Opinion
No. 107,583.
2013-06-7
STATE of Kansas, Appellee, v. Larry DAVIS, Appellant.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge. Carl F.A. Maughan and Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, for appellant. Boyd K. Isherwood, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.
Carl F.A. Maughan and Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, for appellant. Boyd K. Isherwood, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
In 2008, Larry Davis was committed to the Larned State Hospital following his acquittal on charges of aggravated kidnapping and attempted rape by reason of a mental disease or defect. In 2010, he was transferred to the Osawatomie State Hospital (Osawatomie). In 2011, Davis filed a request for an annual review pursuant to K.S.A.2012 Supp. 22–3428a in which he requested a conditional release. The district court denied the request, and Davis appeals. Because the record is not clear as to what standard the district used in evaluating the evidence in arriving at its decision, we reverse and remand with the instructions that the district court weigh the evidence under the standard of “clear and convincing” in deciding whether Davis is entitled to relief.
In August 2011, the State filed a motion for an annual review of Davis' status. The State informed the district court in the motion that Davis had filed a letter in January 2011 requesting a hearing to determine whether he could be conditionally released. The court requested a report from the staff at Osawatomie regarding the possibility of conditional release for Davis.
Following a hearing, the district court found Davis was still “likely to cause harm to self or others if he was to be transferred to a less restrictive environment.” In this timely appeal, Davis ultimately argues the court did not apply the proper standard of “clear and convincing” to the evidence and, when that standard is applied, the evidence fails to establish that he is a mentally ill person even when viewed in the light most favorable to the State.
We begin our analysis by noting several of the statutory provisions that particularly apply in this case. Under K.S.A.2012 Supp. 22–3428a(1), a person who has been found not guilty of a crime due to a mental disease or defect and has been in a security or state hospital for more than 1 year is entitled to an annual review hearing to determine whether the person remains mentally ill.
Under K.S.A.2012 Supp. 22–3428(7)(b), a “ ‘mentally ill person’ means any person who: (A) Is suffering from a severe mental disorder to the extent that such person is in need of treatment; and (B) is likely to cause harm to self or others.”
Under K.S.A.2012 Supp. 22–3428(7)(a):
“ ‘Likely to cause harm to self or others' means that the person is likely, in the reasonably foreseeable future, to cause substantial physical injury or physical abuse to self or others or substantial damage to another's property, or evidenced by behavior causing, attempting or threatening such injury, abuse or neglect.” (Emphasis added)
Also, K.S.A.2012 Supp. 22–3428a(3) provides in pertinent part: “If the court finds by clear and convincing evidence the committed person is not a mentally ill person, the court shall order the person discharged; otherwise, the person shall remain committed or be conditionally released.”
We further note that this court has previously stated that the State bears the burden of proof in annual review hearings to show by clear and convincing evidence that the committed person is still mentally ill and dangerous to self or others. See In re Application of Noel for Discharge Hearing, 17 Kan.App.2d 303, 316, 317, 838 P.2d 336 (1992).
We also note that under these legal principles, had the district court found Davis was no longer likely to cause substantial harm to himself or others, Davis would no longer fall under the definition of a “mentally ill” person and he would have been entitled to a discharge from Osawatomie under K.S.A.2012 Supp. 22–3428a(3).
Since one of the elements the State must prove to establish a person is mentally ill and must remain committed is that he or she is likely to harm self or others, the State has the burden under the foregoing legal authorities to prove the element by clear and convincing evidence. As to our scope of review, then:
“An appellate court reviewing a determination which is required to be based upon clear and convincing evidence considers whether, after review of all the evidence viewed in the light most favorable to the party with the burden of proof, it is convinced that a rational factfinder could have found the determination to be highly probable. [Citation omitted.]” In re Swanson, 288 Kan. 185, 186, 200 P.3d 1205 (2009).
As to the first element in the definition of a mentally ill person, the parties concede that Davis continues to suffer from a mental disorder for which he needs treatment. As to the element of likely to cause harm to self or others, the State presented two witnesses who testified Davis had become physically aggressive on one occasion toward another patient for sitting too close to him. There appears to be no evidence that Davis was likely to cause substantial harm to himself, and the district court seemed to have indicated this when announcing its ruling.
At the annual review hearing then, it appears that the sole issue was whether Davis was likely to cause harm to others. Since the district court ordered that Davis remain committed, we assume it determined that he was so likely. However, the court did not specify the evidence upon which it based that determination and voiced its opinion that the record appeared to contain evidence on both sides of the issue.
A brief recap of the district judge's remarks during his announcement of his ruling reveals the following. The court did reference the incident with the other patient, but when Davis tried to explain that the patient “went off on me,” the judge stated, “Well, I obviously was not there, don't know exactly what circumstances led to it, don't know exactly the nature of the striking, and that sort of thing.” As such, we are unaware as to whether the court found that Davis or the other patient instigated the incident or whether anyone suffered any injury. Also, the court stated it had no assurance that Davis would continue to take his medications after he was released to the community. The court also voiced its opinion that there had been progress in Davis' treatment and there might be a light at the end of the tunnel in his future. In summary, however, we are unaware of why the court deemed it likely that Davis would cause substantial injury to someone in the future.
As we stated, Davis does not contest that he has a mental disease. That alone, however, does not render him a “mentally ill person” who can be confined to Osawatomie. The district court must also determine that he is likely to cause harm to self or others, and the court can only make such a determination based upon clear and convincing evidence. In reviewing the ruling of the district court here, we note that nowhere in either its “Journal Entry of Review Hearing” or the transcript of its ruling from the bench, did the court state exactly what standard of proof it utilized in reaching its decision or who had the burden of proof.
From a review of the hearing transcript, we recognize that the district court deliberately sought to acknowledge to Davis the progress he had made and to offer him some hope that he might, in the foreseeable future, be eligible for placement in a less restrictive environment or release. But in undertaking that worthy objective, the court unfortunately overlooked making the express legal findings necessary to support its ruling.
Under these circumstances we are unable to exercise our review as to whether the district court's determination was highly probable. We reverse and remand with instructions that the district court review the evidentiary record to determine whether the State had met its burden to prove by clear and convincing evidence that Davis “is likely to cause harm to self or others” and, as such, is a mentally ill person. If the answer is “No,” Davis must be discharged. If the answer is “Yes,” the district court must then determine whether Davis should remain committed in Osawatomie or placed on conditional release. K.S.A.2012 Supp. 22–3428a(3). We offer no view as to what the district court's determination should be.
Reversed and remanded with directions.