State v. Adkins , 2023 Ohio 3000 ( 2023 )

[Cite as State v. Adkins, 2023-Ohio-3000.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 22AP0022
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
NICHOLAS VAN ADKINS WAYNE COUNTY MUNICIPAL COURT
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2022 CR-B 000217
DECISION AND JOURNAL ENTRY
Dated: August 28, 2023
HENSAL, Judge.
{¶1} Defendant-Appellant, Nicholas Adkins, appeals from the judgment of the Wayne
County Municipal Court. This Court affirms.
I.
{¶2} In July 2020, Mr. Adkins became subject to a domestic violence civil protection
order. The order named his ex-wife and her two adult children as protected parties. The order was
originally set to terminate after one year, but the parties later agreed to a five-year extension. The
modification took effect in June 2021, resulting in a new termination date of July 2026. Relevant
to this appeal, the order prohibited Mr. Adkins from initiating contact with his ex-wife or her
daughter, entering their place of employment, or being within 500 feet of any place he knew or
should have known they were likely to be.
{¶3} In late November 2021, the ex-wife began receiving text messages from an
unknown number. The content of the messages led her to suspect Mr. Adkins was the individual
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messaging her. Her suspicions were confirmed when he started sending her picture messages and
messages through a social media application. The ex-wife filed several police reports based on
messages Mr. Adkins sent her in November and December 2021.
{¶4} On January 15, 2022, Mr. Adkins entered a bar where his ex-wife was working.
She demanded that he leave, and Mr. Adkins complied. Because she was not sure whether he
knew she worked at the bar, the ex-wife did not initially report the incident to the police. Mr.
Adkins returned to the bar on January 28, 2022, however, and demanded someone call his ex-wife.
The ex-wife was not working at the time, but her daughter was. Mr. Adkins approached the
daughter and told her to call her mother. He left shortly thereafter, and the bar staff contacted the
police.
{¶5} Later that same day, the ex-wife arrived at the bar to work the evening shift.
Sometime after midnight (i.e., on January 29, 2022), Mr. Adkins returned to the bar. He did not
ask for his ex-wife but took a seat in a booth. When a coworker told the ex-wife Mr. Adkins was
there, she contacted the police. Mr. Adkins was still present when the police arrived.
{¶6} Mr. Adkins was charged with four counts of violating a protection order and two
counts of menacing by stalking. Two counts of violating a protection order pertained to the
messages he sent his ex-wife in November and December 2021. The remaining two counts of
violating a protection order stemmed from Mr. Adkins entering the bar where his ex-wife and her
daughter worked on January 28, 2022, and January 29, 2022. Regarding the menacing by stalking
charges, one count named the ex-wife as the victim, and the other named the daughter.
{¶7} Mr. Adkins was appointed counsel, and the matter proceeded to a bench trial.
Following opening statements, defense counsel expressed a concern that Mr. Adkins might not be
competent to stand trial. The trial court heard limited testimony on that issue, found no good cause
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for further hearing, and ordered the trial to proceed. At its conclusion, the court found Mr. Adkins
guilty on all counts. The court sentenced him to a total of 537 days in jail and fines.
{¶8} Mr. Adkins now appeals from his convictions and raises four assignments of error
for review. For ease of analysis, we rearrange his assignments of error.
II.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED AN ERROR WHEN IT FOUND THAT
THERE IS NO GOOD CAUSE SHOWN TO ORDER A COMPETENCY EXAM
OF MR. ADKINS.
{¶9} In his third assignment of error, Mr. Adkins argues the trial court abused its
discretion when it failed to hold a competency hearing. We disagree.
{¶10} “A criminal defendant is presumed competent.” State v. Coker, 9th Dist. Summit
No. 29540, 2021-Ohio-2910, ¶ 8. If defense counsel raises the issue of a defendant’s competence
after the trial has commenced, “the court shall hold a hearing on the issue only for good cause
shown or on the court’s own motion.” R.C. 2945.37(B). The defense bears the burden of
establishing good cause for a competency hearing. Elyria v. Bozman, 9th Dist. Lorain No.
