State v. Foos , 2023 Ohio 3540 ( 2023 )

[Cite as State v. Foos, 2023-Ohio-3540.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-22-026
Appellee
Trial Court No. 21 CR 632
v.
Jeremy Foos DECISION AND JUDGMENT
Appellant Decided: September 29, 2023
*****
Beth A. Tischler, Sandusky County Prosecuting Attorney, and
Alexis M. Otero, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
*****
SULEK, J.
{¶ 1} Appellant Jeremy Foos appeals the judgment of the Sandusky County Court
of Common Pleas convicting him, following a jury trial, of felonious assault, aggravated
burglary, and attempted murder. On appeal, Foos argues that the jury’s finding that he
did not establish the affirmative defense of not guilty by reason of insanity is against the
manifest weight of the evidence. For the reasons that follow, the trial court’s judgment is
affirmed.
I. Factual Background and Procedural History
{¶ 2} On August 20, 2021, the Sandusky County Grand Jury entered a three-count
indictment against Foos, charging him with one count of felonious assault in violation of
R.C. 2903.11(A)(1) and (D)(1)(a), a felony of the second degree, one count of aggravated
burglary in violation of R.C. 2911.11(A)(1) and (B), a felony of the first degree, and one
count of attempted murder in violation of R.C. 2903.02(A) and 2923.02(A), a felony of
the first degree.
{¶ 3} Foos entered a plea of not guilty by reason of insanity, and the trial court
referred the matter to Dr. Thomas Sherman at Court Diagnostic & Treatment Center for
an evaluation. The results of that evaluation found that Foos was competent to stand
trial, but that Foos was not guilty by reason of insanity. The state requested a second
evaluation, which was completed by Dr. Mark Babula at Central Behavioral Healthcare.
Babula reached the opposite conclusion from Sherman and found that Foos failed to
satisfy the not guilty by reason of insanity standard. Foos initially suggested a third
evaluation, but ultimately withdrew his request.
{¶ 4} The matter proceeded to a jury trial. At the trial, Foos did not contest his
actions on the day of the incident. Instead, he relied entirely on his argument that he
lacked the mental capacity to form the required mens rea.
2.
{¶ 5} L.F., Foos’s mother testified first and stated that Foos had a history of anger
issues. Foos told his mother at one point that he was bipolar and was on medication, but
then he stopped taking his medication and became increasingly angry. L.F. testified that
in May 2021, prior to the incident at hand, Foos came to her house in a rage, broke out a
garage window, and then left. After that, L.F. changed her garage code, installed security
cameras, and contacted a mental health organization to seek help for her son. L.F. then
sought and obtained a 45-day temporary protection order.
{¶ 6} On August 15, 2021, L.F. received a call from her brother-in-law, T.R., who
warned her that Foos was in a rage and that she should not contact him. While L.F. was
on the phone with T.R., she saw Foos approaching her back door. Foos picked up a
landscaping rock and threw it through the backdoor window, shattering the glass. Video
shows Foos breaking into the home and attacking L.F. L.F. testified,
When he came, I just started screaming that he’s here… he’s here…
and when he took my phone and threw my phone, it didn’t disconnect, so
[T.R.] heard everything, and he had his wife call 9-1-1, and then he raced to
my house, but [Foos], when he threw the phone, he said, you’re going to
tell me what’s going on. I’m -- I don’t know what -- you know, he just had
been blaming us for things happening in his life and just, I’d -- really
wasn’t sure what he meant by, you’re going to tell me what’s going on, but
then he choked me and had his hands on my neck and then he did like, a
wrestling move or something, but he, like, put me down on the ground, and
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he was sitting on me. He was spitting in my face. He hit me aside the head
really -- on this side, real hard, (indicating), and he grabbed my thumb and
said he should break my thumb, and then he put his -- put his mouth on
both of my cheeks, and said, I should rip your face right off and then -- then
I’m pretty -- it was the part that the video showed where he got off of me
and then was kicking me, and, um, he -- he did -- he hit me again aside the
head and then I did get up. He was off of me, and I got up, and I was
standing looking out my back windows and that’s when he choked me
again, and then I was unconscious. He choked me until I was unconscious,
and then I was laying on my floor in a different direction, so… I don’t
know if he, like, laid me down or if he threw me down after I was
unconscious, but then when I came to, he was sitting on top of me, and then
a couple minutes later is when [T.R.] came in.
