[Cite as State v. Jackson, 2020-Ohio-4914.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE OF OHIO, : 

 Plaintiff-Appellant, : 

 No. 108558 

 v. : 

 

ANDRE JACKSON, : 

 

 Defendant-Appellee. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: REVERSED AND REMANDED

RELEASED AND JOURNALIZED: October 15, 2020 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-87-221195-ZA 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Christopher D. Schroeder, Assistant 

Prosecuting Attorney, for appellant. 

Timothy Young, Ohio Public Defender, Kathryn L. 

Sandford and Randall L. Porter, Assistant State Public 

Defenders, for appellee. 

KATHLEEN ANN KEOUGH, J.: 

Pursuant to R.C. 2945.67(A), plaintiff-appellant, the state of Ohio, 

appeals the trial court’s decision that granted the postconviction petition of 

defendant-appellee, Andre Jackson, and vacated the death sentence. For the 
reasons that follow, we reverse the trial court’s decision and remand for the trial 

court to determine whether Jackson is intellectually disabled under the new 

standard established in State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 

N.E.3d 616. 

I. Procedural Background 

Jackson was sentenced to death for the 1987 brutal murder of Emily 

Zak. The facts of the case, which are not in dispute, can be found in both this court’s 

decision affirming Jackson’s convictions on direct appeal, State v. Jackson, 8th Dist. 

Cuyahoga No. 55758, 1989 Ohio App. LEXIS 5064 (Oct. 5, 1989), and the Ohio 

Supreme Court’s decision affirming the same, State v. Jackson, 57 Ohio St.3d 29, 

565 N.E.2d 549 (1991). 

After exhausting all state-court appeals, Jackson filed a petition for a 

writ of habeas corpus in the United States District Court for the Northern District of 

Ohio. In 2001, the district court denied his petition. Jackson v. Anderson, 141 

F.Supp.2d 811, 830 (2001). Jackson appealed that decision to the Sixth Circuit 

Court of Appeals. 

In June 2002, while Jackson’s case was pending in the Sixth Circuit, 

the United States Supreme Court held that the Eighth Amendment to the United 

States Constitution prohibited the execution of an intellectually disabled offender. 

See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The 

Supreme Court did not define “intellectual disability”; rather, the court left “‘to the 

states the task of developing appropriate ways to enforce the constitutional 
restrictions’” announced in Atkins. Id. at 317, quoting Ford v. Wainwright, 477 U.S. 

399, 416-417, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). 

The Ohio Supreme Court developed procedures and substantive 

standards for adjudicating Atkins claims in State v. Lott, 97 Ohio St.3d 303, 2002-

Ohio-6625, 779 N.E.2d 1011. The court adopted a three-part test that defined 

“intellectual disability” as (1) significantly subaverage intellectual functioning, (2) 

significant limitations in two or more adaptive skills, such as communication, selfcare, and self-direction, and (3) onset before the age of 18. Id. at ¶ 12. The court 

further noted that “IQ tests are one of many factors that need to be considered; they 

alone are” insufficient “to make a final determination on this issue.” Id. 

Accordingly, the court held “that there is a rebuttable presumption that a defendant 

is not [intellectually disabled] if his or her IQ is above 70.” Id. 

The Lott court also set forth the following guidance and standard: 

In considering an Atkins claim, the trial court shall conduct its own de 

novo review of the evidence in determining whether the defendant is 

[intellectually disabled]. The trial court should rely on professional 

evaluations of [a defendant’s] mental status, and consider expert 

testimony, appointing experts if necessary, in deciding this matter. The 

trial court shall make written findings and set forth its rationale for 

finding the defendant [intellectually disabled] or not [intellectually 

disabled]. 

Id. at ¶ 18. 

For defendants, such as Jackson, who are already on death row, the 

court found that Atkins was a new decision of the United States Supreme Court that 

applied retroactively. Id. at ¶ 17, citing R.C. 2953.23(A)(1)(b). “For all other 
defendants who have been sentenced to death, any petition for postconviction relief 

specifically raising an Atkins claim must be filed within 180 days of the judgment in 

this case.” Id at ¶ 24. 

On May 9, 2003, Jackson timely filed his petition raising an Atkins

claim. In response, the trial court referred Jackson to the Cuyahoga County 

Psychiatric Clinic for an evaluation to determine whether he was intellectually 

disabled. Dr. Michael Aronoff interviewed and evaluated Jackson for the sole 

purpose of his Atkins claim. On October 17, 2003, Dr. Aronoff submitted his report 

to the court opining that “Jackson is not [an intellectually disabled] individual.” 

In 2007, the state moved for summary judgment based on Dr. 

Aronoff’s expert report. Jackson opposed the motion. In 2009, the trial court 

denied the state’s motion, finding that a genuine issue of material fact existed as to 

whether Jackson is intellectually disabled. In 2016, following a request by the Sixth 

Circuit for a status update, the trial court scheduled a hearing on Jackson’s petition. 

II. Atkins Hearing 

In 2017, the trial court conducted a full evidentiary hearing on 

Jackson’s petition. At the hearing, it considered testimony from four experts and 

considered additional expert reports and affidavits from professionals who had 

evaluated Jackson over his lifetime. The court also heard lay witness testimony from 

Jackson’s mother, brother, and childhood friend. 
A. Dr. David Smith — Jackson’s Expert 

Dr. Smith, a clinical psychologist, testified regarding his expert report 

and opinion generated following his interview and assessment of Jackson on May 9, 

13, and 23, 2016, at the Chillicothe Correctional Institution. 

