State v. Cunningham ( 2024 )

[Cite as State v. Cunningham, 2024-Ohio-1739.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2023-P-0084
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
CASEY A. CUNNINGHAM,
Trial Court No. 2023 CR 00536
Defendant-Appellant.
OPINION
Decided: May 6, 2024
Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, Kristina K. Reilly, Assistant Prosecutor,
and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH
44266 (For Plaintiff-Appellee).
Donald K. Pond, Jr., 567 East Turkeyfoot Lake Road, Suite 107, Akron, OH 44319 (For
Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Casey Cunningham, appeals from his conviction for Violating a
Protection Order, a fifth-degree felony in violation of R.C. 2919.27. Appellant raises one
assignment of error, arguing the trial court abused its discretion by failing to sua sponte
conduct an inquiry to determine whether appellant was competent to stand trial after what
appellate counsel describes as appellant’s “tangential, disjointed, paranoid, erratic, and
manic” trial testimony.
{¶2} Having reviewed the record and the applicable caselaw, we find appellant’s
assignment of error is without merit. The transcripts of the trial and sentencing hearing
demonstrate that appellant consistently engaged with the trial court and with his attorneys
cogently and appropriately. Although appellant’s testimony was peculiar and aptly
described as “paranoid” at times, even an emotionally disturbed individual can be capable
of understanding the nature of the charges against him and assisting in his own defense.
Appellant’s trial counsel and the trial court were in the best position to observe him and
raise this issue below. A competency question is one that is often difficult to address and
one with no definite signs which would “invariably indicate the need for further inquiry.”
Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).
{¶3} Appellant’s interactions available to us in the record tend to demonstrate
that appellant had the present ability to understand the nature and objective of the
proceedings and to assist in his own defense. The record does not support finding that
the trial court abused its discretion in failing to sua sponte address appellant’s
competency to stand trial.
{¶4} Therefore, we affirm the judgment of the Portage County Court of Common
Pleas.
Substantive and Procedural History
{¶5} On May 18, 2023, appellant was charged with two counts of Violating a
Protection Order, fifth-degree felonies in violation of R.C. 2919.27.
{¶6} On June 5, 2023, appellant entered a plea of not guilty and the matter was
set for trial.
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{¶7} Jury trial commenced on July 25, 2023. At trial, appellant was represented
by two court appointed attorneys. The State moved to dismiss Count 2 and to proceed to
trial only on Count 1. In addition, the parties stipulated that appellant had been served
with a valid protection order that was in effect on the date of the offense. The protection
order was also entered into evidence as an exhibit.
{¶8} Alexis Culbert testified that she and appellant were in a relationship
between August 30, 2020 to January 30, 2022. Culbert decided to end the relationship
and moved out. She said appellant continued to contact her and she felt threatened, so
she obtained a protection order. Culbert said that there was a prior incident where
appellant contacted her, and he was convicted for Violating a Protection Order. The initial
protection order expired, and Culbert obtained another protection order active from March
27, 2023, until February 22, 2028.
{¶9} On April 20, Culbert attended a local music festival in Portage County. She
said the festival included a campsite, where she stayed with her boyfriend, Jonathan
Cousins, her sister, and some friends.
{¶10} Culbert said that after nightfall, she and Cousins were looking for a friend at
the festival. While they were doing this, appellant tapped Culbert on the shoulder and
said, “Hello, friend.” Culbert said she panicked and grabbed Cousins, pulled him away,
and told him that appellant had approached her.
{¶11} Jonathan Cousins testified that he had never met appellant but said that he
knew about Culbert’s relationship with him and the protection order. He said he was with
Culbert and saw a man come up to her and tap her on the shoulder. He then said Culbert
grabbed him with “fear in her eyes” and said that appellant “just came up to me.”
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{¶12} After appellant approached Culbert, Culbert and Cousins talked to the
festival security staff about the incident.
{¶13} Steven Liller worked as security at the music festival. He said when security
approached appellant to ask him to leave the festival, appellant became belligerent and
said the protection order was Culbert’s problem and that they should “make her leave.”
Liller said appellant began to go on a tirade, but the festival promoter felt it would be better
not to further aggravate appellant or cause a physical altercation, so security left him
alone for the time being.
{¶14} Leah Morosky testified she was dating appellant at the time of the festival.
