This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-1942

 

 

In the Matter of: Benjamin Grier.

 

 

Filed February 27, 2001

Affirmed

Schumacher, Judge

 

Hennepin County District Court

File No. P40060410

 

 

Gregory R. Solum, 5275 Edina Industrial Boulevard, Suite 105, Edina, MN 55439 (for appellant Grier)

 

Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent petitioner)

 

Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Poritsky, Judge.*

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Benjamin Grier argues the district court improperly admitted hearsay evidence and without it there was not clear and convincing evidence to commit him pursuant to the Civil Commitment Act. Because the evidence was admissible under the excited utterance exception, there was clear and convincing evidence supporting the district court's findings. We affirm.

FACTS

Grier was diagnosed as suffering from a mood disorder, personality change and cognitive disorder due to a general medical condition. He has been committed three times in other states since first being diagnosed mentally ill at age 20. In 1998, Grier came to Minnesota to live with his mother. He failed to continue psychiatric treatment, stopped taking his medication, and his delusions and paranoia worsened. He wore a down coat in 90-degree weather and wandered outside at night wearing only pajama bottoms. He told his mother that he had conversations with the BBC via a microchip implanted in his tooth and that he received a message from the BBC asking him to contact Norman Schwarzkopf to have Governor Ventura killed.

Three weeks prior to the commitment proceeding, Grier became belligerent and verbally abusive. Grier's mother reported two violent attacks by him towards his younger sisters. Grier's 12-year-old sister called their mother at work, hysterical, saying that he had his hands around his other sister's throat, choking her. A week later, she called again, hysterical, saying that Grier had chased his other sister into the bathroom with a knife. Grier's mother resolved both situations over the phone and delayed disclosing the events to Grier's hospital social worker or other hospital staff.

After this second incident, Grier went to the Fairview University emergency room, where he threatened to sexually assault Terry Ventura, the governor's wife. He also made other threats to hospital emergency room staff. Grier was put on a 72-hour hold during which the staff observed him grimacing, talking to himself, gesturing, and repeatedly clenching his fists.

A petition for civil commitment was filed. At the commitment hearing, the district court admitted the social worker's memorandum and Grier's mother's testimony about her daughter's description of the two violent incidents. The district court ordered Grier committed. Grier appeals.

D E C I S I O N

On appeal from a judicial commitment, this court's review is limited to whether the district court complied with the Civil Commitment Act and whether the commitment was "justified by findings based upon evidence" submitted at the hearing. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). To commit a person as mentally ill, the district court must find by clear and convincing evidence that the mentally ill person poses a substantial likelihood of physical harm to self or others through a recent attempt or threat to physically harm self or others. Minn. Stat. 253B.02, subd. 13(a) (2000); In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995). The district court shall admit all relevant evidence and make its determination on the entire record pursuant to the rules of evidence. Minn. Stat. 253B.08, subd. 7 (2000). We review evidentiary rulings for an abuse of discretion. State v. Edwards, 485 N.W.2d 911, 914 (Minn. 1992).

The district court admitted Grier's mother's testimony relating to Grier's sister's telephone calls to her reporting Grier's violet attacks and the social worker's memorandum detailing Grier's mother's report of those incidents and other strange behavior under the excited utterance exception. Grier contends that the district court abused its discretion, alleging insufficient indicia of reliability supported the truth of the statements.

A statement otherwise hearsay is admissible if it relates to "a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Minn. R. Evid. 803(2); see State v. Daniels, 380 N.W.2d 777, 782 (Minn. 1986). The rationale of the exception "stems from the belief that the excitement caused by the event eliminates the possibility of conscious fabrication, and insures the trustworthiness of the statements." Daniels, 380 N.W.2d at 782 (quoting Minn. R. Evid. 803 1977 comm. cmt.). Grier does not dispute that the girl's statements were made during a startling event, in a state of hysteria relating to the exciting event. We conclude the statements are trustworthy.

Grier also argues the social worker's memorandum was double hearsay. The memorandum is not admissible under the excited utterance exception, because the mother's statements to the social worker were not made in an aura of excitement. See Minn. R. Evid. 803(2). Nor is the memo admissible under the business records exception, because the memo was not kept in the course of a regularly conducted business activity. See Minn. R. Evid. 803(6).

Even if the memo was improperly admitted, only prejudicial error will result in a new trial. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). See Cloverdale Foods of Minn., Inc. v. Pioneer Snacks, 580 N.W.2d 46, 51 (Minn. App. 1998) ("An evidentiary error is prejudicial if the error might reasonably have changed the result of the trial."). No testimony or the district court's findings referenced the additional allegations in the memo beyond the events disclosed in the mother's testimony. The psychologist based his conclusions, in part, on the memo, but he never testified to any additional allegations and merely stated that he found the family reports credible.

If a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data [upon which the expert relies] need not be admissible in evidence.

 

Minn. R. Evid. 703. Consequently, the admission of the memo was not prejudicial.

Even without the evidence of these violent incidents, the record contains other evidence of a substantial likelihood of harm. Grier wore a down coat in 90-degree weather. He threatened to harm the governor, the governor's wife, as well as hospital emergency room staff. Clear and convincing evidence supports the district court's commitment of Grier.

Affirmed.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.