Testing for intellectual functioning, Dr. Smith administered to 

Jackson the Stanford-Binet Intelligence Test, Fifth Edition (2003) (“S-BV”). On the 

S-BV, Jackson obtained a full-scale intelligence quotient (“IQ”) score of 80. Dr. 

Smith stated that an average score would be 100, with a standard deviation of 16. 

According to Dr. Smith, after factoring the standard error of measurement (“SEM”), 

Jackson’s true IQ score would fall between the range of 76-84, with a 95% 

confidence level. According to Dr. Smith, this score does not currently place him in 

the intellectual disability range. Based on this result, Dr. Smith opined in his report 

that Jackson “was found to currently be an individual who does not have intellectual 

disability * * *.” However, Dr. Smith opined that Jackson “functioned in the mild 

range of intellectual disability at the time of the crime.” He stated that Jackson’s 

intellectual functioning has improved as an adult and while incarcerated. Dr. Smith 

testified about studies and articles that discuss improvements in intellectual 

functioning of incarcerated and nonincarcerated individuals. 

In assessing adaptive skills, Dr. Smith administered the Vineland 

Adaptive Behavior Scales, Second Edition Survey Interview Form (“VABS-II”), 

where Jackson achieved an overall score of 66, which is below two standard 

deviations from the average of 100, i.e. 70. Dr. Smith also gave Jackson portions of 
Ohio Eligibility Determination Inventory (“OEDI”), which is used to determine 

whether an individual is eligible for disability services. The three areas of the OEDI 

that Jackson was tested on were “the capacity for independent living, learning, and 

economic self-sufficiencies.” On all three areas, Jackson showed “substantial 

functional limitations.” Dr. Smith opined that Jackson showed adaptive skills 

deficits. 

Dr. Smith testified about the third criterion for a finding of 

intellectual disability: that the deficits in intellectual functioning and adaptive 

behavior skills had an onset prior to the age of eighteen. Dr. Smith found this 

criterion to be satisfied through the assessment conducted by Dr. Isidore Helfand in 

1978 when Jackson was 12 years old. 

B. Dr. Carla Dreyer — State’s expert 

Dr. Dreyer, a clinical psychologist, testified regarding her expert 

report and opinion generated following her interview and assessment of Jackson on 

August 3, 2016, at the Chillicothe Correctional Institution. She testified that she 

administered the Test of Memory Malingering (“TOMM”), Wechsler Adult 

Intelligence Scale - 4th Edition (“WAIS-IV”), Wide Range Achievement Test - 4th 

Edition (“WRAT- 4”), and the Adaptive Behavior Assessment Scale - 3d Edition 

(“ABAS-3”). The TOMM measures effort and malingering, and according to Dr. 

Dreyer, there was no indication on this test that Jackson malingered. 

On the WAIS-IV, Jackson obtained a full-scale IQ score of 67. 

Factoring the SEM, Jackson’s true IQ fell between a range of 62 and 72, with a 95% 
confidence level. She stated that the average score on the WAIS-IV is 100, with a 

standard deviation of 15. Dr. Dreyer testified that she thought Jackson’s score was 

an underestimate of his real IQ based on the lack of effort he exhibited during the 

testing and because only three months prior, he obtained an IQ score of 80. Dr. 

Dreyer opined that the higher score achieved with Dr. Smith would be more reliable. 

Dr. Dreyer testified that she did not believe that someone who was 

determined to be intellectually disabled in 1987, at the time of the crime, would be 

“cured” over time because intellectual disability “is a permanent developmental 

condition,” except for individuals who suffer from brain injuries, conditions, or 

events that “interferes or causes a decline in function.” (Tr. 301-303.) It was her 

opinion that Jackson likely had undiagnosed ADHD as a child, which progressed 

into a diagnosis of antisocial personality disorder as an adult. According to Dr. 

Dreyer, these behavioral disorders were a more plausible explanation for Jackson’s 

inconsistent IQ scores. (Tr. 320.) 

Regarding the WRAT-4, which tests academic abilities, Dr. Dreyer 

testified that Jackson’s scores were higher than she anticipated given his 

performance on the WAIS-IV. For adaptive skills, Dr. Dreyer administered the 

ABAS-3, where Jackson scored a general adaptive composite score of 81. According 

to Dr. Dreyer, the individual scores placed Jackson in the low to average range and 

were consistent with an individual functioning in the low average range, not a person 

with intellectual disability. 
Dr. Dreyer opined in her report that Jackson “is not intellectually 

disabled now, nor has he ever met the criteria for an intellectual disability.” She 

opined that Jackson meets the criteria for borderline intellectual functioning and 

antisocial personality disorder. 

C. Dr. Michael Aronoff 

Dr. Aronoff, a psychologist with the Cuyahoga County Court 

Psychiatric Clinic, testified about his 2003 assessment of Jackson, which was in 

response to Jackson’s Atkins petition and where he was appointed by the court. Dr. 

Aronoff stated that he reviewed records, interviewed Jackson, and administered IQ 

and academic achievement testing— the WAIS-III and WRAT-3, respectively. 

On the WAIS-III, Jackson obtained a full-scale IQ score of 76. Dr. 

