This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-00-1218

 

 

In the Matter of:

Thomas Jeffrey Kimel.

 

 

Filed December 19, 2000

Affirmed

Crippen, Judge

 

 

Hennepin County District Court

File No. P89960404

 

 

Ronald L. Thorsett, 7328 Ontario Boulevard, Eden Prairie, MN  55346 (for appellant)

 

Amy Klobuchar, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Randall, Presiding Judge, Crippen, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant disputes whether the facts of the case permit his commitment as mentally ill and dangerous, contending that he did not engage in an overt act causing or attempting to cause serious physical harm to another.  Because the record adequately demonstrates that appellant’s conduct met this standard, we affirm.

FACTS

            Appellant has a history of mental illness and hospitalizations.  He was committed as mentally ill in October 1999, and he was on “unauthorized leave” status at the time the incident occurred that precipitated the current petition for commitment as mentally ill and dangerous.  Even before this incident, his aggressive behavior had been escalating; since September 1999, he assaulted a roommate, charged at and threatened to kill a nurse while he was hospitalized, and threatened to shoot social workers who visited him after he failed to comply with provisional discharge requirements.

            In March 2000, after an apprehend-and-hold order had been issued, police arrived at appellant’s house to investigate complaints made by neighbors.  Appellant refused to let them enter, and they forced entry through his back door.  As the trial court found:

                        When the police entered his home through a rear entrance into it, [appellant] confronted them while he held a large kitchen knife in position to lunge at them and stab them with a downward motion from his shoulder height.  He told them that if they came into his home any further he would kill them.  [Appellant] clearly intended to use the knife to defend himself from the police and his statement that he would kill them was not equivocal in any way.

 

The officers retreated and tried to use other methods to apprehend appellant.  The deployment of tear gas had no effect on him, and when a canine-unit dog was sent in, he stabbed the dog in the throat.  The emergency-response unit then entered his house, firing beanbag rounds.  It was only after two percussion grenades temporarily stunned appellant that the officers were able to take the knife away, and even then appellant fought, kicked, and bit as they removed him.

            At the time of the incident, appellant was not taking his prescribed medication and was delusional, agitated, and paranoid.  Appellant’s treating psychiatrist and the court-appointed examiner diagnosed him with schizophrenia and recommended his commitment as mentally ill and dangerous.  The trial court committed appellant as mentally ill and dangerous, and he appeals.

D E C I S I O N

            A person is mentally ill and dangerous only if the person “has engaged in an overt act causing or attempting to cause serious physical harm to another.”  Minn. Stat. § 253B.02, subd. 17(b)(i) (1998).  This appeal is directed only at this part of the applicable standards.  Appellant contends that his conduct more closely met the standard for commitment as mentally ill, which requires only a showing of “a recent attempt or threat to physically harm self or others.”  Minn. Stat. § 253B.02, subd. 13(a)(2) (1998). 

            The underlying facts of the case are undisputed.  Appellant challenges only the ultimate finding that the requisite overt act occurred.  The court’s conclusions on such ultimate issues are reviewed under an abuse of discretion standard.  Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990). 

            Although acknowledging that he displayed a knife, appellant explains that he was not aggressive and instead retreated from the police.  He asserts that he did not stab anyone or clearly attempt to do so, but only swung a knife over his head.  He also contends that evidence of his earlier aggressive actions was too thin to rely on.

            The supreme court has recognized the difference between the degree of harm required for commitment as mentally ill (physical harm) and that required for commitment as mentally ill and dangerous (serious physical harm).  In re Kottke, 433 N.W.2d 881, 884 (Minn. 1988) (holding that committing two assaults with fists did not constitute serious physical harm required for mentally ill and dangerous commitment).  Not every aggressive act meets the standard for commitment as mentally ill and dangerous, but it also “is not necessary that mayhem or murder occur”; conduct less violent than murder may meet the mentally ill and dangerous standard.  Id.  The necessary overt conduct includes a “dangerous act capable of causing serious physical harm to another,” regardless of the person’s intent or the outcome of the act.  In re Jasmer, 447 N.W.2d 192, 195-96 (Minn. 1989) (citing examples of mentally ill person deliberately aiming and firing shotgun at another person or driving automobile at speed of 100 miles per hour into a crowd of people).

            In this case, appellant held a large knife in a threatening position and definitely announced his intent to kill the police officers who had entered his home.  The trial court did not abuse its discretion in determining that appellant’s violent conduct, which could have resulted in serious injury or death to the police officers, constituted a dangerous act capable of causing serious physical harm to another.

            Affirmed.