State v. Hubbard

[Cite as State v. Hubbard, 2014-Ohio-4130.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-T-0082
- vs - :
JAMES A. HUBBARD, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 91 CR
431.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, James A. Hubbard, appeals the Order of the
Trumbull County Court of Common Pleas, denying his request to decrease his level of
supervision at Heartland Behavioral Healthcare Hospital. The issue before this court is
whether the State has met its burden of demonstrating that a patient represents a threat
to public safety or a threat to the safety of any person, by demonstrating that the patient
is a paranoid schizophrenic whose condition is currently controlled by medication, but
who believes that he is not mentally ill and that his antipsychotic medication is
unnecessary. For the following reasons, we affirm the decision of the court below.
{¶2} On September 23, 1991, Hubbard was indicted by the Trumbull County
Grand Jury on one count of Aggravated Murder, in violation of R.C. 2903.01(A), and
Attempted Murder, in violation of R.C. 2923.02(A).
{¶3} On May 24, 1993, Hubbard was found “not guilty by reason of insanity.”
Hubbard was committed to the Timothy B. Moritz Center in Columbus, Ohio.
{¶4} On July 14, 1999, Hubbard was transferred to the Massillon Psychiatric
Hospital, nka Heartland Behavioral Healthcare. For additional details, see State v.
Hubbard, 11th Dist. Trumbull No. 97-T-0144, 1999 Ohio App. LEXIS 5248 (Nov. 5,
1999).
{¶5} On April 9, 2013, the Medical Director of Heartland Behavior Healthcare
wrote a letter to the Trumbull County Court of Common Pleas, pursuant to R.C.
2945.401, requesting “a change in the conditions of the commitment to a less restrictive
status,” in particular from a Level III Plan to a Level IV Plan.
{¶6} On April 24, 2013, the Trumbull County Prosecutor filed an Application for
Hearing on Change in Conditions.
{¶7} On July 10, 2013, a Level Movement Hearing was held in the trial court.
The only witness to testify was Stephen Noffsinger, M.D., an associate director of the
forensic psychiatry fellowship at University Hospitals in Cleveland and a consultant for
Heartland Behavioral Healthcare. Dr. Noffsinger testified as the court’s witness. Dr.
Noffsinger testified that he had been involved in evaluating Hubbard since March 2013.
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{¶8} According to Dr. Noffsinger, Hubbard is diagnosed with Schizophrenia,
Paranoid Type. Hubbard presently enjoys Level III privileges, which allow him a certain
freedom of movement without escort within a secured area of the hospital. Under Level
IV, Hubbard would be allowed off hospital grounds while under constant supervision.
Dr. Noffsinger, in a report dated April 3, 2013, recommended the increase in privileges
for the following reasons:
1. Mr. Hubbard’s psychosis is in relative remission. He has not
experienced any psychotic symptoms, such as paranoid delusions
or hallucinations, that have substantially impacted his behavior.
While he maintains some mild suspiciousness about others, he has
not acted on his suspicions, and he has no plans or intent to harm
others based on psychotic motives.
2. Mr. Hubbard’s behavior has been well-controlled and non-violent
for a substantial period of time. That he has not engaged in violent
actions in recent months indicates he is at a low risk to engage in
future violence in the near future.
3. Mr. Hubbard has sufficient insight into his illness to comply with his
prescribed antipsychotic medication (Invega Sustenna).
4. Mr. Hubbard’s history of treatment non-compliance has been
addressed by the prescribing of long-acting antipsychotic
medication.
5. Mr. Hubbard has appropriately handled Level 2 and 3 privileges.
6. Mr. Hubbard has no thoughts, intentions or plans to harm others.
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7. Mr. Hubbard is remorseful about the offense, and vows never to
harm others in the future.
8. Continued hospitalization at Heartland Behavioral Healthcare on
Level 4 privileges is the least restrictive setting.
{¶9} Dr. Noffsinger noted that all members of Hubbard’s treatment team concur
in recommending the change to Level IV.
