State v. Weaver , 2018 Ohio 2998 ( 2018 )

[Cite as State v. Weaver, 2018-Ohio-2998.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 17CA0092-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
WILLIAM WEAVER COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 16CR0487
DECISION AND JOURNAL ENTRY
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
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substantial probability Mr. Weaver’s competency could be restored if he received treatment. The
parties stipulated to his findings, and, based on his report, the court ordered Mr. Weaver to
undergo competency restoration treatment at Heartland Behavioral Healthcare.
{¶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.
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{¶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, AND 807.
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{¶8} In his first assignment of error, Mr. Weaver argues that the trial court erred when
it admitted the statements of S.W., the seven-year-old he allegedly kidnapped, through the
testimony of a social worker. He further argues that the court erred when it relied on those
statements and found, by clear and convincing evidence, that he committed his charged offenses.
For the reasons that follow, this Court rejects his arguments.
{¶9} In certain instances, R.C. 2945.39 authorizes a trial court to retain jurisdiction
over an incompetent defendant and commit him to the care of a treatment facility. See
Discussion, infra, under Assignment of Error No. 2. One prerequisite is that the court must be
able to find, by clear and convincing evidence, that the defendant committed the violent first- or
second-degree felony with which he was charged. See R.C. 2945.39(A)(2)(a). See also R.C.
2945.38(C)(1)(b). “In making its determination * * *, the court may consider all relevant
evidence * * *.” R.C. 2945.39(B).
{¶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
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hearsay’ even where the child has not been determined competent to testify.” In re T.L., 9th
Dist. Medina No. 09CA0018-M, 2011-Ohio-4709, ¶ 15, quoting In re I.W., 9th Dist. Wayne Nos.
07CA0056, 07CA0057, 2008-Ohio-2492, ¶ 17. See also State v. Muttart, 116 Ohio St. 3d 5,
2007-Ohio-5267, syllabus. Evid.R. 803(4) pertains to statements “made for purposes of medical
diagnosis or treatment and describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.” “To determine whether statements are
admissible under [that rule], a court must look to the primary purpose of the statements.” State v.
Just, 9th Dist. Wayne No. 12CA0002, 2012-Ohio-4094, ¶ 19.
{¶12} Statements made for the primary purpose of medical diagnosis or treatment are
nontestimonial and, therefore, admissible under Evid.R. 803(4). State v. Arnold, 126 Ohio St. 3d
290, 2010-Ohio-2742, ¶ 28. Conversely, statements made for the primary purpose of forensic
investigation are testimonial, id., and admissible only if “the declarant is unavailable and the
accused has had a prior opportunity to cross-examine him [or her].” State v. McNair, 9th Dist.
Lorain No. 13CA010485, 2015-Ohio-2980, ¶ 37, citing Crawford v. Washington, 541 U.S. 36,
68-69 (2004). “Considerations that should be taken into account in making [a primary purpose]
determination include the manner in which the child was questioned, whether there was a motive
to fabricate, and whether the child understood the need to tell the truth.” Walters at ¶ 33, citing
Muttart at ¶ 49. The court also may consider “the child’s age and whether the proper protocol
for interviewing children alleging sexual abuse was followed.” Walters at ¶ 33, citing Muttart at
¶ 49.
{¶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
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whether the Ohio Rules of Evidence apply in the context of commitment proceedings that occur
pursuant to R.C. 2945.39. The State argues that the rules are inapplicable because a proceeding
under R.C. 2945.39 is more akin to a “miscellaneous criminal proceeding” such as sentencing.
See Evid.R. 101(C)(3). Meanwhile, Mr. Weaver asks this Court to apply the rules and follow, by
logical extension, the Ohio Supreme Court’s decision in State v. Jones, 9 Ohio St. 3d 123 (1984).
Though both parties have invited this Court to decide this issue, this Court need not do so to
resolve this appeal. See, e.g., State v. Adamson, 83 Ohio St. 3d 248, 250-251 (1998). That is
because, even if the rules apply, Mr. Weaver’s assignment of error fails on its merits.
{¶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
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mother was avoiding her. Ms. Justice testified that she had a conversation with a detective,
feeling “that he [might] have more luck being able to schedule with [S.W.’s mother] * * *.”
