State v. Hough

[Cite as State v. Hough, 2021-Ohio-2198.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :
No. 19AP-682
v. : (C.P.C. No. 17CR-6061)

Richard M. Hough : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on June 29, 2021

On brief: [G. Gary Tyack], Prosecuting Attorney, and
Sheryl L. Prichard, for appellee. Argued: Sheryl L. Prichard.

On brief: Todd W. Barstow, for appellant. Argued:
Todd W. Barstow.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, P.J.
{¶ 1} Defendant-appellant, Richard M. Hough, appeals the September 12, 2019
judgment of the Franklin County Court of Common Pleas convicting him, pursuant to a
jury verdict, of one count of aggravated vehicular homicide, a felony of the second degree,
one count of aggravated vehicular homicide, a felony of the third degree, three counts of
aggravated vehicular assault, felonies of the third degree, three counts of vehicular
assault, felonies of the fourth degree, and one count of operating a motor vehicle while
No. 19AP-682 2

under the influence of a drug of abuse, a misdemeanor of the first degree.1 For the
following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} By indictment filed November 7, 2017, plaintiff-appellee, State of Ohio,
charged Hough with the following offenses arising out of an August 8, 2017 vehicular
accident: one count of aggravated vehicular homicide, a felony of the second degree, in
violation of R.C. 2903.06; one count of aggravated vehicular homicide, a felony of the
third degree, in violation of R.C. 2903.06; three counts of aggravated vehicular assault,
felonies of the third degree, in violation of R.C. 2903.08; three counts of vehicular assault,
felonies of the fourth degree, in violation of R.C. 2903.08; one count of operating a vehicle
under the influence of alcohol or a drug of abuse or a combination of them, a
misdemeanor of the first degree, in violation of R.C. 4511.19 ("OVI") and (impaired
count); and three counts of operating a motor vehicle while under the influence of a listed
controlled substance or a listed metabolite of a controlled substance, misdemeanors of
the first degree, in violation of R.C. 4511.19 (per se counts).
{¶ 3} On December 1, 2017, Hough entered a plea of not guilty. On April 12, 2019,
Hough filed a motion for psychiatric evaluation "pursuant to Section 2945.37" and motion
for competency evaluation "pursuant to Section 2945.37." Without a hearing, on April 18,
2019, the court entered an order denying the motion for a psychiatric evaluation.
{¶ 4} On August 23, 2019, Hough filed a motion to suppress evidence, tests, and
test results as being in violation of his Fourth, Sixth, and Fourteenth Amendment rights
to the U.S. Constitution. In the motion, Hough argued suppression was warranted
because his blood draw was conducted a couple minutes outside the three-hour window
required by statute. The jury trial began on August 26, 2019 following several

1 Here we note two discrepancies between the September 12, 2019 judgment entry and the indictment. The

judgment entry states Hough was found guilty of Count 3 of the indictment, to wit: aggravated vehicular
homicide, in violation of R.C. 2903.06, a felony of the third degree; however, Count 3 of the indictment alleged
aggravated vehicular assault, in violation of R.C. 2903.08, which was consistent with the trial court's reading
of the counts to the jury as well as the reading of the jury's verdicts in the transcript.

The judgment entry also states that Hough was found guilty of Count 8 of the indictment, to wit: vehicular
assault, in violation of R.C. 2903.08, a felony of the third degree; however, Count 8 of the indictment alleged
vehicular assault, in violation of R.C. 2903.08, a felony of the fourth degree, which was consistent with the
trial court's reading of the counts to the jury, as well as the reading of the jury's verdicts in the transcript.
No. 19AP-682 3

continuances granted by the court. The court addressed the motion as a pretrial matter
on the day of trial and stated:
THE COURT: [R]ight now, based on the information I'm
hearing, [the blood draw] was over three hours, even though
it was a minute or two. It seems somewhat technical.

I would not allow a "per se" instruction right now, but I'll
listen to the evidence. I'm not going to hold a hearing on this
because it's clear it was after three hours, and the law seems
to be clear you don't suppress it. It still comes in. You just
don't get the instruction on "per se."

Again, I'm going to review the law a little closer, but I did some
of this work when I was in practice. I'll allow them to have
their expert testify, and you can cross-examine.

(Tr. at 11-12.) Counts 10, 11, and 12 of the indictment, the operating a vehicle while under
the influence per se counts, were subsequently dismissed prior to jury deliberations on the
basis that Hough's blood sample was taken outside the three-hour window required for
those counts in accordance with State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629.
{¶ 5} At trial, the state called David Cotter to testify. Cotter testified to driving on
U.S. Route 33 in Franklin County, Ohio, when a maroon Chevrolet SUV passed him at a
high rate of speed. Cotter described the vehicle as traveling in the grass median, driving
on the berm, and driving the wrong way up a ramp to Refugee Road. Cotter did not see
the accident, but upon seeing a maroon vehicle on the news the next morning he contacted
police. Cotter described the driver to police as a white, middle-aged male with short hair.
{¶ 6} The state called Columbus Police Officer Duane Ward, the first responding
officer at the scene, to testify. He testified he was dispatched about 12:49 p.m. and arrived
at an injury accident between a blue Nissan Sentra and maroon Chevrolet Tahoe, and the
Tahoe was facing the wrong way on the ramp. Inside the Sentra were four occupants and
Hough was seated on the ground outside the Tahoe.
{¶ 7} The state called Columbus Police Detective Robert Barrett to testify.
Detective Barrett obtained the warrant for Hough's blood draw after receiving a call from
Officer Ward about Hough's suspected OVI. The time of blood draw listed on the vials
drawn was marked as 3:48 p.m.; however, body cam footage put the blood draw beginning
at 3:50:55 and ending at 3:53:50 p.m. The laboratory results of the blood draw revealed
No. 19AP-682 4

the blood contained 85 ng/ml of carboxy-THC, a metabolite of marijuana, 236 ng/ml of
cocaine, and 2,340 ng/ml of benzoylecgonine, a metabolite of cocaine.
{¶ 8} The state called Dr. John Wyman, a forensic toxicologist, to testify. Dr.
Wyman using retrograde or reverse extrapolation opined that at the time of the crash,
Hough had more than 900 ng/ml of cocaine in his blood, and this level would cause
confusion, disorientation, slowed reaction times, anxiety, and irritation. Dr. Wyman
testified:
Based on reports of erratic and reckless driving,
uncooperative/belligerent behavior, and the cocaine levels
described above, it is my opinion, to a reasonable degree of
scientific certainty, that the level of cocaine in Mr. Hough's
system resulted in impaired driving and, more likely than not,
contributed to his crashing his vehicle.