{¶10} On cross-examination, the Prosecutor questioned Dr. Noffsinger about
progress notes made by Hubbard’s doctors from February 2012 through April 2013.
{¶11} In February 2012, Hubbard agreed to receive medication by monthly
injection, whereas he had previously refused. However, a Level IV Report prepared by
Heartland Behavioral Healthcare acknowledged that “[c]ompliance related to accepting
injectable medication was previously a condition of his court [sic] prior to him being
considered for Level IV.” In other words, Hubbard’s compliance in accepting injectable
medication was the result of the court establishing it as a condition for Level IV
privileges.
{¶12} Since February 2012, the following note was repeatedly entered in
Hubbard’s records: “Patient does not appear to have any delusions or hallucinations on
the surface. However, because of his offering very little, it is hard to say.”
{¶13} Beginning in November 2012, it was repeatedly noted that Hubbard does
not believe that he has a mental illness and that his medications do not help. Hubbard
also began to confide at this time that “I need to think before answering because I do
not want to give the wrong information.” Hubbard further reiterated that he does not
need to be on medication and that he is skeptical about it.
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{¶14} In January 2013, it was noted that Hubbard “became guarded when * * *
asked about his paranoia,” and that “he feels his offense had not been related to his
mental illness and he continues to be skeptical about treatment.” Hubbard was still
concerned about saying “anything wrong.”
{¶15} In April 2013, Hubbard continued to deny that he was mentally ill or that
he benefited from the medication and offered that he was not ill at the time he
committed the murder, but, rather, that “he felt threatened and overreacted.”
{¶16} At various times during this period from February 2012 to April 2013,
Hubbard refused to sign his consent to his treatment plan. In May 2012, Hubbard
explained that he did not agree with his treatment plan because he did not think he was
mentally ill.
{¶17} Similar progress notes continued to be entered regarding Hubbard
through April 2013, when he was examined by Dr. Noffsinger. However, in a
conversation with Dr. Noffsinger shortly before the hearing, Hubbard “did affirm he had
a mental illness and was in need of treatment.”
{¶18} Dr. Noffsinger acknowledged that Hubbard’s denial of his mental illness
was not unusual, as “poor insight is actually a symptom of psychotic illness.” Dr.
Noffsinger also acknowledged that Hubbard’s claim that his crimes were not the result
of mental illness would be a concern if Hubbard were being released, but not a concern
for Level IV as the patient remains under constant supervision. However, the Level IV
Plan prepared by Heartland Behavioral Healthcare states that Level IV is intended for a
patient who “[h]as reasonable expectations of being able to return to live in the
community in the future.” Dr. Noffsinger testified that maintaining a patient in certain
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circumstances, when less restrictive circumstances may be more appropriate, could be
frustrating to a patient and increase stress levels, which is a risk factor for the
reemergence of the mental illness. In Hubbard’s case, a reemergence of the mental
illness would “definitely [put him] at an increased risk for violence.”
{¶19} The trial court questioned Dr. Noffsinger whether Hubbard’s belief that the
murder he committed was an overreaction was delusional. Dr. Noffsinger opined that
this belief was indicative of “poor insight” into his condition, rather than delusion.
{¶20} The trial court also questioned Dr. Noffsinger about the off-ground
supervision Hubbard would have with Level IV privileges. Dr. Noffsinger testified that
supervision could consist of an employee of Heartland Behavioral Healthcare, not
necessarily medical or security personnel, escorting from one to three patients while off
the grounds of the hospital.
{¶21} On July 11, 2013, the trial court issued an Order denying the request to
grant Hubbard Level IV privileges.
{¶22} On August 8, 2013, Hubbard filed a Notice of Appeal. On appeal,
Hubbard raises the following assignments of error:
{¶23} “[1.] The trial court’s judgment finding that the state had proved by clear
and convincing evidence that the recommended change in conditions of commitment to
a less restrictive setting would pose a threat to public safety is against the manifest
weight of the evidence.”
