[Cite as State v. Evans, 2013-Ohio-2730.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :   JUDGES:
                                              :
                                              :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellant                    :   Hon. Sheila G. Farmer, J.
                                              :   Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :
LARRY N. EVANS, JR.                           :   Case No. 12CA76
                                              :
                                              :
       Defendant-Appellee                     :   OPINION


CHARACTER OF PROCEEDING:                          Appeal from the Richland County Court
                                                  of Common Pleas, Case No. 08-CR-1



JUDGMENT:                                         REVERSED AND REMANDED




DATE OF JUDGMENT ENTRY:                           June 21, 2013




APPEARANCES:

For Plaintiff-Appellant:                          For Defendant-Appellee:

JAMES J. MAYER, JR.                               GREGORY W. MEYERS
RICHLAND CO. PROSECUTOR                           OFFICE OF OHIO PUBLIC DEFENDER
JILL M. COCHRAN                                   250 East Broad St., Suite 1400
38 South Park St.                                 Columbus, OH 43215
Mansfield, OH 44902
Delaney, J.


       {¶1} Appellant the State of Ohio appeals from the August 14, 2012 Order on

Continued Commitment of appellee Larry N. Evans, Jr.

                           FACTS AND PROCEDURAL HISTORY

       {¶2} Appellant and appellee stipulated to the following facts underlying

appellee’s indictment upon multiple capital charges.

Appellee Kills 2 People and Fires Upon 7 Others in the Grip of a Bipolar Manic State:
                                December 26, 2007

       {¶3} In the early morning hours of December 26, 2007, Robert Houseman

was removing items from his vehicle in the driveway of his residence in Mansfield,

Richland County, Ohio. Appellee lived in the opposite side of the duplex. Appellee

came out of his house with a loaded semi-automatic rifle, approached Houseman,

aimed, and fired two rounds into his chest. Houseman fell to the ground, “shaking and

quivering.” Appellee approached Houseman on the ground, wounded but still alive,

aimed the assault rifle at Houseman’s head, and fired again into Houseman’s skull.

       {¶4} Appellee’s brother, Mansfield Police Officer Brian Evans, and appellee’s

wife Carolyn Evans, pulled into appellee’s driveway in a vehicle.              Appellee

immediately fired upon Brian and Carolyn, aiming and firing through the windshield.

Brian exited the vehicle and told Carolyn to drive away. Appellee shot Brian through

the right lung and Brian died.

       {¶5} Shortly after the killings of Houseman and Brian Evans, appellee’s sister,

Kimberly Evans and his sister-in-law Trina Evans (Brian’s wife) pulled into appellee’s

driveway. Trina was driving and Kimberly was in the front passenger seat. Appellee

walked to the hood of the vehicle, “looked directly at Tina Evans,” smiled, and shot her
in the shoulder. He then walked to the other side of the vehicle and shot Kimberly

Evans in the arm. Trina attempted to maneuver the vehicle to escape and appellee

fired repeatedly on the vehicle. Kimberly and Trina were hospitalized for the wounds

sustained from being shot by appellee.

       {¶6} Sgt. Michael Viars, Dep. Eric Winbigler, Lt. John King, and Dep. Duane

Kilgore of the Richland County Sheriff’s Office responded to the scene and appellee

opened fire upon all four officers. Appellee fired numerous rounds from an assault

rifle, a shotgun, a muzzleloader, and “handgun projectiles.” The officers sought cover

behind their cruisers.

       {¶7} As a result of the shootings, the residence appellee was living in

sustained $32,298 worth of damage. A Richland County Sheriff’s cruiser sustained

$744 worth of damage.

       {¶8} Appellee was apprehended and charged by indictment with three counts

of aggravated murder with firearm and death penalty specifications; three counts of

attempted aggravated murder with firearm specifications; three counts of felonious

assault with firearm specifications; four counts of attempted murder with firearm

specifications and specifications that the offender discharged a firearm; four counts of

felonious assault with a firearm specification and specification that the offender

discharged a firearm; and two counts of vandalism.
            Appellee is Found NGRI and Committed to Timothy B. Moritz Hospital:
                                    September 3, 2008

        {¶9} Appellee was found not guilty of the crimes charged by reason of insanity

by a three-judge panel1 on September 3, 2008.               Appellee was committed to the

Timothy B. Moritz Hospital (“TBM”) upon a finding of insanity predicated upon an

evaluation that he was in the grip of a bipolar manic psychotic state. The order of

commitment filed on September 3, 2008 states in pertinent part:

              * * * *.

