^^^^IG^NALIN THE SUPREME COURT OF OHIO

STATE OF OHIO, Case Number 13-1236

Appellee, : On Appeal from the RichlandCounty Court of Appeals,

v. : Fifth Appellate District

LARRY EVANS, Court of AppealsCase No. 12-CA-76

Appellant.

APPELLEE, STATE OF OHIO'SMEMORANDUM IN OPPOSITION T'O JL7RISDICTION

JAMES J. MAYER, JR.PROSECUTINU AT'TOR.NEYRICHLAND COUNTY, OHIO

BY: Jill M. Cochran (Reg. No. 0079088) (COUNSEL OF RECORD)Assistant Prosecuting AttorneyRichland County, Ohio38 South Park StreetMansfield, Ohio 44902(419) 774-5676(419) 774-5589-Fax

COUNSEL FOR APPELLEE, STATE OF OHIO

Stephen P. Hardwick (Reg. No.Assistant Public Defender250 E. Broad Street, Suite 1400Columbus, Ohio 43215(614) 466-5394(614) 752-5167 (fax)

0062932) (COUNSEL OF RECORD)

COIJNSEL FOR APPELLANT, LARRY EVANS

B "v!isbAU^^9 't'O 13

CLERK OF COURTSUPREIM OUUR-l'QF OHIO

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^s^.,^^^ OF COURTSU^^EMECOURT OF ON10

Explanation of why this case is not a case of public or great general interest and does notinvolve a substantial constitutional question:

The State of Ohio submits that this case presents absolutely no unique facts, rulings, or

issues. Nor does it raise any substantial constitutional questions worthy of review by this Court.

The arguments in this case are not legal, but factually based. The Fifth District's ruling below

does not legally conflict with the cited rulings from the 1'enth and Eleventh Districts, nor are the

cases factually similar.

In the early morning hours of December 26, 2007, Larry N. Evans Jr., the Appellant, shot

and killed his neighbor, Robert 1-louseman and his brother, police officer Brian Evans, during

what experts called a manic psychotic episode. 1-Ie also shot and wounded his sister, Kim Evans

(Atkins), and his sister-in-law, Trina Evans. During the incident, Mr. Evans also took shots at

but did not injure his wife, Carolyn Evans, and four police officers.

In the days leading up to the incident on December 26th, there were signs that the

Appellant was starting to experience some issues with his mental health. He reported that he was

having sleep issues and that he felt closer to God and was nearing a`°great breakthrough."l

Although the Appellant did not attend church regularly, on December 23, 2007, the Appellant

attended services at the local Lutheran church where his uncle was pastor.. During the service he

had turned off his cellular telephone and left it in the car. The Appellant returned to find

multiple messages from his wife who was concerned about the Appellant. "She knew I was

acting different." In 2002, prior to a suicide attempt and hospitalization, the Appellant had

experienced a sort of religious mania, believing that he was possessed by the devi.l.

rStatemeni of facts taken frorn the mental health evaluation of Dr. Sara West, who interviewed the Appellant in Julyof 2008 and cotnpilec3 the statement of facts from the police reports, Appellant's statements to police, witnessstatements and her interview of Appellant on July 2, 2008. Some facts also taken from the Bill of Particulars.

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The Appellant called off work on December 24th to spend more time with his family.

They dropped off deer meat to a variety of friends and family and visited his in-laws and sister.

Kirn Evans told the police that the Appellant was loud and talkative and talked about religious

topics. He was "like a time bomb getting ready to go off' that day. Concerned, Kim spoke to

Carolyn Evans, who told her that the Appellant had gone off his medications four years ago.

On Christmas day, the Appellant and his wife watched their daughters open their

Christmas presents. The family then went to Kim Evans house. Later, the Appellant and his

father went to the cemetery to visit the grave of Appellant's mother. After that they went to visit

the Appellant's best friend, Scott Amburgey. Mr. Amhurgey told the police that the Appellant

was loud and wrapped tight that evening and he said things that led him and his wife to have

concerns that the Appellant intended to do something to himself. T'he Appellant told Mr.

