COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69741 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION IVORY JOHNSON : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 17, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-262037 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DANIEL SCULLY, ESQ. CUYAHOGA COUNTY PROSECUTOR ASST. PUBLIC DEFENDER BY: EDWARD M. WALSH, ESQ. 100 Lakeside Place ASSISTANT COUNTY PROSECUTOR 1200 West Third Street The Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant Ivory Johnson appeals from the trial court's denial of his motion for expanded off-grounds privileges. For the reasons set forth below, we affirm. On January 18, 1991, defendant was indicted for aggravated murder in connection with the death of his wife. Defendant entered a plea of not guilty by reason of insanity. On May 2, 1991, the trial court found defendant not guilty by reason of insanity. Following further proceedings pursuant to R.C. 2945.40, the court also found that defendant is mentally ill, and ordered him hos- pitalized at Dayton Mental Health Center. Subsequent to defendant's initial placement, the court determined that the least restrictive treatment setting is Western Reserve Psychiatric Hospital and it transferred him to that institution on July 24, 1992. In September 1993, the court held additional hearings on the issue of defendant's continued commitment and found that defendant receives injectable medication and is closely monitored. The court then held that Johnson was "permitted to go on occasional (one per month, maximum) off-ground privileges if and only if he is supervised one to one by staff at all times while off grounds so that the public's safety is protected." At the subsequent review in July 1994, the court authorized defendant to have "limited pass privileges" unsupervised by hospital staff, for twelve hour periods upon prior medical approval. - 3 - In connection with the instant appeal, Otto Kausch, M.D., Chief of Forensic Services at Western Reserve Psychiatric Hospital sought to extend the off-ground privileges, unsupervised by hos- pital staff, to include overnight visits then gradually provide for weekend visits at his mother's residence. The trial court held a hearing on this matter pursuant to R.C. 2945.40(F) on August 8, 1995. The parties stipulated to the admission of Western Reserve's court evaluation prepared by Blanche Dortch, Ph.D., a staff psychologist and Byoung Choh, M.D., a treating physician, and Panel Review prepared by Sally Felker, Ph.D., a staff psychologist, and Sonya McKee, M.D., a Forensic Fellow. In addition, Dr. Dortch testified for the court as did Andrea Lavean, case manager for Neighborhood Counselling service, and defendant's mother, Mrs. Anna May Stubbs. The court evaluation stated in relevant part as follows: Throughout his hospitalization, his psychotic symptoms have remained in remission. He has been compliant with mediation. His current psychotropic medication is Haldol Decanoate 75 mg. I.M. q 4 weeks. Mr. Johnson has cooperated with his treatment plan. On occasion Mr. Johnson has become angry with staff regarding unit rules/policies, but once these issues have been addressed with him in treatment team, the problems have been resolved. Mr. Johnson also violated hospital rules regarding smoking in his room and having female peers in his room a couple of months ago. Again, this problem was resolved when addressed by the treatment team. There have been no instances of violence, no AWOL attempts, no instances of prn medication, and no use of seclusion/restraints since his last court evaluation in June 1994. Mr. Johnson has continually had negative urine samples since his admission to WRPH. This includes urine - 4 - samples given upon his return from home passes with his family. Mr. Johnson began home passes with his Mom on 9/10/94 for four hours. Thereafter, he was granted an additional two hours of time each pass up to a maximum of twelve hours. All reports from his mother indicate the passes have gone well and that he primarily spends the time socializing with various family members. Mr. Johnson is a crew leader with the Feeder Janitorial Program (12 1/2 hours/week). He is described as an excellent employee. His privileges consist of access to all unrestricted areas of the hospital, off- ground passes with staff supervision and home passes. He has handled his passes responsibly. He participates in the SAMI programming, the Forensic Group and other on and off unit programming. CURRENT MENTAL STATUS: Mr. Johnson is well groomed with good hygiene. He is oriented to all three spheres. His memory is intact for recent and remote events. There is no evidence of any thought disorder. He denies experiencing any hallu- cinations or delusions. He possesses some insight into his need for continued medication regarding the nature of his illness. He acknowledges that the medication may be the reason his symptoms have remitted, but he is not totally convinced the medication is needed now. He does maintain, however, he will continue taking his medicine as long as it is prescribed. His speech is coherent and logical. It is further our opinion that Mr. Ivory Johnson would benefit from increased privileges at this time. His current privileges consist of home passes up to a maximum of twelve hours. The treatment team has met and discussed Mr. Johnson's hospital course, and it is our recommendation that Mr. Johnson's privileges be expanded to include home passes for overnights, weekends and holidays. We would begin with one overnight pass and progressively increase them. Mr. Johnson would submit urine samples upon return from passes. He would be searched for contraband upon his return. Mr. Johnson has a brother