State of Tennessee v. Sandra Lynn Baumgartner

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 4, 2003 Session

STATE OF TENNESSEE v. SANDRA LYNN BAUMGARTNER

Appeal from the Criminal Court for Shelby County

No. 01-11924 John P. Colton, Jr., Judge

No. W2003-00038-CCA-R3-CD - Filed April 14, 2003

The defendant, Sandra Lynn Baumgartner, appeals the mandatory outpatient treatment (MOT) plan

imposed by the Shelby County Criminal Court following her acquittal of first degree murder due to

her insanity at the time of the crime. She contends that the trial court erroneously required

mandatory outpatient treatment because the evidence does not show that her mental condition is

likely to deteriorate rapidly, making it substantially likely that she would cause serious harm. She

also argues that the MOT plan imposed by the trial court is contrary to the medical proof, punitive,

oppressive, and impossible to perform. We conclude that the evidence preponderates against the

MOT plan’s requirements that the defendant live in a supervised residential facility and have

someone supervise the administration of her medicine. We affirm the MOT plan as modified to

exclude these requirements and remand the case for the trial court to reinstate the original condition

that the defendant reside with her parents in their home.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed as

Modified; Case Remanded

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES

CURWOOD WITT, JR., JJ., joined.

Seymour S. Rosenberg, Memphis, Tennessee, for the appellant, Sandra Lynn Baumgartner.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;

William L. Gibbons, District Attorney General; James A. Wax, Jr., Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The defendant was charged with the April 2001 first degree premeditated murder of Daniel

Morgan. She pled not guilty by reason of insanity. Before her bench trial, she stipulated to the facts

that she and the victim had an altercation at his apartment and that she had stabbed him multiple

times, which resulted in his death. The record reflects that at her May 16, 2002 bench trial, the

parties stipulated and the defendant presented evidence that at the time of the offense, she had

Schizoaffective Disorder, Bipolar Type, and was not able to appreciate the wrongfulness of her

conduct. The trial court found the defendant not guilty by reason of insanity. It initially found that

an evaluation of the defendant’s mental condition was not necessary and that she did not pose a

continuing danger to society. Following the state’s petition to rehear, the court ordered the defendant

to be admitted to Western State Mental Health Institute on September 27, 2002, for mandatory

evaluation and treatment. See Tenn. Code Ann. § 33-7-303(a). She was subsequently transferred

to Memphis Mental Health Institute (MMHI) for the evaluation.

On November 25, 2002, Dr. Travis McNeal of MMHI sent the trial court a letter stating that

a MMHI team had evaluated the defendant and concluded that she should be discharged into the

community under a proposed MOT plan. The proposed plan is summarized as follows:

(1) Upon her release from MMHI, the defendant will receive regular

mandatory outpatient mental health services from a nurse practitioner

and psychiatrist at Frayser Family Counseling Center (FFCC) in order

to evaluate her mental status and need for changes in medication. She

will meet once monthly with nurse practitioner Susan Wooldridge

and once every six months with Dr. Clayton Baker. These

professionals will review the defendant’s compliance, medication

education, and mental status. Changes in her medication will only be

made following an examination by Dr. Baker.

(2) The defendant’s case will be intensely managed by FFCC’s

Continuing Treatment Team (CTT). She will meet once weekly with

case manager Hugh Callens, who will insure that she is advised of all

appointments, has arranged transportation, and is compliant with her

medication. Mr. Callens will provide behavioral observations to Dr.

Baker in order that Dr. Baker can continuously monitor her mental

condition and need for medication changes. In the event that the

defendant fails to comply with the MOT plan or problems arise, Mr.

Callens will inform the FFCC treatment team and Laverne Hoke, the

supervising administrator, who will decide whether to notify the court

of a violation.

(3) The defendant will participate in weekly alcohol and drug

treatment meetings at FFCC. Ms. Hoke coordinates this group, which

meets on Wednesdays from 3:00 to 4:30 p.m. The defendant will be

subject to random urine screens for drugs, and FFCC will notify the

trial court in writing of a positive drug screen within seven days.

(4) The defendant will attend Alcoholics Anonymous (AA) meetings

at Family Fellowship at least once weekly.

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(5) The defendant will receive individual therapy at least twice

monthly from Dr. Robert Serino, who is a licensed clinical

psychologist.

(6) The defendant will continuously live with her parents, Bob and

Carol Baumgartner, who reside in a single-family dwelling. The

defendant and her parents will be the only occupants of their home.

