IN THE SUPREME COURT OF THE STATE OF NEVADA

THE STATE OF NEVADA, Appellant, vs. VINNIE ADAMS, Respondent. No. 81782 

# FILE SEP 1 2 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.

Adams was accused in 2018 of shaking his three-week-old daughter and charged with child abuse, neglect, or endangerment resulting in substantial bodily or mental harm. Adams was initially found not competent to stand trial. After undergoing competency restoration treatment, three doctors from the Stein Forensic Facility deemed him competent. Dr. Jones-Forrester, a clinical neuropsychologist hired by Adams, evaluated Adams and reported that his longstanding intellectual disability and neurocognitive deficits rendered him incompetent without the possibility of restoration. Adams challenged the competency determination and, after a competencyhearing, the district courtconcluded that Adams was incompetent without the "possibility" of restoration, relying heavily on Dr. Jones-Forrester's findings, and dismissed the case against him without prejudice. While the district court found that Adams
was incompetent without the "possibility" of restoration, that standard is higher than the statutory standard, which expresses the test in termsof"no substantial probability of attaining competency in the foreseeable future." NRS 178.460(4)(d); 

### see also NRS 178.425(5). Nonetheless, the district SUPREME COURT

OF NEVADA (01 I9.17A aqictpSUPREME COURT

OF NEVADA court's finding of no "possibility" of restoration necessarily means that the

statutory standard ofa "substantial probability"was not met either. So, we will analyze whether the district court erred by finding no substantial probability ofrestoration.

The State argues that the district court abused its discretionby finding that Adams 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 Adams'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 v. United States, U.S. , 141 S. Ct. 2788 (2021), as is restorability, e.g., Colleen Morrison, Note, The Continued Indefinite Incarceration ofIndiana's Incompetent Defendants Post-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'scompetencywill be successful

. . . .") (quoting George F. Parker, The Quandary of Unrestorability, 40 J. Am. Acad. Psychiatry L., 171, 171 (2012)).

Adistrict court deciding ifa defendant iscompetent asksif"the defendant has sufficient present ability to consult with his lawyer with a reasonable degree ofrational understanding, and whetherhe hasa rational and factual understanding ofthe proceedings against him." Jones v. State,
2

J.1 l47A .4,W10

### 107Nev. 632, 637, 817P.2d 1179, 1182 (1991).1 The questionofcompetency

"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, 420 U.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. Hoshie, 950 F.2d 1388, 1392 (9th Cir. 1991) (explainingthat the competencyinquiryasksifadefendantcan "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 that have 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,"

'Thistest is derived fromDusky v. United States, 362 U.S. 402 (1960), and has been codified in Nevada law in NRS 178.400(2). We interpret this statute"asconsistent with [theDusky] standard." Calvin v. State, 122 Nev. 1178, 1182, 147P.3d 1097, 1100 (2006).

SUPREME COURT

OF NEVADA

(1)1 I947A ADD

' 

### 3it is for the trier of fact to resolve. Ogden v. State, 96 Nev. 697, 698, 615

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 u. State, 114 Nev. 479, 488, 960 P.2d 321, 327 (1998). "It is not our task, as an appellate court, torelitigate thebattle 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, 17P.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 Adams was incompetent with
no possibility, much less a substantial probability, of attaining competency 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 strong evidence ofcompetency or restorability as to render the district court's contrary finding reversible error. See Ogden, 96 Nev. at 698, 615
4 SUPREME COURT OF NEVADA

«» I947A

### P.2d at 252 (indicatingthat the trier offact resolves conflictingpsychiatric

testimony). Moreover, the evidentiarypicture wasfarfrom clear astowhat accommodationswere possible and what 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 court AFFIRMED.

Stiglich

J. Cadish

J. Silver

Pickering

SUPREME COURT OF NEVADA
((J) 1947A 

### 5

### , C.J.

HERNDON, J., with whom PARRAGUIRRE, C.J., and HARDESTY, J., agree,concurringinpart and dissentingin part:

I agree that the district court did not abuse its discretion in decidingthatAdamswas not competent toproceed;however,I respectfully disagree and dissent on the issue of the possibility of competency restoration. Althoughthesetwoconceptscanberelatedandcaninvolvethe evaluation of some of the same evidence, they are two separate judicial determinations and the court must treat them as such by explaining each rulingindividually. The districtcourt's findingregardingthepossibilityof competency restoration was summary and conclusory without much individualized analysis as to Adams. The conclusion was also an almost verbatim recitation of the possibility of restoration finding made subsequently in the related case of State v. Manson, Docket No. 82038. Such summary findingsprevent thiscourt from conducting an appropriate reviewonappeal. Forthesereasons,althoughIconcurastothecompetency determination, I respectfully dissent as to the possibility of restoration determinationandI would reverseand remandtothedistrictcourtfor itto conduct a proper analysis and enter adequate findings of fact and conclusionsoflaw. J. Herndon Weconcur:
Parraguirre
J.

SUPREME COURT

OF NEVADA
(0J 1947A 

### Hardesty
6

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

SUPREME COURT

OF NEVADA 

### 7 (0) 1937A otaift3r,