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State v. Decker

Court of Appeals of Ohio, Tenth District

June 13, 2017

State of Ohio, Plaintiff-Appellee,
v.
Louis Decker, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 14CR-2164

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.

          Yeura R. Venters, Public Defender, and George M. Schumann, for appellant.

         Argued:

          Laura R. Swisher.

          George M. Schumann.

          DECISION

          BRUNNER, J.

         {¶ 1} Defendant-appellant, Louis Decker, appeals a September 21, 2016 judgment of the Franklin County Court of Common Pleas committing him to the Columbus Developmental Center pursuant to R.C. 2945.39(D)(1) and 5122.01(B)(1). For the reasons that follow, we affirm.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} On April 24, 2014, a Franklin County Grand Jury indicted Decker for one count of rape and three counts of gross sexual imposition arising from allegations that he fondled and digitally penetrated a nine-year-old girl, H.W., and also forced her to touch his genitals. (Apr. 24, 2014 Indictment.) Two months later, the trial court ordered a competency evaluation. (June 9, 2014 Competency Evaluation Order.)

         {¶ 3} Pursuant to the court's order, Decker submitted to an evaluation by Dr. Aracelis Rivera, who concluded that Decker was not competent but capable of being restored to competency. (July 8, 2014 Rivera Report.) Dr. Rivera concluded that although Decker performed well on the Competence Assessment for Standing Trial for Defendants with Mental Retardation ("CAST-MR"), Decker lacked a real understanding of the court processes and was not able to appreciate his situation sufficiently to evaluate potential plea bargains. Id. at 10-14. The parties stipulated to Dr. Rivera's findings in a hearing on July 30, 2014. (Tr. at 4-5.)

         {¶ 4} Following questions in the July 30, 2014 hearing as to whether Decker was "subject to court-ordered institutionalization, " on August 1, 2014, Dr. Rivera released an updated report in which she added the opinion that, while Decker was intellectually disabled, [1] he was not subject to institutionalization by court order. (Aug. 1, 2014 Rivera Report at 17.) Approximately one month later on September 5, 2014, the court ordered Decker committed to a secure facility to undergo treatment for a maximum period of one year to restore him to competency. (Sept. 5, 2014 Commitment Entry at 2.)

         {¶ 5} On March 18, 2016, the trial court convened a hearing to take evidence on whether Decker had been successfully restored to competency. (Tr. at 8.) Two experts testified at the hearing, Dr. Joseph Kovesdi and Dr. Naeem Khan. (Tr. at 11, 103.) In addition to oral testimony, the trial court had several reports before it. It had the two reports of Dr. Rivera, two reports by Dr. Kovesdi based on evaluations of Decker that took place on July 31, 2015 and February 20, 2016 respectively, and one report by Dr. Khan based on a review of Decker's records and an evaluation of him occurring on December 11, 2015. (Aug. 31, 2015 Kovesdi Report; Jan 5, 2016 Khan Report; Mar. 15, 2016 Kovesdi Report.)

         {¶ 6} Dr. Kovesdi's testimony was consistent with his two reports that, in his opinion, Decker was competent to stand trial. (Tr. at 100.) He testified that Decker is intellectually disabled but is properly categorized in the mild range of intellectual disability. (Tr. at 72-73.) He explained that on both occasions on which he tested Decker, Decker performed better on the CAST-MR than the average competent intellectually disabled person. (Tr. at 19-21, 51-53; Mar. 15, 2016 Kovesdi Report at 3.) He testified that for someone of his intelligence, Decker has a good working memory, is capable of some abstract thinking, is able to categorize, and could assist his attorney in planning a defense. (Tr. at 29, 37, 44-48, 67-68.) He also testified that Decker knew what the charges were, that they were serious, and knew that plea bargaining was making a deal. (Tr. at 53-55.) However, he acknowledged that predicting outcomes was difficult for Decker and that he would have to rely heavily on his attorney in assessing any plea offers. (Tr. at 55-56, 87-88.) He admitted that acquiescence is a personality trait of being intellectually disabled. (Tr. at 83-84.) He also acknowledged that some decisions cannot be made for the client yet simultaneously agreed that Decker would likely defer to his attorney on such matters. (Tr. at 84-86.) Finally, he admitted that Decker would have trouble understanding the trial without special procedures and probably could not testify under cross-examination. (Tr. at 90-92.)

         {¶ 7} Dr. Khan testified that Decker was not competent to stand trial. (Tr. at 106.) Dr. Khan explained that Decker has the age equivalence of a nine or ten-year-old. (Tr. at 108-10.) Like a child, he is good at rote memorization, but he lacks more than a rudimentary grasp of abstract or deductive reasoning. (Tr. at 111-13.) Dr. Khan explained that Decker can be taught to parrot vocabulary or understand what the roles of court personnel are but he lacks a real (or intrinsic) understanding of them. (Tr. at 111-13, 117-20, 137-38.) Khan testified that when he administered the CAST-MR to Decker, Decker could answer questions that called for names of things or simple definitions, but on follow-up questioning, Decker showed no understanding of the particular concept. (Tr. at 113-20.) For instance, when asked when a person has to go to jail, Decker was able to correctly select "when you break the law" from multiple choice answers. (Tr. at 114.) But follow-up questioning showed that, to Decker, breaking something was a concrete idea like breaking a glass, and he did not really understand what "breaking the law" was. Id. Dr. Khan, like Dr. Kovesdi, testified that acquiescence is a common trait of being intellectually disabled. (Tr. at 139-40.) However, he also explained that there is a difference between understanding and acquiescing through weakness of will as a person of normal intelligence might do and acquiescing when intellectually disabled, which is more akin to a simple failure to understand how to make a decision. Id. Dr. Khan opined that Decker would be likely to acquiesce to almost anything the prosecutor might propose on cross-examination and could easily be talked into pleading guilty to a serious offense because he simply does not understand and therefor acquiesces. Id.

