[Cite as State v. McNichols, 2020-Ohio-2705.]
                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       ROSS COUNTY


STATE OF OHIO,                            :

        Plaintiff-Appellee,               :      Case No. 19CA3681

        vs.                               :

PHILIP L. MCNICHOLS,                      :      DECISION AND JUDGMENT ENTRY

        Defendant-Appellee.               :

_________________________________________________________________

                                              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.
_________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 4-24-20
ABELE, J.

        {¶ 1} This is an appeal from a Ross County Common Pleas Court judgment. After the

trial court found Philip L. McNichols, defendant below and appellant herein, not guilty of assault

by reason of insanity, the court determined that appellant is a mentally ill person subject to court

order and placed appellant on conditional release.

        {¶ 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 R.C. 2903.13. Appellant later entered a plea of not guilty
19CA3681                                                                                                         2

by reason of insanity and asserted that the assault occurred during a psychotic episode that he

experienced after he received drugs for a medical condition. In particular, appellant alleged that

the drugs he received caused him to hallucinate, and that his hallucination caused him to attack a

police officer.1

           {¶ 4} On February 21, 2019, the trial court found appellant not guilty by reason of

insanity and ordered an evaluation to determine whether clear and convincing evidence exists to

show that appellant is (1) a mentally ill person subject to court order, or (2) is a person with an

intellectual disability subject to court ordered institutionalization.

           {¶ 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


           1
           We observe that the parties’ briefs include additional facts obtained from various exhibits that were
apparently admitted during the court proceeding to determine whether the court should find appellant not guilty by
reason of insanity. None of those exhibits have been transmitted as part of the appellate record, however. Instead,
the only exhibit contained in the record before us is the forensic evaluation admitted during the dispositional
proceeding.
19CA3681                                                                                          3

“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 R.C.

5122.01(B)(4) appellant qualifies as an mentally ill person subject to court order. The state

argued that the forensic report notes that appellant “has a long history of abusing mood altering

substances” and that appellant “reported a long history of panic attacks, mood swings[, and]

period[s] of darkness in which he would use alcohol and other drugs.” The state alleged that

until the recent episode, appellant failed to effectively treat his disorder and undermined

treatment because he continued to abuse alcohol or drugs. The state additionally claimed that

appellant will benefit from continued monitoring.

           {¶ 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.”
19CA3681                                                                                                4

           {¶ 8} The trial court further observed that appellant “has an extensive history of using

methamphetamine and cocaine, and abusing them.” Thus, the court (1) found appellant to be a

mentally ill person subject to court order; (2) ordered appellant to continue mental health

counseling; and (3) placed appellant on conditional release status within the community. This

appeal followed.

           {¶ 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
19CA3681                                                                                             5

the evidence only in the “‘exceptional case in which the evidence weighs heavily against the

[decision].’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, 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,
19CA3681                                                                                                              6

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} R.C. 2945.40(A) sets forth the procedure that a trial court must follow after it finds

a person not guilty by reason of insanity.2 The statute requires the court to “conduct a full

hearing to determine whether the person is a mentally ill person subject to court order or a person

with an intellectual disability subject to institutionalization by court order.” If the court does not

find “clear and convincing evidence that the person is a mentally ill person subject to court order

or a person with an intellectual disability subject to institutionalization by court order, the court

shall discharge the person * * *.” R.C. 2945.40(E). If, however, “the court finds by clear and

convincing evidence that the person is a mentally ill person subject to court order, the court shall

commit the person either to the department of mental health and addiction services for treatment

in a hospital, facility, or agency as determined clinically appropriate by the department of mental


           2
               R.C. 2901.01(A)(14) explains when a person is not guilty by reason of insanity:

                      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.
19CA3681                                                                                           7

health and addiction services or to another medical or psychiatric facility, as appropriate.” R.C.

2945.40(F).

           {¶ 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. The clear-and-convincing standard

requires a higher degree of proof than “a preponderance of the evidence,” but less than “evidence

beyond a reasonable doubt.” State v. Ingram, 82 Ohio App.3d 341, 346, 612 N.E.2d 454 (1992).

“Where the proof required 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.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990).

           {¶ 14} As relevant in the case at bar, R.C. 5122.01(B)(4) defines a “[m]entally ill person

subject to court order” as follows:

           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 R.C. 5122.01(A) defines “mental illness” as “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.” See State v.
19CA3681                                                                                                            8

Decker, 10th Dist. Franklin No. 16AP-684, 2017-Ohio-4266, 2017 WL 2555360, ¶ 26 (explaining

that a court that is construing R.C. 5122.01(B) “must abide by the plain meaning of the definition

of mental illness as set forth in R.C. 5122.01(A)”).

           {¶ 15} Consequently, in order to subject a person to a court order under R.C.

5122.02(B)(4), the state must establish, by clear and convincing evidence, all of the following:

(1) the person is mentally ill; (2) the person would benefit from treatment for the person’s mental

illness; (3) the person needs treatment; and (4) the person manifests behavior that creates a grave

and imminent risk to substantial rights of others or the person. A prerequisite finding, therefore,

is that the person has a mental illness as defined in R.C. 5122.01(A). See generally State v.

