[Cite as State v. Smith, 2013-Ohio-5827.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, :

CASE NO. 2013-L-020

 - vs - :

MITCHELL S. SMITH, :

 Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR 

00372. 

Judgment: Affirmed. 

Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant 

Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, 

Painesville, OH 44077 (For Plaintiff-Appellee). 

Ron M. Graham, 6988 Spinach Drive, Mentor, OH 44060 (For Defendant-Appellant). 

CYNTHIA WESTCOTT RICE, J. 

{¶1} Appellant, Mitchell S. Smith, appeals from the judgment of the Lake 

County Court of Common Pleas, committing appellant to a facility operated by the Ohio 

Department of Mental Retardation and Developmental Disabilities for life, pursuant to 

R.C. 2945.401. At issue is whether the trial court erred in admitting evidence of 

appellant’s inculpatory statement to police and whether a seven-year-old eye witness 
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was competent to testify at the civil commitment hearing. For the reasons that follow, 

we affirm. 

{¶2} Appellant was indicted on the following counts: (1) rape, a felony of the 

first degree, in violation of R.C. 2907.02(A)(1)(b); (2) kidnapping, a felony of the first 

degree, in violation of R.C. 2905.01(A)(4), with a specification that the offense was 

committed with a sexual motivation, in violation of R.C. 2941.147; (3) gross sexual 

imposition, a felony of the third degree, in violation of R.C. 2907.05(A)(4); (4) gross 

sexual imposition, a felony of the third degree, in violation of R.C. 2907.05(B); and (5) 

kidnapping, a felony of the second degree, in violation of R.C. 2905.01(A)(4), with a 

specification that the offense was committed with a sexual motivation, in violation of 

R.C. 2941.147. 

{¶3} Prior to arraignment, appellant filed a motion for competency evaluation, 

pursuant to R.C. 2945.371, which the court granted. The court later ordered a separate 

mental retardation evaluation, pursuant to R.C. 2945.371(H). The state subsequently 

filed a motion to retain jurisdiction, pursuant to R.C. 2945.39(A)(2), which appellant 

opposed. Appellant further filed a motion to suppress evidence relating to appellant’s 

interview with police. 

{¶4} Based upon the results of the foregoing evaluations, the trial court found, 

by a preponderance of the evidence, appellant was incompetent to stand trial. The 

court further found that, based upon appellant’s level of mental retardation, there was 

not a substantial probability that he would become competent to stand trial within one 

year. The court held the state’s motion to retain jurisdiction in abeyance pending the 

resolution of appellant’s motions to dismiss and suppress. 
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{¶5} After considering appellant’s motions, the court denied appellant’s motion 

to dismiss the state’s motion to retain jurisdiction. The court concluded, pursuant to the 

Ohio Supreme Court’s decision in State v. Williams, 126 Ohio St.3d 65, 2010-Ohio2453, that R.C. 2945.39 neither violates his constitutional right to a jury trial nor violates 

his right to be free from cruel and unusual punishment. The court reasoned that 

because R.C. 2945.39 is civil in nature, a person committed under its procedures is not 

entitled to the same constitutional protections as a defendant in a criminal prosecution. 

The court further determined that, given the nature of the civil commitment proceedings, 

it was unnecessary to consider the constitutional arguments set forth in appellant’s 

motion to suppress. 

{¶6} An evidentiary hearing was subsequently held on the state’s motion to 

retain jurisdiction. At the commencement of the proceedings, defense counsel orally 

converted his motion to suppress into a motion in limine. In so doing, appellant 

requested the court, based upon the finding of incompetence, not to permit appellant’s 

inculpatory statement to police. Appellant also requested the seven-year-old eye 

witness be declared incompetent to testify. The court overruled each request. 

{¶7} After considering the evidence, the trial court found, by clear and 

convincing evidence, that appellant committed the underlying offenses and that he was 

a mentally retarded person subject to institutionalization by court order pursuant to R.C. 

