State v. Stutler

[Cite as State v. Stutler, 2022-Ohio-3838.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
JEREMY STUTLER : Case No. 2020 CA 00022
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2011CR1169

JUDGMENT: Reversed

DATE OF JUDGMENT: October 27, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KATHLEEN O. TATARSKY MICHAEL A. PARTLOW
110 Central Plaza South 112 South Water Street
Suite 510 Suite C
Canton, OH 44702-1413 Kent, OH 44240
Wise, Earle, J.

{¶ 1} This matter is before this court on remand from the Supreme Court of Ohio

which reversed our decision in State v. Stutler, 5th Dist. Stark No. 2020 CA 00022, 2021-

Ohio-481 (hereinafter "Stutler III"). The Supreme Court has directed us "to consider

whether the state met its burden of proof under R.C. 2945.401(G) and therefore whether

the trial court's decision denying the recommended change in Stutler's commitment

conditions should be affirmed or reversed."

FACTS AND PROCEDURAL HISTORY

{¶ 2} In 2011, Defendant-Appellant, Jeremy Stutler, was charged with murder,

tampering with evidence, and gross abuse of a corpse, and found not guilty by reason of

insanity. He was committed to Twin Valley Behavioral Healthcare, a maximum security

mental health facility. In January 2014, appellant was transferred to Northcoast

Behavioral Healthcare. He was granted Level III movement to participate in Level III

activities and the less restrictive Level IV movement for medical treatment.

{¶ 3} On February 2, 2015, Joy Stankowski, M.D., the Chief Clinical Officer of

Northcoast Behavioral Healthcare, requested that appellant be granted Level IV

movement for community trips with staff or case manager supervision. A second opinion

found the request reasonable albeit with numerous conditions. Following a hearing, the

trial court denied the request. This court affirmed the decision, holding "a trial court

retains discretion to deny a request for increased privileges even if the evidence in

opposition to the requested modification presented by the state does not rise to the level

of clear and convincing evidence." State v. Stutler, 5th Dist. Stark No. 2015CA00099,

2015-Ohio-5518, ¶ 13, appeal not accepted, 145 Ohio St.3d 1470, 2016-Ohio-3028

(Stutler I).
 {¶ 4} On January 27, 2017, Dr. Stankowski again requested that appellant be

moved to Level IV for community privileges. The request was accompanied by a

recommendation from a medical doctor. Again, a second opinion found the request

reasonable contingent upon several conditions. Following a hearing, the trial court denied

the request. This court affirmed the decision, holding "[w]e see no reason to alter our

finding in this case and continue to hold that the trial court retains its discretion even if the

prosecutor opposes the change and does not provide clear and convincing evidence of a

threat to public safety or a person." State v. Stutler, 5th Dist. Stark No. 2017CA00094,

2018-Ohio-1619, ¶ 13, appeal not accepted, 153 Ohio St.3d 1467, 2018-Ohio-3450

(Stutler II).

{¶ 5} On September 26, 2019, Dr. Stankowski again requested that appellant be

granted movement to Level IV with GPS electronic monitoring for community privileges.

A hearing was held on December 12, 2019. By judgment entry filed December 26, 2019,

the trial court denied the request. This court affirmed the decision, following the standard

of review set forth in Stutler I and II. State v. Stutler, 5th Dist. Stark No. 2020 CA 00022,

2021-Ohio-481 (Stutler III).

{¶ 6} Appellant appealed to the Supreme Court of Ohio. In State v. Stutler, 2022-

Ohio-2792, ___ N.E.3d ___, ¶ 9, the Supreme Court found our analysis used the incorrect

standard of review and held "a trial court lacks discretion to deny a request for a level

change when the state has failed to present clear and convincing evidence that the

change represents a threat to public safety or any person." The Supreme Court reversed

our judgment and remanded the matter for us "to consider whether the state met its

burden of proof under R.C. 2945.401(G) and therefore whether the trial court's decision
denying the recommended change in Stutler's commitment conditions should be affirmed

or reversed." Id. at ¶ 16.

{¶ 7} We will now review appellant's first assignment of error using the corrected

standard of review, as appellant's second assignment of error was resolved by the

Supreme Court's opinion:

I

{¶ 1} "THE TRIAL COURT'S DETERMINATION THAT APPELLANT SHOULD

BE DENIED A CHANGE TO LEVEL IV-COMMUNITY PRIVILEGES IS NOT

SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND CONSTITUTES AN

ABUSE OF THE TRIAL COURT'S DISCRETION."

