State v. SimsState v. Sims
Appeal from Seneca County Common Pleas Court Trial Court No. 19 CR 0118
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
APPEARANCES:
Brian A. Smith for Appellant
Derek W. DeVine for Appellee
{1} Defendant-appellant, Noel G. Sims, II, (“Sims“), appeals the May 25, 2021 judgment of the Seneca County Court of Common Pleas retaining jurisdiction over him and committing him to Twin Valley Behavioral Healthcare-Moritz. For the reasons that follow, we affirm in part and reverse in part.
{2} On June 19, 2019, the Seneca County Grand Jury indicted Sims on Count One of aggravated burglary in violation of
{3} In response to Sims‘s June 21, 2019 motion contesting his competency to stand trial under
{5} Following a hearing on December 18, 2019, the trial court concluded that Sims was competent to stand trial but ordered that his mental condition at the time of the offenses charged be evaluated under
{7} On October 2, 2020, over Sims‘s objection, the trial court granted the State‘s
{8} On April 26, 2021, because the time-limit for treatment was approaching, the State filed a motion requesting that the trial court retain jurisdiction over Sims and commit him for mental-health treatment under
{9} After a hearing on May 12, 2021, the trial court determined on May 24, 2021 that Sims was not competent to stand trial and that the maximum time permitted under
{10} On October 14, 2021, Sims filed his notice of appeal. He raises three assignment of error for our review. For ease of our discussion, we will be begin by addressing Sims‘s third assignment of error, followed by his second assignment of error, then his first assignment of error.
Because the evidence did not support the trial court‘s findings the trial court abused its discretion in finding Appellant incompetent to stand trial, in violation of Appellant‘s right to Due Process under the Fifth, Sixth, and Fourteenth Amendments to the Untied States Constitution and Article I, Section 16 of the Ohio Constitution.
{11} In his third assignment of error, Sims argues that the trial court abused its discretion by determining that he was not competent to stand trial. Specifically, Sims contends that the record reflects that he has the capacity to understand the nature and object of the proceedings against him and that he is capable of assisting in preparing his defense.
Standard of Review
{12} “A trial court‘s decision on competency will not be disturbed absent an abuse of discretion.” State v. Adkins, 3d Dist. Allen No. 1-19-71, 2020-Ohio-6799, ¶ 10, quoting State v. Lechner, 4th Dist. Highland No. 19CA3, 2019-Ohio-4071, ¶ 24. “An abuse of discretion is more than a mere error in judgment; it suggests that a decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).
{13} “A criminal defendant‘s competency to stand trial * * * is a question of fact.” State v. Stutzman, 9th Dist. Wayne No. 18AP0038, 2019-Ohio-1695, ¶ 13, quoting State v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580, ¶ 92. “Deference, therefore, generally ought to be afforded to a trial court‘s competency
Analysis
{14} “Due process requires a criminal defendant be competent to stand trial.” Adkins at ¶ 11, citing State v. Berry, 72 Ohio St.3d 354, 359 (1995). “It has long been accepted that a person who lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” Id., quoting Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896 (1975). Thus, convicting an accused while he or she is considered to be legally incompetent violates the accused‘s due-process rights. Id.
{15} “The United States Supreme Court established the test for competency and requires the trial court to determine if an accused ‘has 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 the proceedings against him.‘” (Emphasis added.) Id. at ¶ 12, quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788 (1960). See also State v. Lawson, 165 Ohio St.3d 445, 2021-Ohio-3566, ¶ 50 (recognizing the application in Ohio of the competency test announced in Dusky). Ohio codified this competency test under
A defendant is presumed to be competent to stand trial. If, after a hearing, the court finds by a preponderance of the evidence that, because of the defendant‘s present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant‘s defense, the court shall find the defendant incompetent to stand trial and shall enter an order authorized by section 2945.38 of the Revised Code.
