[Cite as State v. Johnson, 2013-Ohio-3691.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. John W. Wise, J.
                         Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :       Case No. 2012CA00231
BOBBY TERRELL JOHNSON                         :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Stark County
                                                  Court of Common Pleas, Case No. 2008-
                                                  CR-1483



JUDGMENT:                                         Affirmed



DATE OF JUDGMENT ENTRY:                           August 26, 2013

APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

JOHN FERRERO                                      ANTHONY KOUKOUTAS
Stark County Prosecutor                           116 Cleveland Avenue N.W.
BY: MARK CALDWELL                                 808 Courtyard Centre
110 Central Plaza South, Ste. 510                 Canton, OH 44702
Canton, OH 44702-1413
[Cite as State v. Johnson, 2013-Ohio-3691.]


Gwin, P.J.

        {¶1}     Appellant Bobby Terrell Johnson, Sr. [“Johnson”] appeals from the

November 13, 2012 judgment entry of the Stark County Court of Common Pleas finding

that Johnson was subject to continued hospitalization at a mental health facility

pursuant to R.C. 2945.40.

                                       Facts and Procedural History

        {¶2}     On September 12, 2008 the Stark County Grand Jury returned an

indictment that charged Johnson with one count of aggravated burglary and one count

of felonious assault.

        {¶3}     Johnson pleaded not guilty to these charges at his arraignment, and later

supplemented this plea with a written plea of not guilty by reason of insanity. Because of

this latter plea, the trial court ordered the evaluation of Johnson for purposes of sanity at

the time of the crimes, as well an evaluation of Johnson to determine his competence to

stand trial. Dr. Thomas M. Anuszkiewicz, Ph.D. did these examinations. The doctor

found Johnson competent to stand trial and determined that Johnson was not suffering

from any mental defect or illness.

        {¶4}     Johnson waived his right to a jury trial, and was tried to the court. The trial

court found him not guilty by reason of insanity, and deferred placement until Johnson

had served his prison term in a separate criminal case. Johnson had been indicted on

November 26, 2008 on one count of Felonious Assault (F2) in Case No. 2008 CR 2011.

This case was assigned to a different trial court and a written plea of Not Guilty by

Reason of Insanity was filed. Johnson was examined by Dr. Anuszkiewicz and by a

doctor from the Psycho-Diagnostic Center in Summit County. The reports issued by
Stark County, Case No. 2012CA00231                                                     3


both doctors found Johnson competent to stand trial and that he was not suffering from

a mental illness or defect at the time of the alleged offense. Thereafter, Johnson

entered a plea of guilty to the charge against him and he was sentenced to two years of

incarceration at a state correctional institute. However, the trial court issued an order

instructing the Stark County Sheriff's Department to hold Johnson at the Stark County

Jail upon completion of his sentence for a hearing to determine his placement into

Heartland Behavioral. Upon the completion of this prison term, the trial court committed

Johnson to the Heartland Behavioral Healthcare facility, and ordered periodic review of

this commitment.

      {¶5}   This review process culminated with a recommendation that Johnson be

released from further commitment. Based on this recommendation, the trial court

conducted an evidentiary hearing that included the testimony of three professionals who

had evaluated, assessed, and treated Johnson during his commitment.

      {¶6}   At the conclusion of the hearing, the trial court concluded that there was

clear and convincing evidence that further commitment was warranted in order to further

evaluate Johnson's potential delusional disorder. The court's finding and conclusion was

based primarily upon the testimony of Dr. Arcangela Wood a licensed forensic

psychologist and director of the Psychodiagnosic Clinic,

      The Court finds that Dr. Wood, on behalf of the Forensic Center, has

   indicated that further appropriate evaluation of this potential condition [of a

   delusional disorder constituting an Axis I diagnosis] must be performed so

   that a determination may be made as to whether the defendant continues to

   suffer from a mental illness and as to whether the defendant is subject to
Stark County, Case No. 2012CA00231                                                           4


   ongoing hospitalization under appropriate standards." The specific delusion

   that Johnson has persistently exhibited involves "individuals attempting to

   have sexual activity with [him].