              The court finds by clear and convincing evidence that:

              1. [Appellee] is a mentally ill person subject to hospitalization by

              court order.

              2. [Appellee] is a very dangerous killer who killed two people and

              attempted to kill seven others, and he must be confined in strict

              custody to protect public safety. (Emphasis in original.)

              3.   The least restrictive commitment alternative consistent with

              public safety and his own welfare is Timothy B. Moritz Mental

              Hospital in Columbus, Ohio.

              It is therefore ordered that [appellee] shall be forthwith delivered to

              the custody of Timothy B. Moritz Mental Hospital to be held

              pursuant to Ohio Revised Code sections 2945.40, 2945.401, and

              2945.402 until further order of this court.

        {¶10} At the conclusion of appellee’s first six-month review, appellee’s

treatment team at TBM recommended transfer to Heartland Behavioral Healthcare, a

1
    Judge James DeWeese, Judge James D. Henson, and Judge Robert Konstam.
civil mental hospital in Massillon, Ohio, but an independent forensic evaluator

disagreed with the treatment team’s recommendation. The parties stipulated to the

report of the evaluator, Dr. Bob Stinson, and the trial court determined appellee

continued to be a mentally ill person subject to hospitalization by court order and that

TBM was the least-restrictive placement. Appellee therefore remained at TBM.

          The Trial Court Denies Appellee’s Application for Change in Commitment:
                                      March 29, 2010

       {¶11} In   November     2009,   appellee’s    treatment    team   at   TBM   again

recommended that appellee should be moved to HBH.                The trial court2 held an

evidentiary hearing3 on March 17, 2010.

       {¶12} Appellant called three witnesses at the hearing: the captain of

corrections at TBM, the chief of police at HBH, and a deputy from the Richland County

Sheriff’s Office familiar with appellee’s behavior while incarcerated.

       {¶13} Appellant’s focus at the hearing was the difference in security between

TBM, a maximum-security facility, and HBH, a civil hospital. The security personnel

testified to the significant differences in security at the two facilities, and the HBH

police chief, James Peticca, testified that he did not believe appellee was an

appropriate candidate for HBH because the hospital was not equipped to handle the

security risks posed by appellee.       Specifically, Peticca was aware of appellee’s

employment history as a corrections officer and was afraid he would use that

knowledge to evade HBH security.




2
 Judge James DeWeese.
3
 The record of this hearing was admitted as an exhibit in the subsequent commitment
hearing that is the subject of the instant appeal.
          {¶14} The Richland County Sheriff’s deputy testified that appellee was initially

placed at the Ashland County Jail in the immediate aftermath of the December 26,

2007 rampage because he was believed to be a security risk for Richland County: he

had worked in the jail as a corrections officer and knew the layout. Ashland County

requested appellee’s return to Richland County, however, because of the problems

appellee caused.       Appellee constantly challenged corrections staff with behaviors

such as stripping naked and greasing himself on the floor of his cell, and “tabbing”

officers by secreting notes throughout his cell to determine where officers would check

for contraband.

          {¶15} Appellee called one witness at the hearing: Dr. Howard Sokolov, who

opined that appellee’s treatment was very successful and his bipolar condition was

controlled by mood-stabilizing medication.       Sokolov testified that appellee had no

confrontational or assaultive behavior during his stay at TBM and presented no risk of

flight.    Sokolov recommended that appellee could be moved to a less restrictive

treatment environment at HBH because, in his opinion, appellee posed no risk to

public safety or any person.

