STATE OF OHIO v. WILLIAM WEAVER
C.A. No. 17CA0092-M
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
July 30, 2018
[Cite as State v. Weaver, 2018-Ohio-2998.]
CALLAHAN, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 16CR0487
Dated: July 30, 2018
CALLAHAN, Judge.
{1} Defendant-Appellant, William Weaver, appeals from the judgment of the Medina County Court of Common Pleas, committing him to an in-patient psychiatric facility. This Court affirms.
I.
{2} The police arrested Mr. Weaver after a seven-year-old girl told her family that he had hugged her, kissed her, and forced his tongue into her mouth on several occasions. He was indicted on two counts of kidnapping and two specifications alleging that he had acted with a sexual motivation. Following a brief period of discovery, his appointed counsel requested a competency evaluation, and the trial court referred him to the Psycho-Diagnostic Clinic of Summit County. Dr. Michael Biscaro, a psychologist at the clinic, conducted Mr. Weaver‘s evaluation and issued a written report. He reported that Mr. Weaver suffered from a mild intellectual disability and was incompetent to stand trial. Even so, he opined that there was a
{3} After six months of treatment at Heartland Behavioral Healthcare, Dr. Phillip Seibel reevaluated Mr. Weaver‘s competency and issued a written report. He reported that Mr. Weaver suffered from an intellectual disability and remained incompetent to stand trial. Additionally, he reported that there was not a substantial likelihood Mr. Weaver‘s competency could be restored within the statutorily allotted time period. Dr. Seibel initially recommended that Mr. Weaver remain at Heartland Behavioral Healthcare for inpatient treatment, should the court find him incompetent and unrestorable. Subsequently, however, he amended his report based on his further review of what he believed to be the applicable statutory law. In the amended version of his report, he recommended that, if found incompetent and unrestorable, Mr. Weaver undergo a separate intellectual disability evaluation to determine whether he was subject to institutionalization.
{4} The parties stipulated to the findings in Dr. Seibel‘s report, and, consistent with that report, the court found Mr. Weaver incompetent and unrestorable. Upon motion of the State, the court then held a hearing to determine whether it was appropriate to retain jurisdiction over Mr. Weaver and commit him to a mental health facility. Although Dr. Seibel testified at the hearing, he indicated that, by statute, he was not qualified to offer an opinion as to whether Mr. Weaver was subject to institutionalization. Consistent with his amended report, he recommended that Mr. Weaver undergo an additional evaluation to address that issue. The trial court ultimately adopted his recommendation and ordered Mr. Weaver to undergo a separate intellectual disability evaluation.
{5} Dr. Daniel Cowan, a Psychology Director for the Ohio Department of Developmental Disabilities, conducted Mr. Weaver‘s intellectual disability evaluation and issued a written report. The trial court then set the matter for an additional hearing on the issue of institutionalization. Consistent with his written report, Dr. Cowan testified at the hearing that Mr. Weaver suffered from a mild intellectual disability, but was not an individual who required institutionalization by court order. He, therefore, recommended that Mr. Weaver receive ongoing support and assistance from the Department of Developmental Disabilities in a community-based setting. At the close of the hearing, the court ordered the parties to file written closing arguments.
{6} Upon review of the written arguments and evidence presented, the court issued its judgment. The court determined that the State set forth clear and convincing evidence that Mr. Weaver (1) had committed the offenses with which he was charged, (2) suffered from a moderate intellectual disability, and (3) suffered from a mental illness. Based on those determinations and the totality of the circumstances, the court found that Mr. Weaver was subject to institutionalization by court order. Consequently, it ordered him committed to Heartland Behavioral Healthcare.
{7} Mr. Weaver now appeals from the trial court‘s judgment and raises three assignments of error for this Court‘s review.
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY FINDING BY CLEAR AND CONVINCING EVIDENCE THAT MR. WEAVER COMMITTED THE OFFENSES IN THE INDICTMENT, AND BY PERMITTING THE ALLEGED CHILD VICTIM‘S STATEMENTS INTO EVIDENCE, OVER OBJECTION, IN VIOLATION OF
EVID.R. 601(A) ,802 , AND807 .
{9} In certain instances,
{10} The decision to admit or exclude evidence lies in the sound discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 180 (1987). “Absent an issue of law, this Court, therefore, reviews the trial court‘s decision regarding evidentiary matters under an abuse of discretion standard of review.” State v. Aguirre, 9th Dist. Lorain No. 13CA010418, 2015-Ohio-922, ¶ 6. See also State v. Walters, 9th Dist. Summit No. 28582, 2018-Ohio-1175, ¶ 32. An abuse of discretion indicates that the court‘s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an abuse of discretion standard, a reviewing court is precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{11} “This Court has recognized repeatedly that ‘statements made to social workers for the purpose of facilitating medical treatment are admissible under the medical exception to
{12} Statements made for the primary purpose of medical diagnosis or treatment are nontestimonial and, therefore, admissible under
{13} Initially, this Court pauses to address the application of the Ohio Rules of Evidence in this matter. According to the parties, no Ohio appellate court has yet decided
{14} In support of its argument that the trial court ought to commit Mr. Weaver, the State presented the testimony of Emily Justice, a caseworker from Medina County Children Services. Ms. Justice testified that she is a universal caseworker, meaning that she remains with a case “from beginning to end * * *.” She stated that, when she receives notice of a complaint or referral, she initiates contact with the family at issue to complete certain assessments, such as a safety assessment to address any safety concerns. She first became aware of S.W., the victim in this matter, when she received a call about possible sexual abuse. In particular, she testified that there were allegations of “multiple incidents of [Mr. Weaver] kissing [S.W.] with his tongue * * *.”
{15} Ms. Justice testified that she normally would interview a child of S.W.‘s age at her department‘s child advocacy center. In this particular instance, however, she interviewed S.W. in one of the interview rooms at the Medina City Police Department. Ms. Justice testified that the interview occurred there because S.W.‘s mother would not respond when she repeatedly called her and attempted an unannounced home visit. Ms. Justice explained that she already had an open case with S.W.‘s mother due to a separate concern, so the implication was that S.W.‘s
{16} Ms. Justice described S.W. as friendly and “matter of fact” when she met with her. She indicated that, when S.W. sat down for their interview, S.W. said “she had come to tell [Ms. Justice] about being molested.” S.W. told Ms. Justice that Mr. Weaver was a friend of her mother‘s and, on a number of occasions, he had kissed her. Ms. Justice then began to describe three different incidents during which Mr. Weaver had kissed S.W. At that point, Mr. Weaver objected on the basis of hearsay, and the State responded that S.W.‘s statements were admissible pursuant to
{17} Ms. Justice relayed the three incidents that S.W. described to her. During the first incident, Mr. Weaver was helping S.W. clean her room when he hugged her, pressed his chest “as well as his private part” against her, kissed her on the lips, and then “put his tongue inside her mouth and wiggled it around.” S.W. indicated that, when Mr. Weaver hugged her, he pinned her arms to her sides such that she was unable to move. During the second incident, S.W. and Mr. Weaver were on the first floor of her home nearby a mattress that she and Mr. Weaver sometimes jumped on. Mr. Weaver then lifted up S.W., held her there, and kissed her five times. S.W. indicated that a few of the kisses were closed-mouth, but other kisses “were with an open mouth where his tongue was put [into] her mouth.” During the third incident, S.W. and Mr. Weaver were in the kitchen at her home when he kissed her. Ms. Justice could not recall if S.W. described Mr. Weaver as using his tongue on that particular occasion. She indicated, however,
{18} Ms. Justice testified that she conducted S.W.‘s interview outside the presence of a caregiver because she did not want S.W. to be influenced or hesitate to tell her things during their interview. She testified that she had undergone Beyond the Silence training, as well as additional sexual abuse and forensic interview trainings. She indicated that a few of the things S.W. said during her interview, such as the fact that she used the word “molested,” led her to believe that S.W. might “have been influenced by overhearing conversations with adults * * *.” Even so, she testified that she “felt that [S.W.‘s] disclosure and the details of her interaction with [Mr. Weaver] were truthful.”
{19} Mr. Weaver argues that the trial court erred by admitting S.W.‘s statements through Ms. Justice because the statements were not admissible under
{20} Contrary to Mr. Weaver‘s assertion, it is entirely unclear from the record whether Ms. Justice conducted her interview with S.W. in the presence of a police officer. Though a detective arranged the interview and it took place at a police station, there was no testimony to establish that the detective or any other officer participated in or was present at the actual interview. Mr. Weaver essentially asks this Court to infer that fact from the location of the interview, but “this Court will not engage in speculation.” State v. Moreland, 9th Dist. Summit No. 27910, 2016-Ohio-7588, ¶ 34. Likewise, this Court will not conclude that Ms. Justice elicited S.W.‘s statements for a forensic purpose solely because she interviewed her at a police station. See Michigan v. Bryant, 562 U.S. 344, 366 (2011) (formality of an encounter “is not the sole touchstone of [a] primary purpose inquiry“).
{21} Ms. Justice explained that the only reason S.W.‘s interview occurred at a police station was that she had to rely on a detective to arrange it. See Ohio v. Clark, 576 U.S. 237, 244 (2015), quoting Bryant at 369 (in conducting primary purpose inquiry, a court “must consider ‘all of the relevant circumstances“). She specifically testified that, but for the trouble she had contacting S.W.‘s mother, the interview would have taken place at a child advocacy center. The interview constituted Ms. Justice‘s first contact with S.W., and, at that point, she was aware that the girl might have been a victim of sexual abuse. Ms. Justice testified that she had been trained to interview victims of sexual abuse and, when first meeting with victims or their families, she conducted a variety of assessments, including a safety assessment. Accordingly, while S.W.‘s interview occurred at a police station, the record does not support the conclusion that it differed in any material way from the type of interview that Ms. Justice would have conducted at a child advocacy center.
{22} The Ohio Supreme Court has recognized that child advocacy center interviews are conducted “with the purpose of gathering as much information as possible in a single setting to reduce the trauma child-abuse victims may suffer as a result of having to recount their abuse multiple times.” See Just, 2012-Ohio-4094, at ¶ 21, citing Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, at ¶ 30-31. The result is that interviewers play a dual role and the same interview may result in the interviewer eliciting both testimonial and nontestimonial statements. See Arnold at ¶ 33. While statements elicited primarily for the purpose of medical
{23} When objecting to Ms. Justice‘s testimony in the lower court, Mr. Weaver only indicated that he was objecting on the basis of hearsay. He did not reply to the State‘s argument that the testimony was admissible under
{24} Upon review, the trial court did not abuse its discretion when it found that the vast majority of the statements Ms. Justice elicited from S.W. were made for the purpose of medical diagnosis or treatment. See
{25} Mr. Weaver also argues that the court erred when it found, by clear and convincing evidence, that he committed his charged offenses. See
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED BY FINDING BY CLEAR AND CONVINCING EVIDENCE THAT MR. WEAVER IS A MENTALLY ILL PERSON SUBJECT
TO COURT ORDER, AS REQUIRED BY R.C. 2945.39(A)(2)(b) AND AS DEFINED BYR.C. 5122.01(A) AND(B) .
{26} In his second assignment of error, Mr. Weaver challenges the trial court‘s determination that he is subject to court order because he suffers from a mental illness. He argues that the State failed to prove, by clear and convincing evidence, that he suffers from a mental illness, represents a substantial/grave risk to others, or is presently dangerous. This Court disagrees.
{27} “Under
{28} A court may retain jurisdiction over a defendant if, following a hearing, it determines by clear and convincing evidence that: (1) the defendant committed the charged offense (i.e., the violent first- or second-degree felony),
{29} The phrases “mental illness” and “mentally ill person subject to court order” are statutorily defined terms of art. See
(2) Represents a substantial risk of physical harm to others as manifested by evidence of recent * * * violent behavior * * * or other evidence of present dangerousness; [or]
* * *
(4) 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 * * *.
{30} If a trial court determines that the State has set forth clear and convincing evidence to satisfy the elements of
{31} “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.” Cross v. Ledford, 161 Ohio St. 469, 477 (1954). “Where the proof required must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” State v. Schiebel, 55 Ohio St.3d 71, 74 (1990). If an appellant challenges the weight of the evidence, a reviewing court will apply the weight of the evidence standard set forth in State v. Thompkins, 78 Ohio St.3d 380 (1997), while remaining “mindful of the presumption in favor of the finder of fact.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 21. See also In re P.A., 10th Dist. Franklin No. 17AP-728, 2018-Ohio-2314, ¶ 13.