                                      Assignment of Error

       {¶7}   Johnson assigns one error,

       {¶8}   “I. THE TRIAL COURT ERRED IN CONTINUING TO HOLD THE

APPELLANT IN A MENTAL HEALTH FACILITY WHEN THE APPELLANT DID NOT

HAVE A MENTAL HEALTH ILLNESS REQUIRING HOSPITALIZATION.”

                                                I.

       {¶9}   R.C. 2945.40 governs the procedure for the initial determination of the

appropriate disposition of a person who has been acquitted of a criminal charge by

reason of insanity. The state in such cases has the burden of proving, by clear and

convincing evidence, that the acquittee is a mentally ill person subject to hospitalization

by court order. (Emphasis added). R.C. 2945.40(B) and (C). State v. Johnson, 32 Ohio

St.3d 109, 111, 512 N.E.2d 652(1987). An individual who is found not guilty by reason

of insanity and committed pursuant to R.C. 2945.40 remains subject to the jurisdiction of

the court until: (1) the individual is no longer mentally ill and subject to hospitalization as

determined by the trial court; (2) the maximum prison sentence that could have been

imposed for the most serious offense with which the individual was charged expires; or

(3) the individual becomes competent to stand trial. R.C. 2945.401(J)(1). See also, R.C.

2945.401(A); Townsend v. McAvoy, 12 Ohio St.3d 314, 315, 466 N.E.2d 555(1984).

       {¶10} As to what constitutes mental illness subject to hospitalization, courts are

directed to employ the standards set forth in R.C. Chapter 5122 when those provisions
Stark County, Case No. 2012CA00231                                                       5

are not in conflict with the criminal code. R.C. 5122.011. State v. Werner, 168 Ohio

App.3d 272, 2006-Ohio-3866, 859 N.E.2d 986, ¶14.

      {¶11} In Ohio, the term “mental illness” means “a substantial disorder of thought,

mood, perception, orientation, or memory that grossly impairs judgment, behavior,

capacity to recognize reality, or ability to meet the ordinary demands of life.” R.C.

5122.01(A). Licking & Knox Community Mental Health & Recovery Bd. v. T.B., 10th

Dist. Franklin No. 10AP–454, 2010–Ohio–3487, ¶10. Because this definition is

statutory, a person may be adjudicated as mentally ill regardless of whether their

condition meets the clinical definition of mental illness. State v. Sullivan, 90 Ohio St.3d

502, 510, 739 N.E.2d 788, 2001-Ohio-6, note 4.

      {¶12} R.C. 5122.01 states, in pertinent part:

   (B) “Mentally ill person subject to hospitalization by court order” means a

   mentally ill person who, because of the person's illness:

   (1) Represents a substantial risk of physical harm to self 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 and immediate risk of serious physical

   impairment or injury to self as manifested by evidence that the person is

   unable to provide for and is not providing for the person's basic physical
Stark County, Case No. 2012CA00231                                                    6


   needs because of the person's mental illness and that appropriate provision

   for those needs cannot be made immediately available in the community; or

   (4) Would benefit from treatment in a hospital 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.

      {¶13} The Ohio Supreme Court has held,

      An individual whose mental illness is in a state of remission is subject to

   hospitalization pursuant to R.C. 5122.01(B) if there is a substantial likelihood

   that his freedom will result in physical harm to himself or other members of

   society. However, a nondangerous individual who is capable of surviving

   safely by himself, or with the assistance of willing and able family members or

   friends, is not subject to confinement under the statute.

In re Burton, 11 Ohio St.3d 147, 150, 464 N.E.2d 530(1984). See also, R.C.

2945.401(E)(6). R.C. 2945.401 further provides,

      (G) In a hearing held pursuant to division (C) or (D)(1) of this section, the

   prosecutor has the burden of proof as follows:

      (1) For a recommendation of termination of commitment, to show by clear

   and convincing evidence that the defendant or person remains a mentally ill

   person subject to hospitalization by court order or a mentally retarded person

   subject to institutionalization by court order;

                                           ***
Stark County, Case No. 2012CA00231                                                       7


       {¶14} In the case at bar, Johnson presented two witnesses during the November

7, 2012 evidentiary hearing. The first witness, Doctor Joel Schwartz was employed as

the staff psychiatrist at Heartland Behavioral, one of the facilities that Johnson had been

placed. Dr. Schwartz testifed that Johnson had been a patient for a six-month period at

Heartland Behavioral. Johnson was not on any medications except for anticonvulsant’s

given for a seizure disorder.

