[Cite as State v. Adkins,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

STATE OF OHIO C.A. No. 22AP0022

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE NICHOLAS VAN ADKINS WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO Appellant CASE No. 2022 CR-B 000217

DECISION AND JOURNAL ENTRY

Dated: August 28, 2023

HENSAL, Judge.

{¶1} Defendant-Appellant, Nicholas Adkins, appeals from the judgment of the Wayne

County Municipal Court. This Court affirms.

I.

{¶2} In July 2020, Mr. Adkins became subject to a domestic violence civil protection

order. The order named his ex-wife and her two adult children as protected parties. The order was

originally set to terminate after one year, but the parties later agreed to a five-year extension. The

modification took effect in June 2021, resulting in a new termination date of July 2026. Relevant

to this appeal, the order prohibited Mr. Adkins from initiating contact with his ex-wife or her

daughter, entering their place of employment, or being within 500 feet of any place he knew or

should have known they were likely to be.

{¶3} In late November 2021, the ex-wife began receiving text messages from an

unknown number. The content of the messages led her to suspect Mr. Adkins was the individual 2

messaging her. Her suspicions were confirmed when he started sending her picture messages and

messages through a social media application. The ex-wife filed several police reports based on

messages Mr. Adkins sent her in November and December 2021.

{¶4} On January 15, 2022, Mr. Adkins entered a bar where his ex-wife was working.

She demanded that he leave, and Mr. Adkins complied. Because she was not sure whether he

knew she worked at the bar, the ex-wife did not initially report the incident to the police. Mr.

Adkins returned to the bar on January 28, 2022, however, and demanded someone call his ex-wife.

The ex-wife was not working at the time, but her daughter was. Mr. Adkins approached the

daughter and told her to call her mother. He left shortly thereafter, and the bar staff contacted the

police.

{¶5} Later that same day, the ex-wife arrived at the bar to work the evening shift.

Sometime after midnight (i.e., on January 29, 2022), Mr. Adkins returned to the bar. He did not

ask for his ex-wife but took a seat in a booth. When a coworker told the ex-wife Mr. Adkins was

there, she contacted the police. Mr. Adkins was still present when the police arrived.

{¶6} Mr. Adkins was charged with four counts of violating a protection order and two

counts of menacing by stalking. Two counts of violating a protection order pertained to the

messages he sent his ex-wife in November and December 2021. The remaining two counts of

violating a protection order stemmed from Mr. Adkins entering the bar where his ex-wife and her

daughter worked on January 28, 2022, and January 29, 2022. Regarding the menacing by stalking

charges, one count named the ex-wife as the victim, and the other named the daughter.

{¶7} Mr. Adkins was appointed counsel, and the matter proceeded to a bench trial.

Following opening statements, defense counsel expressed a concern that Mr. Adkins might not be

competent to stand trial. The trial court heard limited testimony on that issue, found no good cause 3

for further hearing, and ordered the trial to proceed. At its conclusion, the court found Mr. Adkins

guilty on all counts. The court sentenced him to a total of 537 days in jail and fines.

{¶8} Mr. Adkins now appeals from his convictions and raises four assignments of error

for review. For ease of analysis, we rearrange his assignments of error.

II.

ASSIGNMENT OF ERROR III

THE TRIAL COURT COMMITTED AN ERROR WHEN IT FOUND THAT THERE IS NO GOOD CAUSE SHOWN TO ORDER A COMPETENCY EXAM OF MR. ADKINS.

{¶9} In his third assignment of error, Mr. Adkins argues the trial court abused its

discretion when it failed to hold a competency hearing. We disagree.

{¶10} “A criminal defendant is presumed competent.” State v. Coker, 9th Dist. Summit

No. 29540,

. If defense counsel raises the issue of a defendant’s competence

after the trial has commenced, “the court shall hold a hearing on the issue only for good cause

shown or on the court’s own motion.” R.C. 2945.37(B). The defense bears the burden of

establishing good cause for a competency hearing. Elyria v. Bozman, 9th Dist. Lorain No.