          {¶16} Upon cross examination, Sokolov testified appellee still suffers from

bipolar disorder with psychosis that is currently in remission but which would never be

“cured,” and without medication appellee could have another psychotic episode. His

medication would be monitored at HBH in the same manner that it was monitored at

TBM, however, by testing his blood to check the levels of lithium and ensure appellee

was taking his medication.
        {¶17} The trial court questioned Sokolov, and asked whether the lithium

medication would prevent appellee from having a psychotic episode.                Sokolov

responded that so far it had prevented a psychotic episode and would probably

continue to prevent a relapse, but of course there are no guarantees.

        {¶18} On March 29, 2010, the trial court overruled appellee’s application for a

change in commitment from TBM to HBH, finding by clear and convincing evidence

appellee presented a threat to public and personal safety if he was moved to HBH

from TBM. Appellee remained at TBM.

              Appellee’s Treatment Team Recommends Change in Commitment:
                                       March 2011

        {¶19} In March, 2011, appellee again filed an application for change in

commitment from TBM to HBH, which appellant opposed. The trial court4 held an

evidentiary hearing over five days.       This time appellant’s witnesses included Dr.

Karpawich, an independent investigator hired by appellant to perform an independent

evaluation of appellee.

        {¶20} The following evidence is adduced from the record of the hearing on

appellee’s March, 2011 application for change in commitment. The witnesses were

taken out of order based upon their availability. Appellee and the TBM witnesses

were present by video feed from the hospital.

               Narcissistic Personality Traits vs. Narcissistic Personality Disorder

        {¶21} Dr. David Soehner is a forensic psychiatrist at TBM and has been

appellee’s attending psychiatrist since his admission to the hospital.      Appellee was

originally diagnosed upon admission with bipolar disorder and he was treated with a

4
    The case was transferred from Judge DeWeese to Judge Henson on April 20, 2011.
mood-stabilizing medication (Lithium) and an anti-psychotic medication (Risperdal).

Appellee is no longer on any anti-psychotic medication because the Lithium

successfully controls his illness and Risperdal has undesirable side effects.

       {¶22} Each year, Soehner completes an annual comprehensive psychiatric

examination of appellee to monitor his progress. In the September 2, 2009 report,

appellee was still bipolar and no changes of note in his condition were indicated. In

the September 2, 2010 report, Soehner noted a change in appellee’s diagnosis: the

appearance of narcissistic personality traits. Soehner clarified that narcissistic traits

do not rise to the level of narcissistic personality disorder, which is a severe mental

disorder causing individuals to have lifetime patterns of feeling they’re entitled to

certain things and react with rage if their demands and entitlements are not met; such

individuals have a pathologically grandiose sense of themselves. In appellee’s case,

Soehner noted two narcissistic traits: a sense of entitlement and a haughty, arrogant

attitude.

       {¶23} Soehner testified that narcissistic personality disorder would require

intensive psychotherapy and possibly medication. He again reiterated he did not find

appellee to have narcissistic personality disorder, only narcissistic traits.   Soehner

agreed that another doctor who evaluated appellee in connection with the NGRI

process had noted these traits as well, and when questioned about why they weren’t

noticed earlier at TBM, Soehner admitted such traits may present themselves over

time. Soehner testified that appellee has received therapy at TBM in response to the

narcissistic traits and that they are not significant enough to necessarily appear in

appellee’s treatment plan.
       {¶24} On April 29, 2008, Dr. Sunbury had diagnosed appellee with bipolar

disorder with narcissistic personality features. Soehner testified he disagreed with

Sunbury’s conclusion and with the conclusion of appellant’s evaluator, Dr. Karpawich,

discussed infra. Soehner concluded appellee has narcissistic personality traits, which

are mild, whereas full-blown narcissistic personality disorder is severe.

       {¶25} Soehner testified appellee stated as recently as September, 2010 that he

hates taking his medication and acknowledged that appellee has a history of stopping

medication on his own. The prosecutor asked whether appellee told Soehner that he

is the “supreme victim” of the events of December 26, 2007, and Soehner not only

agreed that appellee made the statement, but Soehner agreed with appellee, stating

appellee is the “supreme victim” of his own mental illness.

       {¶26} Upon cross-examination by appellee, Soehner explained that the traits

he described were minor. The mild sense of entitlement, for example, arose from

appellee’s complaint regarding the availability of soda for visitors to the hospital. His

haughty, arrogant attitude arose from bragging that he knew news around the hospital

before anyone else.       Soehner stated these traits are not dangerous; it is more

significant, in his opinion, that appellee has responded well to treatment, has shown

no violence or rage, has not refused to take his medication, and has taken

responsibility for his actions.

