STATE OF OHIO, Plaintiff-Appellee, v. PHILIP L. MCNICHOLS, Defendant-Appellee.
Case No. 19CA3681
IN THE COURT OF APPEALS OF OHIO, FOURTH APPELLATE DISTRICT, ROSS COUNTY
DATE JOURNALIZED: 4-24-20
[Cite as State v. McNichols, 2020-Ohio-2705.]
ABELE, J.
DECISION AND JUDGMENT ENTRY; CRIMINAL APPEAL FROM COMMON PLEAS COURT
APPEARANCES:
James R. Kingsley, Circleville, Ohio, for appellant.
Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela C. Wells, Assistant Ross County Prosecuting Attorney, Chillicothe, Ohio, for appellee.
{¶ 2} Appellant assigns the following error for review:
“DEFENDANT SHOULD HAVE BEEN DISCHARGED AFTER HIS FINDING OF NGRI.”
{¶ 3} On October 5, 2018, a Ross County grand jury returned an indictment that charged appellant with assault in violation of
{¶ 5} At a later hearing, the parties stipulated to the admission into evidence of Dr. Daniel D. Hrinko‘s forensic evaluation. Dr. Hrinko opined that appellant “cannot be considered a person who is mentally ill and subject to hospitalization. His only enduring mental health diagnosis is that of Major Depressive Disorder with no evidence of psychotic features and a substance use disorder which is the result of his extensive history of abusing mood altering substances over many years.” Dr. Hrinko continued: “The brief psychotic reaction that [appellant] experienced at the time of the instant offense described his state at and around the time of the instant offense and does not constitute an enduring diagnosis that could qualify him as an individual subject to hospitalization as defined in the Ohio Revised Code.” Dr. Hrinko opined that if “the court find[s] that [appellant] is an individual subject to hospitalization and that court supervision should continue,” then the doctor recommends that the court place appellant “on conditional release status within the community.” The doctor also observed that appellant has been complying with treatment recommendations, appears to be benefitting from receiving treatment, and should continue to receive treatment “for the foreseeable future.”
{¶ 6} At the hearing to determine the disposition, the state asserted that under
{¶ 7} At the conclusion of the hearing, the trial court agreed with the state. The court noted that Dr. Hrinko opined that appellant is not a mentally ill person subject to hospitalization, but further noted that the statute does not use the term “mentally ill person subject to hospitalization.” Instead, the statute uses the phrase “mentally ill person subject to court order.” The court determined that appellant is a mentally ill person subject to court order because, as the court observed, the forensic evaluation concluded that appellant “suffers from major depressive disorder” and that appellant thus is “clearly mentally ill.” The court also found part of the forensic report to be “very dismissive” as the report indicates that the incident that led to the assault charge “was not of [appellant‘s] doing, but the result from an adverse drug reaction due to drugs injected to him by Adena Hospital in treating his heart attack.” The court believed that appellant “is shifting the blame from himself to others.”
{¶ 9} In his sole assignment of error, appellant asserts that the trial court should have ordered him discharged after it found him not guilty by reason of insanity. Appellant contends that Dr. Hrinko‘s report indicates that appellant is not mentally ill and does not qualify for hospitalization. Thus, appellant argues, because he is not a mentally ill person subject to court ordered hospitalization, the court must unconditionally discharge him.
{¶ 10} In general, appellate courts will not disturb a trial court‘s finding that a person is a mentally ill person subject to court order unless the court‘s decision is against the manifest weight of the evidence. In re Kister, 194 Ohio App.3d 270, 2011-Ohio-2678, 955 N.E.2d 1029 (4th Dist.), ¶ 21, citing In re K.W., Franklin App. No. 06AP–731, 2006–Ohio–4908, 2006 WL 2708460, ¶ 6. When an appellate court reviews whether a trial court‘s decision is against the manifest weight of the evidence, the court “““weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [fact-finder] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed * * * “,” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001), quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A reviewing court may find a trial court‘s decision against the manifest weight of the evidence only in the “exceptional case in which the evidence weighs heavily against the [decision].” Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983); accord State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000). Moreover, when reviewing evidence under the manifest weight of the evidence standard, an appellate court generally must defer to the fact-finder‘s credibility determinations. Eastley at ¶ 21. As the Eastley court explained:
““[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment must be made in favor of the judgment and the finding of facts. * * * If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.”
Id., quoting Seasons Coal Co., 10 Ohio St.3d at 80, fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978). Thus, ““[a] reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24, quoting Seasons Coal at 81. Consequently, an appellate court will leave the issues of weight and credibility of the evidence to the fact finder, as long as a rational basis exists in the record for its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-Ohio-1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No. 07CA2948, 2007-Ohio-6331, ¶ 6 (“We will not intercede as long as the trier of fact has some factual and rational basis for its determination of credibility and weight.”).
{¶ 11} We additionally note that ““[a] finding of an error in law is a legitimate ground for reversal.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24, quoting Seasons Coal at 81. Therefore, appellate courts will generally defer to the fact finder’s credibility determinations, but not defer on matters that involve questions of law.