(Tr. at 319.)
{¶ 9} On August 29, 2019, the jury found Hough guilty on Counts 1 through 9.
The trial court granted Hough two weeks to prepare a mitigation report prior to
sentencing.
{¶ 10} On September 12, 2019, the trial court filed a judgment entry reflecting the
jury's verdict finding Hough guilty on all submitted counts. The court noted several counts
merged and Hough was sentenced to 6 years on Count 1, as well as 3 years on Counts 3,
5, and 7, to be served consecutive to Count 1 and to each other, and 6 months on Count 9
to be served concurrently, for a total of 15 years.
{¶ 11} On October 7, 2019, Hough filed a timely notice of appeal to this court.
II. Assignments of Error
{¶ 12} Hough assigns the following three assignments of error for our review:
I. THE TRIAL COURT ERRED AND DEPRIVED
APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED
BY THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND ARTICLE ONE SECTION
TEN OF THE OHIO CONSTITUTION BY FINDING HIM
GUILTY OF AGGRAVATED VEHICULAR HOMICIDE;
AGGRAVATED VEHICULAR ASSAULT; VEHICULAR
ASSAULT; AND OPERATING A VEHICLE UNDER THE
INFLUENCE OF A DRUG OF ABUSE, AS THOSE VERDICTS
WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND
No. 19AP-682 5

WERE ALSO AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.

II. THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT BY NOT CONDUCTING A HEARING ON HIS
MOTION FOR A COMPETENCY EVALUATION.

III. APPELLANT'S TRIAL COUNSEL WAS INEFFECTIVE,
THEREBY DENYING HIM HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL AS GUARANTEED BY THE
UNITED STATES AND OHIO CONSTITUTIONS.

III. Analysis
A. Sufficiency of Evidence and Manifest Weight
{¶ 13} In his first assignment of error, Hough contends there is insufficient
evidence supporting his guilty findings for aggravated vehicular homicide, aggravated
vehicular assault, vehicular assault, and OVI, and that these findings are against the
manifest weight of the evidence. We address these claims together.
{¶ 14} Sufficiency of the evidence is a legal standard that tests whether the
evidence is adequate to sustain a verdict as a matter of law. Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, ¶ 11; State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The
standard of review for sufficiency of the evidence is if, while viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d
259 (1991), paragraph two of the syllabus. "In essence, sufficiency is a test of adequacy.
Whether the evidence is legally sufficient to sustain a verdict is a question of law."
Thompkins at 386. Where the evidence, "if believed, would convince the average mind of
the defendant's guilt beyond a reasonable doubt," it is sufficient to sustain a conviction.
Jenks at 260.
{¶ 15} "While sufficiency of the evidence is a test of adequacy regarding whether
the evidence is legally sufficient to support the verdict as a matter of law, the criminal
manifest weight of the evidence standard addresses the evidence's effect of inducing
belief." State v. Cassell, 10th Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 38, citing State v.
Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25. The Supreme Court of Ohio has
stated:
No. 19AP-682 6

Weight of the evidence concerns "the inclination of the
greater amount of credible evidence, offered in a trial, to
support one side of the issue rather than the other. It indicates
clearly to the jury that the party having the burden of proof
will be entitled to their verdict, if, on weighing the evidence in
their minds, they shall find the greater amount of credible
evidence sustains the issue which is to be established before
them. Weight is not a question of mathematics, but depends
on its effect in inducing belief."

(Emphasis sic.) Eastley at ¶ 12, quoting Thompkins at 387, quoting Black's Law Dictionary
1594 (6th Ed.1990).
{¶ 16} When evaluating a challenge to a verdict as being against the manifest
weight of the evidence, "an appellate court may not merely substitute its view for that of
the trier of fact, but must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses and determine whether in resolving
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered." State
v. McCrary, 10th Dist. No. 10AP-881, 2011-Ohio-3161, ¶ 12, citing Thompkins at 387. An
appellate court should reserve reversal of a conviction as being against the manifest
weight of the evidence for only the " 'exceptional case in which the evidence weighs heavily
against the conviction.' " Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172,
175 (1st Dist.1983). In reviewing the evidence, "we are guided by the presumption that
the jury, or the trial court in a bench trial, 'is best able to view the witnesses and observe
their demeanor, gestures and voice inflections, and use these observations in weighing
the credibility of the proffered testimony.' " State v. Cattledge, 10th Dist. No. 10AP-105,
2010-Ohio-4953, ¶ 6, quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).
{¶ 17} Hough's argument on appeal challenges the issue of identity, ultimately
taking issue with the finding that Hough was the driver of the maroon Tahoe involved in
the accident. The principal evidence upon which Hough's argument lies is that the sole
eyewitness to the incident, Cotter, testified to the driver being White, yet Hough is Black.
{¶ 18} The state's response to this argument is that only one person was found at
the scene near the Tahoe and there is no other evidence that anyone else was driving the
Tahoe. Additionally, the state notes that Hough did not deny to Officer Ward that he had
been driving when asked what happened. Lastly, the state offers the testimony of Cotter
No. 19AP-682 7