       {¶27} Upon redirect, though, appellant countered with evidence that appellee

pushed boundaries regarding a staff-only bathroom, which he remarked he was good

enough to clean but not good enough to use, and bragged to other patients that he

found out a “Code Brown” in hospital parlance refers to a patient escape or AWOL.
       {¶28} Soehner’s treatment plan notes dated October 6, 2009 indicate appellee

told staff he anticipated leaving TBM within two to five years.

       {¶29} Dr. James Karpawich is a clinical psychologist hired by appellant to

review appellee’s case. In his opinion, appellee suffers from bipolar disorder and also

fulfills the criteria for narcissistic traits or mixed personality disorder with narcissistic

features.   His opinion as to the least-restrictive treatment commitment alternative

consistent with public safety and treatment of appellee is for appellee to remain at

TBM. Karpawich opined that other doctors have also noted appellee’s narcissistic

traits, but no evidence exists these traits have been addressed in appellee’s

treatment. Contrary to Soehner’s opinion, Karpawich testified this poses a danger

because a person with these traits may become violent when challenged. It would be

safer to keep appellee at TBM, therefore, because narcissistic personality traits can

lead to narcissistic personality rage.

       {¶30} Karpawich identified appellee’s statement that he is the “supreme victim”

as evidence that TBM hasn’t adequately addressed his narcissistic traits because the

statement is exceedingly narcissistic, grandiose, and entitled in light of the

circumstances of the homicides and shootings. Moreover, in Karpawich’s opinion, if

Soehner agrees appellee is the “supreme victim,” Soehner should not be treating

appellee because narcissists lack empathy with other people and are incapable of

understanding how others perceive their actions. One goal of treatment, therefore,

must be to challenge the narcissist on statements like “I am the supreme victim,” and

not agree with him and thereby reinforce the sense of blamelessness.
       {¶31} Karpawich admittedly had limited interview time with appellee, but noted

that when appellee is challenged, he becomes defensive and is quick to take offense.

Karpawich disagrees that appellee has taken responsibility for his actions in 2007,

instead blaming his actions on his mental illness and on his doctors’ failure to properly

diagnose his illness earlier. This blaming of others, in Karpawich’s view, is another

narcissistic personality trait. Not addressing these traits creates a poor prognosis for

appellee but also a risk to the safety of the next person who challenges appellee.

       {¶32} Karpawich opines that there is no evidence in appellee’s treatment

records that his treatment team has challenged his grandiosity and sense of

entitlement, or even acknowledged in his treatment plan that he has narcissistic traits.

This creates the chance that if appellee is confronted and challenged, he could fly into

a rage, and TBM would be a safer environment for that result than HBH.

                   Conflicting Evidence Regarding Appellee as a Model Patient

       {¶33} Appellee called a number of witnesses on his behalf.          His wife and

daughters want his transferred to HBH; other family members (and victims) strongly

disagree. Members of his treatment team testified to appellee’s successful treatment

at TBM, describing him as a high functioning, model patient who is compliant with their

recommendations.       Testimony was presented that appellee’s work history as a

corrections officer has been taken into account and does not place him at any higher

risk for escape.

       {¶34} Cross-examination of these witnesses, however, produced conflicting

information about how much they knew about appellee’s history, including the events
of December 26, 2007 and appellee’s substance abuse, and how much they simply

relied on what appellee told them.

                                       Changes at HBH

       {¶35} Appellant called James Peticca again, now former chief of police at HBH.

Peticca received a five-day suspension as a result of his testimony at the first hearing

and was ultimately terminated.       The new chief of police at HBH is the former

maintenance supervisor.