       {¶15} Dr. Schwartz testified that he reviewed psychiatric reports of Johnson

prepared at other facilities and determined that Johnson was not a mentally ill individual

subject to hospitalization. Instead, the doctor indicated that Johnson’s mental illness

was a behavioral disorder.

       {¶16} Dr. Nathan Stephens testified that he was employed at Hartland

Behavioral as a psychologist. Dr. Stephens had been involved in weekly group sessions

with Johnson from March or April 2011, and had been treating Johnson for

approximately 18 months.

       {¶17} Doctor Stephens agreed with the diagnosis of Doctor Schwartz that

Johnson had a personality disorder. Moreover, Doctor Stephens testified that Johnson

did not have a mental health disorder. Johnson admitted Dr. Stephens certificate of

examination prepared April 20, 2012 into evidence at the hearing.

       {¶18} The State called Doctor Arcangela Wood, the director of the Psycho-

Diagnostic Clinic and a licensed psychologist. Dr. Wood testified that based upon her

review of the record that she could not rule out the possibility of Johnson having a

delusional disorder. Dr. Wood indicated that she could not determine whether Johnson's

beliefs that male individuals were trying to pursue a homosexual relationship with him
Stark County, Case No. 2012CA00231                                                       8


were ones that were based in reality. It was Dr. Wood’s recommendation that a further

evaluation be done of Johnson to determine whether he was in fact suffering from a

delusional disorder.

       {¶19} The trial court accepted Dr. Wood’s recommendation. In the case at bar,

Johnson argues that the trial court was not presented with clear and convincing

evidence that he was a mentally ill person subject to continued hospitalization. In fact,

Johnson contends, the Court was presented with the testimony of two doctors that he

did not have a mental illness that would require continued hospitalization.

       {¶20} The Ohio Supreme Court has defined “clear and convincing evidence” as

“[t]he measure or degree of proof that will produce in the mind of the trier of fact a firm

belief or conviction as to the allegations sought to be established. It is intermediate,

being more than a mere preponderance, but not to the extent of such certainty as

required beyond a reasonable doubt as in criminal cases. It does not mean clear and

unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-104, 495 N.E.2d 23

(1986).

       {¶21} The Ohio Supreme Court has delineated our standard of review as

follows,

             Where the degree of proof required to sustain an issue must be

       clear and convincing, a reviewing court will examine the record to

       determine whether the trier of facts had sufficient evidence before it to

       satisfy the requisite degree of proof. See Ford v. Osborne, 45 Ohio St. 1,

       12 N.E. 526, Cole v. McClure, 88 Ohio St. 1, 102 N.E. 264, and Frate v.

       Rimenik, 115 Ohio St. 11, 152 N.E. 14.
Stark County, Case No. 2012CA00231                                                                9

Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954). A court of appeals will

affirm the trial court's findings “if the record contains competent, credible evidence by

which the court could have formed a firm belief or conviction that the essential statutory

elements...have been established.” In re Adkins, 5th Dist. Nos. 2005AP06–0044 and

2005AP07–0049, 2006-Ohio-431, 2006 WL 242557, ¶17.

       {¶22} The trier of fact "has the best opportunity to view the demeanor, attitude,

and credibility of each witness, something that does not translate well on the written

page." Davis v. Flickinger, 77 Ohio St.3d 415, 1997-Ohio-260, 674 N.E.2d 1159.

Ultimately, “the reviewing court must determine whether the appellant or the appellee

provided the more believable evidence, but must not completely substitute its judgment

for that of the original trier of fact ‘unless it is patently apparent that the fact finder lost its

way.’” State v. Pallai, 7th Dist. No. 07 MA 198, 2008-Ohio-6635, ¶31, quoting State v.

Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 81. In other words,

“[w]hen there exist two fairly reasonable views of the evidence or two conflicting

versions of events, neither of which is unbelievable, it is not our province to choose

which one we believe.” State v. Dyke, 7th Dist. No. 99 CA 149, 2002-Ohio-1152, at ¶

13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th Dist.1999).

       {¶23} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-

Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.

843, 74 L.Ed.2d 646 (1983).
Stark County, Case No. 2012CA00231                                                      10

      {¶24} In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954), the

Supreme Court further cautioned,

             The mere number of witnesses, who may support a claim of one or

      the other of the parties to an action, is not to be taken as a basis for

      resolving disputed facts. The degree of proof required is determined by

      the impression which the testimony of the witnesses makes upon the trier

      of facts, and the character of the testimony itself. Credibility, intelligence,

      freedom from bias or prejudice, opportunity to be informed, the disposition

      to tell the truth or otherwise, and the probability or improbability of the

      statements made, are all tests of testimonial value. Where the evidence is

      in conflict, the trier of facts may determine what should be accepted as the

      truth and what should be rejected as false. See Rice v. City of Cleveland,

      114 Ohio St. 299, 58 N.E.2d 768.

161 Ohio St. at 477-478. (Emphasis added). Finally, the Court in Cross noted,

      As in most cases, the evidence is in conflict in this case. The trial judge,

   having heard the witnesses testify, was in a far better position to evaluate

   their testimony than a reviewing court. There is substantial evidence in the

   record upon which he could base his findings of fact. Such evidence, if he

   believed certain witnesses, was sufficient to produce in his mind a firm belief

   or conviction as to the plaintiffs' allegations. Under such circumstances, a

   reviewing court may not as a matter of law substitute its judgment as to what

   facts are shown by the evidence for that of the trial court.

   161 Ohio St.3d 478, 120 N.E.2d 118.
Stark County, Case No. 2012CA00231                                                          11


          {¶25} In addition to her testimony at the November 7, 2012 evidentiary hearing,

Dr. Wood submitted a 19-page report dated October 17, 2012, which detailed her

assessment of Johnson, his past mental health evaluations, hospitalizations and legal

problems. In her report, she noted the opinion and report of Dr. Anuszkiewicz. Based

upon Johnson’s violent episodes in February, May and September 2012, Dr. Wood

recommended further evaluation and observation to further explore Johnson’s beliefs in

order to identify if his beliefs are consistent with a delusional disorder.

          {¶26} Contrary to Johnson's arguments, it is of no consequence that the trial

court’s     findings   are   in   contravention   of   Johnson's   or   any   other   witness's

testimony. Disciplinary Counsel v. Zingarelli, 89 Ohio St.3d 210, 217, 729 N.E.2d

1167(2000). Because the record does not weigh heavily against the findings of the trial

court, “we defer to the [trial court’s] credibility determinations, inasmuch as the [trial

court] saw and heard [the witnesses] firsthand.” Cuyahoga Cty. Bar Assn. v. Wise, 108

Ohio St.3d 164, 2006-Ohio-550, 842 N.E.2d 35, ¶24.

          {¶27} Consequently, we accept the trial court’s conclusion that the facts and

circumstances clearly and convincingly demonstrate that Johnson’s is a mentally ill

person subject to contined hospitalization by court order.

          {¶28} Johnson’s sole assignment of error is overruled.
Stark County, Case No. 2012CA00231                                                 12


      {¶29} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.


By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur



                                           _________________________________
                                           HON. W. SCOTT GWIN


                                           _________________________________
                                           HON. JOHN W. WISE


                                           _________________________________
                                           HON. CRAIG R. BALDWIN




WSG:clw 0820
[Cite as State v. Johnson, 2013-Ohio-3691.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
BOBBY TERRELL JOHNSON                            :
                                                 :
                                                 :
                        Defendant-Appellant      :       CASE NO. 2012CA00231




       For the reasons stated in our accompanying Memorandum-Opinion, the decision of

the Court of Common Pleas, Stark County, Ohio, is hereby affirmed.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN


                                                     _________________________________
                                                     HON. JOHN W. WISE


                                                     _________________________________
                                                     HON. CRAIG R. BALDWIN