that he only saw a single person in the vehicle despite his uncertainty regarding the
driver's skin tone.
{¶ 19} Both parties agree that Hough was seated outside of the Tahoe, but Hough
argues there is some discrepancy regarding the distance from the Tahoe that he was
seated. This difference in distance comes from the testimony of Columbus Fire
Department Lieutenant Phil Biggs who testified he found Hough seated about 40 feet
away from the Tahoe, and the testimony of Officer Ward who, while viewing state's exhibit
12, testified Hough was seated two to three feet from the position of the person standing
in the photograph. However, Officer Ward further testified that, when he arrived, the
person depicted standing in the photograph was not at that location. While the distance
may be in dispute, we look to the totality of the facts and consider the testimony of both
Lieutenant Biggs and Officer Ward in determining this assignment of error.
{¶ 20} The jury, in assessing the facts and deciding a verdict, is permitted to make
reasonable inferences from facts. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Moreover, "[t]he identity of a perpetrator may be established by the use of direct or
circumstantial evidence." State v. Mickens, 10th Dist. No. 08AP-626, 2009-Ohio-1973,
¶ 18. "Circumstantial evidence is proof of certain facts and circumstances in a given case,
from which the jury may infer other, connected facts, which usually and reasonably follow
according to the common experience of mankind." State v. Brown, 10th Dist. No. 15AP-
935, 2016-Ohio-7944, ¶ 30. Circumstantial evidence can have the same probative value
as direct evidence, and a conviction can be sustained based on circumstantial evidence
alone. State v. Franklin, 62 Ohio St.3d 118, 124 (1991).
{¶ 21} The evidence viewed in a light most favorable to the prosecution sustains
the conviction of Hough on all counts. Hough was the only individual found near the
scene of the accident, only the driver side airbag of the Tahoe deployed, and Hough did
not contest that he was the driver when asked what happened. When asked by Officer
Ward if he was okay, Hough responded "[a]hh, man" in a tone "[l]ike he was upset." (Tr.
at 262.) While Cotter testified to his description of a White male driving, he expressed
uncertainty in that description based on the short length of time he was able to see the
No. 19AP-682 8

driver and the lighting that day.2 Based on the above evidence, any rational trier of fact
could have found the essential elements of the offered counts proven beyond a reasonable
doubt. Additionally, based on our review of the record, weighing the evidence and
reasonable inferences arising from that evidence and considering the credibility of the
witnesses, we cannot find that the jury lost its way and caused a manifest miscarriage of
justice in convicting Hough.
{¶ 22} Accordingly, we overrule Hough's first assignment of error.
B. Failure to Hold Competency Hearing
{¶ 23} In his second assignment of error, Hough contends the trial court
committed prejudicial error by its failure to conduct a hearing on his motion for a
competency evaluation.
{¶ 24} "It has long been recognized that 'a person [who] lacks the capacity to
understand the nature and object of the proceedings against him, to consult with counsel,
and to assist in preparing his defense may not be subjected to a trial.' " State v. Smith, 89
Ohio St.3d 323, 329 (2000), quoting Drope v. Missouri, 420 U.S. 162, 171 (1975).
Pursuant to R.C. 2945.37(G), "[a] defendant is presumed to be competent to stand trial."
However, if, after a competency hearing, the defendant is found by a preponderance of
the evidence to be "incapable of understanding the nature and objective of the
proceedings against the defendant or of assisting in the defendant's defense, the court
shall find the defendant incompetent to stand trial." R.C. 2945.37(G). "Fundamental
principles of due process require that a criminal defendant who is legally incompetent
may not be tried." State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, ¶ 36, citing
State v. Berry, 72 Ohio St.3d 354, 359 (1995).
{¶ 25} "[A] trial court must hold a competency hearing if a request is made before
trial." State v. Were, 94 Ohio St.3d 173 (2002), paragraph one of the syllabus. Pursuant
to R.C. 2945.37(B):
In a criminal action in a court of common pleas, a county
court, or a municipal court, the court, prosecutor, or defense
may raise the issue of the defendant's competence to stand
trial. If the issue is raised before the trial has commenced, the

2 Specifically, when trial counsel asked Cotter to recount his statement to Detective Dan Perez about the driver,

Cotter stated he thought it was a White person, "[b]ut the sun was very bright that day, plus I was driving - - I
was still moving, so I was looking at a glance as I was going by." (Tr. at 187.)
No. 19AP-682 9

court shall hold a hearing on the issue as provided in this
section.

(Emphasis added.) However, failure to hold a hearing may be found to be harmless error
where the record fails to reveal sufficient indicia of incompetency. State v. Bock, 28 Ohio
St.3d 108, 110 (1986).
{¶ 26} To determine competency, the court may order an evaluation of the
defendant's mental condition. Pursuant to R.C. 2945.371(G)(3)(a), an examination
ordered to determine competency shall include, among other facts and findings, findings
or recommendations regarding whether the defendant is capable of understanding the nature
and objective of the proceedings or capable of assisting in the defense. If the examiner's opinion
is that the defendant is incapable, findings by the examiner of whether defendant has an
intellectual disability or mental illness shall be included in the report. If present, the
report shall further include whether the examiner believes institutionalization by court
order is appropriate for intellectual disability, whether the defendant can become capable
of competency within one year with treatment, and the recommendation as to the least
restrictive placement or commitment alternative consistent with the defendant's
treatment needs for restoration to competency and the safety of the community. R.C.
2945.371(G)(3)(b) through (d). If, after a hearing, the court finds by a preponderance of
the evidence that, because of the defendant's present mental condition, the defendant is
incapable of understanding the nature and objective of the proceedings or of assisting in
his own defense, the court shall find the defendant incompetent to stand trial. R.C.
2945.371(G).
{¶ 27} Hough begins his argument by focusing on the order entered April 18, 2019
denying his motion for competency evaluation. Hough points to the trial court's reliance
on Crim.R. 11(H) and State v. Curry, 2d Dist. No. 2012-CA-50, 2014-Ohio-3836, to show
that "the trial court appears to have believed that [Hough] had requested a sanity
evaluation." (Hough's Brief at 3-4.) Hough argues it was on this belief that the court
denied his motion without a hearing for lack of timeliness and lack of evidence. Hough
argues this was improper pursuant to R.C. 2945.37.
{¶ 28} Hough then relies on Were in support of his argument that a trial court must
hold a competency hearing if the request is made prior to trial. Hough also relies on Were
No. 19AP-682 10