       {¶36} Appellee called Jeffrey L. Sims, the C.E.O. of HBH, a new hire since the

last hearing. Sims indicated he had no problem with appellee coming to HBH and in

light of security upgrades to HBH, did not foresee a security risk. Appellee would be

placed at “level one” movement at HBH, which means he would be on a locked patient

unit which is a large area with bedrooms, a dining area, a TV room, and an exercise

room. The entrance to this locked ward is akin to a sally port with two locked doors; to

enter, an individual must come in, close a door behind them, then enter another

locked door. Sims testified that before he came to HBH, a 20-foot brick wall was built

to address security concerns such as those expressed by James Peticca in the earlier

hearing. There has been one escape from HBH since the wall was built.

       {¶37} HBH has its own police force of eight officers total, with one to three

officers working at any given time. HBH does not have metal detectors, a “control

room” of cameras for centralized monitoring, or systematic observation of the

perimeter of the facility. If a patient attempts to escape or creates a problem on a unit,

staff members’ option is to use the telephone to call for assistance.               Sims
acknowledged it is easier to escape from HBH than from TBM, which is to be expected

because HBH is a civil hospital while TBM is a maximum-security facility.

       {¶38} In preparation for this hearing, Sims toured TBM. To his surprise, during

the visit appellee approached him and introduced himself.

                               Stinson Now Recommends Transfer

       {¶39} Appellee’s final witness was Dr. Bob Stinson, who is an employee of

Twin Valley (the facility of which TBM is a part) but not a member of appellee’s

treatment team.       Stinson performed an earlier evaluation of appellee and did not

recommend movement to a less-restrictive setting, but his opinion has evolved. Twin

Valley asked Stinson to perform an independent review of appellee after the treatment

team recommended movement to HBH. Stinson opined that appellee does continue

to be a mentally ill person subject to hospitalization by court order, and balancing his

needs with public safety, Stinson recommends movement to a civil hospital such as

HBH. Stinson agrees that appellee suffers from bipolar disorder, which has psychotic

features when it is severe, but says appellee is now stable, and in long-term

remission, in large part due to medication. In Stinson’s opinion, appellee does not

have narcissistic personality traits, much less narcissistic personality disorder. Even

assuming for the sake of argument appellee has such traits, keeping appellee at TBM

is too restrictive.

                                Appellee is Demonstrably Volatile

       {¶40} Because it is relevant to our decision, we note two incidents that

occurred during the hearing. The TBM witnesses testified by video feed from the

facility; appellee was also present by video, in the same room as the witnesses.
During the testimony of Dr. Helen Rodebaugh, a member of his treatment team, the

prosecutor noted for the record that appellee was placing his hand on and off the mute

button during her testimony and had to be instructed not to do so by the court. At

another point in the hearing, the prosecutor noted that appellee refused to move to a

different seat at the witness table that his counsel directed him to. Appellee hit the

mute button and spoke to a witness during her testimony (presumably Rodebaugh),

and when the trial court told him to move away, appellee banged his chair against the

wall.

                         The Trial Court Grants Application to Transfer to HBH:
                                             August 2012

        {¶41} On August 14, 2012, the trial court ruled appellee should be moved to

HBH. The trial court noted in the judgment entry that the decision took into account a

trip to HBH to view the grounds and security arrangements. The trial court’s entry

states in part:

              * * * *.

              To approach without trepidation the decision of security level for

              the safety of the community in relationship to [appellee] would be

              folly. [Appellee] remains a seriously mentally ill individual who by

              his own volition stopped taking prescribed medications that

              apparently led him to kill two (2) individuals and seriously wound

              others. This Court does not get a sense of security from the head

              of the treatment team at [TBM] who apparently now believes that

              [appellee] is no longer dangerous because he, [appellee], now

              knows and fully recognizes the consequences of failing to
            maintain his medical protocol.     While [appellee] appears to be

            rational while in a non threatening environment where his every

            move is observed and where compliance with every treatment

            mode is guaranteed, it is very difficult and actually impossible for

            me to make the leap to the conclusion that he is no longer a

            danger to himself and to those around him particularly in light of

            the fact that on at least two (2) occasions prior to his recent

            hospitalizations, he quit and refused to stay on a medical regimen

            prescribed to prevent the very kind of activity [appellee] engaged

            in.

            Based upon his history of voluntary non compliance while not in a

            sterile hospital environment, it may be difficult in the future with

            any degree of assurance for the safety of [appellee] and the

            community at large to suggest that he should be allowed any

            degree of freedom to roam at large in society.