2945.39. Appellant was therefore committed to a facility operated by the Ohio 

Department of Mental Retardation and Developmental Disabilities for life, pursuant to 

R.C. 2945.401. This appeal followed. 

{¶8} Appellant’s first assignment of error provides: 
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{¶9} “The trial court erred by admitting appellant’s statement into evidence 

since he was found incompetent to stand trial.” 

{¶10} R.C. 2945.31(A)(2) provides: 

{¶11} (A) If a defendant who is charged with an offense described in 

division (C)(1) of section 2945.38 of the Revised Code is found 

incompetent to stand trial, after the expiration of the maximum time 

for treatment as specified in division (C) of that section or after the 

court finds that there is not a substantial probability that the 

defendant will become competent to stand trial even if the 

defendant is provided with a course of treatment, one of the 

following applies: 

{¶12} * * * 

{¶13} (2) On the motion of the prosecutor or on its own motion, the court 

may retain jurisdiction over the defendant if, at a hearing, the court 

finds both of the following by clear and convincing evidence: 

{¶14} (a) The defendant committed the offense with which the defendant 

is charged. 

{¶15} (b) The defendant is a mentally ill person subject to hospitalization 

by court order or a mentally retarded person subject to 

institutionalization by court order. 

{¶16} To retain jurisdiction under R.C. 2945.39, the trial court was required to 

find, by clear and convincing evidence, both that a defendant committed the charged 

offense and he is a mentally retarded person subject to institutionalization by court 
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order. The trial court, in entering the requisite findings, considered, inter alia, the 

statements appellant made to police. Appellant argues the trial court erred in admitting 

appellant’s statements because he had been deemed incompetent to stand trial. We do 

not agree. 

{¶17} Appellant cites no authority for his position that statements made to 

police, by a person later deemed incompetent to stand trial, are inadmissible for 

purposes of an involuntary civil commitment hearing. R.C. 2945.39(B) provides: 

{¶18} (B) In making its determination under division (A)(2) of this section 

as to whether to retain jurisdiction over the defendant, the court 

may consider all relevant evidence, including, but not limited to, any 

relevant psychiatric, psychological, or medical testimony or reports, 

the acts constituting the offense charged, and any history of the 

defendant that is relevant to the defendant’s ability to conform to 

the law. (Emphasis added.) 

{¶19} This subsection specifically gives a trial court the discretion to consider all 

relevant evidence.1

 In his statement, appellant admitted he masturbated and performed 

fellatio on the victim. It is beyond cavil that this statement was relevant to R.C. 

2945.39(A)(2)(a) because it provided factual details demonstrating appellant committed 

the charged offenses. Appellant’s argument, in this regard, lacks merit. 

 

1. It is worth noting that, in Williams, supra, the Supreme Court of Ohio declared the statute constitutional. 

The court determined the statute is civil and remedial in nature. Id. at ¶36-37. And, because it is a civil 

statute, a person committed under its provisions need not be afforded the constitutional rights to which a 

defendant in a criminal prosecution is entitled. Id. at paragraph two of the syllabus. In particular, the 

court determined the procedures set forth under R.C. 2945.39 do not violate an individual’s rights to due 

process or equal protection. 
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{¶20} Appellant also seems to argue the statements were inadmissible because 

they were obtained through a potential violation of Miranda v. Arizona, 384 U.S. 436 

(1966). In particular, psychologist Dr. Jeff Rindsberg testified he did not believe 

appellant understood what he was doing when he waived his rights after being advised 

pursuant to Miranda. From this, as well as other testimony relating to his low 

intelligence, appellant contends he was “incompetent to give any statement and any 

statement could not be used in an evidentiary hearing.” Appellant maintains, therefore, 

his statements should have been excluded. Again, we do not agree. 