for the proposition that it is reversible error for the trial court to fail to hold a competency
hearing when the record is replete of instances that call into question a defendant's
competence. Hough argues the record before us also reveals evidence of incompetence
and, in support, refers to the psychological evaluation ordered by the court at the request
of Hough at the conclusion of trial for purposes of preparing a sentencing mitigation
report. Hough specifically relies on the report's finding that he has " 'severe mental illness
and intellectual/cognitive deficits.' " (Hough's Brief at 7, quoting McConnell Report at
33.)
{¶ 29} The state concedes Hough's contention that the court believed the request
was to determine Hughes' mental condition at the time of the offense is not incorrect.
(State's Brief at 8.) However, the state suggests that the court believed the two motions
were the same, given they were "nearly identical and were filed at exactly the same time."
(State's Brief at 9.) The state also argues that neither motion included a memorandum in
support nor gave any facts to support the requests.
{¶ 30} The state asserts the court, through its interactions with Hough, could have
determined competency and was in the best position to assess signs of incompetency. The
state notes that Hough engaged in no outbursts, did not indicate difficulties with counsel,
was represented by two lawyers, and trial counsel only raised the issue of competence a
single time prior to trial, and once the motion was denied did not raise the issue again
until sentencing despite ample opportunity.
{¶ 31} Addressing Hough's mental health issues, the state relies on precedent of
this court and cases from the Eighth District Court of Appeals following Bock for the
proposition that emotionally disturbed or psychotic defendants may be found capable of
achieving competency, and that evidence of the same does not provide sufficient indicia
for finding reversible error. (See State's Brief at 18-19, citing State v. Morales, 10th Dist.
No. 03AP-318, 2004-Ohio-3391, State v. McNeir, 8th Dist. No. 105417, 2018-Ohio-91,
State v. Moore, 8th Dist. No. 108692, 2020-Ohio-3459, and Thompson.) The state argues
in the alternative, that if the court finds reversible error, the court should remand the
issue to determine competency pursuant to State v. Archie, 10th Dist. No. 89AP-804
(Sept. 27, 1990).
No. 19AP-682 11

{¶ 32} In this case, on April 12, 2019, Hough submitted two very similar motions:
a motion for psychiatric evaluation and a motion for competency evaluation. Neither
motion was accompanied by a memorandum in support. In support of his request for
evaluation of both Hough's then-present mental condition and mental condition at the
time of the offense, Hough's trial counsel simply stated "[f]acts having come to defense
counsel's attention pertaining to [Hough's] psychiatric state, [Hough], through counsel
moves the court * * * to have [Hough] referred * * * for examination." (Mot. for
Competency Eval.) Without a hearing, on April 16, 2019, the court entered an order and
entry denying Hough's motion for a psychiatric evaluation. The court's order noted
"[Hough] * * * is requesting that the Court order a psychiatric evaluation to 'determine
[his] mental condition at the time of offense.' " (Order at 1.) After the court discussed
Hough's plea, the court cited Crim.R. 11(H) and Curry to support denying the motion for
lack of timeliness, as well as a failure "to submit any evidence of his competency at the
time of the offense other than the request in the motion." (Order at 2.) In the order's
final lines, the court expressed incredulity that "in seventeen months of contact with
[Hough] counsel did not realize, or recognize, that [Hough] may have been insane at the
time of the offense." (Order at 2.) Although it does appear the trial court's order referred
to the mental state of Hough at the time of the offense, we note that Hough's counsel at
sentencing expressed to the court her understanding that the motion for competency
evaluation was also denied. (See paragraph 34 below.)
{¶ 33} After denial of the motion for psychiatric evaluation, counsel did not raise
again the motion for competency evaluation. Additionally, during trial, counsel did not
raise the issue of competency. A request for psychiatric evaluation was not raised again
until after the jury verdict was delivered, and it was requested for the distinct purpose of
preparing a sentencing mitigation report:
MS. PLAIR: Your Honor, if you remember, you agreed to give
me a time period to have a mitigation report done at
sentencing with a report by Dr. Tilley.

THE COURT: I know he suffers from a lot of issues. It's in the
hospital records. I don't think whatever Dr. Tilley is going to
say is going to affect my opinion about what the sentence
would be.
No. 19AP-682 12

MS. PLAIR: We would like the opportunity to convince you.

***

THE COURT: When did I tell you that?

MS. PLAIR: It was before I went out for surgery.

THE COURT: If he was convicted?

MS. PLAIR: Yes, that we would be able to do a mitigation
report.

***

THE COURT: If I told you I would do it, I believe you. We'll
sentence him in two weeks. You've got two weeks to get a
report together. You should be able to get that together.

(Tr. at 559-61.) The court granted the request for a psychiatric evaluation.
{¶ 34} The evaluation took place between September 9 and 10, 2019, within two
weeks of when the trial concluded, August 26 through 29, 2019. The report was dated
September 11, 2019. Sentencing was held September 12, 2019. At the sentencing hearing,
the court reviewed the report and again counsel did not object to the trial court not
holding an initial hearing as to competency, nor did counsel request an additional hearing
as to competency after having reviewed the psychological evaluation. The record reveals
the sentencing hearing was the only other time counsel mentioned Hough's competency
when the following exchange occurred:
MS. PLAIR: He has some very real diagnoses. He has shown
over the course of this case tendencies to lose focus. Sometimes
he responds to external stimuli to where it made me wonder
whether or not he was competent. I tried to pull all the medical
records that I could to get the background on whether or not he
was competent.

***

Please understand that competency and the other diagnoses
that he has may seem like an excuse, but they're very real when
it comes to a criminal case. If he is hearing voices and does not
know who he is and he thinks God is speaking to him, that goes
No. 19AP-682 13

to the heart of whether or not he can stand and/or sit in front
of a Court and actually be helpful in his defense.

I did bring up to the Court my concerns about his competency.
I filed a request to have his competency reviewed, and it was
denied.

