[Cite as State v. Henderson,
2017-Ohio-2620.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellant : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
DONALD R. HENDERSON : Case No. 16-CA-23
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 12CR533
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 28, 2017
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
GREGG MARX THOMAS R. ELWING
239 West Main Street 60 West Columbus Street
Suite 101 Pickerington, OH 43147
Lancaster, OH 43130
Fairfield County, Case No. 16-CA-23 2
Wise, Earle, J.
{¶ 1} Plaintiff-Appellant, the state of Ohio, appeals the June 6, 2016 entry of the
Court of Common Pleas of Fairfield County, Ohio, terminating its previous commitment
of Defendant-Appellee, Donald Henderson.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On January 7, 2011, the Fairfield County Grand Jury indicted appellee on
two counts of rape in violation of R.C. 2907.02 (Case No. 2011-CR-7).
{¶ 3} On January 11, 2011, appellee entered a plea of not guilty by reason of
insanity and filed a motion to determine competency. Psychiatric evaluations were
ordered. Hearings were held on March 4, and April 26, 2011. By entry filed April 29,
2011, the trial court found appellee incompetent to stand trial, and ordered treatment at
Appalachian Behavioral Healthcare for restoration to competency.
{¶ 4} A hearing on appellee's competency was held on February 8, 2012. By
entry filed February 21, 2012, the trial court found appellee competent to stand trial.
{¶ 5} Following an additional evaluation regarding appellee's not guilty by
reason of insanity plea, hearings were held on July 20, and September 10, 2012. By
agreed entry filed September 25, 2012, appellee was again found to be incompetent to
stand trial, and restoration treatment was ordered.
{¶ 6} On November 30, 2012, appellee was re-indicted on the same two rape
counts (Case No. 2012-CR-533). The state dismissed the first indictment on December
18, 2012. On January 23, 2013, appellee entered a plea of not guilty by reason of
insanity.
Fairfield County, Case No. 16-CA-23 3
{¶ 7} On February 12, 2013, appellee filed a motion to dismiss on speedy trial
grounds, and on March 6, 2013, filed a motion to dismiss the indictment for violating the
one year limitation for restoration to competency pursuant to R.C. 2945.38(C). On
March 22, 2013, the state filed a motion to retain jurisdiction pursuant to R.C. 2945.39.
{¶ 8} By entry filed April 1, 2013, the trial court determined the maximum period
for restoration to competency had expired on January 12, 2013 as argued by appellee.
{¶ 9} A hearing to determine the trial court's continuing jurisdiction was held on
June 12, 2013.
{¶ 10} By entry filed July 3, 2013, the trial court denied appellee's motions to
dismiss.
{¶ 11} A hearing on appellee's competency to stand trial was held on August 1,
2013. By entries filed August 15, 2013, the trial court found continuing jurisdiction and
committed appellee to Appalachian Behavioral Healthcare, ordered appellee to undergo
an additional evaluation to determine competency to stand trial, and found appellee was
incompetent to stand trial as of January 12, 2013.
{¶ 12} Appellee filed a notice of appeal and this court affirmed the trial court's
decision. State v. Henderson, 5th Dist. Fairfield No. 13-CA-61, 2014-Ohio-2991
("Henderson I").
{¶ 13} On April 23, 2015, the trial court ordered appellee to undergo a psychiatric
evaluation by Appalachian Behavioral Healthcare to determine his competency to stand
trial. Evaluations from two different psychologists were filed on May 20, and August 5,
2015. A hearing was held on October 1, 2015. By entry filed February 2, 2016, the trial
court determined appellee remained incompetent to stand trial. The trial court
Fairfield County, Case No. 16-CA-23 4
requested additional briefing as to whether appellee's commitment should be terminated
pursuant to R.C. 2945.401(J).
{¶ 14} Following additional briefing and psychological reports, the trial court
found appellee was not a mentally ill person subject to court order and was not a
mentally retarded person subject to institutionalization by court order, and therefore
terminated appellee's commitment. Entry filed June 6, 2016.
{¶ 15} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 16} "THE TRIAL COURT ERRED WHEN IT TERMINATED ITS PREVIOUSLY
ORDERED COMMITMENT OF APPELLEE PURSUANT TO R.C. 2945.401(J) BY
JOURNAL ENTRY FILED ON JUNE 6, 2016."