She said the two attended the festival together. She said she was aware that Culbert had
a protection order against appellant and that Culbert might also be at the festival. Once
at the festival, she said the festival facilitator approached them and said appellant could
not attend because of the protection order. However, after saying they would keep to
themselves, the facilitator agreed to let them attend.
{¶15} She said she and appellant were listening to a performance and saw a
woman she recognized from a photo to be Culbert “quite a little ways away from us.” She
said that appellant got up from the table they were at, walked “straight towards” Culbert,
and spoke to her. Morosky said appellant was “bee-lining it for her.”
{¶16} On April 22, 2023, security again encountered appellant at the festival and,
along with Portage County Sheriff’s Deputies, removed appellant from the festival
grounds.
{¶17} After the State rested its case, the Court reminded appellant of his
constitutional right to not testify and the trial court asked if appellant “had sufficient time
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to talk to your lawyers about this?” Appellant said that he felt “rushed” and discussed his
concerns on the record. Appellant asked to defer the decision to testify until the next day.
Appellant’s trial counsel similarly asked to allow appellant to have an opportunity to think
about testifying until the morning, and the trial court agreed.
{¶18} The next morning, appellant informed the trial court that he wanted to testify
and advised the court that he wanted to fire Attorney Ellis, one of his two trial attorneys.
The trial court did not entertain firing counsel mid-trial, in part because appellant’s counsel
had already prepared for trial under the assumption of going to trial with co-counsel
participation. Appellant responded “I carry a concern of a predisposition of personal –
what’s the word I’m looking for? [Attorney Elliss is] not quite a fan of my character and
demeanor and my delivery.”
{¶19} After this exchange, the State maintained that because appellant was going
to take the stand, that appellant’s prior history was subject to questioning. Appellant
interjected that this information was “[i]rrelvant to the allegations.” The court instructed
appellant that it was not his “turn to talk” and trial counsel argued on appellant’s behalf
that appellant’s prior convictions were “irrelevant to the charge in question today.”
{¶20} Appellant then testified on his own behalf. On direct examination he said
that he attended the music festival on April 20, 2023, and camped there for several days.
He acknowledged the existence of the protection order in effect and that he could not be
near Culbert. Appellant denied that he made contact with Culbert at the music festival.
{¶21} He acknowledged he has several prior convictions. Appellant also stated
that he had been sober for three years, has his own business, has purchased a house,
and plays in multiple bands.
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{¶22} On cross-examination, the State began by seeking points of agreement with
appellant, but, while appellant agreed he had been in a relationship with Culbert, he
denied that she was the one who ended the relationship. He also said that he believed
she obtained the protection order against him because she was pregnant with his child,
and said an individual was drugging him and Culbert and putting them on Only Fans to
make money off of them.
{¶23} When asked about his prior conviction for Violating a Protection Order, he
said that he had been in Wheeling, West Virginia and that a gang had been stalking and
drugging him and he was concerned that Culbert was a victim as well. He said he
happened to see Culbert and told her that people were trying to kill him and warned her
to “Look out, this, that and the other.” He said this was merely a “chance encounter.”
{¶24} Appellant recounted several other convictions and charges, explaining the
resolution of each. Finally, he said that he was assaulted by officers in the Portage County
jail. He said that he believed the assault was part of the “collusion and conspiracy.” He
said that he “tried to speak with [Attorney] Ellis and this is where I wanted to fire him
previously before this.”
{¶25} Appellant also said that he had been drugged during the court hearing for
the protection order and said the hearing was “some type of weird situation.” He believed
that he was drugged because there is a “domestic terrorist and search that’s going on
through – it’s infiltrated through Black Panthers, through Black Lives Matters, Eligibly GTQ
[transcript sic].” Appellant asserted the purpose of these actions was to create “situations”
whereby people would be incarcerated and lose credibility, functioning as a sort of “social
justice” “subtle Civil War.”
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{¶26} Appellant also maintained that he never dated Morosky, stating that he was
drugged by her as part of a “COVID experiment.” He also suggested that Morosky is a
satanist and part of a “vampiric set of a satanic-magic ritual cult” who targeted him
because of his religious beliefs.
{¶27} When asked to identify the protection order, the State handed appellant the
exhibit, he correctly identified it, and discussed the various provisions contained within it.