Aronoff testified that factoring in the SEM, Jackson’s true IQ fell within the range of 

71-81. Dr. Aronoff also administered the WRAT-3, which measures academic 

ability. He reported that Jackson scored in the 13th percentile for reading, an 

equivalent to that of an 8th grade reading level; 34th percentile for spelling, an 

equivalent to high school grade level; and 8th percentile for arithmetic, an 

equivalent to 6th grade level. According to Dr. Aronoff, these performances placed 

Jackson in the average to borderline ranges. 

Dr. Aronoff reported that Jackson is clinically a complex individual 

because over the years, “various reports offer contradictory and inconsistent 

conclusions.” His diagnostic impression determined that Jackson is borderline 

intellectual functioning, not intellectually disabled. He stated that his testing 
revealed that Jackson did not satisfy the first Lott factor of subaverage intellectual 

functioning because Jackson did not render a score below 70 even considering the 

SEM. Accordingly, Dr. Aronoff stated that he did not perform adaptive skills testing, 

instead conceding “to Dr. Everington’s results [on adaptive skills] because I had 

nothing to rebut it.” (Tr. 381.) 

Dr. Aronoff also noted that Jackson’s IQ results reported by Dr. 

Schmidtgoessling in 1992 “were also within the borderline range.” However, at the 

hearing, Dr. Aronoff agreed that the 68 IQ score in 1972 and the 72 IQ score in 1992, 

after factoring in the SEM, showed significantly subaverage intellectual functioning. 

(Tr. 392.) 

D. Dr. Nancy Schmidtgoessling 

Dr. Schmidtgoessling, a psychologist in the areas of clinical and 

forensic psychology, testified that she evaluated Jackson in 1992. Dr. 

Schmidtgoessling administered to Jackson the Weschler Adult Intelligence Scale - 

Revised (“WAIS-R”) in which he obtained a full-scale IQ score of 72. She testified 

that the SEM at the time would have been plus or minus three points. (Tr. 418.) Dr. 

Schmidtgoessling agreed that in 1992 she did not diagnose Jackson as intellectually 

disabled. (Tr. 422.) 

E. Lay Witnesses 

Jackson’s mother and brother, Jacqueline Graham and Derek 

Jackson, respectively, testified about Jackson’s childhood. Graham testified that 

Jackson was a not a good student, could not stay on task, had problems 
communicating, and was unable to learn or process information. She stated that he 

had impulsive behaviors and would always make jokes or show off to mask 

inadequacies. Graham stated that Jackson was a rule breaker and punishment was 

not a deterrent; he often acted unsafely. She stated that he had “no fear” and during 

childhood he drank bleach once, was scalded by hot water, and twice set the house 

on fire. Graham further testified that her son could not keep a job and was 

irresponsible with money. 

Jackson’s brother, Derek, testified that Jackson engaged in risky 

behavior and never appreciated the consequences of his actions. He stated that 

Jackson did not do well in school, had a short attention span, and could not keep a 

job. According to Derek, Jackson resented him because Derek achieved better 

grades even though he was the younger of the two. 

Myron Watson, an attorney and Jackson’s childhood friend, testified 

about Jackson and their friendship during childhood. Watson testified that he 

believed Jackson masked his intellectual and academic deficiencies by pulling 

pranks and making jokes as a form of deflection. He stated that Jackson wanted to 

be part of the popular crowd and was easily influenced. Watson testified that 

Jackson did not do well in school or graduate, never obtained a driver’s license, 

could not hold a job, never had any money, and could not live on his own. Watson 

also testified about his 1992 affidavit that was prepared in preparation for Jackson’s 

petition for postconviction relief, in which he averred that Jackson was “bright and 

capable.” Despite agreeing that he made this statement, he did not agree with it and 
stated that based on his past relationship with Jackson, Jackson is intellectually 

disabled. 

F. Expert Reports 

Drs. Smith, Dreyer, and Aronoff each reported that they reviewed 

other prior expert reports and affidavits that were provided to them by counsel. 

Specifically, those documents included (1) a Court Psychiatric Evaluation report 

dated May 9, 1978, prepared by Dr. Isidore Helfand; (2) an affidavit prepared by Dr. 

Caroline Everington following her evaluation of Jackson in 1992; and (3) an affidavit 

prepared by Dr. James C. Tanley following his evaluation of Jackson in 1992. 

1. Dr. Isidore Helfand 

In 1978 when Jackson was age 12, Dr. Helfand evaluated him at the 

Court Psychiatric Clinic in juvenile court. Dr. Helfand interviewed Jackson and 

conducted the Weschler Intelligence Scale for Children-Revised, from which 

Jackson achieved a full-scale IQ score of 68. Dr. Helfand reported that Jackson 

“functions at the [intellectually disabled] range,” and that he “would require special 

education efforts and special educative curriculum.” 

2. Dr. Caroline Everington 

Dr. Everington averred that she assessed Jackson in 1992. She stated 

that she administered the Quick-Score Achievement Test (“Q-SAT”), which tests 

academic achievement. On this test, Jackson achieved a general achievement 

quotient of 77, which according to Dr. Everington is “well below the mean” and 
“displays a significant deficit in general knowledge.” She opined that Jackson’s 

scores and results “are a characteristic of persons with [intellectual disability].” 