The proposed plan also provides that FFCC will be responsible for administering and reviewing the

plan, notifying the court of a violation, and/or terminating the plan through the court. The proposed

plan was signed by the defendant, her parents, Ms. Hoke, and Dr. Serino.

On December 6, 2002, the trial court conducted a hearing on the issue of outpatient

treatment. Dr. McNeal, a licensed staff psychologist and forensic coordinator, testified that he

evaluated the defendant at MMHI. He said that her symptoms were well under control and that she

did not meet the criteria for continued commitment to a mental institution. He said that the

defendant should be returned to the community under a “fairly intensive” MOT plan supervised by

the trial court. He stated that he developed the proposed MOT plan in collaboration with FFCC, the

defendant’s parents, Dr. Serino, and the MMHI treatment team.

Dr. McNeal testified that he was aware that the defendant was accused of stabbing the victim

with a knife 120 times. Regarding her potential for committing future violent crimes, he noted that

she had received mental health treatment from 1992 until the offense in 2001 and had no aggressive

behavior during that time. He said the present offense was precipitated by her antipsychotic

medication being inadvertently switched to an antidepressant, which led to the atypical deterioration

of her mental functioning over a period of months. He said that after the offense, she had not

displayed any aggressive behavior. He stated that while at MMHI, the defendant had shown no

symptoms of her mental illness, which is well-controlled by her medicine. He characterized her as

kind and helpful to the other patients. He said that the isolated incident of violence seemed to have

occurred from special circumstances and that it was safe to return the defendant to a community

treatment program under fairly intensive supervision.

On cross-examination, Dr. McNeal testified that it was important for the defendant to

continue alcohol and drug treatment, although attending a meeting at the specific time directed in

the proposed MOT plan was not essential. He agreed that she could attend an evening or weekend

meeting if she had a work conflict. He stated that upon her return to the community, the defendant

would benefit from being in a supportive environment, such as living with her parents. He said that

the monitoring aspect of this requirement was also important and that her parents would have regular

contact with her to make sure she was mentally stable. He said her parents were still active and

worked at least part-time.

Dr. McNeal denied that the plan’s required living arrangements were based upon the need

for the defendant’s parents to monitor whether the defendant took her medicine. He said that the

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defendant did not need daily supervision in taking her medicine and that she was intelligent and

stable enough to handle administering her medicine herself. He said, instead, it was important for

her to go to a mental health facility regularly in order that the center’s employees could monitor her

mental status and how the medications were affecting her. He said he and the defendant had

discussed the problems that arose from the change in her medicine before the offense. He said that

as a registered nurse, the defendant was presently aware of the implications stemming from a change

in her medication and would be very careful about such changes in the future. He said that if the

defendant stopped taking her medicine or refused to see a doctor, the outpatient providers could

initiate her return to a hospital and/or could notify the court via facsimile of her noncompliance.

Dr. Eric Smith, a staff psychiatrist, testified that he participated in the defendant’s evaluation

and treatment at MMHI. He said the defendant’s mental illness was comprised of psychotic

symptoms and mood symptoms, which included both mania and depression. He said that when she

came to MMHI, she was taking Geodon, an antipsychotic medication, twice daily. He said that

Geodon is used primarily to control delusions and hallucinations and that the defendant was taking

the maximum dosage. He believed that the FFCC had prescribed this for her and that she should

continue on it indefinitely unless she started experiencing side effects. He said not much would

happen if she missed one dose of Geodon, but missing it on a continuing basis raised the possibility

that her psychotic symptoms would reoccur.

Dr. Smith testified that the defendant was also taking Seroquel, an antipsychotic medication,

once daily at bedtime. He said that she was taking this medicine before the offense and that it had

been replaced with the antidepressant Serzone. He said someone with the defendant’s diagnosis can

be treated with an antidepressant, but if the antidepressant is not closely monitored, it can exacerbate

the patient’s symptoms. He said that when Serzone was substituted for Seroquel, the defendant had

nothing to prevent her delusions and hallucinations and that as a result, she became psychotic. He

believed that the defendant needed to continue on Seroquel indefinitely, pending any side effects.

He said the defendant was also taking Depacoat E. R., a mood stabilizer, twice daily when she came

to MMHI. He said that because she was experiencing hair loss as a side effect of the Depacoat, he

switched her to Trileptal, which she also takes twice daily. He said Trileptal is an anticonvulsive

medicine commonly used in psychiatry as a mood-stabilizing agent to prevent the patient from

having manic symptoms. He said that the defendant takes all of these medications orally in pill

form.