Amburgey that he appreciated his friendship and loved him and then gave him a hug and kiss

before leaving. During his forensic interview in July of 2008, the Appellant stated, "When I look

at it now, I was acting funny, but at the time, I felt at peace."

On the evening of December 25tli, the Appellant went to the movies with his brother,

Brian, and some friends of the family. They decided to see the movie "I am Legend" starring

Will Smith, which mostly takes place in a post-apocalyptic New York City. The main character

in the movie drove a vehicle and had a dog that were similar to the Appellant's brother's. About

ten to fifteen minutes into the movie the Appellant indicated "It went off like that, something's

coming down, I needed to leave the tlieatre. It seemed like the end of the world." The Appellant

asked his brother for the keys to his vehicle and he left the theatre to go horne as "it was the only

place to go, the safest place to go." The Appellant told the police in an initial interview that he

was trying to do the same thing as the main character from the movie. "[The main character] is

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trying, almost like the same thing I am trying to do, trying to get away from these really screwed

up people, that aren't right with God."

On his way home, the Appellant stopped at the Speedway gas station, believing that he

needed to fill up the vehicle in case something happened. All of the punxps were occupied but

pump seven seemed to call to him; to glow more than the other signs. "Lucky number seven, I

see I never been I:nown one for numbers and all that bull crap...but since my eyes is open,

number seven is a lucky number." The Appellant used his vehicle to bump the vehicle

occupying pump seven out of the way. I-Ie paid for the gas and asked the gas attenciant to borrow

the portable phone and pretended to call the police. The Appellant indicated that he acted drunk

in order to avoid a confrontation with the people whose vehicle he hit.

The Appellant drove to his home going approximately eighty miles per hour but obeying

the other traffic laws. "I wanted to get home as fast as I could. Everyone was gone, or going to

be gone." 1-1e did not feel the need to warn anyone because "everyone was where they were

supposed to be." When he arrived at home, the Appellant took his dog and sought refuge in the

basement. After nothing immediately happened, he made plans to go to New York. He began to

pack the car with "stuff you would need for camping." He changed into his camouflage pants

and put on his bullet proof vest.

While the Appellant was packing up the vehicle, his neighbor, Robert Houseman pulled

up into the driveway of the duplex. Mr. Ilouseman was removing Christmas packages and food

from his vehicle when the Appellant approached him from the garage with an assault rifle and

shot him two tim.es. Dui:ing the July 2008 interview, the Appellant said that "the look on [Mr.

Hoizseman's] face scared the crap out of me, it was like a zombie. I've never been that scared

before in my life." 'I'he Appellant fu.rther indicated that he believed that Mr. Houseman was

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going to harm him. After Mr. I-louseman was down on the ground, believing that Mr. Houseman

was still a threat, the Appellant fired another round into his head.

During the police interview after theincident, the Appellant stated "God told me that

Bobby's not on the right path, and I'm like `shit, right,' and I did everything, I was standing up, I

was standing right in that garage, exposed, right, it's do or die, brother. It was Bobby or me,

brother. I did not see a gun on Bobby, but I knew in my heart that Bobby was a threat, and I

thank God that my skills kicked in because I'm sitting right here talking to you today." Seven

months later, the Appellant still did not believe that he had done anything wrong. "Looking back

on it, it was not wrong to shoot [Mr. Houseman]," given his level of fear at the time.

After shooting Mr. Houseman, the Appellant ran back to the house to continue packing

for his trip. Subsequently, he saw a "dark car with dark figures" pull up into the driveway. He

did not know who was in the vehicle and whether they were good or bad. The Appellant

indicated that he wanted to scare them off and so he shot in front of the car for that purpose but

the gun rose up; causing him to fire into the vehicle. According to the Appellant, the car backed

out of the driveway at that point and drove away.