Dr. Everington evaluated Jackson on other adaptive skill areas by 

administering the Scales of Independent Behavior adaptive skills test. She 

concluded that Jackson had deficits in the adaptive skill areas of “social, 

communication, personal living, community living, and broad independence.” She 

averred that considering Jackson’s performance on Dr. Schmidtgoessling’s prior 

intelligence test and other academic tests, and his history of developmental delay 

and probable organic impairment, it was her opinion that Jackson is “functioning 

within the range of [intellectual disability].” 

3. Dr. James C. Tanley 

An affidavit from Dr. Tanley, a psychologist and neuropsychologist, 

was also admitted as an exhibit. He evaluated Jackson in 1992 and administered 

the Halstead-Reitan Neuropsychological Test Battery, which is designed to detect 

organic brain dysfunction. Jackson scored 0.6 on the Impairment Index which, 

according to Dr. Tanley, is within the range consistent with organic brain 

dysfunction. He opined that because of a mental disease or defect at the time of the 

offense, Jackson lacked substantial capacity to conform his conduct to the 

requirements of the law. 

Following the hearing, each party submitted post-hearing briefs for 

the court to consider. Additionally, the court had all exhibits, including (1) expert 

reports and affidavits; (2) medical reports and records; (3) school records; (4) trial 
court records, partial transcripts, evaluations, and judicial opinions; (5) prison 

records; and (6) prior lay witness affidavits. Each expert testified that they reviewed 

these records in rendering their expert opinions. 

III. Trial Court’s Decision 

To prove intellectual disability, Jackson had to prove by a 

preponderance of the evidence the following factors: (1) significantly subaverage 

intellectual functioning, (2) significant limitations in two or more adaptive skills, 

such as communication, self-care, and self-direction, and (3) onset before the age of 

18. Lott at ¶ 12. Additionally, if Jackson’s IQ score is above 70, a rebuttable 

presumption existed that he was not intellectually disabled. Id. 

The trial court’s decision stated that it utilized the Lott test to 

determine whether Jackson was intellectually disabled. However, the trial court 

also considered and applied updated medical diagnostic that were in effect at the 

time of the hearing. Specifically, the court referenced post-Lott United States 

Supreme Court decisions that held that the standard error of measurement is 

relevant when considering and evaluating IQ scores. 

Initially, the court noted that it considered the testimony from the 

Atkins hearing and the assessments and expert opinions of Drs. Helfand, 

Schmidtgoessling, Everington, Schmedlen,1 Smith, and Dreyer. Although the court 

 1 Dr. George Schmedlen did not author any report or conduct any evaluation of 

Jackson. Rather, Dr. Michael Aronoff conducted the evaluation, authored the report, 

and testified at trial. Dr. Aronoff noted in his report that Dr. Schmedlen observed the 

evaluation. 
identified in its decision when each expert performed their respective evaluations 

and which tests were utilized, the court did not identify the results yielded from 

those tests. 

The court then addressed each Lott factor. In analyzing the first 

factor — significant subaverage intellectual function — the trial court concluded that 

Jackson “exhibits substandard intellectual function.” It identified that Jackson was 

administered “six official intelligence tests” over his lifetime, with the most recent 

occurring in 2016.2 The court identified that the tests yielded scores ranging from 

67 (August 2016) and 80 (May 2016). The court stated that because Jackson’s IQ 

tests were close to 70, and each test has a “standard error of measurement of at least 

10,” it presumed that Jackson’s true IQ is “somewhere between 57-90.”3 The court 

noted that Jackson’s highest and lowest IQ score were achieved in the same year; 

thus the court stated it would give more weight to “expert opinions and additional 

evidence provided,” and to IQ scores “closer to the time of the offense, rather than 

those obtained more recently.” 

The trial court then discussed Dr. Everington’s affidavit that she 

prepared following her 1992 assessment of Jackson. The court noted that Jackson 

scored a 77, which according to Dr. Everington, amounted to “basic survival-level 

 2 The record reveals that Jackson was administered five official intelligence tests. 

3 The SEM of each test ranged from plus or minus 3 to plus or minus 5; thus, 

Jackson’s true IQ score ranged between 62 and 84. 
reading and mathematics skills.” The court emphasized Dr. Everington’s conclusion 

that Jackson functions “within the range of [intellectual disability].” 

In further consideration of the first Lott factor, the court also 

discussed the report and testimony of Dr. Smith regarding his 2016 assessment of 

Jackson. The court concluded that “Dr. Smith was likely to obtain a reliable score” 

from his administration of the S-BV IQ test because of Jackson’s concern of being 

viewed as “retarded.” The court noted only that Jackson achieved a score of 80, 

where the average is 100. The court did not discuss the significance of this score, 

the presumption that this score represents, or Dr. Smith’s opinion that Jackson is 

not currently intellectually disabled, but was “mildly [intellectually disabled] at the 

time of the offense.” 