{¶28} However, appellant denied violating the protection order on April 20, 2023,
at the music festival. He said Culbert lied during her testimony or that what she said was
“a false memory or false witness or a false testimony or who knows. Who knows. The
human consciousness and mind and brain is the greatest wonder on earth. It could have
been a dream, who knows.”
{¶29} The State asked appellant how other witnesses could have all seen the
same event happen. Appellant suggested that Cousins misidentified him at the festival
due to intoxication. The State asked whether Culbert and Cousins could have both had
the same dream that appellant contacted Culbert. Appellant said “I’m not saying that at
all. That’s an interesting philosophy that I’d love to divulge into.” Appellant merely
maintained that Cousin’s had never met him before and must have mistaken someone
else for him.
{¶30} Appellant also (correctly) offered that each of the witnesses had slightly
incongruent stories, with different dates and times that did not match up and noted that
each of them made statements to the police several days, if not weeks, after his arrest.
{¶31} Appellant denied ever having seen or spoken to Liller. He theorized Liller,
as the head of the festival security, had been paid off by the festival promoter who was
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targeting him because appellant is an “up and coming” talented musician. He also
suggested that festival security had “drugged everybody at this festival in a matter of
sense.” He also said Liller appeared intoxicated during his testimony.
{¶32} He said he believed Morosky had lied in her testimony and said she may
have been intoxicated and misremembering what happened.
{¶33} The jury found appellant guilty of Violating a Protection Order.
{¶34} On October 10, 2023, the trial court held a sentencing hearing. At the
hearing, appellant addressed the court. Appellant referenced a separate case in which
he had been acquitted and discussed his inability to bond out. He said that he had a
daughter on the way and that it was important to be present during the pregnancy. He
said he did not deserve to be incarcerated because he was non-violent and would not
contact the victim further because he had a new girlfriend in his life and he would no
longer be residing in northeast Ohio.
{¶35} He argued that he should have fought the underlying restraining order and
prior Violating a Protection Order conviction. He said he had tried to warn Culbert that
people were trying to hurt them and the whole situation was a “miscommunication.” He
also continued to deny the present charge and said that his interaction with Culbert at the
music festival “did not happen.”
{¶36} The trial court imposed 10-months’ incarceration and waived any fine or
court costs. The court also imposed a two-year term of post-release control.
{¶37} When the trial court informed appellant that it would not oppose transitional
control, appellant asked: “Can I have clarification on what transitional control is?” The trial
court explained that it is a program in the institution that will assist in integrating back into
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society. Appellant asked: “What does that look like?” The trial court said that it could not
provide further information because the court is not in control of the specific details, but
said it would be explained further. Appellant asked what his “out date” would be and the
court said it needed to calculate the date and would specify the date in the judgment entry
of sentence.
{¶38} On October 19, 2023, the trial court entered its judgment entry of sentence.
Appellant received 131 days of jail time credit. 1
{¶39} Appellant timely appealed raising one assignment of error.
Assignment of Error and Analysis
{¶40} Appellant’s sole assignment of error states:
{¶41} “[1.] The trial court erred by failing to conduct an inquiry into the competency
of Defendant-Appellant Casey Cunningham during the course of the trial proceedings,
contrary to due process and the Fifth and Fourteenth Amendments to the United States
Constitution and Article I, Section 16 of the Ohio Constitution.”
{¶42} Appellant argues the trial court abused its discretion by failing to sua sponte
conduct a competency inquiry with appellant due to his unusual trial testimony. He
highlights the “surreal trial testimony” which he characterized as “tangential, disjointed,
paranoid, erratic, and manic.” Appellant therefore argues the trial court abused its
1. Although appellant’s term of incarceration concluded prior to the resolution of this appeal, appellant has
challenged his underlying conviction. Therefore, this appeal is not rendered moot by the completion of his
sentence. See State v. Biscardi, 11th Dist. Portage No. 2019-P-0003, 2019-Ohio-4653, ¶ 13 (“Thus, when
the prison sentence has already been served and the underlying conviction is not at issue, an assertion
that the trial court erred in determining the length of that sentence is a moot issue because no relief can be
granted.”).
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discretion by failing to sua sponte raise the issue of his competency, and that this failure
violated his Due Process rights as he was not competent to stand trial.