{16} “Therefore, if a defendant is capable of understanding the nature and objective of the proceedings and assisting in the defense, then the defendant is competent to stand trial.” Heatherington, 2022-Ohio-1375, at ¶ 37. “A defendant
{17} Based on our review of the record, we conclude that the trial court did not abuse its discretion by concluding that Sims was not competent to stand trial. That is, there is credible and reliable evidence supporting the trial court‘s determination that there is a preponderance of evidence that Sims was not competent to stand trial and that he could not be restored to competency in the statutory time allotted for restoration. See State v. Hoffer, 2d Dist. Montgomery No. 17241, 1999 WL 335136, *4 (May 28, 1999) (stating ““a psychiatrist‘s written report and corroborative testimony” can be sufficient evidence to support a trial court‘s competency determination), quoting State v. Stauter, 2d Dist. Greene No. 97 CA 72, 1998 WL 399907, *4 (July 17, 1998). Specifically, at the May 12, 2021 hearing Dr. Aracelis Rivera (“Dr. Rivera“), a clinical and forensic psychologist with Twin Valley Behavioral Healthcare-Moritz, testified that Sims was not competent to stand trial. (May 12, 2021 Tr. at 15-16). Further, Dr. Rivera identified State‘s Exhibit One as the report she prepared on April 21, 2021 assessing Sims‘s competency to
{18} State‘s Exhibit One reflects Dr. Rivera‘s opinion that “Sims demonstrated a reasonably thorough factual understanding but not a rational understanding of the legal proceedings“—that is, “Sims did not provide a rational account of the acts charged“; “[i]nstead, his version was infused with paranoid delusional material.” (State‘s Ex. 1). Compare State v. Halder, 8th Dist. Cuyahoga No. 87974, 2007-Ohio-5940, ¶ 118 (Boyle, M.J., J., dissenting) (“Rationally assisting with one‘s own defense presumes that one is able to make significant legal decisions about one‘s defense-with the advice counsel.“). See also United States v. Nagy, S.D.N.Y. No. 96 CR. 601(RWS), 1998 WL 341940, *7 (June 26, 1998) (“Although Nagy understands factually the roles of the lawyers and the judge, as well as the difference between a complaint and an indictment, this is insufficient to support a finding of competency. He must also be able to assist properly in his defense.“).
{19} Specifically, according to Dr. Rivera, Sims “believed he was being framed for the alleged charges, as a means of diverting attention from his mother, who reportedly kidnapped him during childhood.” (State‘s Ex. 1). See Nagy at *7
{20} In sum, Dr. Rivera concluded, “because of [Sims‘s] refractory psychotic symptoms, he lacks a rational understanding about the nature and objective of legal proceedings and lacks the capacity to assist his attorney.” (Id.). Accord Halder at ¶ 121 (Boyle, M.J., J., dissenting) (“Halder may have understood the nature and objectives of the proceedings against him, but in no way could he understand it rationally, nor could he rationally assist with his defense.“). Further, in State‘s Exhibit Two, Forman updated Dr. Rivera‘s opinion that “Sims cannot be restored to competency to stand trial in the time allotted by law” since Sims‘s “statutory time for restoration will be expiring on May 15, 2021.” (State‘s Ex. 2).
{21} Moreover, since the trial court was in the best position to determine the credibility of expert witnesses, the weight given to the evidence and the
{22} Therefore, based on our review of the record, there is reliable and credible evidence supporting the trial court‘s competency determination. Consequently, the trial court did not act arbitrarily, unreasonably, or unconscionably by concluding that Sims was not competent to stand trial and that the maximum time permitted under
{23} Therefore, Sims‘s third assignment of error is overruled.
Assignment of Error No. II
Because the trial court conducted a hearing to determine Appellant‘s competency to stand trial, pursuant to
{24} In his second assignment of error, Sims argues that the trial court erred by permitting him to waive his right to counsel and exercise his right to self-representation. Specifically, Sims contends that the trial court should have rejected his request to represent himself because he lacked the competency required to engage in self-representation.
Standard of Review
{25} “We review de novo whether a defendant knowingly, voluntarily, and intelligently waived his right to counsel.” State v. Godley, 3d Dist. Hancock No. 5-17-29, 2018-Ohio-4253, ¶ 9. “De novo review is independent, without deference to the lower court‘s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27.