II

{¶ 2} "THE TRIAL COURT HAD NO DISCRETION TO DENY THE LEVEL

CHANGE REQUESTED IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE

INDICATING THAT THE LEVEL CHANGE SHOULD NOT BE GRANTED."

I

{¶ 3} In his first assignment of error, appellant claims the trial court's decision to

deny the level change is not supported by clear and convincing evidence and therefore

constitutes an abuse of discretion. We agree.

{¶ 4} R.C. 2945.401 states the following in pertinent part:

(A) A defendant found incompetent to stand trial and committed

pursuant to section 2945.39 of the Revised Code or a person found not

guilty by reason of insanity and committed pursuant to section 2945.40 of

the Revised Code shall remain subject to the jurisdiction of the trial court
pursuant to that commitment, and to the provisions of this section, until the

final termination of the commitment as described in division (J)(1) of 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 and addiction services 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 and addiction services, 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.

{¶ 5} Clear and convincing evidence is that evidence "which will provide 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.

{¶ 6} Three individuals testified during the hearing: psychologist Michael R.

Kerschner, Ph.D., psychiatrist Jagdish Mude, M.D., and appellant.

{¶ 7} Dr. Kerschner sees appellant two times a week for group therapy and one

time per week for individual therapy which began about eight months prior to the hearing.

T. at 14, 42-43. He is not on appellant's treatment team, but serves as a psychologist on

the treatment team "when important issues come up." T. at 23. He does not participate

in treatment team meetings. T. at 43-44. He has never known appellant to participate in

violence, even when confronted with violent conduct by others. T. at 18. In fact, appellant

secured a situation to keep staff safe after a patient struck a staff member. T. at 19. Dr.

Kerschner explained how he reviewed appellant's file and the trial court's prior decisions,

and crafted a very specific plan for the level change, taking into account the trial court's

concerns. T. at 15-17. The plan was to fit appellant with a GPS device during outings,

and he would be accompanied by Dr. Kerschner and another mental health professional,

as well as another individual for security purposes. T. at 26, 28, 31. Dr. Kerschner

opined, within a reasonable degree of medical certainty, the plan would be safe for both

appellant and the general public as appellant's "risk assessment" was low. T. at 34-36.

He stated appellant was in "remission" for his bipolar disorder, understood his mental
condition with "great clarity and insight," and has expressed "profound" remorse. T. at

17, 20-21. Dr. Kerschner would characterize appellant as one of the more stable patients

at Northcoast. T. at 37. Appellant is compliant with his medications and has never

attempted to abuse alcohol or drugs while at Northcoast. T. at 24-25, 36-37, 41-42, 44.

On cross-examination, Dr. Kerschner admitted appellant suffers from bipolar disorder with

psychotic features which could reemerge. T. at 40-41. Between staying at the facility

versus being out in the community with supervision, staying at the facility would be "the

more-structured situation." T. at 41.

{¶ 8} Dr. Mude started caring for appellant in July 2018. T. at 48. He sees

appellant about once a month for 25-30 minutes. T. at 55. Appellant's diagnosis is bipolar

disorder with psychotic features. T. at 60. Dr. Mude stated appellant's medications are

"working excellent on him." T. at 48. Dr. Mude was part of the group that developed the

Level IV community plan and was in support of the plan. T. at 49. He opined appellant

"has been stable, taking his medication, and since the time I've had [him as a] patient in

the hospital, he never exhibited any aggressive behavior." T. at 50. He explained that

one time on a medical trip for a dental issue, appellant had the opportunity to run away,

but chose not to. Id. "The staff was not there for almost 45 minutes and he was alone

there. So if he wanted to, he could have run away but he never took that chance." T. at

50-51. Dr. Mude stated appellant would "comply with whatever restriction we put on him"

and "agreed to put on the ankle bracelet." T. at 51. Appellee did not cross-exam Dr.

Mude, but the trial court asked him questions. When asked if appellant's diagnosis of

bipolar disorder with psychotic features was still the same, Dr. Mude stated it was the

same, "but the symptoms are not there." T. at 60. Since July of 2018, appellant has not

exhibited any hostility and "has the capacity to keep anger in control, and he is working
almost for five years without any problem." T. at 62, 63. He admitted that future violence

could take place if appellant stopped taking his medication. T. at 63-64.

