[Cite as State v. Roden, 2011-Ohio-2788.]




               Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 95507



                                        STATE OF OHIO

                                                     PLAINTIFF-APPELLANT

                                               vs.

                                     ANTHONY RODEN

                                                     DEFENDANT-APPELLEE




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-013666
       BEFORE:        Stewart, J., Blackmon, P.J., and Sweeney, J.

       RELEASED AND JOURNALIZED: June 9, 2011

ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

BY:    David M. Zimmerman
           Matthew E. Meyer
Assistant County Prosecutors
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
           Cullen Sweeney
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113




MELODY J. STEWART, J.:

       {¶ 1} The state of Ohio appeals from an order extending appellee

Anthony Roden’s conditional release from confinement in a state mental

health facility into a 24-hour, supervised group home. Roden, who was found
not guilty by reason of insanity of the 1974 shooting of a Cleveland police

officer, is a paranoid schizophrenic, but currently in remission under

prescribed medication.    The state argues that Roden’s medical history

requires that he be confined in a more restrictive environment — not in a

group home that has no protocol for ensuring that its residents take their

medication.

                                          I

      {¶ 2} When a person is found not guilty by reason of insanity and is

determined to be mentally ill and subject to hospitalization, that person must

be committed to an appropriate medical or psychiatric facility that constitutes

“the least restrictive commitment alternative available that is consistent with

public safety and the welfare of the person.” See R.C. 2945.40(F).

      {¶ 3} The court retains jurisdiction over the commitment until the

commitment is finally terminated. See R.C. 2945.401(A). Six months after

the initial commitment, and every two years thereafter, the hospital or

facility in which the person is committed must report in writing to the court

as to whether the person “remains a mentally ill person subject to

hospitalization by court order * * *.” See R.C. 2945.401(C). Within 30 days

of receiving the report, the court must hold a hearing on the continued

commitment of the person or on any changes in the conditions of the

commitment. Id.
      {¶ 4} “The defendant or person may request a change in the conditions

of confinement, and the trial court shall conduct a hearing on that request if

six months or more have elapsed since the most recent hearing was conducted

under this section.” Id. In addition, the chief clinical officer of the facility or

program to which the person is committed may, after evaluating the risks to

the public safety and the welfare of the person, recommend a termination of

commitment or a change in the conditions of the commitment.              See R.C.

2945.401(D)(1). If there is a recommendation for termination of commitment

or a change in the conditions of commitment, the state bears the burden, by

clear and convincing evidence, of showing that the person remains mentally

ill and that a proposed change in the conditions of the commitment to a less

restrictive status, “represents a threat to public safety or a threat to the

safety of any person.” See R.C. 2945.401(G).

                                           II

      {¶ 5} The parties stipulate that Roden has been, and continues to be, a

mentally ill person for purposes of the statute.

      {¶ 6} In   2003,   Roden    was    confined   to   Northcoast    Behavioral

Healthcare, with Levels III and IV day privileges. As described by the court,

Level III privileges allowed Roden unsupervised movement on hospital

grounds and Level IV privileges allowed Roden to go on supervised,

off-campus outings.
      {¶ 7} In 2005, over the state’s objection that Roden continued to pose a

risk to the public safety and welfare, the court ordered that the least

restrictive treatment option for Roden would be his placement in a group

home with 24-hour supervision with restrictions relating to treatment. This

placement allowed for Level V privileges, which included periodic,

unsupervised leaves from the hospital on condition of release after successful

Level V passes to a group home. We upheld this determination on appeal,

finding that the state’s arguments amounted to “mere speculation” because

none of the witnesses, including its own, recommended that Roden remain at

Northcoast Behavioral Healthcare. See State v. Roden, 8th Dist. No. 86841,

2006-Ohio-3679, ¶28.

      {¶ 8} Despite being granted placement in a group home, Roden was not

transferred — his treatment team raised concerns for his personal safety due

to reprisals if moved to a proposed home on Cleveland’s west side. In the

biennial review conducted in 2007, both Roden and the state stipulated to a

finding that Roden remained mentally ill and subject to civil confinement.

The state noted its continued opposition to Roden’s release into a 24-hour

supervised group home, but conceded that the court’s 2005 ruling was a

“settled matter of law” and, calling it “a status quo hearing,” offered no expert

witnesses. The court ordered Roden to remain in the hospital on conditional
release status with Levels III, IV, and V movement until appropriate housing

could be arranged.

      {¶ 9} In 2008, the state asked the court to revoke Roden’s conditional

release status, offering evidence that it claimed had only recently been made

available to it showing that there were “troubling problems with Roden’s

behavior that would lead a reasonable observer to conclude that Roden poses

a much greater risk to the community than previously believed.” It claimed

that treatment notes showed that Roden resisted following rules; showed an

abnormal obsession with pornography; and demonstrated a reluctance to take

his medication. The court denied the motion as moot, finding that Roden

had not been transferred into the group home.