Analysis
{26} “The right to counsel for the criminally accused is enshrined in both the Sixth Amendment to the United States Constitution and the Ohio Constitution.” State v. Newman, 8th Dist. Cuyahoga No. 109182, 2020-Ohio-5087, ¶ 17, citing Sixth Amendment to the United States Constitution and Article I, Section 10, Ohio Constitution. “Nevertheless, a defendant may waive his or her right to counsel and proceed pro se so long as that waiver is made voluntarily, knowingly, and intelligently.” Id., citing State v. Nelson, 1st Dist. Hamilton No. C-150480, 2016-Ohio-8064, ¶ 18. “For such a waiver to be valid though, the record must demonstrate that the trial court made a sufficient inquiry to determine that the defendant ‘fully understood and intelligently relinquished his or her right to counsel.‘” Id., quoting State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 39. “Crim.R. 44(C) further provides that ‘[w]aiver of counsel shall be in open court and the advice and waiver shall be recorded [and,] in serious offense cases the waiver shall be in writing.‘” Id. at ¶ 17, quoting Crim.R. 44(C). See also Godley at ¶ 12.
{27} This court has observed that there is no prescribed “““formula or script to be read to a defendant who states that he elects to proceed without counsel.““” Godley at ¶ 11, quoting State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 101, quoting Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379 (2004). Rather, “““[t]he information a defendant must possess in order to make an intelligent election * * * will depend on a range of case-specific factors, including the defendant‘s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.“” Id., quoting Johnson at ¶ 101, quoting Tovar at 88. “Stated differently, ‘the sufficiency of the trial court‘s inquiry will depend on the totality of the circumstances * * * ‘” Id., quoting State v. Edmonds, 12th Dist. Warren No. CA2014-03-045, 2015-Ohio-2733 ¶ 26.
{28} “Although a defendant‘s waiver of his right to counsel and decision to invoke his right of self-representation are afforded tremendous respect and
{29} “The United States Supreme Court has stated that ‘the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial * * * but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” Id., quoting Edwards, 554 U.S. at 178. See also Newman, 2020-Ohio-5087, at ¶ 19 (“Trial courts have discretion, however, to inquire beyond a defendant‘s competency to stand trial in determining whether he or she is competent to proceed pro se.“), citing
{30} “Rather, a trial court may constitutionally permit an arguably incompetent defendant to represent himself so long as the trial court is otherwise satisfied that the defendant knowingly, voluntarily, and intelligently waived counsel and elected self-representation.” Id., citing Godinez v. Moran, 509 U.S. 389, 399-402, 113 S.Ct. 2680 (1993). See also Veltman at 720 (“This standard is case-specific ‘because the “ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.““““), quoting Meyer v. Sargent, 854 F.2d 1110, 1114 (8th Cir. 1988), quoting Strickland v. Washington, 466 U.S. 668, 696, 104 S.Ct. 2052 (1984). Importantly, ““[t]he competency that is required of a defendant seeking to waive his [or her] right to counsel is the competence to waive the right, not the competence to represent himself [or herself].“” Newman at ¶ 18, quoting Godinez at 399, and citing State v. Watson, 132 Ohio App.3d 57, 63 (8th Dist. 1998). To illustrate,
[t]he United States Supreme Court has explained the distinction between a competency determination and an inquiry into the knowing and voluntary character of a rights waiver as follows:
“The focus of a competency inquiry is the defendant‘s mental capacity; the question is whether he has the ability to understand the proceedings. * * * The purpose of the ‘knowing and voluntary’ inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced.”
(Emphasis sic.) Lawson, 165 Ohio St.3d 445, 2021-Ohio-3566, at ¶ 73, quoting Godinez at 401, fn. 12, quoting Parke v. Raley, 506 U.S. 20, 28, 113 S.Ct. 517 (1992).
