[Cite as State v. DeJarnette, 2011-Ohio-3691.]




                     Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 95989



                                       STATE OF OHIO

                                                       PLAINTIFF-APPELLANT

                                                 vs.

                                 YUSEF DEJARNETTE
                                                       DEFENDANT-APPELLEE



                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-428306

        BEFORE: Stewart, P.J., Celebrezze, J., and Rocco, J.

        RELEASED AND JOURNALIZED:                      July 28, 2011
ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

BY: Matthew E. Meyer
Assistant County Prosecutor
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
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113




MELODY J. STEWART, P.J.:

      {¶ 1} The state of Ohio appeals from a court order granting conditional release

and Level 5 movement in a group home to defendant, Yusef Dejarnette, who, since 2002

has been under civil commitment after being found not guilty of attempted murder and

felonious assault by reason of insanity. The state’s sole objection to the court’s order is

premised on the whereabouts of the gun used by Dejarnette when he committed the acts

that led to his commitment — the state argues that Dejarnette’s failure to reveal where he
hid the gun makes him a continuing risk to retrieve the gun and use it while on

conditional release.

                                                 I

       {¶ 2} The facts are uncontested. Dejarnette suffers from schizophrenia. After

finding Dejarnette not guilty of attempted murder and felonious assault by reason of

insanity, the court determined that the least restrictive treatment alternative, consistent

with the public safety, was a psychiatric hospital in Columbus where Dejarnette was

subject to strict observation. Dejarnette continues to be mentally ill and subject to

hospitalization by court order, but over the years the conditions of his commitment have

eased. By February 2008, Dejarnette had been committed to the Northcoast Behavioral

Healthcare System, Cleveland Hospital, where he was approved for Level 5 movement —

unsupervised time off hospital grounds, including overnight and weekend passes to a

group home. In June 2010, Northcoast asked the court to approve Dejarnette for a

90-day stay at a group home. This request did not seek that Dejarnette be placed on

conditional release. The court conducted a hearing on the motion and then granted it,

finding that the state failed to prove by clear and convincing evidence that Dejarnette’s

requested convalescent leave represents a threat to the public safety.

                                                 II

       {¶ 3} R.C. 2945.401(G)(2) places the burden on the state to prove by clear and

convincing evidence that Dejarnette’s current placement poses a threat to the public

safety or a threat to the safety of any person. “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.

       {¶ 4} Three different psychiatric experts collectively testified that Dejarnette’s

schizophrenia is, and has been, in full remission since at least 2005. The court found that

the evidence “supports a conclusion that the defendant has insight into his mental illness

and will continue prescribed treatment and obtain professional assistance as needed while

on convalescent leave.” The court further found that Dejarnette had been fully compliant

with anti-psychotic medicines for the last four years and that he would remain on those

medicines under the proposed release. Other evidence showed that Dejarnette had not

engaged in any violent behavior at any time during his commitment. The acts that led to

his commitment were the only substantiated acts of violence committed by him, and those

acts were committed while he was unmedicated.

       {¶ 5} The court rejected the state’s concerns that Dejarnette might engage in

substance abuse, noting that it was imposing “additional precautions” in the form of

electronic monitoring for alcohol detection. The court moreover required Dejarnette to

obtain and carry a cell phone with a global positioning system so that his movement could

be continually monitored. Finally, the court authorized any law enforcement agency to

immediately arrest Dejarnette, with or without a capias, should his location be unknown

to the staff at the group home.

                                                 III
       {¶ 6} The state takes no issue with any of the court’s factual findings, but argues

that the court failed to consider that Dejarnette’s freedom of movement could allow him

to recover the gun he used when committing the acts that led to his commitment. The

state notes that Dejarnette hid the gun after his offense, has not revealed its whereabouts,

and the police have not been able to find it, so Dejarnette is a risk to seek out the

weapon and use it, thus posing a threat to the public safety while on conditional release.

       {¶ 7} It is true that, in April 2009, the court issued an order denying an

application for conditional leave noting that “defendant has never revealed the ultimate

disposition” of the handgun and that “[p]ossible access to the weapon while on

conditional release also raised the court’s level of concern for future violence.”

However, the court’s reticence in granting conditional release in April 2009 arguably

caused it to mention any factors that might potentially support its decision, thus

explaining its statements concerning the gun even though there appeared to be no direct

evidence to suggest that Dejarnette was a threat to use it.

       {¶ 8} By October 2010, none of the experts offering opinions on Dejarnette’s

current mental status believed him to be a threat to the public safety given his five years

in complete remission. In fact, the existence of the gun was apparently such a non-issue

for the experts that none of them mentioned the gun in their reports to the court. The

state mentioned the gun only once during the hearing, when cross-examining an expert.

It asked if the expert was “aware that the firearm in this incident has never been

recovered?”    The expert replied affirmatively.       The state neither asked any more
questions on the subject nor did it make any further mention of the gun in argument to the

court.

         {¶ 9} The lack of evidence to suggest that Dejarnette was at risk to retrieve and

use the gun could only be viewed as a positive indication that no such threat existed.

Certainly, the failure to locate the gun does not dictate the conclusion that Dejarnette

would find and use the gun if conditionally released — all of the experts viewed

Dejarnette as a low risk to the community, and the one expert who testified did not appear

to change his opinion when the state mentioned the missing gun. And even if the state’s

concerns were valid, it fails to explain why Dejarnette would be so drawn to this

particular gun and not to any other weapon.

         {¶ 10} Even without mentioning the missing gun, it is plain that the court took

Dejarnette’s release seriously, particularly with regard to the possibility that he might

pose a threat to public safety despite his having been in remission for five years. But

given the rather strict conditions of Dejarnette’s release, we cannot conclude that

amorphous concerns about his ability to find and use a gun that he supposedly disposed of

some ten years ago were compelling enough to show that the court abused its discretion

by ordering Dejarnette’s conditional release into a group treatment facility.

         Judgment 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, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
KENNETH A. ROCCO, J., CONCUR