***
[H]e told me more than once, I’m going to kill you. Like, right after
he choked me the first time, he said, I’m going to kill you, and then I don’t
know if he thought that I called 9-1-1, but he said if I hear sirens, you’re
dead, and then he told me again, I’m going to kill you, and then, you know,
all the -- you know, sitting on me and spitting on my face, and then when I
got up, he -- he said at one point, he said, you know I’m going to jail for
this, and that was before he -- he choked me again and I was unconscious.
4.
As a result of the attack, L.F. suffered a serious concussion as well as injuries and
bruising to her face, chin, neck, chest, and arms.
{¶ 7} On cross-examination, L.F. testified that around October 2020, Foos began
having more difficulty. He was having a hard time going through a divorce and with his
father dying. L.F. testified that around that time Foos rode with L.F. and some other
family members to an out-of-town gender reveal party. Foos drank heavily at the party
and became intoxicated. On the drive home, Foos became belligerent and threatened L.F.
{¶ 8} L.F. also testified that after the May 2021 incident, in addition to contacting
the mental health organization, L.F. had Foos involuntarily committed for a mental health
evaluation at Firelands. L.F. testified that Foos would have delusions about Facebook
posts and even accused L.F. of dressing as an old woman and walking by his house to spy
on him.
{¶ 9} The state next called T.R., who testified that on the day of the incident he
had spoken with Foos and attempted to calm him down. T.R. testified that Foos would
often “vent” to him and that he had typically been successful in helping Foos calm down.
On this day however, Foos appeared to be particularly agitated. T.R. contacted L.F. to
warn her and then remained on the phone when he heard Foos attacking her. T.R. rushed
to L.F.’s home, which was about a five-to-ten-minute drive, where he tackled Foos off of
L.F. T.R. then wrestled with Foos for a few minutes trying to control his hands until the
police arrived. T.R. testified that when the police arrived, Foos stated, “you called the
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f***ing cops.” Foos then ran towards a window attempting to break through it and flee.
The police officers told Foos to stop, and then tased him.
{¶ 10} On cross-examination, T.R. testified that when he spoke with Foos on
August 15, 2021, he was worried that Foos’s mental health was deteriorating and that he
was approaching rock bottom. In the past, Foos would vent about situations and say that
he was going to kill people, but would always acknowledge that he knew that was wrong
and would never do that. On August 15, however, Foos was more agitated than usual.
Foos had a delusion that there was a conspiracy involving a Facebook post, and for the
first time thought that T.R. was part of the conspiracy along with L.F., the police, and
another person.
{¶ 11} Sandusky County Sheriff’s Deputy Bradley Reynolds also testified.
Reynolds authenticated body-worn camera footage taken on August 15, 2021. The first
video shows Foos being tased as he is trying to kick out the window. After he is placed
into handcuffs, Foos complains that the taser is in his spine. He then tells Reynolds that
he is going to move to his side to open his airway. Foos then says that everyone is
“f***ing lying to me,” and that L.F. is “going to hell for lying” to him.
{¶ 12} The second video shows Reynolds interviewing Foos in the hospital. Foos
tells Reynolds that everything that is happening is “straight out of a Facebook post” from
over a year ago, where people, including L.F., are causing these things to happen to him.
Foos stated that either that is what is going on, or he is insane. When Reynolds tells Foos
to explain his story to the judge, Foos responds that he will “just plead insanity because
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that’s what I am.” He stated that he guessed he should just “be put on meds.” Foos then
continued with his belief that this is all from a Facebook post and that a whole bunch of
people are lying. When discussing why he confronted his mom, Foos explained that his
mom had been lying to him. Foos then accused Reynolds of not believing him.
{¶ 13} Reynolds testified that he had a previous relationship with Foos from child
custody issues that Foos was having. Foos contacted the police because he was not
getting visitation with his son as he was supposed to on Thursdays. For several weeks,
on Thursdays, Foos would contact the police and make a report. Reynolds testified that
during their discussions, Foos was “levelheaded,” albeit a little upset and agitated over
not being able to see his child, and that the two were able to have good conversations.