{31} In this case, nearly one year before the trial court‘s hearing during which it determined to retain jurisdiction over Sims and commit him to the care of a treatment facility, Sims unequivocally declared to the trial court that he wished to represent himself. In particular, on May 22, 2020, during a period when Sims was competent to stand trial, Sims asked to represent himself. Thereafter, Sims executed a written waiver of counsel on May 28, 2020 reflecting that his waiver of counsel was knowing, intelligent, and voluntary. However, subsequent to Sims‘s knowing, intelligent, and voluntary waiver of counsel, the trial court concluded on February 2 and May 24, 2021 (after the May 12, 2021 hearing during which Sims reasserted that he wished to represent himself) that Sims was not competent to stand trial.
{32} Here, Sims contends that the trial court erred by permitting him to represent himself during the May 12, 2021 hearing because he lacked the
{33} Nonetheless, based on our discussion in Sims‘s first assignment of error, we need not reach that issue in this case. “Unlike in cases of criminal incarceration, the constitutional right to counsel in civil commitment proceedings originates solely from the due process clause.” State v. Jackson, 1st Dist. Hamilton No. C-130240, 2014-Ohio-613, ¶ 10, citing In re Fisher, 39 Ohio St.2d 71, 82 (1974). See In re Moser, 124 Ohio App.3d 117, 122 (2d Dist. 1997) (“A person‘s right to counsel at a civil commitment proceeding is afforded not only by statute, but also by constitutional guarantees of due process of law.“). See also United States v. O‘Laughlin, 934 F.3d 840, 841 (8th Cir. 2019) (holding that “a civil commitment proceeding * * * is not a criminal prosecution for purposes of the Sixth Amendment“); Veltman at 721 (noting that due process protections apply to civil-
{34} Consequently, by logical extension, a person subject to commitment proceedings under
{35} Based the specific facts and circumstances of this case, we conclude that Sims validly waived his right to counsel at the involuntary-commitment proceeding conducted under
{36} Furthermore, the record reflects that Sims had sufficient knowledge of the particular facts and circumstances of his individual case and that he possessed sufficient competence to understandingly and wisely make the waiver decision. Even though the trial court concluded that Sims was incompetent to stand trial, the record reflects that the trial court‘s competency determination largely hinged on Sims‘s irrational accounting of the underlying matter. Importantly, State‘s Exhibit
{¶37} Therefore, after carefully reviewing the record before us, we conclude that the totality of the circumstances reflects that Sims possessed sufficient competence to understandingly and wisely waive representation by counsel and engage in self-representation. Accord Veltman at 722 (concluding that the totality of the circumstances in the case reflected that “Veltman possessed sufficient mental capacity to waive his * * * right to counsel“).
{¶38} For these reasons, Sims‘s second assignment of error is overruled.
Assignment of Error No. I
Because the trial court erred in finding that Appellant committed the offenses with which he was charged, and that Appellant was a mentally ill person subject to court order, the court erred in retaining jurisdiction over Appellant pursuant to
R.C. 2945.39(A)(2) , in violation of Appellant‘s right to Due Process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution.
{¶39} In his first assignment of error, Sims argues that the trial court erred by retaining jurisdiction over him and committing him to Twin Valley Behavioral
Standard of Review
{¶40} “In certain instances,
{¶41} “Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.” Id., quoting Cross v. Ledford, 161 Ohio St. 469, 477 (1954). “It is more than a mere preponderance of the evidence but
Analysis
{¶42} When a trial court makes the appropriate ”
{¶43} However, “[i]f the court does not make both
{¶44}
Under
R.C. 2945.401(J)(1)(a) through(c) , a commitment pursuant toR.C. 2945.39 terminates upon the earlier of (a) the trial court‘s determination that the defendant is no longer a mentally ill person subject to hospitalization by court order, (b) the expiration of the maximum prison term the defendant could have received if the defendant had been convicted of the most serious offense charged, or (c) the trial court‘s termination of the commitment underR.C. 2945.401(J)(2)(a)(ii) , which requires findings that the defendant is competent to stand trial and is no longer a mentally ill person subject to hospitalization by court order.