Instead, the court stated that “[i]t is influential in our determination 

that [Jackson] has significantly subaverage intellectual functioning because two of 

the IQ tests where [Jackson] achieved a score higher than 70, the administering 

professionals (Dr. Everington and Dr. Smith) still opined that [Jackson] was 

functioning in the intellectually disabled range.” The court also concluded that the 

“scores are ultimately subaverage for a person of [Jackson’s] age.” The court also 

relied on the fact that all professionals who evaluated Jackson “noted that his 

intellectual functioning was at a lower level than expected for someone of his age 

range.” The court did not discuss any other IQ test results or any other expert’s 

opinion or analysis of Jackson’s intellectual functioning, including why the court 

discounted or did not rely on those scores or opinions. 
As for adaptive skills, the trial court concluded that Jackson “is 

significantly impaired in the area of adaptive functioning.” In making this 

conclusion, the court stated it relied on and reviewed Dr. Everington’s 1992 adaptive 

skills assessment, Dr. Schmidtgoessling’s evaluation, Dr. Smith’s adaptive skills 

evaluation, and the testimony of Jackson’s mother, brother, and childhood friend. 

The court generally stated that “[n]early every professional who evaluated [Jackson] 

noted a significant or overwhelmingly apparent deficit in some area of adaptive 

functioning.” The court, however, did not specifically identify in which areas of 

adaptive skills Jackson showed significant limitations. 

Finally, the trial court determined that Jackson’s intellectual 

disability existed prior to the age of 18. The trial court relied on the 1978 evaluation 

conducted by Dr. Helfand when Jackson was 12 years old, and the lay opinions by 

Jackson’s family and childhood friend. The court relied on Dr. Helfand’s opinion 

that Jackson’s IQ score indicated that he was “functioning in the [intellectually 

disabled] range.” Although the court noted that Dr. Helfand did not conduct an 

adaptive skills assessment, the court found significant Dr. Helfand’s conclusion that 

Jackson “lacked social sensitivity and social awareness” and would “require special 

education efforts” and more supervision and direction to “mitigate a tendency 

towards more impulsive, rash behavior.” The court found Dr. Helfand’s evaluation 

of poor psychomotor skills indicative of organic or neurological brain deficiencies. 

Accordingly, the trial court concluded that “Jackson has established 

by a preponderance of the evidence that he is indeed intellectually disabled. The 
evidence presented supports a finding that [Jackson] exhibits significant 

impairments in both intellectual functioning and adaptive skills, and that [Jackson] 

exhibited this behavior before the age of eighteen.” Accordingly, the trial court 

granted Jackson’s petition to vacate his death sentence. 

IV. The Appeal 

The state now appeals this decision, raising two assignments of error. 

A. Standard of Review 

“The procedures for postconviction relief outlined in R.C. 2953.21 et 

seq. provide a suitable statutory framework for reviewing” an Atkins claim by a 

defendant sentenced to death. Lott at 13. The standard for appellate review of 

postconviction proceedings is abuse of discretion. State v. Gondor, 112 Ohio St.3d 

377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. “A trial court’s decision granting or 

denying a postconviction petition filed pursuant to R.C. 2953.21 should be upheld 

absent an abuse of discretion; a reviewing court should not overrule the trial court's 

finding on a petition for postconviction relief that is supported by competent and 

credible evidence.” Id. 

“The term ‘abuse of discretion’ * * * implies that the court’s attitude is 

unreasonable, arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 

404 N.E.2d 144 (1980); see also Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 

450 N.E.2d 1140 (1983). “Abuse of discretion” describes a judgment neither 

comporting with the record, nor reason. See, e.g., State v. Ferranto, 112 Ohio St. 

667, 676-678, 148 N.E. 362 (1925). Further, an abuse of discretion may be found 
when the trial court “applies the wrong legal standard, misapplies the correct legal 

standard, or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176 

Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.). 

B. First Assigned of Error — Subaverage Intellectual Functioning 

In its first assignment of error, the state contends that the trial court 

erred in finding that Jackson showed significantly subaverage intellectual 

functioning. Although the state raises multiple issues, we find the following issues 

the most relevant to our decision: (1) the trial court failed to recognize and apply 

Lott’s rebuttable presumption that a person with an IQ score above 70 is not 

intellectually disabled; (2) the trial court erroneously relied on Dr. Everington’s 

assessment as an IQ evaluation; and (3) the trial court’s decision is inconsistent with 

its own findings compared to the evidence. 

1. Lott Standard 

An Atkins claim requires proof that the defendant’s death sentence 

violated the Eighth Amendment’s proscription against cruel and unusual 

punishment because the defendant is intellectually disabled. At the time of 

Jackson’s petition and hearing, the relevant criteria for evaluating an Atkins claim 

existed under Lott. Under Lott, the defendant bears the burden of proving by a 

preponderance of the evidence (1) significant subaverage intellectual function; (2) 

significant limitations in two or more adaptive skills, such as communication, selfcare, and self-direction, and (3) onset before the age of 18. Lott at ¶ 12. The Lott

court also created the rebuttable presumption that a defendant is not intellectually 
disabled if the defendant’s IQ score is over 70. The court cautioned, however, that 

an IQ score is merely one measure of intellectual functioning that alone is 

insufficient to make a final determination on whether a person is intellectually 

disabled. Lott at ¶ 12. 

2. Lott’s Presumption of Intellectual Disability 

The first issue the state raises concerns the trial court’s failure to 

recognize and begin its analysis with the rebuttable presumption that a defendant is 

not intellectually disabled if his IQ is above 70. The state concedes that even if a 

defendant has an IQ score below 70, it does not mean the defendant was 

intellectually disabled; it only means the presumption does not apply. See State v. 

Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 179. 