This car contained the Appellant's brother, police officer Brian Evans, and the

Appellant's wife, Carolyn Bvans. Carolyn indicated that a shot came through the windshield at

whicli point Brian exited the vehicle in an attempt to calm the Appellant and told Carolyn to

leave. Carolyn drove to a neighbor's home where she remained until contacted by the police.

Brian was killed by the Appellant. The Appellant told the police that he did not see his brother

that night.

A second vehicle pulled into the driveway. The Appellant stated that the vehicle seemed

to be coming right towards him in an attempt to run him over. He was convinced that these were

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bad people and fired directly into the vehicle. This vehicle contained Kim Evans and Trina

Evans. Trina was shot in her right shoulder and Kim was shot in her left arm. 'Frina was able to

maneuver the vehicle out of the driveway and onto the road and escape further injury, although

the Appellant continued to fire at the vehicle.

The Appellant then barricaded himself in the house. He placed items against the door

and shot out the windows. At some point police cruisers arrived and the Appellant fired multiple

rounds at the police, causiiig damage to cruisers. He went from room to room turning off all the

lights. "I was not wanting to hurt anyone, but I would if they came in. I was trying to survive."

He took off the bullet proof vest because he felt as if he no longer needed its protection, although

l1e felt a need to get out of the house. The Appellant was about to exit the back door when he

heard the smoke alarm go off by the front door. Taking it as a sign fxonl God, the Appellant

decided to exit the front door and managed to safely slip by police.

The Appellant felt a need to go to his tree stand approximately two miles away. At this

point he was shirtless, with camouflage pants, rubber boots and shoe polish on his face. He was

carrying a 45nlni pistol and a rifle. As he walked through a corn field, he uitentionally began

dropping the items he was carrying along the way. He felt a need to shed his material

possessions. At some point the Appellant dropped his weapons, no longer feeling in any danger.

The Appellant went up into the tree stand and opened the windows and sat down in a

chair. He indicated that he was feeling calm and relieved to be out of the house. He indicated

that lie did not feel cold. The Appellant saw a "meteor coming out of the sky" and took it as "a

sign from God, God coming for me." Subsequently, he saw a helicopter coming from the same

direction and took it as a sign to return home. The Appellant then removed his clothing and

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climbed down from the tree house. He indicated that he took off his clothes because he was born

naked and he believed that he could not meet God in a clothed state.

On the road he encountered police. He dropped to the ground when commanded by

police and was taken without incideYit. The Appellant stated that "he expected to be taken in by

the police because of what happened at the house. It was all about cooperating, I had done no

wrong."

The Appellant continued to have bizarre behaviors in the jail. He believed that the guards

were sending him religious messages through the television and that poison was being placed in

his food. On December 27, 2007, the Appellant had flooded his cell, pounded on the door and

screamed indecencies while sitting naked on his bunk. On January 29, 2008, the Appellant took

off his clothes, "covered his body with Vaseline, covered his window and was screaming and

shouting obscenities as well as quoting scripture." On 1^ebruary 28, 2008, the Appellant refused

to leave the visitation room requiring several officers to remove him. The Appellant also

described being able to see angels and demons in the jail. He initially refused medication at the

jail, denying that he had any issues.

As a result of the incident on December 26, 2007, the Appellant was charged with

nineteen counts, including multiple counts of Aggravated Murder and Felonious Assault. The

State sought the death penalty. On March 18, 2008, the Appellant filed a Not Guilty by Reason

of Insanity Plea. The trial court ordered a forensic examination of the Appellant for competency

to stand trial and to evaluate his mental condition at the time of the offense. On June 2, 2008, the

matter of competency canze before the court: Both parties stipulated to a competency report

submitted by Dr. Sunbury whicli indicated that the Appellant was competent to stand trial. Dr.

Sunbury diagnosed the Appellant with Bipolar I Disorder and Narcissistic Personality features.

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According to Dr. Sunbury's report, the Appellant's MMPI score was moderately elevated on two

scales and indicated that men with this pattern of scores are typically extroverted, have trouble

with authority, may be seen as selfish and impulsive, tend to keep others at an emotional

distance, are suspicious, distrust others and hold misanthropic attitudes.