Id. at ¶ 17. Importantly, “[i]f the trial court‘s jurisdiction is terminated pursuant to
{¶45} Here, proceeding under
{¶46} “The phrases ‘mental illness’ and ‘mentally ill person subject to court order’ are statutorily defined terms of art.” Weaver, 2018-Ohio-2998, at ¶ 29, citing
- Represents a substantial risk of physical harm to self as manifested by evidence of threats of, or attempts at, suicide or serious self-inflicted bodily harm;
- Represents a substantial risk of physical harm to others as manifested by evidence of recent homicidal or other violent behavior, evidence of recent threats that place another in reasonable fear of violent behavior and serious physical harm, or other evidence of present dangerousness;
- Represents a substantial risk and immediate risk of serious physical impairment or injury to self as manifested by evidence that the person is unable to provide for and is not providing for the person‘s basic physical needs because of the person‘s mental illness and that appropriate provision for those needs cannot be made immediately available in the community;
- Would benefit from treatment for the person‘s mental illness and is in need of such treatment as manifested by evidence of behavior
that creates a grave and imminent risk to substantial rights of others or the person; - (a) Would benefit from treatment as manifested by evidence of behavior that indicates all of the following:
- The person is unlikely to survive safely in the community without supervision, based on a clinical determination.
- The person has a history of lack of compliance with treatment for mental illness and one of the following applies:
- At least twice within the thirty-six months prior to the filing of an affidavit seeking court-ordered treatment of the person under
section 5122.111 of the Revised Code , the lack of compliance has been a significant factor in necessitating hospitalization in a hospital or receipt of services in a forensic or other mental health unit of a correctional facility, provided that the thirty-six-month period shall be extended by the length of any hospitalization or incarceration of the person that occurred within the thirty-six-month period. - Within the forty-eight months prior to the filing of an affidavit seeking court-ordered treatment of the person under
section 5122.111 of the Revised Code , the lack of compliance resulted in one or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical harm to self or others, provided that the forty-eight-month period shall be extended by the length of any hospitalization or incarceration of the person that occurred within the forty-eight-month period.
- At least twice within the thirty-six months prior to the filing of an affidavit seeking court-ordered treatment of the person under
- The person, as a result of the person‘s mental illness, is unlikely to voluntarily participate in necessary treatment.
- In view of the person‘s treatment history and current behavior, the person is in need of treatment in order to prevent a relapse or deterioration that would be likely to result in substantial risk of serious harm to the person or others.
{¶47} It is within the trial court‘s discretion as to what evidence to review when making its determination under
{¶48} Here, the trial court concluded that the State presented clear and convincing evidence that Sims is a mentally ill person subject to court order. In State‘s Exhibit One, Dr. Rivera concluded that Sims suffers from a mental illness in the psychotic spectrum—namely, schizoaffective disorder. According to Dr. Rivera, Sims
has a substantial disorder or [sic] thought (i.e., paranoid and grandiose delusions, mood (irritability), perception (i.e., Mr. Sims has a history of auditory hallucinations) that grossly impair his judgment (i.e., Mr. Sims has a history of non-compliance with medication leading to
psychiatric decompensation), behavior (i.e., While in the community, he has failed to follow through with outpatient mental health treatment)[,] capacity to recognize reality (i.e., Mr. Sims lacks insight into his mental illness and need for ongoing medication and treatment to maintain his psychiatric stability and functioning.)
(Emphasis sic.) (State‘s Ex. 1). Significantly, Dr. Rivera emphasized that, “[d]espite being compliant with medications, Mr. Sims continues to experience refractory psychotic symptoms (i.e., flat affect, paranoia, irritability, thought disorganization and delusions).” (Id.).
{¶49} In addition, the record reflects that Sims has a history of criminal conduct, including criminal convictions for trafficking in drugs and juvenile-delinquency adjudications. Further, the record reflects that Sims “has been hospitalized on at least five separate occasions” because of his mental illness. (State‘s Ex. 1). Consequently, based on that evidence along with the evidence presented constituting the offenses charged, we conclude that there is sufficient evidence supporting the trial court‘s conclusion that there is clear and convincing evidence that Sims is a mentally ill person subject to court order.