hospitalized at WRPH. His brother is also being considered for day passes, but their passes would not be concurrent at this time. - 5 - The panel report stated in relevant part as follows: The patient does not exhibit signs of active mental illness. He has been fully cooperative with treatment including the long-acting medication which controls his mental illness effectively. He is active in programs at the hospital, he works productively and has had no problems managing his day passes into the community. The patient has had no incidents of aggressive acting out since his admission. He has no history of AWOL attempts. He has complied with all treatment and has achieved a stable condition which should allow him to have an increased level of privilege. Dr. Dortch testified that she sees defendant in therapy sessions twice per month. With regard to the expansion of off- ground privileges, she stated that defendant has behaved appro- priately within the hospital and that in her opinion defendant would manage himself appropriately during the extended visits. She also reiterated that it would not be possible for defendant to refrain from taking his medication without the knowledge of the staff and that defendant's symptoms are in remission. On cross-examination, Dr. Dortch stated that she has never been to the location of the proposed visits, she did not know with whom defendant would socialize, and she did not know if defendant would have access to a vehicle. In addition, she had no first- hand knowledge of whether defendant would have access to illicit drugs or alcohol. Mrs. Stubbs testified that she has another son who is also hospitalized at Western Reserve. He had been permitted to visit her on day passes, but those visits were suspended after he brought alcohol to her residence. She further stated that she would like - 6 - for defendant to be permitted to stay overnight, that defendant understands that she is in charge, and that she would call Western Reserve or dial 911 in the event of a problem. On cross-examination, she stated that personnel at Western Reserve learned of the alcohol incident involving her other son before she did. Further, Mrs. Stubbs acknowledged that prior to defendant's indictment, he indicated that he thought people were following him, but she did not know that anything was wrong with him at this time. Andrea Lavean testified that she has supervised defendant in previous off-grounds outings and he has done well. Overnight visitation, without staff supervision, is the next progression in defendant's treatment. She acknowledged, however, that it would be important to know with whom he was socializing at this time, but this information would not be provided. The trial court subsequently denied the motion and expressed the following concerns: THE COURT: Did it concern you when Mrs. Stubbs testified that here she is the woman who this man is being placed into her custody and she didn't know if there was anything wrong with him back in December of 1990 when he did his wife in? She didn't appreciate there was something wrong with him when he was suffering from this religiosity, overplay or religion, preaching? * * * THE COURT: * * * The Court has concerns over a number of issues here that there has been some discipli- nary problem, the original nature of the offense for which he was found not guilty by reason of insanity. The limited ability to supervise and the reliance on - 7 - the mother, who seems like a very fine woman, but very advanced in her years. And physically incapable of handling this individual if something did arise. * * * For the most part he has taken his medication quite willingly apparently from his reports, and recognizes the need to do so. And continues to do so, although there are, I know, from the record there is some reluctance. * * * Now, this Court has a responsibility somewhat dif- ferent then the hospital, and I would like to note at this time and congratulate all the doctors involved here including Dr. Dortch who testified, and Ms. Lavean, the case manager of this Conditional Release program for all the hard work they are doing * * *. The Court, however, in this case must consider the safety of the community. Now, I see less than five years has taken place since this heinous act, and this very dangerous individual on that date anyhow, took place. The possibility of an AWOL situation or temper flare up and subsequent eradication of the mediation effect is possible here. Now, this isn't someone with an underlying minor offense such as burglarizing or stealing or vandalizing property, or some of the other things. This is an individual who found it necessary when he is under this mental illness which apparently he hasn't fully accepted since there is still some reluctance on the medication, to accept the continued need for medication. This is an individual who has more potential of a blow out and is a potential danger to the community and other patients. The Court in considering the safety of the community and wanting to avoid the possibility of a future victim is going to deny the request for further expansion of the privileges and restrict them to those that were already given. That's as far as this Court is able to go at this time. (Tr. 56-59). Defendant now appeals, assigning a single error for our review. - 8 - Defendant's assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING RESPON- DENT, A MENTALLY ILL PERSON SUBJECT TO HOSPITALIZATION, EXPANDED OF GROUND PRIVILEGES WHEN ALL PERSONNEL RESPON- SIBLE FOR HIS TREATMENT CONCUR THAT SUCH PRIVILEGES ARE WARRANTED AS PART OF THE LEAST RESTRICTIVE TREATMENT ALTERNATIVE CONSISTENT WITH PUBLIC SAFETY AND THE RESPONDENT'S WELFARE. Defendant maintains that his mental illness is in