Dr. Smith testified that if the defendant missed any of her medications, the effect would not

be immediate. He said she would have to discontinue the medications for several days or weeks

before one would start to see notable changes in her. He said that if such were the case, the

defendant could become manic, which would involve not needing to sleep and increased

impulsiveness, and might exhibit more aggressive behavior. He said the latter change includes

physical violence but could also involve being pushier, more insulting, and not as in-control of

oneself as normal. He agreed that if the defendant did not take her medications for several days, she

would be at greater risk of stabbing someone multiple times than the average person. He said that

as long as the defendant is stable, she is able to do any type of work she feels capable of doing. He

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agreed that it would benefit the defendant and the community if she saw health care providers on a

very frequent basis as described in the MOT plan.

Shirley McGowen, a licensed professional counselor, testified that she worked for FFCC, a

comprehensive community mental health center that provides outpatient services to people of all

ages. She said FFCC employs licensed nurses, pharmacologists, and psychiatrists and is primarily

funded through Advocare, the managed care organization of TennCare. She said the defendant

received outpatient treatment at FFCC for about one year following the offense and before being sent

to MMHI. She said that during this time, the defendant reported taking her medications and

exhibited no symptoms contradicting her reported compliance. She characterized the defendant as

a good patient and said that the staff found her to be compliant. She said the defendant attempted

to work in the community and to maintain a stable life during this time despite the stress stemming

from the offense. She said she had worked with the defendant and was familiar with the defendant’s

proposed MOT plan. She said that the MOT plan differed from the defendant’s earlier treatment at

FFCC in that the defendant would work more intensely with a case manager, who would visit her

weekly at home. She said that under the defendant’s former treatment, her case manager conducted

home visits once or twice each month.

Ms. McGowen testified that after the proposed MOT plan was developed, Advocare stopped

enrolling patients in FFCC’s continuous treatment team, which provides the most intensive

outpatient care available at FFCC. She said that unless Advocare made an exception for the

defendant, she would not be able to participate in the CTT as required by the MOT plan. She stated

that the defendant could participate in other, less intensive outpatient programs at FFCC. With

respect to other outpatient options, she said the defendant should still meet monthly with Dr. Patty

Jordan, a pharmacologist who had been working with the defendant. She said Dr. Jordan would

work in conjunction with Dr. Clayton Baker, a psychiatrist, who would assess the defendant if a need

to change her medicine arose. She said that if the defendant were required to attend weekly group

meetings at FFCC, they could monitor her attendance and performance in alcohol treatment. She

also recommended that a case manager visit the defendant and her parents at home on a monthly

basis. She believed that an outpatient treatment plan involving these elements would be feasible

given the stability that the defendant exhibited both now and before going to MMHI.

Ms. McGowen testified that FFCC did not dispense medication to patients on a daily basis

and that a patient needing that service would have to be in a supervised living situation or a hospital.

She acknowledged that anyone in a voluntary program who was responsible for taking their own

medications could choose to stop taking them. She said that in a serious situation, the FFCC would

remain in contact with the patient and her support systems to discern any problems. She said that

if the defendant missed a meeting, they would call her to learn the reason behind the noncompliance.

She said the FFCC follows MOT patients more closely because they need more supervision and

encouragement to comply with their plans. She said she currently supervised two clients who had

killed people and were not placed in a MOT program. In response to questioning by the trial court,

Ms. McGowen testified that a facility providing a supervised living situation, such as Higbee House,

could administer medication on a daily basis. She noted that most of the residents of Higbee House

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were lower functioning than the defendant. She observed that if the defendant were required to take

her medicine at a mental health clinic, the defendant would have to travel to and from the clinic

twice daily because she took medicine two times per day.

Laverne Hoke, licensed professional counselor and supervisor of FFCC’s continuous

treatment team, confirmed that TennCare would no longer fund the treatment proposed in the MOT

plan. She said that TennCare would fund outpatient treatment at FFCC that involved the defendant

seeing Dr. Baker every six months, seeing her psychologist twice each month, seeing a

pharmacologist once per month, and participating in counseling sessions. She also confirmed that

FFCC’s clinics did not administer medicine on a daily basis. She said that supervised residential

homes provided this service but that she believed the defendant was higher functioning than the

residents of these homes.