{¶ 12}
{¶ 13} Therefore, we observe that in light of the foregoing, the state must establish, by clear and convincing evidence, that a person is a mentally ill person subject to court order. E.g., Foucha v. Louisiana, 504 U.S. 71, 86, 112 S.Ct. 1780, 1788, 118 L.Ed.2d 437 (1992). Clear and convincing evidence is evidence that “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.
{¶ 14} As relevant in the case at bar,
a mentally ill person who, because of the person’s illness:
* * * *
(4) Would benefit from treatment for the person’s mental illness and is in need of such treatment as manifested by evidence of behavior that creates a grave and imminent risk to substantial rights of others or the person[.]
We further note that
{¶ 15} Consequently, in order to subject a person to a court order under
{¶ 16} In 1984, the Ohio Supreme Court interpreted the former version of
Burton, 11 Ohio St.3d at 149, quoting former
{¶ 17} We also recognize that the Burton court adopted a totality of the circumstances test that courts should use when determining whether a mentally ill person is subject to hospitalization. Id. at 149. Thus, courts should also use a totality-of-the-circumstances test when determining whether a mentally ill person is subject to court order. A court must evaluate “[t]he individual‘s present mental state” in light of “current or recent behavior as well as prior dangerous propensities of the person.” Id. In doing so, a court should consider the following factors:
(1) whether, in the court‘s view, the individual currently represents a substantial risk of physical harm to himself or other members of society; (2) psychiatric and medical testimony as to the present mental and physical condition of the alleged incompetent; (3) whether the person has insight into his condition so that he will continue treatment as prescribed
or seek professional assistance if needed; (4) the grounds upon which the state relies for the proposed commitment; (5) any past history which is relevant to establish the individual‘s degree of conformity to the laws, rules, regulations and values of society; and (6) if there is evidence that the person‘s mental illness is in a state of remission, the court must also consider the medically suggested cause and degree of the remission and the probability that the individual will continue treatment to maintain the remissive state of his illness should he be released from commitment.
Id. at 149-150.
{¶ 18} We further note that this court previously held that “[a] person acquitted of a crime by reason of insanity is entitled to release once the acquittee has become sane or is no longer dangerous.” State v. Trapp, 4th Dist. Jackson No. 97CA819, 1998 WL 388236, *2, citing Foucha, 504 U.S. at 446, and Jones v. United States, 463 U.S. 354, 363, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983). We determined a defendant is entitled to discharge when the evidence fails to show the defendant suffers from a mental illness. In Trapp, the trial court had revoked the defendant‘s conditional release after the defendant had been charged with several criminal offenses. A psychologist testified that the defendant was not a mentally ill person subject to hospitalization, but instead suffered from substance abuse disorder and had an antisocial personality. The psychologist additionally opined that the defendant likely would continue to abuse drugs and alcohol and to repeat violent and aggressive behavior towards others due to the defendant‘s substance abuse problem. The psychologist “acknowledged that as a result of ‘character flaws,’ i.e., substance abuse and antisocial personality, the [defendant] may pose a substantial risk to himself or others if released, but poses no risk as a result of a mental illness.” Id. at *1. The trial court nonetheless found the defendant to be a mentally ill person subject to hospitalization. The defendant appealed and this court (1) reversed the trial court‘s judgment, and (2) pointed out that the expert witnesses testified that the defendant was not mentally ill as defined in
{¶ 19} In State v. Welch, supra, the appellate court similarly disagreed with a trial court‘s assessment that a defendant with a substance abuse disorder and antisocial personality was a mentally ill person subject to hospitalization. In Welch, the defendant experienced a psychotic episode after he received drugs for medical treatment and tragically stabbed to death a teenage boy. The court later found the defendant not guilty by reason of insanity and committed him to a mental hospital. Approximately ten years after the stabbing death, the defendant sought release from his commitment. The state opposed release, and the trial court granted the state‘s request for continued commitment.
