I agree that the determination that appellant is a sexual predator should be reversed and remanded for a new hearing, because there was insufficient evidence without consideration of the trial transcript. The majority strongly suggests that the trial court erred in refusing a court-ordered psychiatric evaluation, because it prevented appellant from presenting evidence. Whether the trial court failed to consider all the relevant evidence and whether an indigent defendant is entitled to a court-ordered psychiatric evaluation to prove he is not a sexual predator are two entirely separate issues. The later issue was never raised at trial because appellant requested a psychiatric evaluation to determine whether he was incompetent. Appellant did not argue that a psychiatric evaluation would help him prove he was not a sexual predator.
The extent of the right to a court appointed psychiatrist to prove factual issues in a sexual predator determination is an important issue of first impression. This issue was not raised at trial or briefed on appeal. It is improper for this court to rule upon this issue, particularly when the parties were not given an opportunity to brief the matter. See State v. Casalicchio (1991).58 Ohio St. 3d 178, 184 *Page 649 (Resnick, J. concurring in part), C.Miller Chevrolet, Inc. v. Willoughby Hills (1974), 38 Ohio St. 2d 298, fn. 3, State v. Hylton (1991), 75 Ohio App. 3d 778, 783.
It was not plain error for the court to deny a psychiatric evaluation requested for the purpose of gathering factual evidence. Whether the court must provide an indigent defendant with a psychiatric evaluation to prove factual issues requires a balancing of the burden to the state and the risk of error in denying the assistance. See Ake v. Oklahoma (1985), 470 U.S. 68,105 S. Ct. 1087, 84 L. Ed. 2d 53. The extent of this right in a sexual predator case is unclear. For the guilt phase of a criminal case, a court-appointed psychiatrist is only required if sanity is a significant factor, and it is reasonably probable the psychiatrist's testimony would aid in the defense. See Ake,supra, State v. Powell (1990), 49 Ohio St. 3d 255. In a capital sentencing proceeding, a court appointed psychiatrist is only necessary to counter psychiatric evidence of future dangerousness presented by the state. Powell, supra at 258. In a sexual predator determination hearing, the due process rights are akin to those of a sentencing hearing. See State v. Ward (Jan. 28, 1999), Cuyahoga App. No. 72371, unreported, 130 Ohio App. 3d 551. Even if the standard of the guilt phase is used, it is unclear in this case whether there is a reasonably probability that a psychiatric evaluation would prove appellant was not a sexual predator. Therefore, we can not say that plain error occurred. In any case, this issue should not be ruled upon because the parties had no opportunity to brief the issue.
Whether the trial court erred in denying appellant's motion for a psychiatric evaluation to determine incompetence is a moot issue, given that the sexual predator determination is reversed. I will note that in a probation hearing, there is a due process right to a competency hearing when there is a substantial basis for the suggestion that appellant is incompetent. See State v.Bell (1990), 66 Ohio App. 3d 52, State v. Qualls (1988),50 Ohio App. 3d 56. Qualls, supra. If the defendant is incompetent to understand the proceedings, the due process rights to be heard, present witnesses and confront witnesses are essentially rendered void. Id. In a sexual predator hearing, the due process rights are similar to a probation revocation hearing. See Ward, supra, R.C. 2950.09(B)(1). It is in the discretion of the trial judge whether a competency evaluation is needed. Qualls, supra. It is not necessary to determine whether the trial court erred in this regard because the issue is moot. *Page 650