01CA007899, 2002-Ohio-2644, ¶ 7. “‘[G]ood cause’ * * * may be shown by ‘objective indications
such as medical reports, specific references by defense counsel to irrational behavior, or the
defendant’s own conduct during the trial * * *.’” State v. Johnson, 9th Dist. Summit No. 25620,
2011-Ohio-6417, ¶ 21, quoting State v. Rahman, 23 Ohio St.3d 146, 156 (1986).
{¶11} An appellate court applies the abuse of discretion standard when reviewing a trial
court’s decision whether to hold a competency hearing once trial has commenced. Rahman at 156.
The abuse of discretion standard implies that a trial court acted unreasonably, arbitrarily, or
unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an abuse
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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). This Court
is mindful that, “with respect to competency issues, deference should be granted to those ‘“who
see and hear what goes on in the courtroom.”’” State v. Knox, 9th Dist. Lorain No. 17CA011233,
2019-Ohio-2265, ¶ 11, quoting State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, ¶ 68, quoting
State v. Cowans, 87 Ohio St.3d 68, 84 (1999).
{¶12} After opening statements, defense counsel informed the trial court there was a
possible issue with Mr. Adkins’ competence to stand trial. Defense counsel stated: “the more time
I spend discussing this matter with Mr. Adkins, the less confident I am in his ability to assist the
defense in any kind of rational way.” Defense counsel gave a minimal explanation for his
concerns. He only stated that information he had received from Mr. Adkins earlier that morning
had turned out not to be “quite accurate * * *.”
{¶13} After listening to defense counsel, the trial court noted that the burden of
establishing good cause for a competency hearing fell upon the defense. The court asked defense
counsel whether he wished to present any evidence. Defense counsel declined, indicating that
there were no witnesses he could call to testify about Mr. Adkins’ competence, and he did not ask
for additional time to secure any such testimony. The trial court then permitted the State to briefly
examine the ex-wife on the competency issue. The ex-wife testified that Mr. Adkins routinely lied
over the course of their relationship and frequently made false statements to benefit himself or
manipulate others. After hearing her testimony, the trial court noted that defense counsel had
failed to offer any evidence to establish good cause while the ex-wife’s testimony tended to show
Mr. Adkins simply had a history of manipulation and lying. Based on those facts, the trial court
declined to find good cause for a competency hearing and proceeded with the trial.
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{¶14} Mr. Adkins argues the trial court abused its discretion when it refused to conduct a
competency hearing. He notes that less than one week elapsed between the day the court appointed
him counsel and the day his trial commenced. Given that short timeframe, Mr. Adkins argues it
was “highly doubtful” either defense counsel or the prosecution had sufficient time to consider his
competency. According to Mr. Adkins, the trial court should have conducted a competency
hearing to ensure his right to a fair trial.
{¶15} Having reviewed the record, we cannot conclude the trial court went so far as to
abuse its discretion when it refused to conduct a competency hearing. See Rahman, 23 Ohio St.3d
at 156. The only evidence defense counsel offered in questioning Mr. Adkins’ competence was
his own statement that Mr. Adkins may have given him inaccurate information about a factual
matter. See Bozman, 2002-Ohio-2644, at ¶ 7 (court may consider statements made by defense
counsel regarding competency). He did not point to any irrational behavior on the part of Mr.
Adkins, and there was no indication Mr. Adkins lacked the capacity to understand the proceedings.
See Johnson, 2011-Ohio-6417, at ¶ 21-22. Further, there were no other indications to suggest Mr.
Adkins was incompetent, such as medical reports or questionable conduct on his part during the
trial. See id. As noted, the court was only required to conduct a competency hearing if the defense
first established good cause for a hearing existed. See R.C. 2945.37(B); Bozman at ¶ 7. The trial
court heard testimony that Mr. Adkins simply had a history of lying and being manipulative. The
court reasonably could have concluded that was the reason he failed to provide his counsel with
entirely accurate information. Because Mr. Adkins has not shown the trial court abused its
discretion by refusing to hold a competency hearing, his third assignment of error is overruled.
ASSIGNMENT OF ERROR I
MR. ADKIN’S CONVICTION WAS BASED ON INSUFFICIENT
EVIDENCE[.]