{¶ 14} The last witness called by the state was Dr. Mark Babula, the licensed
psychologist at Central Behavioral Healthcare who conducted the second evaluation of
Foos on March 15, 2022. In completing his evaluation of Foos, Babula reviewed relevant
medical records and police reports, spoke with T.R., interviewed Foos, and conducted
psychological testing. Babula testified that Foos had several mental health issues such as
depression and believing that others were involved in a conspiracy against him based on
the contents of a Facebook post. Babula noted that these issues had been recurring, but
previously Foos had been able to recognize that becoming violent or following through
on threats was wrong. During those times, Foos was able to be talked down by T.R.
That led Babula to conclude that Foos was capable of understanding the wrongfulness of
his conduct on August 15, 2021. Babula determined that although Foos was capable of
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understanding the wrongfulness of his conduct, on that particular day Foos consumed an
abnormal amount of beer and vaped THC, which Foos reported may have been laced
with something because he had a different feeling after vaping it. Foos even
acknowledged that he might not have gone over to his mother’s house on August 15,
2021, if he had not consumed so much alcohol. Babula testified that those substances
agitated Foos and lowered his inhibitions causing him to care less about whether his
actions were right or wrong. Babula summarized,
So on this specific day, although, he knows right and wrong, he’s
been able to distinguish that before. He can distinguish that after. The
difference is that he’s agitated and his inhibitions are lower, so it’s not that
he’s unable to identify that it’s right or wrong, essentially the anger and the
decreased inhibitions -- he -- he cares less, and, again, there were other
statements that he cared less; that he had nothing -- nothing to lose, so it
wasn’t that he didn’t know right from wrong; is (sic) that on this date he
had fewer inhibitions, and he didn’t care for various reasons. He stopped
caring about the rightness or wrongfulness of those reasons.
{¶ 15} Following Babula’s testimony, the state admitted its exhibits and rested.
Foos then made a Crim.R. 29(A) motion for acquittal on the counts of felonious assault
and attempted murder, which the trial court denied.
{¶ 16} Foos then called Dr. Thomas Sherman as his only witness. Sherman is a
licensed psychiatrist and the Medical Director at Court Diagnostic Center. Sherman
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conducted the first evaluation of Foos on November 16, 2021, and determined that he met
the standard for not guilty by reason of insanity. Like Babula, Sherman reviewed the
medical records and police reports and spoke with Foos. Sherman did not, however,
speak with T.R., although he read T.R.’s voluntary statement to the police. Based upon
his evaluation, Sherman concluded that Foos was incapable of understanding the
wrongfulness of his actions at the time of the offense. Sherman explained,
[W]e’re dealing with knowledge of wrongfulness, okay, and to know
something, your cognitive functions have to be reasonably intact. He
thought what he was doing was basically saving his life or certainly
preventing him from being persecuted. He developed this odd belief that
somehow or other, he -- a Facebook post that he had paste -- posted years
before this had become something that was well-known. It was well-
known over the internet, that his family had something to do with
persecuting him. You know, the thing about not guilty by reason of
insanity is, to me, one of the things involved is how -- how strange are
these actions? * * * He was trying to bite her, the victim, he was totally out
of control. Even some of the witnesses were talking about that he had
mental issues. He was talking irrationally. Pretty, clearly, this guy’s
mental status at the time of the offense was pretty upset, so much so that I
think, in my opinion, my medical opinion, that that was sufficient enough
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to have prevented him from knowing the wrongfulness of his acts, criminal
intent.
{¶ 17} When asked about Foos’s consumption of alcohol on the day of the
offense, Sherman acknowledged the issue, but concluded that the offense could not be
explained simply on the basis of intoxication. In support, Sherman noted that Foos had
been seriously mentally ill for several years before the offense. Further, Foos maintained
his same delusions regarding the Facebook post several weeks after the offense when he
was completely sober. In addition, Sherman noted that individuals who are not guilty by
reason of insanity often do not have a good recollection of the crime that was committed
in the midst of a psychosis, and in this case Foos had almost no recollection of the events.
Sherman agreed on cross-examination, however, that shortly after the event Foos was
speaking about it with Reynolds.
{¶ 18} After Sherman’s testimony, the defense rested. Following closing
arguments and jury instructions, the jury retired to deliberate. Ultimately, the jury
returned with a verdict of guilty on all counts.
{¶ 19} At sentencing, the trial court found that the offenses of felonious assault
and attempted murder merged, with the state electing to proceed to sentencing on the
count of attempted murder. The trial court ordered Foos to serve an indefinite prison
term of 8-12 years on the count of attempted murder, to be served concurrently with an
eight-year prison term on the count of aggravated burglary.