On September 2, 2008, the Appellant filed a waiver of jury trial, On September 3, 2008,

the parties filed a set of agreed to stipulations prior to proceeding to bench trial before a three

judge panel. The Appellant stipulated that he corn:mitted each and every act which constituted

each and every element of each count in the indictment. The parties stipulated that the Appellant

was suffering from a severe mental disease such that he was unable to appreciate the

wrongfulness of the acts charged. The parties further stipulated that the Appellant was a

mentally ill person stibject to hospitalization by court order and that the least restrictive

commitment alternative available that was consistent with public safety and the welfare of the

Appellant was the ntaximum-security facility at Timothy B. Moritz Forensic Unit (hereinafter

Moritz).

The trial court found the Appellant not guilty by reason of insanity of the crimes and

specifications in the indictment. He was found to be a mentally ill person subject to

hospitalization. and Moritz was found to be the least restrictive commitment alternative at tlie

time. The victims and their families attempted to appeal this decision in five separately -filed

appeals but the appeals were dismissed as the victims were not parties to the case.

The Appellant was transferred to Moritz on September 11, 2008, At the time of his

admission, the Appellant had been compliant with taking medication prescribed at the jail and

was not reporting any symptoms. I.-lis initial assessment by Moritz did indicate that his speech

was somewhat rapid and he appeared to minimize previous substance abuse. No other symptoms

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were noted. Lithium was added to the Risperdal that the Appellant was already tak-ing. The

Lithium was a mood stabilizer while the Risperdal was an anti-psychotic.

In. the beginning of 2009, after the Appellant had only been in the h-ospital for four to five

months, the treatment team at Moritz began to petition to have Appellant moved to the civil

hospital at Heartland Behavioral 1-Iealth (HBH) at the initial six month review. Dr. Bob Stinson

completed an independent forensic evaluation of the Appellant in rebruary of 2009 in

preparation for a hearing on a change of comnlitment. 'The independent forensic evaluation is

the last step in the process after all other parties have signed off on the agreement and is

completed by an employee of Moritz or Twin Valley (the civil side of Moritz) who is not a part

of the treatment team. In early 2009, Dr. Stirzson. did not agree with the move. His report

indicated that it would be prudent to take a little more time to ensure that stability was being

main.tained and that the Appellant was not simply between manic/depressed cyclical phases. He

indicated in his 2009 report that another tluee to six months of stability would be sufficient,

although historically, the Appellant's cycles appeared to be quiet lengthy.

The case canie to hearing on March 20, 2009, and both parties stipulated to the status

report coznpleted by Dr. Bob Stinson. In a judgment entry filed on March 26, 2009, the trial

court found that the Appellant continued to be a mentally ill person subject to hospitalization by

court order and that Moritz continued to be the least restrictive placement.

Before the end of the year, the Appellant and his treatment team moved forward again in

their attempt to move the Appellant to HBH. On December 10, 2009, the Appellant filed a

motion requesting that Judge DeWeese recuse himself from the case. The motion was overruled

on December 31, 2009, An application for disqualif'ication was filed in the Supreme Court on

January 19, 2010. The Supreme Court denied the application on Febzuary 10, 2010. `I'he State

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filed a memorandum in opposition to moving the Appellant to a less restrictive treatment facility

on March 16, 2010. An evidentiary hearing was held on March 17, 2010. The trial court heard

the testimony of Dr. Sokolov, the doctor who performed the independent forensic evaluation of

the Appellant for the purpose of the hearing. Apparently Dr. Stinson was unavailable to perform

this evaluation. The testiznoixy of Dr. Sokolov was the only testimony as to the Appellant's

current mental status. The trial court also heard testimony regarding the difference in security

between Moritz and HI3H.

