IN THE SUPREME COURT OF THE STATE OF NEVADA

THE STATE OF NEVADA, Appellant, vs. TARIQ MANSON, Respondent. No. 82038 

# LE SEP 12 2022
ORDER OFAFFIRMANCE This is an appeal from a district court amended decision and order dismissing the case against respondent without prejudice. Eighth Judicial District Court, Clark County; Linda Marie Bell, Judge.

Respondent Tariq Manson was charged in 2018 with sexual assault ofa minor under 14 yearsofage and three counts oflewdness with
a child under the age of 14. Manson was initially found not competent to stand trial twice. After undergoing competency restoration treatment, three doctors from the Stein Forensic Facility eventually deemed him competent. Dr. Jones-Forrester, a clinical neuropsychologist hired by Manson, evaluated him and reported that Manson's longstanding intellectual disability and neurocognitive deficits rendered him incompetent without the possibility ofrestoration. Manson challenged the competency determination and, after a competency hearing, the district court concluded that Manson was incompetent without the possibility of restoration,relyingheavilyonDr.Jones-Forrester'sfindings, anddismissed the case against Manson without prejudice. While the district court found that Manson was incompetent without the "possibility" ofrestoration, that standardishigher than the statutory standard, which expressesthetest in terms of "no substantial probability of attaining competency in the foreseeable future." NRS 178.460(4)(d); 

### see also NRS 178.425(5). 

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101 1947A A311,Nonetheless, the district court's finding of no "possibility" of restoration

necessarily meansthatthe statutorystandardofa "substantialprobability"
was not met either. So, we will analyze whether the district court erred by finding no substantial probability ofrestoration.

The State arguesthat the districtcourt abusedits discretionby finding that Manson was incompetent and could not be restored to competency. Specifically, it asserts that the district court (1) applied a competency test that expects too much ofcriminal defendants, (2) accorded insufficient weight to evidence of Manson's competency and restorability, and (3)failed to account for possible accommodations.

The Fourteenth Amendment dictates that a defendant who is
more likely than not incompetent may not be criminally tried. Cooper v. Oklahoma, 517 U.S. 348, 350, 355-56 (1996). A defendant may be incompetent for any number of reasons, including intellectual disability— the assessment of which in the competency context is an especially "complicated task," United States v. Pervis, 937 F.3d 546, 554, 558 (5th Cir. 2019), cert. denied, Gray u. United States, U.S. , 141 S. Ct. 2788 (2021), as is restorability, e.g., Colleen Morrison, Note, The Continued Indefinite Incarceration ofIndiana's Incompetent DefendantsPost-Jackson, 54 Ind. L. Rev. 719, 732 (2021) ("Referred to as the 'quandary of unrestorability,' forensic psychiatry encounters great difficulty predicting whether effortstorestore a defendant'scompetencywillbe successful
. . . .") (quoting George F. Parker, The Quandary of Unrestorability, 40 J. Am. Acad. Psychiatry L., 171, 171(2012)).

Adistrict court decidingifa defendant iscompetent asksif"the defendant has sufficient present ability to consult with his lawyer with a reasonable degreeofrational understanding, and whether hehasa rational and factual understanding ofthe proceedings against him." Jones v. State,
2 SUPREME COURT OP NEVADA
MI I947A AVID107Nev. 632, 637, 817P.2d 1179, 1182 (1991).' The question ofcompetency

"is not concerned with the defendant's responsibility but rather with his ability to participate in the proceedings in a meaningful way." 1Wayne R. LaFave, Substantive Criminal Law § 8.1(a) (3d ed. 2018); see also Drope v. Missouri, 420U.S. 162, 171(1975) (providingthat a defendant mustbe able "to assist in preparinghis defense");Price v. Thurmer, 637F.3d 831, 833-34 (7th Cir. 2011) (stating that a defendant must "be able to follow the proceedings and provide the information that his lawyer needs in order to conduct an adequate defense, and to participate in certain critical decisions"); United States v. Hoskie, 950 F.2d 1388, 1392 (9th Cir. 1991) (explainingthatthecompetencyinquiryasksifa defendantcan "participate effectively in his trial").