{¶21} Appellant was deemed incompetent to stand trial; in effect, this means 

evidence was presented to show he was either unable to understand the proceedings or 

assist in his defense. See e.g. State v. Wise, 11th Dist. Trumbull No. 2012-T-0028, 

2012-Ohio-4896, ¶21. Simply because appellant was found incompetent to stand trial, 

however, does not imply he was “incompetent” to give a truthful rendition of the incident 

which led to the criminal charges. Detective Petro testified appellant capably responded 

to the questions she posed to him. According to the detective, appellant was able to 

recount the entirety of the incident and provide clear, specific details of his actions. 

{¶22} Moreover, Dr. Rinsberg testified he did not believe appellant had the 

capacity to knowingly and intelligently waive his constitutional Miranda rights; during the 

hearing, the doctor clarified that this did not imply appellant was incapable of rendering 

a truthful and voluntary statement to the police. Given the foregoing, there was an 

adequate foundation for the court to conclude appellant was sufficiently coherent during 

the interview such that his rendition of the incident could assist in the R.C. 

2945.39(A)(2)(a) inquiry. 
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{¶23} Furthermore, even assuming appellant did not knowingly, intelligently, and 

voluntarily waive his rights under Miranda, the admissibility of the statement is not 

dependent upon the constitutionality of the waiver. Unlike a typical criminal prosecution, 

this case proceeded pursuant to R.C. 2945.39, which involves a civil proceeding. The 

privilege against self-incrimination, and thus the Miranda doctrine, concerns the use of 

compelled statements in criminal prosecution. Courts have noted that the principle 

proscribing the use of out-of-court statements in violation of Miranda is inapplicable to 

civil proceedings. See Baxter v. Palmigiano, 425 U.S. 308, 315 (1976) (“[t]he Court has 

never held, and we decline to do so now, that the requirements of [Miranda] must be 

met to render pretrial statements admissible in other than criminal cases.”); In re Kuhn, 

4th Dist. Athens No. 1279, 1986 Ohio App. LEXIS 6173, *18-19 (Mar.7, 1986); Copley 

Twp. Trustees v. 10,600 in United States Currency, 9th Dist. Summit No. 18985, 1998 

Ohio App. LEXIS 6425, *9 (Dec. 30, 1998); see also Williams, supra, paragraph two of 

the syllabus (“[b]ecause R.C. 2945.39 is civil in nature, a person committed under the 

statute need not be afforded the constitutional rights afforded to a defendant in a 

criminal prosecution.”) Therefore, even if appellant did not execute a valid waiver, his 

statement was relevant and therefore admissible pursuant to R.C. 2945.39. 

{¶24} Pursuant to the foregoing, we hold appellant’s inability to understand the 

nuances of the criminal proceedings against him or his arguable inability to enter a valid 

Miranda waiver do not render his statement to police inadmissible for purposes of R.C. 

2945.39. The statement was relevant and the trial court did not abuse its discretion in 

considering the same. 

{¶25} Appellant’s first assignment of error lacks merit. 
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{¶26} Appellant’s second assignment of error asserts: 

{¶27} “The trial court [erred] by finding the child witness competent to testify.” 

{¶28} Under this assignment of error, appellant argues a seven-year-old eyewitness, M.P., was not competent to testify and, as a result, the trial court erred in 

admitting the child’s testimony. We do not agree. 

{¶29} Evid.R. 601 sets forth general rules of competency. Subsection (A) 

provides:

{¶30} “Every person is competent to be a witness except: 

{¶31} “(A) Those of unsound mind, and children under ten years of age, who 

appear incapable of receiving just impressions of the facts and transactions respecting 

which they are examined, or of relating them truly.” 