That proved to be the case, so Ms. Justice interviewed S.W. at the police station when her mother
brought her there.
{¶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 Evid.R. 803(4). The court then overruled the objection, and Ms. Justice continued to
testify without further objection.
{¶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,
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that S.W. described Mr. Weaver using his tongue “most of the time” when he kissed her. S.W.
described Mr. Weaver’s tongue as “wet and slobbery.” She also stated that “it tasted awful and *
* * she still had that taste in her mouth.”
{¶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 Evid.R. 803(4).
According to Mr. Weaver, S.W.’s interview was conducted at the police station, in the presence
of a police officer, so her statements were not elicited for the purpose of medical treatment. He
further argues that, in the absence of her statements, there was not clear and convincing evidence
to support the conclusion that he committed his charged offenses.
{¶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
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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. ___, 135
S. Ct. 2173, 2180 (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
10
diagnosis/treatment are admissible (i.e., nontestimonial), statements elicited primarily for the
purpose of forensic investigation are subject to the Confrontation Clause (i.e., testimonial). Id at
paragraphs one and two of the syllabus. The question, therefore, is not whether all of an
interviewee’s statements, taken together, are or are not admissible. Individual statements may
serve distinct purposes, and thus, the admissibility of any individual statement depends upon the
distinct purpose for which it was elicited. See id. at ¶ 34-44.
{¶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 Evid.R. 803(4). He also never renewed his objection to
clarify its basis or to assert that any of S.W.’s individual statements were not elicited for the
purpose of medical diagnosis or treatment. Likewise, on appeal, he only argues that Ms.
Justice’s testimony, as a whole, was inadmissible because she interviewed S.W. for a forensic
purpose. He makes no attempt to examine any of S.W.’s individual statements or apply any of
the factors relevant to a primary purpose inquiry. See Walters, 2018-Ohio-1175, at ¶ 33, citing
Muttart, 116 Ohio St. 3d 5, 2007-Ohio-5267, at ¶ 49. Accordingly, in conducting the analysis set
forth herein, this Court is mindful of the extremely limited nature of both his objection in the
court below and his argument on appeal. See Cardone v. Cardone, 9th Dist. Summit Nos.
18349, 18673, 1998 Ohio App. LEXIS 2028, *22 (May 6, 1998) (“If an argument exists that can
support this assignment of error, it is not this [C]ourt’s duty to root it out.”).
{¶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 Evid.R. 803(4). This Court has held that statements identifying a
perpetrator, describing instances of abuse, and describing the manner in which the perpetrator
11
touched the victim’s body are all admissible as statements made for the purpose of medical
diagnosis and treatment. See Just at ¶ 22, citing In re T.L., 2011-Ohio-4709, at ¶ 17 and In re
I.W., 2008-Ohio-2492, at ¶ 18-22. The vast majority of S.W.’s statements described the ways in
which Mr. Weaver touched her and how that made her feel. S.W. was only seven years old at
the time of her interview, and the record does not disclose that she had any apparent motive to
fabricate. See Walters at ¶ 33. Ms. Justice stated that she purposely interviewed S.W. outside
the presence of a caregiver so that she would not be influenced, and the record does not contain
any indication that she questioned S.W. in a suggestive manner. See id. It also does not contain
any indication that S.W. did not understand the need to tell the truth. See id. To the contrary,
Ms. Justice indicated that she believed S.W. gave an honest account of her interactions with Mr.
Weaver. Even if certain portions of their interview served a forensic purpose, Mr. Weaver has
not shown that S.W.’s statements about his identity and the alleged abuse she suffered were
inadmissible under Evid.R. 803(4). Accordingly, we reject his argument to the contrary.
{¶25} Mr. Weaver also argues that the court erred when it found, by clear and
convincing evidence, that he committed his charged offenses. See R.C. 2945.39(A)(2)(a). His
argument, however, is premised upon his having successfully proven that Ms. Justice’s
testimony was inadmissible. Because this Court has reached the opposite conclusion, his
argument lacks merit. S.W.’s statements, as introduced through Ms. Justice, constituted clear
and convincing evidence that Mr. Weaver forcibly restrained S.W. on at least two occasions for
the purpose of kissing her and inserting his tongue into her mouth while doing so. See R.C.