01CA007899,

, ¶ 7. “‘[G]ood cause’ * * * may be shown by ‘objective indications

such as medical reports, specific references by defense counsel to irrational behavior, or the

defendant’s own conduct during the trial * * *.’” State v. Johnson, 9th Dist. Summit No. 25620,

, quoting State v. Rahman,

(1986).

{¶11} An appellate court applies the abuse of discretion standard when reviewing a trial

court’s decision whether to hold a competency hearing once trial has commenced.

.

The abuse of discretion standard implies that a trial court acted unreasonably, arbitrarily, or

unconscionably. Blakemore v. Blakemore,

(1983). When applying an abuse 4

of discretion standard, a reviewing court is precluded from simply substituting its own judgment

for that of the trial court. Pons v. Ohio State Med. Bd.,

(1993). This Court

is mindful that, “with respect to competency issues, deference should be granted to those ‘“who

see and hear what goes on in the courtroom.”’” State v. Knox, 9th Dist. Lorain No. 17CA011233,

, quoting State v. Ahmed,

,

, ¶ 68, quoting

State v. Cowans,

(1999).

{¶12} After opening statements, defense counsel informed the trial court there was a

possible issue with Mr. Adkins’ competence to stand trial. Defense counsel stated: “the more time

I spend discussing this matter with Mr. Adkins, the less confident I am in his ability to assist the

defense in any kind of rational way.” Defense counsel gave a minimal explanation for his

concerns. He only stated that information he had received from Mr. Adkins earlier that morning

had turned out not to be “quite accurate * * *.”

{¶13} After listening to defense counsel, the trial court noted that the burden of

establishing good cause for a competency hearing fell upon the defense. The court asked defense

counsel whether he wished to present any evidence. Defense counsel declined, indicating that

there were no witnesses he could call to testify about Mr. Adkins’ competence, and he did not ask

for additional time to secure any such testimony. The trial court then permitted the State to briefly

examine the ex-wife on the competency issue. The ex-wife testified that Mr. Adkins routinely lied

over the course of their relationship and frequently made false statements to benefit himself or

manipulate others. After hearing her testimony, the trial court noted that defense counsel had

failed to offer any evidence to establish good cause while the ex-wife’s testimony tended to show

Mr. Adkins simply had a history of manipulation and lying. Based on those facts, the trial court

declined to find good cause for a competency hearing and proceeded with the trial. 5

{¶14} Mr. Adkins argues the trial court abused its discretion when it refused to conduct a

competency hearing. He notes that less than one week elapsed between the day the court appointed

him counsel and the day his trial commenced. Given that short timeframe, Mr. Adkins argues it

was “highly doubtful” either defense counsel or the prosecution had sufficient time to consider his

competency. According to Mr. Adkins, the trial court should have conducted a competency

hearing to ensure his right to a fair trial.

{¶15} Having reviewed the record, we cannot conclude the trial court went so far as to

abuse its discretion when it refused to conduct a competency hearing. See Rahman,

. The only evidence defense counsel offered in questioning Mr. Adkins’ competence was

his own statement that Mr. Adkins may have given him inaccurate information about a factual

matter. See Bozman,

, at ¶ 7 (court may consider statements made by defense

counsel regarding competency). He did not point to any irrational behavior on the part of Mr.

Adkins, and there was no indication Mr. Adkins lacked the capacity to understand the proceedings.

See Johnson,

. Further, there were no other indications to suggest Mr.

Adkins was incompetent, such as medical reports or questionable conduct on his part during the

trial. See

As noted, the court was only required to conduct a competency hearing if the defense

first established good cause for a hearing existed. See R.C. 2945.37(B);

. The trial

court heard testimony that Mr. Adkins simply had a history of lying and being manipulative. The

court reasonably could have concluded that was the reason he failed to provide his counsel with

entirely accurate information. Because Mr. Adkins has not shown the trial court abused its

discretion by refusing to hold a competency hearing, his third assignment of error is overruled.