{¶32} The state, as the proponent of the child, shouldered the burden of 

demonstrating M.P.’s competence to testify. State v. Clark, 71 Ohio St.3d 466, 469 

(1994). And the trial court conducted a proper hearing to determine the child’s 

competency to testify. See State v. Frazier, 61 Ohio St.3d 247, 250-251 (1991). In 

considering whether a child under the age of 10 is competent to testify, a court must 

analyze the following factors: “the child’s ability to receive accurate impressions of fact, 

the child’s ability to recollect those impressions, the child’s ability to communicate what 

is observed, the child’s understanding of truth and falsity, and the child’s appreciation of 

his or her responsibility to tell the truth.” Clark, supra, at 469, citing Frazier, supra. 

{¶33} Once the court concludes that the threshold requirements have been 

satisfied, a witness under the age of ten will be deemed competent to testify. Clark, 

supra.
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{¶34} Appellant contends the trial court erred in permitting M.P. to testify 

because, during the course of the competency hearing, the child was unable to answer 

certain autobiographical questions. Appellant further underscores that M.P. was unable 

to explain the importance of telling the truth and did not know “what happens if you lie.” 

In support, appellant cites this court’s opinion in State v. Jett, 11th Dist. Portage No. 97-

P-0023, 1998 Ohio App. LEXIS 1451(Mar. 31, 1998). 

{¶35} In Jett, this court reversed the trial court’s decision that a five-year-old sex 

abuse victim was competent to testify. This court observed the child only responded 

“yes” or “no” to the trial court’s leading questions during the competency hearing and 

the child gave no personal narrative about the incident. This court determined that, with 

the “yes” and “no” inquiries, the child had a fifty percent chance of being correct simply 

by guessing. This court also emphasized that the child could not “articulate clearly the 

distinction between telling a lie and telling the truth.” And, during the trial, this court 

pointed out the child was completely incorrect about independently verifiable 

circumstances relating to the abuse. Hence, this court concluded the trial court abused 

its discretion in finding the child competent to testify. 

{¶36} This matter is different from Jett. M.P. was able to distinguish between 

the truth and a lie without the assistance of leading questions. When asked “do you 

know what it means to tell the truth?” M.P. responded “It means you tell the real thing, 

don’t lie.” Although he stated he did not know what happens when one lies, he 

specifically explained lying means “You don’t tell the truth.” Furthermore, the trial court 

and the prosecutor tested M.P.’s understanding of the difference between a true 

statement and a false statement by asking him empirically verifiable questions. For 
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each question, M.P. was able to identify whether the court or prosecutor was making an 

inaccurate or false statement and explain why. Moreover, M.P.’s testimony was 

substantially consistent with the statement he provided to police and the rendition of 

events he related to his mother. The concerns this court identified in Jett, therefore, are 

not present in this case. 

{¶37} A review of the hearing demonstrates M.P. was able to receive and 

discuss accurate, factual impressions and assure the court he remembered the incident 

and the individuals involved. As emphasized above, M.P. had a demonstrable 

appreciation for the distinction between truth and falsity. And, although he initially told 

the court he did not know what happens if one lies, he later, without prompting, 

explained that “you get in trouble” if you lie. And, finally, during his testimony, M.P. was 

able to provide clear and articulate responses to the questions posed to him regarding 

the incident that were almost entirely consistent with past statements. The fact that 

M.P. was unable to answer certain autobiographical questions, such as his birth date, or 

identify geographical facts, such as the town in which he lives, does not bear upon the 

Frazier inquiry. A child’s inability to remember a specific date or identify his home town 

or the street on which he lives does not undermine his competence to testify to events 

he witnessed; this is particularly true where, as here, the child has demonstrated the 

ability to understand the concepts of truth and falsity as well as the import of telling the 

truth. In the totality, therefore, we conclude the court did not abuse its discretion in 

finding M.P. competent to testify pursuant to Frazier. 

{¶38} Appellant’s second assignment of error lacks merit. 
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{¶39} For the reasons discussed in this opinion, the judgment of the Lake 

County Court of Common Pleas is affirmed. 

DIANE V. GRENDELL, J., 

THOMAS R. WRIGHT, J., 

concur.