The trial court denied the move and made detailed findings of fact and law to support the

court's judgment. The trial court indicated that the Appellant is an extraordinarily dangerous

killer. He presents a great danger if he escapes because of his history of survivalist and deadly

weapons training and his history as a correction officer both in a jail and in a prison setting. The

Appellant understands institutional security and its weaknesses and tested security while he was

in jail awaiting trial. The chief of security at HBH testified at the hearing that the Appellant was

too serious of a security risk for their institution.

The trial court further found that psychiatry is an inexact art without any guarantees and

that it relies too much on the patient's self reporting. In reviewing the past reports of the

Appellant, it was possible to see a variety of explanations and opinions regarding the Appellant's

past behaviors. The Appellant's paranoid tendencies make it easier for him to ratiorzalize

"protective" actions and it l-ias been seen throughout his past, including in the incident in

question. The trial court found it troubling that the Appellant was no longer on anti-psychotic

medication and that the hospital acknowledged that his current mood stabilizer would not

prevent psychotic episodes and that hospital staff was jtist counting on any disordered thinking or

unusual behavior being apparent to treatment staff or reported by the Appellant who could

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resume antipsychotic medication when symptoms became apparent. The trial court also listed

out in detail the security differences between Moritz and HBH.

In March of 2011, motions were again filed to have the Appellant moved to a less

restrictive environnlent. On April 20, 2011, the case was ordered to be transferred from Judge

DeWeese to Judge Henson. On April 29, 2011, the state filed a memorandum in opposition to

moving the Appellant to a less restrictive treatment facility. A hearing was held over the course

of five days. The State presented the testimony of five iuitnesses including Dr. Soehner, the

psychiatrist on Appellant's treatment teani, Dr. Karpawich, an evaluator hired by the State to

complete an independent evaluation of the Appellant, Kim Evans, Trina Evens and James

Peticca, the chief of security of HBI-I who had testified at the previous hearing and had been

subsequently disciplined for his testimony. The Appellant called his wife and daughters,

multiple members of his treatment team, Dr. Stinson and Jeffrey Sims, current CEO of HBH.

The trial court issued an order of August 14, 2012, finding tl-iat the Appellant coxitinues to

be a seriously mentally ill individual subject to hospitalization and further ordering that the

Appellant be transferred from Moritz to HBI-I. In the judgment ently the trial court states, "It is

equally clear that the staff at Moritz has done all it is willing or capable of doing in the treatment

of Mr. Evans."

The State of Ohio filed an appeal in this case to the Fifth District Court of Appeals

arguing that the State had presented clear and convincing evidence that the move of the

Appellant from Moritz to HBH represented a threat to public safety or the safety of another

person under O.R.C § 2945.401(G)(2). The Fifth District reversed the trial court's decision,

agreeing that clear and convincing evidence had been presented by the State of Ohio.

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The Appellant is appealing, arguing that the Fifth District used the wrong standard of

review and that the Fifth District's ruling eonflicts with the rulings of other courts. However,

there are multiple standards of review in play in any oral hearing and the Fifth District was

correct in its application of the appropriate standard.

ARGUMENT OF APPELLEE, STATE OF OHIO

Response to Sole Proposition of Law: A court of appeals reviews the final decision regardingtransfer under R.C. § 2945.40 as an abuse of discretion but reviews the weight of the evidencepresented by the State under a clear and convincing evidence standard.

The Fifth District Court of Appeals found that the trial court erred when it determined

that the least restrictive setting for the treatment of the Appellant was HBfI. The Fifth District

found that the State of Ohio presented clear and convincing evidence that the proposed move of

the Appellant from Moritz to HBH represented a threat to public safety or a threat to the safety of

any person. The Appellant argues that the Fifth District used the wrong standard of review and

should have reviewed the trial court's decision under an abuse of discretion standard. However,

as in any oral hearing, several standards of review exist depending on what decision is being

challenged. The State did not challenge the trial court's discretion in ordering the Appellant's

move to I-1Bli. The State specifically argued that the evidence did not support the move and that

the State presented clear and convincing evidence that the proposed move represented a threat to

public safety.