2905.01(A)(4) and (B)(2). As such, Mr. Weaver’s first assignment of error is overruled.
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
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TO COURT ORDER, AS REQUIRED BY R.C. § 2945.39(A)(2)(b) AND AS
DEFINED BY R.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 R.C. 2945.38(B)(1) and (C)(1), a common pleas court presiding over a
criminal case involving a defendant charged with a violent first- or second-degree felony who
has been found incompetent to stand trial pursuant to R.C. 2945.37 may require the defendant to
undergo treatment for up to one year.” State v. Williams, 126 Ohio St. 3d 65, 2010-Ohio-2453, ¶
11. If the defendant does not respond to the treatment and remains incompetent, the law
authorizes two distinct paths forward. See R.C. 2945.38(H)(3) and 2945.39(A). The first is that
the court or prosecutor may petition the probate court to commence civil commitment
proceedings. Williams at ¶ 12, citing R.C. 2945.39(A)(1). The second is that the court or
prosecutor “may seek to have the common pleas court retain jurisdiction over the defendant.”
Williams at ¶ 12, citing R.C. 2945.39(A)(2). It is undisputed that the State moved the court to
retain jurisdiction over Mr. Weaver after the treatment he received to restore his competency
proved unsuccessful.
{¶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), R.C. 2945.39(A)(2)(a); and (2) the
defendant is either “a mentally ill person subject to court order” or “a person with an intellectual
disability subject to institutionalization by court order.” R.C. 2945.39(A)(2)(b). Accord
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Williams at ¶ 13. “The trial court has ‘broad discretion’ as to what to review in making [its]
determinations * * *.” State v. Decker, 10th Dist. Franklin No. 16AP-684, 2017-Ohio-4266, ¶
30, quoting In re Burton, 11 Ohio St. 3d 147, 149 (1984). By statute, it may consider “all
relevant evidence, including, but not limited to, any relevant psychiatric, psychological, or
medical testimony or reports, the acts constituting the offense charged, and any history of the
defendant that is relevant to the defendant’s ability to conform to the law.” R.C. 2945.39(B).
{¶29} The phrases “mental illness” and “mentally ill person subject to court order” are
statutorily defined terms of art. See R.C. 5122.01(A) and (B). See also R.C. 2945.37(A)(7). 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.” Meanwhile, the phrase “mentally ill person subject to court order”
includes a defendant who, due to his or her mental illness:
(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 * * *.
R.C. 5122.01(B)(2) and (4). The Ohio Supreme Court has instructed trial courts, in assessing
whether a defendant is a mentally ill person subject to court order, to consider the totality of the
circumstances. See Williams at ¶ 13, citing In re Burton at paragraph one of the syllabus. See
also In re Burton at 149-150 (outlining a variety of factors for the court to consider in conducting
its totality of the circumstances analysis).
{¶30} If a trial court determines that the State has set forth clear and convincing
evidence to satisfy the elements of R.C. 2945.39(A)(2)(a) and (b), “the court shall commit the
14
defendant.” R.C. 2945.39(D)(1). The defendant must be placed “in the least-restrictive
commitment alternative available consistent with public safety and the defendant’s welfare * *
*.” Williams at ¶ 15, citing R.C. 2945.39(D)(1). In making its determination as to the least-
restrictive commitment, “the court shall consider the extent to which the [defendant] is a danger
to [himself] and to others, the need for security, and the type of crime involved * * *.” R.C.
2945.39(D)(1). The statute provides that the court must “give preference to protecting public
safety.” Id. Accord Williams at ¶ 15.
{¶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
15
his conduct. The court noted that there was evidence Mr. Weaver suffered from limited insight
and judgment, had problems recognizing boundary issues, and was fixated “on reducing his
bond, getting back to normal life and [believing/hoping] his charges would just be dropped and
go away.” The court found that Mr. Weaver suffered from intellectual deficiencies and, under
these facts and circumstances, those deficiencies “manifested in such a way that he [met] the
definition of mental illness in R.C. 5122.01(A).” It also found that, due to his inability to
understand the seriousness of his behavior, Mr. Weaver represented a substantial risk of physical
harm to others. Based on those findings, it concluded that he was a “mentally ill person subject
to court order” under R.C. 5122.01(B).
{¶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
16
situation/outcome [as] unrealistic” and noted that he was simply “fixat[ed] on reducing his bond,
getting back to normal life and [believing/hoping] his charges would just be dropped and go
away.”
{¶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 R.C. 2945.371(G)(3)(b) and (G)(3)(d).
17
{¶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.
18
{¶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 R.C. 5122.01(B)(2) or (B)(4). Other than the incidents for which he was indicted, he
argues that there was no evidence he is presently dangerous or represents a substantial risk to
society. He asserts that his criminal record is negligible and does not contain any convictions for
violent offenses or offenses related to sexual misconduct. He also asserts that there was a wealth
19
of evidence concerning his pleasant, cooperative demeanor and his ability to live independently.
Finally, because he apologized for his behavior, he argues that there was evidence he understood
the seriousness of his conduct.
{¶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.” R.C. 5122.01(A). Noticeably
absent from that definition is any requirement that a person be diagnosed with a recognized,
classifiable disorder (i.e., one recognized by the diagnostic and statistical manual of mental
disorders). See State v. Knoble, 9th Dist. Lorain No. 08CA009359, 2008-Ohio-5004, ¶ 12,
quoting Hubbard v. Canton City School Bd. of Edn., 97 Ohio St. 3d 451, 2002-Ohio-6718, ¶ 14
(clear and unambiguous statutes must be enforced as written). While the legislature linked the
statutory definition of a “moderate level of intellectual disability” to the diagnostic and statistical
manual of mental disorders, it did not do so when defining the phrase “mental illness.” Compare
R.C. 5123.01(P) with R.C. 5122.01(A). To that end, the Tenth District has rejected the notion
that a defendant must be professionally diagnosed as suffering from a classified mental disorder
before a court may adjudge him mentally ill for purposes of R.C. 5122.01(A). Decker, 2017-
Ohio-4266, at ¶ 26, citing In re McKinney, 8 Ohio App. 3d 278, 280-281 (10th Dist.1983). Our
sister district has held that, “when a court construes the statute for the hospitalization of a
mentally ill person, it must abide by the plain meaning of the definition of mental illness as set
forth in R.C. 5122.01(A).” Decker at ¶ 26. This Court agrees with that proposition. See Knoble
at ¶ 12, quoting Hubbard at ¶ 14.
20
{¶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 R.C. 5122.01(A). See
Schiebel, 55 Ohio St. 3d at 74. Mr. Weaver was charged with two counts of kidnapping and
attendant sexual motivation specifications because, on several occasions, he restrained a seven-
year-old girl, kissed her, and forced his tongue into her mouth. See R.C. 2945.39(B) (instructing
court to consider all relevant evidence, including the acts constituting the offense charged). To
the extent he acknowledged his conduct, he said that he kissed the girl because he liked her, the
kiss excited him, and, someday, he hoped she could be his girlfriend. There was expert
testimony that, due to an intellectual disability, Mr. Weaver suffered deficits in judgment, was
unable to understand the seriousness of his conduct, and had an “unrealistic” appraisal “of the
entire situation/outcome * * *.” Moreover, Dr. Seibel, the expert from the facility that housed
Mr. Weaver for six months, specifically testified that 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 * * *.” Under these
particular facts and circumstances, the trial court could have concluded that Mr. Weaver’s
21
intellectual disability manifested itself as a substantial disorder of thought or perception that
grossly impaired his judgment, behavior, or capacity to recognize reality. See R.C. 5122.01(A).
See also Decker at ¶ 26, citing In re McKinney at 280-281. As such, notwithstanding the lack of
a professional psychiatric diagnosis, the court did not err when it found, by clear and convincing
evidence, that Mr. Weaver had a mental illness for purposes of R.C. 5122.01(A).
{¶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
22
and was in need of treatment. See R.C. 5122.01(B)(2), (4); In re Burton at 149-150. As such,
this Court cannot conclude that the court erred when it found, by clear and convincing evidence,
that Mr. Weaver was a mentally ill person subject to court order. Mr. Weaver’s second
assignment of error is overruled.
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 BY R.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 App.R. 12(A)(1)(c).
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 App.R. 27.
23
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. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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.