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{¶16} In his first assignment of error, Mr. Adkins argues his convictions for violating a
protection order are based on insufficient evidence. According to Mr. Adkins, the State never
proved he was served with a copy of the protection order he allegedly violated. This Court rejects
his argument.
{¶17} Whether a conviction is supported by sufficient evidence is a question of law, which
we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this
review, our “function * * * is to examine the evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “The
relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” Id.{¶18} Relevant to this appeal, Revised Code Section 2919.27(A)(1) prohibits any person
from recklessly violating the terms of a domestic violence civil protection order. “In State v. Smith,
136 Ohio St.3d 1, 2013-Ohio-1698, the Ohio Supreme Court held that ‘the [S]tate must establish
beyond a reasonable doubt that it served the defendant with the [protection] order before the
alleged violation.” (Alterations sic.) State v. Meinke, 9th Dist. Lorain Nos. 15CA010738,
15CA010739, 2017-Ohio-7787, ¶ 9, quoting Smith at ¶ 20. Yet, the General Assembly later
amended Section 2919.27 to specifically eliminate the need for proof of service. Meinke at ¶ 9,
fn. 1. Effective September 27, 2017, the State need only prove a defendant was shown a copy of
the protection order or was informed of its issuance by a judge, magistrate, or law enforcement
officer. R.C. 2919.27(D).
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{¶19} Mr. Adkins argues his convictions for violating a protection order are based on
insufficient evidence because the State failed to prove he was served with the order. He relies on
Smith. As noted, however, Smith pre-dated legislative amendments to Section 2919.27. Following
those amendments, the State only had to prove Mr. Adkins was shown a copy of the protection
order or was told about it by a judge, magistrate, or law enforcement officer. R.C. 2919.27(D).
{¶20} The record reflects defense counsel repeatedly acknowledged Mr. Adkins was
subject to a protection order at trial. During closing argument, defense counsel stated:
Now there is no doubt that [Mr. Adkins] knew that there was a protection order,
that is true and I have no argument about that. He has testified that he was present
when the order was issued. He was present when it was issued for an additional
five years, so he was aware of that.
Apart from those statements, the State also presented evidence about the protection order during
its case-in-chief. The ex-wife testified that Mr. Adkins was present during the hearing when the
protection order against him issued and later agreed to the five-year extension. The State also
introduced a copy of a magistrate’s decision ordering that the protection order be extended by five
years. In that decision, the magistrate specifically noted Mr. Adkins was present at the extension
hearing and agreed to the extension. Assuming Mr. Adkins did not waive his sufficiency argument
through defense counsel’s statements, a rational trier of fact could have found that the State set
forth sufficient evidence to prove Mr. Adkins was shown a copy of the protection order or was
told about it by a judge or magistrate. See Jenks, 61 Ohio St.3d 259 at paragraph two of the
syllabus. Thus, his first assignment of error is overruled.
ASSIGNMENT OF ERROR II
MR. ADKIN’S CONVICTIONS WERE AGAINST THE WEIGHT OF THE
EVIDENCE[.]
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{¶21} In his second assignment of error, Mr. Adkins argues his convictions for violating
a protection order on January 28, 2022, and January 29, 2022, are against the manifest weight of
the evidence. We disagree.
{¶22} When considering a challenge to the manifest weight of the evidence, this Court is
required to consider the entire record, “weigh the evidence and all reasonable inferences, consider
the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier
of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th
Dist.1986). “A reversal on this basis is reserved for the exceptional case in which the evidence
weighs heavily against the conviction.” State v. Croghan, 9th Dist. Summit No. 29290, 2019-
Ohio-3970, ¶ 26. This Court “will not overturn a conviction as being against the manifest weight
of the evidence simply because the trier of fact chose to believe the State’s version of events over
another version.” State v. Warren, 9th Dist. Summit No. 29455, 2020-Ohio-6990, ¶ 25, quoting
State v. Tolliver, 9th Dist. Lorain No. 16CA010986, 2017-Ohio-4214, ¶ 15.
