insanity defense in Ohio

2023The State filed a motion in limine to exclude from evidence at trial the testimony and expert report of Dr. Barnes on the grounds that it constituted inadmissible evidence of “diminished capacity.” The trial court granted the State’s motion on March 7, 2022. {¶51} The State maintains that “[t]he only potential use for Dr. Barnes’ report and testimony would be to argue to the jury that Ritchey could not form the specific mental 18 state [purposely] at the time of the offense.” Brief of Appellee at 21. “[W]hen a defendant does not assert an insanity defense, it is well settled that he may not of

2023The State filed a motion in limine to exclude from evidence at trial the testimony and expert report of Dr. Barnes on the grounds that it constituted inadmissible evidence of “diminished capacity.” The trial court granted the State’s motion on March 7, 2022. {¶51} The State maintains that “[t]he only potential use for Dr. Barnes’ report and testimony would be to argue to the jury that Ritchey could not form the specific mental 18 state [purposely] at the time of the offense.” Brief of Appellee at 21. “[W]hen a defendant does not assert an insanity defense, it is well settled that he may not of

2013As previously discussed, the insanity defense is one of confession and avoidance and “operates independently of the mental element of an offense.” Curry, 45 Ohio St.3d at 111 .

2013Specifically, the Court wrote that “in Ohio[,] the insanity defense operates independently of the mental element of an offense.” State v. Curry, 45 Ohio St.3d 109, 111 (1989).

2023Where a defendant cannot maintain an insanity defense, “he may not offer expert testimony in an effort to show that he lacked the mental capacity to form the specific mental state required for a particular crime.” Id. at ¶ 67, citing State v. Gooey, 46 Ohio St.3d 20, 26 , 544 N.E.2d 895 (1989). {¶35} Appellee also pointed out the flaw in the diminished-capacity argument, therefore in his Reply, appellant pivoted to assert evidence of PTSD could have established why he reacted by stabbing John Doe: he felt unable to escape the situation and could have presented a duress defense.

2023Where a defendant cannot maintain an insanity defense, “he may not offer expert testimony in an effort to show that he lacked the mental capacity to form the specific mental state required for a particular crime.” Id. at ¶ 67, citing State v. Gooey, 46 Ohio St.3d 20, 26 , 544 N.E.2d 895 (1989). {¶35} Appellee also pointed out the flaw in the diminished-capacity argument, therefore in his Reply, appellant pivoted to assert evidence of PTSD could have established why he reacted by stabbing John Doe: he felt unable to escape the situation and could have presented a duress defense.

2000See State v. Phillips (1995), 74 Ohio St.3d 72 , 85 , certiorari denied (1996), 517 U.S. 1213 , 134 L.Ed.2d 938 (observing that the defendant's assertion that trial counsel should have pursued an alternate defense was unfounded given the strategic nature of that choice); State v. Decker (1986), 28 Ohio St.3d 137 , 140-41 (concluding that the decision not to pursue an insanity defense was a reasoned, strategic choice).

1992We note parenthetically that in State v. Decker (1986), 28 Ohio St.3d 137 , 28 OBR 232, 502 N.E.2d 647 , we held that defense counsel’s failure to raise the insanity defense at trial did not constitute ineffective assistance of counsel. " * * * [T]he determination not to use the insanity defense was an informed, strategic choice made by defense counsel after a thorough investigation of the relevant law and facts, dictated in large part by appellee’s insistent denial of participation in these crimes.” Id. at 140-141 , 28 OBR at 235, 502 N.E.2d at 650 .

2006In Taylor, the Court states that "`a defendant may not offer expert psychiatric testimony, unrelated to the insanity defense, to show that, due to mental illness, intoxication, or any other reason, he lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime.' State v. Cooey (1989), 46 Ohio St.3d 20 , 26 , 544 N.E.2d 895 ; accord Mitts, 81 Ohio St.3d at 227 , 690 N.E.2d 522 ; State v. Wilcox (1982), 70 Ohio St.2d 182 , 194 , 24 O.O.3d 284 , 436 N.E.2d 523 ." Id. at ¶ 69.

