COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73226 OLMSTED TOWNSHIP : ACCELERATED DOCKET : Plaintiff-Appellee : JOURNAL ENTRY : v. : AND : JOSEPH P. SARLI : OPINION : Defendant-Appellant : PER CURIAM : DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Berea Municipal Court, Case No. 96-CRB-1297-01 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: Plaintiff-Appellee: Defendant-Appellant: GREGORY M. SPONSELLER DOMINIC J. VANNUCCI Director of Law 22649 Lorain Road 43 East Bridge Street Fairview Park, Ohio 44126 Suite 101 Berea, Ohio 44017 DEAN E. DePIERO Assistant Prosecutor for Olmsted Twp. City of Berea 11 Berea Commons Berea, Ohio 44017 PER CURIAM: This cause came to be heard upon the accelerated calendar of our court, pursuant to App.R. 11.1 and Loc.App.R. 25. The record here reveals that Joseph P. Sarli appeals from a bench trial judgment of the Berea Municipal Court finding him guilty of menacing, alleging the trial court erred when it considered his affirmative defense of insanity. For the following reasons, we reverse his conviction and remand the case for a new trial. During November, 1996, Joseph P. Sarli initiated several conversations with Debra Ann Joyce as she rode her horse through the Cleveland Metroparks in Olmsted Township, Ohio. Subsequent to these encounters, he began following her into the private residential barn on Lewis Road in Olmsted Township where she stabled her horse, told her that he loved her, wanted to marry her, and offered to buy her a car. He also began sending three or four letters per day to the owner of the barn, Jenny Manning, requesting that she forward them to Joyce. These letters contained graphic sexual commentary and occasional threats. Joyce became fearful for her safety, filed a complaint with the Olmsted Township Police Department, and began to have a male friend accompany her when she rode her horse in the Metroparks. Sarli, observing Joyce's male companion, then stood outside the barn where he yelled at her for being with another man, and afterwards began telephoning her boss, at the Panorama Restaurant in Westlake, and threatening rape. Based on Joyce's police report, Olmsted Township Detective Donald Olson went to Sarli's home and told him to stop writing letters to Joyce and to stop calling her employer. When Sarli persisted, Olson filed a complaint against him in the Berea Municipal Court for menacing by stalking, in violation of R.C. 2903.21.1. Sarli pled not guilty by reason of insanity, and the court conducted a bench trial where Dr. Abu Nasir Syed, a psychiatrist, testified to a reasonable degree of psychiatric certainty that he thought Sarli suffered from bipolar disorder and could not distinguish between right and wrong at the time he committed the offenses. At the conclusion of trial, the court found Sarli guilty of menacing and stated in its entry: Defendant's proffered defense of insanity is rejected. Manic depression, which exists in this Defendant, was not proved beyond a reasonable doubt by Defendant to have been so severe as to cause him at the time of the incident not to know the wrongfullness [sic] of his acts. The court then sentenced Sarli to sixteen days in jail, a $350 fine, and two years probation. Sarli now appeals and raises one assignment of error for our consideration. It states: THE COURT COMMITTED PLAIN ERROR BY HOLDING THAT THE DEFENDANT MUST PROVE THE AFFIRMATIVE DEFENSE OF INSANITY BEYOND A REASONABLE DOUBT RATHER THAN BY A PREPONDERANCE OF THE EVIDENCE. Stated succinctly, Sarli contends the court applied an incorrect burden of proof standard to his affirmative defense of insanity. Appellee agrees with Sarli that the correct burden of proof for the affirmative defense of insanity is by a preponderance of evidence, but argues that Sarli failed to present sufficient evidence to establish the defense of insanity. The issue then presented for our consideration is whether the trial court applied the correct burden of proof when it considered the affirmative defense of insanity in this case. We begin by reviewing R.C. 2901.01(A)(14), which provides: 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. (Emphasis added). R.C. 2901.05(A) provides in part that the burden of going forward with evidence of an affirmative defense such as insanity and the burden of proof by a preponderance of the evidence is upon the accused. This is confirmed in State v. Brown (1983), 5 Ohio St.3d 133 where the court in its per curiam opinion stated at 134: The plea of not guilty by reason of insanity is an affirmative defense, State v. Humphries (1977), 51 Ohio St.2d 95 [5 O.O.3d 89], paragraph one of the syllabus, which must be proved by a preponderance of the evidence, R.C. 2901.05(A). Further, in State v. Hauser (1920), 101 Ohio St. 404, the court stated in its syllabus: 1. In the trial of a criminal case where the defense of insanity is made, a charge of the court which places upon the accused in the making of such defense a greater burden than the furnishing of a preponderance of evidence is erroneous. (Bond v. State, 23 Ohio St., 349; Bergin v. State, 31 Ohio St., 111; Kelch v. State, 55 Ohio St., 146; State v. Austin, 71 Ohio St., 317, in this respect approved and followed.) Applying this law to the facts of this case, we note that the record reflects application of an incorrect burden of proof to the testimony of Dr. Syed, who testified that he thought Sarli suffered from a mental disorder and could not distinguish between right and wrong at the time of the offenses. Accordingly, we vacate the judgment of conviction and remand the matter to the court for a new trial. Judgment reversed and cause remanded. -6- It is ordered that appellant(s) recover of appellee(s) costs herein taxed. It is ordered that a special mandate issue out of this Court directing the Berea Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE JAMES D. SWEENEY, 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 .