{¶43} “A defendant is rebuttably presumed to be competent to stand trial.” State
v. Lawson, 165 Ohio St.3d 445, 2021-Ohio-3566, 179 N.E.3d 1216, ¶ 48. A defendant is
incompetent if he “is incapable of understanding the nature and objective of the
proceedings against [him] or of assisting in [his] defense.” R.C. 2945.37(G). When raised
before trial, the trial court must hold a competency hearing. R.C. 2945.37(B). When raised
after the start of trial, the trial court shall hold a competency hearing “only for good cause
shown or on the court's own motion.” Id.{¶44} In this case, appellant’s trial counsel did not raise this issue, therefore, we
analyze whether the trial court, on its own motion, should have held a hearing on
appellant’s competency to stand trial.
{¶45} The Due Process protections of the Ohio and U.S. Constitutions “requires
a court to hold a hearing when it has been presented with a ‘sufficient indicia of
incompetence.” Lawson at ¶ 51, quoting Drope v. Missouri, 420 U.S. 162, 175, 95 S.Ct.
896, 43 L.Ed.2d 103 (1975); Fifth and Fourteenth Amendment to the U.S. Constitution;
Ohio Constitution, Article I, Section 16.
{¶46} “The right to a hearing on the issue of competency rises to the level of a
constitutional guarantee where the record contains ‘sufficient indicia of incompetence’
such that an inquiry into the defendant’s competency is necessary to ensure the
defendant’s right to a fair trial.” State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433(1995), quoting Drope at 162. “‘There are, of course, no fixed or immutable signs which
invariably indicate the need for further inquiry to determine fitness to proceed; the
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question is often a difficult one in which a wide range of manifestations and subtle
nuances are implicated. That they are difficult to evaluate is suggested by the varying
opinions trained psychiatrists can entertain on the same facts.’” (Emphasis
added.) Lawson at ¶ 70, quoting Drope at 180.
{¶47} The “decision as to whether to hold a competency hearing once trial has
commenced is in the court's discretion.” State v. Rahman, 23 Ohio St.3d 146, 156, 492
N.E.2d 401 (1986); State v. Barton, 108 Ohio St.3d 402, 2006-Ohio-1324, 844 N.E.2d
307, ¶ 56. Abuse of discretion is a term of art. It connotes a court's exercise of judgment
that neither comports with reason nor the record. State v. Underwood, 11th Dist. Lake
No. 2008-L-113, 2009-Ohio-208, ¶ 30, citing State v. Ferranto, 112 Ohio St. 667, 676-
678 [148 N.E. 362] (1925). Stated differently, an abuse of discretion is “the trial court's
‘failure to exercise sound, reasonable, and legal decision-making.’” State v. Raia, 11th
Dist. Portage No. 2013-P-0020, 2014-Ohio-2707, ¶ 9, quoting State v. Beechler, 2d Dist.
Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black's Law Dictionary 11 (8th
Ed.Rev.2004). “When an appellate court is reviewing a pure issue of law, ‘the mere fact
that the reviewing court would decide the issue differently is enough to find error[.] * * *
By contrast, where the issue on review has been confined to the discretion of the trial
court, the mere fact that the reviewing court would have reached a different result is not
enough, without more, to find error.’” Id., quoting Beechler at ¶ 67. When applying the
abuse of discretion standard, a reviewing court may not substitute its judgment for that of
the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748(1993).
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{¶48} A trial court does not have a duty to question a defendant’s competence
where: nobody “on the spot” raised any question as to the defendant’s competence,
(State v. Cowans, 87 Ohio St.3d 68, 84, 717 N.E.2d 298 (1999)), or where there is no
evidence of “outrageous” or “irrational” conduct during trial, or where there is no complaint
about the defendant’s lack of cooperation in his defense. State v. Williams, 99 Ohio St.3d
439, 2003-Ohio-4164, 793 N.E.2d 446, ¶ 63.
{¶49} On review, such “[f]actual determinations are best left to those who see and
hear what goes on in the courtroom.” Cowans at 84.
{¶50} Further, mental illness is not synonymous with legal incompetency.
Berry, 72 Ohio St.3d 354, 650 N.E.2d 433, syllabus. “Incompetency must not be equated
with mere mental or emotional instability or even with outright insanity. A defendant may
be emotionally disturbed or even psychotic and still be capable of understanding the
charges against him and assisting his counsel.” State v. Bock, 28 Ohio St.3d 108, 110,
502 N.E.2d 1016 (1986).
{¶51} Ordinarily, any error by a trial court in not conducting a mandatory hearing
under R.C. 2945.37 is harmless if the record fails to reveal sufficient indicia of
incompetency. Bock at 110.