         {¶ 8} Following the presentation of evidence, the trial court found that Decker was not competent to stand trial. (Tr. at 145-48.) The trial court explained that it found credible testimony that Decker had the mentality of a ten-year-old and that his ability to understand simple, concrete terms, and analogies does not mean that he could comprehend the choices and issues he would face in a trial. Id.

         {¶ 9} The trial court then held a series of three hearings, on May 26, June 28, and July 14, 2016 on the topic of whether Decker should be subject to the continuing jurisdiction of the court as a person subject to institutionalization by court order due to mental illness or intellectual disability. (Tr. at 150, 190, 243.) The first of the three hearings consisted of arguments by counsel about whether Decker was mentally ill based on the reports and evidence already developed in order to explore the competency issue. (Tr. at 150-89.) Neither side objected to using previously developed materials in arguing this different issue. Id.

         {¶ 10} In the second hearing, the trial court took evidence on the question of whether Decker committed the offenses with which he was charged. At that hearing, a single witness, a detective from the Franklin County Sheriffs Office ("FCSO"), testified. (Tr. at 191.) The detective recounted that on April 11, 2014, the FCSO received a report from another law enforcement agency that H.W. had been sexually abused by Decker. (Tr. at 193-94, 220.) H.W. was interviewed on April 14, 2014, and the detective testified that he observed that interview. (Tr. at 195-96, 221.) He testified (without defense objection) that H.W. had alleged that Decker touched her vagina and breast and made her touch his penis. (Tr. at 195-96.)

         {¶ 11} The detective next testified that he interviewed Decker for over two hours on April 17, 2014. (Tr. at 210-11, 220.) He testified that he was not aware that Decker was intellectually disabled and that Decker had been read his rights and indicated that he understood. (Tr. at 209-10.) He explained that during the interview Decker initially denied the allegations. (Tr. at 212.) But after the detective and the other interviewers (there were one to three in the room at a time) repeatedly told Decker that he was lying, after they had Decker perform a "stress test, " after they informed him that the test showed he was lying, and after they brought Decker's girlfriend into the interrogation to encourage him to confess, Decker broke down and admitted he had touched H.W. inappropriately. (Tr. at 200, 211-16; Interview Video in passim). Approximately the final 20 minutes of the interview were introduced into evidence and played during the hearing. (Tr. at 202.)

         {¶ 12} During the video, on the occasions that Decker managed to speak intelligibly, he did not sound obviously mentally handicapped. (Interview Video in passim.) However, during much of the approximately 20-minute video depicting the end of the over two-hour interrogation, Decker was crying and hyperventilating. Id. During the video, the police and his girlfriend told him that he should confess and after approximately several minutes of sobbing, Decker admitted to touching H.W.'s privates. Id. at 0:00-4:15. Initially Decker denied that his fingers went inside H.W. at all. Id. at 12:25-14:15. But after prompting from the officers and repeated suggestions that Decker was still lying, Decker admitted that his fingers could have gone in slightly. Id.

         {¶ 13} The final hearing on July 14, 2016 consisted solely of the court's decision delivered orally on the record. (Tr. at 243-55.) The parties had argued about whether Decker was subject to court ordered institutionalization based on R.C. 5122.01(B)(4) (that the person "[w]ould 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"). (Tr. at 228-36.) Yet in enunciating its ruling, the trial court instead focused on R.C. 5122.01(B)(2) (that the person "[r]epresents a substantial risk of physical harm to others as manifested by evidence of recent homicidal or other violent behavior, evidence of recent threats that place another in reasonable fear of violent behavior and serious physical harm, or other evidence of present dangerousness"). Compare Tr. at 228-36 with Tr. at 251-52. The trial court orally found, by clear and convincing evidence, that Decker had committed the offenses with which he was charged and that he was a mentally ill person subject to court order. (Tr. at 243-54.) The trial court issued an entry memorializing the findings on September 21, 2016. (Sept. 21, 2016 Entry.)

{¶ 14} Decker now appeals.

         II. ASSIGNMENTS OF ERROR

         {¶ 15} Decker posits two assignments of error:

[1.] The trial court abused its discretion by solely relying on psychological testimony and reports from a previous R.C. 2945.38(H) competency hearing to make findings of mental illness and court-ordered hospitalization in a subsequent R.C. 2945.39(A)(2) hearing.
[2.] The trial court's finding that the defendant-appellant was a mentally ill person subject to court order was against the ...

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