “[a] trial court‘s determination by clear and convincing evidence under
{¶ 42} Thus, given the lack of any basis in the text of
{¶ 43} Turning to the merits of Dhimal‘s argument, he is correct that the offenses of burglary and kidnapping include the mens rea element of purpose.
{¶ 44} The burglary statute provides that “[n]o person, by force, stealth, or deception, shall . . . [t]respass in an occupied structure . . . with the purpose to commit . . . any criminal offense.” (Emphasis added.)
{¶ 45} As relevant here, the kidnapping statute provides that, “[n]o person, by force, threat, or deception . . . shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes . . . [t]o engage in sexual activity . . . with the victim against the victim‘s will.” (Emphasis added.)
{¶ 46} On their face, the burglary and kidnapping statutes both include the mens rea of “purpose.”
{¶ 47} “A person acts purposely when it is the person‘s specific intention to cause a certain result . . .”
3. Was there sufficient evidence to prove the mens rea of purpose?
{¶ 48} The common pleas court found that Dhimal acted with the mens rea of purpose in committing the offenses of burglary and kidnapping. We find there was sufficient evidence to support both findings.
{¶ 49} As to burglary, there was evidence presented that Dhimal entered the home without permission through the partially open garage door, removed his shoes to move stealthily through the home, and took the residents’ power drill and a charger and placed them next to his shoes as if he intended to take them for his own. Further, there was
{¶ 50} As to kidnapping, there was evidence presented that Dhimal went into Melissa‘s room, closed the door, entered her bed, placed himself on top of her, restrained her wrists, and later thrusted his hips onto her while stating “let me fuck.” This evidence was sufficient to prove that Dhimal restrained Melissa and intended to engage in sexual conduct with her. Therefore, under the totality of the circumstances there was sufficient evidence for the common pleas court to determine that Dhimal acted with the purpose of engaging in sexual activity with Melissa against her will and thus committed the offense of kidnapping.
{¶ 51} Dhimal suggests that his mental state at the time of the offenses prevented him from forming the requisite mens rea. He states that “the more likely scenario” is that his brother told him to enter the home and he “then wandered around the house in a delusional state and reacted, rather than forming a purpose to act, to the things and people he encountered.” There are several problems with this argument. First, when the evidence is viewed in favor of the state (as it must be in a sufficiency analysis), the evidence suggests the contrary—that is, that Dhimal acted with the purpose to commit crimes in the home and with the purpose to engage in sexual activity with Melissa against her will. Krzywicki, 2015-Ohio-312, at ¶ 32; Morris, 2023-Ohio-2317, at ¶ 75. Second, Dhimal essentially asks us to reweigh the evidence, but that is not
4. State presented sufficient evidence to prove the mens rea of “purpose”
{¶ 52} The common pleas court did not err in retaining jurisdiction over Dhimal based on its finding that he committed the offenses of burglary and kidnapping. There was sufficient evidence before the court to prove that Dhimal acted with the mens rea of purpose required to commit burglary and kidnapping. Therefore, we overrule Dhimal‘s first assignment of error.
C. Length of Retained Jurisdiction and Common Pleas Court‘s Order
{¶ 53} Dhimal‘s second assignment of error states:
THE TRIAL COURT ERRED WHEN IT FAILED TO STATE THE TERM OF DHIMAL‘S CONFINEMENT IN ITS [ORDER].8
{¶ 54} In support of his second assignment of error, Dhimal argues that the common pleas court erred when it failed to state, in its order retaining jurisdiction, the maximum number of years that it could retain jurisdiction over him. Dhimal argues that the court‘s failure to state in its order that it could retain jurisdiction over him for a maximum of 11 years would cause “mental health agencies and other interested parties” to not be “formally . . . placed on notice of the term [Dhimal] [would] be confined.” Consequently, Dhimal asks this court to remand this case to the common pleas court to administer a nunc pro tunc entry publishing the maximum term of his commitment in the court‘s order. See State v. Rarden, 2025-Ohio-5798, ¶ 17, fn. 1 (12th Dist.) (“Nunc pro tunc entries are limited to correcting errors in judgment entries to reflect what was decided
{¶ 55} Dhimal does not point to any statute or rule that specifies that the common pleas court was required to include the maximum term of his commitment in its order. In his brief, he only cites to a Sixth District Court of Appeals opinion in which the appeals court held that “[a] nunc pro tunc entry . . . [was] the appropriate means for the trial court to correct [its] omission.” State v. Sykes, 2017-Ohio-1228, ¶ 13 (6th Dist.).
{¶ 56} Dhimal does not present any argument on why this court should follow Sykes, but only notes that the court remanded the case for the trial court to publish a nunc pro tunc entry. We emphasize that an appellate court will not “‘create arguments on behalf of an appellant because it is not the duty of an Ohio appellate court to raise arguments for the parties.‘” Mallikarjunaiah v. Shankar, 2020-Ohio-4508, ¶ 25 (12th Dist.), quoting Dudley v. Dudley, 2019-Ohio-4309, ¶ 10 (12th Dist.). Further, we see no reason why Sykes would apply in this case.
{¶ 57} Even if Dhimal pointed to any relevant statute (perhaps
{¶ 58} But even if we were to find that the common pleas court erred in not stating Dhimal‘s maximum confinement term in the court‘s order, which we do not, any such error would be harmless. Crim.R. 52(A) states that, “[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.” The court failing to state the maximum number of years the court could retain Dhimal in confinement in its order does not affect a substantial right.
{¶ 59} Accordingly, we overrule Dhimal‘s second assignment of error.
{¶ 60} Having found both of Dhimal‘s assignments of error to lack merit, we overrule both.
{¶ 61} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
J U D G M E N T E N T R Y
The assignments of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, affirmed.
It is further ordered that a mandate be sent to the Butler County Court of Common Pleas for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27.
Costs to be taxed in compliance with App.R. 24.
/s/ Matthew R. Byrne, Presiding Judge
/s/ Robin N. Piper, Judge
/s/ Mike Powell, Judge