State v. Roden ( 2011 )

[Cite as State v. Roden, 2011-Ohio-2788.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95507
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
ANTHONY RODEN
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-013666
BEFORE: Stewart, J., Blackmon, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: June 9, 2011
ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
BY: David M. Zimmerman
Matthew E. Meyer
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Robert L. Tobik
Cuyahoga County Public Defender
BY: Erika B. Cunliffe
Cullen Sweeney
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶ 1} The state of Ohio appeals from an order extending appellee
Anthony Roden’s conditional release from confinement in a state mental
health facility into a 24-hour, supervised group home. Roden, who was found
not guilty by reason of insanity of the 1974 shooting of a Cleveland police
officer, is a paranoid schizophrenic, but currently in remission under
prescribed medication. The state argues that Roden’s medical history
requires that he be confined in a more restrictive environment — not in a
group home that has no protocol for ensuring that its residents take their
medication.
I
{¶ 2} When a person is found not guilty by reason of insanity and is
determined to be mentally ill and subject to hospitalization, that person must
be committed to an appropriate medical or psychiatric facility that constitutes
“the least restrictive commitment alternative available that is consistent with
public safety and the welfare of the person.” See R.C. 2945.40(F).
{¶ 3} The court retains jurisdiction over the commitment until the
commitment is finally terminated. See R.C. 2945.401(A). Six months after
the initial commitment, and every two years thereafter, the hospital or
facility in which the person is committed must report in writing to the court
as to whether the person “remains a mentally ill person subject to
hospitalization by court order * * *.” See R.C. 2945.401(C). Within 30 days
of receiving the report, the court must hold a hearing on the continued
commitment of the person or on any changes in the conditions of the
commitment. Id.{¶ 4} “The defendant or person may request a change in the conditions
of confinement, and the trial court shall conduct a hearing on that request if
six months or more have elapsed since the most recent hearing was conducted
under this section.” Id. In addition, the chief clinical officer of the facility or
program to which the person is committed may, after evaluating the risks to
the public safety and the welfare of the person, recommend a termination of
commitment or a change in the conditions of the commitment. See R.C.
2945.401(D)(1). If there is a recommendation for termination of commitment
or a change in the conditions of commitment, the state bears the burden, by
clear and convincing evidence, of showing that the person remains mentally
ill and that a proposed change in the conditions of the commitment to a less
restrictive status, “represents a threat to public safety or a threat to the
safety of any person.” See R.C. 2945.401(G).
II
{¶ 5} The parties stipulate that Roden has been, and continues to be, a
mentally ill person for purposes of the statute.
{¶ 6} In 2003, Roden was confined to Northcoast Behavioral
Healthcare, with Levels III and IV day privileges. As described by the court,
Level III privileges allowed Roden unsupervised movement on hospital
grounds and Level IV privileges allowed Roden to go on supervised,
off-campus outings.
{¶ 7} In 2005, over the state’s objection that Roden continued to pose a
risk to the public safety and welfare, the court ordered that the least
restrictive treatment option for Roden would be his placement in a group
home with 24-hour supervision with restrictions relating to treatment. This
placement allowed for Level V privileges, which included periodic,
unsupervised leaves from the hospital on condition of release after successful
Level V passes to a group home. We upheld this determination on appeal,
finding that the state’s arguments amounted to “mere speculation” because
none of the witnesses, including its own, recommended that Roden remain at
Northcoast Behavioral Healthcare. See State v. Roden, 8th Dist. No. 86841,
2006-Ohio-3679, ¶28.
{¶ 8} Despite being granted placement in a group home, Roden was not
transferred — his treatment team raised concerns for his personal safety due
to reprisals if moved to a proposed home on Cleveland’s west side. In the
biennial review conducted in 2007, both Roden and the state stipulated to a
finding that Roden remained mentally ill and subject to civil confinement.
The state noted its continued opposition to Roden’s release into a 24-hour
supervised group home, but conceded that the court’s 2005 ruling was a
“settled matter of law” and, calling it “a status quo hearing,” offered no expert
witnesses. The court ordered Roden to remain in the hospital on conditional
release status with Levels III, IV, and V movement until appropriate housing
could be arranged.
{¶ 9} In 2008, the state asked the court to revoke Roden’s conditional
release status, offering evidence that it claimed had only recently been made
available to it showing that there were “troubling problems with Roden’s
behavior that would lead a reasonable observer to conclude that Roden poses
a much greater risk to the community than previously believed.” It claimed
that treatment notes showed that Roden resisted following rules; showed an
abnormal obsession with pornography; and demonstrated a reluctance to take
his medication. The court denied the motion as moot, finding that Roden
had not been transferred into the group home.
{¶ 10} In 2009, the court gave notice that it would hold a hearing as part
of its biennial review of Roden’s commitment. The state again opposed
Roden’s conditional release. While conceding that Roden’s current
psychiatrist considers Roden to be in remission from his mental illness, “past
psychiatrists have made similar observations, only to have Roden
subsequently attempt to obtain firearms, escape multiple times, develop a
delusional fixation on sex and pornography, threaten to kill hospital workers,
and remain hospitalized for many more years.” Roden argued that the state
was merely rehashing arguments made and rejected in 2005 when the court
first granted Roden’s conditional release.