{¶24} “[2.] The trial court erred and abused its discretion by denying the request
to transfer appellant to a less restrictive commitment setting.”
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{¶25} “[W]hen a defendant * * * has been committed [after being found not guilty
by reason of insanity], at any time after evaluating the risks to public safety and the
welfare of the defendant * * *, the designee of the department of mental health and
addiction services or the managing officer of the institution or director of the facility or
program to which the defendant * * * is committed may recommend * * * a change in the
conditions of the defendant’s * * * commitment.” R.C. 2945.401(D)(1).
{¶26} “In a [level movement] hearing * * *, the prosecutor has the burden of
proof as follows: * * * For a recommendation for a change in the conditions of the
commitment to a less restrictive status, to show by clear and convincing evidence that
the proposed change represents a threat to public safety or a threat to the safety of any
person.” R.C. 2945.401(G)(2).
{¶27} “Clear and convincing evidence is that measure or degree of proof which
is more than a mere ‘preponderance of the evidence,’ but not to the extent of such
certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought
to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus. “[J]udgments supported by some competent, credible
evidence going to all the essential elements of the case will not be reversed by a
reviewing court.” State v. Schiebel, 55 Ohio St. 3d 71, 74, 564 N.E.2d 54 (1990).
{¶28} “At the conclusion of a [level movement] hearing conducted under division
(D)(1) of this section * * *, the trial court may approve, disapprove, or modify the
recommendation and shall enter an order accordingly.” R.C. 2945.401(I).
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{¶29} Pursuant to R.C. 2945.401(I), “the trial court has discretion to approve,
disapprove, or modify any recommendation made concerning a patient’s course of
treatment.” State v. Hilton, 10th Dist. Franklin No. 02AP-518, 2003-Ohio-87, ¶ 18.
Absent an abuse of that discretion, this court will not disturb the lower court’s decision
regarding a level movement recommendation. Id.
{¶30} Hubbard argues that the trial court’s finding that the change in his status
represented a threat to public safety or the safety of any person was not supported by
the evidence. Hubbard maintains that his evasiveness about his paranoia, occasional
refusal to sign his treatment plan, and questioning of his diagnosis and treatment do not
amount to proof that he is a threat to anyone’s safety.
{¶31} We disagree. It is well-established that any reemergence of Hubbard’s
mental illness could be potentially violent and lethal. Heartland Behavioral Health’s
proposed granting Hubbard Level IV privileges was based on its conclusion that such
privileges are “the least restrictive alternative available that is consistent with public
safety and the welfare of the person.” R.C. 2945.40(F). The reasons for supporting this
recommendation were undermined at the hearing. Dr. Noffsinger felt that Hubbard’s
psychosis was in “relative remission” and that he did not experience psychotic
symptoms. Yet there was considerable evidence presented at the hearing that Hubbard
concealed his actual mental condition and that his compliance was not an indication of
progress but, rather, a desire for greater freedom. To his regular doctors, Hubbard
frankly admitted that he did not believe that he had a mental illness, that he needed
medication, or that his crime was the result of mental illness. But when Dr. Noffsinger
evaluated Hubbard in preparation for testifying at the hearing, Hubbard acknowledged
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his illness and need for treatment. Hubbard only consented to receiving injectable
medication when the court made it clear that he would have to consent in order for the
court to consider granting him greater privileges. Hubbard has been preoccupied with
saying the “wrong things” when speaking with his doctors. Hubbard’s evasiveness – his
“offering very little” – has hindered doctors from stating more affirmatively that he does
not have symptoms. Instead, it was reported that Hubbard did “not appear to have any
delusions or hallucinations on the surface.”
{¶32} Dr. Noffsinger’s recommendation cited Hubbard’s “sufficient insight into
his illness” and “remorse[] about the offense.” Yet, Hubbard’s statements to his treating
doctors reflect neither insight nor remorse, but rather a concern to say the right things to
obtain greater privileges.