{¶52} However, here, unlike in Bock, appellant’s trial counsel did not request a
competency hearing. Therefore, appellant has waived all but plain error on review. In re
Grimes, 147 Ohio App.3d 192, 769 N.E.2d 420 (2002), ¶ 13; State v. Ford, 8th Dist.
Cuyahoga No. 84138, 2004-Ohio-5610, ¶ 23. “Crim.R. 52(B) affords appellate courts
discretion to correct ‘[p]lain errors or defects affecting substantial rights’ notwithstanding
the accused's failure to meet his obligation to bring those errors to the attention of the trial
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court.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. The
appellant bears the burden of demonstrating plain error by proving that the outcome
would have been different absent the plain error. State v. Payne, 114 Ohio St.3d 502,
2007-Ohio-4642, ¶ 17. The plain error must be a deviation from a legal rule and an
obvious defect in the proceedings. Rogers at ¶ 22. Because an incompetent defendant is
not subject to conviction, a court’s decision regarding the competency of an individual to
stand trial will always be outcome-determinative in the most fundamental sense.” In re
Williams, 116 Ohio App.3d 237, 241, 687 N.E.2d 507 (2d Dist.1997).
{¶53} We readily acknowledge appellant’s testimony was peculiar, demonstrated
signs of conspiratorial thinking, paranoia, and detachment from reality. Nevertheless, a
reviewing court does not have the benefit of having interacted with appellant in person or
observing him during the trial. We are not in the best position to determine whether
appellant’s outlandish testimony was the result of genuine lack of competency or whether
his claims of vast conspiracies during his testimony was a calculated gambit to influence
the jury in his favor. See Cowans, 87 Ohio St.3d at 84, 717 N.E.2d 298.
{¶54} For example, appellant said the reason he wanted to fire Attorney Ellis was
because he tried to speak to him about his trial testimony and Attorney Ellis was “not quite
a fan of my character and demeanor and my delivery.” Further, it is significant that neither
of appellant’s trial attorneys raised the issue of appellant’s competence to stand trial
despite trial counsels’ much closer interaction with appellant including holding privileged
conversations with him. Appellant’s desire to fire Attorney Ellis for not being a “fan of his
character,” and trial counsels’ decision not to raise competence at trial strongly suggests
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the trial court did not abuse its discretion by failing to sua sponte inquire into appellant’s
competency.
{¶55} Further, despite the peculiar nature of his testimony, appellant appeared to
be able to assist in his own defense and to understand the nature of the charges against
him. The transcripts of the trial and sentencing hearing demonstrate that appellant
consistently engaged with the trial court and with his attorney’s cogently and
appropriately, particularly outside the presence of the jury. Appellant asked clarifying
questions, discussed his options with regard to testifying, and asked for more time to
weigh his decision. Although he inappropriately addressed the court about a legal
question pertaining to his prior convictions, appellant’s statement was essentially a sound
argument. These interactions tend to demonstrate that appellant had the present ability
to understand the nature and objective of the proceedings assist in his own defense.
{¶56} Peculiar, raving, even fantastic testimony could indicate many things, but
the question here is whether the trial court abused its discretion by failing to order a R.C.
2945.32(B) hearing on appellant’s competency, i.e. his ability to understand the nature of
the charges against him and assist in his own defense. See Bock, 28 Ohio St.3d 108,
110, 502 N.E.2d 1016 (1986). Critically, appellant has not identified how his testimony,
however strange, demonstrated sufficient indicia of incompetence to justify the trial court
sua sponte ordering a competency hearing after trial had begun pursuant to R.C. 2945.37.
See Drope, 420 U.S. at 175. There are no definite signs that “invariably indicate the need
for further inquiry.” Id. at 180. Appellant’s trial counsel and the trial court were in the best
position to observe him and raise this issue below (or not to).
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{¶57} Appellant’s interactions available to us in the record tend to demonstrate
that appellant had the present ability to understand the nature and objective of the
proceedings and to assist in his own defense. The record does not support finding that
the trial court abused its discretion in failing to sua sponte address appellant’s
competence to stand trial.
{¶58} For the foregoing reasons, the judgment of the Portage County Court of
Common Pleas is affirmed.
MATT LYNCH, J.,
ROBERT J. PATTON, J.,
concur.
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