{¶ 9} Appellant testified he heard the specifics of the Level IV Community plan

and he agreed with the specifics and would not have any problem complying with

everything asked of him. T. at 67-68. He stated since 2014, he went on at least twelve

Level IV outings for medical care. T. at 69. In August 2019, he went to a dental

appointment for oral surgery. Id. He was accompanied by two staff members. Following

the surgery, he was returned to the lobby and the staff members were not present. T. at

70. An employee with the surgeon's office remained alone with him until a staff member

returned. T. at 70-71. He was not wearing any physical restraints and did not attempt to

escape. T. at 71. He understands his bipolar disorder is a lifetime disorder that has to

be managed and "deviating from that plan could cause a reoccurrence of, of my

condition." T. at 74-75. He helps out with several groups at Northcoast including

alcoholics anonymous, therapeutic community meetings, the GED program, and library

groups. T. at 76. If he could move to Level IV, he could participate in a walking therapy

group and a gardening group, both on the grounds, and participate on the patient advisory

counsel. T. at 77-78. Although he experienced personal acts of violence while at Moritz

and Northcoast, he did not engage and/or commit any acts of violence in either institution.

T. at 78-79. He was involved in three incidents of violence upon him by others, to which

he left the scene and alerted staff. T. at 79-81. On one occasion, he helped secure an

area where a staff member had been struck by another patient. T. at 80. He testified to

feeling remorse about his crime. T. at 82. Appellee did not cross-exam appellant.

{¶ 10} We note the record is devoid of any expert reports.
 {¶ 11} In its December 26, 2019 judgment entry denying appellant's movement to

Level IV for community privileges, the trial court outlined appellant's treatment from the

beginning (2012). In 2014, the same trial court approved appellant's transfer from

maximum security (Twin Valley) to Northcoast Behavioral Healthcare. In June 2014, the

trial court approved Level III movement to participate in Level III activities and the less

restrictive Level IV movement for medical treatment. The trial court also discussed the

2015 and 2017 hearings and decisions.

{¶ 12} The trial court stated one of the major issues of concern was public safety,

and noted he was disturbed about the handling of the Level IV medical outing for the oral

surgery: "[e]ven more worrisome is the previous gross negligence of the Northcoast staff

on a medical privilege visit." The trial court questioned Dr. Kerschner's working

relationship with appellant as the psychologist was not a member of appellant's treatment

team and Dr. Kerschner acknowledged the team would know the patient the best. The

trial court was troubled with the fact that Dr. Mude never reviewed any reports from 2015

or 2017 regarding appellant's history. The trial court stated the following:

As the Court has previously pronounced, one of its main roles is to

protect the public. This Court works within a very small margin of error; if

the trial court allows these trips and Defendant were to cause serious injury

to another, the Court, not the psychiatrist, would bear the legal, moral and

ethical responsibility. The crimes in this particular case were violent, lethal

and gruesome. These were not crimes that were committed because of a

lapse of judgment, but claimed to be committed due to "delusional visions

by demons."
 {¶ 13} The trial court stated while it respected the opinion of the two professionals,

it simply disagreed with their ultimate determination. The trial court concluded the

professionals did not establish a clear understanding of appellant's complete treatment

plan.

{¶ 14} As cited above, R.C. 2945.401(G)(2) requires the prosecutor to show by

clear and convincing evidence that the proposed change to a less restrictive status

represents a threat to public safety or a threat to the safety of any person.

{¶ 15} Given the security breach of the Level IV medical plan, we find it is

reasonable for the trial court to be concerned about public safety. However, appellant did

not act out when presented with the opportunity at the dental appointment and instead

alerted the medical office staff. On three occasions, he was personally confronted with a

violent act, but did not engage, instead choosing to alert staff. While appellant is

diagnosed with bipolar disorder with psychotic features, he is not exhibiting any

symptoms. Since 2018, he has not exhibited any hostility and has been able to keep any

anger in check. Appellant testified he understood his bipolar disorder is a lifetime disorder

that has to be managed without deviation from the plan. He is actively engaged in his

care and is helping others by his involvement in several groups at Northcoast.

{¶ 16} While we understand the trial court's concern, no one has a crystal ball into

the future. We can only look at the evidence presented by the prosecutor during the

December 12, 2019 hearing and in this case, we do not find the prosecutor met its burden

of clear and convincing evidence that the change represents a threat to public safety or

any person [R.C. 2945.401(G)(2)].
 {¶ 17} Upon review, we find the trial court's decision to deny the level change is

not supported by clear and convincing evidence.

{¶ 18} Assignment of Error I is granted.

{¶ 19} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby reversed.

By Wise, Earle, J.

Baldwin, P.J. and

Wise, John, J. concur.

EEW/db