{¶50} Furthermore, there is sufficient evidence in the record supporting the trial court‘s conclusion that there is clear and convincing evidence that Sims committed the offenses of which he was charged. In this case, Sims was charged with attempted rape in violation of
{¶51}
{¶52}
{¶53}
(A) No person, by force, stealth, or deception, shall trespass in an occupied structure * * *, when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical harm on another.
The same definition of force that we discussed above applies to the crime of aggravated burglary. See
(B) No 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:
* * *
(4) To engage in sexual activity, as defined in
section 2907.01 of the Revised Code , with the victim against the victim‘s will.
{¶55} “Kidnapping under
“Ohio law is clear that ‘[a]n offense under
R.C. 2905.01 does not depend on the manner in which an individual is restrained. * * * Rather, it depends on whether the restraint “is such as to place the victim in the offender‘s power and beyond immediate help, even though temporarily.” * * * The restraint “need not be actual confinement, but may be merely compelling the victim to stay where he is.“‘”* * *
{¶56} At the May 12, 2021 hearing, Detective Shilo Frankart (“Detective Frankart“) of the Fostoria Police Department, who investigated the case, testified that Sims was discovered by a nurse in the victim‘s room at the Good Shepherd Home, which is located “[i]n the Seneca County portion of Fostoria” on June 2, 2019 at approximately 6:30 a.m. (May 12, 2021 Tr. at 25). According to Detective Frankart, Sims was observed “naked” and “on top of [the victim] as she was laying on the bed clothed with a nightgown on“; however, her “[u]ndergarments had been removed.” (Id. at 26).
{¶57} Detective Frankart testified that the victim told him that she “never had met” Sims, did not “know who he was,” and “[d]id not invite him into the room.” (Id. at 28). He testified that the victim described that Sims “attempted several times to turn her over onto her stomach and she was resisting that attempt.” (Id. at 30). He further testified that the victim was assessed by medical professionals, who “found bruising to her body, redness to her vaginal area as well.” (Id. at 29). (See also id. at 31-32). In particular, Detective Frankart identified that the victim sustained a bruise to her upper left arm.
{¶59} In sum, Detective Frankart testified that his investigation revealed that Sims restrained the victim‘s liberty by force to engage in sexual activity and that Sims attempted to engage in sexual conduct with the victim by force or threat of force.
{¶60} On appeal, Sims argues that there is insufficient evidence that he attempted to engage in sexual conduct with the victim by force or threat of force or that he restrained the victim, by force, to engage in that sexual activity. Moreover, Sims contends that there is insufficient evidence that he “used ‘force, stealth or deception,‘” to trespass in the Good Shepherd Home. (Appellant‘s Brief at 9).
{¶62} Therefore, applying the appropriate evidentiary lens, we conclude the trial court had sufficient evidence before it to satisfy the clear-and-convincing burden of proof based on the evidence presented. Accord McCain, 2019-Ohio-4392, at ¶ 13, citing Schiebel, 55 Ohio St.3d at 74. Specifically, Detective Frankart testified that Sims was discovered on top of the victim in her bed in the Good Shepherd Home in the early morning and that he had removed her undergarments. See State v. Stevens, 3d Dist. Allen No. 1-14-58, 2016-Ohio-446, ¶ 27. Likewise, there is evidence in the record that the victim was asleep when the offense began. See id. In addition, the record reflects that the victim is an elderly resident of the
{¶63} Moreover, for an offender to commit rape, the statute does not require that a victim prove that he or she physically resisted the offender.
{¶64} Thus, based on the totality of the circumstances of this case, the trial court had sufficient evidence to conclude by clear and convincing evidence that Sims attempted to engage in sexual conduct with the victim by force or threat of force and that he restrained the victim, by force, to engage in that sexual activity.