In response, Jackson contends that because the trial court cited to 

Lott, and judges are presumed to follow the law, it should be inferred that the court 

applied the presumption. And because the trial court found him intellectually 

disabled, Jackson contends that this court can discern that he successfully rebutted 

the presumption. Finally, Jackson maintains that any error is harmless because 

under the new standard created in Ford, the presumption is now removed. 

The trial court noted that it relied on all expert reports and opinions 

in considering whether Jackson has significant subaverage intellectual function. 

However, in addressing this factor, the trial court’s decision does not assess the 

reports or testimony of any witness except Drs. Everington and Smith. 
Although the court recognized that Jackson was subject to “six 

intelligence tests” throughout his life that yielded scores ranging from 67 to 80, the 

court only addressed the scores obtained from the “IQ tests” administered by Drs. 

Everington and Smith. These tests both yielded scores above the presumptive score 

of 70. The trial court erroneously considered the Q-SAT administered by Dr. 

Everington as an IQ test, recognizing the score of 77. The only other score the trial 

court discussed was from the test administered by Dr. Smith, which the trial court 

determined would reveal a reliable score. Jackson obtained a full-scale IQ score of 

80, and even applying the standard error of measurement, Jackson’s true IQ score 

fell in the range between 76 and 84, which is also above the presumption as set forth 

in Lott. 

In Jackson’s post-hearing brief, he encouraged the trial court to 

abandon the Lott presumption because “the Supreme Court [in Lott] cites no 

authority for this rebuttable presumption.” We recognize that Ford has removed 

this presumption in determining whether someone is intellectually disabled for 

Atkins purposes. However, Lott was the standard in place when the court 

considered Jackson’s petition that included a rebuttable presumption that a person 

with an IQ score over 70 is not intellectually disabled. The trial court did not 

recognize this presumption in making its determination. And despite Jackson’s 

encouragement to do so, the trial court was not free to disregard the substantive 

standards announced by the Ohio Supreme Court in Lott. State v. Bedford, 1st Dist. 
Hamilton No. C-100735, 2011-Ohio-2054, ¶ 20. Accordingly, the trial court should 

have begun its analysis with the recognition of the Lott presumption. 

Jackson maintains that the trial court’s ultimate conclusion that he is 

intellectually disabled reveals that he satisfied of his burden of proof on the Lott

three-part criteria; thus, rebutting the presumption. According to Jackson, the trial 

court’s failure to begin with the presumption should be deemed harmless because 

he satisfied the Lott criteria. Jackson’s argument is persuasive. However, as 

discussed below, the trial court’s determination that Jackson satisfied Lott’s first 

criteria of demonstrating significant subaverage intellectual function is based on a 

misinterpretation of the facts presented, and failed to account for the opinions of 

other experts. Additionally, the trial court’s conclusion of intellectual disability is 

inconsistent with the evidence upon which it relied to make this conclusion. 

3. Significant Subaverage Intellectual Functioning Finding 

The first factor in Lott requires that Jackson prove by a 

preponderance of the evidence that he has significant subaverage intellectual 

functioning. The trial court determined that Jackson “exhibits substandard 

intellectual functioning” by relying solely on Dr. Everington’s 1992 assessment and 

Dr. Smith’s 2016 evaluation and expert opinion. The reports of Drs. Everington and 

Smith may be relevant and lend credence to a finding of subaverage intellectual 

functioning, but the trial court’s findings regarding these reports are incomplete and 

mistaken. 
First, the trial court characterized and classified Dr. Everington’s QSAT assessment score as an IQ score and relied on it as such. The Q-SAT is an 

achievement test that measures academic ability and was utilized as a measure of 

Jackson’s adaptive skills deficits. In fact, Dr. Aronoff reported and testified that he 

deferred to Dr. Everington’s findings on her adaptive skills testing. 

Jackson concedes that a Q-SAT is not an IQ test, but contends this 

was merely a misidentification and that the trial court did not rely on the Q-SAT 

score in reaching its conclusion. We disagree. The trial court’s opinion is replete 

with the court’s understanding and application that Dr. Everington’s assessment 

was an IQ score. First, it notes that Jackson “has been administered six official 

intelligence tests.” (Emphasis added.) To achieve this number, Dr. Everington’s test 

was necessarily included. Additionally, the court utilized this score in support of its 

determination that it would “give more weight to [Jackson’s] IQ scores closer to the 

time of the offense than those obtained more recently.” The court then specifically 

referenced that in “Dr. Everington’s assessment, the assessment closest to the date 

of the actual offense, [Jackson] scored a 77.” The court further relied on Dr. 

Everington’s score as an IQ test in finding “influential in our determination that 

[Jackson] has significantly subaverage intellectual functioning because two of the 

IQ tests where [he] achieved a score higher than 70, the administering professionals 

(Dr. Everington and Dr. Smith) still opined that [Jackson] was functioning in the 

intellectual disabled range.” 
Accordingly, the trial court arbitrarily relied on Dr. Everington’s QSAT score as an IQ score in assessing whether Jackson has significant subaverage 

intellectual functioning. Nevertheless, this reliance could be harmless if the trial 

court’s remaining findings and conclusion on the first Lott factor are supported by 

other competent and credible evidence. Accordingly, excising Dr. Everington’s 

testing score from consideration, the trial court’s opinion then only relied on Dr. 