      {¶ 10} In 2009, the court gave notice that it would hold a hearing as part

of its biennial review of Roden’s commitment.        The state again opposed

Roden’s conditional release.       While conceding that Roden’s current

psychiatrist considers Roden to be in remission from his mental illness, “past

psychiatrists   have   made   similar   observations,   only   to   have   Roden

subsequently attempt to obtain firearms, escape multiple times, develop a

delusional fixation on sex and pornography, threaten to kill hospital workers,

and remain hospitalized for many more years.” Roden argued that the state

was merely rehashing arguments made and rejected in 2005 when the court

first granted Roden’s conditional release.
      {¶ 11} During the hearing, the court heard testimony from several

witnesses. As summarized by the court in its written opinion, “[n]one of the

witnesses expressed an opinion that Mr. Roden should not be entitled to Level

V   Conditional   Release   privileges.”     The court found that Roden’s

schizophrenia has been in remission for over ten years with the help of

medication and other therapies, and that “[m]edicated he appears to pose no

threat to members of organized society.” The court thus ordered that the

residential treatment option first ordered in 2005 be maintained subject to

the “strict condition that [Roden’s] medication be monitored daily.”

                                           III

      {¶ 12} In our earlier opinion in this case, we noted that R.C.

2945.401(G)(2) places the burden on the state to prove by clear and

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

public safety or a threat to the safety of any person. Roden, 8th Dist. No.

86841, at ¶8.     “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.

      {¶ 13} Every witness expressed the opinion that Roden’s conditional

release should be continued in the terms previously ordered by the court.
Roden has been in remission from his schizophrenia for at least ten years.

Athough he had at one time expressed a desire to stop using his medication in

order to overcome certain sexual side-effects, his treating psychiatrist told the

court that it was very common for patients to ask questions about their

medications. The testimony showed that Roden is fully compliant with his

medication, being “among the top group of patients we have.”                 The

psychiatrist said that Roden understood that “the only way he’ll ever get out

of here, a hospital, is if he takes his medicines” and that Roden has “resigned

himself to dealing with whatever situation it is, and just taking the

medicines.” The group home situation arranged for Roden requires a staff

member to personally administer any medication, thus ensuring Roden’s

compliance with the conditions of his release.      See State v. Aduddell, 5th

Dist. No. 2010-CA-00137, 2011-Ohio-582.

      {¶ 14} The state claimed that Roden showed some anger after returning

from a short visit to the group home, arguing that this was due to Roden’s

“inability to maintain his medications when outside of a hospital setting.”

This argument is disingenuous. Testimony showed that while Roden had

been on an overnight visit to a group home, he had been given the wrong

medication and returned to the hospital showing frustration. Staff members

at the group home personally dispensed all of Roden’s medication, so Roden

was not at fault in any mix-up. In any event, testimony showed that Roden’s
frustration with the dynamics of the group home visit was not attributable to

Roden’s mental illness, but to Roden’s personality.      The psychiatrist said

that Roden “is disgruntled sometimes, doesn’t like certain things, and feels

entitled to others.” That he had difficulty adjusting to a non-hospital setting

after being confined for over 30 years was unsurprising to a social worker who

supervised Roden in his job training program.        She testified that Roden

established a perfect record of attendance in job training, was cooperative,

and worked well with others. There were no reports of him acting out or

failing to abide by the program’s rules.

      {¶ 15} The state also made the broader point that if Roden’s mental

condition was so dependent upon him taking his medication, Roden had

plainly not recovered to the point where he could be granted conditional

release into a group home where he could refuse to take medication. This

argument ignores the court’s order that stated that Roden had to take his

medication as part of his conditional release. In fact, the court stated that it

would be grounds to terminate the conditional release if Roden should “cease

taking his medication.” The evidence moreover showed that Roden knew he

would have to take his medication for the rest of his life and accepted that

fact. Finally, the supervised group home setting would ensure that Roden

take his medication on a daily basis.
      {¶ 16} Finally, the state offered no evidence to support its concerns

about Roden’s alleged sexual deviancy issues. Roden’s psychiatrist testified

that Roden had expressed an interest in being granted access to adult cable

television programming (the Playboy Channel) and in hiring a prostitute, but

denied that this evidenced some form of sexual deviancy, characterizing it

“typical heterosexual kind of desires.” The court noted this testimony and

found “there was no testimony that Mr. Roden has ever displayed sexually

inappropriate behavior throughout his 30-year commitment history.”                      The

state offered no expert testimony to contradict the psychiatrist, so there was

no basis for the court to disagree with Roden’s treating psychiatrist. See

Aduddell at ¶33.

      {¶ 17} Having offered no evidence of any kind to call into question the

2005 decision to grant conditional release, it follows that the state failed to

carry its burden of showing by clear and convincing evidence that there had

been any change warranting a modification or termination of Roden’s

conditional release.

      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, JUDGE

PATRICIA ANN BLACKMON, P.J., and
JAMES J. SWEENEY, J., CONCUR