2004Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19 , 22 . {¶ 27} The Ohio Supreme Court has established that: * * * except in the mitigation phase, `a defendant may not offer expert psychiatric testimony, unrelated to the insanity defense, to show that due to mental illness, intoxication, or any other reason, he lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime.' {¶ 28} State v. Mitts (1998), 81 Ohio St.3d 223 , 227 , citing State v. Wilcox (1982), 70 Ohio St.2d 182 , 194 .

2000More importantly, in State v. Mitts (1998), 81 Ohio St.3d 223 , 227 , the Ohio Supreme Court stated: . . . "[A] defendant may not offer expert psychiatric testimony, unrelated to the insanity defense, to show that, due to mental illness, intoxication, or any other reason, he lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime." State v. Cooey (1989), 46 Ohio St.3d 20 , 26 , 544 N.E.2d 895 , 906 ; accord State v. Wilcox (1982), 70 Ohio St.2d 182 , 194 , 24 O.O.3d 284 , 291, 436 N.E.2d 523 , 530 ; State v. Slagle (1992), 65 Ohio St.3d 5

2000More importantly, in State v. Mitts (1998), 81 Ohio St.3d 223 , 227 , the Ohio Supreme Court stated: . . . "[A] defendant may not offer expert psychiatric testimony, unrelated to the insanity defense, to show that, due to mental illness, intoxication, or any other reason, he lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime." State v. Cooey (1989), 46 Ohio St.3d 20 , 26 , 544 N.E.2d 895 , 906 ; accord State v. Wilcox (1982), 70 Ohio St.2d 182 , 194 , 24 O.O.3d 284 , 291, 436 N.E.2d 523 , 530 ; State v. Slagle (1992), 65 Ohio St.3d 5

2025“Because an insanity defense ultimately rests on the credibility and persuasiveness of the experts’ testimony, appellate courts have consistently declined to second-guess the trier of fact's interpretation of the evidence in NGRI cases given the deferential standard of review.” State v. Sanders, 2022-Ohio-2261, ¶ 72 (8th Dist.), citing State v. Cochran, 2017-Ohio- 216, ¶ 56 (2d Dist.).

2025State v. Sanders, 2022-Ohio-2261, ¶ 71 (8th Dist.), citing State v. Murphy, 2016- Ohio-1165, ¶ 39 (4th Dist.). {¶19} Because an insanity defense ultimately rests on the credibility and persuasiveness of the experts’ testimony, appellate courts have consistently declined to second-guess the trier of fact's interpretation of the evidence in NGRI cases given the deferential standard of review.

2026State v. Thomas, 70 Ohio St.2d 79, 80 (1982). {¶35} In determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine 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. Thompkins, 78 Ohio St.3d 380 , 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172,

2026See, e.g., State v. Thomas, 70 Ohio St.2d 79, 80 (1982). {¶23} A court considering whether a verdict is supported by the manifest weight reviews the entire record, “weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether, in resolving conflicts in the evidence,” the finder 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.” (Citation omitted.) State v. Wells, 2012-Ohio-4459 , ¶ 56 (11th Dist.), see also State v. Thompkins, 1997- Ohio-52, ¶ 25.

2026See also State v. Smith, 2009-Ohio-1497, ¶ 14 (9th Dist.) (noting that evasive conduct “tends to demonstrate that [the defendant] understood the wrongfulness of his criminal conduct,” rendering an insanity defense futile).

2025“In general, a trial counsel’s failure to seek a competency evaluation or to pursue an insanity defense is not, per se, ineffective assistance of counsel.” State v. Smith, 2009-Ohio-1497, ¶ 10 (9th Dist.). {¶14} As noted, Mr. Diamond expressed his desire to plead no contest less than four weeks after his arraignment.

2026State v. Thomas, 70 Ohio St.2d 79, 80 (1982). {¶35} In determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine 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. Thompkins, 78 Ohio St.3d 380 , 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172,

2026See, e.g., State v. Thomas, 70 Ohio St.2d 79, 80 (1982). {¶23} A court considering whether a verdict is supported by the manifest weight reviews the entire record, “weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether, in resolving conflicts in the evidence,” the finder 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.” (Citation omitted.) State v. Wells, 2012-Ohio-4459 , ¶ 56 (11th Dist.), see also State v. Thompkins, 1997- Ohio-52, ¶ 25.

2008A defense lawyer's "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Wiggins v. Smith , 539 U.S. 510 , 521 (2003) (quoting Strickland , 466 U.S. at 690 ). *Page 8 {¶ 19} The record establishes that Mr. Jordan's lawyer decided not to pursue an insanity defense because the consequences might have been more severe than a guilty verdict.

2005See Strickland v. Washington, supra. Accordingly, appellant's first assignment of error is not well-taken. {¶ 26} In his second assignment of error, appellant asserts trial counsel was ineffective for failing to develop an insanity defense because there was a clear indication that his sanity might be at issue.

2025Appellant’s Brief, p. 8. {¶ 34} As a preliminary point, “ ‘[w]hen expert witnesses differ in their opinions regarding the insanity defense,’ the finder of fact ‘must make a credibility determination when deciding which experts to believe.’ ” Moore, 2024-Ohio-994, at ¶ 67 , quoting State v. Petrie, 2016-Ohio-4941, ¶ 5 (9th Dist.).

2024“When expert witnesses differ in their opinions regarding the insanity defense,” the finder of fact “must make a credibility determination when deciding which experts to believe.” State v. Petrie, 2016-Ohio-4941 , 69 N.E.3d 150 , ¶ 5 (9th Dist.), citing State v. Murphy, 4th Dist.

2008This argument lacks merit. "[W]hen a defendant enters a plea of not guilty by reason of insanity and then later enters a plea of guilty without formally withdrawing the not guilty by reason of insanity plea, the defendant has waived any argument pertaining to the insanity defense." State v. McQueeney , 148 Ohio App.3d 606 , 2002-Ohio-3731 , 774 N.E.2d 1228 , ¶ 34, citing State v. Fore (1969), 18 Ohio App.2d 264 , 269 , 248 N.E.2d 633 ; State v. Timmons (Mar. 11, 2002) 5th Dist.

2008This argument lacks merit. "[W]hen a defendant enters a plea of not guilty by reason of insanity and then later enters a plea of guilty without formally withdrawing the not guilty by reason of insanity plea, the defendant has waived any argument pertaining to the insanity defense." State v. McQueeney , 148 Ohio App.3d 606 , 2002-Ohio-3731 , 774 N.E.2d 1228 , ¶ 34, citing State v. Fore (1969), 18 Ohio App.2d 264 , 269 , 248 N.E.2d 633 ; State v. Timmons (Mar. 11, 2002) 5th Dist.

2024This was several weeks prior to when Pennington's guilty pleas -8- Clinton CA2023-11-020 CA2023-11-021 were entered on September 12, 2023. {¶ 20} However, even if we were to assume the record did support Pennington's claim that the psychologist's report had not been completed prior to Pennington entering his guilty pleas, which it does not, as this court has previously determined, "when a defendant enters a plea of [NGRI] and then later enters a plea of guilty without formally withdrawing the [NGRI] plea, the defendant has waived any argument pertaining to the insanity defense." State v. McQue

2022See State v. McQueeney, 148 Ohio App.3d 606 , 2002-Ohio-3731 , ¶ 34 (12th Dist.) (rejecting argument that guilty plea was invalid because an NGRI plea was never withdrawn and holding that "when a defendant enters a plea of [NGRI] and then later enters a plea of guilty without formally withdrawing the [NGRI] plea, the defendant has waived any argument pertaining to the insanity defense"); State v. Langenkamp, 3d Dist.

2022Not Guilty by Reason of Insanity {¶63} Appellant argues that trial counsel was ineffective for failing to raise an insanity defense in the proceedings. {¶64} “Where facts and circumstances indicate that a plea of not guilty by reason of insanity would have had a reasonable probability of success, it is ineffective assistance of counsel to fail to enter the plea.” State v. Brown (1992), 84 Ohio App.3d 414 , 616 N.E.2d 1179 .

2022Not Guilty by Reason of Insanity {¶63} Appellant argues that trial counsel was ineffective for failing to raise an insanity defense in the proceedings. {¶64} “Where facts and circumstances indicate that a plea of not guilty by reason of insanity would have had a reasonable probability of success, it is ineffective assistance of counsel to fail to enter the plea.” State v. Brown (1992), 84 Ohio App.3d 414 , 616 N.E.2d 1179 .

2014See State v. Decker (1986), 28 Ohio St.3d 137 , State v. Sneed (1992), 63 Ohio St.3d 3 , and State v. Wong (1994), 95 Ohio App.3d 39 .

2012See State v. Decker, 28 Ohio St.3d 137 , 502 N.E.2d 647 4 OHIO FIRST DISTRICT COURT OF APPEALS (1986); State v. Sneed, 63 Ohio St.3d 3 , 584 N.E.2d 1160 (1992).

2014See State v. Decker (1986), 28 Ohio St.3d 137 , State v. Sneed (1992), 63 Ohio St.3d 3 , and State v. Wong (1994), 95 Ohio App.3d 39 .

2003We therefore hold that a defendant may not offer expert psychiatric testimony unrelated to the insanity defense * * * to show that, due to mental illness, intoxication, or any other reason, he lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime." Cooey , at 26. {¶ 72} Moreover, in State v. Wong (1994), 95 Ohio App.3d 39 , the Fourth Appellate District performed a thorough survey of whether exclusion of psychiatric testimony on the issue of mens rea or specific intent violates a defendant's constitutional rights.

2026In particular, he contends that the jury arbitrarily ignored his well- documented history of mental illness, his irrational behavior during and after the shootings, and the fact that Dr. De Marchis evaluated him only after he had been stabilized on medication in the county jail. {¶42} “‘The trier of fact may reject an affirmative defense on the grounds of credibility.’” State v. Baker, 2025-Ohio-2107, ¶ 20 (3d Dist.), quoting State v. Armstrong, 2003-Ohio-2154 , ¶ 17 (9th Dist.). “‘If the record demonstrates that the trier of fact has considered the insanity defense, the reviewing court should

2025“This is so because the jury ‘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.’” Pence at ¶ 38 , quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).

2025“This Court need not address both prongs of Strickland if an appellant fails to prove either prong.” State v. Carter, 2017-Ohio-8847, ¶ 27 (9th Dist.). {¶19} “Competency refers to a defendant’s mental condition at the time of trial or plea, whereas the insanity defense refers to the defendant’s mental condition at the time of the offense.” State v. Edwards, 2023-Ohio-4173, ¶ 11 (12th Dist.).

2025Edwards, 2023-Ohio-4173, at ¶ 11 (12th Dist.), citing State v. Brewer, 2021-Ohio-2289, ¶ 12 (12th Dist.). {¶28} R.C. 2945.37(B) provides that if the issue of a defendant’s competence is raised before trial, the court must hold a competency hearing.

2023The State filed a motion in limine to exclude from evidence at trial the testimony and expert report of Dr. Barnes on the grounds that it constituted inadmissible evidence of “diminished capacity.” The trial court granted the State’s motion on March 7, 2022. {¶51} The State maintains that “[t]he only potential use for Dr. Barnes’ report and testimony would be to argue to the jury that Ritchey could not form the specific mental 18 state [purposely] at the time of the offense.” Brief of Appellee at 21. “[W]hen a defendant does not assert an insanity defense, it is well settled that he may not of

2023The State filed a motion in limine to exclude from evidence at trial the testimony and expert report of Dr. Barnes on the grounds that it constituted inadmissible evidence of “diminished capacity.” The trial court granted the State’s motion on March 7, 2022. {¶51} The State maintains that “[t]he only potential use for Dr. Barnes’ report and testimony would be to argue to the jury that Ritchey could not form the specific mental 18 state [purposely] at the time of the offense.” Brief of Appellee at 21. “[W]hen a defendant does not assert an insanity defense, it is well settled that he may not of

2000More importantly, in State v. Mitts (1998), 81 Ohio St.3d 223 , 227 , the Ohio Supreme Court stated: . . . "[A] defendant may not offer expert psychiatric testimony, unrelated to the insanity defense, to show that, due to mental illness, intoxication, or any other reason, he lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime." State v. Cooey (1989), 46 Ohio St.3d 20 , 26 , 544 N.E.2d 895 , 906 ; accord State v. Wilcox (1982), 70 Ohio St.2d 182 , 194 , 24 O.O.3d 284 , 291, 436 N.E.2d 523 , 530 ; State v. Slagle (1992), 65 Ohio St.3d 5

2000More importantly, in State v. Mitts (1998), 81 Ohio St.3d 223 , 227 , the Ohio Supreme Court stated: . . . "[A] defendant may not offer expert psychiatric testimony, unrelated to the insanity defense, to show that, due to mental illness, intoxication, or any other reason, he lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime." State v. Cooey (1989), 46 Ohio St.3d 20 , 26 , 544 N.E.2d 895 , 906 ; accord State v. Wilcox (1982), 70 Ohio St.2d 182 , 194 , 24 O.O.3d 284 , 291, 436 N.E.2d 523 , 530 ; State v. Slagle (1992), 65 Ohio St.3d 5

2022Importantly, prior to entering a guilty plea in this matter, Mr. Cowell was twice evaluated for both competency and sanity, and was found to be competent to stand trial and sane at the time he committed these offenses.3 {¶12} Indeed, “a defendant may not offer expert psychiatric testimony, unrelated to the insanity defense, to show that, due to mental illness, intoxication, or any other reason, he lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime.” State v. Taylor, 98 Ohio St.3d 27 , 2002-Ohio-7017, ¶ 69 , quoting State v. Cooey, 46

2022Importantly, prior to entering a guilty plea in this matter, Mr. Cowell was twice evaluated for both competency and sanity, and was found to be competent to stand trial and sane at the time he committed these offenses.3 {¶12} Indeed, “a defendant may not offer expert psychiatric testimony, unrelated to the insanity defense, to show that, due to mental illness, intoxication, or any other reason, he lacked the mental capacity to form the specific mental state required for a particular crime or degree of crime.” State v. Taylor, 98 Ohio St.3d 27 , 2002-Ohio-7017, ¶ 69 , quoting State v. Cooey, 46

2021See Parker at ¶ 12; State v. Jennings, 10th Dist. No. 05AP-1051, 2006-Ohio-3704, ¶ 28 (finding a sufficiency of the evidence review did not apply to the affirmative defense of insanity because "proof supportive of an affirmative defense cannot detract from proof beyond a reasonable doubt that the accused had committed the requisite elements of the crime," and the insanity defense "does not involve the substantive elements of the criminal offense"), citing State v. Hancock, 108 Ohio St.3d 57 , 2006-Ohio-160 , ¶ 37-38. {¶ 39} Messenger responds that the continued categorization of self-defense a

2013No. 05AP-1051, 2006-Ohio-3704 . {¶ 18} The insanity defense was codified in 1990 under R.C. 2901.01(A)(14).

2026State v. Thomas, 70 Ohio St.2d 79, 80 (1982). {¶35} In determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine 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. Thompkins, 78 Ohio St.3d 380 , 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172,

2025State v. Thomas, 70 Ohio St.2d 79, 80 (1982). {¶10} In determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine 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 -4- must be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172,

2022Shelby Nos. 17-07-08, 17-08-09, 2008-Ohio-1136, ¶ 29 (applying the McQueeney holding to a no contest plea).

2014Shelby Nos. 17-07-08, 17-07- 09, 2008-Ohio-1136 (quoting State v. McQueeney, 148 Ohio App.3d 606 , 2002-Ohio-3731 , 774 N.E.2d 1228, ¶ 34 (12th Dist.). -3- Case No. 11-13-04 In evaluating a motion for a continuance, a court should note, inter alia: the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to

2006In State v. Johnson, supra, citing State v. Curry (1989), 45 Ohio St.3d 109 , 543 N.E.2d 1228 , and State v. Brown (1983), 5 Ohio St.3d 133 , 449 N.E.2d 449 , we stated, "Thus, if the record demonstrates that the trial court, as the trier of fact, considered the insanity defense, the reviewing court should defer to the trial court's interpretation of the evidence.

2006In State v. Johnson, supra, citing State v. Curry (1989), 45 Ohio St.3d 109 , 543 N.E.2d 1228 , and State v. Brown (1983), 5 Ohio St.3d 133 , 449 N.E.2d 449 , we stated, "Thus, if the record demonstrates that the trial court, as the trier of fact, considered the insanity defense, the reviewing court should defer to the trial court's interpretation of the evidence.