THE COURT: Yeah, two years into the case, so don't even get
me started on that, okay? If you want to get started on that, I'm
happy to get started on that, because you had two years to do
that.

MS. PLAIR: I am not getting into that. I am simply making a
record that one was made, and it was denied. Competency is
very fluid. You can be competent one moment, and two years
later you may not be competent. I can't file for competency
before I see a reason to do so. He has not failed to take
responsibility for this. He has shown incredible remorse for
what has happened.

(Tr. at 589-91.) However, there was no mention by counsel of the need for a hearing on
competency before, during, or after this exchange. Furthermore, importantly, Hough's
counsel points us to no place in the record revealing any outward expression or
manifestation by Hough himself of a lack of understanding of the nature and objective of
the proceedings or of an inability to assist in his own defense. On our own review, we find
no place in the record revealing the same.
{¶ 35} In the psychological evaluation report, examiner A.J. McConnell, Psy.D.
prefaced his discussion noting that Hough's counsel had referred Hough to him "for a
psychological evaluation to assess mitigating factors in preparation for an upcoming
sentencing hearing." (Psychological Eval. Report at 1.) The report did not include any
findings or recommendations as to competency as required by R.C. 2945.371(G)(3). Dr.
McConnell noted that Hough reported he had been hospitalized for psychiatric purposes
three to five times and that he had attempted suicide five times, with three of the
occurrences taking place after the automobile accident. Dr. McConnell noted that, one
week prior to the accident, Hough was hospitalized after having been found lying in the
street. At the time, Hough claimed that someone was chasing him, and they were in the
trees.
No. 19AP-682 14

{¶ 36} Dr. McConnell remarked that based on his interactions with Hough, that
Hough appeared to be attending to internal stimuli and seemed confused at times while
being evaluated although he was cooperative and attempted every task asked of him.
Hough admitted to experiencing auditory and visual hallucinations in the past and at the
time of the evaluation.3 Additionally, Dr. McConnell noted Hough seemed alert and fully
oriented to his examination and able to state details such as names of family members,
the facility, city, and state where the meeting took place, although he could not state the
day of the week, date, month, or year. Dr. McConnell noted Hough's attention and
concentration were fair and there were no obvious problems with short term memory
retention, although there were mild deficits in his recent past memory and remote
memory. Hough recognized he was in jail and had an upcoming hearing. He also
understood the evaluation took place per the request of his counsel and the court and
reported that he had been charged with vehicular homicide stemming from an accident
on August 8, 2017.
{¶ 37} Testing results outlined by Dr. McConnell included that Hough scored just
above the "extremely low" range in the verbal comprehension index. The score was in the
0.4th percentile of his same-aged peers and measured Hough's verbal concept formation,
verbal reasoning, and knowledge acquired from an individual's environment. Hough
scored in the "extremely low" range of the Full Scale IQ test, in the 0.3rd percentile.
Regarding his memory, Hough's auditory memory index score was in the 21st percentile
(low average), his immediate memory index score was in the 34th percentile (average),
and his delayed memory index was in the 9th percentile (low average). In the evaluation
report, Dr. McConnell stated: "The Auditory Memory Index assesses the individual's
ability to remember information that is presented orally. * * * The Immediate Memory
Index assesses the individual's ability to remember information immediately after it is
presented to him. * * * The Delayed Memory Index assesses the individual's ability to
remember information after a 20-30 minute delay." (Psychological Eval. Report at 25-

3 Dr. McConnell observed: "Mr. Hough also admitted to experiencing auditory hallucinations at the time of
this evaluation. For example, he appeared to turn his head towards the wall and when he reestablished eye
contact with me, I asked him if he was ok. He responded, 'I think I'm hearing things.' Of note, we were in a
room in which external noise, such as other people talking and music playing on the other side of the wall, was
audible. Still, Mr. Hough appeared to be attending to internal stimuli." (Psychological Eval. Report at 15.)
No. 19AP-682 15

26.) Additionally, Hough was tested for malingering on the memory tests to distinguish
between feigned memory deficits and true memory impairments. Dr. McConnell found
testing did not indicate malingering by Hough. The opinion of Dr. McConnell was that
Hough met "DSM-5 diagnostic criteria for Other Specified Schizophrenia Spectrum and
Other Psychotic Disorder."4 (Psychological Eval. Report at 30.) However, he opined that
"[i]t is also possible that Mr. Hough's presentation is best explained by a Major Depressive
Disorder, Recurrent, Severe with Psychotic Features." (Psychological Eval. Report at 30.)
At the time of the evaluation, Hough was also found to have presented with "substantial
intellectual and cognitive deficits * * * and [his abilities] are equivalent to the
intellectual/cognitive abilities of an individual with an Intellectual Disability."
(Psychological Eval. Report at 31-32.)
{¶ 38} The Supreme Court has noted that a defendant may have a mental disability
and still be capable of understanding the nature and objective of the proceedings against
him or her and assist in his or her defense. See Bock at 110. This is consistent with R.C.
2945.37(F), which requires that:
The court shall not find a defendant incompetent to stand trial
solely because the defendant is receiving or has received
treatment as a voluntary or involuntary mentally ill patient
under Chapter 5122. or a voluntary or involuntary resident with
an intellectual disability under Chapter 5123. of the Revised
Code or because the defendant is receiving or has received
psychotropic drugs or other medication, even if the defendant
might become incompetent to stand trial without the drugs or
medication.