In answering these questions, "the district court may consider various sources of evidence, 'including
... its own observations of the defendant's demeanor and behavior; medical testimony; and the observationsofother individuals thathave interacted with the defendant." Pervis, 937 F.3d at 554 (quoting United States v. Porter, 907 F.3d 374, 380 (5th Cir. 2018) (internal quotation marksomitted));seealso Calvin v. State, 122 Nev. 1178, 1183, 147 P.3d 1097, 1100 (2006) ("Accuracy is best served when the district court and any appointed experts consider a wide scope of relevant evidence at every stage of the competency proceeding
. . . ."). "When there is conflicting psychiatric testimony at a competency hearing,"

lThistest isderived from Dusky v. United States, 362U.S. 402 (1960), and hasbeen codified in Nevada law in NRS 178.400(2). We interpret this statute"asconsistent with [theDusky] standard." Calvin v. State, 122Nev. 1178, 1182, 147 P.3d 1097, 1100 (2006).
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((>i 1947A <44Prm 3SUPREME COURT

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P.2d 251, 252 (1980).

A district court's competency determination "is entitled to deference on review" and "will not be overturned if it is supported by substantial evidence." Calvin, 122 Nev. at 1182, 147 P.3d at 1099 (2006). "Substantial evidence is that which a reasonable mind might consider adequate to support a conclusion." Steese v. State, 114 Nev. 479, 488, 960 P.2d 321, 327 (1998). "It is not our task, as an appellate court, torelitigate the battle ofthe experts." United States v. Simpson, 645 F.3d 300, 306 (5th Cir. 2011). But we are to ensure that the district court's decision is not "arbitrary or capricious," and does not exceed the bounds of law or reason. Jackson v. State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001).

Here, the district court held a hearing at which the doctors testified, and the parties and the court questioned them. Ofnote, the State did not challenge the qualifications of Dr. Jones-Forrester, who is competency certified in Nevada. The court evaluated the evidence that had both been subject to adversarial testing and admitted without objection, applied the Dusky standard, and found that Manson was incompetent with
no possibility, much less a substantial probability, ofattainingcompetency in the foreseeable future based on his lifelong intellectual and neurocognitive deficits. Although the State argues that the district court applied the wrong test for competency, setting the competency bar higher than where it should be, we do not perceive legal error, given that the district court explicitly applied the Dusky standard, and the disagreement is essentially about whether it was met.

As to that, the record does not reveal that the State presented such strongevidence ofcompetencyor restorability astorenderthe district court's contrary finding reversible error. See Ogden, 96 Nev. at 698, 615
4 OA I,M7AP.2d at 252 (indicatingthat the trier offact resolves conflictingpsychiatric

testimony). Moreover, the evidentiarypicturewasfarfrom clear astowhat accommodations were possible andwhat effect theywouldhave. And while the district court did not make detailed factual findings to support its decision regarding restorability, the State does not challenge that on appeal, and the district court's findings regarding competency support its conclusion regarding restorability—thus, we choose to only consider the arguments the State did make. See, e.g., Greenlaw v. United States, 554 U.S. 237, 243 (2008) (noting that courts "follow the principle of party presentation," which requires the litigants to frame the issues). Because the district court's finding of incompetency without the substantial probability of restoration is supported by substantial evidence, and the district court did not abuse its discretion, we

ORDER thejudgment ofthe district courtAFFIRMED.

J. Stiglich 

### “. 4 J. Cadish

o J. Silver

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Parraguirre HERNDON, J., with whom PARRAGUIRRE, C.J., and HARDESTY, J., agree, concurring in part and dissenting in part:

I agree that the district court did not abuse its discretion in decidingthat Manson was notcompetent toproceed;however, I respectfully disagree and dissent on the issue of the possibility of competency restoration. Although these twoconceptscanbe related andcaninvolve the evaluation of some of the same evidence, they are two separate judicial determinations and the court must treat them as such by explaining each ruling individually. The district court's finding regarding the possibility of competency restoration was summary and conclusory without much individualized analysis as to Manson. The conclusion was also an almost verbatim recitation of the possibility of restoration finding made earlier in the related case of State v. Adams, Docket No. 81782. Such summary findings prevent this court from conducting an appropriate review on appeal. For these reasons, although I concur as to the competency determination, I respectfully dissent as to the possibility of restoration determination and I would reverse and remand to the district court for it to conduct a proper analysis and enter adequate findings of fact and conclusions oflaw.
Herndon

Hardesty

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### cc: Hon. Linda Marie Bell, ChiefJudge Attorney General/Carson City Clark County DistrictAttorney Clark County Public Defender Special Public Defender Washoe County DistrictAttorney Washoe County Public Defender Federal Public Defender/LasVegas Eighth District Court Clerk

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