Opinion
No. CR90-6017.
Decided July 27, 1990.
Anthony G. Pizza, Prosecuting Attorney, and J. Christopher Anderson, Assistant Prosecuting Attorney, and Kathleen M. Connelly, Assistant Prosecuting Attorney, for the state.
Bischoff, Kenney Drescher and Timothy J. Dever, for defendant.
On July 25, 1990 a hearing was held on a post-trial motion filed by defendant. Present were defendant, Earl W. Canton, Jr., his counsel, Timothy J. Dever, and counsel for the state of Ohio, J. Christopher Anderson. Attorney Mark Jacobs, who had represented Canton in a probate matter on July 12, 1990, was also present. A brief review of the background of the case is in order.
I
Defendant was convicted on July 17, 1990 by a jury which returned its verdict against defendant of guilty to counts 11-20 of rape as stated in the indictment and guilty of the lesser included offense of gross sexual imposition on counts 1-10 of the indictment.
Defendant has now filed a motion to set aside the jury verdict and enter a judgment of acquittal pursuant to Crim.R. 29 or, in the alternative, a new trial pursuant to Crim.R. 33. Defendant bases his motion on newly discovered evidence and, in support, attaches the affidavit of Dr. Dwayne Rodriguez-Winter, a resident psychiatrist at the Toledo Mental Health Center, as well as a statement by Dr. Trong Tran, who examined Canton on July 12, 1990 at the Toledo Mental Health Center.
Before trial, defendant was evaluated on three separate occasions pursuant to R.C. 2945.37 to determine his competency to stand trial. All reports concluded that defendant was, in fact, competent. The court accepted the reports into evidence. The last report, by Dr. Ruth Ann Roehrig who conducted her evaluations the afternoon of July 12, 1990, was entered into evidence on July 13, 1990. The trial, therefore, commenced as scheduled on July 16, 1990.
After verdict was entered but before sentencing, on July 19, 1990, attorney Mark Jacobs contacted defense counsel to inform him that a hearing took place on July 12, 1990 pursuant to R.C. Chapter 5122 at the Toledo Mental Health Center. Testimony was given by Dr. Tran and certain papers were submitted to the probate court for civil commitment. Defense counsel in the criminal case had no notice of this hearing.
Defendant now argues that this new information affects the court's previous determination of his competency, or that defendant is entitled to a new trial since this information was not transmitted to his trial counsel before the jury trial began.
Before defendant can prevail on a motion for a new trial, he must show: first, reasonable diligence in trying to find the new evidence; second, affidavits to inform the trial court of the substance of the evidence that would be used if a new trial were to be granted; and third, evidence of such weight that a different result would be reached at a second trial. State v. Shepard (1983), 13 Ohio App.3d 117, 118, 13 OBR 135, 137, 468 N.E.2d 380, 383.
II
Three witnesses testified at the hearing on defendant's motion held on July 25, 1990: Dr. Trong Tran; Gloria Jorgenson, a social worker at the Toledo Mental Health Center; and Dr. Ruth Ann Roehrig. Based upon the testimony of the witnesses, the court finds as follows:
(1) Earl W. Canton, Jr. was sent to the Toledo Mental Health Center on emergency application July 5, 1990 due to his deliberate refusal to eat at the jail.
(2) Dr. Tran's diagnosis on July 12, 1990 was a "working" diagnosis, not intended to be conclusive.
(3) Dr. Tran was not asked to evaluate Canton for purposes of determining either his competence to stand trial or his sanity at the time of the offenses.
(4) On the date of the hearing, July 25, 1990, Dr. Tran specifically had no conclusion regarding defendant's competency to stand trial or any finding as to defendant's being not guilty by reason of insanity.
(5) All proceedings at the Toledo Mental Health Center were done pursuant to the probate court's civil commitment procedure and were instituted because of defendant's health.
III
This court, therefore, concludes that there is no evidence of record which would require it to overturn its finding that Canton was competent to stand trial on July 16, 1990. R.C. 2945.37(A) specifically states:
"* * * The court shall not find a defendant incompetent to stand trial solely because he is receiving or has received treatment as a voluntary or involuntary mentally ill patient * * * under Chapter 5122. or Chapter 5123. of the Revised Code * * *."
Furthermore, In re Fisher (1958), 167 Ohio St. 296, 4 O.O.2d 343, 148 N.E.2d 227, explains in paragraph two of the syllabus that the jurisdiction of the court of common pleas is not affected by a previous consideration of the defendant's sanity in a proceeding in the probate court. Therefore, defendant's motion to vacate the jury verdict and for acquittal pursuant to Crim.R. 29 is overruled.
All three separate reports — the May 29, 1990 report by Dr. Kaisa Puhakka, Clinical Psychologist at Court Diagnostic and Treatment Center; the June 15, 1990 report of Dr. Marvin Gottlieb, Professor of Clinical Psychiatry at the Medical College of Ohio; and the July 12, 1990 report of Dr. Ruth Ann Roehrig, Clinical Psychologist with Layne Psychological Services — conclude that defendant was competent. Defendant has offered nothing to rebut that finding or to support a plea of not guilty by reason of insanity.
Since defendant has not provided "evidence * * * of such weight that a different result would be reached at [a] * * * second trial," State v. Shepard, supra, 13 Ohio App.3d at 118, 13 OBR at 136, 468 N.E.2d at 383, the motion for a new trial based on newly discovered evidence, pursuant to Crim.R. 33(A)(6), is also overruled.
JOURNAL ENTRY
It is therefore ORDERED:
(1) Defendant's motion to set aside the verdict pursuant to Crim.R. 29 is OVERRULED;
(2) Defendant's motion for a new trial pursuant to Crim.R. 33 is OVERRULED;
(3) The sentencing date is reset for July 27, 1990.
Reporter's Note: The defendant was then sentenced as appears of record. There was no appeal.