{¶65} Turning to Sims‘s aggravated-burglary charge, even though “stealth is not defined by the Ohio Revised Code,” the term has been defined to mean “‘any secret, sly or clandestine act to avoid discovery’ when attempting to gain entry into a premises.” State v. Evans, 9th Dist. Summit No. 28924, 2019-Ohio-603, ¶ 19, quoting State v. Fleming, 9th Dist. Lorain Nos. 15CA010792 and 15CA010793, 2017-Ohio-871, ¶ 9. Detective Frankart testified that Sims entered the Good Shepherd Home through a silent-alarmed entrance (which is not available to the public) and that his entrance went unnoticed until he was found in the victim‘s room. Furthermore, Detective Frankart testified that the victim did not invite Sims into her room.
{¶66} Based on this evidence, the trial court had sufficient evidence to conclude that Sims “acted in the required ‘secret’ fashion to avoid detection.” State v. Trikilis, 9th Dist. Medina No. 04CA0096-M, 2005-Ohio-4266, ¶ 32. In other
{¶67} Finally, to the extent that the State is required to establish that Seneca County is the proper venue at a hearing pertaining to whether a trial court is permitted to retain jurisdiction over a defendant whose competence to stand trial has not been restored, we conclude that the State presented sufficient evidence of venue. That is, based on our review of the record, there is clear and convincing evidence that Sims committed the offenses of which he was charged in Seneca County, Ohio. See, e.g., State v. Patterson, 3d Dist. Hancock No. 5-11-15, 2012-Ohio-2839, ¶ 73.
{¶68} Nevertheless, Sims attacks much of Detective Frankart‘s testimony as inadmissible hearsay. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
{¶69} Before proceeding, this court must pause to address the application of the Ohio Rules of Evidence in this matter. See Weaver, 2018-Ohio-2998, at ¶ 13. We conclude that although a hearing pertaining to whether a trial court is permitted to retain jurisdiction over a defendant whose competence to stand trial has not been restored must comport with the requirements of due process, it is not a criminal
{¶70} Generally, “[t]he decision to admit or exclude evidence lies in the sound discretion of the trial court.” Weaver at ¶ 10. An abuse of discretion suggests
{¶71} It was not plain error for the trial court to admit Detective Frankart‘s testimony at Sims‘s hearing. Importantly,
{¶34} Here, based on our review of the record, Sims had the opportunity to cross-examine Detective Frankart and Sims did not offer any evidence in his defense. Accord Ryan, 2007-Ohio-4743, at ¶ 14. Likewise, since the trial court was in the better position to assess witness credibility, it apparently chose to believe the testimony presented by Detective Frankart. Accord Bahns at ¶ 19. Consequently, the trial court‘s admission of Detective Frankart‘s testimony did not constitute a defect affecting Sims‘s substantial rights. See id.
{¶35} Finally, Sims argues that the trial court failed to merge the kidnapping and attempted-rape offenses of which the trial court concluded that he committed. Specifically, Sims contends that double-jeopardy protections—specifically the
{¶36} Nevertheless, Sims contends that the trial court erred by committing him to Twin Valley Behavioral Healthcare-Moritz for a maximum of 30 years. We agree. Because a trial court can only commit a defendant for the length of the maximum prison term he or she could have received for the most serious offense charged, the applicable maximum term in this case is 11 years. See State v. Coleman, 6th Dist. Lucas No. L-15-1071, 2016-Ohio-1111, ¶ 15 (“The trial court is permitted to commit appellant for psychiatric treatment only for the maximum amount of time appellant would have received on the most serious offense.“);
{¶37} In sum, based on our review of the record, we conclude that the trial court did not err by retaining jurisdiction of Sims and committing him to Twin Valley Behavioral Healthcare-Moritz. That is, clear and convincing evidence established that Sims committed the offenses of which he was charged and he is a mentally-ill person subject to a court order. However, we conclude that the trial court erred by committing Sims for a maximum term of 30 years.
{¶38} For these reasons, Sims‘s first assignment of error is sustained in part and overruled in part.
{¶39} Having found error prejudicial to the appellant herein in the particulars assigned and argued in the first assignment of error, in part, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion. Having found no error prejudicial to the appellant herein in the particulars assigned and argued in the second and third assignments of error, we affirm the judgment of the trial court.
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
MILLER and WILLAMOWSKI, J.J., concur in Judgment Only.