remission, due to monthly injections of anti-psychotic medication, and that medical evidence submitted to the court supports the granting of the extended off-grounds privileges. With regard to defendant's contention that he is in remission, it is undisputed in the record that defendant must continue to take antipsychotic medication in the future in order for the remission of symptoms to continue and Dr. Dortch, who testified on his behalf, acknowledged that defendant is presently mentally ill. (Tr. 19) Indeed, there has been no evidence to suggest that he no longer presents the risk of harm to himself or others, cf. In re Burton (1984), 11 Ohio St.3d 147, syllabus, and he is still subject to court ordered hospitalization. State v. Traywick (1991), 72 Ohio App.3d 674, 681. In any event, it is the denial of expanded off-grounds privileges which is the only issue presented for our review. Accord State v. Dixon (May 13, 1993), Cuyahoga App. No. 64362, unreported. As to defendant's challenge to the denial of expanded off- grounds privileges, we note that in State v. Johnson (1987), 32 Ohio St.3d 109, syllabus, the court held as follows: - 9 - Where the sole determination to be made is whether an insanity acquitee, already established as being a mentally ill person subject to hospitalization by court order, should be transferred to a less restrictive treatment setting, no party has the burden of proof. Rather, the parties have a duty to present relevant, competent evidence to aid the court in its determination of whether the proposed less restrictive treatment alternative is appropriate considering the treatment needs of the person and the safety of the public. The determination of whether the person should be transferred from his current commitment setting to a less restrictive placement is within the sound discretion of the trial court. The Johnson Court explained: We hereby reject the clear and convincing standard of proof in cases such as this one ***. That the appellant is mentally ill person subject to involuntary hospitalization has already been established under that stringent standard and is not being disputed at this time. Thus, the fact that appellant continues to require confinement is not an issue. The question here is whether appellant should be transferred to a less restrictive commitment setting. In resolving this question with regard to an insanity acquitee, the court must consider both the welfare of the patient and public safety. Where a restrictive treatment setting has already been determined to be necessary, we are not inclined to require the state to prove by clear and convincing evidence that the current restrictive placement is still necessary. Given the considerations of public safety involved, we deem it appropriate to allow the trial court to exercise its sound discretion in making its determination, aided by the evidence presented by the parties. Hence any determination made by the trial court will not be disturbed absent a showing of abuse of discretion. Id., at 112-113. Accord State v. Lanzy (1991), 58 Ohio St.3d 154, syllabus ("*** the determination that a transfer is warranted and the conditions placed thereon are within the sound discretion of the trial court.") It is also well-settled that the term abuse of discretion - 10 - "`implies not merely error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency.'" State v. Johnson, supra, citing State ex rel. Commercial Lovelace Motor Freight, Inc. v. Lancaster (1986), 22 Ohio St.3d 191, 193. In applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 137-138. Applying the foregoing, we note that the evidence did demon- strate in connection with the established daytime visits that defendant has not tested positive for illicit drug use, and no evidence was introduced which would indicate that a problem has resulted. Nonetheless, it is clear from the record that no conditions have been imposed to provide the Treatment Team with beneficial information concerning the specific details of defendant's visits. More importantly, no procedures have been implemented to help Mrs. Stubbs detect subtle signals or overt manifestations of decompensation. Thus, while defendant is apparently responding well to treatment, the proposed visits involve some degree of complete freedom and periods where there will be effectively no supervision. We therefore fully credit the trial court's conclusion that the extended visitation should be denied. Moreover, there is absolutely no evidence that the trial court acted out of perversity of will, passion, prejudice, partiality or moral delinquency. - 11 - Defendant maintains, however, that State v. Dixon, supra, is "almost factually identical to the one at bar," Appellant's Brief at 17, and in that matter, the court unanimously held that the trial court abused its discretion in denying the defendant's request for conditional release. In Dixon, however, the record demonstrated that the defendant had "been absolutely compliant with his treatment regimen and has not shown any indication that he would not comply with the regimen on conditional release." Id., at 9. In addition, the matter was remanded "for further proceedings to determine appropriate conditions for the release of Dixon," and in this matter, the Treatment Team has required "urine samples upon return from passes," but has not imposed any other true conditions to ensure defendant's welfare or the public safety. We therefore do not find Dixon persuasive herein. Affirmed. - 12 - It is ordered that appellee recover of appellant its 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 Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SWEENEY, P.J., AND O'DONNELL, J., CONCUR. ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .