### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON March 4, 2003 Session
STATE OF TENN ESSEE v. SANDR A 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

Ly nn Baumgartner, appea

ls the mandatory outpatient trea tment (MOT) plan imposed by t

he Shelby County Criminal Court following her acquitta l of first degree murder d ue to her insanity at the

time of the crime. She contends that the trial court erroneously required mandatory

outpatie nt treatm e nt because

the evide nce doe s not show th at her me ntal cond ition is likely to deter iorate r apidly , 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 medic al proof, punitive, oppressive, and impossible to perform. We conclude that the evidenc e preponderates against the MOT plan’s requirements that the defendant live in a supervised r esiden t ial facility and have
someone supervis e the adm inistratio n of her m

e dicine . We affir

m the MOT p lan as mod ified 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

J OSEPH M. T IPTON , J., delivered the opinion of the c ourt, in which D AVID H. W ELLES and J AMES C URWOOD W ITT , J R ., JJ., joined. Seymour S. Rosenberg , Memphis, Tennessee, for the appellant, Sandra L ynn Baumg artner.

P aul G. Summers, Attorney Gene ral and Reporter; J. Ross Dyer, Assistant Attorney Gene ral ; William L. Gib bon s, D istr ict Attorn ey Genera l; Ja mes A . Wa x, Jr., Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

The defendant was charge d with the April 2001 first degree premeditated murde r of Daniel Morgan. She pled not guilty by reason of insanity. B efore her bench tr ial, she s tipulated

to the fa cts that she and th

e victim ha

d an alte rcation at his apa

rtme nt and that she h ad stabbed him multiple times, which r esulted in his death. The record reflects that at he r May 16, 2002 benc

h trial, the-2-

parties stipulated and the defendant presented ev idence that at the time of the offense, she had Sc h izoaffective Disorder, Bipolar Ty pe, and was not able to appreciate the wrong fulness of her conduct. The trial court found the defendant not guilty by reason of

insanity. I

t initially found that
an evaluat

ion of the defenda nt’s mental co ndit ion was not necessary and that she did not pose a continuing danger to society . Following the state’s petition to rehear, thecourt ordered the defendant to be admitted to Wester n State Me

ntal Hea lt h Institute o n 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 MM HI team ha d eval uated the de fendan t and c onclu ded th at she shoul d be di scharge d into th e community

under a p roposed M OT plan. T

he propo sed plan i s summarized as follo ws: (1) Upon her release from MMHI , the defendant will receive reg ular mandatory

outpatient mental health services from a nurse practitioner and psychiatrist at Fr

ayser Family Counseling Center ( FFCC) in o rder to evaluate her

mental status and need for changesin medication. She will meet once monthly with nurse pr actitioner Susan Wool dridg e and once every

six months with Dr. ClaytonBake r. These profess ionals will revie

w the def endant’ 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 manag ed by FF CC’s Continuing Treatment Team (CTT). She will meet onc e weekl

y w ith
case manage r Hugh C allens, w

ho willinsure that she is advise d of all appointme

nts, has arranged transportation, and is compliant with her medication. Mr. Callens will provide behavioral observations to Dr. Baker in order that Dr. Baker can c ontinuously monitor her mental condition and need for medication change s. In the event tha t the defendant fails tocomply with the MOT plan or proble ms arise, Mr. Callens will inform the FFCC treatment team and L averneHoke, the sup ervising administrator, who will decide whether to notify the court of a violation.
(3) The defendant will participate in weekly alcohol anddru g treatment meeting s at FFCC . Ms. Hoke coordin ate s this group, which meets on Wednesdays from 3:00 to 4:30 p.m. The def endant w ill be subject to random ur

ine screens for d

rugs, a nd FFCC w ill notify the trial cou rt in writing of a

positive d

rug scr een within seven d ay s. (4) The defendant will attend Alcoh olics Anonymou s (AA) m eetin gs at Fa mi ly F el lo ws hi p a t l ea st on ce we ek ly.-3- (5) The defend ant wi ll receive individual therapy at least twice monthly from Dr. Robert Se

rino, who

is a licens ed clinical psy cholog ist.
(6) The defendant will continuously live with her parents , Bob and Carol Baumg artner , who res i de 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 c ourt of a viol ation , and/ or ter minat ing th e plan throu gh 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 he ari ng on th e issue of outpatient treatme nt. Dr. McNeal, a licensed staff psy chologist and forensic coordinator, testified that he evaluated the defendant

at MMHI. He said that her sy mptoms were well under control and that she did not mee t the criteria for continued commitment to a mental institution. He said tha t th e defendant should be returne d to the community under a “ fairly intensive” MO T plan supervised by the trial cou

rt. He stated that he developed the proposed MOT plan in collabora tion with FFCC, the defenda nt’s par ents, Dr. Serino, a

nd the MMHI tre atment te am.
Dr. McNeal testified that he was aware that the defendant

was acc used of st abbing the victim witha 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 aggr essive behavior duri ng that t

ime. He sa

id the pre sent off

ense wa s precip itated by her anti psy chotic medication being inadvertently switched to an antidepressant, which led to theatypical dete rioration of her mental functioning over a period of months. He sa id thatafter the of

fense, she had not displayed any ag gressive behavior. He s tated that while at MMHI, the defe ndant had shown no sym ptoms of her mental illness, whichis well-controlled by her medicine. He characterized her as kind and helpful to the other patients. Hesaid that the isolated incident of violence seemed to have occurred from special circumstances and that it was safe to r eturn the defenda

nt to a com

munity treatment program under fairly intensive supervision.

On cross-e

xamination, Dr. McNe al testif ied that it

was importan t for the d efenda nt to continue alcohol and drug treatment, although a ttending 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 ha

d a work c onflict. He stated that upon her return to the community, the defenda

nt 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 reg ular contact with her to make sure she was mentally stable. He said her p arents 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 whe t her the defendant took her medicine. He sa id that the-4-

defendant did not need daily

supervis ion in ta

king her medicine and that she was intelligent and stable e nough 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 employ ees could monitor her mental sta tus and how the medications were affecting he r. 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 regi stered n

urse, the defenda nt was pre sently

aware of the im plica tion s stem ming fr om a ch ange in her medication and would be very carefu l about such changes in the future. He sa id that if the defendan t stoppe d taking her medi cine or r

efused t o see a do ctor, the

outpatie nt provide

rs 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 treatme

n t at MMHI . He said

the defe ndant’s m

ental illness was c omprised of psy chotic sym ptoms and mood sy

mptoms, whi ch includ

ed both ma

nia and depression. He said that when she
came to MMHI , she wastaking G eodon, a n antipsy chotic me dication , tw ice d aily. He said that Geodon is used primarily to control delusions and hallucinations and tha t the defendant was taking the maximum dosa

ge. He believe d that the

FFCC had

prescr ibed this f

or her a nd that she

should continue on it indef

initely unless she

started e xperienc ing side

effec ts. He sai d not much w ould happen if she missed one dose of Geodon, but missing it on a continu ing basi s raised

the possib ility that her psychotic sy

mptoms would reoccur.

Dr. Smith testified that the defendant was also taking Seroquel, an antipsychotic medication,
once daily at bedtime. He sa id 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 anantidepr essant, but if the a

ntidepre ssant is no t closely monitored , it can e

xacerba te the patient’s symptoms. He said that when Serzone wa s substituted for Seroquel, the defendant had nothing to prevent her delusions and hallucinations and that as a result, she became psy chotic. He believedthat the defendant needed to continue on Sero quel indefinitely , pending any side eff ects. He said the defendant was also taking Depacoat E. R., a mood sta bilizer, twice daily

when she came to MMHI . He said

that bec ause she

was exper

iencing hair loss as a side effect of the Depacoa t, he switched her to Trileptal , which she also takes twice daily . He said Trileptal is an anticonvulsive medicine commonly

used in psy

chiatry as a mood- sta

bilizing ag ent to prevent the patient from having manic symptoms. He said that the def endant takes all of the se medic ations or ally in pill form.

Dr. Smith testified that if the defendant missedany of her me dication s, the effect would not be immediate . He said

she would

have to di scontinue

the medic atio ns for se veral day s or weeks be fore one would start to see notable changes in her. He said that if such were the case, th e defendant could become manic, wh ich wo uld involve not needing to sleep and increased impulsiveness, and might exhibit more aggres sive be havior. He said the latter change inc ludes physical violence but could also involve being pushier, more insulting, and not as in-control of oneself as norma l. He agreed that if the defe ndant did not take her medications for several day s, she would be at gr eater r isk of stab

bing some one multipl e time s than the av erage person. He said that
as long as the defe

ndant is sta

ble, she i s able

to do any ty

pe of work she feels capable of doing . He-5-

agreed that it would benefit the defendant and the community if she saw health care providers on a very fr equent basis as described in the MOT plan. Shirley McGowen, a licensed professional counselor, testified that she worked for FFCC, a comprehensive community mental he alth cen

ter that p rovid es out patient se

rvices to people of

all ages. She said F

FCC employs license d nurses, pharmac ologists , and psy chiatris ts and is primaril

y fundedthrough Advocare, the manag ed care organization of TennCare . She said the defendant received outpatient treatment at FFCC for about one yea

r following the offense and before being sent to MMHI. She said that during this time, the defenda n t reported t aking her medications and exhibited no symptoms contradicting he r reported compliance. She characte rized the defendant

as a good patient and said that the staff found her to be complian t. 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 defe ndant and was familiar with the defendant’s proposedMOT plan. She said that the MOT plan differed from the defendant’s earlier treatment at FFCC in that

the defe ndant would work mor

e intense ly w ith a cas e manag er, who w ould visit her weekly at home. She said that

under the defendant’s former trea tment, her case manager c onducted home visits once or twice each month.

Ms. McGowen testified that after the proposed MOT plan wa s developed, Advocare stopped enrolling patients in FFCC’s continuous treatment team, which pro vides the most intensive outpatient car e available at

FFCC. She said that unless Advocare made an exception for the defenda nt, she would not

be able to participate in the CTTas required by the MOT plan. She stated that the defendant could participate in other, les s inten sive outpa tient prog rams at F FCC. With respect to other outpatient

options, she said the defendant should still meet monthly with Dr. Pa

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

. Jordan would work in conjunction with Dr. Clayton Bake r, a psychia

trist, who would assess the defendant if a need to change her medicine ar ose. She said that if the defendant were required to attend w eekly g roup meeti ngs at FFCC, they c ould monitor her attendance and perfor man ce in alcohol treatment. She also recomme

nded that a case manage

r visi t t he defe

ndant and her par ents at ho me on a mon

thly basis. She believed that an outpatient treatment plan invol ving these el ements wo uld be fe asible giv en t he s tab il it y tha t t he d efe nda nt ex hi bi ted bot h no w an d be for e go in g to MM HI.

Ms. McGowen

testifie d that FF

CC did not dis pense me dication to patien ts on a dai ly b asis and that a patient needing that serv ice would have to be in a sup ervised

living sit uation or a hospita l. She acknowledged that any one in a voluntary pr

ogram who was re sponsib le for taking their own medications could

choose to stop takin g them. Sh

e said tha t in a seriou s situation , the FF CC would remain in contact with the p atient and her supp ort sy stems 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 F

FCC fol lows MOT patients more closely because they need more supervision and
encoura gement to comply with their plans. She said she cur rently supervised

two clients who had killed people and

were not placed in a

MOT prog

ram. I n respons e to quest

ioning 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 ba sis. She noted that most of the re sidents of

Higbee House-6-

were lower functioning than the defendant. She observed that if the defendant were required to take her medicine at a menta

l health c linic, the

defenda nt would ha

ve to tra vel to and

from the c linic tw ic e d ai ly b ec au se sh e t oo k m ed ic in e t wo ti me s p er da y.
Laverne Hoke, licensed professional counselor and supervisor of F FC C’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 thedefendant seein g Dr. Baker every six months, seeing her psychologist twice each month, see ing a pharmac ologist

once per month, and participating in counselingsessions. She also confirmed that FFCC ’s c linics did not administer medicine on a daily basis. She said that super vised residential home s provided this service but that she believed the defendant was hig her functioning than the residen ts of these

homes.

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

ndant’s mother, t estified that she felt the defendant’s mental condition was stable and had been good while the d efendant was being treated at FF

CC. She said the defendant was capable of transporting hersel f to meeti ngs and appoi ntmen ts. S he sai d that the de fendan t was r espon sibl e abou t taki ng he r medicine and that t

he offe nse did not occ

ur beca use 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 ye ars and that, at the time, she was not aware that the defendant was having problems with an incorrect medication. Robert Baumgartner, the de fendant’s father, testified that the defendant was taking her medicine and

would continue to do so. He stated that the defe ndant functioned n ormally during the time she lived with them and that he and his wife w ere sur

prised by the offe nse. He s aid that at the time of the offense, the only changes in the defendant that he notice d were that she was a little mor

e compla cent, le ss active , and wor king 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 s he felt mo

re stable because she
was taking the correct medication. She stated tha t she was a

recovering alcoholic and attended AA meeti ngs two or thre e times each week. She said she did not need help taking her medicine but agreed she would com

ply if the court ordered her to go to a c linic to take her medicine each day . She said that she hada driver’s license and transportation to comply with that requirement. She stated that she would like t o get a j o b but did not think she w ould be ab le to work if she ha d to drive to FFCC twice daily. She said th at she would go to a residen tial fac ility

or halfw ay

house tem

porarily if that is what the court ordered.

The tria l court imp osed the p

roposed M OT plan w ith the following mo dificati ons: (1) The def

endant w ill be plac ed in res identi al h ousing with an
em pl oye e o n d ut y tw en ty- fo ur ho ur s p er da y, (2) The administration of her daily me dications will be supervised at least five day s per week,-7- (3) The defend ant wil l attend AA meetings three times weekly and will get a sponsor, (4) She will see a doctor every six months, and
(5) The tria

l court wi ll recei ve monthly reports re garding the defenda nt, and she will report to the trial court once every six months.

The trial court also ordered that the defendant’s tre ating professional file a report w ith 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 statutori ly prescribed ninety -day per iod 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 sepa rate ha beas cor pus appe al to this court, and we ordered the defe ndant’s immediate releas e to her pa

rents’ h ome subje c t to the remainder of the trial court’s MOT plan pending resoluti on of this appeal. Sandra B aumgar tner v. Me

mphis Menta

l Health I nstitute , No. W 2003

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

The d efenda

nt c ontends that she does not meet the statutory c riteria to require mandatory outpatient treatme nt. Specif

ically , she arg

ues that the record does not support the trial court’s finding that her mental condition is likely to det eriora te rapidly to

the point th at she pos es a substantial likelihood of serious harm. The state contends that all me dical pe rsonnel involved in

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

ate that t he reco rd suppor ts the nee d for man datory outpatie nt treatm ent. Following an acquittal on the basi s of insan ity, a trial c ourt may

order the acquit

tee to particip ate in outpatienttreatment only if it “dete rmines that the person’s condition resulting from mental illness i s likely to d eteriorate 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 thre atened
or attempted suicide or serious bodily ha rm to him or herself or (2) has threa tened or attempted homicide or other violent behavior to another or (3) has ca used others reasonably

to fear violent behavior or serious bodily

harm or (

4) is not a

ble to avo id se vere injury or impairment from particular risks and the harm specified in one of these four ca tegories is substantially likely to occur unless the pers on is plac ed into involuntary treatment. Te nn. 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) (reviewi ng the trial court’s denial of release from judicial commitment into mandatory outpatient treatment).-8-

The defendant argues that hermental co ndition is not likely to deter iorate r apidly because she has demonstra ted her a bil ity t o manag e her me

ntal illne ss on her o wn. I n support o f this contention, she asserts that she is a registered nurse , that she h as substa ntial comm

unity 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 tha t 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
c ourt’s September 9, 2002 finding that she did not pose a continuing dang er to soc iety and coul d continue on ma nd at or y ou tp at ie nt tr ea tm en t w it ho ut an ev al ua ti on un de r § 33 -7 -3 03 (a ). Fi na ll y, she asserts that

the rec ord conta

ins no proo f support

ing a finding tha

t her men tal condition is likely

to de te ri or at e r ap id ly.

The defendant’s arg uments cent er around the theme that while she is maintaining her medication and treatment, her co n dition is not likely to deteriorate. We believe that she misconstrue s the statutory

langua ge req uiring a finding that the me

ntal cond ition is like

ly to deterio rate “u nless treatment is continued.” Her personal potential to maintain her medic ation is irrelevant to the inquiry . With reg ard to the likelihood

of deter ioration in the abse

nce of tr eatment, Dr. Eric

Smith testified that if

the defendant stopped taking her medication for a continu ing time p eriod, sh

e would become psychotic. He noted with respect to the antipsy chotic Se roquel, “that medication was the
one that was substituted by the Serzone. I mean, you saw w

hat the results were, so, in al l h on es ty, I think that would be a medication that she would need to be continued o n, indefin itely, . . . .” By this t estimony , we take Dr. Smith to be say ing that without continued treatment on Seroquel, the defendant’s condition could deteriorate to the point that she could kill someone.

Relative to the spe ed with which the defenda nt’s menta

l condition

is likely to deteriorate, Dr. Smithtestified that the defendant could experience notable chang es, including aggre ssive behavior, if she missed

her me dication fo r several day s. We note that Dr. Travis McNeal testified that he believedthat the d

efenda nt should be

releas ed into the community on “fairly intensive” mandatory outpatient treatme nt. This ev

idence i s suffici ent to supp ort th e trial court’s finding that the defendant’s mental co ndition is li kely to dete riorate rapidly

in the absence of treatment. The evidence does not preponderate against the trial court’ s finding that the defendant needs mandatory outpatie nt treatm ent.
II. CONDITIONS OF MANDATORY OUTPATIENT TREATMENT

The defendant also challen ges the modifications the trial court made to her original MOT plan, contending that twenty -four-hour residentialtreatment and daily supe rvised administration of her medicine is contrary

to the medical proof and punitive , oppress ive, and impossible in nature. She asserts that Dr. M cNeal te stified th at she did not need s omeone to

supervis e her taking her medicine
or living arrangements involving twe nty-four -hour sup ervision . She arg ues that s he had no

problems maintaining her tr eatme nt and takin g her medi catio n while she was on bond and living with her parents

. Finally, she maintains tha t no living

facility providing

twenty -four- hour supe

rvision is available, making t

his condit ion of her MOT plan imp o ssible to pe rform. Sh

e asks thi s court to reinstat e the or iginal M OT plan se t out in the t

rial cou rt’s Septe mber 9, 20 02 order . The stat e-9-

contends that the d

efenda nt imprope

rly bases he r argu ments upon testimony from her habeas corpus hearin g. It argue s thatthe medical proof from the November 25, 2002 hear ing 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 t

rial cou rt’s req uiremen t that t he defen dant live

in a resid

ential fa cility with twenty-four- hour

supervision to violate the statutory provision for outpatient treatment. Section 33- 7-303(b)(3) permits the trial c ourt to or der a defendant

not subject to judicia

l commitmen

t “to particip ate in outpatient treatment” if it finds that the de fe ndant’s m ental co ndition is li

kely to deterio rate rapidly, causing

the defendant to pose a s ubs tan ti al l ik eli hoo d of ser io us h arm . In interpreting a statute, our role is to give ef fect to the legislature’s intent when enacting the statute. Owens v. State , 90 8 S .W .2d 923 , 92 6 (T enn . 19 95) . In the absence of a statutory definition of the term“outpatient,” we discern the legislative intent by looking to the plain meani ng of th e langu age used. See State v. Wa

lls , 62 S.W.3d 1 19, 121 (Tenn. 2001). The plain meaning of the term
o utpa tientinvolves the patient leaving the treatment facility rather than residing there. See Webster’s Third New Inter national Dictionary

1603 (3d ed. 1993).

Fu rthermore, we are to read statutes relating to the sa me subject matter together. State v

. Williamson County Hosp. Trustees , 679 S.W.2d 934, 9 36 (Te nn. 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 tre atment for those with a mental illness. With regard to an outpatient treatment plan,

[t]he releasing facility shall provide a c lear written statement of what the service recipient shall do to stay in co mpliance with the pl an to the service recipient; the service recipient’s parents, legal custodian,
or legal gua

rd ian if the service recipient is a child; the service recipient’s spous e or o ther 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 su bject to the outpatient treatment plan wi ll no t b e l iv in g i n a re si de nt ia l t re at me nt fa ci li ty. Ad di ti on al ly, the defi niti on o f communit y me ntal hea lth cente r contra sts outpati ent services with those provided onsite at a hospital or other treatment fac ility: “P rovides outpatien t service s, includ ing special i zed outpatient services for persons of all ages with a serious mental illness, and persons w ho hav e been discharged from inpatient tre atment at a hospital or treatment resource.” Tenn. Code Ann. § 33-1-10 1(6)(A) . Reading these pr ovisions to gether

withsection 33-7-303(b)(3),
we conclude that requiring the defenda nt to live in a g roup home or h alfway house that provides twenty-four- hour

supervision is not consistent with outpatient treatment. Although we note that the Shelby County Criminal Court

has impose d mandato

ry outpatie nt treatm ent involving res idence 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-10-

H. Martin , No. 02C01 -9512-CR- 00374, She lby County (Tenn. Cr

im. App. Dec . 2, 1996) ; Statev. Betty Jean Br

own , No. 14, Shelby County (Tenn. Crim. App. Apr. 11, 1990).
Moreover, we agree with the defe ndant that the evidence preponderates ag ainst the t rial 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

treatme nt, the MMHI treatment team rec ommended that the defendant live with her p arents a

t their hom

e while particip ating in ma ndatory outpatie nt treatm ent. At the

hearing , Dr. McN

eal testi fied tha

t this recommendation was base d upon the supportiv e enviro nme nt that he r parents would provide and their ability to monitor her

mental stability. Neither Dr. McNeal nor Dr. Smith were asked whether the defenda

nt should liv e in a re sidential facili ty wi th twenty

-four- hour supe

rvision. T

he first mention of a supervised residential facility at the hearing was when Shirley McGowen, a professional counselor from FFCC, suggeste d that such a facility could supe

rvise the dispensation of the d efenda

nt’s me dicine. Both she and professional counselor L averne Hoke stated that the defendant was higher functioning than the re sidents of facilities providing twenty -four-hour supervision. Thus, noth

ing in the record

before the trial court sho ws the defendant needs to l

ive in a residential facility

with twenty-four- hour supervision.

We note that the defendant’s father testified that he and he r mother had no t dete cted a c hange in the defe

ndant’s m

e ntal con dition bef

ore the o ffense . Althoug h this testimony

does cas t some doubtupon the defendant’s parents’ ability to monitor her

mental stability, we observe tha t before the offense, the defendant was taking an antidepressant. The record does not re veal if or how this medication served t

o mask the

sym pto ms of her psychosis. At any

rate, the MOT plan allows for the de fe nd an t’ s m en ta l c on di ti on to be mo ni to re d b y a host of mental he ath car

e profe ssionals a s well
as her parents. Dr. Smith testified that it would at leas t take da ys f or the defendant

to begin to show notable chan ges in her mental condition if she stopped taking her medication. This evidence preponderates against the trial court’s finding that the defe ndant needs twenty-four- hour supervision.

With regar

d to the requireme

nt that the

administr

ation of th

e defendant’s medication be supervisedat least five day s per week, the record also preponde rates 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 re gard. Inste ad, he believed monitoring was necessar y to assess how the defendant was responding to her medicine. He also said that the de fendant, a registered

nurse, was awareof the problems associated with a change in her medication and intended to be very ca reful 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 def endant reported compliance with her medications during this time and showed no symptoms of

her illne ss to indica

te 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 prepondera tes against the trial court’s requiring her to be supe

rvised wh en she ta kes it.

Based upon the foregoing and the record as a whole, we affirm the trial court’s imposition of mandator y ou tpatient t reatmen t. We believe the evidence supports the MOT plan as modified by-11-

the court wit

h the dele tion of the

require ments that

the defe ndant live in a residential facility

with twenty-four- hour supervision andthat administration of the defendant’s medication be supervised five days per w eek. The defendant does not otherwise cha llenge the MOT pl an imposed by the court, although the evidenc e at the h earing indicate s that fun ding may not be ava

ilable to implement the plan as ordered. I

n the event that the defendant’s mental hea l th care provider s are not

able to implementthe 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 a

nd reinst atement o f the condition that the defe ndant live with her p arents.

___________________________________ JOSEPH M. TIPTON, JUDGE