            For now, it is the decision of the Court that [appellee] remains a

            seriously mentally ill individual subject to continued hospitalization

            and that the least restrictive placement at this time would be

            [HBH].

            * * * *.

      {¶42} Appellant appeals from the August 14, 2012 Order on Continued

Commitment permitting transfer of appellee to HBH.
                                ASSIGNMENTS OF ERROR

      {¶43} Appellant raises one Assignment of Error:

      {¶44} “I. THE TRIAL COURT ERRED WHEN IT DETERMINED THAT THE

STATE DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE

CHANGE IN COMMITMENT SETTING WAS A THREAT TO PUBLIC SAFETY OR

THE THREAT TO THE SAFETY OF ANY PERSON.”

                                          ANALYSIS

                                           I.


      {¶45} Appellant argues the trial court erred in determining it did not establish

by clear and convincing evidence that the change in commitment setting was a threat

to public safety or a threat to the safety of any person. We agree.

      {¶46} We begin with the statutory authority by which appellee was placed at

TBM. Pursuant to R.C. 2945.40, appellee was found not guilty by reason of insanity

and was placed by the trial court at TBM, the only maximum-security psychiatric

hospital in Ohio. As long as appellee is determined to be a mentally-ill person subject

to hospitalization by court order, the trial court is tasked with determining the

appropriate placement with the following standard in mind:

             If, at the hearing under division (A) of this section, the court finds

             by clear and convincing evidence that the person is a mentally ill

             person subject to hospitalization by court order, the court shall

             commit the person either to the department of mental health for

             treatment in a hospital, facility, or agency as determined clinically

             appropriate by the department of mental health or to another
              medical or psychiatric facility, as appropriate. Prior to placing the

              defendant, the department of mental health shall obtain court

              approval for that placement. * * * *. Further proceedings shall be in

              accordance with sections 2945.401 and 2945.402 of the Revised

              Code. In determining the place of commitment, the court shall

              consider the extent to which the person is a danger to the

              person and to others, the need for security, and the type of

              crime involved and shall order the least restrictive alternative

              available that is consistent with public safety and the welfare

              of the person. In weighing these factors, the court shall give

              preference to protecting public safety.

              R.C. 2945.40(F) [Emphasis added].

       {¶47} Appellee remains hospitalized and subject to institutionalization by court

order. R.C. 2945.401 addresses requests for change in the conditions of commitment

and states in pertinent part:

              * * * *.

              (C) The department of mental health or the institution, facility, or

              program to which a defendant or person has been committed

              under section 2945.39 or 2945.40 of the Revised Code shall

              report in writing to the trial court, at the times specified in this

              division, as to whether the defendant or person remains a

              mentally ill person subject to hospitalization by court * * *. The

              department, institution, facility, or program shall make the reports
after the initial six months of treatment and every two years after

the initial report is made. The trial court shall provide copies of the

reports to the prosecutor and to the counsel for the defendant or

person. Within thirty days after its receipt pursuant to this division

of a report from the department, institution, facility, or program, the

trial court shall hold a hearing on the continued commitment of the

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

commitment of the defendant or person. 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.

(D)(1) Except as otherwise provided in division (D)(2) of this

section, when a defendant or person has been committed under

section 2945.39 or 2945.40 of the Revised Code, at any time after

evaluating the risks to public safety and the welfare of the

defendant or person, the designee of the department of mental

health or the managing officer of the institution or director of the

facility or program to which the defendant or person is committed

may recommend a termination of the defendant's or person's

commitment or a change in the conditions of the defendant's or

person's commitment.

* * * *.
             (G) In a hearing held pursuant to division (C) or (D)(1) of this

             section, the prosecutor has the burden of proof as follows:

             * * * *.

             (2) 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.

             (H) In a hearing held pursuant to division (C) or (D)(1) or (2) of this

             section, the prosecutor shall represent the state or the public

             interest.

             (I) At the conclusion of a hearing conducted under division (D)(1)

             of this section regarding a recommendation from the designee of

             the department of mental health, managing officer of the

             institution, or director of a facility or program, the trial court may

             approve, disapprove, or modify the recommendation and shall

             enter an order accordingly.