Ohio Revised Code § 2945.401(CJ) states, in pertinent part, that the prosecutor has the

burden to show by clear and convincing evidence that tl1eproposed change of conditions to a less

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

R.C. § 2945.401 (G). "Clear and convincing evidence" is

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[tjhe measure or degree of proof that will produce in the mind of the trier of fact afirm belief or conviction as to the allegations sought to be established. It isintermediate, being more than a mere preponderance, but not to the extent of suchcertainty as required beyond a reasonable doubt as in criminal cases. It does notmean clear or unequivocal.

In re: Esiczte of Haynes, 25 Ohio St.3d 101, 103-104, 495 N.E.2d 23 (1986). Prior to the

enactment of this statute, this Honorable Court had held that when the question involved the

movement of a mentally ill person subject to hospitalization to a less restrictive treatment setting,

no party had the burden of proof. State v. Johnson, 32 Ohio St. 3d 109, 512 N.E.2d 652 (1987).

Rather, the parties have a duty to present relevant, competent evidence to aid thecourt in its determination of whether the proposed less restrictive commitmentalternative is appropriate considering the treatment needs of the person and thesafety of the public. The determination of whether the person should betransferred from his current commitment setting to a less restrictive placement iswithin the sound discretion of the trial court.

Id. at 112. This Court's ruling in Johnson, clearly indicates that, prior to the enactment of R.C. §

2945.401, the standard of review was an abuse of discretion. However, the statute, enacted in

1997 in response to this Court's holding in Johnson, clearly provides that the standard of review

regarding the weil;ht of the evidence presented regarding the risk of harm a patient presents to

himself or to others is the clear and convincing standard set out in the statute.

The cases cited by the Appellant cite to R.C. § 2945.401(I), which states that, at the end

of a hearing on the matter of transfer, "the trial court may approve, disapprove, or modify the

recommendation and shall enter an order accordingly," State v. Hilton, 10th Dist. Franklin No.

02AP-518, 2003-Ohio-87, T 18-19; State v. Salvatore, 10th Dist. Franklin Nos, O8AP-732 and

733, 2009-Ohio-2345, ^ 26; State v. Hubbard, 11 th I?ist. Trumbull No. 97-T-0144, 1999 Ohio

App. LEXIS 5248 (Nov. 9, 1999). This statutory language indicates that the trial court's firzal

judgment is reviewed under an abuse of discretion standard, while the evidentiary standard to

consider under R.C. § 2945.401(G) is clear and convincing evidence. What is clear is that there12

are two different standards of review presented in the statute. The difference depends on what

the moving party is reqr7esting the appellate court to review.

The Fifth District is not the only court that has evaluated a proposed step down under

R.C. § 2945.401 under the evidentiary standard as to whether or not the State had presented clear

and convincing evidence. State v. Ansley, 12th Dist, Butler No. CA2005-07-182, 2006-Ohio-

1149, ^ 14 ("The state showed by clear and convincing evidence that appellant was in remission

for approximately two years, that she needed a secure, structured and monitored environment to

continue her treatment and medicine protocol and that a transfer to a less restrictive environment

would unacceptably reduce all of the components that are currently working to keep appellant

compliant and in remission from her mental illness,"); State v. Roden, 8t11 Dist. Cuyahoga No.

86841, 2006-Ohio-3679, ¶ 30 ("After consideration of the R.C. 2945.401(G) factors, we

conclude that the State failed to prove by clear and convincing evidence that releasing defendant

to the less restrictive environment at Bridgeway would represent a threat to the public safety or

to the saf^ty of any other person."); State v. 1Vahaf,fy, 140 Ohio App. 3d 396, 401, 747 N.E.2d

872 (4th Dist.2000) ("Consequently, we find that the state was required to establish by clear and

convincing evidence that granting Mahaffey unrestricted Level IIl status represents a threat to

the public safety or the safety of any person.").