ASSIGNMENT OF ERROR I

MR. ADKIN’S CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE[.] 6

{¶16} In his first assignment of error, Mr. Adkins argues his convictions for violating a

protection order are based on insufficient evidence. According to Mr. Adkins, the State never

proved he was served with a copy of the protection order he allegedly violated. This Court rejects

his argument.

{¶17} Whether a conviction is supported by sufficient evidence is a question of law, which

we review de novo. State v. Thompkins,

(1997). In carrying out this

review, our “function * * * is to examine the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.” State v. Jenks,

(1991), paragraph two of the syllabus. “The

relevant inquiry is whether, after 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.”

{¶18} Relevant to this appeal, Revised Code Section 2919.27(A)(1) prohibits any person

from recklessly violating the terms of a domestic violence civil protection order. “In State v. Smith,

,

, the Ohio Supreme Court held that ‘the [S]tate must establish

beyond a reasonable doubt that it served the defendant with the [protection] order before the

alleged violation.” (Alterations sic.) State v. Meinke, 9th Dist. Lorain Nos. 15CA010738,

15CA010739,

, quoting

. Yet, the General Assembly later

amended Section 2919.27 to specifically eliminate the need for proof of service. Meinke at ¶ 9,

fn. 1. Effective September 27, 2017, the State need only prove a defendant was shown a copy of

the protection order or was informed of its issuance by a judge, magistrate, or law enforcement

officer. R.C. 2919.27(D). 7

{¶19} Mr. Adkins argues his convictions for violating a protection order are based on

insufficient evidence because the State failed to prove he was served with the order. He relies on

Smith. As noted, however, Smith pre-dated legislative amendments to Section 2919.27. Following

those amendments, the State only had to prove Mr. Adkins was shown a copy of the protection

order or was told about it by a judge, magistrate, or law enforcement officer. R.C. 2919.27(D).

{¶20} The record reflects defense counsel repeatedly acknowledged Mr. Adkins was

subject to a protection order at trial. During closing argument, defense counsel stated:

Now there is no doubt that [Mr. Adkins] knew that there was a protection order, that is true and I have no argument about that. He has testified that he was present when the order was issued. He was present when it was issued for an additional five years, so he was aware of that.

Apart from those statements, the State also presented evidence about the protection order during

its case-in-chief. The ex-wife testified that Mr. Adkins was present during the hearing when the

protection order against him issued and later agreed to the five-year extension. The State also

introduced a copy of a magistrate’s decision ordering that the protection order be extended by five

years. In that decision, the magistrate specifically noted Mr. Adkins was present at the extension

hearing and agreed to the extension. Assuming Mr. Adkins did not waive his sufficiency argument

through defense counsel’s statements, a rational trier of fact could have found that the State set

forth sufficient evidence to prove Mr. Adkins was shown a copy of the protection order or was

told about it by a judge or magistrate. See Jenks,

at paragraph two of the

syllabus. Thus, his first assignment of error is overruled.

ASSIGNMENT OF ERROR II

MR. ADKIN’S CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE[.] 8

{¶21} In his second assignment of error, Mr. Adkins argues his convictions for violating

a protection order on January 28, 2022, and January 29, 2022, are against the manifest weight of

the evidence. We disagree.

{¶22} When considering a challenge to the manifest weight of the evidence, this Court is

required to consider 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. Otten,

(9th

Dist. 1986). “A reversal on this basis is reserved for the exceptional case in which the evidence

weighs heavily against the conviction.” State v. Croghan, 9th Dist. Summit No. 29290, 2019-

Ohio-3970, ¶ 26. This Court “will not overturn a conviction as being against the manifest weight

of the evidence simply because the trier of fact chose to believe the State’s version of events over

another version.” State v. Warren, 9th Dist. Summit No. 29455,

, quoting

State v. Tolliver, 9th Dist. Lorain No. 16CA010986,

.