10.
II. Assignment of Error
{¶ 20} Foos has timely appealed his judgment of conviction, asserting one
assignment of error for review:
1. Foos proved by a preponderance of the evidence his defense of
not guilty by reason of insanity, therefore the jury’s guilty verdicts were
against the manifest weight of the evidence.
III. Analysis
{¶ 21} In determining whether a conviction is against the manifest weight of the
evidence, an appellate court, sitting as a “thirteenth juror,” reviews “the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses
and determines whether in resolving conflicts in the evidence, the jury 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. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954
N.E.2d 596, ¶ 220, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541(1997). “The discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.” Id.{¶ 22} Here, Foos does not argue that his conduct failed to meet the elements for
the offenses of felonious assault, aggravated burglary, and attempted murder. Instead, he
argues only that he was not capable of formulating the required mens rea for the offenses,
and thus should have been found not guilty by reason of insanity.
11.
{¶ 23} “Insanity is an affirmative defense that must be proven by a preponderance
of the evidence.” State v. Reynolds, 2017-Ohio-1478, 89 N.E.3d 235, ¶ 48 (6th Dist.),
citing State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 35; R.C.
2901.05(A) (“The burden of going forward with the evidence of an affirmative defense,
and the burden of proof, by a preponderance of the evidence, for an affirmative defense
other than self-defense, defense of another, or defense of the accused’s residence * * * is
upon the accused.”). “The accused must persuade the trier of fact that ‘at the time of the
commission of the offense, the [accused] did not know, as a result of a severe mental
disease or defect, the wrongfulness of the [accused’s] acts.’” Hancock at ¶ 35, quoting
R.C. 2901.01(A)(14). “The weight to be given the evidence and the credibility of the
witnesses concerning the establishment of the defense of insanity in a criminal
proceeding are primarily for the trier of facts.” State v. Thomas, 70 Ohio St.2d 79, 80,
434 N.E.2d 1356 (1982); Reynolds at ¶ 55.
{¶ 24} In this case, the jury was presented with competing experts. Both experts
agreed that Foos suffered from serious mental illness, but they differed in their
determination of whether Foos was able to understand the wrongfulness of his conduct.
{¶ 25} Babula testified that Foos, although suffering from delusions, was able to
understand the wrongfulness of his conduct as evidenced by his ability on prior occasions
to be calmed down by T.R. and to recognize that harming or killing people was wrong
and that he should not do it. According to Babula, on this particular instance however,
Foos stopped caring because he had consumed a lot alcohol and had vaped THC, which
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agitated him and lowered his inhibitions. Foos even acknowledged that he probably
would not have gone over to his mother’s house had he not consumed so much alcohol.
Further, during the attack, Foos appeared to understand that his conduct was wrong when
he told his mother that he would kill her if he heard sirens, told his mother that he was
going to go to jail, and yelled at T.R. for calling the police.
{¶ 26} In contrast, Sherman testified that Foos was not able to understand the
wrongfulness of his conduct as evidenced by Foos’s delusions that he was being
persecuted over a Facebook post and thus thought he was acting to save his life or avoid
persecution. Sherman recognized that Foos’s conduct was bizarre, he was attempting to
bite his mother, he was “totally out of control,” and he was speaking irrationally. When
confronted with the issue of Foos’s intoxication, Sherman downplayed its effect, noting
that Foos had been suffering from these delusions for a while and continued to suffer
from them at the hospital weeks later when he was sober.
{¶ 27} Upon a thorough review of the record as a thirteenth juror, the evidence
does not establish that the jury clearly lost its way and created a manifest miscarriage of
justice when it did not find Foos not guilty by reason of insanity. Babula’s testimony was
cogent, well-supported, and took into consideration all of the facts and circumstances of
the case. Although Sherman also provided compelling testimony that reasonably could
have convinced the jury, the jury ultimately found Babula’s opinion more persuasive. As
such, this is not the exceptional case where the evidence weighs heavily against the
conviction.
13.
{¶ 28} Therefore, Foos’s conviction is not against the manifest weight of the
evidence and his assignment of error is not well-taken.
IV. Conclusion
{¶ 29} For the foregoing reasons, the judgment of the Sandusky County Court of
Common Pleas is affirmed. Foos is ordered to pay the costs of this appeal pursuant to
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Charles E. Sulek, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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