I
{¶ 17} Appellant claims the trial court erred in terminating appellee's commitment.
We disagree.
{¶ 18} R.C. 2945.401 governs termination of commitment.1 Subsection (A)
stated the following in pertinent part:
A defendant found incompetent to stand trial and committed
pursuant to section 2945.39 of the Revised Code or a person found not
1R.C. 2945.401 was amended effective October 12, 2016, to replace the term "mental
retardation" with "intellectual disability." The cited provisions in this opinion follow the
language in effect at the time of the trial court's decision, June 6, 2016, prior to the
effective date of the amendment. Same for R.C. 5122.01 and 5123.01 discussed later
in this opinion.
Fairfield County, Case No. 16-CA-23 5
guilty by reason of insanity and committed pursuant to section 2945.40 of
the Revised Code shall remain subject to the jurisdiction of the trial court
pursuant to that commitment, and to the provisions of this section, until the
final termination of the commitment as described in division (J)(1) of this
section.
{¶ 19} Subsection (J)(1) provided the following:
(J)(1) A defendant or person who has been committed pursuant to
section 2945.39 or 2945.40 of the Revised Code continues to be under
the jurisdiction of the trial court until the final termination of the
commitment. For purposes of division (J) of this section, the final
termination of a commitment occurs upon the earlier of one of the
following:
(a) The defendant or person no longer is a mentally ill person
subject to court order or a mentally retarded person subject to
institutionalization by court order, as determined by the trial court;
(b) The expiration of the maximum prison term or term of
imprisonment that the defendant or person could have received if the
defendant or person had been convicted of the most serious offense with
which the defendant or person is charged or in relation to which the
defendant or person was found not guilty by reason of insanity;
Fairfield County, Case No. 16-CA-23 6
(c) The trial court enters an order terminating the commitment
under the circumstances described in division (J)(2)(a)(ii) of this section.
{¶ 20} Subsection (E) stated the following:
(E) In making a determination under this section regarding
nonsecured status or termination of commitment, the trial court shall
consider all relevant factors, including, but not limited to, all of the
following:
(1) Whether, in the trial court's view, the defendant or person
currently represents a substantial risk of physical harm to the defendant or
person or others;
(2) Psychiatric and medical testimony as to the current mental and
physical condition of the defendant or person;
(3) Whether the defendant or person has insight into the
defendant's or person's condition so that the defendant or person will
continue treatment as prescribed or seek professional assistance as
needed;
(4) The grounds upon which the state relies for the proposed
commitment;
(5) Any past history that is relevant to establish the defendant's or
person's degree of conformity to the laws, rules, regulations, and values of
society;
Fairfield County, Case No. 16-CA-23 7
(6) If there is evidence that the defendant's or person's mental
illness is in a state of remission, the medically suggested cause and
degree of the remission and the probability that the defendant or person
will continue treatment to maintain the remissive state of the defendant's
or person's illness should the defendant's or person's commitment
conditions be altered.
{¶ 21} Subsection (G) stated the following:
(G) In a hearing held pursuant to division (C) or (D)(1) of this
section, the prosecutor has the burden of proof as follows:
(1) For a recommendation of termination of commitment, to show
by clear and convincing evidence that the defendant or person remains a
mentally ill person subject to court order or a mentally retarded person
subject to institutionalization by court order;
(2) For a recommendation for a change in the conditions of the
commitment to a less restrictive status, to show by clear and convincing
evidence that the proposed change represents a threat to public safety or
a threat to the safety of any person.
{¶ 22} "Clear and convincing evidence is that measure or degree of proof which
is more than a mere 'preponderance of the evidence,' but not to the extent of such
certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will
Fairfield County, Case No. 16-CA-23 8
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought
to be established." Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118 (1954),
paragraph three of the syllabus. "Where the degree of proof required to sustain an
issue 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."
Cross at 477.