{32} The trial court determined that Mr. Weaver was a mentally ill person subject to court order. It noted that his charges were extremely serious and stemmed from multiple incidents, involving a seven-year-old girl. The court found that, during those incidents, Mr. Weaver hugged the girl, pressed his body against her, and kissed her by placing his tongue in her mouth. Although Mr. Weaver later apologized for his behavior when the police asked him to complete a written statement, the court found that he had no appreciation for the seriousness of
{33} This Court begins by outlining the evidence that the trial court received in this matter. Dr. Biscaro evaluated Mr. Weaver for competency and opined that a mild intellectual disability rendered him incompetent. The doctor reported that Mr. Weaver lived with his father until 2013 when his father became critically ill and the Medina Board of Developmental Disabilities (“the Board“) assisted Mr. Weaver in obtaining his own apartment. The doctor indicated that Mr. Weaver did not have a history of mental health treatment, but had “exhibited periods of mood disturbance” in the past and twice had been evaluated for psychiatric admission when he reported feeling suicidal. He indicated that the Board conducted a functional assessment in 2012 and found that Mr. Weaver “functioned fairly independently in self-care[,]” but required prompts for things like hygiene and household chores. He opined that Mr. Weaver‘s difficulties “seem[ed] to be related primarily to his intellectual deficits, poor coping skills, and limited insight/judgment.” As to Mr. Weaver‘s criminal charges, he reported that Mr. Weaver “did not understand [their] relative seriousness” and “had some difficulty describing what he was accused of doing.” He described Mr. Weaver‘s “appraisal of the entire
{34} Dr. Seibel also evaluated Mr. Weaver‘s competency after having had the opportunity to observe him for six months. He ultimately concluded that Mr. Weaver suffered from an intellectual disability rather than a mental illness. He reported that there was no evidence Mr. Weaver suffered from a mood or thought disorder, but “at times he [had] shown a lack of judgment and boundaries in his attempts to assist staff.” When testifying, he clarified that Mr. Weaver was “overly friendly” with staff members and, at times, “intrusive * * * with his peers.” He offered as examples that Mr. Weaver would tell female staff members, “You love me. You know you love me,” and would intervene when the staff attempted to address issues with fellow patients. Though Dr. Seibel did not diagnose Mr. Weaver with a mental illness, he testified that he had no doubt Mr. Weaver “need[ed] significant supervision * * * based on * * * what [he] observed about him and what [he] [knew] about his charge and * * * the account that [Mr. Weaver] gave [him] related to that * * *.” His initial recommendation was that his facility, Heartland Behavioral Healthcare, was the least restrictive alternative for Mr. Weaver‘s care, “taking into consideration community safety * * *.” He later retracted that recommendation, however, and instead recommended that Mr. Weaver undergo an intellectual disability evaluation. Even so, he testified that the reason for his retraction was that, “taking a very close look at the statute,” he did not believe he was qualified to offer an opinion as to whether Mr. Weaver was subject to institutionalization. It was his impression that, by statute, that determination had to be made by a psychologist designated by the director of developmental disabilities. But see
{35} Dr. Cowan, the designated psychologist from the Ohio Department of Developmental Disabilities, met with Mr. Weaver to conduct an intellectual disability evaluation. He reported that he met with Mr. Weaver for an hour and a half and reviewed his records to assess his intellectual and adaptive functioning. The doctor determined that Mr. Weaver suffered from a mild rather than moderate intellectual disability and that his adaptive skills “overall appear[ed] to be at least within the high Mild Range of Intellectual Disability * * *.” Based on those determinations, he opined that Mr. Weaver was not subject to institutionalization and would benefit from the Board‘s support in a community-based setting.
{36} When testifying, Dr. Cowan stated that an intellectual disability concerns a deficit in one‘s cognitive and adaptive functions while a mental illness concerns a disturbance or difficulty with mood or perception. He testified that he did not believe Mr. Weaver had a mental illness, but he did not elaborate. Similarly, his written report only contained a brief paragraph regarding Mr. Weaver‘s mental status. In that paragraph, he noted that Mr. Weaver did not appear to have an abnormal affect or mood, he denied suffering from hallucinations or suicidal/homicidal ideations, and “there was no evidence of fixed delusional systems or responding to internal stimuli.” The focus of Dr. Cowan‘s examination was to identify Mr. Weaver‘s cognitive deficits and the extent of his adaptive functioning (e.g., his self-care skills).
{37} Dr. Cowan made no note of Mr. Weaver‘s criminal history, but both Dr. Biscaro and Dr. Seibel included that information in their respective reports. Both reported that Mr. Weaver accrued: (1) a public indecency/exposure charge in 1995 that was dismissed; (2) a drug paraphernalia conviction in 2002; and (3) a disorderly conduct conviction in 2014. Dr. Seibel noted that the instant action, as well as the 2014 case, occurred while Mr. Weaver was living on his own.
