[Cite as State v. Cunningham,
2016-Ohio-3050.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
NICHOLAS CUNNINGHAM : Case No. 2015CA00224
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2015CR0494
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 16, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO EUGENE O'BYRNE
Prosecuting Attorney 101 Central Plaza South
By: KRISTINE BEARD Canton, OH 44702
Assistant Prosecuting Attorney
110 Central Plaza South, Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2015CA00224 2
Farmer, P.J.
{¶1} On April 14, 2015, the Stark County Grand Jury indicted appellant, Nicholas
Cunningham, on one count of rape in violation of R.C. 2907.02 and one count of gross
sexual imposition in violation of R.C. 2907.05. Said charges arose from incidents in 2010
between appellant and a victim less than thirteen years old.
{¶2} On April 29, 2015, appellant requested a competency evaluation which the
trial court granted. Appellant was evaluated by Dr. Lynn Luna Jones who concluded
appellant was competent to stand trial.
{¶3} On July 7, 2015, appellant requested a second competency evaluation
which the trial court granted. Appellant was evaluated by Dr. Robert Devies who
concluded appellant was not competent to stand trial.
{¶4} Hearings on the issue of competency were held on September 23, and
October 6, 2015. At the conclusion of the hearings, the trial court found appellant
competent to stand trial.
{¶5} On October 6, 2015, appellant pled no contest to an amended count of
sexual battery in violation of R.C. 2907.03 and the gross sexual imposition count. By
judgment entry filed October 16, 2015, the trial court found appellant guilty and ordered
a presentence investigation. By judgment entries filed November 4 and 18, 2015, the trial
court sentenced appellant to an aggregate term of thirty-six months in prison.
{¶6} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
Stark County, Case No. 2015CA00224 3
I
{¶7} "THE TRIAL COURT'S DETERMINATION THAT APPELLANT WAS
COMPETENT TO STAND TRIAL WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE, IN LIGHT OF THE OVERWHELMING COMPETENT, CREDIBLE
EVIDENCE DEMONSTRATING APPELLANT'S SUBSTANTIAL COGNITIVE,
PSYCHOSOCIAL PSYCHIATRIC, AND INTELLECTUAL DEFECTS AND
DISABILITIES."
I
{¶8} Appellant claims the trial court's determination that he was competent to
stand trial was against the manifest weight of the evidence. We disagree.
{¶9} An appellate court will not disturb a competency determination if there was
"some reliable, credible evidence supporting the trial court's conclusion that appellant
understood the nature and objective of the proceedings against him." State v. Williams,
23 Ohio St.3d 16, 19 (1986). "[T]he adequacy of the data relied upon by the expert who
examined the appellant is a question for the trier of fact."
Id.
{¶10} In In the Matter of, Kristopher F., 5th Dist. Stark No. 2006CA00312, 2007-
Ohio-3259, ¶ 25, this court explained the following:
Pursuant to R.C. 2945.37(G), a "defendant is presumed competent
to stand trial unless it is proved by a preponderance of the evidence in a
hearing under this section that because of his present mental condition he
is incapable of understanding the nature and objective of the proceedings
against him or presently assisting in his defense." In Dusky v. U.S. (1960),
Stark County, Case No. 2015CA00224 4
362 U.S. 402,
80 S.Ct. 788,
4 L.Ed.2d 824, the Supreme Court stated that
the test for competency is whether the defendant has a "sufficient present
ability to consult with his lawyer with a reasonable degree of rational
understanding and whether he has a rational as well as factual
understanding of proceeding against him." See also, In re Anderson,
Tuscarawas App. No. 2001AP030021, 2002-Ohio-776, appeal not allowed,
95 Ohio St.3d 1474,
2002 Ohio 2444,
768 N.E.2d 1182.
{¶11} "Preponderance of the evidence" is "evidence which is of greater weight or
more convincing than the evidence which is offered in opposition to it; that is, evidence
which as a whole shows that the fact sought to be proved is more probable than not."
Black's Law Dictionary 1182 (6th Ed.1990).
{¶12} The trial court was presented with two expert psychological opinions, one
from Robert Devies, Ph.D. and one from Lynn Luna Jones, Ph.D. Appellant argues Dr.
Devies's opinion is more compelling than the opinion of Dr. Jones.
{¶13} Our brethren from the Fourth District in State v. Merryman, 4th Dist. Athens
No. 12CA28, 2013-Ohio-4810, ¶ 30, explained the following in reviewing a competency
determination involving opposing expert opinions:
As the trier of fact, the trial court was in the position to determine the
credibility of the expert witnesses. The weight to be given the evidence and
the credibility of the witnesses are primarily for the trial court as the trier of
fact. State v. Stewart, 4th Dist. Gallia No.91 CA24, 1992 WL 174699 (July
Stark County, Case No. 2015CA00224 5
22, 1992) citing State v. DeHass, 10 Ohio St.2d 230,
227 N.E. 212 (1967).
The adequacy of the "data relied upon by the expert who examined [the
defendant] is a question for the trier of fact." Id . "Deference on these issues
should be given 'to those who see and hear what goes on in the courtroom.'