In fact, the cases specifically cited by the Appellant demonstrate that both standards are

separate.

R.C. 2945.401(I) recognizes that the eourt has discretion to approve, disapprove,or modify any recommendation made concerning a patient's course of treatment.1-Iowever, in apparent reaction to the Supreme Court of Ohio's holdingin Johnson, the Ohio General Assembly enacted R.C. 2945.401(G)(2)requiringthe state to prove, by clear and convincing evidence, the threat to public safetyfrom a recommended change in the conditions of commitment to a less restrictivesetting. Pursuant to this new statutory directive, appellee, the State of Ohio, has

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failed to meet its burden of establishing that appellant's proposed transferrepresents a threat to public safety.

Hzzbbard, 1999 Ohio App. LEXIS 5248 at * 11.

R.C. 2945.401(I) provides that the trial court has discretion to approve,disapprove, or modify any recommendation made concerning a patient's course oftreatment. This court will not disturb a decision of the trial. court absent an abuseof discretion..... We determine that appellee met its burden of proving, by clearand convincing evidence, that appellant's commitment to a less restrictive statusrepresents a threat to public safety or to any person.

Tlilton, 2003-®hio-87, ^ 18, 21.

In the final case cited by the Appellant, it was the appellant that raised the abuse of

discretion argument. Salvatore, 2009-Ohio-2345, J( 17. The appellant in that case specifically

argued that the trial court abused its discretion in revoking her community release. The appellant

argued that the trial court abused its discretion in rejecting the doctor's recommendation in the

case. Id. at ; 24. The Appellate Court found that the trial court did not reject the doctor's

recommendations but modified them slightly, which was not an abuse of discretion. Id. at 25.

The court was not asked to consider, and did not consider, the evidence that was presented in this

case. This case is not relevant to the issue before this Court.

The question becomes whether the Fifth District was reviewing the weight of the

evidence provided in this case, or the reasonableness of the trial court's final ruling in this case.

The State in this case specifically asked the Fifth District to consider the weight of the evidence

and not the ultimate decision of the trial court, The Fifth District did not find that the trial

court's decision to move the Appellant to Heartland Behavioral Health was an abuse of

discretion. The move itself would have been an appropriate move if the evidence supported the

move. An abuse of discretion would have been found if the trial court's ultimate ruling would

have been for the Appellant's immediate release. What the court found, was that the evidence

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did not support the trial court's decision. The court found that the State met its burden of proof

by presenting clear and convincing evidence that the proposed move represented a risk to public

safety or the safety of another person.

In an analogous situation, there are different standards of review used throtighout any

jury trial. An appellate court reviews the weight of the evidence that is admitted during a

criminal trial in two ways, reviewing both the manifest weight and sufficiency of the evidence.

This is separate and apart from a review of the trial court's decisions on the admission or

exclusion of that same evidence, which is in. the discretion of the trial court.

The appropriate standard was used by the Fifth District in this case. As indicated by the

Fifth District Court of Appeals, the State of Ohio presented clear and convincing evidence that to

move the Appellant from the forensic unit of Moritz to the civil hospital at >=IBI-I continues to

represent a threat to public safety or to the safety of another person.

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CONCLUSION

F,or the foregoing reasons, the State of Ohio respectfully requests that the Court deny the

Appellant jurisdiction to pursue his appeal.

Respectfully Submitted,

,

JILL .COCHRANSup e Court No. 0079088Assistant Prosecuting AttorneyRichland County Prosecutor's Office38 South Park StreetMansfield, Ohio 44902(419) 774-5676(419) 774-5589 (FAX)

Counsel for Plaintiff-Appellant

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing Motion in Opposition of

Jurisdiction of the Appellee, State of Ohio, was sent to Attorney Stephen Hardwick, Office of the

Ohio Public Defender, 250 East Broad Street, Suite 1400, Colun-ibus, Ohio 43215 via U.S. mail,

this jddlJ day of August, 2013.

JILL d OCHRANAs is yit Prosecuting Attorney

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