The trial court called the defendant’s parents. Carol Baumgartner, the defendant’s mother,

testified that she felt the defendant’s mental condition was stable and had been good while the

defendant was being treated at FFCC. She said the defendant was capable of transporting herself

to meetings and appointments. She said that the defendant was responsible about taking her

medicine and that the offense did not occur because the defendant failed to take her medication but

because she took the wrong medication. She said that the defendant had lived with her for the last

few years and that, at the time, she was not aware that the defendant was having problems with an

incorrect medication. Robert Baumgartner, the defendant’s father, testified that the defendant was

taking her medicine and would continue to do so. He stated that the defendant functioned normally

during the time she lived with them and that he and his wife were surprised by the offense. He said

that at the time of the offense, the only changes in the defendant that he noticed were that she was

a little more complacent, less active, and working long hours.

The trial court also called the defendant who testified that she was a registered nurse. She

said that she was taking her medicine daily as prescribed and that she felt more stable because she

was taking the correct medication. She stated that she was a recovering alcoholic and attended AA

meetings two or three times each week. She said she did not need help taking her medicine but

agreed she would comply if the court ordered her to go to a clinic to take her medicine each day. She

said that she had a driver’s license and transportation to comply with that requirement. She stated

that she would like to get a job but did not think she would be able to work if she had to drive to

FFCC twice daily. She said that she would go to a residential facility or halfway house temporarily

if that is what the court ordered.

The trial court imposed the proposed MOT plan with the following modifications:

(1) The defendant will be placed in residential housing with an

employee on duty twenty-four hours per day,

(2) The administration of her daily medications will be supervised at

least five days per week,

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(3) The defendant will attend AA meetings three times weekly and

will get a sponsor,

(4) She will see a doctor every six months, and

(5) The trial court will receive monthly reports regarding the

defendant, and she will report to the trial court once every six months.

The trial court also ordered that the defendant’s treating professional file a report with it and the state

every six months regarding the defendant’s continuing need for treatment. We note that following

the imposition of mandatory outpatient treatment, the defendant was detained at MMHI beyond the

statutorily prescribed ninety-day period because MMHI could not place the defendant in a residential

treatment program that provided twenty-four-hour supervision. This continuing detention was the

subject of a separate habeas corpus appeal to this court, and we ordered the defendant’s immediate

release to her parents’ home subject to the remainder of the trial court’s MOT plan pending

resolution of this appeal. Sandra Baumgartner v. Memphis Mental Health Institute, No. W2003-

00118-CCA-R3-CO, Shelby County (Tenn. Crim. App. Mar. 4, 2003) (order).

I. MANDATORY OUTPATIENT TREATMENT

The defendant contends that she does not meet the statutory criteria to require mandatory

outpatient treatment. Specifically, she argues that the record does not support the trial court’s

finding that her mental condition is likely to deteriorate rapidly to the point that she poses a

substantial likelihood of serious harm. The state contends that all medical personnel involved in this

case have determined that mandatory outpatient treatment is necessary for the defendant. We agree

with the state that the record supports the need for mandatory outpatient treatment.

Following an acquittal on the basis of insanity, a trial court may order the acquittee to

participate in outpatient treatment only if it “determines that the person’s condition resulting from

mental illness is likely to deteriorate rapidly to the point that the person will pose a substantial

likelihood of serious harm under § 33-6-501 unless treatment is continued.” Tenn. Code Ann. § 33-

7-303(b)(3). A person poses a substantial likelihood of serious harm if the person (1) has threatened

or attempted suicide or serious bodily harm to him or herself or (2) has threatened or attempted

homicide or other violent behavior to another or (3) has caused others reasonably to fear violent

behavior or serious bodily harm or (4) is not able to avoid severe injury or impairment from

particular risks and the harm specified in one of these four categories is substantially likely to occur

unless the person is placed into involuntary treatment. Tenn. Code Ann. § 33-6-501. We review a

trial court’s determination that mandatory outpatient treatment is necessary de novo upon the trial

court’s record with a presumption of correctness unless the evidence preponderates otherwise. See

T.R.A.P. 13(d); State v. Tripp, 754 S.W.2d 92, 94 (Tenn. Crim. App. 1988) (reviewing the trial

court’s denial of release from judicial commitment into mandatory outpatient treatment).