Smith’s IQ results and conclusions. We find this problematic because Dr. Smith’s 

expert opinion is inconsistent with the trial court’s own determinations and 

conclusions. 

First, the trial court explicitly stated it would give more weight to 

Jackson’s IQ scores closer to the time of the offense rather than those obtained more 

recently. Accordingly, relying solely on Dr. Smith’s score, a score obtained in 2016 

and farthest from the offense, is contrary to the court’s own noted consideration. 

Additionally, the trial court placed much weight on Dr. Smith’s report 

and testimony and concluded that Dr. Smith was likely able to obtain a reliable score 

because Jackson told Dr. Smith that he did not want to be classified as intellectually 

disabled. Dr. Smith administered the S-BV to Jackson, he achieved a full-scale IQ 

score of 80. Dr. Smith testified that there is a 95% confidence interval of 76 to 84. 

(Tr. 198.) Considering the standard error of measurement, these scores would 

satisfy Lott’s rebuttable presumption that Jackson is not intellectually disabled. 

We also find that the trial court’s finding that Jackson’s S-BV IQ score 

is “subaverage for a person of the [Jackson’s] age,” is contrary to the evidence. The 
trial court stated that “significantly subaverage intellectual functioning” is 

performance that is at least two standard deviations below the average level for an 

individual’s peers. However, Jackson’s S-BV IQ score is not “subaverage” because 

Dr. Smith testified that two standard deviations below the average on a S-BV test is 

a score of 68. In this case, Jackson scored an 80, and even factoring the SEM, the 

lower range would be 76. Despite Dr. Smith’s testimony and test results, the trial 

court concluded that Jackson “exhibits substandard intellectual functioning.” 

Finally, the trial court’s reliance on Dr. Smith’s expert report, which 

opined that Jackson currently is not intellectually disabled, is inconsistent with the 

court’s own conclusion that Jackson is intellectually disabled. It is difficult to 

discern from the trial court’s decision why it relied exclusively on Dr. Smith’s 

evaluation and expert opinion, yet deviated, without justification, from Dr. Smith’s 

conclusion that Jackson is not currently intellectually disabled. 

We also find that the trial court arbitrarily rejected the expert 

testimony and opinions of Drs. Aronoff and Dreyer based on the trial court’s explicit 

reliance on and citation to Drs. Everington and Smith’s assessments and reports 

regarding the first Lott criteria. “A trial court is not required to automatically accept 

expert opinions offered from the witness stand, whether on [intellectual disability] 

or on any other subject.” State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885 

N.E.2d 905, ¶ 71. “Nevertheless, expert opinion ‘may not be arbitrarily ignored, 

and some reason must be objectively present for ignoring expert opinion 

testimony.’” (Emphasis sic.) Id., quoting United States v. Hall, 583 F.2d 1288, 1294 
(5th Cir.1978); State v. Brown, 5 Ohio St.3d 133, 134-135, 449 N.E.2d 449 (1983) 

(trial court erred by disregarding expert opinions that defendant was insane, in the 

absence of evidence to the contrary). The trial court did not make any finding that 

Drs. Aronoff or Dreyer lacked either credentials or credibility. And while the trial 

court as the trier of fact may disregard expert opinion, it may not arbitrarily exclude, 

without justification, expert opinions without indicating why the opinions were not 

considered. 

4. Conclusion 

Accordingly, we find that the trial court did not adhere to the Lott test 

when it failed to identify and address the rebuttable presumption. Further, the trial 

court’s decision mistakenly characterized the Q-SAT score as an IQ score in 

evaluating whether Jackson has significant subaverage intellectual functioning. 

This reliance is exacerbated by the trial court’s own inconsistency in its 

determination that IQ scores achieved closer in time to the offense would be given 

greater weight, but then relied on a 2016 score that, even if the court applied the 

standard error of measurement, would admittedly place Jackson in the presumption 

of no intellectual disability. Finally, the trial court arbitrarily rejected, without 

justification, the expert opinions of Drs. Aronoff and Dreyer in its finding that 

Jackson exhibits significant subaverage intellectual functioning. These errors 

misapplied the correct legal standard and relied on erroneous findings of fact; thus, 

constituting an abuse of discretion. 
Despite these errors, this court is not of the opinion that the trial 

court’s decision is completely unsupported by competent and credible evidence that 

would require reversal of the trial court’s decision and reinstate Jackson’s death 

sentence. Further review is warranted. 

V. Application of Ford

After the state filed its appellate brief, but prior to Jackson filing his 

appellate brief, the Ohio Supreme Court decided Ford, 158 Ohio St.3d 139, 2019-

Ohio-4539, 140 N.E.3d 616 (2109) which overruled Lott, created a new standard for 

determining intellectual disability for persons subject to the death penalty, and held 

that there is no longer a presumption in Ohio “that a defendant is not intellectually 

disabled if his or her IQ score is above 70.” Id. at ¶ 97. 

In support of its decision to overrule Lott, the Ford court considered 

updates to two medical treatises in their standards and definitions of intellectual 

disability. Id at ¶ 46, citing American Association on Intellectual and Development 

Disabilities, User’s Guide to Accompany the 11th Edition of Intellectual Disability: 

Definition, Classification, and Systems of Supports (11th Ed.2010) (“AAIDD”); 

American Psychiatric Association, Diagnostic and Statistical Manual of Mental

Disorders (5th Ed.2013) (“DSM-5”). The Ford court noted that these updated 

definitions and standards were recognized in two post-Atkins United States 

Supreme Court decisions that struck down state-court decisions on intellectual 

disability. See Hall v. Florida, 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014) 

(invalidating Florida law that precluded presentation of additional evidence of 
intellectual disability when the offender scored above 70 on IQ tests), and Moore v. 