" State v. Were, 118 Ohio St.3d 448,
2008-Ohio-2762,
890 N.E.2d 263
quoting State v. Cowans, 87 Ohio St.3d 68, 84,
1999-Ohio-250,
717 N.E.2d
298 (1999). A trial court is permitted to disagree with an expert's opinion on
competency where the trial court's decision is support by evidence in the
record and by the court's own observations of the defendant. Were, 118
Ohio St.3d at 456,
890 N.E.2d 263, 2008–Ohio–2762 at ¶ 52.
{¶14} Dr. Devies testified appellant had an IQ of 53. September 23, 2015 T. at 7.
He explained a low IQ "sets a standard that suggests it is more likely than not a person
is not competent." Id. at 8. The mean IQ for people found not to be competent is 57 or
58. Id. at 9. While Dr. Devies believes IQ is a prime factor, he looks to other comorbid
conditions, i.e., autistic spectrum disorders and drug addiction. Id. at 10. Appellant has
a history of Aspergers and a drug addiction that requires Suboxone therapy. Id. at 10-
11. Dr. Devies opined given appellant's lifelong cognitive challenges and his
developmental disorder, he could not be restored to competency within one year. Id. at
12. Dr. Devies also opined appellant's autism disorder affected his memory which could
impact his ability to be of assistance to his trial counsel, as it would be "almost near
impossible" for appellant "to have good recall and to be of assistance to counsel." Id. at
14-15.
Stark County, Case No. 2015CA00224 6
{¶15} Dr. Jones diagnosed appellant with an "intellectual disability" and concurred
his IQ could be 53. October 6, 2015 T. at 6, 10, 15-16. She classified appellant's
intellectual disability as "mild" and his "opiate use disorder" as "severe." Id. at 10, 11.
Appellant responded slowly to questions, but appeared to be cooperative. Id. at 12, 13.
Appellant was administered the Competency Assessment for Standing Trial for
Defendants with Mental Retardation. Id. at 18. The test has three sections: 1) basic legal
concepts, 2) skills to assist defense, and 3) understanding case events. Id. at 18-19.
Appellant scored high, "for a total of 94 percent correct," that score being "much higher
than the average mean score of Defendants with mental retardation that were found
competent to stand trial." Id. at 19. Dr. Jones stated appellant "was able to tell me not
only what happened at point one back in, I don't know, 2011 maybe when the police first
spoke to him about the case, and also what happened in 2015 when it came back up
again." Id. at 24. Appellant was able to relate to Dr. Jones the five year old allegations.
Id. at 25. Dr. Jones explained the basis for her opinion in finding appellant competent to
stand trial as follows (Id. at 28-29):
THE WITNESS: Well, two things, Your Honor. First, I gave him the
sort of structured interview like I would to a Defendant of any level of IQ,
and he did stellar on it as far as I was concerned in just the open-ended
questions part. I was incredibly impressed, for example, his definition of not
guilty and how he understood that they were going to find evidence and
reasonable doubt if I did it or not. I don't get people of much higher IQ than
him giving answers like that. And then getting the 94 percent on that other
Stark County, Case No. 2015CA00224 7
instrument, to me - - I am not hundred percent but I am pretty sure it's the
highest score that I have ever given that test to an individual with mental
retardation has ever obtained.
{¶16} As noted above, the trial court is in the best position to evaluate the opinions
of both experts and consider the underlying basis for their opinions. Also, the trial court
had the opportunity to observe the demeanor of appellant and his relationship to his
attorney.
{¶17} While Dr. Devies premised his opinion on the belief that appellant's low IQ,
autistic spectrum disorder, and drug addiction rendered him incompetent, Dr. Jones
rested her opinion on appellant's ability to perform in a "stellar" fashion on the open-ended
questions related to case events and ability to participate in his defense.
{¶18} At the conclusion of the hearing, the trial court determined the following
(October 6, 2015 T. at 34-35):
Obviously from my questions of Dr. Jones it was apparent my
primary concern here, given the IQ testing, was the ability to assist his
counsel in his Defense, and thus my questions relating back five years. This
isn't a five-month, five-week, five-day situation. This is five years, and that
was troublesome to the Court given the rest of the report.
And the primary thing I wanted to have addressed, which it was,
clearly questions were asked that satisfied Dr. Jones. The performance on
the additional tests given by this Defendant, the ability to relate medical
Stark County, Case No. 2015CA00224 8
terminology, all of this has led the Court to believe that, number one, he
understands the nature of the proceedings, the pleas, he's able to relate
that.
And secondly and most importantly, the Court finds that he is able to
assist his counsel in his Defense, and accordingly is, in fact, competent to
stand trial.
{¶19} Upon review, we find the preponderance of the evidence supports the trial
court's determination of competency.
{¶20} The sole assignment of error is denied.
{¶21} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Farmer, P.J.
Wise, J. and
Baldwin, J. concur.
SGF/sg 502
