I do not agree that this case should be affirmed. As in George v. State, 80 Ark. App. 185, 92 S.W.3d 692 (2002), a companion case that we are also handing down today, the trial court in this case found, contrary to the opinion given by the State’s witness, Dr. O. Wendell Hall, III, Forensic Medical Director for the Department of Human Services, that Edward Lee Bailey was not entitled to an unconditional release from commitment pursuant to Ark. Code Ann. § 5-2-315 (Repl. 1997). Unlike in George, Bailey had the burden of proving by clear and convincing evidence that “his release would not create a substantial risk of bodily injury to another person or serious damage to property of another person due to a present mental disease or defect,” pursuant to Ark. Code Ann. § 5-2-314(e) (Repl. 1997). This is because his judgment of acquittal because of mental disease or defect recited that his offense involved “bodily injury to another person or serious damage to the property of another or involved a substantial risk of such injury or damage,” as provided in Ark. Code Ann. § 5-2-314(a)(1) (Repl. 1997).
However, there is simply nothing in the record before us that supports a finding that Bailey would pose such a threat. The record consists of testimony about the details of his offense to the effect that he had been found looking through items in a car that had been left unlocked; Dr. Hall’s firmly stated opinion that he should be released unconditionally; a favorable letter from his employer, Doctors Plaza, confirming that he had worked for them part-time for over a year as a security guard patrolling parking lots and escorting employees and patients safely to their cars in the evenings; and the testimony of two additional State witnesses and Bailey.
During Dr. Hall’s direct testimony, and prior to his cross-examination that elicited additional testimony favorable to Bailey, the trial court interjected, “Oh, no. Yeah. I’m not talking about releasing him outright. Is that what you are recommending?” When Dr. Hall answered in the affirmative, the trial court said flatly, “I’m not going to do that.” This colloquy transpired before the testimony of the two additional State witnesses, neither of whom testified adversely to Bailey, and prior to Bailey’s testimony on his own behalf. Indeed, Dr. Hall testified that Bailey had been diligent about taking his medication, was now convinced that he needed it, and could be safely released, and that he was not aware of any trouble Bailey had since his release from Baptist Hospital after he was admitted nearly a year prior to the hearing in this case. Upon questioning by the trial court, Dr. Hall did state that “I’m not trying to predict that if he had another psychotic episode that he wouldn’t pose a problem,” a statement that in no way qualifies or lessens his testimony that, in his opinion, Bailey should be unconditionally released. In short, it is clear that the trial court determined that Bailey would not be unconditionally released based on the court’s own predilections and not on the evidence presented, and its decision is thus clearly erroneous.
Robbins, J., joins.