{¶ 11} During the hearing, the court heard testimony from several
witnesses. As summarized by the court in its written opinion, “[n]one of the
witnesses expressed an opinion that Mr. Roden should not be entitled to Level
V Conditional Release privileges.” The court found that Roden’s
schizophrenia has been in remission for over ten years with the help of
medication and other therapies, and that “[m]edicated he appears to pose no
threat to members of organized society.” The court thus ordered that the
residential treatment option first ordered in 2005 be maintained subject to
the “strict condition that [Roden’s] medication be monitored daily.”
III
{¶ 12} In our earlier opinion in this case, we noted that R.C.
2945.401(G)(2) places the burden on the state to prove by clear and
convincing evidence that Roden’s current placement poses a threat to the
public safety or a threat to the safety of any person. Roden, 8th Dist. No.
86841, at ¶8. “Clear and convincing evidence” is more than a mere
preponderance of the evidence; it is evidence sufficient to produce in the mind
of the trier of fact a firm belief or conviction as to the facts sought to be
established. In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, 481
N.E.2d 613.
{¶ 13} Every witness expressed the opinion that Roden’s conditional
release should be continued in the terms previously ordered by the court.
Roden has been in remission from his schizophrenia for at least ten years.
Athough he had at one time expressed a desire to stop using his medication in
order to overcome certain sexual side-effects, his treating psychiatrist told the
court that it was very common for patients to ask questions about their
medications. The testimony showed that Roden is fully compliant with his
medication, being “among the top group of patients we have.” The
psychiatrist said that Roden understood that “the only way he’ll ever get out
of here, a hospital, is if he takes his medicines” and that Roden has “resigned
himself to dealing with whatever situation it is, and just taking the
medicines.” The group home situation arranged for Roden requires a staff
member to personally administer any medication, thus ensuring Roden’s
compliance with the conditions of his release. See State v. Aduddell, 5th
Dist. No. 2010-CA-00137, 2011-Ohio-582.
{¶ 14} The state claimed that Roden showed some anger after returning
from a short visit to the group home, arguing that this was due to Roden’s
“inability to maintain his medications when outside of a hospital setting.”
This argument is disingenuous. Testimony showed that while Roden had
been on an overnight visit to a group home, he had been given the wrong
medication and returned to the hospital showing frustration. Staff members
at the group home personally dispensed all of Roden’s medication, so Roden
was not at fault in any mix-up. In any event, testimony showed that Roden’s
frustration with the dynamics of the group home visit was not attributable to
Roden’s mental illness, but to Roden’s personality. The psychiatrist said
that Roden “is disgruntled sometimes, doesn’t like certain things, and feels
entitled to others.” That he had difficulty adjusting to a non-hospital setting
after being confined for over 30 years was unsurprising to a social worker who
supervised Roden in his job training program. She testified that Roden
established a perfect record of attendance in job training, was cooperative,
and worked well with others. There were no reports of him acting out or
failing to abide by the program’s rules.
{¶ 15} The state also made the broader point that if Roden’s mental
condition was so dependent upon him taking his medication, Roden had
plainly not recovered to the point where he could be granted conditional
release into a group home where he could refuse to take medication. This
argument ignores the court’s order that stated that Roden had to take his
medication as part of his conditional release. In fact, the court stated that it
would be grounds to terminate the conditional release if Roden should “cease
taking his medication.” The evidence moreover showed that Roden knew he
would have to take his medication for the rest of his life and accepted that
fact. Finally, the supervised group home setting would ensure that Roden
take his medication on a daily basis.
{¶ 16} Finally, the state offered no evidence to support its concerns
about Roden’s alleged sexual deviancy issues. Roden’s psychiatrist testified
that Roden had expressed an interest in being granted access to adult cable
television programming (the Playboy Channel) and in hiring a prostitute, but
denied that this evidenced some form of sexual deviancy, characterizing it
“typical heterosexual kind of desires.” The court noted this testimony and
found “there was no testimony that Mr. Roden has ever displayed sexually
inappropriate behavior throughout his 30-year commitment history.” The
state offered no expert testimony to contradict the psychiatrist, so there was
no basis for the court to disagree with Roden’s treating psychiatrist. See
Aduddell at ¶33.
{¶ 17} Having offered no evidence of any kind to call into question the
2005 decision to grant conditional release, it follows that the state failed to
carry its burden of showing by clear and convincing evidence that there had
been any change warranting a modification or termination of Roden’s
conditional release.
Affirmed.
It is ordered that appellee recover of appellant his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution. A certified copy of
this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate
Procedure.
MELODY J. STEWART, JUDGE
PATRICIA ANN BLACKMON, P.J., and
JAMES J. SWEENEY, J., CONCUR