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The defendant argues that her mental condition is not likely to deteriorate rapidly because

she has demonstrated her ability to manage her mental illness on her own. In support of this

contention, she asserts that she is a registered nurse, that she has substantial community support in

her parents, and that she has an uninterrupted history of compliance with both prescribed medication

and treatment. She notes that the psychotic episode that preceded the killing of the victim was not

due to her noncompliance with her medicine but to a third party’s error. She also relies upon the trial

court’s September 9, 2002 finding that she did not pose a continuing danger to society and could

continue on mandatory outpatient treatment without an evaluation under § 33-7-303(a). Finally, she

asserts that the record contains no proof supporting a finding that her mental condition is likely to

deteriorate rapidly.

The defendant’s arguments center around the theme that while she is maintaining her

medication and treatment, her condition is not likely to deteriorate. We believe that she misconstrues

the statutory language requiring a finding that the mental condition is likely to deteriorate “unless

treatment is continued.” Her personal potential to maintain her medication is irrelevant to the

inquiry. With regard to the likelihood of deterioration in the absence of treatment, Dr. Eric Smith

testified that if the defendant stopped taking her medication for a continuing time period, she would

become psychotic. He noted with respect to the antipsychotic Seroquel, “that medication was the

one that was substituted by the Serzone. I mean, you saw what the results were, so, in all honesty,

I think that would be a medication that she would need to be continued on, indefinitely, . . . .” By

this testimony, we take Dr. Smith to be saying that without continued treatment on Seroquel, the

defendant’s condition could deteriorate to the point that she could kill someone.

Relative to the speed with which the defendant’s mental condition is likely to deteriorate, Dr.

Smith testified that the defendant could experience notable changes, including aggressive behavior,

if she missed her medication for several days. We note that Dr. Travis McNeal testified that he

believed that the defendant should be released into the community on “fairly intensive” mandatory

outpatient treatment. This evidence is sufficient to support the trial court’s finding that the

defendant’s mental condition is likely to deteriorate rapidly in the absence of treatment. The

evidence does not preponderate against the trial court’s finding that the defendant needs mandatory

outpatient treatment.

II. CONDITIONS OF MANDATORY OUTPATIENT TREATMENT

The defendant also challenges the modifications the trial court made to her original MOT

plan, contending that twenty-four-hour residential treatment and daily supervised administration of

her medicine is contrary to the medical proof and punitive, oppressive, and impossible in nature. She

asserts that Dr. McNeal testified that she did not need someone to supervise her taking her medicine

or living arrangements involving twenty-four-hour supervision. She argues that she had no problems

maintaining her treatment and taking her medication while she was on bond and living with her

parents. Finally, she maintains that no living facility providing twenty-four-hour supervision is

available, making this condition of her MOT plan impossible to perform. She asks this court to

reinstate the original MOT plan set out in the trial court’s September 9, 2002 order. The state

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contends that the defendant improperly bases her arguments upon testimony from her habeas corpus

hearing. It argues that the medical proof from the November 25, 2002 hearing reveals that she needs

supervision in her living arrangements and the administration of her medicine. It also asserts that

the imposed MOT plan is not punitive, oppressive, or impossible.

We view the trial court’s requirement that the defendant live in a residential facility with

twenty-four-hour supervision to violate the statutory provision for outpatient treatment. Section 33-

7-303(b)(3) permits the trial court to order a defendant not subject to judicial commitment “to

participate in outpatient treatment” if it finds that the defendant’s mental condition is likely to

deteriorate rapidly, causing the defendant to pose a substantial likelihood of serious harm. In

interpreting a statute, our role is to give effect to the legislature’s intent when enacting the statute.

Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995). In the absence of a statutory definition of the

term “outpatient,” we discern the legislative intent by looking to the plain meaning of the language

used. See State v. Walls, 62 S.W.3d 119, 121 (Tenn. 2001). The plain meaning of the term

outpatient involves the patient leaving the treatment facility rather than residing there. See

Webster’s Third New International Dictionary 1603 (3d ed. 1993).

Furthermore, we are to read statutes relating to the same subject matter together. State v.

Williamson County Hosp. Trustees, 679 S.W.2d 934, 936 (Tenn. 1984). Our interpretation of

outpatient in section 33-7-303(b)(3) is supported by the use of outpatient in the sections outlining

the provision of mandatory outpatient treatment for those with a mental illness. With regard to an

outpatient treatment plan,

[t]he releasing facility shall provide a clear written statement of what

the service recipient shall do to stay in compliance with the plan to

the service recipient; the service recipient’s parents, legal custodian,

or legal guardian if the service recipient is a child; the service

recipient’s spouse or other adult family member with whom the

service recipient would live; and the service recipient’s conservator.