{¶23} The ex-wife testified that Mr. Adkins began sending her cell phone messages in
late November 2021 and continued doing so in December 2021. That same month, she started
working at a bar in Rittman. She was working there on January 15, 2008, when Mr. Adkins came
into the bar with a female. When she saw Mr. Adkins, the ex-wife told him he could not be at the
bar and instructed him to leave. Mr. Adkins claimed he was meeting someone there but complied
with her request. She did not initially report the incident because she was not sure if Mr. Adkins
knew she worked there or if his being there was simply a coincidence.
{¶24} The ex-wife’s daughter testified that she began working at the same bar as her
mother near the end of January 2022. She was working there on January 28th when Mr. Adkins
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entered the bar and went directly into the bathroom. When he emerged, Mr. Adkins began yelling,
“Call [my ex-wife], call [my ex-wife,] * * * [c]all my ex-wife, tell her that her ex-husband needs
to get ahold of her.” The daughter estimated that she was standing about six feet away from Mr.
Adkins while he yelled. She noticed him holding his chest as if he had been injured. At one point,
she testified, he looked at her and specifically told her to call her mom. The daughter testified that
Mr. Adkins was not at the bar for very long before he ran out and took off in his car. Before he
left, Mr. Adkins instructed her and the other employees not to call the police.
{¶25} A bar employee who was working on January 28, 2022, corroborated the daughter’s
testimony. She confirmed that Mr. Adkins walked into the bar, went straight into the bathroom,
and came out yelling for someone to call the ex-wife. She also heard Mr. Adkins tell the daughter
to call her mother. Much like the daughter, the bar employee indicated that Mr. Adkins appeared
to be injured. She saw blood on his body and napkins in his hand when he emerged from the
bathroom. She also testified that Mr. Adkins was wearing a bulletproof vest.
{¶26} The ex-wife testified that she arrived at the bar several hours later to begin her shift
at 5:00 p.m. It was past midnight when a co-worker informed her that Mr. Adkins had come into
the bar. The ex-wife looked through the bar’s kitchen window and saw Mr. Adkins sitting at a
table. She observed him wearing a bullet proof vest. According to the ex-wife, Mr. Adkins “was
just kind of sitting there relaxed, lackadaisical, * * * just kind of hanging out.” Rather than make
contact with him, she called the police.
{¶27} Mr. Adkins claimed that he did not know his ex-wife worked at the bar even after
he encountered her there on January 15, 2022. He testified that he had gone to that bar several
times in the past and thought she was just there as a customer. When asked why he went back to
the bar on January 28, 2022, Mr. Adkins offered two different explanations. First, he claimed he
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went to the bar because a friend had invited him there. Second, he claimed he went to the bar
because he had been shot twice, needed to check his wound, and believed the bar would be a “safe
haven.” According to Mr. Adkins, he did not see the daughter working at the bar because he was
injured and frantic. He denied ever speaking with her. He testified that he only spoke with one
employee. According to Mr. Adkins, he asked that employee whether his ex-wife was working
there because he did not want to violate the protection order by being there. He denied ever telling
anyone to call his ex-wife. While Mr. Adkins admitted that he returned to the bar sometime after
midnight on January 29, 2022, he maintained that he did not know his ex-wife was working there.
{¶28} Having reviewed the record and the arguments presented, this Court concludes Mr.
Adkins has not shown this is the exceptional case in which the evidence weighs heavily against
his convictions for violating a protection order on January 28, 2022, and January 29, 2022. See
Croghan, 2019-Ohio-3970, at ¶ 26. While Mr. Adkins claimed he was unaware his ex-wife
worked at the bar and came there for reasons unrelated to her, the court heard two different
witnesses testify that he repeatedly yelled at the staff to call his ex-wife, directly told the daughter
to call her mother, and instructed the bar staff not to call the police. The trier of fact was in the
best position to assess the credibility of the testifying witnesses. See State v. Queen, 9th Dist.
Summit No. 30138, 2023-Ohio-594, ¶ 12. As noted, a conviction is not against the manifest weight
of the evidence simply because the tier of fact chose to believe the State’s version of the events.