Welch, 125 Ohio App.3d 49, 53, 707 N.E.2d 1133 (11th Dist.1997) (outlining essential elements

state must prove in order to involuntarily commit a mentally ill person and holding that state

must prove person suffers from mental illness as defined in R.C. 5122.01(A)).

           {¶ 16} In 1984, the Ohio Supreme Court interpreted the former version of R.C.

5122.01(B)3 to mean that, before the state could involuntarily hospitalize a mentally ill person,


           3
               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 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.
19CA3681                                                                                                                  9

the state must establish that the person “represent[s] a substantial risk of physical harm to himself

or other members of society at the time of the commitment hearing.” In re Burton, 11 Ohio

St.3d 147, 149, 464 N.E.2d 530 (1984). At the time of the Burton decision, R.C. 5122.01(B)

used the phrase “mentally ill person subject to hospitalization.”                           In 2014, the legislature

amended the statute to read “mentally ill person subject to court order.” 2014 Ohio Laws File

131 (Am. Sub. S.B. 43). Additionally, when the court decided Burton, R.C. 5122.01(B)(5) had

not yet been enacted.4 In all other respects, the present-day version of the statute is similar to the

statute that the Burton court reviewed.                    Thus, although the present-day version of R.C.

5122.01(B) uses “mentally ill person subject to court order,” we nevertheless find Burton



Burton, 11 Ohio St.3d at 149, quoting former R.C. 5122.01(B).

           4
               R.C. 5122.01(B)(5) states that a mentally ill person subject to court order means a mentally ill person
who:

                     (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 5122.111 of the Revised Code, the lack of
                     compliance has been a significant factor in necessitating hospitalization in a hospital or receipt of
                     services in a forensic or other mental health unit of a correctional facility, provided that the
                     thirty-six-month period shall be extended by the length of any hospitalization or incarceration of
                     the person that occurred within the thirty-six-month period.
                     (II) Within the forty-eight months prior to the filing of an affidavit seeking court-ordered treatment
                     of the person under section 5122.111 of the Revised Code, the lack of compliance resulted in one
                     or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious
                     physical harm to self or others, provided that the forty-eight-month period shall be extended by the
                     length of any hospitalization or incarceration of the person that occurred within the
                     forty-eight-month period.
                     (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.
19CA3681                                                                                           10

instructive. We also point out that other courts have continued to rely upon Burton despite the

change in language. E.g., In re C.J., 12th Dist. Butler No. CA2019-01-013, 2019-Ohio-4403,

2019 WL 5543079, ¶ 19; In re R.T., 10th Dist. Franklin No. 17AP-288, 2019-Ohio-618, 2019

WL 852110, ¶ 13; State v. Rohrer, 4th Dist. No. 14CA3471, 2015-Ohio-5333, 54 N.E.3d 654,

2015 WL 9305562, ¶ 60.

           {¶ 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
19CA3681                                                                                          11

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 R.C. 5122.01(A). Additionally, a forensic review team “noted that [the defendant]

had not demonstrated symptoms of a substantial disorder of thought, mood, perception,

orientation, or memory.” We determined that the evidence failed to show that the defendant’s

“substance abuse and antisocial personality disorders * * * meet the statutory definition of mental

illness.” We concluded: “Disregarding all of the medical testimony that a person is no longer

mentally ill in favor of evidence of past heinous acts, and concluding that the person is mentally
19CA3681                                                                                            12

ill, does not meet the statutory standards for commitment.” Id. at *2. We thus reversed the trial

court’s judgment that found the defendant to be a mentally ill person subject to hospitalization.

           {¶ 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

defendant’s substance abuse disorder or antisocial personality disorder constituted a mental

illness as defined in R.C. 5122.01(A). The court noted that expert witnesses testified that the

defendant did not experience any hallucinations and had not shown any signs of the same

psychosis that caused him to stab the teenage boy nearly ten years earlier. The court also

determined that the defendant’s “persistent” substance abuse disorder was not so severe as to

constitute a substantial disorder of thought within the meaning of R.C. 5122.01(A). The court

recognized the expert witnesses’ concerns that the defendant may not seek adequate treatment for

his problems if released from confinement, but concluded that “continuing to confine a person

suffering from an antisocial personality disorder who does not meet the statutory definition of

mental illness on the ground that he may be dangerous violates due process. Should [the

defendant] abuse alcohol, traffic in marijuana, or commit an assault or other violent crime when
19CA3681                                                                                      13

released, it will be a matter for law enforcement officials, not the mental health community.” Id.

at 59 (citations omitted). The court thus reversed the trial court’s judgment that granted the

state’s request for continued commitment.