{¶33} Thus, the State effectively demonstrated that Level IV privileges were not,
in fact, the least restrictive setting consistent with public safety. State v. Evans, 5th Dist.
Richland No. 12CA76, 2013-Ohio-2730, ¶ 51 (“[w]hile there is evidence that appellee is
responding well to treatment and his bipolar condition is in remission, we find appellant
met its burden and established, by clear and convincing evidence, the proposed transfer
represents a threat to public safety or the safety of any person,” as “[t]oo many
questions remain about the efficacy of appellee’s diagnosis and treatment”).
{¶34} Assuming, arguendo, that the evidence before the trial court did not rise to
the level of clear and convincing evidence, the trial court, as demonstrated by R.C.
2945.401(I), retains discretion to approve, disapprove, or modify a level movement
recommendation. Here, the trial court’s judgment was based on justifiable concerns
regarding Hubbard’s threat to public safety if allowed less restrictive conditions. In
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particular, the court noted “the episodic nature of [Hubbard’s] paranoid schizophrenia”
and “the fact that the staff who will be there observing [Hubbard] on the Level IV
movement is not staff that the Court considers to be security oriented enough to protect
citizens if the episodes came back in such a nature to be as violent as the first episode.”
We find no abuse of the court’s discretion in its decision to deny the request to move
Hubbard to Level IV in light of these concerns.
{¶35} Hubbard’s assignments of error are without merit.
{¶36} For the foregoing reasons, the Order of the Trumbull County Court of
Common Pleas, denying the request to decrease Hubbard’s level of supervision at
Heartland Behavioral Healthcare Hospital, is affirmed. Costs to be taxed against the
appellant.
TIMOTHY P. CANNON, P.J., concurs with a Concurring Opinion,
THOMAS R. WRIGHT, J., concurs in judgment only.
_________________________________________
TIMOTHY P. CANNON, P.J., concurring.
{¶37} I concur with the opinion of the majority. I write separately to clarify this
court’s standard of review, due primarily to appellant’s suggestion that the relevant
statute was amended “in order to clear up confusion concerning the amount of
discretion afforded a trial court in these types of proceedings * * *.” However, appellant
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does not recognize that the amendment to the statute only limited the discretion of the
trial court in a manner that is adverse to appellant.
{¶38} R.C. 2945.401(E) indicates that, in making any determination, “the trial
court shall consider all relevant factors, including, but not limited to * * *: (1) Whether, in
the trial court’s view, the defendant or person currently represents a substantial risk of
physical harm to the defendant or person or others[.]” See, e.g., State v. Roden, 8th
Dist. Cuyahoga No. 86841, 2006-Ohio-3679, ¶9.
{¶39} I believe the legislative intent behind R.C. 2945.401 has always been to
give the trial court broad discretion in approving changes in the course of treatment for
those persons committed under R.C. 2945.39 or R.C. 2945.40. However, the statute
was amended to include a method by which the state can object and thus prevent the
trial court from releasing an institutionalized individual or from allowing a proposed, less
restrictive status. R.C. 2945.401(G)(2). If the state establishes, by clear and convincing
evidence, that the requested change is “a threat to public safety or a threat to the safety
of any person,” the trial court no longer has discretion to approve the proposed, less
restrictive status. Id.
{¶40} Some of the cases reviewing this issue suggest that there must be clear
and convincing evidence before the trial court is permitted to disapprove movement to a
less restrictive status. See, e.g., State v. Aduddell, 5th Dist. Stark No. 2010-CA-00137,
2011-Ohio-582, ¶33-34. However, I do not believe that is how the statute was intended
to be applied. The trial court’s discretion is only limited, pursuant to R.C.
2945.401(G)(2), if the state establishes “by clear and convincing evidence that the
proposed change represents a threat.” If, however, the state does not meet its burden
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of proof, it is still within the trial court’s discretion to disapprove the proposed, less
restrictive status.
{¶41} The majority holds that the state met its burden and proved by clear and
convincing evidence that the proposed change was not “the least restrictive setting
consistent with public safety.” I concur.
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