(Emphasis added.)
{¶ 39} The Supreme Court in Bock addressed whether failure to hold a competency
hearing rose to the level of reversible error. The court made clear "there is no question
that where the issue of the defendant's competency to stand trial is raised prior to the
trial, a competency hearing is mandatory." Bock at 109. However, the court also
determined that failure to hold a hearing is reversible error only when that failure resulted
in the violation of a constitutional right and this question is approached on a case-by-case

4 "This diagnosis is characterized by symptoms that cause clinically significant distress and/or impairment in

functioning but do not meet full diagnostic criteria for any other disorder in the schizophrenia spectrum and
other psychotic disorders diagnostic class." (Psychological Eval. Report at 30.)
No. 19AP-682 16

basis. Id. at 110. The test to determine whether the court's failure to hold a competency
hearing constitutes a violation of a Constitutional right is whether the record contains
sufficient indicia of incompetency such that a formal inquiry into the defendant's
competency is necessary to protect his right to a fair trial. Id.
{¶ 40} In Bock, Bock's counsel requested a competency hearing alleging Bock was
in the hospital for drug-related problems. Id. at 110. The trial court ordered an
examination of Bock, but the record reveals no further action—no report was filed and no
hearing was held. Id. at 108. The court observed that Bock testified regarding "his
emotional distress and comments about suicide," but also that "[he] testified extensively
at trial under direct, cross-, redirect, and recross-examinations with no apparent
behavior" that suggested incompetency. Id. at 110-11. Trial counsel in Bock did not raise
the issue of Bock's competency again until the time for appeal. Id. at 111. Based on these
facts, the court noted that Bock's testimony regarding emotional distress and suicide,
"alone is not sufficient to indicate a lack of competency," and "the record reveals no
adequate indication of any behavior on the part of the defendant which might indicate
incompetency." Id. at 110-11. The court found there was not a sufficient indicia of
incompetency, and the failure to hold a hearing, even when requested prior to trial, was
harmless error. Id.
{¶ 41} The Supreme Court also dealt with the issue of a defendant's competency in
State v. Braden, 98 Ohio St.3d 354, 2003-Ohio-1325. In Braden, the court found trial
counsel was not deficient in failing to raise the issue of competency, despite a psychologist
testifying "that Braden believed that he would not be tried because God would deliver him
and noted that he was becoming more distrustful and dismissive of his lawyers." Braden
at ¶ 113. Of note, the psychologist diagnosed Braden as suffering from paranoid
schizophrenia; yet, the psychologist still found Braden competent. The court, citing Bock,
noted that a paranoid schizophrenia diagnosis "is not synonymous with incompetence to
stand trial." Id. at ¶ 116. The court further noted the record did not reflect any behavior
by Braden during trial that suggested the lack of legal competency. Id. at ¶ 117.5

5In Braden, the court noted specifically that Braden "answered the trial court's questions about visits from
Dr. Burch [the doctor who diagnosed him with paranoid schizophrenia], expressed satisfaction with his
counsel, told the judge he understood his appellate rights, said he did not want a presentence investigation
and informed the court that he did not wish to make a statement prior to sentencing." Id.
No. 19AP-682 17

{¶ 42} In State v. Prophet, 10th Dist. No. 14AP-875, 2015-Ohio-4997, this court
addressed whether the trial court's failure to sua sponte order an evaluation to determine
Prophet's competency to enter a guilty plea was a violation of the notion of fundamental
fairness and due process. This court observed that "the right to a hearing on the issue of
competency rises to the level of a constitutional guarantee where the record contains
'sufficient indicia of incompetence,' such that an inquiry into the defendant's competency
is necessary to ensure the defendant's right to a fair trial." Prophet at ¶ 12, citing Drope.
This court further noted that factors to be considered included doubts expressed by trial
counsel as to a client's competency, evidence of irrational behavior, the defendant's
demeanor, and any prior medical opinions concerning the defendant's competency. Id.
at ¶ 14.
{¶ 43} Upon an examination of the record, this court found the various
interactions between Prophet and the court showed an understanding by Prophet of the
nature of the charge against him and the proceedings. Id. at ¶ 19. Specifically, we noted
Prophet "affirmed during the plea colloquy that he understood the nature of the charges
against him," that he discussed the case with the attorney, and "that he understood that
the decision of whether to go to trial or plead guilty was completely up to him, and assured
the court that no one had threatened him or promised him anything to induce him to
change his plea." Id. at ¶ 5. Moreover, this court held that Prophet's diagnosed mental
illness did not rise to the level of providing sufficient indicia of incompetency. See id. at
¶ 20-21. Following well-established precedent, we noted that having a mental illness does
not equate with a finding of legal incompetency. Id. at ¶ 21. Thus, we found no reversible
error. Id. at ¶ 27.
{¶ 44} As noted previously, Hough relies on Were in support of his argument that
the trial court committed reversible error in not holding a hearing on competency. In
Were, the Supreme Court of Ohio found the record was "replete" with indicia of Were's
incompetency and, as a result, the trial court committed reversible error by failing to hold
a competency hearing. Were at 175. Of note, trial counsel raised the issue of competency
by motion, after opening arguments, during trial, and before mitigation. Id. Additionally,
"on many occasions, defense counsel directly or indirectly represented to the [trial] court
that they believed [Were] to be incompetent." Id. The basis for his trial counsel's belief
No. 19AP-682 18

was Were exhibited signs of paranoia that caused trial counsel to file two motions to
withdraw and a motion for continuance. Id. at 175-76. Furthermore, trial counsel
informed the court that Were refused to speak with the defense team, and trial counsel
consistently claimed that Were's "failure to cooperate seriously hampered their ability to
present a defense." Id. at 176. This was consistent with the actions of Were who filed
multiple pro se motions to dismiss his attorneys on grounds the defense team was
"racially biased, had threatened his life, were conspiring with the prosecution, and had
failed to adequately prepare for the mitigation phase." Id. Based on this evidence, the
Supreme Court of Ohio found the trial court committed reversible error in not holding a
hearing. Id. at 177.
{¶ 45} The facts in the case before us are distinguishable from the facts in Were.
Unlike in Were, Hough's trial counsel did not raise the issue of competency repeatedly.
Here, trial counsel made a single motion for a competency evaluation. Another request
for an evaluation was made after trial had concluded, but that request was not for the
purpose of evaluating competency but, instead, for mitigation in sentencing. Unlike in
Were, Hough's trial counsel did not make multiple attempts to convey to the trial court
they believed Hough to be incompetent, or that the actions and beliefs of Hough resulted
in his failure to cooperate, thus hampering their ability to provide a defense. Lastly,
unlike in Were, here there were no actions taken by Hough that would bolster such
arguments, such as pro se motions to dismiss his attorneys for reasons that might lead
the court to question his competency.
{¶ 46} Furthermore, in the case before us, the record is not replete with indicia of
incompetency. Moreover, neither the trial court, trial counsel, nor prosecutor expressed
anything on the record during trial regarding Hough's behavior or speech during off-the-
record interactions. It is important to remember that the trial court and trial counsel's
ability to observe Hough "in the context of the trial and * * * gauge from his demeanor
whether he was able to cooperate with his attorney and * * * understand the nature and
object of the proceedings" positioned them to make such remarks on the record. See
Drope at 181 (discussing the impact of the petitioner's absence during trial in determining
whether the record contained an indicia of incompetency). The trial record is silent in
No. 19AP-682 19