{¶23} The ex-wife testified that Mr. Adkins began sending her cell phone messages in

late November 2021 and continued doing so in December 2021. That same month, she started

working at a bar in Rittman. She was working there on January 15, 2008, when Mr. Adkins came

into the bar with a female. When she saw Mr. Adkins, the ex-wife told him he could not be at the

bar and instructed him to leave. Mr. Adkins claimed he was meeting someone there but complied

with her request. She did not initially report the incident because she was not sure if Mr. Adkins

knew she worked there or if his being there was simply a coincidence.

{¶24} The ex-wife’s daughter testified that she began working at the same bar as her

mother near the end of January 2022. She was working there on January 28th when Mr. Adkins 9

entered the bar and went directly into the bathroom. When he emerged, Mr. Adkins began yelling,

“Call [my ex-wife], call [my ex-wife,] * * * [c]all my ex-wife, tell her that her ex-husband needs

to get ahold of her.” The daughter estimated that she was standing about six feet away from Mr.

Adkins while he yelled. She noticed him holding his chest as if he had been injured. At one point,

she testified, he looked at her and specifically told her to call her mom. The daughter testified that

Mr. Adkins was not at the bar for very long before he ran out and took off in his car. Before he

left, Mr. Adkins instructed her and the other employees not to call the police.

{¶25} A bar employee who was working on January 28, 2022, corroborated the daughter’s

testimony. She confirmed that Mr. Adkins walked into the bar, went straight into the bathroom,

and came out yelling for someone to call the ex-wife. She also heard Mr. Adkins tell the daughter

to call her mother. Much like the daughter, the bar employee indicated that Mr. Adkins appeared

to be injured. She saw blood on his body and napkins in his hand when he emerged from the

bathroom. She also testified that Mr. Adkins was wearing a bulletproof vest.

{¶26} The ex-wife testified that she arrived at the bar several hours later to begin her shift

at 5:00 p.m. It was past midnight when a co-worker informed her that Mr. Adkins had come into

the bar. The ex-wife looked through the bar’s kitchen window and saw Mr. Adkins sitting at a

table. She observed him wearing a bullet proof vest. According to the ex-wife, Mr. Adkins “was

just kind of sitting there relaxed, lackadaisical, * * * just kind of hanging out.” Rather than make

contact with him, she called the police.

{¶27} Mr. Adkins claimed that he did not know his ex-wife worked at the bar even after

he encountered her there on January 15, 2022. He testified that he had gone to that bar several

times in the past and thought she was just there as a customer. When asked why he went back to

the bar on January 28, 2022, Mr. Adkins offered two different explanations. First, he claimed he 10

went to the bar because a friend had invited him there. Second, he claimed he went to the bar

because he had been shot twice, needed to check his wound, and believed the bar would be a “safe

haven.” According to Mr. Adkins, he did not see the daughter working at the bar because he was

injured and frantic. He denied ever speaking with her. He testified that he only spoke with one

employee. According to Mr. Adkins, he asked that employee whether his ex-wife was working

there because he did not want to violate the protection order by being there. He denied ever telling

anyone to call his ex-wife. While Mr. Adkins admitted that he returned to the bar sometime after

midnight on January 29, 2022, he maintained that he did not know his ex-wife was working there.

{¶28} Having reviewed the record and the arguments presented, this Court concludes Mr.

Adkins has not shown this is the exceptional case in which the evidence weighs heavily against

his convictions for violating a protection order on January 28, 2022, and January 29, 2022. See

Croghan,

. While Mr. Adkins claimed he was unaware his ex-wife

worked at the bar and came there for reasons unrelated to her, the court heard two different

witnesses testify that he repeatedly yelled at the staff to call his ex-wife, directly told the daughter

to call her mother, and instructed the bar staff not to call the police. The trier of fact was in the

best position to assess the credibility of the testifying witnesses. See State v. Queen, 9th Dist.

Summit No. 30138,

. As noted, a conviction is not against the manifest weight

of the evidence simply because the tier of fact chose to believe the State’s version of the events.