{38} Apart from the three experts who gave evidence, the trial court also heard testimony from Ms. Justice and listened to a recording of Mr. Weaver‘s police interview. As previously noted, Ms. Justice interviewed S.W. in connection with a complaint regarding sexual abuse. She testified as to the statements S.W. made during their interview, including that Mr. Weaver had used his tongue to kiss her on multiple occasions. Meanwhile, during his police interview, Mr. Weaver admitted he had kissed S.W. several times. He even admitted that he used his tongue, but claimed that he did that on only one occasion. He indicated that he kissed S.W. because he liked her and hoped she could be his girlfriend someday. He also admitted that the kiss excited him.
{39} Mr. Weaver argues that the court erred by finding him mentally ill and subject to court order. With regard to the first finding, he asserts that there was no evidence he suffered from a mental illness. He argues that not one of the three experts who examined him drew that conclusion and two of those experts affirmatively testified that he did not have a mental illness. According to Mr. Weaver, “the fact that all [the] experts concluded that he is not mentally ill is dispositive * * *.” (Emphasis omitted.) Because his cognitive deficits only affect his intellectual functioning and no one testified that he suffers from a substantial disorder that grossly impairs his judgment, he argues that there is insufficient evidence that he suffers from a mental illness.
{40} With regard to the court‘s finding that he is subject to court order, Mr. Weaver asserts that the State failed to set forth clear and convincing evidence that he satisfies the criteria set forth in
{41} This Court rejects Mr. Weaver‘s contention that, before a court may declare a defendant mentally ill, it must have before it expert evidence that the defendant has been formally diagnosed as such. A “mental illness” is a “substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life.”
{42} The word “substantial” has several meanings, including “important, essential” and “considerable in quantity: significantly great.” Merriam-Webster‘s Collegiate Dictionary 1245 (11th Ed.2004). Meanwhile, a “disorder” is defined as “an abnormal physical or mental condition.” Id. at 360. See also id. at 259 (defining “condition” as “a state of being” and “a [usually] defective state of health“). “Grossly” is synonymous with “flagrant” and can be defined as “glaringly noticeable [usually] because of inexcusable badness or objectionableness.” Id. at 551. Finally, “impaired” means “in a less than perfect or whole condition” as in “disabled or functionally defective * * *.” Id. at 622.
{43} Upon review, the trial court had sufficient evidence before it from which it could conclude that Mr. Weaver suffers from a mental illness for purposes of
{44} With regard to the trial court‘s determination that Mr. Weaver is subject to court order, this Court likewise must conclude that the record contains sufficient evidence in support of that determination. See Schiebel, 55 Ohio St.3d at 74. Mr. Weaver engaged in extremely serious, grossly inappropriate conduct that will undoubtedly have a lasting effect on the seven-year-old he assaulted. Again, while he completed a brief, written apology at the police station, there was evidence that he simply did not appreciate the seriousness of his conduct and that he had an “unrealistic” appraisal “of the entire situation/outcome * * *.” The court received evidence that he lived with his father for the vast majority of his life, but, in the few years he had been on his own, had been convicted of disorderly conduct and charged with his current offenses. See In re Burton, 11 Ohio St.3d at 149 (court may consider “any past history which is relevant to establish [an] individual‘s degree of conformity to the laws” in its totality of the circumstances review). There was evidence that his intellectual disability results in serious deficits in his judgment and that, according to Dr. Seibel, he “need[s] significant supervision * * *.” See id. (court may consider any psychiatric testimony as to individual‘s condition). In fact, it was Dr. Seibel‘s initial recommendation, “taking into consideration community safety * * *,” that Mr. Weaver remain in the care of Heartland Behavioral Health. Given Mr. Weaver‘s deficits in judgment, his inability to appreciate his wrongdoing, and the specific nature of his wrongdoing, the trial court could have determined that he represented a substantial risk to others
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED BY FINDING BY CLEAR AND CONVINCING EVIDENCE THAT MR. WEAVER IS A PERSON WITH AN INTELLECTUAL DISABILITY SUBJECT TO INSTITUTIONALIZATION BY COURT ORDER, AS REQUIRED BY
R.C. 2945.39(A)(2)(b) AND AS DEFINED BYR.C. 5123.01(O) AND(P) .
{45} In his third assignment of error, Mr. Weaver challenges the trial court‘s determination that he suffers from a moderate intellectual disability and, due to that disability, is subject to institutionalization. Given our resolution of Mr. Weaver‘s second assignment of error, his third assignment of error is moot, and we decline to address it. See
III.
{46} Mr. Weaver‘s assignments of error are overruled. The judgment of the Medina County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
TEODOSIO, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
MATTHEW B. AMEER and PATRICK L. BROWN, Attorneys at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.