             R.C. 2945.401.

       {¶48} The issue before us, therefore, is whether appellant clearly and

convincingly established the proposed transfer of appellee to HBH represents a threat

to public safety or a threat to the safety of any person. 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.” State v. Aduddell, 5th Dist.

No. 2010-CA-00137, 2011-Ohio-582, ¶ 16, citing In re: Estate of Haynes, 25 Ohio

St.3d 101, 103–104, 495 N.E.2d 23 (1986). “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. State v. Roden, 8th Dist. No. 95507, 2011-Ohio-2788, ¶ 12, citing In re

Adoption of Holcomb (1985), 18 Ohio St.3d 361, 368, 481 N.E.2d 613. “In reviewing

weight-of-the-evidence arguments where the plaintiff’s burden below is clear and

convincing evidence, an appellate court will not reverse judgments supported by some

competent, credible evidence going to all the essential elements of the case.” State v.

Mahaffey, 140 Ohio App.3d 396, 402, 2000-Ohio-1940, 747 N.E.2d 872 (4th

Dist.2000), citing State v. Schiebel, 55 Ohio St.3d 71, 74-75, 564 N.E.2d 54 (1990).

      {¶49} In Aduddell, we determined the state did not meet its burden because it

did not seek an expert opinion to refute the transfer recommendation, presented no

evidence that transfer would place the public at risk, and offered no evidence of the

unsuitability of the facility to which the appellant would be transferred.   Aduddell,

supra, 2011-Ohio-582 at ¶ 33. In the instant case, appellant presented the opinion of

Karpawich to rebut the transfer recommendation of appellee’s treatment team,

presented evidence that the transfer would place the public at risk, and presented

evidence that HBH is a less secure facility than TBM.

      {¶50} It is evident from the extraordinary record of the five-day hearing in this

case that the trial court took this decision extremely seriously and struggled with it.
We are not quick to second-guess the decision of a fact finder that went so far as to

visit the facility in question to determine its suitability.

       {¶51} In reviewing the record of this case as a whole, however, we find we are

constrained by the mandate of R.C. 2945.40(F), specifically, that the court shall give

preference to public safety. While 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. R.C. 2945.401(G)(2). Too many

questions remain about the efficacy of appellee’s diagnosis and treatment. We fully

acknowledge we are not mental health professionals and it is beyond the scope of our

authority to determine whether appellee has narcissistic traits or narcissistic

personality disorder.     We are compelled to find, however, appellant did establish,

convincingly, that movement of appellee to a less-restrictive civil hospital setting poses

a threat to public safety in light of appellee’s present mental health status, the events

of December 26, 2007, his history of mental illness, his background as a corrections

officer, and inherent differences in security levels between the two facilities.

       {¶52} We find appellee remains a mentally ill person subject to hospitalization

by court order and the least restrictive commitment alternative consistent with public

safety and his own welfare is TBM.
                                       CONCLUSION

      {¶53} For the foregoing reasons, the August 14, 2012 judgment of the Richland

County Court of Common Pleas is reversed and the matter is remanded for further

proceedings consistent with this opinion.


By: Delaney, J.

Gwin, P.J. and

Farmer, J. concur.



                                       HON. PATRICIA A. DELANEY



                                       HON. W. SCOTT GWIN



                                       HON. SHEILA G. FARMER




PAD:kgb
             IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                          FIFTH APPELLATE DISTRICT


                                        :
STATE OF OHIO                           :
                                        :
   Plaintiff - Appellant                :       JUDGMENT ENTRY
                                        :
-vs-                                    :
                                        :
LARRY N. EVANS                          :       Case No.   12CA76
                                        :
   Defendant - Appellee                 :
                                        :
                                        :


       For the reasons stated in our accompanying Opinion on file, the judgment of the

Richland County Court of Common Pleas is reversed and this matter is remanded to

the trial court for proceedings consistent with this opinion.     Costs assessed to

appellee.




                                        HON. PATRICIA A. DELANEY



                                        HON. W. SCOTT GWIN



                                        HON. SHEILA G. FARMER