this regard. Without any indicia of incompetency on the record, Hough relies solely on
the psychiatric evaluation as an indicia of competency.
{¶ 47} Looking to the psychological evaluation, taken as a whole, there is not a
sufficient indicia of incompetency. It is clear Hough suffers from mental illness and has
limited intellectual/cognitive functioning. However, as is made clear in Bock, Braden,
and Prophet, mental illness alone is not necessarily sufficient for a finding of legal
incompetence.
{¶ 48} Here, Hough is similarly situated to the defendants in Bock, Braden, and
Prophet in that the psychological evaluation revealed suicide attempts, emotional
distress, diagnoses of paranoia and schizophrenia, and other mental illness. Although in
Bock, Braden, and Prophet the court had more interaction with the defendants than the
court in this case did with Hough, R.C. 2945.37(G) requires us to presume the defendant
was competent to stand trial unless a preponderance of the evidence showed him to be
incapable of understanding the nature and objective of the proceedings against him or of
assisting in his defense.
{¶ 49} Furthermore, we note there is an indication in the psychological evaluation
and by trial counsel that Hough understood the proceedings against him. In Prophet, in
determining whether there were sufficient indicia of incompetency, the court considered
that Prophet stated he understood the nature of the charges against him. Here, the
psychological examiner noted Hough understood he was in jail, had an upcoming hearing,
he was being examined at the request of his counsel, and he had been charged with
vehicular homicide stemming from the August 8, 2017 accident. Additionally, trial
counsel stated Hough has shown remorse and taken responsibility for his actions, which
suggests he has an appreciation for the nature of the charges. On the facts of this case, we
cannot say the psychiatric evaluation alone provides sufficient indicia of incompetence
and that the trial court's failure to hold a hearing on competency resulted in prejudicial
error. Thus, we find the failure of the trial court to hold a competency hearing on Hough's
pretrial request for competency evaluation, while error, to be harmless since the record
lacks sufficient indicia of incompetency.
{¶ 50} Accordingly, we overrule Hough's second assignment of error.
No. 19AP-682 20

C. Ineffective Assistance of Counsel
{¶ 51} In his third assignment of error, Hough contends his trial counsel was
ineffective by failing to contest the introduction of results of lab tests of his blood,
conducted more than three hours after the operation of the Tahoe, revealing the presence
of marijuana and cocaine. Specifically, Hough argues his trial counsel was ineffective for
failing to object to Dr. Wyman's opinion testimony, based on the process of reverse
extrapolation, that at the time of the accident Hough's blood contained more than 900
ng/ml of cocaine. In closing argument, the state pointed to Dr. Wyman's testimony as
evidence of Hough being "impaired" and thus guilty of Counts 1, 3, 5, 7, and 9, all
containing "impairment" as an element necessary to prove for conviction. Hough argues
that the reverse extrapolation process is only appropriate for calculating the presence and
amount of ethanol, not other drugs such as cocaine since the elimination rate from the
body for drugs is not constant over time, whereas the elimination rate for ethanol is
constant. Hough argues that the process used for drugs is an "unsound scientific process."
(Hough's Brief at 16.)
{¶ 52} We apply a two-part test to evaluate claims of ineffective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio
St.3d 136, 141-42 (1989). "First, the defendant must show that counsel's performance was
deficient. * * * Second, the defendant must show that the deficient performance
prejudiced the defense." Strickland at 687. Further, "[t]he failure to make either showing
defeats a claim of ineffective assistance of counsel." State v. Kennard, 10th Dist. No.
15AP-766, 2016-Ohio-2811, ¶ 14, citing Bradley at 143.
{¶ 53} In order to "demonstrate that counsel's performance was deficient, [the
defendant] must show that his counsel committed errors which were ' "so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." ' " Id. at ¶ 15, quoting State v. Phillips, 74 Ohio St.3d 72, 101 (1995), quoting
Strickland at 687. "To establish deficient performance, a person challenging a conviction
must show that 'counsel's representation fell below an objective standard of
reasonableness.' A court considering a claim of ineffective assistance must apply a 'strong
presumption' that counsel's representation was within the 'wide range' of reasonable
professional assistance." Harrington v. Richter, 562 U.S. 86, 104 (2011), quoting
No. 19AP-682 21