{¶ 20} On appeal, the court determined that the evidence failed to show that the
{¶ 21} In In re C.J., 12th Dist. Butler No. CA2019-01-013, 2019-Ohio-4403, 2019 WL 5543079, ¶ 21, the court determined that the defendant‘s diagnosis of major depressive disorder qualified as a mental illness under
{¶ 22} Similarly, in State v. Werner, 168 Ohio App.3d 272, 2006-Ohio-3866, 859 N.E.2d 986 (6th Dist.), the court determined that evidence that the defendant suffered from a mood disorder and “polysubstance dependence” supported the trial court‘s finding that the defendant was a mentally ill person subject to hospitalization under the former version of
{¶ 23} In the case sub judice, we initially observe that it appears that the evidence transmitted to this court on appeal is limited to the forensic evaluation. None of the parties presented any in-court testimony regarding appellant‘s present mental state, and the only evidence in the record (Dr. Hrinko‘s report) states that appellant is not a mentally ill person and not subject to hospitalization. Moreover, it appears that Dr. Hrinko‘s evaluation does not conclude that appellant has a mental illness as defined in
{¶ 24} The trial court, however, apparently disagreed with Dr. Hrinko‘s diagnosis that appellant is not mentally ill and believed that appellant‘s major depressive disorder diagnosis shows that appellant is mentally ill. At one point during the hearing, the court rejected appellant‘s counsel‘s assertion that appellant is not mentally ill and stated: “It says in the report that he suffers from major depressive disorder. He‘s clearly mentally ill.” Appellant‘s counsel suggested that in order to find appellant a mentally ill person subject to court order, the court must find that appellant is “some how * * * a danger to himself or others.” The court, however, discredited Dr. Hrinko‘s opinion that appellant is not mentally ill based upon Dr. Hrinko‘s further statement that appellant is not subject to hospitalization, but noted that the statute does not require the court to find that the person is mentally ill and subject
{¶ 25} After our review, and in light of the state of the record before us, we believe it is unclear whether the trial court applied the correct legal standard before it found appellant to be a mentally ill person subject to court order. Although the court correctly recognized that the statute does not require a finding that the person is subject to hospitalization, the language the court used during the hearing and in its judgment entry does not indicate that the court first considered whether appellant has a mental illness as defined in
{¶ 26} Accordingly, based upon the foregoing reasons, we reverse the trial court‘s judgment that found appellant to be a mentally ill person subject to court order and remand this matter so the trial court may consider whether either of appellant‘s mental health diagnoses constitutes a mental illness as defined in
{¶ 27} Accordingly, based upon the foregoing reasons, we sustain appellant‘s sole assignment of error, reverse the trial court‘s judgment and remand this matter for further proceedings consistent with this opinion.
JUDGMENT REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
JUDGMENT ENTRY
It is ordered that the judgment be reversed and the cause remanded for further proceedings consistent with this opinion. Appellant shall recover of appellee the 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 Ross County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY: _________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
Notes
A person is “not guilty by reason of insanity” relative to a charge of an offense only if the person proves, in the manner specified in section
2901.05 of the Revised Code, that at the time of the commission of the offense, the person did not know, as a result of a severe mental disease or defect, the wrongfulness of the person’s acts.
We further observe that a person may avoid criminal culpability for conduct resulting from that person’s involuntary intoxication. State v. Williamson, 6th Dist. Wood No. WD-18-049, 2019-Ohio-4380, 2019 WL 5491722, ¶ 47, citing State v. Johnston, 2d Dist. Montgomery No. 26016, 2015-Ohio-450, ¶ 33 (stating that “involuntary intoxication is an affirmative defense”). In the case at bar, however, appellant did not raise an “involuntary intoxication” defense, but instead raised the “not guilty by reason of insanity” defense. Appellant’s appellate counsel, however, argued that appellant actually suffered from “temporary insanity” that emanated from the hospital’s treatment and choice of medication. Ohio, however, does not recognize the defense of “temporary insanity.” In State v. Folmer, 117 Ohio St.3d 319, 2008-Ohio-936; 883 N.E.2d 1052, the Ohio Supreme Court reaffirmed and restated the principle that Ohio does not recognize the partial defense of diminished capacity (when a defendant does not assert an insanity defense, it is well settled that he may not offer expert testimony in an effort to show that he lacked mental capacity to form the specific mental state required for a particular crime). See, also, State v. Wilcox, 70 Ohio St.2d 182, 436 N.E.2d 523, 1982; State v. Heising, 6th Dist. Fulton No. F-08-005, 2008-Ohio-6803.
The statute that the Burton court reviewed stated as follows:
(B) “Mentally ill person subject to hospitalization by court order” means a mentally ill person who, because of his illness:
(1) Represents a substantial risk of physical harm to himself as manifested by evidence of threats of, or attempts at, suicide or serious self-inflicted bodily harm;
(2) Represents a substantial risk of physical harm to others as manifested by evidence of recent homicidal or other violent behavior, evidence of recent threats that place another in reasonable fear of violent behavior and serious physical harm, or other evidence of present dangerousness;
(3) Represents a substantial risk and immediate risk of serious physical impairment or injury to himself as manifested by evidence that he is unable to provide for and is not providing for his basic physical needs because of his mental illness and that appropriate provision for such needs cannot be made immediately available in the community; or
(4) Would benefit from treatment in a hospital for his mental illness and is in need of such treatment as manifested by evidence of behavior that creates a grave and imminent risk to substantial rights of others or himself.
(5)(a) Would benefit from treatment as manifested by evidence of behavior that indicates all of the following:
(i) The person is unlikely to survive safely in the community without supervision, based on a clinical determination.
(ii) The person has a history of lack of compliance with treatment for mental illness and one of the following applies:
(I) At least twice within the thirty-six months prior to the filing of an affidavit seeking court-ordered treatment of the person under section
(II) Within the forty-eight months prior to the filing of an affidavit seeking court-ordered treatment of the person under section
(iii) The person, as a result of the person’s mental illness, is unlikely to voluntarily participate in necessary treatment.
(iv) In view of the person’s treatment history and current behavior, the person is in need of treatment in order to prevent a relapse or deterioration that would be likely to result in substantial risk of serious harm to the person or others.