Tenn. Code Ann. § 33-6-603(b) (emphasis added). This provision expressly contemplates that the

person subject to the outpatient treatment plan will not be living in a residential treatment facility.

Additionally, the definition of community mental health center contrasts outpatient services with

those provided onsite at a hospital or other treatment facility: “Provides outpatient services,

including specialized outpatient services for persons of all ages with a serious mental illness, and

persons who have been discharged from inpatient treatment at a hospital or treatment resource.”

Tenn. Code Ann. § 33-1-101(6)(A). Reading these provisions together with section 33-7-303(b)(3),

we conclude that requiring the defendant to live in a group home or halfway house that provides

twenty-four-hour supervision is not consistent with outpatient treatment. Although we note that the

Shelby County Criminal Court has imposed mandatory outpatient treatment involving residence in

a group home or twenty-four-hour residential supervision on two other occasions, the propriety of

these requirements as outpatient treatment was not before this court on appeal. See State v. Jackie

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H. Martin, No. 02C01-9512-CR-00374, Shelby County (Tenn. Crim. App. Dec. 2, 1996); State v.

Betty Jean Brown, No. 14, Shelby County (Tenn. Crim. App. Apr. 11, 1990).

Moreover, we agree with the defendant that the evidence preponderates against the trial

court’s imposition of the requirements of twenty-four-hour residential supervision and supervised

administration of the defendant’s medicine. Prior to the hearing on mandatory outpatient treatment,

the MMHI treatment team recommended that the defendant live with her parents at their home while

participating in mandatory outpatient treatment. At the hearing, Dr. McNeal testified that this

recommendation was based upon the supportive environment that her parents would provide and

their ability to monitor her mental stability. Neither Dr. McNeal nor Dr. Smith were asked whether

the defendant should live in a residential facility with twenty-four-hour supervision. The first

mention of a supervised residential facility at the hearing was when Shirley McGowen, a

professional counselor from FFCC, suggested that such a facility could supervise the dispensation

of the defendant’s medicine. Both she and professional counselor Laverne Hoke stated that the

defendant was higher functioning than the residents of facilities providing twenty-four-hour

supervision. Thus, nothing in the record before the trial court shows the defendant needs to live in

a residential facility with twenty-four-hour supervision.

We note that the defendant’s father testified that he and her mother had not detected a change

in the defendant’s mental condition before the offense. Although this testimony does cast some

doubt upon the defendant’s parents’ ability to monitor her mental stability, we observe that before

the offense, the defendant was taking an antidepressant. The record does not reveal if or how this

medication served to mask the symptoms of her psychosis. At any rate, the MOT plan allows for

the defendant’s mental condition to be monitored by a host of mental heath care professionals as well

as her parents. Dr. Smith testified that it would at least take days for the defendant to begin to show

notable changes in her mental condition if she stopped taking her medication. This evidence

preponderates against the trial court’s finding that the defendant needs twenty-four-hour supervision.

With regard to the requirement that the administration of the defendant’s medication be

supervised at least five days per week, the record also preponderates against this condition. Dr.

McNeal testified that the defendant was capable of taking her medicine herself and did not need to

be monitored in this regard. Instead, he believed monitoring was necessary to assess how the

defendant was responding to her medicine. He also said that the defendant, a registered nurse, was

aware of the problems associated with a change in her medication and intended to be very careful

about such changes in the future. Ms. McGowen, who worked with the defendant at FFCC in the

time period between the offense and her evaluation at MMHI, testified that the defendant reported

compliance with her medications during this time and showed no symptoms of her illness to indicate

that she was not taking her medicine. The record contains no evidence that the defendant has ever

been remiss in taking her own medication and preponderates against the trial court’s requiring her

to be supervised when she takes it.

Based upon the foregoing and the record as a whole, we affirm the trial court’s imposition

of mandatory outpatient treatment. We believe the evidence supports the MOT plan as modified by

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the court with the deletion of the requirements that the defendant live in a residential facility with

twenty-four-hour supervision and that administration of the defendant’s medication be supervised

five days per week. The defendant does not otherwise challenge the MOT plan imposed by the

court, although the evidence at the hearing indicates that funding may not be available to implement

the plan as ordered. In the event that the defendant’s mental health care providers are not able to

implement the MOT plan, they or the defendant may bring the matter before the trial court for further

revision of the MOT plan as needed. We remand the case to the trial court for modification of the

MOT plan and reinstatement of the condition that the defendant live with her parents.

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JOSEPH M. TIPTON, JUDGE

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