Strickland at 688-89. "[A] properly licensed attorney is presumed competent [and the
defendant] bears the burden of proving that his trial counsel was ineffective." State v.
Hamblin, 37 Ohio St.3d 153, 155-56 (1988), citing Vaughn v. Maxwell, 2 Ohio St.2d 299,
301 (1965).
{¶ 54} In addition to establishing deficient performance, prejudice must also be
established such "that there exists a reasonable probability that, but for counsel's error,
the result of the proceeding would have been different." State v. Davis, 159 Ohio St.3d
31, 2020-Ohio-309, ¶ 10, citing Bradley at paragraphs two and three of the syllabus. " ' "A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." ' " Id., quoting Bradley at 142, quoting Strickland at 694. Furthermore, this
court has stated "a trial counsel's failure to object to testimony does not amount to
ineffective assistance of counsel unless the defendant can demonstrate a reasonable
probability that, but for his counsel's failure to object, the result of the proceedings would
have been different." State v. Thompson, 10th Dist. No. 18AP-211, 2019-Ohio-2525, ¶ 15,
citing State v. Watts, 10th Dist. No. 15AP-951, 2016-Ohio-5386, ¶ 42, citing State v.
Valentine, 10th Dist. No. 14AP-893, 2016-Ohio-277, ¶ 24.
{¶ 55} Furthermore, " '[i]n order to prevail on a claim of ineffective assistance of
counsel in a case involving a failure to make a motion on behalf of a defendant, the
defendant must show "(1) that the motion * * * thereto was meritorious, and (2) that there
was a reasonable probability that the verdict would have been different had the motion
been made." ' " State v. Teitelbaum, 10th Dist. No. 14AP-310, 2016-Ohio-3524, ¶ 107,
quoting State v. Peterson, 10th Dist. No. 07AP-303, 2008-Ohio-2838, ¶ 55, quoting State
v. Lawhorn, 3d Dist. No. 11-04-19, 2005-Ohio-2776, ¶ 35.
{¶ 56} As noted above, Hough's argument on appeal asserts that he received
ineffective assistance of counsel based on counsel's failure to challenge Dr. Wyman's
results and opinion testimony, which were reliant on retrograde, or reverse,
extrapolation. Hough's basis for claiming that counsel was constitutionally deficient in
this case is that counsel failed to file pretrial motions relative to Dr. Wyman's testimony.
Hough argues his trial counsel "mistakenly believed that Wyman's alchemy was indeed a
sound and accepted scientific technique," which Hough argues was in actuality "based on
an unsound scientific process and should not have been introduced as evidence at his
No. 19AP-682 22

trial." (Hough's Brief at 16-18.) Hough argues that had the testimony been challenged
with evidence newly present on appeal, the counts requiring evidence of impairment
would have been dismissed or the jury would not have found him guilty of those counts.
{¶ 57} The state responds that Hough fails to surmount the high bar required to
prove ineffective assistance of counsel. Additionally, the state points to Hough's lack of
evidence within the record on which he relies to claim ineffective assistance of counsel.
Lastly, the state argues that even if trial counsel had challenged the admission of Dr.
Wyman's evidence, it would have been futile because the evidence was admissible under
State v. Hassler, 115 Ohio St.3d 322, 2007-Ohio-4947, and State v. Curtis, 10th Dist. No.
09AP-1199, 2011-Ohio-3298. The state argues that concerns about the accuracy of the
test should go to weight and do not affect admissibility since the expert's opinion is subject
to cross-examination and the witness was qualified as an expert. The state also argues
the blood evidence was merely cumulative of other evidence of impairment and therefore
the outcome of the trial would not have changed even if Hough had objected to the opinion
testimony.
{¶ 58} "The failure to make either [the deficiency or prejudice] showing defeats a
claim of ineffective assistance of counsel." Kennard at ¶ 14, citing Bradley at 143. Thus,
"a court need not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.
* * * If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed." Strickland
at 697.
{¶ 59} In this case, Hough makes general arguments that the alleged deficiency of
trial counsel was based on counsel's failure to research the scientific method used by Dr.
Wyman and prevent the introduction of Dr. Wyman's testimony through either a motion,
objection, or some legal defense. Though, it is unclear which legal avenue Hough believes
trial counsel should have pursued. Hough argues that "trial counsel filed no pretrial
motions relative to Wyman's testimony." (Hough's Brief at 17.) However, on August 23,
2019, trial counsel did file a motion to suppress all evidence of tests and test results of
Hough's blood draw on grounds that the blood was drawn by Columbus Police
Department outside the three-hour time limit required by R.C. 4511.19(D)(1)(b).
No. 19AP-682 23

Nevertheless, it is not necessary to determine whether Hough's counsel's performance
was deficient because Hough has not shown his counsel's performance prejudiced him.
{¶ 60} In Curtis, this court, following the Supreme Court's precedent, determined
blood draw evidence to be admissible in proving impaired driving, with respect to alcohol
levels, even when the blood draw was taken outside the three-hour time limit. See Curtis
at ¶ 30, citing Hassler at ¶ 2. In discussing the admissibility of such evidence, the court
noted that drawing of the blood outside the time limit "does not diminish the probative
value of the results in a prosecution for an 'impaired' violation." Id. at ¶ 31. Moreover,
the court cited Mason v. Murphy, 123 Ohio App.3d 592, 597 (12th Dist.1997), for the
proposition that the "test results are simply considered in addition to all other evidence
demonstrating impaired driving." Curtis at ¶ 31.
{¶ 61} This court need not opine regarding whether the process of reverse
extrapolation is sound scientific technique for measuring drug levels rather than alcohol
levels and will not do so where no objection was made at the trial level and thus no record
was made regarding the technique. We understand the issue raised by Hough to address
Dr. Wyman's opinion testimony regarding the cocaine levels at the time of the accident,
however, we recognize that the evidence of the blood draw has been ruled admissible
outside of the three-hour limit with regard to alcohol levels in blood. See Hassler at ¶ 2.
Therefore, Curtis compels at the very least, that the results of the blood draw test would
be admissible. Because the results of the test were considered with all other evidence,
taking into consideration the same, we find the introduction of the reverse extrapolation
evidence was not prejudicial such that there does not exist a reasonable probability that,
but for trial counsel's failure to object, the result of the proceeding would have been
different.
{¶ 62} Furthermore, as was the case in Hassler, we note that Dr. Wyman's
testimony was subject to cross-examination. Moreover, in addition to Dr. Wyman's
testimony, the jury had before it other evidence of impairment presented by the state at
trial, such as Cotter's testimony of an SUV driving erratically, Hough being the sole person
found outside the Tahoe after the accident, and testimony of Officer Ward. Therefore,
Hough was not prejudiced by the failure of trial counsel to raise some other motion,
No. 19AP-682 24

objection, or legal defense. Having not demonstrated that counsel's performance
prejudiced him, Hough's contention lacks merit.
{¶ 63} Accordingly, Hough's third assignment of error is overruled.
IV. CONCLUSION
{¶ 64} Having overruled Hough's three assignments of error, we affirm the
judgement of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and LUPER SCHUSTER, JJ., concur.