Texas, ___U.S.___, 137 S.Ct. 1039, 197 L.Ed.2d 416 (2017) (striking down decision 

that relied on an outdated definition in assessing whether a defendant was 

intellectually disabled). As a result of Hall and Moore, trial courts are required to 

consider the SEM when evaluating a defendant’s IQ score because “an individual’s 

intellectual functioning cannot be reduced to a single numerical score” — it is “a 

range of scores on either side of the recorded score.” Hall at 713. 

Using as guidance the updated definitions and diagnostic standards, 

and a recent Kentucky decision that identified and implemented various aspects of 

the decisions in Hall and Moore, the Ohio Supreme Court set forth a new standard 

for courts to apply when determining intellectual disability for purposes of eligibility 

for the death penalty. Id. at ¶ 99, citing Woodall v. Commonwealth, 563 S.W.3d 1 

(Ky.2018). The court stated: 

For purposes of eligibility for the death penalty, a court determining 

whether a defendant is intellectually disabled must consider three core 

elements: (1) intellectual-functioning deficits (indicated by an IQ score 

approximately two standard deviations below the mean — i.e., a score 

of roughly 70 or lower when adjusted for the standard error of 

measurement, (2) significant adaptive deficits in any of the three 

adaptive-skill sets (conceptual, social, and practical), and (3) the onset 

of these deficits while the defendant was a minor. 

Id. at ¶ 100. 

Recognizing this new standard and that the Ford decision was 

released during the state’s appeal in this case, this court sua sponte ordered the 

parties to brief the impact of Ford on the assignments of error and issues raised on 
appeal. In its supplemental brief, the state contends that this court should not apply 

Ford because the trial court did not consider Jackson’s petition under the Ford

standard. Nevertheless, the state contends that even if this court considers the 

appeal under the Ford standard, it does not remedy the trial court’s errors. Jackson 

contends that Ford is a more lenient standard and thus, its application would not 

warrant reversal of the trial court’s decision. 

When the Ohio Supreme Court decided Ford, it did not address the 

merits of Ford’s Atkins claim under the Lott standard. It recognized that the Lott

criteria and definitions were outdated and needed to be reevaluated considering 

recent United States Supreme Court cases and updated diagnostic standards. After 

it established the new standard for Atkins hearings, the Supreme Court remanded 

the case to the trial court to consider whether Ford was intellectually disabled using 

the new framework; it did not apply the new standard to the evidence and testimony 

in the record. 

Accordingly, much like in Ford, we reverse the trial court’s decision 

and remand the matter to the trial court to consider the evidence and testimony in 

light of Ford. This court’s review is for an abuse of discretion, not de novo; 

accordingly, it would be inappropriate for this court to review the record as a whole 

and render an opinion utilizing a standard that the trial court did not consider. 

This court recognizes, however, that the standard in Ford seemingly 

is less stringent by removing the IQ-based presumption of intellectual disability, 

requires consideration of an adjustment for the standard error of measurement 
when evaluating IQ scores, and removes the requirement that a second adaptive skill 

deficit must be identified. And although this court ordered the parties to brief the 

effect of Ford on the state’s assignments of error, we recognize that the trial court’s 

opinion heavily relied on “IQ evidence” that was admittedly not an IQ test, 

arbitrarily discounted without explanation the reports and opinions of other experts 

in the court’s consideration of whether Jackson exhibits significant subaverage 

intellectual functioning, and made a finding that Jackson is currently intellectually 

disabled without discussing its justification for deviating from the expert opinions 

that found Jackson not intellectually disabled. 

We recognize that Ford does not require unanimity of expert opinion 

— “the legal determination of intellectual disability is distinct from medical 

diagnosis. ‘[T]his determination is informed by the views of medical experts,’ but 

‘[t]hese views do not dictate the court’s decision.’” Ford at ¶ 85, citing Hall at 721. 

However, the trial court cannot arbitrarily ignore expert opinion and testimony, 

whether weighing in favor of finding intellectual disability or weighing against. See 

generally Ford at ¶ 85, 92 (failing to discuss the Flynn Effect when evidence is 

presented; and failing to consider lower IQ scores when higher scores were also 

presented). Of course, it is within the trial court’s discretion in deciding which 

evidence and testimony it finds determinative. Id. at ¶ 85. 

Accordingly, we find merit to the state’s first assignment of error, and 

find the state’s second assignment of error challenging the trial court’s findings 

regarding adaptive skill deficits moot. The trial court’s decision is reversed, and the 
case is remanded to the trial court for consideration of Jackson’s Atkins petition 

under the standard set forth in Ford. In doing so, the court may consider additional 

evidence, but it shall consider all the evidence in the record, and in its discretion, 

give weight to or discount evidence and testimony where it deems appropriate. 

Judgment reversed and remanded. 

It is ordered that the parties share equally in the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

KATHLEEN ANN KEOUGH, JUDGE 

MARY J. BOYLE, P.J., and 

RAYMOND C. HEADEN, J., CONCUR