{¶ 23} "[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts." State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d
212 (1967), paragraph one of the syllabus. That is because the trier of fact "has the
best opportunity to view the demeanor, attitude, and credibility of each witness,
something that does not translate well on the written page." Davis v. Flickinger,
77 Ohio
St.3d 415, 418,
1997-Ohio-260,
552 N.E.2d 1159.
{¶ 24} Appellee's competency to stand trial has been an ongoing issue for many
years. On April 23, 2015, the trial court ordered appellee to undergo a psychiatric
evaluation by Appalachian Behavioral Healthcare to determine his competency to stand
trial. An evaluation was conducted by Russell T. Fox, Ph.D., a psychologist with
Appalachian Behavior Healthcare. A second evaluation at appellee's request was
conducted by Bradley A. Hedges, Ph.D., LPCC-S, a psychologist with Mid-Ohio
Psychological Services, Inc. Dr. Fox opined appellee was competent to stand trial. Dr.
Hedges opined appellee was not competent to stand trial and was not able to be
restored to competency.
{¶ 25} A hearing was held on October 1, 2015. Each psychologist testified
consistent with their evaluations. By entry filed February 2, 2016, the trial court
Fairfield County, Case No. 16-CA-23 9
determined appellee remained incompetent to stand trial. For several reasons set forth
in the entry, the trial court found Dr. Hedges to be "a more credible expert witness" on
appellee's present competency. The trial court requested additional briefing as to
whether appellee should remain in continued commitment or treatment and whether
appellee's commitment should be terminated pursuant to R.C. 2945.401(J).
{¶ 26} Following additional briefing and supplemental reports by Dr. Fox and Dr.
Hedges (State's Exhibit A and Defendant's Exhibit 1, respectively), the trial court found
appellee was not a mentally ill person subject to court order and was not a mentally
retarded person subject to institutionalization by court order, and therefore terminated
appellee's commitment. Entry filed June 6, 2016.
{¶ 27} In his report dated April 6, 2016, Dr. Fox diagnosed appellee with Mild
Intellectual Disability (formerly known as Mild Mental Retardation). Dr. Fox concluded
appellee "is a mentally retarded person subject to institutionalization by court order."
Dr. Fox advised the following:
It is also the professional opinion of this psychologist, with
reasonable psychological certainty, that treatment and placement within a
Developmental Center is the least restrictive environment to meet Mr.
Henderson's treatment needs as well as his safety and the safety of the
community. Though a state psychiatric hospital (such as ABH) could meet
Mr. Henderson's safety needs, a Developmental Center (such as
Cambridge Developmental Center) could provide the structure and
supervision necessary to ensure safety, while being better equipped to
Fairfield County, Case No. 16-CA-23 10
meet Mr. Henderson's treatment needs related to his Mild Intellectual
Disability diagnosis.
{¶ 28} In his report dated May 4, 2016, Dr. Hedges also diagnosed appellee with
Mild Intellectual Developmental Disorder. Dr. Hedges opined the following:
In summary, Donald Henderson is not a mentally ill person subject
to court ordered hospitalization because he is not currently experiencing a
mental illness. He is not a moderately retarded person subject to court
ordered institutionalization because he experienced Mild Intellectual
Developmental Disorder, not moderate, and because he has not
experienced a "comprehensive evaluation" as required by statute. …
Based on the currently available information, it would appear that Mr.
Henderson would most appropriately be managed in a supported living
environment that provides supervision of his behavior and support in
getting his daily needs met. Such an environment may be established
with the assistance of the local Developmental Disability Board.
Additionally, Alvis, Inc., in Columbus, Ohio provides services specifically
tailored to persons with these challenges. It is strongly recommended that
Mr. Henderson be referred to the Fairfield County Board of Developmental
Disability for consideration for placement at a facility such as Alvis.
Fairfield County, Case No. 16-CA-23 11
{¶ 29} Appellant argues in terminating appellee's commitment, the trial court
failed to consider the factors set forth in R.C. 2945.401(E) cited above. While the
statute states "the trial court shall consider all relevant factors," the statute does not
mandate findings on the factors, and does not limit consideration to the six factors only.
(Emphasis added.)
{¶ 30} Rather than specifically addressing the factors in R.C. 2945.401(E), the
trial court considered appellee's mental retardation and mental illness pursuant to R.C.