See Warren, 2020-Ohio-6990, at ¶ 25, quoting Tolliver, 2017-Ohio-4214, at ¶ 15. Mr. Adkins has
not shown the trier of fact lost its way by rejecting his explanation and convicting him. As such,
his second assignment of error is overruled.
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ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED AN (sic) REVERSIBLE ERROR WHEN IT
ALLOWED THE STATE TO INTRODUCE PRIOR ACTS DURING THE
TRIAL[.]
{¶29} In his fourth assignment of error, Mr. Adkins argues the trial court erred when it
admitted evidence regarding his prior acts. The court allowed the ex-wife to describe the conduct
that led to her securing a protection order against Mr. Adkins. He argues the admission of that
testimony violated Evidence Rules 401, 402, and 404(B). Upon review, we reject his argument.
{¶30} “Admissibility determinations under the evidentiary rules generally fall within the
sound discretion of the trial court.” State v. Tyler, 9th Dist. Summit No. 29225, 2019-Ohio-4661,
¶ 23. “A trial judge in a bench trial is presumed to know the law and to consider only the relevant,
material, and competent evidence in arriving at a decision.” State v. Diaz, 9th Dist. Lorain No.
02CA008069, 2003-Ohio-1132, ¶ 39. Even if a trial court improperly admits other acts evidence,
its error may be harmless if it did not impact the verdict. See State v. Ali, 9th Dist. Summit No.
29611, 2021-Ohio-4596, ¶ 39.
{¶31} The trial court allowed the ex-wife to testify that she obtained a protection order
against Mr. Adkins after he began following her everywhere and threatened to burn down her
camper. Defense counsel objected to her testimony on relevancy grounds, noting that the defense
had conceded a protection order was in place. The State argued the testimony bore upon the ex-
wife’s state of mind and the charges of menacing by stalking. In overruling Mr. Adkins’ objection,
the trial court indicated that it would only consider the testimony for the limited purpose the State
had identified.
{¶32} Mr. Adkins argues the trial court erred when it allowed his ex-wife to explain why
she obtained a protection order against him. According to Mr. Adkins, that testimony only served
12
to prejudice him. He notes that he stipulated a protection order was in place. Thus, Mr. Adkins
insists, the reason why his ex-wife secured the order was irrelevant.
{¶33} Upon review, this Court rejects Mr. Adkins’ argument. Mr. Adkins has not
addressed the trial court’s ruling that the ex-wife’s testimony bore upon her state of mind and the
menacing by stalking counts. See J.M. v. M.M., 9th Dist. Medina No. 15CA0057-M, 2016-Ohio-
5368, ¶ 20 (evidence of past abuse relevant to victim’s state of mind in determining whether victim
had reasonable fear of harm). This Court is not inclined to construct an argument on his behalf.
See App.R. 16(A)(7); Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8-9
(May 6, 1998). Because this was a bench trial, we presume the trial judge properly applied the
law and only considered “relevant, material, and competent evidence in arriving at a decision.”
Diaz, 2003-Ohio-1132, at ¶ 39. Further, even if we were to assume the trial court erred by
admitting the testimony at issue, Mr. Adkins has not established resulting prejudice. See Ali, 2021-
Ohio-4596, at ¶ 39. He has made no attempt to explain how the admission of that testimony
impacted the proceedings given the strength of the remaining evidence against him. See id. See
also State v. Robinson, 9th Dist. Summit No. 29689, 2021-Ohio-1053, ¶ 27-29. Again, this Court
will not construct an argument on his behalf. See App.R. 16(A)(7); Cardone at *8-9. For the
foregoing reasons, his fourth assignment of error is overruled.
III.
{¶34} Mr. Adkins’ assignments of error are overruled. The judgment of the Wayne
County Municipal Court is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, 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.
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.
JENNIFER HENSAL
FOR THE COURT
SUTTON, P. J.
STEVENSON, J.
CONCUR.
APPEARANCES:
WESLEY A. JOHNSTON, Attorney at Law, for Appellant.
ANGELA WYPASEK, Prosecuting Attorney, and JOHN HAMERS, Assistant Prosecuting
Attorney, for Appellee.