           {¶ 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 R.C. 5122.01(A) and that the defendant was a mentally ill

person subject to court order. The court concluded that the state presented adequate clear and

convincing evidence to establish that the defendant was “a mentally ill person, who, because of

his illness, would benefit from treatment and is in need of such treatment as manifested by

evidence of behavior that creates a grave and imminent risk to substantial rights of himself or

others.” Id. at ¶ 20. In reaching its conclusion, the court observed that the medical expert

testified that the defendant’s “depression was a substantial disorder of mood which impaired his

judgment and behavior.” Id. at ¶ 21. Additionally, the court found that the evidence showed

that the defendant “has a substantial mental disorder which grossly impairs his judgment,

behavior, capacity to recognize reality, or ability to meet the ordinary demands of life.” Id. The

court noted that, at the time of the hearing, the defendant had been “experiencing a significant

amount of stress” and had “difficulty sleeping and attending to his basic care.” Id. The court

also found that the defendant’s behaviors illustrated his need for treatment.          The court

determined that the defendant’s conduct created a grave and imminent risk that he would be

unable to manage the stressors in his life such as his pending divorce and custody matters. The

court concluded that the defendant’s “inability to manage the symptoms of his depression would

have only continued without intervention.” Id. at ¶ 24. We also note that the court recognized
19CA3681                                                                                          14

that the facts presented a close case. Id. The court, however, deferred to the trial court’s

assessment of the defendant’s condition and his need for treatment. Id.

           {¶ 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 R.C. 5122.01(B).

Id. at ¶ 16. The court noted that the defendant’s “own report of the offense that led to these

proceedings was that he had become delusional under the influence of drugs and alcohol” and

that one expert “opined that appellant could ‘easily relapse into a psychotic or mood disorder’ if

he returned to taking drugs.” Id. The court further pointed out that “whenever [the defendant]

is exposed to the least permissive atmosphere, he returns to drugs” and “he minimizes his

problem, suggesting little insight and a ‘high risk * * * of relapse.’” Id. We also recognize that

other courts have upheld involuntary commitments under R.C. 5122.01(B)(4) when the

individual’s mental illness resulted in paranoia, an inability to gain insight into her illness, and a

“rapid emotional escalation when her paranoid beliefs were challenged,” In re Mental Illness of

Vass, 9th Dist. Summit No. 19270, 2000 WL 327221, *4, or when the mental illness caused the

individual to have a “clear inability to deal with reality, to interact with others, and to meet with

ordinary aspects of life such as caring for his basic needs.” In re Kuehne, 12th Dist. Butler No.

CA98-09-192, 1999 WL 527755, *8.

           {¶ 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
19CA3681                                                                                         15

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 R.C. 5122.01(A). Although Dr.

Hrinko diagnosed appellant with major depressive disorder and substance abuse disorder, Dr.

Hrinko’s report does not indicate that either disorder causes appellant to experience “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.” Rather, Dr. Hrinko stated that appellant has an “enduring mental health diagnosis * * * of

Major Depressive Disorder with no evidence of psychotic features and a substance abuse

disorder which is the result of his extensive history of abusing mood altering substances over

many years.” It does not appear that Dr. Hrinko stated that appellant has a mental illness as

defined in R.C. 5122.01(A).         Dr. Hrinko also reported that the notes from appellant’s

“psychiatric appointments indicate that he continues to use his medications appropriately and that

they are effective. It is reported his symptoms of anxiety are well controlled as is his depression.

 It was determined he no longer needed psychiatric services and that he should continue his

mental health counseling while relying on his primary care physician for his antidepressant

medications.” Dr. Hrinko thus concluded that appellant is not mentally ill and not subject to

hospitalization.

           {¶ 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
19CA3681                                                                                            16

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 to hospitalization. Instead,

the court stated, the statute requires a court to find that a person is a mentally ill person subject to

court order.

           {¶ 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 R.C. 5122.01(A). Instead, the

court’s language suggests that appellant’s mental health diagnosis of major depressive disorder

automatically establishes that he suffers from a mental illness as defined in R.C. 5122.01(A).

Moreover, it appears that the trial court did not indicate that either of appellant’s mental health

diagnoses (major depressive disorder or substance abuse disorder) shows that appellant has a

“substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs

[his] judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of

life.” R.C. 5122.01(A). Additionally, we have found nothing in the record submitted on appeal
19CA3681                                                                                      17

to suggest that either of appellant’s mental health diagnoses satisfies the R.C. 5122.01(A)

definition of mental illness.

           {¶ 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 R.C. 5122.01(A), and thus, whether appellant is a

mentally ill person subject to court order under R.C. 5122.01(B)(4). We caution, however, that

our opinion should not be construed as a comment on the merits of the issue. Instead, the

purpose of our remand is to allow the trial court to evaluate whether the evidence supports a

finding that appellant suffers from a mental illness as defined in R.C. 5122.01(A). We also

again note that the parties apparently submitted additional evidence during the proceeding to

determine appellant’s criminal culpability for the assault, but none of that evidence has been

transmitted to this court on appeal. On remand, the trial court may consider all evidence when it

determines whether appellant has a mental illness as defined in R.C. 5122.01(A).

           {¶ 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.
19CA3681                                                                                       18


                                        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
19CA3681                                                                                   19


                                  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.