5123.01 and 5122.01, respectively. In its entry filed June 6, 2016, the trial court noted
the following: "Pursuant to Ohio Revised Code Sections 2945.37(A)(8), as used in
Sections 2945.37 to 2945.402 of the Ohio Revised Code, a 'mentally retarded person
subject to institutionalization by Court order' has the same meaning as in Section
5123.01 of the Ohio Revised Code." The trial court also noted:
Title 2945 of the Ohio Revised Code itself does not contain a
definition of the term "mental illness" or "mentally ill person subject to court
order." Those terms are, however, defined in Title 5122 of the Ohio
Revised Code, in particular Sections 5122.01(A) and (B). Further, Ohio
Revised Code Section 2945.401(B) indicates: "All other Provisions of
Chapters 5122 and 5123 of the Ohio Revised Code regarding
hospitalization or institutionalization shall apply to the extent they are not
in conflict with this Chapter. The court finds that Ohio Revised Code
Sections 5122.01(A) and (B) are not in conflict with Chapter 2945 of the
Ohio Revised Code. Thus, the following provisions, Ohio Revised Code
Fairfield County, Case No. 16-CA-23 12
Sections 5122.01(A) and (B) apply to the Court's determination of whether
the Defendant is a mentally ill person subject to Court order.
{¶ 31} Pursuant to R.C. 5123.01(O) at the time of the trial court's decision, a "
'[m]entally retarded person subject to institutionalization by court order' means a person
eighteen years of age or older who is at least moderately mentally retarded …."
(Emphasis added.)
{¶ 32} R.C. 2945.401(E)(2) states a trial court shall consider "[p]sychiatric and
medical testimony as to the current mental and physical condition of the defendant or
person." The trial court heard testimony from the two doctors during the October 1,
2015 hearing and reviewed their subsequent reports. The reports included opinions on
the factors set out in R.C. 2945.401(E)(1), (3), and (5). The subsequent reports were in
conflict. However, they both agreed appellee was mildly mentally retarded, not
moderately mentally retarded. Based on this agreed diagnosis, pursuant to R.C.
2945.401(J)(1)(a), the trial court properly determined appellee was not a mentally
retarded person as defined in R.C. 5123.01(O) subject to institutionalization by court
order.
{¶ 33} "Mental illness" is defined in R.C. 5122.01(A) and "[m]entally ill person
subject to court order" is defined in R.C. 5122.01(B). As noted by the trial court in its
June 6, 2016 entry, Dr. Fox "did not explicitly express an opinion as to whether the
Defendant is or is not a mentally ill person subject to Court order or whether the
Defendant has a mental illness." On the other hand, the trial court noted Dr. Hedges
Fairfield County, Case No. 16-CA-23 13
opined "the Defendant is not currently experiencing a mental illness." The trial court
concluded the following on this issue:
In sum, Dr. Fox did not explicitly find that the Defendant was
suffering from a mental illness; he did however, note that the Defendant
was receiving treatment not for a mental illness, but rather for a Mild
Intellectual Disability. Dr. Hedges unequivocally found that the defendant
is not now, nor has he in the recent past, suffered from a mental illness.
Therefore, the Court finds, from all available evidence that the Defendant
is not a mentally ill person subject to court order, pursuant to Ohio
Revised Code Section 2945.401(J)(1)(a).
{¶ 34} The trial court then ordered the following:
The Court directs Appalachian Behavioral Healthcare to refer the
Defendant to the Developmental Disability Board of the county in which he
will maintain his permanent residence, which would appear to be Fairfield
County, Ohio, and that Appalachian Behavioral Healthcare recommend
the Developmental Disability Board consider referring the Defendant for
placement at the Alvis, Inc., facility, in Columbus, Ohio.
{¶ 35} We find by choosing to rely on Dr. Hedges's report, the trial court tacitly
accepted his opinions on the factors listed in R.C. 2945.401(E)(1), (3), and (5).
Fairfield County, Case No. 16-CA-23 14
{¶ 36} As for appellant's arguments involving Henderson I, that opinion
concerned the trial court's decision filed August 15, 2013. We find our opinion was
based on the status of the record at that time, and has no bearing to the present state of
the record.
{¶ 37} Upon review, we find appellant did not meet its burden to prove by clear
and convincing evidence that appellee was a mentally ill person subject to
hospitalization by court order or a mentally retarded person subject to institutionalization
by court order under R.C. 2945.401(J). We find the record contains sufficient evidence
to support the trial court's decision to terminate appellee's commitment.
{¶ 38} The sole assignment of error is denied.
{¶ 39} The judgment of the Court of Common Pleas of Fairfield County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Delaney, P.J. and
Wise, John, J. concur.
EEW/sg 405