See Warren,

, quoting Tolliver,

. Mr. Adkins has

not shown the trier of fact lost its way by rejecting his explanation and convicting him. As such,

his second assignment of error is overruled. 11

ASSIGNMENT OF ERROR IV

THE TRIAL COURT COMMITTED AN (sic) REVERSIBLE ERROR WHEN IT ALLOWED THE STATE TO INTRODUCE PRIOR ACTS DURING THE TRIAL[.]

{¶29} In his fourth assignment of error, Mr. Adkins argues the trial court erred when it

admitted evidence regarding his prior acts. The court allowed the ex-wife to describe the conduct

that led to her securing a protection order against Mr. Adkins. He argues the admission of that

testimony violated Evidence Rules 401, 402, and 404(B). Upon review, we reject his argument.

{¶30} “Admissibility determinations under the evidentiary rules generally fall within the

sound discretion of the trial court.” State v. Tyler, 9th Dist. Summit No. 29225,

. “A trial judge in a bench trial is presumed to know the law and to consider only the relevant,

material, and competent evidence in arriving at a decision.” State v. Diaz, 9th Dist. Lorain No.

02CA008069,

, ¶ 39. Even if a trial court improperly admits other acts evidence,

its error may be harmless if it did not impact the verdict. See State v. Ali, 9th Dist. Summit No.

29611,

.

{¶31} The trial court allowed the ex-wife to testify that she obtained a protection order

against Mr. Adkins after he began following her everywhere and threatened to burn down her

camper. Defense counsel objected to her testimony on relevancy grounds, noting that the defense

had conceded a protection order was in place. The State argued the testimony bore upon the ex-

wife’s state of mind and the charges of menacing by stalking. In overruling Mr. Adkins’ objection,

the trial court indicated that it would only consider the testimony for the limited purpose the State

had identified.

{¶32} Mr. Adkins argues the trial court erred when it allowed his ex-wife to explain why

she obtained a protection order against him. According to Mr. Adkins, that testimony only served 12

to prejudice him. He notes that he stipulated a protection order was in place. Thus, Mr. Adkins

insists, the reason why his ex-wife secured the order was irrelevant.

{¶33} Upon review, this Court rejects Mr. Adkins’ argument. Mr. Adkins has not

addressed the trial court’s ruling that the ex-wife’s testimony bore upon her state of mind and the

menacing by stalking counts. See J.M. v. M.M., 9th Dist. Medina No. 15CA0057-M, 2016-Ohio-

5368, ¶ 20 (evidence of past abuse relevant to victim’s state of mind in determining whether victim

had reasonable fear of harm). This Court is not inclined to construct an argument on his behalf.

See App.R. 16(A)(7); Cardone v. Cardone, 9th Dist. Summit No. 18349,

, *8-9

(May 6, 1998). Because this was a bench trial, we presume the trial judge properly applied the

law and only considered “relevant, material, and competent evidence in arriving at a decision.”

Diaz,

, at ¶ 39. Further, even if we were to assume the trial court erred by

admitting the testimony at issue, Mr. Adkins has not established resulting prejudice. See Ali, 2021-

Ohio-4596, at ¶ 39. He has made no attempt to explain how the admission of that testimony

impacted the proceedings given the strength of the remaining evidence against him. See

See

also State v. Robinson, 9th Dist. Summit No. 29689,

. Again, this Court

will not construct an argument on his behalf. See App.R. 16(A)(7);

. For the

foregoing reasons, his fourth assignment of error is overruled.

III.

{¶34} Mr. Adkins’ assignments of error are overruled. The judgment of the Wayne

County Municipal Court is affirmed.

Judgment affirmed. 13

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

SUTTON, P. J. STEVENSON, J. CONCUR.

APPEARANCES:

WESLEY A. JOHNSTON, Attorney at Law, for Appellant.

ANGELA WYPASEK, Prosecuting Attorney, and JOHN HAMERS, Assistant Prosecuting Attorney, for Appellee.